Imatges de pÓgina

Memcir relative to John Burnett, Esq. of Dens. terrestrial sphere, he raised his views the character of goodness by their easy to heaven, and, as the best preparation sacrifice of the interests of virtue and for its happiness, practised those vir- truth. On this account, they fre*tues, in the completion of which this quently do more mischief than the happiness must chiefly consist; made openly profane and profligate, who are provision for the elucidation and hated, or despised, and cannot, thereextension of the fundamental principles fore, produce any effect extensively of religion, which comforts man by pernicious. The good man, as he is the prospects of eternity; and, as für styled, who, for the sake of what he as lay in his power, endeavoured to terms peace, saying, in the words of sooth the earthly sorrows, and to supply the Prophet, ** Peaco, peace, when the present necessities of his brethren. there is no peace,"* is always pre

The admiration of mankind is com- pared to make concessions, and to “monly excited by the splendour of surreuder, to deceit, or to violence, some talent, or by the celebrity of exploit. important cause, induces mankind, They seein to pay little regard to the misled by his specious appearances, ohjects for which the former has been to suppose that the distinction betweeu displayed, or the latter perforined. rirtue and rice is very small, and that, Understanding, skill, and courage, eren on account of the former, no effort when mind is applauded, engross their ought to be made, and no hardship attention, while the 'will, and the endured. * affections, which are the springs of Real probity, then, enlightened by human action, are commonly over- clearness of judgment, and supported looked, or disregarded, as of no , by the energy of courage, constitutes a . moinent. It is, however, the principle very uncommon character, and is, that imparts any real value to every therefore, on this ground, entitled to

exertion of the human faculties, and the highest commendation. - if the original view be erroneous, or . This high-toned prolity bears a · vicious, the whole conduct, which it stronger resemblance to genius, - than dictates, must be proportionably is commonly apprehended, and ought, vitiated, and debased. Wisdom con- . on the ground on which genius is so sists in the selection the best ends, much admired, to obtain a propor; and of the adoption of the best means tionable degree of admiration. "Genius of their attainment. If the end he is the gift of heaven, and seems to posalsurd, or wicked, all the means for sess a species of inspiration. Those, its prosecution, however effectual they therefore, who are endowed with it, may be, ought only to produce the are considered as, in some respects, deeper regret, or the stronger reproba- the favourites of the Deity ; although, rion. That Mr. Burnett's views were like other favourites, they often abirse virtuous and noble, will not be con- their pre-eminence. Evaltoil probily tested ; nor can it be denied that he may surely, with a far better title-a devised very effectual means for their title sanctioned by Scripture-refer its · execution. Tried, then, by this equi- origin to heaven. It is that wisdom,

table standard, he is certainly entitled which is from above, and is first to no common portion of applause. pure, then peaceable, gentle, and eas - Mankind generally admire what is to be intreated, full of mercy and good tare and unusual. Genuine prolity, fruits, without partiality, and without acid pure benevolence, united with hypocrisy.”+ It is certain that there soundness of judgment, are, I hesitate is, in some minds, an inherent natural not to affirin, as uncommon as genius, propensity to virtuous sentiments and and acuteness of intellect. By probity conduct; a certain susceptibility of I understand not merely the will, the generous, affectionate, and noble im. inclination, the desire to act a virtuous : pressions, by which they are distin. part, but also the right apprehension guished from the ordinary, and morally. of what a virtuous part implies; and, groveling herd of their species. This when it has been clearly apprehended, seems 10 depend, in a great measure, the courage to adopt and to maintain on the peculiar con plexion of the it, without fear of detriment, or of imagination; and this circumstance profligate ridicule. For, it often hap

pens that those, who are called good men, ate weak, uninformed, and com

Jer. vi. 14. pliant personages, and have obtained

+ James ri. 17.

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chiefly asserts its analogy to genius. species. This is so much the case, Some minds, even from their most that, were it not for those virtuous early years, dwell, with peculiar plea- individuals, whom divine Providence sure, on descriptions of noble characters, supporting truth and virtue, has in and image them with delight. They every age, stationed in different parts will, hence, be prompted to imitate, of the world, human corruption would and, if possible, io surpass them, in proceed with such accumulated aggrathe moral qualities which they most vation, that the condition of our admire. To such impressions the species would be desperate. It is to generality of mankind are totally the wisdom, the beneficence, and the insensible, and are wholly engrossed perseverance of such men, that the by seļf interest, or ignolle ambition, and world is indebted for every salutary hug themselves in the conceit of their plan which has been adopted, and for prudence, and their policy. They can- every good institution which has ever not discover, with their feeble' eyes, been established. Notwithstanding that region, in which the inan, who the opposition with which they have is rcally virtuous, dwells, and, althongh had to struggle, the noblest title that they were translated into it, the purity any mortal can obtain, is that of being of its atmosphere would be too keen the friend of God, aud the benefactor for their asthmatic lungs.

