foner fhall not be tried between the king and the keeper, because the prisoner is a stranger thereto; yet he may be indicted and tried for it as a mifprifion, before the attainder of the principal offender. 2 Hawk. c. 19. f. 25. 2 Infi.

591, 592.

And if the commitment were for high treason, and the perfon committed actually guilty of it, it feems that the efcape is immediately punishable as high treafon alfo, whether the party escaping be ever convicted or not, because there are no acceffaries in high treafon; but all who are guilty of affifting the party guilty of fuch crime, in such manner as would make them acceffaries to a felony, are accounted principals in treafon. 2 Hawk. c. 19. S. 26. Summary 116.

Alfo it feemeth to be clear, that no one is punishable as for felony, for the voluntary escape of a felon, but the perfon only who is actually guilty of it; and therefore that the heriff or principal gaoler is only subject to fine and imprifonment for a voluntary escape fuffered by his deputy, becaufe no one fhall fuffer capitally for the crime of another. 2 Hawk. c. 19. f. 27. 1 Hale 597, 598.

And the reason of the principal gaoler's being fubject to a fine, feems to be, becaufe it was a negligent escape in Eim, in trusting fuch a perfon with the cuftody of his prifoners, that would be falfe to his truft. 1 Hale's Hift. 598.

Wherever a perfon is found guilty upon an indictment How a negligent, or prefentment, of a negligent escape of a criminal, actual-efcape is to be ly in his cuftody, he is punishable by fine and imprifon- punished. ment, according to the quality of the offence. 2 Hawk.

c. 19. f. 31, Hale's Hift. 600, 604. 19 Geo. 3. c. 74. f. 66. 31 Geo. 3. c. 46. /. 3.

And whoever de facto occupies the office of gaoler, is liable to answer for fuch an escape, whether his title to the office be legal or not. 2 Hawk. c. 19. f. 28.

Alfo a fheriff is as much liable to answer for fuch an efcape fuffered by his bailiff, as if he had actually fuffered it himself; and the court may charge either the fheriff or bailiff for fuch an escape; and if a deputy gaoler be not fufficient to answer a negligent efcape, his principal must answer for him. 2 Hawk. c. 19. S. 29.

The law as to escapes fuffered by private perfons, is in Concerning ef general the fame, as in relation to thofe fuffered by officers. capes by private 2 Hawk, c. 20.

But it is a good general rule, that wherever any perfon hath another lawfully in his cuftody, whether upon an arreft, made by himself or another, he is guilty of an escape, if he fuffer him to go at large, before he hath difcharged himself of him, by delivering him over to fome other who

by

perfons.

Concerning an efcape by the party himself.

by law ought to have the cuftody of him. 2 Hawk. c. 20. f. 1. Summary 112. 1 Hale's Hift. 595.

And therefore if a private person arrest another for suspicion of felony, and deliver him into the cuftody of another private perfon, who receives him, and fuffers him to go at large, it is faid that both of them are guilty of an ef cape; 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 prifoner, he ought at his peril to have taken care of him. 2 Hawk. c. 20... 2.

But if a private perfon having made fuch an arrest, have delivered over his prifoner to the proper officer, as the sheriff, or his bailiff, or a conft ble, from whofe cuftody the prifoner efcapes, the party who made the arreft is not chargeable with it. 2 Hawk. c. 20. f. 3.

But if no officer will receive fuch prifoner into his cuftody; it seems to be the fafeft way to deliver him into the cuftody of the township, where the perfon who arrested him lives, or perhaps of that where the arreft was made, which fhall be bound to keep him till the next gaol delivery; but if fuch township refufe alfo to receive him, it is not clear that the person who made the arreft can discharge himself of him before the next gaol delivery, unless he can in the mean time procure him to be bailed. 2 Hawk. c. 20. f. 4.

Neither can fuch private perfon excufe himself of the escape of fuch a prifoner, by alleging that he delivered him over to a fheriff or other officer, without fhewing to whom, in particular, by name he fo delivered him, that the court may certainly know who is anfwerable for him. 2 Hawk. c. 20. f. 5.

