ished by forfeiture, and to which death may or may not be, though it generally is, superadded.

I proceed now to consider such felonies as are more immediately injurious to the king's prerogative. These are, 1. Offences relating to the coin, not amounting to treason. 2. Offences against the king's council. 3. The offence of serving a foreign prince. 4. The offence of embezzling or destroying the king's armor 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, 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 down, upon pain *99] 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. (17) By statute 3 Hen. V. st. 1, to make, coin, buy, or bring into the realm any gally-half-pence, fuskins, or dotkins, in order to utter them, is felony; and knowingly to receive or pay either them or blanks (r) is forfeiture of a 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. (18) By statute 13 & 14 Car. II. c. 31, the offence of (r) 2 Stat. Hen. VI. c. 9.

prisonment (with whipping, if the court think fit) for any term not exceeding two years. -KERR.

"This view accounts for the necessity of the averment of a felonious intent in all indictments for felony at common law, and also, in many cases, when made so by statute; because, if it is used, in the sense of the law, to denote the actual crime itself, the felonious intent becomes an essential ingredient to constitute it. The term signifying the crime committed, and not the degree of punishment, the felonious intent is of the essence of the offence; as much so as the intent to maim or disfigure in the case of mayhem, or to defraud, in the case of forgery, are essential ingredients in constituting the several offences. But, in cases where this felonious intent constitutes no part of the crime, that being complete, under the statute, without it, and depending upon another and different criminal intent, the rule can have no application in reason, however it may be upon authority. State v. Murphy, 17 R. I. 698, 703 (1893). Aldrich v. Wright, 53 N. H. 398, 415 (1873). Clergy incident to felony. State v. Boon, Taylor's Reports (N. C.) 246, 249 (1801). Russell on Crimes, 9 Am. ed. vol. 1, *78. "Death is the award of the law for a statutory felony where no specific provision directs otherwise." Bishop, 935, p. 565. Pettingill v. Rideaut, 6 N. H. 454, 455 (1833). Reg. v. Gray, 3 Crawford & Dix (Irish Cir.) 238, 240 (1843). For definition of felony, see Binn's Justice, 10 ed. (Brightly) 73 (1895).

(17) See 24 & 25 Vict. c. 99.

(18) 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, [i.e., that is,] by proclamation under the great seal) within it, but resembling, or made with intent to resemble or look like, any gold or silver coin of any foreign state, etc., or to pass as such foreign coin, is a felony punishable with seven years' transportation. And, by the same act, (sect. 6,) having in custody, without lawful excuse, more than five pieces of bad coin, is punishable with a forfeiture of not exceeding 57. nor less than 40s. for every piece. By section 3, importing counterfeit gold or silver foreign coin, not current, with intent to utter, is felony, punishable with transportation for not exceeding seven years. Importing with an intent to utter is a sufficient offence within the act, (1 East, P. C. 176;) and, by 43 Geo. III. c. 139, s. 3, counterfeiting foreign coin not current by proclamation, but resembling copper or mixed metal coin of a foreign state, is a misdemeanor, punishable for the first offence by not exceeding one year's imprisonment, and, for the second, transportation for seven years. And sect. 6 inflicts a penalty of not exceeding 40s. nor less than 1os. for every such piece of coin in possession of a person who shall have more than five pieces in his custody

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 disfranchised; 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 its baseness, and a fraudulent design) any counterfeit or diminished milled money of this kingdom, not being cut in 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 & 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. (19) *But these precautions not being found sufficient to prevent the utter- [*100 ing 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 per

without lawful excuse. And, by sect. 7, houses of suspected persons may be searched by warrant for such counterfeit coin.

See also 3 Geo. IV. c. 114.-CHITTY.

(19) 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 practiced. 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 burned 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 Stra. 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.

son shall utter or tender in payment(20) any counterfeit coin, knowing it so to be, he shall for the first offence be imprisoned six months, and find sureties for his good behavior 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. (21) 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 behavior 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. (22) 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.(23) 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 conspires or *101] 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 Anne, 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. (24)

(8) See book i. page 334.

The words in the statute 15 & 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 money, 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.-CHRISTIAN.

(20) 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.--CHITTY.

(21) By the 3 Geo. IV. c. 114, the prisoner may be sentenced to hard labor. The reward given by the 15 Geo. II. c. 7 is taken away by 58 Geo. III. c. 70.-CHITTY.

(22) The statute 24 & 25 Vict. c. 99, consolidates and amends the statute law of the united kingdom against offences relating to the coin.

(23) See Chitty's Eng. Statutes. Title Felony.

(24) This latter statute was enacted in consequence of Mr. Harley, the Secretary of State, being stabbed by Anthony Guiscard, a French marquis, while under examination

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 person 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 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 500l. (25)

4. Felony by embezzling or destroying the king's armor 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 armor, 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,(26) 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.(27) 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 victuallingoffices, or materials thereunto belonging; or military, naval, or victualling

before the privy council. See an account of this in one of the Examiners, by Dean Swift. -ARCHBOLD.

By stat. 9 Geo. IV. c. 31, these statutes are repealed; and (s. 11) all attempts to kill are made capital offences, without any distinction as to the rank of the party, with the exception of the king and the royal family.-STEWART.

(25) By statute 24 & 25 Vict. c. 100, the attempt to murder any person is declared to be felony, and, at the discretion of the court, is punishable with penal servitude for life. or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confine

ment.

(26) 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 labor, for not exceeding seven years.-CHITTY.

(27) 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 sect. 2, persons convicted of offences against the 9 & io W. 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.—CHITTY.

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.(28)

CHAPTER VIII.

OF PRÆMUNIRE.

*103] *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: "pramunire (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) (1) 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, (a) A barbarous word for præmoneri.

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

(28) 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 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. & R. C. Č. 76.-CHRISTIAN.

(1) Præmunio, in law-Latin, is used in all its tenses and participles for præmonio or cito. Ducange Gloss.-CHRISTIAN.

This offence does not exist in the United States; and, therefore, the law concerning it is not useful here.