STORY, Circuit Justice.
This cause has been argued with great ability and learning; and I have received much light and instruction from the elaborate discussion, which it has undergone. I have considered the question with as much deliberation and care as I have been able; and it now remains for me to pronounce that judgment, which on the best reflection I have been able to form.
The first question is, whether an action of debt lies in Rhode Island for the escape of an execution debtor. That debt lies in England in such a ease, at least, since the statute of Westm. II. e. 11 (13 Edw. I.), and the statute of 1 Rich. II. c. 12, has not been denied at the bar; and is indeed, supported by a weight of authority altogether incontestible. • See 2 Inst. 377, 379, 380, 382; Jones v. Pope, 1 Saund. 34, and note 1; Id. 36: Platt v. Sheriffs of London, 1 Plow. 35; Alsept v. Eyles, 2 H. Bl. 108; Bonafous v. Walker, 2 Term R. 126. The only point is, whether that remedy has either by usage or statute been incorporated into the law of Rhode Island. It is not necessary, in my judgment, to consider how far the common law and statutes of England, applicable to its situation, were to be considered as introduced by adoption into the colony of Rhode Island at its first settlement, or under the charter of Charles II., — though certainly the current of American as well as British authority sets very strongly in favour of the affirmative (5 Bac. Abr. “Prerogative,” C; 2 P. Wms. 75; Blankard v. Galdy, 2 Salk. 411; Com. v. Knowlton, 2 Mass. 530; 3 Bin. 595), —because there is an express colonial statute on this subject. By the act of Rhode Island, of the 30th of April, 1700, it is enacted, “That in all actions, matters, causes, and things whatsoever, when no particular law of this - colony is made to decide and determine the same, that then, and in all such cases, the laws of England shall be put in force to issue, determine, and decide the same, any usage, custom, or law to the contrary hereof notwithstanding.” It is too clear for argument, that this statute completely adopts the English statute, as well as common law, in all cases not otherwise provided for; and as no colonial statute existed touching remedies for escapes, it follows, that the remedy of an action of debt, was virtually coupled with the local law. Assuming this to be the correct conclusion, and it seems to me undeniable, it remains only to inquire, whether by any subsequent statute the operation of this act has been suspended or repealed. There is no pretence of an express, repeal; but an attempt has been made to deduce a repeal by implication from statutes subsequently made. The statute of 1767, after expressly declaring, that the courts of the colony shall be governed by certain statutes of parliament, which it enumerates in detail, as “hereby introduced into this colony,” proceeds to provide in the second section, “that in all actions, laws and things whatsoever, where there is no particular law of this colony, or act of parliament introduced for the decision and determination of the same, then and in such cases, the laws of England shall be in force for the decision and determination of the same.” It does not appear to me, that this statute in the slightest degree varies the operation of the act of 1700; it is merely affirmative of its provisions. The enumeration of certain statutes, as introduced, cannot justly be considered as denying, the adoption of any others; but was probably ■ inserted ex majori cautela; and at all events the second section completely repels any such constructive repeal. Then comes the act of 1789, which, after declaring the Digest, then made of the statutes of the state to be in force, and reciting, that “in the aforesaid Digest statute provision may not have been made in all cases unprovided . for at common law,” enacts, “that in all cases, in which provision is not made, either at com - mon law, or by the statutes aforesaid, the stat- ‘ ute laws of England, which have heretofore been introduced into practice in this state, shall continue to be in force, until the general assembly shall expressly provide therefor.” Dig. 1798, p. 78, § 5. Now I do not think it material to inquire, whether it be the common law of England, or the common law of Rhode Island (supposing there is a difference), which is alluded to in this statute, though upon sound principles of. construction it seems difficult to [1220]*1220avoid the conclusion, that the latter was intended (Com. v. Knowlton, 2 Mass. 530, 534; 3 Bin. 595); nor whether the common law of Rhode Island, at least since the act of 1700, is not to he considered the common law of England, as modified and amended by the acts of parliament, and the local usages and doctrines of the colony; for in my view of the question, the effect of the act of 1798 will he the same, which ever construction is adopted. Notwithstanding what is argued by counsel in Platt’s Case, 1 Plow. 35, to the contrary, there does not seem any reason to suppose, that debt was a remedy for an escape at the common law; for according to all analogies of that law, it lay not in cases of tort, but of contract only, where the claim was for a sum certain; and it seems impossible to conceive, that the injury to the plaintiff in cases of escape could always be a sum certain. From the nature of the case, it is a tort, sounding in damages, and perpetually varying in measure and extent. The statutes of Westm. II., and 1 Rich. II., were, in my judgment, introductive of new law; and such seems to have been the general if not the universal opinion of the profession, so