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7. Rules, clas- same, and at such periods, as shall be directed by such justice or justices: sification, go- provided always, that it shall not be lawful to place together, on acvernment, and count of such employment, any prisoners who would otherwise be kep: treatment of separate under the provisions of this act.”

prisoners. Sect. 38, reciting that, “ Persons convicted of offences are frequently 4 Geo. 4, c. 64.

sentenced to imprisonment without being sentenced to hard labour,"

* enacts, “ That it shall be lawful for two or more visiting justices of any Proviso as to prisoners working prison to order that all such persons confined in such prison in putogether.

suance of any sentence or conviction, except such prisoners as shall main Two visiting jus

tain themselves, shall be set to some work or labour not severe; and it tices may order prisoners to be is hereby declared, that no such prisoner, who shall be of ability to eari, employed.

and who shall have the means of earning or of otherwise providing for Prisoners able to

his own subsistence, shall have any claim to be supported at the expens earn, not to have support from the of the county, riding, or division, or by the sheriff or the keeper of the county.

prison; provided that when such ability shall cease by reason of sickness, infirmity, the want of sufficient work, or from any other cause, every such person shall, during the continuance of his inability, receive

such provision and support as shall be directed for other convicted priAccount of work soners in the same prison; and the keeper of every such prison shall done kept by

keep an account of the work done by every prisoner so set to work as keeper.

aforesaid, and shall account to such prisoner for so much of the net proAllowance for work done.

fits which such prisoner shall have earned, or for such daily or other allowance for the work and labour done by such prisoner, as shall be directed either by the rules and regulations of such prison, or, in case of no provision being made on this head by those rules and regulations, then for such part of the said net profits, or for such daily or other allowance, as shall be directed by the visiting justices, and shall pay the amount of all accumulations of such allowance to such prisoner at his or her discharge.” (But the latter part of this section, as to the account to

be kept by the keeper, is repealed by the 2 & 3 Vict. c. 56, s. 8, post, 379). No prisoner to be The 5 Geo. IV. c. 85, s. 16, reciting, “ That by stat. 4 Geo, IV.c.64 employed without s. 387 it was made lawful for one or more visiting justice or justices of his consent, nor on tread-wheel before any prison to which the same extended to authorize, by an order !! conviction,

writing, the employment of prisoners committed for trial, with their own consent, in any such work as therein specified,” enacts, “That such consent of every such prisoner shall be freely given, and shall not be extorted or obtained by deprivation or threat of deprivation of any prison or other allowance ; and that no prisoner, before conviction, shall, under any pretence, be employed on the tread-wheel, either with or without his consent.”

Sect. 17, reciting, “ That it has been doubted whether prisoners Coil mitted to prison for trial, who are unable to maintain themselves otherwise than by being employed in some kind of work or labour in

prison, are entitled to receive any prison allowance of food without being Prisoners com required so to employ themselves, enacts, “ that such prisoners shall be mitted for trial to be lowed food allowed such food as may be sufficient for the support of health, withou without being being obliged to perform any kind of work or labour as the condition of obliged to work.

such allowance; and that any wages or portion of the same, which may become due to such prisoners from the keeper of any prison, in cons quence of any order made by any visiting justice or justices of suci prison, for the employment of such prisoners with their own consent, shall be paid to them as directed by such order, in addition to the food so allowed, and without any diminution of such allowance by reason of such payment.”

Prisoners committed to gaol for trial, who are able, but refuse to work; are not entitled by law to have any food provided for them by die public; and therefore, where a magistrate reported, as an abuse, to til justices at the quarter sessions, that untried prisoners had been com pelled to work at the tread-mill, and the justices at sessions ordered the the tread-mill should be applied to the employment of other priso as well as those sentenced to hard labour; and that those committe

ial who were able to work, and had the means of employment offered 7. Rules, claslem by which they might earn their support, but who refused to work, sification, golould be allowed bread and water only; this court refused to grant à vernment, and andamus to compel the justices to order such prisoners any other treatment of od(a).

prisoners.

