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in" of prifon only, except the caufe for which he was 
ta^en and imprifoned did require fiich judgment, it he 
had been convidfed tlicrcupon according to the law and 
cudom of the realm; albeit in times paft it hath been 
ufed otherwife.” So that to break prifon and efcape, 
when one is lawfully committed' for any treafon or felo¬ 
ny, remains hill felony, as at the common law : and to 
break prifon, (whether it be the county gaol, the docks, 
or other ufual place of fccurity,) when lawfully confined 
upon any other inferior charge, is dill punilhable as a 
hioh mifdemeanor by fine and imprifonment. HfComn. c. 
lot 2 Hawk. P.C.c. i8. The offence of breaking prifon 
is but felony, whatfoever the crime were for which the 
party was committed, unlefs his intent were to favour 
the efcape of others who were committed for treafon, 
for that will make him a principal in the treafon. 2 Hawk. 
P.C.c. 18. The felony of breach of prifon is within 
clergy, though the offence for which the party was 
committed be excluded clergy, i Hal. H. P. C. 612. 
To GAOL, V. n. To imprifon ; to commit to gaol.— 
Gaoling vagabonds was chargeable, peflerous, and of no 
open example. Bacon. 
G AOL-DELIV'ERY, the judicial procefs by which 
the judices of aflife difpofe of the prifoners in a gaol. 
The adminidration of judice being originally in the 
crown, in former times our kings in perfon rode through 
the realm once in feven years, to judge of and deter¬ 
mine crimes and offences ; afterwards judices in eyre 
were appointed ; and fince judices of aflife and gaol-de¬ 
livery, &c. A commlflion of gaol-delivery is a patent 
in nature of a letter from the king to certain perfons, ap¬ 
pointing them his judices, or two, or three, of them, and 
authorifing them to deliver his gaol, at fuch a place, of 
the prifoners in it ; for which purpofe, it commands 
them to meet at fuch a place, at the time they them- 
felves fhall appoint; and informs them that for the fame 
purpofe the king hath commanded his dieriffof the fame 
county to bring all the prifoners of the gaol, and their 
attachments, before them, at the day appointed. Cromp. 
JuriJd. 125. And by dat. 3 Hen. VII. c. 3, Thofe that 
have the cudody of gaols mud certify the names or ca- 
lendar of all the prifoners to the judices of gaol-delivery 
in order to their trial or difeharge, on pain of 5I. 
Judices of gaol-delivery are impowered by the com¬ 
mon law to proceed upon indiftments of felony, tref- 
pafs, &c. and to order execution or reprieve ; And 
they have po%ver to difeharge fuch prifoners, as upon 
their trials fliall be acquitted; alfo all fuch againd whom, 
upon proclamation made, no evidence appears to inditi 
them ; which judices of oyer and terminer, &c. may not 
do. iHawk.P.C. But thefe judices have nothing to do 
with any perfon not in cudody of the prifon, except in 
fome fpecial cafes ; as if fome of the accomplices to a 
felony be in fuch prifon, and fome of them out of it, the 
judices may receive an appeal againd thol'e who are out 
of the prifon, as well as thofe who are in it; which ap¬ 
peal, after the trial of fuch prifoners, lhall be removed 
into the king’s-bench, and procefs ilfue from thence 
againd the red. Fitz. Coron.^'j. Such judices have no 
more to do with one let to mainprife,'thanif he were at 
large ; for fuch perfon cannot be faid to be a prifoner, 
fince it is not in the power of his fureties to detain him 
in their cudody.' And w-hei'e any perfon is bailed, tliere 
he is in the cudody of his fureties, and they may detain 
him where they pleafe. 2 H. P. C. 25. Though per Holt, 
Ch.J. If a perfon be let to bail, yet he is in law in pri¬ 
fon, and his bail are his keepers ; and therefore the 
judices of gaol-delivery may take an indidlment againd 
him, as well as if he was adhially in gaol. And they 
may take indittments not only of felony, but alfo of higli 
treafon, if the od'enders are in prifon, and try and give 
judgment upon them, like unto commillioners of oyer 
and terminer; though it has been formerly held other- 
wife, 2 Hale’s Hi/l. P, C. 25. Judices of gaol.delivery 
may punifh thofe who unduly bail prifoners; as being 
VoL, VIII. No, 499. 
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guilty of a negligent efcape. 23 Edw. III.-c. 39. They 
are alfo to punifh dieriffs and gaolers, refufing to take 
felons into their cuflody from condables, &c. flat. 4 
Eda>. III. c. 10; and Itave authority to punifn many par¬ 
ticular od'ences by datute. 
