History of New South Wales From the Records
VOLUME 1 - GOVERNOR PHILLIP 1783-1789

G. B. Barton - 1889

PART III

History of Transportation to 1787

 

BANISHMENT from the King's dominions was a recognised mode of punishment from the earliest times, especially for political offences. A reference to it occurs in Shakspeare's Richard II, act i, scene 3, when the King, after having stopped the fight between Bolingbroke; and Norfolk, addressed them as follows:-

Therefore we banish you our territories:-
You, cousin Hereford, upon pain of life,
Till twice five summers have enriched our fields,
Shall not re-greet our fair dominions,
But tread the stranger paths of banishment.
Norfolk, for thee remains a heavier doom!

The hopeless word of - never to return,
Breathe I against thee, upon pain of life.

But this method of punishing political offenders was checked by Magna Charta, which declared that no freeman should be outlawed or exiled but by lawful judgment of his peers, or by the law of the land (1).

Some of the most conspicuous instances of banishment by Act of Parliament in modern times are -

The first Act of Parliament by which banishment from the realm  was  recognised as a method of punishing offenders  was passed in 1597 (2), for the purpose of dealing with the "rogues, vagabonds, and sturdy beggars" who formed one of the great social troubles of the Tudor times. It enacted that "dangerous rogues, and such as will not be reformed of their roguish course of life, may lawfully, by the Justices in their Quarter Sessions, be banished out of the realm and all other the dominions thereof, into such parts beyond the seas as shall be for that purpose assigned by the Privy Council; or otherwise be adjudged perpetually to the gallies of this realm." By the same statute every rogue so banished and  returning without license was  made guilty of felony, but within the benefit of clergy (3). And for the better indemnifying the nation against such rogues so returning, it was also enacted that prior to their banishment they should be "thoroughly burned upon the left shoulder with a hot burning-iron of the breadth of an English shilling, with a great Roman R upon the iron, for a perpetual mark upon such rogue during his or her life."

But although this statute of Elizabeth was the first by which banishment from the realm - afterwards known as transportation - was formally recognised as an appropriate punishment for offenders against the laws, the origin of the system must be sought for in much earlier times than the sixteenth century. It will be found, in fact, in the ancient custom by which men who fled from justice or retribution to the sanctuary were allowed to abjure the realm - in other words, to transport themselves to any part of the outside world they pleased. They were required to make oath before the coroner, in the church to which they had fled, that they would quit the realm on a given day; a cross was thereupon given to them to ensure their protection on their journey to the coast; but if they failed to present themselves at the place and on the day appointed for their embarkation, they forfeited the privileges they had obtained. The privilege of sanctuary was taken away by an Act passed in the reign of James I, and abjuration of the realm consequently ceased.

The first recorded public documents authorising the transportation of convicts, and specially designating their destination, are three Orders in Council, dated January, 1614, July, 1615, and March 20, 1617, respectively. These orders directed certain criminals to be delivered to the Governor of the East India Company, to be transported to the East Indies.

The first recorded instance of transportation to a colony appears in a letter addressed by James the First in 1619 to the Treasurer and the Council of the Colony of Virginia, directing them to "send a hundred dissolute persons to Virginia, whom the Knight Marshal should deliver to them for that purpose."

The word " transport" appeared for the first time in an Act of Parliament passed in 1666, for "preventing of theft and rapine upon the northern borders of England (4)." The moss-troopers of that time gave as much trouble to the Lords of the Marches as the sturdy beggars gave to the Justices of the Peace in earlier days. The Act in question declared that the "great, known, and notorious thieves and spoil-takers in Northumberland and Cumberland," on conviction for theft done or committed in those counties, should be excluded from the benefit of clergy - that is, should be tried and dealt with in the usual way; but as that would have meant capital punishment on conviction, it was mercifully provided that the Justices of Assize, before whom they were convicted, might cause them to be "transported into any of his Majesty's dominions in America, there to remain, and not to return."

By far the most remarkable Act on this subject was passed in 1718 (5), authorising transportation to the colonies and plantations in America. It proposed a means for supplying the demand for labour there, as well as for ridding the mother country of its dangerous classes. Previous to the passing of this Act, transportation to the West Indies, on a voluntary basis, was one means of disposing of them; but having proved ineffectual, the Act of 1718 was passed for the purpose of authorising their compulsory removal to America. The Act also introduced the machinery by which the system of transportation was afterwards worked, as long as it continued in existence. The language of this statute throws a good deal of light, not only on the history of transportation, but on the social condition of the time.

