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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.

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.

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 (6) (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,

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(3) By 9 Geo. IV. c. 31, $ 25, it is hended or detained ; the court may enacted, that where any person shall sentence the offender to be imprisoned, be charged with, and convicted of, as with or without hard labour, for any a misdemeanor, any assault upon any

term not exceeding two years, and may person with intent to resist or prevent also fine the offender, and require him the lawful apprehension or detainer of to find sureties for keeping the peace. the party so assaulting, or of any other See 1 & 2 Geo. IV. c. 88, $ 2; person, for any offence for which he or 3 Geo. IV. c. 114; 1 Burn's J., 230, they may be liable by law to be appreVOL. IV.


et seq.

4. escapes which may be by the

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 execution 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 process, 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, prisoner or by by eluding the vigilance of his keepers before he is put in if by the latter

, hold, is also an offence against public justice, and the party fent or volun- himself *is punishable by fine or imprisonment (d). But the (*130] officer permitting such escape, either by negligence or con

nivance, 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 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 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 (s). 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.

(4) If the officer, after an arrest, by virtue of the same warrant, should suffer the party to go at large upon the party make default ; 2 Hawk. P. C. promising to appear and find suretics, 130. he cannot make any subsequent arrest,

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). 5. Breach of prison by the offender himself, when com- 3. breach of pri.

of 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) I 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 subject of indictment; see 1 Russell on prisoners of war are guilty of felony Crimes, 367, et seq. As to escapes of and subject to transportation ; see 52 persons under sentence of death by Geo. III. c. 156. The offence is not courts martial, see 37 Geo. III. c. 140, complete if such prisoner is acting in $ 6; 6 Geo. IV. c. 5, § 13; 6 Geo. concert with those under whose charge IV. c. 6, § 14, post (9). he is, merely to detect the defendant, (6) It seems the prisoner should acand has no intention to escape; Rex v. tually effect an escape, or the breach Martin, R. & R. C. C. 196. To bail of prison would not be construed a fea person not bailable by law, is a neglio lony; 2 Hawk. c. 18, $ 12. gent escape; Plowd. 476. To charge (7) An actual breaking is the gist an officer with an escape, there must of this offence, and must be stated in have been an actual and justifiable ar- the indictment. It must also appear rest and imprisonment; and the impri- that the party was lawfully in prison, sonment must have been for some cri- and for a crime involving judgment of minal matter, or the escape is not the life or member; it is not enough to

6. rescue, the guilt of which is

6. Rescue is the forcibly and knowingly freeing another commensurate 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) I Hal. P. C. 607; Fost. 344

titled an

allege that he “feloniously broke pri- (9) By 1 & 2 Geo. IV. c. 88, (enson;" 2 Inst. 591; 1 Russell, 381. If

“ Act to amend the Law of lawfully committed, a party breaking Rescue,") sect. 1, rescuing persons prison is within the statute, although charged with felony, is punishable with he may be innocent; as, if committed seven years' transportation, or impriby a magistrate upon strong suspicion ; sonment for not less than one year, 2 Inst. 590 ; 1 Hale, P. C. 610; 1 and not more than three years. And Russell, 378. To constitute a feloni- by $. , assaulting any lawful officer, to ous prison breach, the party must be prevent the apprehension or detainer committed for a crime which is capital of persons charged with felony, is puat the time of the breaking ; 1 Russell, nishable with two years' imprisonment 379; Cole's case, Plowd. Comm. 401. in addition to other pains and penalties A constructive breaking is not suffi- incurred, (virle also 5 Geo. IV. c. 84, cient ; therefore, if a person goes out $ 22.) This section is repealed by 9 of prison without obstruction, as by a Geo. IV. c. 31, which, by section 25, door being left open, it is only a mis- provides a punishment for these ofdemeanor ; 1 Hale, P. C. 6)). An fences ; vide post, 217. An indictment actual intent to break is not necessary. for a rescue must shew that the person The statute extends to a prison in law, rescued was lawfully in custody, and as well as to a prison in fact ; 2 Inst. set out the writ and warrant; 1 Stark. 589.

• Prison breach or rescue is a C. P. 156. An indictment for a res. common law felony, if the prisoner cue from a constable must state the breaking prison, or rescued, is a con- charge made before the magistrate, the victed felon, and it is punishable at warrant and its delivery to the constacommon law by imprisonment, and un- ble, and that the party was in custody der 19 Geo. III. c. 74, § 4, by three under the warrant ; Archb, C. P. 309; times whipping. Throwing down loose Rer v. Osmer, 5 East, 304. bricks at the top of a prison wall, placed By 9 Geo. IV. c. 4, § 13, (entitled there to impede escape and give alarm, the Mutiny Act) persons under senis prison breach, though they were tence of death by court martial, hav. thrown down by accident ;” Rex v. ing obtained a conditional pardon, esHuswell, R. & R, C. C. 458.

caping out of custody, and all parties (8) The mere prevention of an ar- aiding such escape, are punishable as rest of a person who has been guilty felons; see Rex v. Stanley, R. & R. of felony, is looked upon only as a mis- C. C. 432. demeanor; Hawk. b. 2, c. 21; 1 Chit. C. L. 62.

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 1001. 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 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 (Transporta- &c.); 19 Geo. II. c. 34, ( Smuggling); tion); 9 Geo. I. c. 22 (Black Act); 8 25 Geo. II. c. 37 (Murder); 27 Geo. Geo. II. c. 20 (Destroying Turnpikes, II. c. 15 (Black Act).

(10) On an indictment under this c. 64, § 43, which makes delivering Act, the offence of delivering instru- instruments of escape to any prisoner, ments of escape to a prisoner has been whether he actually escape or not, a held to be complete, though the pri- felony punishable by fourteen years' soner had been pardoned of the offence transportation. of which he was convicted, on condi- (11) Some of these Acts, as far as tion of transportation ; and a party they relate to the exclusion of benefit may be convicted, though there is no of clergy, and to the form of punishevidence that he knew of what offence ment, are altered and amended by 1 & the prisoner had been convicted; Per 2 Geo. IV. c. 88, and 5 Geo. IV. v. Shaw, R. & R. C. C. 526. This Act applies only to cases of attempt ; By 4 Geo. IV. c. 54, § 1, to rescue Tilley's case, 2 Leach, 662, and a case a party in custody for an offence where the commitment is on suspicion against the Black Act, 9 Geo. I. c. 22, only, is not within it; Greenif's case, is punishable only with transportation, 1 Leach, 363. This act appears vir- or imprisonment and hard labour. tually to be repealed by 4 Geo. IV.

c. 84.

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