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reign coin, made
treason by sta
This concealment becomes criminal, if the party apprized of the treason does not, as soon as conveniently may be, reveal it to some judge of assize or justice of the peace (d). 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 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 (e).
There is also one positive misprision of treason, created so 2. Forging foby act of parliament. The statute 13 Eliz. c. 2, enacts, that misprison on those who forge foreign coin, not current in this kingdom, tutes their aiders, abettors, and procurers, shall all be guilty of misprision of treason (1). 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 offence 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 () (2). Which total forfeiture of the goods was originally inflicted while *the offence amounted to principal treason, and of [*121] 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 (g), that wherever an offence is punished by such total forfeiture it is felony at the common law.
Misprision of felony is also the concealment of a felony 3. Misprision of 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
4. Concealing treasure-trove.
II. Positive mis. prisions or con. temps.
1. Mal-administration of public trusts, including peculation,
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 (j).
II. Misprisions, which are merely positive, are generally denominated contempts or high misdemesnors : of which : 1. The first and principal is the mal-administration of ing 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 [*122] the *offence of embezzling the public money, called among
the Romans peculatus, which the Julian law punished with
(;) 3 Inst. 133.
(k) Inst. 4, 18, 9.
(3) But now, by 2 W. IV. c. 4, $ 1, repealing 50 Geo. III. c. 59, upon the same subject, “ if any person employed in the public service of his Majesty, and entrusted by virtue of such employment with the receipt, custody, management, or control of any chattel, money, or valuable security, shall embezzle the same, or any part thereof, or in any manner fraudulently apply or dispose of the same, or any part there of, to his own use or benefit, or for any purpose whatsoever, except for the public service," he shall be guilty of felony, and liable to transportation for seven or fourteen years, or to imprisonment, with or without hard labour, not exceeding three years.
By sect. 2, the words " valuable
security” shall be deemed to include “every tally, order, or other security whatsoever, entitling or evidencing the title of any person or body corporate to any share or interest in any public stock or fund, whether of the united kingdom or of Great Britain, or of Ireland, or of any foreign state, or to any share or interest in any fund of any body corporate, company, or society, or to any deposit in any saving's bank, and every debenture, deed, bond, bill, note, warrant, order, or other security whatsoever for money or for payment of money, whether of this kingdom or of any foreign state, and every warrant or order for the delivery or transfer of any goods or valuable thing."
By sect. 3, three distinct acts of em.
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 re- 2. Contempts fusing to assist him for the good of the public; either in his king's prerogacouncils, by advice, if called upon; 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). 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 intrinsic power; as, by taking a pension from any foreign prince without the consent of the king (n). 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, or proclamation, commanding the subject to stay at home (0). 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 *these contempts, by [*] 123] fine and imprisonment, at the discretion of the king's courts of justice (p).
3. Contempts and misprisions against the king's person 3. Contempts and government, may be by speaking or writing against king's person. them, cursing or wishing him ill, giving out scandalous stories concerning him (4), 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 (5) or other infamous corporal punishment (9): 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).
(1) 1 Hawk. P. C. 59.
(0) See vol. I. p. 266.
bezzlement, if committed within six
has been committed.
By stat. 7 & 8 Geo. IV. c. 29, $ 5, provision is made in the case of stealing valuable securities by private individuals.
4. Contempts against the king's title, not amounting to treason or præmunire, 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 præmunire. This heedless species of contempt is, however, punished by our law with fine and imprisonment. Likewise if any person shall in anywise 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 misdemesnor, 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 trust, or other capacity, for which the said oaths are required to be taken; viz. those of allegiance, supremacy, and abjuration; which must be
(4) As, asserting falsely of the king that he labours under the affliction of mental derangement, which is a cri. minal act, and indictable as a misdemeanor ; Rer v. Harvey, 3 D. & R.
464; 2 B. & C. 257; see post, 150.
(5) Abolished by 56 Geo. III. c. 138, as to all offences except perjury and subornation of perjury.
taken within six calendar months after admission. The pe-
5. Contempts against the king's palaces or courts of jus- 5. Contempts tice have been always looked upon as high misprisions: and king's palaces. by the ancient law, before the conquest, fighting in the king's palace, or before the king's judges, was punished with death (v). So too, in the old Gothic constitution, there were many places privileged by law, quibus major reverentia et securitas debetur, ut templa et judicia, quæ sancta habebantur, arces et aula regis, denique locus quilibet præsente aut adventante rege (u) (8). And at present, with us, by the
(6) Vide ante, 59, (12) and following notes.
(7) Vide ante, 116.
(8) To which particular reverence and security were attached, as the tem
ples and courts of justice, the courts and palaces of the king, and every place in which the king is actually present, or to which he was approaching.