within three *months after the commission of the offence (19): [*91 ] except those for making or amending any coining tool or instrument, or for marking money round the edges; which are directed to be commenced within six months after the offence committed (f) (20). And, lastly, by statute 15 & 16 Geo. II. c. 28. if any person colours or alters any shilling or sixpence, either lawful or counterfeit, to make them respectively resemble a guinea or half-guinea; or any halfpenny or farthing to make them respectively resemble a shilling or sixpence; this is also high treason but the offender shall be pardoned, in case (being out of prison) he discovers and convicts two other offenders of the same kind.2

3. The other species of high treason is such as is created for the security of the protestant succession over and above such treasons against the king and government as were comprised under the statute 25 Edw. III. For this purpose, after the act of settlement was made, for transferring the crown to the illustrious house of Hanover, it was enacted by statute 13 & 14 W. III. c. 3. that the pretended prince of Wales, who was then thirteen years of age, and had assumed the title of king James III, should be attainted of high treason; and it was made high treason for any of the king's subjects, by letters, messages, or otherwise, to hold correspondence with him, or any person employed by him, or to remit any money for his use, knowing the same to be for his service. And by statute 17 Geo. II. c. 39. it is enacted, that if any of the sons of the pretender shall land or attempt to land in this kingdom, or be found in Great Britain, or Ireland, or any of the dominions belonging to the same, he shall be judged attainted of high treason, and suffer the pains thereof. And to correspond with them, or to remit money for their use, is made high treason in the same manner as it was to correspond with the father. By the statute 1 Ann. st. 2. c. 17. if any person shall endeavour to deprive or hinder any person, being the next in succession to the crown according to the limitations of the act of settlement, from succeeding to the crown, and shall maliciously and directly attempt the same by any overt act, such [*92 ] offence shall be high treason. And by statute 6 Ann. c. 7. if any person shall maliciously, advisedly, and directly, by writing or printing, maintain and affirm, that any other person hath any right or title to the crown of this realm, otherwise than according to the act of settlement; or that the kings of this realm with the authority of parliament are not able to make laws and statutes, to bind the crown and the descent thereof; such

(f) Stat. 7 Ann. c 25.

(19) And it is incumbent on the prosecutor to shew the prosecution was commenced with in that time. Proof by parol that the prisoner was apprehended for treason respecting the coin within the three months, will not be sufficient, if the indictment is after the three months, and the warrant to apprehend or commit are produced. Russ. & R. C. C. 369,

(20) If a person is apprehended in the act of coining, or is proved to have made consider able progress in making counterfeit pieces resembling the gold or silver coin of this realm, yet if they are so imperfect, as that no one would take them, he cannot be convicted upon the charge of coining under this statute. Leach, 71. 126. But he may be convicted, if he has made blank pieces without any impres

sion to the similitude of silver coin worn smooth by time. Welch's case, Ibid. 293. Or if any one shall put pieces of mixed metal into aqua fortis, which attracts the baser metal and leaves the silver upon the surface, or as the vulgar say, draws out the silver, this is held to be colouring under this statute. Lavey's case, Ibid. 140.

In a case at Durham, where a man had been committed more than three months before his trial, for an offence under this statute, and upon conviction his case was reserved for the opinion of the judges, they determined that the commitment was the commencement of the prosecution, otherwise this crime might be committed with impunity half the year in the four northern counties. See further, ante, 84.

(2) See Hov. n. (2) at the end of the Vol. B. IV.

person shall be guilty of high treason. This offence (or indeed maintaining this doctrine in any wise, that the king and parliament cannot limit the crown) was once before made high treason by statute 13 Eliz. c. 1. during the life of that princess. And after her decease it continued a high misdemeanor, punishable with forfeiture of goods and chattels, even in the most flourishing æra of indefeasible hereditary right and jure divino succession. But it was again raised into high treason, by the statute of Anne before mentioned, at the time of a projected invasion in favour of the then pretender; and upon this statute one Matthews, a printer, was convicted and executed in 1719, for printing a treasonable pamphlet, entitled "vox populi vox Dei (g)."

Thus much for the crime of treason, or laesae majestatis, in all its branches; which consists, we may observe, originally, in grossly counteracting that allegiance which is due from the subject by either birth or residence; though, in some instances, the zeal of our legislators to stop the progress of some highly pernicious practices has occasioned them a little to depart from this its primitive idea. But of this enough has been hinted already it is now time to pass on from defining the crime to describing its punishment.

The punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk: though usually (by connivance (h), at length ripened by humanity into law) a sledge or hurdle is allowed, to preserve the offender from the ex

treme torment of being dragged on the ground or pavement (i). 2. [*93] That he *be hanged by the neck, and then cut down alive. 3.

That his entrails be taken out and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal (k).

