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extended the penalties of præmunire.

bishop, who had incurred the displeasure of the pope for op

posing the excessive power of the court of Rome (p). [*115]

*This then is the original meaning of the offence, which we Various subse call præmunire ; viz. introducing a foreign power into this

land, and creating imperium in imperio, by paying that obedience to papal process, which constitutionally belonged to the king alone, long before the reformation in the reign of Henry the eighth : at which time the penalties of præmunire were indeed extended to more papal abuses than before ; as the kingdom then entirely renounced the authority of the see of Rome, though not all the corrupted doctrines of the Roman church. And therefore by the several statutes of 24 Hen. VIII. c. 12, and 25 Hen. VIII. c. 19 and 21, to appeal to Rome from any of the king's courts, which, though illegal before, had at times been connived at; to sue to Rome for any licence or dispensation; or to obey any process from thence; are made liable to the pains of præmunire. And, in order to restore to the king in effect the nomination of vacant bishoprics, and yet keep up the established forms, it is enacted by statute 25 Hen. VIII. c. 20, that if the dean and chapter refuse to elect the person named by the king, or any archbishop or bishop to confirm or consecrate him, they shall fall within the penalties of the statutes of præmunire. Also by statute 5 Eliz. c. 1, to refuse the oath of supremacy will incur the pains of præmunire ; and to defend the pope's jurisdiction in this realm, is a præmunire for the first offence, and high treason for the second. So too, by statute 13 Eliz. c. 2, to import any agnus Dei, crosses, beads, or other superstitious things pretended to be hallowed by the bishop of Rome, and tender the same to be used; or to receive the same with such intent, and not discover the offender; or if a justice of the peace, knowing thereof, shall not within fourteen days declare it to a privy counsellor, they all incur a præmunire. But importing or selling mass books, or other popish books, is by statute 3 Jac. I. c. 5, $ 25, only liable to a penalty of forty shillings. Lastly, to contribute to the

(p) See Wilk. Concil. Mag. Br. this digression; if indeed it be a diVol. III. passim. and Dr. Duck's Life gression, to shew how contrary to the of Archbishop Chichele, who was the sentiments of so learned and pious a prelate here spoken of, and the muni- prelate, even in the days of popery, ficent founder of All Soul's college in those usurpations were, which the staOxford: in vindication of whose me- tutes of præmunire and provisors were mory the author hopes to be excused made to restrain.

plies to offences

broker in an

maintenance of a jesuit's college, or any popish seminary whatever, beyond sea; or any person in the same; or to contribute to the maintenance of any jesuit or popish priest in England, is by statute 27 Eliz.c. 2, made liable to the penalties of præmunire.

*Thus far the penalties of præmunire seem to have kept [*116] within the proper bounds of their original institution, the de- Presmunire ap pressing the power of the pope : but, they being pains of no with the papal inconsiderable consequence, it has been thought fit to apply usurpation. 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 and 2 Ph. and Mar. c. 8, to mo

As, acting as lest the possessors of abbey lands granted by parliament to usurious con Henry the eighth, and Edward the sixth, is a præmunire. obtaining stay 2. So likewise is the offence of acting as a broker or agent in in a suit for any usurious contract, where above ten per cent. interest is taining a patent taken, by statute 13 Eliz. c. 10 (4). 3. To obtain any stay making, &c. of of proceedings, other than by arrest of judgment or writ of exertion of the error, in any suit for a monopoly, is likewise a præmunire, of purveyance by statute 21 Jac. I. c. 3. 4. To obtain an exclusive pa- wilfully asserttent for the sole making or importation of gunpowder or ment has legis. arms, or to hinder others from importing them, is also a pre- without the munire by two statutes: the one 16 Car. I. c. 21, the other prisoner beyond 1 Jac. II. c. 8 (5). 5. On the abolition, by statute 12 Car. take the oaths of II. c. 24, of purveyance (9), and the prerogative of preemp- pugning the act tion, or taking any victual, beasts, or goods for the king's the authority of use, at a stated price, without consent of the proprietor, limit the suc. the exertion of any such power for the future was declared ing except of the to incur the penalties of præmunire. 6. To assert, mali-election by the ciously and advisedly, by speaking or writing, that both or met to elect either house of parliament have a legislative authority with-tatives; pro. out the king, is declared a præmunire by statute 13 Car. II. fakiablecanea c. I. 7. By the Habeas Corpus Act also, 31 Car. II. c. 2, "bubbles;" and it is a præmunire, and incapable of the king's pardon, besides forbidden mar, other heavy penalties (r), to send any subject of this realm a the royal family.

lative authority

moting unwar

(9) See vol. I. p. 287.

