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 several 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 of disobeying the clause. (a) CHAPTER THE FOURTEENTH. 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 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) as the law does not allow any private person to forego a prosecution on any account. (d) But there must be knowledge merely without 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 (as amended), that if any 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. (ƒ) Compounding felony. 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 is said to have been anciently punishable as felony; but is now punished only with fine and imprisonment, unless it is 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 of one's own goods which have been stolen, is no offence at all unless some favour 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. (j) Where an indictment for compounding felony alleged that after taking a sum of money for compounding, the defendant desisted from prosecuting, and it appeared that he did prosecute to conviction, the defendant was held entitled to be acquitted. (k) But where the indictment did not allege that the defendant desisted from prosecution it was held that this was good. (kk) The offence of compounding a larceny may be committed by a person other than the owner of the stolen goods or a material witness for the prosecution. So where the owner of the goods said he would leave the matter in the hands of another, and that other compounded the felony, it was held that the latter could be convicted. (1) 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, involves a forfeiture of fifty pounds by sec. 102 of the same Act. (n) Compounding misdemeanors.1 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; (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 satisfied. (p) 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. (q) So where a defendant was prosecuted by parish officers, and con victed for disobeying an order of maintenance, and sentence was deferred by the Court with a view to an arrangement, and in the meantime 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. (r) It has been laid down, that the law will permit a compromise of all offences, though made the subject of a criminal prosecution, for which offences the injured party might recover damages in an action.' (s) But it seems that this proposition should be limited to the cases where the private rights of the injured party are made the subject of agreement, and where by the previous conviction of the defendant the rights of the public are also preserved inviolate.' (t) For 'when a verdict of guilty is taken, and the Court suspend judgment, and allow the questions between the parties to be referred, the matter is very different, for then it is only to enable the Court the better to see what sentence ought to be given.' (u) 'But if the offence is of a public nature, no agreement can be valid that is founded on the consideration of stifling a prosecution for it.' (v) A contract therefore to withdraw a prosecution for perjury, and to give no evidence against the accused, is founded on an illegal consideration and void. (w) So where an action was brought on an agreement, by which the defendants, in consideration that the plaintiff, being the prosecutor of an indictment against certain persons for an assault and riot, would not proceed further on such indictment, promised the plaintiff to pay him a certain sum of money, and in pursuance of that agreement the plaintiff did not proceed further with the indictment, and informed the Court, before which the indictment was pending, of the premises, and, by leave of the Court, forbore to give evidence upon the indictment, and thereupon there was an acquittal; it was held that the agreement was illegal; for the offence was not confined to the personal injury, but was accompanied with a riot, which was a matter of public concern, and therefore not legally the subject of compromise. (x) In one case an indictment for a nuisance by making an embankment in the Thames, whereby the navigation was obstructed, was referred; (y) but the question of the legality of the reference was not raised. But where an indictment had been preferred against the defendant for nonrepair of a highway, which it was alleged he ought to have repaired ratione tenure; the prosecutor and defendant before the trial agreed to leave the question of liability to repair to reference; the arbitrator was to make an award on the evidence adduced before him; a verdict (r) Kirk v. Strickwood, 4 B. & Ad. 421. (s) Keir v. Leeman, 6 Q. B. 308. (t) Keir v. Leeman, 9 Q. B. 371, in error, affirming the judgment of the Queen's Bench. Windhill L. B. v. Vint, 45 Ch. D. 351, as to indictment for obstructing a highway. (u) R. v. Hardey, 14 Q. B. 529. R. v. Roxburgh, 12 Cox, C. C. 8, an indictment for a common assault. was to be entered according to the result of the award, and the arbitrator awarded that the defendant was guilty of the non-repair alleged in the indictment: it was held that the reference was illegal, as the question of liability to repair was of public concern. (z) An indictment for conspiracy cannot be compromised. (a) Where, however, indictments for perjury and conspiracy were removed into the Queen's Bench, and on the indictment for perjury coming on for trial, it was agreed, under the strong advice of counsel, that no evidence should be tendered, a verdict of not guilty taken on both indictments, and that all matters in difference between the prosecutor and defendant should be referred to a barrister; it was held that it would have been illegal to refer the indictment for perjury, and, as it should seem, the indictment for conspiracy; but that the indictments were not referred, and the verdicts of acquittal must at all events stand; and that there was nothing illegal in referring all matters in difference and at the same time consenting to verdicts of acquittal, unless there was a corrupt agreement to stifle the prosecution, which did not appear to be the fact. (b) It is clear that the consent of the Court cannot make an agreement to abandon a prosecution valid, if it would otherwise be unlawful. (c) Cmpounding informations on penal statutes. The compounding of informations on penal statutes is a misdemeanor against public justice, by contributing to make the laws odious to the people. (d) 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 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, (e) 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. (f) But it does not apply to penalties which are only recoverable by information. before justices. (g) 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, (h) for the purpose of obtaining money to stay the prosecution (not being such a threat as a (2) R. v. Blakemore, 14 Q. B. 544. (a) R. v. Hardey, supra. See R. v. Bardell, 5 A. & E. 619, where such an indictment was referred, but the lawfulness of the reference was not raised. (b) R. v. Hardey, supra. (c) Keir v. Leeman, supra. (d) 4 Blac. Com. 136. (e) This part of the punishment is abolished by the 56 Geo. 3, c. 138. But sec. 2 empowers the Court to pass such sentence of fine or imprisonment, or of both, in lieu of (ƒ) 4 Blac. Com. 136, note (3). AMERICAN NOTE. 1 It seems doubtful whether this statute would be acted upon in America. In some States there are statutes providing for the discharge of the wrongdoer on his making full reparation. Bishop i. ss. 712, 713 (3). |