convicted of treason or felony, or committed for those offences in an attempt to escape. the 16 Geo. 2, c. 31, s. 1, (h) which enacts, that "if any person shall, by any means whatsoever, be aiding or assisting to any prisoner to attempt to make his or her escape from any gaol, although no escape be actually made, in case such prisoner then was attainted or convicted of treason, or any felony, except petty larceny, or lawfully committed to or detained in any gaol, for treason or any felony, except petty larceny, expressed in the warrant of commitment or detainer;" every person so offending shall, on conviction, be adjudged guilty of felony, and be transported for seven years. And, "in case such prisoner then was convicted or committed to or detained in any gaol for petty larceny, or any other crime, not being treason or felony, expressed in the warrant of his or her commitment or detainer as aforesaid, or then was in gaol upon any process whatsoever, for any debt, damages, costs, sum or sums of money, amounting in the whole to the sum of one hunany debt, &c., dred pounds;" every person so offending, and being convicted, shall be deemed guilty of "a misdemeanor, and be liable to a fine and imprisonment." (i) Aiding, &c., a prisoner convicted or committed for petty larceny, &c., or confined upon process for amounting to 100%. 16 Geo. 2, c. 31, s. 2. Conveying any disguise or instruments into any prison, to facilitate the escape of prisoners, con victed of or committed for treason or By sec. 2, "That if any person shall convey, or cause to be conveyed, into any gaol or prison, any vizor, or other disguise, or any instrument or arms proper to facilitate the escape of prisoners, and the same shall deliver or cause to be delivered to any prisoner in any such gaol, or to any other person there, for the use of any such prisoner, without the consent or privity of the keeper or underkeeper, of any such gaol or prison: every such person, although no escape or attempt to escape be actually made, shall be deemed to have delivered such vizor or other disguise, instrument or arms, with an intent to aid and assist such prisoner to escape, or attempt to escape; and in case such prisoner then was attainted or convicted of treason, or any felony, except petty larceny, or lawfully committed to or detained in any such gaol for treason, or any felony, except petty larceny, expressed in the warrant of commitment or detainer;" every person so offending, and being convicted, shall, in like manner, be deemed guilty of felony, and be transported for seven years. And "in case the prisoner to whom, or for whose use such vizor or the escape of disguise, instrument or arms, shall be so delivered, then was convicted, committed, or detained for petty larceny, or any other crime felony. Or to facilitate prisoners con. victed or com (h) This act is repealed by the 4 Geo. 4, c. 6, s. 1, as far "as relates to the escape of any prisoner from any gaol or prison to which this act shall extend;' and by sec. 2 there is to be in every county in England and Wales one common gaol, and in every county not divided into ridings or divisions, and in every riding or division of a county (having distinct commissions of the peace, or distinct rates in the nature of county rates, applicable to the maintenance of a prison for such division) in England and Wales, at least one house of correction; and one gaol and one house of correction in the several cities, towns, and places mentioned in schedule A. annexed to the act, and the provisions of the act are to extend in the manner thereinafter mentioned, to every such gaol and house of correction maintained at the expense of such county, riding, division, city, town, or place, and to the several gaols and houses of correction in the cities of London and Westminster by sec. 76, and 5 Geo. 4, c. 85, s. 27, the act does not extend to the hospital of Bethlehem and prison of Bridewell, nor to the King's Bench or Fleet prison, nor to the prison of the Marshalsea or Palace Courts, the Millbank Penitentiary, or Gloucester Penitentiary, nor to any ships or vessels provided for the recep tion and employment of convicts sentenced to transportion, and by the 5 Geo. 4, c. 85, s. 9, so much of the 4 Geo. 4, as relates to Canterbury, Lichfield, and Lincoln is repealed. It is very difficult, therefore, to say how far the 16 Geo. 2, c. 31, is now repealed. C. S. G. (i) The act contains no provisions for principals in the second degree or accessories. See, therefore, ante, p. 123, note (b) for their punishment. not being treason or felony, expressed in the warrant of commit- mitted for petty ment or detainer, or upon any process whatsoever, for any debt, larceny, &c.; damages, costs, sum or sums of money, amounting in the whole to the sum of one hundred pounds:" every person so offending, and being convicted, shall be deemed guilty of a misdemeanor, and be liable to a fine and imprisonment. or confined process for any or felony, in an By sec. 3, "If any person shall aid or assist any prisoner to attempt to make his or her escape from the custody of any constable, headborough, tithingman, or other officer or person who shall then have the lawful charge of such prisoner, in order to carry him or her to gaol, by virtue of a warrant of commitment for treason, or any felony, (except petty larceny,) expressed in such warrant; or if any escape from a person shall be aiding or assisting to any felon to attempt to make constable, &c. his escape from on board any boat, ship, or vessel, carrying felons Or from any for