far as it can be gathered from judicial decisions. Bac. Abr. “Escape,” F; Bonafous v. Walker, 2 Term R. 126. Assuming therefore, that the common law referred to in the act of 179S is the common law of England, as the counsel for the defendant contends, it establishes only, that debt for an escape was not a remedy given by that law, or in. the language of the act, it is “a case in which provision is not made at common law.” It would be too narrow a construction to hold, that if there was some remedy "at the common law, the act of 179S did not save a new statute remedy, introduced by practice into Rhode Island. The ob- ■ vious purpose was to save all English statutes, then in force, which gave remedies and rights unprovided for by the common law, or by the state statutes. And at all events the act is merely affirmative, and in no respect touches former statutes, with which the provisions in the Digest are not inconsistent. That the remedy of debt for escapes had been introduced into practice in this state is clear from the extracts from the judicial records, with which I liave been furnished, since the year 1767. And the legal conclusion from these extracts is greatly fortified by the language of the statutes of 1700 and 1767. Without going more at large into the subject, I am satisfied, that debt is a proper and legal remedy in Rhode Island in eases of escape.
The other question is of- much greater importance and difficulty. At the threshold of the examination, which it is my duty to make, I wish to declare, that the decisions of other states upon the doctrine of escapes can have no authority in this case, unless so far as they rest upon the common law, or upon English statutes. Whatever may be the correctness or incorrectness of any decisions founded upon expositions of local statutes and usages in other states, we have nothing to do with them. The question is res integra here, and the parties have a right to have it settled upon principle.
I shall consider the case under the three aspects, in which it has been presented by the counsel: (1) Whether suffering the prisoner to go at large within the walls of the gaol was an escape; (2) whether the prisoner’s being entrusted with the keys, and performing the other duties of a turnkey or assistant to the gaoler was an escape; (3) whether the commitment of the gaoler to the gaol during the prisoner's confinement without any new appointment of a keeper was an escape.
In Rhode Island (as in most, if not all of the other states), the county gaols (in which alone prisoners in execution are authorized by law to be confined) are built and maintained by the public. As early as 1729 an act of the legislature required a gaol to be erected in each county, where one was not already erected, meet and convenient for the security of prisoners. The sheriff in virtue of his office has the custody of the gaol, and is authorized to appoint a keeper of it, and is made responsible for the neglect and misfeasance in office of his deputy and gaoler. Dig. 1798, p. 400 et seq. The limits of the gaols, as far as any evidence has been laid •before the court, were probably fixed from time to time by the legislature; and the present limits of the gaol in Providence were* fixed by a resolve of the legislature in 1800. At what time the liberty of the yard was first authoritatively granted to prisoners confined for debt does not directly appear. But very probably it did not exist anterior to the ' act of August, 1747. That statute after reciting in its preamble, that honest and unfortunate men are “thrown into prison, where they have been closely confined in scanty, little rooms under lock and key, to the prejudice of their health and ruin of their families, many of them being of some occupation, that if they had the liberty of the house, they could at least support themselves and families by their business;’’ and reciting also, that a doubt had arisen, “whether a bond made to the sheriff, that a man shall be a true prisoner, and not make an escape, is valid in law;” proceeds to enact, that it shall be lawful for the sheriff to allow to “any person imprisoned for debt upon mesne process or execution a chamber or lodging in any of the apartments belonging to such prison, and liberty of the yard within the walls and limits thereof, upon reasonable payment to be made for such chamber room, such person giving bond,” &e. with sufficient sureties, &c. upon the condition specified in the statute. That condition is in substance, that he shall continue a true prisoner in the custody of the gaoler and his deputies and servants within the limits of the prison, until lawfully discharged, without committing any manner of escape. And in case of any escape, it authorizes an assignment of the [1221]*1221bond to the creditor. This statute is in substance preserved, in the Revision of 1798, with an additional section, that when judgment is obtained upon such prison bond, neither the principal nor the sureties thereon shall be entitled to any relief under the act, “but they shall be committed to close gaol” until the execution is paid or discharged. The form of execution provided by the legislature commands the sheriff, &c. for want of goods and chattels to take the body of the judgment debtor, and him to “commit unto the county gaol, and in custody to keep within the said gaol, until the execution is discharged.” These are all the statutes of Rhode Island bearing on the subject, and they leave the question of what constitutes an escape to be decided according to the common law and statutes of England adopted in that state.
