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ing to the nature of the case. By 7 Will. IV. & 1 Vict. c. 90, s. 5, it is however provided, that from thenceforth it shall not be lawful for any court to direct that any offender shall be kept in solitary confinement for any longer period than one month at a time, or than three months in the space of one year (d). Imprisonment, even where not the regular punishment, may sometimes be inflicted, in capital cases, by way of commutation for the punishment of death. For by 11 Geo. IV. & 1 Will. IV. c. 39, s. 7, in cases where the Crown shall extend mercy to a capital offender, on condition of imprisonment with or without hard labour, the court, or any judge of the courts at Westminster, to whom the intention shall be signified, shall allow the offender the benefit of a conditional pardon, and make an order for the imprisonment accordingly.

As to whipping, the offender, under such modern Acts of parliament as authorize this punishment (e), may be directed to be whipped in addition to any imprisonment awarded. By 1 Geo. IV. c. 57, however, judgment shall in no case be given, that any female convicted of any offence, shall be whipped either publicly or privately: and in cases where the whipping of female offenders had, before that Act, formed either a part or the whole of the sentence, the court or justice of the peace is empowered to pass sentence of confinement to hard labour in the common gaol or house of correction, for any time not exceeding six months, or less than one month; (or of solitary confinement therein, for any space not exceeding seven days at any one time;) in lieu of the sentence of being publicly or privately whipped. Moreover, by the Criminal Consolidation Acts of 1861, already so often referred to, the addition of whipping by them authorized in reference

7 A. & E. 502.) Hard labour may now be added, in most cases, to the sentence of imprisonment. See 24 & 25 Vict. cc. 96, 97, 98, 99, 100, passim.

(d) A similar limitation as to the period of solitary confinement, in

reference to the offences punishable under them respectively, is inserted in each of the Acts of the present reign cited in the last note.

(e) Vide sup. p. 517, n. (e), p. 528, n. (1).

to a variety of the offences therein mentioned, is uniformly confined to males below the age of sixteen (f); and the whipping is to be in private and only to be inflicted once; and the number of strokes and the instrument with which they are to be inflicted, are to be specified by the court in the sentence. And a similar provision is made by 25 & 26 Vict. c. 18, in reference to this punishment when awarded by a justice or justices in the exercise of his or their summary jurisdiction,—with the addition, that, in case of an offender whose age does not exceed fourteen years, the number of strokes inflicted shall not exceed twelve, and the instrument used shall be a birch rod.

As to penal servitude, this is a sentence which has been very recently introduced in substitution for that of transportation beyond the seas (g). The principal statute in reference to such transportation is the 5 Geo. IV. c. 84 (h), by which the law on that subject was revised and consolidated in the year 1824. Under this Act, the sovereign is enabled, by and with the advice of the Privy Council, to appoint places beyond the seas, either within or without the dominions of the Crown, to which offenders under sentence of transportation may be conveyed and kept to hard labour; and also, under the royal sign-manual, to appoint places of confinement in England or Wales, for the confinement of convicts under sentence of transportation, until they are transported or become entitled to their

(f) See 24 & 25 Vict. cc. 96, 97, 98, 99, 100, passim. In one instance (24 & 25 Vict. c. 96, s. 101), the age mentioned is eighteen; but this is probably a clerical error.

(g) As to transportation, Blackstone remarks (vol. iv. p. 401) that it is "allowable and warranted by the Habeas Corpus Act, 31 Car. 2, c. 2, s. 14." It is said (Barr. on Statutes, 352) to have been first inflicted as a punishment by 39

Eliz. c. 4. As to its history, see R. v. Baker, 7 A. & E. 502; Bullock v. Dodds, 2 B. & Ald. 262, 267; Whitehead v. The Queen, 7 Q. B. 532.

(h) This Act is amended by 6 Geo. 4, c. 69; 11 Geo. 4 & 1 Will. 4, c. 39; 2 & 3 Will. 4, c. 62; 4 & 5 Will. 4, c. 65; 7 Will. 4 & 1 Vict. c. 90; 6 & 7 Vict. c. 7; 10 & 11 Vict. c. 67; 16 & 17 Vict. c. 99, s. 7; 20 & 21 Vict. c. 3; 22 Vict. c. 25.

liberty, or shall be otherwise disposed of by order of the secretary of state. But great difficulty having arisen, of late years, in finding colonies willing to receive transported convicts, it became gradually the practice, as to certain classes of convicts who had been sentenced to transportation, to detain them in the mother-country, for the whole period of their term of punishment (); and it was ultimately thought expedient to abolish the sentence of "transportation" altogether, and to substitute for it that of "penal servitude," under which convicts may be subjected to such confinement and discipline (either at home or abroad) as shall be found practicable and desirable.

