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. 5. On the abolition, by statute 12 Car. II. c. 24. of purveyance, and the prerogative of preemption, 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 fuch 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, befides other heavy penalties', to send any subject of this realm a prisoner into parts beyond the seas. 8. By the statute 1 W. & M. ft. 1. c. 8. persons of eighteen years of age, refusing to take the new oaths of allegiance, as well as fupremacy, upon tender by the proper magistrate, are subject to the penalties of a praémunire; and by statute 7 & 8 W. III. c. 24. serjeants, counsellors, proctors, attorneys, and all officers of courts, practising without having taken the oaths of allegiance and fupremacy, 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 affert malicioufsly 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 fettlement 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 of Scotland, convened to elect their fixteen representatives in the British parliament, shall prefume to treat See Vol. I. pag. 287. • See Vol. I. pag. 138. Vol. III. pag. 137. of of any other matter save only the election, they incur the penalties of a praemunire. II. The last offence that has been made a praemunire, was by statute 6 Geo. I. c. 18. the year after the infamous fouth sea project had beggared half the nation. This therefore makes all unwarrantable undertakings by unlawful subscriptions, then commonly known by the name of bubbles, fubject to the penalties of a praemunire. HAVING thus enquired into the nature and several species of praemunire, it's punishment may be gathered from the foregoing statutes, which are thus shortly summed up by fir 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 autho"rities have it) during life':" 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 tranfgreffing 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, fir Edward Coke adds, was this offence of praemunire, that a man that was attainted of the same might have been flain by any other man without danger of law: because it was provided by law", 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 battel, 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 praemunire, any law, statute, opinion, or expofition 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 ". 1 Inft. 129. * 1 Bulstr. 199. u Stat. 25 Edw. III. ft. 5. c. 22. tion 1 Hawk. P. C. 55. : CHAPTER R THЕ NINTH. OF MISPRISIONS AND CONTEMPTS, AFFECTING 4 THE KING AND GOVERNMENT. T HE fourth species of offences, more immediately against the king and government, are intitled 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 fuch high offences as are under the degree of capital, but nearly bordering thereon: and it is faid, 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. And upon the fame 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 mifdemesnor: as happened in the cafe of Roger earl of Rutland, in 43 Eliz. who was concerned in the earl of Essex's rebellion. Misprisions are generally divided into two forts; negative, which confift in the concealment of something which ought to be revealed; and positive, which confist in the commiffion of fomething which ought not to be done. • Yearb. 2 Ric. III. 10. Staundf. P. С. Hudson of the court of star-chamber. 37. 1 Hawk. P. C. 55, 56. MS. in Muf. Brit. 1. OF I. Or the first, or negative kind, is what is called mifsprifion of treason; consisting in the bare knowlege 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 conftrued aiding and abetting, did at the common law: in like manner as the knowlege of a plot against the state, and not revealing it, was a capital crime at Florence, and other states of Italy. But it is now enacted by the statute 1 & 2 Ph. & Mar. 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 foon as conveniently may be, reveal it to some judge of assise or justice of the peaced. But if there be any probable circumstances of assent, as if one goes to a treasonable meeting, knowing beforehand that a conspiracy is intended against the king; or, being in such company once by accident, and having heard such treasonable conspiracy, meets the fame company again, and hears more of it, but conceals it; this is an implied afssent in law, and makes the concealer guilty of principal high treason. THERE is also one positive misprision of treason, created fo 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. For, though the law would not put foreign coin upon quite the fame footing as our own; yet, if the circumstances of trade concur, the falfifying 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 lofs of the profits of lands during life, forfeiture of goods, and imprisonment during life. Which total forfeiture of the goods |