The counsel for the defendant endeavors to distinguish this case from those cited. Where the keeper, a female, married her prisoner, and where the office of keeper devolved on a prisoner who was and remained in fetters; where the coroner delivered the sheriff whom he had arrested to the sheriff's deputy, the jailer, it was deemed an escape in the coroner, because in all these cases there was no keeper, for a prisoner cannot be his own keeper. In the present case he says that the sheriff remained still the keeper, although he gave to the prisoner the keys of the jail; and there being in fact no departure out of the walls of the prison, there was, in law, no escape, and that physical restraint is not necessary; that moral restraint, or what is the same thing, I think, voluntary restraint, is sufficient; and he assimilates this case to one where there is no jail provided by law, (217) or before any jail was pointed out by law as a place of confinement, when the sheriff himself was bound to find a jail, and such jail was weak and insufficient to retain the prisoner, yet the prisoner remained within the walls of the prison, it was deemed not an escape; and he said that the only test of confinement was the remaining within the walls of the prison. I think if this argument is pushed to the proper extent, it will show the incorrectness of the conclusion. There can be no confinement without a keeper, and a prisoner cannot be his own keeper; therefore, if his imprisonment is voluntary, if he is considered as being in confinement, it is under his own keeping, and such confinement is not imprisonment. The cases of the prisoner marrying his keeper, and the office of keeper descending on a person who was and continued in prison and in fetters, show that confinement alone will not do. It must be involuntary confinement, and that under a keeper; for the necessity of there being a keeper shows that confinement from a person's own will is not sufficient. Nor is it material whether this confinement arises from a prospect of benefit, a sense of duty arising from a disposition to submit to the law, or from a promise made to the keeper, or from any other cause than that of physical force. It is true, if the prison is broke open and a prisoner remains in the jail through choice, the sheriff cannot be charged with the escape, for the opening has not been by his consent; he has not abandoned the prisoner to his own will. Nor is this like the case to which it has been compared where the jail was weak and might have been broke from by the prisoner. It was closed and was effectual to the end designed, and an allegation that it was insufficient will not be heard. It is like a legal presumption which cannot be contradicted. How unlike this case. Here is no attempt at confinement or restraint; the remaining in the jail was purely voluntary; the keys were delivered to the prisoner, and he opened and shut the door at his own pleasure. *Page 117 As Chief Justice Parsons says, free agency is inconsistent with (218) imprisonment. It is designed to make dishonest men pay their debts — men who are able, but not willing to do so. Take away the idea of restraint, and you take with it half its bitterness.