CHAPTER IX.

OF MISPRISIONS AND CONTEMPTS AFFECTING THE KING AND

GOVERNMENT.

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 misprison only. [119]

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 misprison of treason,' consisting in the bare knowledge and concealment 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. [120] 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 assise or justice of the peace.

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 accessary.2 [121]

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, but now only by fine and imprisonment.

1. An offence also against the United States. Rev. Stat. U. S.. § 5333; Clark's Crim. Law (2d Ed.), 406.

2. This is a misdemeanor. Clark's Crim. Law (2d Ed.), 383.

II. Misprisions which are merely positive are generally denominated contempts or high misdemeanors, of which

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.3 Hitherto also may be referred the offence of embezzling the public money. [122] 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 behavior toward the king and government. There 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 their own, or doing or receiving anything that may create an undue influence in favor 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 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, disobedience to any of these commands is a high misprision and contempt. 5. That he depart not from the kingdom.

3. See U. S. Const., art. 2, sec. 4. 4. See the state and federal statutes; also the several state constitu

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 fine and imprisonment at the discretion of the king's courts of justice. [123]

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 anything 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.

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, it amounts to a praemunire.

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

And by the ancient law, before the Conquest, fighting in the king's palace or before the king's judges was punished with death. [124] 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. [125]

But striking in the king's superior courts of justice, in Westminster Hall or at the assises, is made still more penal than even in the king's palace. 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. For the like reason, an affray or riot

6. Which are misdemeanors and not felonies. See the statutes.

!

near the 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 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. [126] And even in the inferior courts of the king an affray or contemptuous behavior is punishable with a fine by the judges there sitting.

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 counselor 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.

Lastly, to endeavor 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 anciently 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."

7. "The power of punishing for contempt is incident to all courts having jurisdiction to try causes, as well as to deliberative bodies acting in matters of government, like houses of parliament and houses of Congress." Washburn's Crim. Law (3d Ed.), *247; Cooley's Const. Lim. (7th

43

Ed.), 191-193. Cases of contempt were never triable by jury. Cooley's Const. Lim. (7th Ed.), 453, note. See, also, People v. Wilson, 64 Ill. 195 (libel upon Supreme Court punished as a contempt); Storey v. People, 79 id. 45.

CHAPTER X.

OF OFFENCES AGAINST PUBLIC JUSTICE.

The crimes and misdemeanors that more especially affect the commonwealth may be divided into five species, viz., offences against public justice, against the public peace, against public trade, against the public health, and against the public police or economy. [128]

First, of offences against public justice, some of which are felonious, whose punishment may extend to death; others only misdemeanors. I shall begin with those that are most penal, and descend gradually to such as are of less malignity.

1. Embezzling or vacating records, or falsifying certain other proceedings in a court of judicature, is [by statute] a felonious offence against public justice.1

2. To prevent abuses by the extensive power which the law is obliged to repose in gaolers, it is nacted by statute 14 Edw. III. c. 10, that if any gaoler by too great duress of imprisonment makes any prisoner that he hath in ward become an approver or an appellor against his will, that is, as we shall see hereafter, to accuse and turn evidence against some other person,-it is felony in the gaoler. [129] [Repealed.]

3. A third offence against public justice is obstructing the execution of lawful process.2 This is at all times an offence of a very high and presumptious nature, but more particularly so when it is an obstruction of an arrest upon criminal process. And it hath been holden that the party opposing such arrest becomes thereby particeps criminis,- that is, an accessory in felony, and a principal in high treason.

4. An escape of a person arrested upon criminal process by eluding the vigilance of his keepers before he is put in hold, is also an offence against public justice, and the party himself is punishable by fine or imprisonment. [130] But the officer permitting such escape, either by negligence or

1. Consult the local statutes.

2. This is made a matter of statu

tory regulation in the several states. Consult the statutes.