of mankind. There is another point of resem- Let those who pervert their power blance between genius and high prolity. for the purposas of oppressive pride, or As the former embraces objects of a lavish their wealth in dissipation, in character, raised above ordinary life; sensuality, in frivolous amusement, and ,so, it cannot always stoop to the in all that degrades the individual, minute consideration of these, and is and injures society ; let such institute liable to be deceived by that low, and a fair comparison between themselves, microscopical cunning, whose attention and Mr. Burnett, and leam to ackuowis exclusively devoted to such objects.ledge that, in spite of their ostentaThe case is the same with distinguished tatious assumption, and ridiculous ,Prolity. She can, with difficulty, - vanity, they sink into utter insieconceive the mean and contemptible , nificance, and ought to be satisfied if arts, the complete degradation of moral they are allowed to pass, with silent character, to which Improbity often contempt. As soon as their bodies descends; and she is, thus, some- are consigned to the grave, their namnes times, for a short time, deceived by are either buried in oblivion-their these ignoble and reptile devices. This most fortunate posthumous conditionleads the race, who practise them, to or are mentioned with derision, or value themselves on their childish disgust. His is recorded, as that of sagacity. But, no man of genius, or the patron of exalted and salutary of real worth, will envy them their science, as the reliever of indigence, as creeping distinction.

the comforter of distress ; and will be It were much to be wished that transmitted, with undiminished apthese, and similar, considerations, had, plause, to remote posterity: To him on mankind, their due influence. If may be justly applied Pope's beautiful they possessed it, admiration and ap- lines, in which he describes the chaplause would not be exclusively appro- racter of the Man of Ross. priated to brilliancy of genius, or to

W. L. BROWN. grandeur of achievement ; but, genuine moral excellence would obtain its legitiSate share.

Genius often Aatters Origin and History of Benefit of powerful and opulent Vice, or, by the Clergy, from Chitty's “ Practical display of metaphysical acumen, distorts Treulise on the Criminal Law." I. trih, and recommends error. Heroism,

607. vulgarly 50 called, has deluged the By far the most important circum


blood, and habitations of men. Moral excel- viction and judgment, is the claim lence is “the saltof the earth,"* which and allowance of the benefit of clergy, prevents the putrefaction of the human in those cases where it is by law to be

granted. It is of course claimed

immediately before judgment at the # Matt. v. 18.

assizes. This is one of the most

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Origin and Iristory of Benefit of Clergy.

445 singular relics of old superstition, and liabilities, and declared themselves certainly the most important. That, respoussible only to the pope and his by a mere form, without the shadow ecclesiastical ministers. I' They erectof existing reason to support it, theed themselves into an independent severity of the common law should be community, and even laid the temtempered, nay seem strange to those poral authorities under subjectionwho have been accustomed to regard Nobies were intimidated into vast our criminal law as a regular fabric, pecuniary benefactions, and princes pot only attaining great practical trembled at the terrors of spiritual benefit, but built upon solid and con. denunciation. In England, however, sistent principles.' The benefit of this authority was alivas comparaclergy is, no doubt, of great practical tively feeble. The complete exempadvantage, compared to the dreadful tion of the clergy from secular parishio list of offences which would otherwise ments, thougla often claimed, was be punished as capital; but it woull never niversally admitted. || For be well worthy of an enlightened age repeated objections were made to the to forsake such a suiviertuge, and it demand of the bishop and ordinary once, without resorting to ii, 10 ap

to have the clerks remitted to them as portion the degree of suffering to the soon as they were indicted. At atrocity and the danger of the crimes.* length, however, it was finally settled

