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The Need for a New Punishment: Early Uses of Convict Transportation

Note: This post is part of a series on Convict Transportation to the American colonies.

Before 1718, England’s criminal justice system provided only two sentencing options for criminals convicted of capital crimes: “Benefit of Clergy” for first-time offenders, which sent criminals back out on the streets after receiving some form of corporal punishment, or death. Officially, there was no middle punishment for offenders who seemed to deserve punishment beyond a mere brand on the thumb, but did not deserve death either. However, there was a third possible provision for sentencing a convicted criminal and that was convict transportation, although it technically fell outside the control of judges and juries. Under this provision, criminals could receive royal pardons on condition that they remove themselves from the realm for a defined period of time.

The Origins of Convict Transportation

Portugal, Spain, and France had all used criminals and vagrants to help populate their colonies in the fifteenth and sixteenth centuries, but the Elizabethan explorer and geographer Richard Hakluyt was probably the first Englishman to come up with the idea of transporting English criminals to the colonies. In 1584, while discussing “the multitude of idle and mutinous persons within the realm . . . whereby all the prisons are stuffed full,” Hakluyt wrote that “the pety theves might be employed for certain years in the western parts in sawing and felling of timber and in planting of sugar canes” (Discourse Concerning Western Planting).

Hakluyt’s idea was not acted upon, but the first official act sanctioning the transportation of rogues and vagabonds was later passed under Queen Elizabeth I in 1597, making it at least possible for reprieved felons to work the fields in Virginia during its earliest settlement. The 1597 statute, however, did not provide for forced labor in the colonies, merely deportation, so once again Hakluyt’s idea of using convict labor for colonization failed to take hold.

In 1611, the colony of Virginia was desperately struggling. Disappointed with the crew that came over with him to help the colony, Governor Dale asked King James I to send across the Atlantic all the convicts from the prisons who were sentenced to die in order to furnish his colony with able men. The British government was slow to act on Dale’s request, but on January 23, 1615, the Privy Council finally issued a warrant that enacted forced labor in the colonies as punishment for idleness or misdemeanors and created a system of transporting convicts by granting reprieves on condition that the felons remove themselves to one of the colonies.

An Act of Leniency

According to common law and the Habeas Corpus Act, it was still illegal for judges to sentence convicts to transportation, but under the new provision passed by James I it was not illegal to pardon felons on condition that they leave the country for a specified amount of time. Transportation could now be used as a means of exacting leniency on those who would otherwise be executed, but felons first had to be sentenced to death before being pardoned. Those who received the pardon were essentially free, so long as they remained abroad for the required term, which could have been for life. One of the benefits of this system was that the Crown could now appear to demonstrate mercy on those who might otherwise be executed, yet still rid itself of this criminal element.

In the 1660’s, judges found a way to use the system of conditional pardon against first-time offenders, who ordinarily would have been back out on the streets under benefit of clergy. Once a judge heard a series of trials, he would identify criminals who he thought deserved transportation and forced them into failing the literacy test that was required to receive benefit of clergy. Rather than sentence this group to death, the judge sent the criminals back to jail, where they waited for the possibility of receiving a conditional pardon from the king. Criminals who refused the pardon were hanged. This practice, though, began to fall out of use in the 1690’s, and a third, middle-ground alternative to letting convicted criminals back out on the streets or executing them continued to elude the authorities.

Around five or six thousand convicts were transported out of Great Britain from the time of the first settlement in North America until 1718. This number may seem large, but with the passage of the Transportation Act of 1718, it was about to grow exponentially.

Resources for this article:

Learn More About Convict Transportation

Learn more about convict transportation to colonial America by reading my book, Bound with an Iron Chain: The Untold Story of How the British Transported 50,000 Convicts to Colonial America.

Amazon.com: Paperback ($16.99) and Kindle ($4.99).

Smashwords: All e-book formats ($4.99).

Most people know that England shipped thousands of convicts to Australia, but few are aware that colonial America was the original destination for Britain’s unwanted criminals. In the 18th century, thousands of British convicts were separated from their families, chained together in the hold of a ship, and carried off to America, sometimes for the theft of a mere handkerchief.

What happened to these convicts once they arrived in America? Did they prosper in an environment of unlimited opportunity, or were they ostracized by the other colonists? Anthony Vaver tells the stories of the petty thieves and professional criminals who were punished by being sent across the ocean to work on plantations. In bringing to life this forgotten chapter in American history, he challenges the way we think about immigration to early America.

