mination of the court; though they have an unquestionable right of determining upon all the circumstances, and finding a general verdict, if they think proper so to hazard a breach of their oaths: and if their verdict be notoriously wrong, they may be punished, and the verdict set aside by attaint at the suit of the king; but not at the suit of the prisoner. (a) 29 But the practice, heretofore in use, of fining, imprisoning, or otherwise punish. ing jurors, merely at the discretion of the court, for finding their verdict contrary to the discretion of the judge, was arbitrary, unconstitutional, and illegal; and is treated as such by sir Thomas Smith, two hundred years ago; who accounted "such doings to be very violent, tyrannical, and contrary "to the liberty and custom of the realm of England." (b) For, as sir Matthew Hale well observes, (c) it would be a most unhappy case for the judge himself, if the prisoner's fate depended upon his directions :-unhappy also for the prisoner; for, if the judge's opinion must rule the verdict, the trial by jury would be useless. Yet in many instances, (d) where contrary to evidence the jury have found the prisoner guilty, their verdict hath been mercifully set aside, and a new trial granted by the court of king's bench: for in such case, as hath been said, it cannot be set right by attaint. But there hath yet been no instance of granting a new trial, where the prisoner was acquitted upon the first. (e)

If the jury therefore find the prisoner not guilty, he is then for ever quit and discharged of the accusation, (f) except he be appealed of felony within the time limited by law. And upon such his acquittal, or [362] discharge for want of prosecution, he shall be immediately set at large without payment of any fee to the gaoler. (g) But if the jury find him guilty, (h) he is then safe to be convicted of the crime whereof he stands indicted. Which conviction may accrue two ways: either by his confessing the offence and pleading guilty; or by his being found so by the verdict of his country.

30

When the offender is thus convicted, there are two collateral circumstances that immediately arise." 1. On a conviction (or even upon an

a 2 Hal. P. C. 310.

b Smith's Commonw. 1. S. c. 1.

c 2 Hal. P. C. 313.
d 1 Lev. 9. T. Jones, 169. St. Tr. X. 416.
e 2 Hawk. P. C. 442.

f The civil law in such case only discharges him from the same accuser, but not from the same accusa-
tion. (Ff. 48. 2. 7. § 2.).
g Stat. 14 Geo. III. c. 20.

à In the Roman republic, when the prisoner was convicted of any capital offence by his judges, the form of pronouncing that conviction was something peculiarly delicate; not that he was guilty, but that he had not been enough upon his guard; "parum cavisse videtur." (Festus, 325.)

(23) As to the liability of jurors to punishment, see 1 Chit. C L. 527 to 531. Quære, if an attaint could in any case be maintained against a jury. Hawk. P C b. 1. c. 72. s. 5. id. b. 2. c. 22. s. 20. 23. Vaughan, 164.; and see 6 Geo. IV. c. 50. s. 60. which abolishes the writ of attaint. (30) See 1 Chit. C. L. 648 to 651.

(31) The 58 Geo. III. c. 70. empowers the court before whom the party is tried for felony, as the request of the prosecutor or other person bound in recognizances to prosecute or give evidence, or subponed to give evidence, or who has been active in apprehending the person guilty of any of the offences recited in the 4 W. & M. c. 8. 6 & 7 Wm. III. c. 17. 5 Ann. c. 31. 14 Geo. If. c. 6. and 15 Geo II. c. 28. to order the sheriff or treasurer of the county in which the offence shall have been committed, to pay to such prosecutor and witnesses, and person or persons concerned in such apprehension respectively, the costs, charges, and expenses to which such prosecutor shall have been put to in preferring such indictment, as also such a sum of money as shall appear to the court reasonable and sufficient to reimburse such prosecutor and witnesses, and person or persons concerned in such apprehension, for the expenses they have been put to in the prosecution, and also for loss of time and trouble.

