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or engagement before mentioned in that Act; and persons causing any such oath or engagement to be administered or taken, though not present at the administering or taking thereof, shall be deemed principal offenders, and tried as such; although the person or persons who actually administered such oath or engagement, if any such there shall be, shall not have been tried or convicted. A similar enactment is contained in the 52 Geo. 3, c. 104, s. 4, with respect to persons aiding and assisting at the administering of any oath or engagement mentioned in that Act, and persons causing any such oath or engagement to be administered, though not present at the administering thereof such persons are to be deemed principal offenders, and, on conviction, to be adjudged guilty of felony, and to suffer death without benefit of clergy,(7) although the person or persons who actually administered the oath or engagement, if any such there shall be, shall not have been tried or convicted.

Both the statutes provide that it shall not be necessary to set forth in the indictment "the words of the oath or engagement;" and that "it shall be sufficient to set forth the purport of such oath or engagement, or some material part thereof."(m) Upon an indictment on the 37 Geo. 3, the fourth count charged, that the defendants administered to J. H. an oath "intended to bind him not to inform or give evidence against any member of a certain society formed to disturb the public peace for any act or expression of his or theirs, done or made collectively or individually, in or out of that or other similar societies, in pursuance of the spirit of that obligation;" and the eighth count stated the oath to be "intended to bind the said J. H. not to give evidence against any associate in certain associations and societies of persons formed for seditious purposes :" and the other counts stated the objects of the oath administered, and the objects of the society, differently and more generally adapted to several prohibitory parts of the statute. Upon the objection taken at the trial to the generality of the statements in the indictment, Lord Avanley was of opinion that the Act intended that it should be sufficient to allege and prove what the object of the oath and engagement was, without stating any words at all; and that the offence being described in the words of the Act, was well described: but that supposing the objection made to the generality of the counts was good, which he did not admit, yet that in the fourth and eighth a material part of the oath or engagement was set forth according to the clause of the Act. The point was submitted to the judges, who, without giving any opinion against the other counts, all agreed that at any rate the fourth and eight counts were good.(n)

*If the indictment state the oath to have been not to inform or give evi

dence against any person belonging to a confederacy or persons associated [*190

together to do a certain illegal act," it is sufficient without going on to state what the illegal act was. For the offence is not the illegal act, but the administration of the oath, which preceded it, and all that the rules of pleading require is that the offence that is the oath itself-should be sufficiently set out.(o) Where an indictment charged that the prisoner administered "a certain oath" to J. Penny, and fifteen others, naming them, and it was proved that the sixteen were all sworn in the same manner, on the same book, two or three at a time, at the same meeting, it was held that this was sufficient, for it was the same act of administering. Or it might be taken to be a complete transaction with respect to each person sworn; and the charge would be substantiated by evidence of the prisoner having sworn any one of the party, in the same way as a man may be convicted of larceny on proof of stealing one out of several articles named in an indictment.(p)

Where the witness, swearing to the words spoken by way of oath by the prisoner when he administered it, said that he held a paper in his hand at the time when he administered the oath, from which paper it was supposed that he read the

(7) Abolished by the 1 Vict. c. 91, s. 1, see note (h), ante, p. 188; for the present punishAs to accessories after the fact, see ante, p. 69.

ment.

(m) 37 Geo. 3, c. 123, s. 4; 52 Geo. 3, c. 104, s. 5.

(n) Rex v. Moors, 6 East 419, note (b).

(o) Rex v. Brodribb, 6C. & P. 571 (25 E. C. L. R.), Holroyd, J.

(p) Ibid.

words; it was held, that parol evidence of what he in fact said was sufficient, without giving him notice to produce such paper.(g) And where the oath on the face of it did not purport to be for a seditious purpose, though it was objected that no parol evidence could be given to show that the "brotherhood" mentioned it in was of a seditious nature, it was held that declarations made at the time by the party administering such oath were admissible to prove the real object of it (r)

Both the 37 Geo. 3 and 52 Geo. 3, provide that offences committed on the high seas, or out of the realm, or in England, shall be tried before any court of oyer and terminer and gaol delivery for any county in England in such manner and form as if such offence had been therein committed; and that offences committed in Scotland shall be tried either before the Justiciary Court at Edinburgh, or in any of the circuit courts in that part of the United Kingdom.(s)

It is also provided by both these statutes that any person who shall be tried and acquitted or convicted of any offence against the Acts, shall not be liable to be prosecuted again for the same offence or facts as high treason, or misprision of high treason. And further, that nothing in the Acts contained shall be construed to extend to prevent any person guilty of any offence against the Acts, and who shall not be tried for the same as an offence against the Acts, from being tried for the same, as high treason, or misprision of high treason, in such manner as if those Acts had not been made.(t)

