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nefit of clergy. Which law extends only to proceedings in the courts themselves: but by statute 4 W. and M. c. 4, to personate any other person, as bail, before any judge of assize or other commissioner authorized to take bail in the country, is also felony. For no man's property would be safe, if records might be suppressed or falsified, or persons' names be falsely usurped in courts, or before their public officers.

prisoners to be

2. To prevent abuses by the extensive power, which the 2. compelling law is obliged to repose in gaolers, it is enacted by statute come approvers; 14 Edw. III. c. 10, that if any gaoler by too great duress of imprisonment makes any prisoner, that he hath in ward, *become an approver or an appellor against his will; that [*129] is, as we shall see hereafter, to accuse and turn evidence against some other person; it is felony in the gaoler. For, as Sir Edward Coke observes (a), it is not lawful to induce or excite any man even to a just accusation of another; much less to do it by duress of imprisonment; and least of all by a gaoler, to whom the prisoner is committed for safe custody.

the execution of

3. A third offence against public justice is obstructing the 3. obstructing execution of lawful process. This is at all times an offence legal process ; 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 accessary in felony, and a principal in high treason (b) (3). Formerly one of the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places, where indigent persons assembled together to shelter themselves from justice,

(a) 3 Inst. 91.

(b) 2 Hawk. P. C. 121.

(3) By 9 Geo. IV. c. 31, § 25, it is enacted, that where any person shall be charged with, and convicted of, as a misdemeanor, any assault upon any person with intent to resist or prevent the lawful apprehension or detainer of the party so assaulting, or of any other person, for any offence for which he or they may be liable by law to be appreVOL. IV.

hended or detained; the court may
sentence the offender to be imprisoned,
with or without hard labour, for any
term not exceeding two years, and may
also fine the offender, and require him
to find sureties for keeping the peace.
See 1 & 2 Geo. IV. c. 88, § 2;
3 Geo. IV. c. 114; 1 Burn's J., 230,
et seq.

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especially in London and Southwark, under the pretext of
their having been ancient palaces of the crown, or the like (c):
all of which sanctuaries for iniquity are now demolished, and
the opposing of any process therein is made highly penal, by
the statutes 8 and 9 Will. III. c. 27, 9 Geo. I. c. 28, and 11
Geo. I. c. 22, which enact, that persons opposing the exe-
cution of any process in such pretended privileged places
within the bills of mortality, or abusing any officer in his
endeavours to execute his duty therein, so that he receives
bodily hurt, shall be guilty of felony, and transported for
seven years and persons in disguise, joining in or abetting
any riot or tumult on such account, or opposing any pro-
cess, or assaulting and abusing any officer executing or for
having executed the same, shall be felons without benefit of
clergy.

4. An escape of a person arrested upon criminal process,
by eluding the vigilance of his keepers before he is put in
hold, is also an offence against public justice, and the party
himself *is punishable by fine or imprisonment (d). But the
officer permitting such escape, either by negligence or con-
nivance, is much more culpable than the prisoner; the na-
tural desire of liberty pleading strongly in his behalf, though
he ought in strictness of law to submit himself quietly to cus-
tody, till cleared by the due course of justice. Officers
therefore who, after arrest, negligently permit a felon to es-
cape, are also punishable by fine (e); but voluntary escapes,
by consent and connivance of the officer, are a much more
serious offence (4): for it is generally agreed that such es-
capes 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 com-
mitted to gaol, or only under a bare arrest (ƒ). But the

(c) Such as White-Friers, and its environs; the Savoy; and the Mint in Southwark.

(d) 2 Hawk. P. C. 122.

(e) 1 Hal. P. C. 600.
(f) 1 Hal. P. C. 590; 2 Hawk.
P. C. 134.

