§ 498. As to the several States, where the common law prevails, if the question arises under a constitution providing, that treason against the State shall consist only, &c., the effect of the negative only must be to exclude all common law treasons. But, in such States, it would seem to follow from principles already laid down,2 that the accessory after the fact to the treason would be a felon. Yet his felony would still remain accessorial to the treason; and it would also retain the peculiar quality of admitting the procurer of it to sustain the same legal relation to it as the doer. This question, however, both as concerns the States and the United States, is one on which we have no light of authority; only there has been manifested an undefined repugnance to admitting, into this country, the entire English doctrine of accessorial treason.4

6

§ 499. Thirdly; as to Misdemeanor. Those who would be accessories after the fact in felony and treason are not such in misdemeanor. The act of these persons, when cognizable at all by the criminal law, is itself a distinct misdemeanor. There are some things, under this head, too small for the law to notice; as shown on our diagram, where the lines E M and FL are cut, at M and L, by NH. Therefore no indictment lies for entertaining a vagrant knowingly; or for harboring a person against whom there is a warrant in a bastardy case, knowing him to be guilty. But where, exactly, the boundary line between the indictable and the unindict

1 Ante, § 89, 90.

2 Ante, § 447.

Ante, § 477, 492.

United States v. Burr, 4 Cranch, 470.

52 Hawk. P. C. Curw. Ed. p. 438, § 4; 1 Hale P. C. 684; 2 East P. C. 973; Commonwealth v. Macomber, 3 Mass. 254; Commonwealth v. Barlow, 4 Mass. 439.

able lies may not be easily said; for the authorities are few and indistinct.

§ 500. Indeed if we were to look for direct adjudications we might doubt, whether the assisting of a person, guilty of any mere misdemeanor, to elude justice, is cognizable criminally. But the courts have held, that a constable is answerable thus for suffering a street-walker, delivered to his custody by one of the night watch, to escape. And we have seen,2 that, generally, escapes and prison breaches are punishable, when the offence charged or committed is a misdemeanor, the same as when it is a felony. But what is conclusive of the question as one of principle is, that, as we shall discuss in the next chapter, the compounding of the higher misdemeanors is indictable; and compounding is an act of precisely the same nature as harboring, only it lies one degree further removed from the act of the principal offender. If therefore the agreement not to prosecute one guilty of a high misdemeanor is indictable, much more must it be indictable actively to assist him to elude justice. There is a reason for this branch of the law having been practically neglected in England; namely, that the statutes taking away clergy from specific felonies did not usually extend to accessories after the fact; therefore, if such accessories were convicted, they could not be punished to any effect, so that it became common to overlook their offence altogether; and this being so in felony, the same thing would naturally follow in misdemeanor, else he who had harbored a small offender would be worse dealt with than he who had harbored a great one.

1 Rex v. Bootie, 2 Bur. 864, 2 Keny. 575.

Ante, § 364, 366, 491.

And see Rex v. Stokes, 5 Car. & P. 148; Reg. v. Allan, Car. & M. 295. * Ante, § 489.

5 4 Bl. Com. 39.

CHAPTER XXXVII.

COMPOUNDING.

§ 501. COMPOUNDING crime is agreeing with the criminal not to prosecute him. It is not accessorial to the principal offence, after the manner explained in the last chapter as concerns felony and treason,1 but after the manner as concerns misdemeanor; that is, the criminal may be proceeded against without reference to the prosecution or conviction of the principal offender. A species of compounding was anciently called 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." 994 In very early times, such an act was held to make a man an accessory after the fact, contrary to the law of the present day.5

§ 502. The language of the books is general, that the taking of money to forbear or stifle a criminal prosecution of any nature, whether for felony or misdemeanor, or of course treason, is an indictable offence. Yet various teachings of

4

4 Bl. Com. 133; 2 East P. C. 743, 790; 1 Hawk. P. C. Curw. Ed. p. 74, § 6.

5

Anonymous, Sir F. Moore, 8; 1 Hawk. P. C. Curw. Ed. p. 74, § 7.

