CHAPTER THE NINTH.

OF MISPRISIONS AND CONTEMPTS, AFFECTING
THE KING AND GOVERNMENT.

THE fourth fpecies of offences, more immediately againft the king and government, are intitled mifprifions and contempts.

MISPRISIONS (a term derived from the old French, mefpris, a neglect or contempt) are, in the acceptation of our law, generally underftood 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 treafon and felony whatfoever; and that, if the king fo pleafe, the offender may be proceeded againft for the mifprifion only ^a. And upon the fame principle, while the jurifdiction of the ftar-chamber fubfifted, it was held that the king might remit a profecution for treafon, and caufe the delinquent to be cenfured in that court, merely for a high mifdemefnor: as happened in the cafe of Roger earl of Rutland, in 43 Eliz. who was concerned in the earl of Effex's rebellion ^b. Mifprifions are generally divided into two forts; negative, which confift in the concealment of fomething which ought to be revealed; and pofitive, which confift in the commiffion of fomething which ought to be done.

.{FS}
^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.
.{FE}
I. OF
.P 120
PUBLIC WRONGS.
Book IV.
Ch. 9
I. OF the firft, or negative kind, is what is called mifprifion of treafon; confifting in the bare knowlege and concealment of treafon, without any degree of affent thereto: for any affent makes the party a principal traitor; as indeed the concealment, which was conftrued aiding and abetting, did at the common law: in like manner as the knowlege of a plot againft the ftate, and not revealing it, was a capital crime at Florence, and other ftates of Italy ^c. But it is now enacted by the ftatute 1 & 2 Ph. & Mar. c. 10. that a bare concealment of treafon fhall be only held a mifprifion. This concealment becomes criminal, if the party apprized of the treafon does not, as foon as conveniently may be, reveal it to fome judge of affife or juftice of the peace ^d. But if there be any probable circumftances of affent, as if one goes to a treafonable meeting, knowing beforehand that a confpiracy is intended againft the king; or, being in fuch company once by accident, and having heard fuch treafonable confpiracy, 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 treafon ^e.

THERE is alfo one pofitive mifprifion of treafon, created fo by act of parliament. The ftatute 13 Eliz. c. 2. enacts, that thofe who forge foreign coin, not current in this kingdom, their aiders, abettors, and procurers, fhall all be guilty of mifprifion of treafon. For, though the law would not put foreign coin upon quite the fame footing as our own; yet, if the circumftances of trade concur, the falfifying it may be attended with confequence almoft equally pernicious to the public; as the counterfeiting of Portugal money would be at prefent: and therefore the law has made it an offence juft below capital, and that is all. For the punifhment of mifprifion of treafon is lofs of the profits of lands during life, forfeiture of goods, and imprifonment during life ^f. Which total forfeiture of the goods

.{FS}
^c Guicciard. Hift. b. 3. & 13.
^d 1 Hal. P. C. 372.
^e 1 Hawk. P. C. 56.
^f 1 Hal. P. C. 374.
.{FE}
was
.P 121
PUBLIC WRONGS.
Book IV.
Ch. 9
was originally inflicted while the offence amounted to principal treafon, 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 ^g, that wherever an offence is punifhed 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 punifhment of this, in a public officer, by the ftatute Weftm. 1. 3. Edw. I. c. 9. is imprifonment for a lefs difcretionary time; and, in both, fine and ranfom at the king's pleafure: which pleafure of the king muft be obferved, once for all, not to fignify any extrajudicial will of the fovereign, but fuch as is declared by his reprefentatives, the judges in his courts of juftice; “voluntas regis in curia, non in camera ^h.”

THERE is alfo another fpecies of negative mifprifions; namely, the concealing of treafure-trove, which belongs to the king or him grantees, by prerogative royal: the concealment of which was formerly punifhable by death ^j; but now only by fine and imprifonment ⁱ.

II. MIFPRIFIONS, which are merely pofitive, are generally denominated contempts or high mifdemefnors; of which

1. THE firft and principal is the mal-adminiftration of fuch high officers, as are in public truft and employment. This is ufually punifhed by the method of parliamentary impeachment: wherein fuch penalties, fhort of death, are inflicted, as to the wifdom of the houfe of peers fhall feem proper; confifting ufually of banifhment, imprifonment, fines, or perpetual difability. Hitherto alfo may be referred the offence of imbezzling the

.{FS}
^g See pag. 94.
^h 1 Hal. P. C. 375.
^j Glanv. l. 1. c. 2.
ⁱ 3 Inft. 133.
.{FE}

VOL. IV.

