sist either of misdemeanors or felonies (i). The term misdemeanor (k) 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. 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. Treason itself, says Sir Edward Coke (1), was antiently comprised 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.] To explain this matter a little further: [the word felony, or felonia, is of undoubted feudal 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 nos, 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 (m),—that it is crimen animo felleo perpetratum, with a bitter or gallish inclination. But all of them agree in the description that (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 word "misdemeanor" in an indictment, see R. v. Powell, 2 B. & Ad. 75; Ryalls v. The Queen, 11 Q. B. 794. (1) 3 Inst. 15. [it is such a crime, as occasions the forfeiture of all the offender's lands or goods. And this,] as Blackstone observes, [gives great probability to Sir H. Spelman's Teutonic or German derivation of it (n); 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. Fe-lon, then, according to Spelman, 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 (o) is therefore the same as pretium feudi; the consideration for which a man gives up his fief; 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. as we say, 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 (q)." As "si 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 (n) 4 Bl. Com. 95, cites Gloss. tit. Felon. (o) As to the technical force of the word " felony" in an indictment, see Campbell v. The Queen, 11 Q. B. 799. (p) Vide sup. vol. 1. p. 640. (r) Ib. l. i. t. 21. (s) Ib. l. ii. t. 24. (t) Ib. t. 26, s. 3, t. 34. [or beating the lord (y), or vitiating his wife or daughter, "si dominum cucurbitaverit, i. e. cum uxore ejus concubuerit (z): all these are esteemed felonies, and the latter is expressly so denominated: si fecerit feloniam, dominum forte cucurbitando (a)." 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 (b)." One instance given of this sort of felony in the lord, is beating the servant of his vassal, so 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 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 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; 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 (c). (y) Feud. 1. ii. t. 24, s. 2. (2) Ib. l. i. t. 5. (a) Ib. l. ii. t. 38; Britton, 1. i. c. 22. (b) Feud. 1. ii. t. 26, 47. (c) At common law, however, the [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, 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] (d). 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, to this day, all felonies, punishable with death, occasion a forfeiture to a greater or less extent of the lands of the offender, and the total forfeiture of his goods and chattels ; and even such as are not so punishable, the total forfeiture of his goods and chattels (e). II. The nature of crimes in general 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 made. And herein we will briefly consider the power, the end and the measure of human punishments. [1. As to the power of human punishment; or the right of the temporal legislator, to inflict discretionary penalties for crimes and misdemeanors (g). It is clear that the right of punishing crimes against the law of nature,-as murder and the like,-is in a state of mere nature vested in every individual. For it must be vested in somebody, otherwise the laws of nature would be vain and fruitless, if none were empowered to put them in execution; and if that power is vested in any one, it must also be vested in all mankind, since all are by nature equal. Whereof the first murderer Cain, was so sensible, that we find him expressing his apprehensions, that whoever should find him would slay him (h). In a state of society, this right is transferred from individuals to the sovereign power: whereby men are prevented from being judges in their own causes, which is one of the evils which civil government was intended to remedy. Whatever power therefore individuals had of punishing offences against the law of nature, that is now vested in the magistrate alone; who bears the sword of justice by the consent of the whole community; and to this precedent natural power of individuals, must be referred that right which some have argued to belong to every state (i), of punishing not only their own subjects, but also foreign ambassadors, even with death itself, in case they have offended -not indeed against the municipal laws of the country, but-against the divine laws] or laws of nature, [and have become liable thereby to forfeit their lives for their guilt. As to offences merely against the laws of society, which are only mala prohibita and not mala in se (k), the temporal magistrate is also empowered to inflict coercive pe |