to be dealt with according to law, contrary to the act of Congress in such case made and provided, to the evil example of all others in like case offending.] * I.—FOR ESCAPES AGAINST PRISONER HIMSELF. [*158] ment at That A. B. late of, &c. yeoman, constable of our said lord the Indictking, in and for the town of, &c. in the said county, on, &c. at, common &c. within the town and constable-wick aforesaid, in the county law for esaforesaid, did take and arrest one C. D. late of, &c. on suspicion from a concaping of having committed a certain felony, in feloniously taking and stable, being in cuscarrying away one black gelding, the property of E. F. of the tody under value of -; and thereupon, he the said C. D. under the a warrant custody of him the said A. B. the constable aforesaid, was then stealing. and there brought before I. K. esquire, one of the justices of our for horse *159] (g) See other precedents, Burn, J. Prison Breaking. Williams, J. Escape III. Stark. 602, 8. Cro. C. C. 188. 3 P. Wms. 500.-As to the offence. See, in general, Hawk. b. 2. c. 18. 1 Hale, 609 to 612. 2 Inst. 589 to 592. The escape of the party before he is actually in gaol is a mis demeanour punishable by fine or im. prisonment, 4 Bla. Com. 129. This does not, however, seem to be felony, as it is excused by the natural love of freedom which all men possess, Hawk. b. 2. c. 17. s. 5.-Breaking prison, or conspiring so to do, seems, according to the best opinions, to have been felony at the common law, 1 Hale, 607. Hawk. b. 2. c. 18. The statute "De frangentibus prisonam” 1 Edw. 2 st. 1. enacts" that none that breaketh prison shall have judgment of life or member for breaking prison only, except the cause for which he was taken and imprisoned did require such judgment, if he had been con. vict thereon according to the law and custom of the realm." Every lawful restraint of liberty is a prison said lord the king, assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and [*160] other misdemeanours within the said county committed, and he the said I. K. by his warrant directed to the said A. B. and others, did then and there command the said A. B. to carry and convey the said C. D. to the gaol of our said lord the king, at, &c. in the county aforesaid, there to be safely kept until he should be lawfully delivered from thence by due course of law, by virtue of which said warrant he the said C. D. was then and there taken and detained by him the said A. B. and as he the said A. B. was conveying and carrying him the said C. D. to the goal aforesaid, afterwards, to wit, on, &c. aforesaid, he the said C. D. at, &c. aforesaid, with force and arms, did feloniously break away and escape from and out of the custody of him the said A. B. the constable aforesaid, against the will of him the said A. B. and against the peace, &c. Against a prisoner in custody That C. D. late of, &c. on, &c. at, &c. aforesaid, was arrested, imprisoned, and detained in the gaol of our said lord the king in for felony, and for the county of situate at, &c. for a certain felony by is if the fire was occasioned by him, judgment of transportation, 3 P. Wms. 439. 2 Sess. Cas. 264. Persons not within the act, breaking prison, are guilty of a high misdemeanour, and punishable by fine and imprisonment, Hawk. b. 2. c. 18. s. 21. A person committed as a rogue and vagabond under 23 Geo. III. c. 88. who breaks gaol, and on being committed as an incorrigible rogue, breaks gaol a second time, and then commits a new act of vagrancy, as a rogue and a vagabond, may be indicted for felony, and transported under the vagrant act, 1 Leach, 396.-As to the Indictment. In order to bring the offender within the statute, it must set forth the whole of his case so as to make it appear that he was lawfully in prison, and for such a crime as would require judgment of life or member, and it is not sufficient to state that he feloniously broke prison. It is usual to say that he was arrested on suspicion of a certain felony, to wit, for the death of one M. N. feloniously killed, and then to recite the effect of the mittimus. gaol. (h) him committed, that is to say, for feloniously stealing, taking, for breaking out of and carrying away one black gelding, the property of A. B. of the value of, and that he the said C. D. on, &c. at, &c. with force and arms, the aforesaid gaol of our said lord the king, at, &c. aforesaid, feloniously did break and thereby did then and there escape from and out of the said gaol, against the peace, &c. * That on, &c. at, &c. one C. D. was taken and apprehended Indicton suspicion of having then lately before feloniously stolen, taken, ment for breaking and carried away, one, &c. of the goods and chattels of A. B., prison and and the said C. D. having been so taken and apprehended as afore- aiding one committed said, was then and there committed to and confined and impri- on suspicion of fe. soned in a certain place of confinement there situate, called the lony to escage; until the said C. D. could be taken and conveyed before cape. [*162] some or one of the justices of our said lord the king, assigned, &c. to be further dealt with according to law, touching and concerning the premises aforesaid. And the jurors, &c. further present, that A. B. late of, &c. (and other defendants) well knowing the premises, and contriving and intending to prevent the due course of law and justice, and to procure the escape of the said C. D. from the said place of confinement, afterwards, and whilst the said C. D. was so confined in the said place of confinement as aforesaid, to wit, on, &c. with force and arms, at, &c. unlawfully did force and break open and cause and procure to be forced and broken open, the door of the said place of confinement, so that the said C. D. might thereby make her escape from and out of the said place of confinement, by means whereof, the said C. D. did then and there with force and arms, unlawfully, and voluntarily escape and go at large from and out of the said place of confinement, where she was as aforesaid, before she had been taken and conveyed before any one of the justices of our said lord the king assigned in form aforesaid, to be