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pardon, that a certificate from the officer of the former conviction was not evidence, as in the case of being at large after sentence of transportation. The indictment was for an escape from the House of Correction after a pardon, upon condition of being there for one year; the certificate of the clerk of assize was produced in evidence: but, upon a case reserved, the Judges were of opinion that the certificate was no evidence, there being no act which made it evidence, and that the conviction was wrong. (2) But a late statute 4 Geo. 4. c. 64. s. 44. to the intent that prosecutions for escapes, breaches of prison, and rescues, may be carried on with as little trouble and expense as possible, enacts' (amongst other things) that in case of any prosecution for any escape, attempt to escape, breach of prison or rescue, either against the offender escaping or attempting to escape, or having broken prison, or having been rescued, or against any other person or persons concerned therein, or aiding, abetting, or assisting the same, a certificate given by the clerk of assize, or other clerk of the court in which such offender shall have been convicted, shall, together with due proof of the identity of the person, be sufficient evidence to the court and jury of the nature and fact of the conviction, and of the species and period of confinement to which such person was sentenced. With respect to the form of such a certificate, a case decided upon a statute 56 Geo. 3. c. 27. s. 8., now repealed, may be mentioned, in which it. was decided that the certificate of a former conviction, authorized by that statute, should set forth the effect and substance of the conviction; and that stating it to have been for felony only was insufficient. The prisoner was indicted for being at large after a sentence of transportation for seven years : the indictment only stated that he had been convicted of felony, without specifying the nature of that felony; and the certificate to prove the former conviction was in the same form. Upon the point being saved, the Judges thought this case decided by a former case of Rex v. Sutcliffe, and the prisoner was remitted

to his original sentence. (y) Persons es- . It may be here mentioned that, by a late statute, 44 Geo. 3. c. caping from 92. s. 3. offenders, against whom any warrant shall be issued, esGreat Britain to Ireland, or caping from Ireland into England or Scotland, may be apprefrom Ireland to hended by an indorsed warrant, and conveyed to Ireland : and the to be appre

lain, fourth section of the act makes the same provision as to offenders hended and escaping from England or Scotland into Ireland, being apprebrought back hended and conveyed back again to England or Scotland. (e) again.

Escapes effected or, perhaps more properly, suffered by others than the party himself, without force, by permission or negligence, may be either, 1. by officers; or, II. by private persons.

(2) Rex v. Smith, East. T. 1788. (e) And see as to the apprehension MS. Bayley, J.

of persons escaping from England into (y) Rex v. Watson, Mich. T. 1821. Scotland, and from Scotland into Eng. MS. Bayley, J. and Russ. and Ry.468. Jand, 13 Geo. 3. c. 31. And as to the The statute 56 Geo. 3. c. 27. s. 3. au- admitting persons apprehended in Eng. thorized a certificate containing the land, Scotland, and Ireland, respecteffect and substance only, omitting the ively, to bail, for bailable offences, see formal part, of every indictment, con- 45 Geo. 3. c. 92, and 54 Geo. 3. c. 186. viction, &c.

Gres

SECT. I.

Of Escapes suffered by Officers.

an actual arrest.

An escape of this kind must be from a justifiable imprisonment for a criminal matter, after an actual arrest.

As there must be an actual arrest, it has been holden, that if an The escape officer, having a warrant to arrest a man, see him shut up in a must be after house, and challenge him as his prisoner, but never actually have a him in his custody, and the party get free, the officer cannot be charged with an escape. (f)

The arrest and imprisonment must be justifiable ; for, if a party And the arrest be arrested for a supposed crime, where no such crime was com- and imprison

ment must be mitted, and the party neither indicted nor appealed, or for such a justifiable. 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. (8) But it seems that if a warrant of commitment plainly and expressly charge the party with treason or felony, though it be not strictly formal, the gaoler, suffering an escape, is punishable; and that where commitments are good in substance, the gaoler is as much bound to observe them as if they were made ever so exactly. (h) It is stated as a sood general rule upon this subject that, whenever 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. (*)

Thc imprisonment must not only be justifiable, but also for some The imprisoncriminal matter. But the escape of one committed for petit lar- ment must be ceny only is criminal; and it seems most agreeable to the general

agreeable to the con for a criminal

agreeable Lone general matter, and reason of the law that the escape of a person committed for any continuing at other crime whatsoever should also be criminal. (j) The impri- the time of sonment must also be continuing at the time of the escape; and its

it the escape. continuance must be grounded on that satisfaction which the public justice demands for the crime committed. So that 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 should be discharged, “ paying his fees ;" he being in such case detained only as a debtor: but if a person, convicted of a crime, be condemned to imprisonment for a certain time, and also until he “ pays his fees,” it is said that perhaps an escape of such person, after the time of his imprisonment is elapsed, without paying his fees, may be criminal; as it was part of the punishment

(f) 2 Hawk. P.C. c. 19. s. l.