The book also includes an appendix with helpful tips for researching individual convicts who were transported to America.

Visit Pickpocket Publishing for more details.

6 Comments

  1. Anthony Vaver wrote:

    I’m glad you found my website informative, Joseph. Please check back again, since I try to add to it regularly.

    Friday, October 24, 2008 at 11:10 am | Permalink
  2. Graceanne Barbour wrote:

    Your last paragraph states that about 5000-6000 convicts were transported out of Great Britain from the time of the first settle in N. America until 1718. If a 17-yr-old was among 40 persons transported to Jamestown in 1637, would he necessarily be a criminal? Or, was it possible to purchase passage aboard a transport ship? Thanks so much.
    Graceanne Barbour

    Sunday, May 2, 2010 at 4:25 pm | Permalink
  3. Transportation before 1718 was a haphazard process. Generally, the convicts banned from England were responsible for arranging their own transportation out of the country. They often enlisted to serve as indentured servants in the colonies, especially if they lacked money to leave the country any other way.

    A 17 year-old transported to Jamestown could have been a convict, but from the scenario you cite, odds are that he came over as an indentured servant. Transport ships often took on indentured servants, and perhaps a convict, if they had room on board. Many more indentured servants crossed the Atlantic in this manner than convicts during this time.

    Thank you for asking your question!

    Monday, May 3, 2010 at 10:21 am | Permalink
  4. Graceanne Barbour wrote:

    Thank you for relieving my fears that my ancestor, at age 17, might have been a criminal! I have a couple of other questions.

    First, my readings had led me to assume there were “transportation” ships that hauled criminals, and other ships that hauled indentured servants. Based on your reply, I now believe there were simply ships (even though you referenced a “transport ship”) – and they carried an assortment: those who could pay their passage; those who couldn’t, but agreed to indentured servitude; and an occasional criminal. Is this correct?

    Second, is the following assumption correct? Around 1637, a colonist with means could hire a sea captain/merchant skipper to sail to England and return with immigrants who had signed an indenture contract. Whereupon the wealthy colonist(s) would buy the contracts – and then claim the 50 acres (per non-paying immigrant). Also, how common was this arrangement? Or was it just as common (or perhaps even more so) that a captain/skipper would finance the trip – and claim the acreage himself?

    Again – many thanks!
    Graceanne Barbour

    Tuesday, May 4, 2010 at 11:42 am | Permalink
  5. Sending ships across the Atlantic was expensive, so not surprisingly the owners and captains tried to fill their vessels up as much cargo as possible to increase profit. Some ships were mainly convict ships or specialized in carrying indentured servants, but could take non-human cargo as well; others primarily transported regular cargo and took on an occasional indentured servant or convict if there was room on board. Even convict ships hauled tobacco back to England after landing in Maryland or Virginia.

    A landowner could send over a representative to recruit indentured servants, but he took a risk in not seeing the servants firsthand. Most indentured servants signed on with the captain, who then sold them after they landed in America. That way, the landowner minimized his risk and didn’t have the expense of paying a representative.

    As far as I know, there was no land claim associated with indentured servitude, since they were not free. After servants completed their terms, they were eligible for freedom dues–generally clothes, tools, and seed to start a life on their own. Freedom dues could be an official part of the contract. Some colonies specified by law what should be included in the freedom dues after landowners tried to get away with not paying servants at the end of the term. Even with these measures, however, the cheating of indentured servants continued.

    I can suggest a couple books on indentured servitude if you want to learn more. “White Cargo: The Forgotten History of Britain’s White Slaves in America” by Don Jordan and Michael Walsh surveys indentured servitude as well as convict transportation. Two other books that may speak more to your particular interest is “White Servitude in the Colony of Virginia” by James Curtis Ballagh and “White Servitude in Colonial America: An Economic Analysis” by David W. Galenson.

    Wednesday, May 5, 2010 at 10:47 am | Permalink
  6. Graceanne Barbour wrote:

    Your reply certainly confirmed your earlier remark that, prior to 1718, transportation was a “haphazard process” – indeed, it was! But I do sincerely sppreciate your taking the time to respond to my questions – and, in particular, your book recommendations. You have been most helpful.

    Sincerely,
    Graceanne Barbour

    Wednesday, May 5, 2010 at 12:33 pm | Permalink

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