COMPOUND A FELONY.

It’s rare for me to discover that I’ve been completely wrong about the meaning of a reasonably common word or phrase, so I was shell-shocked just now when I read this definition of the verb compound: “Law forbear from prosecuting (a felony) in exchange for money or other consideration.” But… but… I always had a vague idea that it meant ‘worsen, aggravate’! So I googled around and discovered that I was so far from being alone in my misapprehension that the definition I just quoted seems to be out of date. Bryan A. Garner, in A Dictionary of Modern Legal Usage, defines it as “to forbear from prosecuting for consideration, or to cause (a prosecutor) so to forbear” and says:

The word has been sloppily extended because “nonlawyers have misapprehended the meaning of to compound a felony …. [The word] is now widely abused to mean: to make worse, aggravate, multiply, increase.” Philip Howard, New Words for Old 19 (1977). Examples of this looseness of diction abound now even in legal writing. [...] It is not quite true, then, at least in the US, that “to write ‘he compounded the offence’ (when what is meant is that he did something to aggravate the offence) is to vex every lawyer who reads the sentence, and to provoke numbers of them to litigious correspondence in defence of their jargon.” Philip Howard, New Words for Old 20 (1977). Nevertheless, we may justifiably lament the fact that generations of young lawyers will not understand the phrase to compound a felony when they see it in the older lawbooks.

So I ask the Varied Reader: were you aware of this? And if you are a lawyer, or familiar with legal usage, how widespread is the new (“sloppy”) extension of meaning—sporadic, frequent, or general?

Comments

  1. Jan Freeman says:

    I thought just what you did. And my father, uncle, and two brothers were/are lawyers. Interesting!

  2. bobolinq says:

    I’m a lawyer and have never heard the traditional use attested to by Garner. Now, I haven’t really heard the more-intuitive (“sloppy”) use either, perhaps because because “aggravate” or “worsen” comes more readily to hand.
    But the “traditional” use should, I think, be considered archaic.

  3. I’m not a lawyer, so it’s no surprise that I hadn’t heard the “correct” definition. The phrase “for consideration,” in this context, strongly suggests bribery. I’m thinking that bribing the prosecutor would be another felony…hence “compound.” Maybe?

  4. marie-lucie says:

    forbear from prosecuting (a felony) in exchange for money or other consideration
    I too thought what others did, that it was a matter of a felon aggravating his crime, but this new/old definition means that it is the judge, not the felon, who “compounds the felony”, by “forbearing” to prosecute when he should, because he has been bribed. So the judge is guilty, not only of “abetting the felony” (eg by not reporting it), but even worse, of “compounding” it by becoming an accomplice in the crime through profiting from it. Alternately, with the modern meaning it seems that it is the felon who aggravates his crime (originally by bribing the judge, but later through less specific acts).

  5. mollymooly says:

    NED s.v. “Compound ”v”” has two divisions of senses; Division I “to put together, combine, construct, compose” has senses 1 to 5, some of which I was familiar with. Division II “To compose differences, settle claims” has senses 6 to 15, none of which I was familiar with (discounting “compound a felony”, which is subsidiary to sense 9, which I thought I was familiar with).
    I presume without having access to it that OED2/3 adds the “make worse” sense, but under which Division and with what dating? “Make worse” seems like a natural extension of “make bigger” when the object is a Bad Thing. But then again, “compound” doesn’t ever really mean “make bigger”, unless your understanding of medicine or finance brings “compound fracture” or “compound interest” into the frame.

  6. I’m pretty sure I first saw the older, legal sense footnoted in some Dickens story in school, being like everyone else already well acquainted with the newer, non-legal one.
    I think it’s related to compound in the sense of compromise, like Johnson on liking a work despite his prejudices: “Why, Madam, let us compound the matter; let us ascribe it to my candour, and his merit.”

  7. J.W. Brewer says:

    I was ignorant of the older meaning, although criminal law is not my specialty. From some quick poking around in old sources online (yay, google books) it’s not, contrary to m-l’s supposition, a bribing-the-judge concept — it’s an offense committed by the victim, as distinct from the felon who committed the underlying felony, when the victim is induced e.g. financially not to report the crime. For a particular type of compounding felony, google the wonderful old Saxon word (which was a new one to me until a few minutes ago) “theftbote.”

