caetero qui prisonam fregerit subeat Judicium vitae vel membrorum pro fractione prisonae nisi causa pro qua capt ' imprisonat ' fuit tale Judicium requirit And herein these things are inquirable 1. Who may Arrest or Imprison 2. What a Prison 3. What breaking a Prison 4. What cause that requires a Judgment to make this Felony 1. Who may Arrest or Imprison 1. Why a private person 2. Why a publick Officer 1. Arrests by a private person and that of two kinds 1. Either commanded or enjoyned by Law 2. Or permitted or allowed by Law Arrests commanded by Law 1. Persons present at the committing of a Felony must use their endeavours to apprehend the Offender otherwise they are to be fined and imprisoned Hence it is that if a Murder be committed in the day in a Town not inclosed the Town shall be amerced and if in a walled Town be it night or day the Town shall be amerced if Offender escape Stat. 3 H. 7.1 So it seems if one strike another dangerously though death hath not yet hapned Upon Hue and Cry well levied every man may and must arrest the Offender upon whom it is levied by Stat. Winchester and want of pursuit thereof is punishable by Fine and Imprisonment The manner of levying Hue and Cry where a Felony is committed or a dangerous stroke given is this Resort to the Constable declare the Fact describe the Party and the way he is gone who thereupon is to raise the Town be it by night or by day and to give the next Constable warning and he the rest I aid an Officer that has a lawful warrant in fait or in Law to arrest a Malefactor And in these cases it seems it is in the power of such private person to break the house if upon demand he cannot be admitted to take the Offender 4 Ins 177. Videtur sur felony fait just suspicion ascun puit arrester 3. N'est punishable licet Constable suffer luy d'escape A permissive Arrest per private person If a Felony in fact be committed and a private person suspect another upon probable cause he may be arrested though in truth innocent And these probable causes Hue and Cry levied Company with the Offender Goods in his Custody Living vagrantly Common Fame But upon such suspicion he cannot break open the door of a house but may enter the door being open The person arrested by either of these means must be brought to the Constable and if Constable be not to be found to a Justice and in case of a Felon known put into Stocks or Common Goal till he be brought to a Constable Arrest per a publick Officer without Process of Law Nota Whatsoever a private person may do in this case an Officer as a private person may do Now these Officers 1. Constable If complaint be made to a Constable of Felony committed or of a dangerous blow given though the party not dead in case there be an assault upon the Constable or in case there be any other breach of the Peace the Constable may imprison the party in the Stocks in the Goal or in his House till he can bring him before a Justice of Peace But if it be a bare breach of the Peace unless it be in his view he cannot arrest the party but complaint must be made to a Justice of Peace for the Constable is but Conservator not Justice of Peace unless a Felony be done If the Constable see an Affray and the Malefactor fly into another County before arrest he may pursue him and arrest him there and must bring him before Justice of the County where arrested But if the Escape was after arrest then he may retake him in another County and bring him to the first County He may break a door open to take an Offender where Felony committed or dangerous wound given 2. A Justice of Peace upon complaint may issue out his Warrant to arrest the party 1. A general Warrant to search for Felony or stoln Goods not good 2. If a Justice hath cause of suspicion he may arrest a common person not as a Justice 3. Upon complaint of a Felony committed and when doubt may be of apprehending the Offender in assistance of the party suspecting he may grant his Warrant to the Constable to apprehend the party but the party suspecting ought to be present because 't is his arrest But by vertue of such Warrant doors cannot be broke open 4. But at Sessions the Justices may award a Capias against the person indicted and by vertue thereof the Sheriff may break open a door A party being apprehended by such Warrant is either to be Committed Bailed or Discharged The Commitment by a Justice ought to be to Common Goal by Stat. 13 H. 6.12 and the Mittimus ought to be 1. Under Seal 2. To contain the Cause 3. To have an apt Conclusion viz. and there to stay till delivered by Law otherwise Warrant void And note That a person committed for Treason Felony or otherwise cannot be discharged till indicted and acquitted or Ignoramus found or discharged by Proclamation by Kings Bench upon Habeas Corpus In order to the consideration of Arrests and Escapes here fit to consider of Bail and Mainprise in cases of Felony 1. What Bail is 2. In what cases 3. By whom Bail 1. BAIL are Sureties