suddenly and without the assent of the constable, kill, hang, or drown himself, this is considered as a negligent escape in the constable. (w) 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.(x) But it is submitted *that it would be competent to a person charged with a negligent escape under such circumstances to show in his defence that all [*585 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.(y)

A person who has power to bail is guilty only of a negligent escape by bailing one who is not bailable. Thus if a justice of peace bails a person not bailable by law, it excuses the gaoler, and is not felony in the justice; but a negligent escape, for which he is fineable at common law, and by the justices of gaol delivery.(z) 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. (a) 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 yeoman 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 negli gent escape.(b) And upon the same principle another wardour of the Tower appears also to have been acquitted of a negligent escape. (c) 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 for a negligent escape, his principal must answer for him.(d)1

(w) Dalt. c. 159.

[*586

(x) 1 Hale 600, where it is said that "therefore it is lawful for the gaoler to hamper them with irons, to prevent their escape." But see the note (a), Ibid., where it is said that this liberty can only be intended where the officer has just reason to fear an escape, as where the prisoner is unruly, or makes any attempt for that purpose; but that otherwise, notwithstanding the common practice of gaolers, it seems altogether unwarrantable, and contrary to the mildness and humanity of the laws of England, by which gaolers are forbid to put their prisoners to any pain or torment: Co. P. C. 34, 35. Custodes gaolarum pænam sibi commissis non augeant, nec eos torqueant vel redimant, sed omni sævitiâ remotâ pietateque adhibitâ judicia debite exequantur: Flet. Lib. 1, cap. 26. And the Mirror of Justices, ch. 5, s. 1, n. 54, says that it is an abuse that prisoners should be charged with irons, or put to any pain, before they be attainted of felony; and Lord Coke, in his comment on the statute of Westm. 2, c. 11, is express, that by the common law it might not be done : 2 Inst. 381.

(y) See the precedents of indictments for this offence: 4 Wentw. 363; Cro. Circ. Comp. 189; Cro. Circ. Ass. 398; 3 Chit. Crim. L. 668, 669.

(z) At common law, according to 25 Edw. 3, 39 (in the last edition of the year books mispaged 25 Edw. 3, 82, a) and by the justices of gaol delivery, by the 1 & 2 Ph. & M. c. 13. See 1 Hale 596, and as to escapes by admitting to bail or to improper liberty: ante, p. 583. (a) 2 Hawk. P. C. c. 19, s. 28.

(b) Rex v. Hill and Dod, Old Bailey, Jan. 1694; Burn's Just. tit. Escape, III.

(e) Rex v. Rich, Old Bailey, Jan. 1694, MS, Bayley, J.

(d) 2 Hawk. P. C. c. 19, s. 29, and Rex v. Fell, 1 Lord Raym. 424; 2 Salk. 272. Hawkins says, "But if the gaoler who suffers an escape have an estate for life or years in the office, I do not find it agreed how far he in reversion is liable to be punished."

The marshal is not liable for the escape of a prisoner committed to a state jail under process from the courts of the United States: Randolph v. Donaldson, 9 Cranch 76.

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 retaking 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. (e)

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.(f) 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 sight of the prisoner, it seems to be the better opinion that he will be guilty of a negligent escape, though he should retake him immediately afterwards.(g) And if he has been fined for the offence it is clear that he will not avoid the judgment of his fine by retaking the prisoner. (h) And it is also clear that he cannot excuse himself by killing a prisoner in the pursuit, though he could not possibly retake him; but must, in such case, be content to submit to such fine as his negligence shall appear to deserve.(i)

The proceedings against persons charged with having suffered escapes must in general be by presentment or indictment, or they may be by information.(k)

But where persons present in a Court of record are committed to prison by such Court, the keeper of the gaol, as he is bound to have them always ready to produce when called for, if he fail to produce them, will be adjudged guilty of an escape, without further inquiry; unless he have some reasonable matter to allege *587] *in his excuse; as that the prison was set on fire, or broken open by enemies, &c., for he will be concluded by the record of the commitment from denying that the prisoners were in his custody.(1) And some have holden.(m) that if a gaoler say nothing in excuse of such an escape, it shall be adjudged voluntary; but it seems difficult to maintain that where it stands indifferent whether an escape be negligent or voluntary, it ought to be adjudged a crime of so high a nature, without a previous trial.(n) With respect to other prisoners not committed in such manner, but in the custody of a gaoler or other person by any other means whatsoever, it seems to be agreed that the person who had them in custody is in no case punishable for an escape, until it be presented. (o) But it is laid down as a rule, that though, where an escape is fineable, the presentment of it is traversable; yet that where the offence

(e) 2 Hawk. P. C. c. 19, s. 12, c. 13, s. 9; Dalt. c. 169; Burn's Just. tit. Escape. (f) 2 Hawk. P. C. c. 19, s. 12.

