*591] *If an escape suffered by a private person were voluntary, he is punishable as an officer would be for the same offence;(t) and if it were negligent, he is punishable by fine and imprisonment, at the discretion of the Court. (u) When any person is convicted of " any escape or rescue from lawful custody on a criminal charge," the court may by the 14 & 15 Vict. c. 100, s. 29, sentence the offender to be imprisoned for any term now warranted by law, and also to be kept to hard labor during the whole or any part of such term of imprisonment.

*592]

*CHAPTER THE THIRTY-THIRD.

OF PRISON-BREAKING BY THE PARTY CONFINED.

WHERE a party effects his own escape by force, the offence is 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 Edw. 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 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 imprisonment. (c)

It will be proper to consider some of the points which have been holden in the construction of this statute.

Any place whatsoever wherein a person, under a lawful arrest for a 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)

With respect to the regularity of the imprisonment, it is clear, that if a person be taken upon a capias, awarded on an indictment or appeal against him for 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 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 *593] in custody, and ought to have submitted to it until he had been discharged by due course of law.(ƒ)

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 person on suspicion of felony, is to take him as soon as he reasonably can before a magistrate, who will examine into the case, and either commit, bail, or discharge the party as the circumstances may require. C. S. G. See Reed v. Cowmeadow, 7 C. & P. 821 (32 E. C. L. R.), per Parke, B.; and Edwards v. Ferris, 7 C. & P. 542 (32 E. C. L. R.), Patteson, J.

(t) Ante, p. 588.

(u) 2 Hawk. P. C. c. 20, s. 6.

(a) 4 Blac. Com. 129; 1 Hale 607; Bract. I. 3, c. 9; 2 Inst. 588. See Arch. Q. B. P. 647, vol. 2, 3d edit.

(b) 2 Hawk. P. C. c. 18, s. 1.

(d) 2 Hawk. P. C. c. 18, s. 4.

(c) 4 Blac. Com. 130.

(e) 2 Inst. 589.

(f) 2 Hawk. P. C. c. 18, ss. 5, 6; 2 Inst. 590; Sum. 109; 1 Hale 610, 611.

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)1

The next inquiry will be as to the nature of the crime for which the party must be imprisoned, in order to make his breaking the prison felony within the meaning of the statute. It is clear that the offence for which the party was imprisoned must be a capital 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 imprisonment. (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.(1) 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."(1) 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 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.(m) It is not material whether the party who [*594 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.(n)

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 favor their escape as well as his own, he seems to be guilty of high treason in respect of their escape, because there are no accessories in high treason; and such assistance given (g) 2 Hawk. P. C. c. 18, ss. 7, 15, c. 16, s. 13, et seq.; 2 Inst. 590, 591; Sum. 109; 1 Hale 610, 611.

(h) Ante, p. 589.

(k) 2 Hawk. P. C. c. 18, s. 13.

(i) 2 Hawk. P. C. c. 18, s. 14.
(7) See the statute, ante, p. 592.

(m) 2 Hawk. P. C. c. 18, s. 15. It should be observed, however, that Hawkins, after giving his reasons for these conclusions, says that no express resolution of the points appearing, and the authors who have expounded the statute (see 2 Inst. 590, 591; Sum. 109, 110; 1 Hale 609) seeming rather to incline to a different opinion, he shall leave these matters to the judgment of the reader.

(n) Staund. P. C. c. 32; 2 Hawk. P. C. c. 18, s. 16.

