CH. 204. Art. 9. Indictment for, Cro. C. C. 346, 352. 2 Haw. P. C. 122.-1 Hale's P. C. 600, 602.-Salk. 211-4 Bl. Com. 130.5 Com. D. 595, 596. France must have a more powerful effect than ours to preserve the rights of citizenship and elections. This retaliation is an excellent kind of punishment in party cases, when inflicted by an impartial court. And art. 114 enacts, that "if a public functionary, or agent of the government, shall direct or commit an arbitrary act, in violation, either of individual liberty, or the civic rights of one or more citizens, or of the constitutions," he shall be punished by civic degradation. This is on a similar principle; this is retaliation, and punishes as a party, or an arbitrary officer, ought to be punished. This article is enforced by many others. The act of June 16, 1813, made some small alteration in the regulation of elections. Art. 9. Escapes. 1. This is an offence against public justice, and at common law. The nature of an escape, either negligent or voluntary, has been considered in Ch. 65, as also the civil remedy or action for it; but an escape is also a public offence in many cases, and to be prosecuted and punished as a crime. New York act makes it an offence punishable in the State Prison, for aiding a prisoner to escape, detained for any felony. Held, the warrant committing one must shew he is committed for felony; if not, aiding his escape is not indictable under the act. 10 Johns. R. 160, 161. 2. The offence of escape before committed, by one taken from an officer, is punishable in the party himself, with fine and imprisonment; but the officer permitting such escape, either by negligence or connivance, is much more culpable. than the prisoner. If therefore after an arrest the officer negligently permit the felon to escape, he is punishable by fine. And the negligent escape of a felon is not felony. A negligent escape may be, by an officer, or some particular person, who hath a felon in custody. If a prisoner for felony, break gaol, this seems to be a negligent escape, and therefore the gaoler, by law, may hamper the prisoner with irons to prevent his escape; but this must be to prevent an escape from the weakness of the gaol, or some attempt made to escape. But if a private person arrest a felon, and he escape by force from him, and without any default in him, he is excused, for he has no authority to raise the power of the county to retake him. But otherwise is the case with an officer. "A voluntary escape is when any person, having a felon lawfully in his custody, voluntarily permits him to esC. 590, 591. cape from it, or to go at large; and this is felony in case the -2 Chit. C. person be imprisoned for felony; and treason, in case the person be imprisoned for treason; accessary in one case, and principal in the other. But the officer cannot be punish 1 Hale's P. L. 171 to 178. 4 Bl. Com. 130. ed until the original offender be convicted; but before such Cн. 204. conviction the officer may be fined and imprisoned for a mis- Art. 9. demeanor. And if an officer have one in his custody charged with a trespass, and voluntarily let him escape, the officer is guilty of a trespass, whether actually imprisoned or only under a bare arrest. -1 Ld. 3. How escape is charged, &c. Fell, the gaoler, was in- 1 Salk. 272, dicted for negligently suffering one Birkenhead, committed to Rex v. Fell. prison, and charged with high treason, to escape. Held, this 5 Mod.414. indictment was ill: 1. Because it should be also that B was Raym. 424. committed for high treason, as well as charged, and the warrant of commitment set out; and if defective, the gaoler may take advantage of it: 2. The prisoner is in custody both of the gaoler and sheriff; and if committed to the sheriff, and the gaoler let him escape, the gaoler is punishable; for the sheriff answers for the faults of his gaoler, civilly only, and not 135, principal criminaliter: 3. The court will not intend a pardon, but it may be fined. must be shewn by the deft. But 2 Haw. 2 Ld. Raym. 1028.-Salk. 4. Under an escape warrant a man may be arrested on Sunday. And on Sunday a gaoler may retake, on a fresh 626.-Willes, pursuit, one who has escaped. 460.-SeeCh. 65. Ch. 150. Ch. 175. 1 Jones, 156. 592. 3 Com. D. son v. Jame Mod. 95.-2 5. Where an escape is an offence on Sunday. And escape is no offence where the arrest is illegal. And the question often arises, what is a legal arrest on Sunday, or what is a breach of the peace, in fact, or constructively. In this case the deft. was convicted in a penalty under the lottery act, and committed, for want of a sufficient distress, 955 Mod. on a Sunday; and discharged because he could not, on Sun- 449-5 D. & day, be arrested for non-payment of a penalty, on a penal E 25, Atkinstatute, to be recovered in an action, or a summary proceeding son.