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The free-born Englishman transported: convict rights as a measure of eighteenth-century empire.

In the antipodean spring of 1826, a brief quarrel erupted between two of the three newspapers of colonial New South Wales. The Sydney Gazette was the old-established, pro-government paper, while the Sydney Monitor, founded earlier that year, was devoted, among other things, to vindicating the rights of convicts. While the editor of the Gazette liked to spell out the obligations of the subject, bond or free, the editor of the Monitor insisted that even convicts were Englishmen. And an Englishman was not easily subdued: "You must tame him as you would the Lion".(1)

The dispute focused on various issues to do with the penal history of New South Wales and the place of convicts in local society. It was occasioned by changes within the population: the increasing number of professional men in Sydney, including lawyers capable of drawing fine distinctions as to legal status; and the increasing intricacy of the penal system, which imposed on the convicts a new burden of discipline. Indeed, recent British legislation had tended very much to affirm the power of the local authorities over the daily lives of convicts.(2)

The main question at issue in the debate between the two papers was whether the colonial government had the right to take cash from convicts on their arrival, for compulsory deposit in the local savings bank: in other words, whether they were to be considered as anything more than a labour force, having either no property or no control of what they had. The Monitor took an extreme position, declaring that the confiscation of money was "an outrageous violation of the common rights and feelings of an Englishman, even in his lowest state". In strict law, the Monitor maintained, the government's power over transported convicts had always been slight, or perhaps non-existent.(3) The Gazette, on the other hand, argued that such power was very extensive indeed: "the commonest prisoner in the Colony well knows that, on his conviction for felony, he forfeits all his property as well as his liberty -- that he has no legal rights -- that he cannot bring an action in a Court of law".(4)

The Gazette accurately stated the situation of convicts in Britain. But the editor ignored the central (though implicit) point of the Monitor's argument: the fact of transportation. The legal status of a convict within the United Kingdom was not necessarily identical with his or her status once disposed of elsewhere in the empire. Under the law as it had existed before 1824, it was possible to argue that British convicts were condemned to transportation alone, and not to bondage. To begin with, said the Monitor, bondage might have been justified by the extreme circumstances of first settlement in New South Wales. More recently, however, "it [had] required an Act of Parliament to enable the Governors of these colonies to add slavery to exile".(5) This idea was an easy target for ridicule, so clear did the rights of government appear by this time; so thoroughly was the legal situation in this most remote colony assimilated with that at the heart of the empire.(6) Nevertheless the editorial collision shows that within what might be called the moral economy of empire there was still room for disagreement on this point. Indeed, the ambiguities attached to convict rights were integral to the ambiguities of empire itself.

The argument which follows is large and three-legged. I am concerned, first, to place the history of early New South Wales within the continuum of eighteenth-century empire. Also, I want to suggest that some aspects of colonial North American history can be better understood by a consideration of imperial relations after the Revolution. Finally, I aim to contribute to the thesis which would argue that for the period of Britain's "imperial meridian"(7) -- the late eighteenth and early nineteenth centuries -- it may be misleading to think of the British empire merely as an appendage of the British state. In some ways Britain itself can be seen as merely the central dominion, the first among equals, so that parts of its home government can be properly understood only within the imperial context. These three points are all contingent on the ambiguity mentioned above.

The two newspaper views rested on different assumptions about the British empire and its impact on the individual. The attitude of the Gazette was that parliament was an imperial legislature, not merely the Lords and Commons of Britain but a power entitled to regulate British communities anywhere in the world.(8) It followed that men and women in New South Wales, though they made up a distinct and remote society, were similar to, say, the people of Kent, in their subjection to British statute and legal process. A criminal condemned in Britain instantly suffered a change of status within the empire as a whole. The nature of his offence must colour, as finely as possible, his after-life on the other side of the world. Transportation was a means of movement within one vast and uniform jurisdiction.