This change was accordingly carried into effect by 16 & 17 Vict. c. 99, and 20 & 21 Vict. c. 3; by the latter of which Acts, after providing that no person shall for the future be sentenced to transportation, it is enacted that any persons who, if those Acts had not passed, might have been sentenced to transportation, shall be liable to be sentenced to be kept in penal servitude for a term of the same duration; and that where the court before which the offender shall be convicted, would formerly have had discretion to award one of any two or more terms of transportation, it shall now have the like discretion to award one of any two or more of the terms of penal servitude authorized to be awarded, instead of transportation : and further, that any person who might have been sentenced either to transportation or imprisonment, may be sentenced either to penal servitude or to imprisonment; that where seven years' transportation might have been awarded, the court may award penal servitude for not less than three years ;-and that where, in any enactment still in force, the expression "any crime punishable with transportation," or "any crime punishable by law with

(1) See the Evidence of Mr. Waddington, before the select committee of the House of Commons,

on Transportation. (Second Report, p. 3.)

transportation," or any expression of the like import, is used, the enactment shall be construed and take effect as applicable also to any offence punishable with penal servitude (m).

The same Acts also provide, that every person sentenced to be kept in penal servitude may be confined in any prison or place of confinement in any part of the united kingdom, or in any river, port, or harbour thereof, -or in any part of her Majesty's dominions beyond the seas, or in any ports or harbours thereof, duly appointed for such purpose by order in Council,-as one of her Majesty's principal secretaries shall from time to time direct; and may be kept to hard labour and otherwise dealt with, as persons sentenced to transportation might formerly be dealt with while so confined (n).

By the said Acts it is further provided, that it shall be lawful for her Majesty, by order in writing, under the hand and seal of a principal secretary of state, to grant to any convict sentenced to be kept in penal servitude, or to be imprisoned, a licence to be at large (o) in the united kingdom and the channel islands, or in such part thereof respectively as shall be expressed in the licence, during

(m) 20 & 21 Vict. c. 3, s. 6.

(n) 16 & 17 Vict. c. 99, s. 6; 20 & 21 Vict. c. 3, s. 3. The convict prisons in England are specified, sup. vol. III. p. 240, n. (q). As to the convict establishments at Bermuda or Gibraltar, or other places beyond seas, see 22 Vict. c. 25. By the Report of the Directors of Convict Prisons (1862), it appears that during the year 1861, 225 convicts in confinement in England under sentence of penal servitude, were removed to Western Australia, and 304 to Gibraltar (pp. 122, 164, 241).

(0) 16 & 17 Vict. c. 99, s. 9; 20 & 21 Vict. c. 3, s. 5. Under the authority of a circular from the

secretary of state, dated 27 June, 1857, a prisoner sentenced to penal servitude is informed on arriving at prison, that he will, by good conduct while undergoing this sentence, be enabled to obtain his liberty under a "licence to be at large," at a certain fixed time before the expiration of the period for which he has been sentenced,-varying according to the number of years for which he has been sentenced. But if he has been sentenced to penal servitude for life, remission can only take place by order of the secretary of state, if the special circumstances of the case appear to warrant any indulgence.

such portion of his term, and on such conditions in all respects, as to her Majesty shall seem fit (n); and that such licence may be revoked or altered at pleasure; and that if revoked the convict may be forthwith apprehended, and recommitted to the prison from which he was released by virtue of his licence, or to any other prison in which convicts under sentence of penal servitude may be lawfully confined (o).

Moreover, persons under sentence of penal servitude may be removed from the prisons in which they are severally confined, to any other prison or penitentiary in Great Britain, there to be confined for such time as her Majesty, by order in writing from a principal secretary of state, shall direct, not exceeding the time for which they might have been lawfully confined in the prisons from which they shall have been severally removed (p).

When sentence of death, the most terrible judgment in the laws of England, is pronounced, the mode in which it is to take place is particularized in the sentence itself, and is always that the prisoner be hanged by the neck till dead (q); a mode of capital punishment that has been in use in this country from time immemorial (r).

(n) 16 & 17 Vict. c. 99, s. 9. As to the power of felons holding licences to be at large, or "tickets of leave," to acquire personal property, but not, in general, lands, see 5 Geo. 4, c. 84, s. 26; 6 & 7 Vict. c. 7; 20 & 21 Vict. c. 3. See also on this subject, Bullock v. Dodds, 2 B. & Ald. 258.

(0) 16 & 17 Vict. c. 99, ss. 10, 11; 20 & 21 Vict. c. 3, s. 5.

(p) 10 & 11 Vict. c. 67; 16 & 17 Vict. c. 99, s. 7.

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formerly the same with murder (as to which, vide sup. p. 158). Nor did hanging in former times always form part of the sentence. For when a woman was convicted of treason, or petit treason, the sentence was that of being burned to death (vide sup. p. 161). And the judgment for counterfeiting the coin of this kingdom or the Great Seal, in the case of females, was, at one time, to be drawn and burnt; and, in the case of a male offender, to be drawn and hanged. (1 Hale, P. C. 351.)

(r) Lord Coke says that before the reign of Henry the first, the judgment for felony was not always one; but that monarch ordained in

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