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answer to the king and his council: or process of præmunire facias shall be made out against them as in other cases of provisors.

Henry IV.

By the statute of 2 Hen. 4, c. 3, all persons who accept any provision from the pope, to be exempt from canonical obedience to their proper ordinary, are also subjected to the penalties of præmunire. And this is the last of our ancient statutes touching this offence; the usurped civil power of the bishop of Rome being pretty well broken down by these * statutes, as his usurped religious power was in about a century [* 112] afterwards; the spirit of the nation being so much raised against foreigners, that about this time, in the reign of Henry V., the alien priories, or abbeys for foreign monks, were suppressed, and their lands given to the crown. And no further attempts were afterwards made in support of these foreign jurisdictions.

A learned writer, below referred to, is therefore greatly mistaken, when he says (7), that in Henry VI.'s time the archbishop of Canterbury (m) and other bishops offered to the king a large supply, if he would consent that all laws against provisors, and especially the statute 16 Ric. 2, might be repealed; but that this motion was rejected. This account is incorrect in all its branches. For, first, the application, which he probably means, was made, not by the bishops only, but by the unanimous consent of a provincial synod, assembled in 1439, 18 Hen. VI., that very synod which at the same time refused to confirm and allow a papal bull, which then was laid before them. Next, the purport of it was not to procure a repeal of the statutes against provisors, or that of Richard II. in particular; but to request that the penalties thereof, which by a forced construction were applied to all who sued in the spiritual, and even in many temporal, courts of this realm, might be turned against the proper objects only; those who appealed to Rome, or to any foreign jurisdiction: the tenor of the petition being, "that those penalties should be taken to extend only to those that commenced any suits or procured any writs or public instruments at Rome or elsewhere out of England; and that no one should be prosecuted upon that statute for any suit in the spiritual courts or lay jurisdictions of this kingdom." Lastly, the motion was so far from being rejected, that the king promised to recommend it to the next parliament, and in the meantime that no one should be molested upon this account. And the clergy were so * satisfied with their success, that they granted to the king a whole tenth upon this occasion (n).

[*113]

And indeed so far was the archbishop, who presided in this synod, from countenancing the usurped power of the pope in this realm, that he was ever a firm opposer of it. And, particularly in the reign of Henry V., he prevented the king's uncle from being then made a cardinal, and legate a latere from the pope; upon the mere principle of its being within the mischief of papal provisions, and derogatory from the liberties of the English church and nation. For, as he expressed himself to the king in his letter upon that subject, "he was bound to oppose it by his ligeance, and also to quit himself to God and the church of this land, of which God and the king had made him governor." This was not the language of a prelate addicted to the slavery of the see of Rome; but of one who was indeed of principles so very opposite to the papal usurpations, that in the year preceding this synod, 17 Hen. VI., he refused to (1) The Case of Præmunire, Dav. 96. (n) Wilk. Concil. Mag. Brit. iii. 533.

(m) Archbishop Chichele.

consecrate a bishop of Ely, who was nominated by Pope Eugenius IV. A conduct quite consonant to his former behaviour, in 6 Hen. VI., when he refused to obey the commands of Pope Martin V., who had required him to exert his endeavours to repeal the statute of præmunire ("execrabile illud statutum," as the holy father phrases it); which refusal so exasperated the court of Rome against him, that at length the pope issued a bull to suspend him from his office and authority, which the archbishop disregarded, and appealed to a general council. And so sensible was the nation of the primate's merit, that the lords spiritual and temporal, and also the University of Oxford, wrote letters to the pope in his defence; and the house of commons addressed the king, to send an ambassador forthwith to his holiness, on behalf of the archbishop, who had incurred the displeasure of the * pope for opposing the excessive power of the court of Rome (0)

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This then is the original meaning of the offence, which we call præmunire; viz., introducing a foreign power into this land, and creating imperium in imperio, by paying that obedience to papal process, which constitutionally belonged to the crown alone, long before the reformation in the reign of Henry VIII.: at which time the penalties of præmunire were indeed extended to more papal abuses than before; as the kingdom then entirely renounced the authority of the see of Rome, though not all the corrupted doctrines of the Roman church. And therefore by the statutes 24 Hen. 8, c. 12, and 25 Hen. 8, cc. 19 & 21, to appeal to Rome from any of the king's courts, which (though illegal before) had at times been connived at; to sue to Rome for any licence or dispensation; or to obey any process from thence; was prohibited under the penalties of præmunire. And, in order to restore to the king in effect the nomination of vacant bishoprics, and yet keep up the established forms, it was enacted by statute 25 Hen. 8, c. 20, that if the dean and chapter refused to elect the person named by the king, or any archbishop or bishop to confirm or consecrate him, they should fall within the penalties of the statutes of præmunire.