  8. But then again, “compound” doesn’t ever really mean “make bigger”, unless your understanding of medicine or finance brings “compound fracture” or “compound interest” into the frame.
    Per Wordnik AHD has
    5. transitive verb To add to; increase: High winds compounded the difficulties of the firefighters.
    By the way, “compound” came up here some months ago, I forget why. It was pointed out at the time that compound meaning group of buildings within an enclosure is a whole other word (of Malay origin) and that pound meaning an enclosure for animals is yet another.

  9. theftbote
    Here is Blackstone, for instance, who also notes that “no questions asked” used to subject the advertiser and the printer(!) to forfeiture.
    Now-a-days, compounding a felony is a misdemeanor(!), right?

  10. marie-lucie says:

    it’s not, contrary to m-l’s supposition, a bribing-the-judge concept — it’s an offense committed by the victim
    I see! I had not thought about that as a possibility. So the victim, instead of reporting the crime and trying to get the criminal prosecuted, agrees to get some form of compensation from the criminal instead of going to court. That is “settling out of court”, which is allowed in a civil case, but, I guess, not in a criminal case, which is what “compounding the felony” is about: the victim becomes an accomplice of the criminal. Is that the idea?

  11. It seems that in order to understand why the word “compound” appears in this context we need to turn our attention away from the other familiar uses or senses of the word and be aware of a range of uses which is represented by these two definitions from the AHD:
    2. transitive verb To settle (a debt, for example) by agreeing on an amount less than the claim; adjust.
    7. intransitive verb To come to terms; agree.

  12. I’m also a lawyer (though not a criminal lawyer), and I didn’t know the traditional meaning either. But I don’t think I’ve ever heard the phrase at all, to be honest.

  13. marie-lucie says:

    Ø: thank you. The meaning of “compound” here must be the definitely out of date:
    2. transitive verb To settle (a debt, for example) by agreeing on an amount less than the claim; adjust.
    So to “compound the felony” is not to aggravate it but to “settle” it out of court. “Settling a felony”?? No wonder contemporary speakers do not understand the phrase.

  14. As a matter of fact, Garner goes on (immediately after the passage I quoted in the post) to say:

    Notably, compound has also been used in civil cases to refer to a settlement (sense 2): “The parties compounded the case after completing discovery.” [...] Whereas compounding a felony is a criminal offense, compounding a civil case is perfectly proper. In civil contexts, however, settle is by far the more common term.

    As for compound, it’s been mentioned here and here, among (doubtless) other threads.

  15. John Emerson says:

    In early law (Biblical, Homeric Greek) felonies were routinely compounded. There were these pricelists where one abducted daughter was worth 100 sheep or whatever. The only alternative to compounding was an equal or larger offense against the offender or his clan, and this was preferred; accepting a buyoff was often (usually?) regarded as a sign of military weakness and left the clan susceptible to further attacks.
    It was a big step in Athens when Solon or Drakon ruled that murder, etc., were crimes against the state and could not be compounded.

  16. I did some unscientific searching around in Google Books to get a sense of usage outside legal books and encyclopedias / dictionaries explaining the legal meaning.
    It was indeed in Dickens, Hard Times, though my conviction that this is where I learned it has weakened.
    It’s in Kipling’s Soldier Stories.
    Some oddities:
    It is amongst several pages of discussion of English law intended to teach conversational French to English speakers (or maybe the other way around).
    In a metaphorical dialog of the Civil War from a children’s reader of the time. I knew nothing about Student and Schoolmate, but this site gives context.
    As for early uses in the non-legal sense (and this is even less systematic; the real answer is probably already known to historical lexicographers):
    A preface by Jack London.
    Some story from Harper’s.

  17. Public prosecution in England is a very new thing: there has only been a Director of Public Prosecutions since 1880, and his responsibilities were originally limited deciding whether to prosecute — as distinct from actually prosecuting — the most serious felonies. Before that, police officers did most of the prosecution, and before that, most of it was done by victims alone (or their next of kin, in the case of murder).
    The offense of compounding a felony was created in order to induce victims to prosecute. But since the usual punishments for felony were death and transportation beyond seas, and these were of no use to most victims (who then as now chiefly wanted restitution), compounding was routine and rarely itself prosecuted.

