portation of any offender convicted in Great Britain, shall extend, and be construed to extend, 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 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.

to hard la

bour, and may be removed to

XVIII. And be it further enacted, that it shall be law- Convicts ful to keep to hard labour every offender under sentence or may be kept order of transportation, while he or she shall remain in the common gaol, if his or her health shall permit, and if one or more of the visiting justices of such gaol 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.

house of correction.

ed part of

XIX. And be it further enacted, that the time during Time of in.. which any offender shall continue in any gaol or house prisonment of correction, or in any such place of confinement as afore- to be deem said, under sentence or order of transportation or banish- the term. ment, shall be taken and reckoned in discharge or part discharge of the term of his or her transportation or banishment.

carried

XX. And be it further enacted, that the sheriff or gaoler, Offenders and every person employed in the conveyance of any of may be fender in order to be transported or banished, or to be im- through any prisoned in any such place of confinement as aforesaid, or county to in the reconveyance of any offender from any such place of the sea port. confinement to the gaol or prison from which he was removed, may, in such manner as he shall think fit, carry and secure such offender in and through any county of Great Britain, towards the sea-port or place from whence he or she is to be transported or banished, or where he or she is to be confined, or to the gaol or prison to which he or she is to be reconveyed.

XXI. And be it further enacted, that in England and Expenses of Wales all such fees, on the delivering out of custody of removal to be paid by any such offender so ordered to be transported or removed, the county as have usually been paid to the sheriff or gaoler, and all where conreasonable expenses which the sheriff or gaoler shall in- viction took place. cur in every such removal, shall be paid by the county, riding, division, city, borough, liberty, or place for which the court in which the offender was convicted shall have been held; and the sheriff or gaoler shall receive the money due for such expenses from the treasurer of such

་་་་་

county, riding, division, city, borough, liberty, or place ; such fees and expenses being first allowed by the order of the justices of the peace at their quarter or other general sessions of the peace, who are hereby required to make such order as shall be just in that behalf; and the clerk of the court shall be paid by such treasurer the same fee as hath been usually paid, and he is lawfully entitled to receive, for every order of transportation; and in Scotland all such fees and expenses shall be paid in the same manner as has been heretofore practised.

hard labour or solitary confinement, as

part of the sentence of imprisonment.

If a person

under sen

tence for another

7 & 8 Geo. 4, c. 28.

VII. Be it enacted, that no person convicted of felony shall suffer death, unless it be for some felony which was excluded from the benefit of clergy, before or on the first day of the present session of parliament, or which hath been or shall be made punishable with death by some statute passed after that day.

VIII. And be it enacted, that every person convicted of any felony, not punishable with death, shall be punished in the manner prescribed by the statute or statutes specially relating to such felony; and that every person convicted of any felony, for which no punishment hath been, or here. after may be, specially provided, shall be deemed to be punishable under this act, and shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice, or thrice, publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment.

IX. And, with regard to the place and mode of imprisonment for all offences punishable under this act, be it enacted, that where any person shall be convicted of any offence punishable under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labour, as to the court in its discretion shall seem

meet.

X. And be it enacted, that wherever sentence shall be passed for felony on a person already imprisoned, under sentence for another crime, it shall be lawful for the court crime is con- to award imprisonment for the subsequent offence, to commence at the expiration of the imprisonment to which such person shall have been previously sentenced; and, where pass a se- such person shall be already under sentence either of im

victed of

felony, the court may

cond sen

after the ex

prisonment or of transportation, the court, if empowered to tence, to pass sentence of transportation, may award such sentence commence for the subsequent offence, to commence at the expiration piration of of the imprisonment or transportation to which such person the first. shall have been previously sentenced, although the aggregate term of imprisonment or transportation respectively may exceed the term for which either of those punishments could be otherwise awarded.

ment for a

the subse

quent fe

XI. And whereas it is expedient to provide for the more Punishexemplary punishment of offenders who commit felony subsequent after a previous conviction for felony, whether such con- felony. viction shall have taken place before or after the commencement of this act: be it therefore enacted, that if any person shall be convicted of any felony, not punishable with death, committed after a previous conviction for felony, such person shall, on such subsequent conviction, be liable, at the discretion of the court, to be transported be. yond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and, if a male, to be once, twice, or thrice, publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment; and, in an indictment for any Form of insuch felony, committed after a previous conviction for dictment for felony, it shall be sufficient to state that the offender was at a certain time and place convicted of felony, without other- lony. wise describing the previous felony; and a certificate con- What shall taining the substance and effect only (omitting the formal be sufficient part) of the indictment and conviction for the previous fe- proof of the lony, purporting to be signed by the clerk of the court, or first conother officer having the custody of the records of the court where the offender was first convicted, or by the deputy of such clerk or officer (for which certificate a fee of six shillings and eight-pence, and no more, shall be demanded or taken), shall, upon proof of the identity of the person of the offender, be sufficient evidence of the first conviction, without proof of the signature or official character of the person appearing to have signed the same; and, if any such Uttering clerk, officer, or deputy shall utter a false certificate of any ficate of indictment and conviction for a previous felony, or if any conviction. person, other than such clerk, officer, or deputy, shall sign any such certificate, as such clerk, officer, or deputy, or shall utter any such certificate with a false or counterfeit signature thereto, every such offender shall be guilty of felony, and, being lawfully convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned, for any term not exceeding two years; and, if a male, to be once, twice, or thrice, publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment.

viction.

false certi

XII. And be it enacted, that all offences prosecuted in Admiralty the high court of admiralty of England shall, upon every

offences.

