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By stat. 51 Geo. 3. c. 65. to explain and amend stat. 39 Geo.3. c. 79. so far as respects certain penalties on printers and publishers.

§ 1. After reciting the 39 Geo. 3. c. 79. § 27. & 35. it is enacted, that nothing in § 27. contained shall extend to make any person offending against the same, liable to more than twentyfive forfeitures or penalties for printing or publishing or dispersing, or assisting in publishing or dispersing, any number of copies of one and the same paper or book, contrary to the said section of the said act.

§ 2. Enacts, that if any justice or other magistrate before whom any person shall be convicted of any offence or offences against the provisions of the before-mentioned act, shall see cause to mitigate such penalty or penalties, it shall be lawful for such justice or other magistrate to mitigate or lessen the same to any sum not less than 57. over and above all reasonable costs and charges expended or incurred in the prosecution.

3. After reciting that doubts have arisen whether the provi sions contained in the said act may not be considered as extending to notes and post bills of the governor and company of the bank of England, and to bills of exchange, promissory notes, bonds, and other securities for payment of money, bills of lading, policies of insurance, letters of attorney, transfers or assignments of public stocks, funds, and other securities, and to dividend warrants, receipts for money or goods, deeds or other instruments, proceedings in the courts of law and equity, and other inferior courts, warrants, orders, and other papers, printed by the authority of any public board or public officer in the execution of the duties of their respective offices, many of which securities. instruments, proceedings and other matters aforesaid, are usually wholly or in part printed; declares and enacts, that nothing in the said recited act or in this act contained shall extend to require the name and residence of the printer to be printed upon any such bank note, bank post bill, bill of exchange, or promis sory note, or upon any bond or other security for payment of money, or upon any bill of lading, policy of insurance, letter of attorney, deed or agreement, or upon any transfer or assignment of any public stocks, funds, or other securities, or upon any transfer or assignment of any public stocks, funds, or other securities, or upon any transfer or assignment of the stocks of any public corporation or company, authorised or sanctioned by act of parliament, or upon any dividend warrant of or for any such public or other stocks, funds, or securities, or upon any receipt for money or goods, or upon any proceeding in any court of law or equity, or in any inferior court, warrant, order, or other papers printed by the authority of any public board or public officer in the execution of the duties of their respective offices, notwith standing the whole or any part of the said several securities, instruments, proceedings, matters, and things aforesaid, shall have been or shall be printed.

4. Enacts, that if any person shall think himself aggrieved, by any conviction, judgment, or determination of any justice, re lating to any thing in the before-mentioned act contained, he may appeal to the justices of the peace at the general quarter sessions to be holden in and for the county, city, or place, where

such conviction, judgment, or determination shall have been 51 G. 3. c. 65. made, next after the expiration of twenty days from the making thereof, first giving six days' notice of such appeal to the person or persons prosecuting for such penalty or penalties; and the said justices shall hear and determine the said appeal at such general quarter sessions, or, if they think proper, adjourn the hearing thereof until the next general quarter sessions to be holden for such county, town, or place; and the said justices may, in like manner, if they see cause, mitigate any penalty or penalties, and may order any money to be returned which shall have been paid or levied under any conviction as aforesaid, and may also order and award such costs to be paid by either party to the other, as they shall think and judge reasonable.

Prison and prisoner. See Gaol, Vol. II.

Prison-breaking.

See title Escape, Vol. I. page 751.

[3 Ed. 1. c. 15.-1 Ed. 2. st. 2.]

IT seemeth that at the common law all prison-breaches were Prison-breaking felonies, if the party were lawfully in custody for any cause at common law. whatsoever. 2 Haw. c. 18. § 1.

But by the following statute, which is called the statute de By statute. frangentibus prisonam, the severity of the common law is moderated; in the explication of which statute will be contained the

whole learning relating to this subject.

The statute is this; Concerning prisoners which break prison 1 Ed. 2. st. 2. the king willeth and commandeth that none that breaketh prison shall have judgment of life or member for breaking of prison only, except the cause for which he was taken and imprisoned did require such judgment, if he had been convict thereupon, according to the law and custom of the realm.

