4 Geo. 4, c. 64. Journal to be kept municate from time to time, to the visiting justices, any abuse or im- 13. Surgeons. propriety which may have come to his knowledge; and he shall further keep a journal, in which he shall enter the times of his attendance on the performance of his duty, with any observations which may occur by him. to him in the execution thereof; and such journal shall be kept in the prison, but shall regularly be laid before the justices for their inspection at every quarter sessions, and shall be signed by the chairman of the sessions, in proof of the same having been there produced: and if it Quarter sessions shall appear to the justices in general or quarter sessions assembled, may remove that any chaplain is incompetent to the due performance of his duties, or is unfit to be continued in his office, or shall have refused or wilfully neglected to perform the duties required of him by the rules and regulations to be made as directed by this act, they are hereby empowered to remove him from such office." And see further as to divine service, &c. ante, 368. Sect. 31. "If any prisoner shall be of a religious persuasion differing from that of the established church, a minister of such persuasion, at the special request of such prisoner, shall be allowed to visit him or her at proper and reasonable times, under such restrictions imposed by the visiting justices as shall guard against the introduction of improper persons, and as shall prevent improper communications." Sect. 32. "In case any chaplain shall, from confirmed sickness, age, or infirmity, become incapable of executing the office in person, the justices of the peace, at any general or quarter sessions of the county, riding, division, district, city, town, or place, respectively, shall take the circumstances of the case into their consideration; and, if such justices shall deem it expedient, they are hereby empowered to grant to such chaplain such annuity as they in their discretion shall think proportionate to the merits and time of his services, and may order the payment out of the rates lawfully applicable to the building and repairing such gaols and prisons: Provided always, that the amount so paid by way of superannuation or allowance to any retired chaplain of any one prison shall not exceed the amount of two-thirds of the salary fixed for the succeeding chaplain of such prison." Sect. 34. "From and after the commencement of this act, there shall be kept in every prison to which this act shall extend, a book, in which the chaplain and every other officer of the said prisons not residing within such prisons, but attending on, or required to attend on, such prison, shall regularly insert the date of every visit made by such chaplain or other such officer respectively; and every such entry shall be signed with the name and in the proper handwriting of such chaplain or other officer respectively, and shall contain such remarks as may be thought necessary on the occasion of any such visit; and every keeper of every such prison shall be responsible for the safe custody of such book, whole, unmutilated, and unaltered, and shall, at all times, when required so to do, produce such book for inspection to the justices at every general or quarter sessions, and to the visiting justices, or to any justice of the peace for the county, riding, division, district, city, town, or place wherein such prison shall be situate; and the chaplain shall, on every Michaelmas quarter sessions, deliver to the justices a statement of the condition of the prisoners, and his observations thereupon.” XIII. Surgeons. chaplain. Dissenting ministers allowed to visit prisoners. Power to quarter annuity to any chaplain incapamity, of executing his office. sessions to grant ble, from infir in Book to be kept, which visits of be entered. chaplain, &c. to By stat. 4 Geo. IV. c. 64, s. 33, "The justices in general or quarter Appointment of sessions assembled shall, and they are hereby required, from time to surgeon. time, to appoint a surgeon, being a member of one of the royal colleges of surgeons, to each of the prisons within their jurisdiction to which this act shall extend; and every such surgeon shall and is hereby His duty. 14. Duties, &c. of gaolers, &c. 4 Geo. 4, c. 64. by him. required to visit every prison to which he shall be so appointed, twice at least in every week, and oftener if necessary, and to see every prisoner confined therein, whether criminal or debtor, and to report to every general or quarter sessions the condition of the prison, and the state of health of the prisoners under his care; and he shall further Journal to be kept keep a journal, in which he shall enter the date of every attendance on the performance of his duty, with any observations which may occurte him in the execution thereof, and shall sign the same with his name: and such journal shall be kept in the prison, but shall regularly be lat before the justices for their inspection at every quarter sessions, and shall be signed by the chairman of the sessions, in proof of the same having been there produced: and it shall and may be lawful for the justices, at every