by the proper magistrate, are subject to the penalties of a præmunire; and by statute 7 & 8 *W. III. c. 24, serjeants, counsellors, proctors, attorneys, [*117 and all officers of courts practising without having taken the oaths of allegiance and supremacy and subscribing the declaration against popery, are guilty of a præmunire, whether the oaths be tendered or no. 9. By the statute o Anne, c. 7, to assert maliciously and directly, by preaching, teaching, or advised speaking, that the then pretended prince of Wales, or any person other than according to the acts of settlement and union, hath any right to the throne of these kingdoms, or that the king and parliament cannot make laws to limit the descent of the crown, such preaching, teaching, or advised speaking is a præmunire; as writing, printing, or publishing the same doctrines amounted, we may remember, to high treason. 10. By statute 6 Anne, c. 23, if the assembly of peers in Scotland, convened to elect their sixteen representatives in the British parliament, shall presume to treat of any other matter save only the election, they incur the penalties of a pramunire. 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 undertakings by unlawful subscriptions, then commonly known by the names of bubbles, subject to the penalties of a pramunire.® 12. The statute 12 Geo. III. c. 11 subjects to the penalties of the statute of præmunire 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.(s) Having thus inquired into the nature and several species of præmunire, its punishment may be gathered from the foregoing statutes, which are thus shortly summed up by Sir Edward Coke :(t) "that from the conviction the defendant shall be out of the king's protection, and his lands and tenements, goods and chattels, forfeited to the king; and that his body shall remain in prison at the king's pleasure; *or (as other authorities have it) during [*118 life:"(u) both which 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. 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 præmunire 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(w) that any man might 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 obviate such savage and mistaken notions,(x) the statute 5 Eliz. c. 1 provides that it shall not be lawful to kill any person attainted in a præmunire, 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 injury, how atrocious soever, being so far out of the protection of the law that it will not guard his civil rights nor remedy any () See book i. ch. 4. (t) 1 Inst. 129. (*) 1 Bulst. 199. (w) Stat. 25 Edw. III. st. 5, c. 22. By the 31 Geo. I. c. 32, s. 18, it is enacted that no persons shall be summoned to take the oath of supremacy, or make the declaration against transubstantiation, or be prosecuted for not obeying the summons for that purpose.-CHRISTIAN. By the 6 Geo. IV., the greater part of the provisions of this statute are repealed, and illegal companies are left to be dealt with according to the common law.-CHITTY. And although this statute has been repealed, by the act 9 & 10 Vict. c. 59, it can scarcely be suggested that a man convicted upon a præmunire is wholly out of the pale of the law.-KERR. grievance which he as an individual may suffer. And no man, knowing him to be guilty, can with safety give him comfort, aid, or relief.(y) *119] CHAPTER IX. 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. (a) 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 misdemeanour; as happened in the case of Roger, earl of Rutland, in 43 Eliz., who was concerned in the earl of Essex's rebellion. (b) 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. *I. Of the first, or negative kind, is what is called misprision of trea *120] son; consisting in the bare knowledge and concealment of treason, without any degree of assent thereto: for any assent makes the party a principal traitor; as indeed the concealment, 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 other states of Italy.(c) But it is now enacted, by the statute 1 & 2 Ph. and M. c. 10, that a bare concealment of treason shall only be 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 beforehand 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.(e)1 There is also one positive misprision of treason, created so by act of parlia (2) 1 Hawk. P. C. 55. (a) Year-Book, 2 Ric. III. 10. Staundf. P. C. 37. Kelw. 71. 1 Hal. P. C. 37. 1 Hawk. P. C. 55, 56. (*) Hudson of the Court of Star-chamber. Brit. MS. in Mus. (e) Guicciard. Hist. b. 3 and 13. () 1 Hawk. P. C. 56. 