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tion 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 foever; being fo 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 fuffer. And no man, knowing him to be guilty, can with safety give him comfort, aid, or relief".
W I Hawk. P. C. 55.
CHAPTER THE NINTH.
OF MISPRISIONS AND CONTEMPTS, AFFECTING
THE KING AND GOVERNMENT.
HE fourth fpecies of offences, more immediately against the king and government, are intitled misprifions and contempts.
MISPRISIONS (a term derived from the old French, mefpris, a neglect or contempt) are, in the acceptation of our law, generally understood to be all fuch high offences as are under the degree of capital, but nearly bordering thereon: and it is faid, that a mifprifion is contained in every treason and felony whatfoever; and that, if the king so please, the offender may proceeded against for the mifprifion only. And upon the fame principle, while the jurifdiction of the star-chamber subsisted, it was held that the king might remit a prosecution for treason, and cause the delinquent to be cenfured in that court, merely for a high misdemefnor: as happened in the cafe of Roger earl of Rutland, in 43 Eliz. who was concerned in the earl of Effex's rebellion". Misprifions are generally divided into two forts; negative, which consist in the concealment of something which ought to be revealed; and positive, which consist in the commiffion of something which ought not to be done.
a Yearb. 2 Ric. III. 10. Staundf. P. C. 37. 1 Hawk. P. C. 55, 56.
b Hudfon of the court of ftar-chamber.. MS. in Muf. Brit.
I. Or the first, or negative kind, is what is called misprifion of treafon; confifting in the bare knowlege and concealment of treason, without any degree of affent thereto : for any affent 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 knowlege 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 fhall be only held a misprifion. This concealment becomes criminal, if the party apprized of the treason does not, as soon as conveniently may be, reveal it to fome judge of affife or justice of the peace. But if there be any probable circumstances of affent, as if one goes to a treasonable meeting, knowing beforehand that a confpiracy is intended against the king; or, being in fuch company once by accident, and having heard fuch treasonable conspiracy, meets the fame company again, and hears more of it, but conceals it; this is an implied affent in law, and makes the concealer guilty of principal high treason .
THERE is also one pofitive mifprifion of treason, created so by act of parliament. The ftatute 13 Eliz. c. 2. enacts, that those who forge foreign coin, not current in this kingdom, their aiders, abettors, and procurers, fhall all be guilty of misprifion of treason. For, though the law would not put foreign coin upon quite the fame footing as our own; yet, if the circumstances of trade concur, the falfifying it may be attended with confequences almoft 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 misprifion of treason is lofs of the profits of lands during life, forfeiture of goods, and imprisonment during life. Which total forfeiture of the goods
• Guicciard. Hift. b. 3 & 13.
1 Hal. P. C. 372.
I Hawk. P. C. 56.
f 1 Hal. P. C. 374.
was originally inflicted while the offence amounted to principal treason, and of courfe 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 fuch total forfeiture it is felony at the common law.
MISPRISION of felony is alfo the concealment of a felony which a man knows, but never affented to; for, if he affented, this makes him either principal, or acceffory. 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 perfon, imprisonment for a lefs difcretionary time; and, in both, fine and ransom at the king's pleasure: which pleasure of the king must be obferved, once for all, not to fignify any extrajudicial will of the fovereign, but fuch as is declared by his representatives, the judges in his courts of justice; "volun"tas regis in curia, non in camera"."
THERE is also another fpecies of negative mifprifions; 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; but now only by fine and imprisonment.
II. MISPRISIONS, which are merely pofitive, are generally denominated contempts or high misdemefnors; of which
1. THE first and principal is the mal-administration of such high officers, as are in public truft and employment. This is ufually punished by the method of parliamentary impeachment : wherein such penalties, fhort of death, are inflicted, as to the wisdom of the house of peers fhall feem proper; confifting ufually of banishment, imprisonment, fines, or perpetual disability. Hitherto alfo 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 perfon*. With us it is not a capital crime, but fubjects the committer of it to a difcretionary fine and imprisonment. Other mifprifions are, in general, fuch contempts of the executive magiftrate, as demonftrate themselves by fome arrogant and undutiful behaviour towards the king and government. These are
2. CONTEMPTS against the king's prerogative. As, by refufing to affift him for the good of the public; either in his councils, by advice, if called upon; or in his wars, by perfonal service for defence of the realm, against a rebellion or invafion'. Under which clafs may be ranked the neglecting to join the poffe comitatus, or power of the county, being thereunto required by the sheriff or juftices, 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 thofe of our own, or doing or receiving any thing that may create an undue influence in favour of fuch extrinfic power; as, by taking a penfion from any foreign prince without the consent of the king". Or, by difobeying the king's lawful commands; whether by writs iffuing out of his courts of justice, or by a fummons to attend his privy council, or by letters from the king to a subject commanding him to return from beyond the feas, (for disobedience to which his lands fhall be seised 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. Difobedience to any of these commands is a high mifprifion and contempt: and fo, laftly, is difobedience to any act of parliament, where no particular penalty is affigned; for then it is punishable, like the rest of
* Inft. 4. 18. 9.
1 1 Hawk. P. C. 59.
Lamb. Eir. 315.
3 Inft. 144.