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OF FELONIES INJURIOUS TO THE KING'S PREROGATIVE.
As, according to the method I have adopted, we are next to consider such felonies' as are more immediately injurious to the king's prerogative, it will not be amiss here, at our first entrance upon this crime, to inquire 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 English law, comprises every species of crime, which occasioned at common law the forfeiture of lands and goods. This most frequently happens in those crimes, for which a capital punishment either is or was liable to be inflicted for those felonies which are called clergyable, or to which the benefit of clergy extends, were anciently punished with death, in all lay, or unlearned offenders; though now by the statute-law that punishment is for the first offence universally remitted. Treason itself, says sir Edward Coke, (a) was anciently comprised under the name felony and in confirmation of this we may observe that the statute of treasons, 25 Edw. III. c. 2. speaking of some dubious crimes, directs a reference to parliament: that it may there be ad-  judged "whether they be treason, or other felony." All treasons therefore, strictly speaking, are felonies; though all felonies are not trea
And to this also we may add, that not only all offences, now capital, are in some degree or other felony; but that this is likewise the case with some other offences, which are not punished with death; as suicide, where the party is already dead: homicide by chance-medley, or in self-defence; and petit larceny or pilfering: all which are (strictly speaking) felonies, as they subject the committers of them to forfeitures. So that upon the whole the only adequate definition of felony seems to be that which is before laid down; 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.
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 rest: some deriving it from the Greek onλos, an impostor or deceiver; others from the Latin fallo, fefelli, to countenance which they would have it called fallonia. Sir Edward Coke, as his manner is, has given us a still stranger etymology; (b) that it is crimen animo felleo perpetratum, with a bitter or gallish inclination. But all of them agree in the description, that it is such a crime as occasions a forfeiture of all the offender's lands or goods. And this gives great probability to sir Henry Spelman's Teutonic or German derivation of it: (c) in
a 3 Inst. 15.
b 1 Inst. 391.
c Glossar. tit. Felon.
(1) As the author also considers misdemeanors in this chapter, the proper title would be, “Oś Offences against the King's Prerogative."
which language indeed, as the word is clearly of feodal original, we ought rather to look for its signification, than among the Greeks and Romans. Fe-lon then, according to him, is derived from two northern words: fee, which signifies (we well know) the fief, feud, or beneficiary estate and lon, which signifies price or value. Felony is therefore the same as pretium feudi, the consideration for which a man gives up his fief; as we say in common speech, such an act is as much as your life, or estate, is worth. In this sense it will clearly signify the feodal forfeiture, or act by which an estate is forfeited, or escheats to the lord."
To confirm this we may observe, that it is in this sense, of for  feiture to the lord, that the feodal writers constantly use it. For all
those acts, whether of a criminal nature or not, which at this day are generally forfeitures of copyhold estates, (d) are styled felonia in the feodal law: "scilicet, per quas feudum amittitur." (e) As" si domino “deservire noluerit; (f) si per annum et diem cessaverit in patenda inves “titura; (g) si dominum juravit, i. e. negavit se a domino feudum ha"bere; (h) si a domino, in jus eum vocante, ter citatus non comparue"rit," (i) all these, with many others, are still causes of forfeiture in our copyhold estates, and were denominated felonies by the feodal constitutions. So likewise injuries of a more substantial or criminal nature were denominated felonies, that is, forfeitures: as assaulting or beating the lord; (k) vitiating his wife or daughter, "si dominum cucurbitaverit, i. e. cum uxore ejus concubuerit ;" (1) all these are esteemed felonies, and the latter is expressly so denominated, "si fecerit feloniam, dominum forte cucurbitando." (m) And as these contempts, or smaller offences, were felonies, or acts of forfeiture, of course greater crimes, as murder and robbery, fell under the same denomination. On the other hand, the lord might be guilty of felony, or forfeit his seignory to the vasal, by the same acts as the vasal would have forfeited his feud to the lord. "Si dominus commisit feloniam, "per quam vasallus amitteret feudum si eam commiserit in dominum, feudi proprietatem etiam dominus perdere debet." (n) One instance given of this sort of felony in the lord is beating the servant of his vasal, so as
that he loses his service; which seems merely in the nature of a  civil injury, so far as it respects the vasal. And all these felonies
were to be determined "per laudamentum sive judicium parium suorum" in the lord's court; as with us forfeitures of copyhold lands are presentable by the homage in the court-baron.