8 The terrible penalties of a pramunire are denounced by a great variety of statutes; yet prosecutions upon a pramunire are unheard of in our courts. There is only one instance of such a prosecution in the State Trials,-in which case the penalties of a pramunire were inflicted upon some persons for refusing to take the oath of allegiance in the reign of Charles the Second. Harg. St. Tr. vol. ii. 463.-CHRISTIAN. If any person or persons having knowledge of the commission of any treason shall conceal, and not, as soon as may be, disclose and make known the same to the President of the United States, or some one of the judges thereof, or to the president or governor of a particular State, or some one of the judges or justices thereof, such person or persons, on conviction, shall be adjudged guilty of misprision of treason, and shall be imprisoned not exceeding seven years, and fined not exceeding one thousand dollars. Act of Congress, April 20, 1790, s. 2, 1 Story's Laws, 83.-SHARSWOOD. ment. The statute 13 Eliz. c. 22 enacts that those who forge foreign coin, 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 of 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 punishment of misprision of treason is loss of the profits of land during life, forfeiture of goods, and imprisonment during life.(f) Which total forfeiture of the goods was originally inflicted while *the offence amounted to principal treason, and of course included in it a felony by the common law; and therefore is no exception to the [*121 general rule laid down in a former chapter, (g) that wherever an offence is punished by such total forfeiture it is felony at the common law. Misprision of felony is also the concealment of a felony which a man knows but never assented to; for, if he assented, this makes him either principal or accessory. And the punishment of this, in a public officer, by the statute Westm. 1, 3 Edw. I. c. 9, is imprisonment for a year and a day; in a common person, imprisonment for a less discretionary time; and, in both, fine and ransom at the king's pleasure: which pleasure of the king must be observed, once for all, not to signify any extrajudicial will of the sovereign, but such as is declared by his representatives, the judges in his courts of justice; "voluntas regis in curia, non in camera."(h) There is also another species of negative misprisions: namely, the concealing of treasure-trove, which belongs to the king or his grantees by prerogative royal: the concealment of which was formerly punishable by death;(i) but now only by fine and imprisonment.(j) II. Misprisions which are merely positive are generally denominated contempts or high misdemeanours; of which 1. The first and principal is the mal-administration of such high officers as are in public trust and employment. This is usually punished by the method of parliamentary impeachment; wherein such penalties, short of death, are inflicted, as to the wisdom of the peers shall seem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability. Hitherto also may be referred the offence of embezzling the public money, called among the [*122 Romans peculatus, which the Julian law punished with death in a magistrate, and with deportation, or banishment, in a private person.(k) With us it is not a capital crime, but subjects the committer of it to a discretionary fine and imprisonment. Other misprisions are, in general, such contempts of the executive magistrate as demonstrate themselves by some arrogant and undutiful behaviour towards the king and government. These are 2. Contempts against the king's prerogative. As, by refusing to assist him for the good of the public, either in his councils, by advice, if called upon, or in his wars, by personal service for defence of the realm, against a rebellion or in This ought to be 14 Eliz. c. 3; and the author has been led into the mistake by implicitly copying Hawkins.-Coleridge. But this is only in case of high treason. Misprision of a lower degree is punishable only by fine and imprisonment. 1 Hale, 375.-CHITTY. But now, by 50 Geo. III. c. 59, s. 1, it is enacted that if any person shall embezzle or fraudulently apply moneys issued to him for the public services, he shall be adjudged guilty of a misdemeanour, and shall be subject to transportation, or receive such punishment as the court in which he is convicted may in its discretion think proper. Section 2 enacts that if any officer, collector, or receiver intrusted with the receipt or management of the public revenues shall furnish false statements or returns of the moneys collected by him, or of the balances left in his hands, he shall be guilty of a misdemeanour, and be fined and imprisoned at the discretion of the court, and be forever rendered incapable of holding or enjoying any office under the crown.