liberty, or shall be otherwise disposed of by order of the secretary of state. But great difficulty having arisen, of late years, in finding colonies willing to receive transported convicts, it became gradually the practice, as to certain classes of convicts who had been sentenced to transportation, to detain them in the mother-country, for the whole period of their term of punishment (1); and it was ultimately thought expedient to abolish the sentence of transportation" altogether, and to substitute for it that of" penal servitude," under which convicts may be subjected to such confinement and discipline (either at home or abroad) as shall be found practicable and desirable. 66 This change was accordingly carried into effect by 16 & 17 Vict. c. 99, and 20 & 21 Vict. c. 3; by the latter of which Acts, after providing that no person shall for the future be sentenced to transportation, it is enacted that any persons who, if those Acts had not passed, might have been sentenced to transportation, shall be liable to be sentenced to be kept in penal servitude for a term of the same duration; and that where the court before which the offender shall be convicted, would formerly have had discretion to award one of any two or more terms of transportation, it shall now have the like discretion to award one of any two or more of the terms of penal servitude authorized to be awarded, instead of transportation: and further, that any person who might have been sentenced either to transportation or imprisonment, may sentenced either to penal servitude or to imprisonment; that where seven years' transportation might have been awarded, the court may award penal servitude for not less than three years;-and that where, in any enactment still in force, the expression "any crime punishable with transportation," or "any crime punishable by law with (1) See the Evidence of Mr. on Transportation. (Second Report, Waddington, before the select comp. 3.) mittee of the House of Commons, be transportation," or any expression of the like import, is used, the enactment shall be construed and take effect as applicable also to any offence punishable with penal servitude (m). The same Acts also provide, that every person sentenced to be kept in penal servitude may be confined in any prison or place of confinement in any part of the united kingdom, or in any river, port, or harbour thereof, -or in any part of her Majesty's dominions beyond the seas, or in any ports or harbours thereof, duly appointed for such purpose by order in Council,-as one of her Majesty's principal secretaries shall from time to time direct; and may be kept to hard labour and otherwise dealt with, as persons sentenced to transportation might formerly be dealt with while so confined (n). By the said Acts it is further provided, that it shall be lawful for her Majesty, by order in writing, under the hand and seal of a principal secretary of state, to grant to any convict sentenced to be kept in penal servitude, or to be imprisoned, a licence to be at large (o) in the united kingdom and the channel islands, or in such part thereof respectively as shall be expressed in the licence, during (m) 20 & 21 Vict. c. 3, s. 6. (n) 16 & 17 Vict. c. 99, s. 6; 20 & 21 Vict. c. 3, s. 3. The convict prisons in England are specified, sup. vol. 1. p. 240, n. (g). As to the convict establishments at Bermuda or Gibraltar, or other places beyond seas, see 22 Vict. c. 25. By the Report of the Directors of Convict Prisons (1862), it appears that during the year 1861, 225 convicts in confinement in England under sentence of penal servitude, were removed to Western Australia, and 304 to Gibraltar (pp. 122, 164, 241). (0) 16 & 17 Vict. c. 99, s. 9; 20 & 21 Vict. c. 3, s. 5. Under the authority of a circular from the secretary of state, dated 27 June, But such portion of his term, and on such conditions in all respects, as to her Majesty shall seem fit (n); and that such licence may be revoked or altered at pleasure; and that if revoked the convict may be forthwith apprehended, and recommitted to the prison from which he was released by virtue of his licence, or to any other prison in which convicts under sentence of penal servitude may be lawfully confined (o). Moreover, persons under sentence of penal servitude may be removed from the prisons in which they are severally confined, to any other prison or penitentiary in Great Britain, there to be confined for such time as her Majesty, by order in writing from a principal secretary of state, shall direct, not exceeding the time for which they might have been lawfully confined in the prisons from which they shall have been severally removed (p). When sentence of death, the most terrible judgment in the laws of England, is pronounced, the mode in which it is to take place is particularized in the sentence itself, and is always that the prisoner be hanged by the neck till dead (q); a mode of capital punishment that has been in use in this country from time immemorial (r). (n) 16 & 17 Vict. c. 99, s. 