the keeper of such prison, every such person shall be deemed to have delivered such vizor or disguise, instrument or arms, with intent to aid and assist such prisoner to escape or attempt to escape; and if any person shall, by any means whatever, aid and assist any prisoner to escape, or in attempting to escape from any prison, every person so offend. ing, whether an escape be actually made or not, shall be guilty of felony, and being convicted thereof, shall be transported beyond the seas, for a term not exceeding fourteen years." See Burn's Just. Tit. 'Escape,' 29 Lond. Ed. 1845.

In the several States of the United States, with but a few partial exceptions, severe penalties are prescribed against both keeper and prisoner, in case of escape. At common law it is held that every liberty given to a prisoner not authorized by law is an escape. Colby v. Sampson, 5 Mass. 310. 312.

It is not necessary to prove negligence in the defendant: the law implies it, (see post, 600.) but if the escape were not in fact negligent, if the defendant by force rescued him. self, or were rescued by others, and the defendant made fresh pursuit after him, but without effect: all this must be shown upon the part of the defendant. It is enough also to prove that the warrant on which the prisoner was convicted was legal, it is not requisite for the prosecutor to prove that he actually committed the offence with which he was charged. 2 Hawk. c. 28. s. 16.

On a charge against the prisoner for breach of prison the same principle obtains, though if he can prove that no such offence was ever actually committed, or that he was arrested and detained without any reasonable cause of suspicion against him, (see post, 610, 611,) or if he have been subsequently indicted for the offence and acquitted, this will be a sufficient defence to the indictment for breach of prison.

A person confined in a jail, who attempts to escape by breaking of the prison, in consequence of which a fellow prisoner, confined for felony, escapes, is guilty of an offence within the New York act, and may be punished by imprisonment in the State prison. The People v. Rose, 12 Johnson, R. 339.

Aiding and assisting to escape from jail a person committed on suspicion of having been accessary to the breaking the house of S. with intent to commit felony, is not indictable under a repealed statute of New York. Sess. 24, c. 58. s. 12, 13. 1 N. Y. Rev. Laws, 411.) because the prisoner was not committed on any distinct and certain charge of felony. The People v. Washburn, 10 Johns. R. 160.

Lying in wait near a jail, by agreement with the prisoner, and carrying him away, is not an offence against the same statute, but it is a misdemeanor at common law. The People v. Tompkins, 9 Johnson, R. 70. Whart. Am. Crim. L. 551.

CHAPTER LIII.

[606]

CONCERNING RESCUES OF PRISONERS IN CUSTODY FOR FELONY.

RESCUE of a person imprisoned for felony is also felony by the common law.

To make a rescue a felony, 1. It is necessary that the felon be in custody, or under arrest for felony, and therefore if A. hinder an arrest, whereby the felon escapes, the township shall be amerced for the escape, and A. shall be fined for the hindrance of his taking; but it is not felony in A. because the felon was not taken. 3 E. 3. Coron. 333. Stamf. P. C. p. 31. a.

2. Again, to make a rescue felony, the party rescued must be under custody for felony or suspicion of felony, and it is all one, whether he be in custody for that account by a private person, or by an officer or warrant of a justice, for where the arrest of a felon is lawful, the rescue of him is a felony.

It seems that it is necessary that he should have knowledge that

the person is under arrest for felony, if he be in the custody of a private person.

But if he be in the custody of an officer, as constable or sheriff, there at his peril he is to take notice of it; and so it is if there be felons in a prison, and A. not knowing of it, breaks the prison, and lets out the prisoners, tho he knew not that there were felons there, it is felony, and if traitors were there, it is treason. P. 16 Car. 1. Croke p. 583. Benstead's case per omnes justiciarios.

A return of a rescue of a felon by the sheriff against A. is not sufficient to put him to answer for it as a felony, without indictment or presentment, by the statute of 25 E. 3. cap. 4. 1 H. 7. 6. a. per curiam, 2 E. 3. 1 Coron. 149.

