voluntary, it ought to be adjudged a crime of so high a nature, without a previous trial. () With respect to other prisoners not committed in such manner, but in the custody of a gaoler or other person by any other means whatsoever, it seems to be agreed that the person who had them in custody is in no case punishable for an escape, until it be presented. () But it is laid down as a rule, that though where an escape is finable, the presentment of it is traversable; yet that where the offence is amerciable only, there the presentment is of itself conclusive; such amerciaments being reckoned amongst those minima de quibus non curat lex: (k) and this distinction is said to be well warranted by the old books. (1)

It is laid down in the books, that a person who has suffered another to escape cannot be arraigned for such escape as for felony, until the principal be attainted; on the ground that he is only punishable in this degree as an accessory to the felony, and that the general rule is, that no accessory ought to be tried until the principal be attainted; (m) but that he may be indicted and tried for a misprision before any attainder of the principal offender; for, whether such offender were guilty or innocent, it was a high contempt to suffer him to escape. If, however, the commitment were for high treason, and the person committed actually guilty of it, it is said that the escape is immediately punishable as high treason also, whether the party escaping be ever convicted of such crime or not; and the reason given is, that there are no accessories in high treason. (n)

Every indictment for an escape, whether negligent or voluntary, must expressly show that the party was actually in the defendant's custody for some crime, or upon some commitment upon suspicion; (0) and judgment was arrested upon an indictment which stated that the prisoner was in the defendant's custody, and charged with a certain crime, but did not state that he was committed for that crime; for a person in custody may be charged with a crime, and yet not be in custody by reason of such charge. (p) But where a person was committed to the custody of a constable by a watchman, as a loose and disorderly woman and a street-walker, it was holden, upon an indictment against the constable for discharging her, that by an allegation of his being charged with her, 'so being such loose,' &c., it was sufficiently averred that he was charged with her as such loose,' &c.; and it was also holden not to be necessary to aver that the defendant knew the woman to be a street-walker. (q) And every indict

(i) 2 Hawk. P. C. c. 19, s. 15.

2 Hawk. P. C. c. 19, s. 16. (k) Staund. P. C. c. 32, p. 36.

(1) 2 Hawk. P. C. c. 19, s. 21, and see post, p. 897, as to escapes finable or amerciable.

(m) See ante, p. 180. But as all accessories may now be tried before their principals this reason fails, and there seems no doubt that a person who has suffered a felon to escape is an accessory after the fact, R. v. Burridge, 3 P. Wms. 439, post, and therefore a person who suffers or aids the escape of a felon may be tried for a substantive felony as an accessory after the and see Holloway v. R., 17 Q. B. 317.

fact;

In Cro. Circ. Ass. 338, is an indictment as for a misdemeanor against a gaoler, for wilfully permitting a prisoner to escape who was under sentence of imprisonment for the term of six months, after a conviction of grand larceny; but it seems that it ought to have been laid as a felony. See 2 Starkie, Crim. Plead. 600, note (b), referring to R. v. Burridge, 3 P. Wms. 497.

(n) 2 Hawk. P. C. c. 19, s. 26.

(0) Id. ibid. s. 14.

(p) R. v. Fell, 1 Lord Raym. 424. 2 Salk. 272.

(7) R. v. Bootie, 2 Burr. 864; and see as to the sufficiency of such averments, R. v. Boyall, 2 Burr. 832.

ment should also show that the prisoner went at large; (r)1 and also the time when the offence was committed for which the party was in custody; not only that it may appear that it was prior to the escape, but also that it was subsequent to the last general pardon. (s) If the indictment be for a voluntary escape, it must allege that the defendant feloniously and voluntarily permitted the prisoner to go at large; (t) and must also show the species of crime for which the party was imprisoned; for it will not be sufficient to say, in general, that he was in custody for felony, &c. (u) But it is questionable whether such certainty, as to the nature of the crime, be necessary in an indictment for a negligent escape; as it is not in such case material whether the person who escaped were guilty or not. (v)

By the statute of Westminster, 3 Edw. 1, c. 3, (w) the proceedings and trial for the offence of an escape were to be had before the justices in eyre; but it was adjudged that the jurisdiction of the Court of King's Bench was not restrained by that statute, that Court being itself the highest Court of eyre. (x) The 31 Edw. 3, c. 14, enacts, that the escape of thieves and felons, and the chattels of felons, &c., from thenceforth to be judged before any of the King's justices, shall be levied from time to time, &c., by which it seems to be implied that other justices, as well as those in eyre, may take cognizance of escapes; and it is certain that justices of gaol delivery may punish justices of peace for a negligent escape, in admitting persons to bail who are not bailable. (y)

As to the mode of proving the conviction see ante, p. 890.

In considering the punishment for this offence, it will be necessary again to attend to the distinction between a voluntary and negligent escape.