Felony, and the act of forfeiture to the lord, being thus synonymous terms in the feodal law, we may easily trace the reason why, upon the introduction of that law into England, those crimes which induced such for feiture or escheat of lands (and, by small deflection from the original sense, such as induced the forfeiture of goods also) were denominated felonies. Thus it was said, that suicide, robbery, and rape, were felonies; that is, the consequence of such crimes was forfeiture; till by long use we began to signify by the term of felony the actual crime committed, and not the penal consequence. And upon this system only can we account for the cause, why treason in ancient times was held to be a species of feJony; viz. because it induced a forfeiture.
d See Book II. pag 284. e Feud. 1. 2. t. 16. in calc.
h Ibid. 1. 2. t. 34. 1.
k Feud. 1. 2. t. 24. § 2.
2. t. 26. § 3.
1 lbid. l. 1. t. 5.
fid. l. 1. f. 21. g Ibid. 1. 2. t. 24.
m Ibid. 1.2. t. 38. Britton. l. 1. c. 22.
n Feud. 1. 2. t. 26. & 47.
(2) But a forfeiture of land is not a necessary consequence of felony; for petit larceny is feluny, which does not produce a forfeiture of lands; but every species of felony is followed by forfeiture of goods and personal chattels,
Hence it follows, that capital punishment does by no means enter into the true idea and definition of felony. Felony may be without inflicting capital punishment, as in the cases instanced of self-murder, excusable homicide, and petit larceny: and it is possible that capital punishments may be inflicted, and yet the offence be no felony; as in case of heresy by the common law, which, though capital, never worked any forfeiture of lands or goods, (o) as inseparable incident to felony. And of the same nature was the punishment of standing mute, without pleading to an indictment; which at the common law was capital, but without any forfeiture, and therefore such standing mute was no felony. In short, the true criterion of felony is forfeiture: for, as sir Edward Coke justly observes, (p) in all felonies which are punishable with death, the offender loses all his lands in fee-simple, and also his goods and chattels ; in such as are not so punishable, his goods and chattels only.
The idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them; and to  this usage the interpretations of the law do now conform. And therefore if a statute makes any new offence felony, the law (q) implies that it shall be punished with death, viz. by hanging as well as with for feiture: unless the offender prays the benefit of clergy; which all felons are entitled once to have, provided the same is not expressly taken away by statute. And in compliance herewith, I shall for the future consider it also in the same light, as a generical term, including all capital crimes below treason; having premised thus much concerning the true nature and original meaning of felony, in order to account for the reason of those instances I have mentioned, of felonies that are not capital, and capital offences that are not felonies: which seem at first view repugnant to the general idea which we now entertain of felony, as a crime to be punished by death whereas properly it is a crime to be punished by forfeiture, and to which death may, or may not be, though it generally is, superadded.
I proceed now to consider such felonies as are more immediately injurious to the king's prerogative. These are, 1. Offences relating to the coin, not amounting to treason. 2. Offences against the king's council. 3. The offence of serving a foreign prince. 4. The offence of embezzling or destroying the king's armour or stores of war. To which may be added a fifth, 5. Desertion from the king's armies in time of war.
1. Offences relating to the coin, under which may be ranked some inferior misdemesnors not amounting to felony, are thus declared by a series of statutes which I shall recite in the order of time. And, first, by statute 27 Edw. I. c. 3. none shall bring pollards and crockards, which were foreign coins of base metal, into the realm on pain of forfeiture of life and goods. By statute 9 Edw. III. st. 2. no sterling money  shall be melted down, upon pain of forfeiture thereof. By statute 17 Edw. III. none shall be so hardy to bring false and ill money into the realm, on pain of forfeiture of life and member by the persons importing, and the searchers permitting such importation. By statute 3 Hen. V. st. 1. to make, coin, buy, or bring into the realm any gally-halfpence, fuskins, or dotkins, in order to utter them, is felony; and knowingly to receive or pay either them or blanks (r) is forfeiture of an hundred shillings. By statute 14 Eliz. c. 3. such as forge any foreign coin, although it be not
q 1 Hawk, P. C. 107. 2 Hawk. P. C. 441. r 2 Stat. Hen. VI. c. 9.