The Monitor took the more relativist view. The editor, Edward Smith Hall, was an admirer of William Cobbett. His argument embodied the idea that rights were not an expression of authority, but of community, and were tied to common tradition and circumstances. They must be limited by commonly understood geographical boundaries. The British parliament and the British courts were part of the community of the people of Britain. (Perhaps the terms "English" and "England" would fit more neatly with the cast of his thinking.) This was a view dating, at least, from the period when the transportation of convicts began to the English colonies in North America in the seventeenth century. It followed from the common belief that the entire process of trial and punishment should be a public one, open to the view and subject to the interests of the people. Transportation beyond the seas was consistent with this belief only if there were no prescribed punishment after transportation: on embarking (or perhaps on leaving local waters) the convict thus passed out of the reach of king, parliament and courts.(9)

Three centuries before, the Institutes of Sir Edward Coke had given expression to this view by declaring that Englishmen were immune from transportation under any form of bondage. In 1659 a party of captured royalists petitioned parliament against the threat of transportation (among other punishments), as inconsistent with the rights of "the freeborn people of this nation".(10) The Act of Habeas Corpus echoed this idea. No Englishman, said the Act, "shall or may be sent Prisoner...into any Parts Garrisons Islands or Places beyond the Seas". Anyone convicted of felony might, in order to escape hanging, ask "in open Court" to be transported, but as a voluntary action this precluded bondage on the way. A convict named Henry woodford stated quite correctly in 1721 that "the Law was not...that they should be...sold for Slaves". Such punishment, he protested, "was worse than Death", for "being Christians by Baptism" Englishmen could not be forced into bondage. Another commentator affirmed in the 1770s that although convicts "may have forfeited their claim to liberty in their own country, the law doth not sentence them to slavery in another". Strictly speaking they were "only banished for a time".(11) William Eden also used the term "banishment" in his work, The Principles of Penal Law (1771): technically, "the criminal...is merely transferred to a new country [from]... that which he hath offended".(12)

This long-lasting pattern of ideas might be described as a legalistic and oppositionist one, at odds with the efficiency of government. The eighteenth century saw the rise of the more authoritarian attitude which was to be espoused by the Sydney Gazette. The process by which the latter came to prevail, at least in official circles -- and oceanic limits notwithstanding -- throws useful light on changing ideas about the constitution of the British empire and the impact of empire on individual rights. It is especially enlightening when we consider that transportation was by far the most common punishment imposed for non-capital felonies in eighteenth-century England,(13) and that it was frequently the fate of capital felons as well. Eden spoke of the convict offending against a particular country, from which he was therefore expelled. From an administrative point of view, however, by this time (1771) the offence was deemed to have a different victim, something rather more metaphysical and dispersed; not so much a deep-laid fabric of nation or neighbourhood, as a wholly idealized system of power.

V. A. C. Gatrell has lately written, in similar terms, that "It became less thinkable that the law-breaker should be pursued largely for the offence he delivered to his victim": he was now to be considered at least partly as "a threat to social order itself". However, Gatrell dates this change from the early nineteenth century, or perhaps from the 1780s. I would take it back to the mid-eighteenth century, or even earlier, and whereas Gatrell locates the threat merely within a national context, I would give it a much wider geographical dimension. It cannot therefore be attributed to economic and demographic change within late eighteenth-century Britain, as Gatrell suggests, and the causes were not mainly reactive. Rather, they were part and parcel of the Enlightenment.(14)

I

The fact of a great shift in understanding can hardly be doubted when we compare seventeenth-century convict transportation with the assumptions that surrounded the British settlement of New South Wales in and after 1788. The settlement was both a cause and an effect of administrative change, and of the Transportation Act of 1718 (4 Geo. I, c. 11). Before the Act, English convicts were almost invariably transported under a system of conditional pardon, which in theory, at least, was consistent with what I have described as oppositionist ideas about the relationship of government and subject. With one or two unimportant exceptions, there was no means by which the courts could sentence criminals to transportation. Instead, men and women were transported after being sentenced to death: they were pardoned conditionally, on the understanding that they would very shortly leave the country for a specified destination. Thus they arrived in the colonies as (in some ill-defined sense) pardoned Englishmen and women, free of penal restraint as long as they remained abroad, and this they were required to do for a term of years, or in some cases for life.

The 1718 Act introduced transportation as a sentence which might be directly imposed by the English courts in various cases of theft, where previously convicts, if they were first offenders, might have escaped, by benefit of clergy, with some form of corporal punishment. The old system of conditional pardon continued as well, but the total number of transported convicts now greatly increased. During the hundred years since permanent British settlement had begun in North America the total cannot have been much more than five or six thousand.(15) From 1718 until convict transportation was interrupted by the American Revolution at least 36,000 individuals were sent from England, together with more than 13,000 from Ireland under similar legislation, and nearly 700 from Scotland (where there was no equivatlent to the 1718 Act).(16)

