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ported.

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transported, “shall have been or shall be so sentenced or ordered to be trans

c. and being « ported or banished, or who shall have agreed or shall agree to afterwards at large, without « transport or banish himself or herself on certain conditions, lawful cause, “ either for life or any number of years, under the provisions of made liable to

“ this or any former act, shall be afterwards at large within any capital punish

“ 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, “ or shall have so agreed to transport or banish himself or herself, " every such offender so being at large, being thereof lawfully con

“ victed, shall suffer death, as in cases of felony, without the beneAnd may be “ fit of clergy; and such offender may be tried either in the county tried where ap- o or place where he or she shall be apprehended, or in that from prehended, or

" " whence he or she was ordered to be transported or banished; where they were ordered "and if any person shall rescue, or attempt to rescue, or assist in to be trans

“ rescuing or attempting to rescue, any such offender from the

“ custody of such superintendant or overseer, or of any sheriff or Persons rescuing or attempt

“ gaoler, or other person conveying, removing, transporting or ing to rescue, “ reconveying him or her, or shall convey, or cause to be conveyed &c., such of - “any disguise, instrument for effecting escape, or arms, to such fenders punishable as if “ offender, every such offence shall be punishable in the same such offenders “ manner as if such offender had been confined in a gaol or prison,

in con" in the custody of the sheriff or gaoler, for the crime of which fined in a gaol cs dah offender shall or prison.

" such offender shall have been convicted; and whoever shall Reward upon « discover and prosecute to conviction any such offender so being conviction of " at large within this kingdom, shall be entitled to a reward of

66 twenty pounds for every such offender so convicted.” found at large.

The 23d section enacts, “ that in any indictment against any S. 23. Form of indictment “ offender for being found at large, contrary to the provisions of against of- . “this or of any other act now made, or hereafter to be made; and fenders found at large, and

« also in any indictment against any person who shall rescue, or

66 also in any indictment against per- “attempt to rescue, or assist in rescuing, any such offender from sons rescuing, 6 such custody, or who shall convey, or cause to be conveyed, any &c.

“ disguise, instrument for effecting escape, or arms, to any such "s offender, contrary to the provisions of this or of any other act “ 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, 6 or sentence, or any pardon or intention of mercy, or significa" tion thereof, of or against, or in any manner relating to such

“ offender.” S.24. Evidence The 24th section enacts, “ that the clerk of the court or other by certificate, « officer having the custody of the records of the court where such of the clerk of the court, &c.

65 sentence or order of transportation or banishment shall have of the convic- “ been passed or made, shall, at the request of any person on his

“ majesty's behalf, make out and give a certificate in writing, tence.

« signed by him, containing the effect and substance only (a) “ (omitting the formal part) of every indictment and conviction of

offenders

tion and sen..

(a) See Rex v. Watson, ante, 368.

tricial e receitbe clerkt such Stencelicatessame,

36. as to con

“ such offender, and of the sentence or order for his or her trans“ portation or banishment, (not taking for the same more than 6 six shillings and eightpence), which certificate shall be sntficient “evidence of the conviction and sentence, or order for the trans“portation or banishment of such offender; and every such certi“ ficate, 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.”

The 25th section enacts, “ that nothing in this act contained s. 25. The act “ respecting offenders under sentence or order of banishment, is not to exter “ shall apply to persons adjudged to be banished, under and by banished under * virtue of an act passed in the sixtieth year of his late majesty's 60 G. 3. and I “ reign, intituled, "An act for the more effectual prevention and G

an and G. 4. c. 8. “ punishment of blasphemous and seditious libels.'

The 56 G. 3. c. 63., and the 59 G. 3. c. 136. were passed for 56 G. 3. c. 63. the purpose of regulating the general Penitentiary for convicts, a

and 59 G. 3. c. erected (n) at Millbank, in the county of Middlesex, and authorize victs sentenced the confinement of certain convicts sentenced to transportation in to transporta

at tion, and conthat place ; and contain certain provisions respecting such convicts

us fined in the gebreaking prison or escaping, or attempting to break prison, &c., and neral Penitenrespecting persons rescuing, or attempting to rescue them, or tiary supplying means of escape.

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

confined in the 6 said Penitentiary, shall, at any time during the term of such per “ 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- son or escap

ing, are to be “ finement, or from the person or persons having the lawful cus"tody of such convict, he or she so breaking prison or escaping addition to the “shall be punished by an addition not exceeding three years to term of their.

confinement; “the term for which he or she, at the time of his or her breach

and, upon a se " of prison or escape, was subject to be confined ; and if such cond breach of “convict so punished by such addition to the term of confinement prison or es

Ć cape, to be "shall afterwards be convicted of a second escape or breach of guilty of felony “prison, he or she shall be adjudged guilty of felony, without be- without clergy. “ nefit of clergy." And it further enacts, “ that if any convict And convicts “ who shall be ordered to be confined in the said Penitentiary, attempting, &c.

are to be pushall at any time during the term of such confinement attempt nished by ad

to break prison, or escape from the place of his or her confine- ditional impri“ment, or shall forcibly break out of his or her cell, or shall make sonment. “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.” The 56 Geo. 3. c. 63. s. 44. enacts, “ that if any person shall 5

S. 44. Persons (n) It was erected under the provisions of the 52 Geo. 3. c. 44.

ary at Millbank.