As in case of an escape, so in case of a rescue, if the party [607] rescued be imprisoned for felony, and be rescued before indictment, the indictment must surmise a felony done as well as an imprisonment for felony or suspicion thereof; but if the party be indicted and taken by a Capias and rescued, then there needs only a recital that he was indicted prout, and taken and rescued.

But tho the rescuer may be indicted before the principal be convicted and attainted, yet he shall not be arraigned or tried before the principal be attaint for the reason given, cap. 51.

The rescuer of a prisoner for felony, tho not within clergy, yet shall have his clergy.

Vide plus capite proximo, for many things there said are applicable to the case of a rescue.[1]

[1] Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is generally the same offence in the stranger so rescuing as it would have been in a gaoler to have voluntarily permitted an escape. A rescue, therefore, of one apprehended for felony, is felony; for treason, treason; and for a misdemeanor, a misdemeanor also. But here likewise, as upon voluntary escapes, the principal must first be attainted or receive judgment before the rescuer can be punished: The State v. Cuthbert, Charl. R. 13; 4 Steph. Com. 256; and for the same reasons; because, perhaps in fact it may turn out that there has been no offence committed. See 4 Blac. Com. 131. Rescous is an ancient French word, coming from rescourer, that is recuperare, to recover; and signifies a forcible setting at liberty, against law, a person arrested by the process or course of law. 1 Inst. 160.

Rescue is a common law felony, if the party rescued be a felon. Rex v. Haswell, R. &R. 458. It is a misdemeanor if the party rescued be guilty of a misdemeanor. See a case of Rex v. Stokes, 5 C. & P. 148; 1 Russ. C. & M., by Greaves, 435. If the party rescued be guilty of high treason, the rescuer would be guilty of high treason. 2 Hawk. c. 21. 8. 7.

It is said that the rescue of a prisoner in any of the superior courts committed by the justices, is a great misprison, for which the party and the prisoner, if assenting, will be liable to be punished even by imprisonment for life, and forfeiture of goods and chattels; though no stroke or blow were given. 1 East, P. C. c. 8. s. 3; Bac. Ab. Rescue, (E). A hindrance of a person to be arrested, that has committed felony, is a misdemeanor, but no felony. Hale's Sum. 116; 2 Hawk. c. 21. s. 7; R. & R. 458.

Although a prison breaker may be arraigned for that offence, before he be arraigned for the crime for which he was imprisoned, yet he who rescues one imprisoned for felony, cannot, according to the better opinion, be arraigned for such offence, as for a felony, till the principal offender be attainted; but he may be immediately proceeded against for a misprison, if the queen pleases. 2 Hawk. c. 21. s. 7. Therefore, if the principal die before the attainder, he shall be fined and imprisoned. Hale's Sum. 116. An indictment of rescous must set forth the nature and cause of the imprisonment,

and the special circumstances of the fact in question. 2 Hawk. c. 21. 8. 5. The word recussit, or something equivalent to it, to show that the rescue was forcible, and against the will of the officer. Rex v. Burridge, 3 P. Wms. 483; 5 Burns' Just. p. 727. tit. "Rescue."

By 1 & 2 Geo. IV. c. 88, entitled, "An Act to amend the Law of Rescue," sect. I. rescuing persons charged with felony, is punishable with seven years transportation, or imprisonment for not less than one year, and not more than three years. And by sect. II. assaulting any lawful officer to prevent the apprehension or detainer of persons charged with felony, is punishable with two years imprisonment in addition to other pains and penalties incurred. See 5 Geo. IV. c. 84. s. 22. This section is, however, repealed by 9 Geo. IV. c. 31. as to punishment.

An indictment for a rescue, must show that the person rescued was lawfully in cnstody, and set out the writ and warrant. 1 Stark. Cr. Pl. 156; Archb. Crim. Pl. 550. 10 Lond. Ed.

An indictment for a rescue from a constable, must state the charge made before the magistrate, the warrant and its delivery to the constable, and that the party was in cus tody under the warrant. Archb. Cr. Pl. 309. 551; Rex v. Osmer, 5 East's Rep. 304.

