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body be divided into four parts. 6. That his head and quarters be at the king's disposal.(K)
The king may, and often doth, discharge all the punishment, except behead ing, especially where any of noble blood are attainted. 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 o death to another.(m) But
of this we shall såy 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. 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)
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, is well in treason as in other offences.
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 prerogativo,
[*94 it will not be amiss here, at our first entrance pon 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. 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 itsulf, says Sir Edward Coke,(a) was antiently comprised under the name felony; and in confirmation of this, we may observe that the statute of treasons, 25 Edw. III. *95]
(1) This punishment for treason, Sir Edward Coke tells us, is warranted by divers examples in Scripture; for Joab was drawn, Bithan was hanged, Judas was embowelled, and ( 1 Hal. P. C. 351.
3 Inst. 52. (*) See ch. 32.
1 H. P. O. 351. (P) 2 Hal. P. C. 399. () 3 Inst. 15.
80 of the rest. 3 Inst. 211.
19 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 :-Et si nule femme de ascune treson soit attainte, soit ars. 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 y the neck until he be dead; and that afterwards his head shall be severed from his jody, 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 con. demned and executed within a few days after their trial.-Chitty.
c. 2, speaking of some dubious crimes, directs 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; homicide by chance-medley, or in self-defence; and petit larceny, or piltering; 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 à 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 further: 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 gonos, 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;(6) 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;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 sig.
nities price or value. Felony is therefore the same as pretium feudi, the *96] *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."
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) As, “si domino deservire noluerit; (f) si per annum et diem cessaverit in petenda investitura ;(9) si dominum ejuravit, i.e. negavit se a domino feudum habere; (h) 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 denomi. nated felonies by the feodal constitutions. So likewise injuries of & 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 čucurbitaverit, i.e. cum uxore ejus concubuerit;"(!) all these are esteemed felonies, and the latter is expressly so denominated, “si fecerit feloniam, dominum forte cucurbitando.” (m) 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 bave forfeited his feud to the lord. “Si dominus commisit feloniam, per quam vasallus amitteret feudum si eam commiserit in dominum, feudi proprietatem etiam dominus
(*) Ibid. I. 2, t. 84, 1.2, t. 26, 23.
(1) Ibid. 7. 2, 1. 22.
1 Inst. 391.
(1) Ibid. I, 1, t. 5.
1 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 porsonal chattels.-CHRISTIAN.
perdere debet."(n) 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 of a civil *injury, so far as it respects the vassal. And all these felonies were to be determined “per laudamentum sive judicium pa
[*97 rium 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 introductior. 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. 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. Anu 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,(0) 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 Coko 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 capital punishment that we find it hard to separate them; and to this
[*98 usage the interpretations of the law do now conform. And therefore, if a statute makes any new offence felony, the law(9) 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 complianco 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 punished by forfeiture, and to wbich 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 tho 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.
(P) 1 Inst. 391.
(?) 1 Hawk. P. C. 107. 2 Hawk. P. C. 444. * The criminal law has been considerably ameliorated, however, in this respect, by the statute 8 Geo. IV. c. 28, 8. 8, which enacts that any person convicted of felony not punishable with death shall be punished in the same manner prescribed by the statuto 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 imprisonment (with whipping, if the court think fit) for any term not exceeding two years. -KERR.
(*) Frud. l. 2, t. 26 and 47.
1. Offences relating to the coin, under which may be ranked some inferior misdemeanours 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 forfeit
ure 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-balf-pence, fuskins, or dotkins, in order to utter them, is felony; and knowingly to receive or pay either them or blanks(r) is forfeiture of a hundred shillings. 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 offence 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, sball 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 5001., 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 sell, 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 at a less rate than it imports to be of (which demonstrates a consciousness of its baseness, and a fraudulent design) any counterfeit or diminished milled money of this kingdom, not being cut in pieces; (an operation which is expressly directed to be performed when any such money shall be produced in evidence, and which any person, to whom any gold or silver money is tendered, is empowered, by statutes 9 & 10 W. III. c. 21, 13 Geo. III. c. 71, and 14 Geo. III. c. 70, to perform at his own hazard, and the officers of the exchequer and receivers-general of the taxes are
(") 2 Stat. Hen. VI. c. 9.
* Repealed, by 59 Geo. III. c. 49, s. 10, which enacts “that it shall and may be lawful for any person or persons to export the gold or silver coin of the realm to parts beyond the seas, and also to melt the gold and silver coin of the realm, and to manufacture or export, or otherwise dispose of, the gold or silver bullion produced thereby; and no person who shall export or melt such gold or silver coin, or who shall manufacture, export, or dispose of such bullion, shall be subject to any restriction, forfeiture, pain, penalty, incapacity, or disability whatever for or in respect of such melting, manufacturing, or exporting the same respectively; any thing in any act or acts in force in Great Britain or Ireland to the contrary thereof in any wise notwithstanding.”—Chitty.
