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 Ro- [ 122 ] mans 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 (5), 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 [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. 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: (6) in like manner, as in the antient 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 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 that it amounts to a praemunire. This heedless species of contempt is, however, punished by

• See Vol. I. pag.266.

P 1 Hawk. P. C. c.22. s.5.
Ibid. c. 23.

Mod. Un. Hist. xxix. 28. 119. • See pag.91.

(6) By the 56 G.3. c. 138., the punishment of the pillory is abolished, except in cases of perjury, or subornation of perjury, and wilful, false, and corrupt affirmation or subornation thereof, amounting to perjury; and fine or imprisonment, or both substituted for it. This punishment, however, has since (perhaps through inadvertency) been inflicted by the 57 G.3.c.12. (see ante, p. 102.), and, I believe, is repeated in the annual mutiny acts.

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 misdemesnor, by statute 13 Eliz. c.1. and punishable with forfeiture of goods and chattels. (7) 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 [ 124 ] 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 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. 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'; which in the end may amount to the alternative of abjuring the realm, or suffering death as a felon. (8)

5. CONTEMPTS against the king's palaces or courts of justice have been always looked upon as high misprisions and by

See pag. 55.

(7) This statute was made for the queen's life, and has expired. (8) But see pp. 58, 59. nn. (6) (7).

the antient 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 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". [125] 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.

BUT striking in the king's superior courts of justice, in Westminster-hall, or at the assizes, is made still more penal than even in the king's palace. The reason seems to be, that those courts being antiently 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 antient common law before the conquest ", striking in the king's courts of justice, or drawing a sword therein, was a capital felony and our modern law retains so much of the antient 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. 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: 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

✓ 3 Inst. 140. LL. Alured.cap. 7. &34. * Staund. P. C. 38. 3 Inst. 140, 141. u Stiernh. de jure Goth. 1. 3. c. 3.

w LL. Inae. c. 6.

LL. Alured. c.7.

LL. Canut. 56.

Y 1 Hawk. P. C. c. 21. s. 5.

said courts, but out of their actual view, is punished only with fine and imprisonment ".

Not only such as are guilty of an actual violence, but of [126] 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. (9) 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 court-leet, or the like ".

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 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 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. And antiently 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 accessory 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, and liable to be fined and imprisoned'.

z Cro. Car. 373.

a Ibid. 503.

b 1 Hawk. P. C. c. 21. s. 10. 3 Inst. 141, 142.

4 Stiernh. de jure Goth. l. 3. c.3.
See Bar. 212. 27 Ass. pl. 44. § 4.

fol. 138.

f 1 Hawk. P. C. c.21. s. 15.

(9) It has been determined, that a judge sitting at nisi prius has the power of fining even a defendant conducting his own defence to a criminal charge, for contempt of the court in the course of that defence. R. v. Davison, 4 B. & A. 329.