general or quarter sessions after such appointment, to direct a reasonable sum to be paid as salary to such surgeon, and also such sums of money as shall be due for medicines and other articles for the sick." [See the 34th sect., ante, 391]. His salary. See also the rules, ante, 369. As to his certificate for the use of spirits, &c., see ante, 369. XIV. Gaolers, Matrons, and Enferior Officers, their The gaol itself is the Queen's, ante, 337; but the keeping thereof is incidental to the office of the sheriff, and inseparable from it, except: such gaols whereof any persons have the keeping by inheritance or succes sion; therefore the Queen's grant to private persons, to have the custody of prisoners committed by justices of the peace, is void. (Andr. 345, 4 Co. 34 a, 9 Co. 119). This will be found from the 14 Edw. III. st. 1, c. 10, and 19 Hen. VII. c. 10, which enact, that every sheriff, within every county within this realm of England, have the custody, rule, keeping, and charge of every the King's common gaols, prisons, and prisoners in the same, in every of the said counties where he is sheriff, during the time of his office, except all gaols whereof any person or per sons, spiritual or temporal, or body corporate, have the keeping, of estate of inheritance or by succession. (And see 2 Inst. 589). And, therefore, the sheriffs shall put in such keepers for whom they will answer. 14 Edw. III. st. 1, c. 10. But by stat. 3 Geo. I. c. 15, s. 10, none shall buy the office of gaoler, on pain of 5007.; half to the Queen, and half to him that shall sue. (See "Office," Vol. V.) When a sheriff quits his office, the custody of the county gaol can only belong to his successor. (The case of the sheriff of Essex, 1 Ld. Rays. 136). The gaoler of a prison who receives and detains one apprehended and charged in his custody, under a warrant, runs the risk of the warrant having been executed against the proper person; and though acting bo fide and without the means of ascertaining the identity of the individual named in the warrant, he is liable to an action of trespass and false inprisonment, if, by the mistake of the officer to whom it was directed, it was executed against another. (Aaron v. Alexander, 3 Camp. 35; and see Taylor v. White, 4 Esp. 80). A gaoler receiving and detaining a person under a warrant of a magistrate, is entitled to the protection of the 24 Geo. II. c. 44, and therefore, on producing and proving the warrant under which the detention was made, it is immaterial whether or not the magistrate had jurisdic tion to grant it. (Butt v. Newman, Gow. Rep. 97; and see that act and the decisions under title " Constable," Vol. I.) A gaoler is considered as an officer relating to the administration of justice, and is so far under the protection of the law, that if a person threatens him for keeping a prisoner in safe custody, he may be indicted, and fined, and imprisoned for it. (2 Roll. Ab. 76; Bac. Ab. Gaol, (D)). If a criminal, endeavouring to break the gaol, assault his gaoler, he may be lawfully killed in the affray. (Hawk. c. 28, s. 13; Bac. Ab. Gaol, (D)). But if a prisoner gets out of gaol, and the gaoler, in pursuit of him, kills him, he is guilty of an escape, though he never lost sight of him, and could not otherwise take him, not only because the King loses the benefit he might have had from the attainder of the prisoner by the forfeiture of his goods, &c., but also because the public justice is not so well satisfied by killing him in such an extra-judicial manner. (Bac. Ab. Gaol, (D). See further, " Escape," Vol. II). 14. Duties, &c. of gaolers, &c. Escape. As to the gaoler being liable to action for false imprisonment for taking Taking prisoner a prisoner out of his jurisdiction without a habeas corpus or judge's order, see ante, 382, 383. Besides the duties enjoined gaolers by acts of Parliament, and the abuses for which by statute they are punishable, the common law subjects them to fine and imprisonment, as also to the forfeiture of their office for gross and palpable abuses in the execution of their offices; such as suffering prisoners to escape, barbarously misusing them, extorting unreasonable fees from them, or detaining them in gaol after they have been legally discharged and paid their just fees; (9 Co. 50; Raym. 216; Co. Litt. 233); and see, as to when a gaoler would be guilty of murder in improperly treating a prisoner, post, "Homicide;" as to extortion, see "Extortion," Vol. II. Also gaolers are punishable by attachment, as all other officers are by the courts to which they more immediately belong, for any gross misbehaviour in their offices or contempts of the rules of such courts; and punishable by any other courts for disobeying writs of habeas corpus awarded by such courts, and not bringing up the prisoner at the day prefixed by such writs. (2 Hawk. P. C. c. 22, s. 21; Bac. Ab. Gaols, (D)). But a gaoler is not punishable by attachment for the bare escape of a prisoner in custody by civil process; but the party aggrieved ought to take his remedy by action. (Id.) A gaoler, de facto, is as much punishable for a misdemeanor in his office as if he were a rightful gaoler. (Hawk. c. 