crimes, for which a capital punishment was liable to be inflicted. [* 46] Treason itself, says sir Edward Coke (q), was anciently comprised under the name of felony: and in confirmation of this we may observe that the statute of treasons, 25 Edw. 3, st. 5, 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, were felonies; though all felonies were not treason. And to this we may add, that not only all capital offences were in some degree or other felony, but that this was likewise the case with some other offences, which were not punished with death; as suicide, and homicide by chance-medley, which were (strictly speaking) felonies, as they subjected the committers of them to forfeitures. So that upon the whole the only adequate definition of felony seems to be that before laid down; viz., an offence which occasioned a total forfeiture of either lands, or goods, or both, at the common law; and to which capital or other punishment was formerly in almost every case superadded, according to the degree of guilt. To explain this matter a little further: the word "felony" or felonia, is of undoubted feudal origin, 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 (r); that is crimen animo felleo perpetratum, with a bitter or gallish inclination. But all our authentic. writers agree in the description, that felony is such a crime as occasioned a forfeiture of the offender's lands or goods. And this gives probability to sir Henry Spelman's Teutonic or German derivation of it (s): in which language indeed, as the word is clearly of feudal origin, we ought rather to [*47] look for its signification, than among the Greeks and Romans. Fe-lon then, according to him, is derived from the 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 gave up his fief; as we say in common speech, such an act is as much as your life, or estate, is worth. Thus it will clearly signify the feudal forfeiture, or act by which an estate was forfeited, or escheated to the lord. * To confirm which 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 (t), are styled felonia in the feudal law: "scilicet, per quas feudum amittitur” (u). As, “si domino deservire noluerit (x); si per annum et diem cessaverit in pretendâ investiturá (y); si dominum ejuravit, i. e., negavit se a domino feudum habere (z); si a domino, in jus eum vocante, ter citatus non comparuerit" (a); all these, with many others, are still causes of forfeiture in our copyhold estates, and were denominated felonies, by the feudal con (q) 3 Inst. 15. (r) 1 Inst. 391. (8) Glossar. tit. Felon, et vide Ducange, Gloss. tit. Fello. (t) See vol. ii. (u) Feud. 1. 2, t. 16, in calc. (x) Ibid. 1. 1, t. 21. (y) lbid. 1. 2, t. 24. (z) Ibid. 1. 2, t. 34, 1. 2, t. 26, s. 3. (a) Ibid. 1. 2, t. 22. stitutions. So likewise injuries of a more substantial or criminal nature were denominated felonies, that is, forfeitures: as assaulting or beating the lord (b); vitiating his wife or daughter, "si dominum cucurbitaverit, i. e. cum uxore ejus concubuerit" (c); all these were esteemed felonies, and the latter was expressly so denominated, "si fecerit feloniam, dominum forte cucurbitando" (d). And as these contempts, or smaller *offences, were felonies, or acts of forfeiture, of course greater [*48] 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" (e). 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 luudamentum 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 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 thereof. 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 might have been without inflicting capital punishment, as in the cases of self-murder, and excusable homicide: and capital punishment was formerly inflicted for an offence not felonious; thus heresy by the common law, of which in the ensuing chap[*49] ter we shall speak, though capital, never worked any forfeiture of lands or goods (f), 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 (g), in all felonies punishable with death, in his time, the offender lost all his lands in fee-simple, and also his goods and chattels; in such as were not so punishable, his goods and chattels only. The ancient criterion of felony, viz. forfeiture (h), still distinguishes it (b) Ibid. 1. 2, t. 24, s. 2. (c) Ibid. 1. 1, t. 5. (d) Ibid. 1. 2, t. 38; Britton, 1. 1, c. 22. (e) Feud. 1. 