(@) Rex v. Justices of Yorkshire, (2 sons; and, by the thirteenth regula-
1. & Cres. 286; 3 D. & R. 510). M. tion, it is provided, that "every pri-
taplyton, Esq., a magistrate for the soner maintained at the expense of any
Sorth Riding of Yorkshire, in his offi- county, &c. shall be allowed a suffi-
cial capacity visited the house of cor cient quantity of plain and wholesome
rection at Northallerton, on 14th Oct. food, to be regulated by the sessions ;
1823, and found that several prisoners regard being had (so far as may relate
committed for trial had been compelled to convicted prisoners) to the nature
to work upon the tread-mill against of the labour required from, or per-
their inclinations. On the same day he formed by, such prisoners, so that the
Dade his report in writing to the jus, allowance of food may be duly appor-
lices, in general quarter sessions as- tioned thereto : and the justices may
sembled, of this state of facts, and re- order, for such prisoners of every de-
quired the same to be taken into im. scription as are not able to work, or,
mediate consideration, and rectified. being able, cannot procure employment
The sessions took the report into con sufficient to sustain themselves by their
sideration, and made an order that the industry, or who may not be otherwise
tread-mill should be applicable both as provided for, such allowance of food as
hard labour in the cases of such pri. the justices shall think necessary for
soners as might be sentenced thereto, the support of health." Then sect. 37,
and for the employment of other pri reciting that “ Persons are often com-
soners; and also, that persons com- mitted to prison for trial who are will.
mitted for trial, who were able to work, ing to be employed in such work as
and had the means of employment of. can be conveniently executed in the
fered them, by which they might earn prison to which they are so committed,
their support, but who should obsti- and it is fit that such persons should
nately refuse to work, should be als be so employed rather than that they
lowed bread and water only. Upon an should be obliged to remain idle during
atidarit disclosing these facts, and the their confinement," enacts, that any
belief of Mr. Stapylton that bread and visiting justice may “Authorize, by an
water, unaccompanied by any other ar. order in writing, the employment of
ticle of food, does not afford sufficient any such prisoners, with their own
nounshment for the due support of consent, in any such work; and that
human nature, and that upon such a the keeper of such prison is to employ
duet the health of prisoners cannot be such prisoners in such work or labour
preserved, the following argument on accordingly, and is to pay to such pri-
motion for a mandamus to the justices soners any such wages, or portion of
of the peace for the North Riding of the same, and at such periods as shall
Torkshire, commanding them to in. be directed by such justice.” From
quire into and rectify this abuse, was these two sections it is obvious that
adopted :-By stat. 4 Geo. IV. c. 64, such prisoners committed for trial as
5. 17, "Any justice is empowered to have not the means of supporting them-
enter into and examine the state of any selves, and are, consequently, main-
aol, as often as he shall think fit, and tainable by the riding, are entitled to a

required to report, in writing, any sufficiency of plain and wholesome food, abuse therein to the next quarter ses and that the magistrates have no ausions; which abuse, so reported, shall thority to compel such prisoners to be taken into immediate consideration work at the tread-mill, or at any other by the justices at such sessions, and species of employment, against their the most effectual measures adopted

es adopted inclinations. Now the order of the for inquiring into and rectifying such justices, made subsequently to the reabuse, as soon as the nature of the case ported abuse, is in direct contravention will allow." Now, if this court see of this act of Parliament. The effect that the justices have not complied of that order is to compel the untried with the directions of that section, in prisoners to work against their will; Letifying the abuse presented, it will, for, if they do not work at the employ. o mandamus, compel them so to do. ment prescribed, they will have no by sect 10, certain regulations are other allowance than bread and water. prescribed for the management of pri. That, too, cannot be considered “plain

7. Rules, clas- By 5 Geo. IV. c. 84, s. 18, “It shall be lawful to keep to hard labour sification, go- every offender under sentence or order of transportation, while he or she vernment, and shall remain in the common gaol, if his or her health shall permit, and treatment of

prisoners. and wholesome food," within the mean prisoners who were able and unwilling 5 Geo. 4, c. 84.

ing of the 10th section. Such food to work were not entitled to be madConvicts may be

must necessarily be of a description tained at the public expense; and its kept to hard adequate to the due preservation of not contended, that that statute casta labour, and may bealth : 'yet that is negatived by the such a burthen upon the public. Then be removed to house of correc

