CHAPTER THE THIRTY-FOURTH. OF RESCUE; AND OF ACTIVELY AIDING IN AN ESCAPE, OR IN AN RESCUE, or the offence of forcibly and knowingly freeing another Of rescue. from arrest or imprisonment, is, in most instances, of the same nature as the offence of prison-breaking, which has been treated of in the preceding Chapter. prison, and sonment and breaking. Thus it is laid down, that whatever is such a prison that the Of the sort of party himself would, by the common law, be guilty of felony in breaking from it, in every such case a stranger would be guilty of as high a crime at least in rescuing him from it. But though, upon the principle that wherever the arrest of a felon is lawful the rescue of him is a felony, it will not be material whether the party arrested for felony, or suspicion of felony, be in the custody of a private person, or of an officer; yet, if he be in the custody of a private person, it seems that the rescuer should be shewn to have knowledge of the party being under arrest for felony. (a) In cases where the imprisonment is so far groundless or irregular, or for such a cause, or the breaking of it is occasioned by such a necessity, &c. that the party himself breaking the prison, is, either by the common law, or by the statute 1 Edw. 2, st. 2, De frangentibus prisonam, saved from the penalty of a capital offender; a stranger who rescues him from such an imprisonment is, in like manner, also excused. (b) It has been stated in the preceding Chapter, that, where a person A rescuer may committed for high treason breaks the prison and escapes, letting be guilty of, out other persons, committed also for high treason, he seems to be high treason. guilty of high treason, in case his intention in breaking the prison were to favour the escape of such other persons as well as his own: (c) and it is clear that a stranger who rescues a person committed for, and guilty of, high treason, knowing him to be so committed, is, in all cases, guilty of high treason. (d) It has been holden also, that he will be thus guilty whether he knew that the party rescued were committed for high treason or not: and that he would, in like manner, be guilty of felony by rescuing a felon though he knew not that the party was imprisoned for felony. (e) (a) 1 Hale, 606. (b) 2 Hawk. P. C. c. 21, s. 1, 2. 2 427, et seq. P. C. 11, 32. Sum. 109. 1 Hale, 237. (e) Rex v. Benstead, Cro. Car. 583, where it is said that it was resolved by ten of the judges, (on a special commission,) seriatim, that the breaking of a prison where traitors are in durance, and causing F F A breaking of the prison is not felony, unless a pri soner escape.; Of the proceedings in cases of rescue. Of the indict ment for a rescue. Of the punish ment for a rescue. As the party himself seems not to be guilty of felony by breaking the prison, unless he actually go out of it; (f) so the breaking of a prison by a stranger, in order to free the prisoners who are in it, is said not to be felony, unless some prisoner actually by that means get out of prison. (g) The sheriff's return of a rescue is not of itself sufficient to put the party to answer for it as a felony, without indictment or presentment. (h) And it is the better opinion that he who rescues one imprisoned for felony cannot be arraigned for such offence as a felony, until the principal offender be first attainted; unless the person rescued were imprisoned for high treason, in which case the rescuer may be immediately arraigned; all being principals in high treason. But it is said that he may be immediately proceeded against for a misprision only if the king please: (i) and if the principal be discharged, or found guilty only of an offence not capital, such as petit larceny, &c. though the rescuer cannot be charged with felony, yet he may be fined and imprisoned for a misdemeanor. (k) The indictment for a rescue, like that for an escape, (7) or for breaking prison, (m) must specially set forth the nature and cause of the imprisonment, and the special circumstances of the fact in question. (2) And the word rescussit, or something equivalent to it, must be used to shew that it was forcible and against the will of the officer who had the prisoner in his custody. (0) The rescue of one apprehended for treason is itself treason: and the party rescuing one in custody for felony, or suspicion of felony, will, as we have seen, be guilty of a crime of the same kind; though not in all cases punishable in the same degree; for the rescuer was entitled to his clergy, though the crime of the prisoner rescued were not within clergy. (p) Accordingly it was held, that rescuing a person under commitment for burglary was not a transportable offence, but was punishable only as a felony, within clergy, at com1 & 2 Geo. 4, mon law. (q) Subsequently, however, to this decision the 1 & 2 Geo. 4, c. 88, s. 1, has enacted," that if any person shall rescue, or aid and assist in rescuing, from the lawful custody of any constable, officer, headborough, or other person whomsoever, any person charged with, or suspected of, or committed for any felony, or on suspicion thereof, then, if the person or persons so offending shall be convicted of felony, and be entitled to the benefit of clergy, and be (g) 2 Hawk. P. C. c. 18, s. 12; c. 21, c. 88, s. 1. them to escape, was treason, although the s. 3. (h) 1 Hale, 606. (i) 2 Hawk. P. C. c. 21, s. 8. (1) Ante, 422. (m) Ante, 430. (n) 2 Hawk. P. C. c. 21, s. 5, In Rex