transportation, or from the contractor for the transportation of boat, &c., carsuch felons, his assigns or agents, or any other person to whom such rying felons felon shall have been lawfully delivered, in order for transportation;" tion, or from every person so offending, and being convicted, shall be deemed guilty of felony, and be transported for seven years. for transporta the contractor for their transportation. Limitation of prosecutions. transportation large before c. 31. A com not within "the act. By sec. 4, there shall be no prosecution for any of these offences unless it be commenced within a year after the offence committed. And it is also enacted, that if any person, ordered for transporta- Persons tion in pursuance of this act, shall return from transportation, or ordered for be at large in any part of Great Britain, without some lawful cause, by this act, before the expiration of the term for which such person shall have and returning, been ordered to be transported, such person shall be liable to the or being at same punishment, and methods of prosecution, trial and conviction, the expiration for so returning or being at large, as other felons transported, or of their ordered to be transported, were liable to by the laws then in force. sentence. The second section of this statute, relating to the conveying of Cases upon the instruments, &c., into any prison, in order to facilitate the escape of 16 Geo. 2, the prisoners, makes the offender guilty, in cases where the prisoner mitment on is committed to or detained in any gaol for treason or felony ex- suspicion only pressed in the warrant of commitment. (j) This has been holden to mean that the offence should be " clearly and plainly expressed;" so that a case where the commitment is on suspicion only is not within the act, for these are two kinds of commitments, which essentially differ from each other; as a prisoner may be admitted to bail on a commitment for suspicion only, but not on a commitment for treason or felony clearly and plainly expressed in the warrant. (k) And this doctrine was recognized and acted upon in a subsequent case of an indictment upon the third section of the statute, which relates to the aiding a prisoner to escape from the custody of a constable having charge of him by virtue of a warrant of commitment for felony "expressed" in such warrant. The indictment stated that the commitment was on "suspicion" of burglary, and the warrant produced in evidence at the trial corresponded with this statement: the point being reserved for the opinion of the Judges, they were unanimously of opinion that a commitment on suspicion was not within the statute. (i) (j) Ante, 438. (k) Rex v. Walker, 1 Leach, 97, but see the 7 Geo. 4, c. 64, s. 1. (1) Rex v. Greeniff, 1 Leach, 363; and Rex v. Gibbon, 1 Leach, 98, note (a), S. P. The statute to cases where an actual escape is made. An indictment on the statute need not state party that the aided did at A majority of the Judges decided a point of great importance in does not extend the construction of this statute, namely, that it does not extend to cases where an actual escape is made, but must be confined to cases of an attempt, without effecting the escape itself. They said, "the statute purports to be made for the further punishing of those persons who shall aid and assist persons attempting to escape, and makes the offence felony: it creates a new felony: but the offence of assisting a felon in making an actual escape was felony before; and therefore does not seem to fall within the view or intention of the Legislature when they made this statute.” (m) In this case it was also holden that an indictment charging the defendant with aiding and assisting a prisoner to attempt to make an escape, need not state that the party aided did attempt to make the escape; for he could not have aided if no such attempt had tempt to make been made. (n) It has been decided that the delivering instruments to a prisoner, to facilitate his escape from prison, is within this statute, though the prisoner have been pardoned for the offence of which he was convicted, on condition of transportation. (o) And a party is within the act, though there be no evidence that he knew of what specific offence the person he assisted had been convicted. (p) In the same case it was also decided that the record of the conviction of the prisoner, whose escape was to have been effected, having been produced by the proper officer, no evidence was admissible to contradict what it stated; or to shew that it had never been filed among the records of the county; notwithstanding the indictment referred to it with a prout patet as remaining amongst those records. (g) the escape. The statute 4 Geo. 4, c. 64, s. 43, intituled, "An act for the consolidating and amending the laws relating to the building, repairing, and regulating of certain gaols and houses of correction in England and Wales," enacts, that " if any person shall convey or cause to be conveyed into any prison to which the act shall extend, any mask, vizor, or other disguise, or any instrument or arms proper to facilitate the escape of any prisoners, and the same shall deliver or cause to be delivered to any prisoner in any such prison, or to any other person there for the use of any such prisoner, without the consent or privity of the keeper of such prison, every such person shall be deemed to have delivered such vizor or disguise, instrument or arms, with intent to aid and assist such prisoner to escape, or attempt to escape; and if any person shall, by