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pressing the power of the pope : but, they being pains of no inconsiderable consequence, it has been thought fit to apply the same to other heinous offences; some of which bear more, and some less, relation to this original offence, and some no relation at all.

Thus, 1. By the statute 1 & 2 Ph. & Mar. c. 8. to molest the possessors of abbey lands granted by parliament to Henry the eighth, and Edward the sixth, is a praemunire. 2. So likewise is the offence of acting as a broker or agent in any usurious contract, when above ten per cent. interest is taken, by statute 13 Eliz. c. 8. (9) 3. To obtain any stay of proceedings, other than by arrest of judgment or writ of error, in any suit for a monopoly, is likewise a praemunire, by statute 21 Jac. I. c. 3. 4. To obtain an exclusive patent for the sole making or importation of gunpowder or arms, or to hinder others from importing them, is also a praemunire by two statutes : the one 16 Car. I. c. 21. the other 1 Jac. II. c.8. 5. On the abolition, by statute 12 Car. II. c. 24. of purveyance !, and the prerogative of pre-emption, or taking any victual, beasts, or goods for the king's use, at a stated price, without consent of the proprietor, the exertion of any such power for the future was declared to incur the penalties of praemunire. (10) 6. To assert, maliciously and advisedly, by speaking or writing, that both or either house of parliament have a legislative authority without the king, is declared a praemunire by statute 13 Car. II. c. 1. 7. By the habeas corpus act also, 31 Car. II. c. 2. it is a praemunire, and incapable of the king's pardon, besides other heavy penalties ', to send any a See Vol. I. pag. 287.

See Vol. I. pag. 138. Vol. III. pag. 137.

(9) Several statutes (see Vol. II. p. 463.) have reduced the legal rate of interest ; but none seems to have repealed this clause of the statute of Elizabeth.

(10) This is a mistake. By the statute, any person exercising purveyance for the future is to be imprisoned by the justices near, and proceeded against by indictment at the next sessions ; and the party grieved may, besides, bring a civil action, and recover treble damages and treble costs : but the penalties of præmunire are inflicted only as in the case of monopolies just before mentioned, where a party, after notice that the action is grounded on the statute, obtains any stay of proceedings or execution, other than by authority of the court, arrest of judgment, or writ of error,

subject of this realm a prisoner into parts beyond the seas. 8. By the statute 1 W. & M. st. 1. c. 8. persons of eighteen years of

age, refusing to take the new oaths of allegiance, as well as supremacy, upon tender by the proper magistrate, are

subject to the penalties of a praemunire; and by statute [ 117 ] 7 & 8 W. III. c. 24. serjeants, counsellors, proctors, attorneys,

and all officers of courts, practising without having taken the v
oaths of allegiance and supremacy, and subscribed the de-
claration against popery, are guilty of a praemunire, whether
the oath be tendered or no. (11) 9. By the statute 6 Ann.
c. 7. to assert maliciously and directly, by preaching, teach-
ing, or advised speaking, that the then pretended prince of
Wales, or any person other than according to the acts of set-
tlement and union, hath any right to the throne of these king-
doms; or that the king and parliament cannot make laws to
limit the descent of the crown; such preaching, teaching, or
advised speaking is a praemunire : as writing, printing, or
publishing the same doctrines amounted, we may remember,
to high treason. 10. By statute 6 Ann. c. 23. if the assembly
of peers in Scotland, convened to elect their sixteen repre-
sentatives in the British parliament, shall presume to treat of
any other matter save only the election, they incur the pe-
nalties of a praemunire, 11. The statute 6 Geo. I. c. 18.
(enacted in the year after the infamous south-sea project had
beggared half the nation) makes all unwarrantable under-
takings by unlawful subscriptions, then commonly known by
the names of bubbles, subject to the penalties of a praemunire.
12. The statute 12 Geo. III. c. 11. subjects to the penalties
of the statute of praemunire all such as knowingly and wilfully
solemnize, assist, or are present at, any forbidden marriage of
such of the descendants of the body of king George II. as
are by that act prohibited to contract matrimony without the
consent of the crown.

Having thus inquired into the nature and several species of praemunire, it's punishment may be gathered from the foregoing statutes, which are thus shortly summed up by sir Edward Coket: “ that from the conviction, the defendant

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“ shall be out of the king's protection, and his lands and “ tenements, goods and chattels, forfeited to the king: and 6 that his body shall remain in prison at the king's pleasure : “ or (as other authorities have it) during lifeu :" both which [ 118 ] amount to the same thing; as the king by his prerogative may any time remit the whole, or any part, of the punishment, except in the case of transgressing the statute of habeas corpus. (12) These forfeitures here inflicted, do not (by the way) bring this offence within our former definition of felony; being inflicted by particular statutes, and not by the common law. But so odious, sir Edward Coke adds, was this offence of praemunire, that a man that was attainted of the same might have been slain by any other man without danger of

law: because it was provided by law", that any man might x do to him as to the king's enemy; and any man may lawfully

kill an enemy. However, the position itself, that it is at any
time lawful to kill an enemy, is by no means tenable: it is
only lawful, by the law of nature and nations, to kill him in
the heat of battle, or for necessary self-defence. And to ob-
viate such savage and mistaken notions*, (13) the statute
5 Eliz. c. 1. provides, that it shall not be lawful to kill any
person attainted in a praemunire, any law, statute, opinion, or
exposition of law to the contrary notwithstanding. But still
such delinquent, though protected as a part of the public
from public wrongs, can bring no action for any private in-
jury, how atrocious soever, being so far out of the protection
of the law, that it will not guard his civil rights, nor remedy
any grievance which he as an individual may suffer. And no
man, knowing him to be guilty, can with safety give him
comfort, aid, or reliefy.
# 1 Bulst. 199.

