1. Some have thought that the wilful burning of houses was not within clergy by the common law, nor by the statute of 25 E. 3. cap. 4. because it was an hostile act,(o) and therefore, as until the statute of 4 H. 4. cap. 2. Insidiatores viarum & depopulatores agrorum joined with another felony, and so found, were ousted of their clergy, because savouring of acts of hostility, so incendiatores · domorum were even by the common law ousted of clergy before the statute of 23 H. 8. and so are not restored to clergy by the general clause of the statute of 1 E. 6. and this I remember was delivered as the reason of the exclusion of clergy from wilful burning by Mr. Attorney Noy, 8 Car. 1. in the king's bench, and seemed to be assented to by the court.

But I think this will hardly help the matter, 1. Because tho possibly clergy might not be allowd at common law to wilful burning, yet the statute of 25 E. 3. cap. 4. pro [572 clero extends clergy to all treasons and felonies touching other persons than the king himself, and his royal majesty. 2. Because then as well a burning of a barn with hay, as a barn with corn, would be excluded from clergy, for the one is as hostile as the other.

2. Others have thought that the statute of 4 & 5 P. & M. cap. 4. taking away clergy from the accessaries before, doth take away by necessary consequence the clergy from the principal, for it were not reason to think the accessary before, should be in a worse condition, than the principal offender, and therefore virtually and implicatively, and by necessary consequence it takes away clergy from the principal in all those cases, where it takes it from the accessary before; and besides, if the principal had his clergy, the accessary could not be arraigned, and this I think is true, tho this case needs not this help.

But I think, and so is the book of 11 Co. Rep. 34, 35. that the statute of 25 H. 8. cap. 3. which extends to take away clergy in all those cases which were within 23 H. 8. cap. 1. and particularly recites that of burning houses and barns with grain, and farther extends that exclusion to standing mute, not directly answering, challenging above twenty, I say that statute of 25 H. 8. was in great part repealed by the statute of 1 E. 6. and is entirely revived by the statute of 5 & 6 E. 6. cap. 10. not only as to the point of ousting clergy upon examination,(p) but also as to the exclusion of clergy in those cases mentioned in the act of 25 H. 8. wherein burning of houses and barns with corn is expresly mentioned, so that consequently this statute of

(0) And so interpretatively a felony touching the person of the king himself, which by that statute was ousted of clergy.

(p) This relates to the second clause of the 25 H. 8. cap. 3. whereby it is provided that if any persons be indicted in one county for stealing goods in another, and stand mute, or challenge peremptorily above twenty, or will not directly answer, they shall be put from their clergy in like manner, as if they had been tried and found guilty in the same county, where the offense was committed, if it appear to the justices by the evidence or on examination, that it was such a felony, as if found guilty thereof in the county where committed, they would have lost their clergy by the 23 H. 8. cap. 1.

5 & 6 E. 6. reviving the statute of 25 H. 8. repeals the generality of that clause in 1 E. 6. whereby clergy was let in, in all cases there not enumerated.

[573] And consequently the periods of this case of clergy in wilful burning stand thus.

1. Before 23 H. 8. clergy was allowable therein by force of the statute of 25 E. 3. pro clero.

2. After 23 H. 8. until 25 H. 8. clergy was allowable for the accessary in all cases, and for the principal in all cases, but finding him guilty.

3. After 25 H. 8. until 1 E. 6. clergy was taken away from the principal as well where he stands mute, not directly answers or challenges above twenty, as where he is found guilty.

But the accessaries as well before as after were to have clergy.

4. After 1 E. 6. till 5 & 6 E. 6. when the statute of 25 H. S. was revived, both principal and accessaries had their clergy in all cases of burning.

5. After 5 & 6 E. 6. till 4 & 5 P. & M. cap. 4. the principal was excluded in all cases, wherein he was excluded by the statute of 25 H. 8. as well where he stood mute, challenged above twenty, did not directly answer, as where found guilty.(q)

But the accessaries before, as well as after, had their clergy.

6. By the statute of 4 & 5 P. & M. cap. 4. until this day, accessaries before are excluded of clergy in all cases, but accessaries after have their clergy.

But yet there still remain two doubts.

1. Whereas the statute of 4 & 5 P. & M. cap. 4. extends to oust clergy from the accessary, as well if he be attainted as convicted, and consequently if outlawed, he shall not have clergy, because it is an attainder; the statute of 25 H. 8. extends only to finding guilty, challenging above twenty, standing mute, or not directly answering, and it seems in attainder of the principal by outlawry he shall have his clergy; therefore quære, whether an attainder by outlawry ousts the principal of clergy upon the statute of 23 or 25 H. 8.

2. Whereas the statute of 4 & 5 P. & M. cap. 4. hath no [574] exception of persons in the order of sub-deacon; but accessaries before are ousted of their clergy in all cases by that statute, tho in orders.

