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treason by sta

This concealment becomes criminal, if the party apprized of the treason does not, as soon as conveniently may be, reveal it to some judge of assize or justice of the peace (d). 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 it, but conceals it; this is an implied assent in law, and makes the concealer guilty of actual high treason (e).

There is also one positive misprision of treason, created so 2. Forging foby act of parliament. The statute 13 Eliz. c. 2, enacts, that misprison of those who forge foreign coin, not current in this kingdom, tute their aiders, abettors, and procurers, shall all be guilty of misprision of treason (1). For, though the law would not put foreign coin upon quite the same footing as our own; yet, if the circumstances of trade concur, the falsifying it may be attended with consequences almost equally pernicious to the public: as the counterfeiting of Portugal money would be at present: and therefore the law has made it an offence just below capital, and that is all. For the punishment of misprision of treason is loss of the profits of lands during life, forfeiture of goods, and imprisonment during life () (2). Which total forfeiture of the goods was originally inflicted while *the offence amounted to principal treason, and of [*121] course included in it a felony, by the common law; and therefore is no exception to the general rule laid down in a former chapter (g), that wherever an offence is punished by such total forfeiture it is felony at the common law.

Misprision of felony is also the concealment of a felony 3. Misprision of which a man knows, but never assented to; for if he assented,

felony. this makes him either principal or accessary. And the punishment of this, in a public officer, by the statute Westm. 1, 3 Edw. I. c. 9, is imprisonment for a year and a day; in a common person, imprisonment for a less discretionary time; and, in both, fine and ransom at the king's pleasure: which

(d) 1 Hal. P. C. 372. (e) 1 Hawk. P. C. 56.

(J) I Hal. P. C. 374.
(8) See p. 94.

(1) Vide ante 89, in notis, where the (2) This applies only to misprision existing law upon this subject is fully of high treason ; 1 Hale, 375. stated.

4. Concealing treasure trove.

II. Positive mis.
prisions or con-
1. Mal-adminis.
tration of public

pleasure of the king must be observed, once for all, not to
signify any extrajudicial will of the sovereign, but such as is
declared by his representatives, the judges in his courts of
justice; voluntas regis in curia, non in camera (h).

There is also another species of negative misprisions :
namely, the concealing of treasure-trove, which belongs to
the king or his grantees by prerogative royal; the conceal-
ment of which was formerly punishable by death (i); but now
only by fine and imprisonment (j).

II. Misprisions, which are merely positive, are generally denominated contempts or high misdemesnors : of which

1. The first and principal is the mal-administration of trusts, including such high officers, as are in public trust and employment.

This is usually punished by the method of parliamentary im-
peachment: wherein such penalties, short of death, are in-
flicted, as to the wisdom of the house of peers shall seem
proper; consisting usually of banishment, imprisonment,

fines, or perpetual disability. Hitherto also may be referred [*122] 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 (3). Other misprisions are, in general, such
(h) 1 Hal. P. C. 375.

(j) 3 Inst. 133.
(i) Glanv. 1. 1, c. 2.

(k) Inst. 4, 18, 9.

(3) But now, by 2 W. IV. c. 4, security" shall be deemed to include
§ 1, repealing 50 Geo. III. c. 59, upon “every tally, order, or other security
the same subject, “ if any person em- whatsoever, entitling or evidencing the
ployed in the public service of his Ma- title of any person or body corporate to
jesty, and entrusted by virtue of such any share or interest in any public
employment with the receipt, custody, stock or fund, whether of the united
management, or control of any chattel, kingdom or of Great Britain, or of
money, or valuable security, shall em- Ireland, or of any foreign state, or to
bezzle the same, or any part thereof, any share or interest in any fund of any
or in any manner fraudulently apply or body corporate, company, or society,
dispose of the same, or any part there- or to any deposit in any saving's bank,
of, to his own use or benefit, or for any and every debenture, deed, bond, bill,
purpose whatsoever, except for the note, warrant, order, or other security
public service,” he shall be guilty of whatsoever for money or for payment
felony, and liable to transportation for of money, whether of this kingdom or
seven or fourteen years, or to impri- of any foreign state, and every warrant
sonment, with or without hard labour, or order for the delivery or transfer of
not exceeding three years.

any goods or valuable thing."
By sect. 2, the words “ valuable By sect. 3, three distinct acts of em.

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contempts of the executive magistrate, as demonstrate themselves by some arrogant and undutiful behaviour towards the king and government. These are

2. Contempts against the king's prerogatire. As, by re- 2. Contempts fusing to assist him for the good of the public; either in his king's prerogacouncils, by advice, if called upon; or in his wars, by personal service for defence of the realm, against a rebellion or invasion (). 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). Contempts against the prerogative may also be, by preferring the interests of a foreign potentate to those of our own, or doing or receiving any thing that may create an undue influence in favour of such intrinsic power; as, by taking a pension from any foreign prince without the consent of the king (n). Or, by disobeying the king's lawful commands ; whether by writs issuing out of his courts of justice, or by a summons to attend his privy council, or by letters from the king to a subject commanding him to return from beyond the 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, like the rest of *these contempts, by [*123] fine and imprisonment, at the discretion of the king's courts of justice (p).

3. Contempts and misprisions against the king's person 3. Contempts and government, may be by speaking or writing against king's person.

(1) I Hawk. P. C. 59.
(m) Lamb. Eir. 315.
(n) 3 Inst. 144.

(0) See vol. I. p. 266.
(p) 1 Hawk. P. C. 60.

bezzlement, if committed within six has been committed.
months, may be included in one in- By stat. 7 & 8 Geo. IV. c. 29, § 5,
dictment; and by $ 5, offenders may provision is made in the case of steal-
be tried either in the county where ap- ing valuable securities by private indi-
prehended, or in that where the offence viduals.

them, cursing or wishing him ill, giving out scandalous stories concerning him (4), 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 the pillory (5) or other infamous corporal punishment (9): in like manner as, in the ancient German empire, such persons as endeavoured 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 Frederic Barbarossa inflicted this punishment on noblemen of the highest rank (r).

4. Contempts against the king'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 (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 anywise hold, affirm, or maintain, that the common laws of this realm, not altered by parliament, ought not to direct the right of the crown of England; this is a misdemesnor, 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 other capacity, [*124] for which the said oaths are required to be taken ; viz. those

of allegiance, supremacy, and abjuration; which must be

4. Contempts against the king's title.

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(4) As, asserting falsely of the king 464; 2 B. & C. 257; see post, 150. that he labours under the affliction of (5) Abolished by 56 Geo. III. c. mental derangement, which is a cri- 138, as to all offences except perjury minal act, and indictable as a misde- and subornation of perjury. meanor ; Rer v. Harrey, 3 D. & R.

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 anything, short of those of a premunire ; 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 after conviction the offender shall also forfeit 5001. to him or them that will sue for the same (6). 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 nonjuror, 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 (7).

5. Contempts against the king's palaces or courts of jus- 5. Contempts tice have been always looked upon as high misprisions: and king's palaces. by the ancient law, before the conquest, fighting in the king's palace, or before the king's judges, was punished with death (v). So too, in the old Gothic constitution, 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 (u) (8). And at present, with us, by the

(t) See p. 55.
(v) 3 Inst. 140; LL. Alured. cap.

7 & 34.

(u) Stiernh. de jure Goth. 1. 3, c. 3.

(6) Vide ante, 59, (12) and follow- ples and courts of justice, the courts ing notes.

and palaces of the king, and every (7) Vide ante, 116.

place in which the king is actually (8) To which particular reverence present, or to which he was approach. and security were attached, as the tem- ing.

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