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 & 40G.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 208., 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: 66 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. b 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.

bOld. Nat. Brev. 101. edit. 1534.

a trying occasion once expressed it ©) 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 law-giver, 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 chap- [105] ter 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 antient 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 aera 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 rivetting the chains of a free-born people. (1)

(1) Whatever was the extent of William's submission to the papal power, it was regulated entirely by his own convenience. His haughty and fearless nature was favoured by the circumstance of a divided papacy, and he carried his independence of Rome farther than most of his successors before the Reformation. He would not permit any pontiff to be acknowledged in his dominions without his previous approbation; and he examined all letters from the court of Rome, on their arrival, before their publication was permitted. Upon a demand made by Gregory VII. for the arrears of Peter's pence, he consented to it, as a payment commonly made through Europe, and which had been submitted to by his predecessors; but he positively refused to accede to a demand, made at the same time, that he should do homage for his crown. William's preference of Norman prelates seems to be misunderstood by the author; it is admitted, on all hands, that the Saxon clergy had degenerated to a disgraceful state of ignorance and sensuality, and that his appointments were in general creditable to himself, and highly useful to the cause of religion: it is also clear that the Norman prelates partook of the general freedom of their countrymen, and were not "bred in the doctrine or practice of slavery."-See Turner's and Lingard's Histories.