d

bery, in order to have his goods again. But, it being confidered that the party, profecuting the offender by indictment, deferves to the full as much encouragement as he who profecutes by appeal, this ftatute was made, which enacts, that if any perfon be convicted of larciny by the evidence of the party robbed, he fhall have full reftitution of his money, goods, and chattels ; or the value of them out of the offender's goods, if has any, by a writ to be granted by the juftices. And this writ of reftitution fhall reach the goods fo stolen, notwithstanding the property of them is endeavoured to be altered by fale in market overte. And, though this may feem fomewhat hard upon the buyer, yet the rule of law is that "Spoliatus debet, ante omnia, "reftitui ;" efpecially when he has used all the diligence in his power to convict the felon. And, fince the cafe is reduced to this hard neceffity, that either the owner or the buyer must sfuffer; 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 tranfaction. Or elfe, fecondly, without fuch writ of reftitution, the party may peaceably retake his goods, wherever he happens to find them, unless a new property be fairly acquired therein. Or, laftly, 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 fatisfaction in damages. But fuch action lies not, before profecution; for so felonies would be made up and healed: and alfo recaption is unlawful, if it be done with intention to fmother or compound the larciny; it then becoming the heinous offence of theft-bote, as was mentioned in a former chapter.

「

It is not uncommon, when a perfon is convicted of a misdemefnor, which principally and more immediately affects some individual, as a battery, imprisonment, or the like, for the court

с 3 Inft. 242.

See Vol. II. pag. 450.

1 Hal. P. C. 543.

f See Vol. III. pag. 4.

1 Hal. P. C. 546.

See pag. 133.

to

to permit the defendant to Speak with the profecutor, before any judgment is pronounced; and, if the profecutor declares himfelf fatisfied, to inflict but a trivial punishment. This is done, to reimburse the prosecutor his expenfes, and make him fome 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 difcretion of the judges in the fuperior courts of record, it ought never to be allowed in local or inferior jurisdictions, such as the quarter-feffions; where profecutions for affaults 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 neceffary to convict the defendant: for by this means, the rules of evidence are intirely fubverted; the profecutor becomes in effect a plaintiff, and yet is suffered to bear witnefs for himself. Nay even a voluntary forgiveness, by the party injured, ought not in true policy to intercept the stroke of justice. This," fays an elegant writer', (who pleads with equal ftrength 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

66

66

may difpenfe with fatisfaction for his private injury, 'he cannot "remove the neceffity of public example. The right of punish

66

ing belongs not to any one individual in particular, but to the "fociety in general, or the fovereign who represents that society: "and a man may renounce his own portion of this right, but "he cannot give up that of others."

i Becc. ch. 46.

CHAPTER THE TWENTY

EIGHTH.

OF THE BENEFIT OF CLERGY.

A

FTER trial and conviction, the judgment of the court regularly follows, unless suspended or arrested by fome intervening circumstance; of which the principal is the benefit of clergy: a title of no small curiofity as well as ufe; and concerning which I shall therefore enquire, 1. Into it's original, and the various mutations which this privilege of clergy has sustained. 2. To what perfons it is to be allowed at this day. 3. In what cafes. 4. The confequences of allowing it.

I. CLERGY, the privilegium clericale, or in common speech the benefit of clergy, had it's original from the pious regard paid by christian princes to the church in it's infant state; and the ill use which the popish ecclefiaftics foon made of that pious regard. The exemptions, which they granted to the church, were principally of two kinds: 1. Exemption of places, confecrated to religious duties, from criminal arrefts, which was the foundation of fanctuaries: 2. Exemption of the persons of clergymen from criminal process before the secular judge in a few particular cafes, which was the true original and meaning of the privilegium clericale.

BUT

BUT the clergy, encreasing in wealth, power, honour, number, and intereft, began foon 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. By their canons therefore and constitutions they endeavoured at, and where they met with eafy princes obtained, a vast extension of these exemptions as well in regard to the crimes themselves, of which the lift became quite univerfal; as in regard to the perfons exempted, among whom were at length comprehended not only every little fubordinate officer belonging to the church or clergy, but even many that were totally laymen.

In England however, although the ufurpations of the pope were very many and grievous, till Henry the eighth entirely exterminated his fupremacy, yet a total exemption of the clergy from fecular jurifdiction could never be thoroughly effected, though often endeavoured by the clergy: and therefore, though the antient privilegium clericale was in fome capital cases, yet it was not univerfally, 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 foon as they were indicted: concerning the allowance of which demand there was for many years a great uncertainty: till at length it was finally fettled in the reign of Henry the fixth, 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 arrefting judgment. This latter way is most usually practiced, as it is more to the fatisfaction of the court to have the crime previously ascertained by confeffion or the verdict of a jury; and also as it is more advantageous to the prisoner himself, who may

* The principal argument, upon which they founded this exemption, was that text of fcripture; "touch not mine anointed, and "do my prophets no harm." (Keilw.181.)

d

See Vol. III. pag. 62.

Keilw. 180.

2 Hal. P. C. 377.

1

poffibly

Book IV. poffibly be acquitted, and so need not the benefit of his clergy

at all.

ORIGINALLY the law was held, that no man fhould be admitted to the privilege of clergy, but fuch as had the habitum et tonfuram clericalem. But in process of time a much wider and more comprehenfive criterion was established: every one that could read (a mark of great learning in those days of ignorance and her fifter fuperftition) being accounted a clerk or clericus, and allowed the benefit of clerkship, though neither initiated in holy orders, nor trimmed with the clerical tonfure. But when learning, by means of the invention of printing, and other concurrent causes, began to be more generally diffeminated 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 fame footing with actual clergy; being subjected to a flight degree of punishment, and not allowed to claim the clerical privilege more than once. Accordingly the ftatute directs, that no perfon, once admitted to the benefit of clergy, fhall be admitted thereto a second time, unless he produces his orders: and, in order to distinguish their perfons, all laymen who are allowed this privilege fhall be burnt with a hot iron in the brawn of the left thumb. This diftinction 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 is held to have been virtually reftored by ftatute 1 Edw.VI. c. 12. which ftatute alfo enacts that lords of parliament, and peers of the realm, may have the benefit of their peerage, equivalent to that of clergy, for the first offence, (although they cannot read, and

2 Hal. P. C. 372. M. Paris. A.D.1259. See Vol. I. pag. 24.

f Hob. 294.