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Statutes respecting the
rescuing of prisoners, or aiding them to
9 Geo. 1. c. 22.
sons in custody
against this act, or aiding such offenders.
they held the indictment to be defective, in not charging that the defendant knew that the principal was guilty, or convicted of felony (w) The offence of aiding a prisoner to escape out of prison appears also to have been considered as an accessorial offence in a case of piracy. On a return to a habeas corpus, in the case of one Scadding, who had been committed to the Marshalsea by the court of Admiralty, the cause appeared to be for aiding and abetting one Exon, who was indicted for piracy, to escape out of prison; whereupon all the court held that, though the fact were committed by Scadding, within the body of the county, yet, because it depended upon the piracy committed by Exon, of which the temporal judges had no cognizance, and was as it were an accessorial offence to the first piracy, which was determinable by the admiral, they must remand the prisoner. (x)
Aiding the escape of a clergyable felon, who has had his clergy and been burnt in the hand, but ordered under 18 Eliz. to be imprisoned, would not, it should seem, have subjected the party to punishment as for aiding the escape of a felon. (v)
Several statutes, some of which have been already mentioned, and others will be referred to in the course of the Work, especially provide for the punishment of those who rescue or aid in the escape of persons apprehended or committed for the particular offences enumerated in those acts. There are also some special provisions by statutes, upon this subject, which may be noticed shortly in this place.
By the 9 Geo. 1. c. 22. (commonly called the Black Act,) persons forcibly rescuing any person being lawfully in custody of any officer, or other person, for any of the offences mentioned in the statute, or by gift or promise of money or other reward, procuring any of his Majesty's subjects to join in any such unlawful act, were, upon conviction, to be adjudged guilty of felony, and to 4 Geo. 4. c. 54. suffer death without benefit of clergy.(y) But the 4 Geo. 4. c. 54. s. 1., reciting that it was expedient that a less degree of punishment should be provided for such offences, and that the same punishment should be extended to persons accessory thereto, enacts, that so much of the 9 Geo. 1. c. 22. as excludes the benefit of clergy in such cases, shall be repealed, and that every person duly convicted of such felonies or any of them, or of procuring,
particularly specified: the statement
(w) 3 P. Wms. 492. The prisoner
to have been under sentence of transportation; and was tried upon this second indictment, convicted, and sentenced to be transported, id. 499, 503. But such sentence was not warranted by law. See Rex v. Stanley, Russ. & Ry. Cr. Ca. 432. Ante, p 385.
(a) Rex v. Scadding, Yelv. 134. I East P. C. c. 17. s. 14. p. 810.
(v) See the judgment of Treby, C. J. in the Earl of Warwick's case, 13 St. Tr. 1018., as to the commitment under this statute being a collateral and new thing.
(y) Sect. 1.
counselling, aiding, or abetting the commission thereof, shall be liable, at the discretion of the court, to be transported for seven years, or to be imprisoned only, or to be imprisoned and kept to hard labour in the common gaol or house of correction for any term not exceeding three years. (z) By ss. 4. & 5. of the 9 Geo. I. c. 22. if any person, being charged with any of the offences against this statute, and being required by order of the privy council to surrender himself, neglects so to do for forty days, the person so neglecting, and all that knowingly conceal, aid, abet, or succour him, are declared to be felons, without benefit of clergy.
By the 25 Geo. 2. c. 37. s. 9., "If any person or persons whatsoever shall by force set at liberty, or rescue, or attempt to rescue or set at liberty, any person, out of prison, who shall be "committed for or found guilty of murder, or rescue, or attempt der. "to rescue, any person convicted of murder going to execution, or during execution, every person so offending shall be deemed, "taken, and adjudged to be guilty of felony, and shall suffer death "without benefit of clergy." And the tenth section of the statute enacts, that if any person, after execution, shall, by force, rescue, or attempt to rescue, the body of such offender, out of the custody of the sheriff or his officers, during its conveyance to any of the places directed by the act, or from the company of surgeons, or their servants, or from the house of any surgeon where the same shall have been deposited in pursuance of the act, such offender shall be guilty of felony, and be liable to be transported for the term of seven years.
(z) And by subsequent sections ing offenders in other cases therein transportation for life and other pu- mentioned. nishments are authorized for rescu
25 Geo. 2. c. 37.
s. 9. Rescuing
persons in custody for mur
Sect. 10. Rescuing the body of a murderer after execution.
55 G. 3. c. 108.
As to escape of
offenders sentenced by a court martial, and condition
The 6 Geo. 4. c. 5. s. 13. (Mutiny Act,) enacts that if any offender, under sentence of death by a court martial, shall obtain a conditional pardon, (as mentioned in the act,) all the laws 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, ally pardoned: or contriving any such escape, from the time when an order shall and 6 Geo. 4. be made by a justice or baron, and during all the proceedings had c. 6. s. 14. as for the purposes mentioned in the act. A provision nearly similar tenced by a nais contained in the 6 Geo. 4. c. 6. s. 14., an act for the regulating val court marof the royal marine forces while on shore.
