OF TRIAL AND CONVICTION. 10 Mod. 194. in cases of indictment for perjury two witnesses are required; but in almost every other accusation one positive witness is sufficient. Lord Preston's case, 1690, The testimony of witnesses well acquainted with the party's St.Tr.4, 4,453. handwriting, that they believe the paper in question to have Francin's case, been written by him, is evidence to be left to a jury. 1716, St. Tr. 6, 69. 2 Hal. P. C. 290. The verdict. 300. All presumptive evidence should be cautiously admitted, for the law holds that it is better that ten guilty persons escape than that one innocent should suffer. And Sir M. Hale lays down two rules,—never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and never to convict a person of murder or manslaughter, till at least the body be found dead; on account of two instances he mentions, where persons were executed for the murder of others, who were then alive, but missing. By 1 Ann. st. 2, c. 9, in cases of treason and felony all witnesses for the prisoner are to be examined upon oath, in the same manner as the witnesses against him. When the evidence on both sides is closed, and indeed when any evidence has been given, the jury cannot be discharged, unless in cases of evident necessity, till they have given in their verdict, but are to consider of it, and deliver it 2 Hal. P. C. in, with the same forms as upon civil causes, only they cannot in a criminal case which touches life or member, give a privy 2 Hawk. P. C. verdict. But the judges may adjourn, while the jury are withdrawn to confer, and return to receive the verdict in open And such public or open verdict may be either gene4 St. Tr. 231. ral, guilty, or not guilty, or special, setting forth all the circum 439. 3 St. Tr. 731. 455. 485. court. stances 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 law, and therefore choose to leave it to the decision of the court, though they have an unquestionable right of determining upon all the circumstances, and finding a general verdict, if they think proper. Where, contrary to evidence, the jury find the prisoner guilty, a new trial will be granted by the court of queen's bench, but not under any circumstances where the prisoner is acquitted, when he is immediately to be 2 Hawk, P. C. discharged, without any fee to the gaoler. If the jury find him guilty (i) he is then said to be convicted of the crime 442. Conviction. (i) 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; whereof he stands indicted, which conviction may accrue 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, or even upon an acquittal, where there was a reasonable ground to prosecute, and in fact a bond fide prosecution, for any grand or petit larceny or other felony, the prosecutor is allowed out of the county stock, the reasonable expenses of prosecution, and if the prosecutor be poor, a compensation for his trouble and loss of time. And all persons appearing upon recognizance or subpœna to give evidence, whether any indictment be preferred or not, and as well without conviction as with it, are entitled to be paid their charges, with a further allowance, if poor, for their trouble and loss of time (j). And on a conviction of larceny the prosecutor shall have restitution of his goods (k). CHAPTER XXVIII OF THE BENEFIT OF CLERGY. clergy. AFTER trial and conviction the judgment of the court Benefit of regularly follows, unless suspended or arrested by some intervening circumstance; of which the principal was formerly the benefit of clergy, now abolished (a). not that he was guilty, but that he had not been enough upon his guard: "“parum cavisse videtur." (Festus 325.)-Original note to Bl. Com. v. 4, p. 362. (j) By 7 Geo. 4, c. 64, s. 22, courts may order payment of the expenses of prosecutions in all cases of felony, and an allowance to all persons attending on recognizance, whether a bill is preferred or not. By s. 23, courts may order payment of expenses of prosecution in certain cases of misdemeanor. By s. 24, the order for payment is to be made out by the clerk of assize, or clerk of the peace, and paid by county treasurer; and s. 25 directs how the expenses are to be paid in places not contributing to the county rate. By s. 26, the quarter sessions are to make regulations for payment of costs and expenses. By ss. 28 and 29, courts may order compensation to those who have been active in the apprehension of certain offenders. Such orders to be paid by the sheriff, who may obtain immediate repayment on application to the Treasury; and by s. 30, if any man is killed in attempting to take certain offenders, the court may order compensation to his family. (k) By 7 & 8 Geo. 4, c. 29, s. 57, the owner of stolen property prosecuting thief or receiver to conviction, shall have restitution of his property. (a) Benefit of clergy with respect to persons convicted of felony was abolished by 7 & 8 Geo. 4, c. 28, s. 6, but the act does not prevent the joinder in any indictment of Was at first granted by the crown to the church as an exemption. 