Where a prifoner may be retaken after an escape.

be a negligent efcape in the gaoler, because there wanted either that due ftrength in the gaol, that fhould have secured 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 efcape; for if gaolers might not be punished for this as a negligent escape, they would be carelefs either to fecure their prifoners, or to retake them that efcape. 1 Hale's Hift. 601.

And it feems, according to Hale, that in fome cafes an officer may be adjudged guilty of a voluntary efcape, who hath not fuch intent, but only means to give his prifoner that liberty, which by the law he hath no colour of right to give him; as where a gaolet bails a prifoner who is not bailable, 2 Hawk. c. 19. f. 10. 1 Hale's Hift. 596, 597.

But it feems agreed, that a perfon who hath power to bail is guilty only of a negligent escape, by bailing one who is not bailable. 2 Hawk. c. 19. f. 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 prifoner; whom he hath no power to bail; but that the judgment to be made of all offences of this kind, must depend on the circumftances of the cafe, as the heinoufnefs of the crime with which the prifoner is charged, the notoriety of his guilt, the improbability of his returning to render himself to juftice, the intention of the officer, the motives on which he acted and the like. 2 Hawk. c. 19. f. 10.

An officer making a fresh purfuit after a prifoner, whọ hath escaped through his negligence, may retake him at any time after, whether he find him in the fame or a different county. 2 Hawk. c. 19 f. 12.

And wherever a perfon is lawfully arrefted for any cause, and afterwards efcapes, and fhelters himfelf in an houfe, the doors may be broken open to take him, on refusal of admit2 Hawk. c. 14. f. 9.

tance.

Alfo it is faid generally in fome books, that an officer who hath negligently fuffered a prifoner to escape, may retake him wherever he finds him, without mentioning any fresh purfuit; and indeed, fince the liberty gained by the prifoner is wholly owing to his own wrong, there feems to be no reason he should take any manner of advantage from it. 2 Hawk.c, 19. f. 12.

And Mr. Serj. Hawkins inclines to the opinion, that even where a gaoler hath voluntarily fuffered a prifoner to efcape, he may justify the retaking him; though by such retaking he cannot avoid the judgment of any fine that may have been impofed on him for the efcape. 2 Hawk. c. 19, f. 12.

Perhaps

Perhaps it is the better opinion, that wherever a prifoner, How for an efby the negligence of his keeper, gets fo far out of his power cape is excufed that the keeper lofes fight of him, the keeper is finable at prifoner or killby retaking the the defcretion of the court, notwithstanding he retook him ing him. immediately after, for it feems agreed, that this is to be adjudged a negligent efcape, 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 prifoner, after he has been fined for the escape. 2 Hawk. c. 19. f. 13.

Alfo it is clear, that he cannot excufe himfelf by killing a prifoner in the purfuit, though he could not poffibiy retake him; but muft in such case, be content to fubmit to fuch fine as his negligence fhall appear to deferve. 2 Hawk. c. 19. /. 13.

dicted.

Every indictment for an escape, whether negligent or vo- How the officer luntary, muft exprefsly fhew, that the party was actually in fuffering the ef the defendant's cuftody for a crime, action, or commitment Cape is to be infor it, and that it is not fufficient to fay, that he was in the defendant's cuftody, and charged with fuch a crime, because a perfon in cuftody may be fo charged, and yet not in cuftody by reafon of fuch charge, and it feems alfo, that fuch indictment muft exprefsly fhew that the prifoner went at large. Also it seems neceffary to fhew the time when the offence was committed, for which the party was in cuftody, not only that it may appear to be prior to the escape, but also that it was fubfequent to the laft general pardon. Alfo it feems clear that every indictment for a voluntary efcape muft allege that the defendant feloniously and wilfully fuffered the prifoner to go at large; and muft alfo fhew the fpecies of the crime for which the party was imprifoned; for it is not fufficient to say in general, that he was in cuftody for felony; but it seems questionable whether fuch certainty as to the nature of the crime, be neceffary in an indictment for a negligent escape, because in that cafe it is not material whether the perfon who escaped were guiity or not (I). 2 Hawk. c. 19. . 14. Where

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

Middlesex. } The jurors for our lord the king upon their oath

the

prefent, that on the

day of- in year of the reign of our fovereign lord George the Third, king of Great Britain, &c. at the parish of P in the Founty of M, one S C came before A R, efqr. then and yet one

Where an

tried and ad

judged.

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

of the justices of our faid lord the king, affigned to keep the peace of our faid lord the king in and for the county of M, and alfo to hear and determine divers felonies, trefpaffes and other mifdeeds committed in the fame county; and the faid S C did then and there, on his oath, before the fame juftice, charge, accufe and give information against one W M, of the parish aforefaid in the county aforefaid, yeoman, for a certain misdemeanor in taking fish out of the pond of the most noble J, duke of C, at E, in the faid county of M; whereupon he the faid A R, the juftice aforefaid, did then and there, to wit, at the parish of P, aforefaid, in the county aforefaid, make a certain warrant, under his hand and feal, in due form of law, directed to the conStable or headborough of the parish of P, aforefaid, in the county aforefaid, thereby requiring them to take the body of the faid W M, and bring him before the faid A R, the justice aforefaid, to answer to fuch matters and things as fhould be alledged against him touching the faid mifdemeanor; which faid warrant afterwards, to wit, on the fame day and year aforefaid, at E aforefaid, in the county aforefaid, was delivered to_cne IW, then being one of the conflables of the faid parish of P, in due form of law to be executed; by virtue of which faid warrant the faid IW, afterwards, to wit, on the faid

