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rized by law; and every society or club, the members whereof, or any of them, shall take, or in any manner bind themselves by any such oath or engagement on becoming, or in order to become, or in consequence of being a member or members of such society or club; and every society or club, the members or any member whereof shall be required or admitted to take, subscribe, or assent to any test or declaration not required or authorized by law, in whatever manner or form such taking or assenting shall be performed, whether by words, signs, or otherwise, either on becoming, or in order to become, or in consequence of being a member or members of any such society or club; shall be deemed and taken to be unlawful combinations and confederacies within the meaning of the 39th Geo. 3. c. 79, and may be prosecuted, proceeded against, and punished, according to the provisions of the said act. (i)
With respect to the administering or taking unlawful oaths in Administering Ireland, a late statute, 50 Geo. 3. c. 102., has enacted, “that any in
husanonton 66thot on unlawful oaths “ person or persons who shall administer, or cause to be adminis- felony and “tered, tender, or cause to be tendered, or be present aiding and transportation “ assisting at the administering or tendering, or who shall by to “threats, promises, persuasions, or other undue means, cause, “ procure, or induce to be taken by any person or persons in “ Ireland, upon a book or otherwise, any oath or engagement im“porting to bind the person or persons taking the same to be of “ any association, brotherhood, committee, society, or confederacy “ whatsoever, in reality formed, or to be formed, for seditious pur“poses, or to disturb the public peace, or to injure the persons or “property of any person or persons whatsoever, or to compel any “person or persons whatsoever, to do, or omit, or refuse to do, any " act or acts whatsoever, under whatever name, description, or “ pretence, such association, brotherhood, committee, society, or “ confederacy, shall assume, or pretend to be formed or constituted, “ or any oath or engagement importing to bind the person taking “ the same to obey the orders, or rules, or commands, of any com“mittee or other body of men not lawfully constituted, or of any “ captain, leader or commander, (not appointed by or under the "authority of his Majesty, his heirs and successors,) or to assemble " at the desire and command of any such captain, leader, com“nander, or committce, or of any person or persons not having “ lawful authority, or not to inform or give evidence against any “ brother, associate, confederate, or other person, or not to reveal “ or discover his or her having taken any illegal oath, or not to “ reveal or discover any illegal act done or to be done, or not to “ discover any illegal oath or engagement which may be adminis“ tered or tendered to him or her, or the import thereof, whether “ such oath shall be afterwards so administered or tendered, or “not, or whether he or she shall take such oath, or enter into “ such engagement or not, being by due course of law convicted
(1) Tbis statute is not to extend to S. 26. By s. 39. the act is not to extend Freemasons' lodges, nor to any decla- to Ireland: and s. 40. provides for its ration approved by two justices, nor being repealed or altered during the to Quakers' meetings, nor to meetings present session. or societies for charitable purposes.
“ thereof, shall be adjudged guilty of felony, and be transported And taking “ for life; and every person who shall take, in Ireland, any such şuch oath in “ oath or engagement, importing so to bind him or her as aforesaid, meland, anseo and being by due course of law thereof convicted, shall be adportation for seven years. “ judged guilty of felony, and be transported for seven years.” Persons com. This statute further enacts, that a person compelled by inevitable pelled by ne- necessity to commit any of these offences, shall be excused and cessity are excused if they Jusuna upon p
justified upon proof of such necessity, if within ten days (not being disclose whát prevented by actual force or sickness, and then within seven days
na after such actual force or sickness shall cease to disable him,) he limited time.
disclose to a justice of peace, by information on oath, the whole of Aiders to be what he knows touching his compulsion. (k) Persons aiding at deemed principal offenders.
the administering or tendering the oath or engagement, and persons causing the oath or engagement to be administered or tendered, though not present, are to be deemed principal offenders, and tried as such, though the person who actually administered
such oath or engagement shall not have been tried or convicted.(1) Purport of the And the statute also provides, that it shall be sufficient to set forth oath suficient in the indintment then in the indict
in the indictment the purport or object of such oath or engagement.
By the 4 Geo. 4. c. 87. s. 1. every society, &c. in Ireland, the members whereof shall, according to the rules, &c. be required or admitted, or permitted to take any oath or engagement, which shall be an unlawful oath or engagement, within the statute 50 Geo. 3. c. 102. or to take any oath not required or authorized by law, are declared to be unlawful combinations and confederacies.
