"of the realm of England"." For, as sir Matthew Hale well observes, it would be a most unhappy case for the judge himself, if the prisoner's fate depended upon his directions; unhappy also for the prisoner; for, if the judge's opinion must rule the verdict, the trial by jury would be useless. 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. (19.) If the jury therefore find the prisoner not guilty, he is then for ever 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 [362] shall be immediately set at large without payment of any fee to the gaoler. (20) 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. * Smith's Commonw. 1.3. c. 1. a 2 Hal. P.C. 313. e Stat. 14 Geo. III. c. 20. f In the Roman republic, when the b 1 Lev. 9. T. Jones, 163. St. Tr. prisoner was convicted of any capital X. 416. c2 Hawk. P. C. c. 47. § 12. The civil law in such case only discharges him from the same accuser, but not from the same accusation. Ff. 48. 2. 7. § 2. offence by his judges, the form of pro- 66 (19) There have been a few cases in which, the matter being really of a civil nature, such as the liability to repair a road or bridge, though the form of the proceeding was criminal, the court has in fact, though not in form, granted a new trial after a verdict of acquittal. The mode of doing this has been by staying the entry of the judgment upon the verdict, till the prosecutor has preferred, and tried a second indictment; by which means the defendant is prevented from pleading the former acquittal in bar. These cases have been few, and granted only under special circumstances. See them referred to in R. v. Wandsworth, 1 B. & A.63. (20) But in cases of misdemesnor he is compelled to the payment of certain fees to the officers of the court, the justice of which is not very obvious. 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 larciny 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 [for the crown,] 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. (21) 2. On a conviction of larciny 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 larciny, by the evidence of the party robbed, [the owner of the goods, or any other by their procurement,] he shall have full restitution of his money, goods, and chattels; or the [363] 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 larciny. For instance, as formerly upon appeals, so now upon indictments of larciny, this writ of restitution shall reach the goods so stolen, notwithstanding (21) It is much to be regretted that these salutary acts are not extended to cases of misdemesnor, in which very often equal hardship to the individual, and equal benefit to the public, arise from the prosecution as in cases of felony. One of the evil consequences is mentioned at p. 364. 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. (22) 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 larciny; 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 misdemesnor, which principally and more immediately affects some individual, as a battery, imprisonment, or the like, for iSee Vol. II. pag. 450. * 1 Hal. P. C. 543. 1 See Vol. III. pag. 4. m 1 Hal. P. C. 546. (22) It should seem that the sale in market overt to a bona fide purchaser, between the original taking and the attainder of the felon, does operate a sort of conditional change of the property; for the owner can only sue for the value of the goods any person in possession of them, at or after the conviction; in the interval they are not the property of the original owner, but of the vendee; and if that vendee dispose of them before attainder, though with notice of the felony, he is not liable. Horwood v. Smith, 2T.R.750. Nor does the statute extend to goods obtained from the owner merely by fraud, without larciny. the court to permit the defendant to speak with the prosecutor [364] 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 these 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 these 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 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 66 up that of others." 66 66 Becc. ch.46. CHAPTER THE TWENTY-EIGHTH. OF THE BENEFIT OF CLERGY. AFTER 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 enquire: 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.. 1. 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; 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, con-secrated 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 the clergy increasing in wealth, power, honour, number, and interest, began soon to set up for themselves and 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 divinoa_ "anointed, and do my prophets no "harm." (Keilw. 181.) a The principal argument upon which they founded this exemption was that text of Scripture; "Touch not mine |