(a) 2 Inst, 52.

591.

Summary, 94.
Cromp. 233.
Dalt. c. 124.

(b) 1 Lev. 230.

Con. C. Car. 558.

(c) 6 Mod. 73,

74.

(d) 1 Hale, 584.

595. 609.

2 Inst. 52. 591.

1 Roll. 220.

Sect. 18. SIXTHLY, Every such mittimus ought to have a lawful conclusion, (a) viz. That the party be safely kept till he be delivered by law, or by order of law, or by due course of law:Or that he be kept till further (b) order (which shall be intended of the order of law), or to the like effect. And if the party be committed only for want of bail, it seems (c) to be a good conclusion of the commitment, that he be kept till he find bail. But a commitment (d) till the person who makes it shall take further order, seems not to be good. And it seems, that the party committed by such, or any other irregular mittimus, may be bailed.

1 Lev. 230. Cro. Car. 579. con. 3 Bulst. 48, 49. 1 Roll. 410. Vide also 3 Keble, 531. 2 Ld. Ray. 851.978. 3 Salkeld, 91. Holt, 590. Carth. 152. 291. Salkeld, 48. 348. Ld. Raym. 99. 1453. 200. 213. 323. Comber. 390. 3 Com. Dig. 496. Strange, 1005. 917. 5 Modern, 308. 1 Bac. Abr. 382. Set. & Rem. 236. 2 Black. Rep. 805. Sayer, 44.-N. B. Commitments grounded upon acts of parliament must pursue the conclusions which the statutes prescribe:-And where a man is committed as a criminal, the conclusion must be, " until he be delivered by due course of law;" if he be committed for contumacy, it should be, "until he comply."

The second sect.

of 3 Jac. 1.

c. 10. which

was here re

As to the SIXTH POINT, viz. At whose charge offenders are to be sent to prison.

66

66

Sect. 19. It is enacted by 3 Jac. 1. c. 10. "That every person and persons, that shall be committed to the common or "usual gaol within any county or liberty within this realm, by any justice or justices of the peace, for any offence or misdemeanour, having means or ability thereunto, shall bear their "own reasonable charges, for so conveying or sending them to "the said gaol, and the charges also of such as shall be appointed to guard them to such gaol, and shall so guard them "thither. And if any such person or persons so to be commit❝ted, shall refuse at the time of their commitment and sending "to the said gaol, to defray the said charges, or shall not then pay or bear the same, then such justice or justices of the peace "shall and may, by writing under his or their hand and seal, or "hands and seals, give warrant to the constable or constables of "the hundred, or constable or tythingman of the tything or township where such person or persons shall be dwelling and "inhabit, or from whence he or they shall be committed, or "where he or they shall have any goods within the county or liberty, to sell such, and so much of the goods and chattels of "the said persons, as by the discretion of the said justice or jus"tices of the peace shall satisfy and pay the charges of such his or their conveying or sending to the said gaol; the appraise"ment to be made by four of the honest inhabitants of the parish or tything where such goods or chattels shall remain and be; "and the overplus of the money which shall be made thereof, to "be delivered to the party to whom the said goods shall be" long."

"

"

Sect. 20. And it is further enacted by 27 Geo. 2. c. 3. s. 1. of the above act "That when any person not having goods or money within the "county where he is taken, sufficient to bear the charges of him"self, and of those who convey him, is committed to gaol or the cited in the for- "house of correction by warrant from any justice of the peace, "then on application by any constable or other officer who conveyed him, any justice of the peace for the same county or place shall upon oath examine into and ascertain the reason

mer edition of

this work, is

repealed by 27 Geo. 2. c. 3. sect. 2.

"able

66

tice, 374.

"able expenses to be allowed such constable or other officer, "and shall forthwith, without fee or reward, by warrant under "his hand and seal, order the treasurer of the county or place to pay the same; which the said treasurer is hereby required to "do as soon as he receives such warrant; and any sum so paid Vide ante, 91. "shall be allowed in his accounts. Except in Middlesex, in 1 Burn's Jus"which county the expenses of the constable or other officer "occasioned by his conveying any person to gaol by virtue of a "warrant from a justice of the peace, shall (after such expenses "have been examined into upon oath, and allowed by such jus"tice, and for which no fee or reward shall be taken) be paid by "the overseer or overseers of the poor of the parish or place "where the person was apprehended."

As to the SEVENTH POINT, viz. To what court such commitments are to be certified.