* The importation of foreign bad coin is further provided against. Thus, by the 37 Geo. III. c. 126, s. 2, coining or counterfeiting any kind of coin not the proper coin of the realm, nor permitted to be current (id est, by proclamation under great seals within it, but resembling, or made with intent to resemble or look like, any gold or silver coin of any foreign state, &c., or to pass as such foreign coin, is a felony punishable with seven years' transportation. And, by the same act, (sect. 6,) having in custody, without lawful excuse, more than five pieces of bad coin, is punishable with a forfeiture of not exceeding 5l. nor less than 40s. for every piece. By section 3, importing counterfeit gold or silver foreign coin, not current, with intent to utter, is felony, punishable with transportation for not exceeding seven years. Importing with an intent to utter is a sufficient offence within the act, (1 East, P. Č. 176;) and, by 43 Geo. III. c. 139, s. 3, counterfeiting foreign coin not current by proclamation, but resembling copper or mixed metal coin of a foreign state, is a misdemeanour, punishable for the first offence by not exceeding one year's imprisonment, and, for the second, transportation for seven years. And sect
. 6 inficts a penalty of not exceeding 40s. nor less than 10s. for every such piece of coin in possession of a person who shall have more than five pieces in his custody without lawful excuse. And, by sect. 7, houses of suspected persons may be searched by warrant fos such counterfeit coin. See also 3 Geo. IV. c. 114.-CHITTY.
particularly required to perform ;) all such persons shall be guilty of felony, and may be prosecuted for the same at any time within three months after the offence committed. *But these precautions not being found sufficient to prevent the uttering of false or diminished money, which was only a
[*100 misdemeanour at common law, it is enacted, by statute 15 & 16 Geo. II. c. 28, that if any person shall utter or tender in payment any counterfeit coin, knowing it so to be, he shall for the first offence be imprisoned six months, and find sureties for his good behaviour for six months more; for the second offence, shall be imprisoned two years, and find sureties for two years longer; and for the third offence, 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 be deemed a common utterer of
5 Selling base and counterfeit money at a lower rate than its denomination importsas twenty bad half-crowns for a guinea—is a crime of great magnitude, and in populous towns is much practised. The offender in this case is either the coiner himself, or the wholesale dealer between the coiner and the utterer, who puts each piece into circulation at its full apparent value. The statute declares that the offender shall suffer death as in case of felony; but, not having expressly taken away the benefit of clergy, for the first offence he was subject only to be burned in the hand, and to suffer any imprisonment not exceeding a year; and, since the 19 Geo. III. c. 74, the burning in the hand may be changed by the court into a fine, or whipping publicly or privately, but not more than three times. An offender of this description must necessarily be so conversant with coining or coiners that public policy requires that in the first instance he should be sent out of the kingdom.
It has been determined that the term milled money does not mean edged nioney, or money marked on the edges.
The word milled seems to be superfluous, and to signify nothing more than coined money. Running's case, Leach, 708.
In a case where the prisoner had counted out a quantity of bad money and placed it upon a table for a person who had agreed to buy it, but before it was paid for, and whilst it lay upon the table, the prisoner was apprehended, it was held that he had not paid it or put it off, so as to be guilty of this crime. Wooldridge's case, Leach, 251.
Bui, in this case he certainly might have been prosecuted for a misdemeanour; for every attempt to commit either a felony or a misdemeanour is a misdemeanour. R. vs. Scofield, Cald. 397.
The R. vs. Sutton, 2 Stra. 1074, which is the basis of the cases R. vs. Scofield and R. vs. Higgins, 2 East, 5, is precisely in point upon this subject. A man was convicted of a misdemeanour for having in his possession two iron stamps, with intent to impress the sceptres on sixpences. The court, after hearing two arguments, declared “the intent is the offence, and the having in his custody is an act that is the evidence of that intent.”
This case is more fully reported in Cases in the Time of Lord Hardwicke, 370; and thero it appears that one count was for having in his custody a counterfeit half-guinea, with intent to utter it. The court take no notice of that count in their judgment; but in the argument four indictments are cited, for unlawfully procuring false money with intent to utter it, and with intent to defraud the people of England.
The words in the statute 15 & 16 Geo. II. are, "shall utter, or tender in payment;" and it has been decided that the words “in payment” refer to the word “tender" only; so that to tender in payment is one offence, and to utter is another; and a man was convicted of uttering who having received a good shilling immediately changed it and gave back a bad one, insisting it was the one he received. Frank's case, Leach, 736.
If a man is prosecuted for having uttered or tendered in payment any false money, and for having done the same within
ten days afterwards, these two acts must be charged in one count. Tandy's case, Leach, 970.
But it is not necessary to aver in such count that the defendant was a common utterer of false money. Smith's case, ib. 1001.-CHRISTIAN.
6 It is now settled that the mere act of having counterfeit silver in possession, with an intent to utter it as good, is no offence, for there is no criminal act done, (Russ. & R. C. C. 184, 288 ;) but procuring base coin, with intent to utter it as good, is a misdemeanour; and having a large quantity of such coin is evidence of having procured it with such intent, unless there are other circumstances to induce a suspicion that the defendant was the maker. Russ. & R. C. C. 308.--Cutty.
* By the 3 Geo. IV. c. 114, the prisoner may be sentenced to hard labour. The reward given by the 15 Geo. II. c. 7 is taken away by 58 Geo. III. c. 70.-Cutty.