Sivut kuvina

4. To obtain an exclufive patent for the fole making or importation of gunpowder or arms, or to hinder others from importing them, is also a praemunire by two ftatutes; 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, beafts, 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 affert, 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 ftatute 13 Car. II. c. I. 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 fend any subject of this realm a prisoner into parts beyond the feas. 8. By the ftatute 1 W. & M. ft. 1. c. 8. perfons 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 praemunire; and by statute 7 & 8 W. III. c. 24. ferjeants, 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 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; fuch preaching, teaching, or advised speaking is a praemunire: as writing, printing, or publishing the fame doctrines amounted, we may remember, to high treason. 10. By ftatute 6 Ann. c. 23. if the affembly of peers of Scotland, convened to elect their fixteen representatives in the British parliament, shall presume to treat

See Vol. I. pag. 287.

See Vol. I. pag. 138. Vol. III. pag. 137. of

of any other matter fave only the election, they incur the penalties of a praemunire. 11. The laft offence that has been made a praemunire, was by ftatute 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 fubfcriptions, then commonly known by the name of bubbles, fubject to the penalties of a praemunire.

[ocr errors]

HAVING thus enquired into the nature and several species of praemunire, it's punishment may be gathered from the foregoing ftatutes, which are thus fhortly fummed 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 fame 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 ftatute 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 fo odious, fir Edward Coke adds, was this offence of praemunire, that a man that was attainted of the fame 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 pofition 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 neceffary felf-defence. And, to obviate fuch favage and mistaken notions, the statute 5 Eliz. c. I. provides, that it shall not be lawful to kill any person attainted in a praemunire, any law, ftatute, opinion, or expofi

• 1 Inft. 129.

+ 1 Bulftr. 199.

" Stat. 25 Edw. III. ft. 5. c. 22.


tion 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 foever; 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 fuffer. And no man, knowing him to be guilty, can with fafety give him comfort, aid, or relief ".

1 Hawk. P. C. 55.




HE fourth fpecies of offences, more immediately against the king and government, are intitled mifprifions and contempts.

MISPRISIONS (a term derived from the old French, me/pris, 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 whatfoever; and that, if the king so please, the offender may be proceeded against for the misprifion 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 cenfured in that court, merely for a high misdemefnor: as happened in the cafe of Roger earl of Rutland, in 43 Eliz. who was concerned in the earl of Effex's rebellion. Mifprifions are generally divided into two forts; negative, which confift in the concealment of something which ought to be revealed; and pofitive, which confist in the commiffion of fomething which ought not to be done.

Yearb. 2 Ric. III. 10. Staundf. P. C. 37. 1 Hawk. P. C. 55, 56.

b Hudfon of the court of ftar-chamber. MS. in Muf. Brit.

1. OF

I. Or the first, or negative kind, is what is called mifprifion of treafon; consisting in the bare knowlege and concealment of any affent treason, without any degree of affent thereto : for 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 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 ftatute 1 & 2 Ph. & Mar. c. 10. that a bare concealment of treason shall be only held a misprifion. This concealment becomes criminal, if the party apprized of the treason does not, as soon as conveniently may be, reveal it to fome judge of affife or justice of the peace. But if there be any probable circumstances of affent, as if one goes to a treasonable meeting, knowing beforehand that a confpiracy is intended against the king; or, being in fuch 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 affent in law, and makes the concealer guilty of principal high treafon *.

THERE is also one positive misprision of treason, created fo by act of parliament. The ftatute 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 confequences almoft 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 mifprifion of treason is lofs of the profits of lands during life, forfeiture of goods, and imprisonment during life. Which total forfeiture of the goods

[merged small][merged small][ocr errors]

1 Hawk. P. C. 56.


f 1 Hal. P. C. 374.


« EdellinenJatka »