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be a negligent escape in the gaoler, because there wanted either that due strength in the gaol, that should have secure ed him, or that due vigilance in the gaoler or his officers to have prevented it ; and therefore it is lawful for the gaoler to hamper them with irons to prevent their escape; for 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. Hale's Hif. 601.

And it seems, according to Hale, that in some cases an officer may be adjudged guilty of a voluntary escape, who hath not such intent, but only means to give his prisoner that liberty, which by the law he hath no colour of right to give him ; as where a gaolet bails a prisoner who is not bailable. 2 Hawk.c. 19. f. 10. i Hale's Hift. 596, 597.

But it seems agreed, that a person who hath power to bail is guilty only of a negligent escape, by bailing one who is not bailabie.

2 Hawk. c. 19. s. 10. And Hawkins inclines to the opinion, notwithstanding the authority of Hale, that it cannot be in all cafes a general rule, that an officer is guilty of a voluntary escape by bailing his prisoner ; whom he hath no power to bail ; but that the judgment to be made of all offences of this kind, musi depend on the circumstances of the case, as the heinousness of the crime with which the prisoner is charged, the notoriety of his guilt, the improbability of his returning to render himself to justice, the intention of the officer, the motives

on which he acted and the like. 2 Hawk. c. 19. f. 10. Where a priso- An officer making a fresh pursuit after a prisoner, who ner may be re- hath escaped through his negligence, may retake him at any taken after an time after, whether he find him in the same or a different escape.

county. 2 Hawk. c. 19 f. 12. ,

And wherever a person is lawfully arrested for any cause, and afterwards escapes, and shelters himself in an house, the doors may be broken open to take him, on refusal of admits tance. 2 Hawk. c. 14. f. 9.

Also it is said generally in some books, that an officer who hath negligently suffered a prisoner to escape, may retake him wherever he finds him, without mentioning any fresh pursuit ; and indeed, since the liberty gained by the prisoner is wholly owing to his own wrong, there seems to be no reason he should take any manner of advantage from it. 2 Hawk.ca 19. f. 12.

And Mr. Serj. Hawkins inclines to the opinion, that even where a gaoler hath voluntarily suffered a prisoner to escape, he may justify the retaking him ; though by such retaking he cannot avoid the judgnient of any fine that may have been imposed on him for the escape. ¿ Hawk. c. 19, f. 12.

Perhaps Perhaps it is the better opinion, that wherever a prisoner, How for an ef. by the negligence of his keeper, gets so far out of his power cape is excufed that the keeper loses fight of him, the keeper is finable at prifoner or kille the descretion of the court, notwithstanding he retook him iig him. immediately after, for it seems agreed, that this is to be adjudged a negligent escape, which implies an offence, and

confequently that it must be punishable. 2 Hawk. c. 19. f. 13.

And it is certain, that it will be no advantage to a gaoler to retake his prisoner, after he has been fined for the escape. 2 Hawk. c. 19. f. 13.

Also it is clear, that he cannot excuse himself by killing a prisoner in the pursuit, though he could not pollibiy retake him; but must in such case, be content to submit to such fine as his negligence shall appear to deferve. 2 Hawk.c. 19. 1. 13.

Every indictment for an escape, whether negligent or vo-How the officer luntary, muft expressly fhew, that the party was actually in suffering the ef the defendant's custody for a crime, action, or commitment Cape is to be infor it, and that it is not suficient to say, that he was in the defendant's custody, and charged with such a crime, because a person in cuftody may be fo charged, and yet not in custody by reason of such charge, and it seems alló, that such indictment must expressly few that the prisoner went at large. Also it seems neceffary to shew the time when the offence was committed, for which the party was in custody, not only that it may appear to be prior to the escape, but also that it was fubfequent to the lait general pardon. Also it seems clear that every indictment for a voluntary escape muft allege that the defendant feloniously and wilfully suffered the prisoner to go at large; and must also shew the species of the crime for which the party was imprisoned ; for it is not fufficient to say in general, that he was in custody for felony ; but it seems questionable whether such certainty as to the nature of the crime, be necessary in an indictment for a negligent escape, because in that case it is not material whether the person who escaped were guiity or not (1). 2 Hawk. c. 19. 7. 14.

