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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 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 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 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 misdemeanors; 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 (4): 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 embez- [*122] zling 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 (5). 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 (6); 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) (7). Contempts
(h) 2 Hal. P. C. 375.
(i) Glan. 1. 1, c. 2.
(j) 3 Inst. 133.
(4) In New-York, the senate is the court for the trial of impeachments, and can only remove from office and disqualify the guilty person from office in future. The impeachment does not prevent an indictment, but it causes a suspension from office till acquittal. (2 R. S. 165, 166.) Every wilful neglect by a public officer of a duty enjoined by law, is a misdemeanor, when no special punishment is provided for the offence. Id. 696.
(5) But now by 50 Geo. III. c. 59, § 1, it is enacted, that if any person shall embezzle or fraudulently apply monies issued to him for the public services, he shall be adjudged guilty of a misdemeanor, and shall be subject to transportation, or receive such punishment as the court in which he is convicted, may in its
(k) Inst. 4. 18. 9.
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 monies collected by him, or of the balances left in his hands, he shall be guilty of a misdemeanor, 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.
(6) In the U. S. there has been no need of making this an offence.
(7) In New-York it is a duty incumbent on every male inhabitant of the county. 2 R. S. 441.
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) (8). 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 (o). 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 (9): for then it is punishable, like the rest of [*123] *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 to lessen him in the esteem of his subjects, may weaken his government, or, may raise jealousies between him and his people (10). 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 (11) or other infamous corporal punishment (q): 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 praemunire, 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 praemunire. This heedless species of contempt is however
(n) 3 Inst. 144.
(0) See book I. page 266. (p) 1 Hawk. P. C. 60.
(8) This is unlawful in any officer under the U. S., but not in citizens generally. See Const. Art. 1. sect. 9, § 7.
(9) See 2 R. S. 696, 39. The doing an act prohibited by statute, is a misdemeanor if no specific penalty be imposed.
(10) 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 v. Cobbett, E. T. 1805. Holt on Libel, 114, 5. 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 the 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
(7) Mod. Un. Hist. xxix. 28. 119.
the expedient be by ridicule or obloquy, the
By the 60 Geo. III. c. 8. the offence of pub lishing 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 misdemeanors, 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.
(11) This provision is now abolished by the 56 Geo. III. c. 138.
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 [*124] office, place of trust, or other capacity, for which the said oaths are required to be taken; viz. those of allegiancé, 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 praemunire: 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 500l. to him or them that will sue for the same (12). 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 (13).
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). So too, in the old Gothic constitutions, there were many places privileged by law, quibus major reverentia et securitas debetur, ut templa et judicia, quae sancta habebantur,-arces et aula regis,-denique locus quilibet praesente aut adventante rege (v). And at present, with us, by the statute *33 Hen. VIII. c. 12. malicious striking in [*125] 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 (14), (15).
(13) See page 116. note (14) Mr. Hargrave has given in the 11th vol. of the State Trials, p. 16. af extract from Stowe's Annals, containing a very curious ac count 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 pleastire. Then the said sir Edmund Knevet desired that the king, of his benigne grace, would
(v) Stiernh. de jure Goth. 1. 3, c. 3.
pardon him of his right hand, and take the left for (quoth he) if my right be spared, 1 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."
(15) So much of the 33 H. VIII. c. 12, (part of 9 6 to 18,) as relates to the punish
But striking in the king's superior courts of justice, in Westminster-hall, or at the assises, 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. For this reason, by the ancient common law before 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). 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 (z) (16).
[*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 courtleet, or the like (b).
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 counsellor 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 farther 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
(w) LL. Inae. c. 6. LL. Canut. 56. LL. Alured.
(z) Staund. P. C. 38. 3 Inst. 140, 141.
ment of manslaughter, and of malicious striking, by reason whereof blood shall be shed, is repealed by 9 Geo. IV. c. 31. As to manslaughter, generally, vide post 191.
(16) 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) that the defendants did riotously make an assault on one J. R., and did then and there beat, bruise,
(a) Ibid. 503.
(b) 1 Hawk. P. C. 58.
(c) 3 Inst. 141, 142.
(d) Stiernh. de jure Goth. 1. 3, c. 3.
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 noli prosequi upon the first three counts, and the court pronounced judg ment of fine and imprisonment as for a com mon riot. 1 East, P. C. 438.
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 (17). 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. And at this day it is agreed, that he is guilty of a high misprision (e), and liable to be fined and imprisoned (f) (18), (19).
OF OFFENCES AGAINST PUBLIC JUSTICE.
THE order of our distribution will next fead us to take into consideration such crimes and misdemeanors as more especially affect the commonwealth, or public polity of the kingdom: which however, as well as those which are peculiarly pointed against the lives and security of private subjects, are also offences against the king, as the pater-familias of the nation: to whom it appertains by his regal office to protect the community, and each individual therein, from every degree of injurious violence, by executing those laws, which the people themselves in conjunction with him have enacted; or at least have consented to, by an agreement either expressly made in the persons of their representatives, or by a tacit and implied consent presumed and proved by immemorial usage.
The species of crimes which we have now before us, is subdivided into
(e) See Bar. 212. 27 Ass. pl. 44, 4, fol. 138.
(17) 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. East, 5. 21, 22. 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.
(18) 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 com municated the circumstance to the judge, who upon consulting the judge in the other 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. may be waived by the crown. This is a privilege which See p. 303. post. (19) In New-York every court of record
(f) 1 Hawk. P. C. 59.
(including the court of chancery, 2 R. S. 276. 1,) may punish as a criminal contempt, 1. any disorderly, contemptuous, or insolent behaviour committed during its sitting in immediate view and presence, and directly tending to interrupt its proceedings or impair the respect due to its authority: 2. any disturbance whatever directly tending to interrupt its proceedings: 3, 4. wilful disobedience or resistance of any process or order: 5. contumaciously refusing to be sworn as a witness, or to testify: 6. the publication of a false or grossly inaccurate report of the proceedings of the court. The punishment may be by fine not exceeding 250 dollars, and by imprisonment not exceeding 30 days. (2 R. S. 278.) A justice of the peace may also punish the first and second classes of contempt, and the third also, if it be committed in his presence, by fine not exceeding 25 dollars, and by imprisonment not exceeding 5 days: the imprisonment for non-payment of the fine not to exceed 10 days: so too, if a witness refuses to be sworn or to testify, and the party calling him swears that he is a material witness, the justice may imprison him till he answer, (id. 273, 274.) a period less definite than that fixed in other courts. These punishments do not prevent an indictment, but mitigate the sentence thereon. (Id. 278.) These acts seem to be intended to define all contempts of court.