(k) S. 2. And the section provides -of it, or of seven days from the time also, that no person shall be excluded when the force or sickness shall cease. from the defence of inevitable neces- (1) S. 3. sity, who shall be tried for an offence (m) S. 4. wiibin ten days from the commission
CHAPTER THE THIRTEENTH.
OF MISPRISION OF FELONY, AND OF COMPOUNDING OFFENCES.
By misprision of felony, is generally understood the concealment Of misprision of felony, or a procuring such concealment, whether it be felony Orco
of felony. by the common law or by statute. (a) Thus, silently to observe the commission of a felony without using any endeavour to apprehend the offender, is a misprision; (b) for a man is bound to discover the crime of another to a magistrate with all possible expedition. (c) But there must be knowledge merely without any assent; for if a man assent to a felony, he will be either principal or accessory. (d) The punishment of this offence in an officer is imposed by the statute of Westminster, 3 Edw. 1. c. 9. which enacts, that “'if the sheriff, coroner, or any other bailiff within a “ franchise, or without, for reward, or for prayer, or for fear, or " for any manner of affinity, conceal, consent, or procure to con“ceal, the felonies done in their liberties; or otherwise will not “ attach nor arrest such felons (there as they may), or otherwise “ will not do their office, for favour borne to such misdoers, and be “ attainted thereof, they shall have one year's imprisonment, and “after make a grievous fine at the king's pleasure, if they have “ wherewith; and if they have not whereof, they shall have impri“sonment of three years.” The punishment, in the case of a common person, is imprisonment for a less discretionary time; and in both cases fine and ransom at the king's pleasure. (e) By the 3 Hen. 7. c. 1. the justices of every shire may take an inquest to inquire of the concealments of other inquests, of such matters and offences as are to be inquired and presented before justices of the peace, whereof complaint shall be made by bill; and if such concealment be found of any inquest within a year after the concealment, every person of the inquest is to be amerced for the concealment by discretion of the justices. · Of a similar nature to this offence of misprision of felony, is the Of compoundoffence of compounding of felony, mentioned in the books by the ingen
or theft-bote. (a) i Hawk. P. C. c. 59. s. 2. 3 Inst. said, “which pleasure of the king must 139.
** be observed, once for all, not to sig. (b) i Hale 374, 375. 1 Hawk. P. C. “nify any extrajudicial will of the c. 59. S. 2. note (1).
“ sovereign, but such as is declared by (c) 3 Inst. 140.
“ his representatives, the Judges in bis (d) 4 Blac. Com. 121.
“ courts of justice; voluntas Regis in (c) 4 Blac. Com, 121, where it is “curia, non in camera."
more ancient appellation of theft-bote which is where the party robbed not only knows the felon, but also takes his goods again, or other amends, upon agreement not to prosecute. (f) It is said to have been anciently punishable as felony; but is now punished only with fine and imprisonment, unless it be accompanied with some degree of maintenance given to the felon, which makes the party an accessory after the fact. (g) But the barely taking again one's own goods which have been stolen, is no offence at all unless some favour be shewn to the thief. (h)
It may be observed, that to take any reward for helping a person to stolen goods is made felony by 4 Geo. 1, c. 11.; and to advertise a reward for the return of things stolen, incurs a forfeiture of fifty
pounds by 25 Geo. 2. c. 36. (a) Compounding An agreement to put an end to a misdemeanor has been conmisdemeanors. sidered to be illegal, as impeding the course of public justice ; (0)
but it is sometimes done after conviction, with the sanction of the Court, in cases where the offence principally and more immediately affects an individual; the defendant being permitted to speak with the prosecutor before any judgment is pronounced, and a trivial punishment being inflicted if the prosecutor declares himself satistied. (k) And where, in a case of an indictment for ill treating a parish apprentice, a security for the fair expenses of the prosecution had been given by the defendant after conviction, upon an understanding that the Court would abate the period of his imprisonment, the security was held to be good, upon the ground that it was given with the sanction of the Court, and to be considered as part of the punishment suffered by the defendant in expiation of
his offence, in addition to the imprisonment inflicted on him. (1) Of compound. The compounding of informations on penal statutes is a misdeing informa
on penal meanor against public justice, by contributing to make the laws statutes. odious to the people. (m) Therefore, in order to discourage mali
cious informers, and to provide that offences, when once discovered, shall be duly prosecuted, it was enacted by the statute 18 Eliz. C. 5. s. 4. that if any informer, by colour or pretence of process, or without process upon colour or pretence of any manner of offence against any penal law, make any composition, or take any money, reward, or promise of reward, without the order or consent of the Court, he shall stand two hours in the pillory, (n) be for ever disabled to sue on any popular or penal statute, and shall forfeit ten pounds. This severe statute extends even to penal actions, where
(f) i Hawk. P. C. c. 59. $. 5. 4 tract or security made in considera Blac. Com. 133.
