56 G. 3. c. 63. prison, he or she shall be adjudged guilty of felony, without benefit of clergy." guilty of felony without clergy. Persons rescu ing or attempt ing to rescue convicts. Felony. Officers per By § 44. it is enacted, "That if any person shall rescue any Convict who shall be ordered to be confined within the said penitentiary, either during the time of his or her conveyance to the said penitentiary, or whilst such convict shall be in the custody of the person or persons under whose care and charge he or she shall be so confined; or if any person shall be aiding or assisting in any such rescue, every such person so rescuing, aiding, or assisting, shall be guilty of felony, and may be ordered to be confined in the said penitentiary for any term not less than one year, nor exceeding five years; and if any person having the custody mitting escape. of any such convict as aforesaid, or being employed by the person having such custody as a keeper, under-keeper, turnkey, assistant, or guard, shall voluntarily permit such convict to escape; or if any person whatsoever shall, by supplying arms, tools, or instru ments of disguise, or otherwise, be in any manner aiding and assisting to any such convict in any escape, or in any attempt to make an escape, though no escape be actually made, or shall attempt to rescue any such convict, or be aiding and assisting in any such attempt, though no rescue be actually made, every such person so permitting, attempting, aiding, or assisting, shall be guilty of felony; and if any person having such custody, or being so employed by the person having such custody as aforesaid, shall negligently permit any such convict to escape, such person so permitting shall be guilty of a misdemeanor, and, being lawfully convicted of the same, shall be liable to fine or imprisonment, or to both, at the discretion of the court.” Supplying means of escape. Felony. Misdemeanor. Trial for such offences, either where offender is apprehended, or where offence is committed. Evidence of the order of com mitment to such penitentiary. Mutiny Act, 4 W. 4. c. 6. Cases of transportation. § 45. relates to the more ready and effectual trial and conviction of persons committing offences within the act; and provides, that any convict so escaping, breaking prison, or being rescued, may be tried either in the county where he shall be apprehended and retaken, or in the county in which the said offence shall have been committed; and enacts that, in case of any prosecution for such escape, attempt to escape, breach of prison, or rescue, either against the convict escaping, or attempting to escape, or having broken prison, or being rescued, or against any other person or persons concerned therein, or aiding, abetting, or assisting the same, a copy properly attested of the order of commitment to such penitentiary shall, (after proof made that the person then in question before the court is the same that was delivered with such order,) be sufficient evidence to the court and jury that the person then in question was so ordered to such confinement. It is enacted, by the Mutiny Act (see 4 W. 4. c. 6. § 7.), that whensoever a general court-martial, by which any soldier shall have been tried, shall not think the offence deserving of capital punishment, the court may, instead of awarding a corporal punishment or imprisonment, adjudge the offender, according to the degree of the offence, to be transported as a felon for life, or for a certain term of years. And it is also provided, that in all cases where a capital punishment shall have been awarded by a general court-martial, H. M., instead of causing such sentence to be carried into execution, may order the offender to be transported as a felon, either for life or for a certain term of years. ·Ând if any person so transported as a felon, whether in pursuance of the original sentence or in pursuance of such order from H. M., shall afterwards return, or be found at large, without leave from H. M., or other lawful authority, within any part of H. M.'s dominions, abroad or at home (other than the place to which he shall have been transported), before the expiration of the term limited by such sentence or order, and shall be duly convicted thereof, he shall suffer death as a felon. Returning or being at large without leave. Mode of exe cuting such sentence. By § 18., such sentence of transportation is to be notified in writing to a judge, who shall thereupon make an order for transportation, &c.; and the person so sentenced shall be subject to every provision made by law concerning persons sentenced to transportation, and also as to their escape, and as to persons aiding and abetting their escape; and the notification and order for transportation are to be filed in the court of K. B., and on application a certificate is to be delivered of the name of the offender, his offence, the place where he was convicted, and the conditions on which the order of transportation was given, which certificate is to be evidence of the conviction and sentence, and also of the terms of his transportation, in any court, or in any proceedings where such inquiry may be necessary. Enactments of a similar nature are contained in the statutes So with the relating to the regulation of the royal marine forces while on marines. shore. See 4 W.4. c. 4. § 10. 