assisting therein, shall be put out of the king's protection, their "lands and goods forfeited to the king's use, and they shall be "attached by their bodies to answer to the king and his council: or process of præmunire facias shall be made out against them as in "other cases of provisors."

By the statute 2 Hen. IV. c. 3, all persons who accept any provision from the pope, to be exempt from canonical obedience to their proper ordinary, are also subjected to the penalties of præmunire. And this is the last of our ancient statutes touching this offence; the usurped civil power of the bishop of Rome being pretty well broken down by these statutes, as his usurped religious power was in about a century afterwards; the spirit of the nation being so much raised against foreigners, that about this time, in the reign of Henry V., the alien priories, or abbeys for foreign monks, were suppressed, and their lands given to the crown. And no further attempts were afterwards made in support of these foreign jurisdictions.

This, then, is the original meaning of the offence, which we 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 crown alone, long before the Reformation in the reign of Henry VIII.: at which time the penalties of præmunire were indeed extended to more papal abuses than before; several statutes of that monarch enacting that to appeal to Rome from any of the king's courts, to sue to Rome for any licence or dispensation, or to obey any process from thence, make these parties who do so 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.

Thus far the penalties of præmunire seem to have kept within the proper bounds of their original institution; but they being pains of no inconsiderable consequence, it was thought fit by subsequent acts of parliament to apply the same penalties to other offences; some of which bore more, and some less, relation to this original offence, and some no relation at all. Most of these statutes having since been repealed, I content myself with simply referring to them, leaving it to the student to pursue this subject further if he shall see fit.

I must add, however, that the penalties of præmunire may still be incurred by any one, who asserts, maliciously and advisedly, that both or either house of parliament have a legislative authority with

out the king; or that the king and parliament cannot make laws to limit the descent of the crown; or who sends any subject of this realm a prisoner into parts beyond the seas. The like penalty is incurred by any serjeant, counsellor, proctor, attorney, or officer of a court practising without having taken the proper oaths; and by the assembly of peers of Scotland, convened to elect their sixteen representatives in the British parliament, if they presume to treat of any other matter save only the election. Finally, the penalties of præmunire attach to all who 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 law prohibited to contract matrimony without the consent of the crown.

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What then are these penalties of præmunire? They are thus 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: or, as other "authorities have it, during life:" both which amount to the same thing; as the sovereign by his prerogative may any time remit the whole, or any part, of the punishment, i.e., except in the case of transgressing the statute of Habeas Corpus, by sending a subject of the realm a prisoner into parts beyond seas. 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 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; to obviate which savage notions, the statute 5 Eliz. c. 1, provided, that it should not be lawful to kill any person attainted in a prœmunire, any law, statute, opinion, or exposition of law to the contrary notwithstanding. This statute has no doubt been repealed by 9 and 10 Vict. c. 59; but it can scarcely be suggested that a man convicted upon a præmunire is wholly out of the pale of the law. He can bring no action, however, for any private injury; being so far out of its protection, 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 safely give him comfort, aid, or relief.

In conclusion it may be observed, that prosecutions upon a præmunire 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 præmunire were inflicted upon some persons, for refusing to take the oath of allegiance in the reign of Charles II. Although, therefore, the statutes of pramunire have never been formally re

pealed, the crime may be considered as obsolete. Yet the offence still remains a title in our criminal law; and, therefore, irrespective altogether of its historical value, cannot be passed over.

CHAPTER IX.

OF MISPRISIONS AND CONTEMPTS AFFECTING THE SOVEREIGN

AND GOVERNMENT.

Misprision of treason-of felony-concealment of treasure-trove-mal-administration of offices-embezzling public money—refusal to serve the crown— • or join the posse comitatus-contempt of the royal person or governmentor title-Indemnity Act-Contempt of court-Striking in presence of the judges-rescue of a prisoner-threatening jurors or witnesses.

IV. THE last species of offences, more immediately against the sovereign and government, are entitled misprisions and contempts.

