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CHAPTER THE THIRTY-FOURTH.

OF RESCUE; AND OF ACTIVELY AIDING IN AN ESCAPE, OR

IN AN ATTEMPT TO ESCAPE.

RESCUE, or the offence of forcibly and knowingly freeing another Of rescue. from arrest or imprisonment, is, in most instances, of the same nature as the offence of prison-breaking, which has been treated of in the preceding Chapter.

Thus it is laid down, that whatever is such a prison that the of the sort of party himself would, by the common law, be guilty of felony in prison, and

of the impribreaking from it, in every such case a stranger would be guilty of sonment and as high a crime at least in rescuing him from it. But though, upon breaking. the principle that wherever the arrest of a felon is lawful the rescue of him is a felony, it will not be material whether the party arrested for felony, or suspicion of felony, be in the custody of a private person, or of an officer; yet, if he be in the custody of a private person, it seems that the rescuer should be shewn to have knowledge of the party being under arrest for felony.(a) In cases where the imprisonment is so far groundless or irregular, or for such a cause, or the breaking of it is occasioned by such a necessity, &c. that the party himself breaking the prison, is, either by the common law, or by the statute 1 Edw. 2. st. 2. De frangentibus prisonam, saved from the penalty of a capital offender; a stranger who rescues him from such an imprisonment is, in like manner, also excused. (b)

It has been stated in the preceding Chapter, that, where a person A rescuer may committed for high treason breaks the prison and escapes, letting be guilty of

ho high treason. out other persons, committed also for high treason, he seems to be guilty of high treason, in case his intention in breaking the prison were to favour the escape of such other persons as well as his own : (c) and it is clear that a stranger who rescues a person committed for, and guilty of, high treason, knowing him to be so committed, is, in all cases, guilty of high treason.(d) It has been holden also, that he will be thus guilty whether he knew that the party rescued were committed for high treason or not: and that he would, in like manner, be guilty of felony by rescuing a (a) i Hale 606.

(c) Ante, 380. (6) 2 Hawk. P. C. c. 21. s. 1, 2. 2 id) 2 Hawk. P. C. C. 21. S. 7. Inst. 589. Staundf. P. C. 30, 31. Ante, Staundf. P. C. 11, 82. Sum, 109. 1 378. et seq.

Hale 237.

felon, though he knew not that the party was imprisoned for

felony. (e) A breaking of As the party himself seems not to be guilty of felony by breakthe prison is ing the prison, unless he actually go out of it; (f) so the breaking

of a prison by a stranger, in order to free the prisoners who are in unless a prisoner escape. it, is said not to be felony, unless some prisoner actually by that

means get out of prison. (8) Of the pro- The sheriff 's return of a rescue is not of itself sufficient to put ceedings in the party to answer for it as a felony, without indictment or precases of rescue.

sentment. (h) And it is the better opinion that he who rescues one imprisoned for felony cannot be arraigned for such offence as a felony, until the principal offender be first attainted; unless the person rescued were imprisoned for high treason, in which case the rescuer may be immediately arraigned; all being principals in high treason. But it is said that he may be immediately proceeded against for a misprision only if the king please : (i) and if the principal be discharged, or found guilty only of an offence not capital, such as petit larceny, &c. though the rescuer cannot be charged with felony, yet he may be fined and imprisoned for a

misdemeanor.(1) Of the indict

The indictment for a rescue, like that for an escape, (l) or for ment for a breaking prison, (m) must specially set forth the nature and cause

of the imprisonment, and the special circumstances of the fact in question. (n) And the word rescussit, or something equivalent to it, must be used to shew that it was forcible and against the will

of the officer who had the prisoner in his custody. (0) Of the punish. The rescue of one apprehended for treason is itself treason : and ment for a the party rescuing one in custody for felony, or suspicion of

felony, will, as we have seen, be guilty of a crime of the same kind; though not in all cases punishable in the same degree ; for the rescuer will be entitled to his clergy, though the crime of the prisoner rescued were not within clergy. (p) Accordingly, in a late case it was held, that rescuing a person under commitment for burglary was not a transportable offence, but was punishable

rescue.

rescue.