affidavit. It is true that no individual being, therefore, no provision in any
case is mentioned in which the allow. act of Parliament to compel the county
ance of bread and water alone has had to provide food for those who are able,
a prejudicial effect upon the health of but unwilling, to work, we cannot great
the prisoner, but it is notorious that a mandamus to compel the justice to
many of the diseases afflicting the la. order any species of food to be provided
bouring classes result from too spare a for such prisoners. We ought to see
diet. [Abbott, C. J.-How are we to clearly that the magistrates have nego
judge what is “plain and wholesome lected some duty imposed upon them
food ?" That is matter upon which by law before we compel them to act
the justices are exclusively to decide. in any particular mode. From the facts
Can you refer us to any act of Parlia- now before the court, it does not ap-
ment which makes it compulsory on pear that labour at the tread-mill is 8
the county to provide with food persons species of work unfit for the emplos:
committed for trial?] It will be ob. ment of the prisoners. I cannot say
served that this observation was made that such an employment is contrary
before the 5 Geo. IV. c. 85, s. 17, ante, to law. The legislature appears ts
376. The only statutes bearing upon have vested in the county magistrates
that point are 19 Car. II. c. 4; 31 Geo, a discretion as to the management ang
III. c. 46, s. 13; and 4 Geo. IV. c. 64. diet of the prisoners. Bayley, J.-
Abbott, C. J.-It appears by the pre- am of opinion that the public are not
amble of the 19 Car. II. c. 4, that, bound to find food for those who are
before that statute, there was not any able, but who are unwilling, to work;
sufficient provision made for the relief and if that be so, the justices have
and setting on work of poor persons already done more than the law Te*
committed to gaol for felony and other quired them to do, by ordering şucu
misdemeanors, and that they actually persons bread and water. Best, do
many times perished before their trial; I think that a writ of mandamus ouge
and that the poor, living there idle and not to issue in this case, because i
unemployed, became debauched, and magistrates have already done more
came forth instructed in the practices than we could order them to do.
of thievery and lewdness; and that the law requires a certain thing to be
statute then enabled the justices at ses done, we may order it to be done by
sions to provide a stock of materials, the party upon whom the obligation
out of the county rate, for setting on doing it is imposed. If he is to act
work poor prisoners, and to bestow the according to his discretion, and he w
profits arising from such labour towards not act or even consider the matter,
their relief. The statute 31 Geo. III. may compel him to put himself in
c. 46, s. 12, extends the provisions of motion to do the thing, but we canli
the former statute to all prisoners control his discretion. By the statute
whatever within the gaols, who may 4 Geo. IV. c. 64, s. 17, the justacts
be inclined and willing to work; and, at sessions are bound, upon its being
by the recital in the thirteenth section, reported by a magistrate that comes
it appears, that even at that time the abuses exist in a gaol, to take that
health of the prisoners was frequently port into consideration. In this
so affected by want of necessary food a magistrate made his report, that po
as to render them incapable of labour soners committed for trial were
when released ; and the justices at ses. pelled to work on the tread-mill. The
sions are thereby authorized to order justices at sessions took that report into
money to be paid out of the county rate consideration, and determined that love
towards assisting prisoners of every tread-mill should be applicable
description who are not able to work, hard labour to such prisoners as were
or who, being able, cannot obtain em sentenced thereto, and for the emplor.
ployment sufficient to sustain them- ment of all other prisoners.
selves by their industry. It is clear, they have complied with the
therefore, that before the late statute, Parliament, by taking the matt

tion,

e both as

d with the act of

fone or more of the visiting justices of such gaol shall give a written 7. Rules, clasrder to that effect; and that it shall be lawful for one of his Majesty's sification, goprincipal secretaries of state, if he shall think fit, to order that any such vernment, and

ffender be removed from the common gaol to the house of correction, treatment of ind there kept to hard labour.”

prisoners. Sect. 19. “The time during which any offender shall continue in any

any 5 Geo. 4, c. 84. caol or house of correction, or in any such place of confinement as afore

Time of impriaid, under sentence or order of transportation or banishment, shall be sonment to be taken and reckoned in discharge, or part discharge, of the term of his deemed part of or her transportation or banishment."

The 2 & 3 Vict. c. 56, s. 8, enacts, “That so much of the said act of Repeal of part of the fourth year of the reign of King George the Fourth as requires the 4 Geo. 4, c. 64, as

to convicts emkeeper of any prison to account to any convicted prisoner for the net ployed in gaol. profits which such prisoner shall have earned by his or her work, labour, or employment in the prison, or any part thereof, or for any allowance for the work and labour done by such prisoner, and to pay the amount of all accumulations of such allowance to such prisoner, at his or her discharge, is hereby repealed; and that no officer of any prison shall be No officer to have allowed any wages or profit in money or otherwise in respect of the profit by their

term,

work.