Was it then an escape at common law to allow a prisoner to go at large within the walls of the gaol? It is said, and truly, that to suffer a prisoner to have greater liberty than the law allows, is an escape; but this leaves the question exactly, where it was before, for the inquiry still is, what is the liberty, that the law allows in such cases. It is also said, that the prisoners are to be kept in salva et arcta custodia. This is true; but it remains to inquire, what that safe and close custody is. By the ancient common law prisoners were not allowed to be kept in irons for the reason assigned by Bracton, “quia career, ad continendos non ad puninedos haberi debeat.” Rom. Law, Brac. lib. 3, fol. 105; Fleta, lib. 1, c. 26; Mirror, Just. c. 2, § 9; Id. c. 5, § 1; 2 Inst. 380. And Lord Coke significantly observes, that where the law requireth, that a prisoner should be kept in salva et arcta custodia, yet that must be without punishment to the prisoner. 3 Inst. 35. The statute of Westm. II. c. 11, is the first instance, where authority is given to the sheriff, if need require, to keep the prisoner in irons, and that in terms, though not in consideration, is confined to servants, bailiffs, and receivers. And the very language of that act, which first gave the action of debt for an escape, declares, that the sheriff or keeper of the gaol shall take heed, that “he do not suffer him to go out of the prison” by writ of replevin, or other means, without the assent of the creditor and if he does, gives the action. The statute of 1 Rich. II. c. 12, which in terms applies only to the warden of the Fleet, but has been held by construction to apply to all sheriffs and gaolers, declares, “that no warden of the Fleet shall suffer any prisoner, there being by judgment at the suit of the party, to go out of the prison, by main prize, bail or bastón, without making gree to the parties, &c.” and if he does, it gives the creditor an action of debt. Selw. N. P. “Debt,” p. 542, § 9; Bonafous v. Walker, 2 Term R. 126. Nothing can be clearer than that by the terms of these ancient statutes the action was not contemplated, unless the prisoner went without the walls of the prison; aDd there is some reason to infer, that nothing short of this was then supposed to be an escape. I have examined all the cases cited at the bar, and have made extensive researches to ascertain, whether there, is any English case, in which it has been judicially held, that it is an escape for a prisoner to be permitted to go at large within the prison walls; or that locking up in a certain room is necessary to constitute “salva et' arcta custodia.” I find no such ease, unless that cited from the star chamber be such, and upon that I shall have occasion particularly to comment. -, I. exclude here from consideration the cases of constructive escapes from incompatible duties or rights, because they fall properly under another head. The general silence of the boobs upon such a doctrine raises a pretty strong presumption, that no such- duty was imposed by law upon the gaoler to confine his prisoners in locked rooms. If his prisoners were restrained within the walls of the gaol, I cannot perceive, why in reason the confinement may not justly be deemed close and strict, especially as it is a confinement not for punishment, but for custody. The exigency of the writ of execution is to keep the prisoner in safe custody within the gaol, not that he shall be kept locked in confinement in. any particular room within the walls. In contemplation of law it is an imprisonment, where the party is restrained of his liberty by force, or against his will; and therefore, says Lord Ooke, he that is in the stocks, or under lawful arrest, is said to be in prison, although he be not infra parie-tes carceris, for there may be .a prison in law, as well as in deed. 2 Inst. b89. A for-tiori, a person may be said to be in close custody, where he is confined within the walls of the prison. Beecher’s Case, Noy, 38, appears to me perfectly consistent with this doctrine. It is proper to recollect, that the Marshalsea and Fleet prisons are subjected to the entire control and order of the respective courts of king’s bench and common pleas, and that these courts have, authority to prescribe the limits and liberties, as well as the rules for the management and custody of the