Locke v. Dane

The statute of 1808, c. 92, and 1809, c. 33, are not liable to the objections that they were ex post facto laws, or that they impaired the obligation of contracts.

The action was debt on a bond given to obtain the liberty of the yard for William Dane, then a prisoner in the jail in Concord in this county. Issue was taken on the question, whether he did or did not escape. This issue was tried at the sittings here after October term, 1809, when a verdict was found for the plaintiff, subject to the opinion of the Court on the following case stated by the parties. The bond declared on was duly executed, with the condition in form by law prescribed. The said Dane was afterwards lawfully discharged from prison on taking the poor debtor’s oath. On a lot of land owned by the county, and on which was a dwelling-house, which for more than twenty years had been accu pied as a tavern, the county erected a stone jail near to the said tavern, with suitable apartments for debtors, * distinct from felons and other criminals. In November, 1789, the Court of Sessions passed an order that the said jail be recognized and considered as a public prison; and at the same time ascertained the limits of the yard belonging thereto, which included several highways, sundry parcels of land and dwelling-houses belonging to private persons, among which were the field and dwelling-house of Dr. Hurd, hereafter mentioned, and 'he northern half from top to bottom, and the bar-room of the said tav ern ; but debtors entitled to the liberty of the yard were to have no liberty to commit any kind of trespass, nor to enter any dwelling-house within the said limits, except the northern half and the barroom of the said tavern. In September, 1790, the Sessions made new limits for the said yard, which included all the houses and. lands within the former limits, and further extending the same, with a proviso that no debtor entitled to the liberty of the yard should be understood to obtain liberty to commit any trespass or to enter any dwelling-house within the said new limits; except that they might enter the said tavern-house, in which they might pass to any part of it with permission of the jail-keeper, except certain rooms and chambers on the southerly side thereof, which they might not enter. In March, 1796, the Sessions passed a new order, further enlarging the said limits, and including the whole of the said tavern-house, without making any exceptions as to trespasses, or as to entering any dwelling-houses, or the said tavern-house. Long after the passing of this last order, and after the execution of the said bond, and before the said discharge of the said Dane, he entered in the daytime into the said dwelling-house of the said Dr. Hurd,, and into his said field, he consenting to it. He also lodged in the nighttime in a chamber in the northern half of the said tavern-house, which had from time to time been occupied as an apartment for debtors having liberty of the yard; and he frequently was in the kitchen of the said tavern-house, and also out of the said house in the street, but * within the said limits, after sunset and before the end of twilight. Upon this case the parties proposed to submit three questions :—■ 1. Whether a prisoner, having the liberty of the yard, is lawfully entitled to use it after sunset and before the end of twilight. 2. Whether such prisoners can, without escaping, go on the soil and into the dwelling-house of a private person with his consent, the same being w'ithin the external boundary or limits of the yard ; and, 3. Whether there are any apartments belonging to the prison. without the limits of the said stone jail, in which debtors having the liberty of the yard may lodge during the night without committing an escape. And it was agreed that, if, upon the foregoing facts, the Court should be of opinion that the said Dane committed an escape, the verdict should stand ; otherwise the verdict was to be set aside, and a verdict entered for the defendants, that the said Dane did not commit an escape: and that judgment should, in either case, be rendered accordingly. The cause was argued, October term, 1810, by the plaintiff, one of the counsellors at the bar of the Court, and by Ward and Stearns for the defendants.