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dents similar to those belonging to other treasons concerning the coin (u).
The judgment for felony, whether against a man or woman, has been the same since the reign of Henry the first; to be hanged by the neck till he or she be dead: it is thus laconically entered upon the roll: "Sus. per coll."
By the stat. 28 G. 2. c. 37. which was made for the purpose of adding a further terror and peculiar mark of infamy to the punishment for murder, it is directed that,
sentence shall be pronounced in open court immediately after the conviction of such murderer, and before the court proceed to any other business, unless the court see cause for postponing the same, in which sentence shall be expressed not only the usual judgment of death, but also the time for the execution thereof, and the marks of infamy hereby direeted."
By the 1st. section, the execution shall be on the day next but one after sentence passed, unless it happen to be Sunday, and in that case on the Monday following.
By the 2nd section, "if the execution be in Middlesex or in the city of London, or within the liberties thereof, the body of the murderer shall be taken by the sheriff, &c. to the hall of the surgeons' company, or to such place as the company shall appoint, who shall give to the sheriff a receipt for the same, and the body so delivered shall be anatomized by the surgeons or by such persons as they shall appoint. If the execution take place at the assizes, the body to be delivered to such surgeon as the judge shall direct."
By sec. 4. the judge has power to stay the execution at his discretion, regard being had to the intent of the act.
(u) 2 Haw. c 48. s. 4. 2 Hale, 397.
By sec. 5. the judge may direct the body to be hung in chains.
The usual form of the sentence under this act is," that you be taken from hence to the place from whence you came, and that you be taken from thence; on
next, to the place of execution, and that you be there hanged by the neck till your body be dead, and that your body, when dead, be taken down and be dissected and anatomized (1)”
Upon this act it has been holden that the judgment for dissection and anatomizing only, should be included in the sentence, and that, if it should be thought advisable, the judge might afterwards direct the body to be hung in chains by special order to the sheriff (y). That the statute extends to peers convicted before the lords in parliament (:). And that it applies to cases where the offence, from the relation of the parties, amounts to petit treason.
The judgment in case of præmunire is, that the defendant shall be out of the king's protection, and that his lands and tenements, goods and chattels, shall be forfeited to the king, and that his body shall remain in prison during the king's pleasure (a).
The judgment in case of misprision of treason is, that the offender shall be imprisoned during his life, forfeit all his goods and the profits of his lands during his life (b). Judgment in petit larciny, at common law, is to be whipt and imprisoned for a limited time (c); but by virtue
of several statutes, the offender may be imprisoned or transported for a term not exceeding seven years (d).
For crimes below the degree of felony, and for which no specific punishment is appointed by any statute, the judgment rests for the most part upon the discretion of the court. For crimes of an infamous nature, such as perjury, forgery, at common law, cheats, conspiracies, not requiring villenous judgment (e) and other such like, it is left to the wisdom of the court to inflict such corporal punishment and fine as shall seem proportionate to the offence (ƒ).
But the court cannot inflict any new mode or species of punishment before unknown to our laws, unless specially authorised by the legislature (g). And the court may assess a fine, but cannot award corporal punishment against an offender in his absence (h). Where several are jointly indicted, an award of a joint fine against them would be erroneous; for if the fines were not to be severally awarded, but one joint fine imposed upon all, one who had paid his proportionate share might be detained in prison for default of the rest, which would be in effect to punish him for the offence of another (i).
Upon a conviction for a nuisance, the judgment is to be adapted to the nature of the offence alleged, if there be no allegation of the continuance up to the time of taking the inquisition, judgment that it be abated is unnecessary (k); but if a continuance be alleged, prostration
should be awarded (7), but the Court of King's Bench will not give such judgment, if they be satisfied that the nuisance has been already effectually abated (m).
During the term, assizes, or session, in which judgment is given, it remains in the breast of the court, and the fine imposed, or any other discretionary punishment may be varied; but after the term it becomes matter of record, and admits of no alteration (n).
Of avoiding the Judgment-Writ of Error, &c.
I. By plea, p. 367.
II. By Writ of Error, p. 371.
A judgment may be reversed either by plea or by writ of
The plea is founded either on some defect apparent on the record, or upon some fact extrinsic of the record.
1. By plea founded on a defect apparent on the record. A judgment of outlawry for treason or felony is, as has been seen, equivalent to a conviction of the offence, in other cases to a conviction of the contempt only, in not appearing.
In civil cases it seems that the defendant may, in the same term in which the exigent is returnable, reverse the outlawry upon plea or motion, by shewing any error in the process or indictment; but in criminal cases it appears, that the court of King's Bench will not reverse an outlawry for an intrinsic error, except upon writ of error (a). And such appears to have been the inclination of the court in the case of the King v. Davis (b).
(a) See 2 Haw. c. 50. s. 1. and the authorities there cited. 1 Ins. 259.
(b) Burr. 638.