stroying the king's armour or stores of war. To which may be added a fifth, 5. Desertion from the king's armies in time of war. 1. Offences relating to the coin (4), under which may be ranked some inferior misdemeanors not amounting to felony, are thus declared by a series of statutes which I shall recite in the order of time. And, first, by statute 27 Edw. I. c. 3. none shall bring pollards and crockards, which were foreign coins of base metal, into the realm on pain of forfeiture of life and goods. By statute 9 Edw. III. st. 2. no sterling money shall be melted [*99] down, upon pain of forfeiture thereof. By statute 17 Edw. III. none shall be so hardy to bring false and ill money into the realm, on pain of forfeiture of life and member by the persons importing, and the searchers permitting such importation (5). By statute 3 Hen. V. st. 1. to make, coin, buy, or bring into the realm any gally-halfpence, fuskins, or dotkins, in order to utter them, is felony; and knowingly to receive or pay either them or blanks (r) is forfeiture of an hundred shillings. By statute 14 Eliz. c. 3. such as forge any foreign coin, although it be not made current here by proclamation, shall (with their aiders and abettors) be guilty of misprision of treason: a crime which we shall hereafter consider (6). By statute 13 & 14 Car. II. c 31. the offence of melting down any current silver money shall be punished with forfeiture of the same, and also the double value: and the offender, if a freeman of any town, shall be dis-, franchised; if not, shall suffer six months' imprisonment. By statute 6 & 7 W. III. c. 17. if any person buys or sells, or knowingly has in his custody, any clippings, or filings, of the coin, he shall forfeit the same and 500l.; one moiety to the king, and the other to the informer; and be branded in the cheek with the letter R. By statute 8 & 9 W. III. c. 26. if any person shall blanch or whiten copper for sale (which makes it resemble silver); or buy or sell, or offer to sell any malleable composition, which shall be heavier than silver, and look, touch, and wear like gold, but be beneath the standard: or if any person shall receive or pay at a less rate than it imports to be of (which demonstrates a consciousness of (r) 2 Stat. Hen. VI. c. 9. (4) See note 16, p. 88. (5) Repealed by 59 Geo. III. c. 49. § 10. which enacts, "That it shall and may be lawfull for any person or persons to export the gold or silver coin of the realm to parts beyond the seas, and also to melt the gold and silver coin of the realm, and to manufacture or export, or otherwise dispose of the gold or silver bullion produced thereby; and no person who shall export or melt such gold or silver coin, or who shall manufacture, export, or dispose of such bullion, shall be subject to any restriction, forfeiture, pain, penalty, incapacity, or disability whatever, for or in respect of such melting, manufacturing, or exporting the same respectively; any thing in any Act or Acts in force in Great Britain or Ireland to the contrary thereof in anywise notwithstanding." (6) See post, 120. The importation of foreign bad coin is further provided against. Thus, by the 37 Geo. III. c. 126. s. 2. coining or counterfeiting any kind of coin, not the proper coin of the realm, nor permitted to be current (id est, by proclamation under great seal) within it, but resembling, or made with intent to resemble, or look like any gold or silver coin of any foreign state, &c. or to pass as such foreign coin, is a felony punishable with its baseness, and a fraudulent design) any counterfeit or diminished milled money of this kingdom, not being cut in pieces (7); (an operation which is expressly directed to be performed when any such money shall be produced in evidence, and which any person, to whom any gold or silver money is tendered, is empowered by statutes 9 & 10 W. III. c. 21, 13 Geo. III. c. 71, and 14 Geo. III. c. 70, to perform at his own hazard, and the officers of the exchequer and receivers general of the taxes are particularly required to perform :) all such persons shall be guilty of felony; and may be prosecuted for the same at any time within three months after the offence committed. *But these precautions not being [*100] found sufficient to prevent the uttering of false or diminished money, which was only a misdemeanor at common law, it is enacted by statute 15 & 16 Geo. II. c. 28. that if any person shall utter or tender in payment (8) any counterfeit coin, knowing it so to be, he shall for the first offence be imprisoned six months, and find sureties for his good behaviour for six months more; for the second offence, shall be imprisoned two years, and find sureties for two years longer; and for the third offence, shall be guilty of felony without benefit of clergy (9). Also, if a person know (7) Selling base and counterfeit money at a lower rate than its denomination imports, as twenty bad half crowns for a guinea, is a crime of great magnitude, and in populous towns is much practised. The offender in this case is either the coiner himself, or the wholesale dealer between the coiner and the utterer, who puts each piece