For felonies excluded from clergy.

power to transfer such offenders, by order of court, to the use of any persons and their assigns who shall contract for their performance of such transportation for seven years.

And where any person shall be convicted of any crimes, for which they are excluded the benefit of clergy, and his majesty shall extend mercy to such offenders on condition of transportation, and such intention of mercy be signified by one of the principal secretaries of state, it shall be lawful for any court, having proper authority, to allow such offenders the benefit of a pardon, and to order the like transfer to any person (who) will contract for such transportation) and to his assigns, of any such offenders, as also of any person convicted of receiving And receiving stolen goods, knowing them to be stolen, for fourteen years, if stolen goods. such condition of transportation be general, or else for such other term as shall be made part of such condition: and the persous contracting, or their assigns, shall, by virtue of such order of transfer, have a property in the service of such offend. ers for such term of years. s. 1.

Powers of sub

sequent court,

But the judges of assize,according to the circumstances of the case, frequently reprieved convicts tried before them, for the purpose of applying to the crown for a pardon, on condition that such convicts should be transported to America; in which case such convicts were obliged to lie in gaol until the coming of the judges at the subsequent assize.

To remedy this inconvenience, it is enacted by 8 Geo. 3. c. 15, That where any offender shall be convicted of any crime in felonies ex- excluded the benefit of clergy, and the judge or justice of oyer cluded clergy and terminer or gaol delivery, before whom he shall be convicted, shalf grant a reprieve, and recommend him to mercy; if his majesty shall extend royal mercy to such offender, upon condition of transportation to America, and such intention of mercy shall be signified by one of the secretaries of state to the judge recommending, it shall be lawful for such judge or justice to order the immediate transportation of such offender, as if such intention of mercy had been signified to him during the assizes; and such order shall be considered as made at such assizes, and be effectual, and shall have all the consequences in every respect as any order for transportation.

Transportation to any part beyond the

seas.

But the English colonies in America having separated from their connection with Great Britain, the transportation of felons to that country became impracticable, it is therefore enacted, by 19 Geo. 3. c.74. s. 1, That when any person, at any session of cyer and terminer, or gaol delivery, or at any quarter or other general session of the peace, within England, or at any great session for the county palatine of Chester, or within the principality of Wales, shall be convicted of grand or petty larceny, or any other crime, for which he is liable to be transported to America, it shall be lawful for the court before which such person hath been convicted, or any court holden for the

same place with like authority, to order such person to be transported to any parts beyond the seas, whether in derica, or elsewhere, in such manner, and for the term for whica such person is liable to be transported to his majesty's lantations in America. s. 1.

And where any person so convicted shall be ordered to be transported, or if his majesty, shall extend mercy to any offender convicted of any felony excluded from the benefit of clergy, of of such statutes as are equivalent thereunto, upon the con− dition of transportation, to parts beyond the seas, then all laws now in force with regard to the transportation of criminals to America, and their punishment for heing afterwards at large, within Great Britain, before the expiration of the terms for which they were transported, or had agreed to transport themselves, and particularly, the provisions contained in 4 Geo. 1. c. 11. 16 Geo. 2. c. 15, and 8 Geo. 3. c. 15, shall take place, be in force, and enure, with regard to the transportation of all such offenders to any parts beyond the seas, and with regard to their punishment for being afterwards at large in this kingdom, before the expiration of their terms. s. 2.

The above statute of 19 Geo. 3, also empowered the king toappoint three supervisor's for the purpose of purchasing ground, and erecting thereon two very extensive national prisons, to be denominated PENITENTIARY HOUSES; in order to confine and employ therein all the different convicts. But this part of the act, after having been continued by divers subsequent acts, and in particular the stat. 39 co. 3. c. 52, until 25 March, 1802. was then permitted to expire.

