vealing of it; for in case of misprision of high treason he is to be imprisoned during life, to forfeit all his goods, debts, and duties forever, and the profits of his lands during his life; and, in case of felony, to be fined and imprisoned. And misprision in a large sense is taken for many great offenses, which are neither treason nor felony, whereof we shall speak more hereafter, being in this place restrained to misprision of treason."

From this definition it will be seen that any contempt, neglect, disregard or lack of respect for the King's authority was an incipient act of treason, and led to severe punishment in the way of amercement, fine or outlawry. The man who held the King's law in contempt, or neglect, was an incipient traitor, or outlaw. And so was one who concealed the guilt of another. Naturally, under this view of the law, any disrespect for the King, or any of his officers, especially when accompanied by an overt act, was treated in the most severe and summary way. It was a traitorous act and the guilty party was subject to summary punishment; he was at the King's mercy, and outside the pale of the law.

Let me quote the exact words of Lord Coke himself:"

"If any man in Westminster Hall, or in any other place, sitting the Courts of Chancery, the Exchequer, the King's Bench, the Common Bench, or before Justices of Assise, or of Justices of Oier and Terminer (which courts are mentioned in the Statute of 25 E., 3 De proditionibus) shall draw a weapon upon any judge, or justice, though he strike not; this is a great misprision, for the which he shall lose his right hand, and forfeit his lands and goods, and his body to perpetual imprisonment; the reason hereof is, because it tendeth an impedimentum legis terrae (an obstruction of justice). So it is, if in Westminster Hall, or any other place, sitting the said Courts there, or before Justices of Assise, or Oier and Terminer, and within the view of the same, a man doth strike a juror, or any other with weapon, hand, shoulder, elbow or foot, he shall have the like punishment; but in that case, if he make an assault, and strike not, the offender shall not have the like punishment. If any strike in the King's Palace, where the King's Royal Person resideth, he shall not lose his right hand unless he draw blood; but if he draw blood then his right hand shall be stricken off, he perpetually imprisoned and fined and ransomed. But note, that by the ancient laws of this realm, striking only in the King's Court was punished by death. .

73 Inst., Ch. 65.

"The King's Palace at Westminster hath this liberty and privilege, viz.: Nullae citationes, aut commonitiones liceant fieri cuicunque infra Palatium Regis Westmin."

"Here two things are principally to be observed: First, that this royal privilege is not only appropriated to the Palace of Westminster, but to all the King's palaces, where his Royal Person resides. Secondly, that

this privilege is to be exempted from all ecclesiastical jurisdiction.

"If any do rescue a prisoner in or before any of the said courts, committed by any of the aforesaid justices, it is a great misprision, for which he and the prisoner assenting to it shall forfeit their lands and goods, and their bodies to perpetual imprisonment, but shall not lose his hand, because no stroke or blow was given. But it was resolved by all the judges that where Thomas Oldfield, sitting the court of the Dutchy of Lancaster, with a knife stabbed one Ferror, a Justice of the Peace, in the view of the said court, that the court of the Dutchy was none of the Courts to make it a misprision to lose his right hand, etc., but the offender was to be indicted and grievously fined. And in 9 El., one Guirling, stroke another in the White Hall, sitting the Masters of Requests, and it was then resolved by the Court of the King's Bench that it was not any misprision for the which he should lose his right hand, etc., but he was indicted and fined."

"There is a great misprision when any revenge is sought against a Judge, Justice, Juror, Sergeant, Counsellor, Minister, or Clerk for that which they do in the discharge of their several duties, offices and places concerning the administration of justice.

"Roger de Hegham and others, being Justices of Oier and Terminer, and sitting in the Exchequer Chamber, gave judgment for Mary, late the wife of William Brewse, plaintiff, against William de Brewse, defendant, which judgment was pronounced by Roger de Hegham. William de Brewse demanded of Roger de Hegham if he would avow the judgment, and said, 'Roger, Roger, now thou hast thy will which of long time thou has sought.' Of whom Roger de Hegham demanded, 'What is that?' To whom William de Brewse said, 'My shame and my loss, and this I will reward and recompense, or I will think of it.' Whereof, he being indicted and arraigned, and confessing the offense, the Record saith:

"There be many records for abusing of jurors, viz.: Pafch, 10 E. 3 Coram Rege Rot. 87. Gilbertus Twift, Pafch. 26 E. 3 Ibidem, Rot. 24 Ricus Cheddre. Mich. 17 E. 2 Coram Rege Rot. 63.

"Not only these particular revenges above said, but all other of what kind soever are great misprisions. Also when any revenge is sought against any man for complaining in any of the King's Courts."

Note here that there was no misprision when the offense was committed in an inferior court. The King was not supposed to be present in such court, and hence the offense,

while a misdemeanor, subject to indictment, was no misprision, and hence could not be dealt with summarily.

