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1 W.4. c. $9. Chester, or within the principality of Wales, of any crime punish
able by death, if H. M. shall be pleased to extend mercy to any such offender
condition of imprisonment, or upon condition of imprisonment with hard labour, and such intention of mercy shall be signified by one of H. M.'s principal secretaries of state to the court before whom such offender hath been or shall be convicted, or any subsequent court with the like authority, such court shall allow to such offender the benefit of a conditional pardon, and make an order for the imprisonment of such offender, with or without hard labour, as the case may be; and, in case such intention of mercy shall be so signified to the judge or justice before whom such offender hath been or shall be convicted, or to any judge of H. M.'s court of K. B. or C. P., or to any baron of the exchequer of the degree of the coif, in England, such judge, justice, or baron shall allow to such offender the benefit of a conditional pardon, and make an order for such imprisonment of such offender, in the same manner as if such intention of mercy had been signified to the court during the term or session in or at which such offender was convicted; and such allowance and order shall be considered as an allowance and order made by the court before which such offender was convicted, and shall be entered on the records of the same court by the proper officer thereof
, and shall be as effectual, to all intents and purposes, and have the same consequences, as if such allowance and order had been made by the same court during the continuance thereof; and every such
order shall subject the offender to be so imprisoned." Power to ap- $8. "And whereas by the aforesaid act of the fifth year of H. M.'s point an assist- reign, power is given to H. M. to appoint a superintendant of ant or deputy places of confinement within England and Wales, and power also to the superin- to appoint one fit and able person to be assistant or deputy of tendant at places of con
such superintendant, at one or more of the same places of continefinement out of ment; and by the said act, power is also given to remove male England. offenders convicted in Great Britain, and being under sentence of
order of transportation, and to confine such offenders at land of on board any vessel to be provided by H. M. within the limits of any port or harbour in any part of H. M.'s dominions out of Eng. land named in any order in council, under the management of the said superintendant, and of an overseer to be appointed by H. M. for each such vessel or other place of confinement; and whereas it is expedient that power should be given to H. M. to appoint an assistant or deputy to the said superintendant, in any such part
of H. M.'s dominions out of England; be it therefore enacted, that it shall be lawful for H. M., in case it shall be deemed expedient, to appoint a fit and able person to be assistant or deputy to such superintendant, at any such place of confinement out of England named in any order in council as aforesaid, to be constantly resi.
dent at or near the place to which he shall be appointed." 2 & 3 W. 4. By 2 & 3 W. 4. c.62. (for abolishing the punishment of death, c. 62. § 2. in certain cases, and substituting a lesser punishment) it is enacted, No governor,
$ 2, that neither the governor nor lieutenant-governor of any &c. to remit island, colony, or settlement, or any other person, shall give any sentence till pardon or ticket of leave to any person sentenced to transportafter a certain ation, or who shall receive a pardon on condition of transportperiod of ser. vice,
ation, or any order or permission to suspend or remit the labour of any such person, except in cases of illness, until such person, if
transported for seven years, shall have served four ; if transported 2&3W.4. c.62. for fourteen years, shall have served six; or if transported for life, shall have served eight years of labour ; and that no such person Noright of proshall be capable of acquiring or holding any property, or of bring. perty, or of ing any action for the recovery of any property until after suing till after such person shall have duly obtained a pardon from the governor tained. or lieutenant-governor of the colony or settlement where he shall have been confined ; provided that nothing herein contained shall affect H. M.'s royal prerogative of mercy.
By 4 & 5 W. 4. c. 67., reciting part of 5 G. 4. c. 84. $ 22., it is 4 & 5 W. 4. enacted, That so much of the recited act as inflicts the punish- c. 67. ment of death upon persons convicted of any offence therein and So much of reherein-before specified shall be and the same is hereby repealed ;
cited act as inand that from and after the passing of this act every person con
flicts the pu
nishment of victed of any offence above specified in the said act of the fifth death for reyear of the reign of his late majesty king George the fourth, or turning from of aiding or abetting, counselling or procuring the commission transportation, thereof, shall be liable to be transported beyond the seas for his repealed. or her natural life, and previously to transportation shall be impri- substituted for soned, with or without hard labour, in any common gaol, house of such offence, or correction, prison, or penitentiary, for any term not exceeding four for aiding it. years.
By stat. 56 G. 3. c.63., which was passed for the purpose of 56 G. 3. c. 63. regulating the general penitentiary for convicts, erected at Mil. Convicts senbank, in the county of Middlesex, it is enacted (§ 13.) that, when tenced to transthe penitentiary shall be completed for the reception of convicts, under an order the king, by an order in writing, to be notified by the principal from the Home secretary of state for the home department, may direct that any Office, be conperson under sentence or order of transportation for any offence fined in the committed in England or Wales, and who, having been examined general peni. by an experienced surgeon or apothecary, shall appear to be free tentiary at Mill. from infectious distemper, and fit to be removed, shall be removed under 52 G. 3. to the penitentiary, there to continue for five years, in case such c. 44. convict shall be under sentence or order of transportation for seven years only; and for seven years, in case such convict shall be under such sentence or order for fourteen years; and for ten years, in case such convict shall be under such sentence or order for life. And certain regulations are made (§ 14.) as to the time of confinement in the penitentiary, where the convicts have, previously to their removal thither, been kept confined in some other prison, during a part of their term of transportation. The statute subsequently makes provision respecting such convicts breaking prison or escaping, and respecting persons rescuing, or attempting to rescue them, or supplying means of escape.
