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no evidence that he knew of what specific offence the person he assisted had been convicted.(6)

In the same case it was also decided that the record of the conviction of the prisoner, whose escape was to have been effected, having been produced by the proper officer, no evidence was admissible to contradict what it stated; or to shew that it had never been filed among the records of the county ; notwithstanding the indictment referred to it with a prout patet as remaining amongst those records.(c)

The statute 4 Geo. 4. c. 64. s. 43., intituled “ An act for the 4 Geo. 4. c. 64. “ consolidating and amending the laws relating to the building, S. 43. Convey“ repairing, and regulating, of certain gaols and houses of correc

ing any dis

guise, arms, “tion in England and Wales, enacts, that if any person shall &c. proper for

convey or cause to be conveyed into any prison, to which the act an escape, made “ shall extend, any mask, vizor, or other disguise, or any instru- tent to aid, &c.

ment or arms proper to facilitate the escape of any prisoners, an escape. " and the same shall deliver or cause to be delivered to any pri“soner in any such prison, or to any other person there for the


such prisoner, without the consent or privity of the “ keeper of such prison, every such person shall be deemed to “ have delivered such vizor or disguise, instrument or arms, with “ intent to aid and assist such prisoner to escape, or attempt to

escape; and if any person shall, by any means whatever, aid, Assisting any " and assist any prisoner to escape, or in attempting to escape prisoner to es“ from any prison, every person so offending, whether an escape

cape, felony. “ be actually made or not, shall be guilty of felony; and, being “ convicted thereof, shall be transported beyond the seas for any “ term not exceeding fourteen years.”

The same statute, (s. 44.) to the intent that prosecutions for Trial and eviescapes, breaches of prison, and rescues, may be carried on with dence. as little trouble and expense as possible, enacts, “that any offender

escaping, breaking prison, or being rescued therefrom, may be “ tried either in the jurisdiction where the offence was committed,

or in that where he or she shall be apprehended and retaken.” And it also enacts that a certificate of the clerk of assize, or other clerk of the court in which the offender was convicted, together with due proof of the identity of the person, shall be sufficient evidence of the nature and fact of the conviction, and of the species and period of confinement to which such person was sentenced. (0)

The late statute, 5 Geo. 4. c. 84., which was passed for the 5 Geo. 4. c. 84. purpose of revising and consolidating the laws for regulating the s. 22. Persons transportation of offenders from Great Britain, and which will be riding the esmore particularly noticed in the next Chapter, provides that if any cape of offendperson shall rescue or attempt to rescue, or assist in rescuing or ers, ordered to attempting to rescue, any offender sentenced or ordered to be from the custotransported or banished, from the custody of the superintendant dy of the overor overseer, or of any sheriff or gaoler, or other person, convey- punishable as

if such offend(6) Rex v. Shaw and others, ante, 1801, MS. Bayley, J. note (a). An indictment at common (c) Rex v. Shaw and others, ante, law for aiding a prisoner's escape note (a). should state that the party knew of (i) See this provision more at large his offence. Rex v. Young, Trin. T. ante, p. 368.


ers had been ing, removing, &c. such offender, or shall convey or cause to be in the custody conveyed any disguise, instrument for effecting escape, or arms, gaoler. 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.(m)

The two following sections, (23 & 24,) relate to the indictment and the evidence, and will be found in the next Chapter.

(m) Sect. 22.




the fact at 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 sanction

statutes. But

assisting a feof enactments of the Legislature, offences committed by not sub- lon sentenced mitting to that punishment are principally dependent upon the to be transprovisions of particular statutes.(a) But as a party convicted of ported to esfelony 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 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. I. all perBritain, would expire at the end of the then present session of par- or 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 under the pre

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(a) In 6 Ev. Col. Stat. Part V. Cl. the privy council, or otherwise ad

·(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 lanished, 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

rogues, vagabonds, &c. might, by says that the earliest statute then subthe justices in sessions, be bavished out sisting which notices the power of of the realm, and conveyed at the transportation was 22 Car. 2. c. 5. charges of the county to such parts be- (6) Rex v. Burridge, M. T. 1735. yond the scas as should be assigned by 3 P. Wms. 439. Ante, 385.



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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

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

“ or she shall be liable to be transported or banished, shall be adthe provisions of 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 fenders receiv- “ be liable by any law to be transported or banished; and every ing a conditional 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 or to be made in pursuance of the sentence of any such court or made by a

“ other competent authority, shall subject the offender to be consubsequent

“ veyed beyond the seas, under the provisions of this act; and court.

“ 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 offender 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 consequences, 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 his Majesty, shall “ subject the offender to be conveyed beyond the seas, under the

“ provisions of this act." S. 3. Places of

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

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“ 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 ed by his Ma"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 th when


offenders shall persons to “ be about to be transported or banished from Great Britain, one for transporta“ of 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. shipe). (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 “ from time to time, by warrant under his royal sign manual, to ap- ment in Eng“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, “ 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; 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 principal 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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