  18. Just adding my vote here as a lawyer–not criminal law,however–I never encountered the original sense until I read Blackstone–and have never encountered it outside of legal history texts.

  19. if this helps, my English-Russian Law Dictionary (1998) gives exactly the meaning you say is being lost in modern usage: приходить к компромиссному соглашению (to achieve a compromise agreement); to compound a crime – воздержаться, отказаться от возбуждения или осуществления уголовного преследования по корыстным или иным личным мотивам (to forbear from prosecuting or executing a persecution of (a felony) in exchange for money or other consideration…)
    I have worked with solicitors and barristers in Britain, but I can’t say definitely how ‘to compound’ is generally understood.

  20. I’m sure they’ll tell you, for a fee.

  21. Bill Walderman says:

    I’m a lawyer, but I’ve never practiced criminal law. I’ve never heard of the sense attributed to “compound” by Garner. He probably found it in Black’s Law Dictionary, a worthless piece of trash that assembles a large number of obscure and archaic irrelevancies. First-year law students are inveigled into buying it for an exorbitant price on the false pretense that it will somehow be useful to them, but in fact when a lawyer cites it in a brief, it’s a sure sign of desperation.
    Re Homeric justice: requiring a wrongdoer to pay a price for a wrong to the family of the wronged party (like Germanic wergeld) was a way of preserving peace in the community, and it was considered unacceptable for the family of the victim to refuse to accept a reasonable offer (Iliad IX). The alternative was for the wrongdoer to go into exile. Patroklos, for example, had accidentally killed someone as a boy and had to go into exile. (There was strict, i.e., no-fault, liability for killings.) He ended up at the court of Peleus, Akhilles’ father and was raised in Peleus’ family with Akhilles.

  22. Akhilles? What are you, nuts? What was wrong with Patroclus and Achilles? If it isn’t broken (and it isn’t), there’s absolutely no reason to retransliterate what I learnt at school, thanks.

  23. if this helps, my English-Russian Law Dictionary (1998) gives exactly the meaning you say is being lost in modern usage
    Bilingual dictionaries tend to be behind current usage, and in this case, evidently, far behind. Whoever relies on that dictionary will be confused when dealing with actual lawyers, as you can see from this thread.
    The offense of compounding a felony was created in order to induce victims to prosecute. But since the usual punishments for felony were death and transportation beyond seas, and these were of no use to most victims (who then as now chiefly wanted restitution), compounding was routine and rarely itself prosecuted.
    That is extremely sensible and enlightening; many thanks.
    And everybody, please get off AJP’s lawn!

  24. Yes, and another thing. Previously you claimed to be a second violinist in a Washington orchestra, and now all of a sudden you’re a lawyer. Some advice, young man: get your stories straight!

  25. John Emerson says:

    AJP, perhaps you should post your school’s style sheet somewhere so that we won’t accidentally offend you.

  26. The offense of compounding a felony.
    I don’t understand. I took it that compounding may or may not constitute an offence? Hence: compounder meaning mediator. Take, for example, a case when the victim, the bread-winner of a family on the one side, is killed in a road accident, and the perpetrator, also the bread-winner, on the other side, is not prosecuted or prosecuted in a different way. Or is it not like that?

  27. marie-lucie says:

    you claimed to be a second violinist in a Washington orchestra, and now all of a sudden you’re a lawyer.
    AJP, calm down and stop throwing rocks. The two are not incompatible: there are plenty of amateur orchestras where people who once were eager young musicians get to pursue their passion on a unpaid part-time basis while relying on more economically profitable pursuits to pay their bills and raise their families.

  28. Now, now, if you try taking AJP’s riffs seriously you’ll wind up in a head-butting contest with his goats, and you don’t want to wind up there.