into circulation at its full apparent value. The statute declares that the offender shall suffer death as in case of felony; but not having expressly taken away the benefit of clergy, for the first offence he was subject only to be burnt in the hand, and to suffer any imprisonment not exceeding a year; and since the 19 Geo. III. c. 74, the burning in the hand may be changed by the court into a fine, or whipping publicly or privately, but not more than three times. An offender of this description must necessarily be so conversant with coining or coiners, that public policy requires that in the first instance he should be sent out of the kingdom. It has been determined that the term milled money, does not mean edged money, or money marked on the edges. The word milled seems to be superfluous, and to signify nothing more than coined money. Running's case, Leach, 708. In a case where the prisoner had counted out a quantity of bad money, and placed it upon a table for a person who had agreed to buy it, but before it was paid for, and whilst it lay upon the table, the prisoner was apprehended, it was held that he had not paid it or put it off. so as to be guilty of this crime. Wooldridge's case, Leach, 251. But in this case he certainly might have been prosecuted for a misdemeanor; for every attempt to commit either a felony or a misdemeanor, is a misdemeanor. R. v. Scofield, Cald. 397. The R. v. Sutton, 2 Str. 1074, which is the basis of the cases, R. v. Scofield, and R. v. Higgins, 2 East, 5, is precisely in point upon this subject. A man was convicted of a misdemeanor, for having in his possession two iron stamps, with intent to impress the sceptres on sixpences. The court, after hearing two arguments, declared, "the intent is the offence, and the having in his custody is an act that is the evidence of that intent." This case is more fully reported in Cases in the Time of Lord Hardwicke, 370; and there it appears that one count was for having in his custody a counterfeit half-guinea, with intent to utter it. The court take no notice of that count in their judgment. But in the argument four indictments are cited, for unlawfully procuring false money with intent to utter it, and with intent to defraud the people of England. The words in the statute 15 and 16 Geo. II. are "shall utter, or tender in payment;" and it has been decided that the words in payment refer to the word tender only, so that to tender in payment is one offence, and to utter is another; and a man was convicted of uttering, who having received a good shilling, immediately changed it, and gave back a bad one, insisting it was the one he received. Frank's case, Leach, 736. If a man is prosecuted for having uttered, or tendered in payment, any false mony, and for having done the same within ten days afterwards, these two acts must be charged in one count. Tandy's case, Leach, 970. But it is not necessary to aver in such count, that the defendant was a common utterer of false money. Smith's case, Ib. 1001. (8) It is now settled, that the mere act of having counterfeit silver in possession, with an intent to utter it as good, is no offence, for there is no criminal act done. Russ. & R. C. C. 184. 288. But procuring base coin, with intent to utter it as good, is a misdemeanor; and having a large quantity of such coin is evidence of having procured it with such intent, unless there are other circumstances to induce a suspicion that the defendant was the maker. Russ. & R. C. C. 308. (9) By the 3 Geo. IV. c. 114. the prisoner may be sentenced to hard labour. The rewad ingly tenders in payment any counterfeit money, and at the same time has more in his custody; or shall, within ten days after, knowingly tender other false money; he shall be deemed a common utterer of counterfeit money, and shall for the first offence be imprisoned one year, and find sureties for his good behaviour for two years longer; and for the second, be guilty of felony without benefit of clergy. By the same statute it is also enacted, that if any person counterfeits the copper coin, he shall suffer two years' imprisonment, and find sureties for two years more. By statute 11 Geo. III. c. 40. persons counterfeiting copper half-pence or farthings, with their abettors; or buying, selling, receiving, or putting off any counterfeit copper money (not being cut in pieces or melted down) at a less value than it imports to be of; shall be guilty of single felony (10). And by a temporary statute, (14 Geo. III. c. 42.) if any quantity of money, exceeding the sum of five pounds, being or purporting to be the silver coin of this realm, but below the standard of the mint in weight or fineness, shall be imported into Great Britain or Ireland, the same shall be forfeited in equal moities to the crown and prosecutor (11). Thus much for offences relating to the coin, as well misdemeanors as felonies, which I thought it most convenient to consider in one and the same view. 2. Felonies, against the king's council (s), are these. First, by statute 3 Hen. VII. c. 14. if any sworn servant of the king's household [*101] conspires or confederates to kill any lord of this *realm, or other person, sworn of the king's council, he shall be guilty of felony. Secondly, by statute 9 Ann. c. 16. to assault, strike, wound, or attempt to kill, any privy counsellor in the execution of his office, is made felony without benefit of clergy. 