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neither should he be suffered to exculpate himself by the testimony of any witnesses. And, therefore, it deserves to be remembered to the honour of Mary I, (whose carly sentiments, till her marriage with Philip of Spain, seem to have been humane and generous), (0) that when she appointed Sir Richard Morgan chief justice of the common pleas, she enjoined him, "that notwithstanding the old error, which did not admit any witness to speak, or any other matter to be heard, in favour of the adversary, her majesty being party; her highness's pleasure was, that whatsoever should be brought in favour of the subject should be admitted to be heard: and moreover, that the justices should not persuade themselves to sit in judgment otherwise for her highness than for her subject." (p) Afterwards, in one particular instance (when embezzling the queen's military stores was made felony by statute 34 Eliz. c. 4), it was provided, that any person impeached for such felony, "should be received and admitted to make any lawful proof that he could, by lawful witness or otherwise, for his discharge and defence:" and in general the courts grew so heartily ashamed of a doctrine so unreasonable and oppressive, that a practice was "gradu[*360] ally introduced of examining witnesses for the prisoner, but not upon oath; (4) the consequence of which still was, that the jury gave less credit to the prisoner's evidence than to that produced by the crown. Sir Edward Coke () protests very strongly against this tyrannical practice; declaring that he never read in any act of parliament, book-case, or record, that in criminal cases the party accused should not have witnesses sworn for him; and, therefore, there was not so much as scintilla juris against it. (s) And the house of commons were so sensible of this absurdity, that, in the bill for abolishing hostilities between England and Scotland, (f) when felonies committed by Englishmen in Scotland 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 Wm. 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.

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; (15) 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 [*361] 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 rime at all. This is where they doubt the matter of law, and therefore choose to

(o) See page 17. (p) Hollingsh. 1112. St Tr. I. 72. (7) 2 Bulst. 147. Cro. Car. 292.
(r) Inst. 79. (8) See also 2 Hal. P. C. 283, and his summary, 264. (t) Stat. 4 Jac. I, c. 1
(u) Com. Journ. 4, 5, 12, 13, 15. 29, 30 Jun. 1607. (w) Com. Journ. 4 Jun. 1607.
(2) Co. Litt. 227. 3 Inst. 110. Fost. 27. Gould's Case. Hill, 1764.
(y) 2 Hal. P. C. 300. 2 Hawk, P. C. 439.

(z) 3 St. Tr. 731. 4 St. Tr. 231, 455, 455.

(15) The discharge of the jury from any overruling necessity does not entitle the defendant to his discharge: U. S. v. Perez, 9 Wheat, 579; State v. Ephraim, 2 Dev. and Bat. 166; Commonealth e. Fells, 9 Leigh, 620; People v. Goodwin, 18 Johns. 205. The sickness or death of the judge, or of a juror, or inability of the jury to agree upon a verdict, or the term of the court coming to an end before the conclusion of the trial would be such a necessity. See Miller v. State, 8 Ind. 325; Mahala v. State, 10 Yerg. 532; State v. Battle, 7 Ala. 259.

leave it to the determination of the court; though they have an unquestionable right of determing 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) 16) 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." (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) (17)

If the jury, therefore, find the prisoner not guilty, he is then forever 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 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 guilty, (h) he is then said [ *362] 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 subpoena 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 larceny, in particular, the prosecutor shall have restitution of his goods, by virtue of the statute 21 Hen. VIII, c. 11. (18) 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

(a) 2 Hal. P. C. 310.

(b) Smith's Commonw. l. 3, c. 1.
(c) 2 Hal. P. C. 313.
(e) 2 Hawk. P. C. 442.

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

(f) The civil law in such case only discharges him from the same accuser, but not from the same accusation. Ff, 48. 2, 7, § 2.

(g) Stat. 14 Geo. III, c. 20.

(h) 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.)

(16) This is no longer the law. Attaints are abolished, and the jury must be left perfectly free to give such judgment as their conscience dictates, and be protected in so doing. See Penn's Case, 6 Howell's St. Tr. 951; Vaughan, 135.

(17) If the prisoner is convicted on one count of an indictment and acquitted on another, and then obtains a new trial, he is only tried afterwards on the count on which he was before convicted. State v. Cooper, 1 Green, N. J. 360; Commonwealth v. Roby, 12 Pick. 504; Price v. State, 19 Ohio, 423; State v. Benham, 7 Conn 414; People v. McGowen, 17 Wend. 386.

(18) These statutes are since repealed, and new provisions made. The present law on the restoration of property stolen, embezzled, &c., or received with guilty knowledge, is 24 and 5 Vic. c. 96, s. 100.

again. (i) 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 goods, if he has any, by a writ to be granted by the justices. And the construction of this act having been in a great measure conformable to the law of appeals, it has therefore in practice superceded the use of appeals of larceny. For instance: as formerly upon appeals, (j) so now upon indictments of larceny, this writ of restitution *shall reach the goods so stolen, notwith[*363] standing the property (k) of them is endeavoured to be altered by sale in market overt. (1) 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 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, (m) 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: (n) 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. (0)

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. This is done to re-imburse 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 [ *364 ] 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 these 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 these 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 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.

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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; (1) 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 divino. (a) By their canons, therefore, and constitutions, they endeavoured at, and where [*366] 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 universil; (b) as in regard to the persons exempted, among whom were at length comrehended not only every little subordinate officer belonging to the church or ergy, 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 supremacy, 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 practiced, 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 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 [*367] 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

(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. (c) 2 Hal. P. C. 372. M. Paris, A. D. 1259. See book I, p. 24.

(1) Benefit of clergy is now abolished, and the law of this chapter is obsolete.

VOL. II.-66


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 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 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. 1, and 32 Hen. VIII, c. 3, but it is held (e) to have been virtually restored by statute 1 Edw. VI, c. 12, which statute also enacts that lords of parliament 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. (2)

*After this burning, the laity, and before it the real clergy, were dis[*368] charged 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. Whereupon the ordinary, not satisfied with the proofs adduced in the profane secular court, set himself formally to work to make a purgation of the offender by a new canonical trial; although he had been previously 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 compurgators, 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, () 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

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(2) [Upon the conviction of the duchess of Kingston for bigamy, it was argued by the attorney-general, Thurlow that peeresses were not entitled by 1 Edw. VI, c. 12, like peers te the privilege of peerage; but it was the unamimous opinion of the judges, that a peeress con victed 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 the 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 benefit; but as no female, peeress or commoner, at that time was entitled to the benefit of clergy, so it was not the interion 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 tho counsel on the other side, or the reasons stated for the opinions of the judges.]

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