Definition
Prison breaking is the common law offense of escaping from lawful custody by force or violence. A prisoner who breaks free from a place of lawful confinement through physical force commits prison breaking. The offense is distinct from mere escape, which may not require force, and from rescue, which involves a third party liberating the prisoner.
The core elements are: (1) the prisoner is held under lawful commitment, typically on criminal process; (2) the prisoner uses force or violence to effect the escape; and (3) the escape is from a place of lawful custody. The lawfulness of the underlying commitment is essential — a person unlawfully detained who breaks free does not commit this offense.
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Common Language
Modern common usage (Wiktionary): A synonym for jailbreak — the act of escaping from prison.
Historical common usage (Webster's 1913): Not separately defined; the term was understood by its component parts.
The common usage treats prison breaking and escape as interchangeable. The legal distinction is meaningful: prison breaking at common law required force or violence applied to effect the escape, elevating it above simple escape. A prisoner who walks out through an unlocked door is not guilty of prison breaking in the technical sense; one who breaks through a barrier, overcomes a guard, or destroys physical restraints is.
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Common Confusion
Prison breaking, escape, and rescue are three distinct common law offenses that are routinely conflated in both historical sources and modern usage.
ESCAPE is the broader category — any unlawful departure from lawful custody. Prison breaking is a species of escape distinguished by the use of force or violence. Not every escape is a prison breaking, but every prison breaking is an escape.
RESCUE is the liberation of a prisoner by a third party. It mirrors prison breaking in its requirement of force but differs entirely in the actor: prison breaking is self-help by the prisoner; rescue is intervention by an outsider. Bouvier draws this line explicitly, and researchers should take care not to conflate the two when reading historical indictments or treatises.
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Core Elements
To constitute prison breaking at common law, three elements must concur:
1. LAWFUL COMMITMENT: The prisoner must be held on lawful criminal process. Unlawful detention negates the offense. Historical authorities, including Coke's Institutes and Bishop's Criminal Law, treated this as foundational — a person held without legal authority is not bound to remain.
2. FORCE OR VIOLENCE: The escape must be accomplished by force. This is what separates prison breaking from simple escape. The force may be directed at physical barriers, restraints, or persons guarding the prisoner.
3. ESCAPE FROM CUSTODY: The prisoner must actually depart from the place of lawful confinement. Attempted prison breaking may constitute a separate or lesser offense depending on jurisdiction and era.
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Why It Matters in Research
Prison breaking is one of the older common law offense categories, and researchers navigating historical criminal records — indictments, plea rolls, session papers — will encounter it in contexts where modern statutes would simply charge "escape" or "escape from custody." The distinction matters because historical pleading requirements were strict: an indictment for prison breaking had to allege force and lawful commitment, and defects in either allegation could defeat the charge on demurrer.
Modern American and English statutes have largely absorbed prison breaking into consolidated escape statutes, often without preserving the force requirement as a separate element. This means that a term carrying specific common law weight may appear in a modern code with a flattened or altered meaning. Researchers comparing historical conviction rates, offense classifications, or punishments across time periods must account for this collapse of distinctions.
The lawfulness-of-commitment element creates a recurring research trap. In historical sources, defendants occasionally succeeded in defeating prison breaking charges by challenging the validity of the underlying commitment — a defense not always available under modern consolidated escape statutes, which sometimes criminalize escape regardless of the lawfulness of detention. If you are tracing this defense lineage, Bouvier's entry is a starting point, but Bishop's Criminal Law (particularly the sections on escape and rescue) goes further.
The offense also intersects with conditions-of-confinement doctrine in a less obvious way: historical cases sometimes turned on whether the place of confinement was legally adequate, which foreshadows modern Eighth Amendment litigation over whether prisoners have enforceable rights against the conditions that might motivate escape.
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Historical Dictionary Support
Bouvier's entry is compact but precise. It correctly identifies the three operative requirements — lawful commitment, force and violence, and escape from custody — and draws the rescue distinction clearly. The citation to Bishop's Criminal Law (2 Bish. Cr. L. § 1065) and the reference to Coke ground the entry in reliable common law authority.
What Bouvier's entry does not address: the gradations of punishment as between prison breaking from different types of institutions (a gaol versus a house of correction, for example), the treatment of accomplices who assist in the breaking from inside the prison, or the question of whether the offense was a felony or misdemeanor depending on the underlying commitment. These distinctions appear in older English authorities and in some American treatise literature but were not standard dictionary fare.
Bouvier's silence on the force requirement's precise scope — whether words or threats suffice, or whether only physical force qualifies — reflects genuine historical ambiguity in the common law sources. Researchers should not read the definition as settling that question.
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Jurisdictional Note
Most American jurisdictions have replaced the common law offense with statutory escape provisions that do not always preserve the force requirement as an element distinguishing degrees of the offense. A few states retain force or threat of force as an aggravating element that elevates simple escape to a more serious charge. English law has similarly consolidated the offense. Researchers working with statutes should verify whether the jurisdiction's escape statute tracks the common law force requirement or has abandoned it.
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Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia — Breaking and Entering (criminal_64)
The Law Mind Criminal Law Encyclopedia — Eighth Amendment: Conditions of Confinement and Prisoners' Rights (criminal_193)
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