security required, and a warrant was accordingly issued by the RECORDER, directed to the Keeper of Newgate, authorizing his discharge; but as there were many civil detainers against him, his discharge was necessarily delayed until they were superseded. On the 26th May following, he was apprehended at Islington; and was now put to the bar on AN INDICTMENT for "returning from transportation, and being "found at large without any lawful cause, before the expira❝tion of the term of seven years, for which he was sen"tenced to be transported." 1785. AICKLES'S CASE. The daily book of a public prison dence to prove the prisoner's UNDER these circumstances it was held incumbent on the prosecutor to prove the precise day on which the prisoner was discharged; and for this purpose Mr. Newman, clerk of is good evithe papers of the prison, produced a daily book, which he kept, containing entries of the names of all the debtors and time of a criminals who are brought into the prison, and the times discharge. when they are discharged: but it appeared that those entries were not made from Mr. Newman's own knowledge of the facts, but that he generally made them from the information of the turnkeys, and frequently from the turnkeys' indorsements on the back of the warrants, which warrants were afterwards regularly filed. Ir was contended by the prisoner's Counsel, that these Mr. Garrow. c. 15. persons convicted of capital offences, who are afterwards pardoned on condition, and are thereupon ordered to be transported to America, are likewise guilty of a capital offence, if they are found at large. But when it became impracticable to send transports any longer to America, it was enacted by 19 Geo. III. c. 74. that persons convicted of single felonies, who were liable to be transported to America, and persons convicted of capital offences who had accepted a pardon on condition of transportation, may be sentenced to be transported to any parts beyond the seas; and that in every such case, all the statutes relating to transportation to America should be in full force and effect, as to the punishment for being at large before the expiration of the terms for which they were ordered to be transported, or had agreed to transport themselves to America, were expired; omitting the case of persons who had been convicted of single felony, and whose sentence of transportation to America had been pardoned, on condition to transport themselves generally beyond the seap 1785. AICKLES'S CASE. Mr. J. Gould, Mr. B. Hotham, Mr. Recorder. were not original entries of the facts; and therefore that the turnkey himself by whom Aickles was discharged, or the original minute from which the entry of his discharge had' been made, should be produced, because they alone were the best evidence upon this subject, and it was in the prose cutor's power to produce them. It was compared to the production of a tradesman's ledger in order to prove the delivery of goods, instead of producing the original memorandum or day-book from which the ledger had been posted; and it was argued, that no credit could be given to entries made entirely from hearsay and information, and therefore they ought not to be received as evidence. THE COURT, however, were clearly of opinion, That the contents of this book might be given in evidence. It is a book very different in its nature from the books or memorandums of a tradesman. It appears to have been the constant and long established practice of the keepers of a public prison to register the discharge of prisoners in such a book as the one produced, and in the manner which the witness has described. The Clerk of the Papers is a public officer in the prison; and the law reposes such a confidence in public officers, that it presumes they will discharge their several trusts with accuracy and fidelity; and therefore whatever acts they do in discharge of their public duty may 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. In the present case, Mr. Newman has no private interest whatsoever in this book, to induce him to make factitious entries in it. He is a public officer recording a public transaction. Any person may undoubtedly falsify the entries if they can; but unless the truth of the entry as to the present fact can be impeached, it is admissible evidence (a). (a) With respect to evidence, there is no difference between civil actions and criminal prosecutions. 2 Term Rep. 201.-Corporation books THE entry was accordingly read; and it proved that the prisoner was discharged from Newgate, by virtue of MR. RECORDER'S warrant for that purpose, on the 14th March, 1785. 1785. AICKLES'S CASE. 74, Case 41. THE fact of the prisoner's having been found at large before the term of his transportation had expired being clearly proved, the question was, Whether he was at large without layful cause? And it was submitted to the Court upon the authority of The King v. Max. Miller (1), and Patrick Ma- (1) Ante, p. dan's Case (2), that having literally complied with the con(2) Ante, dition of the King's pardon, by giving security to the satisp. 