It seems to be generally agreed that a voluntary escape amounts to the same kind of crime as the offence of which the party was guilty, and for which he was in custody; whether the person escaping were actually committed to some gaol, or under an arrest only, and not committed; and whether he were attainted, or only accused of such crime, and neither indicted nor appealed. (2) But the voluntary escape of a felon was within the benefit of clergy, though the felony for which the party was in custody were ousted. (a) An escape suffered by one who wrongfully takes upon him the keeping of a gaol seems to be punishable in the same manner as if he were rightfully entitled to the custody; for the crime is in both cases of the same

(r) 2 Hawk. P, C. c. 19, s. 14, where it is said that this is most properly expressed by the words exivit ad largum.

(s) 2 Hawk. P. C. c. 19, s. 14. But upon an indictment for an escape the Court will not intend a pardon; it must be shown by the defendant, by way of excuse. R. v. Fell, 1 Lord Raym. 424.

(t) Felonicè et Voluntariè A. B. ad largum ire permisit.

(u) 2 Hawk. P. C. c. 19, s. 14. (v) Id. ibid.

(w) Repealed by 26 & 27 Vict. c. 125. (x) Staund. P. C. c. 32, p. 35.

Eo que
AMERICAN NOTE.

1 S. v. Maberry, 1 Strobh. 144.

ill consequence to the public. (b) But no one is punishable in this degree for a voluntary escape but the person who is actually guilty of it; therefore, the principal gaoler is only finable for a voluntary escape suffered by his deputy. (c) One voluntary escape is said to amount to a forfeiture of a gaoler's office. (d)

No escape will amount to a capital offence unless the cause for which the party was committed were actually such at the time of the escape; its becoming a capital offence afterwards, as by the death of a party wounded at the time of the escape, but not then dead, will not be sufficient. (e)

Whenever a person is found guilty upon an indictment or presentment of a negligent escape of a criminal actually in his custody, he ought to be condemned in a certain sum, to be paid to the King as a fine. (f) 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. (g) 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. (h)

A negligent escape may be pardoned by the King pens, but a voluntary one cannot be so pardoned. (i) dictment for an escape a pardon must be shown by the way of excuse. (j)

before it hapUpon an indefendant by

SEC. II.

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.

272.

(b) 2 Hawk. P. C. c. 19, s. 23.

(c) R. v. Fell, 1 Lord Raym. 424. 2 Salk. 1 Hale, 597, 598.

(d) 2 Hawk. P. C. c. 19, s. 30.

(e) 2 Hawk. P. C. c. 19, s. 25. (f) Hawk. P. C. c. 19, s. 31, where the author says, 'It seems most properly to be called a fine. But this does not clearly appear from the old books; for in some of them it seems to be taken as a fine, in others as an VOL. I, -57

amerciament; and in others it is spoken of
generally as the imposition of a certain sum,
and without any mention of either fine or
amerciament.'

(g) 2 Hawk. P. C. c. 19, s. 33.
(h) Id. ibid. s. 30.

(i) 2 Hawk. P. C. c. 19, s. 32; and more fully, id. c. 37, s. 28. Such a pardon would be in the nature of an indemnity.

(j) R. v. Fell, 1 Lord Raym. 424.

It seems to be a good general rule, that wherever any person has another lawfully in his custody, whether upon an arrest made by himself or another, he is guilty of an escape if he suffer him to go at large before he has discharged himself, by delivering him 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. (k)

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, the private person, will not be chargeable. (71)

If an escape suffered by a private person were voluntary, he is punishable as an officer would be for the same offence; (m) and if it were negligent, he is punishable by fine and imprisonment, at the discretion of the Court. (n)

(k) 2 Hawk. P. C. c. 20, ss. 1, 2. 1 Hale, 595. Sum. 112.

(1) 2 Hawk. P. C. c. 20, ss. 3, 4. 1 Hale, 594, 595. Staund. P. C. 34. Sum. 112, 114. The proper course for a private person, who has arrested a person on suspicion of felony, to pursue, 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 circum-
stances may require. See Reed v. Cowmeadow,
7 C. & P. 821, per Parke, B.; and Edwards
v. Ferris, 7 C. & P. 542, Patteson, J.
(m) Ante, p. 896.

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

CHAPTER THE THIRTY-FIFTH.

OF PRISON BREAKING BY THE PARTY CONFINED.1

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 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 inno

(a) 4 Black. Com. 129. 1 Hale, 607. Bract. I. 3, c. 9. 2 Inst. 588.

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

(c) 4 Black. Com. 130.

(d) 2 Hawk. P. C. c. 18, s. 4.
(e) 2 Inst. 589.

AMERICAN NOTE.

1 It has been held in America that a person wrongfully confined who breaks out of prison, and thereby leaves a way for other

prisoners to escape, is not guilty of prison breach. S. v. Leach, 7 Conn. 752.