2, t. 26 and 47. (f) 3 Inst. 43. (g) 1 Inst. 391. only characteristic of a felony, it is a rule of the common law of England that a man shall not be allowed to make a felony the foundation of a civil action; to waive the felony and sue for damages. (Judgment, Stone v. Marsh, 6 B. & C. 564; Crosby v. Leng, (h) This, although the leading, is not the 12 East. 413.) A misdemeanor neither causes from any Misdemeanor what it is. ors. other indictable offence which is referable to the class of misdemeanA misdemeanor is indeed by our common law deemed to be inferior in degree to felony, and the indictment for a felony must set forth that the act charged was done "feloniously," in order that distinct intimation may be given to the accused as to the character of the accusation against him (i). To the unphilosophical distinction between felonies and misdemeanors, a distinction which might, it is conceived, be advantageously abolished, no further reference need here be made. (634) [*50] Introduction. *CHAPTER V. OFFENCES AGAINST RELIGION. IN the present chapter we are to enter upon the detail of the several species of crimes, with the punishment annexed to each by the law of England. It was observed, in the beginning of this Book (a), that a crime is a breach and violation of a public right and duty, owing to the whole community, considered as a community, in its social aggregate capacity. And at the very commencement of these Commentaries (b) it was shown, that human laws can have no concern with any but social and relative duties; being intended only to regulate the conduct of man, considered under various relations, as a member of society. All crimes ought therefore to be estimated merely according to the mischiefs which they produce in society (c): and, of consequence, private vices, in breach of mere absolute duties, which a man is bound to perform considered only as an individual, are not, cannot be, the object of any municipal law; any further than as by their evil example, or other pernicious effects, that may prejudice the community, and thereby become public crimes. Thus the vice of drunkenness, if committed privately and alone, is beyond the knowledge and of course beyond the reach of human tribunals: but if committed publicly, in the face of the world, its evil example makes it liable to temporal censure. The vice of lying, which consists [*51] (abstractedly taken) in a criminal* violation of truth, and therefore in any shape is derogatory from sound morality, is not however taken notice of by our law, unless it carries with it some public inconvenience, as if there be a conspiracy to raise the price of the funds by spreading false news (d), or some social injury, as slander and malicious prosecution, for which a private recompense is given. And yet drunkenness and malevolent lying may in foro. conscientiæ be as thoroughly criminal when they are not, as when they are, a forfeiture nor operates in suspension of a right of action originating out of the matter which is criminal. As to the non-suspension of the civil remedy where felonious homicide has been committed within 9 & 10 Vict. c. 93, s. 1. See post, chap. 13. (i) Reg. v. Gray, L. & C. 365, 371. (a) Ante, pp. 3, 4. (b) Ante, vol. i. p. 39. (c) Beccar. ch. 8. (d) R. v. Lord Cochrane, 2 Townsend, St. Tr. 1. (634) Misdemeanors comprise all offenses lower than felonies, which may be the subject of indictment. Com. v. Callaghan, 2 Va. Cas. 460; 1 Whart. Crim. Law, § 3. attended with public inconvenience. The only difference is, that both public and private vices are subject to the vengeance of eternal justice; and public vices are besides liable to temporal punishment by human tribunals. On the other hand, there are some offences punishable by the municipal law, which have in themselves nothing criminal, but are made unlawful by the positive constitutions of the state for public convenience. Such as smuggling, shooting game without a certificate, and the like. These are naturally no offences at all; but their whole criminality consists in disobedience to the supreme power, which has an undoubted right, for the well-being and peace of the community, to make some things unlawful, which were in themselves indifferent. Upon the whole, therefore, though some of the offences to be enumerated in the following sheets are offences against the revealed law of God, others against the law of nature, and some are offences against neither; yet in a treatise of municipal law we must consider them all as deriving their particular guilt, here punishable, from the law of man. Division of the subject. Having premised this caution, I shall proceed to distribute the several offences, which are either directly or by consequence injurious to civil society, and therefore punishable by the laws of England, under the following general heads: first, those which are more immediately injurious to religion; secondly, such as violate and * transgress the [* 52 ] law of nations; thirdly, such as more especially affect the sovereign and the government; fourthly, such as more directly infringe the rights of the public or commonwealth; and, lastly, such as derogate from those rights and duties, which are owing to particular individuals, and in the preservation and vindication of which the community is deeply interested. First, then, of such crimes as more immediately offend against religion, by openly transgressing its precepts natural or revealed; and mediately, by their bad example and consequence, the law of society also; which constitutes that guilt in the