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And so, if several be.convicted, they should, it seems, be all present, on a motion in arrest of judgment.—4 B. & C. 329.
The Court may, without any motion, arrest the judgment if they see cause.—1 East, 146.
If the judgment be once pronounced, though there be yet no actual entry of it, the Court ought not to attend to a motion in arrest of judgment, but should leave the defendant to his writ of error.Com. Dig. Indictment, (N.)
If judgment be arrested, all the proceedings are thereby set aside, but a subsequent indictment may be preferred.1 Chitty, Cr. Law, 664.
Where a motion to arrest the judgment is made at the assizes, and the judge doubts, but thinks there may be good ground for the motion, he respites the judgment, to take the opinion of all the judges.- Ibid.
So the judge, after passing sentence, may respite execution, in order to take the opinion of all the judges.—1 Chitty Cr. Law, 664.
If there be no ground for arresting the judgment, the Court then proceeds to pronounce judgment.
The judgment of death, (except in the case of treason or murder,) is, that the offender be hanged by the neck till dead.--2 Hale, P. C. 411.
In the case of treason and of murder the judgment of death is the same, with certain additions.-Vide sup. pp. 40, 143, 144.
Except in murder, the time and place of execution are in law no part of the judgment.—4 BI. C. 404.
Formerly there was this distinction as to capital offences, that some were within the benefit of clergy, and others were excluded from that benefit. In the former cases the offender was upon the first offence discharged from capital punishment, upon praying " the benefit of clergy;" in the latter cases he was not allowed that exemption.
By 4 Geo. IV. c. 48, whenever any person shall be convicted of any felony, except murder, and shall by law be excluded the benefit of clergy in respect thereof, and the Court before which such offender shall be convicted shall be of opinion, that under the particular circumstances of the case such offender is a fit and proper subject to be recommended to the Royal mercy, it shall and may be lawful for such Court, if it shall think fit so to do, to direct the proper officer, then being present in the Court, to require and ask, whereupon such officer shall require and ask, if such offender hath or knoweth any thing to say why judgment of death should not be recorded against such offender, and in case such offender shall not allege any matter or thing sufficient in law to arrest or bar such judgment, the Court shall and may and is hereby authorized to abstain from pronouncing judgment of death upon such offender, and instead of pronouncing such judgment to order the same to be entered of record; and thereupon such proper officer as aforesaid shall and may and is hereby authorized to enter judgment of death on record against such offender in the usual and accustomed form, and in such and the same manner as is now used and as if judgment of death had actually been pronounced in open Court against such offender by the Court before which such offender shall have been convicted.
By sect. 2, the judgment thus recorded is to have the same effect as if pronounced, and the party reprieved.
By 7 & 8 Geo. IV. c. 28, s. 6, the benefit of clergy was abolished.
And by the same statute, sect. 7, it was provided, that no person convicted of felony shall suffer death, unless it be for some felony which was excluded from the benefit of clergy, before or on the first day of the present session of parliament, (viz. 14 November, 1826,) or which hath been or shall be made punishable with death by some statute passed after that day.
By sect. 8, every person convicted of any felony not punishable with death, shall be punished in the manner prescribed by the statute or statutes specially relating to such felony; and every person convicted of any felony for which no punishment hath been or hereafter may be specially provided, shall be deemed to be punishable under this act, and shall be liable, at the discretion of the Court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years, and if a male to be once, twice, or thrice publicly or privately whipped, if the Court shall so think fit, in addition to such imprisonment.
By sect. 9, when any person shall be convicted of any offence punishable under this act for which imprisonment may be awarded, it shall be lawful for the Court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour, in the common gaol or house of correction; and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labour, as to the Court in its discretion shall seem meet.
By sect. 10, whenever sentence shall be passed for felony on a person already imprisoned under sentence for another crime, it shall be lawful for the Court to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced. And when such person shall be already under sentence either of imprisonment or transportation, the Court, if empowered to pass sentence of transportation, may award such sentence for the subsequent offence, to commence at the expiration of the imprisonment or transportation to which such person shall have been previously sentenced, although the aggregate term of imprisonment or transportation respectively may exceed the term for which either of those punishments could be otherwise awarded.