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(4) If the officer, after an arrest, suffer the party to go at large upon promising to appear and find sureties, he cannot make any subsequent arrest,

by virtue of the same warrant, should
the party make default; 2 Hawk. P. C.
130.

officer cannot be thus punished, 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 treason or felony, and the person arrested and escaping might turn out to be an innocent man. But, before the conviction of the principal party, the officer thus neglecting his duty may be fined and imprisoned for a misdemesnor (g) (5).

the guilt of mensurate with

was

5. Breach of prison by the offender himself, when com- 5. breach of pri mitted for any cause, was felony at the common law (h): or which is com even conspiring to break it (i). But this severity is mitigated the offence for by the statute de frangentibus prisonam, 1 Edw. II. which which the party enacts, that no person shall have judgment of life or member for breaking prison, unless committed for some capital offence. So that to break prison and escape, when lawfully committed for any treason or felony, remains still felony as at the common law (6); and to break prison, whether it be the county gaol, the stocks, or other usual place of security, when lawfully confined upon any other inferior charge, is still punishable as a high misdemesnor by fine and impri- [*131] sonment. For the statute, which ordains that such offence shall be no longer capital, never meant to exempt it entirely from every degree of punishment (j) (7).

(g) 1 Hal. P. C. 588, 9; 2 Hawk.

P. C. 134, 5.

(h) 1 Hal. P. C. 607.

(i) Bract. 1. 3, c. 9.
(j) 2 Hawk. P. C. 128.

(5) Persons aiding the escape of prisoners of war are guilty of felony and subject to transportation; see 52 Geo. III. c. 156. The offence is not complete if such prisoner is acting in concert with those under whose charge he is, merely to detect the defendant, and has no intention to escape; Rex v. Martin, R. & R. C. C. 196. To bail a person not bailable by law, is a negligent escape; Plowd. 476. To charge an officer with an escape, there must have been an actual and justifiable arrest and imprisonment; and the imprisonment must have been for some criminal matter, or the escape is not the

subject of indictment; see 1 Russell on
Crimes, 367, et seq. As to escapes of
persons under sentence of death by
courts martial, see 37 Geo. III. c. 140,
§ 6; 6 Geo. IV. c. 5, § 13; 6 Geo.
IV. c. 6, § 14, post (9).

(6) It seems the prisoner should ac-
tually effect an escape, or the breach
of prison would not be construed a fe-
lony; 2 Hawk. c. 18, § 12.

(7) An actual breaking is the gist of this offence, and must be stated in the indictment. It must also appear that the party was lawfully in prison, and for a crime involving judgment of life or member; it is not enough to

6. rescue, the

guilt of which is

commensurate

with that of the

6. Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is generally the same party rescued; offence in the stranger so rescuing, as it would have been in a gaoler to have voluntarily permitted an escape. A rescue therefore of one apprehended for felony, is felony; for treason, treason; and for a misdemesnor, a misdemesnor also (8). But here likewise, as upon voluntary escapes, the principal must first be attainted or receive judgment before the rescuer can be punished: and for the same reason; because perhaps in fact it may turn out that there has been no offence committed (k) (9). By statute 11 Geo. II. c. 26, and 24 Geo. (k) 1 Hal. P. C. 607; Fost. 344

allege that he “ feloniously broke pri-
son;" 2 Inst. 591; 1 Russell, 381. If
lawfully committed, a party breaking
prison is within the statute, although
he may be innocent; as, if committed
by a magistrate upon strong suspicion ;
2 Inst. 590; 1 Hale, P. C. 610; 1
Russell, 378. To constitute a feloni-
ous prison breach, the party must be
committed for a crime which is capital
at the time of the breaking; 1 Russell,
379; Cole's case, Plowd. Comm. 401.
A constructive breaking is not suffi-
cient; therefore, if a person goes out
of prison without obstruction, as by a
door being left open, it is only a mis-
demeanor; 1 Hale, P. C. 611. An
actual intent to break is not necessary.
The statute extends to a prison in law,
as well as to a prison in fact; 2 Inst.

589.

"Prison breach or rescue is a common law felony, if the prisoner breaking prison, or rescued, is a convicted felon, and it is punishable at common law by imprisonment, and under 19 Geo. III. c. 74, § 4, by three times whipping. Throwing down loose bricks at the top of a prison wall, placed there to impede escape and give alarm, is prison breach, though they were thrown down by accident;" Rex v. Haswell, R. & R. C. C. 458.

