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 II 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)

(s) 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, I 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 & 10 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.

on *a trying occasion, once expressed it)(c) in her principles and [*104 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, so lately triumphant over Christendom, but now universally abandoned by even the Roman Catholic powers; but the subject of our present *chapter 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 rigor of our free constitution and the wisdom of successive parliaments.

[*105

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 era of the Norman conquest, when the then reigning pontiff having favored duke William in his projected invasion by blessing his host and consecrating his banners, he 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."(2)

(c) Address to James II. 1687.

(2) "Foreign ecclesiastical tribunals were permitted to exercise jurisdiction over the subjects of every government in Europe, even to the establishment of the Inquisition.