(3) Repealed by 59 Geo. III. c. 49. s. 11.
made current here by proclamation, shall (with their aiders and abettors) be guilty of misprision of treason: a crime which we shall hereafter consider. By statute 13 & 14 Car. II. c. 31. the offence of melting down any current silver money shall be punished with forfeiture of the same, and also the double value: and the offender, if a freeman of any town, shall be disfranchised; if not, shall suffer six months' imprisonment. By statute 6 & 7 W. III. c. 17. if any person buys or sells, or knowingly has in his custody, any clippings, or filings, of the coin, he shall forfeit the same and 500l. ; one moiety to the king, and the other to the informer; and be branded in the cheek with the letter R. By statute 8 & 9 W. III. c. 26. if any person shall blanch or whiten copper for sale (which makes it resemble silver); or buy or sell or offer to sell any malleable composition, which shall be heavier than silver, and look, touch, and wear like gold, but be beneath the standard : or if any person shall receive or pay at a less rate than it imports to be of which demonstrates a consciousness of its baseness, and a fraudulent design) any counterfeit or diminished milled money of this kingdom, not being cut in pieces; (an operation which is expressly directed to be performed when any such money shall be produced in evidence, and which any person, to whom any gold or silver money is tendered, is empowered by statutes 9 & 10 W. III. c. 21., 13 Geo. III. c. 71., and 14 Geo. III. c. 70., to perform at his own hazard, and the officers of the exchequer and receivers general of the taxes are
particularly required to perform :) all such persons shall be guilty  of felony; and may be prosecuted for the same at any time with
in three months after the offence committed. But these precautions not being found sufficient to prevent the uttering of false or diminished money, which was only a misdemeanor at common law, it is enacted
(4) See post, 120. The importation of foreign bad coin is further provided against. Thus, by the 37 Geo. III. c. 126 s. 2. coining or counterfeiting any kind of coin, not the proper coin of the realm, nor permitted to be current (id est, by proclamation under great seal) within it, but resembling, or made with intent to resemble, or look like any gold or silver coin of any foreign state, &c. or to pass such foreign coin, is a felony punishable with seven years' transportation. And by the same act. (sect. 6) having in custody, without lawful excuse, more than five pieces of bad coin, is punishable with a forfeiture of not exceeding 51. nor less than 40s. for every piece. By sect. 3. importing counterfeit gold or silver, foreign coin, not current, with intent to utter, is felony, punishable with transportation for not exceeding seven years. Importing with an intent to utter, is a sufficient offence within the act. 1 East P. C. 176. And by 43 Geo. III c. 139. s 3. counterfeiting foreign coin, not current by proclamation, but resembling copper or mixed metal coin of a foreign state, is a misdemeanor, punishable, for the first offence, by not exceeding one year's imprisonment, and for the second transportation for seven years. And sect. 6. inflicts a penalty of not exceeding 40s. nor less than 10s. for every such piece of coin in possession of a person who shall have more than five pieces in his custody, without lawful excuse And by sect. 7. houses of suspected persons may be searched by warChristian.
rant for such counterfeit coin.
(5) The rewards allowed by this act, on conviction of offenders, are abolished by 58 Geo. III, (6) Selling base and counterfeit money at a lower rate than its denomination imports, as twenty bad hall-crowns for a guinea, is a crime of great magnitude, and in populous towns is much practised. The offender in this case is either the coiner himself, or the wholesale dealer between the coiner and the utterer, who puts each piece into circulation at its full apparent value. The 8 & 9 W. III. c. 26. declares that the offender shall suffer death as in case of felony ; but not having expressly taken away the benefit of clergy, for the first offence he was subject only to be burnt in the hand, and to suffer any imprisonment not exceeding a year; and since the 19 Geo. III. c. 74. the burning in the hand may be changed by the court into a fine, or whipping publicly or privately; but not more than three times. An offender of this description must necessarily be so conversant with coining or coiners, that public policy requires that in the first instance he should be sent out of the kingdom. It has been determined that the term milled money, does not mean edged money, or money marked on the edges. The word milled seems to De superfluous, and to signify nothing more than coined money. Running's case, Leach, 708.
