the particulaar crime 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 for any larceny or other felony, the reasonable expenses of the prosecutor and witnesses are 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.

No costs or expenses were allowed to an accused or his witnesses out of the public purse, until quite recently; notwithstanding repeated complaints by prisoners, that they were unable by reason of poverty to call witnesses on their behalf. This injustice has now been remedied. In all cases where the accused calls witnesses before the magistrate and their evidence is reduced to writing, and made part of the depositions, and they are bound by recognizance to appear at the trial, and do so appear, the court has the same power to order payment to them for their expenses and loss of time as in the case of witnesses for the prosecution.

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 re-enacted and extended by modern statutes, that if any person was 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. Upon which it is held that upon indictments of larceny, a 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. The case being 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 punishment, to the right of the buyer, whose merit is only negative, that he has been guilty of no unfair transaction. And it is therefore usual for the court upon the conviction of the offender to order the immediate restitution of the stolen property to the prosecutor. 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 bonâ fide taken for a valuable consideration, without any reasonable cause to suspect that the same has been stolen. Without any 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 an action and recover 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 offence of theftbote, mentioned in a former chapter. The hardship on the innocent buyer may be mitigated in cases where the convict is possessed of means, by the power conferred on the court of ordering a sum not exceeding 1007. to be paid as compensation to any person who has suffered loss through the felony.

It is not uncommon, when a person is convicted of a misdemeanor immediately affecting the 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. For even a 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

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"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."

CHAPTER XXIX.

OF JUDGMENT AND ITS CONSEQUENCES.

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 capius 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 where 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 objection 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. A pardon also may be pleaded in arrest of judgment.

If these resources fail, the court must pronounce that judgment which the law has annexed to the crime. Of these some are capital, and consist in being hanged by the neck till dead. Other circumstances of terror, pain, or disgrace, were formerly superadded, as in high treason, being drawn to the place of

* It was at this point of the proceedings that the prisoner was entitled to pray his clergy.

execution, beheaded and quartered. In treason and murder, burial within the precincts of the prison is part of the sentence. Some punishments consists in loss of liberty, by perpetual or temporal penal servitude or imprisonment; and some induce a disability of holding offices or employments. Thus any person convicted of treason or felony and sentenced to death, penal servitude, or an mprisonment, with hard labour, exceeding twelve months, thereby forfeits any military, naval, or civil office he •holds under the crown, or any other public employment he had, or any ecclesiastical benefice, or any office or emolument in any university or college which he holds, or any pension or superannuation allowance he is entitled to, unless he receives a free pardon within two months of his conviction, or before the vacancy, if it be an office, is filled up. He remains, until he shall have suffered his punishment or been pardoned, incapable of holding any public office or benefice, or of exercising any parliamentary or municipal suffrage. Some punishments are merely pecuniary, by stated or discretionary fines; and 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. Flogging, it will be recollected, may be ordered in cases of robbery with violence.

In almost all cases in which a criminal has been previously convicted of a similar offence, the punishment is usually much more severe; and in all cases in which a criminal is twice convicted, though it may be of different crimes, he may be subjected to the supervision of the police, for a period not exceeding seven years. This compels him to notify his residence, and every change of residence, to the chief officer of police of the district, and to report himself every month to that officer, or to such other person as he may direct; otherwise he may be taken up, and imprisoned for a year.

There were formerly some offences which involved mutilation or branding, but all these are now unknown to the law. The pillory has long ceased to be a punishment, fine and imprison

ment, or both, having been substituted for it in cases where it was the only punishment to be inflicted. The stocks and ducking-stool have long been disused; the whole tendency of modern legislation being to obtain, if possible, the reformation of the offender.

For this purpose Reformatory Schools have been established; to which juvenile offenders, that is, convicted prisoners who appear to be less than sixteen years of age, may be sent, if necessary, for a period of five years, their parents, if able, being obliged to contribute to their support; the managers of these institutions having power, after a certain time, to grant licences permitting the offender to live with a trustworthy and respectable person, and afterwards, with his own consent, to apprentice him to some trade or calling or service, so as to enable him, if so disposed, to return to and become a useful member of society; benefits which he may forfeit by a disregard of the regulations of the school.

It is a special feature of the law of England, 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 be slaves to the magistrates. Where an established penalty is annexed to crime the criminal may read its 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 may be imposed, may seem an exception to this rule. But the discretion of the court is regulated by law. The Bill of Rights expressly declares that excessive fines ought not to be imposed, nor cruel and unusual punishments inflicted. The same statute adds that all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void. And the reasonableness of fines in criminal cases is also regulated by Magna Charta, c. 14, that " no man shall have a larger amercement imposed upon "him than his circumstances or personai estate will bear; saving "to the landholder his contenement, or land; to the trader his " merchandize; and to the countryman his wainage, or team "and instruments of husbandry."

Formerly, when sentence of death was pronounced, the criminal was said to be attainted, attinctus, stained, or blackened: