transported, &c. and being afterwards at large, without lawful cause, made liable to capital punish ment. And may be tried where ap prehended, or where they were ordered to be transported. Persons rescuing or attempting to rescue, &c., such offenders punishable as if such offenders had been con fined in a gaol or prison. Reward upon conviction of offenders found at large. S. 23. Form of indictment against of fenders found at large, and against persons rescuing, &c. S.24. Evidence by certificate of the clerk of the court, &c. of the conviction and sentence. "shall have been or shall be so sentenced or ordered to be transported or banished, or who shall have agreed or shall agree to transport or banish himself or herself on certain conditions, "either for life or any number of years, under the provisions of "this or any former act, shall be afterwards at large within any part of his majesty's dominions, without some lawful cause, be"fore the expiration of the term for which such offender shall "have been sentenced or ordered to be transported or banished, 66 or shall have so agreed to transport or banish himself or herself, 66 every such offender so being at large, being thereof lawfully con"victed, shall suffer death, as in cases of felony, without the bene"fit of clergy; and such offender may be tried either in the county or place where he or she shall be apprehended, or in that from "whence he or she was ordered to be transported or banished; "and if any person shall rescue, or attempt to rescue, or assist in 66 rescuing or attempting to rescue, any such offender from the "custody of such superintendant or overseer, or of any sheriff or gaoler, or other person conveying, removing, transporting or reconveying him or her, or shall convey, or cause to be conveyed 66 any disguise, instrument for effecting escape, or arms, to such "offender, every such offence shall be punishable in the same "manner as if such offender had been confined in a gaol or prison, "in the custody of the sheriff or gaoler, for the crime of which such offender shall have been convicted; and whoever shall "discover and prosecute to conviction any such offender so being "at large within this kingdom, shall be entitled to a reward of "twenty pounds for every such offender so convicted." 66 The 23d section enacts, "that in any indictment against any "offender for being found at large, contrary to the provisions of "this or of any other act now made, or hereafter to be made; and "also in any indictment against any person who shall rescue, or attempt to rescue, or assist in rescuing, any such offender from "such custody, or who shall convey, or cause to be conveyed, any "disguise, instrument for effecting escape, or arms, to any such "offender, contrary to the provisions of this or of any other act 66 now made, or hereafter to be made, whether such offender shall "have been tried before any court or Judge, within or without "the united kingdom, or before any naval or military court-mar"tial, it shall be sufficient to charge and allege the order made "for the transportation or banishment of such offender, without charging or alleging any indictment, trial, conviction, judgment, 66 or sentence, or any pardon or intention of mercy, or significa❝tion thereof, of or against, or in any manner relating to such "offender." The 24th section enacts," that the clerk of the court or other "officer having the custody of the records of the court where such "sentence or order of transportation or banishment shall have "been passed or made, shall, at the request of any person on his "majesty's behalf, make out and give a certificate in writing, "signed by him, containing the effect and substance only (a) "(omitting the formal part) of every indictment and conviction of (a) See Rex v. Watson, ante, 368. "such offender, and of the sentence or order for his or her trans"portation or banishment, (not taking for the same more than "six shillings and eightpence), which certiñcate shall be sufficient "evidence of the conviction and sentence, or order for the trans66 portation or banishment of such offender; and every such certificate, if made by the clerk or officer of any court in Great Bri"tain, shall be received in evidence, upon proof of the signature "and official character of the person signing the same; and every "such certificate, if made by the clerk or officer of any court out "of Great Britain, shall be received in evidence, if verified by the "seal of the court, or by the signature of the Judge, or one of the "Judges of the court, without further proof." is not to extend to persons banished under 60 G. 3. and 1 The 25th section enacts," that nothing in this act contained S. 25. The act respecting offenders under sentence or order of banishment, "shall apply to persons adjudged to be banished, under and by "virtue of an act passed in the sixtieth year of his late majesty's reign, intituled, An act for the more effectual prevention and 66 punishment of blasphemous and seditious libels.' The 56 G. 3. c. 63., and the 59 G. 3. c. 136. were passed for the purpose of regulating the general Penitentiary for convicts, erected (n) at Millbank, in the county of Middlesex, and authorize the confinement of certain convicts sentenced to transportation in that place; and contain certain provisions respecting such convicts breaking prison or escaping, or attempting to break prison, &c., and respecting persons rescuing, or attempting to rescue them, or supplying means of escape. G. 4. c. 8. confined in the son or escaping, are to be punished by an addition to the term of their confinement; and, upon a se The latter statute repealing s. 43 of the 56 G. 3. c. 63. enacts, 