to America for seven years: and, if they return or are seen at large in this kingdom within that time, it shall be felony without benefit of clergy.

II. To what persons the benefit of clergy is to be allowed at this day: upon which we may pronounce that all clerks in orders are, without any branding, and of course without any transportation, fine, or whipping, (for those are only substituted in lieu of the other) to be admitted to this privilege, and immediately discharged; and this as often as they offend. Again, all lords of parliament, and peers of this realm having place and voice in parliament, by the statute 1 Edw. VI. c. 12. (which is likewise held to extend to peeresses) shall be discharged in all clergyable and other felonies, provided for by the act, without any burning in the hand or imprisonment, or other punishment substituted in its stead, in the same manner as real clerks convict: but this is only for the first offence. Lastly, all the commons of the realm, not in orders, whether male or female, shall for the first offence be discharged of the capital punishment of felonies within benefit of clergy, upon being burnt in the hand, whipped, or fined, or suffering a discretionary imprisonment in the common gaol, the house of correction, one of the penitentiary houses, or in the places of labour for the benefit of some navigation; or, in case of larceny, upon being transported for seven years if the court shall think proper.

III. The third point to be considered is, for what crimes the privilegium clericale, or benefit of clergy, is to be allowed. These have in general been men

tioned under the particular offences to which they belong, and therefore need not be here recapitulated. But on this head of inquiry we may observe the following rules: 1. That in all felonies, whether new created or by common law, clergy is now allowable, unless taken away by express words of an act of parliament. 2. That, where clergy is taken away from the principal, it is not of course taken away from the accessary, unless he be also particularly inIcluded in the statute. 3. That, when the benefit of clergy is taken away from the offence, (as in case of murder, unnatural crime, robbery, violation of person, and burglary) a principal in the second degree, being present, aiding, and abetting the crime, is as well excluded from his clergy as he that is principal in the first degree: but, 4. That where it is only taken away from the person committing the offence, (as in the case of stabbing, or committing larceny in a dwelling-house, or privately from the person) his aiders and abettors are not excluded; through the tenderness of the law, which hath determined that such statutes shall be taken literally.

IV. Lastly, we are to inquire what the consequences are to the party, of allowing him this be nefit of clergy. And, we may observe, 1. That by his conviction he forfeits all his goods to the king: which, being once vested in the crown, shall not afterwards be restored to the offender. 2. That, after conviction, and till he receives the judgment of the law, by branding or some of its substitutes, or else is pardoned by the king, he is to all intents and purposes a felon, and subject to all the disabi

lities and other incidents of a felon. 3. That after burning or its substitutes or pardon, he is discharged for ever of that, and all other felonies before committed, within the benefit of clergy, but not of felonies from which such benefit is excluded: and this by statutes 8 Eliz. c. 4. and 18 Eliz. c. 7. 4. That by the burning, or its substitute, or the pardon of it, he is restored to all capacities and credits, and the possession of his lands, as if he had never been convicted. 5. That what is said with regard to the advantages of commoners and laymen, subsequent to the burning in the hand, is equally applicable to all peers and clergymen, although never branded at all, or subjected to other punishment in its stead. For they have the same privileges, without any burning, or any substitute for it, which others are entitled to after it.

CHAPTER XXIX.

OF JUDGMENT AND ITS CONSEQUENces.

We are now to consider the next stage of criminal prosecution, after trial and conviction are past, in such crimes and misdemeanors, as are either too high or too low to be included within the benefit of clergy which is that of judgment. For when, upon a capital charge, the jury have brought in their verdict guilty, in the presence of the prisoner;

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he is either immediately, or at a convenient time soon after, asked by the court if he has any thing to offer why judgment should not be awarded against him. And in case the defendant be found guilty of a misdemeanor, (the trial of which may, and does usually, happen in his absence, after he has once appeared) a capias is awarded and issued, to bring him in to receive his judgment; and, if he absconds, he may be prosecuted even to outlawry. But whenever he appears in person, upon either a capital or inferior conviction, he may at this period, as well as at his arraignment, offer any exceptions to the indictment, in arrest or stay of judgment: as for want of sufficient certainty in setting forth either the person, the time, the place, or the of fence. And, if the objections be valid, the whole proceedings shall be set aside, but the party may be indicted again. And we may take notice, 1. That 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. 2. That in favour of life, great strictness has at all times been observed, in every point of an indictment.

A pardon also, as has been before said, may be pleaded in arrest of judgment. Praying the benefit of clergy may also be ranked among the motions in arrest of judgment.

If all these resources fail, the court must pronounce that judgment which the law hath annexed

to the crime, and which hath been constantly mentioned, together with the crime itself, in some or other of the former chapters.

When sentence of death, the most terrible and highest judgment in the laws of England, is pronounced, the immediate inseparable consequence by the common law is attainder.

The consequences of attainder are forfeiture and corruption of blood.

I. Forfeiture is twofold; of real and personal estates. First, as to real estates; by attainder in high treason a man forfeits to the king all his lands and tenements of inheritance, whether fee-simple or fee-tail, and all his rights of entry on 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 lands and tenements which he had in his own right for life or years, so long as such interest shall subsist.

This forfeiture relates backwards to the time of the treason committed; so as to avoid all intermediate sales and encumbrances, but not those before the fact: and therefore a wife's jointure is not forfeitable for the treason of her husband, because settled upon her previous to the treason committed. But her dower is forfeited, and yet the husband shall be tenant by the courtesy of the wife's lands, if the wife be attainted of treason. But, though after attainder the forfeiture relates back to the time of the treason committed, yet it does not take effect unless an attainder be had, of which it is one of the fruits: and therefore if a