CHAPTER THE NINTH.

[120]

OF MISPRISIONS AND CONTEMPTS

AFFECTING THE KING AND
GOVERNMENT.

THE fourth species of offences, more immediately against the 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, generally understood to be all such high offences as are under the 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 starchamber 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 misdemesnor: as happened in the case of Roger earl of Rutland, in 43 Eliz. who was concerned in the earl of Essex's rebellion". Misprisions are generally divided into two sorts; negative, which consist in the concealment of something which ought to be revealed; and positive, which consist in the commission of something which ought not to be done.

I. Of the first, or negative kind, is what is called misprision of treason; consisting in the bare knowledge and concealment

a Yearb. 2 Ric. III. 10. Staundf.

Hudson of the court of star-cham

P.C. 37. Kel. 71. 1 Hal. P. C. 374. ber. MS. in Mus. Brit. (1)

1 Hawk. P. C. c.20.

(1) This has been since published in the Collectanea Juridica, vol. ii. pp. 1-241. See post, p. 268.

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 in other states of Italy. But it is now enacted by the statute 1 & 2 Ph. & M. c.10. that a bare concealment of treason shall be only held a misprision. 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 a. But if there be any probable circumstances of assent, as if one goes to a treasonable meeting, knowing before-hand 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 *.

THERE is also one positive misprision of treason, created so by act of parliament. The statute 13 Eliz. c. 2. (2) enacts, that those who forge foreign coin [of gold or silver], 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 offence just below capital, and that is all. For the

c Guicciard. Hist. b. 3. & 13.
d1 Hal. P. C. 372.

e 1 Hawk. P. C. c. 20. s. 3.

(2) This ought to be 14 Eliz. c.3., and the author has been led into the mistake by implicitly copying Hawkins; but the 13 Eliz. c. 2. did also create a positive misprision of treason in the concealing the offer of a bulle, or instrument of reconciliation to the see of Rome, for six weeks after the offer made; and the 23 Eliz. c. 1. made the offence of aiding and maintaining those who had been guilty of the treasons constituted by that act, liable only to the penalties of misprision of treason. By the word aiders in this act, 14 Eliz. c. 3., Lord Hale says, are intended aiders of the fact, not aiders of the person, as receivers and comforters. 1 H. P. C. 376.

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 in[121] flicted while the offence amounted to principal 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, 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 which 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"." (3)

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; (4) but now only by fine and imprisonment'.

II. MISPRISIONS, which are merely positive, are generally denominated contempts or high misdemesnors; of which

(3) The words in the statute, applicable to a common person, are le Roy prendra a eux grevement, which Lord Coke explains, "at the king's suit they shall be fined grievously and imprisoned." But the statute with regard to common persons punishes only the "not suing and arresting felons at the summons of the sheriff, and cry of the county;" and seems hardly to apply to misprision of felony in them, as defined in the text. If the officer be unable to pay the fine, he shall be imprisoned three years. 2 Inst. 171.

(4) It is not clear, from the passage in Glanville, whether the punishment was death, or loss of member.

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

As, by

2. CONTEMPTS against the king's prerogative. 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 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 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

of these com

subject to stay at home. Disobedience to any mands 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.
a 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.