Lord Raym. 424. (3) Id. ibid. s. 2.

(1) Id. ibid. s. 2. And see post, Chap. (h) 2 Hawk. P. C. c. 19. s. 2.1. A xxxiii. commitinent to a prison, and not to a (1) 2 Hawk. P. C. c. 19. s. 3. 1 person, was held good in Rex v. Fell, Hale 592.

VOL. I.

2 B

Escapes may be voluntary or negligent.

clicence.

Of voluntary escapes.

that the imprisonment should be continued till the fees should be paid. (k)

The next important inquiry upon this subject will be, whether the escape be voluntary or negligent, as the former is an offence of a much more serious nature than that which may have been committed by negligence.

Whenever an officer, having the custody of a prisoner charged with, and guilty of, a capital offence, knowingly gives him his liberty with an intent to save him either from his trial or execution, such officer is guilty of a voluntary escape ; and thereby involved in the guilt of the same crime of which the prisoner is guilty, and for which he was in custody. (l) Hawkins says, that it seems to be the opinion of Sir Matthew Hale, (m) that in some cases an officer may be adjudged guilty of a voluntary escape who had no such intent to save the prisoner, but meant only to give him a liberty which, by law, he had no colour of right to give; as if a gaoler should bail a prisoner who is not bailable: but he withholds his assent to that opinion, on the grounds that it is not sufficiently supported by authorities, and does not seem to accord with the purview of a statute 5 Edw. 3. c. 8. relating to the improper bailing of persons by the marshals of the King's Bench. (n) He says also, that it seems to be agreed that a person who has power to bail is guilty only of a negligent escape, by bailing one who is not bailable; and that there are some cases wherein an officer seems to have been found to have knowingly given his prisoner more liberty than he ought to have had, (as by allowing him to go out of prison on a promise to return; or to go amongst his friends, to find some who would warrant goods to be his own which he is suspected to have stolen) and yet seems to have been only adjudged guilty of a negligent escape. (o) And he concludes by saying, that if, in these cases, the officer were only guilty of a negligent escape, in suffering the prisoner to go out of the limits of the prison, without any security for his return, he could not have been guilty in a higher degree if he had taken bail for his return; and that from thence it seems reasonable to infer that it cannot be, in all cases, a general rule that an officer is guilty of a voluntary escape by bailing his prisoner, whom he has no power to bail, but that the judgment to be made of all offences of this kind must depend upon the circumstances of the case : such 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, and the motives on which he acted. (p)

(lt) 2 Hawk. P. C. c. 19. s. 4. This (m) Sum. 113. i Hale 596, 597. seems to be a good reason : but Haw- (n) Post, 376. kins says that it is to be intended only (0) Hawkins says, however, that it where the fees are due to others as must be confessed that, in these cases, well as to the gaoler; for, otherwise, the prisoner was only accused of larthe gaoler would be the only sufferer ceny, and that it does not appear wheby the escape; and that it would be ther he were bailable or not; and that, hard to punish him for suffering an in- generally, the old cases concerning jury to himself only in the non-pay. this subject are so very briefly reported inent of a debt in his power to release, that it is very difficult to make an ex

(l) Staund. P. C. 33. 2 Hawk. P.C. act state of the matter from them. c. 19. s. 10. 4 Blac. Com. 129.

(9) 2 Hawk. P. C. c. 19. s. 10.

scapes.

It appears to have been holden, that it is an escape in a constable to discharge a person committed to his custody by a watchman as a loose and disorderly woman, and a street-walker, although no positive charge was made. (9)

A negligent escape is where the party arrested or imprisoned Of negligent escapes against the will of himn that arrests or imprisons him, and is not freshly pursued and taken again before he has been lost sight of. (r) . And, from the instances of this offence mentioned in the books, it seems that where a party so escapes the law will presuine negligence in the officer. Thus, if a person in custody on a charge of larceny suddenly, and without the assent of the constable, kill, hang, or drown himself, this is considered as a negligent escape in the constable. (s) And if a prisoner charged with felony break a gaol, it is said that this seems to be a negligent escape; because there wanted either the due strength in the gaol that should have secured him, or the due vigilance in the gaoler or his officers that should have prevented it. (1) But it is submitted that it would be competent to a person charged with a negligent escape under such circumstances to shew in his defence that all due vigilance was used, and that the gaol was so constructed as to have been considered by persons of competent judgment a place of perfect security. Undoubtedly an escape happening from defects in these particulars would come within the principle of guilty negligence in those concerned in the proper custody of the criminal; and neglect in not keeping gaols in a proper state of repair, by those who are liable to the burthen of repairing them, appears in many instances to have been treated as an indictable offence, tending to the great hindrance and obstruction of justice. (u)

A person who has power to bail is guilty only of a negligent Negligent escape by bailing one who is not bailable. Thus if a justice of escape by

admitting to peace bails a person not bailable by law, it excuses the gaoler, and bail. is not felony in the justice; but a negligent escape, for which he is finable at common law, and by the justices of gaol delivery. (w)

(9) Rex v. Bootie, 2 Burr. 864. tid remotd pietateque adhibila judicia

(r) Dalt. c. 159. 1 Burn. Just. Es. debite exequantur. Flet. Lib. I. cap. cape IV.