Q

public

.P 122
PUBLIC WRONGS.
Book IV.
Ch. 9
public money, called among the Romans peculatus, which the Julian law punifhed with death in a magiftrate, and with deportation, or banifhment, in a private perfon ^k. With us it is not a capital crime, but fubjects the committer of it to a difcretionary fine and imprifonment. Other mifprifions are, in general, fuch contempts of the executive magiftrate, as demonftrate themfelves by fome arrogant and undutiful behaviour towards the king and government. Thefe are

2. CONTEMPTS againft 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 fervice for defence of the realm, againft a rebellion or invafion ^l. Under which calfs may be ranked the neglecting to join the poffe comitatus, or power of the county, being thereunto required by the fheriff or juftices, according to the ftatute 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. Contempts againft the prerogative may alfo be, by preferring the interefts 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 confent of the king ⁿ. Or, by difobeying the king's lawful commands; whether by writs iffuing out of his courts of juftice, or by a fummons to attend his privy council, or by letters from the king to a fubject commanding him to return from beyond the feas, (for difobedience to which his lands fhall be feifed till he does return, and himfelf afterwards punifhed) or by his writ of ne exeat regnum, or proclamation, commanding the fubject to ftay at home ^o. Difobedience to any of thefe 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 punifhable, like the reft of

.{FS}
^k Inft. 4. 18. 9.
^l 1 Hawk. P. C. 59.
^m Lamb. Eir. 315.
ⁿ 3 Inft. 144.
^o See Vol. I. pag. 266.
.{FE}
thefe
.P 123
PUBLIC WRONGS.
Book IV.
Ch. 9
thefe contempts, by fine and imprifonment, at the difcretion of the king's courts of juftice^p.

3. CONTEMPTS and mifprifions againft the king's perfon and government, may be by fpeaking or writing againft them, curfing or wifhing him ill, giving our fcandalous ftories concerning him, or doing any thing that may tend to leffen him in the efteem of his fubjects, may weaken his government, or may raife jealoufies between him and his people. It has been alfo held an offence of this fpecies to drink to the pious memory of a traitor; or for a clergyman to abfolve perfons at the gallows, who there perfift in the treafons for which they die: thefe being acts which impliedly encourage rebellion. And for this fpecies of contempt a man may not only be fined and imprifoned, but fuffer the pillory or other infamous corporal punifhment ^q: in like manner as, in the antient German empire, fuch perfons as endeavoured to fow fedition, and difturb the public tranquillity, were condemned to become the objects of public notoriety and derifion, by carrying a dog upon their fhoulders from one great town to another. The emperors Otho I. and Frederic Barbaroffa inflicted this punifhment on noblemen of the higheft rank ^r.

4. CONTEMPTS againft the king's title, not amounting to treafon or praemunire, are the denial of his right to the crown in common and unadvifed difcourfe; for, if it be by advifedly fpeaking, we have feen ^s that it amounts to a praemunire. This heedlefs fpecies of contempt is however punifhed by our law with fine and imprifonment. Likewife if any perfon fhall in any wife 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 mifdemefnor, by ftatute 13 Eliz. c. 1. and punifhable with forfeiture of goods and chattels. A contempt may alfo arife from refufing or neglecting to take the oaths, appointed by ftatute for the better fecuring the

.{FS}
^p 1 Hawk. P. C. 60.
^q Ibid.
^r Mod. Un. Hift. xxix. 28. 119.
^s See pag. 91.
.{FE}
Q 2
govern-
.P 124
PUBLIC WRONGS.
Book IV.
Ch. 9
government; and yet acting in a public office, place of truft, or other capacity, for which the faid oaths are required to be taken; viz. thofe of allegiance, fupremacy, and abjuration: which muft be taken within fix calendar months after admiffion. The penalties for this contempt, inflicted by ftatute 1 Geo. I. ft. 2. c. 13. are very little, if any thing, fhort of thofe of a praemunire: being an incapacity to hold the faid offices, or any other; to profecute any fuit; 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 fhall alfo forfeit 500 l. to him or them that will fue for the fame. Members on the foundation of any college in the two univerfities, who by this ftatute are bound to take the oaths, muft alfo regifter a certificate thereof in the college regifter, within one month after; otherwife, if the electors do not remove him, and elect another within twelve months, or after, the king may nominate a perfon to fucceed him by his great feal or fign manual. Befides thus taking the oaths for offices, any two juftices of the peace may by the fame ftatute fummon, and tender the oaths to, any perfon whim they fhall fufpect to be difaffected; and every perfon refufing the fame, who is properly called a non-juror, fhall be adjudged a popifh recufant convict, and fubjected to the fame penalties that were mentioned in a former chapter ^t; which in the end may amount to the alternative of abjuring the realm, or fuffering death as a felon.

