Acts in force regulating transportation, &c.

5 Geo. IV. c. 84. Commencement

which all persons

already sentenced

or ordered for transportation shall be placed.

We will proceed to consider this title under the following heads -

I. The Statutes regulating the Transportation of Offenders, and Custody, and other Matters relative to them while under Sentence and abroad.

II. The Offence of returning from Transportation.

I. The Statutes regulating the Transportation, &c. of Convicts. The principal act now in force regulating the transportation of offender is 5 Geo. IV. c. 84, which revives and consolidates all the laws on the subject.

By the 5 Geo. IV. c. 84, intituled "An Act for the Transportation of Offenders from Great Britain," after reciting, that "whereas the severa of act under the laws in force for regulating the transportation of offenders from Grea provisions of Britain will expire at the end of the present session of parliament, and i is expedient that the laws relative to that subject shall be revised and consolidated into one act:" it is enacted, "That this act shall take effec on the last day of this present session of parliament; and that, on an from that day, all things remaining to be done, touching the punishment imprisonment, correction, removal, transportation, discipline, employ ment, diet, and clothing, of persons sentenced or ordered to transporta tion or banishment from any part of Great Britain, under any acts here tofore or now in force, or pardoned on condition of being transported under any such acts, shall be continued, done, and completed under the provisions of this act; and that all sentences and orders for transporta tion, all orders in council, and other orders, warrants, instructions, direc tions, appointments, authorities, contracts, and securities made, issued, given under any of the said acts, and in force at the time of the commence ment of this act, shall continue in force under and by virtue of this act, unless and until they shall be revoked or superseded."

Sect. 2. "From and after the commencement of this act, every person convicted before any court of competent jurisdiction 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

5 Geo. IV. c. 84.

court during the term or session in or at which such offender was con- 1. Statutes victed; and such allowance and order shall be considered as an allowance Regulating. 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, 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."

transportation.

Sect. 3. "It shall be lawful for his majesty, by and with the advice of His majesty may his privy council, from time to time, to appoint any place or places beyond appoint places of 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 Secretary of state be transported or banished from Great Britain, one of his majesty's southorize perprincipal secretaries of state shall give orders for their removal to the ship tracts for transto be employed for their transportation, and shall authorize and empower portation. 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."

sons make con

ders for removal

deliver them over

temper.

Sect. 4. "The sheriff or gaoler receiving such order of removal shall Sheriffs or gaolers, by virtue thereof forthwith remove every offender to whom the same shall on receiving orapply, and who, having been examined by an experienced surgeon or of offenders for apothecary, shall appear to be free from any putrid or infectious distem- transportation, to per, and fit to be transported to the ship employed for his or her trans- to the contractor, portation, and there deliver every such offender to the contractor, together if free from diswith a true copy, attested by such sheriff or gaoler, of the caption and order of the court by which each such offender was sentenced or ordered for transportation, containing the sentence or order of transportation of each such offender, by virtue whereof he or she shall be in the custody of such sheriff or gaoler; and also a certificate specifying concisely the description of his or her crime, his or † age, whether married or unmarried, † Sic in act. his or her trade or profession, and an account of his or her behaviour in prison before and after trial, and the gaoler's observations on his or her temper and disposition, and such information concerning his or her connections and former course of life as may have come to the gaoler's knowledge; and such contractor shall give a receipt in writing to the sheriff or gaoler, for the discharge of such sheriff or gaoler."

Sect. 5. "Every such contractor, with two sureties, shall, before any Persons undersuch offender shall be delivered to him to be transported, give security by taking to transport offenders to bond to his majesty, that he will effectually transport, or cause to be give proper transported, every offender included in his contract, to such place beyond security. the seas as shall be specified in the contract, and procure from the governor of the colony, or other person or persons to whom he shall be directed by one of the principal secretaries of state to deliver such offenders, a certificate of the landing of such offender in that place, whereto he or she shall be ordered to be transported (death and casualties by sea excepted); and that such offender shall not be suffered to return to any part of the United Kingdom, by the wilful default of such contractor, or of any person employed by him."

behaving on the voyage.