* Jones v. Rice, 18 Pick. 440; Commonwealth v. Pease, 16 Mass. 91; Plumer v. Smith, 5 N. H. 553; Rex v. Stone, 4 Car. & P. 379; Collins v. Blantern, 2 Wils. 341, 349; Johnson v. Ogilby, 3 P. Wms. 277, commented on, 6 Q. B. 316; Train & Heard Preced. 136.

the criminal common law, already considered, clearly show, that there are misdemeanors so small, or haying so much the nature of private injuries,1 as to leave the compounding of them not indictable. This principle is represented on our Diagram of Crime, at § 441, where the region of compounding extends but part way into the region of misdemeanor. Yet we have almost no express authority on the point.2

§ 503. The English statute of 18 Eliz. c. 5, provided, says Blackstone, "that, if any person, informing under pretence of any penal law, makes any composition without leave of the court, or takes any money or promise from the defendant to excuse him (which demonstrates his intent of commencing the prosecution to be merely to serve his own ends, and not for the public good), he shall forfeit 10l., shall stand two hours in the pillory, and shall be for ever disabled to sue on any popular or penal statute." This enactment is of a date sufficiently remote to be common law in this country; yet the reader who is familiar with our American criminal jurisprudence will notice, that it belongs to a class of English penal statutes which have not generally been received here. Still we have no decisions on this precise point; nor exactly how the English common law stands behind the statute: though we have, from an American judge, a dictum in general terms, that "the compounding of penalties is an offence at common law," 4. which, if true in any sense, must undoubtedly be restricted.5

A penal statute, imposing only a

1 Ante, § 320, 323, 340, 355, 444.

2 See Fallowes v. Taylor, 7 T. R. 475; Keir v. Leeman, 6 Q. B. 308. 34 Bl. Com. 136; 1 Russ. Crimes, Grea. Ed. 132; 1 Deac. Crim. Law, 269; Rex r. Crisp, 1 B. & Ald. 282; Rex v. Southerton, 6 East, 126; Rex v. Gotley, Russ. & Ry. 84, 1 Russ. Crimes, Grea. Ed. 133; Reg. v. Best, 2 Moody, 124, 9 Car. & P. 368.

Collamer, J., in Hinesburgh v. Sumner, 9 Vt. 23, 26. And see Edgcombe v. Rodd, 5 East, 294.

5 See Rex v. Crisp, 1 B. & Ald. 282; Rex v. Southerton, 6 East, 126; ante, § 502.

pecuniary penalty, must make it very heavy to cause the compounding of the offence under it, especially if not a thing malum in se, indictable according to correct principles of jurisprudence.

§ 504. But, in the language of Blackstone, "it is not uncommon, when a person is convicted of a misdemeanor which principally and more immediately affects some individual, as a battery, imprisonment, or the like, for the court to permit the defendant to speak with the prosecutor, before any judgment is pronounced; and, if the prosecutor declares himself satisfied, to inflict but a trivial punishment," a proceeding however, which this commentator considers dangerous, except in particular cases, before the higher courts. Yet the proceeding is well established by English authority. And, both in England and the United States, the court will take into its consideration, in determining the amount of punishment, that the offender has shown repentance, by doing all in his power to repair the wrong. Moreover, in this country, the legislation of some States has provided for the discharge of the wrongdoer altogether, in some few special offences mentioned, on his making full reparation to the injured person.*

§ 505. The reader should distinguish the questions dis

14 Bl. Com. 363.

2

1 Russ. Crimes, Grea. Ed. 132; Beeley v. Wingfield, 11 East, 46; Baker

v. Townsend, 7 Taunt. 422; Kirk v. Strickwood, 4 B. & Ad. 421.

See post, § 619 et seq.; Beeley v. Wingfield, 11 East, 46, 48; Rex v. Grey, 2 Keny. 307.

* See People v. Bishop, 5 Wend. 111; Price v. Van Doren, 2 Southard, 578. In Georgia the statute provides, that "it shall be lawful in all criminal offences against the person or property of the citizen, not punishable by fine and imprisonment, or by a more severe penalty, for the offender to settle the case with the prosecutor, upon the consent of the injured party being obtained, at any time before verdict." And the statutory offence of trading with a slave has been held not to be so exclusively "against the person or property of the citizen" as to come within the provision. Dunn v. The State, 15 Ga. 419.