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 oaths of allegiance and supremacy, and subscribed the declaration 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, 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 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 representatives in the British parliament, shall presume to treat of any other matter save only the election, they incur the penalties 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 undertakings 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 crown3.

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 Coke : " 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:

66

or (as other authorities have it) during life":" 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 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*, (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 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 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.

* I Bulst. 199.

Stat. 25 Ed. III. st.5. c.22.

x Bro. Abr. t. Corone. 197.
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 curia; 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."

[120]

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". 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 treason; consisting in the bare knowledge and concealment

a Yearb. 2 Ric. III. 10. Staundf.

b Hudson of the court of star-cham

P.C. 37. Kel. 71. 1 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 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 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. 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

c Guicciard. Hist. b. 3. & 13.
d 1 Hal. P. C. 372.

e 1 Hawk. P. C. c. 20. s. 3.

(2) This ought to be 14 Eliz. c.3., 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. 1 H. P. C. 376.

punishment of misprision of treason is loss of the profits of lands during life, forfeiture of goods, and imprisonment during life. Which total forfeiture of the goods was originally in[121]flicted 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 general rule laid down in a former chapter, 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"." (3)

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; (4) but now only by fine and imprisonment'.

II. MISPRISIONS, which are merely positive, are generally denominated contempts or high misdemesnors; of which

(3) The words in the statute, applicable to a common person, are le Roy prendra a eux grevement, which Lord Coke explains, "at the king's suit they shall be fined grievously and imprisoned." But the statute with regard to common persons punishes only the "not suing and arresting felons at the summons of the sheriff, and cry of the county;" and seems hardly to apply to misprision of felony in them, as defined in the text. If the officer be unable to pay the fine, he shall be imprisoned three years. 2 Inst. 171.

(4) It is not clear, from the passage in Glanville, whether the punishment was death, or loss of member.