19, s. 23). It was held in a recent case that the marshal of the Queen's Bench prison is not liable for a tortious act committed by the deputy-marshal in ill-treating a prisoner in the exercise of his office, unless the appointment of the deputy is proved, or the facts shew that the marshal was eognizant of the act done. (Yorke v. Chapman, 3 Per. & D. 496; 10 A. & Ell. 207; S. C.) out of county without a habeas. Misconduct of gaolers punishable at common law. Various rules and regulations will be found among the preceding Duties pointed pazes, ante, 366 to 386, relative to the appointment, office, rights, and out by statutes. duties of gaolers, keepers, and matrons, &c. of gaols. may appoint keepers, &c. By 4 Geo. IV. c. 64, s. 25, “It shall and may be lawful for the jus- Quarter sessions tices assembled at the general or quarter sessions, and they are hereby empowered and required, to nominate and appoint such keepers, matrons, taskmasters, schoolmasters, and other officers, as to them may seem expedient, for every prison within their jurisdiction to which this act shall extend, except the keeper of the common gaol; and to remove, as occasion may require, all officers so by them nominated and appointed: Provided always, that no woman shall be keeper of any prison in which male prisoners are confined." Sect. 26. "It shall and may be lawful for the justices assembled at the general or quarter sessions, and they are hereby empowered, to fix salaries and allowances, to such amount, and subject to such conditions, as to them shall seem meet, for the keeper of the common gaol, and for every keeper, matron, taskmaster, schoolmaster, and officer of each gaol Women not to be keepers of certain gaols. Quarter sessions to fix salaries of keepers, &c. 14. Duties, &c. of gaolers, &c. 4 Geo. 4, c. 64. Gaoler may be superannuated, and allowed a pension. Proviso as to amount. When keeper, &c. shall be removed, justices may proceed as herein mentioned. and house of correction within their jurisdiction; and to order such salaries, and the expense of such allowances, to be paid out of the rate lawfully applicable thereto; and the salaries and allowances so fixed, to alter, reduce, augment, suspend, or stop, from time to time, as occasion shall require: and in case any gaoler or keeper of any prison shall, from confirmed sickness, age, or infirmity, become incapable of executing the office in person, the justices of the peace at any general or quarter sessions of the county, riding, division, district, city, town, or place. 5spectively, shall take the circumstances of the case into their consideration; and if such justices shall deem it expedient, they are hereby e powered to grant to such gaoler or keeper, such an annuity as they in their discretion shall think proportioned to the merits and time of his service, and may order the payment thereof out of the rates lawfully applicable to the building or repairing of such gaols and prisons: Provided always, that the annual amount paid by way of superannuation or allowance to any retired keeper of any prison shall not exceed the amount of two-thirds of the salary fixed for the succeeding keeper of such prison." Sect. 27. "Whenever the keeper or any other officer of any commen resign, or die, two gaol or other prison to which this act shall extend shall be removed from, or resign his or her office, or shall depart this life, every keeper r other officer so removed or resigning, and his or her family, and the family of every such deceased keeper or other officer, shall forthwith quit the possession of the house or apartments in which he, she, or they, shall have previously resided by virtue of such office; and that, if any keeper or other officer so removed or resigning, or any members of the family of any keeper or other officer so removed, resigning, or depar ing this life, shall refuse or neglect to quit such possession for for eight hours after notice given to him, her, or them, in writing, by the under-sheriff, or other officer appointed by the sheriff, in case the house or apartments of which possession shall be required shall be in the common gaol, and by the clerk of the peace in case such house or apartments shall be in any house of correction, any two justices, upon proof mad before them of such removal, resignation, or death, and of the service of such notice, and of such neglect or refusal to comply therewith, may, by warrant under their hands and seals, direct the sheriff of the county, or other officer, having the return of writs, to eject such keeper, or the family of such keeper, out of such house or apartments; and the sheriff or such other officer shall accordingly clear the possession thereof in like manner as upon a writ of habere facias possessionem.” Deputy-keepers may be appointed. Governors may be appointed. By 2 & 3 Vict. c. 56, s. 7, "It shall be lawful for the keeper of every prison, with the approval of the visiting justices, to appoint an officer of the prison to act as deputy-keeper, whenever the keeper shall be necessarily absent from the prison; and during such necessary absence of the keeper, the deputy-keeper shall have all the powers and duties of the keeper of the prison, and the keeper shall be civilly responsible for all acts and omissions of his deputy-keeper." Sect. 24. "That if the persons authorized by law to appoint the gaoler or keeper of any prison shall appoint such keeper by the style of governor, such governor shall have all the powers and duties of the gaoler or keeper of that prison; and all enactments made with regard to the gaoler or keeper shall apply to the governor so appointed." As to the keeper's duty to make entries in a book of the chaplain's and other officer's visits, see ante, 391. As to his duty in respect of preventing the use of spirits in gaols, see ante, 369. As to his power to inquire into and punish certain offences, see ante, 380. 