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[III. Another species of offence, somewhat allied to the last,-is that of intimidation, or other improper demeanour, practised towards the parties or witnesses in a court of justice. As if a man assaults or threatens his adversary for suing him, a counsellor or attorney for being employed against him, a juror for his verdict, or a gaoler or other ministerial officer for keeping him in custody and properly executing his duty (n); or if a man endeavours to dissuade a witness from giving evidence, or advises a prisoner to stand mute; these are all impediments to justice, are high misprisions and contempts of the king's courts, and are punishable with fine and imprisonment. Antiently, indeed, it was held, that if one of the grand jury disclosed to any person indicted the evidence that appeared against him, he was thereby made an accessory to the offence, if felony, and in treason, a principal; and at this day it is agreed that he is guilty of a high misprision, and liable to be fined and imprisoned (o).
So as regards the jurors, the offence may be committed, which is described in the books as embracery; that is, attempting to influence them corruptly to one side, by promises, persuasions, entreaties, money, entertainments and the like.] The punishment for this misdemeanor in the person embracing and the juror embraced is, by the common law,--and also by statute 6 Geo. IV.c. 50, s. 61,fine and imprisonment (p).
IV. A fourth offence of the same general character is, obstructing a lawful arrest, or, generally, the execution
(n) 3 Inst. 141, 142. Blackstone 27 Ass. Pl. 44, s. 4, fol. 138; Hawk. remarks (vol. iv. p. 126), that these P. C. b. 1, c. 21, s. 15. offences, when they proceeded fur- (p) The false verdict of jurors, ther than bare threats, were punished whether occasioned by embracery in the Gothic constitutions with
or not, was antiently considered as exile and forfeiture of goods; and criminal; and therefore severely be cites Stiernh. de Jure Goth. 1. 3, punished by means of the writ of c. 2.
attaint. (See 3 Bl. Com. pp. 388, (0) Sec Barr, on Statutes, 212; 402; 6 Goo. 4, c. 50, s. 60.)
of lawful process. [This is, at all times, an offence of a very high and presumptuous nature : but more particularly so, when it is an obstruction of an arrest upon criminal process: and it hath been holden that the party opposing such arrest, becomes thereby particeps criminis ; that is, an accessory in felony, and a principal in treason (9). Formerly one of the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places, (especially in London and Southwark,) where indigent persons assembled together to shelter themselves from justice,under the pretext of their having been antient palaces of the Crown, or the like (r).] But all of these sanctuaries for iniquity are now demolished, and the opposing of any process therein is made highly penal by the statutes 8 & 9 Will. III. c. 27 ; 9 Geo. I. c. 28; 11 Geo. I. c. 22; and 1 Geo. IV. c. 116 : which enact, that persons opposing the execution of any process in such pretended privileged places within the bills of mortality, or abusing any officer in his endeavour to execute his duty therein, so that he receives bodily hurt; and all persons aiding and abetting such opposition; shall be guilty of felony. The principal provisions, however, as regard the offence now under consideration, are contained in the 24 & 25 Vict. c. 100, ss. 18, 38, which we had occasion to notice in reference to offences against the person ; and to that part of the work the reader is accordingly referred (s).
V. [Escape and Prison-breach. An escape of a person, lawfully arrested for crime, by gaining his liberty before he is delivered by course of law, is also an offence against public justice (t). And the officer per
(9) Hawk. P. C. b. 2, c. 17, s. i.
(r) Such as White Friars and its environs ; the Savoy; and the Mint, in Southwark. Some further information on the subject of the
law of sanctuary will be found in a later part of this work.
(s) Vide sup. pp. 78, 96.
(t) Hawk. P. C. b. 2, c. 17, s. 3; c. 19, ss. 2, 3.
[mitting such escape, either by negligence or connivance, is much more culpable than the prisoner,—the natural desire of liberty pleading strongly in his behalf, though he ought in strictness of law to submit himself quietly to custody, till cleared by the due course of justice. Officers, therefore, who after arrest negligently permit a felon to escape, are punishable by fine (u); but voluntary escapes, by consent and connivance of the officer, are a much more serious offence : for it is generally agreed that such
escapes amount to the same kind of offence, and are punishable in the same degree, as the offence of which the prisoner is guilty, and for which he is in custody; whether treason, felony or trespass. And this, whether he were actually committed to gaol, or only under a bare arrest (x). But the officer cannot be thus punished as for felony, till the original delinquent hath actually received judgment; or been attainted upon verdict, confession, or outlawry, of the crime for which he was so committed or arrested; otherwise it might happen that the officer might be punished for felony, and the person arrested and escaping might turn out to be an innocent man(y).] But before the conviction of the principal party, the officer thus neglecting his duty may by fined and imprisoned for a misdemeanor, and may be kept to hard labour besides (z). We may add here, that an escape permitted by a private person, is an offence of the same description as one permitted by an officer. For if any person has another in his lawful custody, as for crime committed, and suffers him to escape before he is delivered over to the proper authority, such person is liable to the same punishment as already stated in the case of a gaoler or other officer (a).