Bro. Abr. t. Corone. 197.
w Stat. 25 Ed.III. st. 5. c. 22. y 1 Hawk.P.C. c. 19. s. 47.
(12) It seems hardly to amount to the same thing ; – in the one case,
the term of imprisonment would be at the discretion of the court, voluntas
Domini Regis in curió ; in the other, the court would have no discretion,
but must pronounce the sentence of imprisonment for life, and the party
would be left for any remission of it to the royal mercy, (voluntas Domini
Regis in camera.) See post, p. 121.

(13) There was more ground for this notion than is implied in the text, for the statute referred to in the margin, which is one of those against provisors, expressly enacts, that he who offends“ against such provisors in body, goods or other possessions, shall be excused before all men, and for such offence shall never be grieved, or let at the suit of any one."

VOL. iv.

CHAPTER THE NINTH.

OF MISPRISIONS AND CONTEMPTS

AFFECTING THE KING AND

GOVERNMENT.

THE fourth species of offences, more immediately against

the king and government, are entitled misprisions and contempts.

MISPRISIONS (a term derived from the old French, mespris, a neglect or contempt) are, in the acceptation of our law, generally understood to be all such high offences as are under the degree of capital, but nearly bordering thereon: and it is said, that a misprision is contained in every treason and felony whatsoever; and that if the king so please, the offender may be proceeded against for the misprision only. And upon the same principle, while the jurisdiction of the starchamber subsisted, it was held that the king might remit a prosecution for treason, and cause the delinquent to be censured in that court, merely for a high misdemesnor: as happened in the case of Roger earl of Rutland, in 43 Eliz. who was concerned in the earl of Essex's rebellion 6. Misprisions are generally divided into two sorts; negative, which consist in the concealment of something which ought to be revealed ; and positive, which consist in the commission of something which ought not to be done.

[120] I. Or the first, or negative kind, is what is called misprision

of treason ; consisting in the bare knowledge and concealment

• Yearb. 2 Ric. III. 10. Staundf. Hudson of the court of star-chamP.C. 37. Kel. 71. Hal. P. C. 374. ber. MS. in Mus. Brit. (1) 1 Hawk. P.C. c. 20.

(1) This has been since published in the Collectanea Juridica, vol. ii. pp. 1-241. See post, p. 268.

of treason, without any degree of assent thereto: for any assent makes the party a principal traitor; as indeed the concealinent, which was construed aiding and abetting, did at the common law: in like manner as the knowledge of a plot against the state, and not revealing it, was a capital crime at Florence and in other states of Italy. But it is now enacted by the statute 1 & 2 Ph. & M. c.10. that a bare concealment of treason shall be only held a misprision. This concealment becomes criminal, if the party apprized of the treason does not, as soon as conveniently may be, reveal it to some judge of assize or justice of the peace d. But if there be any probable circumstances of assent, as if one goes to a treasonable meeting, knowing before-hand that a conspiracy is intended against the king; or, being in such company once by accident, and having heard such treasonable conspiracy, meets the same company again, and hears more of it, but conceals it; this is an implied assent in law, and makes the concealer guilty of actual high treason.

THERE is also one positive misprision of treason, created so by act of parliament. The statute 13 Eliz. c. 2. (2) enacts, that those who forge foreign coin [of gold or silver), not current in this kingdom, their aiders, abettors, and procurers, shall all be guilty of misprision of treason. For, though the law would not put foreign coin upon quite the same footing as our own; yet, if the circumstances of trade concur, the falsifying it may be attended with consequences almost equally pernicious to the public; as the counterfeiting of Portugal money would be at present; and therefore the law has made it an offence just below capital, and that is all. For the

Guicciard. Hist. b. 3. & 13. ci Hawk. P. C. c. 20. s. 3. di Hal. P. C. 372.

(2) This ought to be 14 Eliz. c.5., and the author has been led into the mistake by implicitly copying Hawkins; but the 13 Eliz. c. 2. did also create a positive misprision of treason in the concealing the offer of a bulle, or instrument of reconciliation to the see of Rome, for six weeks after the offer made; and the 23 Eliz. c. 1. made the offence of aiding and maintaining those who had been guilty of the treasons constituted by that act, liable only to the penalties of misprision of treason. By the word aiders in this act, 14 Eliz. c. 3., Lord Hale says, are intended aiders of the fact, not aiders of the person, as receivers and comforters. iH.P.C. 376.

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