had actually been pronounced in open court against such offender, by the court before which such offender shall have been convicted.

'Benefit of clergy,' was originally claimed by clerks in holy orders as an exemption from the jurisdiction of the ordinary lay tribunals. Gradually it was claimed by all males able to read and write, and finally it was extended to all persons. It exempted them from the punishment of death. Subsequently many statutes were passed depriving persons committing certain offences of the benefit of clergy, and finally the plea of benefit of clergy was abolished by 7 & 8 Geo. 4, c. 28, s. 6.1

By sec. 2. A record of every such judgment, so entered as aforesaid, shall have the like effect to all intents and purposes, and be followed by all the same consequences, as if such judgment had actually been pronounced in open court, and the offender had been reprieved by the court.

See 24 & 25 Vict. c. 100, s, 2, as to sentence of death for murder. By 7 & 8 Geo. 4, c. 28, s. 7, no person convicted of felony shall suffer death unless it be for some felony which was excluded from the benefit of clergy before or on the first day of the present session of Parliament, or which hath been or shall be made punishable with death by some statute passed after that day.

The 1 Vict. c. 84, s. 1, recites the 1 Will. 4, c. 66; the 2 & 3 Will. 4, c. 59, s. 19; 2 & 3 Will. 4, c. 123; 2 & 3 Will. 4, c. 125, s. 64; 5 & 6 Will. 4, c. 45, s. 12; 5 & 6 Will. 4, c. 51, s. 5; and enacts, that if any person shall after the commencement of this Act be convicted of any of the offences herein before mentioned, such person shall not suffer death, or have sentence of death awarded against him or her for the same, but shall be liable, at the discretion of the court, to be transported (f) beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years nor less than two years.' (g)

The Acts recited in sec. 2 of 1 Vict. c. 84, are repealed by the 8 & 9 Vict. c. 84, and 24 & 25 Vict. c. 95.

Punishment for certain Offences.

Punishment for felonies for which no special punishment is otherwise provided. By the 7 & 8 Geo. 4, c. 28, s. 8, 'every person convicted of any felony, for which no punishment hath been or hereafter may be specially provided, shall be deemed to be punishable under this Act, and shall be liable, at the discretion of the Court, to be trans

(f) Now penal servitude.

(g) This sect. is in part repealed by 24 & 25 Vict. c. 95. The 37 & 38 Vict. c. 35, repeals this Act (1 Vict. c. 84), in part, namely

so much as relates to the punishment of offences formerly punishable under the Acts

11 G. 4 & 1 W. 4, c. 66; 5 & 6 W. 4, c. 45, or 3 & 4 W. 4, c. 51,also, except as to Scotland, so much as relates to the punishment of offences formerly unpunishable under the Acts 2 & 3 W. 4, c. 123, or 3 & 4 W. 4, c. 44.

AMERICAN NOTE.

1 "Benefit of clergy" has generally been abolished in America, but it seems not entirely, see Bishop, Vol. i. s. 938.

VOL. I. -5

ported (h) beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years.' (i)

By sec. 9, where any person shall be convicted of any offence punishable under this Act, for which imprisonment may be awarded, it shall be lawful for the Court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labour, as to the Court in its discretion shall seem meet.'

But by the 1 Vict. c. 90, s. 5, it shall not be lawful for any Court to direct that any offender shall be kept in solitary confinement for any longer period than one month at a time, or than three months in the space of one year.'

Punishments of misdemeanors.

--

Where a prisoner is sentenced to solitary confinement under these clauses the sentence should specify the time at which such confinement is to commence as well as the term for which it is to last. As to hard labour, solitary confinement, whipping, &c., see post. - With regard to the punishment of misdemeanors, it may be laid down as a general rule that all those offences less than felony, which exist at common law, and have not been regulated by any particular statute, are within the discretion of the Court to punish. (j) Fine and imprisonment appear to be the most ordinary judgments in cases of misdemeanor; but a fine cannot. in general be imposed on a married woman, as she has nothing to pay the fine with. (k) The pillory was also a common punishment in these cases; but it was abolished by the 1 Vict. c. 23 and the 56 Geo. 3, c. 128; which by sec. 2 empowers the Court to pass such sentence of fine or imprisonment, or of both, in lieu of a sentence of pillory, as to the Court shall seem proper. Whipping also was ordinarily awarded in former times, but of later years it seems never to have been adjudged. In all cases of misdemeanor, in addition to any punishment that may be awarded, the Court may require the defendant to find sureties to keep the peace and be of good behaviour, (7) and even a married woman may be required to find such sureties. (m) But she cannot herself be bound by recognizance, because being a feme covert she cannot enter into it. (n)

Punishment after previous Conviction, and of form of Indictment and Proceeding thereon.

Larceny after a conviction for felony. By 24 & 25 Vict. c. 96 (entitled an Act to consolidate the Statute Law of England and Ireland

(h) Now penal servitude for not less than three years.

(i) There was also a power to order a male to be whipped, but this has been repealed by the Statute Law Revision Act, 1888.

(1) R. v. Dunn, 12 Q. B. 1026. R. v. Hart, 30 How. St. Tr. 1131; and see the clause in the Acts of 1861.