prisoners. Com. Dig. “Imprisonment,” C. D. Beecher was imprisoned in execution for debt in the Fleet, and being there he had the liberty of the garden, and to play at bowles. And upon motion by his creditors, it was ordered by the court, that he should be in strict custody, in his chamber. “And it was said by Pop-ham, which none denied, that if the party be confined to his chamber by order of court, and the warden of the Fleet suffer him to have the liberty of the house, that It shall be an escape.” Now it may be admitted, that, if after an order by a court having competent authority, confining a party to his chamber, the gaoler suffer him to go at large [1222]*1222within the house, it is a violation of his duty, and is an escape. But the just conclusion from this is, that without such an order such a liberty would not be an escape. And this is corroborated by the report itself, for if the indulgence to Beecher had been deemed an escape in point of law, the proper remedy for the warden would have been an action of debt against the warden, and not an- application to the court for the more strict confinement. And the report itself informs us, that such liberty was usually granted to the prisoners in the Fleet. If it had been inconsistent with what the law deems a safe and close custody, it seems incredible, that any court of justice should have allowed such a wanton abuse, thereby sanctioning an undeniable wrong. In the same maner I interpret the resolutions of the judges on occasion of the plague in London, as reported in Cro. Car. 466, and Hut. 129. The judges there proposed, that the prisoners might be removed to some house in the country, for the warden “there to keep them as prisoners sub arcta and salva custodia, as they should be kept in their proper prisons, and not to be as home keepers in their oum houses.” Not the slightest suggestion is made of the necessity of confining them in locked apartments within the prison. Small’s Case, 2 Bulst. 148, stands upon the same ground. A motion was there made in court to have some redress in the prison of the Marshalsea for the government of prisoners there in execution, “who having so great liberty there in the prison, and in continually going abroad by bail and bastón, so that they will lie there, consume their estates, and do not pay their creditors.” Lord Chief Justice Coke said, that by the statute of 1 Rich. II. c. 12, prisoners sub cus-todia are not to go out of the prison by bail and bastón, unless by the command or writ of the king, or by agreement of the parties, and that such kind of liberty given by their keeper without such warrant was an escape in law. And lie added, “therefore we will confine them to be sub ferris in arcta custodia.” The grievance here complained of was not, that the prisoners were at large within the prison, but that by bail, or bas-tón, — which I presume means the custody of a keeper or tipstaff (Dalt. Sher. 140, 475),— they went without the prison, against the express provisions of the statute of Richard. And notwithstanding his lordship s harsh determination for the future; — the legality of which is very doubtful (Scriven v. Wright, 1 Bulst. 145), — it is perfectly clear, that the practice of allowing prisoners the liberties of the limits continued down to the period of the statute 8 & 9 Wm, III. e. 27, and received judicial sanction, and was then finally confirmed by parliament. In Lenthall v. Cooke, 1 Lev. 254, 1 Saund. 161, the legality of bonds taken by the keeper of. the king’s bench prison, upon granting the prisoners the liberties of the rules, was directly in question, and the court held them good, if not given for ease and favor, and gave as a reason, that the prisoners were so numerous, that the house could not hold them, but that they were permitted to lodge within the rules, and therefore there was good reason to take security for their true imprisonment, and constant usage had been to take such obligations. Now it is material to remark, that there was no pretence in the argument, that this indulgence had been granted under authority of any*rule of court. It was a usage of the gaoler’s; and if such indulgence had been an escape at common law, the bonds must have been void. The court therefore manifestly considered, that imprisonment within the walls was sufficient in point of law; and that the rules of the prison were to be deemed constructively the walls of the prison. The same case is reported in 2 Keble, 422, and Sid. 384; but comparing them together, they do not seem to me to vary the conclusion to be drawn from the more accurate statements of the other Reports. See, also, Mosdel v. Middleton. 