--Barnes, before a justice, being a civil suit. But otherwise if by in- 373-8 D. & dictment; for then the offence is constructively a breach of E. 86.--5 the peace; hence if arrested on a Sunday, on an indictment, Saund, 290. and he escapes, the escape is an indictable offence; but not if arrested, on Sunday, for breach of a penal statute, and the penalty is to be recovered civiliter. This is the result of, the authorities on this point; and therefore a very nice distinction appears not often attended to, in passing penal statutes, to wit: if the penalty is to be recovered on indictment, all the proceedings are criminaliter, and an arrest being on Sunday is good; but if on summary process, or in an action, then all the proceedings are civiliter, and no arrest can be on that day. And if arrested on that day there can be no punishable escape as to the prisoner, because no legal arrest of him. A writ of inquiry cannot be executed on Sunday,-and the court is bound to examine the almanack. Fortesc. 373; Stra. Cro.Jam.496. 387, Hoyle v. Cornwallis; Salk. 626; one may be arrested 210. -Cro. Car. CH. 204. on a contempt warrant on Sunday, Willes, 459, 460; one Art. 9. may voluntarily surrender, 1 Atk. 55; 12 Mod. 348; 2 Haw. P. C. c. 8, s. 38; Cro. Jam. 279; Dyer, 168; 4 Inst. 130; 1 Vent. 107. 3 Com. D. § 6. And the prisoner himself may be indicted for an es596-5 Mod. cape, though with the gaoler's consent, where lawfully committed; but the goaler is not indictable for a negligent escape of one not lawfully committed. 415. 1 Hale's P.C. 595, 596. for rescue, 4 Wentw. 305, 309, 310. Cro. C C. 661, 668. Several forms of indictments for escapes, Crown Cir. Comp. 346, 352, and several authorities. One permitting an escape, when a crime. If B, a mere private man, know C has committed a felony, B may arrest C, and C is in B's custody till discharged by delivering him to the constable or gaoler; and if B voluntarily suffer C to escape out of his custody, though B be no officer, nor is C Indictments indicted, B is guilty of felony. And so is the case if Cin fact commit a felony, and B arrests him on suspicion, and probable cause. And if B deliver C, so arrested, to the constable, C is lawfully in his custody, and he is guilty of felony if he suffer a voluntary escape. And if a justice of the peace makes a mittimus to the gaoler, for a felony, with an unapt conclusion, as till the justice give order for his delivery, whereas it should be till he be delivered by due course of law, though this warrant be not formal, yet the felon is lawfully in the gaoler's custody, and if he voluntarily suffer him to escape, it is felony; for the gaoler is sufficiently ascertained of the crime with which he is charged. And Hale thinks, if the mittimus be general and contain no certain cause, though the gaoler is not bound to receive him on such mittimus, yet if he be acquainted what the crime is, for which he is committed, it is felony if he voluntarily suffer him to escape. For, says Hale, if a private person, or a constable, arrest a man for felony, and carries him to the common gaol, as he may, and the gaoler is bound to receive him by 4 E. III. c. 10, if the constable, or person that delivers him, informs the gaoler it is for felony, he, at his peril, lets him escape, though there is no mittimus at all, but only a notice ore tenus. An indictment for rescue must state for what the party was committed to a house of correction. 2 Stra. 1226, Rex v. Free man. 1 Hale's P.C. 597, &c. 7. What is a voluntary escape or not. If the prisoner be rescued, or rescue himself, against the will of him who has him in custody, this is no voluntary escape, nor is the gaoler punishable for it. So if the prison be fired, and the gaoler lets out the prisoners, and there being no other means to save their lives, and does all he can to keep them safe and fairly, or if enemies force him to open the prison doors, and he does it to save his life, it excuses from felony. So if it be done by rebels, this excuses the gaoler from felony, and also from a fine, if it be vis major, quam cui resisti potest; though it does not exempt the gaoler or sheriff from a civil action, for reasons mentioned in a former chapter. § 8. So if a justice of the peace bails a person not bailable by law, this excuses the gaoler, and it is not felony in the justice, but a negligent escape, for which he is finable at common law. So if the sheriff &c. bail one not by law bailable, it is not a voluntary escape, unless designedly done to deliver the prisoner forever, but it is a negligent escape punishable at common law. Kentucky Act, February 26, 1798, if an individual negligently let a prisoner escape, he may be fined on an indictment, if the prisoner be arrested on suspicion of treason, felony, or murder, and escape before brought to a gaol. Act, January 16, 1798; December 20, 1800. As to breach of prison, see Prisons, post. ART. 10. Rescue. CH. 204. Art. 10. Hale's P. C. 148, Molody v. Real.