to those sen
The 52 Geo. 3. c. 156. provides against the aiding of the escape 52 G. 3. c. 156. of prisoners of war; and enacts, that "every person who shall Persons aiding "knowingly and wilfully aid or assist any alien enemy of his the escape of prisoners of "Majesty, being a prisoner of war in his Majesty's dominions, war made liable "whether such prisoner shall be confined as a prisoner of war in to transportaany prison or other place of confinement, or shall be suffered to "be at large in his Majesty's dominions or any part thereof, on "his parole, to escape from such prison or other place of confine"ment, or from his Majesty's dominions, if at large upon pa"role," shall, upon conviction, be adjudged guilty of felony, and be liable to be transported for life, or for fourteen or seven years. The act also declares, that every person who shall knowingly and
16 Geo. 2. c.31. Aiding a pri
soner convicted of treason or
felony, or committed forthose
offences in an attempt to escape,
Aiding, &c. a prisoner convicted or com
wilfully aid or assist any such prisoner at large on parole in quitting any part of his Majesty's dominions where he may be on his parole, although he shall not aid or assist such person in quitting the coast of any part of his Majesty's dominions, shall be deemed guilty of aiding the escape of such person within the act. (a) There is a further provision as to assisting such prisoners in their escape after they have got upon the high seas. The third section of the statute enacts, "That if any person or persons owing allegiance "to his Majesty, after any such prisoner as aforesaid hath quitted "the coast of any part of his Majesty's dominions in such his escape as aforesaid, shall, knowingly and wilfully, upon the "high seas, aid or assist such prisoner in his escape to or towards any other dominions or place, such person shall also be adjudged guilty of felony, and be liable to be transported as aforesaid." It is also provided that offences committed upon the high seas, and not within the body of any county, may be tried in any county within the realm. (b) Previously to the passing of this act, upon an indictment for a misdemeanor in unlawfully aiding and assisting a prisoner at war to escape, where it appeared that such prisoner was acting in concert with those under whose charge he was placed, in order to effect the detection of the defendant, who was supposed to have been instrumental in the escapes of other prisoners, and the prisoner in question neither escaped nor intended to escape: it was held that the offence was not complete, and that a conviction for such offence was therefore wrong.(z)
The mere aiding an attempt of persons confined to make an escape, though no escape should ensue, is made highly penal by the 16 Geo. 2. c. 31., 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. (f) And, "in case such prisoner then was convicted "or committed to or detained in any gaol for petty larceny, or
mitted for pet- any other crime, not being treason or felony, expressed in the
on process for any debt, &c.
ty larceny, &c. " warrant of his or her commitment or detainer as aforesaid, or or confined up-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, and being convicted, shall be deemed guilty of "a misdemeanor, "and be liable to a fine and imprisonment."(g)
amounting to 100%.
(a) Sect. 2.
(b) Sect. 3. By sect 4. the act is not to prevent offenders from being prosecuted, as they might have been if the act bad not been passed: but no perSon prosecuted otherwise than under the provisions of the act is to be liable to be prosecuted for the same offence
under the act; and no person prosecuted under the act is, for the same offence, to be otherwise prosecuted.
(z) Rex v. Martin, Trin. T. 1811, Russ. & Ry. 196.
(f) 16 Geo. 2. c. 31. s. 1.
victed of or committed for
treason or felony.
The statute further enacts, "That if any person shall convey, 16 Geo. 2. c. 31. "or cause to be conveyed, into any gaol or prison, any vizor, or s.2. Conveying "other disguise, or any instrument or arms proper to facilitate any disguise or "the escape of prisoners, and the same shall deliver or cause to to any prison, "be delivered to any prisoner in any such gaol, or to any other to facilitate the escape of priperson there, for the use of any such prisoner, without the con"sent 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 com"mitted 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. (h) And it proceeds to enact, that, "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 mitted for petty "other crime not being treason or felony, expressed in the "warrant of commitment or detainer, or 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, and being convicted, shall be deemed guilty of a misdemeanor, and be liable to a fine and imprisonment.(i)
Or to facilitate the escape of prisoners convicted or com
or confined upon any process
for any debt,
&c. amounting to 100%.
16 Geo. 2. c.31. any person charged with treason or felotempt to escape from a consta
s. 3. Assisting
ny, in an at
It is further enacted by this statute, "That 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 person shall ble, &c. "be aiding or assisting to any felon to attempt to make his escape boat, &c. car"from on board any boat, ship, or vessel, carrying felons for rying felons for "transportation, or from the contractor for the transportation of transportation, "such felons, his assigns or agents, or any other person to whom or from the "such felon shall have been lawfully delivered, in order for trans- their transportportation;" every person so offending, and being convicted, ation. shall be deemed guilty of felony, and be transported for seven
It is provided by this statute, that there shall be no prosecu- Limitation of tion 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 transportation in pursuance of this act, shall return from transportation, or be at large in any part of Great Britain, without some lawful cause, before the expiration of the term for which such person
(h) 16 Geo. 2. c. 31. s. 2. (i) Id.
(k) 16 Geo. 2. c. 31. s. 3..
ed for trans portation by
this act, and returning, or being at large
before the expiration of their
Cases upon the
16 Geo. 2. c. 31.
on suspicion only not within the act.
to cases where an actual escape is made.
shall have been ordered to be transported, such person shall be liable to the same punishment, and methods of prosecution, trial, and conviction, for so returning or being at large, as other felons transported, or ordered to be transported, were liable by the laws then in force.
It should be observed, that the second section of this statute, relating to the conveying of instruments, &c. into any prison, in order to facilitate the escape of the prisoners, makes the offender guilty, in cases where the prisoner is committed to or detained in any gaol for treason or felony expressed in the warrant of commitment. (m) 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 there 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. (n) And this ductrine 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. (0)
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."(p) In this case it was also holden that an indictment on the statute 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 tempt to make such attempt had been made.(g) 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 of the offence of which he was convicted, on condition of transportation. (a) And a party is within the act, though there be
need not state that the party
aided did at