CHAPTER XXVIII.

OF RETURNING FROM TRANSPORTATION.

THE offence of Returning from Transportation bears a close affinity to that of prison-breaking; with this difference, that being a violation of an order for a severe punishment, it is chastized with far greater severity.

1. By special statute the returning from transportation is punishable with death.

By 5th Geo. IV. c. 84, which regulates the transportation of offenders, it is enacted, "That if any offender who shall have been or shall be sentenced or ordered to be transported 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, before 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 convicted, shall suffer death, as in cases of felony, without benefit 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." Several trials have taken place in Scotland of late years; but in none of these has it been deemed necessary to inflict the extreme penalty of the law.

Thus, in the case of Walter Middleton, June 2. 1828, the pannel, convicted of returning from transportation under this act, was sentenced to be transported for fourteen years.1 The 1 Unreported.

like sentence was inflicted on David Craig, 8th January 1828, for a similar offence.1 In both cases the libel was restricted.2 In the case of Angus Maclean, March 14. 1830, the prisoner stood his trial, and was transported for life.3

2. In proof of this offence, it is sufficient to prove the first conviction, and the fact of the pannel being found at large in Scotland, before the expiry of the period of his transportation.

The prosecutor, in proving his case, must of course commence with establishing the first conviction, and its application to the prisoner. This is to be done by production of the extract of the conviction, which proves itself, and proof by two persons who saw him convicted, or in jail, under warrant of the sentence, and can prove its application to him. Having done this much, and proved that the pannel was found at large in this country, before the term of transportation expired, he has done enough to obtain a conviction. It is of no consequence whether the pannel was actually sent to New South Wales, or to the Hulks, or the Penitentiary, or never removed from a jail in Scotland. In all these cases he is equally under sentence of transportation, and, if found at large, is liable to the penalties which it has prescribed. It is no less clear, that if the pannel has any lawful excuse, as liberation for good conduct, or the like, which is sometimes the case, it lies upon him to prove it in defence, and remove thereby the presumption which his appearance at large, before the expiration of his time, is fitted to produce.

3. The regular course for the trial of this offence, is by an indictment before a jury, and the Supreme or Circuit Court.

Doubts were formerly entertained whether a person sentenced to transportation, and found at large before his sentence expired, might not be summarily tried without the intervention of a jury, and, upon his identity being established, transported of new, in terms of his former sentence; but, in the end, it came to be considered as the more regular course to indict the

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1 Unreported. Unreported. Unreported. Hume, ii. 146.

offender of new before the Court and a jury. Accordingly, in the case of James Baillie, March 1773, where the pannel had obtained a pardon on condition of transporting himself, and being found at large, pleaded that ill health had disabled him from carrying the sentence into execution, the Court found that the subject-matter, and conclusions of the said petition, with the defence of the prisoner, is proper for a jury trial." 1 And, as it never can be anticipated what defence the prisoner has to offer for this new offence which he has committed, it is certainly proper that, like every other serious crime, it should be made the subject of consideration before an assize.

This rule, however, suffers two exceptions. One who is banished forth of Scotland, or from a particular sheriffdom or jurisdiction within its bounds, may, if discovered within the forbidden district, before his period expires, be summarily, and without any regular trial, subjected to the penalty contained in his sentence, without any other formality than a petition from the public prosecutor of the bounds, setting forth the fact and proof of the identity of the prisoner. This is matter of daily practice, in the case of banishment from, and return to, particular sheriffdoms, where it is very usual, especially at Glasgow, to inflict whipping, in terms of the certification contained in the sentence, without any challenge or suspension ever being moved as to the illegality of the proceedings; and the reason is, that the sentence of banishment not only contains, as in cases of transportation, a warning to the pannel of the pains he is to suffer, in the event of his return, but also a warrant to the proper magistrates, to inflict those pains whenever the exile shall be found within the forbidden bounds.2 In the event, too, of a convict, sentenced to transportation by the sentence of an English Court, being found at large in this country, it is competent to apply for a Secretary of State's warrant to have him transmitted at once to the Hulks, where the formalities of identification are gone through. This accordingly was the course adopted in the case of J. Murray, February 1825, who had been transported for life to New South Wales at the Old Bailey, and returned to this country, where he was engaged in a great robbery of the Stirling coach; but, having been acquitted of that charge, he was transmitted, by