(8) The mere prevention of an arrest of a person who has been guilty of felony, is looked upon only as a misdemeanor; Hawk. b. 2, c. 21; 1 Chit. C. L. 62.

(9) By 1 & 2 Geo. IV. c. 88, (entitled an "Act to amend the Law of Rescue,") sect. 1, rescuing persons charged with felony, is punishable with seven years' transportation, or imprisonment for not less than one year, and not more than three years. And by §, assaulting any lawful officer, to prevent the apprehension or detainer of persons charged with felony, is punishable with two years' imprisonment in addition to other pains and penalties incurred, (vide also 5 Geo. IV. c. 84, § 22.) This section is repealed by 9 Geo. IV. c. 31, which, by section 25, provides a punishment for these offences; vide post, 217. An indictment for a rescue must shew that the person rescued was lawfully in custody, and set out the writ and warrant; 1 Stark. C. P. 156. An indictment for a rescue from a constable must state the charge made before the magistrate, the warrant and its delivery to the constable, and that the party was in custody under the warrant; Archb, C. P. 309; Rex v. Osmer, 5 East, 304.

By 9 Geo. IV. c. 4, § 13, (entitled the Mutiny Act,) persons under sentence of death by court martial, hav. ing obtained a conditional pardon, escaping out of custody, and all parties aiding such escape, are punishable as felons; see Rex v. Stanley, R. & R. C. C. 432.

II. c. 40, if five or more persons assemble to rescue any retailers of spirituous liquors, or to assault the informers against them, it is felony, and subject to transportation for seven years. By the statute 16 Geo. II. c. 31, to convey to any prisoner in custody for treason or felony any arms, instruments of escape, or disguise, without the knowledge of the gaoler, though no escape be attempted, or any way to assist such prisoner to attempt an escape, though no escape be actually made, is felony, and subjects the offender to transportation for seven years: or if the prisoner be in custody for petit larceny or other inferior offence, or charged with a. debt of 100%. it is then a misdemesnor, punishable with fine and imprisonment (10). And by several special statutes (1), to rescue, or attempt to rescue, any person committed for the offences enumerated in those acts, is felony without benefit of clergy; and to rescue, or attempt to rescue, the body of a felon executed for murder, is single felony, and subject to transportation for seven years. Nay, even if any person be charged with any of the offences against the Black Act, 9 Geo. I. c. 22, and, being required by order of the privy [*132] council to surrender himself, neglects so to do for forty days, both he and all that knowingly conceal, aid, abet, or succour him, are felons without benefit of clergy (11).

(1) 6 Geo. I. c. 23 (Transportation); 9 Geo. I. c. 22 (Black Act); 8 Geo. II. c. 20 (Destroying Turnpikes,

&c.); 19 Geo. II. c. 34, (Smuggling);
25 Geo. II. c. 37 (Murder); 27 Geo.
II. c. 15 (Black Act).

(10) On an indictment under this Act, the offence of delivering instruments of escape to a prisoner has been held to be complete, though the prisoner had been pardoned of the offence of which he was convicted, on condition of transportation; and a party may be convicted, though there is no evidence that he knew of what offence the prisoner had been convicted; Rex v. Shaw, R. & R. C. C. 526. This Act applies only to cases of attempt; Tilley's case, 2 Leach, 662, and a case where the commitment is on suspicion only, is not within it; Greenif's case, 1 Leach, 363. This act appears virtually to be repealed by 4 Geo. IV.

c. 64, § 43, which makes delivering
instruments of escape to any prisoner,
whether he actually escape or not, a
felony punishable by fourteen years'
transportation.

(11) Some of these Acts, as far as
they relate to the exclusion of benefit
of clergy, and to the form of punish-
ment, are altered and amended by 1 &
2 Geo. IV. c. 88, and 5 Geo. IV.
c. 84.

By 4 Geo. IV. c. 54, § 1, to rescue a party in custody for an offence against the Black Act, 9 Geo. I. c. 22, is punishable only with transportation, or imprisonment and hard labour.

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