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THE

WHOLE LAW

RELATIVE TO THE

DUTY AND OFFICE

O F

A Juftice of the Peace.

Eaves-Droppers.

EAVES-droppers, or fuch as liften under walls or windows, or the eaves of houfes, to hearken after difcourfe, and thereupon to frame flanderous and mifchievous tales, are a common nuifance, and prefentable at the court-leet; or, are indictable at the feffions, and punishable by fine and finding fureties for their good behaviour. 4 Black. Com 168. Kitch. of Courts 20. 2 Hawk. c. 10. f. 58. And it seems that a magiftrate may also compel fuch perfons to find furety for their good behaviour. 1 Hawk. c. 61. J. 4.

Egyptians. See Dagrants.

Elopement.

BY4&5 Phil. & Mar. c. 8, If any perfon above the age of fourteen, fhall unlawfully take or convey, or caufe to be taken and conveyed, any maid or woman child unmar

VOL. II.

B

ried,

ried, being within the age of fixteen years, out of the poffeffion and against the will of her father, or mother, or of fuch perfon or perfons as then fhall happen to have, by any lawful ways, the order, keeping, education, or governance of her; fuch perfon being convicted in courfe of law, by inquifition or indictment, fhall fuffer two years imprifonment, or pay fuch fine as fhall be affeffed by the court; half to the king, and half to the parties grieved. /. 3. 5.

Again the will of her father.] A baftard 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 convicted in courfe of law.]. This is an offence within the jurifdiction of the court of King's Bench, for which they will grant an information. 4 Mod. 145. 2 Strange 1107.

And if any perfon fhall fo take away, or caufe to be taken away and deflour any fuch maid or woman child; or fhall, against the will, or unknowing of, or to the father of fuch child, if the father be in life, or against the will or unknowing of the mother (having the cuflody or governance of fuch child, if the father be dead), by fecret letters, meffages, or otherwife, contract matrimony with fuch maiden or woman child, every perfon fo offending, being convicted, fhall fuffer imprisonment five years, or pay fuch fine as fhall be affcffed by the court; the one moiety to the king, the other to the informer. . 3.

And if any woman child, or maiden, being above the age of twelve years, and under 16, thali confent, or agree to fuch person that shall fo contract matrimony, the next of kin to her fhall have, hold, and enjoy her lands during the life of the perfon fo contracting, on whofe deceafe the lands fhall defcend to fuch perfons as they fhould have done, in cafe this act had never been made, other than to him that shall fo contract matrimony. f. 6.

But now the execution of fuch contract of matrimony cannot be enforced; for, by 26 Gco. 2. c. 33, No fuit fhall be had in any ecclefiaftical court to compel a celebration of any marriage in facie ecclefie, by reafon of any contract of matrimony, whether per verba de præfenti, 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 ufually published, unless by fpecial licence from the archbishop of Canterbury, or without publication of bans, or licence of marriage, thall be void. f. 8.

And

And all marriages folemnized by licence, where either of the parties, not being a widower or widow, fhall be under the age of twenty-one years, which fhall be had without the confent of the father of fuch of the parties fo under age, if living, or, if dead, of the guardians, or one of them; and in cafe 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, fhall be void. f. 1I.

For the offence of taking women away against their will, fee FELONY (without Clergy, Women.)

Embezzlement.

factures.

See Felonp and Manu

Embracery. See Maintenance.

Engrofing. See Forestalling.

Elcapes.

ESCAPE in general is understood, where any perfon, who be- Defined. ing under lawful arreft, and reftrained of his liberty, either violently or privately evades fuch arreft and reftraint, or is fuffered to go at large before delivered by due courfe of law. 2 Bacon's Abr. 233.

I

And these escapes are of three kinds, 1ft, by the perfon that hath the felon in his cuftody, which is properly an ef cape; 2dly, when the escape is caused by a stranger, which is ordinarily called a refcue; and, 3dly, by the party himself, which is of two kinds, viz. Ift, without any act of force, which is a fimple escape; and 2d, with an act of force, viz. by breach of prifon. 1 Hale's Hift. 590. 2 Hawk. c. 18. For the better understanding of all which matters, it will proper to treat diftin&ly;

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1. That is, in criminal cafes; for it is not intended to treat in this work of

Elcapes in civil caufes.

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What shall be

deemed an efcape in an officer.

