1819. BULLOCK agatnst DODDS him. Then comes the 4 G. 1. c. 11., which is the great foundation of the law of transportation: in the first section of which it is enacted, that "where any offenders shall hereafter be convicted of any crimes whatever, for which they are by law to be excluded from the benefit of clergy, and his majesty shall be graciously pleased to extend mercy upon condition of transportation to any part of America, and such intention of mercy be signified by one of his majesty's principal secretaries of state, it shall and may be lawful to and for any court having proper authority, to allow such offender the benefit of a pardon under the great seal, and to order and direct him to be transported for the term of fourteen years, in case such condition of transportation shall be general, or else for such other term or terms as shall be made part of such conditions." So that it appears that in case of capital convictions, the Court have by this act the power to allow the benefit of a pardon under the great seal. Now that pardon must be either conditional or absolute, and in order to ascertain which it is, it will be material to consider, when it is to be considered as commencing. For if it be absolute, it must take effect from the moment of the Court pronouncing the order for transportation; but if it be conditional, it must commence from the expiration of the time mentioned in the act. Now the second section applies only to the case of persons returning into any part of Great Britain or Ireland before the end of their term, and renders such offenders, and such persons only, liable to be punished as any person attainted of felony without benefit of clergy. This would not include the case of an escape between the time of pronouncing the judgment and the time of of the arrival of the offender at the place of transportation. So that if the pardon were absolute in the first instance, such escape would be casus omissus in the act, and such an offender would not be liable to punishment: that, therefore, affords a very strong argument against adopting such a construction of the act of parliament, and besides, as the second section does not add the words "being thereof lawfully convicted," it should seem, upon construing this act with reference to the acts of Car. 2. before cited, that the party returning would be liable to be executed under his former sentence, which, therefore, must be considered as still in force. The second section goes on to state; "provided, nevertheless, that his majesty may at any time pardon and dispense with such transportation, and allow of the return of the offender;" so that it appears that the transportation may be dispensed with after the party has reached the place to which he is ordered to be transported. It then proceeds; "that after such offenders shall have served their respective terms according to the order of any such court, such services shall have the effect of a pardon to all intents and purposes." So that under 4 G. 1. it is clear that in all cases both of capital and clergyable felonies, if the offenders shall have served the periods of their respective transportation, it is to operate as a pardon of the crimes of which they were convicted. But if the pardon were immediate on their arrival at the place, the act could never have said that the service should operate as a pardon. It follows, therefore, that under this act the pardon was not complete until the service was complete also. Then came 6 G. 1. c. 23., which only gave a power to a subsequent court to order the transportation of such offenders; and by 1819. BULLOCK against Dodds. 1819. BULLOCK against DODDS. by the sixth section of which, for the first time, it is enacted, "that if any person shall be at large in Great Britain before the expiration of the term for which he was ordered to be transported, and shall be thereof lawfully convicted, he shall suffer death." That act, however, does not materially affect the question. Such was the situation in which the law stood before the passing of the statute 8 G. 3. c. 15. And it is quite clear that no alteration in the law was intended to be made by that act, and which, besides, was applicable only to the cases of prisoners convicted at the assizes. Its object was only to remedy a particular inconvenience which was, that if the king's pleasure were not signified during the assizes the party was obliged to remain in prison till the next assizes without any thing being donc. That act, therefore, provided that when his majesty's mercy should be extended to any offender, the Judge before whom he had been tried might on that fact being signified to him by one of the principal secretaries of state, make order for his immediate transportation. It was for this purpose only that that act was passed. It states indeed that such transportation shall have the effect of a pardon under the great seal for such offender as to the crime for which he or she was so convicted. But if by the words "such transportation" in this act were meant only the carrying of the offender to the place of transportation it would produce this effect, that an offender convicted at the assizes would thereby be placed in a different situation from a person convicted at the Old Bailey. These words, therefore, in 8 G. 3. c. 15., are not satisfied by the offender being merely carried over, but only by his being carried over and remaining during the term for which he is ordered to to be transported, as has been shewn to be the case with those who are transported under the provisions of 4 G. 1. c. 11. Under both acts offenders are entitled only to conditional pardons, and the conditions in both are that they shall be carried over and remain there during the specified term. In this case the party has returned before that period by virtue of the powers granted under 30 G. 3. c. 47., having had the remainder of the term of his transportation remitted by the governor of New South Wales. This last statute affords an additional reason for the above construction of the 4 G. 1. c. 11. and 8 G. 3. c. 15. For the offender who returns by permission of the governor of New South Wales is only to have the same advantage as if his majesty 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. Now if the mere transportation to the place were an actual pardon, this could not be done; for then it could not be necessary to insert the offender's name in the next general pardon, for nothing would remain to be pardoned. We are, therefore, of opinion, that the mere transportation to the place does not amount to an actual pardon, and therefore that the circumstances stated in these pleadings are not sufficient to restore the plaintiff to all his rights and capacities, and that he still remains in the situation of an attainted felon. As to what the consequences of this determination may be, which forms the second question in the case, we have not yet formed any decisive opinion; and on that point, therefore, we wish to have a second argument. The case was again argued in last Michaelmas term by Manning, 1819. BULLOCK against Dords. 1819. BULLOCK against DODDS. Manning, for the defendant. By attainder, all the personal property of the party attainted, whether in possession or in action, vests in the crown, and that whether the right exist at the time of the attainder, or accrue after. In Theloal, b. 1. c. 15. s. 8., it is laid down, that one outlawed, or attainted of felony, shall not have any action real or personal, in any manner, before pardon, but after pardon, he may maintain an action upon a cause of action, accruing subsequently to the pardon, and not before; and the year-book H. 20 Edw. 3. fol. 45., and 29 Ass. 63., are cited, where it is stated to have been adjudged, that an outlaw after pardon may have an action for false imprisonment before the outlawry; but it is there also said, that he could not have any action of debt, or for carrying away his goods before the outlawry; and for this reason that the right of action was in the king; and in s. 9. is cited the opinion of the Court from the year-book of Edw. 3. fol. 92. and 93., that an outlaw after pardon should have no action of account for money received after the outlawry; and in s. 10., the year-book, 9 Hen. 6. fol. 57., is cited to shew, that a lord outlawed shall not have after pardon the rent that was due before the outlawry. These are strong authorities to shew that all the personal rights of the outlaw were actually vested in the crown; and with this agrees Hawkins' Pleas of the Crown, b. 2. c. 49. s. 9., where it is laid down, "That all things whatsoever which are comprehended under the notion of personal estate, whether they be in action or possession, which the party has in his own right, are liable to forfeiture; and so, a bond taken in another's name, or a lease made to another in trust, for a person who is afterwards convicted of |