17. Upon the several statutes relating to the transportation of offenders, the following points have been resolved: Proof of con viction and sentence by certi cate. 1st. That if an act of parliament direct that an offender shall Where an act be transported, without saying to what place, it shall be under- directs transstood to the place where convicts are, at the time, legally trans-portation geported, as formerly to America, and now to Botany Bay. By all nerally. the judges on a case reserved by Mr. J. Bathurst. 7th edit. 407. Vide 1 Haw. dence to prove 2d. That the daily book kept by the clerk of the papers of a Prison daypublic prison, in which all commitments and discharges are re- book kept by gistered, is good, and indeed the best evidence to prove the day the clerk of the from which the time of transportation takes place. The clerk papers, eviof the papers is a public officer of the prison, and the law reposes the time at such a confidence in public officers, that it presumes they will dis- which the trans charge their several trusts with accuracy and fidelity; and there- portation before whatever acts they do in discharge of their public duty may gins. be given in evidence, and shall be taken to be true, under such a degree of caution as the nature and circumstances of each case may appear to require, except the falsity of them can be made to appear; for every presumption may be repelled by contrary evidence; but unless the truth of the entries in question be impeached they are admissible evidence. R. v. Aickle, O. B. Sept. Sess. 1785, 1 Leach, 390. 1 Russ. 403. 3d. That if a convict, on his trial for returning from transportation before his time was expired, confess the fact, and acknowledge that he is the man, the court will record such confession, but that otherwise the record of the conviction must be produced, and evidence given of his identity. O. B. 1785, 1 Haw. 7th edit. p. 408. A certificate of conviction is now sufficient. See 5 G. 4. c. 84. § 24. antè, p. 909. Identity on re turn from Sign-manual promising a pardon on con dition of leaving the king dom for seven years. Being at large in G. B. after sentence of death, commuted for transportation for life. 4th. That if a convict be sentenced to transportation for seven years, and receive a sign manual promising him a pardon upon condition of his giving security to leave the kingdom within fourteen days from the date thereof, and not to return again for the space of seven years, and on his giving such security is discharged from prison, but neglect to transport himself within the fourteen days, he cannot be indicted for being unlawfully found at large. before the term for which he received sentence of transportation had expired; for the sign-manual and the recognizance entered into in consequence of it are good evidence that he was lawfully at large, although he had not substantially performed the condition on which the promise of pardon was granted. In this case the prisoner was referred to his original sentence of transportation. Maximilian Miller's case, O. B. Jan. Sess. 1771, 1 Leach, 74. See Hawk. c. 58. § 5. n. (4); and see Aickle's Co. S. P. 1 Russ. 404., and n. (d) ib. 5th. That a prisoner convicted of a capital crime, whose sentence is respited during the king's pleasure, and who, on having received a pardon on condition of transportation for life, is afterwards found at large in G. B. without lawful cause, shall, on his being indicted for returning from transportation and acquitted, be referred back to his original sentence. R. v. Patrick Madan, 0. B. Dec. Sess. 1780, 1 Leach, 223. See S. C. 1 Russ. & n. (a) ib. It is also decided that sentence of transportation may be a second time passed upon a prisoner, although the time for which transportation. he before received sentence of transportation be unexpired. R. v. Bath and others, O. B. Feb. Sess. 1787, 1 Leach, 441. Passing second sentence of Indictment for being at large, and certificate of former conviction qu.? of sufficiency. Indictment for being at large must state cor rectly the sentence of trans portation. Lawful excuse as to convict not transporting Where the prisoner was indicted for being at large after sentence of transportation for seven years, under 56 G. 3. c. (now expired), which provided that a certificate in writing, signed by the officer of the court, containing the effect and substance only (omitting the formal part) of the indictment and conviction and order for transportation, shall be sufficient evidence of his conviction and sentence (which terms are similar to those used for the same purpose in 5 G. 4. c. 84. § 24.); and the indictment stated that the prisoner had been convicted of felony without stating the nature of the felony, and the certificate given as evidence of the conviction stated only that the prisoner had been 'convicted of felony, it was held on case reserved that the indictment and certificate were insufficient, for that they ought to have stated the nature of the felony; and the prisoner was remitted to his former sentence. M. T. 1821, R. v. Watson, C. C. R. 468. See R. v. Sutcliffe, Acc. ib. 469. n. The prisoner was tried and convicted for being at large after a order for his transportation; the indictment stated his having beea capitally convicted, and that he was pardoned on condition of being transported for life to some parts beyond the seas. It ap peared, however, in evidence, that the condition of the pardon was that he should be transported to New South Wales, or some of the islands adjacent. On case reserved, this was held to be a fatal variance, and that the conviction was wrong. R. v. Fitzpa trick, C. C. R. 512. Where a prisoner had been pardoned on condition of