Morning journal and courier., 1880-09-03
From the Albany Law Journal

To escape from restraint is an instinctive
 impulse. We see it in the smallest children.
 Man but obeys his natural prompting in
 breaking jail. Why should society punish
 him for it Why should an officer of justice
 be justified in pounding to jelley or in shoot
 ing to death an escaping prisoner, charged
 with felony if he cannot otherwise prevail
 on him to stay2 Why may not society just
 as logically punish him for not having volun-
 tarily given himself up to justice as for try ing to get away when justice has overtaken
 him? If a man cruelty whips @ runaway horse, or tortures a squirrel re-eaptured af- ter escape from his revolving cage, or runa- way dog which sees preparations for putting him to churn, MT. Bergh will be on the track very quickly. Why punish man for him self obeying the same instincts It may be said, because he knows better than to escape. We would rather say, he knows better than to stay and to be caught or punished
 Dr. Wharton says: Whether, in a hu- mane jurisprudence, the unresisted escape of prisoners from custody is a punishable of l fence may well be doubted. The latter Ro-
 man common law holds that it is not The | law of freedom, so argue eminent jurists, is natural; the instinct for freedom is irrepres- sible; if the law determines to restrain this freedom, it must do so by adequate means and it cannot be considered an offence to break through restraint when no restraint Is | imposed Undoubtedly it is a high phase of
 
 death or imprisonment to walk back, when l let loose, to be executed or imprisoned. But l the law does not undertake to establish So- cratic heroism by indictment. It would not be good for society that the natural instinct ] for self preservation should be made to give 1 way to so romantic sentiment as is here in Voked; and 1t is logical contradiction to say ! that the scaffold and the cell are to be used ! to prove that the scaffold and the cell are of no use If men voluntarily submit to pun ! ishment then compulsory punishment is a wrong. Beside this, a jailer may argue that ! if we hold this that prisoner is under bonds as much when he is let loose as when he is locked up, there is no reason for over careful ness in locking up. Following these views, the conclusion has been reached that an un- resisted escape is not per SC indictable of fence, and this view has been adopted by all I modern German codes. The English deci- sions on this point may be too firmly settled to be now shaken but considerations such as those which have been mentioned may not be without their use in adjusting the punish ment on convictions for unresisted escapes D It seems to us more reasonable to reward a prisoner for staying quietly and obediently in iail as some States now do, than to punish him for running away. If it is cruel to pun ish man for breaking jail, what shall we say of punishing his wife for aiding him?
 The law is guilty of cruelty quite worthy of the inquisition in this regard. For exam pie, an imprisoned convict Gin Connecticut easel went by permission of his keeper about the land connected with the jail, went to 1 market and brought back provisions for the inmates of the jail, cooked food for them in the kitchen of the dwelling house attached to it, went to the adjacent barn and there fed and milked the COW, and from the barn de- parted and left the State. Held, 8 criminal escape. What a cat-and-mouse play doctrine
 is thisi Even if the jail is so unhealthful and
 filthy as to endanger his life, he ispunishable for breaking out ''The necessity, to excuse, ? says the CNeyada) court, must be real and
 urgent, and not created by the fault or care lessness of him who pleads it" He should
 have ''exhausted the lawful means of relief in his power before attempting the course pursued. It was not shown or claimed that he had ever complained to the sheriff or the
 board of county commissioners, or that he had ever endeavored to obtain relief by any lawful means We'll, suppose he had com plained, and his complaints had not been
 needed, he could not help himself It is a comfort to know that if the jail takes fire he is not bound to stay and be burned to death