therefore included all the more
serious forms of crime against person or property, such as murder,
manslaughter, arson, highway robbery, burglary (or hamesucken) and
larceny; and when statutory felonies were created they were also
punishable by death unless the statute otherwise provided. The death
penalty was also extended to heretics under the writ _de heretico
comburendo_, which was lawfully issuable under statute from 1382 (5 Ric.
II. stat. 5) until 1677 (29 Chas. II. c. 9). For this purpose the
legislature had adopted the civil law of the Roman Empire, which was not
a part of the English common law (Stephen, _Hist. Cr. Law_, vol. ii.
438-469).

The methods of execution by crucifixion (as under the Roman law), or
breaking on the wheel (as under the Roman Dutch law and the Holy Roman
Empire), were never recognized by the common law, and would fall within
the term "cruel and unusual punishments" in the English Bill of Rights,
and in the United States would seem to be unconstitutional (see
_Wilkinson v. Utah_, 1889, 136 U.S. 436, 446).

The severity of barbarian and feudal laws was mitigated, so far as
common-law offences were concerned, by the influence of the Church as
the inheritor of Christian traditions and Roman jurisprudence. The Roman
law under the empire did not allow the execution of citizens except
under the _Lex Porcia_. But the right of the emperors to legislate _per
rescriptum principis_ enabled them to disregard the ordinary law when so
disposed. The 83rd novel of Justinian provided that criminal causes
against clerics should be tried by the judges, and that the convicted
cleric should be degraded by his bishop before his condemnation by the
secular power, and other novels gave the bishops considerable influence,
if not authority, over the lay judiciary. In western Europe the right
given by imperial legislation in the Eastern Empire was utilized by the
Papacy to claim privilege of clergy, i.e. that clerks must be remitted
to the bishop for canonical punishment, and not subjected to civil
condemnation at all. The history of benefit of clergy is given in
Pollock and Maitland, _Hist. English Law_, vol. i. pp. 424-440, and
Stephen, _Hist. Cr. Law_, vol. iii. 459, 463. By degrees the privilege
was extended not only to persons who could prove ordination or show a
genuine tonsure, but all persons who had sufficient learning to be able
to read the neck-verse (Ps. li. v. 1). Before the Reformation the
ecclesia