were ordered to be tried in one of the three northern counties, they insisted on a clause, and carried it (u) against the efforts of both the crown and the house of lords, against the practice of the courts in England, and the express law of Scotland (w), "that in all such trials for the better discovery of the truth, and the better information of the consciences of the jury and 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 should be examined upon oath, in like manner as the witnesses against him (30).

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 evi dent necessity) (x) till they have given in their verdict (31); 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 (y). But the judges may adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court (2). And

such public or open verdict may be either general, guilty, or not [*361] 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, if 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 ver dict 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). (32). 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, 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 (1)." 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

:

(u) Com. Journ. 4, 5. 12, 13. 15. 29. 30 Jun. 1607. (w) Com. Journ. 4 Jun. 1607.

(c) Co. Litt. 227. 3 Inst. 110. Fost. 27. Gould's case, Hil. 1764.

(y) 2 Hal. P. C. 300. 2 Hawk. P. C. 439.

(30) See note 9, p. 352, law of New-York. (31) It is now settled, that when a criminal trial runs to such a length as it cannot be concluded in one day, the court, by its own authority, may adjourn till the next morning; but the jury must be somewhere kept together, that they may have no communication but with each other. 6 T. R. 527. See further as to this, 1 Chit. C. L. 2 ed. 632.

(z) 3 St. Tr. 731. 4 St. Tr. 231. 455. 485.
(a) 2 Hal. P. C. 310.

(b) Smith's Commonw. 1. 3, c. 1.
(c) 2 Hal. P. C. 313.

(d) 1 Lev. 9. T. Jones, 163. St. Tr. X. 416

(32) 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.

It is abolished also in New-York. 2 R. S. 421, § 69.

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) (33).

If the jury therefore find the prisoner not guilty, he is then for ever quit and discharged of the accusation (d), except he be appealed of felony within the time limited by law. And upon such his acquittal, or discharge

for want of prosecution, he shall be immediately set at large with- [*362] out payment of any fee to the gaoler (e). But if the jury find

him guilty (f), 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 larceny 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 subpana 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 (34). 2. On a conviction of larceny in particular, the prosecutor shall have restitution of his goods, by virtue of the statute 21 Hen. VIII. c. 11. (35). For

(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

(33) No new trial can be granted in cases of felony, or treason. Rex v. Mawbey, 6. T. R. 638; and see 13 East, 416, n. (b). But in cases of misdemeanor, it is entirely discretionary in the court whether they will grant or refuse a new trial. Id. ibid. A new trial cannot, in general, be granted on the part of the prosecutor, after the defendant has been acquitted, even though the verdict appears to be against evidence. But it seems to be the better opinion, that where the verdict was obtained by the fraud of the defendant, or in consequence of irregularity in his proceedings, as by keeping back the prosecutor's witnesses, or neglecting to give due notice of trial, a new trial may be granted. 1 Chit. Cr. L. 657.

(34) These Acts are now all repealed, and new provisions on the same subject are made by 7 G. IV. c. 64, s. 22. et seq; see ante, 295,

ceiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for any such offence, by, or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative: and the court before whom any such person shall be so convicted, shall have power to award from time to time writs of restitution for the said property, or to order the restitution thereof in a summary manner: provided, that if it shall appear before any award or order made, that any valuable security shall have been bona fide paid or discharged by some person or body corporate liable to the payment thereof, or, being a nogotiable instrument, shall have been bonâ fide taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice, or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, or converted as aforesaid, in such case the court shall not award or order the restitution of such security.

The proviso in this clause seems to be

66

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 larceny, 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 good if he has any, by a writ to be granted by the justices. And the construction of this Act having been in great measure conform able to the law of appeals, it has therefore in practice superseded the use of appeals in larceny. For instance: as formerly upon appeals (h), [*363] so now upon indictments of larceny, this writ of restitution *shall reach the goods so stolen, notwithstanding the property (i) of them is endeavoured to be altered 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 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 pur suing a felon to condign punishment, to the right of the buyer, whose merit is only negative, 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 prosecution; 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 larceny it; then becoming the heinous offence of theft-bote, as was mentioned in a former chapter (n) (36).

It is not uncommon, when a person is convicted of a misdemeanor, 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 (37). 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

(g) 3 Inst. 242.

(h) Bracton, de Coron. c. 32

(i) See book II. page 450. (k) 1 Hal. P. C. 543.

new, and the enacting part of it makes some very important alterations in the law, as the former Act of Parliament extended only to cases of prosecutions of thieves, and not receivers, and did not include property lost by false pretences, or by other misdemeanors.

In New-York, stolen property is returned to the owner on his paying to the officers reasonable expenses, (2 R. S. 746, § 31): and

(1) See book III. page 4.
(m) 1 Hal. P. C. 546.
(n) See page 133.

as there is no market overt, even a bona fide purchaser is not protected from the real owner, (see 1 John. R.) though the owner should not prosecute the thief.

(36) See ante 133, notes.

(37) See the law of compounding misde meanors, &c. in New-York, ante p. 133, note 22. and 2 R. S. 730, § 66, &c

it surely is a dangerous practice: *and, though it may be in- [*364] trusted 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 prose cutor 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 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 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 others."

CHAPTER XXVIII.

OF THE BENEFIT OF CLERGY (1).

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 (2): 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

(0) Beec. ch. 46.

(1) Benefit of Clergy does not exist in New-York nor in England. See last note to this chapter.

(2) 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.

by the favour of the civil government, they now claimed as their in[366] herent right: and as a "right of the highest nature, indefeasible, and jure divino (a). By their canons therefore and constitutions they endeavoured at, and where they met with easy princes obtained, a vast extension 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 allowance 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 arresting 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 benefit of his clergy at all.

:

Originally the law was held, that no man should be admitted to [*367] the privilege of clergy, but such as had the *habitum et tonsuram clericalem (e). But in process of time a much wider and more comprehensive criterion was established: every one that could read (a mark of great learning in those days of ignorance and her sister superstition) being accounted a clerk or clericus, and allowed the benefit of clerkship, though neither initiated in holy orders, nor trimmed with the clerical tonsure. But when learning, by means of the invention of printing, and other concur rent 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 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 the 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 than once. 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.

(a) The principal argument upon which they founded this exemption was that text of Scripture; "Touch not mine annointed, 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, A. D. 1959. See Book I. P. 24.