Misprisions, from the French, mespris, a contempt, are 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 crown so please, the offender may be proceeded against for the misprision only. Upon this principle, while the jurisdiction of the Star-chamber subsisted, it was Leld that the king might remit a prosecution for treason, and cause the delinquent to be censured in that court, merely for a high misdemeanor; 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 either negative, which consist in the concealment of something which ought to be revealed; or 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 of treason, without any degree of assent thereto : for any assent makes the party a traitor. The punishment of this offence is loss of the profits of lands during life, forfeiture of goods, and imprisonment during life.

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. The punishment is imprisonment and fine at the royal pleasure: which pleasure of the sovereign must be observed, once for all, not to signify any extra-judicial 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.'

The concealing the treasure-trove is also a misprision, which was formerly punishable by death, but now only by fine and imprison

ment.

II. Misprisions, which are positive, are generally denominated contempts or high misdemeanors: 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 parliamentary impeachment; wherein such penalties, short of death, are inflicted, as to the wisdom of the house of peers shall seem proper. Hitherto also may be referred the offence of embezzling the public money, which is, by statute 2 Will. IV. c. 4, a felony and highly penal. Officers concerned in the receipt or management of the revenue, giving in false statements of money in their hands, are guilty of a misdemeanor.

Other misprisons are, in general, such contempts of the executive magistrate as demonstrate themselves by some arrogant and undutiful behaviour towards the crown and government. These are,

2. Contempts against the royal prerogative: as, by refusing to assist the sovereign in his councils, by advice, if called upon; or in his wars, by personal service against a rebellion or invasion. Under which class may be ranked the neglecting to join the posse comitatus, being thereunto duly required; or disobeying an 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 courts of justice.

3. Contempts and misprisions against the royal person and government may be by speaking or writing against him, giving out scandalous stories concerning him, or doing anything that may tend to lessen him in the esteem of his subjects. Thus to assert falsely that the sovereign labours under mental derangement is an offence; and so is it an offence 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. For this species of contempt a man may not only be fined and imprisoned, but might, before that punishment was abolished, have suffered the pillory; in like manner, as in the ancient German empire, such persons as endeavoured to sow sedition, were condemned to become the objects of public derision, by carrying a dog upon their shoulders from one great town to another, a punishment which the emperors Otho I. and Frederic Barbarossa inflicted on noblemen of the highest rank.

4. Contempts against the sovereign's title, not amounting to treason or præmunire, are the denial of his right to the crown in common

and unadvised discourse, a heedless species of contempt which is punished by our law with fine and imprisonment. 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. But an act of indemnity is now passed annually, to relieve all such persons as through ignorance of the law, absence, or unavoidable accident, have omitted to do so.

5. Contempts against the royal palaces or courts of justice have always been looked upon as high misprisions; striking in the superior courts of justice, in Westminster-hall, or at the assizes, being still more penal than even in the royal palace. This offence was at one time punishable with the loss of the right hand, imprisonment for life, and forfeiture of goods and chattels, and of the profits of his lands during life; but would not now be so dealt with. A rescue of a prisoner comes under this head, being a high contempt, punishable by fine and imprisonment at the discretion of the court.

Not only such as are guilty of an actual violence, but of threatening or reproachful words to any judge sitting in the courts, are guilty of a high misprision, and have been punished with large fines, imprisonment, and corporal punishment. Likewise all such as are guilty of any injurious treatment to those who are immediately under the protection of a court of justice, are punishable by fine and imprisonment as if a man assaults or threatens his adversary for suing him, a counsellor or attorney for being employed against him, a juror for his verdict, or endeavours to dissuade a witness from giving evidence.

CHAPTER X.

OF OFFENCES AGAINST PUBLIC JUSTICE.

Falsifying records-Obstructing process-Assaulting officers in the performance of their duty-Escape-Breach of prison-Rescue-Returning from transportation-Taking reward to help to return of stolen goods-Receiving stolen goods-Theft-bote Common barretry-Maintenance-Champerty -Compounding informations-Conspiracy-Threatening letters-Perjury -Subornation-Bribery-Embracery-Negligence in public offices-Oppression of magistrates-Extortion.

THE order of our distribution next leads us to take into consideration such offences as more especially affect the commonwealth, or public polity of the kingdom, which may be classed under five heads: viz.,