363 



PENAL SERVITUDE. 



PENALTY. 



370 



third, on the relative distance of the tracer T from the spindle E, am 

 of that spindle from the axis X, which may be expressed as the relativ 



distance of T E and E X. The following diagram gives an idea of a few 

 of the most simple curves. The number of parts or leaves in each 



figure depends on the first of the three circumstances above mentioned 

 . 1 the wheels A and n must be equal ; for fy. 2, as 4 to 1 ; ami 

 for the rest, as 3 to 1. On the second circumstance depends whether 

 the loops or point* are within the curve, as in fyt. I, 2, and 3 ; or on 

 the outer side, as in the others ; and lastly, upon the third circum- 

 stance depends the shape of the point* or loops themselves. For the 

 eight curves given above, T E must be less than E x ; but if this is 

 reversed, the curves assume a most curious, complicated, and some- 

 times beautiful arrangement. 



Suardi states that 1273 curves may be produced by the changes of 

 twelve wheels, the smallest having eight, the next sixteen, and so on 

 to ninety -six teeth ; and that by the addition of a few pieces, spirals 

 with a circular base, and particularly the spiral of Archimedes, may be 

 produced. 



For further information the reader is referred to Suordi's work, 

 entitled ' Nuovo Instrumento per la Descrizione di diverse Curve 

 Antichi e Moderne,' &c. ; and to Adam's ' Geometric Essays.' 



1'KN'AL- SERVITUDE. This punishment has come in place of the 

 former punishment by transportation, said to have been first inflicted 

 by *tat. 39 Eliz. c. 4. The first act of parliament on this subject in 

 the 18 Car. II. c. 3, . 2, enabling the judge of assize to transport cer- 

 tain offenders to America, there to remain and not to return. 



The 22 Car. II. c. 5, . 4, gave the judges power, " at their discre- 

 tion," to grant a reprieve, and to cause felons to be transported beyond 

 the seas, there to remain for the space of seven years ; but if the 

 offender refused to be transported, or returned within the time, then 

 he was to be put to execution upon the judgment. The 22 ft 23 Car. 



II. c. 7, . 4, directed a judgment of transportation to be entered, when 

 the felon elected to be transported, and it authorised the sheriffs to 

 cause offenders to be embarked. It also made a return before the 

 expiration of the sentence, a capital felony. The next statute on the 

 ubject was the act 4 Geo. I. c. 11, " the foundation of the law of 

 transportation," which enacted that, when the crown should be pleased 

 to extend mercy, upon condition of transportation to any part of 

 America, any court, having proper authority to do so, might direct the 

 offender to be transported. The stat. 6 Oeo. I. c. 23, again made a 

 person " at large in Great Britain, before the expiration of the term " 

 of transportation, liable, on conviction, to suffer death. The 8 Geo. 



III. c. 15, extended the powers of the judges to make orders for trans- 

 portation by enabling them to do so out of court ; and by the stat, 



ARTS AND SCI. DIV. VOL. VI. 



30 Geo. III. c. 47, the king was empowered to authorise the governors 

 of convict settlements to remit the sentences of transports. 



By the stat. 5 Geo. IV. c. 84 (amended by 11 Geo. IV. and 1 Wm. IV. 

 c. 39), consolidating the laws on the subject of transportation, the king 

 in council was empowered to appoint places beyond the seas, to which 

 persons under sentence of transportation should be conveyed, the 

 governor or other person to whom they were delivered, or his assignee, 

 having the property in the service of the convicts. The sovereign was 

 also empowered by warrant to appoint places of confinement at home, 

 either on land or on board vessels in the Thames, or other rivers or 

 harbours, for the confinement of male offenders (extended by the 

 stat. 16 & 17 Viet, to females) under sentence of death, but re- 

 prieved or respited, or under sentence of transportation, there to 

 remain under order of the secretary of state until entitled to their 

 liberty, or removed, or otherwise dealt with. The capital punishment 

 for offenders found unduly at large before the expiration of their 

 sentence was subsequently abolished by 4 & 5 Wm. IV. c. 67, which 

 substituted transportation for life, with previous imprisonment not 

 exceeding four years. 