1 Vent. 237; Case of the Warden of the Fleet, 2 Mod. 221. The foregoing observations apply with equal force to the case of Scriven v. Wright. 1 Bulst. 145. There, a motion was made in behalf of Seriven, that the defendant being in execution for debt, and having more liberty than was convenient for a prisoner to have, might be kept in close custody in fetters. The court refused to have the prisoner put in irons, as not warranted by any precedent, but ordered, that he should be restrained of his liberty. Yet if such liberty was an escape, the plaintiff- had an adequate remedy independently of any such judicial order. The statute of 8 & 9 Wm. III. c. 27, does not appear to me to be introductive of any new law; but merely confirms the antecedent practice; and was probably intended, as well to correct other abuses, as to take away the right of the courts by summary interferences to deprive any particular prisoner of the customary indulgence. It enacts, that all prisoners in execution, &c. committed to the custody of the marshal of the king’s bench, or warden of the Fleet, shall be actually detained within their prisons or the respective rules of the same; and if they, “or any other keeper or keepers of any prison,” shall permit • or suffer any prisoner in execution, &c. to go or be at large out of the rules of their respective prisons, except in virtue of some writ, &c. every such going or being out of the said rules shall be adjudged an escape. This act is merely in the affirmative; and if before the statute the going at large within the rules was an escape, I see nothing in the act, which takes away the common law on the subject. In truth, the statute considers the rules to all intents the same as the walls of the prison; and it does not even affect to consider any indulgence of liberty within the rules as an escape or violation of [1223]*1223duty. 2 Bac. Abr. “Escape,” B, 1; Bonafous v. Walker, 2 Term R. 126.
It lias been supposed in argument, that this statute is confined in its provisions to the king’s bench and Fleet prisons; but some •of its provisions apply to all prisons; and the section in question in terms extends “to any other keeper or keepers of any prison.” And no case has been cited, in which a narrower construction has been supported.
The Star Chamber case remains for examination. It is no where reported at large; but the following,brief minute of it is to be found in Dyer, appended by him to the case of Worlay v. Harrison, 2 Dyer, 249. I shall give it verbatim. “See well the statute of 1 Rich. H. c. 12,'for this matter of imprisonment in execution, and how a prison and prisoner shall be ordered; and also a decree and order made in the star chamber, t. 24 Hen. VIII., by the advice of Fitz James and Norwich, chief justices of the benches, Fitzh’ and Spelman, justices, that by law such prisoner shall not go at large within the prison, nor out of the prison with.the warden, but shall be kept straitly in custody, &c. And an injunction thereupon given to the wardens of the prisons throughout all London to observe the said order and decree under pain of £100.” Same case, cited Dalt Sher. 140, 475. This is the whole report; and it is apparent, that it was not a decision made judicially upon a question of escape. It was merely an order and decree made by the judges with reference to. the London prisoners, over which they had jurisdiction to make orders and regulations, declaring, that the prisoners shall not go at large within the prisons. It is therefore not an exposition of antecedent law, so much as a law for the future government of those particular prisons. And doubtless, it was made in the true spirit of that age and of that memorable court, signalized by its oppressions and its unrelenting severity; and in the spirit, which Lord Coke seemed zealously to cherish in better times against unfortunate debtors, consigning them to close custody in vinculis. The same case is cited in Boyton’s Case, 3 Coke, 44 a, and in Rolle, Abr. 87, pl. 50; but they are mere transcripts from Dyer.
