1. 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; (9) wherein such penalties, short of death, are inflicted, as to the wisdom of the peers shall seem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability. *122] Hitherto also may be referred the *offence of embezzling the public money, called among the Romans peculatus, which the Julian law punished with death in a magistrate, and with deportation, or banishment, in a private person.(k) With us it is not a capital crime, but subjects the committer of it to a discretionary fine and imprisonment. (10) Other misprisions are, in general, such contempts of the executive magistrate as demonstrate themselves by some arrogant and undutiful behavior towards the king and government. These are

2. Contempts against the king's prerogative. As, by refusing to assist him for the good of the public, either in his councils, by advice, if called upon, or in his wars, by personal service for defence of the realm, against a rebellion or invasion. (1) Under which class may be ranked the neglecting to join the posse comitatus, or power of the county, being thereunto required by the sheriff or justices, according to the statute 2 Hen. V. c. 8, which is a duty incumbent upon all that are fifteen years of age, under the degree of nobility and able to travel. (m)(11) Contempts against the prerogative may also be by preferring the interests of a foreign potentate to those of their own, or doing or receiving anything that may create an undue influence in favor of such extrinsic power; as by taking a pension from any foreign prince without the consent of the king.(n)(12) Or by disobeying the king's lawful commands: whether by writs issuing out of his courts of justice, or by summous to attend his privy council, or by letters from the king to a subject commanding him to return from beyond seas, (for disobedience to which his lands shall be seized till he does return, and himself afterwards punished,) or by his writ of ne exeat regnum, or proclamation commanding the subject to stay at home. (0) Disobedience to any of these commands is a high misprision and contempt; and so, lastly, is disobedience to any act of parliament where no particular penalty is assigned; for then it is punishable, *123] like the rest of these contempts, by fine and imprisonment, at the discretion of the king's courts of justice. (p) (13)

(k) Inst. 4, 18, 9.
(1) 1 Hawk. P. C. 59.
(m) Lamb. Eir. 315.

(n) 3 Inst. 144.
(0) See book 1. page 266.
(p) 1 Hawk. P. C. 60.

(9) "To subject the superior officers of government, upon whose uninterrupted pres ence at the helm the safety of the state depends, to indictments for misconduct in office, would be injurious to the body politic; and consequently in such cases impeachment is the sole instrument of penal revision. This principle applies to the superior executive officers of government so far as such officers are clothed with discretion, and are the subjects of impeachment; to the legislature and clearly to the judges of all courts of record, so far as concerns their judicial as distinguished from their ministerial acts.” Wharton Crim. Law, 10 ed. vol. 2, 1571, p. 450.

(10) See stat. 24 & 25 Vict. c. 96, 70, embezzlement by persons in the queen's service or by the police is made felony, punishable by penal servitude, or imprisonment.

(11) Russell on Crimes, 9 Am. ed. vol. 1 139. Bailey's Onus Probandi, 450 (1886). (12) "Entering into the service of any foreign state without the consent of the king, or contracting with it any other engagement which subjects the party to an influence or control inconsistent with the allegiance due to our own sovereign, is, at common law, a high misdemeanor and punishable accordingly." Russell on Crimes, 9 Am. ed. vol. I *136.

(13) Keller et al. v. The State, 11 Maryland 525, 536. "If a statute enjoin an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying the injunction of the legislature.' Keller v. The State, 11 Md. 525, 536 (1857).

3. Contempts and misprisions against the king's person and government may be by speaking or writing against them, cursing or wishing him ill, giving out scandalous stories concerning him, 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. (14) 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 the pillory, (15) or other infamous corporal punishment; (g) in like manner as in the ancient German empire such persons as endeavored 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 I. and Frederick Barbarossa inflicted this punishment on noblemen of the highest rank. (r)

4. Contempts against the king's title, not amounting to treason or præmunire, (16) are the denial of his right to the crown in common and unadvised discourse; for, if it be by advisedly speaking, we have seen(s) that it amounts to a præmunire. This heedless species of contempt is, however, punished by our law with fine and imprisonment. Likewise, if any person shall in any wise hold, affirm, or maintain that the common law of this realm, not altered by parliament, ought not to direct the right of the crown of England; this is a misdemeanor, by statute 13 Eliz. c. 1, and punishable with forfeiture of goods and chattels. A contempt may also arise from refusing or neglecting to take the oaths appointed by statute for the better securing the government, and yet acting in a public office, place of trust, or [124 other capacity, for which the said oaths are required to be taken, viz., those of allegiance, supremacy, and abjuration; which must be taken within six calendar months after admission. The penalties for this contempt, inflicted by statute 1 Geo. I. st. 2, c. 13, are very little, if any thing, short of those of a præmunire; being an incapacity to hold the said offices, or any other; to prosecute any suit; to be guardian or executor; to take any legacy or deed of gift; and to vote at any election for members of parliament; and