I. Of escapes, properly fo called.

Offences of this kind, fo properly called, are fuch as are, without force, and may be either by a public officer or a private perfon, having the custody of a felon; or by the felon himself.

1. To conftitute an efcape, there must be an actual arreft; and therefore if an officer, having a warrant to arreft a man, fee him fhut up in a house and challenge him as his prifoner, but never actually have him in cuftody, 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 alfo be juftifiable, for if it be either for a fuppofed crime, where no fuch crime was committed, and the party never indicted nor appealed, or for fuch a flight fufpicion of an actual crime, and by fuch an irregular mittimus, as will neither juftify the arreft nor imprisonment, the officer is not guilty of an escape by fuffering the prisoner to go at large, and it feems to be a good general rule, that wherever an imprisonment is fo far irregular, that it will be no offence in the prifoner to break from it by force, it can be no offence in the officer to fuffer him to efcape. 2 Hawk. c. 19. J. 2.

3. As the imprisonment must be juftifiable, fo muft it alfo be for a criminal matter. 2 Hawk. c. 19. f. 3.

4. As the imprisonment must be juftifiable, and for some crime, fo muft its continuance, at the time of the escape be grounded on that fatisfaction which the public justice demands for fuch crime; for if a prifoner be acquitted, and detained only for his fees, it will not be criminal to fuffer him to escape, though the judgment were, that he be decharged, paying his fees; fo that till they be paid-the firft 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 perfon convicted of a crime be condemed to imprisonment for a certain time, and also till he pay his fees, and he escape after fuch time is elapfed, without paying them, perhaps fuch escape may be criminal, because it was part of the punishment that the imprisonment be continued till the fees fhould

2. No prifoner acquitted, or ordered to be discharged on proclaniation, can now be detained for gaol fees only, the 14. Gro. 2. 6. 20. having abolished the fces formerly due in those cafes.

be

be paid. But it feems, that this is to be intended where the fees are due to others as well as to the gaoler, for otherwife the gaoler will be the only fufferer by the efcape, and it will be hard to punith him for fuffering an injury to himself only, in the nonpayment of a debt in his power to release. 2 Hawk. c. 19. f. 4.

5. It is an escape in fome cafes to fuffer a prifoner to have greater liberty than by 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 the prifon, though he return. 2 Hawk. c. 19. f. 5.

6. If the gaoler fo clofely purfue the prifoner, who flies before him, that he retake him, without lofing fight of him, the law looks on the prifoner fo far in his power all the time, as not to adjuge such a flight to amount at all to an escape: but if the gaoler once lofe fight of the prifoner, and afterwards retake him, he seems in ftrictnefs to be guilty of an efcape; and therefore if he kill him in the purfuit, he is in like manner guilty, though he never loft fight of him, and could not otherwife take him; not only because the king lofes the benefit he might have had from the attainder of the prifoner, by the forfeiture of his goods, but also because the public juftice is not fo well fatisfied by the killing him in fuch an extrajudicial manner. 2 Hawk. c. 19. f. 6.

7. If a prifoner be refcued by enemies; the gaoler, is not guilty of an efcape. 2 Hawk. c. 19. f. 9.

And according to Hale, if it be done by rebels, though this excufe not the gaoler or fheriff in civil actions, but he is liable to an action of debt, or upon the cafe, for the escape, because he hath his remedy over against the hundred, yet in criminal matters it excufeth the gaoler from felony, and alfo from a fine, if it be vis major quam cui refifii poteft; that is, if it be done by an irresistible force. 1 Hale's Hift. 596.

Efcapes are alfo of two kinds, voluntary or negligent. 1 Hale's Hift. 590.

ry, where neg

And wherever an officer, who hath the cuftody of a pri- Where fuch ef foner, charged with and guilty of a capital offence, doth cape is to be knowingly give him his liberty, with an intent to fave him deemed volunta either from his trial or execution, he is guilty of a volunta-ligent. ry efcape, and thereby involved in the guilt of the fame crime of which the prifoner was guilty. 2 Hawk. c. 19. f. 10.

But a negligent efcape is when the party arreited or imprifoned doth efcape against the will of him that arrested or imprifoned him, and is not frefhly purfued and taken again before he hath loft the fight of him. Dalton (ed. 1727) 510.

And if a prisoner for felony break the gaol, this feems to

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