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SECT. 619-621. Introductory View.

622–626. Punishment of Felony. - Benefit of Clergy.

626-636. Punishment generally and of Misdemeanor. 636 a-639. Concerning Joint Convictions.

$ 619. We come now, in the order of our discussion, to a matter which might perhaps equally well be treated of in our work on Criminal Procedure. It concerns the punishment inflicted by the courts upon crime, and flowing from the sen: tence also by operation of law. We shall not, however, treat in these chapters of every thing which might be included under their titles, but leave for the other work what seems to belong to it exclusively.

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$ 620. If a prisoner receives a sentence to which he is not legally subject, the judgment is, in the language of the latv, erroneous; and, being so, is liable to be reversed.1. From

· Rex v. Ellis, 5 B. & C. 395, 8 D. & R: 173 ; Bourne, d. Rex, 2 Nev. & P. 248, 7 Ad. & E. 58, 1 Jur. 542 ; Silversides o. Reg. 1. Gale & D. 617;:

some American cases we might infer, that one cannot take advantage of an error in his favor, as where the punishment is less than the law requires; but the English? and other American decisions do not acknowledge this general doctrine. Probably the true distinction is that expressed by Chancellor Walworth, in the New York court of errors. “ The objection,” he said, “ that the defendant was fined only, and that he was not also compelled to repair the road, is one which cannot be urged by the plaintiff in error, even if a judgment to repair could have been given on this conviction. The defendant may, on a writ of error, object that the punishment inflicted upon him is too great in its extent, or that it is different in form from what the law has prescribed; but where a party is subject to two distinct and independent punishments for the same offence, if one of them is inflicted upon him by the sentence of the court, he cannot object that the court has not gone further and inflicted the other penalty also."4 And a Maryland case lays down the doctrine, that, if the statute makes one half of a fine payable to the informer, and the other half to the State, while the whole is adjudged to the State, the judgment will not be reversed at the instance of the person convicted.5


$ 621. The statutes of our States regulate so fully the

Tully v.'Commonwealth, 4 Met. 357 Daniels v. Commonwealth, 7 Barr, 371 ; Wilde v. Commonwealth, 2 Met. 408. ..! Ooton v. The State, 5 Ala. 463;, Commonwealth v. Shanks, 10 B. Monr. 304; Barada v. The State, 13 Misso. 94. And see Jones y. The State, 13 Ala. 153 ; Campbell v. The State, 16 Ala. 144.

· Whitehead v. Reg. 7 Q. B. 582, 9 Jur. 594; Bourne v. Rex, 2 Nev. & P. 248, 7 Ad. & E. 58. j:& Rice v. Commonwealth, 12 Met: 246.

Kane v. People, 8 Wend. 203, 211. ' S. P., McQuoid v. People, 3 Gilm. 76; Dodge v. The State, 4 Zab. 455. See Barth y. The State, 18 Conn. 432.

6 Rawlings v. The State, 2 Md. 201. See further, on this subject, Nemo v. Commonwealth, 2 Grat. 558; Sword v. The State, 5 Humph. 102; Daniels v. Commonwealth, 7 Barr, 371; Logan's case, 5 Grat. 692. ."

matter of punishment, that seldom is an offence visited by the penalty prescribed purely by the common law. Yet often questions arise under the statutes, making a knowledge of the common law of the subject important to their interpretation'; and sometimes also, it becomes necessary to inflict the common law penalty. Let us therefore look at this matter as it stands under the common law; somewhat, likewise, as it stands under statutes.

$ 622. The ordinary common law punishment for felonies is, as before shown,' death by hanging: the only ones not so punishable are, it is said, petit larceny, rape, and mayhem.3 Therefore death is the award of the law for all statutory felonies where the statute does not specifically direct otherwise. But as the dark catalogue of felonies, statutory and common law, comprehends a large part of the entire list of crimes, the uniform infliction of this highest penal consequence on felons would be too bloody. Accordingly the leg. islation and the judicial wisdoin of our father-land found for the evil a remedy in the plea of clergy, or benefit of clergy; or, as the matter was sometimes termed after the passage of various acts of parliament on the subject, the benefit of the statutes. A word explanatory of this benefit of clergy, by way of memento of departed piety, humanity, and genius, may not be inappropriate.

$ 623. Lord Coke observes, that the privilege of clergy “ took its root from a constitution of the pope, that no man should accuse the priests of holy church before a secular judge.” 5 Therefore the clergy demanded freedom from re


? Ante, $ 448 and notes.

* Rex v. Ellis, 5 B. & C. 395, 8 D. & R. 173 ; Gray v. Reg. 6 Irish Law, 482, 502.

