[63] Ll. Inae. c. 7. "Si quis furetur ita ut uxor ejus et infans ipsius nesciant, solvat 60. solidos poenae loco. Si autem furetur testantibus omnibus haeredibus suis, abeant omnes in servitutem." Ina was king of the West-Saxons, and began to reign A. C. 688. After the union of the Heptarchy, i. e. temp. Aethelst. inter 924 and 940, we find it punishable with death as above. So it was inter 1017 and 1035, i. e. temp. Cnuti. Ll. Cnuti 61. cited in notes on Arson. In the time of William the conqueror, it seems to have been made punishable by fine only. Ll. Gul. conq. apud Wilk. p. 218, 220. This commutation, however, was taken away by Ll. H. 1. anno 1108. "Si quis in furto vel latrocinio deprehensus fuisset, suspenderetur; sublata wirgildorum, id est, pecuniarae redemptionis lege." Larceny is the felonious taking and carrying away of the personal goods of another. 1. As to the taking, the 3. 4. W. M. c. 9 § 5. is not additional to the Common law, but declaratory of it; because where only the care or use, and not the possession, of things is delivered, to take them was larceny at the Common law. The 33. H. 6. c. 1. and 21 H. 8. c. 7. indeed, have added to the Common law, by making it larceny in a servant to convert things of his master's. But quære, if they should be imitated more than as to other breaches of trust in general. 2. As to the subject of larceny, 4 G. 2. c. 32. 6 G. 3. c. 36. 48. 43. El. c. 7. 15. Car. 2. c. 2. 23. G. 2. c. 26. 31. G. 2. c. 35. 9. G. 3. c. 41. 25. G. 2. c. 10. have extended larceny to things of various sorts either real, or fixed to the reality. But the enumeration is unsystematical, and in this country, where the produce of the earth is so spontaneous, as to have rendered things of this kind scarcely a breach of civility or good manners, in the eyes of the people, quære, if it would not too much enlarge the field of Criminal law? The same may be questioned of 9 G. 1. c. 22. 13 Car. 2. c. 10. 10 G. 2. c. 32. 5 G. 3. c. 14. 22 and 23 Car. 2. c. 25. 37 E. 3. c. 19. making it felony to steal animals feræ naturæ.
[64] 2 G. 2. c. 25 § 3. 7 G. 3. c. 50.
[65] 3. 4. W. M. c. 9. § 4. 5 Ann. c. 31. § 5. 4 G. 1. c. 11. § 1.
[66] 1 E. 2.
[67] Breach of prison at the Common law was capital, without regard to the crime for which the party was committed. "Cum pro criminis qualitate in carcerem recepti fuerint, conspiraverint (ut ruptis vinculis aut fracto carcere) evadant, amplius (quam causa pro qua recepti sunt exposeit) puniendi sunt, videlicet ultimo supplicio, quamvis ex eo crimine innocentes inveniantur, propter quod inducti sunt in carcerem et imparcati. Bracton L. 3. c. 9. § 4. Britt. c. 11. Fleta, L. 1. c. 26. § 4. Yet in the Y. B. Hill. 1. H. 7. 2. Hussey says, that by the opinion of Billing and Choke, and all the justices, it was a felony in strangers only, but not in the prisoner himself. S. C. Fitz. Abr. Coron. 48. They are principal felons, not accessaries. ib. Whether it was felony in the prisoner at Common law, is doubted. Stam. P. C. 30. b The Mirror c. 5. § 1, says, 'abusion est a tener escape de prisoner, ou de bruserie del gaole pur peche mortell, car cel usage n'est garrant per nul ley, ne in nul part est use forsque in cest realme, et en France, eins [mais] est leu garrantie de ceo faire per la ley de nature." 2 Inst. 589. The stat. 1. E. 2. de fraugentibus prisonam, restrained the judgment of life and limb for prison breaking, to cases where the offence of the prisoner required such judgment.
It is not only vain, but wicked, in a legislator to frame laws in opposition to the laws of nature, and to arm them with the terrors of death. This is truly creating crimes in order to punish them. The law of nature impels every one to escape from confinement; it should not, therefore, be subjected to punishment. Let the legislator restrain his criminal by walls, not by parchment. As to strangers breaking prison to enlarge an offender, they should, and may be fairly considered as accessaries after the fact. This bill says nothing of the prisoner releasing himself by breach of jail, he will have the benefit of the first section of the bill, which repeals the judgment of life and death at the common law.
[68] Gif wiccan owwe wigleras nansworan, owwe morthwyrhtan owwe fule afylede æbere horcwenan ahwhar on lande wurthan agytene, thonne fyrsie man of earde and clænsie tha theode, owwe on earde forfare hi mid ealle, buton hi geswican and the deoper gebetan: if witches, or weirds, man-swearers, or murther-wroughters, or foul, defiled, open whore-queens, anywhere in the land were gotten, then force them off earth, and cleanse the nation, or in earth forth-fare them withal, buton they beseech, and deeply better. Ll. Ed. et Guthr. c. 11. "Sagae, mulieres barbara, factitantes sacrificia, aut pestiferi, si cui mortem intulerint, neque id inficiari poterint, capitis poena esto." Ll. Aethelst. c. 6. apud Lambard. Ll. Aelfr. 30. Ll. Cnuti. c. 4. "Mesme cel jugement (d'etrears) eyent sorcers, et sorceresses, &c. ut supra." Fleta ut et ubi supra. 3. Inst. 44. Trial of witches before Hale in 1664. The statutes 33 H. 8. c. 8. 5. El. c. 16 and 1. Jac. 1. c. 12. seem to be only in confirmation of the Common law. 9 G. 2. c. 25. punishes them with pillory, and a year's imprisonment. 3 E. 6. c. 15. 5 El. c. 15. punish fond, fantastical and false prophecies, by fine and imprisonment.
[69] 1 Ann. c. 9. § 2.
[70] As every treason includes within it a misprision of treason, so every felony includes a misprision, or misdemeanor. 1 Hale P. C. 652. 708. "Licet fuerit felonia, tamen in eo continetur misprisio." 2 R. 3 10. Both principal and accessary, therefore, may be proceeded against in any case, either for felony or misprision, at the Common law. Capital cases not being mentioned here, accessaries to them will of course be triable for misprisions, if the offender flies.
[71] E. 1. c. 12.