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of State gave a licence to transport from Ireland to Virginia 100 Irish Tories!; and in 1654 ordered certain English, Scotch, and Irish pirates ?, prisoners in Dorchester gaol, to be forthwith sent to Barbadoes, Bermudas, or some other of the English plantations in America ? These proceedings were even more illegal than those of Charles Stuart, and help to explain the meaning to the Irish of the curse of Cromwell. The Council seem to have been conscious of the illegality, inasmuch as Aiderman Titchborne in 1653 was requested to present in Parliament a draft of an Act concerning the transportation of poor Irish children to England and the Western Plantations 4. But no legislation appears to have taken place. A committee, however, sat on the question of transporting vagrants, felons, &c., to the foreign plantations', and in 1656 the Council of State made an order 6 as to the apprehension of lewd and dangerous persons, rogues, vagrants, and other idle persons who have no way of livelihood and refuse to work, and for treating with merchants and others for transporting them to the English plantations in America?, of which Virginia seems to have been the favourite with the prisoners 8.
But except in the case of prisoners the Council of State was by no means prepared to allow people to be transported without their own consent"; and in 1657 a ship was searched for persons being taken without their consent to the West Indies. An order was made that any not engaged by indenture who were forced or enticed on board should be released; and as only two soldiers were delivered up the ship was stopped till all persons unwilling to go were landed.
The result of this examination into the early history of the American colonies is to show that (1) the original sense of the term transportation in no way involved the sentence of any court of justice; (2) transportation under indenture was deemed lawful, i.e. that specific performance of a contract to serve a subject abroad could be enforced; (3) the executive permitted the transportation, more or less involuntary, of pirates, felons, vagrants, and prisoners taken in the Civil War, and of Catholic Irishmen.
1 Sainsbury, p. 409. 39 Eliz. c. 4 did not apply to Ireland. ? Probably sailors in ships under Charles II's commission.
3 Sainsbury, p. 419. As soon as Jamaica was taken, it was used in the same way. 1. c., p. 433. In 1653, 1. c., p. 409.
51. c., p. 410. Seemingly under 39 Eliz. c. 4. But this Act, though not repealed formally till 13 Anne, c. 23, seems to have been regarded as expired.
? 1. c., p. 447, and see vol. ii. (1664, Nos. 769, 770, 771, 772), p. 221, where it was proposed to add to the list ‘felons who have benefit of clergy, such as are convicted of petty larceny, vagabonds, gipsies, and loose persons making resort to unlicensed brothels.'
& l. c., p. 435.
Similar practices were continued, and deemed usual and proper, after the Restoration, but were legalised by the process of granting a conditional pardon for crimes within clergy. Thus in 1662 a warrant went to the sheriffs of London to transport into some of the foreign (i.e. not Irish) plantations all persons ordered by the king's charter of pardon of Oct. 10, 1662 to be transported ? ; and in the same year a warrant was issued to deliver to certain ship captains the prisoners scheduled to go to Virginia, on the captain giving security that none return within twelve years 3. This method of transportation by conditional pardon was in fact reduced to a system 4; and the state-aided emigration of those days is curiously illustrated by a petition in 1665 to have an embargo on a ship sailing for Virginia removed, because her sole outward freight was forty passengers, persons utterly useless to this kingdom, but rather destructive in their idle course of life, whereunto they would most willingly return upon any advantage given to them for escape 5.' Kelyng, writing in 1665, says 6 that 'it hath been lately used for felonies within clergy, if the prisoner desire it?, not to give his book but to procure a conditional pardon, and send them beyond seas to serve 8 five years in some of the king's plantations, and then to have land assigned them according to the use of those plantations for servants after their time expired, with a condition in the pardon to be void if they do not go or if they return into England within seven years or after without the king's licence.' And he had the best of reasons for knowing, for he was one of the five judges who in 1664 had drawn up and signed certain directions for the justices at the Old Bailey Sessions 10, containing the following rule (12), probably in compliance with the proposals made to constitute a transportation office :
That such prisoners as are reprieved with intent to be transported, be not sent away as perpetual slaves, but upon indentures between them and particular masters to serve in our English plantations for seven years, and the last three
that they may have a stock when their time is expired; and that an
years to have
? In 1661 power was asked for courts of Q. S. to enable them to dispose of loose,
3 1. c., Nos. 377, 378, p. 112. '1. c., No. 382, p. 113. See also p. 451, No. 430.
