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IV. Mis

prisions and

against king and govern. ment.

THE fourth species of offenses more immediately against the contempts 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, generMisprisions, ally understood to be all such high offenses as are under the definition of 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 Rutland, in 43 Eliz., who was concerned in the Earl Misprisions of Essex's rebellion. Misprisions are generally divided into two sorts: negative, which consist in the concealment of or positive. something which ought to be revealed; and positive, which consist in the commission of something which ought not to be done.

are nega tive;

I. Mispris-
ion of trea-


[120] I. Of the first, or negative kind, is what is called misprision Misprisions 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 stat ute 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 apprised of the treason does not, as soon as conveniently may be, reveal it to some judge of assize or justice of the peace. 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

a Year-b., 2 Rich. III., 10; Staundf., P. C., 37; Kel., 71; 1 Hal., P. C., 37; 1 Hawk., P. C., 55, 56.

b Hudson, of the Court of Star Chamber; MS. in Mus. Brit.

c Guicciard., Hist.. b. 3 & 13.

d 1 Hal., P. C., 372.

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 offense 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. Which total forfeiture of the goods was originally inflicted while the offense amounted to principal [121] 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,s that wherever an offense is punished by such total forfeiture, it is felony at the common law. Misprision of felony is also the concealment of a felony which Misprision 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."h

of felony.


There is also another species of negative misprisions: name- Concealing ly, the concealing of treasure-trove, which belongs to the king trove. or his grantees by prerogative royal; the concealment of which was formerly punishable by death, but now only by fine and imprisonment.j

ions posi

II. Misprisions which are merely positive are generally de- II. Misprisnominated contempts or high misdemeanors: of which



1. The first and principal is the maladministration of such 1. Maladhigh officers as are in public trust and employment. This is of public offusually punished by the method of parliamentary impeachment; cers. wherein such penalties, short of death, are inflicted as to the wisdom of the House of Peers shall seem proper; consisting [122]

e 1 Hawk., P. C., 56.

f 1 Hal., P. C., 374.

See page 94.

h 1 Hal., P. C., 375.
iGlan., 1. 1, c. 2.
j3 Inst., 133.

(1) But see the 37 Geo. III., c. 126; ante, p. 90, n. (4).

public mon. ey.

Embezzling usually of banishment, imprisonment, fines, or perpetual disability. Hitherto, also, may be referred the offense 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. 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 behavior toward the king and government. These are,

2. Con

tempts against

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 defense 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 favor 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 seas (for disobedience to which his lands shall be seized till he does return, and himself afterward punished), or by his writ of ne exeat regnum, or proclamation, commanding the subject to stay at home." obedience to any of these commands is a high misprision and contempt; and so, lastly, is disobedience to any act of Parlia ment, where no particular penalty is assigned; for then it is [123] punishable, like the rest of these contempts, by fine and imprisonment, at the discretion of the king's courts of justice.P

king's prerogative.

3. Contempts and

3. Contempts and misprisions against the king's person and mis prisions government may be by speaking or writing against them, cursagainst king's pering or wishing him ill, giving out scandalous stories concernson and gov. ing 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

* Inst. 4, 18, 9.

1 1 Hawk., P. C., 59.
m Lamb., Eir., 315.

(2) But now, by the stat. 2 Will. IV., c. 4, any person employed in the public service who shall embezzle money or any valuable security shall be deeined guilty of felony, and be liable to trans

3 Inst., 144.

• See vol. i.. page 266.
P 1 Hawk., P. C., 60.

portation for any term not exceeding 14 years, or imprisonment for any term not exceeding three years.

(3) To assert falsely that the king la

held an offense 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 corporeal punishment: 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 Frederic Barbarossa inflicted this punishment on noblemen of the highest rank."

not amount.

4. Contempts against the king's title, not amounting to trea- 4. Conson or præmunire, are the denial of his right to the crown in against common and unadvised discourse; for, if it be by advisedly king's title, speaking, we have seens that it amounts to a præmunire. This ing to trea heedless species of contempt is, however, punished by our law son. 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 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 [124] 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 4 1 Hawk., P. C., 60. Mod. Un. Hist., xxix., 28, 119. • See page 91

bors under the affliction of mental derangement is criminal, and an indictable offense. 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 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; 4 B. & Ald., 95.[CHITTY.]

The 60 Geo. III., c. 8, whereby the offense of publishing seditious libels was VOL. I


further provided against, by empower-
ing the court, after verdict, to seize upon
all copies of the libel, &c., and by which
persons convicted of a second offense
might be punished, as in cases of high
misdemeanors, or by banishment for so
long as the court should order, and
which enacted, also, that persons not de-
parting within thirty days after sentence
of banishment might be conveyed out
of the kingdom, and persons banished,
found at large within the king's domin-
ions, might be transported; is now re-
pealed by the 11 Geo. IV. & 1 Will. IV.,
c. 73, s. 1. See the stat. 38 Geo. III.,
c. 78, s. 9-17, as to the proof of libels
published in newspapers.

(4) This punishment is now abolished by the 56 Geo. III., c. 138, and 1 Vict., c. 23. See ante, p. 29, n. (9); post, p. 138, n.


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 £500 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 subjected 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

king's pal courts of jus.

aces or



5. Contempts against the king's palaces or courts of justice have always been 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. So, too, in the old Gothic constitution, there were many places privileg ed by law, quibus major reverentia et securitas debetur, ut templa et judicia, quæ sancta habebantur-arces et aula regis-denique [125] locus quilibet præsente aut adventante rege. And at present, with us, by the statute 33 Hen. VIII., c. 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."

↑ See page 55.

3 Inst., 140; LL. Alured., c. 7 & 34. (5) See ante, p. 58, n. (8); p. 59, n. (11).

(6) 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 offense he was not only 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 Edmud Knevet desired that the king, of his

" Stiernhook, De Jure Goth., 1. 3, c.


benign grace, would pardon him of his right hand, and take the left; for (quoth he) if my right be spared, I may hereafter do 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.]

The 33 Hen. VIII., c. 12, is now repealed by the 9 Geo. IV., c. 31.

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