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[as if one goes to a treasonable mecting, 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 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 falling under the denomination of the present chapter, 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 firearms or other arms, or any explosive or dangerous matter, near her majesty's person ;--with intent, in any of these cases, to injure or alarm her, or 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 (0); 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 this nature-sometimes de
(1) Hawk. P. C. b. 1, c. 20, s. 3.
(0) See 27 & 28 Vict. c. 47.
(p) See 5 & 6 Vict. c. 51; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3.
scribed, though rather inaccurately, as treason felony-has also been made the subject of recent legislation, in order to substitute a milder penalty than death, with regard to certain classes of treasonable practices, and thus facilitate the conviction of offenders. For by 11 & 12 Vict. c. 12, intituled “An Act for the better security of the Crown and Government of the United Kingdom,” if any person shall (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(9); 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 (r). 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
(1) As to the treasonable offence of levying war against the king in his realm, vide sup. p. 157. 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.
(7) 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,
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 (t).
V. [A fifth offence of this nature may be by speaking or writing against the sovereign; 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 subjects, 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 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 Præmunire. And this offence, which forms the subject of many stringent statutes long since dormant,
(t) This Act also bronght within its provisions the expression, utterance or declaration of any such compassings, imaginations, inventions, devices or intentions as are mentioned in the text, by open and advised speaking only; but by sect 4, prosecutions for such felonies were to be had only within a certain period after the passing of the Act; which period has now expired.
(1) As by asserting falsely that he labours under mental derangement. (R. v. Harvey, 2 B. & C.
(«) 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 apon 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. xxix. 28, 119.
[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).
The offence of præmunire, was so called from the words of the writ preparatory to the prosecution thereof: præmunire facias A. B.(z), 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
(y) The terrible penalties of a præmunire are denounced by a great variety of statutes, yet prosecutions upon a pramunire are unheard of in our courts. 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. Harg. St. Tr. vol. ii. p. 463.- Ch.
(z) A barbarous word for præmo
neri. Præmuneo, 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. 1531.
[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 principles and practice most unquestionably loyal (6). The clergy of her persuasion, holy in their doctrines, and unblemished in their lives and conversation, are also moderate in their ambition, and entertain just notions of the ties of society and the rights of civil government. As in matters of faith and morality they acknowledge no guide but the Scriptures, so in matters of external polity and of private right they derive all their title from the civil magistrate; they look up to the king as their head, to the parliament as their lawgiver; and pride themselves in nothing more justly than in being true members of the Church, emphatically by law established. Whereas the notions of ecclesiastical liberty in those who differ from them, as well in one extreme as in the other, (for we here only speak of extremes,) are equally and totally destructive of those ties and obligations by which all society is kept together; equally encroaching on those rights which reason and the original contract of every free state in the universe, have vested in the sovereign power; and equally aiming at a distinct independent supremacy of their own, where spiritual men and spiritual causes are concerned. The dreadful effect of such a religious bigotry, when actuated by erroneous principles, even of the Protestant kind, are sufficiently evident from the history of the anabaptists in Germany, the covenanters in Scotland, and that deluge of sectaries in England who murdered their sovereign, and overturned the church and monarchy. But these horrid devastations, the effects of mere madness, or of zeal that was nearly allied to it, though violent and tumultuous, were but of short duration; whereas the progress of papal policy, long actuated by the steady counsels of successive
(3) Address to James the second, 1687