51. c., p. 273. 6 Cr Cas. p. 45 (ed. by Loveland).
? i.e. his consent is necessary. See per Cockburn and Bethell, Forsyth, Const. Law, p. 462; and Sainsbury, Col. St. Pap. (1664), Nos. 791, 858.
8 Those who imported them received fifty acres for each person imported. 1. c, P. 401.
• In some cases simple banishment was ordered without indenture or service. See Sainsbury (1664), p. 197, No. 701.
19 Kelyng Cr. Cas. ed. Loveland (1873); p. 4; Sainsbury (1694, p. 221,
account be given thereof and by whom they are sent and of their arrival 2
In 1666 a somewhat different procedure is recorded, where a baronet sentenced to death for counterfeiting the king's seal, but reprieved 3, was delivered to one Thompson on bond for his secure transportation to the colonies 4.
The Scottish Covenanters were with or without trial largely dealt with by transportation 5; there being until 1701 no effectual remedy in the nature of the writ of Habeas Corpus. "The prisons of the whole country are full of them, and Parbadoes will be well planted next year?
The practice of transporting reprieved felons continued up to the Habeas Corpus Act, but not without protest from the colonies, especially Virginia, until that colony in 1670 prohibited the landing of jail-birds? in consequence of a rebellion in 1663 of the • Newgateers' sent out there.
The Habeas Corpus Act, while merely reinforcing the provisions of the charter, and imposing heavy penalties on illegal deportation, was not directed against exile by conditional pardon, which indeed it may be said to have legalised, but only at abduction and transportation without trial or before conviction. The real effect of 89. 11, 12 and 13 is much less than is usually supposed. It merely prevented transportation for misdemeanours, and the practice of spiriting which was then common (see Designy's case (1682); Raymond 474) and all private arrangements as to transporting felons, and petitions from prison to the king such as have been already referred to.
The process of transportation did not always run smoothly. In one case the ship captain released the offenders—some Quakerswho bad been sentenced to transportation, on the ground that their consent was necessary and had not been giren 8 ; and order was given to seize the ship and captain on return, and send him up to answer for his contempt and offence. If the report is accurate, the cap
· This proviso was due to the disappearance of cavaliers transported by Cromwell.
? This was followed up by a circular letter from the king announcing that a licence had been granted for five years to take up all felons convicted at the Old Bailey or assizes for transportation to Jamaica, which did not sigh for .convict gaol birds rotten before sent forth.' Sainsbury (1665), p. 313, and see (1670) p. 145. 3 No mention of pardon. He was banished. See Sainsbury (1666), pp. 409, 415.
Sainsbury (1664), p. 257. 5 An Act for the regulation of transportation was proposed as early as 1664. But none was passed till 1717.
6 All the ministers and officers were to be hanged: of the common sort one in ten was to be executed, one forced to confession, and the rest sent to the plantations. 1. c. (1666), p. 432.
? Sainsbury, vol. iii, preface xi, p. 63, No. 175. Petition for confirmation, 1. c. (1671), p. 242, No. 590.
Sainsbury (1664), pp. 256, 259, Nos. 858, 872.
tain's conduct was quite legal, the sentence not being so, except perhaps under the Act of 1593, already quoted.
Section 12 of the Habeas Corpus Act was intended to take away any right to the writ of Habeas Corpus from any person who should by contract in writing ? (not necessarily indenture) agree with any merchant or owner of any plantation or other person whatsoever to be transported to any parts beyond seas, and receive earnests upon such agreement, although afterwards such person shall renounce such contract 2. In or before 1670, merchants and captains had been prosecuted in the Crown Office (probably for false imprisonment or by Habeas Corpus) for sending over servants that went over voluntarily, and were said to have been duly bound and examined in an office erected by His Majesty3. So that the Act of 1679 made completely legal what had before been in doubt the right to refuse Habeas Corpus to persons voluntarily indentured 4, and 4 Geo. I, c. II, s. 5 legalised indentures by minors to go to serve in the plantations if the consent of the minor were acknowledged and the contract signed by him before a J.P. of the place where it was made, and the transportation by merchants of persons under contracts so made and verified, any law or statute to the contrary notwithstanding. Neither of the statutes seems to alter the common law as declared in Coventry v. Woodhall (1616), (Hob. 134), ' And generally no man can force his apprentice to go out of the realm except it be so expressly agreed, or that the nature of his apprenticehood doth import it as if he be bound apprentice to a merchant adventurer or as sailor or the like 5.'