New South Wales, Van Diemen's Land, and Norfolk Island, thus 

 became the principal receptacles for convicts. Although the property 

 in the services of these persons was vested in the colonial governor or 

 his assigns, a practice prevailed of granting them, in certain cases and 

 on certain conditions, permission to employ themselves for their own 

 benefit These permissions were usually called " tickets of leave." By 

 the stat. 6 ft 7 Viet. c. 7, the legislature, thinking it just that tieket-of- 

 leave convicts should be protected in their persons, and in the posses- 

 sion of such property as they might acquire by their industry, em- 

 powered them to hold personal property, and to maintain actions in 

 respect thereof while such tickets remained unrevoked. 



The reception of convicts having, however, become distasteful to the 

 inhabitants of the colonies, the stat. 10 & 11 Viet. c. 67, was passed, 

 permitting offenders under sentence of transportation to be removed to 

 any prison or penitentiary in Great Britain ; directors of the principal 

 convict prisons being appointed afterwards under the stat. 13 & 14 

 Viet. c. 39. The difficulty attending the reception by the colonies of 

 transported convicts having increased, the stat. 16 & 17 Viet. c. 99, 

 finally abolished the punishment of transportation for less than fourteen 

 yean, and substituted penal servitude at home for certain periods, 

 giving the courts power in all cases to substitute such penal servitude 

 for transportation. 



Before this last statute was passed, a system had for some time pre- 

 vailed with respect to well-conducted convicts (who, although sentenced 

 to transportation, had been kept at home), of granting them free par- 

 dons, generally at the expiration of half their sentence of transportation. 

 As the continuance of the same system under the last-mentioned 

 statute seemed likely to cause serious evils, but as it was at the same 

 time desirable to encourage good behaviour in convicts, it was deter- 

 mined to try the experiment of retaining some control over them in 

 cases where they were set at liberty before the expiration of their 

 original sentence. With that view the statute empowers the crown, 

 by order of one of the secretaries of state, 'to grant any convict a licence 

 or " ticket of leave," to be at large during such portion of lu's term of 

 transportation or imprisonment, and upon such conditions, as may be 

 thought fit, such licence being also revocable at pleasure. 



Finally by the stat. 20 & 21 Viet. c. 3, the sentence of transportation 

 is entirely abolished, and the sentence of penal servitude substituted ; 

 but the statutes which have reference to transportation are to havo 

 reference to penal servitude, so that the name alone is changed. 



As to the government of convict prisons in the colonies, see 22 Viet. 

 c. 25. 



PENALTY, in its original and proper sense, is a pecuniary punish- 

 ment imposed by statute upon parties guilty of certain offences. This 

 term is also used to denote a sum of money which a party to a con- 

 tract has engaged to pay in case he violates his engagement. Penalties 

 imposed by statute are strictly regulated by statute ; but with respect 

 to penalties created by contract, the rule is neither so strict nor so 

 uniform. The courts of law will not allow a larger sum to be recovered 

 in the name of penalty than is sufficient to cover the damages actually 

 sustained; but where the parties have determined in advance the 

 damages that shall in certain events be considered to have been 

 sustained, and nothing essentially inconsistent with the reasonable- 

 ness of such determination appears upon the face of the transaction, 

 the courts do not interfere, and the damages thus pre-determined are 

 recoverable under the name of liquidated damages. Where a penalty 

 a fixed, co nomine, for the breach of an agreement, and yet larger 

 damages are actually sustained, the larger amount may be recovered as 

 damages without recourse to the penalty. In many cases the distinc- 

 ;ion between a penalty and liquidated damages is often difficult to 

 ascertain, and some of the decisions on this head are not easily 

 reconciled. 



Formerly the interference of a court of equity was often necessary 

 temper the severity of the common law, but by the statute 8 & 9 

 'Vm. III., c. 11, s. 8, it was provided that in actions in courts of record 

 upon any bond or penal sum for the performance of covenants or 

 agreements contained in any indenture, deed, or writing, the plaintiff 

 hall state the breaches of covenant or agreement which he has sus- 

 tained, and damages are to be assessed accordingly. If the plaintiff 



