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the question may be reserved for the consideration of the justices of either bench and barons of the Exchequer; who are required to meet during term, and in open court, which thence is termed the court for the consideration of crown cases reserved, to deliver their judgment, reversing, affirming, or amending that already given, or where the conviction is affirmed and no judgment has been already given, ordering when and where it shall be given. The reservation of a question in this way does not interfere with the course of the trial, for it is only in the event of a conviction that it becomes necessary to reserve the point. Nor does it clash, on the other hand, with the corrective jurisdiction of the courts of appeal; for the judges who determine these reserved questions merely assist with their opinion, the determination of the court below, in whose discretion is exclusively vested the reservation of the question, and to which the judgment, if the conviction be affirmed, is wholly left.

When the evidence for the prosecution is closed, the counsel for the crown, in the event of the prisoner expressing his intention to adduce evidence, addresses the jury. The case for the defence is then opened, and the evidence adduced, the counsel for the prisoner recapitulating its effect to the jury at the close; and the counsel for the crown then replies. If the prisoner does not intend to adduce evidence, his counsel is heard immediately on the close of the evidence for the prosecution; the counsel for the crown rarely, in such cases, replying. The judge next sums up the whole to the jury; who cannot then 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. And such 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 the 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.

Formerly, if the verdict were notoriously wrong, the jurors might have been punished, and the verdict set aside by writ of attaint at the suit of the crown; but not at the suit of the prisoner. But the practice, which at one time prevailed, 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, nearly three hundred years ago, who accounted "such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England."

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If the jury therefore find the prisoner not guilty, he is then for ever quit and discharged of the accusation. And upon such his acquittal, or discharge for want of prosecution, he shall be immediately set at large. 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.

If a prisoner, charged with a felony not punishable with death, has been before convicted of felony, the indictment generally charges him with having committed the offence after having been previously convicted of felony; the legislature having, in order to secure the more exemplary punishment of such offenders, conferred powers on the courts to pass a sentence of much greater severity than that which may be imposed for the single offence. But although a prisoner is so charged, the jury are only directed to inquire whether he is guilty or not guilty of the particular crime there alleged; and it is only when they have found the prisoner guilty of the subsequent offence, that they are then, if the prisoner disputes it, further informed of, or charged to inquire concerning the previous conviction.

When the offender is convicted, there are two collateral circumstances that immediately arise, the first relating to the costs of the prosecution; the second, in cases of larceny, to the restitution of the stolen property.

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 larceny or other felony, the reasonable expenses of the prosecutor and witnesses are to be allowed. These include the expenses incurred in their attendance before the magistrate; which latter may be allowed, even if no bill of indictment be preferred. The same rule prevails in prosecutions for those misdemeanors which partake of the nature of crimes. These costs when allowed are paid, in the first place, by the treasurer of the county, to whom the amount is repaid out of the Consolidated Fund.

2. By the common law there was no restitution of goods upon an indictment, because it is at the suit of the crown only; and therefore it was provided by 21 Hen. VIII. c. 11, which has been reenacted and extended by more modern statutes, that if any person

were convicted of larceny, by the evidence of the party robbed, he should have full restitution of his money, goods, and chattels; or the value of them out of the offender's goods, if he had any, by a writ to be granted by the justices. Upon which it is held that upon indictments of larceny, the writ of restitution reaches the goods so stolen, notwithstanding 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 felon to condign punishment, to the right of the buyer, whose merit is only negative, that he has been guilty of no unfair transaction. Accordingly, it is now usual for the court, upon the conviction of the offender to order, without any writ, the immediate restitution of the stolen property to be made to the several prosecutors. But such restitution cannot be directed in the case of any valuable security bonâ fide paid or discharged by any person liable to the payment thereof, or of any negotiable instrument bona fide taken for a valuable consideration, without notice, or without any reasonable cause to suspect that the same had been stolen or illegally obtained. Without any such writ of restitution, however, the party whose property has been stolen may peaceably retake his goods, wherever he happens to find them; or may bring his action of trover 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 larceny; it then becoming the heinous offence of theft bote, as was mentioned in a former chapter.