taken by a person authorized to appear at a day and to answer and be justified by Law The difference between Bail and Mainprise is That Mainprise are only Surety but Bail is a Custody and therefore the Bail may reseize the Prisoner if they doubt he will fly or detain him and bring him before a Justice and the Justice ought to commit the Prisoner in discharge of the Bail or put him to find new Sureties The like may be done by the Justices in case of inefficient Bail If a Justice of Peace take inefficient Bail and the party appear not the Justice finable by Justices of Goal Delivery The sufficiency of Bail in respect of number two at least and those Subsidy men in case of Felony And in respect of the sum forty pounds at least Bail is either a certain sum or corpus pro corpore in which case the Offender not appearing the Surety shall not be Executed but Fined 29 Assis 44. 2. In what Cases 1. Generally To refuse Bail where the party ought to be bailed the party refusing the same is finable as a Misdemeanour and admitting Bail when it ought not punishable by Justices of Goal Delivery or punished as a negligent Escape at Common Law de quo infra 2. Particularly At Common Law Bail in all Cases but Homicide But now the Stat. Westm. 1. c. 15. directs what Cases bailable what not At this day in all Offences below Felony the party accused is bailable unless 1. Ousted by that Statute or some other Statute 2. After Judgment be given If a person be brought
made in a house Constable may break open house to preserve peace or take the Offender 3. If in Affray assault be made upon Constable he may strike again or imprison Offender 4. Constable may in such cases imprison till he find surety of Peace 5. It seems if Affray pass and not in view of Constable he cannot imprison without warrant of Justice unless Felony done or like to be done 3. What by a Justice 1. In his presence the same power that a private person or Constable and may imprison till surety of Peace found the like upon Complaint 2. If dangerous hurt Justice may imprison till it appear whether the party die or live or bail the party The former the better discretion Riot When above the number of two meet to do some unlawful act and do act it but if they meet and act it not an unlawful Assembly in power of Justices to suppress them 13 H. 4. c. 7. A man for safeguard of his house against Malefactors or Trespassers may assemble his Friends for his Defence But he cannot assemble to prevent a beating threatned in his presence Riot recorded by one Justice traversable Forcible Entry Forcible Entry must be either manifest furnished with unusual weapons menace of life or limb breaking open doors contrary it seems of doors only hatched Ejecting forcibly the Possessor Cum multitudine gentium one may commit a Force three at least a Riot Forcible Detainer Menacing Possessor to go out upon pain of loss of life or member Unusual Weapons or Company refusing to admit the Justice to come in to view the Force Detainer with Force justifiable where party in possession three years but though his Possession be lawful yet within three years actually removed though restored by Justices enables not a Detainer with Force But if three years Possession hath been by Force then the last forcible Detainer punishable and hinders not Restitution If Disseisee within three years make lawful Claim this an Interruption of his Possession Restitution 1. Justices B. R. may restore upon Indictment before them 2. One Justice of Peace cannot restore upon an Indictment before him nor Sessions of Peace unless upon an Indictment found at Sessions 3. It seems Justice of Oyer and Terminer or Goal Delivery cannot Restore 2. How Upon view Upon Indictment must be sufficient adhuc extra tenet If Erroneous may be superseed by same Justice before Executed After it is Executed then Restitution in B. R. upon Indictment quashed Restitution stayed By Certiorari By quashing Indictment By pleading thereunto which is nevertheless Indiscretion Barretry Riding Armed Going Armed V. St. 2 R. 2. c. 1. 7 R. 2. c. 13. 2 E. 2. c. 3. Stat. Northampton Nusances BRidges Publick Are not chargeable upon a particular person but ratione ten ' But Common Right repairable by whole Country The manner of Repairing directed by Stat. 2 H. 8. c. 3. Highways Highways Provisions 1. For their enlarging and removing Trees within 200 foot of either side 5 El. c. 13. 29 El. c. 5. 2 3 Ph. Ma. c. 8. The charge of repairing Highways lies on common right upon the Parish wherein they are unless 1. A Special Prescription cast it on another 2. Unless the Owner of the Land in which they are inclose it then it must be cast upon the Owner But they that have Ditches on either side ought to scoure them 8 H. 7.5 Inns Ale-houses Bawdy-houses Gaming-houses Nusances Common Inns. 1. ANY person may erect a Common Inn so it be not ad nocumentum 1. In respect of their multitude when there are enough ancient Inns before 2. In respect of the inconvenience of the place or situation 3. In respect of Disorders there committed All which are common Nusances and may be fined and presented 2. He that erects a Common Inn and refuses to entertain Guests may be Indicted for the same 3. If Common Inns contrary to Statute suffer persons to tipple there as Ale-houses he may be compelled to be bound or may be suppressed as Ale-house or may be Indicted at Sessions See for Ale-houses the suppressing of them and the punishment for tippling in them 5 E. 6. c. 25. Jac. c. 9. 