The preamble recites that whereas it had been found by experience that the punishment inflicted by the laws then in force against robbery, larceny, and other offences of the kind, had not proved effectual to deter wicked and evil-disposed persons from being guilty of such crimes; and whereas many offenders, to whom royal mercy had been extended upon condition of transporting themselves to the West Indies, had often neglected to perform that condition and had returned to their former wickedness, and been at last for new crimes brought to a shameful and ignominious death:

And whereas in many of his Majesty's colonies and plantations in America there was great want of servants, who by their labour and industry might be the means of improving and making them more useful to the nation:

It was therefore enacted that where any persons had been convicted of any offence within the benefit of clergy, and were "liable to be whipt or burnt in the hand (6)"; and also where any persons might thereafter be convicted of fraud or petit larceny, &c., and would be entitled to the benefit of clergy, and " liable only to the penalties of burning in the hand or whipping" (except receivers and buyers of stolen goods), the Court before whom they were convicted might, instead of ordering them to be burnt in the hand or whipt, order that they should "be sent, as soon as conveniently might be, to some of his Majesty's colonies and plantations in America for the space of seven years:"

And the Court should have power to  "convey, transfer, and make over such offenders to the use of any persons contracting for their transportation to them and their assigns for the term of seven years:"

It was further provided that where any persons had been convicted of offences for which death ought by law to be inflicted, or where any persons should thereafter be convicted of any crimes for which they would by law be excluded the benefit of clergy, and his Majesty should be pleased to extend royal mercy to them, "upon the condition of transportation to any part of America," the Court might allow such offenders the benefit of a pardon under the Great Seal, and order the like transfer and conveyance of such offenders, and also of receivers and buyers of stolen goods, to any persons who should contract for the due performance of the transportation and their assigns, for the term of fourteen years, " in case such conditions of transportation were general, or else for such term as should be made part of such conditions, if any particular time should be specified by his Majesty."

To carry out the intention of these singular provisions, it was further enacted that the persons so contracting, and their assigns, should have "a property and interest in the service of such offenders for such terms of years." The effect of this was that the convicts became the property of the contractors - that is, the ship-owners who undertook to transport them - for the term of their respective sentences; and as there was no restriction upon the mode of dealing with this property, the contractors adopted the only practicable means of turning it to account by selling the convicts, as soon as they were landed on the shores of  Virginia or Maryland. Every convict sent to America under this system was sold like a slave, the only essential difference between the two being that the one was sold for life, and the other for a term of years. The profits made by the ship-owners on the sale of these cargoes paid the expense of transporting them; the British Government by that means saving the expenditure which otherwise it would have had to incur for the purpose. At the same time it relieved itself from all responsibility with respect to the treatment of the convicts during the passage and after their arrival at the port of destination (7).

The next section of the Act contains an open recognition of this right of property in the convict, the master or employer being described as "the owner or proprietor." It enacted that any offenders ordered to be transported, who should return before the expiration of their term, should be liable to suffer death: Provided that his Majesty might pardon and dispense with any such transportation, and allow of the return of any such offenders from America, "they paying their owner or proprietor, at the time of such pardon, dispensation or allowance, such sum of money as should be adjudged reasonable by any two Justices of the Peace residing within the province where such owner dwells."

The contractors were to give security for the transportation of the convicts, and to procure certificates from  the Governor, or Chief, or Custom-house Officer in the colony, of their having been duly landed.

On the cessation of transportation to the American colonies, the gaols became so crowded with prisoners that active measures became necessary for the purpose of preventing the evils with which society was threatened. The condition of the gaols and the sufferings of their inmates formed one of the great public questions in English politics during the last quarter of the eighteenth century. Howard's investigations on this subject extended over the years 1773-4-5, and his evidence before the House of Commons at that time led to several amendments of the existing law; but it took at least twenty years of continuous agitation to bring about the desired change for the better. During that period the state of the gaols, which threatened the community with outbreaks of pestilence as well as escapes of prisoners, formed a subject of the gravest importance, and the public interest in it seems to have reached its climax at the time when the projected expedition to Botany Bay was under consideration (8).

