England, not in any particular county. But the warrant of a juftice of the peace in one county must be backed, that is, figned by a justice of the peace in another, before it can be executed there. And by 13 Geo. III. c. 31. any warrant for apprehending an English offender, who may have escaped into Scotland, and vice verfa, may be indorfed and executed by the local magiftrates, and the offender conveyed back to that part of the united kingdoms, in which fuch offence was committed. Arrefts by officers, without warrant, may be executed: 1. By a juftice of the peace; who may himself apprehend, or cause to be apprehended, by word only, any perfon committing a felony or breach of the peace in his prefence. 2. The sheriff; and, 3. The coroner, may apprehend any felon within the county without warrant. 4. The conftable may without warrant arreft any one for a breach of the peace. And, in cafe of felony actually committed, or a dangerous wounding, whereby felony is like to enfue, he may upon probable fufpicion arreft the felon; and for that purpose, is authorized (as upon a juftice's warrant) to break open doors, and even to kill the felon if he cannot otherwife be taken; and, if he or his affiftants be killed in attempting fuch arrefts, it is murder in all concerned. 5. Watchmen, either those appointed by the ftatute of Winchefter, 13 Edw. I. c. 4. to keep watch and ward in all towns, from funfetting to funrifing, or fuch as are mere affiftants to the conftable, may virtute officii arreft all offenders, and particularly night-walkers, and commit them to cuftody until the morning. Any private perfon (and a fortiori a peace officer) that is prefent when any felony is committed, is bound by the law to arreft the felon, on pain of fine and imprisonment, if he efcapes through the negligence of the ftanders by; and they may juftify breaking open doors upon following fuch felons; and if they kill him, provided he cannot otherwise be taken, it is juftifiable; though, if they are killed in endeavouring to make fuch arreft, it is murder. Upon probable fufpicion alfo, a private perfon may arreft the felon, or other perfon fufpected; but he cannot justify breaking open doors to do it; and if either party kill the other in the attempt, it is manlaughter, and no more. The hue and cry has already been mentioned.* COMMITMENT. The juftice, before whom a prifoner is brought, is bound immediately to examine the circun.fiances of the crime alleged, and to take in writing the examination of the prifoner, and the information of thofe who bring him. If upon this inquiry it manifeftly appears, either tha fuch crime was committed, or that the fufpicion entertained of the perfon was wholly groundless, it is lawful totally to difcharge him; otherwife he must either be committed to prifon or give bail. BAIL. Bail, in a criminal as in a civil cafe, fignifies fureties for the defendant's appearance to answer the charge against him. To refufe or delay to bail any perfon bailable, is an offence against the liberty of the fubject, in any magiftrate by the common law, as well as by the ftatute of Weftm. 3 Edw. I. c. 15. and the habeas corpus act, 31 Chas. II. c. 2. ; and left the intention of the law fhould be fruftrated by the justices requiring bail to a greater amount than the nature of the cafe demands, it is exprefsly declared by statute 1 W. and M. ft. 2. c. I. that exceflive bail ought not to be required; though what bail fhall be called exceffive must be left to the courts, on confidering the circumstances of the cafe, to determine. On the other hand, if the magiftrate takes infufficient bail, he is liable to be fined, if the criminal does not appear. Bail may be taken either in court, or in fome particular cafes by the theriff, coroner, or other magiftrate; but most usually by the juftices of the peace. Regularly in all offences either against the common law or act of parliament, that are below felony, the offender ought to be admitted to bail, unless it be prohibited by some act of parliament. The prohibition to accept of bail or mainprize is inferted in feveral ftatutes where imprisonment is intended as a positive punishment for crimes, not as a cautionary measure to prevent efcape, or as an alternative to countervail fome fine or penalty which the perfon convicted is unable or unwilling to pay. HINDERING ARRESTS. It is an high offence to oppose one who lawfully endeavours to arrest another for treafon or felony; fome have faid that the perfon who fo oppofes an arreft