It is upon the authority of this case, or rather order of court, that the whole doctrine of constructive escapes for being at large within the prison walls has been attempted to be established. If it be considered as a positive rule of the court for the government of prisons within its jurisdiction, as upon its face it purports to be, there is certainly no objection to its legality, whatever there may be to its policy or humanity. But if it be taken as an exposition of the common law on the subject, it seems to me not entitled to any serious weight. There is no adjudged case, which supports it; and the prior as well as subsequent usages and opinions in England recognised as they are by the decisions and statute already adverted to, pronounce an indirect judgment to the contrary. I confess, that a case from the star chamber, in. times of tyranny and irresponsibility, does not come strongly recommended to my mind, especially when it savours of the infliction of punishment under the pretence of a civil remedy. I do not believe, that the common law is in this instance justly expounded; and until my judgment is better satisfied by an authority, to which T must bow, I shall continue to hold the opinion, that the safe and close custody of the common law does not prohibit the gaoler from allowing prisoners in execution for debt the liberty of all or any of the rooms within the walls of the prison. See report of a committee of the house of commons on the prisons in London, in 1814, which corroborates this view of the subject. I leave untouched, because it is unnecessary to decide in this case, the question, whether he may not also allow them at his peril and his pleasure, consistently with his duty, the liberty of the prison yard or limits. And the practice in the gaols of Rhode Island during a long period of granting such an indulgence is no mean proof of what the professional opinion upon the subject has hitherto been. Until the case of Bartlett v. Willis, 3 Mass. 86, I doubt whether a more rigid doctrine was ever supposed to exist in New England; and Clap v. Cofran, 7 Mass. 98, was the first judicial decision, in which it was held, that suffering the prisoner to be in the apartments within the prison appropriated to the gaoler was an escape. See, also, McLellan v. Dalton, 10 Mass. 190. And in that case, when again before the court, it was held by the court, that if there had been no distinct appropriation of apartments within the gaol to particular uses, it was no escape. 10 Mass. 373. This opinion must have proceeded upon the ground, which I now maintain, viz. that, suffering a prisoner to be at large within the prison walls is not per se an escape; for the apartments of the gaoler, when appropriated by law exclusively for his use, are deemed by the court to be no part of the prison. Even with these modifications the doctrine in the cases of Bartlett v. Willis, and Clap v. Cofran, were so repugnant to the general practice, as well as to legislative policy, that it is now well known that the whole doctrine was immediately abolished in respect to future cases by the legislature; and .the remedy in past cases was abridged in a very summary manner. Act March 4, 1809; Act June 20, 1809; Act Feb. 28, 1811; Act June 27, 1811; Act Feb. 29, 1812. It may be added, that the decisions in Massachusetts, although they profess to receive the doctrine of the common law as to escapes, are ultimately founded on what is deemed the proper construction of the provincial and state statutes.
A different opinion as to .the common law appears to prevail in New York. Liberties or limits, are there prescribed by law as appurtenances to the gaol, and prisoners in execu[1224]*1224tion for debt are by statute entitled to the use of those liberties upon giving bond to commit no escape. It has been held, that by these provisions the gaols are enlarged from the four walls to the extent of the liberties; and that, as the bond is given only for the indemnity of the sheriff, he may waive that indemnity and grant the liberties without such bond. Dole v. Moulton, 2 Johns. Cas. 205; Holmes v. Lansing, 3 Johns. Cas. 73; Peters v. Henry, 6 Johns. 121. It is plainly, therefore, the doctrine of the court, that at common law granting the prisoners liberty within the prison or rules is not an escape; and indeed it has been expressly decided, that the statutes relative to gaol liberties have not altered the common law as to the liability of sheriffs for escapes. Jansen v. Hilton, 10 Johns. 549; Barry v. Mandell, 10 Johns. 563. In Connecticut the decisions are to the same purpose; for it is there held, that a gaoler may allow to a prisoner committed on civil process the enjoyment of the liberties of the prison, either on bond, or his bare promise to remain a true prisoner; and that to permit prisoners to enjoy the limits is no escape; for while they are within the limits they are to every legal intent and purpose within the prison. 1 Back. Sher. 177. I have not been able to trace any decisions in any other state affirming a more narrow rule. The late case of Houlditch v. Birch, 4 Taunt. 608, appears to me to confirm the general doctrine. There, the sheriff, instead of taking the party in execution to the common gaol, kept him for fourteen days in a lock up house kept by the sheriff for that purpose; and " it .was held no escape. It is well known, that these lock up houses are merely designed to secure debtors, and to leave them more at liberty than they would be in the gaol, and give them better accommodations. Yet this was thought by the court as strong close custody, as the law requires.
