Felony

The other day I read in an encyclopedia that crimes were divided into felonies and misdemeanors “by the nineteenth century.” Technically, that is true – since it happened long before. The development of the concept of felony was part of an important thing that happened in the early history of the common law.

It has always been true that crimes were viewed differently based on their degree of seriousness. It has always been true in English law that the seriousness of a crime could determine which court had jurisdiction of it. In feudal law, persons at each level of the feudal pyramid, from the king down to small land-holding vassals, could hold court to deal with crimes appropriate to their level. So, for example, treason against the king was tried in the king’s court; lesser, local crimes could be tried at the court of the local noble; and a few towns were allowed courts of their own to try petty thefts, commercial crimes, and the like.

One of the basic traits of our legal system is that when things are treated differently lawyers shape reality based on what treatment they want. We routinely develop civil and criminal cases so as so get them into Superior Court rather than Justice Court (or vice versa), or to get them out of Juvenile Court, or to get them into federal District Court, or we call an act negligence when we want insurance coverage and intentional when we want punitive damages or some statutory penalty, or call it a higher class of felony when we want more punishment for a particular individual or at least a better position to negotiate a plea. This is not a demonstration of modern cunning; it is how things have always worked. And that is why we have felonies.

King Henry II [1154-1189] is considered a founder of our legal system. Although that is an oversimplification, he worked hard to strengthen the legal system, both to improve the quality of justice and to solidify his own power. One of the things Henry and his lieutenants wanted to do was to increase the authority his court by increasing its jurisdiction. But they could not arbitrarily poach cases from other courts; holding court to punish certain crimes was part of a vassal’s feudal rights. So they tried, among other things, to expand the list of crimes properly tried by the king. Basically, they wanted jurisdiction over all important matters and those that were punished by heavy fines or confiscations (of which the noble holding the court got at least a part).

Before the twelfth century, “felony” meant what we call “treason.” Treason – an offense directly against the king’s authority – was of course tried in the king’s courts. During Henry II’s reign it appears that his vassals and the frankpledge (which I explained in another article, which you now know you should have been foresighted enough to read) were required to swear an oath to be loyal to the king and to keep the king’s peace. A major crime could be considered a violation of that oath. A violation of an oath given the king could be considered a direct violation against the king – in other words, a species of treason.

And so the king’s courts began to try perpetrators of serious crimes for their “felony” – i.e., the treasonous act of committing a crime in breach of their oath. Over time the meaning of the word – and this, too, is routine in the history of the common-law – changed to adapt itself to the new reality. By the middle of the thirteenth century “felony” no longer meant “treason.” Legal documents of the time did not entirely agree on which crimes were felonies but the leading text lists essentially the same ones we would think of today.

Henry II and his successors were eventually successful in asserting jurisdiction over most major matters; those lower in the feudal chain retained some concerning local matters of less consequence. That system is the origin of our courts today and of the notion that subject-matter jurisdiction depends not merely, or even primarily, on geography but instead on the nature of the case.