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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 the Fifth, the alien priories, or abbeys for foreign monks, were suppressed, [*113] 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 II, might be repealed; but that this motion was rejected.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 not made by the bishops only, but by the unanimous consent of a provincial synod, assembled in 1439 (18 Hen. VI), that very synod which at the same time refused to confirm and allow a papal bulle, 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 jurisdiction; 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 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 meantime 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. (0)
*And, indeed, so far was the archbishop, who presided in this synod, from countenancing the usurped power of the pope in this realm, [*114] that he was ever a firm opposer of it. And, particulary 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 he refused to obey the commands of Pope Martin V, who had required him to exert his endeavours to repeal the statute of pramunire ("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 disregarded, and appealed to a general council. And so sensible were the nation of their primate's merits, 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 ambassador forthwith 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 Rome. (p)
(n) Dav. 96.
(0) Wilk. Concil. Mag. Brit. III, 533.
(p) See Wilk. Concil. Mag. Br. vol. iii, passim, and Dr. Duck's life of Archbishop Chichele, who was the prelate here spoken of, and the munificent founder of All Souls college in Oxford; in vindication of whose memory the author hopes to be excused this digression; if indeed it be a digression to show how contrary to the sentiments of so learned and pious a prelate, even in the days of popery those usurpations were, which the statutes of præmunire and provisors were made to restrain.
[*115] *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 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 at all the corrupted doctrines of the Roman church. And therefore by the several statutes of 24 Hen. VIII, c. 12, and 25 Hen. VIII, cc. 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 license or dispensation; or to obey any process from thence; are made liable to the pains of pramunire. 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 pramunire; and to defend the pope's jurisdiction in this realm, is a pramunire for the first offence, and high treason for the second. So, too, by statute 13 Eliz. c. 2, if any one 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 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 præmunire. (2) 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 maintenance of a jesuit's college, or any popish seminary whatever beyond sca; 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 within the [ *116 ] 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.
Thus, 1. By the statute 1 and 2 P. and M. c. 8, to molest the possessors of abbey lands granted by parliament to Henry the Eighth and Edward the Sixth, is a præmunire. 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. (3) 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 præmunire, 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 præmunire by two statutes: the one 16 Car. I, c. 21, the other 1 Jac. II, c. 8. (4) 5. On the abolition by statute 12 Car. II, c. 24, of purveyance, (7) 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 præmunire. 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 præmunire by statute 13 Car. II, c. 1. 7. By the habeas corpus
(g) See book I, page 287.
(2) [Repealed by statute 8 and 9 Vic. c. 59.]
(3) [This act was made perpetual by the 39 Eliz. c. 18, ss. 30 and 32; but though not expressly repealed, yet it seems to have virtually expired since the 12 Ann. st. 2, c. 16, s. 1.]
(4) [Repealed by 6 Geo. IV, c. 105.
act also, 31 Car. II, c. 2, it is a præmunire, 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. and 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 præmunire; (5) and by statute 7 and *8 Wm. III, c. 24, serjeants, counsellors, proctors, attorneys, and all officers of courts, practising without [ *117 ] 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 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 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 præmunire. (6) 12. The statute 12 Geo. III, c. 11, subjects to the penalties of the statute of præmunire all such as knowingly and wilfully solemnize, assest 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 of præmunire, 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 authorities have it) during life" (u) both which amount to the same thing; as the king, by his pre[ *118] rogative, 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 pramunire, 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, (x) the statute 5 Eliz. c. 1, provides, that it shall not be lawful to kill any person attainted in a pramunire, any law, statute, opinion, or exposition of law to the contrary notwithstanding. (7) But still such delinquent, though protected as a part of the public from public wrongs, can bring
(r) See book I, page 138. Book III, page 137. (8) See book I, ch. 4. (t) 1 Inst. 129. (u) 1 Bulst. 199. (w) Stat. 25 Edw. III, st. 5, c. 22. (x) Bro. Abr. t. Corone, 196.
(5) [By the 3 Geo. III, c. 32, § 18, it is enacted, that no person 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.]
(6) [By the 6 Geo. IV the greater part of the provisions of this statute are repealed, and illegal companies are left to be dealt with according to the common law.]
(7) [And although this statute has been repealed by the act 9 and 10 Vic. c. 59, it can scarcely be suggested that a man convicted upon a pramunire is wholly out of the pale of the law.]
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) (S)
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. (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 Ruthland, in 43 Eliz., who was concerned in the earl of Essex's rebellion. (b) 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 [*120] 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 in other states of Italy. (c) But it is now enacted by the statute 1 and 2 P. and 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. (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 parlia ment. The statute 13 Eliz. c. 2, enacts, that those who forge foreign coin, not urrent in this kingdom, their aiders, abettors, and procurers, shall all be guilty
(y) 1 Hawk. P. C. 55.
(a Year-book, 2 Ric. III, 10. Staundf. P. C. 37. Kel. 71. 1 Hal. P. C. 374. 1 Hawk. P. C. 55. 56. (b) Hudson of the court of star-chamber. MS. in Mus. Brit. (c) Guicciard. Hist. b. 3 and 13. (d) 1 Hal. P. C. 372.
(e) 1 Hawk. P. C. 56.
(8) [The terrible penalties of a pramunire are denounced by a great variety of statutes, yet prosecutions upon a præmunire are unheard of in our courts. There is only 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 the Second. Harg. St. Tr. vol. 2, 463.]
(1) Misprision of treason against the United States is defined by the act of congress of April 30, 1790 (1 Stat. at Large, 112), and made punishable by imprisonment not exceeding seven years, and by fine not exceeding one thousand dollars.
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 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 com- [*121] mon 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.
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 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." (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. (j)
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 house of peers shall seem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability. Hitherto also may be referred the "offence of embezzling the public money, called among the Romans peculatus, which the Julian law punished with death [*122] 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; or in his wars by personal service for defence of the realm, against a rebellion or (f) 1 Hal. P. C. 374. (g) See page 94 (k) Inst. 4, 18, 9.
(h) 1 Hal. P. C. 375.
(i) Glan. l. 1, c. 2. (j) 8 Inst. 133.
(2) By subsequent statutes the offence is made felony, or, in case of copper coin, misdemeanor See 37 Geo. III, c. 126; 43 Geo. III, c. 139, and 24 and 25 Vic. c. 99.
(3) [But this is only in case of high treason. Misprision of a lower degree is punishable only by fine and imprsonment. 1 Hale, 375.]
(4) In the United States "The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for and conviction of treason, bribery, or other high crimes and misdemeanors." Const. of U. S. art. 2, § 4. The senate is the tribunal to try impeachments; the chief justice presiding when the president is on trial. Judgment in case of conviction shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law. Const. art. 1, s. 3.
In the several states a similar tribunal is empowered to try state officers on impeachments. For very full discussion of the law of impeachment, see The Trial of Andrew Johnson, 1868, 3 vols. Also, articles in 6 Am. Law Reg. N. S. 257 and 641.
(5) See statute 24 and 25 Vic. c. 96, s. 70.