The king may, and often doth, discharge all the punishment, except beheading, especially where any of noble blood are attainted. For be heading, being part of the judgment, that may be executed, though all the rest be omitted by the king's command (1). But where beheading is no part of the judgment, as in murder or other felonies, it hath been said that the king cannot change the judgment, although at the request of the party, from one species of death to another (m). But of this we shall say more hereafter (n).

In the case of coining, which is a treason of a different complexion from the rest, the punishment is milder for male offenders; being only to be drawn and hanged by the neck till dead (o). But in treasons of every kind the punishment of woman is the same, and different from that of men. For, as the decency due to the sex forbids the exposing and publicly mangling their bodies, their sentence (which is to the full as terrible to sensation as the other) is to be drawn to the gallows, and there to be burned alive (p) (21).

(g) State Tr. IX. 680 (h) 33 Ass. pl. 7.

(i) 1 Hal. P. C 382.

(k) This punishment for treason, sir Edward Coke tells us, is warranted by divers examples in Scripture; for Joab was drawn, Bithan was hanged, Judas was embowelled, and so of the rest.

(21) But now by the statute 30 Geo. III. c. 48. women convicted, in all cases, of treason, shall receive judgment to be drawn to the place

(3 Inst. 211.)

(1) 1 Hal. P. C. 351.
(m) 3 Inst. 52.

(n) See ch. 32.
(0) 1 Hal. P. C. 351.
(p) 2 Hal. P. C. 399.

of execution, and there to be hanged by the neck till dead. Before this humane statute, women from the remotest times were sentenc

The consequence of this judgment (attainder, forfeiture, and corruption of blood) must be referred to the latter end of this book, when we shall treat of them all together, as well in treason as in other offences.

CHAPTER VII.

OF FELONIES (1) INJURIOUS TO THE KING'S
PREROGATIVE.

As, according to the method I have adopted, we are next to consider such felonies (1) 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 (2), 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 adjudged, "whether they be treason, or [*95] other felony." All treasons therefore, strictly speaking, are felonies; though all felonies are not treason. 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

(a) 3 Inst. 15.

ed to be burned alive for every species of treason: Et si nule femme de ascune treson soit attainte, soit ars. Britt. c. 8.

And now by 54 Geo. III. c. 146. the judg. ment against a man for high treason is, in effect, that he shall be drawn on a hurdle to the place of execution, and be there hanged by the neck until he be dead, and that afterwards his head shall be severed from his body, and his body, divided into four quarters, shall be disposed of as the king shall think fit; with power to the king, by special warrant, in part to alter the punishment. A month's time has VOL. II.

58

been allowed between sentence and execution. 1 Burr. 650, 1. But the last executions for this offence followed (and properly so, for the purpose of example) more closely upon conviction. Thistlewood and his fellow conspirators, were condemned and executed within a few days after their trial.

(1) As the author also considers misdemeanors in this chapter, the proper title would be, "Of Offences against the King's Prerogative."

(2) See p. 5, note 6.

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 onlos, 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 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: fre which signifies (we well know) the fief, feud, or beneficiary estate and

lou, which signifies price or value. Felony is therefore the same [*96] 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 (3).

To confirm this we may observe, that it is in this sense, of forfeiture 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 investitura (g); si dominum ejuravit, i. e. negavit se a domino feudum habere (h); si a domino, in jus eum vocante, ter citatus non comparuerit (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 ();" 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 vassal, by the same acts as the vassal would have forfeited his feud to the lord. 66 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 vassal, so as

(b) 1 Inst. 391.

(c) Glossar, tit. Felon.

(d) See Book II. page 284.

(e) Feud. 1. 2, t. 16, in calc. (f) Ibid. l. 1, t. 21.

(g) Ibid. 1. 2, t. 24.

(3) But a forfeiture of land is not a necessary consequence of felony; for petit larceny is felony, which does not produce a forfeiture

(h) Ibid. l. 2, t. 34, l. 2, t. 26. ◊ 3.

(i) Ibid. l. 2, t. 22.

(k) Ibid. 1. 2, t. 24, ◊ 2.

(1) Ibid. l. 1, t. 5.

(m) Thid. l. 2, t. 38. Britton, l. 1, c. 22.

(n) Ibid. 1. 2, t. 26, & 47.

of lands; but every species of felony is followed by forfeiture of goods and personal chattels,

that he loses his services; which seems merely in the nature of a civil *injury, so far as it respects the vassal. And all these felonies [*97] 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 forfeiture 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 felony: viz. because it induced a forfeiture.

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), an 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 [*98] 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 forfeiture: 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 de

(0) 3 Inst. 43. (p) 1 Inst. 391,

(g) 1 Hawk. P. C. 107. 2 Hawk. P. C. 444