2. i'mmunires.—The penalties of prte munire, as shortly summed up by Sir Ed ward eoke (1 Inst. 130a.), are, " that from the conviction the defendant shall be out of the king's protection, and his lands and tenements" (i. r. in fee-simple or for life, but not in tail, beyond his life interest therein), "goods and chattels, forfeited to the king ; and that his body shall re main in prison at the king's pleasure, or, as other authorities have it, during life." These penalties were first imposed by the stat. 16 Rich. II. c. 5 (commonly called the Statute of Prsemunire); and it is by reference to that statute that all subse quent prseninnires have been made pu nishable. It was formerly supposed that a person convicted of prtemunire, being put out of the king's protection, might be killed with impunity as being the king's enemy ; but by the 5 Eliz. c. 1, ss. 21 and 22, it was enacted that it should not be lawful to kill any person attainted in a prtemunire, saving such pains of death or other hurt or punishment as theretofore might, without danger of law, be done upon persons sending or bringing into the realm, &c. any process, &c. from the See of Rome. Prtemunires, although they occasion a forfeiture of the offender's lands and goods, are not felonies. To constitute a felony the offence must have worked a forfeiture at the common law ; but in the case of prtemunire the for feiture is made a part of the punishment by statute merely, which is not sufficient. (4 Black. Comm., pp. 94 and 118.) 3. Felonies. — All felonies, as stated above, were originally, with one or two ex ceptions, punishable with death ; but the offender, unless the felony was excluded from the benefit of clergy, was entitled. for a first offence, to be discharged from the capital_punishment upon praying that benefit. [BENEFIT OF CLERGY.) But now, since the passing of the 7 & 8 Geo. IV. c. 28, no felony is punishable with death unless it was excluded from the benefit of clergy before or ou the 14th Nov., 1826, or has been or shall be made punishable with death by some statute passed since that day. Where not capital, felonies are punishable either in the man ner prescribed by the statute or statutes specially relating to such felonies, or, where no punishment has been or may hereafter be specially provided, with transportation for seven years, or impri sonment for any term not exceeding two years, with the addition. if the court shall think fit, of whipping, where the offender is a male, hard labour and solitary con finement, or any of them. (7 & 8 Geo. IV. 0. 28, ss. 7 and 8.) Such confinement must not however be for a longer period than one month at a time, or three months in a year. (7 Will. IV. & I Vict. c. 90, s. 5.) In the case of all felonies, whe ther capital or not, the offender immedi ately on conviction forfeits to the crown all the personal estate of every descrip tion, whether in action or possession, or settled by way of trust, which he has otherwise than as an executor (Cro. Car. 566), or a trustee or mortgagee (4 & 5 Will. IV. c. 23, s. 3), at the time of con viction (Bac. Abrid., 'Forfeiture' (B); Co.-Litt. 391 a); and in the case of all capital felonies, upon attainder by judg ment of death or outlawry, forfeits to the crown the profits of all estates of freehold (4 Black. Comm., 385), and of things not lying in tenure (Bac. Abrid. For feiture' (A) ), and to the lord of the manor the profits of all estates of copy hold (Hawk. P.C. b. 2, c. 49, s. 7 ; Lord Cornwall's case, 2 Vent. 38-9), which the offender has, otherwise than as a trustee or mortgagee (4 & 5 Will. IV. c. 23, s. 3), at the time of the offence com mitted, during his life ; and his blood is corrupted (but not so as to obstruct de scents to the posterity of such offender where they are obliged to derive a title through him to a remoter ancestor (3 & 4 Will. IV. c. 106, s. 10), and after his death his copyholds which he holds in fee-simple are forfeited to the lord of the manor. (Striven On Copyholds, 523, note (d).) And also in the case of mur der, all his freehold lands and tenements in fee-simple escheat (subject to what is called the crown's year, day and waste) to the lord of the fee. (54 Geo. HI. c. 145; Co.-Litt. 391 a; 4 Black. Comm. 385.) The judgment of death in the case of all capital felonies, except murder, is that the offender be hanged by the neck until dead (2 Hale's P.C. 411) ; and, in the case of murder, it is the same, with the addition that the offender's body shall be buried within the precincts of the prison in which he shall have been confined after conviction. (2 & 3 Will. IV. c. 75, s. 16; 4 & 5 Will. IV. c. 26.) The court however is empowered, if it shall think that the offender is a fit sub ject to be recommended to the royal mercy, to abstain from pronouncing judg ment of death upon him, and to order such judgment to be entered of record in stead ; and the judgment so recorded has the same effect as if pronounced and the party were reprieved. (4 Geo. IV. c.
