JUDGMENT, in criminal cases, is the next stage of 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. For when, upon a capital charge, the JURY have brought in their VERDICT guilty in the presence of the prisoner; 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 offence. 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 Judgment, 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, Blackst. Comment. great strictness has at all times been observed, in every point of an indictment. Sir Matthew Hale indeed complains, "that this strictness is grown to be a blemish and inconvenience in the law, and the administration thereof: for that more offenders escape by the over easy ear given to exceptions in indictments, than by their own innocence; and many times gross murders, burglaries, robberies, and other heinous and crying offences, remain unpunished by these unseemly niceties: to the reproach of the law, to the shame of the government, to the encouragement of villany, and to the dishonour of God." And yet, notwithstanding this laudable zeal, no man was more tender of life than this truly excellent judge.
A pardon also may be pleaded in arrest of judgment: and it has the same advantage when pleaded here, as when pleaded upon ARRAIGNMENT; viz. the saving the ATTAINDER, and, of course, the CORRUPTION of blood: which nothing can restore but parliament, when a pardon is not pleaded till after sentence. And certainly, upon all accounts, when a man hath obtained a pardon, he is in the right to plead it as soon as possible. See PARDON.
Praying the benefit of clergy may also be ranked among the motions in arrest of judgment. See Benefit of CLERGY.
If all these resources fail, the court must pronounce that judgment which the law hath annexed to the crime. Of these some are capital, which extend to the life of the offender, and consist generally in being hanged by the neck till dead; though in very atrocious crimes other circumstances of terror, pain, or disgrace, are superadded: as, in treasons of all kinds, being drawn or dragged to the place of execution; in high treason affecting the king's person or government, embowelling alive, beheading, and quartering; and in murder, a public dissection. And, in case of any treason committed by a female, the judgment is to be burned alive. But the humanity of the English nation has authorised, by a tacit consent, an almost general mitigation of such parts of these judgments as favour of torture or cruelty: a sledge or hurdle being usually allowed to such traitors as are condemned to be drawn; and there being very few instances (and those accidental or by negligence) of any person's being embowelled or burned, till previously deprived of sensation by strangling. Some punishments consist in exile or banishment, by abjuration of the realm, or transportation to the American colonies: others in loss of liberty, by perpetual or temporary imprisonment. Some extend to confiscation, by forfeiture of lands, or moveables, or both, or of the profits of lands for life: others induce a disability, of holding offices or employments, being heirs, executors, and the like. Some, though rarely, occasion a mutilation or dismembering, by cutting off the hand or ears: others fix a lasting stigma on the offender, by slitting the nostrils, or branding in the hand or face. Some are merely pecuniary, by stated or discretionary fines: and lastly, there are others, that consist principally in their
Judgment their ignominy, though most of them are mixed with some degree of corporal pain; and these are inflicted chiefly for such crimes, as either arise from indigence, or render even opulence disgraceful. Such as whipping, hard labour in the house of correction, the pillory, the stocks, and the ducking-boat.
Disgusting as this catalogue may seem, it will afford pleasure to a British reader, and do honour to the British laws, to compare it with that shocking apparatus of death and torment to be met with in the criminal codes of almost every other nation in Europe. And it is moreover one of the glories of our law, that the nature, tho' not always the quantity or degree, of punishment is ascertained for every offence; and that it is not left in the breast of any judge, nor even of a jury, to alter that judgment, which the law has beforehand ordained, for every subject alike, without respect of persons. For, if judgments were to be the private opinions of the judge, men would then be slaves to their magistrates; and would live in society, without knowing exactly the conditions and obligations which it lays them under. And besides, as this prevents oppression on the one hand; so, on the other, it stifles all hopes of impunity or mitigation, with which an offender might flatter himself if his punishment depended on the humour or discretion of the court. Whereas, where an established penalty is annexed to crimes, the criminal may read their certain consequence in that law, which ought to be the unvaried rule, as it is the inflexible judge, of his actions.
JUDGMENT of God, (Judicium Dei), in law, a term applied to the trial by combat, by ordeal, &c. See the articles DUEL, COMBAT, ORDEAL, &c.