By $ 43. it is enacted, “ That if any convict who shall be or- Convicts condered to be confined in the said penitentiary, shall, at any time fined in the peduring the term of such confinement, break prison, or escape from nitentiary the place of his or her confinement, or in his or her conveyance or escaping, are
breaking prison to such place of confinement, or from the person or persons to be punished having the lawful custody of such convict, he or she so breaking by an addition prison or escaping, shall be punished by an addition of three years of three years to the term for which he or she, at the time of his or her breach to the term of of prison or escape, was subject to be confined ; and if such con- ment; and upon vici so punished by such addition to the term of confinement a second breach shall afterwards be convicted of a second escape or breach of of prison or 3 N 2
escape to be
56 G. 3. C. 63. prison, he or she shall be adjudged guilty of felony, without be.
nefit of clergy." guilty of felony By $ 44. it is enacted, “ That if any person shall rescue any without clergy. convict who shall be ordered to be confined within the said peniPersons rescuing or attempt
tentiary, either during the time of his or her conveyance to the ing to rescue
said penitentiary, or whilst such convict shall be in the custody convicts. of the person or persons under whose care and charge he or she Felony.
shall be so confined; or if any person shall be aiding or assisting in any such rescue, every such person so rescuing, aiding, or assisting, shall be guilty of felony, and may be ordered to be confined in the said penitentiary for any term not less than one year,
nor exceeding five years; and if any person having the custody mitting escape.
of any such convict as aforesaid, or being employed by the person having such custody as a keeper, under-keeper, turnkey, assistant,
or guard, shall voluntarily permit such convict to escape; or if Supplying
any person whatsoever shall, by supplying arms, tools, or instrumeansofescape.
ments of dis se, or otherwise, be in any manner aiding and assisting to any such convict in any escape, or in any attempt to make an escape, though no escape be actually made, or shall attempt to rescue any such convict, or be aiding and assisting in any such attempt, though no rescue be actually made, every such
person so permitting, attempting, aiding, or assisting, shall be Felony.
guilty of felony ; and if any person having such custody, or being so employed by the person having such custody as aforesaid,
shall negligently permit any such convict to escape, such person Misdemeanor.
so permitting shall be guilty of a misdemeanor, and, being lawPunishment. fully convicted of the same, shall be liable to fine or imprisonment,
or to both, at the discretion of the court.” Trial for such § 45. relates to the more ready and effectual trial and offences, either conviction of persons committing offences within the act; and where offender provides
, that any convict so escaping, breaking prison, or being or where offence rescued, may be tried either in the county where he shall be is committed. apprehended and retaken, or in the county in which the sad Evidence of the offence shall have been committed ; and enacts that, in case of any order of com- prosecution for such escape, attempt to escape, breach of prison, mitment to such or rescue, either against the convict escaping, or attempting to penitentiary. escape, or having broken prison, or being rescued, or against
any other person or persons concerned therein, or aiding, aberting, or assisting the same, a copy properly attested of the order of commitment to such penitentiary shall, (after proof made that the person then in question before the court is the same that was delivered with such order,) be sufficient evidence to the court and jury that the person then in question was so ordered to such
confinement. Mutiny Act, It is enacted, by the Mutiny Act (see 4 W. 4. c. 6. $ 7.), that 4 W. 4. c. 6. whensoever a general court-martial, by which any soldier shall Cases of trans- have been tried, shall not think the offence deserving of capital portation.
punishment, the court may, instead of awarding a corporal punishment or imprisonment, adjudge the offender, according to the degree of the offence, to be transported as a felon for life, or for a certain term of years. And it is also provided, that in all cases where a capital punishment shall have been awarded by a general court-martial, H. M., instead of causing such sentence to be carried into execution, may order the offender to be transported as a felon, either for life or for a certain term of years. 'And if any
person so transported as a felon, whether in pursuance of the ori. Returning or ginal sentence or in pursuance of such order from H. M., shall af- being at large
without leave. terwards return, or be found at large, without leave from H. M., or other lawful authority, within any part of H. M.'s dominions, abroad or at home (other than the place to which he shall have been transported), before the expiration of the term limited by such sentence or order, and shall be duly convicted thereof, he shall suffer death as a felon.
By $ 18., such sentence of transportation is to be notified in Mode of exewriting to a judge, who shall thereupon make an order for trans- cuting such portation, &c.; and the person so sentenced shall be subject to sentence. every provision made by law concerning persons sentenced to transportation, and also as to their escape, and as to persons aiding and abetting their escape; and the notification and order for transportation are to be filed in the court of K. B., and on application a certificate is to be delivered of the name of the offender, his offence, the place where he was convicted, and the conditions Proof of conon which the order of transportation was given, which certificate viction and senis to be evidence of the conviction and sentence, and also of the tence by certiterms of his transportation, in any court, or in any proceedings where such inquiry may be necessary.
