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portation or imprisonment, may be sentenced either to penal servitude or to imprisonment (k). This Act also provided, that where, under the former law, seven years transportation might have been awarded, penal servitude for three years might be substituted. But, as to this, a further alteration of the law has since taken place; it being enacted by the 27 & 28 Vict. c. 47, that no person shall, in any case, be sentenced to penal servitude for a shorter period than five years; or, if previously convicted for felony, (either on indictment or by way of summary conviction,) for less than seven years.
It is moreover provided by the Penal Servitude Acts, that every person sentenced to this punishment may be kept either in any prison or place of confinement in the united kingdom, or in any river, port, or harbour thereof,
or else in some place in her Majesty's dominions beyond the seas, duly appointed for such purpose by order in Council,-according as the secretary of state shall from time to time direct; and may, while confined there, be kept to hard labour and otherwise dealt with, in like manner as persons sentenced to transportation might formerly be dealt with while so confined (1).
By the same Acts it is also made lawful for her Majesty (m), by order in writing, under the hand and seal
(k) 20 & 21 Vict. c. 3, s. 6. that he will, by a regular course of
(l) 16 & 17 Vict. c. 99, s. 6; 20 industry while undergoing his sen& 21 Vict. c. 3, s. 3.
tence, be enabled to obtain his (m) See 16 & 17 Vict. c. 99, s. 9; liberty under a "licence to be at 20 & 21 Vict. c. 3, s. 5; 27 & 28 large," at a certain fixed time before Vict. c. 47, ss. 4-10. The Preven- the expiration of the period for tion of Crimes Act, 1871 (34 & 35 which he has been sentenced, Vict. c. 112), also contains some pro- varying according to the number visions with regard to the holders of of years for which he has been licences to be at large, granted under sentenced. But if he has been senthe above Acts (ss. 3, 4,5). Under tenced to penal servitude for life, the authority of the Secretary of no remission can take place but by State for the Department, a order of the secretary of state, supprisoner sentenced to penal servitude posing that the special circumstances is informed on arriving at prison, of the case appear to warrant any
of the secretary of state, to grant to any convict sentenced either to be kept in penal servitude, or to be imprisoned, a licence to be at large, in the united kingdom and the channel islands, (or in such part thereof respectively as shall be expressed in the licence,) during such portion of his term, and on such conditions in all respects, as to her Majesty shall seem. fit (o). But such licence may be revoked or altered at pleasure; and will be forfeited if the holder shall be subsequently convicted of any indictable offence, or if he shall fail to report himself to the proper officer once in every month, or to give due notice of any change of residence (p); and if it be so revoked or forfeited, the convict may be sent back to the prison from which he was released by virtue of his licence, or be placed in any other prison wherein convicts under sentence of penal servitude may be lawfully confined (9). And we may notice, that with the object of more effectually preventing crime, a register of criminals has been recently established, and their photographs taken and distributed so as to facilitate their identification (r).
be here remarked, that it forms one of the provisions of the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), that where any person is convicted on indictment of a crime, and a previous conviction of a crime is proved against him, the court may, in addition to any other punishment, direct that he is to be subject to the supervision of the police for a period not exceeding seven years, commencing immediately after the expiration of the
indulgence. These regulations, and the scale of periods of remission, are contained in a circular letter addressed by the then secretary (Sir G. Grey) to each of the judges and chairmen of quarter sessions, dated 15th August, 1864.
(0) 16 & 17 Vict. c. 99, s. 9. And see 34 & 35 Vict. c. 112, s. 5.
(p) 27 & 28 Vict. c. 47, s. 4.
(2) 16 & 17 Vict. c. 99, ss. 10, 11; 20 & 21 Vict. c. 3, s. 5; 27 & 28 Vict, .c. 47, s. 9; 34 & 35 Vict, c. 112, s. 5.
(r) See ss. 5 and 8 of 34 & 35 Vict. c. 112, an Act which repeals the 32 & 33 Vict. c. 99 (The Habitual Criminals Act, 1869).
sentence passed on him for the last of such crimes; and that any person, so subject to such supervision, who shall remain in any place for forty-eight hours without notifying the place of his residence to the chief officer of police for the district, or who shall fail to comply with the requisitions of the Act, in periodically reporting himself to such chief officer, shall, unless he can show that he did his best to act in conformity to the law, be liable to be imprisoned, with or without hard labour, for any period not exceeding one year ().
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 this is always that the prisoner be hanged by the neck till dead; a mode of capital punishment that has been in use in this country from time immemorial (t).