66

Sect. 21. It is enacted by 3 Hen. 7. c. 3. "That every sheriff, "bailiff of franchise, and every other person, having authority or power of keeping of gaol, or of prisoners for felony, do certify "the names of every such prisoner in their keeping, and of every prisoner to them committed for any such cause, at the next "general gaol-delivery, in every county or franchise where any "such gaol shall be, there to be calendared before the justices "of the deliverance of the same gaol, whereby they may, as well "for the king as for the party, proceed to make deliverance of "such prisoners according to law; on pain to forfeit to the king "for every default there recorded, one hundred shillings."

As to the EIGHTH POINT, viz. By what means a person under such a commitment may be discharged.

114.

Sect. 22. It seems, that a person legally committed for a crime, Keilwood, 34. certainly appearing to have been done by some one or other, can- 3 Inst. 209, 210. not be lawfully discharged by any one but by the king, till he be Sum. 94, 95. acquitted on his trial, or have an ignoramus found by the grand 1 Hale, 583. jury, or none to prosecute him, on a proclamation for that purpose by the justices of gaol-delivery.

Sect. 23. But if a person be committed on a bare suspicion, without any appeal or indictment, for a supposed crime, where afterwards it appears that there was none, as for the murder of a person thought to be dead, who afterwards is found to be alive; it hath been holden, that he may be safely dismissed without any further proceeding, for that he who suffers him to escape is properly punishable only as an accessary to his supposed offence; and it is impossible that there should be an accessary where there can be no principal; and it would be hard to punish one for a contempt, in disregarding a commitment founded on a suspicion, appearing in so uncontested a manner to be groundless.

CHAP.

(a) Sum. 116. (b)S.P.C.31. Crompton, 38. 26 Assize, 47. F. Just. of Peace, 114, 231.

CHAP. XVII.

OF HINDERANCES IN BRINGING OFFENDERS
TO PUBLIC JUSTICE, &c.

HAVING shewn in what manner criminals are to be arrested, bailed, or committed, I am now to consider in what manner they and their assistants are punishable for an hinderance in bringing them to public justice.

And in order hereto I shall examine,

1. How far they are punishable for an offence of this kind before an arrest made.

2. How far after an arrest made.

As to the FIRST POINT, viz. How far persons and their assistants are punishable for hindering offenders being brought to public justice.

Sect. 1. It is (a) certainly an offence of a very high nature to oppose one who lawfully endeavours to arrest another for treason or felony. And some (b) have said, that the person who so opposes an arrest for treason, whereof he knows the party to have been guilty, is thereby guilty of the treason; and that he who so Con. Sum. 116. opposes an arrest for felony, is an accessary to the felony.

1 Hale, 606.

F. Cor. 333.

2 Inst. 590.

(c) Sum. 218, 219.

2 Inst. 183. Moor, 8.

S. P. C. 41.

S. P. C. 32. 9 H. 4. 1.

26 Assize, 47.

And

if it be a general (c) rule, that whoever, knowing a person to have committed any such crime, receives and comforts him, and endeavours to favour and aid him in the making his escape, thereby becomes a principal in the case of treason, and an accessary in the case of felony, though he use no force in giving such assistance to the offender, it seems strange that he who so far takes part with him as to fight in his defence from justice, should not be at least equally guilty. And therefore it seems reasonable to understand the books above cited, which seem to contradict this opinion, to intend no more than that it is not felony in the party himself, who is attacked in order to be arrested, to save himself from the arrest by such resistance.

Sect. 2. But if a person, knowing another to have been guilty of such a crime, barely receive him, and permit him to escape, without giving him any manner of advice, assistance, or enSum. 111. 271. Couragement in it, as by directing him how to do it in the safest manner, or furnishing him with money, provisions, or other necessaries, it seems he is guilty of a high misdemeanour only, but no capital offence.

Sect. 3. Also it is certain, that the party himself who flies from such an arrest, is not thereby guilty of a capital offence, but only liable to forfeit his goods, when such flight is found against him, in such manner as hath been already shewn, chapter 9. sect. 51. and shall be also more fully considered hereafter.

Sect.

Sect. 4. How far a vill, which suffers one who has been guilty of homicide to escape, is liable to be amerced, hath been already shewn, chap. 12. sect. 2, 3.

As to the SECOND POINT, viz. Offences of this kind, after an arrest made, may be considered in relation either, To the party under such an arrest: or, To others-And such offences by the party himself are either without or with force.

590.

