as above, for it is error scientiæ, 2 R. 3. 10. contrary to the opinion of Crompl. 39. a. Dall. p. 276.(h)

If a gaoler voluntarily licence a felon to wander out of the bounds of the prison and to return again, if the prisoner returns again to the gaol before the gaoler be indicted, so as he be in custody, it is held by some this will not excuse a voluntary escape as to the point of felony, but certain it is that it is punishable as a misdemeanor, and if he had never returned, it had been such an escape, as would have been felony, tho perchance the licence were special to go out and come in at night. 22 E. 3. Coron. 242. 8 E. 2. Coron. 431. because he cannot apportion his own wrong and breach of duty.

V. In whom the voluntary escape shall be.

In all civil causes the sheriff is to be responsible, or the gaoler at election, as if the gaoler, or bailiff of a sheriff suffer either voluntarily or negligently an escape of a person imprisoned for debt, the sheriff is chargeable with an action upon the escape, for the gaoler or bailiff is the sheriff's officer or minister, and gives him security. 14 E. 3. cap. 10. 19 H. 7. cap. 10.

But if the gaoler being placed there by the sheriff voluntarily suffer a felon in his custody to escape, this, in as much as it reacheth to life, is felony only in the gaoler that was immediately trusted with the custody, not in the sheriff.

But whether the escape was voluntary or negligent, yet the sheriff may be indicted for it so as to subject him to a great fine and imprisonment for the offense of his gaoler, tho not to make him guilty of felony. Dalt. cap. 106. p. 273.(i) Doctor and Student 42.(k)

For the escape must be voluntarily permitted in him that permitted it, which could not be in the high sheriff, tho it were such in the gaoler, for he was not privy to it, and therefore could not do it felonicè, but it was a negligent escape in him in trusting [598] such a person with the custody of his prisoners, that would

be false to his trust, and therefore the sheriff shall pay, but not corporally suffer, for the miscarriage of his gaoler.

But if the gaoler were a gaoler in fee, as antiently constables of castles were, the sheriff should not answer in any kind for the default of such gaoler or constable: but now by the statutes of 14 E. 3. cap. 10. and 19 H. 7. cap. 10. gaols of counties are rejoined to the counties. But for escapes committed by gaolers of gaols in particular franchises, as the Gale-house at Westminster belonging to the dean and chapter of Westminster, escapes there permitted concern not the sheriff, but the particular gaoler and lord of the franchise.

VI. How and in what manner, and before whom felonious escapes shall be determined, tried and adjudged.

It is to be known, that I may say it once for all, altho the felony for breaking of prison may be heard, tried and determined before the felony, for which he was committed, as shall be said; yet in case of a felony for the wilful escape or rescue of a person committed to

(h) New Edit. p. 512. (i) New Edit. p. 509.

(k) Dialog. 2. cap. 42.

prison for felony, tho the party that voluntarily permits such escape, or rescues the prisoner, may be indicted for these offenses as felonies before the principal felony in him that escapes or is rescued be tried, yet he shall not be arraigned or put upon his trial, till the principal be convicted or attainted; and the reason is, because possibly the person escaping may be found not guilty, or if guilty, yet of such a fact as is not capital; as of petit larciny, se defendendo, per infortunium, in which case the rescuer or officer ought to be discharged: nay, if the principal person be only convict and not attaint, but hath his clergy, I think the gaoler or rescuer shall never be put to answer to the escape or rescue, but be discharged, as the accessary, where the principal hath his clergy, shall be discharged thereby; for the rescuer and officer, that permits the escape, are a kind of accessaries.[1]

But in these cases the gaoler or rescuer may be fined and [599] imprisoned for their misdemeanor, but shall not be charged with felony, where the principal is discharged. 2 Co. Instit. p. 592. Again, it is to be remembered, that there is a voluntary escape before indictment, and a voluntary escape of a party indicted of felony. 1. If the party that escapes were not indicted at the time of the escape voluntarily permitted, the indictment of the gaoler (and so in case of a rescue) ought to surmise, that de facto a felony was committed, and that the person escaping was imprisoned for that felony or suspicion of it.

And I need not say this must be proved upon the evidence against the gaoler, for, as I said before, the gaoler cannot be arraigned till the principal be attainted by verdict, confession, or outlawry, and the record of such attainder must be shewed or proved.

