in attempting to escape from any prison, every person so offending, whether an escape 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."(z)

Sec. 44. To the intent that prosecutions for escapes, breaches of prison, and rescues, may be carried on with 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. (a)

Where a count stated that the gaol thereinafter mentioned, situate at the parish of the Holy Trinity, in Coventry, in the county of W., was a gaol to which the *605] provisions of the 4 Geo. 4, *c. 64, extended, and that one Thompson was a prisoner in the said gaol, and that the defendant, at the parish aforesaid, feloniously did aid and assist Thompson, then, and there being such prisoner, in attempting to escape from the said gaol; it was held on error that the count was good, though it did not allege the means by which the defendant aided Thompson in attempting to escape, and though it did not allege in direct terms that Thompson did attempt to escape. (b) Another count stated that Thompson, being a prisoner in the said gaol, so situate as aforesaid, was meditating and endeavoring to effect his escape from the said gaol, otherwise than by due course of law, and in order thereto had procured a key to be made with intent to effect his escape by means thereof, and had made to the defendant, 'then being a turnkey of the said gaol, overtures to induce him to aid him to escape from the said gaol, and so was endeavoring to procure his escape and to escape from the said gaol; and that the defendant, whilst Thompson was such prisoner in the said gaol at the parish aforesaid, &c., feloniously did procure and receive into his possession the said key, being adapted to and capable of opening divers locks in the said gaol, with intent thereby to enable Thompson to escape from the said gaol, and so the jurors said that the defendant at the parish aforesaid feloniously did aid and assist Thompson in attempting to escape from the said gaol; and it was held that the introductory part of the count stated an attempt to escape and the means used with sufficient particularity, and sufficiently showed an offence within the 4 Geo. 4, c. 64, and that the count was not bad for want of a more particular venue to the acts charged in the introductory part as an attempt by Thompson to escape, and that the count was not double.(c) It was also held, that the general averment of the gaol being a gaol to which the provisions of the 4 Geo. 4, c. 64, applied was sufficient, without showing how it came within them, and that it was not necessary to show more particularly that the gaol was a goal for the county within the 5 & 6 Vict. c. 110, s. 2.(d) It was further held, that aiding an escape is a substantive offence under the 4 Geo. 4, c. 64, s. 43, and therefore the count was not bad in charging the accessory without including the principal or alleging that he had been convicted, and at all events such an objection was too late after the trial.(e) It was also held, that it was not necessary to show that the prosecution was commenced within a year after the offence, as was required by the 16 Geo. 2, c. 31, s. 4.(ƒ)

The 1 & 2 Vict. c. 82, established a prison for young offenders at Parkhurst, in the Isle of Wight; and sec. 13 provides for the punishment of persons rescuing or

(z) Penal servitute for fourteen and not less than three years by the 20 & 21 Vict. c. 3, 8. 2, ante, p. 4. The principals in the second degree are punishable like the principals in the first degree; and as to accessories, see ante, p. 67, et seq.

(a) See this provision more at large, ante, p. 582. See ante, p. 595.

(b) Holloway v. The Queen, 17 Q. B. 317 (79 E. C. L. R.); 2 Den. C. C. 287.

(c) Ibid.

(d) Ibid.

(e) Ibid.

(f) Ibid. It was also held that if one of the several counts be good, the Court may. under the 11 & 12 Vict. c. 78, s. 5, pronounce the correct judgment, or direct the inferior Court to pronounce it, on the good count.

[*606

persons

aiding in the rescue of such offenders; and sec. 14 provides for the trial and evidence on the trial in such cases. The 6 & 7 Vict. c. 26, s. 23, an Act for regulating the prison at Millbank, provides for the punishment of persons rescuing or aiding in the rescue of convicts from that *prison; and sec. 26 provides for the trial and evidence in such cases. The 5 Vict. sess. 2, c. 29, s. 25, an Act for establishing a prison at Pentonville, provides for the punishment of rescuing or aiding in the rescue of convicts from that prison; and sec. 28 provides for the trial and evidence in such cases. The 10 & 11 Vict. c. 62, s. 8, an Act for the establishment of naval prisons, provides for the punishment of persons aiding the escape of prisoners from those prisons. The 23 & 24 Vict. c. 75, s. 12, an Act to make better provision for the custody of criminal lunatics, provides for the punishment of persons rescuing any person ordered to be confined in an asylum for criminal lunatics.