  29. I don’t understand. I took it that compounding may or may not constitute an offence?
    Right: it’s an offense in a criminal case but not in a civil one.
    Take, for example, a case when the victim, the bread-winner of a family on the one side, is killed in a road accident, and the perpetrator, also the bread-winner, on the other side, is not prosecuted or prosecuted in a different way.
    If a criminal case was brought (for manslaughter) and then dropped because of an offer of payment, that would be criminal conduct, because it is not just the victim and the victim’s family that suffer from bad driving, it is all of society (hence the criminal case). If it is determined that it was a pure accident (not the result of misconduct on the driver’s part), then no criminal case will be brought and any “compounding”—what is now called “settling”—will be perfectly legal and normal.

  30. IANAL, but I believe one can be guilty of compounding a felony even if the original crime did not lead to a guilty verdict.

  31. Gangs of linguists roaming the site… I didn’t mean to offend anyone–least of all Dr Walderman, who I understand is a Washington jazz critic–except for John Emerson, I’m always happy to offend him.
    people who once were eager young musicians get to pursue their passion on a unpaid part-time basis while relying on more economically profitable pursuits to pay their bills
    It’s possible, but not inevitable. One of my friends is a musician in order to pay the family bills and subsidise his real interest, which is gardening.

  32. I want to see that style sheet, together with a list of AJP’s phobias.

  33. If it is determined that it was a pure accident (not the result of misconduct on the driver’s part),
    I see. Then, if it is determined that the death was caused by bad driving, but the sides (family of the victim and the driver) state in court that they want restitution (lump sum or support/pension type payments for a period of time) as a way of punishment, not, say, incarceration, and are ready to come to an arrangement to that end, the judge gives a suspended sentence or makes a similarly mitigated judgement in the criminal trial, in this case, would it not fit in with what the dictionary describes as compounding? or does it only refer to pre-trial stage when whether to prosecute or not is determined?

  34. Bill Walderman says:

    To set the record straight, I’m a lawyer; I’m an amateur violinist, but I don’t play in an orchestra; I don’t have a doctorate; and I’m not young.

  35. in this case, would it not fit in with what the dictionary describes as compounding?
    You’ll have to ask Bill or another lawyer/violinist; my expertise ran out somewhere before the last bend in the road.

  36. However, I too don’t play in an orchestra, don’t have a doctorate, and am not young.

  37. marie-lucie says:

    I was referring to no longer young amateur musicians who when young might have dreamed of a professional career in the field, but are now satisfying their musical cravings by joining other similar musicians in amateur orchestras (which can be very good).

  38. Compounding a felony, it turns out, continued to be a misdemeanor in England and Wales until the Criminal Law Act of 1967. Section 5(1), as amended, states that a person who has information which might lead to the prosecution of a relevant offense, and who agrees to accept consideration (other than court-ordered compensation for the offense) in exchange for not disclosing that information to the authorities, is liable to two years imprisonment. However, no one can be prosecuted for this offense without the permission of the Director of Public Prosecutions or a Crown prosecutor.

  39. What fun! No, I had no idea, I thought compounding a felony was simply making it worse.

  40. Criminal Law Act of 1967. Section 5(1)
    It looks like it’s similar here in Massachusetts. A single law (G.L. c. 268, § 36) covers compounding (not prosecuting) and concealing (not giving evidence).

  41. To set the record straight, I’m a lawyer; I’m an amateur violinist, but I don’t play in an orchestra; I don’t have a doctorate; and I’m not young.
    I’m sorry. I should have simply said you’re a jazz critic and Washington restauranteur and left it at that, but things get so easily out of hand at my age. Best of luck with the wine venture.

  42. Terry Collmann says:

    “… restauranteur … “
    Is that a critic who rants at restaurateurs/in restaurants?

  43. Terry Collmann says:

    Anyway, don’t let the peevologists find out about this, or like “beg the question” it’ll be something else for them to rant in restaurants about.

  44. Or compound the impropriety by adding insult to injury.

  45. According to the Guardian, it’s “restauranteur”. If I have to choose between a computer spelling checker and the Guardian I generally choose the Guardian, for one thing I prefer the obituaries in the Guardian.
    Do you realise your name is spelt wrong? It should be Collpersonn.

