Chap. 7.] DEFINITION OF FELONY. CHAPTER VIL 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 prerogrative, it will not e 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, comprises every species of crime, which occasioned at common law the forfeiture of lands or goods.(1) 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 clergy- able, or to which the benefit of clergy extends, were anciently 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,(a) was anciently comprised under the name felony: and in con- firmation 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 [*95] 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 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 fel- ony 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 lfttle farther: 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 Voq, 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;(b) that it is crimen animo felleo _erpe- tratum, 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 feudal 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 Ion, which signifies price or value. Felony is therefore (a) 3 Inst. 15. (b) 1 Inst. 391. (6) Glossar. tit. Felon. (1) In some of the United States by statute the term "felony" is made to embrace all offences for which a specified punishment may be imposed; e.g., imprisonment in the state penitentiary. People v. Van Steenburgh, 1 Park. C. R. 39. In the absence of such statutory definition, those offences are felonies which were so at the common law: Ward v. People, 3 Hill, 395; Dren- nan v. People, 10 Mich. 169; though in Ohio, where all offences are statutory, it has been said that "the term felony has no distinct and well defined meaning applicable to our system of criminal jurisprudence. In England it has a well-known and extensive signification, and com- prises every species of crime which, at common law, worked a forfeiture of goods and lands. But under our criminal code the word felonious, though occasionally used, expresses a signi- fication no less vague and indefinite than the word criminal." Mathews v. State, 4 Ohio, N. S. 542. VOL II.-45 353 96 DEFINITION OF FELONY. [Book IV. [*96] 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 feudal forfeiture, or act by which an estate is forfeited, or escheats to the lord.(2) To confirm this we may observe, that it is, in this sense, of forfeiture to the lord, that the feudal writers constanItly 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 feudal law: "scilicet per quas feudum amittitur."(e) As "si domino deservire noluerit;(f) si per annum et diem ces- saverit in patenda investitura;(g) si dominum ejuraverit,i. e., negaverit sea dom- ino feudum habere;(h) si a domino, in jus eumi vocante, ter citatus non compa- ruerit;"(i) all these, with many others, are still causes of forfeiture in our copyhold estates, and were denominated felonies by the feudal constitutions. So likewise injuries of a 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 cucurbitaverit,i. e., cum uxore elus conculbue- rit;"(l) all these are esteemed felonies, and the latter is expressly so denomi- nated, "si fecerit felonium, 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 have forfeited his feud to the lord. "Si dominus commiserit feloniam, per quam vassallus amitteret feudum si eam commiserit in dominum, feudi proprietatem etiam dominus 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 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 laudamentum sive judicum parium suo- rum" in the lord's court; as with us forfeiture of copyhold lands are presenta- ble 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 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. 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 may be without inflicting capital punish- ment, as in the cases instanced of self-murder, excusable homicide and petit lar- ceny: 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,(o) an inseparable incident to felony. And of the same nature was the punishment of standing mute, without pleading to an indictment, which at 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(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. (d) See book IT, page 284. (e) Feud. 1.2, t. 16, in cale. (f ) Ibid. 1. 1, t. 21. (g) ibid. 1. 2, t. 24. (A) Ibid. 1. 2, t. 34,. 2, t. 26, J 3. (i) Ibid. 1. 2, t. 22. (k) Ibid. 1. 2. t. 24, § 2. ( ibid.1) 1. 1, t. 5. (m) Ibid. 1.2, t. 38. Britton, 1. 1, c. 22. (n) Ibid. 1. 2, t. 26 and 47. (o) 3 Inst. 43. (p) I Inst. 391. (2) [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 goo-is and personal chattels.] 354 Chap. 7.] OFFENCES RELATING TO THE Con1r. *The idea of felony is indeed so generally connected with that of capi- tal punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform.