[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 (g). 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 the forty-third year of Elizabeth, who was concerned in the Earl of Essex's rebellion (h). Misprisions are generally divided in our books 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. The latter, however, are not denominated in common language as misprisions, but rather as contempts or high misdemeanors (i). Misprision of treason consists of 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. But it is now enacted by the statute 1 & 2 P. & M. c.

10, that a bare concealment of treason shall be only held a misprision (j).

This concealment becomes criminal if the party apprised of the treason does not, as soon as conveniently may be, reveal it to some judge of assize or justice of the peace (k). 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, but conceals it: -this is an

(g) Year Book, 2 Rich. 3, 10; Staundf. P. C. 37; Kel. 71; 1 Hale, P. C. 374; Hawk. P. C. b. 1, c. 20.

(h) Hudson, of the Court of Star

Chamber, MS. in Mus. Brit.; Collectanea Juridica, vol. ii. p. 1–241. (i) 4 Bl. Com. 121.

(j) 1 & 2 P. & M. c. 10, s. 8. (k) 1 Hale, P. C. 372.

[implied assent in law, and makes the concealer guilty of actual treason (1).

The punishment of misprision of treason is stated in the books to be the loss of the profit of the lands of the offender during life, forfeiture of his goods, and imprisonment during life; 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 (m).] But no conviction for treason or felony now causes any forfeiture (n).

III. A third offence closely connected with that of high treason itself, is one provided against by 5 & 6 Vict. c. 51. It is that of a person who shall wilfully discharge, point, aim or present at the person of the Queen, any gun or other arms, whether containing explosive materials or not; or who shall strike at or attempt to throw any thing upon the Queen's person; or who shall produce any fire-arms or other arms, or any explosive or dangerous matter, near her majesty's person;-with intent, in any of these cases, either to injure or alarm her, or merely to commit a breach of the peace. And any one so offending is guilty of a high misdemeanor: and is made liable to penal servitude for seven or not less than five years (o); or to imprisonment for not more than three years, and (if the court shall so direct) to be whipped not more than thrice during that period (p).

IV. A fourth offence of the same species as the lastsometimes described, though rather inaccurately, as treason felony-has also been made the subject of modern legislation, in order to substitute a milder penalty than death, with regard to certain classes of treasonable practices, and thus facilitate the conviction of the criminal. For by 11 & 12 Vict. c. 12, intitled "An Act for the better security of the Crown and Government of the United Kingdom," if any

(1) Hawk. P. C. b. 1, c. 20, s. 3. (m) 1 Hale, P. C. 374.

(n) 33 & 34 Vict. c. 23, s. 1.

(0) See 27 & 28 Vict. c. 47.

(p) See 5 & 6 Vict. c. 51; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3.

person shall (either within the united kingdom, or without) compass, imagine, invent, devise or intend to deprive or depose the Queen, her heirs or successors, from the style, honour or royal name of the imperial Crown of the united kingdom, or of any of her majesty's dominions and countries; or to levy war against her majesty, her heirs or successors, within any part of the united kingdom, in order by force. or constraint to compel a change of measures or counsels, or in order to put any force or constraint upon, or to intimidate or overawe, both houses or either house of parliament (2); or to move or stir any foreigner or stranger with force to invade the united kingdom, or any other of her majesty's dominions or countries under the obeisance of her majesty, her heirs or successors;-and shall express, utter or declare such compassings, imaginations, inventions, devices or intentions, or any of them, by publishing any printing or writing, or by any overt act or deed-the person so offending shall be guilty of felony (). And on conviction he is liable, at the discretion of the court, to be sentenced to penal servitude for life, or for any term not less than five years; or to be imprisoned for any term not exceeding two years, with or without hard labour, as the court shall direct (s). And there is a proviso, that if the facts alleged in the indictment, or proved on the trial of any person charged with felony under this Act, shall amount in law to treason,-such indictment shall nevertheless not be deemed void, erroneous or defective; nor shall such person be entitled to be acquitted of the felony; but that no person tried for the felony, shall afterwards be prosecuted for treason upon the same facts (†).

(2) As to the treasonable offence of levying war against the king in his realm, vide sup. p. 172. It is to be observed that it is provided in the Act, that nothing therein contained is to lessen the force or in any manner affect anything enacted by the statute of Edw. 3.

(r) Three prosecutions under this

statute, will be found reported in 3 Cox, C. C. pp. 509, 517, 526. See also Mulcahy v. The Queen, Law Rep., 3 Ap. Ca. 306.

(s) 11 & 12 Vict. c. 12; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47.

(t) This Act also brought within its provisions the expression, utter

V. [A fifth offence against the sovereign may be by speaking or writing against him; cursing or wishing him ill; giving out scandalous stories concerning him (u), or doing any thing that may tend to lessen him in the esteem of his subject, may weaken his government, or may raise jealousies between him and his people. It has been also held an offence of this species, to drink to the pious memory of a traitor; or for a clergyman to absolve persons at the gallows, who there persist in the treasons for which they die; these being acts which impliedly encourage rebellion; and for this species of contempt, it is laid down, a man may not only be fined and imprisoned, but suffer corporal punishment (x).

VI. Under the general title of this chapter we must also advert to what is to be found in the books as to Præmunire. And this offence, which forms the subject of many stringent statutes long since dormant, deserves, nevertheless, from its connection with our political and ecclesiastical history, a more full and particular consideration, than its degree of importance as a matter of practical law might appear to deserve (y).

ance or declaration of any such compassings, imaginations, inventions, devices or intentions as are mentioned in the text, by open and advised speaking only; but prosecutions for such felonies were to be instituted only within a certain period after the passing of the Act; and that period has long since expired. (11 & 12 Vict. c. 12, s. 4.) (u) As by asserting falsely that he labours under mental derangement. (R. v. Harvey, 2 B. & C. 257.)

(x) Hawk. P. C. b. 1, c. 23, s. 3. Blackstone remarks (vol. iv. p. 123), that in the antient German empire,

such persons as endeavour to sow sedition and disturb the public tranquillity were condemned to become the objects of public notoriety and derision, by carrying a dog upon their shoulders from one great town to another. The Emperors Otho the first and Frederick Barbarossa inflicted this punishment on noblemen of the highest rank; Blackstone cites Mod. Un. Hist. xxxix. 28, 119.

(y) From the Seventh Report of the Criminal Law Commissioners (dated 11th March, 1843), p. 42, it seems that nine enactments still remain on the statute book under

[The offence of præmunire, was so called from the words of the writ preparatory to the prosecution thereof: præmunire facias A. B. (≈), cause A. B. to be forewarned that he appear before us to answer the contempt wherewith he stands charged; which contempt is particularly recited in the preamble to the writ (a). It took its original from the exorbitant power claimed and exercised in England by the Pope; which, even in the days of blind zeal, was too heavy for our ancestors to bear.

It may justly be observed, that religious principles,— which, when genuine and pure, have an evident tendency to make their professors better citizens as well as better men,-have, when perverted and erroneous been usually subversive of civil government; and been made both the cloak and the instrument, of every pernicious design that can be harboured in the heart of man. The unbounded authority that was exercised by the Druids in the west, under the influence of pagan superstition, and the terrible ravages committed by the Saracens in the east, to propagate the religion of Mahomet,-both witness to the truth of that antient universal observation, that, in all ages and in all countries, civil and ecclesiastical tyranny are mutually productive of each other. It is, therefore, the glory of the Church of England, that she inculcates due obedience to lawful authority; and hath been, as her prelates on a trying occasion once expressed, in her prin

which the penalties of a præmunire may be incurred. But according to Mr. Christian (4 Bl. Com. p. 118), there is 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. (See Harg. St. Tr. vol. ii. p. 463.)

(z) A barbarous word for præmoneri. Præmunco, in law Latin, is

used for præmoneo, or cito. (Ducange, Gloss.) Fuller (Cent. xiv. p. 148) suggests that præmunire means to fence and fortify the regal power from foreign assault; and this is adopted by D'Aubigné in his Hist. of the Reformation, (vol. v. p. 107). But the account of the word given by Ducange, seems the true one.

(a) Old Nat. Brev. 101, edit. 1534.