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THE

W H O L E L A W

RELATIVE TO THE

DUTY AND OFFICE

OF

A Justice of the Peace.

Eaves-Droppers: EAVES-droppers, or such as liften under walls or win

dows, or the eaves of houses, to hear ken after discourse, and thereupon to frame flanderous and mischievous tales, are a common nuisance, and presentable at the court-leet; or, are indictable at the sessions, and punishable by fine and finding fureties for their good behaviour. 4 Black. Com 168. Kitch. of Courts 20. 2 Hawk. c. 10. 5. 58.

And it seems that a magistrate may also compel such perfons to find surety for their good behaviour. i Hawk. c. 61. . 4.

Egyptians. See Dagrants.

Elopement. BY4&5 Phil. & Mar. c. 8, If any person above the age

of fourteen, fhall unlawfully take or convey, or cause to be taken and conveyed, any maid or woman child unmarVOL. II.

ried,

B

ried, being within the age of fixteen years, out of the posleffion and against the will of her father, or mother, or of such person or persons as then shall happen to have, by any lawful ways, ihe order, keeping, education, or governance of her; such person being convicted in course of law, by inquisition or indictment, fhall fufier two years imprisonment, or pay such fine as shall be affeffed by the court; half to the king, and half to the parties grieved. f. 3. 5:

Agains the will of her father.) A bastard is within the protection of this act; for the court of King's Bench have granted an information, for the taking away a natural daughter under 16, under the care of her putative father. 2 Strange

1162.,

Being convitied in course of law.]. This is an offence within the jurisdiction of the court of King's Bench, for which they will grant an information.

4. Mod. 145. 2 Strange 1107

And if any person shall so take away, or cause to be taken away and deflour any such maid or woman child; or fall, against the will, or unknowing of, or to the father of such child, if the father be in life, or against the will or unknowing of the mother (having the custody or governance of such child, if the father be dead), by secret letters, messages, or otherwise, contract matrimony with such maiden or woman child, every person fo offending, being convicted, shall suffer imprisonment five years, or pay fuch fine as shall be affeffed by the court; the one moiety to the king, the other to the informer. 1. 3.

And if any woman child, or maiden, being above the age of twelve years, and under 16, íhali consent, or agree to such person that fhail so contract inatrimony, the next of kin to her shall have, hoid, and enjoy her lands during the life of the person so contracting, on whose decease the lands shall descend to such perfons as they should have done, in cafe this act had never been made, other than to him that shall fo contract matrimony. /. 6.

But now the execution of such contract of matrimony cannot be enforced ; for, by 26 Geo. 2. c. 33, No suit Thall be had in any ecclefiaftical court to compel a celebration

any marriage in facié ecclefiæ, by reason of any contract of matrimony, whether per verba de prefenti, or per verba de futuro. f. 13.

And all marriages folemnized in any other place than a church, or public chapel, in which bans of matrimony have been usually published, unless by special licence from the archbishop of Canterbury, or withou: publication of bans, or licence of marriage, thall be void. 4.8.

And And all marriages folemnized by licence, where either of the parties, not being a widower or widow, shall be under the age of twenty-one years, which shall be had without the consent of the father of such of the parties so under age, if living, or, if dead, of the guardians, or one of them; and in case there be none, of the mother if living and unmarried ; or if no mother and unmarried, then of a guardian appointed by the court of chancery, shall be void. T. II.

For the offence of taking women away against their will, see FELONY (without Clergy, Women.) Embezzlement. See Felony and Manu

factures. Embracery. See maintename. Engrossing. See forestalling.

Escapes. ESCAPE in generalis understood, where any person, who be- Defined.

ing under lawful arrest, and restrained of his liberty, either violently or privately evades such arrest and restraint, or is sufa fered to go at large before delivered by due course of law. 2 Bacon's Abr. 233.

And these escapes are of three kinds, ift, by the person that hath the felon in his custody, which is properly an efcape; 2dly, when the escape is caused by a stranger, which is ordinarily called a rescue ; and, 3dly, by the party himself, which is of two kinds, viz. ift, without any act of force, which is a simple escape; and 2d, with an act of force, viz. by breach of prison. 1 Hale's Hift. 590. 2 Hawk. c. 18.

For the better understanding of all which matters, it will be proper to treat distinctly; 1. Of escapes, properly so called. II. Of rescous. III. Of prison-breaches.