I have examined the cases more at large, than I should otherwise have felt necessary, because there is a diversity of opinion among American judges, as to what the common law on this subject is. I have already stated the result of my own deliberate examination; and if it differs from that of judges, for whose memories I entertain a most sincere reverence and respect, I can only regret it as the unavoidable consequence of the infirmity of human judgment. My duty is to expound the law, as it appears to my own conscience and understanding; and it is a consolation, that my opinion on this point stands approved by some of the most enlightened tribunals in our country.
. If I entertained any doubts upon this point, which certainly I do not, it might be material to consider, whether the statute of 8 & 9 Wm. HI. c. 27, was not adopted in Rhode Island, so far as it concerned gaolers and gaols in general, by the colonial act of 1700. If it was, then, as there is no subsequent statute, that has changed the common law construction as to the right of gaolers to allow their prisoners the benefit- of the prison limits at their discretion without giving bonds for security, it would follow, that, after the liberties were established in Rhode Island, the gaolers might have allowed their prisoners the use of those liberties, independently of the act of 1747. But % it is unnecessary to dwell on this point, as I am very clear upon the general ground of the common law. I lay no stress upon the distinction in the act of 1798 between “close gaol,” and the liberties of the .yard, because the prisoner in this case never left the “close gaol,” as contradistinguished from the liberties; and the provision of the act undoubtedly denies to principal and Sureties upon escape bonds the use of the liberties; but it leaves the terms “close gaol” to be determined by their meaning at common law.
The second question, as to making the prisoner a turnkey, &c. is one of far more nicety in itself; but is in a great measure settled by authority. It is in effect, whether there can be a constructive escape in point of law, when there has been no actual escape in point of fact from the prison walls or limits. The whole doctrine of escapes rests upon the notion, that there should be an imprisonment of the party within the proper limits. There may be an imprisonment, either by physical restraint, or by superior force acting as a moral restraint upon the party. Thus a person is not less in imprisonment by being in the presence of an officer, who has arrested him, and restrains his liberty of action, than he would be by a personal detention by imposition of hands, or the application of fetters. Com. Dig. “Imprisonment,” G. But in orderrto constitute imprisonment there must be actual or constructive custody or restraint. That a person is at liberty to go, where he pleases without any restraint, acting or ready to act upon him, either physically or morally, seems to exclude the notion of imprisonment. The law has therefore adjudged, that where a party imprisoned is allowed any liberty or authority incompatible with the notion of custody, not merely salva et arcta custodia, but of any custody at all, it shall be deemed an escape. Whether this doctrine be formed in over refinement of reasoning or not, it is not for me to inquire. It is sufficient for me, if it be so well established a doctrine, that I am not permitted judicially to deny it. Upon the ground already stated, it has been held, that if a woman is warden of the Fleet prison, and marries a person imprisoned in the Fleet, it is an escape in the woman, and the law adjudges the prisoner to be at large; for he cannot be imprisoned without a keeper, and he cannot be in the custody of his wife. Plow. 37, a; Com. Dig. “Escape,” C. And- see Westby’s Case, 3 Coke, 71, 76. So if the warden of the Fleet, who hath an office in fee, dies seized, his son and heir being then imprisoned there, and the office descends to him, being in prison, the law adjudges [1225]*1225him out of prison, although he has fetters upon him, for he cannot be his own prisoner, and no man may be lawfully detained in prison without a gaoler or keeper. Plow. 37, a; Com. Dig. “Escape,” C. And seeWest-by’s Case, 3 Coke, 71, b. In like manner, if the sheriff be arrested and committed to the county gaol, it is an escape, for he cannot be imprisoned in a gaol, of which he has the custody. Day v. Brett, 6 Johns. 22; Somes v. Lenthall, Style, 465. Upon the same principle, if the gaoler himself be committed to the gaol, and the sheriff is not there, nor any other keeper appointed by him to receive and confíne the prisoner, it has been held to be an escape. Colby v. Sampson, 5 Mass. 310; Gage v. Graffam, 11 Mass. 181. So it is asserted to be an escape, if the sheriff make a prisoner of the gaol keeper, and give him the keys. Id. The making a turnkey of a prisoner, so that he has the keys of the prison in his custody and lets people in and out of the prison, has been held at the common law a voluntary escape. That was the case in Wilkinson v. Salter, Cas. t. Hardw. 