foner is acquitted) for any mifconduct of the jury, for which the verdict may be fet afide and a new trial ordered.

When the motion in arrest is adjudged infufficient, or none is offered, or the prifoner is convicted on his own confeffion, or plea of guilty, or when in cafes not capital, on a demurrer, the information is adjudged fufficient, then it remains for the court to render judgment against the criminal, that he should fuffer the punifhment annexed to the crime by law. In treating of crimes we Thefe are by ftatute have invariably mentioned the punishments.

or the common law. Whenever a ftatute creates a crime, it inflicts fome specific punishment. The punishments at common law are fine, imprisonment and pillory.

No judgment, not even death itself, ever works a forfeiture of the eftate and corruption of the blood of the criminal, excepting manflaughter, which operates a forfeiture of his goods. For those crimes where the criminal is fubjected to a forfeiture of eftate, it is a fpecific fum, and is confidered to be the punishment itself, and not a confequence of the judgment. In England, the confequences of rendering judgment of death against a criminal, are the forfeitare of eftate, and corruption of blood: fo that no perfon can inherit from him, or trace his line of confanguinity thro him.

But with us, when a perfon is condemned to death, the charge of profecution, imprifonment and execution being paid, the refidue of his eftate, fhall be difpofed of according to law. If the criminal fhall make a will, it will be valid for the difpofition of his estate ; if he thould die inteftate, it would defcend to his heirs at law.

CHAPTER TWENTY-SIXTB.

OF WRITS OF ERROR, REPRIEVE, AND PARDON.

WRITS of Error in all criminal cafes, will lie from inferior

jurifdictions to the fuperior court, and from the fuperior court to the fupreme court of errors, for all errors apparent on the face of the record. If the court render an erroneous judgment upon a plea

"

. Statutes 3

in

in abatement, upon a demurrer or motion in arrest, or if after con viction they render judgment, that the prifoner fhall fuffer a punishment, not warranted by law, writ of error lies for the redress of fuch grievance ; but if the error be not apparent on the record, no writ of this kind can be sustained. It is unneceflary to detail the particular errors for which this writ will lie. We have pointed out the requifites in criminal proceedings, by which every matter of error can be eafily afcertained. The form of proceeding is in the nature of a petition to the court, having cognizance, in which the petitioner ftates the cafe, and affigns the errors as in civil cafes.

The governor, the lieutenant governor, or any three of the affiftants concurring, may reprieve a condemned malefactor, to the next general affembly: but the exercife of this power is ufually unnecefary, because the fuperior court delay the day of the execution, till after the commencement of the next feffion of affembly, to give the malefactor an opportunity to petition for pardon.

The power of granting pardon to criminals fentenced to death, or to any other punishment, is vefted by law in the legislature. Perhaps there is a propriety in vefting this power fome where, for it must be acknowledged that there are some instances, where a perfon may be legally convicted, and yet there may be fuch extenuating circumftances in his favour, as to juftify the humane interpofition of government in remitting the punishment. But this benevolent prerogative ought to be exercifed with the utmost caution and prudence. The probability of obtaining pardon after conviction, will encourage the hardened and daring villain, to the commiffion of crimes, by encreafing the calculable chances to ef cape punishment. It is impoffible to establish any general rules, to govern and direct the difcretionary power of granting pardons : and fuch favours will often be granted to the most attrocious offenders, by the whim and caprice of the moment, or the fudden overflowings of an ill timed, or misplaced humanity, without calculating the mischievous confequences, that will refult from the example: let the perfon accufed have every poffible advantage to make his defence on trial; let no perfon be convicted without the clearest proof: but when a criminal is convicted, let the idea of punishment

& Statutes 67.

punishment be certain and inevitable: let the hope of pardon be excluded, and the door of mercy be clofed upon him. For tho it appears to be a benevolent act to fave a wretched being, from that painful and dreadful punishment, to which he had fubjected himself by his crimes, yet the intereft of fociety and the caufe of humanity require that he should undergo the punishment, as a public example, and that he fhould not be allowed the benefit of a pardon, which would defeat the end and defign of human punishments, and probably expofe the innocent members of the community to much greater calamity than the pain of the punishment, to be inflicted on a man, whofe crimes had drawn down on his head the vengeance of the law.t

