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Arrest and Imprisonment.
Also when a Statute doth appoint Imprisonment, but
limits no time
how long, where, the Prisoner must remain at the discretion of the
Court. |
Chap. 170.
Cromp.
171. |
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Where a Statute doth ordain that an Offender shall
be imprisoned at
the Kings pleasure. Vide antea tit. Bailment. |
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Where a Statute ordaineth that a Prisoner shall
not be delivered without
the Kings special commandment, and that upon a Fine to be made to
the King; who may assess the same Fine, and deliver him. See 18 H.
8. 1. |
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But Imprisonment to be inflicted by the Justice
of peace, almost in all
cases, (except for the Peace, the Good behaviour, or for Felony, or higher
Offences) is but to retain the party until he hath made Fine to the
King for Contempt or Offence; and therefore if he shall offer to pay his
Fine, or shall find Sureties by Recognizance to pay it, he ought to be
delivered
presently, 2 Mar. 1. |
Br. Impr.
100.
Co. 11. 43. |
§. 13.
The manner. |
Now for the manner of Imprisonment, it seemeth generally
in all cases
where a Man is committed to prison, especially if it be for Felony, or
upon
an Execution, (or but for a Trespass, or other Offence) every Gaoler
ought to keep such his Prisoner in salva & arcta custodia:
Salva, sc. that
he ought to be imprisoned so surely as that he cannot escape; Arcta,
in
respect that he ought to be kept close, without conference with others,
or intelligence of things abroad. |
Co. 8. 10..
& 6. 87. |
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And therefore if the Gaoler shall licence his Prisoner
to go abroad for
a time, and then to come again, yet these are Escapes: and if the
Prisoner were in for Felony,
this is finable in the Gaoler at least, if it be not Felony; and if the
Prisoner were in upon an Execution, this is so penal to the Officer, as
that
he shall be charged for the Debt; and if the Prisoner were in but for a
Trespass, yet the Officer is finable: for Imprisonment was ordained
for
punishment of Offenders, and in terror of all others; ut pœna ad paucos,
metus ad omnes perveniat. Vide antea tit. Felony by Statute. |
Co. 3. 44.
1 R. 2. c. 12.
7 H. 4. c. 4. |
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And yet see Co. L. 260. That Imprisonment
must be Custodia, & non
pœna: for Carcer ad homines custodiendos, non ad puniendos, dari
debet:
But yet it seemeth meet and just that it should be pœna as well
as custodia,
sc. for Malefactors, that it should be punishment to them, and a terror
to others; and for Debtors, that they may the sooner pay, or take order
with their Creditors. |
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' For, as one saith, Maxima illecebra peccandi
impunitatis spes, A great
' impulsive cause of Offence is the hope to escape unpunished: And
so a
' great cause that Debtors care not to pay, nor to take order with their
' Creditors, is their hope to escape Imprisonment, or of too much favour
' and liberty in Prison. |
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Also (by the Law) those which are in Execution ought
not to go at
liberty within the Prison, nor abroad with their Keeper, 24 H. 8.
much
less in cases of Felony, or of higher Offences. |
Dyer 249.
Co. 3. 44. |
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Also by the Statute of West. 2. c. 11.
Accomptants, and such as are in
Execution, the Sheriff or Gaoler may put Irons or Fetters upon them:
and yet if the Gaoler shall imprison a Man so streightly, by putting
him
in the Stock, or putting more Irons upon him than is needful, or keepeth
his Victual from him, whereby the Prisoner becometh decrepid, lamed,
or otherwise diseased, he shall have an Action of the Case against
the Gaoler; and if the Gaoler shall keep his Prisoner more streight than
of right he ought to do, so that the Prisoner dieth thereof, this is Felony
in the Gaoler. Hic verbo Gaoler. |
Co. ibid. 1.
P. Accom.
2.
Fitz. 93. h. |
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