2. FELONIES, against the king's council, 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 [101] 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, 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 [by the same statute] 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

See Vol. I. pag.232.

of, without restraint or penalty; so that, in effect, this class of offences is now expunged from the criminal law.

Another curious offence connected with this subject, but now also extinct, was the "art or craft of multiplying gold or silver." By the 5 H. 4. c. 4. it was enacted that none from henceforth shall use to multiply gold or silver, or use the craft of multiplication, and if any the same do, he shall incur the pain of felony. The petition of the commons on which this act passed, as cited by Lord Hale, 1 H. P. C. 644., states the reason to be not a belief in the reality of the art, but that "many men by colour of this multiplication make false money, to the great deceit of the king, and damage of his people." H.6. however was more credulous; in the 35th year of his reign, he granted a patent to John Faceby and others, ad investigandum, prosequendum et perficiendum quandam preciosissimam medicinam quintam essentiam, lapidem philosophorum nuncupatum, necnon potestatem faciendi et exercendi transmutationes metallorum in verum aurum et argentum with a non obstante of the stat. of H. 4. In Easter term, 7 E. 6. Dyer, 87. b. is a case of a man's confessing himself guilty of multiplication, and of using red wine and other things necessary for the art. The restraint, however, says Mr. S. Hawkins, P. C. B. 1. c. 18. s. 15. having been found to have no other effect upon the unaccountable vanity of those who fancied such attempts to be practicable, but only to send them beyond sea, to try their experiments with impunity in other countries, the stat. 5 H. 4. was at last wholly repealed by 1 W. & M. c. 50.

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 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 500l. (6)

4. FELONY by imbezzling 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

(6) Both these last statutes are now repealed by the 59 G.3. c.69. which provides in the most comprehensive terms against the offences mentioned above. By this statute it is made a misdemeanour punishable by fine or imprisonment, or both, for any natural born subject of his majesty, without licence under the sign manual, or signified by order in council, or by proclamation, to enter or agree to enter into the service, or under or in aid of any foreign prince or people, or person exercising or assuming to exercise the powers of government in any foreign state, province, or part thereof, as an officer, soldier, sailor, or in any warlike capacity whatsoever; or even to go abroad with that intent; or for any person whatever in any part of his majesty's dominions even to attempt to enlist any person for any these purposes. The sixth section imposes a forfeit of 50%. on the master of any ship for every such person whom he shall knowingly take on board, and on the owner for every such person whom he shall knowingly even agree to take on board. The ship to be detained till the penalty be paid, or bail found for the payment. The seventh and eighth sections provide against the equipment, or arming wholly or partially of any ship, with intent to employ her as a ship of war, transport, or storeship, in the service of any foreign state, or persons exercising any powers of government.

of

victualling the king's soldiers or mariners, shall, either for gain, or to impede his majesty's service, imbezzle the same [102] to the value of twenty shillings, such offence shall be felony. And the statute 22 Car. II. c. 5. takes away the benefit of clergy from this offence, 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 imbezzlements and misdemesnors, that fall under this denomination, are punished by statutes 9 & 10 W. III. c. 41. 1 Geo. I. st. 2. 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 victualing stores, or ammunition; or causing, aiding, procuring, abetting, or assisting in, such offence; shall be felony without benefit of clergy. (7)

(7) The 25G.3. c.56., the 33G.3. c. 2., the 39 & 40 G. 3. c.89., the 52 G.3. c.12., the 54 G.3. c.60., the 55 G. 3. c.127., and perhaps other statutes, have been passed respecting the embezzlement, importation, and exportation of military and marine stores; but it is in vain to attempt in a note an analysis of their minute provisions. Some of these statutes, but more particularly the 39 & 40 G. 3. c.89. provide against the unlawful receiving, or having possession of stores so embezzled or stolen. With regard to the first class of offences, it should be observed, that the statutes are not intended to interfere with felonies at common law, but to provide for those cases, in which the party has such a possession of the goods before he embezzles them, that in so doing he commits only a breach of trust, and not a larceny. This is a distinction which will be considered more fully hereafter (see post, p. 231.); it will be enough to say now, by way of illustration, that though the statute of C. 2. speaks only of embezzling to the value of 20s., yet where an officer has but a bare charge of taking care of the stores in the king's warehouses, or a mere authority to order them to` be delivered to the workmen authorised to receive them, he will be guilty of felony at common law in stealing them, though the amount be under 20s.; exactly as the butler who steals his master's plate, or the shepherd his master's sheep, where they have but the charge, and the master still retains the possession. 2 East. P. C. c.xvi. s. 53.

With regard to the second class of offences, it is to be observed, that certain marks specified in the statutes called the king's marks, denote the original ownership in the king, and when that and the possession in the party are proved, the statutes throw on him the burthen of proving the

15

legality

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. (8)

legality of such possession. A possession strictly speaking can only be legal, where it was derived originally by purchase from certain officers authorised to sell king's stores, who ought to grant certificates of the sale to the purchasers. But the presumption which arises against the prisoner from the non-production of this certificate, is liable to be rebutted by circumstances, showing that in fact the possession was an honest one.

It has been usual of late in the annual mutiny act, to provide that the offence of embezzling the public stores, when committed by officers, paymasters, commissaries, or persons employed in that or similar departments, may be tried by a general court martial; and the court is empowered to transport, fine, imprison, dismiss from the service, or pronounce incapable of further service, civil or military.

(8) The 37 G.3. c. 70. (continued by several acts, and made perpetual by 57 G. 3. c. 7.) makes it a felony without benefit of clergy for any one maliciously and advisedly to endeavour to seduce any soldier or sailor, or marine, from his allegiance, or to stir him up to mutiny, or to endeavour to make any mutinous assembly, or to commit any traitorous or mutinous practice.

CHAPTER THE EIGHTH.

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 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. It took it's 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 antient 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 barbarous word for praemoneri. b Old. Nat. Brev. 101. edit. 1534.