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the King as a fine.(8) And it seems that by the common law the penalty for suffering the negligent escape of a person attainted was of course a hundred pounds, and for suffering such escape of a person indicted, and not attainted, five pounds; and that if the person escaping were neither attainted nor indicted, it was left to the discretion of the court to assess such a reasonable forfeiture as should seem proper. And it seems also, that if the party had escaped twice, these penalties were of course to be doubled but that the forfeiture was no greater for suffering a prisoner to escape who had been committed on two several accusations, than if he had been committed but on one.(h) It is the better opinion that one negligent escape will not amount to a forfeiture of a gaoler's office; yet if a gaoler suffer many negligent escapes, it is said that he puts it in the power of the court to oust him of his office
at discretion.(i) Punishment of Some regulations by statutes respecting the punishment of negcapes by sta- ligent escapes should also be noticed.
The 5 Ed. 3. c. 8. recites, that persons indicted of felonies had 5 Ed. 3. c. 8. removed the indictments before the King, and there yielded themas to the mar- selves, and had been incontinently let to bail by the marshals of sbals of the King's Bench.
the King's Bench; and enacts, that such persons shall be safely and surely kept in prison : and (after providing for the manner of such confinement, &c.) further enacts, that if any such prisoner be found wandering out of prison by bail or without bail, the marshal being found guilty, shall have a year's imprisonment, and be
ransomed at the King's will. 56 G. 3.c. 63. The statute 56 Geo. 3. c. 63., which was passed for regulating having the cus- the general Penitentiary for convicts at Milbank, enacts that if tody of con- any person having custody of any convict, or being employed by victs in the ge- the person having such custody, in the manner mentioned in the tiary.
act, shall negligently permit any such convict to escape ; such person so permitting shall be guilty of a misdemeanor; and being lawfully convicted shall be liable to fine or imprisonment, or to both, at the discretion of the court.(k)
It has been holden that a negligent escape may be pardoned by the King before it happens, but that a voluntary one cannot be so pardoned. (I) Upon an indictment for an escape the court will not intend a pardon; but it must be shewn by the defendant by way of excuse.(m)
(g) 2 Hawk. P. C. c. 19. s. 31., where (k) 56 Geo. 3. c. 63. s. 44. And by the author says, “it seems most pro- s. 45. in any prosecution against any “perly to be called a fine. But this person concerned in the escape, &c. “ does not clearly appear from the old or aiding, &c. a copy properly attested "books ; for in some of them it seems of the order of commitment to the “to be taken as a fine, in others as an Penitentiary is made evidence that the “amerciement; and in others it. is person in question was so ordered to “spoken of generally as the imposition confinement, after proof that such per“of a certain sum, and without any son is the same that was delivered with "mention of cither fine or amercia- the order. “ment."
(1) 2 Hawk. P. C. c. 19. s. 32. and (h) 2 Hawk. P. C. c. 19. s. 33. more fully Id. c. 37. s. 28. (i) Id. ibid. s. 30.
(m) Rex v. Pell, I Lord Raym. 424.
Of Escapes suffered by Private Persons.
The law with respect to escapes suffered by private persons is in general the same as in relation to those suffered by officers : it will be sufficient, therefore, to mention shortly the circumstances under which it is considered that a private person may be guilty of an escape, and the punishment to which he will be liable.
It seems to be a good general rule, that wherever any person In what cases has another lawfully in his custody, whether upon an arrest made a private perby himself or another, he is guilty of an escape if he suffer him to son will be go at large before he has discharged himself, by delivering him escape. over to some other who by law ought to have the custody of him. And if a private person arrest another for suspicion of felony, and deliver him into the custody of another private person, who receives him and suffers him to go at large, it is said that both of them are guilty of an escape; the first, because he should not have parted with him till he had delivered him into the hands of a public officer; the latter, because, having charged himself with the custody of a prisoner, he ought, at his peril, to have taken care of him.(n)
But where a private person, having made an arrest for suspicion of felony, delivers over his prisoner to the proper officer, as the sheriff or his bailiff, or a constable, from whose custody the prisoner escapes, he will not be chargeable. He cannot, however, exclude himself from the escape by alleging that he delivered the prisoner over to an officer, without shewing to whom, in particular, by name, he so delivered him, that the court may certainly know who is answerable. (o)
If an escape suffered by a private person were voluntary, he is Punishment of punishable as an officer would be for the same offence; (P) and if private perit were negligent, he is punishable by fine and imprisonment, at capes. the discretion of the court. (9)
(n) 2 Hawk. P. C. c. 20. s. 1, 2. 1 shall be bound to keep him till the Hale. 595. Sum. 112.