One of the first measures adopted by the Government was the Act of Parliament passed in the year 1783 (9) for the purpose of authorising the removal of convicts from the gaols to the hulks on the Thames, pending their transportation. The system of penal discipline known as "the hulks" was originally adopted in 1775, when an attempt was made to substitute that method of punishment for transportation. During the following fifteen years some 8,000 convicts were sentenced to hard labour on the hulks. The system was carried on by contract, the contractors providing the hulks and all necessaries for their management, as well as provisions and clothing for the convicts, at the rate of £22 16s. 3d. for each convict.

The preamble of the Act referred to recited that,  "from the unusually great number of offenders now under sentence or order of transportation, in the gaols within England and Wales, there is such a want of convenient and sufficient room in many of such gaols that very dangerous consequences are to be apprehended, unless some immediate provision be made for removing such offenders to some other place of confinement." The Act then empowered any three Justices of the Peace, duly authorised for the purpose, to order the removal of male prisoners, under sentence of death or transportation, from any gaol to any ship or vessel in the Thames until they could be transported. During their confinement in that manner, prisoners were to be allowed to labour and to have half their earnings, but they were not to be forced to work, and the time of their imprisonment was to be deemed part of the term of transportation. Security was to be taken by bond from the contractors who undertook to transport the prisoners beyond the seas; and any prisoners who should return to England before their time had expired, would be liable to suffer death.

This Act was followed by another (10) passed in the following year for "the effectual transportation of felons and other offenders, and to authorise the removal of prisoners in certain cases." It provided that any person convicted of a crime punishable by transportation might be ordered to be transported accordingly, and that his Majesty in Council might appoint to what place beyond the seas he might be sent. By the Act of 1718, transportation was confined to the colonies and plantations in America; but as they ceased to be available for that purpose after their independence had been recognised in 1783, it became necessary to make other provisions. That was effected by the Act of 1784, which enabled the Government to appoint any place it might think proper by an Order-in-Council. No place had been determined upon at the time the Act was passed; but the measure shows that the Government were then contemplating the foundation of a new colony in the shape of a penal settlement.

Among the various classes of offenders for whom transportation was considered an appropriate punishment during the seventeenth and eighteenth centuries were:-

1. Quakers denying any oath to be lawful, or assembling themselves together under pretence of joining in religious worship - third offence, 13 and 14 Car. II, c. 1.

2. Notorious thieves and spoil-takers - commonly called moss-troopers - in Northumberland and Cumberland. 18 Car. II, c. 3.

3. Persons found guilty of stealing cloth from the rack, or "imbezzelling" his Majesty's stores to the value of 20s. 22 Car. II, c. 5.

4. Persons convicted of wilfully burning ricks of corn, hay, &c., or barns, &c., in the night-time. 22 and 23 Car. II, c. 7.

5. Persons convicted of larceny and other offences, and entitled to benefit of clergy, except receivers and buyers of stolen goods, transportation for seven years; felons excluded clergy, and receivers and buyers of stolen goods, fourteen years. 4 Geo. I, c. 11; 6 Geo. I, c. 23.

6. Persons imprisoned for exporting wool, and not paying the sums recovered against them. 4 Geo. I, c. 11.

7. Persons convicted of entering into any park and killing or wounding any deer, without the consent of the owner. 5 Geo. I, c. 28.

8. Persons convicted of perjury or forgery, afterwards practising in any Court as attorneys, &c., might, upon complaint to the Judge thereof in a summary way be transported to the plantations for seven years. 12 Geo. I, c. 29.

9. Persons convicted of perjury or subornation. 2 Geo. II, c. 25.

10. Persons convicted of assaulting others with offensive weapons and a design to rob. 7 Geo. II, c. 21.

11. Persons convicted a second time of hunting and taking away deer out of unenclosed forests or chaces; or of coming into a forest with an intent to steal deer, and beating and wounding the keepers. 10 Geo. II, c. 32; 31 Geo. II, c. 42.

12. Persons resisting officers in seizing wool unlawfully exported. 12 Geo. II, c. 21.

13. Vagrants or vagabonds escaping from house of correction, or from service in the Army or Navy. 17 Geo. II, c. 5.

14. Persons convicted of stealing any linen, &c., laid to be printed, bleached, & c. - death, or transportation for fourteen years. 18 Geo. II, c. 27.

15. Ministers of the Episcopal Church of Scotland exercising their functions in any Episcopal meeting-house in Scotland, without having registered their letters of orders, and taken all oaths required by law, and prayed for his Majesty and the Royal Family by name. First offence, six months' imprisonment; second, transportation for life. 19 Geo. II, c. 38.