These statutes, it will be seen, extend to felonies only, and not to prosecutions for misdemea. nors. 7 T. R. 377. Mr. Christian observes, that in many cases of misdemeanors, the interest of the public as much requires that the judge should have the power of allowing costs to the prosecutor as in felony. As in the offences of uttering base coin, obtaining goods and money under false pretences, receiving stolen goods, perjury, and in other instances where the prosecu

32

acquittal where there was a reasonable ground to prosecute, and in fact a bona fide prosecution) for any grand or petit larciny or other felony, the reasonable expenses of prosecution, and also, if the prosecutor be poor, a compensation for his trouble and loss of time, are by statutes 25 Geo. II. c. 36. and 18 Geo. III. c. 19. to be allowed him out of the county stock, if he petitions the judge for that purpose and by statute 27 Geo. II. c. 3. explained by the same statute 18 Geo. III. c. 19. all persons appearing upon recognizance or subpæna to give evidence, whether any in. dictment be preferred or no, and as well without conviction as with it, are entitled to be paid their charges, with a farther allowance (if poor) for their trouble and loss of time. 4. On a conviction of larciny in particular, the prosecutor shall have restitution of his goods, by virtue of the statute 21 Hen. VIII. c. 11. For by the common law there was no restitution of goods upon an indictment, because it is at the suit of the king only; and therefore the party was enforced to bring an appeal of robbery, in order to have his goods again. g) But, it being considered that the party prosecuting the offender by indictment, deserves to the full as much encouragement as he who prosecutes by appeal, this statute was made, which enacts, that if any person be convicted of larciny, by the evidence of the party robbed, he shall have full restitution of his money, goods, and chattels; or the value of them, out of the offender's [363] goods, if he has any, by a writ to be granted by the justices. And the construction of this act having been in great measure conformable to the law of appeals, it has therefore in practice superseded the use of appeals of larciny. For instance: as formerly upon appeals, (h) so now up. on indictments of larciny, this writ of restitution shall reach the goods so stolen, notwithstanding the property (i) of them is endeavoured to be al tered by sale in market overt. (k And though this may seem somewhat hard upon the buyer yet the rule of law is that "spoliatus debet, ante om. nia, restitui ;" especially when he has used all the diligence in his power to convict the felon. And, since the case is reduced to this hard necessity, that either the owner or the buyer must suffer; the law prefers the right of the owner, who has done a meritorious act by pursuing a felon to condign punishment, to the right of the buyer, whose merit is only nega. tive, that he has been guilty of no unfair transaction. And it is now usual for the court, upon the conviction of a felon, to order (without any writ) immediate restitution of such goods, as are brought into court, to be made to the several prosecutors. Or else, secondly, without such writ of restitution, the party may peaceably retake his goods, wherever he happens to find them, (1) unless a new property be fairly acquired therein. Or, lastly, if the felon be convicted and pardoned, or be allowed his clergy, the party robbed may bring his action of trover against him for his goods; and recover a satisfaction in damages. But such action lies not before proseh Bracton, de coron. c. 32. i See Book II. page 450. I See Book III. page 4.

g 3 Inst. 242.

k 1 Hal P. C. 543.

tion is as necessary for the public security as in felony, and where the prosecutor has no farther interest in the prosecution than any other member of the community.

See further as to costs in criminal cases, Hullock on Costs, 601 to 607.; Burn J. Felony, I. Costs: Williams J. Felony, VII. and Costs: Cro. C. C. 11, 12, 1 Chit. C. L. 2 ed. 825 to 832; and as to officer's fees, 1 Chit. C. L. 832 to 834.

(32) See further as to this subject in general, 1 Hale, 538 to 547.; Com. Dig. Justices, A.; Burn J. Restitution of stolen Goods; Williams J. Felony, VII.; 1 Chit. C. L. 2 ed. 817 to 821. As to the award of restitution in forcible entries, &c. see Hawk. b. 1. c. 64 to 66. 9 ChitRep. 814 Cro. Jac. 151. Alk 50

cution: for so felonies would be made up and healed: (m) and also recaption is unlawful, if it be done with intention to smother or compound the larciny; it then becoming the heinous offence of theft-bote, as was mentioned in a former chapter. (n)

It is not uncommon, when a person is convicted of a misdemesnor, which principally and more immediately affects some individual, as a bat

tery, imprisonment, or the like, for the court to permit the defend[364] ant to speak with the prosecutor before any judgment is pronounced;