Where

dicted.

Middlesex.

(1) An approved form of an indictment at common law against a constable for negligently permitting a man to escape who was arrested for a misdemeanor.

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The jurors

for our lord the king upon their oath
present, that on the

in Third, king of Great Britain, &c. at the parish of Pin the

- year of the reign of our sovereign lord George the sounty of M, 'one SC came before A R, esqr. then and yet one

the

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Where an escape is to be tried and adjudged.

Where persons being present in a court of record, are committted to prison by fuch court, the keeper of the gaol is bound to have them always ready, whenever the court shall demand them of him; and if he shall fail to produce them at such demand, the court will adjudge hiin guilty of an escape, and thereupon fine him without any farther in

of the justices of our faid lord the king, aligned to keep the peace of our said lord the king in and for the county of M, and also to hear and determine divers felonies, trespasses and other misdeeds committed in the same county ; and the said S C did then and there, on his oath, before the same jufiice, charge, accuse and give information against one W M, of the parish aforesaid in the county aforesaid, yeoman, for a certain misdemeanor in taking fish out of the pond of the most noble J, duke of C, at E, in the jaid county of M; whereupon be the faid A R, the jul tice aforesaid, did then and there, to wit, at the parish of P, aforesaid, in the county aforesaid, make a certain warrant, under his hand and seal, in due form of law, directed to the confiable or headborough of the parish of P, aforesaid, in the county aforesaid, thereby requiring them to take the body of the faid W M, and bring him before the said A R, the justice aforesaid, to answer to such matters and things as should be alledged against him touching the said misdemeanor ; which said warrant after wards, to wit, on the same day and year aforesaid, at E aforesaid, in the county aforesaid, was delivered to_cne I W, then being one of the confiables of the said parish of P, in due form of law to be executed; by virtue of which said evarrant the said I W, afterwards, to wit, on the said day

in the year aforesaid, at the parish of P'aforesaid, in the said county, did take and arrest the body of the said W M, and him the said W M, in his custody, for the cause aforesaid had: nevertheless, the said I W, of the said parish of P, in the county aforesaid, yeoman, afterwards, io wit, an the said. day of in the year aforesaid, the duty of his office in that respect not regarding, at ihe parish of P aforesaid, in the counzy aforesaid ; unlawfully and negligently + did permit the said WM, to escape and go at large whither foever he would, out of the cuflody of him the said I w, to the great hindrance of justice, in contempt of our faid lord the king and his laws, and against the peace of our faid lord the king, his crown and dig, nity.

of

+ If the escape is voluntary, fay, unlawfully, voluntarily, and contemptuouffy, did permil and suffer the jaid W M to ejcape, c.

quiry, unless he have some reasonable matter to alledge in his excuse; as that the prison was set on fire, or broken open by enemies, or by rebels with irrefiitable force, for he thall be concluded, by the record of the commitment, to deny that the prisoners were in his cuftody. 2 Hawk. c. 19.1. 15. Hale's Hift. 600, 596.

But as to other prisoners who are not so committed, but are in the custody of a gaoter, sheriff, constable, or other person, by any other means whatsoever, it seems agreed that the person who has them in custody, is in no case punishable for their escape, except in fome special cases, but by presentment or indictment. 2 Hawk. c. 19. f. 15.

And it is enacted by fiat. Westm. 1. 3 Ed. 1. c. 3, That Before whom. nothing thall be demanded nor taken, nor levied by the sheriff, nor by any other, for the escape of a thief, or felon, until it be judged for an escape by the justices in eyre; and that he who does otherwise, Thall restore to him or them that have paid it, as much as that he or they have taken or received, and as much also unto the king.