(m) R. v. Thomas, supra.

(n) Lee v. Lady Baltinglas, Styles, 475. Bennet v. Watson, 3 M. & S. 1. Elsy v.

(j) 1 Ch. Cr. L. 710. R. v. Thomas, C. Mawdit, Styles, 226. Anonymous, Styles, T. H. 278.

(k) R. v. Thomas, supra. Since the Divorce Acts, Married Women Property Acts, this does not always apply.

321. In 1 Ch. C. L. 100, the reason given is that the recognizance of a married woman cannot be estreated.

relating to larceny and other similar offences). Sec. 7. Whosoever shall commit the offence of simple larceny after a previous conviction for felony, whether such conviction shall have taken place upon an indictment, or under the provisions of the Act 18 & 19 Vict. c. 126, shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding ten years and not less than three years, (0) or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping.' (p) Larceny after conviction of an indictable misdemeanor. -Sec. 8. 'Whosoever shall commit the offence of simple larceny, or any offence. hereby made punishable like simple larceny (q) after having been previously convicted of any indictable misdemeanor punishable under this Act, shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping.' (r)

-

Larceny after two summary convictions. Sec. 9. 'Whosoever shall commit the offence of simple larceny, or any offence hereby made punishable like simple larceny, after having been twice summarily convicted of any of the offences punishable upon summary conviction, under the provisions contained in the Act of the session held in the seventh and eighth years of King George the Fourth, chapter twentynine, or the Act of the same session, chapter thirty, or the Act of the ninth year of King George the Fourth, chapter fifty-five, or the Act of the same year, chapter fifty-six, or the Act of the session held in the tenth and eleventh years of Queen Victoria, chapter eighty. two, or the Act of the session held in the eleventh and twelfth years of Queen Victoria, chapter fifty-nine, or in sections three, four, five, and six of the Act of the session held in the fourteenth and fifteenth years of Queen Victoria, chapter ninety-two, or in this Act or the Act of this session intituled an Act to consolidate and amend the statute law of England and Ireland relating to malicious injuries to property (whether each of the convictions shall have been in respect of an offence of the same description or not, and whether such convictions

(0) See 27 & 28 Vict. c. 47, s. 2. As to directing that the prisoner be subject to the supervision of the police, see post, p. 69.

(p) This clause is taken from the 7 & 8 Geo. 4, c. 28, s. 11; 9 Geo. 4, c. 54, s. 21 (I.), which rendered any person convicted of any felony (not capital) liable to transportation for life; and the 16 & 17 Vict. c. 99, s. 12 (amended by 27 & 28 Vict. e. 47, s. 2, 34 & 35 Vict. c. 112), which provided that no person should be liable to be transported by reason only of a conviction for larceny after a previous conviction for felony, but that every such person so convicted might be punished by penal servitude for not more than ten years, &c. The 7 & 8 Geo. 4, c. 28, s. 11, and 9 Geo. 4, c. 54, s. 21, were, therefore, repealed by that Act so far as they relate to the punishment

of larceny after a previous conviction for felony, but no further, and they are still in force except in that case, and certain offences relating to the coin. By the 18 & 19 Vict. c. 126, justices of the peace may convict persons guilty of larceny, &c., summarily, and this clause renders persons so convicted, who afterwards are guilty of larceny, liable to the same punishment as if they had been previously convicted upon an indictment for felony. As to hard labour, whipping, &c. see post.

(q) That is by ss. 31, 32, 33, and 36, and does not apply to a conviction under s. 88 for false pretences. R. v. Horn, 15 Cox, C. C. 205.

(r) This clause is new. land, 11 Cox, C. C. 222.

See R. v. Gar

or either of them shall have been or shall be before or after the passing of this Act), shall be guilty of felony, and being convicted. thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for any term not exceeding seven years and not less than three years or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement, and, if a male under the age of sixteen years, with or without whipping.' (s)

Form of indictment for a subsequent offence. (t) Sec. 116. 'In any indictment for any offence punishable under this Act, and committed after a previous conviction or convictions for any felony, misdemeanor, or offence or offences punishable upon summary conviction, it shall be sufficient, after charging the subsequent offence, to state that the offender was at a certain time and place, or at certain times and places convicted of felony, or of an indictable misdemeanor, or of an offence or offences punishable upon summary conviction (as the case may be), without otherwise describing the previous felony, misdemeanor, offence or offences; and a certificate containing the substance and effect only (omitting the formal part) of the indictment and conviction for the previous felony or misdemeanor, or a copy of any such summary conviction, purporting to be signed by the clerk of the Court or other officer having the custody of the records of the Court where the offender was first convicted, or to which such summary conviction shall have been returned, or by the deputy of such clerk or officer (for which certificate or copy a fee of five shillings and no more shall be demanded or taken), shall, upon proof of the identity of the person of the offender, be sufficient evidence of such conviction, without proof of the signature or official character of the person appearing to have signed the same; and the proceedings upon any indictment for committing any offence after a previous conviction or convictions shall be as follows; (that is to say), the offender shall, in the first instance, be arraigned (u) upon so much only of the indictment as charges the subsequent offence, and if he plead not guilty, or if the Court order a plea of not guilty to be entered on his behalf, the jury shall be charged, (v) in the first instance, to inquire concerning such subsequent offence only; and if they find him guilty, or if on arraignment he plead guilty, he shall then, and not before, be asked whether he had been previously convicted as alleged in the indictment, and if he answer that he had been so previously convicted, the Court may proceed to sentence him accordingly, but if he deny that he had been so previously convicted, or stand mute of malice, or will not answer directly to such question, the jury shall then be charged to inquire concerning such previous conviction, or convictions, and in such case it shall not be necessary to swear the jury again, but the oath already taken by them shall for all purposes be deemed to

