Transportation and colonization/Chapter 1






The punishment of banishment or exile, whether implying the mere expulsion of the criminal from his native country, or his transportation to some place of bondage and hard labour beyond seas, was equally unknown to the Jewish law and to the practice of primitive antiquity. In the turbulent republics of ancient Greece banishment was more frequently the lot of some patriot of commanding talents and splendid achievements, such as Miltiades, Themistocles, or Aristides; or the fate of some political minority, borne down in its death-struggle for ascendancy by the overwhelming force of an opposing faction; than the just award of the laws of the land for crimes and demeanours. On such occasions, whether it was the aristocratic or the democratic party that had gained the upper hand in the petty commonwealths of Athens, of Corinth, or of Thebes, large bodies of obnoxious citizens were obliged, from motives of prudence as well as from sheer necessity, to submit simultaneously to voluntary exile, and to search for a home and a country on the coasts of Asia Minor or in the Ionian Islands, in Italy, and the island of Sicily, or even on the remote coast of France. Indeed, to suppose, with the celebrated Italian writer Filangieri, that there was anything analogous to the penal settlements of modern times, in the origin and constitution of the ancient Grecian colonies, merely because the latter were not unfrequently founded by bands of exiles, is egregiously absurd.[1]

Banishment or transportation, in all its degrees of severity, was known, as a species of punishment, to the Roman law, especially during the times of the empire. Previous to the era of Augustus, banishment was a legal commutation of punishment for certain capital offences: the Roman law subjecting the criminal perdere aut Titam aut patriam; or, in other words, awarding him the punishment of death, if he should be found, after a certain period, within the precincts of Italy. When the criminal had either escaped from justice or had not been apprehended, the sentence of aquæ et ignis interdictio (prohibiting all and sundry, under the severest penalties, from supplying him with the necessaries of life, or from receiving him into their houses,) was pronounced against him; and this sentence became, in process of time, the usual form of a sentence of banishment from Italy. These practices and enactments of the ancient Roman law appear to have been afterwards naturalized and established in most of the states of modern Europe. By the law of England, for example, a criminal, who had committed a capital offence, was in certain cases permitted to escape with his life, on condition of his abjuring the realm, or quitting the kingdom. In such cases, the oath of abjuration was administered to the criminal by the coroner of the district, and a cross was placed in his hand, to ensure him protection on his journey to the limits of the kingdom. In reference to this ancient practice it is worthy of remark, that in the preamble of the Act 4 George I. cap. 11. regulating the transportation of criminals to America, one of the grounds of that enactment is stated to be the failure of those who undertook to transport themselves. Banishment from Scotland was in like manner the appropriate award of certain crimes and misdemeanours, by the laws of that ancient kingdom; which, it is well known, were more generally formed on the Roman model than those of England: and in both kingdoms the sentence of outlawry, coupled, as it usually was in the savage practice of the Stuarts, with the additional sentence of "intercommuning," as it was designated by the law of Scotland, was a mere copy of the Roman judicial sentence of aquæ et ignis interdictio; the outlawed or intercommuned person being placed under the ban of the kingdom, and all persons being prohibited, under pain of death, from supplying him with the necessaries of life.[2]

One of the latest instances in which the sentence of "intercommuning," founded on the Roman judicial sentence of aquæ et ignis interdictio, was carried into effect against an individual harbouring an outlaw within the realm of England, was in the year 1685, shortly after the commencement of the reign of James II. when certain persons, who had been concerned in the duke of Monmouth's rebellion, were in concealment in London. One of these persons had thrown himself upon the charity and compassion of a benevolent lady, of the baptist persuasion, whose affecting story is related by bishop Burnet in his 'History of His Own Times.'[3]