The history of this singular inode of in the reign of llenry VI. ihat the pardon, if so it can be termed, is prisoner should first be arraigned, and both curious and instructive. In the might then claim the benefit of clergy carly periods of European civilization, as an excuse for pleading, or might deafter the final destruction of the mand it after conviction : and the latRoman empire, the church obtained ter of these courses has been almost an influence in the political affairs of invariably adopted to allow the prisonnations, which threw a peculiar er the chance of a verdiet of acquintal. colouring over their original institu-' But if the privileges of the church tious. Alonarchs who were desirous were less dangerous in England than ef atoning for atrocious offences, or on the continent, they soon became of obtaiuing the sanctiou of heaven more extensive. They not only cinto their projects of ambition, were braced every order of clergymeri, but easily persuadel to confer immunities were claimed for every subordinate on the clergy, whom they regarded as officer of religious houses, with the the vicegerents of heaven. Presurning numerous classes of their retainers. on these favours, that aspiring body And so liberal was the application of soon began to claiin as a right what these dangerous benefits, that, at had been originally conferred as a length, every one who in those days boon, and to found their demand to of ignorance was able to read, though civil exemptions on a divine and in- not even initiated in holy orders, bedefeasible charter, derived from the came entitled to demand thein, such text of Scripture, “ touch pot mine reading being deemed evidence of his anointed and do my prophets no clerical profession.** The privileges harm."t It need excite no surprise of the clergy were recognized and conihat they were anxious to take advan- formed by sturite in the reign of lage of their dominion orer the con- Edward the Third. ft It was iben science, to exempt themselves froin enacted, that all manner of clerks, the usual consequences of crime. To secular as well as religious, should the priests impunily was a privilege enjoy the privileges of holy church of no inconsiderable value. And for all treasons or felonies except those so successful was the pious zeal to immediately afieeting his Majesty. To shield those who were dedicated to religion, from the consequences of any breach of temporal enactments, that Burn, J. Clergy, II. Williams, J. Fe.

2 Hale, 324. 4 Bla. Com. 366. in several countries they obtained a looy, v. complete exemption from all civil

2 Hale, 324. # Keilw. 180. 2 Hale, 372, 377.

4 Bla. Com. 366. See Observations, Fost. Ç. L. 305, ( 2 Hale, 377. 4 Bla. Com, 366 S06.

** 9 Hale, 372. + Keilw. 181. P. S. 105, 15.

tt 25 Edw. III. e. 4. VOL. XI,




the advantage of this provision all who him, and in what manner the power could read were admitted. * But as of the church in this respect was learning became more common, this ultimately destroyed. It appears that extensive interpretation was found so after a layman was burnt in the hand, injurious to the security of social life, a clerk discharged on reading, or a that the legislature, notwithstanding peer without either burning or penalty, the opposition of the church, were he was delivered to the ordinary to be compelled to afford a partial remedy, dealt with according to the ecclesiastiIn the reign of Henry the Seventh, t cal canons. Upon this, the cleri. a distinction was drawn between per- cal authorities instituted a kind of sons actually in holy orders, and those purgation, the real object of which who, in other respects, secular, were to make him appear innocent, able to read, by which the latter were who had been already shown to be only allowed the benefit of their learn- guilty, and to restore him to all those ing once, and on receiving it to be capacities of which his conviction had branded in the left thumb with a hot deprived him. To effect this the iron, in order to afford evidence party himself was required to make against them on any future occasion. oath of liis innocence, though before The church seems to have lost ground he might have confessed himself in the succeeding reign, probably in guilty. Then twelve .compurgators consequence of the separation of Eng- were called to testify their belief in the land from the sway of the Roman falsehood of the charges. Afterwards Pontifi; for all persons, though ac- he brought forward witnesses comtually in orders, were rendered liable pletely to establish that innocence of to be branded, in the same way as which he had induced so weighty a, the learned class of laymen. I But, presumption. Finally, it was the in the time of Edward ihe Sixth, the office of the jury to acquit him; and clergy were restored to all the rights they seldom failed in their duty.It If, of which they were deprived by his however, from any singular circumpredecessor, except as to certain atro- stance they agreed in the justice of the cious crimes which it became neces- conviction, the culprit was degraded sary more uniformly to punish. At and compelled to do penance. $S As the same time, some of the more this seldom occurred, and the most enormous evils attendant on

this daring perjuries were thus perpetually general impunity were done away. committed, the courts of common law Murder, poisoning, burglary, high- were soon aroused 10 abridge the way robbery, and sacrilege, were ex- power of these clerical tribunals. cepted from all that privilege which 'They, therefore, sometimes delivered was confirmed as to inferior offences. Il over the privileged of felony, when But peers of the realm for the first his guilt was very atrocious, without offence were to be discharged in every allowing him to make purgation; the case, except murder and poisoning, effect of which proceedings was his even though unable to read. | perpetual in prisonment and incapacity But here we must pause


to acquire personal or to enjoy real we proceed to follow the gradual estate, unless released by his Majesty's improvement of this privilege, to pardon.)!!! But the severity of this enquire what was originally done proceeding almost rendered it useless ; with an offender to whom it was and it became absolutely necessary allowed, by those ecclesiastical autho- for the legislature to interfere in order rities who claimed the right of judging to prevent the contemptible perjuries

which this absurd ceremony produced

under the sanction and pretence of * 2 Hale, 272, 8. Kel. 100, 101,

religion. This desirable object was 102. Hawk. b. 2. c. 33. s. 5. Williams, J. Felony, V. See Mode of Admission of Defendant convicted of Manslaughter. 1

** Hob. 291. 4 Bla. Com. 368. Salk. 61.

++ Hob. 291. 3 P. Wms. 447, 8. + 4 Hen. VII. c, 13.