Concerning prisoners which break.] Therefore if the prison be Prison broken broken by a stranger, and not by the prisoner, or by his pro- by a stranger. curement, this is no felony in the prisoner. Hale's Sum. 108.

Which break prison.] It seems clear that any place whatsoever, What shall be wherein a person under a lawful arrest for a supposed crime is deemed a prison. restrained of his liberty, whether in the stocks, or street, or in

the common gaol, or the house of a constable, or private person,

is properly a prison within this statute; for imprisonment is nothing else but a restraint of liberty. 2 Haw. c. 18. § 4.

And therefore this extendeth as well to a prison in law as a

prison in deed. 2 Inst. 589.

But there must be an actual breaking; for if the door be open Must be an acand he goes out, it is not felony, but a misdemeanor only. tual breaking. 2 Inst. 589. 2 Haw. c. 18. § 9.

How punishable.

3 Ed. 1. c. 15. Not bailable.

Imprisonment, what.

But if the prison be fired without the privity of the prisoner, he may lawfully break to save his life. Hale's Sum. 108.

Also it seems that no breach of prison will amount to felony, unless the prisoner escape. 2 Haw. c. 18. § 12.

That none that breaketh prison shall have judgment of life or member.] That is, shall be guilty of felony. But nevertheless he is still punishable as for a high misprision, by fine and imprisonment; for it cannot be thought the meaning of the statute, in ordaining that such offences shall not be punished as capital ones, to intend that they shall not be punished at all. 2 Haw. c. 18. § 21.

Nevertheless, by the 3 Ed. 1. c. 15. Those who have broken prison are not bailable by justices of the peace; and that for two reasons; 1. Because it carries a presumption of guilt. And, 2. Because it is a superadded offence to the former for which they stood committed. 2 Hale, 133.

Except the cause for which he was taken and imprisoned did require such judgment.] This is to be intended of lawful cause; and therefore false imprisonment is not within this act. 2 Inst.

590.

Imprisonment is a restraint of a man's liberty under the custody of another, by lawful warrant, in deed, or in law. Lawful warrant is either when the offence appeareth by matter of record, as when the party is taken upon an indictment; or when it doth not appear by matter of record, as when a felony is done, and the offender by a lawful mittimus is commited to gaol, for the same: But between these two cases there is a great diversity; • for in the first case, whether any felony were committed or no, if the offender be taken by force of a capias, the warrant is lawful, and if he break prison it is felony, although no felony were committed; but in the other case, if no felony be done at all, and yet he be committed to prison for a supposed felony, and break prison, this is no felony, for there is no cause. 2 Inst. 590.

So that the cause must be just and not feigned, for things feigned require no judgment: Thus if a man give another a mortal wound, for which he is committed to prison, and breaketh prison, and the other dieth of the wound within the year, this death hath relation to the stroke; but because relations are but fictions in law, and fictions are not here intended, this prisonbreaking is not felony. 2 Inst. 591.

So that the offence for which the party was imprisoned must be a capital one at the time of the offence, and not become such by a matter subsequent. 2 Haw. c. 18. § 14.

And the cause must be expressed in the mittimus, although not so certainly as in an indictment, yet with such a convenient certainty as it may appear judicially that the offence requireth such judgment; as, not for felony generally, but for felony in stealing such a horse, and the like. 2 Inst. 591.

But if the offence for which the party is committed be sup posed in the mittimus to be of such a nature as requires a capital judgment; yet if in the event it be found to be of an inferior nature, and not to require such a judgment, it seems difficult to maintain that the breaking of the prison, on a commitment for it, can be felony; for the words of the statute are, except the cause for which he was taken and imprisoned did require such judgment;

1

and here it appears that the offence which is the cause of his imprisonment doth not require such a judgment. 2 Haw. c. 18. § 15.

But if a man be committed by lawful warrant for suspicion of Suspicion. felony done, if he break prison he may be indicted for that escape, albeit the commitment be for suspicion of felony, and yet no judgment can be given against him for suspicion, but for the felony itself, whereof he is suspected. 2 Inst. 592.