(u) i Hale, P. C. p. 600.
(2) Ib. p. 590; Hawk. P. C. b. 2, c. 19, s. 22.
(y) It is said, however, he is punishable, in the case of treason, where the party escaping has been
actually guilty of treason, whether
(3) 14 & 15 Vict. c. 100, s. 29.
As for the prisoner himself, breach of prison (or even conspiring to break it), was felony at the common law for whatever cause he was committed (6). But this severity was mitigated by the statute De frangentibus prisonam, (1 Edw. II. st. 2,) which enacted, that the offence should be deemed felonious only when judgment for felony would have ensued in case of his conviction (c). But to break prison when committed for any treason or felony, remains felony as at the common law notwithstanding the above statute (d); and it is now made punishable with penal servitude for not more than seven nor less than five years; or by imprisonment, (with or without hard labour, solitary confinement and whipping,) not exceeding two years (e). And to break prison, when lawfully confined, in any usual place of security, upon any other inferior charge, seems punishable as a high misdemeanor by fine and imprisonment (f). And for a convict to be at large (without lawful cause) before the expiration of the term for which he has been sentenced to be kept in penal servitude, is punishable by penal servitude for life, and previous imprisonment, with or without hard labour, for any term not exceeding four years; or else by imprisonment, with or without hard labour, not exceeding two years (9).
(6) Bract. 1. 3, tr. 2, c. 9; 1 Hale, P. C. 607. See R. v. Haswell, R. & R. C. C. R. 458.
(c) 1 Hale, P. C. 609.
(d) It seems, however, that if the prisoner break prison but do not actually escape, it is no felony. (Hawk. P. C. b. 2, c. 18, s. 11.)
(e) 7 & 8 Geo. 4, c. 28, ss. 8, 9; 7 Will, 4 & 1 Vict. c. 90, s. 5; 14 & 15 Vict, c. 100, s. 29; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47.
(f) Hawk. P. C.b. 2, c. 18, s. 20.
(9) See 5 Geo. 4, c. 84, s. 22; 4 & 5 Will. 4, c. 67; 9 & 10 Vict. c. 24; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3. See also as to prison breach and escapes from Millbank, 6 & 7 Vict. c. 26, s. 22; from Parkhurst, 1 & 2 Vict. c. 82; ss. 12, 13; from Pentonville, 5 & 6 Vict. c. 29, s. 24. As to the apprehension of persons escaping from England to Scotland, and rice versa, see 13 Geo. 3, c. 31. As to escapes to and from Ireland, see 44 Geo. 3, c. 92, s. 3.
VI. Rescue and aiding prisoners to escape. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; and a rescue or an aiding a prisoner to escape, in the case of one charged with felony, is felony in the rescuer; with treason, treason; and with a misdemeanor, a misdemeanor (h). But it is said that the principal felon must first receive judgment before the rescuer can be punished as for felony: though even before, the rescuer may be prosecuted, at the discretion of the Crown, as for a misprision (i).
These offences have now, however, been specially provided against by several statutes. For by 25 Geo. II. c. 37, s. 9, if any person shall rescue, or attempt to rescue, out of prison a person committed for, or found guilty of, murder; or a person convicted of murder, while going to, or during, execution (j),—he shall be deemed guilty of felony, and he may be sentenced to penal servitude for life, or not less than five years; or to imprisonment, with or without hard labour and solitary confinement, for not more than two years (k). By 52 Geo. III. c. 156, every person assisting a prisoner of war to escape shall be guilty of felony; and he may be sentenced to the same punishments as just mentioned (1). By 1 & 2 Geo. IV. c. 88, s. 1, the rescuer of any person charged with felony, is declared guilty of felony; and he may be sentenced to penal servitude for not more than seven nor less than five years; or to imprisonment, with or without hard labour,
(h) Hawk. P. C. b. 2, c. 21. It is a misdemeanor in the rescuer, though the person rescued be not confined on any criminal charge. (R. v. Allan, 1 Car. & M. 295.)
(i) 1 Hale, P. C. 598, 607; Fost. 344; Hawk. P. C. b. 2, c. 21, s. 8.
(j) By the same statute it is also a felonious act to rescue or attempt to rescue the body of a murderer
(k) 25 Geo. 2, c. 37, s. 9; 7 Will. 4 & 1 Vict. c. 91; 9 & 10 Vict. c. 24; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3; 27 & 28 Vict. c. 47.
(1) 52 Geo. 3, c. 156; 9 & 10 Vict. c. 24; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3. As to this offence, see R. 1. Martin, R. & R. C. C. R. 196.