Again, the term " PrEemunire was originally applied to offences which con sisted in the introduction of any foreign jurisdiction, more especially the autho rity of the See of Rome, into the king dom ; but has subsequently, to use the language of Mr. Serjeant Hawkins (Pleas of the Crown, b. 1, c. 19), "been applied to other heinous crimes, for the most part having relation to the offences origi nally coming under the notion of prm munire, but in some instances none at all." The Habeas Corpus Act (31 Car. II. a. 12) contains an instance of the latter mode of application. By the 12th section of that act it is made a PrEemunire to send any inhabitant of England, Wales, or the town of Berwick upon-Tweed, a prisoner beyond the seas in defiance of its provisions to the con The term " PrEemunire was adopted from the first word of the original writ on which the subsequentproceedings were founded : "Pramunire (for preento neri)facias A B. quod sit coram nobis," &c. [PaEximax.] The Criminal Law Commissioners propose to abolish prEe munires as a class of crimes. (Seventh Report.) The crime of felony had its origin in very remote times, and was founded upon feudal principles. Its incidents were not formerly, as they are now, of a merely arbitrary nature, peremptorily annexed to certain criminal acts without refer ence to rule or principle. The crime originally consisted in a violation of the feudal contract by the misconduct of the lord or of the tenant ; and where com mitted by the tenant, occasioned as a consequence the forfeiture of his feud to the lord. (4 Black. Comm., p. 96; 4th and 7th Repts. of Crim. Law Commrs.) Those crimes, therefore, which induced such forfeiture, and, by a small deflection from the original sense, those which in duced the forfeiture of goods also, were denominated felonies ; and afterwards by long use the term felony came to sig nify the actual crime itself, and not the penal consequence. " So that, upon the whole," to use the words of Mr. Justice Blackstone (4 Comm., p. 95), "the only adequate definition of felony 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 accord ing to the degree of guilt." Where the punishment is less than capital, the of fender loses his goods only ; where capital, his lands as well as his goods. The crimes which occasioned such forfeiture were originally, with one or two exceptions, capital ; but at the present day there are offences for which no greater punishment can be inflicted than imprisonment for a term not exceeding three years, which are felonies, and consequently occasion the forfeiture of all the offender's goods and chattels ; whilst other crimes, for which the punishment may be as high as transportation for fourteen years, and in one instance must be for life, are misde meanors only, and work no forfeiture. It is apparent from this that the present law is very defective, and that the amount of punishment is no longer the test of distinction between a felony and mis demeanor. It is proposed by the Crim mind Law Commissioners (Seventh Rep. p. 16) to remedy this by making the lia bility to transportation the test of dis tinction. i. e. that all offences liable to a less punishment than transportation should be misdemeanors only.
The term " Misdemeanor " is used in the English system of Criminal Law to denote such indictable offences as are of a lower degree than felony.
We shall now point out the peculiarities of punishment which distinguish one class of crimes from another at the present day. In order to this, the penal consequences incident to the whole body of offences con stituting each class will be first stated, and then in what respects those consequences differ from each other. The classes will
be taken in the same order as above.
1st. Treasons.—Treasons, with one ex ception mentioned below, are capital ; but whether capital or not, the offender, upon conviction, forfeits to the crown the per sonal estate of every description, whether in action or possession, or settled by way of trust, which the offender has otherwise than as an executor (Cro. Car. 566), or a trustee, or a mortgagee (4 & 5 Wm. IV. c. 23, s. 3) at the time of conviction ; and in the case of capital treasons, upon at tainder by judgment of death or outlawry, the blood of the offender is corrupted, but not so as to obstruct descents to such of fender's posterity, when they are obliged to derive a title through such offender to a remoter ancestor (3 & 4 Wm. IV. c. 106, s. 10), and all the freehold lands and tenements of inheritance in fee simple or fee-tail, and all other heredita ments (except copyholds), whether in possession, reversion, or remainder ; and all the rights of entry on freehold lands and tenements which the offender has (otherwise than as a trustee or mort gagee, 4 & 5 Wm. IV. c. 23, s. 3) at the time of the offence committed or at any time afterwards, and also the profits of all freehold lands and tenements which the offender has in his or her own right for life, so long as such interest shall subsist, and, if the offender be a male, his wife's dower, are forfeited to the crown (4 Black. Comm., 381; 26 Hen. VIII. c. 13, s. 5 ; 33 Hen. VIII. c. 20, s. 2 ; and 5 & 6 F,dw. VI. c. 11, ss. 9 and 13); and all the copyhold estates belong ing to the offender at the time of the of fence committed are forfeited to the lord of the manor (Com. Dig. Copyhold (M) I.). The above penal consequences are general to all capital treasons, unless, as is some• times the case, the act which creates the particular treason expressly exempts from some of them. The before-mentioned non-capital treason renders the party guilty of it liable to those only of the above consequences which accrue upon conviction, since the others follow only upon the party's being attainted, that is, sentenced to death or outlawed, which latter, in the case of capital treasons and felonies, is of the same effect as being sentenced to death. The existence of this non-capital treason would appear to be the result of inadvertence. By the Forgery Consolidation Act (II Geo. IV. & I Win. IV. e. 66), it was declared to be treason and punishable with death to forge the great and other royal seals and the sign manual. By the 2 & 3 Wm. IV. C. 123, the punishment of death was repealed for forgery in all but the two cases of wills and powers of attorney to transfer stock (it has been since taken away in these cases also by the 7 Wm. IV. & 1 Viet. c. 84); but the quality of the offences enumerated in the Forgery Consolidation Act was left without altera tion; so that to forge the royal seals, &c. would appear to be still treason, though no longer a capital offence.
The judgment of death in the case of treason is that the offender, if a male, be drawn on a hurdle to the place of execu tion, and be there hanged by the neck until dead ; and that afterwards the head be severed from the body of such of fender, and the body be divided into four quarters, to be disposed of as her majesty shall think fit (54 Geo. III c. 146); and, if a female, that the offender be drawn to the place of execution and be there banged by the neck until dead (30 Geo. III. c. 48, s. 1). The queen, however, may, by warrant under her sign manual, countersigned by a principal secretary of state, direct. where the offender is a male, that he shall not be drawn, but taken in such manner as in the warrant shall be expressed to the place of execution, and that he shall not be hanged, but be be headed, whilst alive, instead (54 Geo. III. C. 146, s. 2).