And an indictment that such a person feloniously broke the prison generally is not good; but it ought to rehearse the specialty of the matter, that he being imprisoned for such or such felony broke the prison. 2 Inst. 591.

But if the party be only arrested for and in his mittimus charged with a crime which doth not require judgment of life or member, as petit larceny, or homicide by self-defence, or by misadventure, and the offence be in truth no greater than the mittimus doth suppose it to be, it is clear from the express words of the statute, that the breaking of the prison cannot amount to felony. 2 Haw. c. 18. § 15.

But if a felony be made by a subsequent statute, and an offender is committed thereupon; if he break prison it is felony. For since all breaches of prison were felonies by the common law, which is restrained by this statute in respect only of imprisonment for offences not capital, when an offence becomes capital, it is as much out of the benefit of the statute, as if it had always been so. Hale's Sum. 108.

Also it is said that the party may be arraigned for prisonbreaking, before he be convicted of the crime for which he was imprisoned; for that it is not material whether he were guilty of such crime or not; for the words of the statute are, for which he was taken and imprisoned. 2 Haw. c. 18. § 16.

But if he be first indicted and acquitted of the principal felony, he shall not be indicted for the breach of prison afterwards; for it being clear that he was not guilty of the felony, he is in law as a person never committed for felony, and so his breach of prison is no felony. 1 Hale, 612.

But the gaoler shall not be punished as a felon for the party's breach of prison, unless he voluntarily consented to it; but it seems to be a negligent escape in the gaoler, for which he may be punished by fine and imprisonment, because there wanted either that due strength in the gaol, or that due vigilance in the gaoler or his officers, that should have prevented it; and if gaolers might not be punished for this as a negligent escape, they would be careless either to secure their prisoners or to retake them that escape. 1 Hale, 601.

And therefore if a criminal endeavouring to break the gaol assault his gaoler, he may be lawfully killed by him in the affray. 1 Haw. c. 28. § 13.

Indictment for Prison-breaking, by escaping from a Con

stable.

County of THE jurors for our lord the king upon their oath present, That A. C. late of· constable of our said lord the king in in the said county, on the

to wit

town of

in the

year of the reign of

yeoman, and for the

day of

at

within the town and constablewick aforesaid in the county aforesaid did take and arrest one A. O. late of· labourer, on suspicion of having committed a certain felony, in feloniously taking and leading away one black gelding, the property of

of the value of and thereupon he the said A. O. under the custody of him the said A. C. the constable aforesaid was brought before J. P. esquire, one of the justices of our said lord the king assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanors within the said county committed, and he the said J. P. by his warrant directed to the said A. C. and others, did command the said A. C. to carry and convey the said A. O. to the gaol of our said lord the king at in the county aforesaid, there to be safely kept until he should be lawfully delivered from thence; by virtue of which said warrant he the said A. O. was taken and detained by him the said A. C. and he the said A. C. was conveying and carrying him the said A. O. to the gaol aforesaid, afterwards, to wit, on the in the year aforesaid, he the said A. O. of aforesaid, in the county aforesaid, with force and arms, did feloniously break away and escape from and out of the custody of him the said A. C. the constable aforesaid, against the will of him the said A. C. and against the peace of our said lord the king, his crown and dignity.

County of

to wit.

day of

Indictment for breaking out of gaol.

THE jurors for our lord the king, upon their oath
present, That A. O. late of
in the county
aforesaid, labourer,

on the
year of the reign of

day of

at

in the aforesaid, in the county aforesaid, was arrested, imprisoned, and detained, in the gaol of our said lord the king for a certain felony by him committed; that is to say, for feloniously taking and leading away one black gelding, the property of of the value of ; and that he the said A. O. on the day of- in the year aforesaid, with force and arms, the aforesaid gaol of our said lord the king at aforesaid in the county aforesaid feloniously did break and thereby did escape from and out of the said gaol, against the peace of our said lord the king, his crown and dignity.

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