223, faction of THE RECORDER to transport himself beyond the Case 111. seas, and having in consequence thereof been legally dis- See Cruise on charged from Newgate by virtue of THE RECORDER's war- p. 7. rant, that discharge was a lawful cause for his being at large, notwithstanding he had forfeited the recognizance of himself and his bail, by breaking the other part of the condition, in not transporting himself within the fourteen days. GOULD, Justice. This is a case of high importance. Lord Coke says, that if a villain be manumitted, every condition annexed to such manumission is upon non-performance void. But the King may grant a pardon upon any condition he pleases, and the meaning of such a grant must be that if the condition be broken the pardon is null and void. By the old law where Benefit of Clergy did not interpose to save the life of the convict, if the offender had recourse to abjuration, and undertook to depart the realm with all possible speed, the want of due diligence to perform this undertaking, rendered him liable to be referred to his original sentence, as was done in Stamper's Case; and if his former sentence was capital he was ordered for execution; for, as proved to have been regularly kept, though not kept by the proper officer, are evidence. 1 Strange, 93.—So are Herald's books, and minutes of a visitation. Strange, 192. So are the rolls of a Court Baron. Dougl. 572.-So whenever the original is of a public nature, a copy of it is good evidence. Cowp. 17. as of the register of christenings, marriages, burials, &c. though it appear that the register was made from a day-book. 2 Strange, 1073.-See Onslow's Nisi Prius, 236. Recoveries, 2 Bl. Comm. 110. AICKLES'S CASE. 1785. the book says, there cannot be two attainders for the same crime. But when the new system of transportation commenced, the Legislature made returning before the expiration of the time a new felony, or, as subsequent statutes express it," being found at large without lawful excuse, &c." This new system gave a new character to the law upon this subject, and if the returning convict came within this new description of offence, it was necessary to indict him for a new and distinct felony. The question therefore is, whether the Legislature has made the facts of this case a new felony. The 16 Geo. II. c. 15. enacts, that if any convict who shall agree to transport himself to America, shall be afterward found at large in Great Britain without lawful excuse, &c. he shall suffer death without benefit of clergy. This is the statute under which the prisoner is indicted. But the King has not modelled his pardon according to the terms of the statute; it is on condition of transporting himself beyond the seas, &c. This part of the condition he has neglected to perform, and as he has not complied with the terms upon which he was pardoned, it strikes me that he was found at large within the penalties of this statute. His discharge from prison was procured on a condition that he should go beyond the seas within fourteen days afterwards. It is true he procures that discharge legally by giving the required security, but he neglected to perform the condition upon which that security was taken. I therefore think that the instant the fourteen days expired, he was at large without lawful authority, for it is precisely like the case put by Lord Coke. He has certainly broke the condition and the pardon he obtained upon the terms of performing it is at an end. HOTHAM, Baron. I am of opinion that the offence with which the prisoner is charged is not within the statute 16 Geo, II. c. 15. because he has not agreed to transport himself to America (a). And that he is not within 19 Geo. III. (a) GOULD, Justice, in his argument on this Case said that it had been determined by all the JUDGES upon a question arising on the Fishing Act, referred by Mr. JUSTICE BATHURST, that where a statute says, that a convict shall be transported for seven years without saying to what place, it shall be understood to mean to America. c. 74. because that Act relates only to those who have been capitally convicted. But as to the more doubtful question whether the non-performance of the condition has not completely rendered the whole pardon null and void; I think it ought to be reserved for future consideration. 1785. AICKLES'S ADAIR, Recorder. This offence does not appear to me to fall within that clause of the 16 Geo. II. c. 15. which relates to convicts who agree to transport themselves; nor within 19 Geo. III. c. 74. which relates to pardons granted by the King; for the prisoner did not agree to transport himself to America, and that clause in the 16 Geo. H. is not repealed by the 19 Geo. III. c. 74. His pardon is not a pardon for a capital offence, and the 19 Geo. III. c. 74. relates only to capital offences. It seems to me however that the indictment is perfectly supported under that clause of 16 Geo. II. c. 15. adopted by 19 Geo. III. c. 74. which makes it a capital felony to be found at large in Great Britain, within the term for which a convict who was liable to be transported to America, has received sentence to be transported beyond the seas. The prisoner was so sentenced; and has been found at large before the expiration of the time. So far the case seems to me to be clear; but it also appears that he was at large under a warrant from THE RECORDER, founded upon a conditional pardon granted by THE KING. Now I agree that when the King's pardon is broken, the pardon is void. This was the principle on which the court acted in the case of Rex v. Madan (1); which case is similar to the present case, ex- (1) Ante, cepting that he was not indicted for a new felony. On being Case 111. put to the bar he confessed that he was the same person, and not being able to assign any lawful excuse for being at large, he was remanded to prison under his former sentence; for the condition of the King's pardon being broken, the pardon was gone, and the prisoner remained precisely in the same situation as he was before the pardon was granted. This is precisely the situation of the present prisoner. THE COURT differing in opinion upon this point, it was thought a proper question for the consideration of THE Judges, in case the Jury should find the prisoner guilty. But on page 223, |