(g) Staund. P C. 33; 1 Hale 602; 2 Hawk. P. C. c. 19, ss. 6, 13

(h) 2 Hawk. P. C. c. 19, ss. 12, 13.

(i) Staund. P. C. 33; 1 Hawk. P. C. c. 28, ss. 11, 12; 2 Hawk. P. C. c. 19, ss. 6, 13. (k) Rex v. The Gaoler of Shrewsbury, 1 Str. 532, where the Court refused to grant an attachment against the gaoler for a voluntary escape of one in execution for obstructing an excise officer in the execution of his office, but ordered him to show cause why there should not be an information.

(1) 2 Hawk. P. C. c. 19, s 15. (n) 2 Hawk. P. C. c. 19, s. 15.

(m) Staund. P. C. 34; 1 Hale 599, 603.
(0) Id. Ibid. s. 16.

1 If a person, legally committed or arrested, escape by force or otherwise, against the will of the officer having the custody of him, and flee into another state, the officer may lawfully pursue and retake him in that state: Pearl v. Rawdin, 5 Day 244. But the officer thus pursuing cannot, it seems, take the prisoner from the custody of an officer of another state, acting under process warranted by the laws of that state, nor resist such officer in the execution of such process: Griffin v. Brown, 2 Pick. 304.

is amerciable only, there the presentment is of itself conclusive; such amerciaments being reckoned amongst those minima de quibus non curat lex :(p) and this distinction is said to be well warranted by the old books.(q)

It is laid down in the books, that a person who has suffered another to escape cannot be arraigned for such escape as for felony, until the principal be attainted; on the ground that he is only punishable in this degree as an accessory to the felony, and that the general rule is, that no accessory ought to be tried until the principal be attainted ;(r) but that he may be indicted and tried for a misprision before any attainder of the principal offender; for, whether such offender were guilty or innocent, it was a high contempt to suffer him to escape. If, however, the commitment were for high treason, and the person committed actually guilty of it, it is said that the escape is immediately punishable as high treason also, whether the party escaping be ever convicted of such crime or not; and the reason given is, that there are no accessories in high treason.(s)

Every indictment for an escape, whether negligent or voluntary, must expressly show that the party was actually in the defendant's custody for some crime, or upon some commitment upon suspicion ;(t) and judgment was arrested upon an indictment which stated that the prisoner was in the defendant's custody, and charged with a certain crime, but it did not state that he was committed for that crime; for a person in custody may be charged with a crime, and yet not be in custody by reason of such charge.(u) *But where a person was committed to the custody of a [*588 constable by a watchman, as a loose and disorderly woman and a streetwalker, it was holden, upon an indictment against the constable for discharging her, that by an allegation of his being charged with her, "so being such loose," &c it was sufficiently averred that he was charged with her "as such loose," &c.; and it was also holden not to be necessary to aver that the defendant knew the woman to be a street-walker (v) And every indictment should also show that the prisoner went at large:(w) and also the time when the offence was committed for which the party was in custody; not only that it may appear that it was prior to the escape, but also that it was subsequent to the last general pardon (x) If the indictment be for a voluntary escape, it must allege that the defendant feloniously and voluntarily permitted the prisoner to go at large;(y) and must also show the species of crime for which the party was imprisoned; for it will not be sufficient to say, in general, that he was in custody for felony, &c.(z) But it is questionable whether such certainty as to the nature of the crime, be necessary in an indictment for a negligent escape; as it is not in such case material whether the person who escaped were guilty or not.(a)1

(p) Staund. P. C. c. 32, p. 36.

(7) 2 Hawk. P. C. c. 19, s. 21, and see post, p. 590, as to escapes fineable or amerciable. (r) See ante, p. 67. But as all accessories may now be tried before their principals (ante, pp. 67, 69), this reason fails, and there seems no doubt that a person who has suffered a felon to escape is an accessory after the fact: Rex v. Burridge, 3 P. Wms. 439, post, p. 607, and therefore a person who suffers or aids the escape of a felon may be tried for a substantive felony as an accessory after the fact; and see Holloway v. Reg., 17 Q. B. 317 (79 E. C. L. R.), post, p. 605, et seq. In Cro. Circ. Ass. 338, is an indictment as for a misdemeanor against a gaoler, for wilfully permitting a prisoner to escape who was under sentence of imprisonment for the term of six months, after a conviction of grand larceny: but it seems that it ought to have been laid as a felony. See 2 Starkie Crim. Plead. 600, note (b), referring to Rex v. Burridge, 3 P. Wms. 497.

