differ materially from the third. Replication, after taking issue upon the two first pleas, that before the cause of action accrued, the plaintiff was in due manner transported to New South Wales, in execution of the judgment. Rejoinder, that after the plaintiff was so transported, he was unlawfully at large in England. Surrejoinder, that before the cause of action accrued, his majesty had, by his commission, under the great seal of Great Britain, given authority to the governor of New South Wales, by an instrument in writing, under the seal of the government of the territory, or as he should think fit or convenient for his majesty's service, to remit either absolutely or conditionally the whole or any part of the term for which persons convicted of felony or other offences should be transported; and that before the exhibiting of the bill, the governor of New South Wales did, by a certain instrument in writing, under the seal of the territory, absolutely remit the remainder of the term or time which was then to come of the original sentence, or order of transportation mentioned in the plea; by virtue of which instrument, he was lawfully at large; and concluding with a traverse of the allegation, that he was unlawfully at large. The defendant, after craving oyer of the instrument in writing, which was set out verbatim on the record, demurred to the surrejoinder, and the plaintiff joined in demurrer. This case was argued at the sittings in Serjeants' Inn, before Michaelmas term, by Manning, for the defendant, in support of the demurrer, and F. Pollock, contrà. There were several objections taken to these pleadings, but the only one upon which the opinion of the Court was there delivered, and upon which it is necessary to state the arguments here, was upon an objection to the replication. 1819. BULLOCK against Douds. 1819. BULLOCK against DODDS. It was argued for the defendant, that as the plea shewed the plaintiff to be a felon convict, the replication stating only, that he had been transported in execution of the judgment, was no answer; for although a commutation of transportation for death operated as a statute pardon, that was only so after the period of transportation had expired; which was not the case here, inasmuch as the plaintiff was transported for life. The pardon pleaded was on condition of plaintiff's being transported; and by the 8 G. 3. c. 15. such transportation is to have the effect of a pardon under the great seal; but that term, as there used, must mean not the mere act of being conveyed to the place of transportation, but the completion of the term of punishment. The statute 18 Eliz. c. 7. s. 3. repeals the old mode of trial by purgation, and enacts, that after clergy allowed, and burning in the hand, the party convicted shall forthwith be enlarged and delivered out of prison, and under that statute it has been held, that the burning in the hand has the same effect in clearing away the disabilities of conviction, as the old mode of purgation had; and it is therefore considered as in the nature of a statute pardon. Yet it has been expressly decided, that a person convicted of felony is not restored to his competency until that punishment be inflicted, or until a pardon under the great seal has been obtained; Earl of Warwick's case (a): for letters under the king's sign manual cannot be pleaded as a pardon, Gully's case. (b) Here the intended punishment of transportation for life has not been suffered, nor has any such pardon been obtained. The 4 G. 1. c. 11 s. 4., which is a statute upon the same subject, expressly enacts, that where any offender (a) 5 How, State Trials, 166. (b) Leach, Crown Law, 99. shall shall be transported, and shall have served their respective terms, such services shall have the effect of a pardon to all intents and purposes. On the other hand it was argued for the plaintiff, that under 8 G. 3. c. 15. transportation operated as an absolute pardon, at the instant the party convicted arrived in New South Wales. If it were only a conditional pardon, it either would never operate at all until the term of transportation had expired, or it would operate until defeated, by the party being at large within the term; if it does not operate at all until the term is expired, this absurd consequence would follow, that a person transported for seven or fourteen years, who died before the expiration of his term, would derive no benefit from the pardon, in relation to his civil rights, so as even to enable him to sue in the courts there, and thus a person transported for life could never derive any benefit whatever; indeed in that case it would be a pardon to a dead man. If it be said, that the pardon is absolute in the first instance, but liable to be defeated by a breach of the condition on which it was granted, the answer is, that such does not appear to have been the intention of the legislature; for the statute expressly enacts, that such transportation shall have the effect of a pardon under the great seal; and then, in the very next sentence, the possibility of the offender's being at large within the term is contemplated. The statute does not, however, then render void the pardon, which was the subject of the former sentence, but makes the being at large within the term a distinct, substantive offence, punishable with death. After an interval of some days, the opinion of the Court was delivered at Serjeants' Inn, by 1819. BULLOCK against Donns. 1819. BULLOCK against DODDS. BAYLEY J. There are two questions in this case, one on the merits, viz. whether transportation amounts to a pardon, so as to restore the party to all his rights and capacities, the other, whether the facts should have been pleaded in bar, or in disability of the person only. The pressure of the argument on the first question turns first, on the 8 G. 3. c. 15., and on its application to this case; and secondly, on the meaning of the term transportation as there used, which involves the consideration, whether that statute is complied with, by the mere act of carrying over the offender to the place specified, or by his being carried over and remaining there for the whole period of his sentence. Now upon looking over the several statutes applicable to this subject, it seems quite clear that the mere carrying of the person to the place of transportation was not what was contemplated by that act of parliament; but that his being carried over, and remaining there for the period of his sentence, is what was meant by the term transportation as there used. The first act of parliament upon this subject is the 18 Car.2. c. 3. s. 2., by which it is enacted, " that it may be lawful for the justices of assize, and commissioners of oyer and terminer, or gaol delivery, before whom the offenders mentioned in that act shall be convicted, to transport or cause to be transported the said offenders into America, there to remain and not to return." The 22 Car. 2. c. 5. s. 4. gives the judges of the court before whom the offenders there mentioned shall be arraigned and condemned, a power, "at their discretion, to grant a reprieve, and to cause the offender to be transported beyond the seas, there to remain for the space of seven years, to be accounted from the time of such transportation; and if he should 8 should refuse to be transported, or after such transportation return within the time, then that he should be put to execution upon the judgment so given against him;" and by the 22 & 23 Car. 2. c. 7. s. 4. it is enacted, that "in case any person or persons who shall be convict or attainted of any of the offences made felony by virtue of that act, shall to avoid judgment of death, or execution thereupon for such his offence, make his election to be transported beyond the seas, to any of his majesty's plantations; that then the justices of assize, oyer and terminer, gaol delivery, or justices of the peace, before whom such offender shall be convict or attaint by virtue of that act, and every of them respectively, shall cause judgment to be entered against every such offender, that he be transported beyond the seas to some of his majesty's plantations, in the said judgment to be particularly mentioned and expressed, there to remain for the space of seven years; and that, in pursuance of the said judgment, the sheriff or sheriffs of the county or city where such offender shall be convict or attainted, shall cause the said offender to be safely conveyed and embarked to be transported as aforesaid; and if any such offender shall return into the kingdom before the expiration of the said seven years he shall suffer death as a felon, and as if no such election to be transported had been made by him." In these two last acts, there is no fixed and definite meaning attached to the term transportation, inasmuch as it is there used in both the senses now contended for; but it is observable, that under these acts the party returning is to be remitted to and punished under his former sentence, which, therefore, îs considered as still subsisting, and in force against S 4 him. 1819. BULLOCK against Dodds |