consideration; but it is said that they to work.” The wise principle of that, have not rectified that which is alleged as well as all other statutes for the to be an abase, because they have di- maintenance of the poor, was, that emrected the tread-mill to be used for the ployment should be provided for them employment of all prisoners, and have by which they might support them. also ordered that persons committed selves. The 4 Geo. IV. sanctions that for trial, who are able to work, and principle. The thirteenth regulation hare the means of employment offered enables “ the justices to order for such them by the magistrates, by which they prisoners, of every description, as are may earn their support, but who obsti. not able to work, or, being able, cannot nately refuse to work, shall be allowed procure employment sufficient to susbread and water only; and it is insist. tain themselves by their industry, or ed, that that is not plain and wholesome who may not otherwise be provided for, food for their support, and therefore a such allowance of food as they shall violation of the thirteenth regulation. think necessary for the support of It is not, however, for us to decide health.” The 37th section enables whether it be or be not sufficient, the the magistrates to employ prisoners quality and quantity of the food being committed for trial, with the consent of left to the discretion of the magistrates. such prisoners. This section prevents But what right has a prisoner to whom them from forcing such prisoners to work is offered, and who is able to do work against their will, but it does not it, but will not, to have any food at the oblige them to find food for such as are expense of the county ? According to able and will not work. An idle per. the Poor Laws, he who is able to labour son has no right to the maintenance is to be maintained by labour only, and now claimed for him; and therefore we nothing is to be provided for him but cannot order the magistrates of the a means of employment. Neither hu. county to provide better food for such manity nor policy requires that one on prisoners than they have already offered whom a charge of felony has been made them. I do not mean to say that maon oath should be in a better situation gistrates in all cases would be justified tban one who lives unsuspected of crime. in offering to such prisoners the same The common law made no provision for severe labour that persons condemned maintaining prisoners in idleness. And to hard labour are bound to perform. the preamble of the 19 Car. II. c. 4, is Inasmuch as the object of employment a legislative declaration of the mis. of prisoners committed for trial is supchievous consequences resulting from port and not punishment, it may perpoor prisoners not having the means of haps be fit to provide the most profitsupporting themselves by labour, and able and least irksome labour which, from their living in idleness, and that consistently with the security of the statute, as a remedy for this error, prisoners and the situation of the gaol, enacts, ** That the justices shall provide can be provided. Rule refused. materials for setting on such prisoners

7. Rules, clas- work performed by any prisoner; and that the allowances which the sification, go- visiting justices shall grant out of his or her earnings to any prisoner vernment, and committed for trial, against whom no bill of indictment shall be found treatment of by the grand jury, or who upon his or her trial shall be acquitted of the prisoners. offence or offences with which he or she was charged, shall be such as,

under all the circumstances attending the case of such prisoner, shall 2 & 3 Vict. c. 56.

appear to them fit and reasonable, and shall not be given to such priAllowances to certain prisoners. soner until he or she shall be discharged from the prison." Offenders against Sect. 17. “That it shall be lawful to keep to hard labour every whom sentence of

offender against whom sentence of death shall be recorded and not death is recorded may be kept to

pronounced by the court while he or she shall remain in the gaol or hard labour.

house of correction, if his or her health shall permit; and it shall be lawful for one of her Majesty's principal secretaries of state, if he shall think fit, to order that any such offender be removed from the common gaol to the house of correction, and there kept to hard labour: provided always, that it shall not be lawful to continue to keep any such offender to hard labour if the sentence of death so recorded and not pronounced by the court shall at any time be commuted for any punishment of which hard labour does not form a part.”

No prisoner to
sit on an inquest.

(5). PRISONERS NOT TO BE JURORS ON INQUESTS. By 4 Geo. IV.c. 64, s. 11, “In case the coroner shall hold an inquest on the body of any prisoner who shall have died within the prison, none of the prisoners confined in that prison shall be a juror on such inquest."

(6). ESCAPE OF PRISONERS, OR ATTEMPTS TO ESCAPE.

Escapes and

See in general, ante, tit. Escape," Vol. II. attempts to escape. By 4 Geo. IV. c. 64, s. 43, “ That if any person shall convey, o Conveying vizors, &c. inio prisons to cause to be conveyed, into any prison, to which this act shall extend, assist prisoners to any mask, vizor or other disguise, or any instrument or arms proper escape.

to facilitate the escape of any prisoners, and the same shall deliver of cause to be delivered to any prisoner in such prison, or to any other person there, for the use of any such prisoner, without the consent of privity of the keeper of such prison, every such person shall be deemned

to have delivered such vizor or disguise, instrument or arms, with inAssisting prisoners tent to aid and assist such prisoner to escape or attempt to escape; and to escape.

if any person shall, by any means whatever, aid and assist any prisoner to escape or in attempting to escape from any prison, every person so

offending, whether an escape be actually made or not, shall be guilty of Transportation. felony, and being convicted thereof, shall be transported beyond the

seas for any term not exceeding fourteen years." Method of trial Sect. 44. “And, to the intent that prosecutions for escapes, breaches and conviction of offenders making

of prison, and rescues, may be carried on with as little trouble and escape, rescue, expense as is possible, be it enacted, That any offender escaping, break&c.

ing prison, or being rescued therefrom, may be tried either in the jurisdiction where the offence was committed, or in that where he or she shall be apprehended and retaken; and in case of any prosecution for any such escape, attempt to escape, breach of prison or rescue, either against the offender escaping or attempting to escape, or having broken prison, or having been rescued, or against any other person or persons concerned therein, or aiding, abetting, or assisting the same, a certificate given by the clerk of assize or other clerk of the court in which such offender shall have been convicted, shall, together with due proof of the identity of the person, be sufficient evidence to the court and jury or the nature and fact of the conviction, and of the species and period of confinement to which such person was sentenced."

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