However, it is enacted by the 27th section of such act, that In felonies where any male person, at any session of oyer and terminer, or within clergy. gaol delivery, holden for London, or for any other county within England, or for Ely, or at any great session holden for the county palatine of Chester, or within the principality of Wales, shall be convicted of grand larceny, or any other crime, except petty larceny, for which he shall be liable by law to be transported to parts beyond the seas, it shall be lawful for the court, in the place of transportation, to order that such person, appearing to be of competent age*, and free from any bodily infirmity, shall be punished by being kept on board vessels properly accommodated for the security, employment, and health of the persons to be confined therein, and by being em. ployed in hard labour in the raising sand, soil, and gravel from, and cleansing the river Thames, or any other river navigable for ships of burthen, or any port, harbour, or haven, within England, such river, c. being previously approved and

* Therefore on the conviction of an offender, his age is always enquired of and recorded by the clerk of the assize.

In felonies ex.

appointed for that purpose by order of his majesty in privy council, or in any other service for the benefit of the navigation of the said rivers, &c. or in any other public works upon the banks or shores of the same, under the management of such superintendent or superintendents as shall be appointed for the river Thames, by the justices of Middlesex,and for other rivers &c.by the justices of the counties wherein such rivers, &c. are situ. ated, (or of such of the counties next adjoining to the same as his majesty in council shall direct,) at their quarter or other general session, for such term, not less than one, nor exceeding five years; or in case such offender shall be liable to be transported for four. teen years, not exceeding seven years, as such court shall adjudge. s. 27.

And where any person shall be convicted of any tobbery, cluded clergy. or other felony, for which he shall be liable to suffer death with out benefit of clergy, and his majesty shall extend mercy to such offender unon condition of being kept to hard labour, during any specified term, and such intention of mercy shall be notified in writing by one of the secretaries of state, to the court; or if no such court shall be sitting, then to any justice of oyer and terminer, &c. before whom such offender shall have been convicted, such court or justice may, on receiving such notification, allow to such ofender the benefit of a conditional pardon, in the same manner as if there was a conditional pardon under the great seal; and may order that such offender shall be kept to hard labour for the time specified in the notifi cation from such secretary of state. s. 28.

And if any person ordered to hard labour, instead of being capitally punished, shall, during the term for which he shall be ordered to confinement, break prison, or escape from the place of confinement, or in his conveyance to such place of confinement, or from the person having the custody of such offender, he shall be guilty of felony, without benefit of clergy; bat in case he hath been ordered to hard labour instead of transporta. tion, he shall be punished by an addition of three years to the term for which he, at the time of his breach of prison, or escape, was subject to be confined; and if such person, so punished by such addition to the term of confinement, shall afterwards be convicted of a second escape, or breach of prison, he shall be guilty of felony, without benefit of clergy. 19 Geo. 3. c. 74. s. 65. 31 Geo. 3. c. 46. s. 3.

And if any person shall rescue any offender ordered to hard Jabour, either during his conveyance to the place appointed for such hard labour, or whilst such offender shall be in the custody of the person under whose care he shall be confined; or if any person shall be aiding in such rescue; such person so rescuing, or assisting, shall be guilty of felony, and may be ordered to hard labour, for not less than one, nor exceeding five years; and if any person having the custody of such offender, or being employed by the person having such custody, as a keeper,

under-keeper, turnkey, assistant, or guard, shall voluntarily permit such offender to escape; or if any person shall by supplying arms, tools, or instruments of disguise, or otherwise, be in any manner aiding to any such offender in any escape, or in any attempt to make an escape, though no escape be made, or shall attempt to rescue such offender, or be aiding in such attempt, though no rescue be actually made, such person permitting, attempting, or assisting, shall be guilty of felony; and or permitting if any person having such custody, or being so employed by the thein to escape. person having such custody, shall negligently permit such of fender to escape, such person shall be guilty of a misdemeanor; and being convicted shall be liable to fine or imprisonment, or to both, at the discretion of the court. s. 66.

