Scotch peers treat ing of other matters than the election, lement and union, hath any right to the throne of these kingdoms; or that the king aud 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 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. unlawful subscrip(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 name of bubbles, subject to the penalties of a praemunire. 12. The statute 12 Geo. III. c. 11. subjects to the penalties and solemnizing the of the statute of praemunire all such as knowingly and wil- of the royal family fully solemnize, assist, or are present at, any forbidden mar- the crown. riage 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 crowns. tions and bubbles, marriage of certain without consent of HAVING thus inquired into the nature and several species Punishment of of praemunire, its punishment may be gathered from the praemunire. foregoing statutes, which are thus shortly summed up by sir Edward Coke': "that, from the conviction, the defendant "shall be out of the king's protection, and his lands and te"nements, 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";" 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 [ 118 ] (s) See book I. ch. 4, (t) 1 Inst. 199. (u) 1 Bulst. 199. 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", 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, 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 (49). (w) Stat. 25 Edw. III. st. 5. c. 22. (x) Bro. Abr. t. corone, 196. (y) 1 Hawk. P. C. 55. (49) There is but one instance in all Hargrave's state trials of a prosecution upon a praemunire. Indeed such a prosecution is now unknown in practice. CHAPTER THE NINTH. OF MISPRISIONS AND CONTEMPTS, AFFECTING THE KING AND GOVERNMENT. TH HE fourth species of offences, more immediately against MISPRISIONS are the king and government, are entitled misprisions and contempts. MISPRISIONS (a term derived from the old French, mes- negative or positive. pris, 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 offen der may be proceeded against for the misprision only. And upon the same principle, while the jurisdiction of the starchamber 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 misdemesnor: as happened in the case of Roger earl of Rutland, in 43 Eliz. who was concerned in the earl of Essex's rebellion. 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 (a) Year-b. 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,VOL. IV, 51 52 The negative are, misprision of trea son, (forging, &c. foreign coin is a misprision of treason. 1. Of the first, or negative kind, is what is called misprision of treason; 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. 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 soon as conveniently may be, reveal it to some judge of assise or justice of the peace". 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 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 o. 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 (50). 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 (c) Guicciard. Hist. b. 3 & 13. (50) Counterfeiting foreign gold or silver coin not current in this country, is now, by 37 Ceo. III. c. 126, felony and (d) 1 Hal. P. C. 372. transportation for seven years; and tendering in payment such coin, third offence is felony without clergy. [121] below capital, and that is all. For the punishment of mispri- Punishment of misprision of treason), sion of treason is loss of the profits of lands during life, forfeiture of goods, and imprisonment during life (51). 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 common law; and therefore is no exception to the general rule laid down in a former chapter 8, that wherever an offence is punished by such total forfeiture it is felony at the common law (52). 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 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" હૃદ 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 deathj; but now only by fine and imprisonment1. misprision of felony 59 and imprisonment), (punished by fine concealing treasure 54 II. MISPRISIONS, which are merely positive, are generally Positive misprisions 55 denominated contempts or high misdemesnors; of which (f) 1 Hal. P. C. 374. (j) Glanv. l. 1. c. 2. are 1. THE (51) But misprision of petit treason is punishable in the same manner as misprision of felony; that is, by fine and imprisonment. (52) For misprision of treason a peer shall be tried by his peers, upon an indictment found by a grand jury. *2 Inst. 49. 1 Hale, 974, |