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CHAPTER THE THIRTY-FIFTH.

OF RETURNING, OR BEING AT LARGE, AFTER SENTENCE OF TRANS

PORTATION; AND OF RESCUING OR AIDING THE ESCAPE OF A
PERSON UNDER SUCH SENTENCE.

statu

common law

As exile or transportation is a species of punishment unknown to Offences by the common law of England, and inflicted only under the sanctions

"assisting a feof enactments of the Legislature, offences committed by not sub- lon senienced mitting to that punishment are principally dependent upon the to be trans

deaf ported to égprovisions of particular statutes.(a) But as a party convicted of

cape, makes felony within benefit of clergy, and sentenced to be transported for the party an seven years, continues a felon, till actual transportation and ser- accessory after

the fact at vice, pursuant to the sentence; and as it is felony at common law to assist a felon to escape out of lawful custody; it has been holden that, independently of any statutable enactments, a person assisting such felon convict, being in custody under sentence of transportation, to escape out of prison, is an accessory to the fe. lony after the fact; provided it be such an assistance as in law amounts to a receiving, harbouring, or comforting such felon.(b)

The statute 5 Geo. 4. c. 84. s. 1. recites that the several laws in 5 Geo. 4. c. 84. force for regulating the transportation of offenders from Great By s. 1. all perBritain, would expire at the end of the then present session of par- sons senten

ior ordered for liament; and, that it was expedient that the laws relative to that transportation subject should be revised, and consolidated into one act; and then are to be placed enacts, that the act shall take effect on the last day of that present in

visions of this session of Parliament; and that on and from that day, all things act. remaining to be done, touching the punishment, imprisonment, correction, removal, transportation, discipline, employment, diet, and clothing of persons sentenced or ordered to transportation or banishment from any part of Great Britain, under any acts theretofore or then in force, or pardoned on condition of being trans

TO

(a) In 6 Ev. Col. Stat. Part V. Cl. the privy council, or otherwise adxxv.(G) p. 852, 853. the learned editor judged perpetually to the gallies of says, that the earliest act which im- this realm; and any rogue so banished, posed the punishment of transporta- and returning again into the realm, tion was 39 Eliz. c. 4. which enacted was to be guilty of felony. And he that rogues, vagabonds, &c. might, by says that the earliest statute then subthe justices in sessions, be banished out sisting which notices the power of of the realm, and conveyed at the transporlation was 22 Car. 2. c. 5., charges of the county to such parts be- (0)' Rex v. Burridge, M. T. 1735. yond the seas as should be assigned by 3 P. Wms. 439. Ante, 385...

court.

ported under any such acts, shall be continued, done, and completed, under the provisions of that act; and that all sentences and orders for transportation, all orders in council and other orders, warrants, instructions, directions, appointments, authorities, contracts and securities, made, issued, or given under any of the said acts, and in force at the time of the commencement of that act, should continue in force under and by virtue of that act, unless

and until they should be revoked or superseded. S. 2. Offenders

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The secon

The second section enacts, “ that from and after the commenceadjudged for

on « ment of this act, every person convicted before any court of comare to be trans- “ petent jurisdiction in Great Britain, of any offence for which he ported under the provisions

« or she shall be liable to be transported or banished, shall be adof this act.

“ judged and ordered to be transported or banished beyond the And also of “ seas, for the term of life or years for which such offender shall ing a condic

.“ be liable by any law to be transported or banished; and every tional pardon, “ sentence of transportation or banishment passed or to be passed concerning “ on any offender, in any court of competent jurisdiction in Great whom an al

“ Britain, and every order for transportation or banishment made lowance and order may be 6 or to be made in pursuance of the sentence of any such court or inade by a " other competent authority, shall subject the offender to be consubsequent

“ veyed beyond the seas, under the provisions of this act; and
“ whenever His Majesty shall be pleased to extend mercy to any
“ offender convicted of any crime for which he or she is or shall be
“ excluded from the benefit of clergy, upon condition of trans-
“ portation beyond the seas, either for the term of life, or any
“ number of years, and such intention of mercy shall be signified
" by one of his Majesty's principal secretaries of state to the court
“ before which such offender hath been or shall be convicted, or
“ any subsequent court with the like authority, such court shall
" allow to such öffender the benefit of a conditional pardon, and
“ make an order for the immediate transportation of such offender;
“ 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 his Majesty's court of King's
“ Bench or Common Pleas, 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 the immediate transportation 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 en-
“ tered 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 conséquences, as if such allowance and order had
“ been made by the same court during the continuance thereof;
“ and every such order, and also every order made by the court of
“Justiciary in Scotland for the transportation of any offender,
“ whose sentence of death shall be remitted by bis Majesty, shall
“ subject the offender to be conveyed beyond the seas, under the