action, which human tribunals have in former, far more frequently than in later times, assumed to censure. I. Apostasy. I. Of this species the first to be mentioned is apostasy, or a total renunciation of christianity, by embracing either a false religion, or no religion at all. Apostasy is now punishable only when brought within the words of a statute presently set forth, and can only take place in such as have once professed the true religion. The perversion of a christian to judaism, paganism, or other false religion, was punished by the emperors Constantius and Julian with confiscation of goods (e); to which the emperors Theodosius and Valentinian added capital punishment, in case the apostate endeavoured to pervert others to the same iniquity (f). A punishment too severe for any temporal laws to inflict upon any spiritual offence: and yet the zeal of our ancestors imported it into this country; for we find by Bracton (g), that in his time apostates were to be burnt to death. Doubtless the preservation of christianity, as a national religion, is, abstracted from its own intrinsic truth, of the utmost consequence to the civil state: which a single instance will sufficiently demonstrate. The belief in a future state of rewards * and punishments, the entertaining just ideas of the moral attributes [* 53] of the Supreme Being, and a firm persuasion that he superintends and will finally compensate every action in human life (all which are clearly revealed in the doctrines, and forcibly inculcated by the precepts, of our Saviour Christ), these constitute the grand foundation of judicial oaths; which call God to witness the truth of those facts, which perhaps may be only known to him and the party attesting: all moral evidence, therefore, all confidence in human veracity, must be weakened by apostasy, and overthrown by total infidelity (h). Wherefore affronts to christianity, or endeavours to depreciate its efficacy, in those who have once professed it, have been held deserving of censure. For a long time, indeed, the offence of apostasy was cognisable only by the ecclesiastical courts, which corrected the offender pro salute animæ. But about the close of the 17th century, the civil liberties to which we were then restored being used as a cloak of maliciousness, and doctrines subversive of all religion being publicly avowed both in discourse and writings, it was thought necessary for the civil power to interpose, by not admitting those miscreants (mescroyantz) to the privileges of society, who maintained such principles as destroyed all moral obligation. To this end it was enacted by statute 9 & 10 Will. 3, c. 32 (i), that if any person educated in, or having made profession of, the christian religion, shall by writing, printing, teaching, or advised speaking, deny the christian religion to be true, or the holy scriptures to be of divine authority, he shall upon the first offence be rendered incapable to hold any office or place of trust; and, for the second, be rendered incapable of bringing any action, or* of being guardian, executor, legatee, or [*54] donee, and shall suffer three years' imprisonment without bail. To give room however for repentance, if, within four months after the first conviction, the delinquent in open court publicly renounces his error, he is discharged for that once from his disabilities. II. Heresy. II. Concerning heresy, although no longer cognisable by courts temporal, a few remarks may not be inappropriate. Heresy consisted, not in a total denial of christianity, but in a denial of some of its essential doctrines, publicly and obstinately avowed; being defined by sir Matthew Hale, "sententia rerum divinarum humano sensu excogitata, palam docta et pertinaciter defensa (k)." What doctrines were to be adjudged heresy, was left by our old constitution to the determination of the ecclesiastical judge; who had herein a most arbitrary latitude allowed him. For the general definition of a heretic given by Lyndewode (1), extends to the smallest deviations from the doctrines of holy church: "hæriticus est qui dubitat de fide catholica, et qui negligit servare ea, quæ Romana ecclesia statuit, seu servare decreverit.” Or, as the statute 2 Hen. 4, c. 15, expresses it in English, "teachers of erroneous opinions, contrary to the faith and blessed determinations of the holy church." Very contrary this to the usage of the first general councils, which defined all heretical doctrines with the utmost precision and exactness. And what ought to have alleviated the punishment, the uncertainty of the crime, seems to have enhanced it in those days of blind zeal and pious cruelty. (h) Utiles esse opiniones has, quis negat, cum intelligat, quam multa firmentur jurejurando; quante salutis sint fæderum religiones; quam multos divini supplicii metus a scelere revocarit; quamque sancta sit societas civium inter ipsos, Diis immortalibus interpositis tum judi- (k) 1 Hale, P. C. 384. |