  46. The Guardian — what do they call it? The Iguanard ? — may be less than reliable on spelling. Later in the same piece I see:
    As a restaurateur [he is owner and chef at Le Manoir aux Quat' Saisons, Oxfordhsire], I’m always too tired to read …
    Somebody’s too tired to proofread.

  47. marie-lucie says:

    The French word is restaurateur.

  48. So is the English one, officially, but hardly anyone not professionally connected with the business says or writes it correctly—the pull of restaurant is too strong.

  49. Restaurant is pronounced with the final t sound in AmE, whereas I believe that in BrE they give the French pronunciation a good try (for whatever reason).

  50. The IguanaRD ?
    Ugandair. If they can spell it both ways, that’s good enough for me. And I second AJPs best wishes with the wine venture. What’s up with that age thing, though–you’re as young as you feel.

  51. marie-lucie says:

    you’re as young as you feel
    The trouble is, after a while different parts of your body seem to have different ages.

  52. in BrE they give the French pronunciation a good try
    They do it by substituting a G for the final T. This is common in Norwegian too for words of French origin, but they spell it that way too. For example the noun “present” is spelled presang in Norwegian. It always looks funny to me.

  53. Trond Engen says:

    Mostly from -n: ‘Betong’, ‘sateng’ and ‘fasong’. -nt is usually kept, but the pronunciation varies. Sometimes it’s -nt: ‘dokument’, ‘dosent’. Other times it’s -(a)ng: ‘traktement’, ‘restaurant’. But the Swedes write ‘restaurang’. The difference is mostly whether there’s a Latin source, but it’s somewhat blurry with doublets and analogical remodelings from related verbs.
    The English and Scandinavian nasals in French loans are a result of the loans being a century or two old. AIUI the loss of the final nasal consonant sound is pretty recent in standard French, and far from universal in the dialects (but I’ll leave the details to someone with actual knowledge, i.e. marie-lucie). When my (Parisian) French brother-in-law first heard Norwegian he was amused with the final -ng-sounds. He said they reminded him of his cousins from Marseille.

  54. But Oxfordshire is not spelled “Oxfordhsire”.

  55. marie-lucie says:

    the loss of the final nasal consonant sound is pretty recent in standard French
    If by recent you mean four or five hundred years, then that loss can be considered recent.
    When my (Parisian) French brother-in-law first heard Norwegian he was amused with the final -ng-sounds. He said they reminded him of his cousins from Marseille.
    Southern French is French learned a few generations ago by a population which originally spoke dialects of Occitan, a language in which there have never been nasal vowels. Depending on the regions, those varieties of French give different approximations of the “standard” nasal vowels. In Marseille and the general South-East area they pronounce a distinct “ng” if the nasal vowel would be at the end of a word (as in bon or maman, for instance).

  56. Trond Engen says:

    If by recent you mean four or five hundred years
    Thanks. I should have remembered that. But it means that the standard explanation of our “ng”s doesn’t hold water. Unless …
    Southern French is French learned a few generations ago
    So the “ng” sound was gone, but were the French nasals stronger those few generations ago, when speakers of Eastern Occitan, English and Scandinavian approximated them with the “ng” sound? They seem to be disappearing in some varieties these days, and one may imagine a steady decline. And, if so, could the different approximations in the regional varieties have to do with the time of the breakthrough of Standard French?

  57. Paul Ogden says:

    Bill Walderman writes that Garner “probably found it in Black’s Law Dictionary,” which he then proceeds to trash.
    For the record:
    a) Garner is the Editor in Chief of Black’s Law Dictionary.
    b) He defines compound as
    1. To put together, combine, or construct.
    2. To compute (interest) on the principal and the accrued interest.
    3. To settle (a matter, esp. a debt) by a money payment, in lieu of other liability; to adjust by agreement.
    4. To agree for consideration not to prosecute (a crime). * Compounding a felony in this way is itself a felony.
    5. Loosely, to aggravate; to make (a crime, etc.) more serious by further bad conduct.
    Garner continues:
    compounding a crime: The offense of either agreeing not to prosecute a crime that one knows has been committed or agreeing to hamper the prosecution. Also termed theft-bote.
    And then cites:
    “If a prosecuting attorney should accept money from another to induce the officer to prevent the finding of an indictment against that person this would be compounding a crime if the officer knew the other was guilty of an offense, but would be bribery whether he had such knowledge or not.” — Rollin M. Perkins & Ronald N. Boyce, Criminal Law 539 (3rd ed. 1982).

