Book IV. deration for which a man gives up his fief; as we fay in common speech, such an act is as much as your life, or estate, is worth. In this sense it will clearly fignify the feodal forfeiture, or act by which an estate is forfeited, or escheats, to the lord. To confirm this we may obferve, that it is in this sense, of forfeiture to the lord, that the feodal writers constantly use it. For all thofe acts, whether of a criminal nature or not, which at this day are generally forfeitures of copyhold eftates, are stiled feloniae in the feodal law: "fcilicet, per quas feudum amittitur.” As, "fi domino defervire noluerit; fi per annum et diem ceffaverit "in petenda inveftituras; fi dominum ejuravit, i. e. negavit fe a "domino feudum habere"; fi a domino, in jus eum vocante, ter ci"tatus non comparuerit1;" all these, with many others, are still causes 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"; vitiating his wife or daughter, "fi dominum cucurbitaverit, i.e. cum uxore ejus concubue"rit1;" all these are esteemed felonies, and the latter is expreffly so denominated, "fi fecerit feloniam, dominum forte cucurbitando".' And as these contempts, or smaller offences, were felonies or acts of forfeiture, of course 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 seignory to the vassal, by the fame acts as the vaffal would have forfeited his feud to the "Si dominus commifit feloniam, per quam vafallus amitteret feudum fi eam commiferit in dominum, feudi proprietatem etiam "dominus perdere debet "." One instance given of this fort of felony in the lord is beating the servant of his vasal, so as that he lofes his fervice; which feems merely in the nature of a civil lord. 66 . d See Vol. II. pag. 284. e Feud. 1. 2. t. 26. in calc. f Feud. l. 1. t. 21. Feud. 1. 2. t. 24. Feud. 1. 2. t. 34. 1. 2. t. 26. §. 3. i Feud. 1. 2. t. 22. × Feud. l. 2. t. 24. §. 2. 1 Feud. l. 1. t. 5. m Feud. 1. 2. t. 38. Britton. I. 1. c. 22. a Feud. 1. 2. t. 26 & 47. injury, injury, fo far as it refpects the vafal. And all these 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 easily trace the reason why, upon the introduction of that law into England, those crimes which induced fuch forfeiture or efcheat of lands (and, by a small deflexion from the original sense, such as induced the forfeiture of goods alfo) were denominated felonies. Thus it was faid, that fuicide, robbery, and rape, were felonies; that is, the consequence of such crimes was forfeiture; till by long use we began to fignify by the term of felony the actual crime committed, and not the penal confequence. And upon this system only can we account for the cause, why treason in antient 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 cafes instanced of self-murder, excufable homicide, and petit larciny: and it is poffible that capital punishments 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, an inseparable incident to felony. And of the fame nature is the punishment of ftanding mute, without pleading to an indictment; which is capital, but without any forfeiture, and therefore such standing mute is no felony. In fhort the true criterion of felony is forfeiture; for, as fir Edward Coke justly observes, in all felonies which are punishable with death, the offender lofes all his lands in fee-fimple, and also his, goods and chattels; in fuch as are not so punishable, his goods and chattels only. THE idea of felony is indeed fo 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 ftatute makes any new offence felony, the law 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, unless the same is expreflly taken away by statute. And, in compliance herewith, I fhall for the future confider it alfo in the fame 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 reafon of those instances I have mentioned, of felonies that are not capital, and capital offences that are not felonies: which feem 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, fuperadded. I PROCEED now to confider fuch 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 imbezzling the king's armour or ftores of war. To which may be added a fifth, 5. Desertion from the king's armies in time of war. I. OFFENCES relating to the coin, under which may be ranked some inferior misdemesnors not amounting to felony, are thus declared by a series of ftatutes, which I fhall 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 bafe metal, into the realm, on pain of forfeiture of life and goods. By ftatute 9 Edw. III. ft. 2. no sterling money fhall be melted 91 Hawk. P. C. 107. 2 Hawk. P. C. 444. down, down, upon pain of forfeiture thereof. By statute 14 Eliz. c.3. such 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 shall be punished with forfeiture of the fame, and alfo the double value: and the offender, if a freeman of any town, shall be disfranchised; if not, shall suffer fix months imprisonment. By statute 6 & 7 W. III. c. 17. if any person buys or fells, or knowingly has in his cuftody, any clippings or filings of the coin, he shall forfeit the fame and 500/; one moiety to the king, and the other to the informer; and be branded in the cheek with the letter R. By statute 8 & 9W. III. c. 26. if any person shall blanch, or whiten, copper for fale; (which makes it resemble filver) or buy or sell or offer to fale any malleable compofition, which shall be heavier than filver, and look, touch, and wear like gold, but be beneath the standard or if any perfon fhall receive or pay any counterfeit or diminished money of this kingdom, not being cut in pieces, (an operation which every man is thereby empowered to perform) at a less rate than it shall import to be of: (which demonstrates a consciousness of it's baseness, and a fraudulent defign) all fuch perfons fhall be guilty of felony. But these precautions not being found sufficient to prevent the uttering of false or diminished money, which was only a misdemefnor at common law, it is enacted by ftatute 15 & 16 Geo. II. c. 28. that if any person shall tender in payment any counterfeit coin, knowing it fo to be, he shall for the first offence be imprisoned fix months; and find fureties for his good behaviour for fix months more: for the fecond offence, fhall be imprisoned and find fureties for two years: and, for the third offence, shall 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 false money; he shall for the first offence be impri1oned one year, and find fureties for his good behaviour for two N 2 years years longer; and for the fecond, be guilty of felony without benefit of clergy. By the fame statute it is also enacted, that, if any perfon counterfeits the copper coin, he fhall fuffer two years imprisonment, and find fureties for two years more. Thus much for offences relating to the coin, as well misdemefnors as felonies, which I thought it most convenient to confider in one and the fame view. 2. FELONIES, against the king's council', are; first, by statute 3 Hen. VII. c.14. if any fworn fervant of the king's houshold confpires or confederates to kill any lord of this realm, or other person, fworn of the king's council, he shall be guilty of felony. Secondly, by ftatute 9 Ann. c. 16. to affault, ftrike, wound, or attempt to kill, any privy counsellor in the execution of his office, is made felony without benefit of clergy. any 3. FELONIES in ferving foreign ftates, which fervice 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 person 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 alfo for any gentleoffice man, or perfon of higher degree, or who hath borne in the army, to go out of the realm to serve such foreign prince or ftate, without previously entering into a bond with two fureties, not to be reconciled to the fee of Rome, or enter into any confpiracy against his natural fovereign. And farther, by statute 9 Geo. II. c. 30. enforced by ftatute 29 Geo. II. c. 17. if any fubject of Great Britain fhall enlist himself, or if any perfon shall procure him to be enlisted, in any foreign service, or detain or embark him for that purpose, without licence under the king's fign manual, he fhall be guilty of felony without benefit of clergy: but if the perfon, fo enlisted or enticed, fhall difcover his feducer within fifteen days, fo as he may be apprehended and convicted of the fame, he fhall himself be indem |