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The word felony now came to signify a punishment: viz. the complex mode of punishment of which that simple mode of punishment, which anciently stood annexed to every delinquency a feudatory could incur, was a main ingredient. At this period of its history, when the above was its signification, the word felony was as a part of the Norman jurisprudence imported into this country by the Norman conquerors; for among the Saxons there are no traces of its having been in use. At this period it stood annexed only to a few crimes of the grossest nature: of a nature, the fittest to strike the imagination of rude and unreflecting minds, and these not very heterogeneous. Theft, robbery, devastation when committed by the ruinous instrument of fire, or upon the whole face of a country with an armed force; these and homicide, the natural consequences of such enterprises, or of the spirit of hostility which dictated them, were included by it. At this time, the import of the word felony was not either as the name of a punishment, or as the name of an offence, as yet immeasurably extensive. But lawyers, by various subtleties, went on adding to the mass of punishment, still keeping to the same name. At the same time, legislators, compelled by various exigences, went on adding to the list of offences, punishable by the punishment of that name; till at length it became the name not of one, but of an incomprehensible heap of punishments; nor of one offence only, but of as many sorts of offences almost as can be conceived. Tell me now that a man has committed a felony, I am not a whit the nearer knowing what is his offence: all I can possibly learn from it is, what he is to suffer. He may have committed an offence against individuals, against a neighborhood, or against the state. Under any natural principle of arrangement, upon any other than that which is governed by the mere accidental and mutable circumstance of punishment, it may be an offence of any class, and almost of every order of each class. The delinquents are all huddled together under one name, and pelted with an indiscriminating volley of incongruous, and many of them, unavailing punishments. Felony, considered as a complex mode of punishment, stands at present divided into two kinds: the one styled Felony without benefit of Clergy, or in a shorter way, Felony without Clergy, or as capital punishment is one ingredient in it, Capital Felony; the other, felony within benefit of clergy, felony within clergy, or Clergyable Felony. The first may be styled the greater; the latter, the lesser felony. There are other punishments to which these are more analogous in quality, as well as in magnitude, than the one of them is to the other; such is the confusion introduced by a blind practice, and as the consequence of that practice, an inapposite and ill-digested nomenclature. How punishments so widely different came to be characterized in the first place by the same generic name, and thence by specific names, thus uncouth and inexpressive, shall be explained by and by, after we have analyzed and laid open the contents of the greater felony, of which the other is but an off-set, detached from the main root.


The christian religion, ere yet it had gained any settled footing in the state, had given birth to an order of men, who laid claim to a large and indefinite share in the disposal of that remote, but boundless mass of pains and pleasures, which it was one main business of that religion to announce. This claim, in proportion as it was acquiesced in, gave them power: for what is power over men, but the faculty of contributing in some way or other to their happiness or misery 3 This power, in proportion as they obtained it, it became their endeavor to convert, (as it is in the nature of man to endeavor to convert all power) into a means of advancing their own private interest. First, the interest of their own order, which was a private interest as opposed to the more public one of the community at large; and then of the individuals of that order. In this system of usurpation, a few perhaps had their eyes open; but many more probably acted under the sincere persuasion, that the advancement of their order above that of others, was beneficial to the community at large. This power, in its progress to those ends, would naturally seek the depression, and by degrees the overthrow of the political power, as of any other that opposed it. These operations, carried on by an indefinite multitude of persons, but all tending to the same end, wore the appearance of being carried on in concert, as if a formal plan had been proposed and unanimously embraced by the whole clergy, to subdue the whole body of the laity: whereas, in fact, no such plan was ever universally concerted and avowed, as in truth, there needed none. The means were obvious, the end was one and the same. There was no fear of clashing. Each succeeding operator took up the work where his predecessor had left off, and carried it on just so far as interest prompted and opportunity allowed. In pursuance of this universal plan, not concerted, but surer than if it had been the result of concert, were those exemptions laid claim to, which, by a long and whimsical concatenation of causes and effects, were the means of breaking down the punishment of felony into the two species of it that now subsist. The persons of these favored mortals, honored as they pretended they were by a more immediate intercourse with the divinity, and employed as they were incessantly in managing the most important, and indeed, only important concerns of mankind, were of course to be accounted sacred; a word of loose and therefore the more convenient signification, importing at bottom nothing more, than that the subject to which it was attributed was or was not to be accounted an object of distant awe and terror. They were therefore not to be judged by profane judgments, sentenced by profane mouths, or touched, in any manner that was unpleasant to them, by profane hands. The places, wherein that mysterious intercourse was carried on, imbibed the essence of this mysterious quality. Stones when put together in a certain form became sacred too. Earth, within a certain distance round about those stones, became sacred too. Hence the privilege of sanctuary. In short, the whole of the material as well as intellectual globe became divided into sacred and profane; of which, so much as was sacred was either composed of themselves, or become subjected to their power. The rest of it lay destitute of these invaluable privileges, and as the name imports, tainted with a note of infamy. I pass rapidly over the progress of their claim of exemption from profane judicature: the reader will find it ably and elegantly delineated in sir W. Blackstone's Commentaries. As to the causes, those which come under the denomination of felonies are the only ones with which at present we have to do. Confining our consideration therefore to these causes; as to persons, it was first claimed, one may suppose, for those of their own order, by degrees, for as many as they should think fit for that particular purpose to recognise as belonging to that order. By degrees, the patience of profane judges was put to such a stretch, that it could hold no longer; and they seem to have been provoked to a general disallowance of those exceptions which had swelled till they had swallowed up in a manner the whole rule. This sudden and violent reformation wearing the appearance of an abuse, the clergy had influence enough in the legislature to procure an act' to put a stop to it. By this act it was provided, that all manner of clerks, as well secular as reli

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gious, which shall be from henceforth convict before the secular justices, for any treasons or felonies touching other persons than the king himself, or his royal majesty, shall from henceforth freely have and enjoy the privilege of holy church, and shall be, without any impeachment' or delay, delivered to the ordinaries,” demanding them. This statute, one should have thought, would have been sufficiently explicit on the one hand, to secure the exemption to all persons in clerical orders, so, on the other hand, to exclude all persons not possessed of that qualification. To prove a person entitled to the exemption, the obvious and only conclusive evidence was the instrument of ordination. But the different ranks of persons who were all comprised under the common name of clerks, and as such, partook more or less of the sacred character, were numerous: and some of these seem to have been admitted to their offices without any written instrument of ordination. Whether this omission was continued on purpose to let in a looser method of evidence, or whether it was accidental, so it is, that the clergy had the address to get the production of that written evidence dispensed with. In the room of it, they had the address to prevail on the courts to admit of another criterion, which, ridiculous as it may seem at this time of day, was not then altogether so incompetent. “Orders,” they said, or might have said, “may be forged, or may be fabricated for the purpose; but as a proof that the man really is of our sacred order, you shall have a proof that can neither be forged nor fabricated; he shall read as we do.” The book was probably at first a Latin book: the bible or some other book made use of in church service. At that time, few who were not clergymen could read at all, and still fewer could read Latin. And the judges, if they

* It should be hindrance: the French original is empeschement * Meaning the bishop, or other ecclesiastical superior.

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