3. Felonies in serving foreign states (12), which service is generally inconsistent with allegiance to one's natural prince, are restrained and punished by statute 3 Jac. I. c. 4. which makes it felony for any persons whatever to go out of the realm, to serve any foreign prince, without having first taken the oath of allegiance before his departure. And it is felony also for any gentleman, or person of higher degree, or who hath borne any office in the army, to go out of the realm to serve such foreign prince or state, without previously entering into a bond with two sureties, not to be reconciled to the see of Rome, or enter into any conspiracy against his natural sovereign. And farther, by statute 9 Geo. II. c. 30. enforced by statute 29 Geo. II. c. 17. if any subject of Great Britain shall enlist himself, or if any person shall procure him to be enlisted, in any foreign service, or de (s) See Book I. page 334. given by the 15 Geo. II. c. 7. is taken away by 58 Geo. III. c. 70. (10) The 15 & 16 Geo. II. c. 28, and the 11 Geo. III. c. 40. specify halfpence and farthings only; but other pieces of copper money having been since coined, the provisions of those statutes, by the 37 Geo. III. c. 126. are extended to all other pieces of copper money which are ordered to be current by the king's procla mation. A remarkable error is made in two different pages of Mr. East's publication upon criminal law, which states the punishment for coining copper money, and for selling counterfeit money for less than its denomination imports, to be only burning in the hand, and imprisonment not exceeding a year. 1 Cast P. C. 162 & 181. But the punishment before the 19 Geo. III. in all cases of felony, which had the benefit of clergy, was burning in the hand; and imprisonment for any time, at the discretion of the judge, not more than for one year, under the 18 Eliz. c. 7, § 3. By the 19 Geo. III. c. 74. burning in the hand may be changed at the discretion of the judge into a fine, or whipping not more than three times. See p. 372. post. (11) This statute, by the 39 Geo. III. c. 74. is revived and made perpetual. (12) The serving a foreign state seems punishable in the U. S. only when that state is at war with another state with which the U. S. are at peace. See Story's laws U. S. 1694. As to embezzlement and desertion, see id, 992, &c. tain or embark him for that purpose, without licence under the king's sign manual, he shall be guilty of felony without benefit of clergy; but if the person so enlisted or enticed, shall discover his seducer within fifteen days, so as he may be apprehended and convicted of the same, he shall be indemnified. By statute 29 Geo. II. c. 17. it is moreover enacted, that to serve under the French king, as a military officer, shall be felony without benefit of clergy; and to enter into the Scotch brigade in the Dutch service, without previously taking the oaths of allegiance and abjuration, shall be a forfeiture of 5001. (13). 4. Felony by embezzling or destroying the king's armour or warlike stores, is, in the first place, so declared to be by statute 31 Eliz. c. 4. which enacts, that if any person having the charge or custody of the king's armour, ordnance, ammunition, or habiliments of war; or of any victual provided for victualling the king's soldiers or mariners; shall, either for gain, or to impede, his majesty's service, embezzle the same to the value of [*102] twenty shillings, such offence shall be felony. And the statute 22 Car. II. c. 5. takes away the benefit of clergy from this offence (14), and from stealing the king's naval stores to the value of twenty shillings; with a power for the judge, after sentence, to transport the offender for seven years. Other inferior embezzlements and misdemeanors, that fall under this denomination, are punished by statutes 9 & 10 W. III. c. 41, 1 Geo. I. c. 25, 9 Geo. I. c. 8, and 17 Geo. II. c. 40, with fine, corporal punishment, and imprisonment (15). And by statute 12 Geo. III. c. 24. to set on fire, burn, or destroy any of his majesty's ships of war, whether built, building, or repairing; or any of the king's arsenals, magazines, dock-yards, rope-yards, or victualling offices, or materials thereunto belonging; or military, naval, or victualling stores, or ammunition; or causing, aiding, procuring, abetting, or assisting in, such offence; shall be felony without benefit of clergy. 