(s) This clause is taken from the 12 & 13 Vict. c. 11, s. 3, and extended so as to include persons who have been twice summarily convicted under the 14 & 15 Vict. c. 92, ss. 3, 4, 5, & 6 (I.), or the Malicious Injuries Act of this session, or this Act.

(t) See post.

(u) See R. v. Martin, 39 L. J. M. C. 31; R. v. Fox, 10 Cox, C. C. 502. As to the former practice, see Anonymous, 5 Cox, C. C. 268. R. v. Key, 2 Den. C. C. 347, 3 C. & K. 371; R. v. Shuttleworth, 2 Den. C. C. 351, 3 C. & K. 375.

(v) See former Act, 6 & 7 Will. 4, c. 111.

extend to such last-mentioned inquiry: Provided, that if upon the trial of any person for any such subsequent offence such person shall give evidence of his good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the conviction (w) of such person for the previous offence or offences before such verdict of guilty shall be returned, and the jury shall inquire concerning such previous conviction or convictions at the same time that they inquire concerning such subsequent offence.' (x)

Prevention of Crimes Act. - By 34 & 35 Vict. c. 112 (The Prevention of Crimes Act, 1871), s. 9, the rules contained in this 116th section in relation to the form of and the proceedings upon an indictment for any offence punishable under that Act committed after previous conviction, shall, with the necessary variations, apply to any indictment for committing a crime as defined by this Act (y) after previous conviction for a crime, whether the crime charged in such indictment, or the crime to which such previous conviction relates, be or be not punishable under the said Act of the 24 & 25 Vict. c. 96.

Direction that prisoner be under supervision of police. By sec. 8, where any person is convicted on indictment of a crime, (y) and a previous conviction of a crime is proved against him, the Court having cognizance of such indictment may, in addition to any other punishment which it may award to him, direct that he is to be subject to the supervision of the police for a period of seven years, or of such less period as the Court may direct, commencing immediately after the expiration of the sentence passed on him for the last of such crimes.

Interpretation clause. By sec. 20,

(w) As to proof of previous convictions, where proceedings are taken against a person for receiving goods knowing them to be stolen, and the goods are found in his possession, see 34 & 35 Vict. c. 112, s. 19, noticed Vol. 2.

(a) This clause is framed from the 7 & 8 Geo. 4, c. 28, s. 11; 9 Geo. 4, c. 54, s. 21 (I.); 6 & 7 Will. 4, c. 111; 12 & 13 Vict. c. 11, s. 4; and 14 & 15 Vict. c. 19, ss. 2, 9. See post, in this vol., as to the mode of proceeding, &c., on the similar clause in the Coin Act. The words after charging the subsequent offence' were inserted in order to render it absolutely necessary always to charge the subsequent offence or offences first in the indictment, and after so doing to allege the previous conviction or convictions. This was the invariable practice on the Oxford Circuit, and the Select Committee of the Commons were clear that it ought to be universally followed, so that the previous conviction should not be mentioned, even by accident, before a verdict of guilty of the subsequent offence had been delivered. Mr. Davis (Cr. L. 113), however, says, 'It seems to be immaterial whether the prior conviction be alleged before or after the substantive charge,' for which he cites R. v. Hilton, Bell, C. C. 20. Now that case was decided on the 7 & 8 Geo.

the

"crime expression

means

4, c. 28, s. 11, which had not in it the words 'after charging the subsequent offence,' and is, therefore, no authority on the present clause, in which those words are inserted to render the course held sufficient in R. v. Hilton unlawful. Whenever a statute increases the punishment of an offender on a subsequent conviction, and gives no mode of stating the former conviction, the former indictment, &c., must be set out at length, as was the case in Mint prosecutions before the present Coin Act; but where a statute gives a new form of stating the former conviction, that form must be strictly pursued; for no rule is more thoroughly settled than that in the execution of any power created by any Act of Parliament, any circumstance required by the Act, however unessential and unimportant otherwise, must be observed, and can only be satisfied by a strictly literal and precise performance, R. v. Austrey, 6 M. & S. 319; and to suppose that this clause, which makes it sufficient to allege the former conviction after charging the subsequent offence' can be satisfied by alleging it before charging the subsequent offence, is manifestly erroneous. See also my note, Greaves, Crim. Acts, 201, 2nd Ed. - C. S. G.

(y) See s. 20, infra.