The Rationale of Punishment

Book V

Of Complex Punishments

Chapter V


The punishment of Præmunire consists in the being ``put out of the King's protection'', and, ``in the forfeiture of lands and tenements, goods and chattels''; but such is the uncertainty of English law, that some add to the above, imprisonment during the King's pleasure, and others say for life. Sir Edward Coke is for adding loss of credibility; he might as well have added loss of ears; but I do not find that this conceit has been taken up by anybody else.

The offenses to which this punishment has been applied, are as heterogenous as any that can be imagined. The offence to which it was first applied, was an offence against Government; since that, besides a multitude of other offenses against Government, it has been applied to various offences against the property, against the personal liberty of individuals, and against trade!

What it is that in such a variety of laws should have tempted the legislature, instead of the known and ordinary names of punishment, to devise a new and unexpressive name to which no meaning whatever could be annexed, without rummaging over a confused parcel of old French statutes, is not easy to assign. There is nothing gained by it in any way, not in point of brevity, for in one of the statutes in which it is described with the most conciseness, I find more words are taken up by this uncouth description, than would be by the plain one: there is nothing gained by it in point of precision, for the word has no signification whatever, but by reference to the words of the old statute, and consequently cannot be more precise than they are.

The only recommendation I can find for it is, that it is a Latin word: added to the notion, perhaps, that, as being less intelligible than most other names of punishments, it might be more tremendous.

If this has been the design, it has been in some measure answered---terrible indeed is the name of Præemunire. It is become a kind of bug-bear, in which shape it has descended even among the lowest mob. It is used as synonymous with a scrape: not that the sort of persons last mentioned have any much clearer idea of the particular sort of scrape, than those have who bring others into it by solemn acts of legislation.

[RP, Book V, Chapter IV] [RP, Book V, Chapter VI]