(e) Rex v. Benstead, Cro. Car. 583. the Chief Justice of the Common Pleas, where it is said that it was resolved by (that place being at the time vacaut.) ten of the Judges, (on a special com- in Limerick's case, Kel. 77. mission,) serialim, that the breaking (f) Ante, 381. of a prison where traitors are in dur. (g) 2 Hawk. P. C. c. 18. s. 12.; c. 21. ance, and causing them to escape, was S. 3. treason, although the parties did not (h) i Hale 606. know that there were any traitors (0) 2 Hawk. P. C. c. 21. S. 8. there : and that, in like manner, to (k) i Hale, 598, 599. break a prison whereby felons escape, (0) Ante, 374. is felony, without knowledge of their (m) Ante, 381. being imprisoned for such offence. (n) 2 Hawk. P.C. c. 21. s. 5. In Rex And see i Hale 606. But Hawkins, v.Westbury, 8 Mod. 357. it was holden, (P. C. c. 21. s. 7.) says, that this opi- that an indictment for a rescue of nion is not proved by the authority of goods levied must set forth the fieri the case, (i Hen. 6. 5.) on which it facias at large; and that setting forth seems to be grounded. It should be quòd cum virtute brevis &c. de fieri famentioned, however, that Benstead's "cias, and a warrant thereon be, levied, case is spoken of in Rex v. Burridge, &c. and that the defendant rescued 3 P. Wms. 468. as having been ciied them, is uot sufficient. and allowed to be law at an assembly (0) Rex v. Burridge, 3 P. Wms. 483. of all the Judges of England, except (P) i Hale 607.

only as a felony, within clergy, at common law.(a) Subsequently, however, to this decision the statute 1 and 2 Geo. 4. c. 88. s. 1. 1 and 2 Geo. 4. has enacted, “ that if any person shall rescue, or aid and assist in c. 88. 8. 2. “ rescuing, from the lawful custody of any constable, officer, head“ borough, or other person whomsoever, any person charged with, “ or suspected of, or committed for any felony, or on suspicion “ thereof, then, if the person or persons so offending shall be con“victed of felony, and be entitled to the benefit of clergy, and be “ liable to be imprisoned for any term not exceeding one year, it « shall be lawful for the court, by or before whom any such person “ or persons shall be convicted, to order and direct, in case it shall 6 think fit, that such person or persons, instead of being so fined « and imprisoned as aforesaid, shall be transported beyond the seas for seven years, or be imprisoned only, or be imprisoned and “ kept to hard labour in the common gaol, house of correction, or “penitentiary house, for any term not less than one, and not ex“ ceeding three years.(6)

Where the party rescued was in custody for a misdemeanor only, the rescuer will be punishable as for a misdemeanor; for, as those who break prison are punishable for a high misprision, by fine and imprisonment, in those cases wherein they are saved from judgment of death by the statute 1 Edw. 2. stat. 2. De frangentibus prisonam; so also are those who rescue such prisoners, in the like cases, punishable in the same manner. (9)

The rescue of a prisoner, in any of the superior courts, committed by the justices, is a great misprision; for which the party, and the prisoner, (if assenting,) will be liable to be punished by imprisonment for life, forfeiture of lands for life, and forfeiture of goods and chattels ; though no stroke or blow were given. (r)

The aiding and assisting a prisoner to escape out of prison, by Of aiding a whatever means it may be effected, is an offence of a mischievous prisoner to nature, and an obstruction to the course of justice: and the assisting a felon in making an actual escape, is an offence of the degree of felony.(s) In a case which underwent elaborate discussion, the court of King's Bench held, that where a person assisted a prisoner who had been convicted of felony within clergy, and, having been sentenced to be transported for seven years, was in custody under such sentence, to escape out of prison, the person so assisting was an accessory to the felony after the fact. (t) The court proceeded upon the ground that one so convicted of felony, within the benefit of clergy, and sentenced to be transported for seven years, continues a felon till actual transportation and service pursuant to the sentence; and that the assistance given in this case amounted, in law, to a receiving, harbouring, or comforting, such felon.(u) But

(a) Rex v. Stanley and others, Russ. (9) 2 Hawk. P. C. c. 21. 5. 6. 4 and Ry. Cr. Cas. 432.

