suffereth a prisoner to escape. bail nor without bail; and if any such prisoner be found The penalty wandering out of prison by bail or without bail, and that of the mar be found at the king's suit, or at the suit of the party, the shal which marshals which shall be found thereof guilty shall have half-a-year's imprisonment, and be ransomed at the king's will; and the justices shall thereof make inquiry when they see time; and as to the marshals, it shall be done within the verge that which reason will; and in case that the marshals suffer by their assent such prisoners to escape, they shall be at the law, as before this time they have been; and the king intendeth not by this statute to lose the escape, where he ought to have the same." 31 Ed. 3, st. 1 c. 14. "Item, it is accorded that the escape of thieves and felons, and the chattels of felons and of fugitives, and also escapes of clerks convict out of their ordinaries' prison, from henceforth 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 of the time to come.' But Note. The stat. 1 Rich. 3, c. 3, which gave justices of the peace jurisdiction in cases of escape, is repealed by 7 Geo. 4, c. 64. there is no doubt that they still have jurisdiction, both by virtue of this statute, for they are king's justices, and also by their general authority in all breaches of the peace. Every indictment for an escape, whether negligent or voluntary, must show that the party was actually in the defendant's custody for some crime, or upon some commitment on suspicion; and it is not sufficient to say that he was in the defendant's custody, and charged with such a crime; for that is no allegation that he was in custody upon that charge: 2 Haw, P. C. c. 97, s. 4. It should also shew that the prisoner went at large, 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. If the indictment be for a voluntary escape, it must allege that the de fendant feloniously and voluntarily permitted the prisoner to go at large, 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. 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 a case, material whether the person who escaped were guilty or not: 1 Russ. 374. On escapes generally, see 1 Russ. 367. It may here be shortly observed, that to charge an officer with an escape, there must have been an actual arrest, and the arrest and imprisonment must have been justifiable: 1 Russ. 369. Moreover, the imprisonment must have been for some criminal matter, or the escape will not be the subject of indictment. 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 actually committed to some gaol, or under an arrest only, and not committed; and whether he were attainted or only accused of such crime, and not indicted therefore. However, the principal gaoler is fineable only for a voluntary escape, suffered by his de 6 Geo. 4, c. 5. puty: 1 Russ. 375. A negligent escape is punishable by fine. On negligent escapes, see 1 Russ. 371. To bail a person not bailable by law, is a negligent escape: Plowd. 476. XIII. Be it enacted, that if any offender under sentence of death by a court-martial as aforesaid shall obtain his majesty's conditional pardon as aforesaid, all and every the laws now in force, touching the escape of felons under sentence of death, shall apply to such offender, and to all persons aiding, abetting, or assisting, in any escape or intended escape of any such offender, or contriving any such escape, from the time when such order shall be made by such justice or baron as aforesaid, and during all the several proceedings which shall be had for the purposes aforesaid. Note. A similar provision is contained in the 6 Geo. 4, c. 6, s. 14, which is an act for regulating the 4 Geo. 4, c 64. royal marine forces while on shore. And see, as to the navy, stat. 37 Geo, 3, c. 140, s. 6. 1. [Repeals so much of the 15 Geo. 2, c. 31, as relates to the escape of prisoners from any gaol or prison to which this act shall extend.] II. And be it further enacted, that from and after the commencement of this act there shall be maintained, at the expense of every county in England and Wales, one common gaol, and at the expense of every county not divided into ridings or divisions, and of every riding or division of extend. a county (having several and distinct commissions of the The gaols peace, or several or distinct rates in the nature of county to which rates, applicable by law to the maintenance of a prison for this act shall such division) in England and Wales, at least one house of correction; and one gaol and one house of correction shall be maintained in the several cities, towns, and places mentioned in the schedule marked (A.), annexed to this act; and the regulations and provisions contained in this act shall extend, in manner hereinafter 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. III. Provided always, and be it enacted, that where there shall have been already established, and shall be existing at the time of passing of this act, in any county, riding, Method of trial and conviction 蓉 of offenders making division, city, town, or place, one or more house or houses of correction, not sufficient or capable of being made sufficient for the extended classification required by this act, it shall be lawful for the justices assembled at their general or quarter sessions, or the major part of them, if they shall so think fit, to order and direct that, in addition to the house of correction hereinbefore directed to be maintained for the purposes of this act, one or more of such houses of correction as shall be so existing as aforesaid at the time of the passing of this act, shall be continued and maintained for the reception of one or more particular class or classes, or description or descriptions, of prisoners, as may be prescribed by the justices assembled at their general or quarter sessions, as directed by this act. XLIV. And, to the intent that prosecutions for escapes, breaches of prison, and rescues, may be carried on with as little trouble and expense as is possible, be it enacted, that any offender escaping, breaking prison, or being rescued escapes, &c. 