The 5 Geo. 4, c. 84, which was passed for the purpose of revising and consolidating the laws for regulating the transportation of offenders from Great Britain, which will be more particularly noticed in the next chapter, by sec. 22, provides, that if any person shall rescue or attempt to rescue, or assist in rescuing or attempting to rescue, any offender sentenced or ordered to be transported or banished, from the custody of the superintendent or overseer, or of any sheriff or gaoler, or other person, conveying, removing, &c., such offender, 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 such offender shall have been convicted.(g)

The two following sections relate to the indictment and the evidence, and will be found in the next chapter.

By the 23 & 24 Vict. c. 75, s. 12, "any person who rescues any person ordered to be conveyed to any asylum for criminal lunatics during the time of his conveyance thereto or his confinement therein, and any officer or servant in any asylum for criminal lunatics who through wilful neglect cr connivance permits any person confined therein to escape therefrom, or secretes, or abets or connives at the escape of any such person, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for the term of five (27 & 28 Vict. c. 47) years, or to be imprisoned for any term not exceeding two years, with or without hard labor, at the discretion of the Court; and any such officer or servant who carelessly allows any such person to escape as aforesaid shall, on summary conviction before two justices of such offence, forfeit any sum not exceeding twenty pounds nor less than two pounds."

*CHAPTER THE THIRTY-FIFTH.

[*607

OF RETURNING, OR BEING AT LARGE, AFTER SENTENCE OF TRANSPORTATION; AND OF RESCUING OR AIDING THE ESCAPE OF A PERSON UNDER SUCH SENTENCE.

As exile or transportation is a species of punishment unknown to the common law of England, and inflicted only under the sanction of enactments of the legislature, offences committed by not submitting to that punishment are principally dependent upon the provisions of particular statutes. (a) But as a party convicted

(g) The provisions of this Act are now applicable to prisoners sentenced to penal servitude, see post, p. 616.

(a) In 6 Ev. Col. Stat. Part. V. Cl. xxv. (G.) pp. 852, 853, the learned editor says, that the earliest Act which imposed the punishment of transportation was 39 Eliz. c. 4, which enacted that rogues, vagabonds, &c., might, by the justices in sessions, be banished out of the realm, and conveyed at the charges of the county to such parts beyond the seas as should be assigned by the privy council, or otherwise adjudged perpetually to the

of felony within benefit of clergy, and sentenced to be transported for seven years, continues a felon, till actual transportation and service, pursuant to the sentence; and as it is a 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 felony after the fact, provided it be such an assistance as in law amounts to a receiving, harboring, or comforting such felon.(b) The 5 Geo. 4, c. 84, s. 1, recites, that the several laws in force for regulating the transportation of offenders from Great Britain, would expire at the end of the then present session of Parliament, and that it was expedient that the laws relative to that subject should be revised and consolidated into one Act; and then enacts that the Act shall take effect on the last day of that present session of Parliament; and that on and from that day all things 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 transported 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.

*Sec. 2. "Every person convicted before any Court of competent juris*608] diction in Great Britain, of any offence for which he or she shall be liable to be transported or banished, shall be adjudged and ordered to be transported or banished beyond the seas, for the term of life or years for which such offender shall be liable by any law to be transported or banished; and every sentence of transportation or banishment passed or to be passed on any offender, in any Court of competent jurisdiction in Great Britain, and every order for transportation or banishment made or to be made in pursuance of the sentence of any such Court or other competent authority, shall subject the offender to be conveyed beyond the seas, under the provisions of this Act; and 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 transportation 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 entered 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,

gallies of this realm; and any rogue so banished, and returning again into the realm, was to be guilty of felony. And he says that the earliest statute then subsisting which notices the power of transportation was 22 Car. 2, c. 5.

(b) Rex v. Burridge, 3 P. Wms. 439.

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."

Sec. 3. "It shall be lawful for his Majesty, by and with the advice of his privy council, from time to time, to appoint any place or places beyond the seas, either within or without his Majesty's dominions, to which felons and other offenders under sentence or order of transportation or banishment shall be conveyed; and that when any offenders shall be about to be transported or banished from Great Britain, one of his Majesty's principal secretaries of state shall give orders for their removal to the ship to be employed for their transportation, and shall authorize 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."(c)

[*609 Secs. 4, 5, 7 provide 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 ships). Sec. 6 gives authority to punish such offenders misbehaving themselves upon the voyage; and sec. 8 vests a property in their services during the term of transportation in the governor of the colony, &c., and his assignees.(d)