Yet by the statute of 25 H. 8. which is relative to the statute of 23 H. 8. principals in the order of sub-deacon, or above, have their clergy in the case of arson, for by the statute of 23 H. S. clergy is saved to men in orders, where found guilty; and by the statute of 25 H. 8. in cases of standing mute, &c. they are ousted of their clergy as if found guilty, in which case men in orders had their clergy, and so the reviving of the statute of 25 H. 8. by that of 5 & 6 E. 6. lets in men in orders to their clergy in case of arson, which seems to make this absurdity, that the principal in arson shall have the bene

(9) By 3 & 4 W. & M. clergy is taken away in case of outlawry also.

fit of clergy if in orders, but the accessaries before, tho in orders, are excluded by the general penning of the act of 4 & 5 P. & M.

And herein there will arise a difference as to men in orders, in relation to the benefit of clergy, between the case of being principal in wilful burning of houses, and the case of being principal in robbery in or near the highway, or robbing in a dwelling-house, putting the dweller in fear, or murder of malice prepense; for the act of 1 E. 6. cap. 12. excludeth them from their clergy generally without exception of men in orders, tho they were excepted by the statutes of 23 and 25 H. 8.

But this statute of 1 E. 6. making no mention of burning of houses, the exclusion of them from clergy, if resting upon the statute of 25 H. S. revived by 5 & 6 E. 6. excepts them.[8]

[8] The State v. Seaborn, 4 Dev. R. 305; Com. v. Posey, 4 Call's Rep. 109. See ante chap. 44, p. 517, note [1.]

CONCERNING FELONIES BY THE COMMON LAW,[1] RELATING TO THE BRINGING OF felons, TO JUSTICE, AND THE IMPEDIMENTS THEREOF, AS ESCAPE, BREACH OF PRISON, AND RESCUE; AND FIRST TOUCHING ARRESTS.[2]

I COME now, according to the method propounded, to consider those felonies that relate to the public justice of the kingdom in bringing malefactors to their due punishment, and the impediments thereof, and they are principally three, viz. 1. By the party arresting or

[2] As to Arrests, see vol. 2, ch. 10, 11, 12, 13, and notes thereto.

[1] "Felonies in England, comprised originally every species of crime which occasioned the forfeiture of lands and goods. At common law, in addition to the crimes more strictly coming under the head of treason, the chief, if not the only felonies, were murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny. By statutes, however, running from the earliest period, new felonies were, from time to time, created; till finally not only almost every heinous offence against person or property was included within the class, but it was held that whenever judgment of life or member was affixed by statute, the offence to which it was attached, became felonious by implication, though the word felony was not used in the statute." In this country, with a few exceptions, the common law classification has obtained; the principal felonies being received as they originally existed, and their number being increased as the exigencies of society prompted. In New York, however, felony by the revised statutes is construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished by death, or by imprisonment in a State prison. (Rev. Stat. N. Y. Part IV. Chap. II. Title 7. s. 30.) And in Virginia it comprehends all offences below treason which occasioned a forfeiture of property at common law, all so denominated by statutes, and all to which statutes have annexed capital punishment or confinement in the penitentiary, excepting those which, though subjected to the latter punishment, are

imprisoning, as voluntary escapes. 2. By the party arrested, and imprisoned, as breach of prison. 3. By a stranger, as rescue of felons.

And in this order I shall examine these offenses; but as a neces

or may be declared misdemeanors by the statutes creating them." Barker v. Com. 2 Virginia Cases, 122; Whart. Am. Crim. L. 1, 2.

Felony is supposed to come from the Saxon fel, which signifieth fierce or cruel; of which the verb fell signifieth to throw down or demolish, and the substantive of that name is used to signify a mountain rough and uncultivated. But the same word, with a little variation, runneth through most of the European languages, and signifieth more generally, an offence at large; and the Saxon word faellan, signifieth to offend, and fellnisae, an offence or failure; and although felony, as it is now become a technical term, signifieth in a more restrained sense an offence of a high nature, yet it is not limited to capi. tal offences only, but still retaineth somewhat of this larger acceptation; for petit larceny is felony, although it is not capital. Burn's Just. Tit. "Felony," 29th Ed.

According to Sir Henry Spelman's observation, it signifieth such an offence for which, during the feudal institution, a man should lose or forfeit his estate; which he derives of two northern words, fee, which signifieth the fief, feud, beneficiary, estate; and lon, which signifies price or value.

Upon the whole, the only adequate definition of felony seems to be this, viz. “an offence which occasions a total forfeiture of either lands or goods, or both, at the common law, and to which capital or other punishment may be superadded according to the degree of guilt. 4 Bl. Com. 94, 95.

The idea of felony is, however, so generally connected with that of capital punishment, that it seems hard to separate them, and to this usage the interpretations of law now conform. For if a statute makes any new offence felony, the law implies it shall be punished with death, (viz. by hanging,) as well as by forfeiture. See 1 Hawk. c. 41. s. 4; 2 ld. c. 48.