15. Fees to gaolers, &c. Fees to Gaolers, &c. on Discharge, &c. of Prisoners. and the B stat. 55 Geo. III. c. 50, intituled " An Act for the abolition of gaol 55 Geo. 3, c. 50. other fees connected with the gaols in England," after reciting, "Whereas it is expedient, for the better government of gaols and bridewels in England, that all fees and gratuities payable at the same, for entrance, commitment, or discharge of any prisoner, should be abolished," it is enacted, "That from and after the Ist day of October next, all fees and gratuities paid or payable by any prisoner, on the entrance, commitment, or discharge to or from prison, shall absolutely cease, and the same are hereby abolished and determined." Sect. 2, "And whereas in some places such fees and gratuities as aforesaid are payable to the gaoler or his servants, and are to him or them as a salary," enacts "That it may be lawful for the justices of the peace for any county, city, or town, assembled in general or quarter sessions, to make such allowances to the aforesaid gaoler or servants, as may to them seem fit, in the way of salary or compensation for the fees or gratuities, payable by prisoners, now abolished by this act." Fees or gratuities and bride wells abolished, payable at gaols Quarter sessions to make allow ances to gaolers, &c. Action for improper fee paid. Assumpsit for money had and received will lie against a gaoler, where, by the regulations of a prison made by the magistrates, certain rates are settled for lodgings, &c., within the prison, and the gaoler takes more than that sum, even though he has paid it over to the magistrates to hom he accounts. (Miller v. Aris, 3 Esp. 231). Sect. 3. "The said justices of the peace for any county, city, or town, Allowances paid may direct the said allowances to be paid out of any county rate, city rate, or town rate, now by law authorized to be made and levied." Sect. 4, "And whereas it is customary for clerks of the assize, clerks Of the peace, clerks of the court, or their deputies, or other officers in the courts of assize or session, to demand and take from persons indicted, divers sums in the way of fees," enacts, "That every prisoner who now is or hereafter shall be charged with or indicted for any felony, or as an accessary thereto, or with or for any misdemeanor, before any court holding criminal jurisdiction within that part of the United Kingdom of Great Britain and Ireland called England, against whom no bill of indictment shall be found by the grand jury, or who, on his, her, or their trial shall be acquitted, or who shall be discharged by proclamation for want of prosecution, shall be immediately set at large, without payment of any fee or sum of money, for or in respect of his, her, or their discharge, to any person or persons whomsoever; except only in such cases wherein the prisoner shall have been charged, and shall then stand charged, with any process authorizing the detention of such prisoner: Provided always, that if it shall happen that any prisoner who shall so stand charged with any process authorizing his detention as aforesaid, shall have been discharged in supposed obedience to this act, by reason that the sheriff or other officer entitled to have detained him was, at the time of such his discharge, ignorant that there was any such charge against him, it shall in such case be lawful for such sheriff or other officer, on receiving information of such charge, presently to retake the prisoner so discharged as aforesaid, and thereupon forthwith to detain him in custody upon such charge, in such manner as the said sheriff or other officer might have done if such prisoner had not been set at large; and that, upon his being so retaken, the said prisoner shall be deemed, for the purpose of that suit, to have been in custody continually from the time when he so first stood charged as aforesaid." Sect. 5. "All such fees as have been usually paid or payable to the several clerks of assize, and clerks of the peace, clerks of the court, or their deputies, in that part of the United Kingdom of Great Britain and Ireland called England, in any of the cases aforesaid, shall absolutely cease, and the same are hereby abolished and determined; and, from and out of county rates, &c. Prisoners charged with felony or misdemeanor and acquitted, discharged without payment of fees, Fees usually paid to clerks of court, lished. assize, &c. abo |