by the strict severity of fact. We are, in the Life of Mr. Turgot, told in plain and sober prose, that so rigorous were the forest lawss of France even so lately, that a peasant, charged with having killed a wild boar, alleged as an alleviation of the charge, that he thought it was a man. * "in In these lectures, I have had frequent occasion to observe and to regret the imperfection and the impropriety, which are seen too plainly in the civil codes and institutions of Europe: it is the remark-it is the just remark of Sir William Blackstone, that, " in every country of Europe, the criminal law is more rude and imperfect than the civil." Instead of being, as it ought to be, an emanation from the law of nature and morality; it has too often been avowedly and systematically the reverse. It has been a combination of the strong against the weak, of the rich against the poor, of pride and interest against justice and humanity. Unfortunate, indeed, it is, that this has been the case; for we may truly say, that on the excellence of the criminal law, the liberty and the happiness of the people chiefly depend. By this time, you see very clearly, that I was well warranted to announce, even in the summary of my system, that the criminal law greatly needs reformation. I added-In the United States, the seeds of reformation are sown. Those seeds, and the tender plants which from some of them are now beginning to spring, let it be our care to discover and to cultivate. From those weeds, luxuriant and strong, with which they are still intermingled, and by which, if they continue so, they Pri. Lect. 297. y 4. Bl. Com. 3. will indubitably be choked, let it be our business industriously to separate them. From those beasts of the forest, by whom, if left unguarded, they will unquestionably be devoured, let it be our effort vigorously to defend them. In the fields of the common law, which, for ages past, have lain waste and neglected, some of those seeds and plants will, on an accurate inquiry, be found. In the gardens of the American constitutions, others, and the most choice of them, have been sown and planted by liberal hands. The generical term used immemorially by the common law, to denote a crime, is felony. True indeed it is, that the idea of felony is now very generally and very strongly connected with capital punishment; so generally and so strongly, that if an act of parliament denominates any new offence a felony, the legal inference drawn from it is, that the offender shall be punished for it capitally. But this inference, whatever legal authority it may now have acquired, is by no means entitled to the merit of critical accuracy. At this moment, every felony does not, in England, receive a punishment which is capital: petit larceny is a felony. At this moment, one felony escapes in England, as it must in all other countries, every degree of punishment that is human: suicide is a felony. At the common law, few felonies, indeed, were punished with death. Treason is now considered, both in legal and in vernacular language, as a species of crime distinct from that of felony; but originally it was not so considered. "In ancient time," says my Lord Coke,” “ every treason was comprehended under the name of felony." Indeed it was so, down even to the time of Edward the third; for the famous statute of treasons, made in his reign, uses these expressions" treason or other felony." It will be very important to ascertain the true meaning of a term, employed so extensively and so long by the common law, to convey the idea of a crime. In order to ascertain the true meaning, it is frequently of importance to ascertain the true etymology, of a term; and in order to ascertain that of the term felony, much learned labour has been bestowed by juridical lexico graphers and criticks. Sir William Blackstone asserts that its original is undoubtedly feudal; and being so, we ought to look for its derivation in the Teutonick or German language; and he prefers that given by Sir Henry Spelman; according to whom, felon is taken from two northern words, fee, which signifies, as all 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," says Sir William, "it will clearly signify the feudal forfeiture, or act, by which an estate is forfeited or escheats to the lord." He mentions two other derivations, and adds-"Sir Edward Coke, as his manner is, has given us a still stranger etymology; z 3. Ins. 15. VOL. III. D a 4. Bl. Com. 95. 96. that it is, "crimen animo felleo perpetratum," with a bitter or gallish inclination. The authority of Sir Henry Spelman, in matters of legal antiquity, is unquestionably respectable: it is unfortunate, on this as on many other occasions, that his Glossary, the work here cited, is not in my power; and, therefore, I cannot examine particularly what he says upon the subject. Serjeant Hawkins, so noted for his painful accuracy and his guarded caution, cites, in his treatise of the pleas of the crown, both the places which are cited by the Author of the Commentaries. The Serjeant had probably examined both: he follows the description of my Lord Coke. From this, I infer one of the two thingsthat Mr. Hawkins either found something in the Glossary, which prevented his assent to the conclusion drawn from it, or preferred the authority of my Lord Coke to that of Sir Henry Spelman. Thus, on one side we find Sir Henry Spelman and Sir William Blackstone; on the other, my Lord Coke and Serjeant Hawkins. In each scale of authority the weight is great; but, in both, it is equal the beam of decision inclines at neither end. : If an estate could be purchased, instead of being forfeited, by a felony, I can easily conceive how the crime might be viewed as the consideration of the purchase: if a fee signified a crime, instead of signifying a fief, I can easily conceive how the estate might be viewed as the value forfeited by its commission. But the "pretium feudi," applied in the manner and arrangement in which 4. Bl. Com. 95. 1. Ins. 391 a. the application is made here, appears, in my humble conception, to be etymology inverted. Thus stand the propriety and the authority of the derivation adopted by the Author of the Commentaries. My Lord Coke, when he refers the meaning and the description of felony to the motive, and not to the event, to the disposition which produced it, and not to the forfeiture which it incurs, cites, in the margin, the authority of Glanville, the oldest book now extant in law, and two very ancient statutes; one made in the reign of Henry the third; the other in that of his son, Edward the first. With regard to Glanville, there must be some numerical mistake in the margin; for it refers us to the fifteenth chapter of the fourteenth book: in that book, there are only eight chapters. The statutes I have examined: you shall judge whether they support that meaning of felony, for the truth of which they are cited. The first is the twenty fifth chapter of the statute of Marlbridge, which was made in the fifty second year of Henry the third. It is very short. "In future, it shall not, by our justices, be adjudged murder, where it is found misfortune only; but it shall take place as to such as are slain by felony-interfectis per feloniam-and not otherwise." Felony is here put most obviously in a contrasted opposition to misfortune; intention to accident. But what is peculiarly unfortunate for the etymology of Sir William Blackstone, a forfeiture was incurred at that time, and, according to the reprehensible theory retained in England for the sake of fees and not for the sake of justice, a forfeiture is still incurred, where a homicide happens by misfortune, as well as where it is committed C C 4. Bl. Com. 188. |