rant; 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;' every person so offending, and being convicted, shall be deemed guilty of felony, and be transported for seven years. (n)

Sec. 4. The prosecution for these offences must be commenced within a year.

The second section of this statute, relating to the conveying of instruments, &c., into any prison, in order to facilitate the escape of 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. (0) 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 these 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. (p) And this doctrine 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 on 'suspicion' of burglary, and the warrant produced in evidence at the trial corresponded with this statement: and the judges were unanimously of opinion that a commitment on suspicion was not within the statute. (q)

A majority of the judges decided that the Act 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.' (r)

An indictment 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 such attempt had been made. (r) The delivering instruments to a prisoner, to facilitate his escape from prison, is within this statute, though the prisoner have been pardoned for the offence of which he was convicted, on condition of transportation. (s) And a party is within the Act, though there be no evidence

(n) Ante, p. 909, note (1).

(0) Ante, p. 909.

(p) R. v. Walker, 1 Leach, 97; but see the 11 & 12 Vict. c. 42, ss. 1, 23.

(q) R. v. Greeniff, 1 Leach, 363; and R. v. Gibbon, 1 Leach, 98, note (a), S. P. (r) R. v. Tilley, 2 Leach, 662. See 28 & 29 Vict. c. 126, s. 37, post, p. 912. (s) R. v. Shaw, R. & R. 526.

that he knew of what specific offence the person he assisted had been convicted. (t)

The record of the conviction of the prisoner, whose escape was to have been effected, having been produced by the proper officer, no evidence is admissible to contradict what it states; or to show that it had never been filed among the records of the county; notwithstanding the indictment refers to it with a prout patet as remaining amongst those records. (u)

Where a count stated that the gaol thereinafter mentioned, situate at the parish of the Holy Trinity, in Coventry, in the county of W., was a gaol to which the provisions of the 4 Geo. 4, c, 64, (now repealed) extended, and that one Thompson was a prisoner in the said gaol, and that the defendant, at the parish aforesaid, feloniously did aid and assist Thompson, then and there being such prisoner, in attempting to escape from the said gaol; it was held on error that the count was good, though it did not allege the means by which the defendant aided Thompson in attempting to escape, and though it did not allege in direct terms that Thompson did attempt to escape. (v) Another count stated that Thompson, being a prisoner in the said gaol, so situate as aforesaid, was meditating and endeavouring to effect his escape from the said gaol, otherwise than by due course of law, and in order thereto had procured a key to be made with intent to effect his escape by means thereof, and had made to the defendant, then being a turnkey of the said gaol, overtures to induce him to aid him to escape from the said gaol, and so was endeavouring to procure his escape and to escape from the said gaol; and that the defendant whilst Thompson was such prisoner in the said gaol, at the parish aforesaid, &c., feloniously did procure and receive into his possession the said key, being adapted to and capable of opening divers locks in the said gaol, with intent thereby to enable Thompson to escape from the said gaol, and so the jurors said that the defendant at the parish aforesaid feloniously did aid and assist Thompson in attempting to escape from the said gaol; and it was held that the introductory part of the count stated an attempt to escape and the means used with sufficient particularity, and sufficiently showed an offence within the 4 Geo. 4, c. 64, and that the count was not bad for want of a more particular venue to the acts charged in the introductory part as an attempt by Thompson to escape, and that the count was not double. (w) It was also held, that the general averment of the gaol being a gaol to which the provisions of the 4 Geo. 4, c. 64, applied was sufficient, without showing how it came within them, and that it was not necessary to show more particularly that the gaol was a gaol for the county within the 5 & 6 Vict. c. 110, s. 2. (x) It was further held, that aiding an escape is a substantive offence under the repealed enactment 4 Geo. 4, c. 64, s. 43, and therefore the count was not bad in charging the accessory without including the principal or alleging that he had been convicted, and at all events

(t) R. v. Shaw, supra. An indictment at common law for aiding a prisoner's escape should state that the party knew of his offence. R. v. Young, Trin. T. 1801, MS. Bayley, J.

(u) R. v. Shaw, supra.

(v) Holloway v. R., 17 Q. B. 317. 2 Den. C. C. 287.

(w) Ibid.

(x) Ibid.

such an objection was too late after the trial. (y) It was also held, that it was not necessary to show that the prosecution was commenced within a year after the offence, as was required by the 16 Geo. 2, c. 31, s. 4. (z)

The 1 & 2 Vict. c. 82, established a prison for young offenders at Parkhurst, in the Isle of Wight; and sec. 13 provides for the punishment of persons rescuing or aiding in the rescue of such offenders; and sec. 14 provides for the trial and evidence on the trial in such cases. The 10 & 11 Vict. c. 62, s. 8, an Act for the establishment of naval prisons, provides for the punishment of persons aiding the escape of prisoners from those prisons. The 29 & 30 Vict. c. 109, s. 82, also provides for the punishment of persons aiding prisoners to escape from certain naval prisons.

