CHAPTER VII.

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 or goods. (1) 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 [*95] it may there be adjudged, "whether they be treason, or 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 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 feudal origin, being frequently to be met with in the books of feuds, &c.; but the derivation of it has much puzzled the juridical lexicographers, Præteus, Calvinus and the rest: some deriving it from the Greek 205, an imposter 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 anima 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 of clearly feudal 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 lou, which signifies price or value. Felony is therefore

(1) In some of the United States by statute the term "felony" is made to embrace all offences for which a specified punishment may be imposed; e. g., imprisonment in the state penitentiary. People v. Van Steenburgh, 1 Park. C. R. 39. In the absence of such statutory definition, those offences are felonies which were so at the common law: Ward v. People, 3 Hill, 395; Drennan v. People, 10 Mich. 169; though in Ohio, where all offences are statutory, it has been said that "the term felony has no distinct and well defined meaning applicable to our system of criminal jurisprudence. In England it has a well-known and extensive signification, and comprises every species of crime which, at common law, worked a forfeiture of goods and lands But under our criminal code the word felonious, though occasionally used, expresses a signification no less vague and indefinite than the word criminal." Mathews v. State, 4 Ohio. N. S. 542. VOL. II.-45 353

the same as pretium feudi, the *consideration for which a man gives up [*96] 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 feudal forfeiture, or act by which an estate is forfeited, or escheats to the lord. (2)

To confirm this we may observe, that it is, in this sense, of forfeiture to the lord, that the feudal 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 feudal 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 ejuraverit i. e., negaverit 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 feudal 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 felonium, 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 seigniory to the vassal, by the same acts as the vassal would have forfeited his feud to the lord. "Si dominus commiserit feloniam, per quam vasallus amitterit feudum si cam 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 that he loses his service; 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 judicum parium suorum" in the lords court; as with us forfeiture 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 feudal 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 truc 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, (0) an inseparable incident to felony. And of the same nature was the punishment of standing mute, without pleading to an indictment, which at 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. (d) See book II. page 284. (e) Feud. 1. 2, t. 16, in calc. (f) Ibid. 1. 1. t 21. (h) Ibid. l. 2, t. 34, l. 2. t. 26, § 3. (i) Ibid. 7. 2, t. 22 (k) Ibid. Z. 2, t. 24. 3 2. (m) Ibid. l. 2, t. 33. Britton. l. 1, c. 22. (n) Ibid. 1. 2, t. 26 and 47. (p) 1 Inst. 391.

(g) Ibid. 1. 2. t, 24. (1) Ibid. l. 1, t. 5. (0) 3 Inst. 43.

(2) [But a forfeiture of land is not a necessary consequence of felony; for petit larceny is felony, which does not produce a forfeiture of lauds; but every species of felony is followed by forfeiture of goods and personal chattels.]

*The idea or felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them; and to this usage [*98] 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 (3) 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 misdemeanors 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 [*99] statute 17 Edw. III, none shall be so hardy to bring false and ill money into the realm, on pain or 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, suskins, 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 made current here by procla mation, shall (with their aiders and abettors) be guilty of misprision of treason. a crime which we shall hereafter consider. By statute 13 and 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 and 7 Wm. 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 and 9 Wm. 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

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

(r) 2 Stat. Hen. VI. c. 9.

(3) [The criminal law was considerably ameliorated, however, in this respect by the statuto 8 Geo. IV, c. 28, § 8, which enacted that any person convicted of felony not punishable with death should be punished in the same manner prescribed by the statute or statutes especially relating to such felony; and that every person convicted of a felony for which no punishment had been or might be specially provided, should be deemed to be punishable under that statute, and re liable to transportation for seven years, or imprisonment (with whipping if the court think fit for any term not exceeding two years.]

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 and 10 Wm. 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 within three months after the offence committed. But these precautions not being found sufficient to prevent [*100] the uttering of false or diminished money, which was only a misdemeanor at common law, it is enacted by statute 15 and 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 counterfeit 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 second, 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 years' 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 money, exceeding the sum of five pounds, being or purporting 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 moieties to the crown and prosecutor. Thus much for offences relating to the coin, as well misdemeanors as felonies, which I thought it most convenient to consider in one and the same view. (4)

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 [*101] council, he shall be guilty of felony. Secondly, by statute 9 Ann. c. 16, to assault, strike, wound or attempt to kill, any privy councillor in the execution. of his office, is made felony without benefit of clergy. (5)

3. Felonies in serving foreign states, which service is generally inconsistent with allegiance to one's natural prince, are restrained and punished by statute 3 Jac. I, c. 4, which makes it felony for any persons whatever to go out of the realm, to serve any foreign prince, without having first taken the oath of allegiance before his departure. And it is felony also for any gentleman, or person of higher degree, or who hath borne any office in the army, to go out of the realm to serve such foreign prince or state, without previously entering into a bond, with two sureties, not to be reconciled to the see of Rome, or enter into any conspiracy against his natural sovereign. And further, by statute 9 Geo. II, c. 30, enforced by statute 29 Geo. II, c. 17, if any subject of Great Britain shall enlist himself, or if any person shall procure him to be enlisted, in any foreign service, or detain or embark him for that purpose, without license under the king's sign manual, he shall be guilty of felony without benefit of clergy; but

(3) Sce book I, page 331.