And it seems that a private perfon is punishable for fuch an escape, if it were voluntary, in the fame manner as an officer; and if it were negligent, he is punishable by fine and imprisonment; at the difcretion of the court. 2 Hawk. c. 20. f. 6.

As all perfons are bound to fubmit themselves to the judgment of the law, and to be ready to be justified by it; whoever in any case refuses to undergo that imprisonment which the law thinks fit to put upon him, and frees himself from it, by any artifice, before fuch time as he is delivered by due courfe of law, is guilty of a high contempt, punishable with fine and imprifonment. 2 Hawk. c. 17. f. 5.

And if a perfon accufed of felony, or petty larceny, efcapes even before arreft, if the inqueft or jury find that he fled for the fame, he fhall forfeit his goods and chattels, whe ther he be found guilty or acquitted: for the very flight is

an

an offence, carrying with it a strong prefumption of guilt, and is at leaft an endeavour to elude and ftifle the course of justice prefcribed by law: but the jury very feldom find the flight, forfeiture being looked upon, fince the vast increafe of perfonal property of late years, as too large a penalty for an offence, to which a man is prompted by the natural love of liberty. Hale's Pl. :11. 2 Hawk. c. 49.

J. 14. 4 Black. Com. 387.

But as an escape committed by the party himself, will lead to the confideration of the law relative to prisonbreakers, this fubject will be more fully treated of, under that divifion of the present title

II. Of refcous.

The moft general notion of a refcous is, where a ftranger forcibly frees another from an arreft, or fome legal commitment. Co. Lit. 160. Fitz. Nat. Brev. 226.

And the hindrance of a perfon to be arrested, that has committed felony, is a very high misdemeanor, and punifhable by fine and imprisonment. 1 Hale's Hift. 606.

2 Hawk. c. 21.

But, where the party is arrested and in actual cuftody for felony or fufpicion of felony; the refcuing of him is alfo felony by the common law. 1 Hale's Hift. 606.

So alfo a ftranger who refcues a perfon committed for and guilty of high treafon, knowing him to be fo committed, is in all cafes guilty of high treafon. Staund. P. C. 11. Jones

455.

And it is all one whether he be in cuftody for that account by a private perfon or by an officer, or warrant of a juftice of peace; for where the arreft of a felon is lawful, the refcue of him is felony. 1 Hale's Hift. 606.

But it feems neceffary that he fhould have knowledge, that the perfon is under arreft for felony, if he be in the cuftody of a private perfon. 1 Hale's Hift. 606.

But if he be in cuftody of an officer, as conftable or Theriff there, at his peril, he is to take notice of it; and fo it is if there be felons in a prifon, and A not knowing of it, breaks the prison and lets out the prifoners, though he knew not that there were felons there, it is felony. 1 Hale's Hift. 606.

But unless the prifoner actually go out of the prison, it does not feem to be felony. 2 Hawk. c. 21. f. 3.

And

And wherever the imprisonment is fo far groundlefs or irregular, or for fuch a caufe, or the breaking of it is occafioned by fuch a neceflity, that the party himself breaking the prifon is either by common law, or by the ftat. de frangentibus prifonam, faved from the penalty of a capital offender a ftranger who refcues him from fuch an imprisonment is in like manner alfo excufed from fuch penalty. 2 Hawk. c. 21. f. 2.

If the perfon rescued were indicted or attainted of feveral felonies, yet the efcape or refcue of fuch perfon makes but one felony. 1 Hale's Hift. 599.

And although the felony for which a man is arrested be not within clergy, yet the refcuing him is within clergy. 1 Hale's Hift. 599, 607.