Blac. Com. 130. (6) The second section of this act (r) i East. P. C. c. 8. S. 3. p. 408, subjects a party assaulting any con- 410. 6 Bac. Abr. Rescue, (C.) 3 lost. stable or other person, in order to pre- 141. 22 Edw. 3. 13. vent an apprehension on charge or (s) Rex v. Tilley, 2 Leach 671. suspicion of felony, to punishment by (1) Rex v. Burridge, 3 P. Wms. 439. hard labour. See post, Book III. Chap. (u) The assistance, as stated in the xi. $. 2. Of Aggravated Assaults. special verdict in this case, was not

VOL. 1.

they held the indictment to be defective, in not charging that the defendant knew that the principal was guilty, or convicted of felony. (w) The offence of aiding a prisoner to escape out of prison appears also to have been considered as an accessorial offence in a case of piracy. On a return to a habeas corpus, in the case of one Scadding, who had been committed to the Marshalsea by the court of Admiralty, the cause appeared to be for aiding and abetting one Exon, who was indicted for piracy, to escape out of prison; whereupon all the court held that, though the fact were committed by Scadding, within the body of the county, yet, because it depended upon the piracy committed by Exon, of which the temporal judges had no cognizance, and was as it were an accessorial offence to the first piracy, which was determinable by the admiral, they must remand the prisoner. (2)

Aiding the escape of a clergyable felon, who has had his clergy and been burnt in the hand, but ordered under 18 Eliz, to be imprisoned, would not, it should seem, have subjected the party to

punishment as for aiding the escape of a felon.() Statutes re- Several statutes, some of which have been already mentioned, specting the . and others will be referred to in the course of the Work, espe

cially provide for the punishment of those who rescue or aid in ing them to the escape of persons apprehended or committed for the particular escape. offences enumerated in those acts. There are also some special

prorisions by statutes, upon this subject, which may be noticed

shortly in this place. 9 Geo. 1. c. 22. By the 9 Geo. 1. c. 22. (commonly called the Black Act,) perRescuing persons in custody

bày sons forcibly rescuing any person being lawfully in custody of any for offences officer, or other person, for any of the offences mentioned in the against this act, statute, or by gift or promise of money or other reward, procur. or aiding such : offenders.

". ing any of his Majesty's subjects to join in any such unlawful act,

were, upon conviction, to be adjudged guilty of felony, and to 4 Geo. 4. c. 54. suffer death without berrefit of clergy.(y) But the 4 Geo. 4. c. 54.

s. 1., reciting that it was expedient that a less degree of punishment should be provided for such offences, and that the same punishment should be extended to persons accessory thereto, enacts, that so much of the 9 Geo. 1. c. 22, as excludes the benefit of clergy in such cases, shall be repealed, and that every person duly convicted of such felonies or any of them, or of procuring,

rescuing of pri

son

particularly specified: the statement to have been under sentence of trans-
was, that the defendant, (who was con- portation; and was tried upon this se:
fined in the same gaol with the party cond jodictment, convicted, and sen-
whom he assisted to escape,) “ did wil tenced to be transported, id. 499, 503.
“ fully aid and assist the said W.P., so' But such sentence was not warranted
“ being in custody as aforesaid, to by law. See Rex v. Stanley, Russ. &
"make his escape out of the said Ry. Cr. Ca. 432. Ante, p 385.
“ gaol.” But any assistance given to (x) Rex v. Scadding, Yelv. 134. 1
one known to be a felon, in order to East. P. C. c. 17.8. 14. p. 810.
hinder his suffering the puñishment to (v) See the judgment of Treby, C. J.
which he is condemned, is a sufficient in the Earl of Warwick's case, 13 St.
receipt to make a man an accessory Tr. 1018., as to the commitment un-
after the fact. Ante, p. 34.