But there is no duty more incumbent on the legislature, than to hut their ears against all applications for liberation of criminals, fentenced to imprifonment in Newgate. The great excellency of that mode of punishment is, that from its mildnefs, every perfon may be affared of the certainty of carrying into execution, the pun ifliment denounced by law. But if the idea be admitted, that criminals may be discharged by the legislature, before the period for which they were fentenced expires, fo frequent will be the appli cations, and fo numerous the impofitions, that the terror of the punifliment will be deftroyed, by the hope and profpect of a speedy

liberation.

There are two caufes, for which execution must be respited or delayed, not for the purpofe of giving the malefactor an opportunity of applying for pardon, but from very humane principles. The firft is where a woman fentenced to death, pleads pregnancy. In fuch case, the court muft refpite the execution till he be delivered. When this plea is made, the court muft direct a jury of twelve

matrons

This doctrine is illuftrated by a recent infance in Naples. The prefent king, tho defpotic, is humane. The frequent pardon of criminals, render the crimes of murder and affination frequent. The pretor or principal officer of the city, upon the king's retofing to fign a wair at for the execution of a murderer, religned his office. Struck with his firmeets. the king figned the warrant, the murderer was exccured, and the officer veir ftated. By the tiger of this officer, in the execution of the law, murdus which had become very frequent, by the indulgence of the king, in pardoning, were in a great mea fare prevented. Ramble thro France, Holland and Italy, Lit 19

6 Hal. P. C. 359.

matrons or difcreet women, to enquire into the fa&t, and if they find her quick with child, (for barely with child, unless it be alive in the womb, is not fufficient,) execution shall be stayed generally till the next feffion, and fo till fhe is delivered, or proves by the courfe of nature not to have been with child. But if the has once been refpited and delivered, and afterwards becomes pregnant, fie fhall not be refpited again, for fhe may be executed before the child is quick in the womb and fhe fhall not avoid the execution of the law, by her want of chastity.

:

d Another caufe for refpiting execution is, where the prifoner becomes non compos, between the judgment, and the awarding of execution. It is a general principle, that where a perfon commits a capital crime in his right mind, and becomes non compos before he is indicted, he fhall not be tried: if before conviction, he shall not be convicted; if after conviction, he fhall not receive judgment : if after judgment he fhall not be ordered for execution: for it is a maxim, that a madman, is fufficiently punifhed by his own madnefs; and the humanity and charity of the law, prefume that in all thefe ftages, if he had the exercife of his reafon, he would fhew fome caufe, why the proceedings again him fhould be ftayed. The court ought therefore to refpite his execution, till his fenfes are reftored, and then he will be liable to fuffer the punishment pronounced by law.

OF EXECUTION.

WE are now to clofe our enquiries refpecting the dreary fab

ject of crimes, by the execution of the judgment of the law, the inflicting of the punishment. This in all cafes capital, or not, must be performed by the proper officer, the fheriff, his deputy, or a conftable, by a warrant from the court, figned by the clerk, defignating the nature and extent of the punishment. It will be unneceflary to defcribe the manner of inflicting punishment for offences not capital, as it is univerfully known: but there may be a propriety in adding a few words refpecting the executing of the punith

di Hal. P. C. 370.

ment

ment of death, to which the word execution, is commonly appropriated.

The only method of inflicting the punishment of death, is by hanging. The sheriff receives a warrant from the court, directing him to cause execution to be done on a certain day, and between certain hours of the day. The place of execution is left to the dif cretion of the sheriff, who causes a gallows to be erected at fome convenient place, and at the time appointed causes the malefactor, to be drawn in a cart to the gallows, and there to be fufpended by the neck, till he is dead. When dead, the body may be delivered to the friends, to be buried by them if any offer themselves, otherwise it is ufual to bury it under the gallows. If the criminal fhould be taken down before thoroughly dead, and he should revive, or if he should by any means be restored to life, the sheriff muft hang him again; for the first hanging was no execution of the fentence, and juftice fhall not be eluded by any accident or collufion.