next gaol delivery: but be says, “If (0) 2 Hawk. P. C. c. 20. s. 3, 4. i "such township refuse also to receive Hale 594, 595. Staund. P. C. 34. Sum. “him, I do not see how the person who 112, 114. Hawkins, id. s. 4. says, that “made the arrest can discharge himself if no officer will receive such prisoner “ of him before the next gaol delivery; into his .custody, it seems to be the “unless he can in the mean time prosafest way to deliver him into the cus- “cure him to be bailed.” tody of the township where the person (p) Ante, 375. who arrested him lives, or perhaps of (q) 2 Hawk. P. C. c. 20. s. 6. that where the arrest was made, which
CHAPTER THE THIRTY-THIRD.
OF PRISON-BREAKING BY THE PARTY CONFINED.
Offence at WHERE a party effects his own escape by force, the offence is common law. usually called prison-breaking ; and such breach of prison, or even
the conspiring to break it, was felony at the common law, for whatever cause, criminal or civil, the party was lawfully imprisoned; (a) and whether he were actually within the walls of a prison, or only in the stocks, or in the custody of any person who had lawfully arrested him. (b) But the severity of the common law is mitigated by the statute De frangentibus prisonam, 1 Ed. 2. stat. 2., which enacts, “ That none, from henceforth, that breaketh prison, “ shall have judgment of life or member for breaking of prison “ only; except the cause for which he was taken and imprisoned “ did require such a judgment, if he had been convict thereupon, “ according to the law and custom of the realm.” Thus, though to break prison and escape, when lawfully committed for any treason or felony, remains still felony as at common law; to break prison when lawfully confined upon any other inferior charge, is punishable only as a high misdemeanor, by fine and imprison.
ment. (c) Construction of It will be proper to consider some of the points which have 1 Ed. 2. st. 2.
been holden in the construction of this statute. What is a pri
Any place whatsoever wherein a person, under a lawful arrest for son within the
å supposed crime, is restrained of his liberty, whether in the stocks, or the street, or in the common gaol, or the house of a constable or private person, or the prison of the ordinary, is properly a prison within the meaning of the statute ; for imprisonment is nothing else but a restraint of liberty. (d) The statute, therefore, extends as well to a prison in law as to a prison in
deed. (e) Of the regu
With respect to the regularity of the imprisonment, it is clear larity of the
that if a person be taken upon a capias, awarded on an indictment imprisonment.
or appeal against him for a supposed treason or felony, he is within the statute if he break the prison, whether any such crime were or were not committed by him or any other person : for there is an accusation against him on record, which makes his commitment lawful, however he may be innocent, or the prosecution groundless. And if an innocent person be committed by a lawful
(a) 4 Blac. Com. 129. i Hale 607. (c) 4 Blac. Com. 130. Bract. ). 3. c. 9.
(d) 2 Hawk. P. C. c. 18. S. 4. (6) 2 Hawk. P. C. c. 18. s. 1.
(e) 2 Inst. 589.
2 lust. 588.