v. Westbury, 8 Mod. 357, it was holden that an indictment for a rescue of goods levied must set forth the fieri facias at large; and that setting forth quod cum virtute brevis &c. de fieri facias, and a warrant thereon he levied, &c., and that the defendant rescued them, is not suf ficient. (0) Rex v. Burridge, 3 P. Wms. 483. (p) 1 Hale, 607. (9) Rex v. Stanley, Russ. & Ry. 432. liable to be imprisoned for any term not exceeding one year, it shall be lawful for the Court, by or before whom any such person or per sons shall be convicted, to order and direct, in case it shall think fit, that such person or persons, instead of being so fined and imprisoned as aforesaid, shall be transported beyond the seas for seven years, or be imprisoned only, or be imprisoned and kept to hard labour in the common gaol, house of correction, or penitentiary house, for any term not less than one, and not exceeding three years.' Where the party rescued was in custody for a misdemeanor only, In cases of the rescuer will be punishable as for a misdemeanor; for, as those misdemeanor. who break prison are punishable for a high misprision, by fine and imprisonment, in those cases wherein they are saved from judgment of death by the 1 Edw. 2, stat. 2, De frangentibus prisonam; so also are those who rescue such prisoners, in the like cases, punishable in the same manner. (r) Where a prisoner was indicted for a misdemeanor in aiding and assisting in the rescue of a person, who was apprehended and was in custody under the warrant of a justice of peace, which had been granted upon the certificate of the clerk of the peace of the county, reciting that a true bill for a misdemeanor had been found against the party apprehended; and it was objected that the warrant was illegal, as justices of peace had only authority to issue warrants upon oath made of the facts, which authorized the issuing such warrants: it was held that the warrant was legal, and that the prisoner was guilty of a misdemeanor, in assisting in the rescue of the person apprehended under it. (s) The rescue of a prisoner, in any of the superior Courts, committed by the justices, is a great misprision: for which the party, and the prisoner, (if assenting) will be liable to be punished by imprisonment for life, forfeiture of lands for life, and forfeiture of goods and chattels; though no stroke or blow were given. (t) The aiding and assisting a prisoner to escape out of prison, by Of aiding a whatever means it may be effected, is an offence of a mischievous prisoner to nature, and an obstruction to the course of justice: and the assist- escape. ing a felon in making an actual escape, is an offence of the degree of felony. (u) In a case which underwent elaborate discussion, the Court of King's Bench held, that where a person assisted a prisoner who had been convicted of felony within clergy, and, having been sentenced to be transported for seven years, was in custody under such sentence, to escape out of prison, the person so assisting was an accessory to the felony after the fact. (v) The Court proceeded upon the ground that one so convicted of felony, within the benefit of clergy, and sentenced to be transported for seven years, continues a felon till actual transportation and service pursuant to the sentence; and that the assistance given in this case amounted, in law, to a receiving, harbouring, or comforting, such felon. (w) But they held the indictment to be defective, in not charging that the defendant knew that the principal was guilty, or convicted of (r) 2 Hawk. P. C. c. 21, s. 6. 4 Blac. Com. 130. (8) Rex v. Stokes, Stafford Sum. Ass. 1831, MSS. C. S. G. S. C. 5 C. & P. 148. Park, J. J. A., and Patteson, J. (t) 1 East, P. C. c. 8, s. 3, p, 408, 410. Bac. Abr. tit. Rescue, (C.) 3 Inst. 141. 22 Edw. 3, 13. (u) Rex v. Tilley, 2 Leach. 671. (v) Rex v. Burridge, 3 P. Wms. 459. Statutes respecting the rescuing of prisoners, or aiding them to escape. 25 Geo. 2, c. 37, s. 9. Rescuing per sons in custody for murder. Sect. 10. Rescuing the murderer after body of a execution. felony. (x) The offence of aiding a prisoner to escape out of prison appears also to have been considered as an accessorial offence in a case of piracy. On a return to a habeas corpus, in the case of one Scadding, who had been committed to the Marshalsea by the Court of Admiralty, the cause appeared to be for aiding and abetting one Exon, who was indicted for piracy, to escape out of prison; whereupon all the Court held that, though the fact were committed by Scadding, within the body of the county, yet, because it depended upon the piracy committed by Exon, of which the temporal judges had no cognizance, and was as it were an accessorial offence to the first piracy, which was determinable by the admiral, they must remand the prisoner. (y) Aiding the escape of a clergyable felon, who had had his clergy and been burnt in the hand, but ordered, under 18 Eliz., to be imprisoned, would not, it should seem, have subjected the party to punishment as for aiding the escape of a felon. (2) Several statutes, some of which have been already mentioned, and others will be referred to in the course of the Work, especially provide for the punishment of those who rescue or aid in the escape of persons apprehended or committed for the particular offences enumerated in those acts. There are also some special provisions by statutes, upon this subject, which may be noticed shortly in this place. By the 