and if the prosecutor declares himself satisfied, to inflict but a trivial punishment. This is done to reimburse the prosecutor his expenses, and make him some private amends, without the trouble and circuity of a civil action. But it surely is a dangerous practice: and though it may be intrusted to the prudence and discretion of the judges in the su perior courts of record, it ought never to be allowed in local or inferior jurisdictions, such as the quarter sessions; where prosecutions for assaults are by this means too frequently commenced, rather for private lucre than for the great ends of public justice. Above all, it should never be suffered, where the testimony of the prosecutor himself is necessary to convict the defendant: for by this means, the rules of evidence are entirely subverted the prosecutor becomes in effect a plaintiff, and yet is suffered to bear witness for himself. Nay, even a voluntary forgiveness, by the party injured, ought not in true policy to intercept the stroke of justice. "This," says an elegant writer (o) (who pleads with equal strength for the certainty as for the lenity of punishment), " may be an act of good nature and hu"manity, but it is contrary to the good of the public. For, although a "private citizen may dispense with satisfaction for his private injury, he "cannot remove the necessity of public example. The right of punish"ing belongs not to any one individual in particular, but to the society in general, or the sovereign who represents that society; and a man may renounce his own portion of this right, but he cannot give up that of 86° others."

66

CHAP. XXVIII.

OF THE BENEFIT OF CLERGY.'

AFTER trial and conviction, the judgment of the court regularly follows, unless suspended or arrested by some intervening circumstance; of which the principal is the benefit of clergy; a title of no small curiosity as well as use; and concerning which I shall therefore inquire: 1. Into its original, and the various mutations which this privilege of clergy has sustained. 2. To what persons it is to be allowed at this day. 3. In what cases. 4. The consequences of allowing it.

I. Clergy, the privilegium clericale, or, in common speech, the benefit of

m 1 Hal, P. C. 546.

n See page 133.

o Becc. ch. 46.

(1) As to this subject in general, see 2 Hale, 323 to 391; index, Clergy; Fost. C. L. index, Clergy; Williams J. Felony, V.; Burn J. Clergy, II.; Com. Dig. Justices, Y.; Bac. Ab. Felony, G.; 1 Chit. C. L. 2 ed. 667 to 690.

clergy, had its original from the pious regard paid by Christian princes to the church in its infant state; and the ill use which the popish ecclesiastics soon made of that pious regard. The exemptions which they granted to the church, were principally of two kinds : 1. Exemption of places consecrated to religious duties, from criminal arrests, which was the foundation of sanctuaries; 2. Exemption of the persons of clergymen from criminal process before the secular judge in a few particular cases, which was the true original and meaning of the privilegium clericale.

But the clergy increasing in wealth, power, honour, number, and interest, began soon to set up for themselves: and that which they obtained by the favour of the civil government, they now claimed as their inherent right and as a right of the highest nature, indefeasible, and [366] jure divino, (a) By their canons therefore and constitutions they endeavoured at, and where they met with easy princes obtained, a vast ex. tension of these exemptions: as well in regard to the crimes themselves, of which the list became quite universal; (b) as in regard to the persons exempted, among whom were at length comprehended not only every little subordinate officer belonging to the church or clergy, but even many that were totally laymen.

In England however, although the usurpations of the pope were very many and grievous, till Henry the Eighth entirely exterminated his supre macy, yet a total exemption of the clergy from secular jurisdiction could never be thoroughly effected, though often endeavoured by the clergy: (c) and therefore, though the ancient privilegium clericale was in some capital cases, yet it was not universally allowed. And in those particular cases, the use was for the bishop or ordinary to demand his clerks to be remitted out of the king's courts, as soon as they were indicted: concerning the al lowance of which demand there was for many years a great uncertainty : (d) till at length it was finally settled in the reign of Henry the Sixth, that the prisoner should first be arraigned; and might either then claim his benefit of clergy, by way of declinatory plea; or, after conviction, by way of ar resting judgment. This latter way is most usually practised, as it is more to the satisfaction of the court to have the crime previously ascertained by confession or the verdict of a jury and also it is more advantageous to the prisoner himself, who may possibly be acquitted, and so need not the bene fit of his clergy at all."

Originally the law was held, that no man should be admitted to the privi. lege of clergy, but such as had the habitum et tonsuram clericalem. (e) But in process of time a much wider and more compre. [367] hensive criterion was established: every one that could read (a mark of great learning in those days of ignorance and her sister supersti. tion) being accounted a clerk or clericus, and allowed the benefit of clerk. ship, though neither initiated in holy orders, nor trimmed with the clerical tonsure. But when learning, by means of the invention of printing, and other concurrent causes, began to be more generally disseminated than formerly; and reading was no longer a competent proof of clerkship, or being in holy orders; it was found that as many laymen as divines were admitted a The principal argument upon which they founded this exemption, was that text of Scripture; "Touch not mine anointed, and do my prophets no harm." (Keilw. 181.) b See Book III. page 62. c Keilw, 180. d 2 Hal. P. C. 377.

e 2 Hal. P. C. 372. M. Paris, 4. I). 1259. See Book I. page 24.

