portation or imprisonment, may be sentenced either to penal servitude or to imprisonment (k). This Act also provided, that where, under the former law, seven years transportation might have been awarded, penal servitude for three years might be substituted. But, as to this, a further alteration of the law has since taken place; it being enacted by the 27 & 28 Vict. c. 47, that no person shall, in any case, be sentenced to penal servitude for a shorter period than five years; or, if previously convicted for felony, (either on indictment or by way of summary conviction,) for less than seven years. It is moreover provided by the Penal Servitude Acts, that every person sentenced to this punishment may be kept either in any prison or place of confinement in the united kingdom, or in any river, port, or harbour thereof, -or else in some place in her Majesty's dominions beyond the seas, duly appointed for such purpose by order in Council, according as the secretary of state shall from time to time direct; and may, while confined there, be kept to hard labour and otherwise dealt with, in like manner as persons sentenced to transportation might formerly be dealt with while so confined (7). By the same Acts it is also made lawful for her Majesty (m), by order in writing, under the hand and seal (k) 20 & 21 Vict. c. 3, s. 6. (1) 16 & 17 Vict. c. 99, s. 6; 20 & 21 Vict. c. 3, s. 3. (m) See 16 & 17 Vict. c. 99, s. 9; 20 & 21 Vict. c. 3, s. 5; 27 & 28 Vict. c. 47, ss. 4-10. The Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), also contains some provisions with regard to the holders of licences to be at large, granted under the above Acts (ss. 3, 4, 5). Under the authority of the Secretary of State for the Home Department, a prisoner sentenced to penal servitude is informed on arriving at prison, that he will, by a regular course of industry while undergoing his 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, no remission can take place but by order of the secretary of state, supposing that the special circumstances of the case appear to warrant any of the secretary of state, to grant to any convict sentenced either to be kept in penal servitude, or to be imprisoned, a licence to be at large, in the united kingdom and the channel islands, (or in such part thereof respectively as shall be expressed in the licence,) during such portion of his term, and on such conditions in all respects, as to her Majesty shall seem. fit (o). But such licence may be revoked or altered at pleasure; and will be forfeited if the holder shall be subsequently convicted of any indictable offence, or if he shall fail to report himself to the proper officer once in every month, or to give due notice of any change of residence (p); and if it be so revoked or forfeited, the convict may be sent back to the prison from which he was released by virtue of his licence, or be placed in any other prison wherein convicts under sentence of penal servitude may be lawfully confined (g). And we may notice, that with the object of more effectually preventing crime, a register of criminals has been recently established, and their photographs taken and distributed so as to facilitate their identification (r). It may be here remarked, that it forms one of the provisions of the Prevention of Crimes Act, 1871 (34 & 35 Vict. c. 112), that where any person is convicted on indictment of a crime, and a previous conviction of a crime is proved against him, the court may, in addition to any other punishment, direct that he is to be subject to the supervision of the police for a period not exceeding seven years, commencing immediately after the expiration of the indulgence. These regulations, and the scale of periods of remission, are contained in a circular letter addressed by the then secretary (Sir G. Grey) to each of the judges and chairmen of quarter sessions, dated 15th August, 1864. (0) 16 & 17 Vict. c. 99, s. 9. And see 34 & 35 Vict. c. 112, s. 5. (p) 27 & 28 Vict. c. 47, s. 4. (g) 16 & 17 Vict. c. 99, ss. 10, 11; 20 & 21 Vict. c. 3, s. 5; 27 & 28 Vict. c. 47, s. 9; 34 & 35 Vict. c. 112, s. 5. (r) See ss. 5 and 8 of 34 & 35 Vict. c. 112, an Act which repeals the 32 & 33 Vict. c. 99 (The Habitual Criminals Act, 1869). sentence passed on him for the last of such crimes; and that any person, so subject to such supervision, who shall remain in any place for forty-eight hours without notifying the place of his residence to the chief officer of police for the district, or who shall fail to comply with the requisitions of the Act, in periodically reporting himself to such chief officer, shall, unless he can show that he did his best to act in conformity to the law, be liable to be imprisoned, with or without hard labour, for any period not exceeding one year (s). 