25 Geo. 2, c. 37, s. 9, (a) "If any person or persons whatsoever shall by force set at liberty, or rescue, or attempt to rescue or set at liberty, any person, out of prison, who shall be committed for or found guilty of murder; or rescue, or attempt to rescue, any person convicted of murder going to execution, or during execution, every person so offending shall be deemed, taken, and adjudged to be guilty of felony, and shall suffer death without benefit of clergy." (b) By sec. 10, if any person, after execution, shall, by force, rescue, or attempt to rescue, the body of such offender, out of the custody of the sheriff or his officers, during its conveyance to any of the places directed by the act, or from the company of surgeons, or their servants, or from the house of any surgeon where the same shall have been deposited in pursuance of the act, such offender shall be guilty of felony, and be liable to be transported for the term of seven years. (c) The Mutiny Act, 4 & 5 Vict. c. 2, s. 18, (among other things), the said W. P., so being in custody as (x) 3 P. Wms. 492. The prisoner was (y) Rex v. Scadding, Yelv. 134. 1 East, P. C. c. 17, s. 14, p. 810. (z) See the judgment of Treby, C. J., in the Earl of Warwick's case, 13 St. Tr. 1018, as to the commitment under this statute being a collateral and new thing. (a) Repealed by the 9 Geo. 4, c. 31, s. 1, except so far as relates to rescues and attempts to rescue.' (b) This punishment is abolished, and another substituted by the 1 Vict. c. 91, s. 1 & 2, see ante, p. 92. The act contains no provisions as to principals in the second degree or accessories. See, therefore, ante, p. 123, note (b) as to their punishment. (c) By the alteration of the mode of the disposal of the bodies of murderers by the 2 & 3 Wm. 4, c. 75, s. 16, and the 4 & 5 Wm. 4, c. 26, s 1, this section seems to be virtually repealed. C. S. G. of offenders court martial, and as to those sentenced by a provides, that from the time when an order of transportation shall As to escape be made, as provided by that act, "every act in force touching the escape of felons, or their afterwards returning, or being at large without leave, shall apply to such offender, and to all persons aiding and abetting, contriving, or assisting in any escape, intended escape, a naval court or the returning without leave of any such offender." A similar martial. provision is contained in the 4 & 5 Vict. c. 3, s. 18, for regulating the marine forces while on shore. The 52 Geo. 3, c. 156, provides against the aiding of the escape of prisoners of war; and enacts, that "every person who shall knowingly and wilfully aid or assist any alien enemy of his Majesty, being a prisoner of war in his Majesty's dominions, whether such prisoner shall be confined as a prisoner of war in any prison or other place of confinement, or shall be suffered to be at large in his Majesty's dominions or any part thereof, on his parole, to escape from such prison or other place of confinement, or from his Majesty's dominions, if at large upon parole," shall, upon conviction, be adjudged guilty of felony, and be liable to be transported for life, or for fourteen or seven years. (d) The act also declares, that every person who shall knowingly and wilfully aid or assist any such prisoner at large on parole in quitting any part of his Majesty's dominions where he may be on his parole, although he shall not aid or assist such person in quitting the coast of any part of his Majesty's dominions, shall be deemed guilty of aiding the escape of such person within the act. (e) There is a further provision as to assisting such prisoners in their escape after they have got upon the high seas. By sec. 3, "if any person or persons owing allegiance to his Majesty, after any such prisoner as aforesaid hath quitted the coast of any part of his Majesty's dominions, in such his escape as aforesaid, shall, knowingly and wilfully, upon the high seas, aid or assist such prisoner in his escape to or towards any other dominions or place, such person shall also be adjudged guilty of felony, and be liable to be transported as aforesaid." It is also provided that offences committed upon the high seas, and not within the body of any county, may be tried in any county within the realm. (ƒ) Previously to the passing of this act, upon an indictment for a misdemeanor in unlawfully aiding and assisting a prisoner at war to escape, where it appeared that such prisoner was acting in concert with those under whose charge he was placed, in order to effect the detection of the defendant, who was supposed to have been instrumental in the escapes of other prisoners, and the prisoner in question neither escaped nor intended to escape it was held that the offence was not complete, and that a conviction for such offence was therefore wrong. (g) The mere aiding an attempt of persons confined to make an escape, though no escape should ensue, is made highly penal by (d) The act contains no provisions as to principals in the second degree or accessories; see, therefore, ante, p. 123, note (b), for their punishment. (e) Sect. 2. (f) Sect. 3. By sect. 4, the act is not to prevent offenders from being prosecuted, as they might have been if the act had not been passed but no person prosecuted (g) Rex v. Martin. Trin. T. 1811, Russ. sentenced by 52 G. 3,c. 156. Persons aiding the escape of prisoners of war made liable to transportation. 16 Geo. 2, c. 31. Aiding a prisoner |