4 Bla. Com. 368. 1 28 Hen. VIII. c. 1. s. 7. 32 Heq. 11 Hob. 291. 3 Pr. Wms. 447, 8. VIII. c. 3. s. 8.

Bla. Com. 364. f 1 Edw. VI. c. 12. S. 10.

$$ Hob. 289. 4 Bla. Com. 364. || Id. Ibid.

Hill 3 Pr. Wms. 448, 9. 4 Bła. Com, s | Edw. VI, c. 12. s. 14.



Origin and History of Benefit of Clergy.

447 effected in the reign of Elizabeth, and crime itt and, therefore, bg 5 Ann, the party, after being allowed his c. 6, the idle ceremony of reading was clergy and barnt in the hand, was to abolished, 11. and all those who were be discharged without any interference before entitled to clergy on reading, of the church to annul his convic- were now to be admitted without any tion.*

such form to its benefits. At the same The clerical process being thus time it was sensibly felt that the 'abolished, it was thought proper, at branding, which had dwindled into the same time, to empower the tem- a mere form, and the year's imprisonporal judges to inflict a further punish- ment which the judges were iminent where they should regard it as powered to inflict, were very inadeproper. The 18 Eliz. c. 7. empowered quate punishments for many clergyable them, therefore, to direct the convict offences; and, therefore, the court to be imprisoned for a year or any were authorized to colomit the shorter period. But the law on this offenders to the house of correction, subject was still in many respects im- for any time noi less than six months perfect. Females were still liable to nor exceeding two years, and to the punishment of death without any double it in case of escaping. $$ exeinption, in all cases of simple Further alterations hare since been felony; because being never eligible made in the penalties consequent to the clerical office, they were not upon clergy. The 4 Geo. I. c. 11, !!!! included in any of the extensions of and 6 Geo. I. c. 23, provide, that the the benefit of clergy. No other proof court on the allowance of this benefit, need be adduced to show the absurdity for any larceny whether grand or of the very foundations of the system. petit, or other felonious theft not exAt length it was enacted that women cluded from the statutable indulgence, convicted of simple larcenies under may, instead of judgment of burning the value of 10s. should be punished in case of inen, and whipping in that with burning in the hand and whip- of females, direct the offender to be ping, exposure in the stocks, or im- transported for seven years to America, prisonment for any period less than a which has been since altered to any year. I. And in the reign of William part of his majesty's colonies. TT TO and Mary they were admitted to all return within the period was, at the the privileges of men, in clergyable same time, made felony without felonies, on praying the benefit of the benefit of clergy. And by several substatute ;$ though they can only once sequent provisions, many wise alterabe allowed this means of tions have been made respecting In the same reign, the punishment of transportation, and the mode of treating burning in the hand was changed for offenders while under its sentence.*** a more visible stigma on the cheek, T At length the burning in the hand but was soon afterwards brought back was entirely done away, and the to the original practice.**

judges are einpowered to sentence the Hitherto all laymen except peers, criminal, in its room and in addition who, on their conviction, were found to the former penalties, to a pecuniary unable to read, were liable to suffer fine, or, except in the case of mandeath for every clergyable felony. slaughter, to private whipping, not But it was m. length discovered, that more than thrice to be inflicted, in the ignorance instead of an aggravation presence of three witnesses. fuht Prowas an excuse for guilt, and that the visions were at the same time made ability to read was no extenuation of for the employment of this description

of convicts in penitentiary houses, * 19 Eliz. c. 7. 2 Sess. C. 266 to 289. 9 P. W. 444, 5, 6.

tt Fost. 305, 6. + Fost. C. L. 305, 6. 2 Hale, 371, :1 Fost. 305, 6. 3 P. W, 443, 4, 978.

$8.5 Ann, c. 6. $. 9. 21 Jac. I, c. 6. Fost. 305, 6.

II ll See observations on this statute, $ 8 & 4 W. & M. c. 9. S. 5. Fost. 3 P. W. 490. 906.

TT 19 Geo. III. c. 74. 4 & 5 W. & M. c. 24. s. 18.

*** 16 Geo. II. c. 15. S Geo. III. c. 15. | 10 & 11 W. III. c. 23. 3 P. W. 19 Geo. III. c. 74. 31 Cheo. III. 6. 46. 451.

84 Geo. III. Sess. 2. c. 56. ** s Ann, c. 6. 3 P. W. 451,

ttt 19 Geo, III. c. 74. 8. 8.

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