(8) 2 Hawk. P. C. c. 19, s. 26.

(u) Rex v. Fell, 1 Lord Raym. 424; 2 Salk. 272.

(t) Id. Ibid. s. 14.

(v) Rex v. Bootie, 2 Burr. 864; and see as to the sufficiency of such averments: Rex v. Boyall, 2 Burr. 832.

(w) 2 Hawk. P. C. c. 19, s. 14, where it is said that this is most properly expressed by the words exivit ad largum.

(z) 2 Hawk. P. C. c. 19, s. 14. But upon an indictment for an escape the Court will not intend a pardon; it must be shown by the defendant, by way of excuse: Rex v. Fell, 1 Lord Raym. 424.

(3) Felonice et voluntariè A. B. ad largum ire permisit. (z) 2 Hawk. P. C. c. 19, s. 14.

(a) Id. Ibid.

1 In an indictment against a constable for an escape, it is sufficient to allege that the defendant permitted the prisoner to escape and go at large without alleging in addition

By the statute of Westminster, 3 Edw. 1, c. 3, the proceedings and trial for the offence of an escape were to be had before the justices in eyre: but it was adjudged that the jurisdiction of the Court of King's Bench was not restrained by that statute, that Court being itself the highest Court of eyre.(b) The 31 Edw. 3, c. 14, enacts, that the escape of thieves and felons, and the chattels of felons, &c., from thenceforth to be judged before any of the King's justices, shall be levied from time to time, &c., 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 justices of the peace for a negligent escape, in admitting persons to bail who are not bailable.(c)

The 4 Geo. 4, c. 64, s. 44, as to the evidence by the certificate of the clerk of assize, or clerk of the Court in which the offender was convicted, has already been mentioned.(d)

In considering the punishment for this offence, it will be necessary again to attend to the distinction between a voluntary and negligent escape.

It seems to be generally agreed that a voluntary escape amounts to the same kind of crime as the offence of which the party was guilty, and for which he was in custody; whether the person escaping were actually committed to some gaol, or under an arrest only, and not committed; and whether he were attainted, or only *589] *accused of such crime, and neither indicted nor appealed. (e) But the voluntary escape of a felon was within the benefit of clergy, though the felony for which the party was in custody were ousted.(f) 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 rightfully entitled to the custody; for the crime is in both cases of the same ill consequence to the public.(g) But no one is punishable in this degree for a voluntary escape but the person who is actually guilty of it: therefore, the principal gaoler is only fineable for a voluntary escape suffered by his deputy.(h) One voluntary escape is said to amount to a forfeiture of a gaoler's office.(i)

No escape will amount to a capital offence unless the cause for which the party was committed were actually such at the time of the escape: its becoming a capital offence afterwards, as by the death of a party wounded at the time of the escape, but not then dead, will not be sufficient. (k)

Whenever a person is found guilty upon an indictment or presentment of a negligent escape of a criminal actually in his custody, he ought to be condemned in a certain sum, to be paid to the King as a fine. (1) And it seems that, by the common law, the penalty for suffering the negligent escape of a person attainted was of course a hundred pounds, and for suffering such escape of a person indicted, and not attainted, five pounds: and that if the person escaping were neither attainted nor indicted, it was left to the discretion of the Court to assess such a

(b) Staund. P. C. c. 32, p. 35. Eo que le banke le roy est un eire, et plus haut que un eire, car si le eire sea in un county, et le banke le roy veigne la, le eire cessera.

(c) 2 Hawk. P. C. c. 19, s. 19, ante, p. 585.

(d) Ante, p. 582.

(e) Hawk. P. C. c. 19, s. 22. And it is said to be no excuse of such escape that the prisoner had been acquitted on an indictment of death, and only committed till the year and day should be passed, to give the widow or heir an opportunity of bringing their appeal: Id. Ibid.

(f) 1 Hale 599.

(g) 2 Hawk. P. C. c. 19, s. 23.

(h) Rex v. Fell, 1 Lord Raym. 424; 2 Salk. 272; 1 Hale 597, 598. (i) 2 Hawk. P. C. c. 19, s. 30.