tion of dropping a criminal prosecu(g) i Hawk. P. C. c. 59. s. 6. 2 Hale tion, suppressing evidence, soliciting a 400.
pardon, or compounding any public (h) 1 Hawk. P. C. c. 59. s. 7. offence, without leave of the Court, is
(a) See these statutes more at large, invalid. I Cbit. Crim. Law, 4. post, Book IV. Chap. xxi.
(m) 4 Blac. Com. 136. (1) Collins v. Blantern, 2 Wils. 341-9. (n) This part of the punishment canEdgecombe v. Rodd and others, 5 East. not now, by 56 Geo. 3. c. 138. be in. 298, 302.
flicted. But sect. 2. of that statute (k) 4 Blac. Com. 363, 364.
empowers the Court to pass such sen() Beeley v. Wingfield, 11 East. 46. tence of fine or imprisonment, or of and see also Baker v. Townshend, 7 both, in lieu of the sentence of pillory, Taunt. 422. But in general any con- as to the Court shall seem proper.
e indictwartest that thby, but studion especte law,
guilty of Though intendenor atatutable mo in
the whole penalty is given to the prosecutor. (0) But it does not apply to penalties which are only recoverable by information before justices; and an indictment for making a composition in such a case was holden bad, in arrest of judgment. (a)
In a case where it was held that threatening, by letter or otherwise, to put in motion a prosecution by a public officer to recover penalties for selling Fryer's Balsam without a stamp, (p) for the purpose of obtaining money to stay the prosecution, (not being such a threat as a firm and prudent man might not be expected to resist,) was not in itself an indictable offence at common law, though it was alleged that money was obtained, it seems to have been considered that such an offence would be indictable under the foregoing section of this statute of Elizabeth. (9) But no indictment for any attempt to commit such a statutable misdemeanor can be sustained as a misdemeanor at common law, without at least bringing the offence intended within, and laying it to be against, the statute. Though if the party so threatened had been alleged to be guilty of the offence imputed, within the statute imposing the duty and creating the penalty, such an attempt to compound and stifle a public prosecution for the sake of private lucre, in fraud of the revenue, and against the policy of the statute (which gives the penalty as auxiliary to the revenue, and in furtherance of public justice for the sake of example,) might also, upon general principles, have been deemed a sufficient ground on which to have sustained the indictment at common law. (r)
It has been holden that a party is liable to the punishment prescribed by this statute of 18 Eliz, c. 5. for taking the penalty imposed by a penal statute, though there is no action or proceeding for the penalty. The prisoner applied to one Round, and demanded five pounds, as a penalty, which Round had incurred under the general turnpike act, by suffering his waggon to be drawn on a turnpike road by more than four horses. Round had incurred such a penalty, and the prisoner obtained the money by way of composition to prevent any legal proceedings : and it further appeared that no process had been sued out, and that no information had been laid before a magistrate. The prisoner having been convicted, judgment was respited by Le Blanc, J. upon a doubt whether the offence was within the statute, so as to subject the prisoner to the specific punishment therein prescribed, inasmuch as no action or proceeding was depending in which the order or consent of any Court in Westminster-hall for a composition could have been obtained. But the Judges were all of opinion that the conviction was right, and that the statute applies to all cases of taking a penalty incurred, or pretended to be incurred, without leave of a Court at Westminster, or without judgment or conviction. (3)
(0) 4 Blac. Com. 136. note (3).
(9) Rex v. Southerton, 6 East 126. (a) Rex r'. Crisp and others, 1 Bar. But qu. and see Rex v. Crisp and others, ne, and Alders, 282.
Barne. and Alders, 286, 287. . (p) By the 4. Geo. 3. c. 56, it was (r) Id. Ibid. prohibited to be vended without a (2) Rex v. Gotley, East. T. 1805. staipped label.
Russ. and Ry. 84.