law for whatever cause he was committed(a). [But this severity is mitigated by the statute De frangentibus prisonam, (1 Edw. II. st. 2,) which enacts, that no person shall have judgment of life or member for breaking prison,] unless imprisoned for some cause which required such judgment in case of his conviction (b). [But to break prison and escape (c), when lawfully committed for any treason or felony, remains still felony as at the common law:] and is now punishable with penal servitude for not more than seven or less than three years; or by imprisonment, (with or without hard labour, solitary confinement and whipping,) not exceeding two years (d). [And to break prison, whether it be a county gaol or other usual place of security, when lawfully confined upon any other inferior charge, is still punishable as a high misdemeanor by fine and imprisonment: for the statute which ordains that such offence shall be no longer capital, never meant to exempt it entirely from every degree of punishment (e).] And to be at large (without lawful cause) before the expiration of the term for which an offender 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 (ƒ). VI. Rescue and aiding prisoners to escape. (a) 1 Hale, P. C. 607. (b) Ib. p. 609. (c) It seems that if the prisoner break prison but do not actually escape, it is no felony. Hawk. P. C. b. 2, c. 18, s. 11. (d) 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. (e) Hawk. P. C. b. 2, c. 18, s. 20. (f) 5 Geo. 4, c. 84, s. 22; 4 & 5 [Rescue Will. 4, c. 67; 9 & 10 Vict. c. 24; [is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is generally the same offence in the stranger so rescuing, as it would have been in a gaoler to have voluntarily permitted an escape (g). A rescue therefore of one apprehended for felony, is felony; for treason, treason; and for a misdemeanor, a misdemeanor also (h).] But [here likewise, -as for voluntary escapes, the principal must first be attainted or receive judgment, before the rescuer can be punished] as for felony: [and for the same reason; because perhaps in fact it may turn out that there has been no offence committed (i).] Yet even before the attainder of the principal, the rescuer may be prosecuted at the discretion of the Crown, as for a misprision (k). Moreover, aiding a prisoner to escape in whatever way, is an obstruction to the course of justice, and a felony at common law if the prisoner was in custody on a charge of felony; and, in other cases, a misdemeanor (1). The offences of rescue and of aiding prisoners to escape, 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 murder, or found guilty of murder; or rescue, or attempt to rescue, any person convicted of murder, while going to execution or during execution (m), -the person so offending shall be deemed guilty of felony, and he may be sentenced to penal servitude for life, or not less than three years; or to imprisonment, with or without hard labour and solitary confinement, for not more than two years (n). (g) Hawk. P. C. b. 2, c. 21. (h) It is a misdemeanor in the rescuer, though the person rescued be confined for debt only, and not on any criminal charge. (R. v. Allan, 1 Car. & M. 295.) (i) 1 Hale, P. C. 598, 607; Fost. (k) Hawk. P. C. b. 2, c. 21, s. 8. 439. See R. v. Allan, Car. & M. 295. (m) By the same Act it is also felonious to rescue or attempt to rescue the body of a murderer after execution. (n) 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. 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 (0). 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 or less than three years; or to imprisonment, with or without hard labour, for not less than one or exceeding three years (p). By 4 Geo. IV. c. 64, (an Act for consolidating and amending the laws relative to the regulations of certain gaols and houses of correction in England and Wales,) if any person shall by any means whatever aid and assist any prisoner to escape, or any prisoner attempting to escape, from any prison,-such offender, whether an escape be actually made or not, shall be guilty of felony; and he may be sentenced to penal servitude for not more than fourteen years or less than three years, or to imprisonment as above specified (q). And by 5 Geo. IV. c. 84, whoever shall rescue, or attempt to rescue, any offender under sentence or order of penal servitude (r), from the custody of any person charged with his removal; or shall convey to such offender any disguise, or instrument for effecting escape, or arms; shall be guilty of felony: and he may be sentenced to penal servitude for life, and previous imprisonment, with or without hard labour, not exceeding four years, or to imprisonment, with or without hard labour, not exceeding two years (s). (0) 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. v. Martin, R. & R. C. C. R. 