from one species of death to another. But of this we shall fay more hereafter.

IN the cafe 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. But in treasons of every kind the punishment of women is the fame, and different from that of men. For, as the natural modesty of the sex forbids the expofing and publicly mangling their bodies, their fentence (which is to the full as terrible to sense as the other) is to be drawn to the gallows, and there to be burned alive.

THE Confequences 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.

A

3 Inft. 52.

i 1 Hal. P. C. 351.

* 2 Hal. P. C. 399.

:

CHAPTER THE SEVEN T H.

OF FELONIES, INJURIOUS TO THE KING'S PREROGATIVE.

AS

S, according to the method I have adopted, we are next to confider fuch 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 enquire 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, comprizes every species of crime, which occafioned at common law the forfeiture of lands or 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 antiently punished with death in all lay, or unlearned, offenders; though now by the statute-law that punishment is for the first offence univerfally remitted. Treason itself, fays fir Edward Coke, was antiently comprized under the name of felony and in confirmation of this we may observe, that the statute of treasons, 25 Edw. III. c. 2. fpeaking of fome dubious crimes, directs a 3 Inft. 15.

a

reference

reference to parliament; that it may be there adjudged, "whe"ther they be treason, or other felony." All treasons therefore, ftrictly speaking, are felonies; though all felonies are not treafon. And to this also we may add, that all offences, now capital, are in fome degree or other felony and this is likewise the cafe with fome other offences, which are not punished with death ; as suicide, where the party is already dead; homicide by chancemedly, or in felf-defence; and petit larceny, or pilfering; all which are (ftrictly speaking) felonies, as they fubject the committers of them to forfeitures. So that upon the whole the only adequate definition of felony feems to be that which is before laid down; viz. an offence which occafions a total forfeiture of either lands, or goods, or both, at the common law; and to which capital or other punishment may be fuperadded, 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: fome deriving it from the Greek, Oŋλos, an impoftor 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 ftill ftranger etymology; that it is crimen animo felleo perpetratum, with a bitter or gallish inclination. But all of them agree in the defcription, that it is fuch a crime as works a forfeiture of all the offender's lands, or goods. And this gives great probability to fir Henry Spelman's Teutonic or German derivation of it: in which language indeed, as the word is clearly of feodal original, we ought rather to look for it's fignification, than among the Greeks and Romans. Fe-lon then, according to him, is derived from two northern words; fee, which fignifies (we well know) the fief, feud, or beneficiary estate; and lon, which fignifies price or value. Felony is therefore the fame as pretium feudi, the consi

bi Inft. 391.

• Gloffar. tit. Felon

deration

Book IV. deration for which a man gives up his fief; as we say in common speech, fuch 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 efcheats, to the lord.

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 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 inveftitura; fi dominum ejuravit, i. e. negavit fe a "domino feudum habere; fi a domino, in jus eum vocante, ter ci“tatus non comparuerit;" all these, with many others, are still causes of forfeiture in our copyhold eftates, and were denominated felonies by the feodal constitutions. So likewise 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 conçubue"rit';" all these are esteemed felonies, and the latter is expreffly fo 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 feignory to the vassal, by the fame acts as the vaffal would have forfeited his feud to the lord. “Si dominus commifit feloniam, per quam vafallus amitteret feudum fi eam commiferit in dominum, feudi proprietatem etiam "dominus perdere debet "." One inftance given of this fort of felony in the lord is beating the fervant of his vafal, so as that he lofes his fervice; which feems merely in the nature of a civil

66

d See Vol. II. pag. 284.

Feud. 1. 2. t. 26. in calc.

f Feud. l. 1. 7. 21.

Feud. 1. 2. t. 24.

▲ Feud. 1. 2. t. 34. I. 2. t. 26. §. 3.

i Feud. 1. 2. t. 22.

* Feud. I. z. t. 24. §. 2.

1 Feud. l. 1. t. 5.

Feud. 1. 2. t. 38. Britton. . 1. c. 22.

n Feud. 1. 2. t. 26 & 47.

injury,

injury, fo far as it refpects the vasal. 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 said, that suicide, 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 fyftem only can we account for the cause, why treafon in antient times was held to be a fpecies 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, 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 case of heresy by the common law, which, though capital, never worked any forfeiture of lands or goods, an infeparable incident to felony. And of the same nature is the punishment of standing mute, without pleading to an indictment; which is capital, but without any forfeiture, and therefore fuch standing mute is no felony. In short the true criterion of felony is forfeiture; for, as fir Edward Coke juftly obferves", in all felonies which are punishable with death, the offender lofes all his lands in fee-fimple, and alfo his goods and chattels; in such as are not so punishable, his goods and chattels only.