« provisions of this act.”
S. 3. Places of frie third section enact

The third section enacts, “ that it shall be lawful for his Matransportation

persons to

ment in Eng

“ jesty, by and with the advice of his privy council, from time to to be appoint“ time, to appoint any place or places beyond the seas, either with

i jesty. And a se“ in or without his Majesty's dominions, to which felons and cretary of state “ other offenders under sentence or order of transportation or ba- may authorize “ nishment shall be conveyed; and that when any offenders shall P

make contracts “ be about to be transported or banished from Great Britain, one for transportaof his Majesty's principal secretaries of state shall give orders tion. “ for their removal to the ship to be employed for their transport“ ation, and shall authorise and empower some person to make a “ contract for their effectual transportation to some of the places “ so appointed, and shall direct security to be given for their “ effectual transportation, in the manner hereinafter mentioned.”

Provision is then made for the delivery of offenders ordered to be transported to the contractors by the sheriff or gaoler, and for the giving of proper security by the contractors for their effectual transportation (except when such offenders are transported in King's ships). (a) Authority is then given to punish such offenders misbehaving themselves upon the voyage;(b) and a property in their services during the term of transportation is vested in the governor of the colony, &c. and his assignees.(c) The tenth section enacts, “ that it shall be lawful for his Majesty S. 10. Places

of confine“ from time to time, by warrant under his royal sign manual, to ap“ point places of confinement within England or Wales, either at land may be “ land, or on board vessels to be provided by his Majesty in the appointed by

his Majesty. “ river Thames, or some other river, or within the limits of some “port or harbour of England or Wales, for the confinement of “male offenders under sentence or order of transportation, which “ shall be under the management of a superintendant and overseer, “s to be appointed by his Majesty; and that it shall be lawful for “ one of his Majesty's principal secretaries of state to direct the “ removal of any male offender who shall be under sentence “ of death, but who shall be reprieved, or whose sentence shall be “ respited during his Majesty's pleasure, or who shall be under “ sentence or order of transportation, and who, having been exa“ mined by an experienced surgeon or apothecary, shall appear to “ be free from any putrid or infectious distemper, and fit to be re“ moved from the gaol or prison in which such offender shall “ be confined, to any of the places of confinement so appointed; “ and every offender who shall be so removed shall continue in the “said place of confinement, or be removed to and confined in some “ other such place or places as aforesaid, as one of His Majesty's “ principal secretaries of state shall from time to time direct, until “ such offender shall be transported according to law, or shall be“come entitled to his liberty, or until one of His Majesty's prin“ cipal secretaries of state shall direct the return of such offender “ to the gaol or prison from which he shall have been removed ; " and the sheriff or gaoler having the custody of any offender whose “ removal shall be ordered in manner aforesaid, shall with all con“ venient speed, after the receipt of any such order, convey or “ cause to be conveyed every such offender to the place appointed,

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" and there deliver him to such superintendant or overseer, toge-
“ ther with a true copy, attested by such sheriff or gaoler, of the
“ caption and order of the court by which such offender was sen-
“ tenced or ordered for transportation, containing the sentence or
" order of transportation of each such offender, by virtue whereof
“ he shall be in the custody of such sheriff or gaoler; and also a
“ certificate, specifying concisely the description of his crime, his
“ age, whether married or unmarried, his trade or profession, and
“ an account of his behaviour in prison before and after his trial,
“ and the gaoler's observations on his temper and disposition, and
- such information concerning his connexions and former course
“ of life as may have come to the gaoler's knowledge; and such
« superintendant or overseer shall give a receipt in writing to the
“sheriff or gaoler for the discharge of such sheriff or gaoler.”