1. That is, in criminal cases; for it is not intended to treat in this work of Licapes in civil causes.

B 2

1. Of

1. Of escapes, properly so called. Offences of this kind, so properly called, are such as are, without force, and may be either by a public officer or a private person, having the custody of a felon; or by the

felon himself. What shall be 1. To constitute an escape, there must be an actual arrest; deemed an ef- and therefore if an officer, having a warrant to arrest a man, cape in an of- fee him shut up in a house and challenge him as his prison

er, but never actually have him in custody, and the party gets free, the officer cannot be charged with an escape. 2 Hawk. c. 19. f. 1.

2. As there must be an actual arrest, such arrest must also be justifiable, for if it be either for a supposed crime, where no such crime was committed, and the party never indicted nor appealed, or for such a slight suspicion of an actual crime, and by such an irregular mittimus, as will neither justify the arrest nor imprisonment, the officer is not guilty of an escape by suffering the prisoner to go at large, and it seems to be a good general rule, that wherever an imprisonment is so far irregular, that it will be no offence in the prisoner to break from it by force, it can be no offence in the officer to suffer him to escape. 2 Hawk. c. 19. S. 2.

3. As the imprisonment must be justifiable, so must it also be for a criminal matter. 2 Hawk. c. 19. f. 3.

4. As the imprisonment must be justifiable, and for some crime, so muft its continuance, at the time of the escape be grounded on that satisfaction which the public justice demands for such crime ; for if a prisoner be acquitted, and detained only for his fees ?, it will not be criminal to suffer him to escape, though the judgment were, that he be decharged, paying his fees ; so that till they be paid the first imprisonment continued lawful, as before ; for as he is de tained not as a criminal, but only as a debtor; his escape cannot be more criminal than that of any other debtor : yet if a person convi&ted of a crime be condemed to imprisonment for a certain time, and also till he pay his fees, and he escape after such time is elapsed, without paying them, perhaps such escape may be criminal, because it was part of the punishment that the imprisonment be continued till the fees should

2. No prisoner acquitted, or ordered to be discharged on proclanjation, can now be detained for gaol fees only, the 14. Gie. 2.6 20. having abolished the íces formerly due in thoss cafes.

be

be paid. But it seems, that this is to be intended where the fees are due to others as well as to the gaoler, for otherwise the gaoler will be the only sufferer by the escape, and it will be hard to punish him for suffering an injury to himself only, in the nonpayment of a debt in his power to release. 2 Hauk.c. 19. f. 4.

5. It is an escape in some cases to suffer a prisoner to have greater liberty than by law he ought to have; as to 'admit a person to bail, who by law ought not to be bailed, but to be kept in close custody ; or to permit a prisoner to go out of the limits of the prison, though he return. 2 Hawk. c. 19. f. 5.

6. If the gaoler so closely pursue the prisoner, who flies before him, that he retake him, without losing fight of him, the law looks on the prisoner so far in his power all the time, as not to adjuge such a flight to amount at all to an escape : but if the gasler once lose light of the prisoner, and afterwards retake him, he seems in strictness to be guilty of an efcape; and therefore if he kill him in the pursuit, he is in like manner guilty, though he never lost sight of him, and could not otherwise take him; not only because the king loses the benefit he might have had from the attainder of the prisoner, by the forfeiture of his goods, but also because the public justice is not so well satisfied by the killing him in such an extrajudicial manner. 2 Hawk. c. 19. f. 6.

7. If a prisoner be rescued by enemies; the gaoler, is not guilty of an escape. 2 Hawk. c. 19. f. 9.

And according to Hale, if it be done by rebels, though this excuse not the gaoler or sheriff in civil actions, but he is liable to an action of debt, or upon the case, for the escape, because he hath his remedy over against the hundred, yet in criminal matters it excuseth the gaoler from felony, and also from a fine, if it be vis major quam cui refifti poteji ; that is, if it be done by an irresistible force. i Hale's Hift. 596.

Escapes are also of two kinds, voluntary or negligent. i Hale's Hift. 590.

And wherever an officer, who hath the custody of a pri- Where such effoner, charged with and guilty of a capital offence, doth cape is to be knowingly give him his liberty, with an intent to save him deemed volunca

ry, where nego either from his trial or execution, he is guilty of a volunta- Tigent. ry escape, and thereby involved in the guilt of the fame crime of which the prisoner was guilty. 2 Hawk. c. 19. s. 10.

But a negligent escape is when the party arrested or imprisoned doth escape against the will of him that arrested or imprisoned him, and is not freshly pursued and taken again before he hath lost the fight of him. Dalton (ed. 1727) 510. And if a prisoner for felony break the gaol, this seems to

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