And it is enacted by 19 Geo. 3. c. 74. f. 66, and 31 Geo. 3. c. 46. f. 3, That if any perfon fhall refue any offender, ordered to hard labour, (inftead of being capitally punished, or tranfported, 19 Geo. 3. c. 74. s. 66.) in any place of confinement, either during his conveyance to the place appointed for fuch hard labour, or whilft fuch offender fhall be in the cuftody of the perfon, under whofe care he fkall be confined; or if any person fhall be aiding in fuch refcue; fuch perfon fo refcuing, or affifting, fhall be guilty of felony, and may be ordered to hard labour, for not less than one, nor exceeding five years; or if any perfon fhall attempt to rescue any fuch offender, or be aiding and affifting in any fuch attempt, though no refcue be actually made, fuch perfon fo convicted fhall be guilty of felony.

Procefs of outlawry lies on all returns of a refcous. 2 Hawk. c. 27. f. 113.

But the fheriff's return of a refcous is not a fufficient ground to arraign the rescuer, unless he be indicted alfo for it. 2 Hawk. c. 21. f. 4. And an indictment (II) of

refcous must specially fet

3. As where no felony hath been really done, nor the party indicted. Hale's Pl. 116. 2 Hawk. c. 18. S. 7.

4. Or if a felony were done, yet no just cause of fufpicion, and the mittimus be not in legal form. 2 Hawk. c. 18. f. 8.

For it is faid, that to refcue a felon taken on a general warrant, to answer what fhall be objected against him, no caufe being expreffed in the warrant, is not felony. Hales Hift. 578.

5. For this fee the next divifion of this title.

forth

(II) An approved form of an indictment for a rescue from

a conftable.

Monmouthshire The jurors for our lord the king, upon their to wit.

day of

forth the nature and caufe of the imprisonment, and the Special circumstances of the fact in queftion. 2 Hawk. c. 19. f. 5.

Alfo, he who refcues one imprifoned for felony, cannot be arraigned for fuch offence as for a felony, till the principal offender be first attainted; but if the perfon

6. And therefore it is faid, that if the principal die before the attainder, he can only be fined and imprisoned for the misdemeanor. Hale's Pl. 116.

in the year of the reign of our fovereign lord George the Third, king of Great Britain, &c. JP, efq. one of the justices of our faid lord the king affigned to keep the peace in and for the laid county of · and aljo to hear and determine divers felonies, trefpaffes, and other misdemeanors, in the faid county committed, did iffue, make, direct, and deliver, a warrant or precept in writing to AC, of aforefaid, yeoman, one of the conflables of

in the county

in the coun

ty aforefaid, by which faid warrant he the faid AC, the conflable aforefaid, was commanded to take the body of OO Late of and bring and have him the faid OO before the faid JP, to be examined by him the faid JP concerning an affault faid to have been committed by him the faid O O, upon PG, of which faid A C, the conftable aforelaid, afterwards, that is to fay, on the day of in the year aforefaid, at aforefaid, in the county aforefaid, by virtue of the faid warrant, did take and arreft him the faid 00 for the caufe aforefaid, and him the faid Ŏ O in his cuftody, by virtue of the faid varrant, then and there had; and that the F R, late of aforefaid, in the county aforefaid, yeaman, and S R late of the fame place, yeoman, well knowing the faid OO fo to be arrested as aforefaid, afterwards, to wit, en the faid day of in the year aforesaid, at afrefaid, in the county aforefaid, with force and arms, in and upon the faid AC, the conflable aforefaid, then and there being in the peace of God and of our faid lord the king, and in the execution of his faid office, did make and affault, and bim the faid ŎO then and there did beat, wound, and ill treat; and that the faid FR and SR him the faid 00, out of the cuftody of the faid A C, and against the will of the faid A C, then and there, with force and arms, unlawfully did refcue and put at large, to go wherefoever he would; and that the faid O O himfelf, out of the custody of the faid AC, and against the will of the faid AC, then and there with force and arms, unlawfully did rescue and efcape at large, wherefoever he would go, in contempt of our faid lord the king and his laws, to the great damage of the faid A C, to the evil example of all others in the like cafe offending, and against the peace of our faid lord the king, his crown and dignity.

refcued