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rescuing con- « rescue any convict who shall be ordered to be confined within

" the said Penitentiary, either during the time of his or her conto be confined in the Peniten “ veyance to the said Penitentiary, or whilst such convict shall be tiary, or aiding “ in the custody of the person or persons under whose care and to be guilty of

“ charge he or she shall be so confined; or if any person shall be felony, and « aiding or assisting in any such rescue, every such person so confined in the “ rescuing, aiding, or assisting, shall be guilty of felony, and may And persons

on “ be ordered to be confined in the said Penitentiary, for any term having the cus- “ not less than one year, nor exceeding five years; and if any pertody of such « son having the custody of any such convict as aforesaid, or convicts, and voluntarily

“ being employed by the person having such custody as a keeper, permitting an “ under-keeper, turnkey, assistant, or guard, shall voluntarily perescape, and “ mit such convict to escape; or if any person whatsoever shall, other persons aiding or at

“ by supplying arms, tools, or instruments of disguise, or othertempting any “wise be in any manner aiding and assisting to any such convict escape or

in any escane or in any

in any escape, or in any attempt to make an escape, though no rescue, to be guilty of fe “ escape be actually made, or shall attempt to rescue any such lony. And any “ convict, or be aiding and assisting in any such attempt, though

“no rescue be actually made, every such person so permitting, such custody, and negligently “ attempting, aiding, or assisting, shall be guilty of felony'; "and permitting an “ if any person having such custody, or being so employed by the escape, to be guilty of a mis

“ person having such custody as aforesaid, shall negligently per

a person having such m demeanor.

“ 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, at “ the discretion of the court."

ilás 19 56 G. 3. c. 63. The 45th section of the same statute relates to the more ready 8. 45. Trial for and effectual trial and conviction of persons committing offence's such offences.

within the act; and provides that any convict so escaping, break ing prison, or being rescued, may be tried either in the county

where he shall be apprehended and retaken, or in the county in Evidence of which the said offence shall have been committed; and 'that, in the order of

case of any prosecution for such escape, attempt to escape, breach commitment to such Peni- of prison, or rescue, either against the convict escaping, or at tentiary. tempting 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 such confinement.

is . BIA 6 G. 4. c. 5. The mutiny acts also make provision for the punishment of Mutiny Acta

persons returning from transportation after sentence by a courts provides for the punish martial. By the last of these acts, 6 Geo. 4. c. 5., where a non ment of per- commissioned officer or soldier is convicted of desertion, and the

18 court-martial shall not think the offence deserving of capital from transportation after punishment, they may, instead of a corporal punishment, adjudge sentence by a the offender to be transported for life, or a term of years; and in court-martial.

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.

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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 or« dinary course of law, he shall suffer death as a felon, without “ benefit of clergy.(9) 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 ; (v) 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 proceed ings had for the said purposes. (6) 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

to ordered to per the authome, as ther disobedienecution there

portation. careceiving hited of any crime law and nowubject re

(9) Sect. 4, 5.

deliver a certificate of conviction, &c. (r) Sect. 9.

S. 12. relates to the notification, &c. (@) 6 Geo. 4. c. 5. s. 9. The notifi- of sentences of transportation in India, cations, &c. are to be filed in the office &c. of the clerk of the Crown, who is to (0) 6 Geo. 4. c. 5. s. 13. VOL, I,

2 1

statutes.

the same consequencés 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. Points decided It may be useful to mention some of the points decided upon upon former the statutes which formerly related to the offences treated of in this

Chapter. Indictment Where a capital convict had a conditional pardon and escaped, and certificate and the indictment against him stated, that the king's pleasure of former conviction.

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 unani-
mous 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. (6)
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 sta-
tute (24 G. 3. c. 56. s. 5.) which required a certificate containing
the effect and substance only, omitting the formal part of the in-
dictment and conviction, the indictment stated, that the pri-
soner 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 re-
quired 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.

G. 3. c. 74. s. 28. (0) See the last act 6 Geo. 4. c. 6. . (6) S. 23. ante, 398., and see also s. 7, 8, et sequ.

2. ante, 394. (a) Rex v. Treadwell, Mich. Term, (c) Rex v. Sutcliffe, East. T. 1788. 1781. MS. Bayley, J. The statute MS. Bayley, J. Russ. and Ry. 469, then in force upon the subject was 19 470.

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