Sec. 10. "It shall be lawful for his Majesty from time to time, by warrant under his royal sign manual, to appoint places of confinement within England or Wales, either by land, or on board vessels to be provided by his Majesty in the river Thames, or some other river, or within the limits of some port or harbor of England or Wales, for the confinement of male offenders under sentence or order of transportation, which shall be under the management of a superintendent or 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 examined by an experienced surgeon or apothecary, shall appear to be free from any putrid or infectious distemper, and fit to be removed from the gaol or prison in which such offender shall be confined, to any of the places of confinement so appointed; and 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 become 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 convenient speed, after the receipt of any such order, convey or cause to be conveyed every such offender to the place appointed, and there deliver him to such superintendent or overseer, together with a true copy, attested by such sheriff or gaoler, of the caption and order of the Court by which such offender was sentenced or ordered for transportation, containing the sentence or order of transportation of each such offender, by virtue whereof he shall be in 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 an account of his behavior in prison before and after his trial, and the gaoler's observations on his temper and disposition, and such information concerning hist connexions and former course of life as may have come to the gaoler's knowledge; *and such superintendent or overseer shall give a receipt in writing to the sheriff or gaoler for the discharge of such sheriff or gaoler."(e)

[*610

(c) See the 11 Geo. 4, and 1 Will 4, c. 39, as to the delivery of convicts at one place instead of another, &c.

(d) See 9 Geo. 4, c. 83, s. 9, as to assignment of convicts.

(e) By the 10 & 11 Vict. c. 67, s. 2, "It shall be lawful for Her Majesty, by an order in writing, to be notified in writing by one of Her Majesty's principal secretaries of state, to direct that any persons under sentence or order of transportation in Great Britain

Secs. 11, 12, authorized his Majesty to appoint a superintendent, an assistant to the superintendent, and an overseer, for such places of confinement; specified the duties of the superintendent; and contained regulations for the cleansing, purifying, and clothing the offenders brought to such places.(ƒ)

Sec. 13. "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 labor 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 declared in council, it shall be lawful for one of his Majesty's principal secretaries of state to direct the removal and confinement of any such male offender, either at land or on board any vessel to be provided by his Majesty, within the limits of any port or harbor in that part of his Majesty's dominions which shall be named in such order in council, under the management of the said superintendent, and of an overseer to be appointed by his Majesty for each such vessel or other place of confinement; 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 Majesty shall otherwise direct, or until the offender shall be entitled to his liberty."(g)

Sec. 15. "After the removal of any offender under this Act, the superintendent and overseer, who shall have the custody of him, shall, during the term of such custody, have the same powers over him as are incident to the office of a sheriff or a gaoler, and shall in *like manner be answerable for any escape of such

*611] offender; and if any offender shall during such custody be guilty of any

misbehavior or disorderly conduct, the superintendent 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 principal secretaries of state; and such superintendent or overseer shall also, during such custody, see every offender fed and clothed according to a scale of diet and clothing to be fixed on and notified in writing by one of his Majesty's principal secretaries of state to the superintendent; and shall keep such offender to labor 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 any such superintendent 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."

shall be removed from the prisons in which they are severally confined to any other of Her Majesty's prisons or penitentiaries in Great Britain, there to be confined for such time as Her Majesty by any such order shall direct, not exceeding the time for which they might have been confined in the prisons from which they shall have been severally removed." The 16 & 17 Vict. c. 121, recites the 5 Geo. 4, c. 84; 9 & 10 Vict. c. 26, and 13 & 14 Vict. c. 39, and extends all the powers and provisions of sec. 10 of the 5 Geo. 4, c. 84, authorizing the appointment of places of confinement of males to the like places of confinement for females under sentence of transportation, and the removal to or from and the confinement in such places of females, and applies all the provisions of the recited Acts relating to the government of places appointed under sec. 10 to places appointed

under this Act.

(f) The 9 & 10 Vict. c. 26, s. 1, repeals so much of the 5 Geo. 4, c. 84, as gives the custody and management of any male offenders out of England to the superintendent of convicts confined in England under sentence of transportation," and provides that his powers may be exercised by the governor of the colony. The 22 & 23 Vict. c. 25, s. 1, repeals such parts of the 5 Geo. 4, c. 84 "as relate to the control and management of offenders sent to be kept to hard labor at places out of England duly appointed for the purpose," and such parts of the 9 & 10 Vict. c. 26, "as relate to the appointment of superintendent, deputy superintendent, and overseer respectively in places out of England;" and makes numerous provisions for the government of convict prisons abroad, the punishment of escapes and rescues, and the trial of such offences abroad.

(g) This clause is extended to male offenders sentenced in Ireland to be transported by the 10 & 11 Vict. c. 67, s. 1. See the 6 Geo. 4, c. 69. s. 1, for the punishment and trial of persons committing offences out of England, whilst kept to hard labor under this

section.