The act then authorizes his Majesty to appoint a superintendant, an assistant to the superintendant, and an overseer for such places of confinement; specifies the duties of the superintendant; and contains regulations for the cleansing, purifying, and clothing,

the offenders brought to such places.(d) S. 13. His Ma. The thirteenth section enacts “ that it shall be lawful for his jesty in coun-' “ Majesty, by any order or orders in council, to declare his royal cil may direct“ will and pleasure, that male offenders convicted in Great Britain, convicts to be emploved in “ and being under sentence or order of transportation, shall be any part of his “ kept to labour in any part of his Majesty's dominions out of

ions out « England, to be named in such order or orders in council; and of England, under the ma- “ that whenever his Majesty's will and pleasure shall be so denagement of a " clared in council, it shall be lawful for one of his Majesty's superintend

“ principal secretaries of state to direct the removal and confineant, &c.

a ment of any such male offender, either at land or on board any “ vessel to be provided by his Majesty, within the limits of any « port or harbour in that part of his Majesty's dominions which « shall be named in such order in council, under the management “ of the said superintendant, and of an overseer to be appointed “ by his Majesty for each such vessel or other place of confine“ment; and that every offender who shall be so removed shall « continue on board the vessel or other place of confinement to be “ so provided, or any similar vessel or other place of confinement “ to be from time to time provided by his Majesty, until his Ma“ jesty shall otherwise direct, or until the offender shall be entitled

“ to his liberty." S. 15. Declares The fifteenth section enacts“ that, after the removal of any the power and « offender under this act, the superintendant and overseer, who duties of the so superintendant

endant “ shall have the custody of him, shall, during the term of such and overseer. “custody, have the same powers over him as are incident to the

“ office of a sheriff or gaoler, and shall in like manner be answer« able for any escape of such offender; and if any offender shall “ during such custody be guilty of any misbehaviour or disorderly “ conduct, the superintendant or overseer shall be authorized to “ inflict or cause to be inflicted on him such moderate punishment “ or correction as shall be allowed by one of his Majesty's princi“ pal secretaries of state; and such superintendant or overseer “ shall also, during such custody, see every offender fed and

(d) s. 11, 12

“ clothed according to a scale of diet and clothing to be fixed on
“ and notified in writing by one of his majesty's principal secreta-
“ ries of state to the superintendant; and shall keep such offender
“ to labour at such places, and under such regulations, directions,
“ limitations, and restrictions, as by such secretary of state shall
« from time to time be prescribed; and in case of the absence of

any such superintendant or overseer, or of the vacancy of his “ office, his duties or powers shall be discharged and exercised in “ all respects by the officer or person on whom the command of “ the place of confinement shall devolve.” The superintendant is also empowered to act as a justice of the peace.(e)

The seventeenth section enacts “ that whenever any convict ad- S. 17. Convicts, “judged to transportation by any court or judge, in any part of a

of adjudged by

courts out of “ his majesty's dominions not within the united kingdom, or any the united “ convict adjudged to suffer death by any such court or judge, and kingdom to “ pardoned on condition of transportation, has been or shall be

transportation,

and convicts “ brought to England in order to be transported, it shall and may pardoned on “ be lawful to imprison any such offender in any place of confine condition of 6 ment provided under the authority of this act, until such convict

transportation,

may, when “ shall be transported, or shall become entitled to his liberty; and brought to " that so soon as every such convict shall be so imprisoned, all the to England, be

imprisoned “ provisions, rules, regulations, clauses, authorities, powers, pe- and transport“ nalties, matters and things aforesaid, concerning the safe cus- ed. “ tody, confinement, treatment, and transportation, of any offender “ convicted in Great Britain, shall extend and be construed to ex“ tend to every convict who may have been or may be hereafter “ adjudged to transportation, by any court or judge in any part of “his Majesty's dominions not within the united kingdom, and to “every convict adjudged by any such court or judge to suffer “ death, and pardoned on condition of transportation, and brought 6 to England in order to be transported, as fully and effectually to “ all intents and purposes, as if such convict had been convicted “ and sentenced at any session of gaol delivery holden for any “ county within England.”

It is then provided, that it shall be lawful to keep to hard labour every offender under sentence or order of transportation, while he or she shall remain in the common gaol, if his or her health will permit; and if one or more of the visiting justices shall give a written order to that effect; and that it shall be lawful for one of his majesty's principal secretaries of state, if he shall think fit, to order that any such offender be removed from the common gaol to the house of correction, and there kept to hard labour.(f) And the time during which any offender shall continue in any gaol or house of correction, or in any such place of confinement as aforesaid, under sentence or order of transportation, is to be reckoned in discharge or part discharge of the term of transportation or banishment.(g) Provision is then made for the secure removal of offenders through any county to the seaports or places of confinement, and for the payment of the expenses of removal by the county in which the conviction took place.(h) The twenty-second section enacts “ that if any offender who s.22. Offenders

ordered to be (e) S. 16.

(8) S. 19. U S. 18.

(h) S. 20, 21.

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