Sect. 6. "If any such offender shall be guilty of misbehaviour or dis- For punishment orderly conduct on board of the ship in which he or she shall be trans- of transports misported, it shall be lawful for the surgeon or principal medical officer for the time being of such ship, to inflict or cause to be inflicted on such misbehaving or disorderly offender, such moderate punishment or correction as may be authorized by the instructions which he may receive from one of his majesty's principal secretaries of state: provided always, that no such punishment or correction shall be so inflicted, unless the master or principal officer for the time being of such ship shall first signify his ap

1. Statutes Regulating.

5 Geo. IV. c. 84. Such punishment

to be entered on log book.

Secretary of state

may give custody

of offenders trans

ported in king's ships, without security.

Governor of the

colony, &c., to

service of of

fender.

probation thereof in writing under his hand; and every such punishment or correction, together with the particulars of the offence for which the same is inflicted, and such written approbation as aforesaid, shall on the same day, in all cases, be entered by such master or principal officer as aforesaid, upon the log-book of the ship, under a penalty of 201. for every neglect to make such entry, to be recovered to the use of the informer, by bill, plaint, or information in any court of record in England, or in one of the supreme courts of New South Wales, or Van Diemen's Land." Sect. 7. "Provided, that whenever the transportation of any such offender shall take place in any ship belonging to his majesty, it shall be lawful for one of the principal secretaries of state, by warrant under his hand, to nominate some person or persons who shall have the custody of such offender during the voyage, and thereupon such offender may be delivered to such nominee or nominees, without any contract or security being required or given for the effectual transportation of such offender; and every such nominee shall have the like power of punishing misbeha viour and disorderly conduct in such offender during the voyage, as is hereby given to the surgeon of a ship specially employed for the transpor tation of offenders."

Sect. 8. "So soon as any such offender shall be delivered to the have property in governor of the colony, or other person or persons to whom the contractor, or such nominee or nominees as aforesaid, shall be so directed to deliver him or her, the property in the service of such offender shall be vested in the governor of the colony for the time being, or in such other person or persons; and it shall be lawful for the governor for the time being, and for such other person or persons, whenever he or they shall think fit, to assign any such offender to any other person for the then residue of his or her term of transportation, and for such assignee to assign over such offender, and so often as may be thought fit; and the property in the service of such offender shall continue in the governor for the time being, or in such other person or persons as aforesaid, or his or their assigns, during the whole remaining term of life or years for which such offender was sentenced or ordered to be transported: provided always, that for the purposes of this act, every person administering the govern ment of a colony, by whatever name or title he may be denominated, sha!! be deemed to be the governor thereof."

What persons deemed govern

ors.

King's prerogative.

His Majesty to

confinement of

offenders in England.

Sect. 9. " Provided that nothing in this act contained shall in any manner affect his majesty's royal prerogative of mercy."

Sect. 10. "It shall be lawful for his majesty, from time to time, by appoint places of warrant under his royal sign manual, to appoint places of confinement within England or Wales, either at 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 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 oversee: Order of removal. to be appointed by his majesty; and that it shall be lawful for one of his

Duty of sheriff

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 afore said, 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

thereon.

paoler having the custody of any offender whose removal shall be ordered 1. Statutes ʼn manner aforesaid, shall, with all convenient speed, after the receipt of Regulating. ny such order, convey or cause to be conveyed every such offender to 5 Geo. IV. c. 84. he place appointed, and there deliver him to such superintendant or wverseer, together with a true copy, attested by such sheriff or gaoler, of and gaoler be caption and order of the court by which such offender was sentenced 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 conesely the description of his crime, his age, whether married or unmarried, Las trade or profession, and 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 Curse of life as may have come to the gaoler's knowledge; and such perintendant or overseer shall give a receipt in writing to the sheriff or der, for the discharge of such sheriff or gaoler."

