S. 13. His Majesty in council may direct convicts to be employed in

any part of his dominions out

of England, under the management of a superintendant, &c.

S. 15. Declares

the power and

duties of the superintendant and overseer.

" and there deliver him to such superintendant or overseer, toge"ther with a true copy, attested by such sheriff or gaoler, of the "caption and order of the court by which such offender was sen"tenced or ordered for transportation, containing the sentence or "order of transportation of each such offender, by virtue whereof "he shall be in the custody of such sheriff or gaoler; and also a "certificate, specifying concisely the description of his crime, his age, whether married or unmarried, his trade or profession, and 66 an account of his behaviour in prison before and after his trial, "and the gaoler's observations on his temper and disposition, and "such information concerning his connexions and former course "of life as may have come to the gaoler's knowledge; and such "superintendant or overseer shall give a receipt in writing to the "sheriff or gaoler for the discharge of such sheriff or gaoler."

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The act then authorizes his Majesty to appoint a superintendant, an assistant to the superintendant, and an overseer for such places of confinement; specifies the duties of the superintendant; and contains regulations for the cleansing, purifying, and clothing, the offenders brought to such places. (d)

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The thirteenth section enacts "that it shall be lawful for his Majesty, by any order or orders in council, to declare his royal "will and pleasure, that male offenders convicted in Great Britain, "and being under sentence or order of transportation, shall be "kept to labour in any part of his Majesty's dominions out of England, to be named in such order or orders in council; and "that whenever his Majesty's will and pleasure shall be so de"clared in council, it shall be lawful for one of his Majesty's "principal secretaries of state to direct the removal and confine"ment of any such male offender, either at land or on board any "vessel to be provided by his Majesty, within the limits of any 66 port or harbour in that part of his Majesty's dominions which "shall be named in such order in council, under the management "of the said superintendant, and of an overseer to be appointed "by his Majesty for each such vessel or other place of confine"ment; and that every offender who shall be so removed shall "continue on board the vessel or other place of confinement to be so provided, or any similar vessel or other place of confinement "to be from time to time provided by his Majesty, until his Ma"jesty shall otherwise direct, or until the offender shall be entitled "to his liberty."

The fifteenth section enacts "that, after the removal of any "offender under this act, the superintendant and overseer, who "shall have the custody of him, shall, during the term of such 66 custody, have the same powers over him as are incident to the "office of a sheriff or gaoler, and shall in like manner be answer"able for any escape of such offender; and if any offender shall

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during such custody be guilty of any misbehaviour or disorderly "conduct, the superintendant or overseer shall be authorized to "inflict or cause to be inflicted on him such moderate punishment ❝or correction as shall be allowed by one of his Majesty's princi"pal secretaries of state; and such superintendant or overseer "shall also, during such custody, see every offender fed and (d) S. 11, 12.

"clothed according to a scale of diet and clothing to be fixed on " and notified in writing by one of his majesty's principal secreta"ries of state to the superintendant; and shall keep such offender "to labour at such places, and under such regulations, directions, "limitations, and restrictions, as by such secretary of state shall "from time to time be prescribed; and in case of the absence of 66 any such superintendant or overseer, or of the vacancy of his "office, his duties or powers shall be discharged and exercised in "all respects by the officer or person on whom the command of "the place of confinement shall devolve." The superintendant is also empowered to act as a justice of the peace. (e)

courts out of

kingdom to

and convicts

pardoned on condition of

transportation,

may, when

The seventeenth section enacts "that whenever any convict ad- S. 17. Convicts judged to transportation by any court or judge, in any part of adjudged by "his majesty's dominions not within the united kingdom, or any the united "convict adjudged to suffer death by any such court or judge, and pardoned on condition of transportation, has been or shall be transportation, "brought to England in order to be transported, it shall and may "be lawful to imprison any such offender in any place of confine"❝ment provided under the authority of this act, until such convict "shall be transported, or shall become entitled to his liberty; and brought to ❝that so soon as every such convict shall be so imprisoned, all the to England, be imprisoned "provisions, rules, regulations, clauses, authorities, powers, pe- and transport"nalties, matters and things aforesaid, concerning the safe cus"tody, confinement, treatment, and transportation, of any offender "convicted in Great Britain, shall extend and be construed to ex"tend 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.”

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It is then provided, that it shall be lawful to keep to hard labour every offender under sentence or order of transportation, while he or she shall remain in the common gaol, if his or her health will permit; and if one or more of the visiting justices 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. (ƒ) And the time during which any offender shall continue in any gaol or house of correction, or in any such place of confinement as aforesaid, under sentence or order of transportation, is to be reckoned in discharge or part discharge of the term of transportation or banishment.(g) Provision is then made for the secure removal of offenders through any county to the seaports or places of confinement, and for the payment of the expenses of removal by the county in which the conviction took place. (h)

ed.

The twenty-second section enacts "that if any offender who S. 22. Offenders

ordered to be

transported,

afterwards at

large, without lawful cause, made liable to capital punish.

ment.

And may be

tried where apprehended, or where they were ordered

"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 "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, 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 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 "rescuing or attempting to rescue, any such offender from the "custody of such superintendant or overseer, or of any sheriff or Persons rescu- «gaoler, or other person conveying, removing, transporting or reconveying him or her, or shall convey, or cause to be conveyed "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 fined in a gaol 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."

to be trans

ported.

ing or attempt

ing to rescue, &c., such offenders punishable as if such offenders had been con

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 sen tence.

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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

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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, "or sentence, or any pardon or intention of mercy, or significa"tion thereof, of or against, or in any manner relating to such "offender."

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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 certificate shall be sufficient "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 "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 punishment of blasphemous and seditious libels.'

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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.

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The latter statute repealing s. 43 of the 56 G. 3. c. 63. 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, break prison, or escape from the place of his or her "confinement, or in his or her conveyance to such place of con"finement, or from the person or persons having the lawful custody 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 66 to break prison, or escape from the place of his or her confinement, 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."

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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 in such rescue,

to be guilty of felony, and confined in the Penitentiary. And persons having the custody of such convicts, and voluntarily permitting an escape, and

other persons aiding or attempting any escape or rescue, to be guilty of felony. And any person having 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.

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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 person 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 convict, or be aiding and assisting in any such attempt, though 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, at "the discretion of the court."

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66

66

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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 such confinement.

6 G. 4. c. 5. Mutiny Actprovides for the punishment of persons returning from trans

The mutiny acts also make provision for the punishment of persons returning from transportation after sentence by a courtmartial. 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 portation 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 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

court-martial.