By 9 Geo. IV. c. 4. § 13. entitled the Mutiny Act, persons under sentence of death by court martial, having obtained a conditional pardon, escaping out of custody, and all par ties aiding such escape, are punishable as felons. Rex v. Stanley, R. & R. C. C. 432; see Ryland's note, 4 Bl. Com. 131. 21 Lond. Ed.

CHAPTER LIV.

CONCERNING ESCAPES AND BREACH OF PRISON, BY THE PARTY HIMSELF THAT IS IMPRISONED FOR FELONY.

AT common law it was held, that if any imprisoned for a misdemeanor, tho not felony, had broke the prison and escaped, it had been felony. Bract. Lib. II.(a) Stamf. P. C. p. 30. b. 2 Co. Instit. p. 589.(b)

But by the statute of 1 E. 2. de frangentibus prisonam the severity of the common law is moderated, viz. Nullus [608] de cætero, qui prisonam fregerit, subeat judicium vitæ vel

membrorum pro fractione prisonæ tantùm, nisi causa, pro quâ captus & imprisonatus fuerit, tale judicium requirit, si de illâ secundùm legem & consuetudinem terræ fuerit convictus, licèt temporibus præteritis aliter fieri consuevit.[1]

(a) This should be Lib. III. Tract. 2. de Corona, cap. 9. f. 124. a. In this place Bracton carries the matter very far; for he says, tho the party were innocent, and had only conspired to escape, he was ultimo supplicio puniendus.

(b) But this severity is complained of as an abuse, Mirror, cap. 5. § 1. and it was the opinion of Billing, chief justice, and the rest of the judges, 1 H. 7. 6. a. that a rescue of a felon was felony at common law, but not in the person himself, till the statute of 1 E. 2. This lord Coke says must be intended, where others break the prison without his privity. 2 Inst. 589.

[1] Breach of prison by the offender himself, when committed for any cause, was felony at the common law, ante p. 588, or even conspiring to break it. But this severity is mitigated by the stat. de frangentibus prisonam, 1 Ed. II. cited by Hale supra, which enacts, that no person shall have judgment of life or member for breaking prison, unless committed for some capital offence. So that to break prison and escape, when lawfully

Upon this statute, therefore, to make a felony by breach of prison these things must concur: 1. The party must be in prison. 2. He must be in prison for felony. 3. He must break that prison. Many of these things have been discussed before. I shall resume and add what shall be necessary for the explication of this felony.

I. What is a prison, and who shall be said a person in prison. If a man be imprisoned for felony in the prison of a franchise, and breaks and escapes, this is a breaker of prison, and it is as to this purpose the king's prison,(c) tho the franchise or profit be the lord's. 2 E. 3. 1 Coron. 149. Stamf. P. C. 31. a. 2 Co. Instit. 589.

So at common law when sanctuary was in use, if a felon had escaped to a church, and there had been watched by the vill where the church is, and he had broken the church and escaped, this had been a felony within this statute. Stamf. P. C. p. 30. b. 3 E. 3. Coron. 290. Whether the breach of the prison of the ordinary by a clerk convict or attaint before purgation had been felony, vide Stamf. P. C. p. 31, 32. but that learning is now antiquated, because by the statute of 18 Eliz. cap. 7. the prisoner is not now delivered to the ordinary; and therefore I shall not farther examine it.

(c) Stamford in the place here mentioned thinks it is not the king's prison, and therefore at common law the breaking of it would not be felony; but by the statute of 1 E. 2. it matters not whether it be the king's prison or no, for it speaks de prisona generally, and not de prisona nostra; however, as it must be intended a legal prison, which cannot be without a grant from the crown, our author's construction is very reasonable, that all such prisons should be taken as to this purpose to be the king's prisons.

committed for any treason or felony, remains still felony as at common law; and to break prison, whether it be the county gaol, the stocks, or other usual place of security, when lawfully confined upon any other inferior charge, is still punishable as a high misdemeanor by fine and imprisonment. 4 Blac. Com. 130,

An actual breaking is the gist of this offence, and must be stated in the indictment. It must also appear that the party was lawfully in prison, and for a crime involving judgment of life or member; it is not enough to allege that he feloniously broke prison. 2 Inst. 591. 1 Russ. C. & M. 381.

