Aiders to be

deemed principal offenders.

he knows touching his compulsion. (u) 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 Purport of the engagement shall not have been tried or convicted. (v) 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. (w)

oath sufficient

in the indict

ment.

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 4 Geo. 4, c. 87, is extended for five years, from the 1st of September, 1839, by the 2 & 3 Vict. c. 74, which also extends the provisions of the 4th of Geo. 4, to certain other societies therein described.

(u) 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.

(v) Sec. 3.
(w) Sec. 4.

CHAPTER THE THIRTEENTH.

OF MISPRISION OF FELONY, AND OF COMPOUNDING OFFENCES.

of felony.

By misprision of felony, is generally understood the concealment Of misprision of felony, or a procuring such concealment, whether it be felony by or concealment 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 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 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 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 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 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. (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

(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) 4 Blac. Com. 121.

(e) 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 curia, non in camera."

(f) 1 Hawk. P. C. c. 59, s. 5. 4 Blac.
Com. 133.

Of compounding felony

or theft-bote.

Compounding misde

meanors.

Of compounding informa. tions on penal

statutes.

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 shown to the thief. (h)

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. (hh)

It may be observed, that to take any reward for helping a person to stolen goods is made felony by 7 & 8 Geo. 4, c. 29, s. 58, and to advertise a reward for the return of things stolen, incurs a forfeiture of fifty pounds by the fifty-ninth section 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; (i) 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. (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)

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 view to an arrangement, and in the mean time he was committed to prison, and the officers demanded a sum considerably exceeding the amount of maintenance due, but part of which was to cover costs; the defendant paid part, and gave a note for the remainder, and was then brought into Court, fined 1s. and discharged; it did not appear whether the particulars of the arrangement were made known to the Court, but the defendant made no complaint when brought up; it was held that the compromise was legal. (m)

The compounding of informations on penal statutes is a misdemeanor against public justice, by contributing to make the laws odious to the people. (n) Therefore, in order to discourage malicious informers, and to provide that offences, when once discovered, shall be duly prosecuted, it was enacted by the 18 Eliz. c. 5, s. 4, that if any person, "by colour or pretence of process, or without process

(g) 1 Hawk. P. C. c. 59, s. 6. 2 Hale, 400.

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

(hh) Rex v. Stone, 4 C. & P. 379, Bosanquet, J. Qu. 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. (i) Collins v. Blantern, 2 Wils. 341-9. Edgecombe, v. Rodd and Others, 5 East, 294.

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

(1) Beeley v. Wingfield, 11 East, 46, and see also Baker ». 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.

(m) Kirk v. Strickwood, 4 B. & Ad. 421.

(n) 4 Blac. Com. 136.

upon colour or pretence of any matter of offence against any penal, law, make any composition, or take any money, reward, or promise of reward," without the order or consent of some Court, he shall stand two hours in the pillory, (o) 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 the whole penalty is given to the prosecutor. (p) 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. (q)

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, (r) 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. (s) 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. (t)

be no action or proceeding

for the penalty.

A party is liable to the punishment prescribed by this statute of A party comes 18 Eliz. c. 5, for taking the penalty imposed by a penal statute, within the 18 though there is no action or proceeding for the penalty. The though there 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: no process had been sued out, and 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

(0) This part of the punishment cannot now, by 56 Geo. 3, c. 128, be inflicted. But section 2 of that statute empowers the Court to pass such sentence of fine or imprisonment, or of both, in lieu of the sentence of pillory, as to the Court shall seem proper and see the 7 Wm. 4, & 1 Vict. c. 23.

The 18 Eliz. was made perpetual by the 27 Eliz. c. 10. (p) 4 Blac. Com. 136 note (3).

A person may be convicted under 18 Eliz. c. 5, of taking money, though

no offence liable to a penalty has been committed by the person from

whom the mo

ney is taken.

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. (u)

A person may be convicted under the 18 Eliz. c. 5, s. 4, for taking money upon colour or pretence of a party having committed an offence, though in fact no offence liable to a penalty has been committed by the person from whom the money is taken. One Peverill who kept a retail beer-shop, but had no license to sell spirits, having given a woman a glass of gin, as a new-year's gift, the prisoner threatened to prosecute him for selling gin without a license, and afterwards obtained money from Peverill, as a reward for forbearing to prosecute him for the supposed offence of selling gin without a license. No information was actually preferred, nor any process sued out. It was objected that, as no offence had been actually committed by Peverill, and as no process had been issued, or information laid against him, the case was not within the statute. The jury having found the prisoner guilty, upon a case reserved, the judges thought that the words "upon colour or pretence of any matter of offence" extended to a case where no penalty had been incurred, and that the conviction was right. (v)

(u) Rex v. Gotley, East. T. 1805. Russ. & Ry, 84.

(v) Reg. v. Best, 2 Moo. C. C. R. 124; S. C. 9 C. & P. 368.