Thus far the penalties of præmunire seem to have kept within the proper bounds of their original institution, the depressing the power of the pope: but, they being pains of no inconsiderable consequence, it has been thought fit to apply the same to other heinous offences; some of which bear more, and some less, relation to this original offence. For instance, to assert, maliciously and advisedly, by speaking or writing, that both or either of the houses of parliament have a legislative authority without the king, is declared a præmunire by statute 13 Car. 2, * c. 1, ss. 3, 7. By the habeas corpus act also, 31 Car. 2, c. 2, it is a præmunire, and incapable of the king's pardon, [* 115 ] besides other heavy penalties, to send any subject of the realm a prisoner into parts beyond the seas. So by the statute of 6 Anne, c. 7, to assert 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; such preaching, teaching, or advised speaking, is a præmunire: as writing, printing, or publishing the same doctrines amounted, we may remember, to high treason. By statute 6 Anne, c. 23, s. 9, if the assembly of peers of Scotland, con(0) See Wilk. Concil. Mag. Br. vol. iii. pas sim, and Dr. Duck's Life of Archbishop

Chichele.

vened 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 præmunire. And the statute 12 Geo. 3, c. 11, subjects to the penalties of the statute of præmunire all such as knowingly and wilfully solemnise, assist, or are present at, any forbidden marriage of such of the descendants of the body of king Geo. II. as are by that act prohibited to contract matrimony without the consent of the crown (p).

Having thus inquired into the nature and several species of præmunire, its punishment may be gathered from the foregoing and other statutes, which are Punishment of thus shortly summed up by sir Edward Coke (q):-that from the præmunire. 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 authorities have it) during life (r): 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

[* 116] 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 præmunire, that a man attainted of the same might have been slain by any other man without danger of law: because it was provided by law (s), 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 (t), the statute 5 Eliz. c. 1 (u), provided, that it should not be lawful to kill any person attainted in a præmunire, 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 safely give him comfort, aid, or relief (x). But although the severe penalties of a præmunire have been denounced by many statutes, of which some are still unrepealed, prosecutions for this offence have been almost unheard of in our courts (y), and the offence itself may therefore be considered as obsolete, and as no longer forming a title in our criminal code.

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VI. Contempts against the sovereign's title, not * amounting to treason or præmunire, are the denial of his right to the crown in common and unadvised discourse: for, if it be by advisedly speaking, we have seen (2) that it amounts to a præmunire. not amounting This heedless species of contempt is punished by our law with

VI. Contempts against sovereign's title,

to treason.

fine and imprisonment.

(p) Ante, vol. i. p. 267. See the 3 & 4 Vict.

c. 52, s. 4.

(2) 1 Inst. 129.

(r) 1 Bulst. 199.

(8) Stat. 25 Edw. 3, st. 5, c. 22.

(t) Bro. Abr. c. Corone, 196.

(u) Repealed by 7 & 8 Vict. c. 102.

(x) 1 Hawk. P. C. 55.

(y) See however Lalor's Case, 2 St. Tr. 533; Crook's Case, 6 id. 202.

(z) Ante, p. 115.

*CHAPTER VIII.

OFFENCES AGAINST THE GOVERNMENT.

OF offences falling within the scope of this chapter:

I. Mal-adminis

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I. The first and principal is the mal-administration of such high officers, as are in public trust and employment. This is usually punished by the method of parliamentary impeachment: (648) wherein such penalties, tration of public short of death, are inflicted, as to the wisdom of the house of peers shall seem proper; consisting usually of imprisonment, fines, or perpetual disability.

officers.

public money.

II. Hither also may be referred the offence of embezzling the public money, called among the Romans peculatus, which the Julian law punished with death II. Embezzling in a magistrate, and with deportation, or banishment, in a private person (a). (649) This is an offence punishable by indictment at common law, in virtue of two principles which have been thus enunciated (b). 1st. If a man accepts an office of trust and confidence concerning the public, especially when it is attended with profit, he is answerable to the crown for his execution of such office; and, 2ndly, Where there is a breach of trust, a fraud, or an imposition in a subject concerning the public, which, as between subject and subject, would only be actionable, yet as that concerns the crown and the public, it is indictable. Moreover, by stat. 50 Geo. 3, c. 59, s. 2, if any officer, collector, or receiver, entrusted with the [*119] receipt, custody, or management of any part of the public revenues, shall knowingly furnish false statements or returns of the sums of money collected by him, or entrusted to his care, or of the balances of money in his hands, or under his control, the person so offending shall be adjudged guilty of a misdemeanor, punishable with fine and imprisonment, at the discretion of the court, and be rendered for ever incapable of holding any office under the crown.

(a) Inst. 4, 18, 9.