The emperor Augustus introduced several important modifications of the ancient Roman law on the subject of banishment, and may be said to have laid the foundations of the modern system of transportation. For certain political crimes or misdemeanours, which did not render the offender infamous in the eye of the law, he established a species of punishment called relegatio, or banishment, properly so called; implying either temporary or perpetual banishment to a particular place or district, but without affecting the rank or fortune of the individual as a Roman citizen. Of this species of banishment, history records two famous instances, both of which occurred during the reign of Augustus. The one was that of the poet Ovid, who, for some personal offence he had given the emperor, of the nature of which we are not sufficiently informed by the historians of the age, was relegated, or banished for life, to a small town on the Euxine or Black Sea. The other was that of Archelaus, the son of Herod the Great, and king of Judea, shortly after the birth of our Lord Jesus Christ: for certain complaints having been preferred against that monarch by his own subjects, he was deprived of his regal dignity and government by order of the emperor, under whose protection Judea then was, and relegated, or banished for life, to a city in Gaul or France.[4]

For infamous crimes, such as are now designated felony, the emperor Augustus instituted a second description of banishment, designated deportatio, or transportation; implying banishment for life, either with or without hard labour, to a certain place or district. It was doubtless to this species of banishment that the famous edict of the emperor Claudius, referred to in the eighteenth chapter of the Acts of the Apostles, subjected all persons "infected," to use the phraseology of the Roman historian, "with the Jewish and Egyptian superstitions;" for on its being decreed in the Roman senate that four thousand criminals of this description should be transported to Sardinia, to be employed in the public works of that island, the philosophical historian, alluding to the extreme insalubrity of the climate, and the consequent probability that the criminals would speedily die, coolly observes that the loss in that case "would be insignificant."[5] It was probably also to this species of banishment that the apostle John was subjected in the island of Patmos; the profession of Christianity being then regarded by the Roman magistrates as an infamous crime. At all events, it is evident from these instances, that penal settlements were established and maintained by the Romans, for the reception and employment of transported criminals, in the island of Sardinia and in the isle of Patmos.

The first of the European nations that followed the example of the Romans in the formation of such settlements were the Portuguese and the Spaniards. The latter, indeed, do not appear to have acted so systematically in this respect as the former; having merely extended pardon to certain descriptions of criminals confined in the gaols of the mother country, on condition of their enlisting as soldiers or sailors, or as menial servants generally, to be employed exclusively in the colonies in the New World. The Portuguese, however, appear to have been long in the habit of sending regular draughts of convicts, to be employed in hard labour, to their colonial settlements on the coast of Africa and in the East Indies; and, at the present day, convicts from the Brazils are transported to the penal settlement of Fernando da Noronha, an island situated on the fourth parallel of south latitude, off cape St. Roque, on the coast of South America.

By the statute of 39 Elizabeth, cap. 4., banishment, implying merely expulsion from the kingdom, was decreed for the first time in England as the punishment of "dangerous rogues and vagabonds." In the exercise of his royal prerogative, however, James I. was pleased virtually to convert this statute into "an Act for the transportation of criminals to America;" by addressing a letter to the treasurer and council of the colony of Virginia, in the year 1619, "commanding them to send a hundred dissolute persons to Virginia, which the knight-marshal would deliver to them" for that purpose. The practice of transportation to the American colonies, which was thus irregularly introduced into Great Britain, continued during the seventeenth and eighteenth centuries until the commencement of the war of American independence. At first, if we may credit the testimony of a contemporary historian, "the convicts who were thus transported were very acceptable to the colonists," to whom they were generally indented for a certain period, at a certain fixed rate per head, by ship-masters, who carried them over from England on speculation; the colonists considering that "their labour would be more beneficial in an infant settlement, than their vices could be pernicious."

