CHAPTER THE SEVENTH.

OF FELONIES, INJURIOUS TO THE KING'S
PREROGATIVE.

AS, according to the method I have adopted, we are next to confider fuch felonies as are more immediately injurious to the king's prerogative, it will not be amifs here, at our firft entrance upon this crime, to enquire briefly into the nature and meaning of felony; before we proceed upon any of the particular branches, into which it is divided.

FELONY, in the general acceptation of our Englifh law, comprizes every fpecies of crime, which occafioned at common law the forfeiture of lands or goods. This moft frequently happens in thofe crimes, for which a capital punifhment either is or was liable to be inflicted: for thofe felonies, which are called clergyable, or to which the benefit of clergy extends, were antiently punifhed with death in all lay, or unlearned, offenders; though now by the ftatute-law that punifhment is for the firft offence univerfally remitted. Treafon itfelf, fays fir Edward Coke ^a, was antiently comprized under the name of felony: and in confirmation of this we may obferve, that the ftatute of treafons, 25 Edw. III. c. 2. fpeaking of fome dubious crimes, directs a

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^a 3 Inft. 15.
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Reference to parliament; that it may be there adjudged, “whether they be treafon, or other felony.” All treafons therefore, ftrictly fpeaking, are felonies; though all felonies are not treafon. And to this alfo we may add, that all offences, now capital, are in fome degree or other felony: and this is likewife the cafe with fome other offences, which are not punifhed with death; as fuicide, where the party is already dead; homicide by chancemedly, or in felf-defence; and petit larceny, or pilfering; all which are (ftrictly fpeaking) felonies, as they fubject the committers of them to forfeitures. So that upon the whole the only adequate definition of felony feems to be that which is before laid down; viz. an offence which occafions a total forfeiture of either lands, or goods, or both, at the common law; and to which capital or other punifhment may be fuperadded, according to the degree of guilt.

To explain this matter a little farther: the word felony, or felonia, is of undoubted feodal original, being frequently to be met with in the books of feuds, &c; but the derivation of it has much puzzled the juridical lexicographers, Prateus, Calvinus, and the reft: fome deriving it from the Greek, an impoftor or deceiver; others from the Latin, fallo, fcfelli, to ward Coke, as his manner is, has given us a ftill ftranger etymology ^b; that it is crimen animo felleo perpetratum, with a bitter or gallifh inclination. But all of them agree in the defcription, that it is fuch a crime as works a forfeiture of all the offender's lands, or goods. And this gives great probability to fir Henry Spelman's Teutonic or German derivation of it ^c: in which language indeed, as the word is clearly of feodal original, we ought rather to look for it's fignification, than among the Greeks and Romans. Fe-lon then, according to him, is derived from two northern words; fee, which fignifies (we well know) the fief, feud, or beneficiary eftate; and lon, which fignifies price or value. Felony is therefore the fame as pretium feudi, the confi-

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^b 1 Inft. 391.
^c Gloffar. tit. Felon.
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deration for which a man gives up his fief; as we fay in common fpeech, fuch an act is as much as your life, or eftate, is worth. In this fenfe it will clearly fignify the feodal forfeiture, or act by which an eftate is forfeited, or efcheats, to the lord.

To confirm this we may obferve, that it is in this fenfe, of forfeiture to the lord, that the feodal writers conftantly ufe it. For all thofe acts, whether of a criminal nature or not, which at this day are generally forfeitures of copyhold eftates ^d, are ftiled feloniae in the feodal law: “fcilicet, per quas feudum amittitur ^e.” As, “fi domino defervire noluerit ^f; fi per annum et diem ceffaverit “in petenda inveftitura ^g; fi dominum ejuravit, i. e. negavit fe a “domino feudum habere ^h; fi a dorrino, in jus eum vocante, ter citatus non comparuerit ^I;” all thefe, with many others, are ftill caufes of forfeiture in our copyhold eftates, and were denominated felonies by the feodal conftitutions. So likewife injuries of a more fubftantial or criminal nature were denominated felonies, that is, forfeitures: as affaulting or beating the lord ^k; vitiating his wife or daughter, “fi dominum cucurbitaverit, i. e. cum uxore ejus concubuerit ^l;” all thefe are efteemed felonies, and the latter is expreffly fo denominated, “fi fecerit feloniam, dominum forte cucurbitando ^m.” And as thefe contempts, or fmaller offence, were felonies or acts of forfeiture, of courfe greater crimes, as murder and robbery, fell under the fame denomination. On the other hand the lord might be guilty of felony, or forfeit his feignory to the vaffal, by the fame acts as the vaffal would have forfeited his feud to the lord. “si dominus commifit feloniam, per quam vafallus amitteret “feudum fi eam commiferit in dominum, feudi proprietatem etiam “dominus perdere debet ⁿ.” One inftance given of this fort of felony in the lord is beating the fervant of his vafal, fo as that he lofes his fervice; which feems merely in the nature of a civil

