no evidence that he knew of what specific offence the person he assisted had been convicted. (b) 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) 66 guise, arms, a sufficient in an escape. 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"tion in England and Wales, enacts, that if any person shall convey or cause to be conveyed into any prison, to which the act "shall extend, any mask, vizor, or other disguise, or any instru"ment or arms proper to facilitate the escape of any prisoners, "and the same shall deliver or cause to be delivered to any pri66 soner in any such prison, or to any other person there for the use of any 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." 66 66 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. (i) The late statute, 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, and which will be more particularly noticed in the next Chapter, 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 superintendant or overseer, or of any sheriff or gaoler, or other person, convey (b) Rex v. Shaw and others, ante, note (a). An indictment at common law for aiding a prisoner's escape should state that the party knew of his offence. Rex v. Young, Trin. T. 1801, MS. Bayley, J. (c) Rex v. Shaw and others, ante, note (a). (i) See this provision more at large ante, p. 368. 5 Geo. 4. c. 84. s. 22. Persons rescuing or aiding the escape of offenders, ordered to be transported, from the custody of the overpunishable as seer, &c. made if such offend ers had been in the custody of a sheriff or gaoler. ing, 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. (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. CHAPTER THE THIRTY-FIFTH. OF RETURNING, OR BEING AT LARGE, AFTER SENTENCE OF TRANS- cape, makes the party an accessory after 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 seven years, continues a felon, till actual transportation and service, 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) sons sentenced under the pro 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. 1. 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 visions of 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 XXV. (a) In 6 Ev. Col. Stat. Part V. Cl. (G) p. 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 ad- (b) Rex v. Burridge, M. T. 1735. S. 2. Offenders adjudged for transportation ported under the provisions of this act. 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. The second section enacts, "that from and after the commence"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 "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 fenders receiv-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 And also of ing a condi tional pardon, concerning whom an allowance and order may be made by a subsequent court. S. 3. Places of transportation 66 or to be made in pursuance of the sentence of any such court or "other competent authority, shall subject the offender to be con"veyed 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 trans66 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." The third section enacts, "that it shall be lawful for his Ma make contracts "jesty, by and with the advice of his privy council, from time to to be appointtime, to appoint any place or places beyond the seas, either with- ed by his Majesty. And a se"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 that when any 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 transportation, 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 ships). (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) 66 The tenth section enacts, "that it shall be lawful for his Majesty "from time to time, by warrant under his royal sign manual, to ap"point 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 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; " 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 prin"cipal 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, 66 S. 10. Places ment in England may be appointed by his Majesty. of confine |