(r) See vol. i. p. 138, vol. III. p. 137.

(4) Which was de perpetual by (5) The latter of which requires the 99 Eliz. c. 18, sections 30 & 32, but importation to be with the king's li. which appears since 12 Ann. st. 2, c. cense ; this is dispensed with, as regards 16, section 1, virtually to have expired. Ireland by 46 Geo. III. c. 121.

prisoner into parts beyond the seas. 8. By the statute 1 W. and M. st. 1, c. 8, persons of eighteen years of age, refusing to take the new oaths of allegiance, as well as supre

macy, upon tender by the proper magistrate, are subject to [*117] the penalties of a præmunire (6); and by statute 7 and *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 præmunire, whether the oaths be tendered or no. 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 præmunire: 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 of 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 præmunire. 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 premunire (7). 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

(s) See book I. c. 4.

(6) By the 31 Geo. III. c. 32, that purpose.-CH $ 18, it is enacted, that no persons (7) By stat. 6 Geo. IV., the major shall be summoned to take the oath of part of the provisions in the act supremacy, or make the declaration are repealed, and illegal companies against transubstantiation, or be prose- are rendered amenable to the common cuted for not obeying the summons for law.

of præmunire, its punishment may be gathered from the fore- Punishment of going statutes, which are thus shortly summed up by Sir feiture of goods, Edward Coke (t): “ that, from the conviction, the defendant ment for life. 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, [*118] as other authorities have it, during 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 premunire, 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 («), 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 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) (8). (1) 1 Inst. 129.

(1) Bro. Abr. t. Corone, 196. (u) 1 Bulst. 199.

(y) 1 Hawk. P. C. 55. (w) Stat. 25 Edw. III. st. 5, c. 22.

(8) The terrible penalties of a præ

which case the penalties of a præmunire munire are denounced by a great va- were inflicted upon some quakers, for riety of statutes, yet prosecutions upon refusing to take the oath of allegiance a premunire are unheard of in our in the reign of Charles the second ; courts, for those statutes have all, hap- Harg. St. Tr. 2 vol. 463, where the pily, become obsolete.

court resorted to the most illegal and There is only one instance of such a unjustifiable means for obtaining a conprosecution in the State Trials, in viction.

CHAPTER IX.

OF MISPRISIONS AND CONTEMPTS, AFFECT

ING THE KING AND GOVERNMENT.

Misprisions are

cluded in every

negative and positive.

The fourth species of offences more immediately against Of misprisions and contempts. the king and government, are entitled misprisions and con

tempts.

Misprisions, a term derived from the old French, mespris offences against a neglect or contempt, are, in the acceptation of our law, gegovernment, not nerally understood to be all such high offences as are under capital, but in the degree of capital, but nearly bordering thereon; and it felony and is said, that a misprision is contained in every treason and treason, divided into two kinds, 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 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 consists in the commission of

something which ought not to be done. [*120]

*1. Of the first, or negative kind, is what is called mispri1. Negative as, sion of treason: consisting in the bare knowledge and contreason, which cealment of treason, without any degree of assent thereto : high treason. 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 and 2 Ph. and Mar. c. 10, that a bare concealment of treason shall be only held a misprision.

may become

(a) Yearb. 2 Rich. III. 10; Staundf. P. C. 37; Kel. 71; 1 Hal. P. C. 374; 1 Hawk. P. C. 55, 56.

(6) Hudson of the court of Starchamber; MS. in Mus. Brit.

(c) Guicciard. Hist. b. 3 & 13.

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