(k) 2 Hawk. P. C. c. 19, s. 25.

() 2 Hawk. P. C. c. 19, s. 31, where the author says, "it seems most properly to be called a fine. But this does not clearly appear from the old books; for in some of them it seems to be taken as a fine, in others as an amerciament; and in others it is spoken of generally as the imposition of a certain sum, and without any mention of either fine or amerciament."

that he did escape and go at large: State v. Maberry, 3 Strobh. 144. It is not a valid objection to an indictment for an escape, that the defendant, who was charged therein with negligence as a lawful constable, had not been formally appointed and qualified as a constable, he having assumed to act as such: Ibid.

reasonable forfeiture as should seem proper. And it seems also, that if the party had escaped twice, these penalties were of course to be doubled: but that the forfeiture was no greater for suffering a prisoner to escape who had been committed on two several accusations, than if he had been committed but on one. (m) It is the better opinion that one negligent escape will not amount to a forfeiture of a gaoler's office yet if a gaoler suffer many negligent escapes, it is said that he puts it in the power of the Court to oust him of his office at discretion. (n)

Some regulations by statutes respecting the punishment of negligent escapes should also be noticed.

The 5 Edw. 3, c. 8, recites that persons indicted of felonies had removed the indictments before the King, and there yielded themselves, and had been incontinently let to bail by the marshals of the King's Bench; and enacts that such persons shall be safely and surely kept in prison: and (after providing for the manner of such confinement, &c.) further enacts, that if any such prisoner *be found [*590 wandering out of prison by bail or without bail, the marshal being found guilty, shall have a year's imprisonment, and be ransomed at the King's will.

The 6 & 7 Vict. c. 26, s. 23, which was passed for regulating the prison at Millbank, enacts, that if any person having custody of any convict, or being employed by the person having such custody, in the manner mentioned in the Act, shall wilfully permit any such convict to escape, he shall be guilty of felony; and every such person who shall carelessly permit such an escape, shall be guilty of a misdemeanor.(0)

A negligent escape may be pardoned by the King before it happens, but a voluntary one cannot be so pardoned.(p) Upon an indictment for an escape a pardon must be shown by the defendant by way of excuse.(q)

Sec. II-Of Escapes suffered by Private Persons.

The law with respect to escapes suffered by private persons is in general the same as in relation to those suffered by officers: it will be sufficient, therefore, to mention shortly the circumstances under which it is considered that a private person may be guilty of an escape, and the punishment to which he will be liable.

It seems to be a good general rule, that wherever any person has another lawfully in his custody, whether upon an arrest made by himself or another, he is guilty of an escape if he suffer him to go at large before he has discharged himself, by delivering him over to some other who by law ought to have the custody of him. And if a private person arrest another for suspicion of felony, and deliver him into the custody of another private person, who receives him and suffers him to go at large, it is said that both of them are guilty of an escape; the first, because he should not have parted with him till he had delivered him into the hands of a public officer: the latter, because, having charged himself with the custody of a prisoner, he ought, at his peril, to have taken care of him.(r)

But where a private person, having made an arrest for suspicion of felony, delivers over his prisoner to the proper officer, as the sheriff or his bailiff, or a constable, from whose custody the prisoner escapes, he will not be chargeable. He cannot, however, excuse himself from the escape by alleging that he delivered the prisoner over to an officer, without showing to whom, in particular, by name, he so delivered him, that the Court may certainly know who is answerable.(s)

(m) 2 Hawk. P. C. c. 19, s. 33.

(0) See the section, post, p. 615.

(n) Id. Ibid. s. 30.

(p) 2 Hawk. P. C. c. 19. s. 32; and more fully: Id. c. 37, s. 28.

(9) Rex v. Fell, 1 Lord Raym. 424.

(7) 2 Hawk. P. C. c. 20, ss. 1, 2; 1 Hale 595; Sum. 112.

(s) 2 Hawk. P. C. c. 20, ss. 3, 4; 1 Hale 594, 595; Staund. P. C. 34; Sum. 112, 114. Hawkins Id. s. 4, says that if no officer will receive such prisoner into his custody, it seems to be the safest way to deliver him into the custody of the township where the person who arrested him lives, or perhaps of that where the arrest was made, which shall be bound to keep him till the next gaol delivery: but he says, "If such township refuse also to receive him, I do not see how the person who made the arrest can discharge himself of him before the next gaol delivery; unless he can in the meantime procure him to he bailed." The proper course, I apprehend, for a private person, who has arrested a