66 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." (q) 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; (r) 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 proceedings had for the said purposes. (b) 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 Points decided upon former statutes. Indictment of former conviction. the same consequences 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. It may be useful to mention some of the points decided upon the statutes which formerly related to the offences treated of in this Chapter. Where a capital convict had a conditional pardon and escaped, and certificate and the indictment against him stated, that the king's pleasure 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 unanimous 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. (b) 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 statute (24 G. 3. c. 56. s. 5.) which required a certificate containing the effect and substance only, omitting the formal part of the indictment and conviction, the indictment stated, that the prisoner 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 required 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 (s) See 56 Geo. 3. c. 119. (t) See the last act 6 Geo. 4. c. 6. s. 7, 8, et sequ. (a) Rex v. Treadwell, Mich. Term, 1781. MS. Bayley, J. The statute then in force upon the subject was 19 G. 3. c. 74. s. 28. (b) S. 23. ante, 398., and see also s. 2. ante, 394. (c) Rex v. Sutcliffe, East. T. 1788. MS. Bayley, J. Russ. and Ry. 469, 470. only that the prisoner had been convicted of felony, were insufficient; and the prisoner was remitted to his former sentence.(d) Where an indictment stated the condition upon which the royal mercy was extended to have been general, whereas it appeared not to have been general but specific, viz., that the prisoner should be transported to places specified, the variance was held to be fatal. (e) prisoner's dis Where the prisoner had received a pardon on condition of trans- Evidence of porting himself beyond the seas, within fourteen days from the the day of the day of his discharge, and it was incumbent on the prosecutor to charge. prove the precise day on which the prisoner was discharged, it was holden that the daily book of the prison, containing entries of the names of the criminals brought to the prison, and the times when they were discharged, though generally made from the information of the turnkeys, or from their endorsements on the backs of the warrants, was good evidence to prove the time of the prisoner's discharge. (w) And it was held, that though, if a convict on his trial for returning from transportation before his time was expired should confess the fact, and acknowledge that he is the man, the court would record such confession; yet, no such confession being made, it was necessary to produce the record of conviction, and give evidence of the prisoner's identity. (x) When a convict was sentenced to transportation for seven Evidence of a years, and received a sign manual, promising him a pardon, "on sign manual. "condition of his giving a security to transport himself for that "period within fourteen days," and upon his giving such security was discharged from prison, but neglected to transport himself within the fourteen days: it was holden that he could not be indicted for being unlawfully found at large before the term for which he had received sentence of transportation had expired, on the ground that such sign manual, and the recognizance entered into in consequence of it, were good evidence that he was lawfully at large; although he had not substantially performed the condition on which the promise of pardon was granted. (y) (d) Rex v. Watson, Mich. T. 1821. Russ. and Ry. 468. (e) Rex v. Fitzpatrick, Russ. and Ry. 512. (w) Aickle's case, 1 Leach 391, 392. (x) 1 Hawk. P. C. c. 47. Return from Transportation, s. 21. The late statute, 5 Geo. 4. c. 84. s. 24. makes a certificate of the conviction, &c. sufficient evidence. Ante, 398. (3) Miller's case, 1 Hawk. P. C. c. 41. Return from Transportatian, s. 22. Cas. C. L. 69. 1 Leach 74. 2 Blac. R. 797. It appears that the Judges considered, that the sign manual was improperly worded by mistake of the officer: that it should have been, xx upon condition of the said Miller transporting himself, &c. and of his giving security to the satisfaction, "&c." and not merely "upon condi"tion of his giving security, &c." and that though the king might re- As to the offender being original sen portation. 66 In the last case, the prisoner was referred to his original senreferred to his tence of transportation, as not having performed the condition upon which his pardon was to be granted; that is, he was partence of trans- doned on condition of transporting himself within fourteen days. (*) And in another case it was holden, that a prisoner convicted of a capital crime, whose sentence was respited during the king's pleasure, and who, having received a pardon on condition of transportation for life, was afterwards found at large in Great Britain without lawful cause, should be referred to his original sentence. (a) In a subsequent case, where the prisoner, having been convicted of simple grand larceny, had received judgment of transportation to America for seven years, but had afterwards been pardoned, "on condition of transporting himself beyond the seas for the same term of years, within fourteen days from the "day of his discharge, and of giving security so to do," and, upon giving the security required, had been discharged, but had not complied with the other part of the condition, by transporting himself, it was doubted whether he could be convicted of a capital felony in being found at large, without any lawful cause, before the expiration of the term, or whether he ought to be remitted to his former sentence. The former cases were cited as authorities that the prisoner's discharge was a lawful cause for his being at large, notwithstanding he had forfeited the recognizance of himself and his bail, by breaking the other part of the condition, in not transporting himself within the fourteen days: but one of the Judges thought that, as the prisoner had not complied with the terms on which he was pardoned, he must be considered as having been at large without lawful authority, as soon as the fourteen days had expired. Another Judge considered it as a doubtful question whether the non-performance of the condition had not rendered the whole pardon null and void: and he also thought that the offence with which the prisoner was charged was not within one of the statutes then relied upon, namely, the 16 G. 2. c. 15., because he had not agreed to transport himself to America; (≈) Miller's case, 1 Leach 76. (a) Madan's case, Old Bailey, 1780. Leach 223. In 1 Hawk. P. C. c. 47. Return from Transportation, s. 23 (referring to Cas. C. L. 197.) this case is cited as having decided that the prisoner was so referred back to his original sentence, on his being indicted for returning from transportation, and acquitted. But in the report in Leach, it is said that no indictment was ever preferred against the prisoner for the new felony; but that, being in custody, a notice was served upon him to shew cause why execution should not be awarded against him on his former sentence: that after this notice he was put to the bar, and his identity and the record of his former conviction proved; and he not being prepared to prove the truth of certain facts alleged in his defence, the court gave their opinion that, as he had broken the condition of the pardon, he remained in the same state in which he was at the time the pardon was granted, viz. under sentence of death, with a respite of that sentence during his majesty's pleasure. The report further states, that afterwards it was submitted to the Judges, whether the prisoner would not have been liable to suffer death without benefit of clergy, if he had been indicted and convicted under a statute then existing, namely, the 8 G. 3. c. 15., or whether he had been properly referred to his original sentence. No opinion of the Judges is stated: but it appears, that at the Old Bailey, April Sess. 1782, the prisoner was informed by the court that it was his majesty's pleasure that he should be transported to Africa for life. and that it was not within another statute, namely, 19 G. 3. c. 74. because that act related only to pardons granted to offenders who had been convicted of felonies by which they were excluded from clergy. (d) Poverty and ill health amount to a lawful excuse In the last mentioned case, one point was clearly agreed upon, namely, that as the prisoner had, at the time of his discharge, a real intention to quit the kingdom within the time, but had been prevented from carrying it into execution by the distress of for not having quitted the poverty and ill health, these impediments amounted to a lawful kingdom. excuse. (e) (d) Aickles's case, Old Bailey, 1785. cor. Gould, J., Hotham, B., and Adair, Recorder. The Recorder thought, that the indictment was perfectly supported under the clause of the 16 G. 2. c. 15. adopted by 19 G. 3. c. 74. which made it a capital felony to be found at large in Great Britain within the term for which a convict, who was liable to be transported to America, had received sentence to be transport ed beyond the seas. But he thought, (e) Aickles's case, 1 Leach 396.; and |