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 in case of any prosecution for any such 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. Not to ex &c. XLVIII. [Gaols, though locally situate out of the county, &c. shall be deemed part of the county, &c. and subject to the jurisdiction of the justices of the county, &c.] LXXVI. And be it further enacted, that nothing in this tend to cer- act contained shall extend to the royal hospital of Bethletain prisons, hem and prison of Bridewell, nor to the King's Bench or Fleet Prison, or to the prison of the Marshalsea, or Palace Courts, the general Penitentiary at Milbank, nor to the Penitentiary at Gloucester; nor to any ships or vessels provided in any port or navigable river for the reception and employment of convicts sentenced to transportation; nor to exempt any such convicts from any punishment or discipline to which they were liable by law before the passing of this act. AIDING ESCAPES, &c. 16 Geo. 2, c. 31. For the further punishment of persons who shall aid or Aiding person as deemed assist prisoners to attempt to escape out of lawful custody, be it enacted, &c., that if any person shall, from and after Escapes. the 24th day of June, 1743, by any means whatsoever, be aiding or assisting to any prisoner to attempt to make his Where a or her escape from any gaol, although no escape be actually sisting a made, in case such prisoner then was attainted or convicted prisoner to of treason, or any felony, except petty larceny, or lawfully escape, committed to or detained in any gaol for treason, or any felony, shall be except petty larceny, expressed in the warrant of commit- guilty ment or detainer, every person so offending, and being of felony; thereof lawfully convicted, shall be deemed and adjudged guilty of felony, and shall be transported to one of his majesty's colonies or plantations in America, for the term of seven years; and in case such prisoner then was convicted and where of, committed to, or detained in any gaol for petty larceny, deemed a 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 hundred pounds, every person so offending as aforesaid, and being thereof lawfully convicted, shall be deemed and adjudged to be guilty of a misdemeanor, for which he or she shall be liable to a fine and imprisonment. misdemeanor. guise, &c. felony. II. And be it further enacted by the authority aforesaid, Conveying that if any person shall, from and after the said 24th day any disof June, 1743, convey, or cause to be conveyed into any to help the gaol or prison, any vizor, or other disguise, or any instru- escape of a ment or arms proper to facilitate the escape of prisoners; felon, ofand the same shall deliver, or cause to be delivered to any fender prisoner in any such gaol, or to any other person there, for guilty of the use of any such prisoner, without the consent or privity of the keeper, or under-keeper, 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 thereof lawfully convicted, shall in like manner be deemed and adjudged guilty of felony, and shall be transported to one of his majesty's colonies or plantations in America, for the term of seven years; but in case the prisoner to whom, or for whose use, such vizor or disguise, instrument or arms, shall be so delivered, then was convicted, committed, or detained for petty larceny, or any other crime, not being treason or felony, expressed in the warrant of commitment or detainer, or upon any Aiding Escapes. In other cases offender guilty of a misde meanor. To assist any person to escape from a constable, &c. process whatsoever, for any debt, damages, costs, sum or sums of money, amounting in the whole to the sum of one hundred pounds, every such person so offending, and being thereof lawfully convicted, shall be deemed and adjudged to be guilty of a misdemeanor, for which he or she shall be in like manner liable to a fine and imprisonment. III. And be it further enacted by the authority aforesaid, that if any person shall, from and after the 24th day of June, 1743, 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 person shall be aiding or assisting to any felon to attempt to make his escape from on board any boat, ship, or vessel, carrying felons for transportation, or from the contractor for the transportation of such felons, his assigns, or agents, or any other person, to whom such felon shall have been lawfully delivered, in order for transportation; then every person so offending, and being lawfully convicted thereof, shall be deemed and adjudged to be guilty of felony, and shall be transported to one of his majesty's colonies or plantations in America, for the term of seven years. IV. [The prosecution to commence within a year.] Note. This act is not actually repealed, but its operation is greatly weakened by the 4 Geo. 4, c. 64: see ante, p. 123. In an indictment upon this act for aiding and assisting, &c., it is not necessary to allege an attempt to escape, since it is implied in the words: Tilley's case, 2 Leach, 662, 4th ed. A case where the commitment is on suspicion only, is not within the act: Greeniff's case, 1 Leach, 363. Nor does the act extend to cases where an actual escape is made, but must be confined to cases of an attempt; Tilley's case. Delivering instruments is within the act, though the prisoner has been pardoned of the offences of which he has been convicted, on condition of transportation: Shaw's case, R. & R. 526. 52 Geo. 3, c. 156. "Whereas many prisoners of war, confined and on parole in different parts of his majesty's dominions, have of late escaped by the aid and assistance of many of his majesty's subjects and others; and it is necessary to repress such practices and violations of the allegiance due to his majesty and of the law, by more effectual punishment;" be it there. fore enacted, &c., that every person who shall, from and after the passing of this act, knowingly and wilfully aid or assist any alien enemy of his majesty, being a prisoner of war in his majesty's dominions, whether such prisoner shall |