Any offender escaping, breaking prison, or being rescued as How such of aforesaid, may be tried before the justices of oyer and terminer, fences to be or goal delivery, or at the great sessions for the county where tried. he shall be apprehended and re-taken; and in case of any prosecution for such escape, attempt to escape, breach of prison, or rescue, either against the offender escaping, &c, or against any other person concerned therein, or aiding the same, a copy, attested, of the certificate hereinafter directed to he given to the sheriff or gaoler by the clerk of the assize, or clerk of the court in which such offender shall be convicted, and by such sheriff or gaoler to be delivered, together with the offender, to such governor or superintendent as aforesaid, and by such governor or superintendent to be transmitted to the clerk of the peace, to be filed with the records of the sessions, shall, after proof made that the person then in question is the same that was delivered with such certificate, be sufficient evidence to the court and jury, not only of the nature and fact of the convic tion itself, and the species of confinement to which such person was ordered, but also that the person then in question is the same that was so convicted, and ordered to such confinement. 6. 67.

And when any offender shall be ordered to be kept to hard How to be con labour, the clerk of assize, or other clerk of the court in which veyed to hard such offender shall be convicted, shall give to the sheriff or labour. gaoler, a certificate in writing, under his hand, containing an account of the christian name, surname, and age, of such of fender, of his offence, of the court before which he was convicted, and of the term for which he shall be ordered to hard labour. 19 Geo. 3. c. 74. s. 29.

And the sheriff or gaoler shall, with all convenient speed, after such order, and receiving such certificate, convey such offender to such place to which such order shall direct him to be conveyed; and shall deliver such offender, together with such certificate, to such superintendent, or to such person as he shall appoint; and such superintendent, or other person to whom such offender shall be delivered, shall give a receipt in

Convicts sent

to hard labour,

writing, under his hand, to the sheriff or gaoler delivering such offender, which shall be his discharge. 19 Geo. 3. c. 74. s. 29. 24 Geo. 3. sess. 2. c. 54. s. 6.

And such superintendent shall transmit such certificate to the clerk of the peace wherein such place of confinement shall be situated, to be filed with the records of the sessions. 19 Geo. 3. c. 74. s. 29.

And the clerk of assize, or other clerk of the court, shall have the same fee, on granting such certificate, and the sheriff or gaoler shall have the same fee on delivering out of his custody such offender ordered to such hard labour, as would have been due if such offender had been sentenced to transportation, except in petty larceny, wherein they shall have only such fees as have usually been paid upon conviction for the said offence, and judg ment, to be whipped for the same; and such fees, and also the expenses to be incurred by any sheriff or gaoler in the convey. ance of such offender, such expenses being previously examined and allowed by the justices at quarter or general session, shall be paid by the treasurer of the county to such clerk of assize, and to such sheriff or gaoler, and such treasurer shall be allowed such payment in his accounts. 19 Geo. 3. c. 74. s. 30. 24 Geo. 3. sess. 2. c. 56. s. 7.

After the delivery of every such male offender into the custody of such superintendent, he shall be confined in some secure place or vessel, to be provided for the sole purpose of receiving on board proper such offenders on their first arrival, and shall be washed and

to be confined

vessels.

Hospital to be provided,

and garden.

cleaned, and his clothes burnt, if necessary, and others provided for him; and he shall remain there for four days, unless during that time he shall be found to be infected with any putrid or contagious fever, or other disease; in which case he shall be immediately sent to the hospital or infirmary till such time as the surgeon or apothecary shail think it safe to remove him on board one of the vessels appointed for the confinement of offenders in general, and to lodge him among the healthy convicts.

s. 50.

And there shall be provided for the reception of such offend. ers, in the custody of every superintendent, as-sball happen to be sick or disabled by any wound or accident, a secure place, to serve as an hospital or infirmary, with such assistants as may be neces sary for their recovery, but the whole to be under the charge and control of such superintendent, who shall answer for the escape of any ofender removed to such hospital; and there shall also be provided, by the superintendent, a large piece of ground, securely inclosed, for a garden and airing-ground, in which shall be raised proper vegetables for the use of the offenders under the custody of such superintendent, who shall be at liberty to employ such of the invaid offenders, recommended by the surgeon, as the superintendent shall think proper, and for whose escape he shall answer, in the culture of such garden. s. 51.