The 5 Geo. 4, c. 84, which was passed for the purpose of revising and consolidating the laws for regulating the transportation of offenders from Great Britain, and which will be more particularly noticed in the next chapter, by sec. 22, provides, that if any person shall rescue or attempt to rescue, or assist in rescuing or attempting to rescue, any offender sentenced or ordered to be transported or banished, from the custody of the superintendent or overseer, or of any sheriff or gaoler, or other person, conveying, removing, &c., such offender, or shall convey or cause to be conveyed any disguise, instrument for effecting escape, or arms, to such offender, every such offence shall be punishable in the same manner as if such offender had been confined in a gaol or prison in the custody of the sheriff or gaoler, for the crime of which such offender shall have been convicted. (a).

The two following sections relate to the indictment and the evidence, and will be found in the next chapter.

By the 23 & 24 Vict. c. 75, s. 12, any person who rescues any person ordered to be conveyed to any asylum for criminal lunatics during the time of his conveyance thereto or of his confinement therein, and any officer or servant in any asylum for criminal lunatics who through wilful neglect or connivance permits any person confined therein to escape therefrom, or secretes, or abets or connives at the escape of any such person, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for any term not exceeding four years, (b) or to be imprisoned for any term not exceeding two years, with or without hard labour, at the discretion of the Court; and any such officer or servant who carelessly allows any such person to escape as aforesaid shall, on summary conviction before two justices of such offence, forfeit any sum not exceeding twenty pounds nor less than two pounds.

By the 28 & 29 Vict. c. 126 (entitled an Act to consolidate and amend the law relating to prisons), s. 37, 'every person who aids any prisoner in escaping or attempting to escape from any prison, or who,

(y) Holloway v. R., 17 Q. B. 317. 2 Den. C. C. 287.

(z) Ibid. It was also held that if one of several counts be good, the Court may, under the 11 & 12 Vict. c. 78, s. 5, pronounce the correct judgment, or direct the

inferior Court to pronounce it, on the good

count.

(a) The provisions of this Act are now applicable to prisoners sentenced to penal servitude, see post, p. 924.

(b) And not less than three years; see ante, p. 79

with intent to facilitate the escape of any prisoner, conveys or causes to be conveyed into any prison any mask, dress, or other disguise, or any letter, or any other article or thing, (c) shall be guilty of felony, and on conviction be sentenced to imprisonment with hard labour for a term not exceeding two years.' (d)

(c) A crowbar is an article or thing within this section. R. v. Payne, 35 L. J. M. C. 170; L. R. 1 C. C. R. 27.

(d) This Act does not extend to Scotland or Ireland, and does not apply to the prisons for convicts under the superintendence of the directors of convict prisons, or to any military or naval prisoner (s. 3). 'Prison'

shall mean gaol, house of correction, bridewell, or penitentiary; it shall also include the airing grounds, or other grounds or buildings occupied by prison officers, for the use of the prison and contiguous thereto. 'Gaoler' shall mean governor, keeper, or other chief officer of a prison (s. 4).

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VOL. I.

CHAPTER THE THIRTY-SEVENTH.

OF RETURNING, OR BEING AT LARGE, AFTER SENTENCE OF TRANSPORTATION; AND OF RESCUING OR AIDING THE ESCAPE OF A PERSON UNDER SUCH SENTENCE.

As exile or transportation is a species of punishment unknown to the common law of England, and inflicted only under the sanction of enactments of the Legislature, offences committed by not submitting to that punishment are principally dependent upon the provisions of particular statutes. (a) But as a party convicted of felony within benefit of clergy, and sentenced to be transported for seven years, continues a felon, till actual transportation and service, pursuant to the sentence; and as it is a felony at common law to assist a felon to escape out of lawful custody; it has been holden that, independently of any statutable enactments, a person assisting such felon convict, being in custody under sentence of transportation, to escape out of prison, is an accessory to the felony after the fact, provided it be such an assistance as in law amounts to a receiving, harbouring, or comforting such felon. (b)

The 5 Geo. 4, c. 84, s. 1, recites, that the several laws in force for regulating the transportation of offenders from Great Britain, would expire at the end of the then present session of Parliament, and that it was expedient that the laws relative to that subject should be revised and consolidated into one Act. (c)

Sec. 2. By the unrepealed portion of this section (d) whenever his Majesty shall be pleased to extend mercy to any offender convicted of any crime for which he or she is or shall be excluded from the benefit of clergy, upon condition of transportation beyond the seas, either for the term of life, or any number of years, and such intention of mercy shall be signified by one of his Majesty's principal secretaries of state to the Court before which such offender hath been

(a) In 6 Ev. Col. Stat. Part V. Cl. xxv. (G.) pp. 852, 853, the learned editor says, that the earliest Act which imposed the punishment of transportation was 39 Eliz. c. 4, which enacted that rogues, vagabonds, &c., might, by the justices in sessions, be banished out of the realm, and conveyed at the charges of the county to such parts beyond the seas as should be assigned by the privy council, or otherwise adjudged perpetually to the gallies of this realm; and any rogue so banished, and returning again into the realm, was to be guilty of felony. And he says that the earliest statute then

subsisting which notices the power of transportation was 22 Car. 2, c. 5.

(b) R. v. Burridge, 3 P. Wms. 439. (c) By 36 & 37 Vict. c. 91, this Act is in part repealed, namely:Section One.

Section Two, to under the provisions of this Act; and'

Section Seventeen, Twenty-five, and Twenty-nine.

Also, so much of the Act as provides for the appointment of the superintendent therein mentioned, or any overseer, or any assistant, or deputy to such superintendent. (d) See note (c), supra.