Зображення сторінки

[nature, in which the public punishment is not so severe ; and herein the distinction of crimes from civil injuries is very apparent. For instance, in the case of battery or beating another, the aggressor may be indicted for this, at the suit of the Crown, for disturbing the public peace, and be punished criminally by fine and imprisonment: and the party beaten, may also have his private ren

emedy by action of trespass, for the injury which he in particular sustains; and recover a civil satisfaction in damages. So also in case of a public nuisance,-as digging a ditch across a highway—this is punishable by indictment as a common offence to the whole kingdom and all the king's subjects ; but if any individual sustains any special damage thereby,—as laming his horse, breaking his carriage, or the like,—the offender may be compelled to make ample satisfaction, as well for the private injury as for the public wrong.

Upon the whole we may observe, that, in taking cognizance of all wrongs or unlawful acts, the law has a double view, viz. not only to redress the party injured, by either restoring to him his right (if possible), or by giving him an equivalent,—the manner of which was the object of our inquiries in the fifth book of these Commentaries; but also to procure to the public the benefit of society; by preventing or punishing every breach or violation of those laws which the sovereign power has thought proper to establish, for the government and tranquillity of the whole. What those breaches are, and how prevented or punished, are to be considered in the present Book.]

In ordinary language we understand, when we speak of crimes, such only as are subjects for indictment,a proceeding of which we shall have occasion to speak hereafter. For such breaches of law as are not the subjects for indictment, and are punishable merely by a pecuniary penalty recoverable on a summary conviction before a justice of the peace, are not usually designated as crimes,


but by the more general term of offences (h). Crimes thus understood consist either of misdemeanors or felonies (i). The term misdemeanor is, properly speaking, synonymous with that of crime; though, in common usage, the word is made to denote such crimes as amount not to felonies (R). Into the nature and meaning of the latter denomination, it will be expedient to enter a little more at large.

[Felony, in the general acceptation of our English law, comprises every species of crime, which occasioned at common law the forfeiture of lands and goods (I). Treason itself, says Sir Edward Coke, was antiently comprised under the name of felony (m); 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.

To explain this matter a little further: the word felony, or felonia, is of undoubted feudal origin (n); but the derivation of it has much puzzled the juridical lexicographers Prateus, Calvinus, and the rest; some deriving it from the Greek pynos, an impostor or deceiver; others from the Latin fallo, fefelli, to countenance which they would have called it fallonia. Sir E. Coke, as his manner is, has given us a still stranger etymology (o),—that it is crimen

(h) As to offences so punishable, vide post, c. xv.

(i) In order to prevent any failure of justice by reason of this technical distinction, it has been provided that if upon the trial of any person for any misdemeanor it shall appear that the facts given in evidence amount in law to a felony, such person shall not by reason thereof be entitled to be acquitted of such misdemeanor. (14 & 15 Vict. c. 100,

s. 12.)

(k) As to the technical force of the words “misdemeanor” and “fclony” in an indictment, see R. v. Powell, 2 B. & Ad. 75; Ryalls . The Queen, 11 Q. B. 794; Campbell v. The Queen, ib. 799.

(1) Vide sup. vol. 1. p. 442.
(m) 3 Inst. 15.
(n) Sce Gloss. tit. Felon.
(0) 1 Inst. 391.



(animo felleo perpetratum, with a bitter or gallish inclination. But all of them agree in the description that it is such a crime as occasioned the forfeiture of all the offender's lands or goods. And this gives great probability to Sir H. Spelman's Teutonic or German derivation of it; in which language indeed, (as the word is clearly of feudal origin,) we ought rather to look for its signification than among the Greeks and Romans.

According to Spelman, then, fe-lon is derived from two northern words: fee, which signifies 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


life estate is worth. In this sense it will clearly signify the feudal forfeiture, or act by which an estate was forfeited or escheated to the lord.

To confirm this 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 forfeiture of copyhold estates (p), are styled felonia in the feudal law : scilicet per quas feodum amittitur" (). Assi domino deservire noluerit (r); si per annum et diem cessaverit in petendâ investiturâ (s); si dominum ejuraverit, i. e. negaverit se a domino feudum habere (t); si a domino, in jus eum vocante, ter citatus non comparuerit" (u): 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 (x),

[ocr errors]

(P) Vide sup. vol. 1. p. 628.
(9) Feud. I. ii, t. 16.
(r) Ib. 1. i. t. 21.
(8) Ib. 1. ii. t. 24.

(t) Ib. t. 26, s. 3, t. 34.
(1) Ib. t. 22.
(r) Ib. 1. ji. t. 24, s. 2.

(or vitiating his wife or daughter, si dominum cucurbitaverit, i. e. cum uxore ejus concubuerit" (y). 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 seigniory to the vassal, by the same acts as the vassal would have forfeited his feud to the lord : “ si dominus commiserit feloniam, per quam vasallus amitteret feudum si eam commiserit in dominum, feudi proprietatem etiam dominus perdere debet(z). One instance given of this sort of felony in the lord, is beating the servant of his vassal, so that he lost 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 “


laudamentum sive judicium parium suorumin 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 eschcat 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

—were suicide, robbery, and rape, were felonies; i. e. 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.]

Hence it follows, that capital punishment does by no means enter into the true idea and definition of felony (a).

(y) Fcud. 1. i. t. 5.
(z) Ib. l. ji. t. 26, 47.

(a) At common law, however, the idea of felony was in general connected with that of capital punish

ment; "and therefore, if a statute “ makes any new offence felony, “ the law implies that it shall be

punished with death, viz. by hang“ing, as well as with forfeiture, un

Felony may be without inflicting capital punishment, as in the cases instanced of self-murder, manslaughter, and larceny; and in the case of many other offences made felonies by statute. And at a period of our law when punishment by death was more frequent than now, instances are not wanting where an offence was capital, though, (as it worked no forfeiture of land or goods,) it was no felony, as in the case of heresy, by the common law (a). And of the same nature, was the antient punishment for 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; and accordingly, up to a very recent time, all felonies occasioned a forfeiture of the goods and chattels of the offender, and in some cases of his lands also. But the law as to this though still of importance to the student -has been now altered. For by the Felony Act, 1870, it has been enacted, that, after the passing of that statute, no confession, verdict, inquest, conviction, or judgment of or for any treason or felony or felo de se shall cause any forfeiture (b).

II. [The nature of crimes being thus ascertained and distinguished, we proceed in the next place to consider the general nature of punishments; which are evils or inconveniences consequent on crimes and misdemeanors; being devised, denounced, and inflicted by human laws in consequence of disobedience or misbehaviour in those to regulate whose conduct such laws were respectively

“ less 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."-4 Bl. Com. 97. As to benefit of clergy (now abolished), vide post, c. XXIII,

(a) Bl. Com. ubi sup.

(6) 33 & 34 Vict. c. 23, s. 1. This enactment concludes as fol. lows: "provided that nothing in this Act shall affect the law of forfeiture consequent upon outlawry."


« НазадПродовжити »