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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 praemunire. 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 ; [*113] the spirit of the nation being so much raised *against foreigners,
that about this time, in the reign of Henry the Fifth, the alien priories, or abbeys for foreign monks, were suppressed, and their lands given to the crown. And no farther attempts were afterwards made in support of these foreign jurisdictions.
A learned writer, before referred to, is therefore greatly mistaken, when he says (n), that in Henry the Sixth's time the archbishop of Canterbury and other bishops offered to the king a large supply, if he would consent that all laws against provisors, and especially the statute 16 Ric. II., might be repealed; but that this motion was rejected. This account is incorrect in all its branches. For, first, the application, which he probably means, was made not by the bishops only, but by the unanimous consent of a provisional synod, assembled in 1439, 18 Hen. VI., that very synod which at the same time icfused to confirm and allow a papal bullo, which then was laid before them. Next, the purport of it was not to procure a repeal of the statutes against provisors, or that of Richard II. in particular; but to request that the penalties thereof, which by forced construction were applied to all that sued in the spiritual, and even in many temporal, courts of this realm, might be turned against the proper objects only; those who appealed to Rome, or to any foreign jurisdictions: the tenor of the petition being," that those penalties should be taken to extend only to those that commenced any suits or procured any writs or public instruments at Rome or elsewhere out of England; and that no one should be prosecuted upon that statute for any suit in the spiritual courts or by lay jurisdictions of this kingdom." Lastly, the motion was so far from being rejected, that the king promised to recommend it to the next parliament, and in the mean time that no one should be molested upon this account. And the clergy were so satisfied with their success, that they granted to the king a whole tenth upon this
occasion (o). [*114] *And indeed so far was the archbishop, who presided in this
synod, from countenancing the usurped power of the pope in this realm, that he was ever a firm opposer of it. And, particularly in the reign of Henry the Fifth, he prevented the king's uncle from being then made a cardinal, and legate a latere from the pope ; upon the mere principle of its being within the mischief of papal provisions, and derogatory from the liberties of the English church and nation. For, as he expressed himself to the king in his letter upon that subject," he was bound to oppose it by his ligeance, and also to quit himself to God and the church of this land, of which God and the king had made him governor.” This was not the language of a prelate addicted to the slavery of the see of Rome; but of one who was indeed of principles so very opposite to the papal usurpations, that in the year preceding this synod, 17 Hen. VI., he refused to consecrate a bishop of Ely, that was nominated by pope Eugenius IV. A conduct quite consonant to his former behaviour, in 6 Hen. VI., when ho refused to obey the commands of pope Martin V., who had required him (n) Dav. 96
(0) Wilk. Concil. Mag. Brit. III. 533.
to exert his endeavours to repeal the statute of praemunire ("execrabile illud statutum," as the holy father phrases it); which refusal so far exasperated the court of Rome against him, that at length the pope issued a bulle to suspend him from his office and authority, which the archbishop diśregarded, and appealed to a general council. And so sensible were the nation of their primate's merit, that the lords spiritual and temporal, and also the university of Oxford, wrote letters to the pope in his defence; and the house of commons addressed the king, to send an embassador forth with to his holiness, on behalf of the archbishop, who had incurred the displeasure of the pope for opposing the excessive power of the court of
*This then is the original meaning of the offence, which we call (*115) praemunire; 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 praemunire 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 & 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 praemunire. And, in order to restore to the king in effect the nomination of vacant bishopricks, 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 praemunire. Also by statute 5 Eliz. c. 1. to refuse the oath of supremacy will incur the pains of praemunire; and to defend the pope's jurisdiction in this realm, is a praemunire for the first offence, and high ireason 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 praemunire. But importing or selling mass-books, or other popis books, is by statute 3 Jac. I. c. 5. § 25. only liable to the penalty of forty shillings. Lastly, to contribute to the 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 praemunire.
*Thus far the penalties of praemunire seem to have kept within (*116] the proper bounds of their original institution, the depressing the power of the pope : but, they being pains of no inconsiderable consequence, it has been thought fit to apply 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.
(p) See Wilk Concil. Mag. Br. Vol. III. passim, cused this digression ; if indeed it be a digression and Dr. Duck's life of archbishop Chichele, whó to shew how contrary to the sentiments of so learn. was the prelate here spoken of, and the munificent ed and pious a prelate, even in the days of popery, founder of All Souls college in Oxford: in vindica. those usurpations were, which the statutos of tion of whose memory the author hopes to be ex- praemenire and provisors were made to restrain.
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 (?), 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 i 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 of 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, teach. ing, 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 (9) See Book I: page 287.
(r) See Book I. page 138. Book III. page 137. (2) This act was made perpetual by the 39 acted, that no persons shall be summoned to Eliz. c. 18. s. 30. &32; but though not express. take the oath of supremacy, or make the de. ly repealed, yet it seems to have virtually ex. claration against transubstantiation, or be propired since tho 12 Ann. st. 2. c. 16. s. 1. secuted for not obeying the suminons for that
(3) By the second section of 1 Jac. II. c. 8, purpose. the importation must be with the king's li. (5) By the 6 Geo. IV. the greater part of cence (excopt from Ireland by the 46 Geo. III. the provisions of this statute are repealed, and c. 121.)
illegal companies are left to be dealt with ac (4) By the 31 Geo. III. c. 32.9 18. it is en- 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 (w), 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).
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.
(10) Stat. 25 Edw. II. st. 5, c. 22. (1) I lnst. 129.
(2) Bro. Abr. t. Corone, 196. (u) 1 Bulst. 199.
(y) 1 Hawk. P. C. 55. (6) The terrible penalties of a praemunire reign of Charles the Second. Harg. St. Tr. are denounced by a great variety of statutes, 2 vol. 463. yet prosecutions upon a praemunire are un. (7) In New-York, and, it is believed, in the heard of in our courts. There is only one in- whole of the U. s. statutes of praemunire stance of such a prosecution in the State are unknown: the pope making no pretensions Trials, in which case the penalties of a prae- to any power here that could injure our gomunire were inflicted upon some persons, for vernment. refusing to take the oath of allegiance in the VOL. II.
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 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 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 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, for
feiture 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 Ric. III. 10. Staundf. P. C. 37. Kel. 71. I Hal. P. C. 37. 1 Hawk. P. C. 55, 56.
(6) Hudson of the court of star-chamber. MS. in Mus. Brit.
(c) Guicciard. Hist. b. 3. & 13.
(1) See p. 76. note (4). As misprisions of (2) But see the 37 Geo. III. c. 126. ante, p treason and felony seem to be the creatures of 90. n. the statute law, they probably do not exist in (3) But this is only in case of high treason New-York, nor in any other state, without a Misprision of a lower degree is punishable on special statute.
ly by fine and imprisonment. i Hale, 375,
(d) 1 Hal. P. C. 372.