  58. marie-lucie says:

    were the French nasals stronger those few generations ago, when speakers of Eastern Occitan, English and Scandinavian approximated them with the “ng” sound
    There is no evidence for that. In historical terms, nasal vowels do not just come up by themselves but arise from a sequence of V + N (vowel followed by a nasal), where the nasality of the consonant is anticipated in the vowel, and the nasal consonant is no longer needed, as it were (as in English want and don’t where nobody actually pronounces a distinct [n[ sound but uses a nasal vowel for “an” and “on”, as in French). In Occitan, as in Spanish or Italian (all Latin descendants which preserved many words from Latin), the equivalents of the French nasals are V+N sequences, as in Fr chanter, Northern Oc chantar, most other Oc cantar, Sp cantar, It cantare as in Latin cantare ‘to sing’, where the “a” and “n” are sounded distinctly. Speakers of Occitan (like Sp or It speakers) have no problem recognizing their own word in the French equivalent, and their own an sequence in the French nasal vowel. The strong “ng” sound only occurs in some regions (eg Marseille) in words which do not have another consonant after the nasal vowel (as in the words pain or bon). It may have been more prominent in some places in earlier times, as there are older spellings such as Meung (a city on the Loire), Chassaing and d’Estaing which suggest an “ng” sound, long disappeared, in local French (not Occitan) dialects.
    As for the use of “ng” in the English or Scandinavian approximations, it does not have to go back to Old French or Occitan. A nasal vowel is a complex sound, and it is typical for complex sounds to be decomposed by speakers of languages which do not have those sounds. Applied to nasal vowels, it means that the foreign speaker hears both a vowel and a nasal, and splits those features into a more familiar sequence of a plain vowel followed by a nasal consonant, which in the absence of other consonants such as t/d (which would trigger “n”) or p/b (which would trigger “m”) is likely to be interpreted as “ng”. (Some phrasebooks represent the French nasal vowels as “ang, ong, ung” etc, and they are not taking their clues from historical accounts of the language).
    They seem to be disappearing in some varieties these days, and one may imagine a steady decline.
    I am not sure what you mean: the Southern regions with recent Occitan substrates, who only use V+N sequences? Speakers from those regions who avoid the N in order to sound more Northern, and thereby only produce a non-nasal vowel? People who have reduced the number of nasal vowels? (older textbooks identify 4 nasal vowels, which are very much alive in Canada, some French dialects have even more, but I see from recent textbooks that “Standard French” now has only 3 nasal vowels, having merged two of them).
    And, if so, could the different approximations in the regional varieties have to do with the time of the breakthrough of Standard French?
    Again I am not sure what you mean. There is a distinct difference between the Northern French varieties, which have always spoken forms of French, and which have some nasal vowels, and the current Southern French varieties which come from Standard French learned (especially in schools and now from TV, films, songs, etc) by communities who until recently (roughly up to WWI) spoke mostly Occitan. The lack of true nasal vowels, which is as general in the Southern varieties as it is in Occitan, is directly attributable to the Occitan substrate (and its own varieties).

  59. I always associate “compound a felony” with Sherlock Holmes. In “The Three Gables” he tells the scheming woman behind the mystery that he will compound a felony and let her off legal action if she pays for a nice trip for her victim, and in “The Mazarin Stone” he says he will compound a felony and let the villain off the hook in return for getting the diamond back.

  60. Excellent references, thanks!

  61. Of course! And Baring-Gould has a half-column footnote on it, referring to a paper by Judge Bigelow on Holmes’s misprision.
    I bet it was that and not Dickens. Memory is a funny thing.

  62. I think Conan Doyle has Holmes using it correctly. He forbears to prosecute the felony (well, as much as he can, considering he isn’t an official authority) in return for other considerations, although in neither case does he benefit from it himself.

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