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 larceny or other felony, 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 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 (175) 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 (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 deli cate; not that he was guilty, but that he had not been enough upon his guard; "parum cavisse videtur." (Festus. 325.) (g) 3 Inst. 242. (175) For if the goods be tion on the conviction of the obtained by fraud merely, the offender. owner is not entitled to restitu # Parker v. Patrick, 5 T. R. 175. [363 ] 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 great measure conformable to the law of appeals, it has therefore in practice superseded the use of appeals of larceny. For instance: as formerly upon appeals, so now upon indictments of larceny, this writ of restitution shall reach the goods so stolen, notwithstanding the property' of them is endeavoured to be altered by sale in market overt*(176). And, though this may seem somewhat hard upon the buyer, yet the rule of law is that "spoliatus debet, ante omnia, res" titui;" 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', 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. (h) Bracton, de coron. c. 32. (k) 1 Hal. P. C. 543. (176) And the owner may maintain an action of trover for them, against any persons who had possession of them at the time of the conviction of the thief, or afterwards; but not (i) See vol. II. page 450. (1) See vol. III. page 4. against one who, in the intermediate time between the felony and the conviction, obtained possession of them by sale in market overt, and parted with them. * Horwood v. Smith, 2 T. R. 750. 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 larceny; it then becoming the heinous offence of theft-bote, as was mentioned in a former chapter ". dem anors of al low ng the delend ant to speak with the prosecutor, cen sured. [364] It is not uncommon, when a person is convicted of a mis- The custom in mtsdemesnor, 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 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 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 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 "6 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." (m) 1 Hal. P. C. 546. (n) See page 133. (0) Becc. ch. 46. CHAPTER THE TWENTY-EIGHTH. OF THE BENEFIT OF CLERGY. 234 Judgment is sometimes arrested by benefit of clergy. from criminal pro cases to the clergy, A FTER 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 235 This originated from the exemptions speech the benefit of clergy, had its original from the pious cess granted in some regard paid by christian princes to the church in its infaut 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 [366] BUT the clergy, increasing in wealth, power, honour, num- and afterwards claimed by them in ber, and interest, began soon to set up for themselves: and iles; 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 easy princes obtained, a vast extension of these exemptions: as well in regard to the crimes themselves, of which the list became quite universal; 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 supremacy, yet a total exemption of the clergy from secular jurisdiction could never be thoroughly effected, though often endeavoured by the clergy: and therefore, though the antient 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": 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 later way is most usually practised, as it is more to the satisfaction of the court to have the crime previously ascertained by confession of 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 (a) The principal argument, upon which they founded this exemption, was that text of Scripture; " touch not mine anointed, and do my pro"phets no harm." (Keilw. 181.) (b) See vol. III. page 62. (c) Keilw. 180. (d) 2 Hal. P. C. 377. either by way of de aer conviction in arrest of judgment. clinatory plea, or after |