1 Hume, ii. 146.-2 Ibid. ii. 147.

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a Secretary of State's warrant, to the Hulks at Woolwich, from whence he was sent, after being identified, to the same place of banishment, to undergo the remainder of his sentence.1

In England it has been determined, that where a prisoner, convicted of a capital crime, who had received a pardon on condition of transportation for life, was afterwards found at large without lawful excuse, he should be remanded to suffer his original sentence.2 In a subsequent case, where a prisoner, having been sentenced to seven years' transportation, had been pardoned on condition of transporting himself beyond seas for the same period, within fourteen days of the period of his discharge, and he was found at large in Great Britain after that period, it was much doubted whether he should be remitted to his former sentence, or convicted of the capital felony, as being found at large without lawful excuse. But it was clearly held, that if the prisoner had a clear intention of leaving the kingdom, and was prevented by ill health, these impediments amounted to a lawful excuse.3

CHAPTER XXIX.

OF INCEST AND UNNATURAL OFFENCES.

INCEST is the carnal knowledge between persons in the forbidden degree of affinity; an offence acknowledged by the law of all nations in the case of those near relations, such as parent and child, brother and sister, where Nature herself inspires an abhorrence of the act; but founded on positive regulation in the remoter degrees of affinity.

1. Incest is committed by carnal knowledge between all those persons who are forbidden to marry in the Divine law.

In Catholic times, the prohibition of marriage was extended

1 Unreported.-2 2 Madan's Case, Leach, i. 223; Russell, i. 404.-3 Aikle's Case, Leach, i. 396; Russell, i. 404,5.

to the fourth degree of affinity, by the canonical computation, which corresponds to the eighth by our method of counting, up one side and down the other; but, at the Reformation, the forbidden degrees were reduced to those mentioned in the Jewish law. By 1567, c. 14, the offence is limited to those "that abuses their bodie with sik personis in degrie, as God in his word hes expresslie forbidden, as is contained in the 18th chapter of Leviticus." But, in pursuance of the severe and rigid spirit of the times, the punishment was raised from the spiritual censures which were inflicted in Catholic times, to death.

According to the Jewish law, as laid down in Leviticus, the only relations expressly forbidden in the direct line are parent and child, and grandfather and granddaughter, and in the collateral sister and brother, whether by the full or the half blood, or uterine or consanguinean. Accordingly, in the case of James and Agnes Bonnar, 2d February 1570, a brother and sister were convicted of incest and adultery, and had sentence to be burnt. On 28th January 1642, Andrew Bannock had sentence of death for incest with his sister; as had Jean Weir, sister to the noted Major Weir, April 1670.2

A nephew is forbidden to know his aunt (v. 12, 13), whether on the father's or mother's side. Nothing is expressly said as to uncle and niece; but our Judges, considering that the relationship is the same, have extended the prohibition to them also, and that alike in the full as the half blood. On 8th February 1633, John Baxter, and Helen Sheviz his niece, by a sister uterine, had sentence of death; and in the case of George Johnston and Janet Johnston, where the crime was with a brother's daughter, the defence that it was not incest by the law of Leviticus, was repelled. The like decision was given in the case of Elizabeth Hunter, indicted for incest with John Brown, her uncle by the mother's side; 3 but the prohibition and crime extends no farther with the collateral relations.4

As to relations in affinity, a brother is indeed expressly forbidden to know his brother's wife; and, for an infringement of this command, sentence of death passed in the well known case of Catherine Nairne and Patrick Ogilvie, August 1765.5

1 Canons of Scots Prov. Councils, Act 65.—2 Hume, i. 448.—3 Ibid. i. 448, 449.4 Ibid. i. 449.-5 Ibid.