1 A person confined in a gaol, by virtue of a void warrant, may lawfully liberate himself by breaking the prison, using no more force than is necessary to accomplish this object; nor is it a crime or misdemeanor in such person that while his sole object was to liberate himself, other persons lawfully confined for atrocious crimes in the same room with him, in consequence of such prison breach, made their escape: State v. Leach, 7 Conn. 752.

to persons committed for felony will make him who gives it an accessory to the felony, and by the same reason a principal in the case of high treason.(0)

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.(p) 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 prisonbreach. (q) 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 necessity of an inevitable accident happening, without the contrivance 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 the prisoner escape.(t)

*595] the crime for which he was imprisoned (the proceeding differing in this A party may be arraigned for prison-breaking before he is convicted *of 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.(v)

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

By the 4 Geo. 4, c. 64, s. 44, the certificate of the clerk of assize 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.(z) The 4 Geo. 4, c. 64, is repealed by the 28 & 29 Vict. c. 126, and by sec. 37,

(0) 2 Hawk. P. C. c. 18, s. 17; Benstead's case, Cro. Car. 583; Limerick's case, Kel. 77. (p) 1 Hale 611; 2 Inst. 590; ante, p. 582, 592.

(9) Rex v. Haswell, East. T. 1821, R. & R. 458. Richardson, J., thought that if this had been an escape only, it would not have been felony. See ante, p. 582, 592.

(r) 2 Hawk. P. C. c. 18, s. 10; Pult. de Pac. 1476, pl. 2, where it is said, that if a stranger breaks the prison, in order to help a prisoner committed for felony to escape, who does escape accordingly, this is felony; not only in the stranger that broke the prison, but also in the prisoner that escapes by means of this breach, as he consents to the breach of the prison by taking advantage of it. (8) 1 Hale 611; 2 Inst. 590; Sum. 108.

(t) 2 Hawk. P. C. c. 18, s. 12.

(u) 2 Inst. 592; 1 Hale 611; 2 Hawk. P. C. c. 18, s. 18. (v) 1 Hale 612, where the learned writer also says, that if the party should be first indicted for the breach of prison, and then be acquitted of the principal felony, he may plead that acquittal of the principal felony, in bar to the indictment for the breach of prison. (w) 2 Hawk. P. C. c. 18, s. 20. (x) Ante, p. 594.

(y) Rex v. Burridge, 3 P. Wms. 483; Staund. 31, a. ; 2 Inst. 589, et seq. (z) Ante, p. 582. See the 14 & 15 Vict. c. 99, s. 13, post, Evidence.

every person who aids any prisoner in escaping or attempting to escape from any prison, or who, with intent to facilitate the escape of any prisoner, conveys or causes to be conveyed into any prison any mask, dress, or other disguise, or any letter, or any other article or thing, shall be guilty of felony, and on conviction be sentenced to imprisonment with hard labor for a term not exceeding two years."

Sec. 38. "Every person who, contrary to the regulations of the prison, brings or attempts by any means whatever to introduce into any prison any spirituous or fermented liquor or tobacco, and every officer of a prison who suffers any spirituous or fermented liquor or tobacco to be sold or used therein, contrary to the prison regulations, on conviction shall be sentenced to imprisonment for a term not exceeding six months, or to a penalty not exceeding twenty pounds, or both, in the discretion of the court, and every officer of a prison convicted under this section shall, in addition to any other punishment, forfeit his office and all arrears of salary due to him."

Sec. 39. "Every person who, contrary to the regulations of a prison, conveys or attempts to convey any letter or other document, or any article whatever not allowed by such regulations, into or out of any prison, shall on conviction incur a penalty not exceeding ten pounds, and if an officer of the prison, shall forfeit his office and all arrears of salary due to him, but this section shall not apply in cases where the offender is liable to a more severe punishment under any other provision of this Act."

The offence of prison-breaking and escape, by a party lawfully committed for any treason or felony, is, as we have seen, of the degree of felony, (a) and will of course be punishable as such :(b) but it should be observed, that it was 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.(c) 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.(d) Where the prisonbreaking is by a party lawfully confined upon any inferior charge, it is punishable as a high misprision, by fine and imprisonment (e)

*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 [*596 upon an indictment, which charged that he had been 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 labor, in the House of Correction at Brixton Hill, for two years: that he was committed to and confined in the said house of correction; and that he, before the expiration of the two years, did feloniously break the said house of correction, and make his escape out of it, and go at large. The judges 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.(ƒ)

The 1 & 2 Vict. c. 82, established a prison for young offenders at Parkhurst in the Isle of Wight; and sec. 12 provides for the punishment of any such offender who breaks prison or escapes from his place of confinement, &c.; and sec. 14 provides for the place of trial and evidence in such cases. The 6 & 7 Vict. c. 26, s. 22, an Act for regulating the prison at Millbank, provides for the punishment of (a) Ante, p. 592.

