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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 imprison-
ed ; (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

a supposed crime, is restrained of his liberty, whether in the statute.

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. Hale 607. (c) 4 Blac. Com. 130. Bract. 1. 3. c. 9. 2 Iust. 588.

(d) 2 Hawk. P. C. c. 18. S. 4. (0) 2 Hawk. P. C. c. 18. s. I.

(e) 2 lost. 589.




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.()

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 port

for which the 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 imprisonnent. (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

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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 treagon in respect of their escape, because there are no acceşsaries 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. () 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

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Of the nature of the breaking.


(n) 2 Hawk. P. C. c. 18. s. 13. It merick's case, Kel. 77. should be observed, however, that (9) 1 Hale 61). 2 lost. 590. Ante, Hawkins, after giving his reasons for 369, 378. these conclusions, says, that no express (2) 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 committed c. 18. s. 16.

for felony to escape, who does escape (p) 2 Hawk. 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,

necessity of an inevitable accident happening, without the con. trivance or fault of the prisoner; as if the prison should be set on fire by accident, and he should break it open to save his life. (s) It seems also that no breach of prison will amount to felony, unless Escape of the the prisoner escape. (t).

party. A party may be arraigned for prison-breaking before he is con- Of the provicted of the crime for which he was imprisoned, (the proceeding ceedings. differing in this respect from cases of escape or rescue,) on the ground that it is not material whether he be guilty of such crime or not, and that he is punishable as a principal offender in respect of the breach of prison itself. (u) But if the party has been indicted and acquitted of the felony for which he was committed, he is not to be indicted afterwards for the breach of prison; for though, while the principal felony was untried, it was indifferent whether he were guilty of it or not, or rather the breach of prison was a presumption of the guilt of the principal offence, yet, upon its being clear that he was not guilty of the felony, he is in law as a person never committed for felony; and so his breach of prison is no felony. (W)

The indictment for a breach of prison, in order to bring the of the indictoffender within the intention of the statute, must specially set ment. forth his case in such manner that it may appear that he was lawfully in prison, and for such a crime as requires judgment of life or member : and it is not sufficient to say in general “ that he felo6 niously broke prison ;” (x) as there must be an actual breaking to constitute the offence. (y) So it is held in all the books to be necessary that such breaking be stated in the indictment. (2)

By the 4 Geo. 4. c. 64. s. 44. the certificate of the clerk of assize, Evidence. or other clerk of the court in which the offender was convicted, together with due proof of the identity of the person, is made evidence of the nature and fact of the conviction; and of the species and period of confinement to which such person was sentenced. (m)

The offence of prison-breaking and escape, by a party lawfully of the punishcommitted for any treason or felony, is, as we have seen, of the ment. degree of felony, (a) and will of course be punishable as such : but it should be observed, that it is a felony within clergy, though the principal felony for which the party was committed were ousted of clergy, as in case of robbery or murder. (b) And in this it differs from the offence of a voluntary escape, which is punishable in the same degree as the offence for which the party suffered to escape was in custody. (c) Where the prison-breaking is by a party lawbut also in the prisoner that escapes principal felony, he may plead that. by means of this breach, as he con- acquittal of the principal felony, in sents to the breach of the prison by bar to the indictinent for the breach taking advantage of it.

of prison. (8) i Hale 611. 2 Inst. 590. Summ. (2) 2 Hawk. P. C. c. 18. s. 20. 108.

(y) Ante, 380. (1) 2 Hawk. P. C. c. 18. s. 12.

(8) Rex v. Burridge, 3 P. Wms. 483. (u) 2 Inst. 692. 1 Hale 611. 2 Staundf. 31. a. 2 Inst. 589, et seq. Hawk. P. C. c. 18. s. 18.

(m) Ante, 369. (w) I Hale 612. where the learned (a) Ante, 378. writer also says, that if the party should (6) I Hale 612. be first indicted for the breach of pri (c) Anle, 375. sou, and then be acquitted of the

9. S. 12.

fully confined upon any inferior charge, it is punishable as a high misprision, by fine and imprisonment. (d)

As prison-breach is a common law felony, if the person breaking prison is a convicted felon, it is punishable as such. The prisoner was found guilty upon an indictment which charged, that he had been tried and convicted of horse-stealing, and sentenced to suffer death; and that his Majesty extended his mercy to him, on condition of being imprisoned and kept to hard labour, in the House of Correction at Brixton-hill, for two years : that he was committed to, and lodged and confined in the said House of Correction; and that he being so convicted and committed, before the expiration of the two years, viz, on the 4th December, 1820, at, &c. with force and arms did wilfully and feloniously break the said House of Correction, and make his escape from and out of it, and go at large, contrary to the statute, &c. and against the peace, &c. The Judges, upon a case reserved, were unanimously of opinion, that this was punishable as a common law felony by imprisonment not exceeding a year, to begin from the passing of the sentence; and that, if thought right, the prisoner might be whipped three times

in addition to the imprisonment.(e) 59 Geo. 3. c. ll. The statute 59 Geo.3. c. 11., being an act for the better regulaConvicts or- tion of the ceneral penitentiar o

tion of the general penitentiary at Millbank, enacts, that any conconfined in the vict ordered to be confined in the said penitentiary, who shall at penitentiary at any time during the term of such confinement break prison, or Millbank, breaking pri

escape from the place of confinement, or in the conveyance

By son, or escap- to sueh place of confinement, or from the person or pering, or attempt- sons having such convict in lawful custody, shall be punished by ing so to do.

an addition, not exceeding three years, to the term for which such convict at the time of the breach of prison or escape was subject to be confined; and if such convict so punished by such addition to the term of confinement shall afterwards be convicted of a second escape or breach of prison, then that such convict shall be adjudged guilty of felony, without benefit of clergy. And it further enacts, that if any convict, who shall be ordered to be confined in the said penitentiary, shall at any time during the term of such confinement attempt to break prison, or escape from the place of bis or her confinement, or shall forcibly break out of his or her cell, or shall make any breach therein with intent to escape therefrom, such offender, being convicted thereof, shall be punished by an addition, not exceeding six calendar months, to the term for which he or she at the time of committing any such offence was subject

to be confined. Prison-break- Before this Chapter is concluded it should be observed, that, by ing, by statutes statutes which relate only to particular crimes, the offence of prirelating to par son-breaking is, in certain cases, made the subject of special enactticular offences.

ment, and, in some instances, of capital punishment; and will be mentioned in the course of the Work, in the order in which the crimes are treated of to which those statutes relate.

(d) 2 Hawk. P. C. c. 18. s. 21. alluded to as applicable to this case,

(e) Rex v. Haswell, East. T. 1821. That statute, however, (except s. 7.) Russ. and Ry. 458. It does not ap- has been repealed by 4 Geo. 4. c. 64. pear that the 31 Geo. 3. c. 46. was

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