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 (b). The exemptions which they granted to the church, were principally of two kinds: exemptions of places consecrated to religious duties from criminal arrests, which was the foundation of sanc any counts which might have been joined before the act. By s. 7. no person shall suffer death unless it be for some felony which was excluded from the benefit of clergy before on the first day of the session of parliament (1827), or which had been, or should be made punishable with death by some statute passed after that day. And by s. 8, every person convicted of any felony not punishable with death, shall be punished in the manner prescribed by the statute relating to such felony; and every person convicted of any felony, for which no punishment may be specially provided, shall be punished under this act, and liable to transportation for seven years, or imprisonment for not exceeding two years, and, if a male, to be once, twice, or thrice publicly whipped in addition. By 7 Wm. 4 and 1 Vict. c. 91, any person convicted of any of the offences therein mentioned, shall not suffer death, or have sentence of death awarded against him, but may be transported for life, or fifteen years, or imprisoned for not exceeding three years. By s. 2, in awarding the punishment of imprisonment, the court may direct it to be with or without hard labour, but the period of solitary confinement is limited to one month at a time, or three months in one year. And see the acts 7 Wm. 4 and 1 Vict. c. 84, abolishing the punishment of death in forgery; c. 85, amending the laws with respect to offences against the person; c. 86, amending the laws relating to burglary and stealing in a dwelling-house; c. 87, amending the laws relating to robbery and stealing from the person; c. 88, amending certain acts relating to piracy; c. 89, amending the laws relating to burning or destroying buildings or ships, and c. 90, amending the law relative to offences punishable with transportation for life. (5) The Latin clergy, who erected their tribunal on the ruins of the civil and the common law, have modestly accepted as the gift of Constantine, the independent jurisdiction, which was the fruit of time, of accident, and of their own industry. But the liberality of the Christian emperors had actually endowed them with some legal prerogatives which secured and dignified the sacerdotal character. Under a despotic government, the bishops alone enjoyed and asserted the inestimable privilege of being tried only by their peers; and even in a capital accusation, a synod of their brethren were the sole judges of their guilt or innocence. Such a tribunal, unless it was inflamed by personal resentment or religious discord, might be favourable or even partial to the sacerdotal order; but Constantine was satisfied that secret impunity would be less pernicious than public scandal, and the Nicene council was edified by his public declaration, that if he surprised a bishop in the act of adultery, he would cast his imperial mantle over the episcopal sinner. The domestic jurisdiction of the bishops was at once a privilege and a restraint of the ecclesiastical order, whose civil causes were decently withdrawn from the cognizance of a secular judge. Their venial offences were not exposed to the shame of a public trial or punishment; and the gentle correction which the tenderness of youth may endure from its parents or instructors, was inflicted by the temperate severity of the bishops. But if the clergy were guilty of any crime which could not be sufficiently expiated by their degradation from an honourable and beneficial profession, the Roman magistrate drew the sword of justice without any regard to ecclesiastical immunities.— Gibbon, R. E. vol. 2, p. 466. tuaries (c); and exemptions 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 (d). But the clergy increasing in wealth, power and interest soon began to claim for themselves, as their inherent right, jure divino (e), that which they at first obtained by the favour of the civil government. By their canons, therefore, and constitutions, they aimed at, and where they met with easy princes, obtained a vast extension of these exemptions, as well in regard to the crimes themselves, 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 many that were totally laymen. In England, however, though often attempted, a total exemption of the clergy was never completely effected; and therefore, though the ancient privilegium clericale was allowed in some capital cases, yet it was not universally so; and where permitted it was at first customary for the bishop or ordinary to remand (c) The ancient privilege of sanctuary was transferred to the christian temples, and extended by the liberal piety of the younger Theodosius to the precincts of consecrated ground. The fugitive, and even guilty suppliants, were permitted to implore, either the justice or the mercy of the Deity and his ministers.-See Cod. Theod. lib. 9, tit. 45, leg. 4. In the works of Fra. Paolo, (tom. 4, p. 192, &c.) there is an excellent discourse on the origin, claims, abuses, and limits of sanctuaries. He justly observes, that ancient Greece might perhaps contain fifteen or twenty azyla, or sanctuaries, a number which may be found in Italy within the walls of a single city.-Gibbon, R. E. vol. 2, p. 486, and note. The altars were the sanctuaries resorted to by the ancients for shelter and protection. The reader will remember Virgil's description of the altar at which Hecuba and her daughters sought refuge during the destruction of Troy: Edibus in mediis, nudoque sub ætheris axe, Condensæ, et Divûm amplexæ simulacra tenebant. And Hecuba's address to the aged monarch Priam when she beheld him "clad in youthful arms but trembling with years :" Huc tandem concede: hæc ara tuebitur omnes; Aut moriere simul. Sic ore effata, recepit Ad sese, et sacra longævum in sede locavit. The privilege of sanctuary was abolished by 21 Jac. 1, c. 28. En. lib. 2, 512. (d) Clerks in orders were placed on the same footing with other persons as to felonies by 6 Geo. 4, c. 25, s. 3. (e) The principal argument upon which they founded this exemption, was that text of scripture, "touch not mine anointed, and do my prophets no harm."-Keilw. 181, orig. note to B. C. vol. 4, p. 365. 2 Hal. P. C. 372. M. Paris, 1259. 2 Hal. P. C. 330. Ibid. 341. 529. his clerks to be remitted out of the queen's courts as soon as away 1 Hal. P. C. larceny in a dwelling-house, or privately from the person, his aiders and abettors were not excluded, the law having declared that such statutes should be taken literally. Foster, 356, 357. |