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NOMENCLATURE, Felony I
# Blackstone calls Felony
without Clergy single Felony
according to this, "without" should be double
I think it will be allowed, that there is no reason to suppose, that all who have voted for the punishment
of Felony without Clergy would in the instance of every Crime to which they have
voted for its annexation, have thought of (much less have determined on) the linking annexation of
the Punishment of forfeiture, much of less of disqualification from testimony +, if they had not
found it ready linked annexed on to their hands
would do as well for
the denomination of a class, & the class
which is pr comprised constituted would be just as
homogeneous & as natural
And thus a multitude of innocent persons
are exposed to suffer, as without
utility, so without design.
Hence where a Judge is deciding or a Legislator is enacting or a Pleader arguing concerning Felony he knows about what it is that he is can never know half of what he is
doing deciding or enacting — [Instance in doctrine concerning principal & Accessory & 94 other instances]
Not to cut off but to exchange difficulties
If it were proposed to introduce another
term instead of that, jargon
against jargon, that may be as good
as any other
In laying down any such doctrine it never occurs to pass in review all the articles comprised under that
extensive and lumping denomination, & contemplate the effect of that doctrine upon each. It is impossible to be
done in the instant, & the familiarity of the Term imposing upon him an imagined familiarity of the Idea banishes
the appearance of the necessity of seeking time to do it, and of analysing & recapitulating it's parts — he imagines he grasps the whole, because he grasps the whole of
[it's original substance of] what it once consisted of; not considering into what a number of (it's multitude and
increasing train of long and irregular processes projections. [it has been perpetually breaking out.]
If it requested to teach the vulgar
a new language, the objection would
be a strong one, & not to be overcome
but by a very manifest advantage
Innumerable are the instances which might be adduced to establish their observation — I shall content myself
with producing 2 or 3.
In the case of the King against Mason reported in 8 Mod p.75. The Council for the King, it is said, laid down
this for a rule (viz That all Acts which amount to Felony by land, the same would amount to Piracy by Sea.
& a Evidence to all were to committ
all sorts of Crimes in his presence
like how Guineas of two different values
current at the same time
The truth is, that nothing like half the Acts which amount to Felony by land can amount to Piracy at
Sea — Rape, Forgery, and Suicide may serve as Specimens. No supposition of the omission of inaccuracy
in the Reports will salve the truth of the assertion. These restrictions imported by subjoining the words
at Common Law to the word Felony, will not, we see by the last of these specimens, do the business.
If after remaining the perpetrator of the
incompetency & having nothing but death they should still to continue
to express that dealt by the perpetrator
of felony without benefit of Clergy:
& this they certainly would do, if left
to themselves, unless some should
now be found different from any thing
we have seen hitherto under that
name
In short no Term taken from the ordinary Dialect of the law will give the truth to the proposition either by
being substituted to the word Felony or subjoined:
[For the classification established by that Term is so thoroughly unnatural, being taken from a character
entirely arbitrary & factitious viz: the penalty annexed to the Act, and in no ways the natural uniformity from the nature of the
Act or practice to which it is affixed that no characteristic taken from that Nature will be co-extensive with it.]
If he had assumed a word foreign to that Dialect tho' not invested with any such fixed import as the offence is pretended
to be (the word "Spoliation" I mean) inserted as an epithet to the "the word" Act," he might perhaps have of
denoted what he meant & denoted what was true.
CLASSIF. and NOMENCL. Inconveniences of the Old [BR][4] Felony.
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classif. and nomencl. inconveniences of the old felony |
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