S. 13 of the Act of 1679 restricted the power of transportation on conditional pardon to cases of felony (whether with or without clergy), but its words are wide enough to authorise transportation
1 The planters not being in England, execution of indentures for them must have been effected through powers of attorney or by speculators who subsequently assigned the indenture and the bondman to the planters.
2 The need of this section is explained by Sainsbury (1664), Nos. 769-772, which shows that it was usual to raise the wind by signing a contract to go to America, and then to complain of being spirited.
3. An office for registering such servants as should voluntarily go or be sent to any of the plantations in America existed as late as 1772. Roberts, Cal. St. Pap. Home, p. 617.
· These servants were not regarded as free men until the expiry of their indentures. See Sainsbury (1672), No. 918, as to Carolina, written by John Locke. “Negroes and slaves' are often spoken of in these papers. Sainsbury, vol. iii. (1670), Nos. 159, 160. See De Francesco v. Barnum, 1890, 6 Times L. R. 486.
• In the Passenger Act of 1855 (18 & 19 Vict. c. 119), s. 3, were excepted inter alios from the definition of passengers within that Act •labourers under indenture to the Hudson's Bay Company and their families, conveyed in ships, the property of or chartered by the said Company.'
• Provided always that if any person or persons lawfully convicted of any felony shall in open court pray to be transported beyond seas, and the Court shall think fit to leave him or them in prison for that purpose, such person may be transported into any parts beyond the seas, this Act or anything therein contained to the contrary notwithstanding. i Rev. Statt. (and edition), p. 679.
(after conditional pardon) to any part of the world, and not merely to British possessions.
After Monmouth's rebellion and at the end of the first Jacobite rising there was a wholesale transportation (on conditional pardon) to Virginia and Montserrat of rebels taken after Sedgemoor and at Preston, but the masters of the ships appointed to convey them let many escape in Ireland”, though they were bound as already stated under the rules then in use to give a report of the voyage 3.
2. In the eighteenth century transportation was made part of the ordinary sentence of the courts, in many cases of felonies with benefit of clergy. By 4 Geo. I, c. 11 (1717), the courts before
4 which certain offenders entitled to clergy were convicted, were empowered to sentence them to transportation for seven years to one of the American colonies or plantations, and 'to convey transfer and make over 4 such offenders by order of Court to the use of any person who should contract for their transportation, and his assigns for such term of seven years, for which period the contractor had a property and interest in the service of the convict. The same Act recognises as lawful the grant of the royal mercy on condition of transportation to America in the case of persons convicted of offences for which they were excluded from the benefit of clergy, and provides that upon signification of such intention of mercy by a Secretary of State, any Court having the proper authority to give the offender the benefit of a pardon under the Great Seal, should be empowered to order his transportation in the same way and for the same period as in the case of clergyable offenders, but for the term of fourteen years if the condition of transportation were general, or else for such particular term, if any, as specified to be part of the condition.
The temper of those times and the nature of the system adopted on the passing of the Act of 1717 cannot be better illustrated than by a letter by the Solicitor General Thompson in 1718, in which he reports receipt of a tender by a merchant to transport all 'convicted felons throughout England at € 3 per head from hence (London) (out of which he must pay 208. per head for fees of officers)", and $5 per head for those transported from other parts where he must have correspondents and pays some fees also. His name is Mr. Forward. He took away 40 the other day without reward, but can not do so any more considering death, sickness, and other
1 One man was paid for transporting 639. Redington, Cal. St. Pap. (1718), p. 277.
3 1. c., p. 238, No. 43.
$ The Acts relating to transportation, 6 Geo. I, c. 23, 16 Geo. III, c. 43, 19 Geo. III, c. 74, 24 Geo. III, c. 56, 55 Geo. III, c. 156, 56 Geo. III, c. 27, 1 & 2 Geo. IV, c. 6, are discussed fully in R. v. Baker, 1837, 7 Ad. & E. 502, with reference to the fees of the clerks of court upon transportations by way of conditional pardon.
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