Great inconveniences, however, were at length found to arise from the great number of "dissolute persons," who were thus from time to time turned loose upon the American colonies; where, it would seem, they were subjected to no other restraint than that which was implied in the right to their services for a certain limited period, which their respective masters had purchased from their importers. Besides, in proportion as the importation of negro slaves into the American colonies (which was then promoted to the very utmost by the British government) was increased and extended, convict-labour became less and less valuable in these colonies than it had previously been; while the extreme impolicy of exhibiting white men in a state of slavery, in the midst of a gradually increasing black-slave population, became more and more apparent. Accordingly, as soon as the "calculating" colonists of the American plantations found that kidnapped negroes from the coast of Africa, whom they had bought with their money at a comparatively low price, and reduced to hopeless and hereditary slavery, with the sanction and encouragement of the British parliament, were healthier and more robust, besides being more easily controlled, and altogether a better bargain than criminals from England, they began gradually to testify their reluctance to have any additional consignments of convicts thrown into their respective territories; or to be thus made the felon-drivers as well as the negro-drivers of the empire. If I am not greatly mistaken, it was the people of Barbadoes, that slave-holding colony "of old extent," that first testified this extreme delicacy of feeling; in which, however, they were soon followed by the slave-holders of Maryland, whose colonial legislature passed an Act, so early as the year 1692, prohibiting ship-masters from landing convicts in that colony. Similar sentiments were afterwards expressed by the people of New York: and, at a still later period, when the celebrated Dr. Franklin, remonstrating with the British ministry, as a delegate from the colonists of Pennsylvania, against the practice of forcing convicts upon the people of that colony, was told that it was absolutely necessary to remove them from England, and that they must therefore continue to be transported to America; he replied, by asking the ministers, If the same reason would justify the Americans in sending their rattle-snakes to England.

So early as the year 1697, or during the reign of king William III., the remonstrances of the American colonists, and the difficulty of disposing of the transported convicts, appear to have directed the attention of the British government to the subject of transportation; for, in a letter ad* dressed to the chairman of the committee of the House of Commons on secondary punishments, and appended to their printed report for the year 1831, the following memorandum appears:—

"At the Court at Kensington, the 25th of November, 1697.

"Present, the King's Most Excellent Majesty in Council. Upon reading this day, at the Board, a representation from the Council of Trade, relating to the transportation of convicts to the plantations, and the difficulty of disposing of such convicts there: It is ordered by His Majesty in Council, that it be referred to the Council of Trade, to consider how and to what places convicts, which shall be pardoned upon condition of transportation, may be best and most effectually disposed of; or what other punishment might be proper for such convicts in lieu of transportation to His Majesty's colonies in America.

(Signed) John Povey."

It would seem, however, that there were still many of the colonists in America who were willing enough to receive the convicts transported from the mother country on the usual terms; for not only was there nothing done by the British government in the way of finding another mode of disposing of these convicts, or another place of transportation, but, in the preamble of the Act 4 George I. cap. 11., already referred to, one of the grounds of that Act, which was merely intended to provide for the better regulation of transportation, is stated to be "the great want of servants in his Majesty's plantations."

The inconveniences arising from the transportation of criminals to the North American colonies continuing to increase, and the remonstrances of such men as Dr. Franklin and his constituents having at length produced their proper effect in the mother country, it was ultimately recommended by a committee of the House of Commons, That provision should be made for transporting criminals to the coast of Africa and to the East Indies." This recommendation became the subject of debate in parliament in the year 1770, when it was successfully opposed by Sir George Saville on the following grounds, as stated in Cobbett's 'Parliamentary History' of that year.

1st, That sending criminals to these climates was, in other words, consigning them to death.

2nd, That unless the African and East India Companies were ordered to take them, and pay for their passage, it would be impossible to get them there, as at present the expense of sending them was paid by the convicts themselves; for in case the convicts could not pay it, the masters of the ships who carried them out had a right by the laws of the plantations to sell them for the time the law condemned them: whereas it was not worth the while of the India Company to purchase them at so high a rate, unless for soldiers, for which purpose they were already permitted to take them.

3rd, If sent to Africa, it was to be "feared, that by filling the African forts with inhabitants of this nature, great danger might accrue to the settlements; as the neighbouring negroes, always ready to destroy the forts, and joined by these desperadoes, might seize them."