9. As to the power of felons holding licences to be at large, or "tickets of leave," to acquire personal property, but not, in general, lands, see 5 Geo. 4, c. 84, s. 26; 6 & 7 Vict. c. 7; 20 & 21 Vict. c. 3. See also on this subject, Bullock v. Dodds, 2 B. & Ald. 258. (0) 16 & 17 Vict. c. 99, ss. 10, 11; 20 & 21 Vict. c. 3, s. 5. (p) 10 & 11 Vict. c. 67; 16 & 17 Vict. c. 99, s. 7. (q) 2 Hale, P. C. P. C. b. 2, c. 48, s. 7. the universal mode. 399; Hawk. In treason, however, as we have seen (vide sup. p. 247), it is accompanied with other severities; and the case was formerly the same with murder (as to which, vide sup. p. 158). Nor did hanging in former times always form part of the sentence. For when a woman was convicted of treason, or petit treason, the sentence was that of being burned to death (vide sup. p. 161). And the judgment for counterfeiting the coin of this kingdom or the Great Seal, in the case of females, was, at one time, to be drawn and burnt; and, in the case of a male offender, to be drawn and hanged. (1 Hale, P. C. 351.) (r) Lord Coke says that before the reign of Henry the first, the judgment for felony was not always one; but that monarch ordained in Upon the passing of this sentence [the immediate inseparable consequence from the common law, is attainder (s). For when it is now clear beyond all dispute that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster, and a bane to human society, the law sets a note of infamy upon him;] calls him [attaint, attinctus, stained or blackened ;] withdraws from him in general all civil rights; and considers him, [by an anticipation of his punishment,] as [already dead in law (t). This is after judgment; for there is great difference between a man convicted and attainted-though they are frequently through inaccuracy confounded together. After conviction only, a man is liable to none of these disabilities; for there is still, in contemplation of law, a possibility of his innocence,] as something may be offered in arrest of judgment. [But when judgment is once pronounced, both law and fact conspire to prove him completely guilty; and there is not the remotest possibility left of anything to be said in his favour. Upon judgment therefore of death, and not before, the attainder of a criminal commences (u): -or upon such circumstances as are equivalent to judgment of death,-as judgment of outlawry on a capital crime, pronounced for absconding or fleeing from justice; which tacitly confesses the guilt. And, therefore, either upon judgment of outlawry, or of death, for treason or felony, a man shall be said to be attainted.] Among [the consequences of attainder are forfeiture and corruption of blood.] I. Forfeiture of lands and tenements upon attainder, accrues in treason and other felonies (x). First as to treason. [By attainder in treason a man forfeits for ever to the Crown all his lands and tenements of inheritance,] of parliament, that it should be "to be hanged," as above, for all manner of felonies. (3 Inst. 53.) (s) See as to this, sup. vol. 1. p. 444 et sup. (t) 3 Inst. 213. (u) R. v. Bridger, 1 Mee. & W. 145. (x) Vide sup. vol. 1. p. 447. freehold tenure, [whether fee simple or fee tail (z); and all his rights of entry on lands and tenements,] of such tenure, [which he had, at the time of the offence committed, or at any time afterwards, to be for ever vested in the Crown; and also the profits of all land and tenements] of such tenure, [which he had in his own right for life or years, so long as such interest shall subsist (a). This forfeiture relates backwards to the time of the treason committed: so as to avoid all intermediate sales and incumbrances, but not those before the fact (b); and therefore a wife's jointure is not forfeitable for the treason of her husband, because settled on her previous to the treason committed; but her dower is forfeited by the express provision of statute 5 & 6 Edw. VI. c. 11 (c). And yet the husband shall be tenant by the curtesy of the wife's lands, if the wife be attainted of treason (d); for that is not prohibited by the statute. But though after attainder the forfeiture relates back to the time of the treason committed, yet it does not take effect unless an attainder be had, of which it is one of the fruits: and therefore if a traitor dies before judgment pronounced, or is killed in open rebellion, or is hanged by martial law, it works no forfeiture of his lands, for he never was attainted of treason (e). But if the chief justice of the king's bench, (the supreme coroner of all England,) in person, upon the view of the (z) Copyhold estates, by attainder either on treason or felony, are forfeited to the lord of the manor, and not to the Crown, except by the express words of an act of parliament. (2 Vent. 39; Hard. 431; 2 Jon. 189; Pol. 621; Skin. 8.) (a) Co. Litt. 392; 3 Inst. 19; 1 Hale, P. C. 240; Hawk. P. C. b. 2, c. 49. As to the effect of the attainder of trustees or mortgagees in respect of the property vested in them, vide sup. vol. 1. p. 451. |