5. CONTEMPTS againft the king's palaces or courts of juftice have always been looked upon as high mifprifions: and by the a law, before the conqueft, fighting in the king's palace, or before the king's judges, was punifhed with death^v. So too, in the old Gothic conftitution, there were many places privileged by law, quibus major reverential et fecuritas debetur, ut templa et judicia, quae fancta habebantur, --- arces et aula regis, --- denique locus quqilibet praefente aut adventante rege ^u. And at

.{FS}
^t See pag. 55.
^v 3 Inft. 140. LL. Alured. cap. 7. & 34.
^u Sticrnh. de jure Goth. l. 3. c. 3.
.{FE}
prefent,
.P 125
PUBLIC WRONGS.
Book IV.
Ch. 9
prefent, with us, by the ftatute 33 Hen. VIII. c. 12. malicious ftriking in the king's palace, wherein his royal perfon refides, whereby blood is drawn, is punifhable by perpetual imprifonment, and fine at the king's pleafure; and alfo with lofs of the offender's right hand, the folemn execution of which fentence is prefcribed in the ftatute at length.

BUT ftriking in the king's fuperior courts of juftice, in Weftminifter-hall, or at the affifes, is made ftill more penal than even in the king's palace. The reafon feems to be, that thofe courts being antiently held in the king's palace, and before the king himfelf, ftriking there included the former contempt againft the king's palace, and fomething more; viz. the difturbance of public juftice. For this reafon, by the antient common law before the conqueft ^w, ftriking in the king's courts of juftice, or drawing a fword therein, was a capital felony: and our modern law retains fo much of the antient feverity, as only to exchange the lofs of life for the lofs of the offending limb. Therefore a ftroke or a blow in fuch court of juftice, whether blood be drawn or not, or even affaulting a judge, fitting in the court, by drawing a weapon, without any blow ftruck, is punifhable with the lofs of the right hand, imprifonment for life, and forfeiture of goods and chattels, and of the profits of his lands during life ^x. A refcue alfo of a prifoner from any of the faid courts, without ftriking a blow, is punifhed with perpetual imprifonment, and forfeiture of goods, and of the profits of lands during life ^y: being looked upon as an offence of the fame nature with the laft; but only, as no blow is actually given, the amputation of the hand is excufed. For the like reafon an affray, or riot, near the faid courts, but out of their actual view, is punifhed only with fine and imprifonment ^z.

.{FS}
^w LL. Inac. c. 6. LL. Canut. c. 56. LL. Alurred. c. 7.
^x Staundf. P. C. 38. 3 Inft. 140, 141.
^y 1 Hawk. P. C. 57.
^z Cro. Car. 373.
.{FE}
NOT
.P 126
PUBLIC WRONGS.
Book IV.
Ch. 9
NOT only fuch as are guilty of an actual violence, but of threatening or reproachful words to any judge fitting in the courts, are guilty of a high mifprifion, and have been punifhed with large fines, imprifonment, and corporal punifhment ^a. And, even in the inferior courts of the king, an affray, or contemptuous behaviour, is punifhable with a fine by the judges there fitting; as by the fteward in a court-leet, or the like ^b.

LIKEWISE all fuch, as are guilty of any injurious treatment to thofe who are immediately under the protection of a court of juftice, are punifhable by fine and imprifonment: as if a man affaults or threatens his adverfary for fuing him, a counfellor or attorney for being employed againft him, a juror for his verdict, or a gaoler or other minifterial officer for keeping him in cuftody, and properly executing his duty^c: which offences, when they proceeded farther than bare threats, were punifhed in the Gothic conftitutions with exile and forfeiture of goods ^d.

LASTLY, to endeavour to diffuade a witnefs from giving evidence; to difclofe an examination before the privy council; or, to advife a prifone to ftand mute; (all of which are impediments of juftice) are high mifprifions, and contempts of the king's courts, and punifhable by fine and imprifonment. And antiently it was held, that if one of the grand jury difclofed to any perfon indicted the evidence that appeared againft him, he was thereby made acceffory to the offence, if felony; and in treafon a principal. And at this day it is agreed, that he is guilty of a high mifprifion ^e, and liable to be fined and imprifoned ^f.

.{FS}
^a Cro. Car. 503.
^b 1 Hawk. P. C. 58.
^c 3 Inft. 141, 142.
^d Stiernh. de jure Goth. l. 3. t. 3.
^e See Barr. 212. 27. Afterwards. pl. 44. §. 5. fol. 138.
^f 1 Hawk. P. C. 59.
.{FE}
.P 127
PUBLIC WRONGS.
Book
Document Text Here