for treafon, whereof he knows the party to have been guilty, is thereby guilty of the treason, and that he who fo oppofes an arrest for felony, is an acceffary to the felony; but, if a perfon, knowing another to have been guilty of fuch a crime, barely receive him, and permit him to efcape, without giving him any manner of advice, affiftance or encouragement in it, as by directing how to do it in the fafeft manner, or furnishing him with money, provifions, or other neceffaries, he is guilty of a high misdemeanor only, but no capital offence. The party himself who flics from fuch an arreft, is not thereby guilty of a capital offence, but only liable to forfeit his goods, when fuch flight is found against him by the jury on his trial. BREAKING BREAKING PRISON. Breach of prifon by the offender himfelf, when committed for any caufe, was felony at the common law; or even confpiring to break it; but this feverity is mitigated by the ftatute de frangentibus prifonam, 1 Edw. II. which enacts, that no perfon fhall have judgment of life or member for breaking prifon, unless committed for fome capital offence; fo that to break prifon and efcape, when lawfully committed for any treafon or felony, remains ftill felony at the common law; and to break prifon, (whether it be the county jail, the flocks, or other ufual place of fecurity,) when lawfully confined upon any other inferior charge, is ftill punishable as a mifdemeanor by fine and imprisonment. ESCAPE. As all perfons are bound to fubmit themselves to the judgment of the law, and to be ready to be justified by it, whoever in any cafe refufes to undergo that imprisonment which the law thinks fit to put upon him, and frees himself by any artifice, before he is delivered by the course of law, is guilty of a high contempt, punishable with fine and imprisonment. To conflitute ani efcape, there must be an actual arreft; and therefore if an officer having a warrant to arreft a man, fees him fhut up in a houfe, and challenges him as his prifoner, but never actually has him in his cuftody, and the party gets free, the officer cannot be charged with an efcape; arreft muft alfo be juftifiable; for a criminal matter; and its continuance at the time of the efcape grounded en that fatisfaction which the public juftice demands for fuch crime. It is an escape, in fome cafes, to fuffer a prifoner to have greater liberty than by the law he ought to have; as to admit a perfon to bail, who by law ought not to be bailed, but to be kept in clofe cuftody; or to permit a prifoner to go out of the limits of a prifon. Wherever an officer, who has the cuftody of a prifoner, charged with, and guilty of, a capital offence, knowingly gives him his liberty with an intent to fave him either from his trial or execution, he is guilty of a voluntary escape, and involved in the guilt of the fame crime with which the prisoner stood charged. An officer making a fresh purfuit after a prifoner, who has cfcaped through his negligence, may retake him at any time whether in the fame or in a different county. Negligent efcapes are punifhed by fine, and, if frequent, by lofs of office. Nor is the offence of permitting an escape limited to officers; for wherever any perfon has another lawfully in his cuftody, whether upon an arreft made by himself or another, he is guilty of an escape if he fuffer him to go at large, before he has difcharged himself of him by delivering him over to fome other other who by law ought to have the cuftody of him; and therefore, if a private perfon arrefts another for suspicion of felonys, and deliver him into the cuftody of another private perfon, who receives and fuffers him to go at large, it is faid that both are guilty of an escape; the first, because he should not have parted with him till he had delivered him into the hands of a public officer; the latter, because, having charged himself with the cuftody of a prifoner, he ought at his peril to have taken care of him. If the efcape were voluntary, he is punishable in the fame manner as an officer; and if negligent, he is punishable by fine and imprisonment. RESCUE. Refcue, or as it is fpelt in law books, Refcous, is the forcibly and knowingly freeing another from an arreft or imprifonment, and it is generally the fame offence in the ftranger refcuing, as it would have been in a jailor to have voluntarily permitted an efcape. A refcue therefore of one apprehended for felony, is felony; for treafon, treafon; and for a mifdemeanor, a mifdemeanor alfo. In