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grievnnce which he as an individual may suffer. And no man, knowing him to be guilty, can with safety give him comfort, aid, or relief.(y)
OF MISPRISIONS AND CONTEMPTS AFFECTING THE KING AND
*The fourth species of offences more immediately against the king and
government are entitled misprisions and contempts. Misprisions (a term derived from the old French mespris, a neglect or contempt) are, in the acceptation of our law, generally understood to be all such high offences as are under the degree of capital, but nearly bordering thereon: and it is said that a misprision is contained in every treason and felony whatsoever, and that, if the king so please, the offender may be proceeded against. for the misprision only:(a) And upon the same principle, while the jurisdiction of the starchamber subsisted, it was held that the king might remit a prosecution for treason, and cause the delinquent to be censured in that court, merely for a high misdemeanour; as happened in the case of Roger, earl of Rutland, in 43 Eliz., who was concerned in the earl of Essex's rebellion.(6) Misprisions are generally divided into two sorts : negative, which consist in the concealment of something which ought to be revealed; and positive, which consist in the commission of something which ought not to be done. *120]
*I. Of the first, or negative kind, is what is called misprision of trea
son ; consisting in the bare knowledge and concealment of treason, without any degree of assent thereto: for any assent makes the party a prin. cipal traitor; as indeed the concealment, which was construed aiding and a betting, did at the common law : in like manner as the knowledge of a plot against the state, and not revealing it, was a capital crime at Florence and other states of Italy.(c) But it is now enacted, by the statute 1 & 2 Ph. and M. c. 10, that a bare concealment of treason shall only be held a misprision. 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 by act of parlia
() 1 Hawk. P. C. 55.
(a) Year-Book, 2 Ric. III. 10. Staundf. P. C. 37. Kelw.71. 1 lal. P. C. 37. 1 Hawk. P. C. 55, 56.
(6) Hudson of the Court of Star-chamber. MS. in Mus. Brit.
(6) Guicciard. Hist. b. 3 and 13.
8 The terrible penalties of a præmunire are denounced by a great variety of statutes; yet prosecutions upon a præmunire 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. 463.-Christian.
? If any person or persons having knowledge of the commission of any treason shall conceal, and not, as soon as may be, disclose and make known the same to the President of the United States, or some one of the judges thereof, or to the president or governor of a particular State, or some one of the judges or justices thereof, such person or persons on conviction, shall be adjudged guilty of misprision of treason, and shall be imprisoned oot exceeding seven years, and fined not exceeding one thousand dollars. Act of Congress, April 20, 1790, s. 2, 1 Story's Laws, 83.-SHARSWOOD.
ment. The statute 13 Eliz. c. 22 enacts that those who forge foreign coin, nou current in this kingdom, their aiders, abettors, and procurers, shall all bo guilty of misprision of treason. 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 of 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 land during life, forfeiture of goods, and imprisonment during life. (f) 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; and therefore is no exception to the
[*121 general rule. laid down in a former chapter,(9) 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 which a man knows but never assented to; for, if he assented, this makes him either principal or accessory. 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 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 regie 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 concealment of which was formerly punishable by death ;(i) but now only by fine and imprisonment.())
II. Misprisions which are merely positive are generally denominated contempts or high misdemeanours; of which
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; 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. Hitherto also may be referred the *offence of embezzling the public money, called among the
[*122 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. Other misprisions are, in general, such 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 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 in1 Hal. P. C. 374.
(9) Glanv. l. 1, c. 2.
( 3 Inst. 133.
* This ought to be 14 Eliz. c. 3; and the author has been led into the mistake by implicitly copying Hawkins.-COLERIDGE.
But this is only in case of high treason. Misprision of a lower degree is punishable only by fine and imprisonment. 1 Hale, 375.-Chitty.
* But now, by 50 Geo. III. c. 59, s. 1, it is enacted that if any person shall embezzle or fraudulently apply moneys issued to him for the public services, he shall be adjudged guilty of a misdemeanour, and shall be subject to transportation, or receive such punishment as the court in which he is convicted may in its discretion think proper.