(4) This subject is now covered by statute 24 and 25 Vic. c. 99, and the statutes mentioned in the text are repealed.

(5) All attempts to commit murder are now punishable without any distinction respecting the rank of the party, except in the case of the king and the royal family. See statute 24 and 25 Vic c. 100.

if the person so enlisted or enticed shall discover his seducer within fifteen days, so as he may be apprehended and convicted of the same, he shall be indemnified. By the statute 29 Geo. II, c. 17, it is moreover enacted, that to serve under the French king, as a military officer, shall be felony without benefit of clergy; and to enter into the Scotch brigade in the Dutch service, without previously taking the oaths of allegiance and abjuration, shall be a forfeiture of 5007. (6)

4. Felony by embezzling or destroying the king's armour or warlike stores is, in the first place, so declared to be by statute 31 Eliz. c. 4, which enacts, that if any person having the charge or custody of the king's armour, ordinance, ammunition, or habiliments of war, or of any victual provided for victualling the king's soldiers or mariners, shall either for gain, or to impede his majesty's service, embezzle the same *to the value of twenty shillings, such offence shall be felony. And the statute 22 Car. II, c. 5, takes [ *102 ] away the benefit of clergy for this offence, (7) and from stealing the king's naval stores to the value of twenty shillings; with a power for the judge, after sentence, to transport the offender for seven years. Other inferior embezzlements and misdemeanors, that fall under this denomination, are punished by statutes 9 and 10 Wm. III, c. 41, 1 Geo. I, c. 25, 9 Geo. I, c. 8, and 17 Geo. II, c. 40, with fine, corporal punishment, and imprisonment. And by statute 12 Geo. III, c. 24, to set on fire, burn, or destroy any of his majesty's ships of war, whether built, building, or repairing; or any of the king's arsenals, magazines, dock-yards, rope-yards, or victualling oflices, or materials thereunto belonging; or military, naval, or victualling stores, or ammunition; or causing, aiding, procuring, abetting, or assisting in, such offence; shall be felony without benefit of clergy.

5. Desertion from the king's armies in time of war, whether by land or sea, in England or in parts beyond the sea, is, by the standing laws of the land (exclusive of the annual acts of parliament, to punish mutiny and desertion), and particularly by statute 18 Hen. VI, c. 19, and 5 Eliz. c. 5, made felony, but not without benefit of clergy. But by the statute 2 and 3 Edw. VI, c. 2, clergy is taken away from such deserters, and the offence is made triable by the justices of every shire. The same statutes punish other inferior military offences with fines, imprisonment, and other penalties. (8)

(6) [These statutes of 9 Geo. II, and 29 Geo. II, are repealed by the 59 Geo. III, c. 69, which re-enacts and adds to their provisions, and by it the entering into, or agreeing to enter into, the aid of a foreign prince or people, &c., in any warlike capacity whatever, or going abroad with that intent, or attempting to get others to do so, is a misdemeanor, and punishable by fine or imprisonment, or both; and a penalty of 50. is imposed on masters of ships and owners for assisting in the offence: there are further provisions for preventing the offence.]

(7) This provision was repealed by statute 5 Geo. IV, c. 53.

(8) [To this class of felonies injurious to the king's prerogative, may be added two felonies fately created by the legislature, who thought it expedient to repress the attempts of mischievous and disaffected persons, by transportation or capital punishment. The 37 Geo. III, c. 70 (revived and made perpetual by the 57 Geo. III, c. 7), enacts, that if any person shall maliciously and advisedly endeavor to seduce any person serving in her majesty's service by sea or land from his duty and allegiance, or to incite any person to commit any act of mutiny or mutinous practice, he shall be guilty of felony, and shall suffer death without benefit of clergy. The crime, wherever committed, may be tried in any county. A sailor in a sick hospital, where he had been for thirty days, and therefore not entitled to pay, nor liable for what he then does to a court-martial, is a person serving in the king's forces by sea, within the 37 Geo. III, so as to make the seducing him an offence within that act. Russ. and I. C. C. 76.

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