ceeding to the crown, and shall maliciously and directly attempt the same by any overt act, such offence shall be high treason. And by [*92 statute 6 Anne, 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 persons 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 era of indefeasible hereditary right and jure divino(33) succession. But it was again raised into high treason, by the statute of Anne before mentioned, at the time of a projected invasion in favor 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) (34)

Thus much for the crime of treason, or læsæ 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 extreme torment of being dragged on the ground or pavement. (i) (35)

2. That he *be hanged by the neck, and then cut down alive. 3. That his [*93 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)(36)

The king may, and often doth, discharge all the punishment, except beheading, especially where any of noble blood are attainted. (37) For beheading 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 women 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)(38) 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.

*94]

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 and 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 *95] a reference to parliament, *that 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; (2) homicide by chance-medley, or in self-defence; and petit larceny, or pilfering; (p) 2 Hal. P. C. 399.

(a) 3 Inst. 15.

(38) 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 of execution, and there to be hanged by the neck till dead. Before this humane statute, women, from the remotest times, were sentenced to be burned alive for every species of treason. Britt. c. 8.-CHRISTIAN.

And now, by 54 Geo. III. c. 146, the judgment 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 been allowed between sentence and execution, (1 Burr. 650, 651;) 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.-CHITTY.

(1) Malone's Criminal Briefs, p. 11. Ex parte Wilson, 114 U. S. 417, 423 (1884), citing 4 Bl. 94, 95, 310.

(2) See Bl. 4, 189, 190. In Massachusetts suicide is deemed criminal as malum in se, [Wrong in itself,] and although an attempt to commit it is not punishable, yet a person

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. (3)

To explain this matter a little further: the word felony, or felonia, is of undoubted feodal original, being frequently to be met with in the books of feuds, etc.; but the derivation of it has much puzzled the juridical lexicographers, Prateus, Calvinus, and the rest; some deriving it from the Greek 20s, an impostor or deceiver; others from the Latin fallo, fefelli, (4) 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, (5) 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

(b) 1 Inst. 391.

who, in attempting to commit it, accidentally kills another who is trying to prevent its accomplishment, is guilty of criminal homicide. Commonwealth v. Mink, 123 Mass. 422, 425 et seq. (1877).

Ex parte Fernandez, 10 Common Bench Reports N. S. *3, *53 (1861). Since by the common law no crime was considered a felony which did not occasion a total forfeiture of the offender's lands, or goods, or both, it follows that a civil officer or citizen cannot, without a military order or a warrant, arrest a deserter from the army, desertion not having been punishable at common law by a forfeiture of lands or goods. Kurtz v. Moffitt, 115 U. S. 487, 499 et seq. (1885).

(3) Blackstone's definition of felony does not apply in America. The U. S. constitution, art. I, sec. 12, provides that "no conviction shall work corruption of blood, or forfeiture of estate.' The meaning of the word is defined in most states by statute, and the courts will not construe an offence to be a felony unless such construction is made necessary by the express words of the statute or by necessary implication. Wilson v. The State, I Wis. 184, 188 (1853).

Proffat on Jury Trials, 96, p. 137 (1877):—

"In the words of East, who follows Hale, 'all treason is felony and something more.' Bishop, 612, p. 376.

"Felony is any offence which by the statutes or by the common law is punishable with death, or to which the old English law attached the total forfeiture of lands or goods, or both, or which a statute expressly declares to be such." Bishop, 615, p. 377.

Russell on Crimes, 9 Am. ed. vol. 1, *78:

"The term felony originally embraced all offences which, at common law, were followed by a total forfeiture of goods or lands, or both. And notwithstanding that in our state this ingredient in the punishment of offences was long since almost entirely abolished, yet the term 'felony' continues to be used as denoting nearly the same crimes which were included by it before their common law characteristic of forfeiture was taken from them." Barbour's Crim. Law, 3 ed. vol. I, p. 6. (See N. Y. Code definition of felony.)

"Counterfeiting was formerly punished as treason, though now it is only felony. But perhaps the better opinion is, that counterfeiting is a species of the crime of forgery, to which it is quite analogous; and forgery rests on the broad foundation of an attempt to defraud individuals, and is punishable accordingly." Schouler's Personal Property, 2 ed. vol r, ? 348, p. 409. Bishop, 479, p. 293.