-CHITTY. vasion.(1) Under which class may be ranked the neglecting to join the posse comitatus, or power of the county, being thereunto required by the sheriff or justices, according to the statute 2 Hen. V. c. 8, which is duty incumbent upon all that are fifteen years of age, under the degree of nobility and able to travel.(m) Contempts against the prerogative may also be by preferring the interests of a foreign potentate to those of their own, or doing or receiving any thing that may create an undue influence in favour of such extrinsic power; as by taking a pension from any foreign prince without the consent of the king.(n) Or by disobeying the king's lawful commands: whether by writs issuing out of his courts of justice, or by a summons to attend his privy council, or by letters from the king to a subject commanding him to return from beyond seas, (for disobedience to which his lands shall be seized till he does return, and himself afterwards punished,) or by his writ of ne exeat regnum, or proclamation commanding the subject to stay at home.(0) Disobedience to any of these commands is a high misprision and contempt; and so, lastly, is disobedience to any act of parliament where no particular penalty is assigned; for then it is punishable, like the rest of these contempts, by fine and imprisonment, at the discretion of the king's courts of justice.(p) *123] 3. Contempts and misprisions against the king's person and government may be by speaking or writing against them, cursing or wishing him ill, giving out scandalous stories concerning him, or doing any thing that may tend to lessen him in the esteem of his subjects, may weaken his government, or may raise jealousies between him and his people. It has been also held an offence of this species to drink to the pious memory of a traitor; or for a clergyman to absolve persons at the gallows who there persist in the treasons for which they die; these being acts which impliedly encourage rebellion. And for this species of contempt a man may not only be fined and imprisoned, but suffer the pillory, or other infamous corporal punishment;(q) in like manner as in the antient German empire such persons as endeavoured to sow sedition, and disturb the public tranquillity, were condemned to become the objects of public notoriety and derision, by carrying a dog upon their shoulders from one great town to another. The emperors Otho I. and Frederick Barbarossa inflicted this punishment on noblemen of the highest rank.(r) 4. Contempts against the king's title, not amounting to treason or præmunire, are the denial of his right to the crown in common and unadvised discourse; for, if it be by advisedly speaking, we have seen(s) that it amounts to a pramu nire. This heedless species of contempt is, however, punished by our law with fine and imprisonment. Likewise, if any person shall in any wise hold, affirın, or maintain that the common law of this realm, not altered by parliament, (1 Hawk. P. C. 59. () Lamb. Eir. 315. (°) See book i. page 266. (P) 1 Hawk. P. C. 60. (7) Mod. Un. Hist. xxix. 28, 119 To assert falsely that the king labours under the affliction of mental derangement is criminal, and an indictable offence. 3 D. & R. 464. 3 B. & C. 257, S. C. In Rex vs. Cobbett, E. T. 1805, Holt on Libel, 114, 115, 6 East, 583, where the defendant was convicted of publishing a libel upon the administration of the Irish government and upon the public conduct and character of the lord-lieutenant and lord-chancellor of Ireland, lord Ellenborough, C. J., observed, "It is no new doctrine that if a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient be by ridicule or obloquy, the person so conducting himself is exposed to the inflictions of the law." See also Holt, Rep. 424. 14 How. St. Tr. 1095, S. C. By the 60 Geo. III. c. 8, the offence of publishing seditious libels is further provided against by empowering the court after verdict to seize upon all copies of the libel, &c.; and, by sect. 4, persons convicted of a second offence may be punished as in cases of high misdemeanour, or by banishment for so long as the court may order. By sect. 5, persons not departing within thirty days after sentence of banishment may be conveyed out of the kingdom; and, by sect. 6, persons banished found at large within the king's dominions may be transported.-CHITTY. By 56 Geo. III. c. 12, the punishment of the pillory was abolished, excepting in cases of perjury, and fine or imprisonment substituted in its place; and it is now altogether abolished, by 1 Vict. c. 23.