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was due to his efforts in finally suppressing the horrible fanaticism which had seized upon the public mind. Upon the organization of the courts of the province, in December, 1692, Danforth was chosen one of the judges of the superior court, and of the fifteen counsellors present, he received twelve votes. Notwithstanding this, however, the governor hesitated in giving him a commission to the place of judge, until some time after he had commissioned his associates. He remained upon the bench of the superior court from 1692, till his death, which took place November 5, 1699, at the advanced age of 77. He had thus, it will be perceived, been almost cotemporary with the existence and growth of the colony itself. During a large portion of his life he had taken a leading part in the administration of her affairs, and although he neither appears to have had the advantages of a public education, nor even to have pursued any regular profession in life, he proved himself to be an able magistrate, possessing great firmness of mind, as well as great prudence in the management of public affairs. He probably brought to the bench no other qualifications as a judge than disciplined common sense, extensive experience, and habits of observation and judgment, which must have resulted from a long life of active public duties. But in the absence of the necessity of judicial learning, he was adequate to the task of dispensing justice satisfactorily to the people, and left behind him a fair fame, and a general respect for his memory. So far as he had any pursuits beyond the performance of his public duties, they seem to have been those of agriculture. Judge Sewall, who had long known him intimately, sums up his character in the following words: “he has been a magistrate forty years, was a very good husbandman, a very good christian, and a good counsellor.” And chief justice Stoughton, in an address to the grand jury, in the language of J. Sewall's Journal, “takes great notice of judge Danforth, saith he was a lover of religion, and a religious man, the oldest servant of the country, and had zeal against vice.” Judge Danforth had a numerous family of children. Two of his sons died in his life time, and his posterity survived only in the female branches of his family. E. W.
ART. VI.-HISTORY, NATURE, AND INCIDENTS OF FELONY AND BENEFIT OF CLERGY.
[In this country, we can very well dispense with the use of the term felony, in the definition or description of crimes; but we cannot so safely be ignorant of its meaning; inasmuch as it is used descriptively in the constitution and laws of the United States, and in some of the state constitutions. The constitution of the United States provides for the delivery, by the authorities of one state to those of another, of persons charged in the latter with treason, felony, or other crime; and the constitution of Massachusetts provides that no citizen shall be declared guilty of treason or felony, by the legislature. In order, therefore, to contribute somewhat to a knowledge of this very difficult subject, we propose to republish in the form of an article, Mr. Bentham's chapter on felony, from the Rationale of Punishment, (book v, chap. iv), which, we believe, has never been published in this country.]
FELoNY is a word of which the signification seems to have undergone various revolutions. It seems at first to have been vaguely applied to a very extensive mode of delinquency, or rather, for delinquency in general: at a time when the laws scarce knew of any other species of delinquency cognizable by fixed rules, than the breach of a political engagement, and when all political engagements were comprised in one, that of feudal obligation. Upon feudal principles, every thing that was possessed by a subject, and was considered as a permanent source of property and power, was considered as a gift, by the acceptance of which, the acquirer contracted a loose and indefinite kind of engagement, the nature of which was never accurately explained, but was understood to be to this effect: that the acceptor should render certain stipulated services to the donor, and should in general refrain from every thing that was prejudicial to his interests. It was this principle of subjection, in its nature rather moral than political, which, at the first partition of conquered countries, bound the different ranks of men, by whatever names distinguished, to each other, as the barons to the prince, the knights to the barons, and the peasants to the knights. If then the acceptor failed in any of these points, if in any one of his steps he fell from the line which had been traced for him, and which at that time was the only line of duty, he was not such a man as his benefactor took him for, the motive for the benefaction ceased. He lost his fief, the only source of his political importance, and with it all that was worth living for. He was thrust down among the ignoble and defenceless crowd of needy retainers, whose persons and precarious properties were subject to the arbitrary disposal of the hand that fed them. So striking and impressive a figure did such a catastrophe make in the imaginations of men, that the punishment of death, when, in course of time, it came in various instances to be superadded to the other, showed itself only in the light of an appendage." It came in by custom, rather than by any regular and positive institution: it seemed to follow rather as a natural effect of the impotence to which the inferior was reduced, than in consequence of any regular exertion of the public will of the community. This seems to have been the aspect of the times at the first dawnings of the feudal polity; but it was impossible things should long remain in so unsettled a state. It is in such times, however, that we are to look for the origin of a word, which sometimes as the name of a crime, sometimes as a punishment, is to be met with in the earliest memorials that are extant of the feudal law. Some etymologists, to show they understood Greek, have derived it from the Greek: if they had happened to have understood Arabic, they would have derived it from the Arabic. Sir Edward Coke, knowing nothing of Greek, but having a little stock of Latin learning, which he loses no opportunity of displaying, derives it from fel, gall. Spelman, who has the good sense to perceive that the origin of an old northern word is to be looked for in an old northern language, rejecting the Greek, and saying nothing of the Latin, proposes various etymologies. According to one of them, it is derived from two words, fee, which, in ancient Anglo-Saxon had, and in modern English has, a meaning which approaches to that of property or money; and lon, which in modern German, he says, means price: feelon is therefore pretium feudi. This etymology, the author of the Commentaries adopts, and justifies by observing, that it is a common phrase to say, such an act is as much as your life or estate is worth. But felony, in mixed Latin, felonia, is a word that imports action. I should therefore rather be inclined to derive it from some verb, than from two substantives, which, when put together and declined in the most convenient manner, import not any such meaning. The verb to fall, as well as to fail, which probably was in its origin the same as the other, by an obvious enough metaphysical extension, is well known to have acquired the signification of to offend; the same figure is adopted in the French, and probably in every other language."
* We say, he fell, as well as he swerved from the line of duty: he fell from his allegiance. The original sin of man is called the fall of man. Lord Clarendon says, somewhere, he fell from his duty and all his former friends. Let him who standeth, says the Gospel, take heed lest he fall. In ecclesiastical jurisprudence a heretic relapsed is one who, having once been convicted of heresy, falls into the same offence a second time.
In Anglo-Saxon there is such a word as feallan,' the evident root of the English word now in use. In German, there is such a word as faellen, which has the same signification. This derivation therefore, which is one of Spelman's, is what seems to be the most natural. So much for the origin of the word: not that it is of any consequence whence it came, so it were but gone.
As the rigors of the feudal polity were relaxed, and fiefs became permanent and descendible, the resumption of the fief upon every instance of trivial delinquency became less and less of course. A feudatory might commit an offence that was not a felony. On the other hand, it was found too, that for many offences the mere resumption of the feud was not, by any means, a sufficient punishment; for a man might hold different feuds of as many different persons. The sovereign, too, interposed his claim on behalf of himself and the whole community, and exacted punishments for offences which, to the immediate lord of the feudatory, might happen not to be obnoxious. In this way, for various offences, pecuniary and corporal punishments, in various degrees, and even death itself, came in some instances to be substituted; in others, to be superadded by positive laws to that original indiscriminating punishment, which used at first to follow from almost every offence. That punishment remained still inseparably annexed to all those offences which were marked by the highest degree of corporal punishment, the punishment of death: partly with a view of giving the lord an opportunity of ridding himself of a race of vassals, tainted by an hereditary stain; partly, in order to complete the destruction of the delinquents' political as well as natural existence. The punishment of forfeiture, being the original punishment, still continued to give denomination to the complex mass of punishment of which it now constituted but a part.
• An is nothing but the common termination of the infinitive mood.