Section 2 enacts that if any officer, collector, or receiver intrusted with the receipt or management of the public revenues shall furnish false statements or returns of the moneys collected by him, or of the balances left in his hands, he shall be guilty of a misdemeanour, and be fined and imprisoned at the discretion of the court, and be for ever rendered incapable of holding or enjoying any office under the crown.-Cutty.
vasion.(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 pon 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 their own, or doing or receiving any thing that may create an undue influence in favour of such extrinsic 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 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 punish. *123]
able, like the rest of *these contempts, by fine and imprisonment, at the
discretion of the king's courts of justice.(P) 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 fcandalous 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. It has been also held an offencu 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, or other infamous corporal punishment;(9) in like manner as in the antient 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 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, are the denial of his right to the crown in common and unadvised discourse; for, if it be by advisedly speaking, we have seen(8) that it amounts to a pramunire. This heedless species of contempt is, however, punished by our law with fine and imprisonment. Likewise, if any person shall in any wise hold, affirin, or maintain that the common law of this realm, not altered by parliament, (°) 1 Hawk. P. C. 59.
(P)1 Hawk. P. C. 60.
("Mod. Un. Hist. xxix. 28, 119
(©) See page 91. 6 To assert falsely that the king labours under the affliction of mental derangement is criminal, and an indictable offence. 3 D. & R. 464. 3 B. & C. 257, S. C. In Rex vs. 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, &c.; and, by sect. 4, persons convicted of a second offence may be punished as in cases of high misdemeanour, 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 kingilom; and, by sect. 6, persons banished found at large within the king's dominions may be transported.-Cutty.
6 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 Vint. c. 23.-STEWART.
ought not to direct the right of the crown of England; this is a misdemeanour, 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, 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 after conviction the offender shall also forfeit 5001. 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.”
5. Contempts against the king's palaces or courts of justice have been always looked upon as high misprisions; and by the antient law, before the conquest, fighting in the king's palace, or before the king's judges, was punished with death.(u). So too, in the old Gothic constitutions, there were many places privileged by law, quibus major reverentia et securitas debetur, ut templa et judicia, quce sancta habebantur,-arces et aula regis,—denique locus quilibet præsente aut adventante rege.(v) And at present, with us, by the statute *33 Hen. VIII. c.
[*125 12, malicious striking 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.8
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 antiently 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. For this reason, by the antient common law before the conquest,(W) striking in the
(*) Stiernhook, de jure Goth. I. 3, c. 3. (5) 3 Inst. 140. LL. Alured. cap. 7 and 34.
(1) See page 55.
(W) LL. Inæ. c. 6. LL. Canut. 56. LL. Alured. c. 7.
? By stat. 10 Geo. IV. c. 7, s. 24, any person assuming any ecclesiastical title established in England or Ireland shall forfeit 1007. for each offence; and, by stat. 14 & 15 Vict. c. 60, briefs, rescripts, or letters-apostolical are declared unlawful and void.—STEWART.
8 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 onely judged to lose his hand, but also his body to remain in prison, and his 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
I service to his grace as shall please him to appoint. Of this submission and request the justices forth with 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.-Cutty.
king's court of justice, or drawing a sword therein, was a capital felony; and our modern. law retains so much of the antient 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) 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. 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.(2) *126]
*Not only such as are guilty of an actual violence, but of threatening
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 behaviour is punishable with a fine by the judges there sitting, as by the steward in a court-leet, or the like.(6)
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 sueing 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:(0) which offences, when they proceeded further than bare threats,
were punished in the Gothic constitutions with exile and forfeiture of goods.(d)
Lastly, to endeavour to dissuade a witness from giving evidence, to disclose 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.10 And antiently 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 accessory to the offence, if felony, and in treason a principal. And at this day it is agreed that he is guilty of a high misprision,(e) and liable to be fined and imprisoned. (f )" Staund. P. C. 38. 3 Inst. 140, 141.
() 3 Inst. 141, 142.
(d) Stiernhook, de jure Goth. 1. 3. c. 3. (*) Cro. Car. 373.
See Bar. 212. 27 Ass. pl. 44, 84, fol. 138.
(T) 1 Hawk. P. C. 59. (0) 1 Hawk. P. C. 58. 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 & special commission at Maidstone. Two of the defendants were found guilty generally. The three first counts charged (inter alia) 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, &c., 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 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.
10 The mere attempt to stifle evidence is also criminal, though the persuasion should pot 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.
1. 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 in the other court, was of opinion that publie 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
(*) 1 Hawk. P. C. 57.
(@) Ibid. 503.