by statute 15 & 16 Geo. II. c. 28. that if any person shall utter or tender in payment any counterfeit coin, knowing it so to be, he shall for the first offence be imprisoned six months, and find sureties for his good behaviour for six months more; for the second offence, shall be imprisoned two years, and find sureties for two years longer; and for the third offence, shall be guilty of felony without benefit of clergy. Also, if a person knowingly tenders in payment any counterfeit money, and at the same time has more in his custody; or shall, within ten days after, knowingly tender other false money; he shall be deemed a common utterer of coun. terfeit money, and shall for the first offence be imprisoned one year, and find sureties for his good behaviour for two years longer; and for the se. cond, be guilty of felony without benefit of clergy. By the same statute it is also enacted, that if any person counterfeits the copper coin, he shall suffer two year's imprisonment, and find sureties for two years more. By statute 11 Geo. III. c. 40. persons counterfeiting copper half-pence or farthings, with their abettors; or buying, selling, receiving, or putting off any counterfeit copper money (not being cut in pieces or melted down) at a less value than it imports to be of; shall be guilty of single felony." And by a temporary statute (14 Geo. III. c. 42.) if any quantity of mo ney, exceeding the sum of five pounds, being or purposing to be the silver coin of this realm, but below the standard of the mint in weight or fineness, shall be imported into Great Britain or Ireland, the same shall be forfeited in equal moities to the crown and prosecutor.10 Thus much for offences relating to the coin, as well misdemesnors as felonies, which I thought it most convenient to consider in one and the same view.
2. Felonies, against the king's council, (s) are these. First, by statute 3 Hen. VII. c. 14. if any sworn servant of the king's household conspires or confederates to kill any lord of this realm, or other  person, sworn of the king's council, he shall be guilty of felony.
s See Book I. pag. 334.
(7) The words "in payment" refer to the word " tender" only, so that to tender in payment is one offence, and to utter another; and a man was convicted of uttering, who having received a good shilling, immediately changed it, and gave back a bad one, insisting it was the one he received. Leach, 736. Where the prisoner had counted out a quantity of bad money, and placed it upon a table for a person who had agreed to buy it, but before it was paid for, and whilst it lay upon the table, the prisoner was apprehended, it was held not an offence within_the_act. Leach, 251. But it seems he might have been indicted for the attempt to utter. Cald. 397. Russ. & R. C. C. 107. note.
It is now settled, that the mere act of having counterfeit silver in possession, with an intent to utter it as good, is no offence, for there is no criminal act done. Russ. & R. C. C. 184. 288. But procuring base coin, with intent to utter it as good, is a misdemeanor; and having a large quantity of such coin is evidence of having procured it with such intent, unless there are other circumstances to induce a suspicion that the defendant was the maker. Russ. & R. C. C. 308.
(8) By the S Geo. IV. c. 114. the prisoner may be sentenced to hard labour. The reward given by the 15 Geo. II. c. 7. is taken away by 58 Geo. III. c 70.
(9) The 15 & 16 Geo. II c. 28. and the 11 Geo. III. c. 40. specify halfpence and farthings only; but other pieces of copper money having been since coined, the provisions of those statutes, by the 37 Geo. III. c. 126. are extended to all other pieces of copper money which are ordered to be current by the king's proclamation. A remarkable error is made in two different pages of Mr. East's publication upon criminal law, which states the punishment for coining cop. per money, and for selling counterfeit money for less than its denomination imports, to be only burning in the band, and imprisonment not exceeding a year. 1 East P. C. 162. & 181. But the punishment before the 19 Geo. III. in all cases of felony, which had the benefit of clergy, was burning in the hand; and imprisonment for any time, at the discretion of the judge, not more than for one year, under the 18 Eliz. c. 7. § 3. By the 19 Geo. III. c. 74. burning in the hand may be changed at the discretion of the judge into a fine, or whipping not more than three times. Dee p. 373. post.
(20) This statute, by the 89 Geo. III. c. 74, is revived and made perpetual,