from being sacrificed to fictitious conspiracies, which have been the engines of profligate and crafty politicians in all ages.

Secondly, though from the reversal of Colonel Sidney's attainder by act of parliament, in 1689, it may be collected that the mere similitude of hand-writing in two papers shown to a jury, without other concurrent testimony, is no evidence that both were written by the same person; yet undoubtedly the testimony of witnesses, well acquainted with the party's hand, that they believe the paper in question to have been written by him, is evidence to be left to a jury.

Thirdly, by statute 21 Jac. I. c. 27, a mother of a bastard child, concealing its death, must prove by one witness that the child was born dead; otherwise such concealment shall be evidence of her having murdered it.

Fourthly, all presumptive evidence of felony should be admitted cautiously; for the law holds that it is better that ten guilty persons escape than that one innocent suffer. And Sir Matthew Hale in particular lays down two rules most prudent and necessary to be observed: 1. 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, 2. Never to convict any 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.

Lastly, it was an ancient and commonly-received practice (derived from the civil law, and which also to this day obtains in the kingdom of France) that as counsel was not allowed to any prisoner accused of a capital crime, so neither should he be suffered to exculpate himself by the testimony of any witnesses. At length, by statute 7 W. III. c. 3, the same measure of justice was established throughout all the realm in cases of treason within the act; and it was afterwards declared, by statute 1 Anne, st. 2, c. 9, that in all cases of treason and felony all witnesses for the prisoner should be examined upon oath, in like manner as the witnesses against him.

When the evidence on both sides is closed, and indeed when any evidence hath been given, the jury cannot be discharged (unless in case 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. But the judges may adjourn while the jury are withdrawn to confer, and return to receive the verdict in open court. And such public or open 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 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: and if their verdict be notoriously wrong they may be punished and the verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner. But the practice heretofore in use 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. Yet in many instances where contrary to evidence, the jury have found the prisoner guilty, their verdict hath been mercifully set aside and a new trial granted by the court of king's bench: for in such case, as hath been said, it cannot be set right by attaint. But there hath yet been no instance of granting a new trial where the prisoner was acquitted upon the first.

If the jury therefore find the prisoner not guilty, he is then forever quit and discharged of the accusation, except he be appealed of felony within the time limited by law. And upon such his acquittal or discharge for want of prosecution, he shall be immediately set at large without payment of any fee to the gaolor. 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 expenses 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 further allowance (if poor) for their trouble and loss of time. 2. On a conviction of larceny 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, 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 in 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 endeavored 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. 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. 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.

Chapter XXVIII.

OF THE BENEFIT OF CLERGY.
365-375.

This chapter is omitted, as Benefit of Clergy is obsolete. It was abolished in England by statute 7 and 8 Geo. IV. ch. 23. It was a privilege in the nature of an exemption from capital punishment, anciently allowed in England to criminals in holy orders, afterwards extended to the laity, as a mode of mitigating the severity of the penal law. It was probably never allowed in cases of high treason, or of misdemeanour.

Chapter XXIX.

OF JUDGMENT AND ITS CONSEQUENCES.

375-390.

When, upon a capital charge, the jury have brought in their verdict, 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. And in case the defendant be found guilty of a misdemeanour (the trial of which may, and does usually, happen in his absence, after he has once appeared), a capias is awarded and issued to bring him in to receive his judgment; and if he absconds, he may be prosecuted even to outlawry. But whenever he appears in person, upon either a capital or inferior conviction, he may at this period, as well as at his arraignment, offer any exceptions to the indictment in arrest or stay of judgment; as for want of sufficient certainty in setting forth either the person, the time, the place, or the offence. And if the objections be valid, the whole proceedings shall be set aside; but the party may be indicted again. And we may take notice: 1: That none of the statutes of jeofails, for amendment of errors, extend to indictments or proceedings in criminal cases; and therefore a defective indictment is not aided by a verdict, as defective pleadings in civil cases are. 2. That in favor of life great strictness has at all times been observed in every point of an indictment.

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; which nothing can restore but parliament, when a pardon is not pleaded till after

sentence.

Praying the benefit of clergy may also be ranked among the motions in arrest of judgment.

If all these resources fail, the court must pronounce that judgment which the law hath annexed to the crime, and which hath been constantly mentioned, together with the crime itself, in some or other of the former chapters.

Attainder.

When sentence of death, the most terrible and highest judgment in the laws of England, is pronounced, the immediate inseparable consequence from the common law is attainder. For when it is now clear beyond all dispute that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the law sets a note of infamy upon him, puts him out of its protection, and takes no fur

ther care of him than barely to see him executed. He is then called attaint, attinctus, stained or blackened. He is no longer of any credit or reputation, he cannot be a witness in any court; neither is he capable of performing the functions of another man; for, by an anticipation of his punishment, he is already dead in law. This is after judgment; for there is a great difference between a man convicted and attainted: though they are frequently through inaccuracy confounded together. After conviction only a man is liable to none of these disabilities; for there is still in contemplation of law a possibility of his innocence. Something may be offered in arrest of judgment; the indictment may be erroneous, which will render his guilt uncertain, and thereupon the present conviction may be quashed; he may obtain a pardon or be allowed the benefit of clergy; both which suppose some latent sparks of merit which plead in extenuation of his fault. But when judgment is once pronounced, both law and fact conspire to prove him completely guilty; and there is not the remotest possibility left of anything to be said in his favour. Upon judgment, therefore, of death, and not before, the attainder of a criminal commences: or upon such circumstances as are equivalent to judgment of death; as judgment of outlawry on a capital crime pronounced for absconding or fleeing from justice, which tacitly confesses the guilt. And therefore, either upon judgment of outlawry, or of death, for treason or felony, a man shall be said to be attainted.

Consequences of Attainder. Forfeiture.

The consequence of attainder are forfeiture and corruption of blood.

I. Forfeiture is two-fold, of real and personal estates. First, as to real estates: By attainder in high treason a man forfeits to the king all his lands and tenements of inheritance, whether feesimple or fee-tail, and all his rights of entry on lands and tenements which he had at the time of the offence committed, or at any time afterwards, to be forever vested in the crown; and also the profits of all lands and tenements which he had in his own right for life or years, so long as such interest shall subsist. This forfeiture relates backwards to the time of the treason committed, so as to avoid all intermediate sales and encumbrances, but not those before the fact.

In petit treason and felony, the offender also forfeits all his chattel interests absolutely, and the profits of all estates of freehold during life: and, after his death, all his lands and tenements, in fee-simple, (but not those in tail) to the crown, for a very short period of time; for the king shall have them for a year and a day, and may commit therein what waste he pleases, which is called