5. Desertion from the king's armies in time of war, whether by land or sea, in England or in parts beyond the sea, is by the standing laws of the land (exclusive of the annual acts of parliament to punish mutiny and desertion) and particularly by statute 18 Hen. VI. c. 19. and 5 Eliz. c. 5. made felony, but not without benefit of clergy. But by the statute 2 & 3 Edw. VI. c. 2. clergy is taken away from such deserters, and the offence is made triable by the justices of every shire. The same statutes punish other inferior military offences with fines, imprisonment, and other penalties (16). (13) These statutes of 9 Geo. II. and 29 Geo. II. are repealed by the 59 Geo. III. c. 69. which re-enacts and adds to their provisions, and by it the entering into, or agreeing to enter into, the aid of a foreign prince or people, &c. in any warlike capacity whatever, or going abroad with that intent, or attempting to get others to do so, is a misdemeanor, and punishable by fine or imprisonment, or both; and a penalty of 501. is imposed on masters of ships and owner for assisting in the offence; there are further provisions for preventing the offence. (14) This provision of the statute 22 Car. II. c. 5, which takes away the benefit of the clergy, is repealed by the 5 Geo. IV. c. 53, and offenders may be transported for life, or for not less than seven years, or imprisoned, with or without hard labour, for not exceeding seven years. (15) By the 39 & 40 Geo. III. c. 89. s. 1. persons, other than contractors, receiving or having stores of war in their possession, may be transported for fourteen years; and by sec. 2. persons convicted of offences against the 9 & 10 Wm. III. may, in addition to the punishment thereby to be inflicted, be punished with whipping and imprisonment, or either, but the penalty may be mitigated. (16) To this class of felonies injurious to the king's prerogative, may be added two felonies lately created by the legislature, who thought it expedient to repress the attempts of mischievous and disaffected persons, by transportation or capital punishment. The 37 Geo. III. c. 70. (revived and made perpetual by the 57 Geo. III. c. 7.) enacts, that if any person shall maliciously and advisedly endea CHAPTER VIII. OF PRAEMUNIRE. A THIRD species of offence more immediately affecting the king and his government, though not subject to capital punishment, is that of praemunire; so called from the words of the writ preparatory to the prosecution thereof: "praemunire (a) facias A. B.” cause A. B. to be forewarned that he appear before us to answer the contempt wherewith he stands charged: which contempt is particularly recited in the preamble to the writ (b). It took its original from the exorbitant power claimed and exercised in England by the pope, which even in the days of blind zeal was too heavy for our ancestors to bear. It may justly be observed, that religious principles, which (when genuine and pure) have an evident tendency to make their professors better citizens as well as better men, have (when perverted and erroneous) been usually subversive of civil government, and been made both the cloak and the instrument of every pernicious design that can be harboured in the heart of man. The unbounded authority that was exercised by the Druids in the west, under the influence of pagan superstition, and the terrible ravages committed by the Saracens in the east, to propagate the religion of Mahomet, both witness to the truth of that ancient universal observation, that in all ages and in all countries, civil and ecclesiastical tyranny are mutually productive of each other. It is therefore the glory of the church of England, that she inculcates due obedience to lawful [*104] authority, and hath been (as her prelates on a trying occasion once expressed it) (c) in her principles and practice ever most unquestionably loyal. The clergy of her persuasion, holy in their doctrines and unblemished in their lives and conversation, are also moderate in their ambition, and entertain just notions of the ties of society and the rights of civil government. As in matters of faith and morality they acknowledge no guide but the Scriptures, so, in matters of external polity and of private right, they derive all their title from the civil magistrate; they look up to the king as their head, to the parliament as their lawgiver, and pride themselves in nothing more justly, than in being true members of the church, emphatically by law established. Whereas the notions of ecclesiastical liberty, in those who differ from them, as well in one extreme as the other (for I here only speak of extremes), are equally and totally destructive of those ties and obligations by which all society is kept together; equally encroaching on those rights, which reason and the original con(a) A barbarous word for praemoneri (1). (b) Old. Nat. Brev. 101, edit. 1534. vour to seduce any person serving in her majesty's service by sea or land from his duty and allegiance, or to incite any person to commit any act of mutiny or mutinous practice, he shall be guilty of felony, and shall suffer death without benefit of clergy. The crime, wherever committed, may be tried in any county. A sailor in a sick hospital, where he had been for thirty days, and therefore not entitled to (c) Address to James II. 1687 pay, nor liable for what he then does to a court-martial, is a person serving in the king's forces by sea, within the 37 Geo. III. so as to make the seducing him an offence within that act. Russ. &. R. C. C. 76. (1) Praemunio, in law-latin, is used in all its tenses and participles, for praemoneo or cito. Ducange Gloss. |