22 St. Tr. 155-6; Trial of Lord Melville, 29 (b) Per Lord Mansfield, Bembridge's Case, St. Tr. 549.

(648) The president, vice-president, and all civil officers of the United States may be impeached by the house of representatives for treason, bribery, and other high crimes and misdemeanors, and upon trial and conviction by the senate, removed from office. Const. U. S., art. 11, § 4; art. 1, § 2, sub. 5; id., § 3, sub. 6. See 1 Kent's Com. 289.

Cases of impeachment are expressly excepted out of the pardoning power by the constitution of the United States. Art. 11, § 2, sub. 1. And the constitutions of the several States contain similar exceptions.

For a thorough examination of the whole subject of impeachment and impeachable offenses, see The Trial of Andrew Johnson, 1868, 3 vols. See, also, 6 Am. Law Reg. (N. S.) 257 and 641.

(649) To sustain an indictment under an act of congress for embezzlement, the defendant must have violated some specific provision of the act. See United States v. Forsythe, 6 McLean, 584.

It is held that the embezzlement by an officer of a national bank of a special deposit in such bank, not being punishable by any statute of the United States, may be punished in a State court under a State law. Com. v. Tenney, 97 Mass. 50; Com. v. Hall, id. 570; State v. Fuller, 34 Conn. 280. See Com. v. Felton, 101 Mass. 204.

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III. With respect to larceny, when committed by any person being employed in the public service of her Majesty, or by a constable or other person III. Larceny by employed in the police of any county, city, borough, district, or persons in the place whatsoever, it is enacted (c) that if such person "shall

queen's service

or by the police. steal any chattel, money, or valuable security belonging to or in the possession or power of her Majesty, or entrusted to or received, or taken into possession by him by virtue of his employment," he shall be guilty of felony (d). And whosoever, being employed, as aforesaid, and "entrusted by virtue of such employment with the receipt, custody, management, or control of any chattel, money, or valuable security, shall embezzle any chattel, money, or valuable security which shall be entrusted to or received or taken into possession by him by virtue of his employment, or any part thereof, or in any manner fraudulently apply or dispose of the same or any part thereof to his own use or benefit, or for any purpose whatsoever, except for the public service, shall be deemed to have feloniously stolen the same from her Majesty ” (e). * IV. A peculiar species of misprision may here be noticed, namely, [*120] the concealing of treasure-trove, which belongs to the sovereign or IV. Concealing his grantees by prerogative royal (f); the concealment of which treasure-trove. was formerly punishable by death (g), but now only by fine and imprisonment (h).

V. Purchase and sale of public offices.

V. The buying and selling of any public office has been adjudged to be malum in se, and indictable at common law (i), and the stat. 5 & 6 Edw. 6, c. 16, extended by stat. 49 Geo. 3, c. 126, was passed to put a stop to this evil practice-to prevent all corrupt bargains for the sale of patronage in matters of public concernment (k). By these enactments any (1) such bargain or sale is declared to be void, and the offender shall not only forfeit his right to such office, but shall be disabled to have or enjoy it afterwards. The offence thus constituted is a misdemeanor.

VI. Offences relative to the coinage were formerly regarded by our customary law as high contempts again st the sovereign, and by the statute 25 Edw. VI. Offences relat- 3, st. 5, c. 2, two species of such offences, viz., the actual couning to the coin. terfeiting the gold and silver coin of this kingdom; and the importing such counterfeit money with intent to utter it, knowing it to be false, were expressly declared to be high treason (m). The crime itself was (h) 3 Inst. 133. See Reg. v. Thomas, L. & C. 313. (i) Stockwell v. North, Noy, 102; R. v. Vaughan, 4 Burr. 2494; R. v. Pollman, 2 Camp. 229.

(c) 24 & 25 Vict. c. 96, s. 69.

(d) Punishment: penal servitude for any term not exceeding fourteen years and not less than five years; or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. Id.; 27 & 28 Vict. c. 47, s. 1. (e) 24 & 25 Vict. c. 96, s. 70. Punishment: penal servitude for any term not exceeding fourteen years and not less than five years; or to be imprisoned for any term not exceed ing two years, with or without hard labour. See, also, 24 & 25 Vict. c. 96, ss. 71, 72.

(f) The concealment of treasure trove is included in this chapter as being an offence against the government by reason of the arrangement respecting the revenues of the crown mentioned ante, vol. i., chap. 8. (g) Glan. 1. 1, c. 2.

(k) Per Lord Denman, C. J., Reg. v. Charretie, 13 Q. B. 461.

(7) Certain offices are excepted from the operation of the above statutes. See 49 Geo. 3, c. 126, ss. 7, 9; Sterry v. Clifton, 9 C. B. 110.

(m) Sir M. Hale (1 P. C. 224), observes that before the statute of 25 Edw. 3, the offence of counterfeiting the coin was held to be only a species of petit treason; subsequent acts, however, following the example of that statute, made it equally high treason with an endeavour to subvert the government, though not quite equal in its punishment.

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