Sect. 5. And FIRST, As to such offences by the party himself, Summary, 108. without force, which seem properly to come under the notion of 2 Inst. 589, escapes, there is little remarkable in the books; and therefore I shall content myself with taking notice, that as all persons are bound to submit themselves to the judgment of the law, and to be ready to be justified by it, whoever, in any case, refuses to undergo that imprisonment which the law thinks fit to put upon him, and frees himself from it by any artifice, before such time C. Car. 210. as he is delivered by due course of law, is guilty of a high contempt, punishable with fine and imprisonment.

And SECONDLY, If it be so great a crime for one not arrested to fly, in order to save himself from imprisonment for a capital offence, surely it must be at least as great a crime for one who is 1 Assize, 6. actually under the custody of the law for any such crime, by any

indirect means to free himself from it. And some (a) have (a) S. P. C. 31. holden, that such an escape amounts to felony: But this opinion seems to be over severe, and not to be maintained by the (b) (b) 2 Ed. 3. 2. books cited to prove it.

F. Cor. 149.

CHAP. XVIII.

OF BREAKING PRISON.

SUCH offences by the party himself, accompanied with force, come under the notion of prison-breaches; which I shall consider,

1. As they stand by the common law.

2. On the statute de frangentibus prisonam, which was made in the first year of King Edward the Second.

And FIRST, as to prison-breaches, as they stood by the common law.

c. 9.

(a) Bract. 1. 5. Britton f. 17.

Sect. 1. It seems to be the better opinion, (c) that all such of fences were felonies, if the party were lawfully in prison for any cause whatsoever, whether criminal or civil, and whether he were S. P. C. 30. 2 Inst. 589. actually in the walls of a prison, or only in the stocks, or in the Summary, 87. custody of any person who had lawfully arrested him; and it 1 Hale, 607. seems not to have been any way material whether the prison did belong to the king, or to the lord of a franchise; not only for 1 H.7.6. that every person who is under a lawful imprisonment may pro- B. Corone, 130. perly enough be called the king's prisoner, but also because it is C. Car. 210. allowed,

Cont.

S. P. C. 31. 33.

2 Inst. 589.

3. 4.

(b) Vide infra, allowed, (a) that whoever breaks from any such imprisonment, since the statute 1 Edw. 2. de frangentibus prisonam, is guilty of felony: From whence it seems clearly to follow, that he must have been in like manner guilty before that statute, the purport whereof is not to make any offences felonies which were not so before; but only to restrain some of those which were. And it

c. 9. s. 49.

(c) Vide supra, (b) seems also to be clear, that the confession of such offence before the coroner is not traversable by the common law; which is not altered as to this point by the statute.

2 Inst. 589. 1 Hale, 608.

Sect. 2. And now I am to consider these offences, as they stand by the said statute: For the better understanding whereof I shall first set down the words of the statute, and then endeavour to shew in what manner they are to be understood.

Sect. 3. And first, the words of the statute are as follow: "De prisonariis prisonam frangentibus dominus rex vult et præci"pit, quod nullus de cætero, qui prisonam fregerit, subeat judicium "vita vel membrorum pro fractione prisonæ tantum, nisi causa, pro qua captus et imprisonatus fuerit, tale judicium requirut, si "de illa secundùm legem et consuetudinem terræ fuisset convictus, licet temporibus præteritis aliter fieri consuevit.”

"

For the better understanding of the construction whereof, I shall consider the following points:

1. What shall be said to be a Prison, within the meaning of this statute.

2. How far the imprisonment ought to be well grounded.

3. What shall be said to be a breaking of prison.

4. For what crime the party ought to be imprisoned, to make the offence of breaking the prison felony within the intent of the

statute.

5. Whether the offence of breaking prison can ever amount to high treason.

6. At what time, and in what manner, the offender is to be proceeded against.

7. In what manner he is to be indicted.

8. In what manner those are to be punished for a breach of

prison, who are within the benefit of the statute.

As to the FIRST POINT, viz. What shall be said to be a pri(c) F. Cor. 158. son (c) within the meaning of the statute.

290.312. 48.

164. 250. 419. 22 Assize, 85. C. Car. 210. 2 Inst. 589, 590. Summ. 107. 2 Hale, 608. 610. Dyer, 99. Crom. 38, 39.

Sect. 4. It seems clear, that any place whatsoever wherein a person under a lawful arrest for a supposed crime is restrained of his liberty, whether in the stocks, or the street, or in the common gaol, or the house of a constable or private person, or the prison of the ordinary, is properly a prison within the statute; S. P. C. 30. for imprisonment (d) is nothing else but a restraint of liberty.

As