mittimus, on such a suspicion of felony, actually done by some other, as will justify his imprisonment, though he be neither indicted nor appealed, he is within the statute if he break the prison; for he was legally in custody, and ought to have submitted to it until he had been discharged by due course of law. (f)
But if no felony at all were done, and the party be neither indicted nor appealed, no mittimus for such a supposed crime will make him guilty within the statute, by breaking the prison; his imprisonment being unjustifiable. And though a felony were done, yet, if there were no just cause of suspicion either to arrest or commit the party, his breaking the prison will not be felony if the mittimus be not in such form as the law requires; because the lawfulness of his imprisonment in such case depends wholly on the mittimus : but, if the party were taken up for such strong causes of suspicion as will be a good justification of his arrest and commitment, it seems that it will be felony in him to break the prison, though he happen to have been committed by an informal warrant. (g)
The next enquiry will be as to the nature of the crime for which of the nature the party must be imprisoned, in order to make his breaking the of the crime prison felony within the meaning of the statute. It is clear that party is imthe offence for which the party was imprisoned must be a capital prisoned. one at the time of his breaking the prison, and not become such by matter subsequent. (h) Though an offender breaking prison, while it is uncertain whether his offence will become capital, is highly punishable for his contempt, by fine and imprisonnient. (i) But it is not material whether the offence for which the party was imprisoned were capital at the time of the passing of the statute, or were made so by subsequent statutes; for, since all breaches of prison were felonies by the common law, which is restrained by the statute only in respect of imprisonment for offences not capital, when an offence becomes capital, it is as much out of the benefit of the statute as if it had always been so. (k)
If the crime for which the party is arrested, and with which he is charged in the mittimus, do not require judgment of life or member, and the offence be not in fact greater than the mittimus supposes it to be, it is clear, from the express words of the statute, that his breaking the prison will not amount to felony. (l) And though the offence for which the party is committed be supposed in the mittimus to be of such a nature as requires a capital judgment; yet if, in the event, it be found to be of an inferior nature, and not to require such a judgment, it seems difficult to maintain that the breaking of the prison on a commitment for it can be felony; as the words of the statute are, “except the cause for “ which he was taken and imprisoned require such a judgment.”(m) And on the other hand, if the offence which was the cause of the commitment be in truth of such a nature as requires a capital
(f) 2 Hawk. P. C. c. 18. s. 5, 6. 2 lnst. 590. Sam. 109. I Hale 610, 611.
(g) 2 Hawk. P. C. c. 18. $. 7, 15. c. 16. S. 13. él sequ. 2 Inst. 590, 59). Sum. 109. T Hale 610, 611.
(h) Anté, 371.
Of the nature of the breaking
judgment, but be supposed in the mittimus to be of an inferior degree, it may probably be argued that the breaking of the prison by the party is felony within the meaning of the statute; for the fact for which he was arrested and committed does, in truth, require judgment of life, though the nature of it be mistaken in the mittimus. (n) It is not material whether the party who breaks his prison were under an accusation only, or actually attainted of the crime charged against him ; for persons attainted, breaking prison, are as much within the exception of the statute as any others. (0)
A person committed for high treason becomes guilty of felony only, and not of high treason, by breaking the prison and escaping singly, without letting out any other prisoner : but if other persons, committed also for high treason, escape together with him, and his intention in breaking the prison were to favour their escape as well as his own, he seems to be guilty of high treason in respect of their escape, because there are no accessaries in high treason; and such assistance given to persons committed for felony will make him who gives it an accessary to the felony, and by the same reason a principal in the case of high treason. (p)
The breach of the prison within the meaning of the statute must be an actual breaking, and not such force and violence only as may be implied by construction of law: therefore, if the party go out of a prison without any obstruction, the prison doors being open through the consent or negligence of the gaoler, or if he otherwise escape, without using any kind of force or violence, it is said that he is guilty of a misdemeanor only. (9) But the breaking need not be intentional; as where a prisoner made his escape from a House of Correction, by tying two ladders together, and placing them against the wall of the yard, but in getting over threw down some bricks which were placed loose at the top, (so as to give way upon being laid hold of), the Judges were unanimously of opinion that this was a prison-breach. (s) And such breaking must be either by the prisoner himself, or by others through his procurement, or at least with his privity; for if the prison be broken by others without his procurement or consent, and he escape through the breach so made, it seems to be the better opinion that he cannot be indicted for the breaking, but only for the escape. (r) And the breaking must not be from the
(n) 2 Hawk. P. C. c. 18. s. 15. It merick's case, Kel. 77. should be observed, however, that (q) 1 Hale 61)., 2 lost. 590. Ante, Hawkins, after giving his reasons for 363, 378. these conclusions, says, that no express (z) Rex v. Haswell, East. T. 1821. resolution of the points appearing, and Russ. and Ry: 458. Richardson, J. the authors who have expounded the thought, that if this had been an esstatute, (see 2 Inst. 590, 591. Sum. cape only, it would not have been 109, 110. i Hale 609.) seeming rather felony. See ante, 368. 378. to incline to a different opinion, he (r) 2 Hawk. P. C. c. 18. s. 10. Pult. shall leave these matters to the judg. de Pac. 1476. Pl. 2. where it is said, ment of the reader.
that if a stranger breaks the prison, in (0) Staundf. P. C. 32. 2 Hawk. P. C. order to help a prisoner commilied c. 18. s. 16.
for felony to escape, who does escape (p) 2 Hawki P. C. c. 18. S. 17. accordingly, this is felony; not only Benstead's case, Cro. Car. 583. Li- in the stranger that broke the prison,