Where the statute declares that the offender shall, under the particular circumstances, be deemed to have feloniously committed any act, it makes the offence a felony, and im poses all the common and ordinary consequences attending a felony. Rex v. Johnson, 3 M. & Sel. 556. And though a statute make the doing of an act felonious, yet, if a subsequent act make it penal only, the latter is considered as a virtual repeal of the former. 1 Hawk. c. 40. s. 5.

All felonies are several, and cannot be joint, so that a pardon of one felon cannot discharge another; but the felony of one man may be dependent upon that of another, and the pardon of the one, by a necessary consequence, enure to the benefit of the other, as in cases of principal and accessary, &c.

The Massachusetts Commissioners, in their Report, enumerate as felonies within the provisions of their code, treason, murder, arson, rape, malicious burning, carnal abuse of a female child under ten years of age, burglary, robbery, larceny, kidnapping, childstealing, and the offence of assault, or assault and battery in the first degree. And in a note they add that the meaning of felony as by them defined, is limited to the use of the word in their code, and is not to be confounded with the common law signification of the same term, "whatever that meaning may be, for it is a matter of no little difficulty to settle it." Rep. tit. "Explanation of Terms."

Where one is found guilty of acts which amount to a felony, though not charged to be done feloniously, he cannot be sentenced as for a misdemeanor. Commonwealth v. Kingsbury, 5 Mass. 106. Commonwealth v. Roby, 12 Pick. 496. Commonwealth v. Macomber, 3 Mass. 254.

If acts amounting only to a misdemeanor are charged to be done feloniously, the accused cannot be convicted of the misdemeanor. Commonwealth v. Newell, 7 Mass. 245. But see Com. v. Squire, 1 Met. 258. The People v. Jackson, 3 Hill's N. Y. Rep. 92. The People v. White, 22 Wend. 175.

Statutes are to be construed so as not to multiply felonies, unless such construction is supported by express words or necessary implication. Commonwealth v. Macomber, 3 Mass. 254. 257. Commonwealth v. Barlow, 4 Mass. R. 439. It would be such an implication if the statute provided for the punishment of accessaries after the fact to the offence in question as distinct offenders. Ib.

A conviction, judgment and execution upon one indictment for a felony not capital, is

sary preliminary thereunto, I shall first consider of arrests and imprisonment for capital offenses, by whom it may be done, and where lawful.

Arrests of malefactors are of two kinds, 1. Either by persons thereunto by law deputed, or 2. By private persons. And the former is again of two kinds.

law, or 2. Virtute officii.

Either, 1. By process of

The former again is of two kinds, 1. Either by process in the king's name, 2. Or by warrant in the name of a judge or justice thereunto authorized, and that either in writing or ore tenus.

I shall pursue this order, and

I. Shall begin with the first of these, namely, arresting by virtue of the king's writ.

Regularly no process issues in the king's name and by his writ to apprehend a felon or other malefactor, unless there be an

indictment, or matter of record in the court upon which the [576]

writ issues.

Antiently the process upon an appeal or an indictment of felony was only one Capias, and thereupon an Exigent. 22 Assiz. 81.

By the statute of 25 E. 3. cap. 14. there are to be a Capias and an Alias with a command to the sheriff to seize the goods of the felon, and then an Exigent.

But it should seem by the book of 8. H. 5, 6. that this statute extended not to felony of death, but that there should be only one Capias, and then an Exigent.

a bar in Tennessee to all other indictments for felonies not capital, committed previous to such conviction, judgment and execution. Crenshaw v. The State, Mart. & Yerg. 122. Under an indictment for horse-stealing, it was held that to constitute a felony there must be a trespass in the original taking. The State v. Braden, 2 Overton, 68.

In New York, if a prisoner confined in the county prison, on a conviction of petit larceny, break prison, it is a felony for which he may be sentenced to imprisonment in the State prison for a period not exceeding fourteen years. The People v. Duell, 3 Johns. 449.

It is felony for a man who elopes with another's wife, to take his goods, though at the solicitation of the wife. The People v. Schuyler, 6 Cow. 572.

It is very much to be doubted whether a person ought ever to be convicted of a felony on the uncorroborated testimony of a prosecutor, who claims the property in question to which the defendant also claims title. Where the transaction was attended with none of the usual concomitants of larceny, as concealment, for example, the court, upon conviction, ordered a new trial. The State v. Kane, 1 McCord, 482.

In this country, where conviction of a felony does not work a forfeiture, a civil action is not merged in a felony. Robinson v. Culp, Const. Rep. 231.

It seems that one guilty of a felony should be proceeded against criminally before a civil action can be brought, because he should not be convicted of a felony except on a direct charge of a crime. Ib.

Wild bees remaining in the tree where they have lived, are not the subject of felony, though the tree is on the land of another who has confined them in it. Wallis v. Mease, 3 Binney R. 546.

A slave in South Carolina can commit a felony. The State v. Wright, 4 McCord, 358. A mere solicitation to commit a felony is an offence, whether it is committed or not. The People v. Bush, 4 Hill's N. Y. Rep. 133.

It has been held in New York that petit larceny is not a felony. Carpenter v. Nixon, 5 Hill R. 260. Ward v. The People, 3 Id. 395.