(14) To assert falsely that the king labors under the affliction of mental derangement is criminal and an indictable offence. 3 D. & R. 464. 3 B. & C. 257, S. C. In Rex v. Cobbett, E. T. 1805, Holt on Libel, 114, 115, 6 East, 583, where the defendant was convicted of publishing a libel upon the administration of the Irish government and upon the public conduct and character of the lord-lieutenant and lord-chancellor of Ireland, lord Ellenborough, C. J., observed, "It is no new doctrine that if a publication be calculated to alienate the affections of the people, by bringing the government into disesteem, whether the expedient be by ridicule or obloquy, the person so conducting himself is exposed to the inflictions of the law." See also Holt, Rep. 424. 14 How. St. Tr. 1095, S. C.

By the 60 Geo. III. c. 8, the offence of publishing seditious libels is further provided against by empowering the court after verdict to seize upon all copies of the libel, etc.; and, by sect. 4, persons convicted of a second offence may be punished as in cases of high misdemeanor, or by banishment for so long as the court may order. By sect. 5, persons not departing within thirty days after sentence of banishment may be conveyed out of the kingdom; and, by sect. 6, persons banished found at large within the king's dominions may be transported.—CHITTY. See Russell on Crimes, vol. 1, 336, 9 Am. ed. (15) By 56 Geo. III. c. 12, the punishment of the pillory was abolished, excepting in cases of perjury, and fine or imprisonment substituted in its place; and it is now altogether abolished, by 1 Vict. c. 23.—Stewart.

(16) [To be forewarned.]

BOOK IV.-7.

1517

after conviction the offender shall also forfeit 500l. to him or them that will sue for the same. Members, on the foundation of any college in the two universities, who by this statute are bound to take the oaths, must also register a certificate thereof in the college-register within one month after; otherwise, if the electors do not remove him, and elect another within twelve months, or after, the king may nominate a person to succeed him by his great seal or sign-manual. Besides thus taking the oaths for offices, any two justices of the peace may by the same statute summon, and tender the oaths to, any person whom they shall suspect to be disaffected; and every person refusing the same, who is properly called a non-juror, shall be adjudged a popish recusant convict, and subject to the same penalties that were mentioned in a former chapter; (t) which in the end may amount to the alternative of abjuring the realm, or suffering death as a felon. (17)

5. Contempts against the king's palaces or courts of justice have been always looked upon as high misprisions; and by the ancient law, before the conquest, fighting in the king's palace, or before the king's judges, was punished with death. (u)(18) So too, in the old Gothic constitutions, there were many places privileged by law, quibus major reverentia et securitas debetur, ut templa et judicia, quæ sancta habebantur,-arces et aula regis,-denique locus quilibet præsente aut adventante rege.(v)(19) And at pres*125] ent, with us, by the statute *33 Hen. VIII. c. 12, malicious strik

ing in the king's palace, wherein his royal person resides, whereby blood is drawn, is punishable by perpetual imprisonment, and fine at the king's pleasure, and also with loss of the offender's right hand; the solemn execution of which sentence is prescribed in the statute at length. (20)

But striking in the king's superior courts of justice, in Westminster hall, or at the assizes, is made still more penal than even in the king's palace. The reason seems to be that those courts being anciently held in the king's palace, and before the king himself, striking there included the former contempt against the king's palace, and something more, viz., the disturbance of public justice. (21) For this reason, by the ancient common law before

(t) See page 55.

(u) 3 Inst. 140. LL. Alured. cap. 7 and 34.

(v) Stiernhook, de jure Goth. l. 3, c. 3.

(17) By stat. 10 Geo. IV. c. 7, s. 24, any person assuming any ecclesiastical title established in England or Ireland shall forfeit 100l. for each offence; and, by stat. 14 & 15 Vict. c. 60, briefs, rescripts, or letters-apostolical are declared unlawful and void.— STEWART.

(18) Russell on Crimes, vol. I, *1036. See also Bailey on Onus Probandi, 451 (1886). (19) [To which a greater reverence and inviolability is due; as churches and courts of justice, which were held sacred-the king's courts and castles-lastly, the place where the king resides or to which he is approaching.]