3 2 Hawk. P. C. Curw. Ed. p. 472, § 7.

* 4 Bl. Com. 98; The State v. Scott, 1 Hawks, 24, 34. And see ante, § 451. 6 2 Inst, 636. See also 1 Burn Ec. Law, Phillim. Ed. 185.

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sponsibility to the lay tribunals; and the demand was in part yielded to by the ancient common law, and by acts of parliament passed as early as Edw. 1, or earlier, though to precisely .what extent is uncertain.,,. It seems that, generally, when a priest in orders ? was brought before a temporal judge on a

1 charge of felony,?, his, case was transferred, either with or without trial, to the ecclesiastics. Yet the clergy made frequent complaints of violations of their privilege, and accordingly acts of parliament were passed from time to time to remove the difficulty; till this indulgence became the right, not only of clerks in orders, but of all persons capable of becoming such; namely, of all males, without canonical impediment, able to read. At a later period the canonical impediments were declared to be no longer barriers, women also were admitted into the happy circle, and the disqualifi. cation of ignorance was abolished. Finally, the privilege became pleadable, only after conviction, and the offender was not to be delivered to the ecclesiastics. During almost the entire period in which this plea was allowed, the convict was burned in the hand before being discharged; and, for a short time, for larceny, he was burned on the left cheek near the nose. To prevent a general immunity from punishment for felony, the parliament, along with these statutes confirming and extending the clerical claims, enacted others, taking away the benefit of clergy from certain specific felonies; and sometimes the same act which created a felony provided, that it be punished with death without benefit of clergy.10 The

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Searle v. Williams, Hob. 288.
2 Inst. 636.

2 Hawk. P. C. Curw. Ed. p. 498, § 110; 4 BI. Com. 333 ; 2 Inst. 633. • 2 Hawk. P. C. Curw. Ed. p. 471, § 4, 5. Ib. p. 472, $ 6, 8.

II • Ib. p. 501, $ 115. · Ib. p. 498, § 110.

4 BI. Com. 369. • 2 Hawk. P. C. Curw. Ed. p. 502-507, § 121-135. 10 2 Hawk. P. C. Curw. Ed. p. 483 et seq.


plea was abolished in England in 1827, by statute 7 & 8 Geo. 4, c. 28, § 6; and afterward in Ireland by stat. 9 Geo. 4, c. 54.1 This is a general outline, which the reader can fill up by consulting the older English books on the criminal law.

§ 624. In this country, the plea of benefit of clergy has been usually acknowledged as belonging to our common law, though its claim has been rejected in Indiana. Yet in States where it has been received by the courts, the legis latures have abolished it; except in South Carolina, and perhaps one or two other States.


§ 625. The consequence is, that hanging, which is the original and appropriate punishment for felony, is here retained as the punishment of only a few felonies; the usual infliction being, under statutes, imprisonment in the state prison. The modern English transportation is unknown at the common law, while neither is it received among the legislative penalties imposed in this country.8

§ 626. The ordinary and appropriate common law punish

1 Gray v. Reg. 6 Irish Law, 482, 504.

And see Duchess of Kingston's case, 1 Leach, 4th ed. 146; Armstrong v. L'Isle, 12 Mod. 110; Rex v. Mouncer, 2 Leach, 4th ed. 567, 2 East P. C. 639; Rex v. Byford, Russ. & Ry. 521.

3 The State v. Jernigan, 3 Murph. 12, 2 Taylor, 44; The State v. Kearney, 1 Hawks, 53; The State v. Scott, 1 Hawks, 24; The State v. Boon, 1 Taylor, 246; The State v. Seaborn, 4 Dev. 305; The State v. Henderson, 2 Dev. & Bat. 543; The State v. Carroll, 2 Ired. 257; The State v. Sutcliffe, 4 Strob. 372; Commonwealth v. Posey, 4 Call, 109; Commonwealth v. Miller, 2 Ashm. 61; Commonwealth v. Gable, 7 S. & R. 423; Mass. Stat. 1784, c. 56. Fuller v. The State, 1 Blackf. 63.

The State v. Bosse, 8 Rich. 276.

• See ante, § 449621.

Archb. New Crim. Proced. 182; 2 Hawk. P. C. Curw. Ed. p. 507-et seq.; Rex v. Lewis, 1 Moody, 372; Rex v. Hope, 1 Moody, 396; Bullock v. Dodds, 2 B. & Ald. 258.

• The State v. Bosse, 8 Rich. 276. But see Aldridge v. Commonwealth, 2 Va. Cas. 447.

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