I am slowly plodding my way through Sir Edward Coke’s (1552-1634) Reports. These are Coke’s reports of various legal cases he had either witnessed, participated in as counsel, or presided over as judge. The Reports were published in eleven “parts” during his lifetime, plus a further two published posthumously. I have in my library parts three, four, five, six, nine, ten, eleven and twelve. I have finished three and four so far. Hence, “slowly plodding” is the correct description of this aspect of my reading activity.
In Part Three of the Reports, there is a small cluster of cases having to do with escape, which I find stimulating to read from a purely intellectual point of view. Before delving into them, I should explain what is meant by “escape” in this context.
In Coke’s time, sheriffs and bailiffs were responsible for executing writs and process. They were to seize and keep in custody those that were summoned to appear in court, and they were to ensure execution of judgment upon guilty parties. Such guilty parties might be criminals, but they needn’t be; commonly they were debtors, either accused or adjudged. If one of these charges escaped custody, the sheriff or bailiff would himself be held liable. So, if A were suing B for debt, and on the way to court B escaped from the sheriff’s custody, A could sue the sheriff for the debt in the absence of the debtor. If the court bailiff were bringing B to court and he escaped on the way, A could sue the bailiff. With all of this in mind, let’s have a look at the cases, of which there are three. These all turn on the meaning of “custody” and “escape” as well as liability for the latter.
Boynton’s Case (1592)
A prisoner was being taken by the bailiff from Suffolk to Westminster in execution. On the way, at the prisoner’s request, they stopped off at Lambeth, in Surrey. Since Lambeth is not on the route from Suffolk to Westminster, the question in this case was whether the stop-off constitutes an escape. The court decided that it was not escape, for the simple reason that, regardless of what happened on the road, the bailiff produced the prisoner in court on the appointed day:
So in the case at bar, when the prisoner is once out of the proper county, although he goes into another county which is not in the way to Westminster where the King’s Bench sits; this, by a favourable construction in law, is not an escape, if at the day of the return he have the body of the defendant in court.
Further, it was the opinion of the court that it would be too rigid to require that sheriffs and bailiffs travel in a straight line from point A to point B when transporting prisoners: “And if the Sheriff, etc. should be compelled to bring his prisoners to the King’s Court as in recta linea, it would be too full of hazard and very dangerous for Sheriffs, etc.” Although it is not clear, presumably the hazards and dangers they have in mind would be such things as washed-out roads and robbers.
Rigeway’s Case (1594)
In this case, the plaintiff was suing the sheriff for debt, for having allowed the plaintiff’s debtor to escape. The sheriff did recapture the prisoner, but only after the latter had spent an entire day and night in the ward of Cheap, London. The sheriff pleaded that he had immediately made fresh pursuit after the escape. Because the plaintiff did not deny this, the court found the sheriff not liable.
What this case demonstrates is that a sheriff is not liable for an escape if
a) a) he makes immediate fresh pursuit, and
b) b) he successfully recaptures the prisoner.
The court further found that the above would hold even where the plaintiff had brought his suit after the escape but before the recapture.
However, the early 19th-century editor of my edition of the Reports adds a note to the effect that it makes a difference whether the arrest is on mesne process or in execution, as this case was. (Mesne process refers to that part of the legal process which follows commencement but precedes judgment. Execution refers to the process following judgment.) In mesne process, the prisoner may be out of sight of the bailiff and be at large, so long as he is brought to Court at the return of the writ. My gloss on this is that if Rigeway’s Case had been a matter of mesne process rather than execution, conditions a) and b) would be irrelevant, so long as the sheriff produced the prisoner at the appointed time.
I confess I don’t quite understand the basis for this distinction between mesne process and execution. I suppose it’s a nod in favour of liberty where the prisoner’s guilt or liability has yet to be proven in court. But this doesn’t hold, because the guilt or liability we’re really talking about in this and the previous case is the sheriff’s, not the prisoner’s.
Westby’s Case (1592-97)
A is held in execution for separate debts to B and C. While A sits in prison, the outgoing sheriff transfers his prisoners to the new sheriff. However, the indenture doing so fails to mention the debt to C. Later, A escapes prison under the watch of the new sheriff. As it turns out, the real question in this case is not whether C can sue the new sheriff, but rather, when did the escape take place?
The court found the old sheriff liable for the escape, and that the escape had effectually occurred with the transfer and faulty indenture, for at that point the neglected creditor lost his remedy, through no fault of his own. At that moment, the prisoner was physically still in custody, but only for his debt to B. As far as C was concerned, the prisoner had escaped execution and therefore might as well have been roaming freely about the country. There were really two escapes; the physical escape was such only with respect to B.
As Coke rather pithily puts it, “So, reader, you may observe, that the law doth adjudge one, who remains in prison, to escape.”
Bibliography
COKE, Sir Edward. The Reports of Sir Edward Coke, Knt. in Thirteen Parts (Vol. II: Parts III-IV). London: Joseph Butterworth and Son, 1826.