-Indictment for, Cro. C. C. § 1. This is an offence against public justice also, and dif- 4 Bl. Com. fers from escapes only in this: in escape the party rescues 130, 131.-1 himself; here, others rescue him and put him at large from 606-Ch.. his arrest or imprisonment. A rescue of one arrested for felony is felony; for treason, treason; and for a misdemeanor, a misdemeanor; for in felony the rescuer becomes accessary, and in treason and misdemeanor a principal; but here, as up- 661, 668. on voluntary escapes, the principal must first be attainted before the rescuer can be punished; for otherwise it might happen that the officer &c. might be punished for treason or felony, and the person arrested and escaping might turn out to be innocent. 2. By the section 23, of this act, it is enacted, that the Act of Conrescue of capital offenders, after conviction, shall be punished gress, April 30, 1790. with death; before conviction, fine and imprisonment; and to rescue other offenders, before or after conviction, fine and imprisonment. § 3. Section 1, of this act, provides a fine, $500, for rescuing one fled to another State. Act of Con. Mass. Act, 4. This act (old law revised) inflicts a penalty on a person who rescues cattle &c. taken up by a hayward, or other Feb.13, 1789. person, and driving to pound. -Maine Act, ch. 128. Hal. P. C. Bac. Abr.Res 5. To make a rescue a felony, at common law: 1. It is 1 necessary the felon be in custody, or under arrest for felony, 606, 607-4 or suspicion of felony. Hence if A hinders an arrest where- cue. by the felon escapes, he is only fined: 2. And if the felon be in custody of a private person, the rescuer must have notice the party is under arrest for felony: 3. But if in custody of the sheriff, constable, or in prison, the rescuer must take notice at his peril. He must be indicted. He is not put to answer by the officer's return of a rescue. CH. 204. 3 Salk. 311. Act of Congress, April 30, 1790. Act of Congress, Feb. 12, 1793. And Mass. "As in case of an escape, so in case of a rescue, if the party rescued be' imprisoned for felony, and be rescued before indicted, the indictment must surmise a felony done, as well as imprisonment for felony, or suspicion of felony; 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." 6. "But though 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 above stated. § 7. Upon an unlawful distress, the owner of the cattle may rescue them before impounded, but not after. On escape brought against the sheriff, on mesne process, he may plead a rescue, though he do not state the rescue was returned. 8. Sect. 5 of this act provides, that "if any person or persons shall, after such execution had, (for murder), by force rescue or attempt to rescue the body of such offender out of the custody of the marshal or his officers, during the conveyance of such body to any place for dissection, as aforesaid; or shall, by force, rescue or attempt to rescue such body from the house of any surgeon, where the same shall have been deposited in pursuance of this act," may be fined not above $100, and imprisoned not exceeding a year. § 9. This act (sect. 2.) provides that any agent, appointed to receive a fugitive from justice from one State into another, "who shall receive the fugitive into his custody, shall be empowered to transport him or her to the State or Territory from which he or she shall have fled. And if any person or persons shall by force set at liberty, or rescue the fugitive from point agents such agent, while transporting as aforesaid," the offender, on conviction, may be fined not exceeding $500, and be imNov. 7, 1782. prisoned not exceeding one year. Act, June 18, 1801, to ap &c. And Mass Act, Maine Act, c. 113. § 10. Sect. 1, of this act of Congress, provides, when the executive authority of any State or Territory, shall demand any person as a fugitive from justice, of the executive authority of any such State or Territory to which such person shall have fled, and produce a copy of an indictment found, or an affidavit made before a magistrate of any State or Territory, charging the fugitive with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence fled, it is the duty of the executive authority of the State or Territory to which fled, to cause him or her to be arrested and secured, and to give notice thereof to the executive making the demand, or its agent appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent who shall |