press law of Scotland," "that in all such trials, for the better discovery of the truth, and the better information of the consciences of the jury aud justices, there shall be allowed to the party arraigned the benefit of such credible witnesses to be examined upon oath as can be produced for his clearing and justification." At length by the statute 7 W. III. c. 3. the same measure of justice was established throughout all the realm, in cases of treason within the act: and it was afterwards declared by statute 1 Ann. st. 2. c. 9. that in all cases of treason and felony, all witnesses for the prisoner shall be examined upon oath, in like manner as the witnesses against him. When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury cannot be discharged, unless in cases of evident necessity, till they have given in their verdict; but are to consider of it, and deliver it in, with the same forms, as upon civil causes: only they cannot, in a criminal case which touches life or member, give a privy verdict. But the judges may adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court. And such public or open verdict may be either general, guilty, or not guilty; or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore choose to leave it to the determination 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. But the practice, heretofore in use, of fining, imprisoning, or otherwise punishing jurors, merely at the discretion of the court, for finding their verdict contrary to the direction of the judge, was arbitrary, a 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." For, as sir Matthew Hale well observes, 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,b where contrary to evidence the jury have found the pri soner 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.c If the jury therefore find the prisoner not guilty, he is then for ever quit and discharged of the accusation, except he be appealed of felony within the time limited by Jaw. And upon such his acquittal, or discharge for want of prosecution, he shall be immediately set at large without payment of any fee to the gaoler. But if the jury find him guilty, he is then said 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. When the offender is thus convicted, there are two collateral circumstances that immediately arise. 1. On a conviction, (or even upon an 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, z Smith's commonw. 1. 3. c. 1. 2 2 Hal. P. C. 313. b 1 Lev. 9. T. Jones, 163. St. Tr. X. 416. c 2 Hawk. P. C. 442. d The civil law in such case only discharges him from the same accuser, but not from the same accusation. Ff. 48.2.7. § 2. e Stat. 14 Geo. III. c. 20. f 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: " pas rum cavisse videtur." Festus 325. the reasonable expences 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 subpœna to give evidence, whether any indictment 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. 2. 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. 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 goods, if he has any, by a writ to be granted by the justices. And the construc tion 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, so now upon indietments of larciny, this writ of restitution shall reach the goods so stolen, not, withstanding the property of them is endeavoured to be altered by sale in market overt. And though this may seem somewhat hard upon the buyer, yet the rule of law is that "spoliatus debet, ante omnia, 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 feion to condign punishment, to the right of the buyer, whose merit is only negative, that 83 Inst. 242. h Bracton. de coron. c. 32. i iSee Vol. II. pag. 420, k1 Hal. P. C. 546. he has been guilty of no unfair transaction. And it is now usual for the court, upon the conviction of the 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, 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 prosecution; for so felonies would be made up and healed: and also recaption is unlawful, if it be done with intention to smother or compound the larciny; it then becoming the heinous offence of theftbote, as was mentioned in a former chapter." It is not uncommon, when a person is convicted of a misdemesnor, which principally and more immediately affects some individual, as a battery, imprisonment, or the like, for the court to permit the defendant 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 expences, 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 superior 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, who pleads with equal strength for the certainty as for the 1 See Vol. III. pag. 4. m 1 Hal. P. C. 546. » See page 121. lenity of punishment, "may be an act of good nature and humanity, 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 punishing belongs not to any one individual in particular, but to the society in ge neral, 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 others." 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 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 jure |