(2) The benefit of clergy must, in cases of felony, be prayed, 3 M. & S. 549.; and this in general before sentence, 2 Inst. 164, but it may be allowed afterwards. 1 Ry. & M. C. C. 21. 3 Dyer, 205. a.

than once.

to the privilegium clericale: and therefore by statute 4 Hen VII. c. 13. a distinction was once more drawn between mere lay scholars, and clerks that were really in orders. And, though it was thought reasonable still to mitigate the severity of law with regard to the former, yet they were not put upon the same footing with actual clergy; being subjected to a slight degree of punishment, and not allowed to claim the clerical privilege more Accordingly the statute directs that no person once admitted to the benefit of clergy, shall be admitted thereto a second time, unless he produces his orders: and, in order to distinguish their persons, all laymen who are allowed this privilege shall be burnt with a hot iron in the brawn of the left thumb. This distinction between learned laymen, and real clerks in orders, was abolished for a time by the statutes 28 Hen. VIII. c. 1. and 32 Hen. VIII. c. 3. but it is held (f) to have been virtually restored by statute 1 Edw. VI. c. 12. which statute also enacts, that lords of parlia ment and peers of the realm, having place and voice in parliament, may have the benefit of their peerage equivalent to that of clergy, for the first offence (although they cannot read, and without being burnt in the hand), for all offences then clergyable to commoners, and also for the crimes of house-breaking, highway-robbery, horse-stealing, and robbing of churches." After this burning the laity, and before it the clergy, were discharged from the sentence of the law in the king's court, and delivered over to the

ordinary, to be dealt with according to the ecclesiastical canons, [368] Whereupon the ordinary, not satisfied with the proofs adduced in the

:

profane secular court, set himself formally to work, to make a purga. tion of the offender by a new canonical trial; although he had been previous ly convicted by his country, or perhaps by his own confession. (f) This trial was held before the bishop in person, or his deputy, and by a jury of twelve clerks and there, first, the party himself was required to make oath of his own innocence; next, there was to be the oath of twelve purgators, who swore they believed he spoke the truth; then, witnesses were to be examined upon oath, but on behalf of the prisoner only and lastly, the jury were to bring in their verdict upon oath, which usually acquitted the prisoner; otherwise, if a clerk, he was degraded, or put to penance. (g) A learned judge, in the beginning of the last century, (h) remarks with much indignation the vast complication of perjury and subornation of perjury, in this solemn farce of a mock trial; the witnesses, the compurgators, and the jury, being all of them partakers in the guilt; the delinquent party also, though convicted before on the clearest evidence, and conscious of his own offence, yet was permitted and almost compelled to swear himself

f Staundford, P. C. 132. b.

f Hob. 291. 2 Hal, P. C. 375.
g 3 P. Wms. 447. Hob. 289,

h Hob. 291.

(3) But now by 6 Geo IV. c. 25 s. 3. the provisions of the 28 Hen. VIII. c. 1. are revived, and clerks in holy orders are placed on the same footing as to the benefit of clergy as other persons. Upon the conviction of the duchess of Kingston for bigamy, it was argued by the attorneygeneral Thurlow, that peeresses were not entitled by 1 Edw. VI c 12 like peers to the privilege of peerage; but it was the unanimous opinion of the judges, that a peeress convicted of a clergyable felony ought to be immediately discharged without being burnt in the hand, or without being liable to any imprisonment. 11 H. St. Tr 264 If the duchess had been admitted, like a commoner, only to the benefit of clergy, burning in the hand at that time could not have been dispensed with. The argument was, that the privilege of peerage was only an extension of the benefit of clergy, and therefore granted only to those who were or might be entitled to that bene fit; but as no female, peeress or commoner, at that time was entitled to the benefit of clergy, so it was not the intention of the legislature to grant to any female the privilege of peerage. And in my opinion the argument of the attorney-general is much more convincing and satisfactory, as a legal demonstration, than the arguments of the counsel on the other side, or the reasons stated for the opinions of the judges.-Mr. Christian's note.