-STEWART. [*124 ought not to direct the right of the crown of England; this is a misdemeanour, by statute 13 Eliz. c. 1, and punishable with forfeiture of goods and chattels. A contempt may also arise from refusing or neglecting to take the oaths appointed by statute for the better securing the government, and yet *acting in a public office, place of trust, or other capacity, for which the said oaths are required to be taken, viz., those of allegiance, supremacy, and abjuration; which must be taken within six calendar months after admission. The penalties for this contempt, inflicted by statute 1 Geo. I. st. 2, c. 13, are very little, if any thing, short of those of a præmunire; being an incapacity to hold the said offices, or any other; to prosecute any suit; to be guardian or executor; to take any legacy or deed of gift; and to vote at any election for members of parliament; and after conviction the offender shall also forfeit 500l. to him or them that will sue for the same. Members, on the foundation of any college in the two universities, who by this statute are bound to take the oaths, must also register a certificate thereof in the college-register within one month after; otherwise, if the electors do not remove him, and elect another within twelve months, or after, the king may nominate a person to succeed him by his great seal or sign-manual. Besides thus taking the oaths for offices, any two justices of the peace may by the same statute summon, and tender the oaths to, any person whom they shall suspect to be disaffected; and every person refusing the same, who is properly called a non-juror, shall be adjudged a popish recusant convict, and subject to the same penalties that were mentioned in a former chapter;(t) which in the end may amount to the alternative of abjuring the realm, or suffering death as a felon." 5. Contempts against the king's palaces or courts of justice have been always` looked upon as high misprisions; and by the antient law, before the conquest, fighting in the king's palace, or before the king's judges, was punished with death.(u) So too, in the old Gothic constitutions, there were many places privileged by law, quibus major reverentia et securitas debetur, ut templa et judicia, quæ sancta habebantur,-arces et aula regis,-denique locus quilibet præsente aut adventante rege.(v) And at present, with us, by the statute *33 Hen. VIII. c. [*125 12, malicious striking in the king's palace, wherein his royal person resides, whereby blood is drawn, is punishable by perpetual imprisonment, and fine at the king's pleasure, and also with loss of the offender's right hand; the solemn execution of which sentence is prescribed in the statute at length. 8 But striking in the king's superior courts of justice, in Westminster hall, or at the assizes, is made still more penal than even in the king's palace. The reason seems to be that those courts being antiently held in the king's palace, and before the king himself, striking there included the former contempt against the king's palace, and something more, viz., the disturbance of public justice. For this reason, by the antient common law before the conquest,(w) striking in the (f) See page 55. (*) 3 Inst. 140. LL. Alured. cap. 7 and 34. () Stiernhook, de jure Goth. l. 3. c. 3. (w) LL. Inæ. c. 6. LL. Canut. 56. LL. Alured. c. 7. 7 By stat. 10 Geo. IV. c. 7, s. 24, any person assuming any ecclesiastical title established in England or Ireland shall forfeit 1007. for each offence; and, by stat. 14 & 15 Vict. c. 60, briefs, rescripts, or letters-apostolical are declared unlawful and void.-STEWART. 8 Mr. Hargrave has given in the 11th vol. of the State Trials, p. 16, an extract from Stowe's Annals, containing a very curious account of the circumstances of the trial of Sir Edmund Knevet, who was prosecuted upon this statute soon after it was enacted: "for which offence he was not onely judged to lose his hand, but also his body to remain in prison, and his lands and goods at the king's pleasure. Then the said Sir Edmund Knevet desired that the king, of his benigne grace, would pardon him of his right hand and take the left; for (quoth he) if my right be spared, I may hereafter doe such good service to his grace as shall please him to appoint. Of this submission and request the justices forthwith informed the king, who of his goodness, considering the gentle heart of the said Edmund, and the good report of lords and ladies, granted him pardon, that he should lose neither hand, land, nor goods, but should go free at liberty."-CHRISTIAN. So much of the 33 Hen. VIII. c. 12 (part of s. 6 to s. 18) as relates to the punishment of manslaughter and of malicious striking, by reason whereof blood shall be shed, is repealed by 9 Geo. IV. c. 31.-CHITTY. |