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 2 H. 6., is supposed to have been a base 17 white

any foreign coin, [of gold or silver,] 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. (3) 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, 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 500l.; 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 it's 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 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 [100] these precautions not being found sufficient to prevent the

white coin struck by Hen. V. in France, after his appointment to the regency according to the treaty of Troyes. Ruding. i. 492. 499. ii. 7.

(3) But by the 37 G. 5. c. 126. the making, coining, counterfeiting, or importing into the realm, knowing it to be counterfeit, and with intent to utter, any kind of coin not the proper coin of this realm, nor permitted to be current here, (i. e. not permitted by proclamation under the great seal,) but resembling, or intended to resemble any gold or silver coin of any foreign state, is made felony punishable with transportation for any term of years not exceeding seven.

uttering of false or diminished money, which was only a misdemesnor at common law, it is enacted by statute 15 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 counterfeit money, and shall for the first offence be imprisoned one year, and find sureties for his good behaviour 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. By statute 11 Geo. III. c. 40. persons counterfeiting copper halfpence or farthings, with their abettors; or buying, selling, receiving, or putting off any counterfeit copper money (not being cut in pieces or melted down) at a less value than it imports to be of; shall be guilty of single felony. (4) And by a temporary statute (14 Geo. III. c. 42.) if any quantity of money, exceeding the sum of five pounds, being or purporting to be the silver coin of this realm, but below the standard of the mint in weight or fineness, shall be imported

(4) The effect of this statute, thus changing a misdemeanour into a felony, has been incidentally to diminish the punishment; the fixed punishment for this offence by the 15 G. 2. c. 28. s.6. having been two years' imprisonment, whereas the imprisonment for a clergyable felony cannot exceed one year, unless where otherwise specially provided. The 37 G. 3. c. 126. extended the provisions of these acts from halfpence and farthings to all such pieces of copper money as shall be coined and issued by the king, and as shall by his royal proclamation, be ordered to be deemed and taken as current money of this realm. The 43 G. 3. c. 139. provides against the counterfeiting of foreign copper coin, or of other metal of less value than silver, not ordered by proclamation to be taken as current money of the realm, making the offence a misdemeanour, punishable the first time by imprisonment for any term not exceeding a year, and the second by transportation for seven years.

into Great Britain or Ireland, the same shall be forfeited in equal moities to the crown and prosecutor. Thus much for offences relating to the coin, as well misdemesnors as felonies, which I thought it most convenient to consider in one and the same view. (5)

(5) The 14 G. 3. c. 42. was revived and made perpetual by the 39 G. 3. c. 75., but so much of both as relate to the provision stated in the text for the forfeiture of light silver coin, is repealed by the 56 G.3. c. 68.

Before closing this head of offences, it is right to notice that, however the counterfeiting, impairing, and importing of base money had been provided for, there seems to have been no distinct provision against the exportation of base money to the foreign dominions of the king till the 58 G. 3. c. 67. This statute has made it an offence to export, or put on board any vessel, or even to have the custody of, any such coin for the purpose of exportation to any of his majesty's islands or colonies in the West Indies or America, punishable by a forfeiture of the coin, 2007., and the double of the value of the coin.

The number of statutes on the subject of the coin, which, after all, leave some offences unprovided for, and to be treated as common law misdemesnors, makes this one of the most perplexing and intricate titles of the criminal law. The expediency of a revision, and consolidation of them cannot be doubted; it would be found possible to repeal a great many, and leave the offences mentioned in them to the operation of the common law; and it would be easy very much to simplify their provisions, and free them from many inconsistencies. I have not attempted in a note to mention the numerous points that have been decided on them, because it would be impossible to do so usefully within any reasonable limits.

It is proper, however, to notice a class of offences connected with this subject, which existed when the author wrote, but which he has omitted to give any account of.

The 9 E. 3. st. 2. c. 1. and the 17 E.3. c. 15. prohibited the exportation of gold or silver plate, or money, which prohibition was confirmed and enforced by several statutes, in succeeding reigns. The 15 C. 2. c. 7. modified this general restraint, which had been found injurious, and permitted the exportation of all sorts of foreign coin or bullion of gold or silver. This again was restrained by 6 and 7 W. 3. c. 17., and by 7 and 8 W. 3. s. 19. which last prohibited the exportation of any molten silver or bullion whatsoever in any form, unless upon due proof made in the manner therein described before the court of the lord mayor, and aldermen of London, that the same was foreign bullion, and never had been coin of the realm, or clippings thereof, nor plate wrought within the kingdom. But these and all other statutes to the same effect were repealed by the 59 G.3. c. 49. and the gold and silver coin of this realm, and also the bullion produced by melting it, but not the clippings, or bullion produced by melting the clippings of the coin, may now be manufactured or exported, or otherwise disposed

of,