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Book IV: Of Public Wrongs · Chapter 7 · first edition pages 94-101 · about 11 minutes

Of Felonies, Injurious to the King's Prerogative

Section headings, the boxes marked "Added by the editor" and the reading list at the end are not part of Blackstone's text. Everything else is Blackstone's, from the Oxford first edition, with the long s printed as a modern s.

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 enquire briefly into the nature and meaning of felony; before we proceed upon any of the particular branches, into which it is divided.

The meaning of felony

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 Coke1, 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 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 offences, now capital, are in some degree or other felony: and 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 chancemedly, or in self-defence; and petit larceny, or pilfering; all which are (strictly speaking) felonies, as they subject the committees 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, an impostor or deceiver; others from the Latin, fallo, scfelli, to ward Coke, as his manner is, has given us a still stranger etymology2; that it is crimen animo selleo perpetratum, 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 it3: 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 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 feodal forfeiture, or act by which an estate is forfeited, or escheats, to the lord.

Felony as forfeiture 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 estates4, are stiled feloniae in the feodal law: "scilicet, per quas feudum amittitur5." As, "si domino deservire noluerit6; si per annum et diem cessaverit in petenda investitura7; si dominum ejuravit, i. e. negavit se a domino feudum habere8; si a dorrino, in jus eum vocante, ter citatus non comparuerit9;" 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 lord10; vitiating his wife or daughter, "si dominum cucurbitaverit, i. e. cum uxore ejus concubuerit11;" all these are esteemed felonies, and the latter is expressly so denominated, "si fecerit feloniam, dominum forte cucurbitando12." And as these contempts, or smaller offence, 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 feignory to the vassal, by the same acts as the vassal would have forfeited his feud to the lord. "si dominus commisit feloniam, per quam vasallus amitteret feudum si eam commiserit in dominum, feudi proprietatem etiam dominus perdere debet13." 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 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 deflexion 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 antient times was held to be a species of felony: viz. because it induced a forfeiture.

Felony and capital punishment

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 the case of heresy by the common law, which, though capital, never worked any forfeiture of lands or goods14, 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 observes15, 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 do now conform. And therefore if a statute makes any new offence 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 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 which death may, or may not be, though it generally is, superadded.

Felonies injurious to the prerogative

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 imbezzling 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.

Offences relating to the coin

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. 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 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 500 l; 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, tough, 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 it's 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 misdemesnor 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 offence by imprisoned six months; and find sureties for his good behaviour for six months more: for the second offence, shall be imprisoned and find sureties for two years: 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 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. 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.

Felonies against the king's council

2. Felonies, against the king's council17, are; first, by statute 3 Hen. VII. c. 14. if any sworn servant of the king's houshold 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 counsellor in the execution of his office, is made felony without benefit of clergy.

Serving foreign states

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 hath 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 licence 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 l.

Embezzling the king's armour

4. Felony, by imbezzling the king's armour 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 armour, ordnance, ammunition, or habiliments of war; or of any victual provided for victualling the king's soldiers or mariners; shall, either for gain, or to impede his majesty's service, imbezzle the same to the value of twenty shillings, such offence shall be felony. And the statute 22 Car. II. c. 5. takes away the benefit of clergy from this offence, so far as it relates to naval stores. Other inferior imbezzlements and misdemesnors, that fall under this denomination, are punished by statute 1 Geo. I. c. 25. with fine and imprisonment.

Desertion from the army

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 offence is made triable by the justices of every shire. The same statutes punish other inferior military offences fines, imprisonment, and other penalties.

The original and more to read

Blackstone's notes

  1. 1. 3 Inst. 15.
  2. 2. 1 Inst. 391.
  3. 3. Glossar. tit. Felon.
  4. 4. See Vol. II. pag. 284.
  5. 5. Feud. l. 2. t. 26. in calc.
  6. 6. Feud. l. 1. t. 21.
  7. 7. Feud. l. 2. t. 24.
  8. 8. Feud. l. 2. t. 34. l. 2. t. 26. §. 3.
  9. 9. Feud. l. 2. t. 22.
  10. 10. Feud. l. 2. t. 24. §. 2.
  11. 11. Feud. l. 1. t. 5.
  12. 12. Feud. l. 2. t. 38. Britton. l. 1. c. 22.
  13. 13. Feud. l. 2. t. 26 & 47.
  14. 14. 3 Inst. 43.
  15. 15. 1 Inst. 391.
  16. 16. 1 Hawk. P. C. 107. 2. Hawk. P. C. 444.
  17. 17. See Vol. I. pag. 332.