310; for although there was an actual escape without the prison in that case, yet there had been a recaption and return, which would have been a good de-fence, if the escape had been merely negligent. But Lord Hardwicke held it a voluntary escape, because the prisoner was entrusted with the keys of the prison, so that he might go out when he would. The case does not point exactly to the present question, but it affords a strong presumption, that the mere fact of making the party a turnkey, and trusting him with the keys, is per se a constructive escape. But supposing the case doubtful, it appears to me, that such, by the just analogy of the law, is the legal inference. When a prisoner, as in the ease now before me, is permitted to act, not merely as a turnkey, but to have the possession and custody of the keys and all the doors, as well when the gaoler is abroad as at home; and to perform all the duties of an assistant, without any restraint whatsoever as to his person either by day or night, he cannot be justly deemed in any proper sense of the law to be in custody, much less in safe and close custody. The gaoler allows him for the time the complete command of the gaol; and I cannot distinguish his case in principle from those, which have been already stated. It is not the mere absence of physical restraint that makes it an escape, but it is that coin bined with the voluntary yielding up the right of future custody, so that there can be no recaption, if the prisoner leaves the limits. And such is manifestly the construction, which the law puts on the act, for upon such voluntary escape the gaoler loses all right of future imprisonment of the party. I do not rely upon the fact, that the outer door was ordinarily left open in the day time, as an abandonment of custody; but it is certainly a very strong circumstance to show the extreme negligence of the keeper as to prisoners, who had not given bonds.
The remaining point, as to the effect of the-commitment of the gaoler himself during the-period of the prisoner’s confinement, may be disposed of in a few words. That commitment, without any new keeper being appointed by the sheriff, was clearly upon authority an escape of the gaoler himself, for which the-sheriff would have been liable. But it was not an escape of the other prisoners, if in. point of fact they were kept in custody; for. although a man may not imprison himself, being gaoler, he may hold others in prison,, and he may act as gaoler for the sheriff over others, even when he is himself committed to-the gaol as a prisoner. It is sufficient in, such cases, if there be a virtual custody by some person having authority from the sheriff, which as to all other persons the gaoler-in such cases has. Nor is there any thing in. the authorities cited at the bar, which, properly considered, contradicts this. The case-of Somes v. Lenthall, Style, 465, was an application to the king’s bench to commit the defendant, then the marshal of the king’s bench prison, and the court refused it, giving as a reason, “we can commit him to no other prison but the Marshalsea, for that is the prison of this court; and to commit him to that prison, of which he is the keeper, without securing the prisoners there, before we do it, will be an escape in law of all the prisoners.” And; the same doctrine was held in Bendison v. Lenthall, 1 Keble, 202. See also 2 Bac. Abr.. “Escape,” B. 3. This doctrine at most establishes no more than, that if the sheriff him-, self is in actual custody under an order of court, so that he cannot guard his prisoners, he virtually leaves the prison without any keeper. But if his under keeper only is committed, and his other prisoners are in fact securely kept, there seems no reason to hold it a constructive escape of such prisoners; for the under keeper is in contemplation of law at large, and if permitted to be so in fact, he may well be a keeper of the other prisoners. If the law were otherwise, it would follow, that if the-sheriff were to make a prisoner his turnkey, it would be an escape of all his other prisoners, which has not been pretended. In truth,, the authority of an under keeper over other prisoners is not determined by the mere fact of his own commitment, that commitment being in point of law only for an instant.
I have finished all, that I have thought it necessary to say upon this case; and am of opinion upon the whole, that the action is well brought, and that the conduct of the gaoler in making the prisoner an assistant turnkey, and allowing him at all times the control of the keys of the outer and inner doors of the gaol, and an unlimited liberty throughout all the apartments, constitutes a constructive escape, for which the defendant is liable; and that therefore judgment ought to be rendered on the verdict for the plaintiff-