Sect. 11. "It shall be lawful for his majesty to appoint one fit and able Appointment by person to be superintendant of the said places of confinement; and in his mastant superintendant of sit shall be deemed expedient, it shall be lawful for his majesty also places of contineappoint one fit and able person to be assistant or deputy to such super- ment, &c. intendant, at one or more of the said places of confinement, and to be His duty. nstantly resident at or near the place or places to which he shall be ppointed; and also one fit and able person to be overseer of each such ice of confinement, who, with a sufficient number of officers and guards, constantly reside therein; and such superintendant shall personally Fat and inspect such places of confinement four times in every year, or fener if occasion shall require, and shall distinctly examine into the tate of such places of confinement, the behaviour and conduct of the rospective assistants or deputies, overseers, officers, and guards, the treatent and condition of the prisoners, and the amount of the several earn. , and the expenses attending every such place of confinement, and tal, at least twice in every year, make a faithful report of the same to Report of state of e of his majesty's principal secretaries of state, who shall cause such such places to report to be laid before both houses of parliament at the beginning of ery session: and such superintendant shall distinguish in such report te amount of the earnings and expenses at each of such places of confement, and shall state the average number of prisoners confined therein, the number of days' labour done by such prisoners, distinguishing the work of artificers, and of any other superior labourers, from that of mmon labourers; and such superintendant shall also, in matters of extreme necessity, make a special report thereof to one of his majesty's principal secretaries of state, who may and is hereby authorized to afford A redress or provide such regulations as he shall deem proper; and ach superintendant, assistants, or deputies, and overseers, shall continue office during his majesty's pleasure, and shall receive such salaries as te of his majesty's principal secretaries of state shall appoint; and such perintendant shall be paid such travelling and other reasonable expenses as shall be incurred by him in discharge of his duty."

secretary of state.

purifying and

Sect. 12. "Whenever any offender shall be brought to any such place Regulations for confinementas aforesaid, in pursuance of the powers of this act, he shall cleansing and be washed, cleansed, and purified, and the clothes in which he shall be clothing of en clothed shall be burnt, if necessary, or otherwise shall be pre- fenders. erved and taken care of for him by the overseer, and re-delivered to his quitting it, or sold for his benefit, and the produce thereof accounted for to him by the overseer; and when such offender shall be Subsistence alfinally discharged, such other decent clothing, as shall be judged necessary charge. and proper by the superintendant, shall be delivered to such offender by the overseer, and also such sum cf money for his immediate subsistence as the superintendant shall think proper, so as such sum shall not in any

upon

case exceed 31."

lowed on dis

Sect. 13. "It shall be lawful for his majesty, by any order or orders in His majesty, in council, to declare his royal will and pleasure, that male offenders con- council, may di

1. Statutes Regulating.

5 Geo. III. c. 84.

rect convicts to be employed in any part of his

victed 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 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 dominions out of land or on board any vessel to be provided by his majesty, within the limits of any 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 ma jesty 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 ma jesty, until his majesty shall otherwise direct, or until the offender shall be entitled to his liberty."

England, under management of superintendant and overseer.

Superintendant

to make returns of prisoners to

as herein mentioned.

Power and duties

and overseers.

Sect. 14. "The said superintendant shall from time to time make re turns, specifying the name of every person in custody in each of such secretary of state places of confinement, the offence of which he shall have been guilty, the court before which he shall have been convicted, and the sentence of such court, together with his age and bodily state, and his behaviour whilst in custody; and also the names of such offenders as shall have died whilst in such custody, or shall have escaped, or have been lawfully discharged from the same; which returns shall be made on the first day of January, April, July, and October, in every year, to one of his majesty's principal secretaries of state, on the oath of the overseer of each place of confinement, such oath to be made before a justice of the peace." Sect. 15. "After the removal of any offender under this act, the supers of superintendant intendant 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 gaoler, and shall in like manner be answerable for any escape of such offender; and if any offender shall, during such custody, be guilty of any misbehaviour, or disorderly conduct, the super intendant 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 superintendant 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 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 any such superintendant or overseer, or of the vacancy of his office, his duties or powers shall be discharged and ex ercised in all respects by the officer or person on whom the command of the place of confinement shall devolve.”

Superintendant

as a justice of the peace.

Sect. 16. "It shall be lawful for such superintendant, and he is hereby empowered to act authorized, in every such place of confinement as aforesaid, either at land or on board any vessel to be provided as aforesaid, and also in every place wherein any offenders under his superintendance shall be employed to labour, to act in every respect as a justice of the peace, as if he had been named in the commission of the peace, and had been duly qualified to act as a justice of the peace for the county or place in which any such place of confinement shall be, or any such offender shall be employed to labour."

Sect. 17. After reciting, that "by the laws in force in some parts of his majesty's dominions not within the United Kingdom, offenders convicted of certain offences are liable to be punished by transportation beyond the seas, and other convicts adjudged to suffer death in such parts of his majesty's dominions have received or may receive his majesty's most gracious pardon, upon condition of transportation beyond the seas, and there may be no means of transporting such convicts to any of the places