If lawfully committed, the party breaking prison is within the statute, although he may be innocent; as if committed by a magistrate upon strong suspicion. 2 Inst. 590 1 Russ. C. & M. 378.

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. The State v. Leach, 7 Conn. R. 752.

To constitute a felonious prison breach the party must be committed for a crime which is capital at the time of the breaking. 1 Russ. C. & M. 370. Cole's case, Plowd. 401. A constructive breaking is not sufficient, therefore, if a person goes out of prison without obstruction, it is only a misdemeanor: post p. 611.

An actual intent to break is not necessary. The statute extends to a prison in law as well as to a prison in fact. 2 Inst. 589.

Prison breach, or rescue, is a common law felony, if the prisoner breaking prison or rescued is a convicted felon; and it is punishable at common law by imprisonment, and under 19 Geo. III. c. 74, s. 4, by three times whipping.

Throwing down loose bricks at the top of a prison-wall, placed there to impede escape and give alarm, is prison breach, though they were thrown down by accident. Rex v. Haswell, R. & R. C. C. 458.

If a person be taken for felony, and put in the stocks and break it, this is a breaking of prison, and felony within the law. Dy. 99. a. 2 Co. Inst. 589. Stumf. P. C. p. 30. b.

So it is if the constable or any other secure a felon in the house of him that makes the arrest, or in the house of any other, and he break it and escape, it is felony.

Yet farther, if A. arrest B. for felony or suspicion of felony, there being de facto a felony committed, and being in the hands of A. he violently rescueth himself and escapeth, this is a breach of prison and a felony, for so are the words of my lord Coke, 2 Instit. 589. "Nota, He that is in the stocks, or under lawful arrest, is said to be in prison, tho he be not infra carceris parietes." And Stamford ubi supra p. 30. b. Et nota quant a ceo que chescun que est soubs arrest pour felony est prisoner auxy bien hors de gaol come deins, issint que sil soit lorsque in cippes in le haut street ou hors de cippes in le possession d'ascun, que lui aver arrest, & faite escape ceo est debrusement de prison in le prisoner, which must be intended, as it seems, of a violent escape, viz. rescuing himself out of custody.

II. What shall be said a being in prison for such a cause, as requires judicium vitæ vel membrorum.

It seems it is intended only of capital offenses, as felony, and therefore if a man be committed for petit larciny, or homicide se defendendo, or per infortunium, and breaks prison, this is not felony, for the principal offense non requirit tale judicium. 2 Co. Instit. 590.

But if the commitment expresses larciny above value or manslaughter, tho de facto it were but petit larciny, or per infortunium or se defendendo, and possibly would appear so upon the evidence, yet this escape will be felony.

Touching my lord Coke's opinion of the form of the Mittimus, that it must particularly express the nature of the felony, and must have an apt conclusion, I have said enough before; I think it is sufficient if it be generally for felony, although it want that regular conclusion (till he be delivered by due course of common law); yet these defaults will not excuse the breach of prison from felony: but possibly if it express no cause, the case may be otherwise, because the substance of the Mittimus must be recited in the indict- [ 610]

ment.

For it is very plain, that antiently there were more felons committed to the common gaol without Mittimus in writing than were with it; such were all the commitments by constables, watchmen, and private persons arresting for felony and bringing to the common gaol; and Mittimus's were not of so antient a date as justices of peace, and they were not before 1 E. 3.(d) and yet breach of prison by felons was felony even from 2 E. 1. and not only from 1 E. 2.

It is therefore enough if the gaoler have a sufficient notification of the nature of the offense, for which he was committed, and the prisoner of the offense whereof he was arrested, and commonly they know their own guilt, if they are guilty, without much notification. (d) See 1 E. 3. cap. 16.