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THE idea of felony is indeed fo generally connected with that of capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore if a statute makes any new offence felony, the law implies that it shall be punished with death, viz. by hanging, as well as with forfeiture: unless the offender prays the benefit of clergy; which all felons are entitled once to have, unless the same is expreffly taken away by statute. And, in compliance herewith, I fhall for the future confider it alfo in the fame light, as a generical term, including all capital crimes below treafon; having premised thus much concerning the true nature and original meaning of felony, in order to account for the reason of those instances I have mentioned, of felonies that are not capital, and capital offences that are not felonies: which seem at first view repugnant to the general idea which we now entertain of felony, as a crime to be punished by death; whereas properly it is a crime to be punished by forfeiture, and to which death may, or may not be, though it generally is, fuperadded.
I PROCEED now to confider fuch felonies, as are more immediately injurious to the king's prerogative. These are, 1. Offences relating to the coin, not amounting to treafon. 2. Offences against the king's council. 3. The offence of serving a foreign prince. 4. The offence of imbezzling the king's armour or ftores 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 fome inferior misdemefnors not amounting to felony, are thus declared by a series of ftatutes, which I fhall 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 ftatute 9 Edw. III. ft. 2. no sterling money shall be melted 91 Hawk, P. C. 107. 2 Hawk. P. C. 444.
down, upon pain of forfeiture thereof. By statute 14 Eliz. c.3. fuch as forge any foreign coin, although it be not made current here by proclamation, shall (with their aiders and abettors) be guilty of mifprifion of treafon : a crime which we fhall hereafter confider. By statute 13 & 14 Car. II. c. 31. the offence of melting down any current filver money fhall be punifhed with: forfeiture of the fame, and alfo the double value: and the offender, if a freeman of any town, fhall be disfranchised; if not, fhall fuffer fix months imprisonment. By statute 6 & 7 W. III. c. 17. if any person buys or sells, or knowingly has in his cuftody, any clippings or filings of the coin, he fhall forfeit the fame and 500/; one moiety to the king, and the other to the informer; and be branded in the cheek with the letter R. By ftatute 8 & 9W. III. c. 26. if any person shall blanch, or whiten, copper for fale; (which makes it resemble filver) or buy or sell or offer to fale any malleable compofition, which shall be heavier than filver, and look, touch, and wear like gold, but be beneath the standard or if any person shall receive or pay any counterfeit or diminished money of this kingdom, not being cut in pieces, (an operation which every man is thereby empowered to perform) at a less rate than it shall import to be of: (which demonftrates a consciousness of it's baseness, and a fraudulent defign) all fuch perfons fhall be guilty of felony. But these precautions not being found sufficient to prevent the uttering of false or diminished money, which was only a misdemefnor at common law, it is enacted by ftatute 15 & 16 Geo. II. c. 28. that if any person shall tender in payment any counterfeit coin, knowing it so to be, he shall for the first offence be imprisoned fix months; and find fureties for his good behaviour for fix months more: for the second offence, fhall be imprisoned and find fureties for two years: and, for the third offence, fhall be guilty of felony without benefit of clergy. Alfo if a perfon knowingly tenders in payment any counterfeit money, and at the fame time has more in his custody; or fhall, within ten days after, knowingly tender other falfe money; he fhall for the first offence be impriioned one year, and find fureties for his good behaviour for two
years longer; and for the second, be guilty of felony without benefit of clergy. By the fame ftatute it is also enacted, that, if any person counterfeits the copper coin, he shall fuffer two years imprisonment, and find fureties for two years more. Thus much for offences relating to the coin, as well misdemesnors as felonies, which I thought it moft convenient to confider in one and the fame view.
2. FELONIES, against the king's council', are; first, by statute 3 Hen. VII. c. 14. if any fworn fervant of the king's houfhold confpires or confederates to kill any lord of this realm, or other perfon, fworn of the king's council, he shall be guilty of felony. Secondly, by ftatute 9 Ann. c. 16. to affault, strike, wound, or attempt to kill, any privy counfellor in the execution of his office, is made felony without benefit of clergy.
3. FELONIES in ferving foreign ftates, which service is generally inconfiftent with allegiance to one's natural prince, are restrained and punished by statute 3 Jac. I. c. 4. which makes it felony for any perfon 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 alfo 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 fureties, not to be reconciled to the fee of Rome, or enter into any confpiracy against his natural fovereign. And farther, by statute 9 Geo. II. c. 30. enforced by statute 29 Geo. II. c. 17. if any fubject of Great Britain shall enlist himself, or if any perfon fhall procure him to be enlisted, in any foreign service, or detain or embark him for that purpose, without licence under the king's fign manual, he fhall be guilty of felony without benefit of clergy: but if the person, so enlisted or enticed, shall difcover his feducer within fifteen days, fo as he may be apprehended and convicted of the fame, he fhall himself be indem
See Vol. I. pag. 332.
nified. 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 500%.
4. FELONY, by imbezzling the king's armour or warlike ftores, is fo declared to be by ftatute 31 Eliz. c. 4. which enacts, that if any person having the charge or cuftody of the king's armour, ordnance, ammunition, or habiliments of war; or of any victual provided for victualling the king's foldiers or mariners; fhall, either for gain, or to impede his majesty's service, imbezzle the same to the value of twenty fhillings, fuch offence shall be felony. And the statute 22 Car. II. c. 5. takes away the benefit of clergy from this offence, fo far as it relates to naval ftores. Other inferior imbezzlements and mifdemefnors, that fall under this denomination, are punished by statute 1 Geo. I. c. 25. with fine and imprisonment.
5. DESERTION from the king's armies in time of war, whether by land or fea, in England or in parts beyond the seas, is by the standing laws of the land (exclufive 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 ftatute 2 & 3 Edw.VI. c. 2. clergy is taken away from fuch deferters, and the offence is made triable by the juftices of every fhire. The fame ftatutes punish other inferior military offences with fines, imprisonment, and other penalties.
CHAPTER THE EIGHT H.
OF PRAE MUNIR E.
THIRD fpecies of offence more immediately affecting
the king and his government, though not fubject to capital punishment, is that of praemunire: fo called from the words of the writ preparatory to the prosecution thereof; "praemunire” "facias A. B." forewarn A. B. that he appear before us to anfwer the contempt wherewith he stands charged; which contempt is particularly recited in the preamble to the writ". It took it's original from the exorbitant power claimed and exercifed in England by the pope, which even in the days of blind zeal was too heavy for our ancestors to bear.
Ir may justly be observed, that religious principles, which (when genuine and pure) have an evident tendency to make their profeffors better citizens as well as better men, have (when perverted and erroneous) been usually fubverfive of civil government, and been made both the cloak and the inftrument 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 fuperftition, and the terrible ravages committed by the Saracens in the east, to propagate the religion of Mahomet, both witnefs to the truth of
• A barbarous word for praemonere.
b Old Nat. Brev. 101. edit. 1534.