16. Rebels returning from transportation without license, or voluntarily going into France or Spain - death, without benefit of clergy. 20 Geo. II, c. 46.

17. Persons convicted of entering mines of black-lead with intent to steal, or hiring persons to do so. 25 Geo. II, c. 10.

18. Persons convicted of  assaulting any magistrate or officer engaged in the salvage of ships or goods from wreck. 26 Geo. II, c.l9.

19. Persons convicted of solemnising matrimony without banns or license. 26 Geo. II, c. 33.

20. Persons convicted of stealing fish in any water within a park, paddock, orchard, or yard, or receiving, aiding, and abetting. 5 Geo. III, c. 14.

 

NOTES:

1. Banishment as a judicial sentence prevailed in Scotland from the seventeenth century. It was applied in ordinary cases as well as in political disturbances, and probably owed its origin to the difficulty of providing accommodation in the tolbooths. Banishment from the Sovereign's "hail dominions furth of Scotland," or from one district of Scotland to another, was a common sentence. . . . The ordinary place of exile during the eighteenth century was "His Majesty's plantations in America." - Rogers, Social Life in Scotland, vol. i, p. 37.

2. 39 Eliz., c. 4.

3. By an ancient custom of the realm, men in holy orders when accused of any felony might claim the right of trial by compurgation before their fellow priests. If the claim was allowed, the accused was handed over to the Ordinary; in other words, to the safe keeping of the Bishop of the diocese. Trial by compurgation meant nothing more than a solemn declaration of innocence, by the accused on oath taken in the presence of other priests; and if they made oath - as they usually did - that they believed him innocent, he became at once a free man. Anyone who could read was entitled to claim benefit of clergy, clerici or "clerks," being in early times the only men who had learned to read. Laymen in later times acquired the art in order that they might be qualified to claim this privilege, and consequently it became common to all educated persons. It was not entirely abolished until the time of George IV. The reason why it was so long retained in the administration of the criminal law was, apparently, because it was practically a means of showing mercy to offenders convicted for the first time. To prevent their claiming the privilege twice, the practice of burning in the hand was introduced; the criminal being thereby made to carry the register of his conviction in his hand.

4. 18 Car. I, c. 3(1643).

5. 4 Geo. I, c. II. - "An Act for the further preventing robbery, burglary, and other felonies, and for the more effectual transportation of felons and unlawful exporters of wool, &c."

6. Burning in the hand was one of the last remnants of the old practice of mutilation which used, in times preceding the Norman Conquest, to be inflicted for all kinds of petty offences. Branding on the forehead, cutting off the hands or feet, the nose, ears, or upper lip, cutting out the tongue, plucking out the eyes, tearing away the scalp, and sometimes flaying or burning alive, were among the punishments sanctioned by the Saxon laws, and subsequently adopted by the Norman. By the statute of Vagabonds, passed in the time of Edward VI, a runaway servant was to be branded on the breast with the letter V; and if he absented himself for fourteen days he was to be branded on the forehead or cheek with the letter S, and adjudged to be the slave of his master for ever. One of Elizabeth's statutes enacted that a vagabond above fourteen years of age was to be grievously whipped, and burned "through the grissle of the right ear with a hot iron of the compass of an inch," unless some responsible person should take him into service for a year. Branding in the hand was subsequently substituted for ecclesiastical compurgation. The practice was not discontinued until the time of George III.

7. "Englishmen in authority, a little after the middle of the eighteenth century, did not let their left hand know what their right hand did; and at the very time when they asserted the freedom of black slaves brought to England from the colonies, they exported white convicts under sentence of transportation for sale to settlers in America. The sum received was the payment to the owners and captains of the transport ships for their trouble and risk; and it is said that the white slaves and the black were set to work together on the plantations, and were equally punished by the lash for idleness or disobedience." - Pike, History of Crime, vol. ii, p. 349.

8. It was in 1789 that Howard published his principal work on prison management, - The State of the Prisons in England and Wales. A fourth edition was published in 1792.

9. 24 Geo, III, c. 12.

10. 21 Geo. III, c. 56 (1784).

 

 


23/08/2005

Top of this Page
Next Chapter
Table of Contents
Article and Book Archive
Kevin Matthews History Site

 

A KEVIN MATTHEWS
PRODUCTION