[At the common law, upon the passing of this sentence, the immediate and inseparable consequence was attainder. For when it was thus made clear beyond all dispute that the criminal was no longer fit to live upon the earth, but was to be exterminated as a monster, and a bane to human society, the law set a note of infamy upon him ; called him attaint, attinctus, stained or blackened: withdrew from him in general all civil rights (u); and considered him, by an anticipation of his punishment, as already dead in law (x). But none of these consequences arose until after judgment; for there was a great difference between a man convicted and one attainted—though they were frequently through inaccuracy confounded together. After conviction only, a man was liable to none of these disabilities; for there was still, in contemplation of law, a possibility of his innocence, as something might be offered in arrest of
(8) 34 & 35 Vict. c. 112, s. 8.
(t) 2 Hale, P. C. 399; Hawk. P. C. b. 2, c. 48, s. 7.
(u) As to the capacity of a person
attainted to contract a legal marriage, see Kynnaird v. Leslie, Law Rep., 1 C. P. 401.
(oC) 3 Inst. 213,
[judgment. But when judgment was once pronounced, both law and fact conspired to prove him completely guilty; and there was not the remotest possibility left of any thing to be said in his favour. Upon judgment therefore of death, and not before, the attainder of a criminal commenced (y):-or upon such circumstances as were equivalent to judgment of death,—such 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 was said to be attainted.]
Among the consequences of attainder were, until recently, forfeiture and corruption of blood.
Forfeiture upon attainder, accrued in the first place in the crime of treason. And here the criminal forfeited for ever to the Crown all his freehold lands and tenements of inheritance, whether held in fee simple or fee tail; and all his rights of entry on freehold lands and tenements which he had at the time of the offence committed, or at any time afterwards: and also the profits of all freehold land and tenements which he had in his own right for life or years, so long as such interest should subsist (z).
This forfeiture related backwards to the time of the treason committed : so as to avoid all intermediate sales and incumbrances, but not those before the fact (a); and therefore a wife's jointure was not forfeitable for the treason of her husband, because settled on her previous to the treason committed; but her dower was forfeited by the express provision of statute 5 & 6 Edw. VI. c. 11 (6).
(y) R. v. Bridger, 1 Mee. & W. 145.
(z) Co. Litt. 392 ; 3 Inst. 19; 1 Hale, P. C. 240; Hawk. P. C. b. 2,
somo of the statutes constituting the offence, 5 Eliz. c. 11, 18 Eliz. c. 1, 8 & 9 Will. 3, c. 26, 15 Geo. 2, c. 28, it was provided, that it should work no forfeiture of lands except for the life of the offender; and by all, that it should not deprive the wife of her dower.
(a) 3 Inst. 211.
(6) Counterfeiting the coin of the realm was formerly treason; but by
And yet the husband was held entitled to be tenant by the curtesy of the wife's lands, if the wife were attainted of treason; for that was not prohibited by the statute (c). But though after attainder the forfeiture related back to the time of the treason committed, yet it did not take effect unless an attainder were had, of which it was one of the fruits; and therefore if a traitor died before judgment pronounced, or was killed in open rebellion, or hanged by martial law, it worked no forfeiture of his lands, for he never was attainted of treason(d).
With us in England forfeiture for treason was by no means derived from the feudal policy, but was antecedent to the establishment of that system in this island, being (c) 1 Hale, P. C. 359.
partly to acquire, a total immu(d) See Co. Litt. 13; 4 Rep. nity from forfeiture and corrup57. It was enacted by 7. Ann. “ tion of blood; which the house c. 21, that after the decease of the “ of lords as firmly resisted. At then Pretender no attainder for “ length a compromise was agreed treason should extend to the dis- “ to, which is established by this inheriting of any heir, nor to the statute, viz. that the same crimes, prejudice of any person other than “and no other, should be treason in the traitor himself. The history of “ Scotland that are so in England; this matter is somewhat singular, "and that the English forfeitures and worthy of observation. Black- “and corruption of blood should take stone's account of it (vol. iv. p. place in Scotland till the death of 384) is as follows: “At the time of “ the then Pretender, and then cease “ the Union, the crime of treason " throughout the whole of Great “ in Scotland was, by the Scots law,
“ Britain; the lords artfully propos“ in many respects different from “ing this temporary clause in hopes, “ that in England; and particularly it is said, that the prudence of suc“ in its consequence of forfeitures ceeding parliaments would make it “ of entailed estates, which was more perpetual.” (See Barnet's Hist. “pecaliarly English ; yet it seemed A.D. 1709; and “ Considerations on “ necessary that a crime so nearly the Law of Forfeiture," vol. i. p. " affecting government should, both 244.) This was partly done by the “ in its essence and consequences, statute 17 Geo. 2, c. 39, made in “ be put upon the same footing the year preceding the rebellion of “ in both parts of the united king- 1745. And by 39 & 40 Geo. 3, “ dom. In new modelling these c. 93, the above mentioned provi“ laws, the Scotch nation and the sion of the stat. 7 Ann. c. 21, was “ English house of commons strug- repealed. “gled hard, partly to maintain, and