Effect of a

ditional

pardon to a convict.

first and subsequent conviction, be subject to the same punishment, whether of death or otherwise, as if such offences had been committed upon the land.

XIII. And be it declared and enacted, that where the free or con- king's majesty shall be pleased to extend his royal mercy to any offender convicted of any felony punishable with death or otherwise, and by warrant under his royal sign manual, countersigned by one of his principal secretaries of state, shall grant to such offender either a free or a conditional pardon, the discharge of such offender out of custody, in the case of a free pardon, and the performance of the condition in the case of a conditional pardon, shall have the effect of a pardon under the great seal for such offender, as to the felony for which such pardon shall be so granted; provided always, that no free pardon, nor any such discharge in consequence thereof, nor any conditional pardon, nor the performance of the condition thereof, in any of the cases aforesaid, shall prevent or mitigate the punishment to which the offender might otherwise be law. fully sentenced, on a subsequent conviction for any felony committed after the granting of any such pardon.

Proviso.

Rule for the interpretation of all criminal statutes.

Commence

XIV. And be it enacted, that wherever this or any other statute relating to any offence, whether punishable upon indictment or summary conviction, in describing or referring to the offence, or the subject matter on or with respect to which it shall be committed, or the offender, or the party affected, or intended to be affected, by the offence, hath used or shall use words importing the singular number or the masculine gender only, yet the statute shall be understood to include several matters as well as one matter, and several persons as well as one person, and females as well as males, and bodies corporate as well as individuals, unless it be otherwise specially provided, or there be something in the subject or context repugnant to such construction; and wherever any forfeiture or penalty is payable to a party aggrieved, it shall be payable to a body corporate, in every case where such body shall be the party aggrieved.

XV, And be it enacted, that this act shall commence ment of this and take effect on the first day of July, one thousand eight hundred and twenty-seven.

act.

Not to extend to Scotland.

XVI. Provided always, and be it enacted, that nothing herein contained shall extend to Scotland or Ireland.

RAPE.

9 Geo. 4, c. 31.

XVI. Be it enacted, that every person convicted of the crime of rape, shall suffer death as a felon.

XVII. And be it enacted, that if any person shall unlawfully and carnally know and abuse any girl under the age of ten years, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon; and, if any person shall unlawfully and carnally know and abuse any girl, being above the age of ten years, and under the age of twelve years, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable to be imprisoned, with or without hard labour, in the common gaol or house of correction, for such term as the court shall award.

XVIII. And whereas, upon the trials for the crimes of buggery and rape, and of carnally abusing girls under the respective ages hereinbefore mentioned, offenders frequently escape by reason of the difficulty of the proof which has been required of the completion of those several crimes : for remedy thereof, be it enacted, that it shall not be necessary, in any of those cases, to prove the actual emissio seminis, in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon proof of penetration only.

Note. The provision contained in the 18th section of this statute has decided a point of evidence respecting the necessity of which, in order to complete the crime of rape, there seems to have been various conflicting opinions: see 1 Russ. 558, et seq. In an indictment for rape, the essential words are rapuit et carnaliter cognovit, and any other circumlocution, without the word rapuit, is not sufficient, in a legal sense, to express rape: 1 H. P. C. 628. It is also essential to allege, that the crime was committed "against the will" of the injured party. It should also be noticed, that before the passing of the present act it was usual for the indictment to conclude against the form of the statute, and the reason which was formerly given for this mode of conclusion seems still to exist: see 2 Stark Cr. Pl. 409, note q. But, on the other hand, it seems certain that

an indictment not only would be good, but, strictly speaking, would be more correct without such a conclusion: see 1 E. P. C. 448.

If a penetration be effected by force, and against the will of the woman, the offence of rape will be complete, and will, therefore, be still indictable, though she should afterwards consent. Very slight circumstances will amount to a penetratio, see Russen's case, 1 E. P. C. 458; but whether penetratio or not will, of course, be matter for the consideration of the jury. With regard to the force used, it is immaterial whether it be actual violence or threats of death in case of resistance: 1 Russ. 557. And it is no excuse that the party grieved is a woman of bad character, though this, as well as a variety of other circumstances, will, and ought to have weight with the jury in favour of the party accused.