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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, the statute 5 Eliz. c. 1. provides, that it shall 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 with safety give him comfort, aid, or relief.y John Wilders No. 22.
OF MISPRISIONS AND CONTEMPTS, AFFECTING THE KING AND GOVERNMENT.
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. And upon the same principle, while the jurisdiction of the star-chamber 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 misdemeanor: as happened in the case of Roger earl of
x Bro. Abr. t. corone. 196.
y I Hawk. P. C. 55.
Staundf. P. C. 37. Kel. 71. 1 Hal. P. C. 374. 1 Hawk.
a Yearb. 2 Ric. III. 10. P. C. 55, 56.
Rutland, in 43 Eliz. who was concerned in the earl of Essex's rebellion. 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.
I. Of the first, or negative kind, is what is called misprision of treason; consisting in the bare knowledge and concealment of treason, without any degree of assent thereto for any assent makes the party a principal traitor; as indeed the concealment, which was construed aiding and abetting, 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. But it is now enacted by the statute 1 & 2 Ph. & Mar. c. 10. that a bare concealment of treason shall be only 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 assise or justice of the peace. But if there be any probable circumstances of assent, as if one goes to a treasonable meeting, knowing before-hand that a conspiracy is intended against the king; or, being in such ompany 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.
There is also one positive misprision of treason, created so by act of parliament. The statute 13 Eliz. c. 2. enacts, that those who forge foreign coin, not current in this kingdom, their aiders, abettors, and procurers, shall all be 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 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
b Hudson of the court of starchamber. MS. in Mus. Brit.
c Guicciard. Hist. b. 3 & 13.
1 Hal. P. C. 372.
1 Hawk, P. C. 56.
all. For the punishment of misprision of treason is loss of the profits of lands during life, forfeiture of goods, and imprisonment during life. 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 general rule laid down in a former chapter," 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 regis in curia, non in camera."
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 misdemesnors; 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 house of peers shall seem proper: consisting usually of banishment, imprisonment, fines, or perpetual disability. Hitherto also may be referred the offence of imbezzling 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. 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 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. 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 extrinsic power; as, by taking a pension from any foreign prince without the consent of the king." 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." 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 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 scandalous stories concerning him, or doing any thing that may tend
1 1 Hawk. P. C. 59.
Lamb. Fir. 315.
n 3 lust. 144.
• See Vol. 1. pag. 274.
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 or other infamous corporal punishment: 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."
4. Contempts against the king's title, not amounting to treason or pramunire, are the denial of his right to the crown in common and unadvised discourse; for, if it be by advisedly speaking, we have seen 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, 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 18 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 mouths 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
91 Hawk. P. C. 60.
r Mod. Un. Hist. xxix. 28. See pag. 82.