day

of in the year aforefaid, at the parish of P aforefaid,
in the faid county, did take and arreft the body of the faid W M,
and him the faid W M, in his cuftody, for the cause aforefaid
had nevertheless, the faid I W, of the faid parish of P, in the
county aforefaid, yeoman, afterwards, to wit, an the faid.
day of in the year aforefaid, the duty of his office in that
refpect not regarding, at the parish of P aforefaid, in the coun-
ty aforefaid; unlawfully and negligently did permit the faid
W M, to escape and go at large whither foever he would, out of
the cuftody of him the faid I W, to the great hindrance of
juftice, 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.

+ If the efcape is voluntary, fay, unlawfully, voluntarily, and contemptuously, did permit and fuffer the jaid W M to ejcape, Te.

quiry, unless he have some reasonable matter to alledge in his excufe; as that the prison was fet on fire, or broken open by enemies, or by rebels with irrefiftable force, for he fhall be concluded, by the record of the commitment, to deny that the prifoners were in his cuftody. 2 Hawk. c. 19. f. 15. 1 Hale's Hift. 600, 596.

But as to other prifoners who are not fo committed, but are in the custody of a gaoler, fheriff, conftable, or other perfon, by any other means whatfoever, it feems agreed that the perfon who has them in cuftody, is in no cafe punishable for their escape, except in fome special cafes, but by prefentment or indictment. 2 Hawk. c. 19. /. 15.

And it is enacted by flat. Weftm. 1. 3 Ed. I. c. 3, That Before whom. nothing fhall be demanded nor taken, nor levied by the fheriff, nor by any other, for the escape of a thief, or felon, until it be judged for an escape by the juftices in eyre; and that he who does otherwife, fhall reftore to him or them that have paid it, as much as that he or they have taken or received, and as much alfo unto the king.

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

Alfo 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 alfo escapes of clerks convict from thenceforth, to be judged before any of the king's juflices, fhall be levied from time to time, as they shall fall, as well of the time paft as time to come.

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

And it is farther enacted by 1 Ric. 3. c. 3, that juftices of peace fhall have authority to inquire in feffions, of all manner of efcapes of every perfon arrested and imprisoned for felony.

A voluntary efcape amounts to the fame kind of crime, How a voluntaand is punishable in the fame degree, as the offence of ry efcape is to be which the party was guilty, and for which he was in custo-punished. dy, whether it be treafon, felony, or trefpafs, and whether the person escaping were actually committed to fome gaol, or under an arreft only, and not committed; and whether he were attainted or only accufed of fuch crime, and neither indicted nor appealed: and it is faid to be no excufe of fuch escape, that the prifoner had been acquitted on an indictment of death, and only committed till the year and

day

day be paffed, to give the widow or heir of the deceafed 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 perfon who voluntarily fuffers him to escape, fhall have the benefit of clergy. 1 Hale's Hift. 599.

And it is enacted by 19 Gco. 3. c. 74. f. 66, and 31 Geo. 3. c. 46. /. 3, That if any perfon having the cuftody of any offender, ordered to hard labour, (inftead of being capitally punished or tranfported, 19 Geo. 3. c. 74. /. 65.) in any place of confinement, or being employed by the perfon having fuch cuftody, as a keeper, under keeper, turnkey, affiftant, or guard, fhall voluntarily permit fuch offender to escape, fuch perfon fhall be guilty of felony; and if any perfon having fuch cuftody, or being fo employed by the perfon having fuch cuftody, fhall negligently permit fuch offender to escape, fuch perfon fhall be guilty of a mifdemeanor, and being fo convicted, fhall be liable to fine or imprisonment, or to both, at the discretion of the court..

Alfo fuch an escape, fuffered by one who wrongfully takes upon him the keeping of a gaol, feems to be punishable in the fame manner, as if he were never fo rightfully intitled to fuch cuftody, because the crime is in both cafes of the very fame ill confequence to the public; and there feems to be no reafon that a wrongful officer fhould have greater favour than a rightful, and that for no other reason, but because he is a wrongful one. 2 Hawk. c. 19. f. 23.

Alfo if the warrant of commitment do plainly and exprefsly charge the party with treafon or felony, but in fome other refpect be not strictly formal, yet it seems, that.it may reasonably be contended, that the gaoler fuffering an efcape, is as much punifhable as if the warrant were perfectly right; for if good in fubftance, the public good feems to require, that the gaoler be as much bound to obferve it, as if never fo exactly made. 2 Hawk. c. 19. /. 24,

But no escape can amount to a capital offence, unless the caufe for which the party was committed, were actually fuch at the time of the efcape; and therefore, if a gaoler fuffer one to escape who is committed for having given another a dangerous wound, who afterwards dies of fuch wound, yet he is not guilty of felony, because the offence of the prifoner was but a trefpafs at the time of the escape. 2 Hawk. c. 19. S. 25.

And it feems to be clear, that a keeper who voluntarily fuffers another to escape, who was in his cuftody for felony, cannot be arraigned for fuch efcape as for felony, until the principal be attainted, for that the felony of the pri

foner