2. But if the party that escaped were indicted, and so taken by Capias, and then escape, tho, as I said before, the gaoler or rescuer cannot be arraigned and tried till the principal be attainted, yet the indictment for the escape or rescue need not surmise a felony done, but only recite the substance of the indictment against him that escapes. 1 E. 3. 16. b. 2 E. 3. Coron. 158.

And the like law is in case of felony for breach of prison. 2 Co. Instit. p. 590.

Again it is to be known, that as to the voluntary suffering of an escape or rescuing of a felon, tho the felony be not within clergy, yet the escape or rescue are within clergy, and tho the prisoner were indicted or attainted of several felonies, yet the escape or rescue of such a prisoner makes but one felony, and he shall be indicted but of one escape; but if A. and B. be indicted of one felony, and the gaoler voluntarily suffer both to escape, the gaoler may be indicted severally for both.

The means of bringing an officer to judgment cannot be barely by the calling of the record of the prisoners over, as is usually done in

[1] See note, post p. 605.

the king's bench, because tho this may be a sufficient cause to convict of a negligent escape, yet it cannot appear thereby that it is voluntary; the marshal or gaoler may be fined upon a record thereof made, but he cannot be convict of a felony, 39 H. 6. [600] 33. but there must be an indictment or presentment of the felonious and voluntary escape.

And tho by the statute of Westm. 1. cap. 3.(1) amercements upon the country for the escapes of felons cannot be set but by the justices in Eyre, or by the king's bench, 21 Assiz. 12. 27 Assiz. 27, or, as it seems, by justices of general oyer and terminer; yet the hearing and determining of escapes is at this day within the jurisdiction of justices of peace, or any other justices, by the statutes of 1 R. 3. cap. 3. 31 E. 3. cap. 14.

And thus far concerning voluntary escapes of felons, where it is felony and where not.

In the next chapter I shall say something concerning negligent escapes, tho this hath been before, cap. 50. in part handled.

CHAPTER LII.

TOUCHING NEGLIGENT ESCAPES.

NEGLIGENT escapes of felons are not felony, but punishable by fine upon the parties that suffer them.

These negligent escapes are of two kinds, 1. By an officer or some particular person or persons, that hath a felon in custody, 2. Or by vills or townships, whether the felon be taken and in custody, or not

taken.

I. First as to negligent escapes by officers or particular persons these things are considerable.

1. What shall be said a negligent escape. 2. What the conviction of such negligent escape. 3. What the punishment of it, and by whom.

As to the first of these, what shall be said a negligent escape hath been partly before described, only some things [601]

I shall add.

If a prisoner for felony break the gaol, this seems to be a negligent escape, because there wanted either that due strength in the gaol that should have secured him, or that due vigilance in the gaoler or his officers to have prevented it, and therefore it is by law lawful for the gaoler to hamper them with irons to prevent their escape,(a) and if

(1) 2 Co. Instit. 165.

(a) And therefore 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 to that purpose; but 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; see Co. P. Č.

this should not be construed a negligent escape, gaolers would be careless either to secure their prisoners, or to retake them that escape, if he should in such a case be exempt from pecuniary punishment; and we see by daily experience in civil cases of men in execution or arrested for debt, if they break prison the sheriff is chargeable.

But if a private person arrest a felon, and he escapes by force from him without any default in him, tho the township shall be amerced, as shall be said, yet it seems it excuseth the party, for he being a private person cannot raise power to take or detain a felon.

But if a sheriff, bailiff, constable, or other officer hath the custody of a prisoner bringing him to the gaol, it seems that a simple escape by the rescue of the prisoner himself doth not excuse him a toto, though it may a tanto, because he may take sufficient strength to his assistance; but if he be rescued before he be brought to gaol, quære, whether it be not an excuse of an escape, as in case where a inan is arrested upon a mesne process, and in carrying to gaol be rescued, the return of the rescue excuseth the sheriff, 39 Eliz. C. B. Croke, n. 22. Conyer's case; but it is no excuse if he be taken in execution [602] and rescued, for there the sheriff shall be answerable notwithstanding the rescue, but it seems the rescue is no excuse in case of felony. 3 E. 3. Coron. 328. 337.(b)

And upon the same reason it is, that if a felon be attaint and be carried to execution, and be rescued from the sheriff, the sheriff is punishable notwithstanding the rescue, for there is judgment given, and the sheriff should have taken sufficient power with him, and therefore in that case the township is not fineable: vide 27 Assiz. 54.