Enactments of a similar nature are contained in the statutes So with the relating to the regulation of the royal marine forces while on marines. shore. See 4 W.4. c. 4. g 10. 17.
Upon the several statutes relating to the transportation of of. fenders, the following points have been resolved:
1st. That if an act of parliament direct that an offender shall Where an act be transported, without saying to what place, it shall be under- directs transa stood to the place where convicts are, at the time, legally trans- portation geported, as formerly to America, and now to Botany Bay. By all nerally. the judges on a case reserved by Mr. J. Bathurst. Vide 1 Haw. 7th edit. 407.
2d. That the daily book kept by the clerk of the papers of a Prison daypublic prison, in which all commitments and discharges are re- book kept by gistered, is good, and indeed the best evidence to prove the day the clerk of the from which the time of transportation takes place. The clerk papers, eviof the papers is a public officer of the prison, and the law reposes the time at such a confidence in public officers, that it presumes they will dis- which the transcharge their several trusts with accuracy and fidelity; and there- portation before whatever acts they do in discharge of their public duty may
gins. be given in evidence, and shall be taken to be true, under such a degree of caution as the nature and circumstances of each case may appear to require, except the falsity of them can be made to appear; for eyery presumption may be repelled by contrary evilence; but unless the truth of the entries in question be impeached hey are admissible evidence. R. v. Aickle, O. B. Sept. Sess. 1785, | Leach, 390. 1 Russ. 403.
3d. That if a convict, on his trial for returning from trans. Identity on reortation before his time was expired, confess the fact, and ac
transportation knowledge that he is the man, the court will record such con.
before term exession, but that otherwise the record of the conviction must be pired. oduced, and evidence given of his identity. 0. B. 1785, 1 Haw. th edit. p. 408. A certificate of conviction is now sufficient. See - G. 4. c. 84. $ 24. antè, p. 909.
Sign-manual 4th. That if a convict be sentenced to transportation for seven promising a years, and receive a sign manual promising him a pardon upon pardon on con
condition of his giving security to leave the kingdom within fourdition of leaving the king
teen days from the date thereof, and not to return again for the dom for seven space of seven years, and on his giving such security is discharged
from prison, but neglect to transport himself within the fourteen days, he cannot be indicted for being unlawfully found at large before the term for which he received sentence of transporta. tion had expired; for the sign-manual and the recognizance entered into in consequence of it are good evidence that he was lawfully at large, although he had not substantially performed the condition on which the promise of pardon was granted. In this case the prisoner was referred to his original sentence of transportation. Maximilian Miller's case, 0. B. Jan. Sess. 1771, 1 Leach, 74. See Hawk. c. 58. $ 5. n. (4); and see Aickle's Ca.
S. P. 1 Russ. 404., and n. (d) ib. Being at large 5th. That a prisoner convicted of a capital crime, whose senin G. B. after tence is respited during the king's pleasure, and who, on having
received a pardon on condition of transportation for life, is after. death, comwards found at large in G. B. without larful cause, shall
, on muted for transportation
his being indicted for returning from transportation and acquitted, for lite. be referred back to his original sentence. R. v. Patrick Vadas,
0. B. Dec. Sess. 1780, 1 Leach, 223. See S. C. 1 Russ. &; n. (al ib. Passing second It is also decided that sentence of transportation may be 3 sentence of second time passed upon a prisoner, although the time for which transportation. he before received sentence of transportation be unexpired. A.5.
Bath and others, O. B. Feb. Sess. 1787, 1 Leach, 441. Indictment for Where the prisoner was indicted for being at large after being at large, sentence of transportation for seven years, under 56 G. 3. c.97: and certificate (now expired), which provided that a certificate in writing, signed of former conviction qu.? of
by the officer of the court, containing the effect and substance sufficiency
only (omitting the formal part) of the indictment and conviction and order for transportation, shall be sufficient evidence of his conviction and sentence (which terms are similar to those used for the same purpose in 5 G. 4. c. 84. § 24.); and the indictment stated that the prisoner had been convicted of felony without stating the nature of the felony, and the certificate given as evidence of the conviction stated only that the prisoner had been 'convicted of felony, it was held on case reserved that the indictment and certificate were insufficient, for that they ought to have stated the nature of the felony ; and the prisoner was remitted to his formet sentence. M. T. 1821, R. v. Watson, C. C. R. 468. See k.F.
Sutcliffe, Acc. ib. 469. n. Indictment for The prisoner was tried and convicted for being at large after an being at large order for his transportation ; the indictment stated his having been
capitally convicted, and that he was pardoned on condition of rectly the sentence of trans- being transported for life to some parts beyond the seas. It ap. porlation. peared, however, in evidence, that the condition of the pardon
was that he should be transported to New South Wales, or some of the islands adjacent. On case reserved, this was held to be a fatal variance, and that the conviction was wrong. R. v. Fitzpa
trick, C. C. R. 512. Lawful excuse Where a prisoner had been pardoned on condition of transport
: as to convict not transporting
ing himself beyond the seas within fourteen days from the day of
must state cor