Malone's Criminal Briefs, p. 12 (1886).

Clark's Crim. Law, 9. p. 33 (1894). Also Bassett's Cr. Pl. 2 ed. ? 3, p. 2. Barrett, 5 Ga. 404, 412 (1848).

Adams v.

"Felony is a generic term, which includes all capital crimes." Holton v. The State, 2 Fla. 476, 506 (1849).

(4) [To deceive. ]

(5) We are now told that Coke's guess may be right after all, and that "of the many conjectures proposed, the most probable is that fellone-en is a derivative of the Latin fell-fel, gall, the original sense being one who is full of bitterness or venom, for gall and venom were closely associated in the popular mind. When the adjective felon first appears, it seems to mean cruel, fierce, wicked, base." Pollock & Maitland's History of Eng. Law, vol. 2, p. 463 (1895).

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: fee, which signifies (we well know) the fief, feud, or beneficiary estate, and lon, which signifies price or *96] 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. (6)

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)(7) As, "si domino deservire noluerit;(ƒ) si per annum et diem cessaverit in petenda 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)(8) 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 cucurbi taverit, i. e. cum uxore ejus concubuerit;" (l) (9) all these are esteemed felonies, and the latter is expressly so denominated, "si fecerit feloniam, dominum forte cucurbitando."(m)(10) 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. Si dominus commisit feloniam, per quam vasallus amitteret feudum si eam commiserit in dominum, feudi proprietatem etiam dominus perdere debet.”(n) (11) One instance given of this sort of felony in the lord is beating the servant of his

vassal so as that he loses his services; which seems merely in the nature *97] of a civil *injury, so far as it respects the vassal. And all these felonies were to be determined "per laudamentum sive judicium parium suorum," (12) in the lord's court; as with us forfeitures of copyhold lands are presentable by the homage in the court-baron.

(e) Gloss. tit. Felon.

(d) See book ii. page 284.

(e) Feud. l. 2, t. 16, in calc.

(f) Ibid. l. 1, t. 21.

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

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

(k) Ibid. l. 2, t. 24, @ 2.

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

(m) Ibid. l. 2, t. 38. Britton, l. 1, c. 22.
(n) Feud. l. 2, t. 26 and 47.

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

(6) But a forfeiture of land is not a necessary consequence of felony; for petit larceny is felony, which does not produce a forfeiture of lands; but every species of felony is followed by forfeiture of goods and personal chattels.-CHRISTIAN.

(7) ["That is, by which the fee is lost."]

(8) ["If he be unwilling to serve his lord; if for a year and a day he has failed to demand for possession; if he deny his master upon oath, i. e. deny that he holds his feud of his lord, or if being thrice called in court he does not appear."]

(9) ["If he dishonor his lord: that is, lie with his wife."]

(10) ["If he commit felony as by dishonoring his lord."]

(II)["If the lord commit a felony for which a vassal would lose his fee, had he committed such an offence against his lord, the lord ought also (in such a case) to lose his seignorship in the fee."]

(12) ["By the verdict or judgment of his peers."]

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. (13) 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 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. (14)

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.(15) 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 [*98 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. (16) 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 pun

(0) 3 Inst. 43.

(p) 1 Inst. 391.

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

(13) I Archbold's Crim. Pr. and Pl. 8 ed.

(14) The merger of a trespass in the felony (when the trespass is a felony) is a doctrine of the English law, founded not on policy, but on the king's right by forfeiture; and as forfeiture is not here a consequence of felony, or, at any rate, if it be, is never asserted, the doctrine does not apply in this country. White v. Fort, 3 Hawks (N. C.) 251, 266 (1824).

(15) For a full discussion of the derivation and earlier meanings of the word felony, see Pollock & Maitland's Hist. Eng. Law, vol. 2, pp. 464, 465. Hale v. Everett, 53 N. H. 9, 208 (1868).

(16) The criminal law has been considerably ameliorated, however, in this respect, by the statute (7 & 8) Geo. IV. c. 28, s. 8, which enacts that any person convicted of felony not punishable with death shall 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 has been or may be specially provided shall be deemed to be punishable under that statute, and be liable to transportation for seven years, or im