transport. ing himself beyond the seas within fourteen days from the day of his discharge, but not having complied, was indicted for being himself, ill found at large without lawful cause, it was held (inter al.) that if health, &c. the prisoner had at the time of his discharge a real intention to quit the kingdom within the time, but was prevented by poverty and illhealth, that these impediments amounted to a lawful excuse. Aickle's case, 1 Leach, 396.; cit. 1 Russ. 405. Rex v. Kenworthy, 1 B. & C. 711. Where a prisoner was convicted of perjury at the assizes at Chester, and the sentence of transportation was entered on record as follows: :- "It is therefore ordered that he the said L. K. be transported to the coast of New South Wales for and during the term of seven years:" Held, on error brought, that this was no judgment, but merely an order; and a procedendo was awarded, commanding the court below to proceed to give judgment. Order for trans portation not being a judgment, bad. bad for excess, bad in toto, and will be reversed. 30 G. 3. c. 47. H. M. may authorise vernor or go Rex v. Ellis, 8 D. & R. 173. A judgment of transportation for Judgment of fourteen years, if bad for excess, is bad in toto, and cannot operate transportation as a good judgment of transportation for seven years. Where a court of quarter sessions have passed an erroneous judgment of transportation, the court of K. B. will not send it back to be amended, but will reverse it on writ of error. Ibid. By stat. 30 G. 3. c. 47., intituled An act for enabling H. M. to authorise his governor or lieutenant-governor of such places beyond the seas to which felons or other offenders may be transported, to remit the sentence of such offenders, it is enacted, § 1. That H. M. by commission under the great seal may authorise the governor or lieutenant-governor of any places to which any offenders may be transported, by an instrument in writing under the seal of the government in which such places are situated, to remit, either absolutely or conditionally, the whole or part of the term for which any such offenders shall be transported; and such instrument shall have the like force as if H. M. had signified his intention of mercy under his sign manual. And by §2., such governor, &c. shall transmit to one of the secretaries of state a duplicate under the government seal of each such instrument of remission; and the names of such offenders contained in such duplicate shall be inserted in the next general pardon that shall pass the great seal after the receipt of such duplicates. But see 2 & 3 W. 4. c. 62., suprà, p. 914. Where an offender returns by permission of the governor of New South Wales, according to the provisions of stat. 30 G. 3. c. 47., he is only to have the same advantage as if H. M. had signified his intention of mercy under his sign manual, and is to have his name inserted in the next general pardon under the great seal; a return, therefore, under such circumstances, is not sufficient to restore him to all his rights and capacities, until such pardon is signified under the great seal. Bullock v. Dodds, 2 B. & A. 258. See, however, 7 & 8 G. 4. c. 28. § 13., tit. pardon, antè, p. 655. lieutenant-governor of New South Wales, &c. to remit sentences. Duplicates of instruments remitting sentences, shall be transmitted to secretary of state, &c. Permission from governor to return not equivalent to a pardon. Traverse, whence. Its practical meaning. Traverse, what. Form of traverse. (Style of the sessions.) (The indict ment.) Traverse. [60 G. 3. c. 4.] TRAVERSE took its name from the French de traverse, which is no other than de transverso, in Latin, signifying on the other side; because as the indictment on the one side chargeth the party, so he on the other side cometh in to discharge himself. Lamb. 540. The word traverse is only applied to an issue taken upon an indictment for a misdemeanor; and it should rather seem applicable to the fact of putting off the trial till a following sessions or assizes, than to the joining of issue; and therefore perhaps the derivation is from the meaning of the word transverto, which in barbarous Latin is to go over, i. e. to go from one sessions, &c. to another; and thus it is that the officer of the court asks the party whether he be ready to try then, or will traverse over to the next sessions, &c. ; but the issue is joined immediately, by pleading not guilty. To traverse an indictment, then, is to take issue upon the chief matter thereof; which is the same as if one shall say, to make contradiction, or to deny the point of the indictment. As in a presentment against a person for a highway overflowed with water, for default of scouring a ditch which he and they whose estate he hath in certain lands there have used to scour and cleanse, such person may traverse either the matter, to wit, that there is no highway there, or that the ditch is sufficiently scoured; or otherwise he may traverse the cause, to wit, that he hath not that land, or that he and they whose estate he hath, have not used to scour the ditch. Lamb. 541. And forasmuch as, in the record of one traverse, there is at once discovered the style of the sessions, the indictment, the process to answer, the traverse itself, the verdict and judgment thereupon, the process of execution, the yielding of the parties, and the assess ment of their fines, so that it alone may serve instead of all, it is judged requisite to insert the same as follows: Somerset. HERETOFORE, to wit, at the sessions of the peace |