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. (2) 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. (3) 5. On the abolition, by statute 12 Car. II. c. 24. of purveyance (9), 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. 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 (r), to send any 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 (4); and by statute 7 [*117] & 8* W. III. c. 24. serjeants, counsellors, proctors, attorneys, and all officers of courts, practising without having taken the oaths o allegiance and supremacy, and subscribing the declaration against popery, are guilty of a praemunire, 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 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 (5). 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 (q) See Book I. page 287. (2) This act was made perpetual by the 39 Eliz. c. 18. s. 30. & 32; but though not expressly repealed, yet it seems to have virtually expired since the 12 Ann. st. 2. c. 16. s. 1. (3) By the second section of 1 Jac. II. c. 8, the importation must be with the king's li cence (except from Ireland by the 46 Geo. III. 7.121.) 44) B; the 3 seo. III. c. 32, § 18. it is en (r) See Book I. page 138. Book III. page 137. acted, 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. (5) By the 6 Geo. IV. the greater part o the provisions of this statute are repealed, and illegal companies are left to be dealt with a cording to the common law. 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 praemunire, 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 [*118] 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 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 (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 selfdefence. 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 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 (y) (6), (7). 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 (s) See book I. ch. 4. (1) I Inst. 129. (u) 1 Bulst. 199. (6) The terrible penalties of a praemunire are denounced by a great variety of statutes, yet prosecutions upon a praemunire are unheard of in our courts. There is only one intance of such a prosecution in the State Trials, in which case the penalties of a praemunive were inflicted upon some persons, for refusing to take the oath of allegiance in the Vol. II. 60 (w) Stat. 25 Edw. III. st. 5, c. 22. (z) Bro. Abr. t. Corone, 196. reign of Charles the Second. Harg. St. Tr (7) In New-York, an 1, it is believed, in the whole of the U. S. statutes of praemunire are unknown: the pope making no pretensions to any power here that could injure our ge vernment. all such high offences as are under the degree of capital, but nearly bor dering 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 star-chamber 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 misdemeanor: as happened in the case of Roger earl of Rutland, in 43 Eliz. who was con cerned in the earl of Essex's rebellion (6). Misprisions are generally divided into two sorts: negative, which consist in the concealment of someth.ng which ought to be revealed; and positive, which consist in the commission of something which ought not to be done. [*120] *I. Of the first, or negative kind, is what is called misprision of treason (1); 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. & 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 assise 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 (e). There is also one positive misprision of treason, created so by act of parliament. The statute 13 Eliz. c. 2. 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 (2). 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 punishment of misprision of treason is loss of the profits of land during life, forfeiture of goods, and imprisonment during life (f) (3). Which [121] 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 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 (a) Yearb. 2 Rie III. 10. Staundf. P. C. 37. Kel. 71. 1 Hal. P. C. 37. 1 Hawk. P. C. 55, 56. (b) Hudson of the court of star-chamber. MS. Mus. Brit. (c) Guicciard. Hist. b. 3. & 13. (1) See p. 76. note (4). As misprisions of treason and felony seem to be the creatures of the statute law, they probably do not exist in New-York, nor in any other state, without a special statute. (d) 1 Hal. P. C. 372. (2) But see the 37 Geo. Ill. c. 126. ante, p 90. n. (3) But this is only in case of high treason Misprision of a lower degree is punishable on ly by fine and imprisonment. I Hale, 375. 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 accessary. 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. II. Misprisions, which are merely 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 the method of parliamentary impeachment (4): 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 embez• [*122] zling the public money, called among the 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 (5). 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 (6); or in his wars, by personal service for defence of the realm, against a rebellion or invasion (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 a duty incumbent upon all that are fifteen years of age, under the degree of nobility, and able to travel (m) (7). Contempts (h) 2 Hal. P. C. 375. (i) Glan. l. 1, c. 2. (j) 3 Inst. 133. (4) In New-York, the senate is the court for the trial of impeachments, and can only remove from office and disqualify the guilty person from office in future. The impeachment does not prevent an indictment, but it causes a suspension from office till acquittal. (2 R. S. 165, 166.) Every wilful neglect by a public officer of a duty enjoined by law, is a misdemeanor, when no special punishment is provided for the offence. Id. 696. (5) But now by 50 Geo. III. c. 59. § 1, it is enacted, that if any person shall embezzle or fraudulently apply monies issued to him for the public services, he shall be adjudged guilty of a misdemeanor, and shall be subject to transportation, or receive such punishment as the court in which he is convicted, may in its (k) Inst. 4. 18. 9. discretion think proper. Section 2 cnacts, that if any officer, collec tor, or receiver, intrusted with the receipt, or management, of the public revenues, shall furnish false statements, or returns, of the monies collected by him, or of the balances left in his hards, he shall be guilty of a mis. demeanor, and be fined and imprisoned at the discretion of the court, and be for ever rendered incapable of holding or enjoying any office under the crown. (6) In the U. S. there has been no need of making this an offence. (7) In New-York it is a duty incumbent on every male inhabitant of the county. 2 R. S 441. 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) (8). 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 (o). 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 (9): 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 (10). 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 (11) or other infamous corporal punishment (q): in like manner, as in the ancient 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 Frederic Barbarossa inflicted this punishment on noblemen of the highest rank (r). 4. Contempts against the king's title, not amounting to treason or praemunire, 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 praemunire. This heedless species of contempt is however (n) 3 Inst. 144. (0) See book I. page 266. (p) 1 Hawk. P. C. 60. (8) This is unlawful in any officer under the U. S., but not in citizens generally. See Const. Art. 1. sect. 9, 7. (9) See 2 R. S. 696, 39. The doing an act prohibited by statute, is a misdemeanor if no specific penalty be imposed. (10) To assert falsely that the king labours under the affliction of mental derangement is c.iminal, and an indictable offence. 3 D. & R. 464. 3 B. & C. 257. S. C. In Rex v. Cobbett, E. T. 1805. Holt on Libel, 114, 5. 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 lieu. tenant and the 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 bring. ing the government into disesteem, whether (q) Ibid. (r) Mod. Un. Hist. xxix. 28. 119. the expedient be by ridicule or pbloquy, the By the 60 Geo. III. c. 8. the offence of pub lishing 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 of fence may be punished, as in cases of high misdemeanors, 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. (11) This provision is now abolished by th 56 Gen. III. c. 138. |