But this does not restrain the court of King's Bench from receiving such presentments, because it's jurisdiction includes in it that of justices of eyre, and this court is itself the highest court of eyre. 2 Hawk. c. 19. S. 18.

Also it is farther enacted, by 31 Ed. 3. c. 14, That the escape of thieves and felons, and the chattels of felons and of fugitives, and also escapes of clerks convict from thenceforth, to be judged before any of the king's justices, shall be levied from time to time, as they shall fall, as well of the time past as time to come.

By which it seems to be implied, that other justices as well as those in eyre, may take cognizance of escapes ; and it is certain, that justices of gaol delivery-may punish juffices of the peace for a negligent escape, in admitting persons to bail, who are not bailable. 2 Hawk. c. 19. s. 19.

And it is farther enacted by i Ric. 3. c. 3, that justices of peace shall have authority to inquire in sessions, of ali manner of escapes of every person arrested and imprisoned for felony.

Ä voluntary escape amounts to the fame kind of crime, How a volunta. and is punishable in the fame degree, as the offence of ry escape is to be which the party was guilty, and for which he was in custo-punithid. dy, whether it be treason, felony, or trespass, and whether the person escaping were actually committed to fome gaol, or under an arrest only, and not committed ; and whether he were attainted or only accused of such crime, and neither indicted nor appealed : and it is said to be no excuse of such escape, that the prisoner had been acquitted on an indi&tment of death, and only committed till the year and

day

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Hif. 599:

day be pailed, to give the widow or heir of the deceased an opportunity of bringing their appeal. 2 Hawk. c. 19. f. 22.

But, although the felony for which a man is committed be not within clergy; yet the person who voluntarily suffers him to escape, thall have the benefit of clergy. i Hale's

And it is enacted by 19 Gco. 3. c. 74. f. 66, and 31 Geo. 3. C. 46. f. 3, That if any person having the custody of any offender, ordered to hard labour, (instead of being capitally punished or transported, 19 Geo. 3. c. 74. 5. 65.) in any place of confinement, or being employed by the person having such custody, as a keeper, under keeper, turnkey, asliftant, or guard, shall voluntarily permit fuch offender to escape, such person shall be guilty of felony ; and if any person having such custody, or being so employed by the person having such custody, shall negligently permit such offender to escape, such person shall be guilty of a misdemeanor, and being so convicted, shall be liable to fine or imprisonment, or to both, at the discretion of the court..

Allo such an escape, suffered by one who wrongfully takes upon him the keeping of a gaol, seems to be punishable in the same manner, as if he were never so rightfully intitled to such custody, because the crime is in both cases of the very same ill consequence to the public ; and there seems to be no reason that a wrongful officer should have greater favour than a rightful, and that for no other reason, but because he is a wrongful one. 2 Hawk. c. 19. 7. 23.

Also if the warrant of commitment do plainly and expressly charge the party with treafon or felony, but in fome

other respect be inot Itrictly formal, yet it seems, that.it 1 may reasonably be contended, that the gaoler suffering an

escape, is as much punifiable as if the warrant were perfectly right; for if good in substance, the public good seems to require, that the gaoler be as much bound to observe it, as if never fo exactly made. 2 Hawk. c. 19. 1. 24.

But no escape can amount to a capital offence, unless the caufe for which the party was committed, were actually such at the time of the escape; and therefore, if a gaoler suffer one to escape who is committed for having given ans other a dangerous wound, who afterwards dies of such wound, yet he is not guilty of felony, because the offence of the prisoner was but a trespass at the time of the escape, 2 Hawk. c. 19. f. 25.

And it seems to be clear, that a keeper who voluntarily fuffers another to escape, who was in his custody for felony, cannot be arraigned for such escape as for felony, until the principal bę attainted, for that the felony of the pri

foner

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