Jailers' Liability

Casey Quinn

In Southcote's Case, 4 Co. Rep. 83b, the King's Bench cited a rule that jailers are held liable for prison breach even in cases of rescue: "If traitors break a prison, it shall not discharge the gaoler..." In Commentaries on American Law, Lecture 40, Of Bailment, Kent said that "Sheriffs and jailers, in respect to debtors in custody, have been placed under the same responsibility as common carriers": strict liability (at footnote 104). In The Reports of the Most Learned Sir Edmund Saunders, Knt., Saunders agrees:

Wait also agrees. As does Blackstone: “A rescue of a prisoner…will not excuse the sheriff from being guilty of and answering for the escape; for he ought to have sufficient force to keep him, since he may command the power of the county.”

These authorities connect this strict liability rule to two main cases decided within a week of one another: Alsept v. Eyles, 2 H. Bl. 108, 1792, in Common Pleas; and Elliott v. the Duke of Norfolk, 4 Term. Rep. 789, 1792, in the King's Bench.

Alsept v. Eyles

In Alsept v. Eyles, Francois Gabriel de Vertillac, a prisoner in execution held by the Warden of the Fleet, was rescued by two unknown friends, and escaped from England, presumably to France, their home country. Eyles apparently "took all due and possible care in his power to prevent the escape," but Common Pleas found him liable to a creditor in an action of debt for the debtor's escape. Lord Loughborough, citing a Yearbook case I cannot find, 33 Hen. 6, c. 1, Plowden 35, which is too fragile to photocopy, and Coke in 2 Inst. 382, announced the rule that "nothing but the act of God or the king's enemies will be an excuse" for prison breach. He derived this rule from Coke's discussion of the statute West. 2 (13 Edw. 1, st. 1, c. 11) and by analogy to strict liability for common carriers.

Elliott v. the Duke of Norfolk

In Elliott v. the Duke of Norfolk, the King's Bench affirmed the Alsept rule in a similar situation: the chief bailiff of the liberty of Hallamshire had "done as much as in his power lay to prevent" the escape of J. Grayson, but the debtor was freed by a riotous rescue. In an action upon the case, the creditor sued the bailiff. The Court found the bailiff liable, reasoning that statutes passed after massive prison riots in 1780, 20 Geo. 3, c. 64 and 21 Geo. 3, c. 1, that indemnified the marshal of that prison proved that Parliament implicitly approved of liability in other such cases.

Policy

Liability for prison breach was clearly a policy decision made by the courts and Parliament, dating back centuries. While discussing measures taken by the royal government to better control prisons, Holdsworth points out that in early English legal history, the parties to a dispute regarded litigation as something like the private warfare to which they would previously have resorted to resolve a dispute. Measures were therefore needed to prevent such things as prison rescues. It seems likely that the government would thus attempt to induce jailers to do all within their power to prevent such rescues by imposing liability for escape even in these cases.

Strict prison breach liability would seem to fit into the scienter category of indirect harms. Prisoners, like wild animals, could easily be viewed as inherently dangerous, necessitating strict liability on their keepers to strongly deter their escape. Not only were many prisoners held for violent crimes, but Holdsworth details the appalling condition of jails that led to widespread "gaol fever" that took the lives of a large percentage of inmates, noting one instance when 300 people, including the chief baron and sheriff, died within 40 hours, and another instance when two judges, the lord mayor, and an alderman were killed by an epidemic. Nevertheless, it seems the analogy to wild, dangerous animals was not a factor in the development of strict liability for jailers.

Instead, jailer liability has developed alongside liability for common carriers and innkeepers, perhaps as a result of a different health crisis. In English Law in the Age of the Black Death, 1348-1381, Robert C. Palmer argues that after the trauma of the plague in the mid-fourteenth century, English government became more cohesive and undertook measures to preserve the status quo, particularly by coercing people to keep their obligations. He argues: that while the king’s government focused especially on occupational responsibilities, such as those of farriers and innkeepers, jailers, whose duties were those of royal officials (but see Holdsworth, pointing out that until prison reform in the late eighteenth century, many prisons were operated privately), were also subjected to an increase in liability for the escape of prisoners in this period.

By the mid-fourteenth century, there were already some remedies for prison breach. The Statute of Merchants, 1285, allowed creditors to sue jailers in both debt and trespass for the debt owed by an escaped judgment debtor, and allowed sheriffs amerced for an escape to recover against the responsible jailer in covenant (Palmer, 261). These remedies were not often utilized (262). In 1335 and 1336, two King’s Bench cases allowed a creditor to recover damages from a jailer who permitted the debtor to escape without paying his debt (264). In these cases the plaintiffs alleged contempt of the king and loss of the king’s amercement, respectively. Palmer argues liability here was “probably a special king’s bench initiative to discipline jailers” that was soon discontinued. Finally, in 1345 [263-4], an executor received a judgment against jailers in debt for the escape of a prisoner in arrears on accounting, even though the jailers did not voluntarily permit the escape. According to Palmer, this case “is the only indication discovered during the period that can possibly be construed as liability for a negligent escape” (264).

Jailer liability for prison breach was greatly expanded after the Black Death. In the late 1350s and 1360s, writs were issued allowing prison superiors, not just sheriffs, to recover damages against jailers who allowed escape (263). Debt liability allowing a creditor to recover from a jailer who allowed a debtor’s escape was expanded after 1378 (264). Trespass liability was likewise expanded and formalized by chancery in 1369 (265). Nevertheless, these remedies were apparently used very infrequently, and Palmer argues that jailers were not held strictly liable for prison breach until some later period (266).

That later period was apparently the late eighteenth century, amid widespread reforms aimed at fixing a growing prison problem. While there had been previous isolated instances of strict liability imposed on jailers and sheriffs, the high courts did not affirm the policy until the two 1792 cases discussed above. These cases were based as much on the courts' interpretation of acts of Parliament implicitly approving such liability as on the common law of prison breach. But it mainly seems an analogy to and extension of innkeeper/common carrier liability.

I'm still waiting for the two statutes cited in Alsept, and Plowden 35, which hopefully discusses the 33 Hen. 6 yearbook case. I also need to attach the two statutes passed after the 1780 riots that were so important in Elliott.