dealt with according to law, touching and concerning the premises aforesaid, and that the said (defendants,) on the said, &c. with force and arms at the said, &c. wilfully, advisedly, and unlawfully did aid, abet, comfort, and assist the said C. D. so being in the place of confinement aforesaid, for the cause aforesaid, in making her escape (h) form Burn. J. Prison Breaking. Williams J. Escape III. VOL. I. L Against a prisoner confined in gaol on a ca. sa. issued out of C. B. and the sheriff's from and out of the said place of confinement, (i) in contempt, &c. to the evil, &c. and against the peace, &c. * That on, &c. at, &c. T. S. Esquire, then being sheriff of the county aforesaid, did in due form of law make his certain warrant under his hand and seal, bearing date the same day and year aforesaid, and directed the same warrant to the keeper of the gaol of the said county, and also to J. C. and J. E. his bailiffs, and thereby, and by virtue of a certain writ of our sovereign lord the warrant to king, to him the said sheriff directed, he the said sheriff did comthe gaoler mand them, the said keeper of the gaol aforesaid, and also the tempting said bailiffs and every of them, jointly and severally, that they, to break some or one of them should take J. L. if he should be found in in order to his the said sheriff's bailiwick, and him the said J. L. safely keep, make his escape. (4) so that he the said sheriff might have his body before the justices [*164] of our said lord the king, at Westminster, in eight days of Saint for at the gaol Hilary, to satisfy R. S. as well of a certain debt of twenty pounds, which the said R. S. had recovered against him, in our lord the king's court, before his justices at Westminster, as also of five pounds, which in our said lord the king's same court, were awarded to the said R. S. for his damages, which he had sustained [*165] * by reason of detaining the said debt, whereof the said J. L. was convicted, and whereof they were not to fail at their peril as by the same warrant more fully appears. And the jurors, &c. that afterwards, to wit, on, &c. at, &c. and within the bailiwick of the said sheriff, the aforesaid J. L. was arrested, and conveyed into and kept and detained in the gaol of our said lord the king, of and for the county aforesaid, situate and being at the parish aforesaid, in the county aforesaid, according to the command of the aforesaid writ and warrant, for the cause in the aforesaid warrant expressed, there to remain until he should thence be discharged by due course of law. And the jurors aforesaid, &c. that the said J. L. late of the parish aforesaid, in the county aforesaid, laborer, afterwards, to wit, on, &c. at, &c. aforesaid, (then and there being in the custody of L. S. keeper of the gaol of our lord the king, of the county aforesaid, for the cause in the writ and warrant aforesaid specified) with force and arms unlawfully, wilfully, and injuriously did attempt (i) The latter averment may be omitted, as in misdemeanours all are principals. (k) See precedent Cro. C. C. 8 Ed. 188. semble that it may be advisable to add a count stating the writ of ca. sa. to break the aforesaid gaol, and to escape and go at large, where he would (by then and there cutting and sawing two iron bars of the said gaol, and also by then and there breaking, cutting, and removing a great quantity of stone parcel of the wall of the aforesaid gaol) to the evil example of all others in the like case offending, and against the peace of our said lord the king, his crown and dignity. * III. ESCAPES-AGAINST OFFICERS. [*171] ment at common gaoler for and felo [See precedent, p. 163, Lon. Ed. vol. 2. to the asterisk.] And the Indictjurors aforesaid now sworn here upon their oath aforesaid, do further present, that A. B. late of C. in the county aforesaid, yeoman, law against than being keeper of his majesty's gaol of — aforesaid in the county aforesaid, and having the custody of the said W. P. for the wilfully cause aforesaid, before then lately committed to the said gaol for niously the cause aforesaid, on, &c. well knowing that the said W. P. then permitting a prisoner in the said gaol, and in the custody of the said A. B. as sentence * aforesaid, had been convicted and committed to the said gaol, in execution of and for the felony aforesaid, and did then and there to escape. remain so convicted and committed upon and in execution of the (1) See other precedents. Trem. P. C. 244, 5, 6. 2 Burr. 865. Cro. C. A. 331, 3, 8, 341. Cro. C. C. 8 Ed. 184, 5, 6, 8, 190. Cro. C. C. 7 Ed. 349. 3 P. Williams, 479. Burn, J. Escape. Williams, J. Escape. Starkie, 600, to 610. As to the offence. See in general, 1 Hale, 590, to 604. Hawk. b. 2. c. 19. per. tot. Com. Dig. Escape, A. 1, 2. Burn, J. Es. cape. Com. Dig. Escape. 4 Bla. Com. 130. The offence of assisting a felon in making an actual escape was felony at common law, even in the case of a private individual, and a fortiori in case of a gaoler, 2 Leach, 671. There must be an actual as well as lawful arrest, to make an es. cape criminal in an officer, Hawk. b. 2. c. 19. s. 1, 2. It must also be for a criminal matter, id. s. 3. its continuance at the time must also be lawful, or though legal in its inception, an escape will not be criminal, as if a prisoner be acquitted and have judgment to depart, "paying his fees," it will be no crime to allow him to go at large before they are satisfied, 1 Hale, 594. In some cases, it is an escape to suffer a prisoner to have greater liberty than can be by law allowed him; as to admit him to bail against law, or suffer him to go beyond the limits of the prison though he return, Hawk. b. 2. c. 19. s. 5. Prisoner may be retaken on fresh pursuit after a neglect escape on any pursuit; but after a voluntary escape by none, id. s. 12. but see ante 1 vol. 61. The officer is not excused though he retake his prisoner, nor if he kill him in the pur. suit, id. s. 13. Escapes may be either voluntary or negligent. Where a gaoler or other officer wilfully permits an individual charged or convicted of a capital offence to escape, it is certainly voluntary; but where one under of transportation (* 172] [173] |