as. 1 and 2 ; & 7 Will. IV. c. 30, s. 2.)* 4. Misdemeanors.—The punishment in the case of misdemeanors, where none is specially provided by statute, is generally fine and imprisonment.
From what has been stated, it will be seen that the circumstance, so far as punishment is concerned, which dis tinguishes misdemeanors from all the other classes of offences, is the ab sence of forfeiture as a necessary con sequence of conviction. The distinction between prsemunires and felonies (which term, it should be remarked, in its largest sense, includes treasons, on account of the forfeiture which that class of crimes occasions) is, that the forfeiture which ensues upon a conviction of the former is, as before observed, in pursuance of statutable provisions ; whereas in the latter case it is a common law conse quence of the offence, and follows as a matter of course whenever a crime is de clared to be a felony. There appears to be no distinction as regards punishment, independently of special statutable enact ment, between non-capital felonies (the term is used here in its ordinary re stricted sense) and the non-capital treason above described ; but the difference be tween felonies and treasons when punish able with death is very considerable. In the case of felonies the offender upon attain der forfeits to the crown the profits only of such freehold and copyhold lands as he had at the time of committing the offence, during his life, and after his death, his copyholds in fee-simple are forfeited to the lord of the manor ; and even where attainted of murder, though his freehold estates in fee-simple fail after his death, it is not as a consequence of the law of for feiture, but because they escheat for want of heirs capable of succeeding to them, owing to his blood being corrupted by the attainder; and it is on account of such estates escheating and not being for feited that they go to the lord of the fee (that is, subject to the crown's year, day and waste), and not to the crown, unless there appears to be no intermediate lord between the offender and the crown, in which event the crown takes as ultimate lord of the fee. In the case of treason, however, the offender upon attainder, in stead of forfeiting to the crown the pro fits merely of such freehold lands as he had at the time of committing the offence, during his life, forfeits all freehold estates of inheritance, as well those in fee-tail as those in fee-simple, and not only such as he had at the time of the commission of the offence, hut those also which he may acquire at any time afterwards ; and instead of forfeiting to the crown the pro fits of his copyholds during his life, and to the lord of the manor his copyholds in fee-simple only, he forfeits at once to the lord of the manor all the copyholds be longing to him at the time the offence was committed. Where the offender is a male, his wife's dower is also forfeited to the crown, which is not the case in felony. It is to be observed that the crown is now empowered (see 59 Geo. III. c. 94) to re store the whole or any part of any lands or hereditaments to which it becomes en titled by escheat or forfeiture to the family of the offender, a provision which has greatly mitigated the harshness of the law of forfeiture. The Criminal Law Commissioners however recommend the entire abolition of the confiscation of pro perty as a necessary incident to convic tions for treason or felony. (Seventh Re port on Criminal Law.) The difference between the judgment of death for treason and that for felony requires no comment.
Besides the above peculiarities of pun ishment, these different classes of offences are distinguished by particular forms of procedure; but it will be more convenient to refer to these when describing our general system of criminal procedure.
Having pointed out the leading cha racteristics of the various classes into which indictable crimes are divisible by the law of England, it is now proposed to state shortly what are the different offences comprised under each of those classes. In this view the offences belong ing to each class are arranged under their several punishments. The classes are taken in the same order as before. It will be proper, however, in the first in stance, to show what persons are capable of committing crimes, to notice one or two provisions of general application, for the purpose of preventing repetition, and to make a few explanatory observations.