4 Jac. c. 5. 7 Jac. c. 10.21 Jac. c. 7. 1 Car. c. 4. An Ale-house-keeper suppressed for the Offence 7 Jac. c. 18. 21 Jac. c. 7. for suffering tippling or 7 Jac. c. 10. for selling less than is there directed or 21 Jac. c. 7. for continuing drinking in another Ale-house or 21 Jac. for being drunk cannot be licensed in three years and if it be such License void Forgery Perjury Champerty OFfences not Capital more particularly by Statute Forgery by Stat. 5 El. c. 14. Perjury and Subornation 5 El. c. 9. Champerty Embraceries and Maintainance 32 H. 8. c. 9. Ingrossing Forestalling and Regrating 5 E. 6. c. 14. Salt Victual within Statute Apples and Cherries no Victual Mault seems not Corn and Grain expresly by 5 E. 6. A Stranger not Subject bringing Victual into Realm may sell them in gross but Vendee cannot neither may any Merchant buy within the Realm and sell in gross Attempting to inhance the price of Merchandize a kind of forestalling Selling Corn in the Sheaf unlawful Matters of Religion 1. REviling Sacrament Imprisonment Fine and Ransom 1 E. 6. c. 1. Rep. 1. Ma. c. 2. revived 1 El. c. 7. 2. Not coming to Church to hear Common Prayer by 5 E. 6. c. 1. subject to Church Censures Nota 3 E. 6. c. 1. settled a Book of Common Prayer Enjoyned the use Refusing to use using other or disproving it Imprisonment for six months for first for second a year life for third 5 E. 6. c. 1. Alters Prayers but applies Penalties to new Book Nota Rep. 1 Ma. that Rep. 1 Jac. c. 25. 1 El. c. 1. Enacts the use of the Book of 5 E. 6. with some Alterations 1. Any that refuse it 2. Use another form 3. Deprave it if Spiritual six months Imprisonment first offence one years Imprisonment second Offence Deprivation third Offence If Lay first Offence twelve months Imprisonment second offence during life Depraving Book of Common-Prayer first offence 100 Marks second offence 400 Marks third offence Goods and Imprisonment during life 3 El. c. 1. concerning Consecrating Bishops Concerning rejecting Church 1 El. 2. Every Sunday and Holiday super 12 per diem 23 El. c. 3. 10 l. per mensem for absenting and if absent 12 months upon Certificate bound to good behaviour 29 El. c. 2. Conviction of Recusancy 35 El. c. 1. Penalty of disswading from Church holding of Conventicles Convict to Prison without bail until Conformity Nonconformity within 3 months after Conviction shall abjure the Realm Not departing or returning Felony without benefit of Clergy Submitting discharged of the Penalty by this Act. Relapsing loseth benefit of Submission Ten pounds per mensem for every person retaining or relieving Recusant after notice C. 2. Recusants not to remove unless from dwelling 1 Jac. c. 4. the heir
Captains without license 2 E. 6. c. 2. idem Clergy excluded Marrying a second husband or wife the former living except 1. The man under fourteen or the wife under twelve at time of first marriage and not agreeing after first Espousals may marry a second husband or wife 2. A man or wife absent above seven years second marriage no Felony If beyond Sea then notice of life if in England then without notice 3. After a Divorce though à mensa thoro only 4. After anullity declared of second marriage by Spiritual Court Offenders have Clergy 1 Jac. c. 31. for going with a Plague sore but this discontinued Goaler compelling Prisoner through Duress to become Appelor Felony whether Appellant be acquitted or not Coining or bringing in and uttering Scotch money and 2 H. 6. c. 9. payment of blanks Offender hath Clergy Transportation of Silver or Importation of false money made Felony Offender hath Clergy Exportation of Wooll or Woolfells other than to the Staple at Calais Stealing Falcons or concealing the same after Proclamation Felony Offender hath Clergy Congregations of Masons to prevent Statutes of Labourers but this Obsolete because of the Statute 5 El. the Acts to which it relates are repealed Receiving retaining or maintaining a Jesuit or Popish Priest knowingly Clergy excluded Egyptians above fourteen years remaining here a moneth and 5 El. c. 20. takes away Clergy Felony refusing to make Abjuration and after Abjuration not to depart in some case Clergy excluded Dangerous Rogues adjudged to the Gallies and returning without license Felony but Offender hath Clergy but branded Rogue Felony and no Clergy Forging a Deed after former Conviction If a man be convict or condemned of publishing a forged Deed and after he forge a Deed this