CHAPTER THE SEVENTH. OF FELONIES INJURIOUS TO THE KING's 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, comprizes every species of crime, which occasioned 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 universally remitted. Treason itself, says sir Edward Coke1, 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., speaking of some [95] dubious crimes, directs a reference to parliament, that it may be there 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, 8 Int. 15. 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 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 pnλos, 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; 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 in which language indeed, as the word is clearly of feodal original, we ought rather to look for it's 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 Ion, which signifies price or value. Felony is therefore the same as pretium feudi, the consideration for which a man [96] 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. 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, are styled felonia in the feodal law: " scilicet, per quas feudum d See Vol.II. pag. 284. 1 Inst. 391. Glossar, tit. Felon. " amittitur." 66 As," si domino deservire noluerit'; si per an num et diem cessaverit in petenda investitura; si dominum ejuraverit, i. e. negaverit se a domino feudum habere: si a "domino, in jus eum vocante, ter citatus non comparuerit;" 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; vitiating his wife or daughter, "si dominum cucurbitaverit, i. e. cum uxore ejus concu"buerit;" all these are esteemed felonies, and the latter is expressly so denominated, "si 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 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 vasal would have forfeited his feud by to the lord. "Si dominus "commiserit feloniam, per quam vasallus amitteret feudum si eam "commiserit in dominum, feudi proprietatem etiam dominus "perdere debet"." One instance given of this sort of felony in the lord is beating the servant of his vasal, so as that he loses his service; which seems merely in the nature of a civil [97] injury, so far as it respects the vasal. And all these felonies 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 a 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; e Feud. 1.2. t. 16. in calc. Ibid. l.1. 1.21. Ibid. 1.2. 1.24. h Ibid. 1.2. 1.34. 1.2. 1.26. § 3. Ibid. 1.2. 1. 22. * Feud. 1.2. t. 24. § 2. 1 Ibid. l. 1. 1.5. Ibid. 1.2. t. 38. Britton. l. 1. c.22. "Ibid. 1.2. t. 26. & 47. 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 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 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, 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, 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 [98] 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 statute 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, 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 repug nant 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 misdemesnors 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. (1) By statute 9 Edw. III. st. 2. no sterling money [99] shall be melted down, upon pain of forfeiture thereof. By statute 17 Edw. III. none shall be so hardy to bring false and ill money into the realm, on pain of 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' is forfeiture of an hundred shillings. (2) By statute 14 Eliz. c. 3. such as forge Stat. 2 Hen. VI. c. 9. (1) Pollards, crockards, scaldings, brabants, eagles, leonines, and pieces of many other denominations, were base coins, white in colour, compounded of silver, copper, and sulphur, introduced into the country by foreign merchants in large quantities. See Ruding. i. 386. (2) Gally-halfpence are supposed to have been so called from their being imported into the realm by Venetian and Genoese merchants, who navigated in gallies; the suskin was the Flemish seskin, or piece of six mites; the dotkin, the Holland doitkin, or duitkin, from which we now retain the word doit, to signify the smallest possible denomination of money; the blank, which was put down by 2H. 6., is supposed to have been a base 17 white |