59 G. 3. c. 113. "that if any convict, who shall be ordered to be confined in the s. 17. Convicts "said Penitentiary, shall, at any time during the term of such Penitentiary "confinement, break prison, or escape from the place of his or her breaking pri"confinement, or in his or her conveyance to such place of con"finement, or from the person or persons having the lawful cus"tody of such convict, he or she so breaking prison or escaping "shall be punished by an addition not exceeding three years to "the term for which he or she, at the time of his or her breach "of prison or escape, was subject to be confined; and if such "convict so punished by such addition to the term of confinement "shall afterwards be convicted of a second escape or breach of "prison, he or she shall be adjudged guilty of felony, without be"nefit of clergy." And it further enacts, "that if any convict "who shall be ordered to be confined in the said Penitentiary, "shall at any time during the term of such confinement attempt to break prison, or escape from the place of his or her confine"ment, or shall forcibly break out of his or her cell, or shall make any breach therein, with intent to escape therefrom; he or she, so offending, being convicted thereof, shall be punished by an ❝ addition not exceeding six calendar months to the term for which "he or she at the time of committing any such offence was sub"ject to be confined." cond breach of prison or es guilty of felony without clergy. And convicts attempting, &c. nished by additional imprisonment. cape, to be are to be pu The 56 Geo. 3. c. 63. s. 44. enacts, "that if any person shall 56 G. 3. c. 63. (n) It was erected under the provisions of the 52 Geo. 3. c. 44. s. 44. Persons rescuing convicts ordered to be confined in the Peniten tiary, or aiding" Penitentiary. 66 rescue any convict who shall be ordered to be confined within "the said Penitentiary, either during the time of his or her conveyance to the said Penitentiary, or whilst such convict shall be in the custody of the person or persons under whose care and charge he or she 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 per66 son having the custody 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 per"mit such convict to escape; or if any person whatsoever shall, "by supplying arms, tools, or instruments of disguise, or other"wise 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 Tony. And any "convict, or be aiding and assisting in any such attempt, though person having no rescue be actually made, every such person so permitting, “ attempting, aiding, or assisting, shall be guilty of felony; and "if any person having such custody, or being so employed by the person having such custody as aforesaid, shall negligently per"mit any such convict to escape, such person so permitting shall "be guilty of a misdemeanor; and, being lawfully convicted of "the same, shall be liable to fine or imprisonment, or to both, hodat "the discretion of the court." permitting an escape, and other persons aiding or attempting any escape or rescue, to be guilty of fe such custody, and negligently permitting an escape, to be guilty of a misdemeanor. 56 G. 3. c. 63. such offences. Evidence of the order of commitment to such Penitentiary. ،، 66 66 66 The 45th section of the same statute relates to the more ready s. 45. Trial for and effectual trial and conviction of persons committing offences within the act; and provides that any convict so escaping, breaking prison, or being rescued, may be tried either in the county where he shall be apprehended and retaken, or in the county in which the said offence shall have been committed; and that, in case of any prosecution for such escape, attempt to escape, breach of prison, or rescue, either against the convict escaping, or attempting to escape, or having broken prison, or being rescued, or against any other person or persons concerned therein, or aiding, abetting, 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 6 G. 4. c. 5. Mutiny Actprovides for the punishment of persons returning from trans portation after sentence by a court-martial. such confinement. The mutiny acts also make provision for the punishment of persons returning from transportation after sentence by a courts martial. By the last of these acts, 6 Geo. 4. c. 5., where a noncommissioned officer or soldier is convicted of desertion, and the court-martial shall not think the offence deserving of capital punishment, they may, instead of a corporal punishment, adjudge the offender to be transported for life, or a term of years; and in all cases wherein a capital punishment shall have been awarded by a court-martial, the king may order the offender to be transported as a felon, for life, or for a term of years. And if such non-com missioned officer or soldier, or any person so transported in pursuance of such order from the king, "shall afterwards, (without leave from his majesty, or from the governor or "commanding officer of the place to which he shall have been "transported,) return into, or be found at large, without leave "as aforesaid, or other lawful cause, within any part of Great "Britain or Ireland, or in any of his majesty's possessions "abroad, 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 convicted thereof in the orແ dinary course of law, he shall suffer death as a felon, without "benefit of clergy." (g) By the ninth section of the statute upon the sentence of transportation being notified in writing by the commander in chief, or, in his absence, by the adjutant-general, to any justice of the King's Bench or Common Pleas, or baron of the Exchequer in England or Ireland, such justice or baron is to make