and to which capital or other punishment may be superadded, according to the degree of guilt.

Hence it follows that capital punishment does by no means enter into the true idea and definition of felony. Felony may be without inflicting capital punishment, as in the cases instanced of self-murder, excusable homicide, and petit larceny; and it is possible that capital punishments may be inflicted and yet the offence be no felony; as in case of heresy by the common law, which, though capital, never worked any forfeiture of lands or goods, an inseparable incident to felony. And of the same nature was the punishment of standing mute without pleading to an indictment, which at the common law was capital, but without any forfeiture, and therefore such standing mute was no felony. In short, the true criterion of felony is forfeiture.

The idea of felony is, indeed, so generally connected with that of capital punishment that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore, if a statute makes any new offence felony, the law implies that it shall be punished with death, viz., by hanging, as well as with forfeiture: unless the offender prays the benefit of clergy; which all felons are entitled once to have, provided the same is not expressly taken away by statute. And, in compliance herewith, I shall for the future consider it also in the same light as a generical term, including all capital crimes below treason. Kinds of Felonies as Are Against the King's Prerogative.

I proceed now to consider such felonies as are immediately injurious to the king's prerogative. These are, 1. Offences relating to the coin, not amounting to treason. 2. Offences against the king's council. 3. The offence of serving a foreign prince. 4. The offence of embezzling or destroying the king's armour or stores of war. To which may be added a fifth: 5. Desertion from the king's armies in time of war.

Chapter VIII.

OF PRAEMUNIRE.

104-119.

The chapter is mainly historical and the subject of no practical importance to the student in this country.

The original meaning of the offence which we call praemunire, is introducing a foreign power into this land, and creating imperium in imperio by paying that obedience to papal process which constitutionally belonged to the king alone.

Chapter IX.

OF MISPRISIONS AND CONTEMPTS AFFECTING THE KING AND GOVERNMENT.

119-127.

Misprisions-Definition and Divisions.

Misprisions 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. 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.

Misprision of Treasons.

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. But it is now enacted, by the statute I and 2 Ph. and M. c. 10, that a bare concealment of treason shall only be held a misprision. This concealment becomes criminal if the party apprised of the treason does not, as soon as conveniently may be, reveal it to some judge of assize or justice of the peace.

Misprision of Felony.

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.

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.

II. Misprisions which are merely positive are generally denominated contempts or high misdemeanours; of which

Mal-Administration.

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 peers shall seem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability. Hitherto also may be referred the offence of embezzling the public money.

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

Contempts Against the King's Prerogative.

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. 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 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 seas (for disobedience to which his lands shall be seized until 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; 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.

Contempts Against the King's Person, Title, and Courts of Justice.

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.

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. And at pres

ent, 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 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 these 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, striking in the king's court 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 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 actualy 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.

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. 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 counsel or attorney for being employed against him, a juror for his verdict, or à gaoler or other ministerial officer by 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 disclose 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.

Chapter X.

OF OFFENCES AGAINST PUBLIC JUSTICE.

Five Species.

127-142.

The crimes and misdemeanours that more especially affect the commonwealth may be divided into five species, viz., offences against public justice, against the public peace, against the public trade, against the public health and against the public police or economy; of each of which we will take a cursory view in their order.

Against Public Justice.

First, then, of offences against public justice, some of which are felonious, whose punishment may extend to death; others only misdemeanours. I shall begin with those that are most penal, and descend gradually to such as are of less malignity. Embezzling or Vacating Records, Obstructing Process, etc.

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

2. To prevent abuses by the extensive power which the law is obliged to repose in gaolers, it is enacted, 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 agaist his will: that is, as we shall see hereafter, to accuse and turn evidence against some other person; it is felony in the gaoler.

3. A third offence against public justice is obstructing the execution of lawful process. This is at all times an offence of a very high and presumptuous 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