Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Misprisions and Contempts, Affecting the King and Government
THE fourth species of offenses, 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 offenses 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.1 And upon the same principle, while the jurisdiction of the star-chamber 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 misdemeanor: as happened in the case of Roger earl of Rutland, in 43 Eliz. who was concerned in the earl of Essex’s rebellion.2 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 to be done.
I. OF the first, or negative kind, is what is called misprision 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: in like manner as the knowledge of a plot against the state, and not revealing it, was a capital crime at Florence, and other states of Italy.3 But it is now enacted by the statute 1 & 2 Ph. & Mar. 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.4 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 principal high treason.5
THERE is also one positive misprision of treason, created so by act of parliament. The statute 13 Eliz. c. 2. enacts, that those who forge foreign coin, 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 consequence almost equally pernicious to the public; as the counterfeiting of Portugal money would be at present: and therefore the law has made it an offense 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.6 Which total forfeiture of the goods was originally inflicted while the offense 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,7 that wherever an offense 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 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.”8
THERE is also another species of negative misprisions; namely, the concealing of treasure-trove, which belongs to the king or him grantees, by prerogative royal: the concealment of which was formerly punishable by death;9 but now only by fine and imprisonment.10
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: 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 offense of embezzling the public money, called among the Romans peculatus, which the Julian law punished with death in a magistrate, and with deportation, or banishment, in a private person.11 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 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 defense of the realm, against a rebellion or invasion.12 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.13 Contempts against the prerogative may also be, by preferring the interests of a foreign potentate to those of our 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.14 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.15 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 fine and imprisonment, at the discretion of the king’s courts of justice.16
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 our 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. It has been also held an offense 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:17 in like manner as, in the ancient German empire, such persons as endeavored to sow sedition, and disturb the public tranquility, 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.18
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 seen19 that it amounts to a praemunire. This heedless species of contempt is however punished by our law with fine and imprisonment. Likewise if any person shall in any wise 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 misdemeanor, 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 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 anything, 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 500 l. 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 whim 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;20 which in the end may amount to the alternative of abjuring the realm, or suffering death as a felon.
5. CONTEMPTS against the king’s palaces or courts of justice have always been looked upon as high misprisions: and by the a law, before the conquest, fighting in the king’s palace, or before the king’s judges, was punished with death.21 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.22 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 Westminister-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 anciently 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 ancient common law before the conquest,23 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 ancient severity, as only to exchange the loss of life for the loss of the offending limb. Therefore a stroke or a blow in such 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.24 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:25 being looked upon as an offense 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 said courts, but out of their actual view, is punished only with fine and imprisonment.26
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.27 And, even in the inferior courts of the king, an affray, or contemptuous behavior, is punishable with a fine by the judges there sitting; as by the steward in a court-leet, or the like.28
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 jailer or other ministerial officer for keeping him in custody, and properly executing his duty:29 which offenses, when they proceeded farther than bare threats, were punished in the Gothic constitutions with exile and forfeiture of goods.30
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 offense, if felony; and in treason a principal. And at this day it is agreed, that he is guilty of a high misprision,31 and liable to be fined and imprisoned.32
1. Yearb. 2 Ric. III. 10. Staundf. P. C. 37. 1 Hawk. P. C. 55, 56.
2. Hudson of the court of star-chamber. MS. In Mus. Brit.
3. Guicciard. Hist. b. 3. & 13.
4. 1 Hal. P. C. 372.
5. 1 Hawk. P. C. 56.
6. 1 Hal. P. C. 374.
7. See pag. 94.
8. 1 Hal. P. C. 375.
9. Glanv. l. 1. c. 2.
10. 3 Inst. 133.
11. Inst. 4. 18. 9.
12. 1 Hawk. P. C. 59.
13. Lamb. Eir. 315.
14. 3 Inst. 144.
15. See Vol. I. pag. 266.
16. 1 Hawk. P. C. 60.
18. Mod. Un. Hist. xxix. 28. 119.
19. See pag. 91.
20. See pag. 55.
21. 3 Inst. 140. LL. Alured. cap. 7. & 34.
22. Stiernh. de jure Goth. l. 3. c. 3.
23. LL. Inae. c. 6. LL. Canut. c. 56. LL. Alured. c. 7.
24. Staundf. P. C. 38. 3 Inst. 140, 141.
25. 1 Hawk. P. C. 57.
26. Cro. Car. 373.
27. Cro. Car. 503.
28. 1 Hawk. P. C. 58.
29. 3 Inst. 141, 142.
30. Stiernh. de jure Goth. l. 3. t. 3.
31. See Barr. 212. 27. Afterwards. pl. 44. § 5. fol. 138.
32. 1 Hawk. P. C. 59.