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Felonies by Statute.
Note, that the Sheriff of every County shall have
the keeping of, and
shall be chargeable and charged with the Common Gaol and Prison of
the
same County, and with all the Prisoners therein; and must put in such
Gaolers and Keepers for whom they will answer, as appeareth by the
Statutes,
14 E. 3. c. 10. & 19 H. 7. c. 10. which
also seemeth to have been the
Common Law before, as you may see by the Preamble of the Statutes of
14 Ed. 3. & Co. 4. 34. And therefore the High-Sheriff
himself shall be
answerable for an escape of a Felon, suffered by his Gaoler, and may
be
indicted for the same, (see the Lambert, West, Crompton,)
And so the High-Sheriff, as he hath an Office of great Antiquity, and of
great Trust and Authority (for the time,) so withal it is a place of great
peril and charge; and if the rigour of the Law should be aid upon them,
then should they have a warm Office, and be well rewarded. But in
such
cases I have observed the favourable exposition and dealing of the Learned
and Reverend Judges. First, you shall find in Sir Edward Cooks
Reports
lib. 9. f. 98. that the Gaolers who have the actual possession
shall be answerable
for escapes, if they have wherewith: also Popham Chief Justice
did
cause one Staver (a Gaoler at Cambridge) to be indicted,
arraigned, hanged,
for an escape of a Felon suffered by him. |
Chap. 159.
6 H. 7. 11.
Co. 4. 33.
West. M. 1.
Co. 4. 98.
Lam. 11. 5.
Temp. El. |
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In the Doct. & Stud. carp. 42. this difference
is taken: sc. that if the escape
were by default (sc. a negligent escape) of the Gaoler, that the
King
may charge the Gaoler if he will, or the Sheriff may be charged by reason
of the Statute 14 E. 3. c. 9. |
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But if it be a wilful escape in the Gaoler (which
is felony in him) the
Sheriff shall not be bound to answer to the Felony, (See there fol.
135. &
137.) But there the Sheriff may be fined to the value of his Goods.
Stamf. 35. b. |
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Now an escape is of two sorts: voluntary and
negligent. |
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§. 6.
Escape is
of two
sorts. |
Voluntary escape is, where one doth arrest or hath
imprisoned another
for felony (or other Offence,) and after voluntarily letteth him go at
liberty
where he will. |
Stamf. 32. |
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Negligent escape is, when the party arrested or
imprisoned doth escape
against his will of him that arrested or imprisoned him, and is not freshly
pursued and taken against before he hath lost the sight of him which escaped;
the penalty whereof seemeth to be only a Fine at the discretion of
the Judges or Justices: Yet see Stamf. 35. b. a difference
of the Fine:
where the Prisoner is attainted, le Fine serra C l, where but indicted
C s.
and where only taken upon suspicion, semble dispunishable.
Quære & vide
F. Coron. 224, 316, 454, & hic infra, that in case of a
Trespass a negligent
escape is finable. |
Stamf. 33. |
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But for voluntary escape, if the Arrest or Imprisonment
were for felony,
it shall be adjudged felony in him which did voluntarily suffer the Prisoner
to escape; and if the Arrest, &c. were for Treason, it shall be adjudged
Treason; and if the Arrest or Imprisonment were for a Trespass, it
shall be adjudged a Trespass; And yet see Fitz. Coron. 248. &
escape, non
adjudicabitur pro transgr And in case of felony there is no difference,
whether
the Felon be arrested by an Officer, or by another. See Br. Co. |
Stamf. 31. |
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Also in case of a Trespass, or other Offence of
what kind soever, (being
neither Treason nor Felony) there seemeth no difference, whether the
escape suffered by the Officer b voluntary, or negligent; but that the
Officer
in both cases shall be fined for such an escape according to the quantity
of his fault, by the discretion of those that shall be Judges of it. |
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One Nichols assaulted Cholmly to rob
him, and killed him; after Q. El.
granted Nichols his Pardon: but Cholmly his Wife
having commenced |
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