By sect. 11, if any person shall be convicted of any felony not punishable with death, committed after a previous conviction for felony, such person shall on such subsequent conviction be liable, at the discretion of the Court, to be transported beyond the seas for life, or for any term not less than seven years, or be imprisoned for any term not exceeding four years, and if a male, to be once, twice, or thrice publicly or privately whipped, if the Court shall so think fit, in addition to such imprisonment.
By sect. 13, no free pardon, nor any discharge in consequence thereof, nor any conditional pardon, nor the performance of the condition, shall prevent or mitigate the punishment to which the offender might otherwise be lawfully sentenced on a subsequent conviction for any felony committed after the granting of such pardon.
Immediately upon judgment of death, and also upon judgment of outlawry for a capital crime,) attainder follows, —that is, the offender loses his civil rights and capacities, and becomes as it were dead in law.—4 Bl. C. 380.
A person attainted cannot maintain a civil suit.—Com. Dig. Abatement, (E.) 3.
But he is liable to civil suits.—Com. Dig. Action, (C.) 3.
Yet ought not to be charged in a civil suit, but by leave of the court or a judge at chambers.-- Ibid.
Another consequence of attainder is forfeiture.
The forfeiture here mentioned applies to the freehold only, the goods and chattels being forfeited prior to the attainder, viz. upon conviction. Vide sup. p. 317.
By attainder in treason a man forfeits to the king all his freehold lands and tenements of inheritance, whether fee simple or fee tail, and all his rights of entry on freehold lands and tenements which he had at the time of the offence committed, or at any time afterwards, to be for ever vested in the crown; and also the profits of all freehold lands and tenements which he had in his own right for life so long as such interest shall subsist.–4 Bl. C. 381.
And by 5 & 6 Ed. VI. c. 11, the wife's dower is forfeited. -Ibid. 382.
But the husband may be tenant by the curtesy of the wife's lands, though she is attainted of treason.-Ibid.
Copyhold estates in case of treason are forfeited to the lord of the manor, and not to the king.–Com. Dig. Copyhold, (M.) 1.
By attainder of any other felony except treason, the offender before the passing of 54 Geo. III. c. 145, below cited, forfeited to the king the profits during his life of all lands in which he had an estate for life or in tail. He also forfeited to the king all his freehold tenements in fee simple for a year and a day; and the king might commit what waste he pleased. This was called the king's year day and waste, and was usually compounded for.-4 Bl. C. 385; Com. Dig. Forfeiture, (B.) 3; Ann, Jour and Waste.
Subject to these rights of the crown as to the freehold, the lands, both freehold and copyhold, (except lands entailed,) accrued to the lord of whom they were holden.Bac. Abr. Forfeiture, (A.); Com. Dig. Copyhold, (M.) 1; Ann, Jour and Waste, (B); 1 Cruise, Dig. 361, 52.
Another consequence of attainder, in treason and all felonies, before the same statute, was corruption of blood.
The blood was corrupted in these cases both upwards and downwards ; so that an attainted person could neither inherit lands or other hereditaments from his ancestors, nor transmit those he held by descent to his heir; nor could title be derived through him, by descent; but the same would escheat to the lord of the fee, subject to the king's superior right of forfeiture.—4 Bl. C. 388.
But the law, both as to forfeiture for felony, and corruption of blood, is now materially altered; for by 54 Geo. III. c. 145, no attainder for felony which shall take place after the passing of this act, except in cases of treason or murder, or of abetting, procuring, or counselling the same, shall extend to the disinheriting of any heir, nor to the prejudice of the right or title of any person, other than the right or title of the offender during his life only; and it shall be lawful to every person to whom the right or interest of any lands, tenements, or hereditaments, after the death of such offender, should or might have appertained, if no such attainder had been, to enter into the same.
And by 3 & 4 Will. IV. c. 106, s. 10, the descent of any land may be traced through an attainted person, unless