26. And the Mirror of Justices, Ch. (8) Dalt. c. 159.

5. s. 1. n. 54. says, that it is an abuse I Hale 600. where it is said that that prisoners should be charged with " therefore it is lawful for the gaolerirons, or put to any pain, before they “to bamper them with irops, to pre- be attainted of felony: and Lord Coke, “vent their escape." But see the note in his comment on the statute of (a) ibid, where it is said that this li- Westm. 2. ch. 11. is express, that by berty can only be intended where the the common law it might not be done. officer has just reason to fear an es- 2 Inst. 381. cape, as where the prisoner is unruly, (u) See the precedents of indictments or makes any attempt for that pur for this offence, 4 Wentw. 363. Cro. pose; but that otherwise, notwith- Circ. Comp. 318. Cro. Circ, Ass. 398. standing the common practice of gao. 3 Chit. Crim. L. 668, 669. lers, it seems altogether unwarrantable, (w) At common law, according to and contrary to the mildness and hu25 Edw. 3. 39. (in the last edition of manity of the laws of England, by the year books mispaged 25 Edw. 3. which gaolers are forbid to put their 82. a.) and by the justices of gaol deprisoners to any pain or torinent; Co. livery, by the statute 1 and 2 Ph. and P. C. 34, 35. Custodes gaolarum pænam M. c. 13. See 1 Hale 596. and as to sibi commissis non augeant, nec cos escapes by admitting to bail or to imtorqueant vel redimant, sed awni sævi- proper liberty, ante, 370,

Of retaking a prisoner.

It is laid down as clear law, that whoever de facto occupies the office of gaoler is liable to answer for a negligent escape, and that it is in no way material whether or not his title to the office be legal. (x) But it seems that an indictment for a negligent escape will only lie against those officers upon whom the law casts the obligation of safe custody, and will not lie against the mere servants of such officer. Thus, where the indictment was against one of the yeomen wardens of the Tower and the gentleman gaoler, for permitting Colonel Parker, who was committed for high treason, to escape, it appeared that the constable of the Tower had committed the colonel to their special care : but the court held that the defendants were not such officers as the law took notice of, and therefore could not be guilty of a negligent escape; and they were acquitted. (y) And upon the same principle another wardour of the Tower appears also to have been acquitted of a negligent escape. ( It appears, however, that a sheriff is as much liable to answer for an escape suffered by his bailiff as if he had actually suffered it himself; that the court may charge either the sheriff or bailiff for such an escape; and that, if a deputy gaoler be not sufficient to answer a negligent escape, his principal must answer for him. (a)

The difference between a voluntary and negligent escape will also require to be attended to in considering the effect of the retaking of a prisoner after he has been suffered to escape.

When an officer has voluntarily suffered a prisoner to escape, it is said that he can no more justify the re-taking him than if he had never had him in custody before; because, by his own free consent, he hath admitted that he hath nothing to do with him: but if the party return, and put himself again under the custody of the officer, it seems that it may probably be argued that the officer may lawfully detain him, and bring him before a justice in pursuance of the warrant. (b)

It seems to be clearly agreed by all the books that an officer making fresh pursuit after a prisoner, who has escaped through his negligence, may retake him at any time afterwards, whether he find him in the same, or a different county : and it is said generally in some books, that an officer, who has 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 why he should have any manner of advantage from it.(c) If the officer pursue a prisoner, who flies from him, so closely as to retake him without losing sight of him, the law regards the prisoner as being so much in his power all the time as not to adjudge such flight to amount to an escape : but if the officer once lose

After a voluntary escape.

After a negligent escape.

(0) 2 Hawk. P. C. c. 19. s. 28. “ gaoler who suffers an escape have an

(y) Rex v. Hilland Dod, Old Bailey, “estate for life or years in the office, Jan. 1694, 1 Burn. Just. Escape, Ill. “I do not find it agreed how far he in p. 930. (24th ed.)

“reversion is liable to be punished."
(z) Rex v. Rich, Old Bailey, Jan. (6) 2 Hawk. P. C. c. 19. s. 12. c. 13.
1694, MS. Bayley, J.

S. 9. Dalt. c. 169. 1 Burn. Just.
(a) 2 Hawk. P. C. c. 19. s. 29. and Escape.
Rex v. Fell, i Lord Raym. 424. 2 (c) 2 Hawk. P. C. c. 19. s. 12.
Salk. 272. Hawkins says, “ But if the

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