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 this is always that the prisoner be hanged by the neck till dead; a mode of capital punishment that has been in use in this country from time immemorial (t). [At the common law, upon the passing of this sentence, the immediate and inseparable consequence was attainder. For when it was thus made clear beyond all dispute that the criminal was no longer fit to live upon the earth, but was to be exterminated as a monster, and a bane to human society, the law set a note of infamy upon him; called him attaint, attinctus, stained or blackened: withdrew from him in general all civil rights (u); and considered him, by an anticipation of his punishment, as already dead in law (x). But none of these consequences arose until after judgment; for there was a great difference between a man convicted and one attainted-though they were frequently through inaccuracy confounded together. After conviction only, a man was liable to none of these disabilities; for there was still, in contemplation of law, a possibility of his innocence, as something might be offered in arrest of (8) 34 & 35 Vict. c. 112, s. 8. (t) 2 Hale, P. C. 399; Hawk. P. C. b. 2, c. 48, s. 7. (u) As to the capacity of a person attainted to contract a legal marriage, see Kynnaird v. Leslie, Law Rep., 1 C. P. 401. (x) 3 Inst. 213. [judgment. But when judgment was once pronounced, both law and fact conspired to prove him completely guilty; and there was not the remotest possibility left of any thing to be said in his favour. Upon judgment therefore of death, and not before, the attainder of a criminal commenced (y):-or upon such circumstances as were equivalent to judgment of death, such as judgment of outlawry on a capital crime, pronounced for absconding or fleeing from justice; which tacitly confesses the guilt. And, therefore, either upon judgment of outlawry, or of death, for treason or felony, a man was said to be attainted.] Among the consequences of attainder were, until recently, forfeiture and corruption of blood. Forfeiture upon attainder, accrued in the first place in the crime of treason. And here the criminal forfeited for ever to the Crown all his freehold lands and tenements of inheritance, whether held in fee simple or fee tail; and all his rights of entry on freehold lands and tenements which he had at the time of the offence committed, or at any time afterwards: and also the profits of all freehold land and tenements which he had in his own right for life or years, so long as such interest should subsist (z). This forfeiture related backwards to the time of the treason committed: so as to avoid all intermediate sales and incumbrances, but not those before the fact (a); and therefore a wife's jointure was not forfeitable for the treason of her husband, because settled on her previous to the treason committed; but her dower was forfeited by the express provision of statute 5 & 6 Edw. VI. c. 11 (b). And yet the husband was held entitled to be tenant by the curtesy of the wife's lands, if the wife were attainted of treason; for that was not prohibited by the statute (c). But though after attainder the forfeiture related back to the time of the treason committed, yet it did not take effect unless an attainder were had, of which it was one of the fruits; and therefore if a traitor died before judgment pronounced, or was killed in open rebellion, or hanged by martial law, it worked no forfeiture of his lands, for he never was attainted of treason (d). With us in England forfeiture for treason was by no means derived from the feudal policy, but was antecedent to the establishment of that system in this island, being (c) 1 Hale, P. C. 359. (d) See Co. Litt. 13; 4 Rep. 57. necessary that a crime so nearly "affecting government should, both "in its essence and consequences, "be put upon the same footing "in both parts of the united king"dom. In new modelling these "laws, the Scotch nation and the "English house of commons strug"gled hard, partly to maintain, and "partly to acquire, a total immu"nity from forfeiture and corrup"tion of blood; which the house "of lords as firmly resisted. At "length a compromise was agreed "to, which is established by this "statute, viz. that the same crimes, "and no other, should be treason in "Scotland that are so in England; "and that the English forfeitures "and corruption of blood should take "place in Scotland till the death of "the then Pretender, and then cease "throughout the whole of Great "Britain; the lords artfully propos"ing this temporary clause in hopes, "it is said, that the prudence of suc"ceeding parliaments would make it "perpetual." (See Burnet's Hist. A.D. 1709; and "Considerations on the Law of Forfeiture," vol. i. p. 244.) This was partly done by the statute 17 Geo. 2, c. 39, made in the year preceding the rebellion of 1745. And by 39 & 40 Geo. 3, c. 93, the above mentioned provision of the stat. 7 Ann. c. 21, was repealed. |