Transportation to the American colonies was consequently continued for a few years longer; but the issue of the war of American independence having rendered all further debate on that subject unnecessary, the British government ultimately felt themselves obliged, from sheer necessity, either to fix upon some new place for the transportation of criminals forthwith, or to discontinue the practice altogether; the unprecedented accumulation of criminals in the common gaols of the kingdom during the war, and for some time after its termination, being an evil of such enormous magnitude as to require an immediate and effectual remedy. In this conjuncture various expedients were proposed. A plan for the establishment of penitentiaries, strongly recommended by judge Blackstone, the honourable Mr. Eden, (afterwards Lord Auckland,) and the philanthropist Howard, was for some time under favourable consideration, but was afterwards found inexpedient, and ultimately rejected. Confinement in the hulks, however, with hard labour at public works, which was intended as a modification of this plan, was ordered to be adopted partially. The formation of a penal settlement on the west coast of Africa, which was also proposed a second time, was again rejected, on the grounds on which the transportation of criminals to that country had already been successfully opposed by Sir George Saville sixteen years before; and it was at length determined, after much and earnest deliberation, to form a penal settlement at Botany Bay, on the east coast of New Holland, which had then been but recently discovered and described by the celebrated English circumnavigator, captain Cook. A penal settlement was accordingly formed at Port Jackson, a few miles to the northward of Botany Bay, under the command of captain Phillip, of the Royal Navy, in the year 1788; the first detachment, commonly called the First Fleet, consisting of six hundred male and two hundred and fifty female convicts, under a guard of about two hundred marines (including officers), forty of whom were accompanied by their wives and children; the Second Fleet, which arrived in the year 1790, carrying out one thousand six hundred and ninety-five male, and sixty-eight female convicts.

  1. "Quand l'experience de toule l'antiquité, et surlout les exemples d'un grand nombre des colonies de la Grèce, ne nous attesteroient pas que le rebut d'une nation pent devenir une excellente société publique; quand l'histoire de nos temps modernes ne nous offriroit pas un pareil spectacle, la raison seule nous feroit sentir qu'il est possible de faire d'un malhonnete homme un homme de bien, en l'éloignant du théâtre de ses crimes, de son infamie, de sa condamnation."—Filangieri, La Science de la Législation. (French translation.)
  2. The term Banishment proclaims its own origin and primitive meaning; being derived from the practice of placing obnoxious individuals or communities under the ban of the German empire. Ban, bannir, banni; Ban, banish; Ulrich, Der Verbannte, Gross-Hertzog von Wurtemberg.

    The following lines, from Spenser's minor poem entitled 'Heavenly Love,' afford an instance of the primitive meaning of this word:—

    But he our life hath left unto us free,
    Free that was thrall, and blessed that was band:
    i. e. accursed.
  3. "There was in London one Gaunt, a woman that was an anabaptist, who spent a great part of her life in acts of charity, visiting the gaols, and looking after the poor, of what persuasion soever they were. One of the rebels found her out; and she harboured him in her house, and was looking for an occasion of sending him out of the kingdom. He went about in the night, and came to hear what the king had said, viz. that he would sooner pardon the rebels than those who harboured them. So he, by an unheard-of baseness, went and delivered himself, and accused her that harboured him. She was seized on and tried. There was no witness to prove that she knew that the person she harboured was a rebel, but he himself: her maid witnessed only, that he was entertained at her house. But though the crime was her harbouring a traitor, and was proved only by this infamous witness, yet the judge (Jefferies) charged the jury to bring her in guilty, pretending that the maid was a second witness, though she knew nothing of that which was the criminal part. She was condemned, and burnt, as the law directs in the case of women convicted of treason. She died with a constancy, even to a cheerfulness, that struck all that saw it. She said, charity was a part of her religion, as well as faith: this at worst was the feeding an enemy: so she hoped, she had her reward with Him for whose sake she did this service, how unworthy soever the person was that made so ill a return for it: she rejoiced, that God had honoured her to be the first that suffered by fire in this reign, and that her suffering was a martyrdom for that religion which was all love. Penn, the quaker, told me, he saw her die. She laid the straw about her for burning her speedily, and behaved herself in such a manner, that all the spectators melted in tears."—Bishop Burnet.
  4. By this event, kingly government was entirely abolished in Judea, which became thenceforth a Roman province. The sceptre then departed from Judah.
  5. "Vile damnum," Tacit. Annal. lib. ii.