an order for the transportation of the offender, upon the terms and for the time which shall be specified in such notification; (r) and shall also make such other orders, and do such other acts consequent upon the same, as any such justice or baron is authorized to make or do by any act or acts in force, at the time of making any such orders, in relation to the transportation of offenders; and such order and orders so to be made, and all such acts as shall be so done as aforesaid, shall be obeyed and done by such person, in whose custody such offender shall at that time be, and all other persons whom it may concern, and shall be as effectual, and have the same consequences as any order made under the authority of the said act with respect to an offender in the said act mentioned; and every sheriff, &c. and all constables and other persons, shall be bound to obey the said orders, be assistant in the execution thereof, and liable to the same punishment for disobedience, or interrupting the execution of the same, as they would be if the same had been made under the authority of the said act; and every person so ordered to be transported as aforesaid shall be subject respecttively to all the provisions made by law and now in force, concerning persons convicted of any crime, and sentenced to be transported, or receiving his majesty's pardon on condition of transportation. (a) By a subsequent section, if any offender under sentence of death by a court-martial shall obtain a conditional pardon, all the laws then in force touching the escape of felons under sentence of death shall apply to such offender, and to all persons aiding, &c. such escape from the time when such order shall be made by such justice or baron, and during the several proceedings had for the said purposes. (b) And a provision is made in some of the mutiny acts that an order, made under any act or acts of parliament, in force at the time of making such order, in relation to the transportation of offenders, and every act consequent upon such order, shall be as effectual, and have all (q) Sect. 4, 5. (r) Sect. 9. (a) 6 Geo. 4. c. 5. s. 9. The notifications, &c. are to be filed in the office of the clerk of the Crown, who is to VOL. I. 2 D deliver a certificate of conviction, &c. S. 12. relates to the notification, &c. of sentences of transportation in India, &c. (b) 6 Geo. 4. c. 5. s. 13. Points decided upon former statutes. Indictment of former con viction. the same consequences as any order made, or act done, under the authority of any act or acts of parliament in force at the time, in relation to the transportation of offenders, with respect to any offender in any such act or acts of parliament mentioned. (s) Provisions of a nature nearly similar are usually contained in the acts relating to the regulating of the royal marine forces while on shore. (t) By the 30 G. 3. c. 47. his majesty may authorize the governor of New South Wales, &c. by writing under the seal of that government to remit, either absolutely or conditionally, the whole or any part of the term of transportation: and such instrument is to be of the same force and effect as a signification of the royal mercy under a sign manual. The 6 G. 4. c. 69. regulates the punishment of offences committed by transports sent to labour in the colonies. It may be useful to mention some of the points decided upon the statutes which formerly related to the offences treated of in this Chapter. Where a capital convict had a conditional pardon and escaped, and certificate and the indictment against him stated, that the king's pleasure was notified to the court, and the court thereupon ordered, &c. according to the terms of the pardon, and it appeared that the notification was to the Judge after the assizes were over, and that he made the order; the Judges, upon a case reserved, were unanimous that the notification to the Judge, and the order by him, was not a notification to the court, or any order by the court, and that the indictment was not proved. (a) But the late statute 5 G. 4. c. 84. enacts, that it shall be sufficient to allege in the indictment the order for transportation, without alleging any indictment, trial, &c. or any pardon or intention of mercy, or signification thereof. (b) The late statute however requires, that the certificate to be given in evidence shall contain the effect and substance of the indictment and conviction; and in a case which arose upon a former statute, (6 G. 1. c. 23.) which required that the certificate should contain the effect and tenor of the indictment and conviction, and of the order and contract for transportation, and also upon another statute (24 G. 3. c. 56. s. 5.) which required a certificate containing the effect and substance only, omitting the formal part of the indictment and conviction, the indictment stated, that the prisoner was convicted of grand larceny within benefit of clergy, and the certificate was in the same form; and the Judges, upon the point being reserved, held that both were insufficient. (c) So also in another case, upon a statute 56 G. 3. c. 27. s. 8., which required the certificate to contain the effect and substance only (omitting the formal part) of the indictment and conviction, and order for transportation, it was held, that an indictment which stated that the prisoner had been convicted of felony, without stating the nature of that felony, and a certificate which stated (8) See 56 Geo. 3. c. 119. (t) See the last act 6 Geo. 4. c. 6. s. 7, 8, et sequ. G. 3. c. 74. s. 28. (b) S. 23. ante, 398., and see also s. 2. ante, 394. (c) Rex v. Sutcliffe, East. T. 1788. MS. Bayley, J. Russ. and Ry. 469, (a) Rex v. Treadwell, Mich. Term, |