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^d See Vol. II. pag. 284.
^e Feud. l. 2. t. 26. in calc.
^f Feud. l. 1. t. 21.
^g Feud. l. 2. t. 24.
^h Feud. l. 2. t. 34. l. 2. t. 26. §. 3.
^I Feud. l. 2. t. 22.
^k Feud. l. 2. t. 24. §. 2.
^l Feud. l. 1. t. 5.
^m Feud. l. 2. t. 38. Britton. l. 1. c. 22.
ⁿ Feud. l. 2. t. 26 & 47.
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injury, fo far as it refpects the vafal. And all thefe felonies were to be determined “per laudamentum five judicium parium fuorum” in the lord's court; as with us forfeitures of copyhold lands are prefentable by the homage in the court-baron.

FELONY, and the act of forfeiture to the lord, being thus fynonymous terms in the feodal law, we may eafily trace the reafon why, upon the introduction of that law into England, thofe crimes which induced fuch forfeiture or efcheat of lands (and, by a fmall deflexion from the original fenfe, fuch as induced the forfeiture of goods also) were denominated felonies. Thus it was faid, that fuicide, robbery, and rape, were felonies; that is, the confequence of fuch crimes was forfeiture; till by long ufe we began to fignify by the term of felony the actual crime committed, and not the penal confequence. And upon this fyftem only can we account for the caufe, why treafon in antient times was held to be a fpecies of felony: viz. becaufe it induced a forfeiture.

HENCE it follows, that capital punifhment does by no means enter into the true idea and definition of felony. Felony may be without inflicting capital punifhment, as in the cafes inftanced of felf-murder, excufable homicide, and petit larceny: and it is poffible that capital punifhments may be inflicted, and yet the offence be no felony; as in the cafe of herefy by the common law, which, though capital, never worked any forfeiture of lands or goods ^o, an infeparable incident to felony. And of the fame nature is the punifhment of ftanding mute, without pleading to an indictment; which is capital, but without any forfeiture, and therefore fuch ftanding mute is no felony. In fhort the true criterion of felony is forfeiture; for, as fir Edward Coke juftly obferves ^p, in all felonies which are punifhable with death, the offender lofes all his lands in fee-fimple, and alfo his goods and chattels; in fuch as are not fo punifhable his goods and chattels only.

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^o 3 Inft. 43.
^p 1 Inft. 391.
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VOL. IV.

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THE

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THE idea of felony is indeed fo generally connected with that of capital punifhment, that we find it hard to feparate them; and to this ufage the interpretations of the law do do now conform. And therefore if a ftatute makes any new offence felony, the law ^q implies that it fhall be punifhed with death, viz. by hanging, as well as with forfeiture: unlefs the offender prays the benefit of clergy; which all felons are entitled once to have unlefs the fame is expreffly taken away by ftatute. And, in compliance herewith, I fhall for the future confider it alfo in the fame light, as generical term, including all capital crimes below treafon; having premifed thus much concerning the true nature and original meaning of felony, in order to account for the reafon of thofe inftances I have mentioned, of felonies that are not capital, and capital offences that are not felonies: which feem at firft view repugnant to the general idea which we now entertain of felony, as a crime to be punifhed by death; whereas properly it is a crime to be punifhed by forfeiture, and to which death may, or may not be, though it generally is, fuperadded.

I PROCEED now to confider fuch felonies, as are more immediately injurious to the king's prerogative. Thefe are, 1. Offences relating to the coin, not amounting to treafon. 2. Offences againft the king's council. 3. The offence of ferving a foreign prince. 4. The offence of imbezzling the king's armour or ftores of war. To which may be added a fifth, 5. Defertion from the king's armies in time of war.

1. OFFENCES relating to the coin, under which may be ranked fome inferior mifdemefnors not amounting to felony, are thus declared by a feries of ftatutes, which I fhall recite in the order of time. And, firft, by ftatute 27 Edw. I. c. 3. none fhall bring pollards and crockards, which were foreign coins of bafe metal, into the realm, on pain of forfeiture of life and goods. By ftatute 9 Edw. III. ft. 2. no fterling money fhall be melted

