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the offence. And if the objections be valid, the whole proceedings shall be set aside, but the party may be again indicted.
Defects in the Indictment. None of the statutes of jeofails, for amendment of errors, extend to indictments or proceedings in criminal cases; and therefore a defective indictment is not aided by a verdict, as defective pleadings in civil cases are. In favor of life, great strictness has at all times been observed, in every point of an indictment.
Technicalities of Indictments. Sir Matthew Hale complains, that this strictness has become a blemish in the law and its administration, "for, that more offenders escape by the overeasy ear given to exceptions in indictments, than by their own innocence.” And yet no man was more tender of life, than this excellent judge.
A Pardon. A pardon may also be pleaded in arrest of judgment; and it has the same advantage here, as if pleaded on arraignment; the saving the attainder, and of course the corruption of blood, which nothing but parliament can restore, when a pardon is not pleaded until after sentence. When a man has obtained a pardon, he ought to plead it at once.
Praying Benefit of Clergy. Praying the benefit of clergy may also be ranked among the motions in arrest of judgment.
Pronouncing of Judgment. If all these resources fail, the court must pronounce that judgment, which the law has annexed to the crime. Some punishments are capital, extending to the life of the offender, and consist generally in being hanged until dead, though in very atrocious offences, other circumstances of terror, pain or disgrace are superadded; as in treasons of all kinds, being drawn or dragged to the place of execution; in high treason, affecting the king's person or government, disemboweling alive, beheading and quartering; and in murder, a public dissection. And in case of treason committed by a female, the judgment is that she be burned alive.
Variety of Punishments. But the humanity of the English nation has authorized, by tacit consent, an almost general mitigation of such parts of these judgments, as savor of torture or cruelty; a sledge or hurdle being usually allowed to such
1 Formal defects on the face of the indictments can only be taken advantage of before the jury are sworn, by demurrer or motion to quash.
traitors, as are condemned to be drawn; and parties being first strangled before being disemboweled or burned. Some punishments consist in exile, banishment, abjuration of the realm, or transportation; others in perpetual or temporary imprisonment. Some extend to confiscation, by forfeiture of lands, or goods, or both, or of the profits of lands for life; others cause a disability to hold offices or employments, being heirs, executors or the like. Some, but rarely, cause a mutilation or dismembering, by cutting off the hand or ears; or for a lasting stigma, by slitting the nostrils, or branding in the hand or cheek. Some are merely pecuniary, by fines; and lastly, some mainly consist in their ignominy, and are usually mixed with some degree of corporal pain, inflicted for crimes, which arise from indigence, or render even opulence disgraceful. Such as whipping, hard labor in the house of correction, the pillory, the stocks and the duckingstool.
Punishments in Other Countries Contrasted. Disgusting as this catalogue of punishments may seem, it will compare favorably with that shocking apparatus of death and torment, to be met with in the criminal codes of almost every othar nation in Europe. And it is one of the glories of English law, that the species, though not always the quantity or degree of punishment, is ascertained for every offence, and that it is not left in the discretion of a judge or even a jury, to alter that judgment, which the law has beforehand ordained. For if judgments were to be the private opinions of judges, men would be slaves to their magistrates, and would be ignorant of their conditions and obligations. Whereas, where an established penalty is annexed to crime, the criminals may read their certain consequence in that law.
Discretionary Punishments. Discretionary fines and length of imprisonment, which our courts can impose, may seem an exception to this rule. But the general nature of the punishment by fine or imprisonment is, in these cases, fixed and determined, though the duration and quantity of each must vary from the aggravations of the offence, the quality and condition of the parties, and other circumstances. The quantum of fines cannot be ascertained by an invariable law. What is ruin to one man's fortunes, may be an indifferent matter to another. Thus, the law of the twelve tables at Rome fined every opulent person who struck another, twenty-five denarii.
Bill of Rights. The bill of rights declares, that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted; and further, that all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void. The bill of rights was only declaratory of the old constitutional law, which had declared such previous grants void.
Fines. The reasonableness of fines in criminal cases has also been regulated. A rule obtained, even in the time of Henry II, that no man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear; saving to the land-holder his land, to the trader his merchandize, and to the countryman his team and instruments of husbandry. The great charter directed, that the amercement shall be reduced to a certainty by the oath of good men in the vicinity. Since the disuse of this inquest, it is not customary to assess a larger fine than a man is able to pay, without touching the implements of his livelihood; but to inflict corporal punishment or a limited imprisonment in lieu thereof.