In the days of Charles II we find the case of Croucher v. Collins, a qui tam action brought against the proprietor of a Rectory, for his contempt in refusing to obey a writ of prohibition forbidding him to proceed with a certain action in the Court Christian. Note I., attached to this case throws some light on the subject under discussion. It read as follows:

8

"This action is, in notion of law, founded upon an attachment against the defendant, for a contempt in proceeding after a writ of prohibition has been served upon him. But it is a mere fiction, used for the purpose of trying with greater certainty whether the inferior court ought to proceed further in the suit. The defendant is not in fact served with a writ of prohibition, and, therefore, has not in fact incurred any contempt for a disobedience of it. But this matter is alleged for form's sake, to entitle the plaintiff to demand damages of the defendant, and thereby to give the action the requisites of a suit. The supposed contempt, however, is the reason of its being a qui tam action; because it is an established rule that in every case of a contempt to the King the action must be as well to answer the King as the party suing. Moor 64. This fiction seems to have been derived from the ancient practice in prohibition. For it is said that formerly the courts of common law could not grant a prohibition in any case unless the party were in contempt for proceeding after he was served with an original writ of prohibition out of chancery, and an alias and pluries, directed to him. In that case an attachment for prohibition issued against him returnable in the K. B. or C. B. (See the form Reg. 33 b.) whereon the party who sued out the writ of prohibition might declare to recover the damages he had sustained by the defendant's Sir Edward Coke, in the same report, says: "The attachment is only a judicial writ;' but this appears to be a mistake; it seems certain that it is an original writ."

case.

The quotation shows very clearly the civil and formal nature of the process of attachment for contempt at the time it was written, and also the method of enforcing prohibition and prohibitory injunctions.

Between the days of Edward I. and Elizabeth, the Crown. side of the Court of King's Bench had gradually assumed jurisdiction and control of the criminal law of England. The Ecclesiastical courts assumed jurisdiction of crimes

8 1 Saunders Rep. 136.

against conscience, but the Court of King's Bench was careful to prohibit it from taking action in any case recognized as a crime, whether felony or misdemeanor, at the common law. Under Henry VIII. and his successors the criminal law had become more and more severe; petty crimes were made felonies punishable by loss of life and forfeiture of property. A great system of trial courts grew up with numerous clerks and other officers, each of whom depended upon the fees derived from his office for his living. This naturally lead to a jealous and constant outlook by these officers to see that no course of action was taken in any case which would deprive anyone of his customary fees. (See Bohun, Inst. Leg., pps. 39, et seq.) We can readily understand, therefore, why, by the beginning of the Eighteenth Century, attachment for contempt had either become a purely civil process, or punishment of constructive contempt in aggravated cases had been taken over almost entirely by the Crown side of the King's Bench and the courts subordinate thereto. Direct contempts and civil contempts were conveniently handled by the courts in which they occurred. But constructive contempts involving violence to parties, officers or witnesses, or resistance to the enforcement of the law were treated as crimes and dealt with by the criminal courts. The old process of summary punishment for constructive contempt had fallen into disuse, and when we read Sergeant Hawkins' work on "Pleas of the Crown" we find that he is citing the same cases cited by Sir Edward Coke. Hawkins has no recent cases to cite because the practice had already changed, and constructive contempts where violent, corrupt or otherwise of a criminal nature, were now dealt with in the same way as other crimes and misdemeanors.

When we turn to the work of Matthew Bacon, whose Abridgement of the Laws of England was published in the year 1736, and to the Commentaries of Sir William Blackstone, this situation is made still more evident. These writers cited the same cases which had been cited by Coke

and Hawkins, but they gave more attention to the procedure; that is to say, to the practice of permitting the accused to come into court and purge himself of the contempt; it may be of interest to give the exact words of Bacon:

"(B) How the person against whom an attachment is granted is to be proceeded against, and how discharged." "Attachments are usually granted on a rule to show cause, unless the offense complained of be of a flagrant nature and positively sworn to; in which last case the party is ordered to attend, which he must do in person; as must every one against whom an attachment is granted; and if the party attending the court upon such a rule to answer it, or appearing upon an attachment, be apparently guilty, the court, in discretion, on consideration of the nature of the crime, and other circumstances, will either commit him immediately, in order to answer interrogatories to be exhibited against him, concerning the contempt complained of, or will suffer him to enter into a recognizance to answer such interrogatories which, if they be not exhibited within four days, the party may move to have the recognizance discharged; otherwise he must answer them, though exhibited after the four days; but in all cases, if he fully answers them, he shall be discharged as to the attachment, and the prosecutor shall be left to proceed against him for the perjury, if he thinks fit; but if he deny part of the contempts only, and confess other part, he shall not be discharged as to those denied, but the truth of them shall be examined and such punishment inflicted, as from the whole shall appear reasonable; and if his answer be evasive as to any material part he shall be punished in the same manner as if he had confessed it."

Sir William Blackstone, in Chap. 20, Bk. 4, of his Commentaries, calls attention to the fact that summary proceedings for the punishment of criminal offenses without intervention of a jury had become very common in his day; too common, in Blackstone's opinion; and he feels that if a check is not put to the practice the day will soon come when only capital felonies will be tried by jury. It must be remembered, however, that this summary jurisdiction of Justices of the Peace and others was really benecial to the people and saved them the enormous court costs and fees that invariably accompany a trial in the regular

way.

At the same time the people would have risen in arms against an attempt to introduce again the "Court of Star