FELONY, in the general acceptation of the law, comprehends every species of crime which occasions at common law the forfeiture of lands or goods. This most frequently happens in those crimes for which a capital punishment either is or used to be inflicted; for those felonies which are called clergyable, 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, was anciently included 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 felonies; but this is likewise the case with ι 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-larccny or pilfering; all which are, strictly speaking, felonies, as they subject those who commit them to forfeitures. Upon the whole, therefore, the only adequate definition of felony seems to be that which was before laid down, namely, 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.

The word felony, or felonia, is undoubtedly of feudal original, being frequently to be met with in the books of feuds, and in other works; but the derivation of it has much puzzled the juridical lexicoraphers Prataeus, Calvinus, and others. Some derive it from the Greek φrlKος, an impostor or deceiver ; others from the Latin fallo, fefelli, to countenance which they would have it called fellonia. Sir Edward Coke, as his manner is, has given us a still stranger etymology; that it is crimen animo felleo perpetratum, a crime perpetrated with a bitter or gallish inclination. But all agree in the description that it is such a crime as works a forfeiture of the offender’s lands or goods. And this gives great probability to Sir Henry Spelman’s derivation from the Teutonic or German, in which language, indeed, as the word is clearly of feudal origin, we ought rather to look for its signification, than amongst the Greeks and Romans. Eelon, then, according to him, is derived from two northern words, namely, fee, signifying the fief, feud, or beneficiary estate; and lon, which means 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 clearly signifies the feudal forfeiture or act by which an estate is forfeited, or escheats to the lord.

To confirm this we may observe, that in the sense of forfeiture to the lord, 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, are styled feloniae in the féodal law: scilicet, per quas feudum amittitur. Thus, si domino deservire noluerit; si per annum et diem cessaverit in petenda investitura ; si dominum ejuravit, id est, negavit se a domina feudum habere; si a domino in jus eum vacante, ter citatus non com-paruerit ; all which, with many others, are still causes of forfeiture in our copyhold estates, and vyere denominated felonies by the feudal constitutions. So likewise injuries o a more substantial or criminal nature were denominated felonies, that is, forfeitures; as assaulting or beating the [7:9:500] lord; vitiating his wife or daughter, si dominum cuxurbi-taverit, id cst, cum uxore ejus concubuerit ; all these are esteemed felonies, and the latter is expressly so denominated, si fecerit feloniam, dominum forte cucurbitando. 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 seig-nory to the vassal, by the same act as that by which the vassal would have forfeited his feud to the lord. Si dominus commisit feloniam, per quam vasaUus amitteret feudum si eum commiserit in dominum, feudi proprietatem etiam dominus perdere debet. One instance given of this sort of felony in the lord is beating the servant of his vassal, so that his service is lost; which seems merely in the nature of a civil injury, in as 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, the 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 that suicide, robbery, and rape, were felonies; that is, the consequence of such crimes was forfeiture: but by long use we began to signify by the term of felony the crime actually committed, and not the penal consequence thereof. And upon this system only can we explain the reason why treason in ancient times was held to be a species of felony; we mean, because it induced a forfeiture Hence it follows, that equal punishment does not by any 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 goods, 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, so that such standing mute was no felony. In short, the true criterion of felony is forfeiture; for, as Sir Edward Coke observes, in all felonies which are punishable with death, the offender loses his lands in feesimple, and also his goods and chattels; but in such as are not punishable he loses 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 now conform. If a statute, therefore, makes any new offence felony, the law implies that it shall be punished with death, that is, by hanging as well as forfeiture, unless the offender pray the benefit of clergy; which all felons are entitled once to have, unless the same is expressly taken away by statute.