Attainder. When sentence of death is pronounced, the immediate consequence from the common law is attainder. The man is then called attaint, attinctus, stained or blackened, and is dead in law. This is after judgment; for there is a marked difference between a mar convicted and attainted. After conviction only, a man may still be a witness in a case, and may be liable to none of the disabilities, which exist after attainder. There still remains a possibility of his innocence. Something may be offered in arrest of judgment; the indictment may be erroneous, and hence the present conviction may be quashed; or he may obtain a pardon, or be allowed the benefit of clergy. But when judgment is once pronounced, both law and fact combine to prove him guilty. Upon judgment of death, and not before, the attainder of a criminal begins, as also upon judgment of outlawry on a capital crime, pronounced for fleeing from justice, which is a tacit admission of guilt. Hence, either upon judgment of outlawry or of death, for treason or felony, a man shall be said to be attainted.
Consequence. The consequences of attainder are:
Effect on Real Estate. As to real estate ; by attainder in high treason, a man forfeits to the king all his lands and tenements of inheritance, whether in fee-simple or fee-tail, and all his rights of entry therein, which he had at the date of the offence, or since, to be forever vested in the crown; and also the profits of such lands or tenements, which he had in his own right for life or years, so long as such interest shall exist.
Dates Back to the Treason. This forfeiture relates back to the time of the treason committed, so as to avoid all intermediate sales and encumbrances, but not prior ones; hence, a wife's fortune is not forfeitable for the treason of her husband, because settled upon her prior thereto. But her dower is forfeited ; although the husband shall be tenant by the curtesy of the wife's lands, if the wife be attainted of treason. The forfeiture does not take effect, until an attaint be had, of which it is one of the fruits; and therefore if a traitor died before judgment was pronounced, or is killed in open rebellion, or hanged by martial law, it constitutes no forfeiture of his lands, for he never was attainted of treason.
Justice of Confiscation. The natural justice of the confiscation of property for treason is founded on this consideration: that he, who has violated the principles of government, has abandoned his connection with society, and has no longer any claim to even social advantages, of which the right of transmitting property to others is one of the chief. Such forfeitures, whereby his posterity must suffer as well as himself, will help to restrain a man, when a dread of personal punishment may not.
Foreign History of Confiscation. A Roman lawyer, in the time of the triumvirate, boasted, that he had two reasons for despising the power of the tyrants; his old age and his want of children; for children are pledges to the prince of the father's obedience. Yet many nations have thought, that this posthumous punishment is a hardship to the innocent; especially for crimes, that do not strike at the foundation of society, as treason does. Confiscations were very common under the earlier Roman emperors, but were restricted to cases of treason, under Arcadius and Honorius. In Germany, by the famous golden bull, copied from Justinian's code, the lives of the sons of political conspirators were spared ; but they were deprived of their estates, and right of succession, and were rendered incapable of any honor, ecclesiastical or civil, to the end, that “ being always poor, they may forever be accɔmpanied by the infamy of their father; may languish in continual indigence; and may find,” says the merciless edict, “their punishment in living, and their relief in dying.”
Confiscation. English History. In England, forfeiture of lands to the crown for treason was antecedent to the establishment of the feudal policy in the island, being transmitted from our Saxon ancestors, and forming part of the Scandinavian constitution. In certain treasons relating to the coin, it is provided by some modern statutes, that they shall work no forfeiture of lands, save only for the life of the offender, and by all, that such offence shall not deprive the wife of her dower. By statute of Anne, in order to abolish such hereditary punishment entirely, it was enacted, that no attainder for treason should extend to the disinheriting of any heir, nor to the prejudice of any person, other than the traitor himself. This apparently ended all forfeitures for high treason, had not a subsequent statute prolonged them.
Union with Scotland. Effect on Confiscation Laws. At the date of the union, the crime of treason in Scotland differed, by the Scotch law, from treason in England, and particularly in the English doctrine of forfeitures, yet it seemed necessary to put this important crime on an equal footing in both countries. In new modeling the laws, the two nations strove to acquire a total immunity from forfeiture and corruption of blood, which the house of lords as firmly resisted. At length a compromise was effected: that the same crimes should be treason in both countries, and that the English forfeitures and corruption of blood should take place in Scotland, until the death of the then pretender, and then cease throughout Great Britain.
Right of the Crown to Commit Waste. In petit treason and felony, the offender also forfeits all his chattel interests absolutely, and the profits of all estates of freehold during life; and after his death, all his lands and tenements in fee-simple, but not in fee-tail, to the crown for a year and a day; in which time, the king may commit therein what waste be please ; which is called the king's year, day and waste. Formerly, the king had only a liberty of committing waste on the lands of felons, by pull