any means whatever, aid and assist any prisoner to escape, or in attempting to escape from any prison, every person so offending, whether an escape be actually made or not, shall be guilty of felony; and, being convicted thereof, shall be transported beyond the seas for any term not exceeding fourteen years." (r) The same statute, (sec. 44) to the intent that prosecutions for escapes, breaches of prison, and rescues, may be carried on with (m) Rex v. Tilley and others, 2 Leach, 662. But see now 4 Geo. 4, c. 64, s. 43. (n) Id. ibid. (0) Rex v. Shaw and others, Mich. T. 1823. Russ. & Ry. 526. (p) Rex v. Shaw and others, ante, note (o). An indictment at common law for aiding a prisoner's escape should state that the party knew of his offence. Rex r. Young, Trin. T. 1801, MS. Bayley, J. (q) Rex v. Shaw and others, ante, note (o) (r) This act contains no express provision for the punishment of principals in the second degree, and accessories; see, therefore, ante, p. 123, note (b.) as little trouble and expense as possible, enacts, "that any offender escaping, breaking prison, or being rescued therefrom, may be tried either in the jurisdiction where the offence was committed, or in that where he or she shall be apprehended and retaken." And it also enacts, that a certificate of the clerk of assize, or other clerk of the Court in which the offender was convicted, together with due proof of the identity of the person, shall be sufficient evidence of the nature and fact of the conviction, and of the species and period of confinement to which such person was sentenced. (s) of re 5 Geo. 4, c. 84, s. 22. Persons rescu of offenders, ordered to be the escape from the custody of the The 5 Geo. 4, c. 84, which was passed for the purpose vising and consolidating the laws for regulating the transportation of offenders from Great Britain, and which will be more particularly ing or aiding noticed in the next Chapter, by sec. 22, provides, that if any person shall rescue or attempt to rescue, or assist in rescuing or attempting to rescue, any offender sentenced or ordered to be transported or transported, banished, from the custody of the superintendant or overseer, or of any sheriff or gaoler, or other person, conveying, removing, &c., such offender, or shall convey or cause to be conveyed any disguise, instrument for effecting escape, or arms, to such offender, every such offence shall be punishable in the same manner as if such offender had been confined in a gaol or prison in the custody of the sheriff or gaoler, for the crime of which such offender shall have been convicted. The two following sections relate to the indictment and the evidence, and will be found in the next Chapter. (s) See this provision more at large, ante, p. 417. overseer, &c., made punishoffenders had been in the custody of a able as if such sheriff or gaoler. CHAPTER THE THIRTY-FIFTH. OF RETURNING, OR BEING AT LARGE, AFTER SENTENCE OF TRANS- As exile or transportation is a species of punishment unknown to the common law of England, and inflicted only under the sanction of enactments of the Legislature, offences committed by not submitting to that punishment are principally dependent upon the provisions of particular statutes. (a) But as a party convicted of felony within benefit of clergy, and sentenced to be transported for seven years, continues a felon, till actual transportation and service, pursuant to the sentence; and as it is a felony at common law to assist a felon to escape out of lawful custody; it has been holden that, independently of any statutable enactments, a person assisting such felon convict, being in custody under sentence of transportation, to escape out of prison, is an accessory to the felony after the fact; provided it be such an assistance as in law amounts to a receiving, harbouring, or comforting such felon. (b) The 5 Geo. 4, c. 84, s. 1, recites, that the several laws in force for regulating the transportation of offenders from Great Britain, would expire at the end of the then present session of Parliament; and, that it was expedient that the laws relative to that subject should be revised, and consolidated into one act; and then enacts, that the act shall take effect on the last day of that present session of Parliament; and that on and from that day, all things remaining to be done, touching the punishment, imprisonment, correction, removal, transportation, discipline, employment, diet, and clothing of persons sentenced or ordered to transportation or banishment from any part of Great Britain, under any acts theretofore or then in force, or pardoned on condition of being transported under any such acts, shall be continued, done, and completed, under the provisions of that act; and that all sentences and orders for transportation, all orders in council and other orders, warrants, instructions, (a) In 6 Ev. Col. Stat. Part V. Cl. xxv. (G) p. 852, 853, the learned editor says, that the earliest act which imposed the punishment of transportation was 39 Eliz. c. 4, which enacted that rogues, vagabonds, &c. might, by the justices in sessions, be banished out of the realm, and conveyed at the charges of the county to such parts beyond the seas as should be assigned by the privy council, or otherwise adjudged perpetually to the gallies of this realm; and any rogue so banished, and returning again into the realm, was to be guilty of felony. And he says that the earliest statute then subsisting which notices the power of transportation was 22 Car. 2, c. 5. (b) Rex v. Burridge, M. T. 1735. 3 P. Wms. 439. |