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 reimburse the prosecutor his expenses, and make him some private amends, without the trouble and circuity of a civil action. But it is a dangerous practice and though it may be intrusted to the discretion of the judges in the superior courts, it ought never to be allowed in local or inferior jurisdictions, such as the quarter-sessions, where prosecutions for assaults are too frequently commenced, rather for private lucre than for the great ends of public justice. Even a voluntary

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forgiveness, by the party injured, ought not in true policy to intercept the stroke of justice. This," says the Marquis Beccaria, 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 can"not remove the necessity of public example. The right of punish

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ing 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 JUDGMENT AND ITS CONSEQUENCES.

Arrest of judgment-Pardon-Judgments generally-Fines-Consequences of judgment.-I. Attainder-forfeiture of lands—in treason-in felonyforfeiture of goods.-II. Corruption of blood.

THE next stage of criminal prosecution, after trial and conviction, is that of judgment. For when, upon a charge of felony, the jury have brought in their verdict of guilty, in the presence of the prisoner, he is either immediately, or at a convenient time soon after, asked by the court, if he has anything to offer why judgment should not be awarded against him.* Where the defendant has been found guilty of a misdemeanor, the trial of which may, and sometimes does, happen in his absence, after he has once appeared, a capias may be awarded to bring him in to receive judgment; and if he absconds, he may be prosecuted to outlawry; or if he is under recognizances to appear, and makes default, the recognizances may be estreated, and a warrant issued for his apprehension.

But whenever the defendant appears in person, he may at this period, as well as at his arraignment, offer any exceptions to the indictment, in arrest or stay of judgment. And if his objections be valid; if, for instance, he has been found guilty of what does not constitute an offence in point of law, the judgment will be arrested, and the whole proceedings be set aside. But he may be indicted again.

* It was at this point of the proceedings that the prisoner was entitled to pray his clergy; the nature of which privilege has been already referred to (ante p. 514, and will be found fully explained in the Appendix.

A pardon also, as has been before said, may be pleaded in arrest of judgment, and it has the same advantage when pleaded here, as when pleaded upon arraignment; viz., the saving the attainder, and of course the corruption of blood.

If all these resources fail, the court must pronounce that judgment which the law has annexed to the crime. Of these some are capital, which extend to the life of the offender, and consist generally in being hanged by the neck till dead; though in very atrocious crimes other circumstances of terror, pain, or disgrace, are superadded as in high treason, being drawn or dragged to the place of execution; beheading and quartering; and in murder, burial within the precincts of the prison. Some punishments consist in loss of liberty, by perpetual or temporary penal servitude or imprisonment. Some extend to confiscation, by forfeiture of lands, or movables, or both, or of the profits or lands for life: others induce a disability of holding offices or employments, being heirs, executors, and the like. Some are merely pecuniary, by stated or discretionary fines: and lastly, there are others, that consist principally in their ignominy, though most of them are mixed with some degree of corporal pain; such as whipping and hard labour. The latter for almost all offences now accompanies a sentence of imprisonment. Solitary confinement may also be ordered in almost every case of felony, and in many of the more aggravated misdemeanors; but can in no case exceed in duration one month at a time, or three months in the space of one year. There were formerly some offences, which occasioned a mutilation or dismembering, by cutting off the hand or ears: and others which fixed a lasting stigma on the offender, by slitting the nostrils, or branding in the hand or cheek; but all these are now unknown to the law. The pillory has long ceased to be a punishment; fine and imprisonment, or both, having been substituted for it in cases where it was the only punishment to be inflicted. The stocks and the duckingstool have long been disused.

It is a special feature of our law, however, and deserving of notice, that the species, though not always the quantity or degree, of punishment is ascertained for every offence. If judgments were to be the private opinions of the judge, men would then be slaves to their magistrates; and would live in society, without knowing exactly the conditions and obligations which it lays them under. Where an established penalty is annexed to crimes, the criminal may read their certain consequence in that law; which ought to be the unvaried rule, as it is the inflexible judge, of his actions.

The discretionary fines and discretionary length of imprisonment, which our courts are enabled to impose, may seem an exception to this rule. But the general nature of the punishment, viz., by fine

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