*By the 57 Geo. 3, c. 19, s. 25, it is enacted that all societies or clubs, *191] the members whereof shall be required or admitted to take any oath or engagement, which shall be an unlawful engagement within the 37 Geo. 3, c. 123, or the 52 Geo. 3, c. 104, or to take any oath not required or authorized 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 39 Geo. 3, c. 79(u) and may be prosecuted, proceeded against, and punished, according to the provisions of the said Act. (v)

The mutual promises and engagements of societies are lawful, unless they are clearly prohibited by law; and it lies on the party who alleges that such promises and engagements are illegal to prove that they are so. Where, therefore, it appeared from the rules of a lodge of Odd Fellows that the members entered into an engagement to abide by the rules, and one of the rules was to keep the secrets of the society; but all secrets had been abolished; and the rules had not been enrolled: Erle, J., held that there was nothing to show that the engagement was illegal; the subjects of this realm might enter into any engagement they pleased, unless prohibited by law, and the party objecting to the legality of an engagement must show that it is illegal.(w)

With respect to the administering or taking unlawful oaths in Ireland, the 50 Geo. 3, c. 102, enacts, "that any person or person who shall administer, or cause to be administered, tender, or cause to be tendered, or be present aiding and assisting at the administering or tendering, or who shall by threats, promises, persua sions, or other undue means, cause, procure, or induce to be taken by any person or persons in Ireland, upon a book or otherise, any oath or engagement importing to bind the person or persons taking the same to be of any association, brotherhood,

(q) Rex v. Moors and Others, 6 East 421.

(8) 37 Geo. 3, c. 123, s. 6; 52 Geo. 3, c. 104, s. 7. (1) 37 Geo. 3, c. 123, s. 7; 52 Geo. 3, c. 104, s. 8.

(r) Id. Ibid.

(u) See this Act, post, 391.

(v) This statute is not to extend to Freemasons' lodges, nor to any declaration approved by two justices, nor to Quakers' meetings, nor to meetings or societies for charitable purposes, sec. 26. By sec. 39, the Act is not to extend to Ireland.

(w) Reg. v. Rouse, 4 Cox C. C. 7.

committee, society, or confederacy whatsoever, in reality formed, or to be formed, for seditious purposes, 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 *committee or other body of men not [*192 lawfully constituted, or of any captain, leader, or commander (not appointed by or under the authority of his Majesty, his heir and successors), or to assemble at the desire and command of any such captain, leader, commander, or committee, 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 administered 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 thereof, shall be adjudged guilty of felony, and be transported(x) for life; and every person who shall take, in Ireland, any such oath or engagement, importing so to bind him or her as aforesaid, and being by due course of law thereof convicted, shall be adjudged guilty of felony, and be transported(x) for seven years."(y)

This statute further enacts, that a person compelled by inevitable necessity to commit any of these offences, shall be excused and justified upon proof of such necessity, if within ten days (not being prevented by actual force or sickness, by then within seven days after such actual force or sickness shall cease to disable him), he disclose to a justice of peace, by information cn oath, the whole of what he knows touching his compulsion.(z) Persons aiding at 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 (a) And the statute also provides, that it shall be sufficient to set forth in the indictment the purport or object of such oath or engagement. (b)

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.

The provisions of the 4 Geo. 4, c. 87, were extended by the 2 & 3 Vict. c. 74, to certain other societies therein described, and these Acts are continued by the 25 & 26 Vict. c. 32, for five years from the 7th of July, 1862, and until the end of the then next session of Parliament.

The 5 & 6 Will. 4, c. 62, in many cases substituted a declaration in lieu of an oath; and by sec. 13, reciting that a practice has prevailed of administering and receiving oaths and affidavits *voluntarily taken and made in matters not [*193 the subject of any judicial inquiry, nor in anywise pending or at issue before the justice of the peace or other person by whom such oaths or affidavits have been administered or received,' and that doubts have arisen whether or not such proceeding is illegal; for the more effectual suppression of such practice and removing such doubts,' enacts that, after the 1st of October, 1835, 'it shall not be lawful for any justice of the peace or other person to administer, or cause or allow

(z) Penal servitude by the 20 & 21 Vict. c. 3, s. 2, ante, p. 4. () And not less than three years by the same Act, ante, p. 4.

(2) Sec. 2. And the section provides also, that no person shall be excluded from the defence of inevitable necessity, who shall be tried for an offence within ten days from the commission of it, or of seven days from the time when the force or sickness shall cease. (b) Sec. 4.

