pieces (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 and 10 Wm. 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 found sufficient to prevent

[*100] the uttering of false or diminished money, which was only a misdemeanor at common law, it is enacted by statute 15 and 16 Geo. II, c. 28, that if any person shall utter or tender in payment 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. Also, if a person knowingly 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. 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 moieties to the crown and prosecutor. 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. (4)

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 conspires or confederates to kill any lord of this realm, or other person sworn of the king's [*101] council, he shall be guilty of felony. Secondly, by statute 9 Ann. c. 16, to assault, strike, wound or attempt to kill, any privy councillor in the execution of his office, is made felony without benefit of clergy. (5)

3. Felonies in serving foreign states, 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 further, 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 detain or embark him for that purpose, without license under the king's sign manual, he shall be guilty of felony without benefit of clergy; but

(8) See book I, page 334.

(4) This subject is now covered by statute 24 and 25 Vic. c. 99, and the statutes mentioned in the text are repealed.

(5) All attempts to commit murder are now punishable without any distinction respecting the rank of the party, except in the case of the king and the royal family. See statute 24 and 25 Vic c. 100.

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 the 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. (6)

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, ordinance, 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 twenty shillings, such offence

shall be felony. And the statute 22 Car. II, c. 5, takes away the benefit [*102] of clergy for this offence, (7) 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 and 10 Wm. 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. 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 and 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. (8)

(6) [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 50. is imposed on masters of ships and owners for assisting in the offence: there are further provisions for preventing the offence.]

(7) This provision was repealed by statute 5 Geo. IV, c. 53.

(8) [To this class of felonies injurious to the king's prerogative, may be added two felonies lately created by the Igislature, 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 endeavor 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 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. and R. C. C. 76.]

357

CHAPTER VIII.

OF PRÆMUNIRE.

A THIRD species of offence more immediately affecting the king and his government, though not subject to capital punishment, is that of præmunire; so called from the words of the writ preparatory to the prosecution thereof: "præmunire (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 harbored 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 authority, and hath been (as her prelates on *a trying occasion once [*104 ] 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 contract of every free state in the universe have vested in the sovereign power; and equally aiming at a distinct independent supremacy of their own, where spiritual men and spiritual causes are concerned. The dreadful effects of such a religious bigotry, when actuated by erroneous principles, even of the protestant kind, are sufficiently evident from the history of the anabaptists in Germany, the covenanters in Scotland, and that deluge of sectaries in England, who murdered their sovereign, overturned the church and monarchy, shook every pillar of law, justice, and private property, and most devoutly established a kingdom of the saints in their stead. But these horrid devastations, the effects of mere madness, or of zeal that was nearly allied to it, though violent and tumultuous, were but of a short duration. Whereas, the progress of the papal policy, long actuated by the steady counsels of successive pontiffs, took deeper root, and was at length in some places with difficulty, in others never yet, extirpated. For this we might call to witness the black intrigues of the jesuits, (a) A barbarous word for præmoneri. (1)

(c) Address to James II, 1687.

(b) Old. Nat. Brev. 101, edit. 1534.

(1) [Præmunio, in law-latin, is used, in all its tenses and participles, for præmonio or ci'o. Ducange Gloss.]

This chapter is wholly inapplicable in the United States.

so lately triumphant over Christendom, but now universally abandoned by even the Roman Catholic powers: but the subject of our present *chapter [105] rather leads us to consider the vast strides which were formerly made in this kingdom by the popish clergy; how nearly they arrived to effecting their grand design; some few of the means they made use of for establishing their plan; and how almost all of them have been defeated or converted to better purposes, by the vigour of our free constitution, and the wisdom of successive parliaments. The ancient British church, by whomsoever planted, was a stranger to the bishop of Rome, and all his pretended authority. But the pagan Saxon invaders, having driven the professors of Christianity to the remotest corners of our island, their own conversion was afterwards effected by Augustin the monk, and other missionaries from the Court of Rome. This naturally introduced some few of the papal corruptions in point of faith and doctrine; but we read of no civil authority claimed by the pope in these kingdoms, till the æra of the Norman conquest; when the then reigning pontiff, having favoured Duke William in his projected invasion, by blessing his host and consecrating his banners, took that opportunity also of establishing his spiritual encroachments: and was even permitted so to do by the policy of the conqueror, in order more effectually to humble the Saxon clergy and aggrandize his Norman prelates; prelates, who, being bred abroad in the doctrine and practice of slavery, had contracted a reverence and regard for it, and took a pleasure in riveting the chains of a free-born people.