(b) As this is a felony for which no punishment is specially provided, it is punishable under the 7 & 8 Geo. 4, c. 28, ss. 8, 9, and 1 Vict. c. 90, s. 5 (ante, p. 3), and the 20 & 21 Vict. c. 3, s. 2 (ante, p. 4), with penal servitude for not exceeding seven and not less than three years, or imprisonment for not exceeding two years, with or without hard labor, in the common gaol or house of correction, and solitary confinement for any portion of such imprisonment, or of such imprisonment with hard labor, not exceeding one month at a time, or three months in the space of one year, and the offender, if a male, may be once, twice, or thrice publicly or privately whipped, in addition to such imprisonment. (c) 1 Hale 612.

(e) 2 Hawk. P. C. c. 18, s. 21.

(d) Ante, p. 588.

(f) Rex v. Haswell, East. T. 1821, R. & R. 458. It does not appear that the 31 Geo. 3, c. 46, was alluded to as applicable to this case. The statute, however (except sec. 7),

has been repealed by 4 Geo. 4, c. 64. See note (b), supra.

any convict who breaks prison or escapes from his place of confinement, &c.; and sec. 26 provides for the trial and evidence in such cases. The 5 Vict. sess. 2, c. 29, s. 23, an Act for establishing a prison at Pentonville, provides for the punishment of any convict who breaks prison or escapes from his place of confinement, &c.; and sec. 28 provides for the trial and evidence in such cases.

The offence of prison-breaking is, in certain cases, made the subject of special enactment, 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.

*597]

*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 from arrest or imprisonment, is, in most instances, of the same nature as the offence of prisonbreaking, which has been treated of in the preceding chapter.

Thus it is laid down, that whatever is such a prison that the party himself would, by the common law, be guilty of felony in breaking from it, in every such case a stranger would be guilty of as high a crime at least in rescuing him from it. But though, upon 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 shown 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 1 Edw. 2, st. 2, 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)

De

It has been stated in the preceding chapter, that, where a person committed for high treason breaks the prison and escapes, letting 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 favor 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 felon, though he knew not that the party was imprisoned for felony.(e)

*598]

*As the party himself seems not to be guilty of felony by breaking the prison, unless he actually go out of it,(ƒ) so the breaking of a prison by a

(a) 1 Hale 606.

(b) 2 Hawk. P. C. c. 21, ss. 1, 2; 2 Inst. 589; Staund. P. C. 30, 31; ante, p. 592, et seq. (c) Ante, p. 594.

(d) 2 Hawk. P. C. c. 21, s. 7; Staund. P. C. 11, 32; Sum. 109; 1 Hale 237.

(e) Rex v. Benstead, Cro. Car. 583, where it is said that it was resolved by ten of the judges (on a special commission), seriatim, that the breaking of a prison where traitors are in durance, and causing them to escape, was treason, although the parties did not know that there were any traitors there: and that, in like manner, to break a prison whereby felons escape, is felony, without knowledge of their being imprisoned for such offence. And see 1 Hale 606. But Hawkins (P. C. c. 21, s. 7), says that this opinion is not proved by the authority of the case (1 Hen. 6, 5), on which it seems to be grounded. It should be mentioned, however, that Benstead's case is spoken of in Rex v. Burridge, 3 P. Wms. 468, as having been cited and allowed to be law at an assembly of all the judges of England, except the Chief Justice of the Common Pleas, in Limerick's case, Kel. 77. (f) Ante, p. 594.