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 (42); but not at the suit of the prisoner (y). 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; and is treated as such by Sir Thomas Smith, two hundred years ago; who accounted such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England (2)." For, as Sir Matthew Hale well observes (a), 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 (b), 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

(y) 2 Hal. P. C. 310.
(*) Smith's Commonw. 1. 3, c. 1.
(a) 2 Hal. P. C. 313.

(b) 1 Lev. 9; T. Jones, 163; St. Tr. x. 416.

(42) By 6 Geo. IV. c. 50, § 60, it is enacted that, from and after the passing of that Act, it shall not be lawful either for the king, or any one on his behalf, or for any party or parties, in any case whatsoever, to commence or prosecute any writ of attaint against any jury or jurors, for the verdict by them given, or against the party or parties who shall have judgment upon such verdict; and that no inquest shall be taken to inquire of the concealments of other inquests, but that all such attaints and inquests shall thenceforth cease, become void, and be utterly abolished.

And by $ 61, it is provided, enacted, and declared, that, notwithstanding any

thing in the Act contained, every person who shall be guilty of the offence of embracery, and every juror who shall wilfully or corruptly consent thereto, shall and may be respectively proceeded against by indictment or information, and be punished by fine and imprisonment, in like manner as every such person and juror might have been before the passing of the Act.

Where A. was fined by commissioners of sewers for refusing to be resworn upon a standing jury, the court of Exchequer discharged the fine; ex parte Taylor, 3 Y. & J. 91.

And see ante, 140, notes (44) and (45).

Conviction may be by confession or by verdict.

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 (c) (43).

If the jury, therefore, find the prisoner not guilty, he is then for ever quit and discharged of the accusation (d); except he be appealed of felony within the time limited by law (44). And upon such his acquittal, or discharge for want [*362] of *prosecution, he shall be immediately set at large, without payment of any fee to the gaoler (e). But if the jury find him guilty (f), 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.

After conviction in cases of

secutor and his witnesses are to be allowed

their expenses, cutor may have

and the prose

restitution of his goods in

When the offender is thus convicted, there are two collafelony, the pro- teral 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 expences 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 recog

cases of larceny.

nizance 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 (45). 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 (46). 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 (g). 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

(g) 3 Inst. 242.

(45) These Acts are now all repealed, and new provisions on the same subject are made by 7 Geo. IV. c. 64, § 22 et seq.; which is set out, ante 295, in notis, and to which the reader is referred.

(46) Repealed by 7 & 8 Geo. IV. c. 27, and by 7 & 8 Geo. IV. c. 29, § 57, "to encourage the prosecution of offenders," it is enacted, that if any person guilty of any felony or misdemeanor under that Act, in stealing, taking, obtaining, or converting, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for any such offence, by, or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative; and the court before whom any such person shall be so convicted, shall have power to award from time to time writs of restitution for the said property, or to order the restitution thereof

in a summary manner: provided, that if it shall appear before any award or order made, that any valuable security shall have been bona fide paid or discharged by some person or body corporate liable to the payment thereof, or, being a negotiable instrument, shall have been bonâ fide taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice, or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, or converted as aforesaid, in such case the court shall not award or order the restitution of such security.

The proviso in this clause seems to be new, and the enacting part of it makes some very important alterations in the law, as the former Act of Parliament extended only to cases of prosecutions of thieves, and not receivers, and did not include property lost by false pretences, or by other misde

meanors.

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 (h), so now upon in[*363] dictments of larceny, this writ of restitution *shall reach the goods so stolen, notwithstanding the property (i) of them is endeavoured to be altered by sale in market overt (k). 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 (1), 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 (m): 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 (n) (47).

In some cases
of misdemeanor,
the defend-
ant is allowed

to speak with
the prosecutor.

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 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 expences, and

(h) Bracton, de Coron. c. 32.
(i) See vol. II. page 450.

(k) 1 Hal. P. C. 543.

(1) See vol. III. page 4.
(m) 1 Hal. P. C. 546.
(n) See page 133.

(47) See arte 133, and notes.

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 discre- [*364] tion 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 this 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 this 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 (0), who pleads with equal strength for the certainty as for the lenity of punishment, "may be an act of goodnature 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."