(20) Mr. Hargrave has given in the 11th vol. of the State Trials, p. 16, an extract from Stowe's Annals, containing a very curious account of the circumstances of the trial of Sir Edmund Knevet, who was prosecuted upon this statute soon after it was enacted: "for which offence he was not only judged to lose his hand, but also his body to remain in prison, and the lands and goods at the king's pleasure. Then the said Sir Edmund Knevet desired that the king, of his benigne grace, would pardon him of his right hand and take the left; for (quoth he) if my right be spared, I may hereafter doe such good service to his grace as shall please him to appoint. Of this submission and request the justices forthwith informed the king, who of his goodness, considering the gentle heart of the said Edmund, and the good report of lords and ladies, granted him pardon, that he should lose neither hand, land, nor goods, but should go free at liberty." -CHRISTIAN.

So much of the 33 Hen. VIII. c. 12 (part of s. 6 to s. 18) as relates to the punishment of manslaughter and of malicious striking, by reason whereof blood shall be shed, is repealed by 9 Geo. IV. c. 31.-CHITTY.

(21) Russell on Crimes, vol. 1, *1037.

the conquest, (w) striking in the king's court of justice, or drawing a sword therein, was a capital felony; and our modern law retains so much of the ancient severity as only to exchange the loss of life for the loss of the offending limb. Therefore a stroke or blow in such a court of justice, whether blood be drawn or not, or even assaulting a judge sitting in the court by drawing a weapon, without any blow struck, is punishable with the loss of the right hand, imprisonment for life, and forfeiture of goods and chattels, and of the profits of his lands during life.(x)(22) A rescue also of a prisoner from any of the said courts, without striking a blow, is punished with perpetual imprisonment and forfeiture of goods, and of the profits of lands during life,(y) being looked upon as an offence of the same nature with the last; but only, as no blow is actually given, the amputation of the hand is excused.(23) For the like reason, an affray or riot near the said courts, but out of their actual view, is punished only with fine and imprisonment. (z)(24)

*Not only such as are guilty of an actual violence, but of threaten- [*126 ing or reproachful words to any judge sitting in the courts, are guilty of a high misprision, and have been punished with large fines, imprisonment, and corporal punishment. (a) And, even in the inferior courts of the king, an affray or contemptuous behavior is punishable with a fine by the judges there sitting, as by the steward in a court-leet, or the like.(b)(25)

Likewise all such as are guilty of any injurious treatment to those who are immediately under the protection of a court of justice are punishable by fine and imprisonment; as, if a man assaults or threatens his adversary for suing him, a counsel or attorney for being employed against him, a juror for his verdict, or a gaoler or other ministerial officer for keeping him in custody, and properly executing his duty:(c) which offences, when they proceeded further than bare threats, were punished in the Gothic constitutions with exile and forfeiture of goods. (d)

Lastly, to endeavor to dissuade a witness from giving evidence, to disclose

(w) LL. Ina. c. 6. LL. Canut. 66. LL. Alured. c. 7.

(z) Staund. P. C. 38. 3 Inst. 140, 141. (y) 1 Hawk. P. C. 57.

(z) Cro. Car. 373.

(a) Ibid. 503.

(b) 1 Hawk. P. C. 58.

(c) 3 Inst. 141, 142.

(d) Stiernhook, de jure Goth. 1. 3, c. 8.

(22) Russell on Crimes, vol. 1, *1037. "Not only is an assault made in the presence of a court a contempt of it, and as such punishable summarily, but it is likewise indictable as a crime against public justice-hence more aggravated than an ordinary assault. And the aggravation is still greater if the assault is upon the judge himself." Bishop, vol. 2, 50, pp. 29, 30. Ex parte Fernandez, 10 Com. Bench N. S. 3, 53 (1861). (23) Russell on Crimes, vol. 1, *3018.

(24) Lord Thanet and others were prosecuted by an information filed by the attorneygeneral for a riot at the trial of Arthur O'Connor and others for high treason under a special commission at Maidstone. Two of the defendants were found guilty generally. The three first counts charged (inter alia, [Among other things,]) that the defendants did riotously make an assault on one J. R., and did then and there beat, bruise, wound, and ill treat the said J. R. in the presence of the commissioners. When the defendants were brought up for judgment, lord Kenyon expressed doubts whether upon this information the court was not bound to pronounce the judgment of amputation of the right hand, etc., as required in a prosecution expressly for striking in a court of justice. In consequence of these doubts the attorney-general entered a nolle prosequi [To be unwilling to proceed] upon the first three counts, and the court pronounced judgment of fine and imprisonment as for a common riot. 1 East, P. C. 438.-CHRISTIAN.

