BOOK 4, CHAPTER 7 Of Felonies, Injurious to the King’s Prerogative

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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. 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 offense universally remitted. Treason itself, says Sir Edward Coke,1 was anciently comprised 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 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 all offenses, now capital, are in some degree or other felony: and this is likewise the case with some other offenses, which are not punished with death; as suicide, where the party is already dead; homicide by chance-medley, or in self-defense; 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 offense 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 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, an impostor or deceiver; others from the Latin, fallo, fefelli [deception], to countenance which they would have it called fallonia. Sir Edward Coke, as his manner is, has given us a still stranger etymology;2 that it is crimen animo felleo perpetratum [crime perpetrated with a bitter inclination], with a bitter or gallish inclination. But all of them agree in the description, that it is such a crime as works 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:3 in which language indeed, as the word is clearly of 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 lon, which signifies price or 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 feudal 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 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,4 are styled feloniae in the feudal law: “scilicet, per quas feudum amittitur” [“that is, by which the fee is lost”].5 As, “si domino deservire noluerit [by subtraction of suit and service];6 si per annum et diem cessaverit in petenda investitura [by neglect to be admitted tenant within a year and a day];7 si dominum ejuravit, i.e. negavit se a domino feudum habere [by disclaiming to hold of the lord, or swearing himself not his copyholder];8 si a domino, in jus eum vocante, ter citatus non comparuerit [by contumacy in not appearing in court after three proclamatons];”9 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;10 vitiating his wife or daughter, “si dominum cucurbitaverit, i.e. cum uxore ejus concubuerit” [“if he dishonor his lord, that is, lie with his wife”];11 all these are esteemed felonies, and the latter is expressly so denominated, “si fecerit feloniam, dominum forte cucurbitando” [“if he commit felony, as by dishonoring his lord”].12 And as these contempts, or smaller offense, 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 vassallus amitteret feudum si eam commiserit in dominum, feudi proprietatem etiam dominus perdere debet.”13 One instance given of this sort of felony in the lord is beating the servant of his vassal, so as 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 were to be determined “per laudamentum sive judicium parium suorum” [“by the verdict or judgment of his peers”] 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 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 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; 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 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 offense be no felony; as in the case of heresy by the common law, which, though capital, never worked any forfeiture of lands or goods,14 an inseparable 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 such standing mute is no felony. In short the true criterion of felony is forfeiture; for, as Sir Edward Coke justly observes,15 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 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 offense felony, the law16 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 expressly taken away by statute. And, in compliance herewith, I shall for the future consider it also in the same light, as 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 offenses 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. Offenses relating to the coin, not amounting to treason. 2. Offenses against the king’s council. 3. The offense of serving a foreign prince. 4. The offense of embezzling the king’s armor or stores of war. To which may be added a fifth, 5. Desertion from the king’s armies in time of war.

1. Offenses 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 statute 14 Eliz. c. 3. such as forge any foreign coin, although it be not made current here by proclamation, shall (with their aiders and abettors) be guilty of misprision of treason: a crime which we shall hereafter consider. By statute 13 & 14 Car. II. c. 31. the offense 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 & 7 W. 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 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 & 9 W. 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 sale 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 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 its baseness, and a fraudulent design) all such persons shall be guilty of felony. But these precautions not being found sufficient to prevent the uttering of false or diminished money, which was only a misdemeanor at common law, it is enacted by statute 15 & 16 Geo. II. c. 28. that if any person shall tender in payment any counterfeit coin, knowing it so to be, he shall for the first offense by imprisoned six months; and find sureties for his good behavior for six months more: for the second offense, shall be imprisoned and find sureties for two years: and, for the third offense, 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 for the first offense be imprisoned one year, and find sureties for his good behavior 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. Thus much for offenses relating to the coin, as well misdemeanors as felonies, which I thought it most convenient to consider in one and the same view.

2. FELONIES, against the king’s council,17 are; 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 council, he shall be guilty of felony. Secondly, by statute 9 Ann. c. 16. to assault, strike, wound, or attempt to kill, any privy counselor in the execution of his office, is made felony without benefit of clergy.

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 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 also for any gentleman, or person of higher degree, or who has 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 farther, 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 if the person, so enlisted or enticed, shall discover his seducer within fifteen days, so as he may by apprehended and convicted of the same, he shall himself be indemnified. By statute 29 Geo. II. c. 27. 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 500 £.

4. FELONY, by embezzling the king’s armor or warlike stores, is 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 armor, ordnance, ammunition, or habiliments of war; or of any victual provided for victualing 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 offense shall be felony. And the statute 22 Car. II. c. 5. takes away the benefit of clergy from this offense, so far as it relates to naval stores. Other inferior embezzlements and misdemeanors, that fall under this denomination, are punished by statute 1 Geo. I. c. 25. with fine and imprisonment.

5. DESERTION from the king’s armies in time of war, whether by land or sea, in England or in parts beyond the seas, 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 & 3 Edw. VI. c. 2. clergy is taken away from such deserters, and the offense is made triable by the justices of every shire. The same statutes punish other inferior military offenses fines, imprisonment, and other penalties.

NOTES

     1.    3 Inst. 15.

     2.    1 Inst. 391.

     3.    Glossar. tit. Felon.

     4.    See Vol. II. pag. 284.

     5.    Feud. l. 2. t. 26. in calc.

     6.    Feud. l. 1. t. 21.

     7.    Feud. l. 2. t. 24.

     8.    Feud. l. 2. t. 34. l. 2. t. 26. § 3.

     9.    Feud. l. 2. t. 22.

   10.    Feud. l. 2. t. 24. § 2.

   11.    Feud. l. 1. t. 5.

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

   13.    Feud. l. 2. t. 26 & 47.

   14.    3 Inst. 43.

   15.    1 Inst. 391.

   16.    1 Hawk. P. C. 107. 2. Hawk. P. C. 444.

   17.    See Vol. I. pag. 332.

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