is Felony If the offence were after a former but before conviction thereof no Felony Clergy ousted Sending sheep beyond Sea after former conviction Clergy allowed Servants after decease of Master riotously spoiling Goods c. Offender shall have Clergy Servants imbezelling Goods of Master delivered to them Felony but the Statute that took away Clergy being Repealed by 1 E. 6. c. 12. they may now have Clergy Cutting Powdike Felony Offender hath Clergy Detaining persons in Cumberland against their will and giving or receiving blackmail c. Felony without Clergy Misprision of Treason NOW we come to Offences Criminal but not Capital and those of two kinds 1. Offences by Common Law 2. Offences against Statutes Offences against Common Law not Capital are either greater Offences or lesser Greater and those come under name of Misprision and those again of two sorts Negative in not doing that they ought or of Omission Positive in doing some great Misdemeanour they ought not The Negative Misprision 1. Misprision of Treason All Treason includes Misprision and Concealing of any Treason is declared Misprision only by Statute 1 2 P. M. c. 10. But this in case of bare knowledge and assent it is Treason and though Treason by Statute yet the concealing thereof is Misprision of Treason Every man therefore that knoweth Treason must with all speed reveal it to King his Privy Council or Magistrate He that receives and comforts a Traitor knowingly be it a counterfeiter of Coin or other is a Principal Traitor and not only guilty of Misprision Abingdon's Case against Opinion in Dyer 296. Conier's Case The Judgment in case of Misprision of Treason is Imprisonment during life forfeiture of Goods forfeiture of profits of Land during life 2. Misprision of Felony is either by Common Law or by Statute By the Common Law a concealment of Felony or procurement of the concealing thereof The Punishment 1. A common Person Fine and Imprisonment 2. An Officer as Sheriff Coroner Imprisonment for a year and Ransom at King's pleasure by Stat. W. 1. c. 9. By the Stat. 3 H. 7. c. 1. 33 H. 8. c. 6. one knowing of an unlawful Assembly and not discovering it within 24 hours Concealment of Jurors v. Stat. 3. Theft-boot which is more than a bare Misprision of Felony and is where the Owner doth not only know the Felony but takes his Goods again or other Amends not to Prosecute But taking the Goods barely no-offence unless he favour the Thief The punishment hereof is Ransom and Imprisonment Misprision Positive or of Commission 1. Discovery by one of the grand Inquest of the person Indicted or by Evidence against them Misprision punishable by Fine and Imprisonment but no Felony 2. A person disswading Witnesses from bringing in Evidence against a person is no Accessary but a great Misprision punishable by Fine and Imprisonment 3. Rescuing a Prisoner from Barr of B. R. Canc. B. C. or Exchequer a Misprision for which a party shall lose his Hand Goods Profits of Lands during Life perpetual Imprisonment 4. If a man strike sitting the Courts at Westminster in presence of Courts like Judgment 5. If in presence of those Courts or before Justices of Assize or Oyer Terminer a person draws his Sword upon any Judge or Justice though he strikes not or strike another like Judgment 6. Per Stat. 33 H. 8. c. 12. striking in the King's presence drawing blood loss of hand perpetual Imprisonment Fine and Ransom 7. By St. 14 El. c. 3. forging of Money not current Misprision of Treason 8. Stranger uttering false Money made within this Realm known to be Counterfeit 3 H. 7.10 9. A Lord of Parliament departing from Parliament 3 E. 3. And hither we may refer Maihem which though it be a particular Crime for which Appeal lieth yet it is not Felony of death Cutting off the hand or striking out a tooth Maihem but not cutting off the ear The Judgment is only Fine Dammages and therefore if recovery in Trespass it is a good barr in Appeal of Mayhem Offences of an Inferiour nature are either such as are committed by an Officers neglect of duty as Bribery Extorsion Or such as refer to a common person without relation to Officers and those reducible to three kinds 1. Breaches of publick Peace and therein 1. Of Affrays 2. Of Riots 3. Of Forcible Entries 4. Barretries 5. Riding armed 2. Deceipts and Cozenage 3. Nusances Decay of Bridges Decay of High-ways Inns and Alehouses Breach of the Peace AFFRAY If weapon drawn or stroke given or offered but words no Affray menace to kill or beat no Affrays but yet for safeguard of Peace Constable may bring them before Justice In Affrays considerable 1. What a private man may do Private persons may stay Affrayers till heat over and deliver them to Constable If a person hurt another dangerously private person may arrest the Offender and bring him to Goal or next Justice 2. What by a Constable 1. Affray in presence of a Constable he ought to do his endeavour to suppress it otherwise finable 2. If an Affrayer fly to a house or if