(25) "Though an assault in any of the king's inferior courts of justice would not subject the offender to lose his hand; yet upon an indictment for such an assault, the circumstances under which it was committed, would, doubtless, be considered as a matter of great aggravation. And any affray or contemptuous behavior in these courts, is punishable with a fine, by the judges there sitting.'

an examination before the privy council, or to advise a prisoner to stand mute, (all of which are impediments of justice,) are high misprisions, and contempts of the king's courts, and punishable by fine and imprisonment. (26) And anciently it was held that if one of the grand jury disclosed to any person indicted the evidence that appeared against him, he was thereby made accessary to the offence, if felony, and in treason a principal.(27) And at this day it is agreed that he is guilty of a high misprision, (e) and liable to be fined and imprisoned. (ƒ)(28)

(e) See Bar. 212. 27 Ass. pl. 44, 24, fol. 138.

(f) 1 Hawk. P. C. 59.

(26) The mere attempt to stifle evidence is also criminal, though the persuasion should not succeed, on the principle, now fully established, that an incitement to commit any crime is itself criminal. 6 East, 464. 2 East, 521, 522. 2 Stra. 904. 2 Leach, 925. As to conspiring to prevent a witness from giving evidence, see 2 East, 362. Knowingly making use of a false affidavit is indictable. 8 East, 364. 2 Stra. 1144.-CHITTY. Bailey on Onus Probandi, 452 (1886). Id. 451. "If one man threaten another, to deter him from doing some lawful act, or to compel him to do some unlawful one, or with intent to extort money from him, or obtain any other benefit (whether real or imaginary) to the person who makes use of the threat; this has been always considered a misdemeanor at common law. Thus, to threaten a plaintiff for suing a defendant, or a counsellor or attorney for being employed against any party in a suit, a juror for his verdict, or a jailor, or other ministerial officer, for keeping a prisoner in custody and properly executing his duty-are offences for which the party may be indicted and punished by fine and imprisonment." Archbold's Crim. Pr. & Pl. 8 ed. vol. 2, p. 1316.

(27) "That the grand jury are under the control and direction of the court is established. . . . It was formerly the custom to fine them for any refusal to comply with the direction of the court; of which Hale says: 'But in my opinion fines set upon grand inquests by justices of the peace, oyer and terminer, or gaol delivery for concealments or non-presentments in any other manner, are not warrantable by law; and though the late practice hath been for such justices to set fines arbitrarily, yea not only upon the petit jury in criminal cases, if they find not according to their directions, it weighs not much with me.'" Proffatt on Jury Trials, 56, p. 88, (1877).

"It was held that the object of this secrecy was only to prevent the testimony produced before them from being counteracted by subornation of perjury on the part of the persons against whom true bills were found. The true reason is stated by Greenleaf on Evidence, where he says ‘One reason may be to prevent the escape of the party should he know that proceedings were in train against him; another may be to secure freedom of deliberation and opinion among the grand jurors, which would be impaired if the part taken by each might be made known to the accused."" Proffatt on Jury Trials, & 49, p. 76 (1877). Formerly, if a grand-juror disclosed to a person accused the evidence before them in his case, he became accessary to the crime if it was felony, and a principal, if it was treason; and now it is a high misdemeanor." State v. Fassett, 16 Conn. 457, 469 (1844). "So if a grand juror disclose to any party indicted, the evidence that appeared against him before the grand jury, he is guilty of an indictable offence. There is one exception to the inviolability of the secrecy of the grand jury room; that is, in case a witness before that body should commit perjury." Bailey on Onus Probandi, 451 and note (1886).

(28) A few years ago, at York, a gentleman of the grand jury heard a witness swear in court, upon the trial of a prisoner, directly contrary to the evidence which he had given before the grand jury. He immediately communicated the circumstance to the judge, who, upon consulting the judge of another court, was of opinion that public justice in this case required that the evidence which the witness had given before the grand jury should be disclosed; and the witness was committed for perjury, to be tried upon the testimony of the gentlemen of the grand jury. It was held that the object of this concealment was only to prevent the testimony produced before them from being contradicted by subornation of perjury on the part of the persons against whom bills were found. This is a privilege which may be waived by the crown. See p. 303, post [after]. -CHRISTIAN. Little's Case, 25 Grattan (Va.) 921, 931 (1874). Also in Wharton's Crim. Evidence, 9 ed. ? 513, p. 450.