If a prisoner for felony be in gaol and escape, and the gaoler pursue after him, he may take him seven years after, tho he were out of his view, 13 E. 4. 9. a. 14 H. 7. 1. a. but that will not excuse the gaoler from a negligent escape, tho it may excuse a tanto; for if the gaoler hath once lost the view of his prisoner, tho he take him after, it is an escape, but if he retake him upon a fresh pursuit, and hath still the view of him, it is no escape, nor punishable. 8 E. 2. Coron. 400. 22 E. 3. Coron. 236. M. 28. E. 3. Rot. 32. Rex Hertf. Casus Abbatis Sancti Albani. M. 45. E. 3. Rot. 17. in dors. Rex Essex.

But if a man be arrested for felony, and in bringing to gaol by the sheriff's bailiff or constable he makes his escape, and they follow him and keep the view of him, but cannot take him without killing him, whereby he is kild in the pursuit, yet the sheriff or constable, or township, that let him escape, shall be fined for the escape, because tho the party be kild in the fresh pursuit, he cannot now be brought to

p. 34 & 35. Custodes gaolarum pœnam sibi commissis non augeant, nec eos torqueant vel redimant, sed omni sævitiâ remota pietateque adhibitâ judicia debite exequantur, Flet. Lib. I. cap. 26. and the Mirror of Justices, cap. 5. § 1. n. 54. says, 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. cap. 11. is express, that by the common law it might not be done. 2 Instit. 381.

(b) These cases, as also Conier's case here mentiond, prove nothing particularly as to a rescue, but only in general, that a sheriff shall be liable in case of an escape.

judgment, and yet by his flight, if presented by the coroner, he forfeits his goods. 3 E. 3. Coron. 328 and 346.

If a felon escape out of the gaol by negligence, tho the gaoler be fined for it, he may retake the felon at any time after, for the felon shall not take the advantage of his own wrong, or the gaoler's punishment, but his retaking shall not discharge the gaoler's fine, and so is the book to be intended. 13 E. 4. 9. a.

2. Touching the conviction of a negligent escape.

The proper way of conviction is by presentment and trial [603] thereupon.

Yet where the prisoners be of record in a court, if the gaoler being called cannot give an account where a prisoner is, this is a conviction of an escape, but seems not to be presently a conviction of a voluntary escape, unless the gaoler confess it: vide 27 H. 6. 7. 39 H. 6. 33. so in some cases the coroner's roll is a conviction of an escape, vide 3 E. 3. Coron. 352. so if the dozeners present a felon taken and delivered to the sheriff by the vill, but shew not what sheriff. 3 E. 3. Coron. 345.(c)

Where an officer is to be charged either with a voluntary or negligent escape, the bare presentment of the escape by the grand inquest or the dozeners in Eyre, or upon a commission of Oyer and Terminer, or in the king's bench, is not alone sufficient to convict the officer, because upon his conviction, tho but of a negligent escape, he is to be fined.

But if the dozeners in Eyre or in the king's bench present the escape of a felon, whereby the vill is to be amerced, because this is but an amercement, and the justices may [not in this case(d)] set a fine but an amercement, de minimis non curat lex, and therefore the presentment is not traversable: vide 3 E. 3. Coron. 291. & ibidem 3 E. 3. Coron. 328. 346. Stamf. P. C. Lib. I. cap. 33. fol. 35. b.

An escape is presentable in a leet, but they cannot set a common fine or amercement there, but it ought to be sent to the next Eyre, &c. or may be removed into the king's bench by Certiorari, and there the common fine or amercement set; and this by the statute of Westm. 1. cap. 3.

3. As to the punishment of a negligent escape by an officer or other that hath the felon in custody, it is by fine and imprison

ment.

If the felon be attainted, it is said that the fine is to be an [604] hundred pounds, and if he be only indicted, then an hundred shillings, Stamf. P. C. p. 35. but the fine in truth is more or less according to the quality of the offense, and sometimes of the

(c) The words of the book are, "When the dozen present, that a felon is taken for felony and delivered to the sheriff, they adjudge it for an escape in Eyre, if they do not say to what sheriff by name, for a man may inquire his rolls to see whence the prisoner comes, &c. and if they do not find in the sheriff's roll, that he was charged with him, or if they do not find how he got out of his custody according to the law of the land, it shall be adjudged an escape in the sheriff.

(d) These words are wanting in the MS. but the sense of the place seems plainly to require them.