der this statute being a collateral and
(w) 3 P. Wms. 492. The prisoner new thing.
was charged upon a second indictment (y) Sect. 1.
as an accessory, knowing the principal

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ry person felony, and shalof the statute set

clergy.c guilty of so oftener going or attem be a

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counselling, aiding, or abetting the commission thereof, shall be liable, at the discretion of the court, to be transported for seven years, or to be imprisoned only, or to be imprisoned and kept to hard labour in the common gaol or house of correction for any term not exceeding three years.(z) By ss. 4. & 5. of the 9 Geo.l. c. 22. if any person, being charged with any of the offences against this statute, and being required by order of the privy council to surrender himself, neglects so to do for forty days, the person so neglecting, and all that knowingly conceal, aid, abet, or succour him, are declared to be felons, without benefit of clergy.

By the 25 Geo. 2. c. 37. s. 9., “ If any person or persons what- 25 Geo. 2. c. 37. “ soever shall by force set at liberty, or rescue, or attempt to s. 9. I

persons in cus“ rescue or set at liberty, any person, out of prison, who shall be to

W shall be tody for mur“ committed for or found guilty of murder, or rescue, or attempt der. “ to rescue, any person convicted of murder going to execution, “ or during execution, every person so offending shall be deemed, “ taken, and adjudged to be guilty of felony, and shall suffer death

without benefit of clergy.” And the tenth section of the statute Sect. 10. enacts, that if any person, after execution, shall, by force, rescue, Rescuing the or attempt to rescue, the body of such offender, out of the cus- body of a

derer after exetody of the sheriff or his officers, during its conveyance to any of cution. the places directed by the act, or from the company of surgeons, or their servants, or from the house of any surgeon where the same shall have been deposited in pursuance of the act, such offender shall be guilty of felony, and be liable to be transported for the term of seven years.

The 6 Geo. 4. c.5. s. 13. (Mutiny Act,) enacts that if any 55 G. 3. c. 108. offender, under sentence of death by a court martial, shall obtain s. 1

As to escape of a conditional pardon, (as mentioned in the act,) all the laws in Offenders senforce touching the escape of felons under sentence of death shail tenced by a apply to such offender, and to all persons aiding, abetting, or cour

, and conditionassisting in any escape, or intended escape, of any such offender, ally pardoned : or contriving any such escape, from the time when an order shall and 6 Geo. 4. be made by a justice or baron, and during all the proceedings had : 9

to those senfor the purposes mentioned in the act. A provision nearly similar tenced by a nais contained in the 6 Geo. 4. c. 6. s. 14., an act for the regulating val court mar

tial. of the royal marine forces while on shore.

The 52 Geo. 3. c. 156. provides against the aiding of the escape 52 G. 3. c. 156. of prisoners of war; and enacts, that “every person who shall Persons aiding “knowingly and wilfully aid or assist any alien enemy of his whicesca

prisoners of “ Majesty, being a prisoner of war in his Majesty's dominions, war made liable “ whether such prisoner shall be confined as a prisoner of war in to transporta“any prison or other place of confinement, or shall be suffered to

tion, “be at large in his Majesty's dominions or any part thereof, on “his parole, to escape from such prison or other place of confine“ ment, or from his Majesty's dominions, if at large upon pa“role,” shall, upon conviction, be adjudged guilty of felony, and be liable to be transported for life, or for fourteen or seven years. The act also declares, that every person who shall knowingly and

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(2) And by subsequent sections ing offenders in other cases therein transportation for life and other pu- mentioned. nishments are authorized for rescu

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