GAOL'ER, f. The mader or keeper of a prifon ; 
one that hath the cudody of the placewhere prifoners 
are kept. Sheriffs mud make fuch gaolers for wliicli 
they will anfwcr. But if there is a default in the gaol¬ 
er, aftion lies againd him for an efcape, &c. 2/)?,'?. 392. 
In common cafes, tlie dierid', or gaoler, is chargeable at 
the diferetion of the party; though the flieriff is mod 
ufually charged. He who hath the cudody of the gaol 
wrongfully, or of right, diall be charged with tlie efcape 
of prifoners ; and if he that liath the aiitual poffefiion be 
not fuflicient, his fuperior fhall anfwer. 2 Hawk. P. C. 
It is faid that for his own fecurity a gaoler may ham¬ 
per a felon with irons to prevent his efcape ; i Hal. H. P. 
C.601. Dalt.c. 170; and that a gaoler is no way punidia- 
ble for keeping even a debtor in irdns; 2 Hawk. P. C.- 
But it has been obferved that this proceeding, even in 
the cafe of a felon, (much more in that of a debtor,) can 
only be intended where the officer has jud reafon to fuf- 
pett an efcape : as wliere the prifoner is unruly, or makes 
any attempt to that purpofe; but otlterwife, notwith- 
danding tlie too common practice of gaolers, it feems 
altogether unwarrantable, and contrary to the mildnefs 
and humanity of the laws of England, by which gaolers 
are forbidden to put their prifoners to any pain or tor¬ 
ment: and lord Coke, 2 Ind. 381, is exprefs, that by 
the common law it might not be done. And if the gaol¬ 
er keep the prifoner more drictly than he ought of right, 
whereof the prifoner dieth, this is felony in the gaoler 
by the common law. And this is the caufe that if a pri¬ 
foner die in gaol the coroner ought to fit upon him : and 
if the death was owing to cruel and oppreflive ufage on 
the part of the gaoler, or any officer of his, it will be 
deemed wilful murder in the perfon guilty of fuch du— 
refs. ^Injll^i. To/?. 321, 2. But if a criminal endeavour¬ 
ing to break the gaol, affault his gaoler, he may be law¬ 
fully killed by hii.. in the affray, i Hawk. P. C. i H, 
H. 496, 
A perfon in execution in the king’s bench prifon was 
put in iroas by the marfhal : and the covirt ordered the 
marfhal to keep his prifoner according to law : and in 
this cafe they faid the gaoler might jultify putting him 
in irons if he feared an efcape; or if the prifoner was un¬ 
ruly. •] Mod. $2. In the fecond year of Geo. II. fir Wil¬ 
liam Rich, being laid in irons in the fleet prifon, had his 
irons taken oft’by order of the houfe of commons; who 
thereupon began an inquiry into the condutl of gaolers, 
w'hich produced fome of the wholelbme laws for the re¬ 
gulation of gaols. 
By flat. iqEdw. III. c. 10, “ If any keeper of a pri¬ 
fon, or under-keeper, by too great durefs of imprifon¬ 
ment, and by pain, make any prifoner that he hath in his 
w'ard to become an appellor againfl his will, he is guilty 
of felony.” By flat. 4 Edw. III. c. 10, It is enabled, 
that the Iherift's and gaolers fliall receive, and fafely keep 
in prifon from henceforth, fuch thieves and felons, by 
the delivery of the conftables and townfliips, without 
taking any thing for the receipt ; and the jultices to de¬ 
liver the gaol, fhall have power to hear their complaints, 
that will complain againfl the Iherift's and gaolers in fuch 
cafe, and moreover to punifh the flierilfs and g^iolers, if 
they be found guilty. By flat. 3 Hen. VII. b. 3, The 
flieriff and every other perfon, having authority or pow¬ 
er of keeping of gaol, or of prifoners for felony, fhall 
certify the names of all prifoners in his cuflody to the 
juflices of gaol-delivery. And if any perfon aifault a 
gaoler, for keeping a prifoner in fate cuflody, he may 
be fined and iuiprifoned. i Hawk. P. C. Where a gaol is 
broken by thieves, tlie gaoler ;s anfwerable ; not if it 
be broken by enemies, 'ilnjl. 52. 
It feems clearly agreed, that a gaoler, by fuft'ering vo- 
3 R Uintary 