(4) Sec. 3.

to be administered, or to receive, or cause or allow to be received, any oath, affidavit, or solemn affirmation touching any matter or thing whereof such justice or other person hath not jurisdiction or cognizance by some statute in force at the time being. Provided always that nothing herein contained shall be construed to extend to any oath, affidavit, or solemn affirmation before any justice in any matter or thing touching the preservation of the peace, or the prosecution, trial, or punishment of offences, or touching any proceedings before either of the Houses of Parliament, or any committee thereof respectively, nor to any oath, affidavit, or affirmation which may be required by the laws of any foreign country to give validity to instruments in writing designed to be used in such foreign countries respectively." It has been doubted whether an indictment can be sustained for administering an oath contrary to this clause, and, supposing it can, such an indictment is bad unless it set out so much at least of the oath as may enable the Court to see that the oath is one which is prohibited by the clause. An indictment alleged in seve ral counts that the defendant administered a voluntary oath touching certain matters whereof he had not jurisdiction by any statute, and some counts negatived the oaths, &c., in the proviso; and the Court of Queen's Bench held that the indictment was bad; for the having or not having jurisdiction is a matter of law depending upon the facts, upon which the Court is to form an opinion. There ought, therefore, to be a distinct allegation of the subject matter of the oath, showing affirmatively that it was out of the jurisdiction. But the Court expressed no opinion whether the indictment would lie; Lord Denman, C. J., however, seems to have thought that it would be necessary to show that the disobedience was wilful and in the nature of a contempt, in order to convict a person disobeying the clause. (a)

*194]

*CHAPTER THE THIRTEENTH.

OF MISPRISION OF FELONY, AND OF COMPOUNDING OFFENCES.

By misprision of felony, is generally understood the concealment of felony, or a procuring such concealment, whether it be felony by the common law, or by statute.(a) Thus, silently to observe the commission of a felony without using any endeavor 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) as the law does not allow any private person to forego a prosecution on any account. (d) But there must be knowledge merely without any assent; for if a man assent to a felony, he will be either principal or accessory.(e) 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 conceal, 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 favor 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 imprisonment 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

(a) Reg. v. Nott, 4 Q. B. 768 (45 E. C. L. R.). The majority of the Court thought that it was not necessary to set out the whole oath; but the 37 Geo. 3, c. 123, and 52 Geo. 3, c. 104, contain express provisions to that effect (ante, p. 189), and, therefore, it would certainly be prudent to set out the whole oath, if practicable, in some counts. (a) 1 Hawk. P. C. c. 59, s. 2; 3 Inst. 139.

(b) 1 Hale 374, 375; 1 Hawk. P. C. c. 59, s. 2, note (1).

(c) 3 Inst. 140.

(d) Reg. v. Daly, 9 C. & P. 342 (38 E. C. L. R.), Gurney, B.

(e) 4 Blac. Com. 121.

But see i Hale 616, cited ante, p. 57.

pleasure.(ƒ) 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 offence of compounding of felony, mentioned in the books by the 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. (g) It [*195 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.(h) But the barely taking again one's own goods which have been stolen, is no offence at all unless some favor be shown to the thief.(i)

Compounding a mere charge of felony is illegal; as where a person, having charged a man before a magistrate with embezzlement, agrees not to prosecute the charge in consideration of a bill of exchange being accepted by another person (k)1 Where an indictment for compounding felony alleged that the defendant desisted from prosecuting, and it appeared that he did prosecute to conviction, the defendant was held entitled to be acquitted.(7)

It is made felony by the 24 & 25 Vict. c. 96, s. 101,(m) to take any reward for helping a person to any property stolen or obtained by false pretences; and to advertise a reward for the return of things stolen, incurs a forfeiture of fifty pounds by sec. 102 of the same Act.

An agreement to put an end to a prosecution for a misdemeanor has been considered to be illegal, as impeding the course of public justice ;(n) 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 satisfied.(0) 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 defendaut 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.(p)

So where a defendant was prosecuted by parish officers, and convicted for disobeying an order of maintenance, and sentence was deferred by the Court with a

(f) 4 Blac. Com. 121, where it is said, “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 curiâ, non in

camera."

(g) 1 Hawk. P. C. c. 59, s. 5; 4 Blac. Com. 133. (h) 1 Hawk. P. C. c. 59, s. 6; 2 Hale 400.

(i) 1 Hawk. P. C. c. 59, s. 7.

(k) Fivaz v. Nicholls, 2 C. B. 501 (52 E. C. L. R.). (1) Rex v. Stone, 4 C. & P. 379 (19 E. C. L. R.), Bosanquet, J. Quære, whether, if the indictment had omitted this averment it would have been good. The offence seems to be the letting the thief go without prosecution.

(m) See vol. ii. p. 574.

(n) Collins v. Blantern, 2 Wils. 341; Edgecombe v. Rodd, 5 East 294.

(0) 4 Blac. Com. 363, 364.

(p) Beeley v. Wingfield, 11 East 46. See the observations on this case in 6 Q. B. 320 (51 E. C. L. R.); and see also Baker v. Townshend, 7 Taunt. 422. But in general any contract or security made in consideration of dropping a criminal prosecution, suppressing evidence, soliciting a pardon, or compounding any public offence, without leave of the Court, is invalid: 1 Chit Crim. Law 4.

1 See the case of Comm. v. Pease, 16 Mass. Rep. p. 91, where it is settled, that accepting a note signed by the party guilty of larceny, as a consideration for not prosecuting, is sufficient to constitute a compounding of a felony.

VOL. 1.-11

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