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^q 1 Hawk. P. C. 107. 2. Hawk. P. C. 444.
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down, upon pain of forfeiture thereof. By ftatute 14 Eliz. c. 3. fuch as forge any foreign coin, although it be not made current here by proclamation, fhall (with their aiders and abettors) be guilty of mifprifion of treafon: a crime which we fhall hereafter confider. By ftatute 13 & 14 Car. II. c. 31. the offence of melting down any current filver money fhall be punifhed with forfeiture of the fame, and alfo the double value: and the offender, if a freeman of any town, fhall be disfranchifed; if not, fhall fuffer fix months imprifonment. By ftatute 6 & 7 W. III. c. 17. if any perfon buys or fells, or knowingly has in his cuftody, any clippings or filings of the coin, he fhall forfeit the fame and 500 l; one moiety to the king, and the other to the informer; and be branded in the cheek with the letter R. By ftatute 8 & 9 W. III. c. 26. if any perfon fhall blanch, or whiten, copper for fale; (which makes it refemble filver) or buy or fell or offer to fale any malleable compofition, which fhall be heavier than filver, and look, tough, and wear like gold, but be beneath the ftandard: or if any perfon fhall receive or pay any counterfeit or diminifhed money of this kingdom, not being cut in pieces, (an operation which every man is thereby empowered to perform) at a lefs rate than it fhall import to be of: (which demonftrates a confcioufnefs of it's bafenefs, and a fraudulent defign) all fuch perfons fhall be guilty of felony. But thefe precautions not being found fufficient to prevent the uttering of falfe or diminifhed money, which was only a mifdemefnor at common law, it is enacted by ftatute 15 & 16 Geo. II. c. 28. that if any perfon fhall tender in payment any counterfeit coin, knowing it fo to be, he fhall for the firft offence by imprifoned fix months; and find fureties for his good behaviour for fix months more: for the fecond offence, fhall be imprifoned and find fureties for two years: and, for the third offence, fhall be guilty of felony without benefit of clergy. Alfo if a perfon knowingly tenders in payment any counterfeit money, and at the fame time has more in his cuftody; or fhall, within ten days after, knowingly tender other falfe money; he fhall for the firft offence be imprifoned one year, and find fureties for his good behaviour for two
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years longer; and for the fecond, be guilty of felony without benefit of clergy. By the fame ftatute it is alfo enacted, that, if any perfon counterfeits the copper coin, he fhall fuffer two years imprifonment, and find fureties for two years more. Thus much for offences relating to the coin, as well mifdemefnors as felonies, which I thought it moft convenient to confider in one and the fame view.

2. FELONIES, againft the king's council ^r, are; firft, by ftatute 3 Hen. VII. c. 14. if any fworn fervant of the king's houfhold confpires or confederates to kill any lord of this realm, or other perfon, fworn of the king's council, he fhall be guilty of felony. Secondly, by ftatute 9 Ann. c. 16. to affault, ftrike, wound, or attempt to kill, any privy counfellor in the execution of his office, is made felony without benefit of clergy.

3. FELONIES in ferving foreign ftates, which fervice is generally inconfiftent with allegiance to one's natural prince, are reftrained and punifhed by ftatute 3 Jac. I. c. 4. which makes it felony for any perfon whatever to go out of the realm, to ferve any foreign prince, without having firft taken the oath of allegiance before his departure. And it is felony alfo for any gentleman, or perfon of higher degree, or who hath borne any office in the army, to go out of the realm to ferve fuch foreign prince or ftate, without previoufly entering into a bond with two fureties, not to be reconciled to the fee of Rome, or enter into any confpiracy againft his natural fovereign. And farther, by ftatute 9 Geo. II. c. 30. enforced by ftatute 29 Geo. II. c. 17. if any fubject of Great Britain fhall enlift himfelf, or if any perfon fhall procure him to be enlifted, in any foreign fervice, or detain or embark him for that purpofe, without licence under the king's fign manual, he fhall be guilty of felony without benefit of clergy: but if the perfon, fo enlifted or enticed, fhall difcover his feducer within fifteen days, fo as he may by apprehended and convicted of the fame, he fhall himfelf be indem-

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^r See Vol. I. pag. 332.
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nified. By ftatute 29 Geo. II. c. 27. it is moreover enacted, that to ferve under the French king, as a military officer, fhall be felony without benefit of clergy; and to enter into the Scotch brigade, in the Dutch fervice, without previoufly taking the oaths of allegiance and abjuration, fhall be a forfeiture of 500 l.

4. FELONY, by imbezzling the king's armour or warlike ftores, is fo declared to be by ftatute 31 Eliz. c. 4. which enacts, that if any perfon having the charge or cuftody of the king's armour, ordnance, ammunition, or habiliments of war; or of any victual provided for victualling the king's foldiers or mariners; fhall, either for gain, or to impede his majefty's fervice, imbezzle the fame to the value of twenty fhillings, fuch offence fhall be felony. And the ftatute 22 Car. II. c. 5. takes away the benefit of clergy from this offence, fo far as it relates to naval ftores. Other inferior imbezzlements and mifdemefnors, that fall under this denomination, are punifhed by ftatute 1 Geo. I. c. 25. with fine and imprifonment.

5. DESERTION from the king's armies in time of war, whether by land or fea, in England or in parts beyond the feas, is by the ftanding laws of the land (exclufive of the annual acts of parliament to punifh mutiny and defertion) and particularly by ftatute 18 Hen. VI. c. 19. and 5 Eliz. c. 5. made felony, but not without benefit of clergy. But by the ftatute 2 & 3 Edw. VI. c. 2. clergy is taken away from fuch deferters, and the offence is made triable by the juftices of every fhire. The fame ftatutes punifh other inferior military offences fines, imprifonment, and other penalties.

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