affirm, that any other person hath any right or title to the crown of this realm, otherwise than according to the act of settlement; or that the kings of this realm with the authority of parliament are not able to make laws and statutes, to bind the crown and the descent thereof; such person shall be guilty of high treason. This offence (or indeed maintaining this doctrine in any wise, that the king and parliament cannot limit the crown) was once before made high treason by statute 13 Eliz. c. 1. during the life of that princess. And after her decease it continued a high misdemesnor, punishable with forfeiture of goods and chattels, even in the most flourishing aera of indefeasible hereditary right and jure divino succession. But it was again raised into high treason, by the statute of Anne before mentioned, at the time of a projected invasion in favour of the then pretender; and upon this statute one Matthews, a printer, was convicted and executed in 1719, for printing a treasonable pamphlet, entitled "vox populi vox Dei."

THUS much for the crime of treason, or laesae majestatis, in all its branches; which consists, we may observe, originally, in grossly counteracting that allegiance which is due from the subject by either birth or residence: though, in some instances, the zeal of our legislators to stop the progress of some highly pernicious practices has occasioned them a little to depart from this it's primitive idea. But of this enough has been hinted already; it is now time to pass on from defining the crime to describing its punishment.

THE punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually (by connivance", at length ripened by humanity into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and then cut down alive. 3. That his [93] entrails be taken out, and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal.

State Tr. IX. 680.

h 33 Ass. pl.7.

i

1 Hal. P. C. 382.

* This punishment for treason, sir Edward Coke tells us, is warranted by divers examples in Scripture; for

THE king may, and often doth discharge all the punishment, except beheading, 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'. 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 of death to another ". But of this we shall say more hereafter ".

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. (17)

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 altogether, as well in treason as in other offences.

Joab was drawn, Bigthan was hanged, Judas was embowelled, and so of the rest. (3 Inst. 211.)

1 Hal. P. C. 351.

m 3 Inst. 52.

n See ch. 32.

° 1 Hal. P. C.351.

P 2 Hal. P. C. 399.

(17) By the 30 G. 3. c. 48. this punishment of burning women for high or petit treason is abolished, and hanging by the neck is substituted; and by the 54G. 3. c.146., in all cases of high treason where the punishment would have been that first described in the text, the sentence now to be awarded is drawing on a hurdle, hanging by the neck till dead, beheading and quartering. But after judgment his majesty may, by warrant, under the sign manual, countersigned by a principal secretary of state, direct that the traitor shall not be drawn nor hanged, but be beheaded alive, and may in such warrant direct how the body, head, and quarters, shall be disposed of. By the French law high treason, when it consists in an attempt or conspiracy against the life or person of the King, is punished as parricide, with the addition of the forfeiture of the party's goods. See post, 203, n. Code penal, 1. iii. t. 1. s. 86.

1

CHAPTER THE SEVENTH.

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 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 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., 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,

:

ag Inst. 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 pλos, 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

1 Inst. 391.

Glossar, tit. Felon.

d See Vol. II. pag. 284.

"amittitur" 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 habere1: si a "domino, in jus eum vocante, ter citatus non comparueriti;” 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"buerit1;" 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. t.21.

Ibid. 1.2. t. 24.

Ibid. 1.2. 1.34. 1,2. 1.26. § 3.

h

Ibid. 1.2. t. 22.

k Feud. 1.2. t. 24. § 2.

1 Ibid. l. 1. t.5.

Ibid. 1.2. t. 38. Britton. l. 1. c. 22. " Ibid. 1.2. t. 26. & 47.