196. (p) 1 & 2 Geo. 4, c. 88, s. 1; 14 & 15 Vict. c. 100, s. 29; 20 & 21 Vict. c. 3. (9) 4 Geo. 4, c. 64, s. 43; 9 & 10 Vict. c. 24; 16 & 17 Vict. c. 99; 20 & 21 Vict. c. 3. (See Holloway v. The Queen, 17 Q. B. 317.) There is also a statute of 16 Geo. 2, c. 31, relative to the offence of aiding prisoners to escape; but it is repealed by 4 Geo. 4, c. 64, s. 1, so far as relates to the escape of any prisoner from any prison to which the latter Act extends. (r) The expression used in 5 Geo. 4, c. 84, is "transportation or banishment;" but see 20 & 21 Vict. c. 3, s. 6. (s) 5 Geo. 4, c. 84, s. 22; 4 & 5 VII. Another offence of this class, is [that of taking a reward under pretence of helping the owner to his stolen goods. This was a contrivance carried to a great length of villany in the reign of George the first, the confederates of the felons thus disposing of stolen goods, at a cheap rate, to the owners themselves, and thereby stifling all further inquiry. The famous Jonathan Wild had under him a well-disciplined corps of thieves, who brought in all their spoils to him; and he kept a sort of public office, for restoring them to the owners at half price. To prevent which audacious practice,-to the ruin, and in defiance, of public justice,--it was enacted by 4 Geo. I. c. 11, that whosoever shall take a reward under the pretence of helping any one to stolen goods, shall suffer as the felon who stole them; unless he causes such principal felon to be apprehended and brought to trial, and also gives evidence against him. Wild, still continuing in his old practice, was, upon this statute, at last convicted and executed.] These provisions, indeed, have been since repealed by 7 & 8 Geo, IV. c. 27, s. 1; but they have been re-enacted, with such improvements as are calculated for the more effectual prevention of the offence. For by 24 & 25 Vict. c. 96, s. 101 (r), it is provided, that whosoever shall corruptly take any money or reward, directly or indirectly, under pretence or upon account of helping any person to any chattel, money, valuable security, or other property whatsoever, which shall by any felony or misdemeanor have been stolen, taken, obtained, extorted, embezzled or converted, or disposed of as in that Act mentioned,-shall (unless he shall have used all due diligence to cause the offender to be brought to trial for the same) be guilty of felony. And the punishment is penal servitude for seven or for not less than three years; or imprisonment, with or without hard labour and solitary confinement, for any term not exceeding two years; and, if a male under the age of eighteen Will. 4, c. 67; 9 & 10 Vict. c. 24; (r) Re-enacting 7 & 8 Geo. 4, c. 29, s. 58, repealed by 24 & 25 Vict. c. 95, as to the United Kingdom. years, to be whipped, if the court shall so think fit, in addition to such imprisonment (s). VIII. The offence of compounding of felony, is the taking of a reward for forbearing to prosecute an offence of that description; and one kind of it, (known in the books by the more antient appellation of theft-bote,) is where a party robbed [takes his goods again, or other amends upon agreement not to prosecute. This was formerly held to make a man accessory, but is now punished only with fine and imprisonment (t). This perversion of justice, in the old Gothic constitutions, was liable to the most severe and infamous punishment. Indeed the Salic law-" latroni eum similem habuit, qui furtum celare vellet, et occulte sine judice compositionem ejus admittere" (u).] And by statute 24 & 25 Vict. c. 96, s. 102 (x), even publicly to advertise a reward for the return of any property stolen or lost, and in such advertisement to use any words purporting that no questions will be asked; or purporting that a reward will be paid for any lost or stolen property, without seizing or making inquiry after the person producing the same; or promising, or offering in such advertisement, to return to any pawnbroker or other person the money he may have advanced upon or paid for such property, or any other sum of money or reward for the return of the same;-subjects the advertiser, printer, and publisher to a forfeiture of fifty pounds each. IX. Besides the last described offence, the mere concealment of a felony is by our law criminal; and is described, in the books, as misprision of felony. This is the concealment of a felony,-short of treason, the misprision of which has been before considered (y),—committed by (s) The court may also, if it see fit, bind over the offender to keep the peace. (24 & 25 Vict. c. 96, s. 117.) (1) Hawk. P. C. b, 1, c. 59, s. 6. (u) Stiern. de Jure Goth. 1. 3, c. 5. (x) Re-enacting 7 & 8 Geo. 4, c. 29, s. 59, repealed as to the United Kingdom by 24 & 25 Vict. c. 95. (y) Vide sup. p. 248. |