The most stable foundation of legal and rational government is a due subordination of rank, and a gradual scale of authority; and tyranny, also, itself is most surely supported by a regular increase of despotism, rising from the slave to the sultan : with this difference, however, that the measure of obedience in the one is grounded on the principles of society, and is extended no farther than reason and necessity will warrant: in the other it is limited only by absolute will and pleasure, without permitting the inferior to examine the title upon which it is founded. More effectually, therefore, to enslave the consciences and minds of the people, the Romish *clergy themselves paid the most im

plicit obedience to their own superiors or prelates; and they, in their [*106] turn, were as blindly devoted to the will of the sovereign pontiff, whose decisions they held to be infallible, and his authority co-extensive with the Christian world. Hence his legates a latere were introduced into every kingdom of Europe, his bulls and decretal epistles became the rule both of faith and discipline, his judgment was the final resort in all cases of doubt or difficulty, his decrees were enforced by anathemas and spiritual censures, he dethroned even kings that were refractory, and denied to whole kingdoms (when undutiful) the exercise of Christian ordinances, and the benefits of the gospel of God

But, though the being spiritual head of the church was a thing of great sound, and of greater authority, among men of conscience and piety, yet the court of Rome was fully apprised that (among the bulk of mankind) power cannot be maintained without property; and therefore its attention began very early to be riveted upon every method that promised pecuniary advantage. The doctrine of purgatory was introduced, and with it the purchase of masses to redeem the souls of the deceased. New-fangled offences were created, and indulgences were sold to the wealthy, for liberty to sin without danger. The canon law took cognizance of crimes, enjoined penance pro salute animæ, and commuted that penance for money. Non-residence and pluralities among the clergy, and marriages among the laity, related within the seventh degree, were strictly prohibited by canon; but dispensations were seldom denied to those who could afford to buy them. In short, all the wealth of Christendom was gradually drained by a thousand channels into the coffers of the holy see.

The establishment also of the feudal system in most of the governments of Europe, whereby the lands of all private proprietors were declared to be holden of the prince, gave a hint to the court of Rome for usurping a similar authority over all the preferments of the church; which began first in Italy, and

gradually spread itself to England. The pope became a feudal lord: [*107] and all ordinary patrons were to hold their right of patronage under this universal superior. Estates held by feudal tenure, being originally gratuitous donations, were at that time denominated beneficia; their very name as well as constitution was borrowed, and the care of the souls of a parish thence came to be denominated a benefice. Lay fees were conferred by investiture or delivery of corporal possession; and spiritual benefices, which at first were universally donative, now received in like manner a spiritual investiture, by institution from the bishop, and induction under his authority. As lands escheated to the lord, in defect of a legal tenant, so benefices lapsed to the bishop upon non-presentation by the patron, in the nature of a spiritual escheat. The annual tenths collected from the clergy were equivalent to the feudal render, or rent, reserved upon a grant; the oath of canonical obedience was copied from the oath of fealty required from the vassal by his superior; and the primer seisins of our military tenures, whereby the first profits of an heir's estate were cruelly extorted by his lord, gave birth to as cruel an exaction of first fruits from the beneficed clergy. And the occasional aids and talliages, levied by the prince on his vassals, gave a handle to the pope to levy, by the means of his legates a latere, peter-pence and other taxations.

At length the holy father went a step beyond any example of either emperor or feudal lord. He reserved to himself, by his own apostolical authority, (d) the presentation to all benefices which became vacant while the incumbent was attending the court of Rome upon any occasion, or on his journey thither, or back again; and moreover such also as became vacant by his promotion to a bishopric or abbey: "etiamsi ad illa persona consueverint et de buerint per electionem aut quemvis alium modum assumi." And this last, the canonists declared, was no detriment at all to the patron, being only like the change of a life in a feudal estate by the lord. Dispensations to avoid these vacancies begat the doctrine of commendams: and papal provisions were the previous nomination to such benefices, by a kind of anticipation, before they *became [*108] actually void: though afterwards indiscriminately applied to any right of patronage exerted or usurped by the pope. In consequence of which the best livings were filled by Italian and other foreign clergy, equally unskilled in and averse to the laws and constitution of England. The very nomination to bishoprics, that ancient prerogative of the crown, was wrested from King Henry the First, and afterwards from his successor King John; and seemingly, indeed, conferred on the chapters belonging to each see; but by means of the frequent appeals to Rome, through the intricacy of the laws which regulated canonical elections, was eventually vested in the pope. And, to sum up this head with a transaction most unparalleled and astonishing in its kind, Pope Innocent III had at length the effrontery to demand, and King John had the meanness to consent to, a resignation of his crown to the Pope, whereby England was to become forever St. Peter's patrimony; and the dastardly monarch reaccepted his sceptre from the hands of the papal legate, to hold as the vassal of the holy see, at the annual rent of a thousand marks.

Another engine set on foot, or at least greatly improved, by the court of Rome, was a master-piece of papal policy. Not content with the ample provision of tithes, which the law of the land had given to the parochial clergy, they endeavoured to grasp at the lands and inheritances of the kingdom, and (had not the legislature withstood them) would by this time have probably been masters of every foot of ground in the kingdom. To this end they introduced the monks of the Benedictine and other rules, men of sour and austere religion, separated from the world and its concerns by a vow of perpetual celibacy, yet fascinating the minds of the people by pretences to extraordinary sanctity, while all their aim was to aggrandize the power and extend the influence of their grand superior, the pope. And as, in those times of civil tumult, great rapines and violence were daily committed by overgrown lords and their

(d) Extrav. l. 3, t. 2, c. 13.