thefe cafes, as in voluntary efcapes, the principals muft firft be attainted or receive judg ment before the refcuer can be punished: and for the fame reafon; because perhaps in fact it may turn out that there has been no offence committed. By 11 Geo. II. c. 26. and 22 Geo. II. c. 40. if five or more perfons affemble to rescue any retailers of fpirituous liquors, or to affault the informers against them, it is felony, and fubject to tranfportation for feven years. By 16 Geo. II. c. 31. to convey to any prifoner in custody for treafon or felony, any arms, inftruments of escape, or disguise, without the knowledge of the jailor, though no escape be attempted, or any way to affift fuch prifoner to attempt an efcape, though no efcape be actually made, is felony, and fubjects the offender to transportation for feven years; or if the prifoner be in cuftody for petit larceny, or other inferior offence, or charged with a debt of 100l. it is then a mifdemeanor, punishable with fine and imprisonment; and by feveral fpecial ftatutes, to refcue, or attempt to refcue, any perfon committed for the offences enumerated in those acts, is felony without benefit of clergy. DURESS BY JAILORS. The confiderate attention of the law toward those who are confined for debt has already been noticed; and it is alfo to be obferved that prifoners in criminal cafes, whether merely detained for fafe cuftody, or for punishment after trial, are alfo protected by the humanity of the law. To prevent abuses by the extenfive power which is neceffarily repofed in jailors, it is enacted by 14 Edw. III. c. 10. that if any keeper of a prifon, or under-keeper, by too great durefs of imprifonment, and by pain, make any prifoner become an appellor appellor against his will, he is guilty of felony. And it is faid to be no way material, whether the approvement is true or falfe, or whether the appellee be acquitted or condemned; but at common law this offence was efteemed a miiprifion only, unlcfs the appellee were hanged by reafon of the appeal. It hes oren determined that jailors, as well de facto as de jure, are liable to attachment for contempt of court, and to fine, imprifont mt, and forfeiture of office for grofs and palpable abuies; as in treating criminals with barbarity, extorting money, not making lawful deliverance, or fuffering them to escape; and that if death enfucs from their harfh treatment, it is felonious homicide. By 31 Chas. II. c. 2. if any perfon fhall be comnitted to any prifon, for any criminal offence, he fhall not be removed unlefs by babeas corpus, or other legal writ: or where he is removed from one prifon or place to another, within the fame county, in order to his trial or difcharge; or in cafe of fudden fire or infection, or other neceffity; on pain that the perfon figning any warrant for fuch removal, and the perfon execuung it, fhall forfeit for the first offence 100%. and for the fecond 200l. to the party grieved. By 22 and 23 Chas. II. c. 20. the jailor fhall not put, keep, or lodge prifoners for debt and felons together in one room or chamber; but they fhall be kept and lodged feparate and apart from one another in diftinct rooms, on pain of forfeiting his office, and treble damas to the party grieved; and by 31 Geo. III. c. 46. as long as ary perfon under fentence of tranfportation fhall continue in the common jail, the jailor fhall feparate him, as far as conveniently may be, from every perfon in his cuftody, except prifoders convicted of felony. It is ufual for the jailor to hamper a felon with irons to prevent his efcape; and it is faid that he is not punithable for keeping even a debtor in itons; but this can only be intended, where the officer has just reason to fear an efcape; as where the prifoner is unruly, or makes any attempt to that purpose. It is not intended here to enter into an account of all the forms ufed in bringing prifoners to trial; as the indictment, and fubfequent proceedings; but merely to notice fome peculiarities, which are of a lefs technical defcription. APPROVER. A man is properly an approver, when being indicted of treafon or felony, before competent judges, and in prifon for the fame, and capable of being an approver, he confeffes the indictment, and is fworn to reveal all the treafons and felonies he knows, and then, before a coroner, enters his appeal against all who are partners with him in the crime in the indictment, being at the time of the appeal within the realm. The party thus appealed or accufed, is called the |