The 1718 Act, one of the first important pieces of Hanoverian legislation, was designed to improve the efficiency of government. There was no provision in the Act for convicts transported under the new system having any choice in the matter, and in this it contrasted with the system of conditional pardon.(17) Nevertheless a belief persisted -- a deeply engrained collective wishful thinking -- to the effect that the new system was in line with the ancient virtues of the constitution, that it somehow preserved the element of consent; or in other words, that the typical convict was, as before, the man or woman who had been spared from the gallows by conditional pardon. And yet, as a consequence of the 1718 Act, such convicts may have made up as little as a third of the total.(18) In 1751 the Ordinary of Newgate stated as a truism -- and speaking of all transported convicts -- that "the Mercy of the Legislator, by giving them back the Life they have forfeited, on certain Conditions, which they were perfectly able to perform, had put that Life in their own Power".(19) In 1785 Edmund Burke similarly described all transported convicts as "persons whom the rigours of the law had spared from death".(20) About the same time Lord Beauchamp remarked that "many" proceeded under pardon, but he seems to have regarded the many as in some sense typical of the whole.(21) In his 1771 pamphlet William Eden argued to the contrary that "In many instances the transportation is not in the nature of a conditional pardon, but directed by positive law"; but such was the extent of doubt on this matter that he thought it necessary to append a long note to prove it.(22)

This obsolete understanding of the transportation process was apparently embedded in a belief that (as the Sydney Monitor was to say) even convicts were Englishmen, whose relationship with government was therefore an index of much larger constitutional issues. In the late 1770s Thomas Townshend, who had much of the Patriot or True Whig about him, attacked proposals for keeping convicts in England, with their daily circumstances wholly dependent on the whim of the crown, as a reform involving "an alteration of the whole system of our criminal law".(23) Not long after this statement Townshend took the peerage title of Sydney (apparently in honour of his republican ancestor, Algernon Sidney). It may seem ironical that, as Home Secretary, he initiated the settlement in New South Wales, unless we consider such a settlement, as he might well have done himself, in the light of a happy alternative to dumb servitude at home. In New South Wales authoritarian and constitutional elements were to be strangely mixed (as I mention below), and it seems fair to credit Lord Sydney with the constitutional ones, designed as they were to give considerable status to convicts in the antipodes.(24)

While administrators may have paid little attention to this view of the system, force of habit meant that hints of it lingered even within daily routine throughout much of the eighteenth century. For instance, until 1784, when an act of parliament directed the contrary, terms of transportation were held to begin when the convicts went on board ship, a practice which would seem to follow from the idea that their term was contingent, not on conviction, but on departure.(25) Similarly, convicts might buy their liberty on arrival (as Defoe's Moll Flanders did) by paying the cost of their passage.(26) And in the American colonies, servitude was said to be justified from a legal point of view so that convicts might "work out their pardon".(27) Whether there was any debate on such matters at the time of the passing of the 1718 Act is not clear, but William Eden, in 1771, appears as the first to point out that, if transportation under the Act was in any sense based on a "compact" between the convict and the state (as the oppositionist view implied), then "in no instance is such a compact reconcileable to the law of nature".(28)

And yet the 1718 Act did make a difference. Hitherto a great deal had depended on the co-operation of both convicts and contractors. Contractors liked to pick and choose, and convicts electing for transportation did not always make every effort to put themselves in the contractors' way. As the Act explained, "many offenders, to whom royal mercy has been extended upon condition of transporting themselves to the West Indies (sic), have often neglected to perform the said conditions, but returned to their former wickedness". The Act was partly designed, as its title stated, "for the more effectual transportation of Felons", but more broadly it rendered obsolete the consent of convicts, manifest as it often was in "neglect", as a central spring of the penal system. It specified that courts sentencing to transportation might themselves ensure that the sentence took effect: they were now to "have Power to convey, transfer and make over such Offenders, by order of Court, to the Use of any Person or Persons who shall contract for the performance of such Transportation, to him or them, and his or their assigns". At the same time the government introduced a blanket subsidy to contractors operating from London, to cover the cost of less desirable convicts.

The normal sentence under the new legislation was to be seven years, but receivers of stolen goods might be sentenced to fourteen. The Act also referred to convicts transported under the old system, with a conditional pardon (whose terms might be for any period). these too the courts might hand over directly to contractors, who were to dispose of them on the colonial market. The Act thus opened the way for developments in which all might be subject to official convenience; and official convenience was married to the market, in so far as the authority of contractors and their assigns depended, not on parliament and the courts, but on colonial circumstances, on demand for labour and the custom of the workplace. By pretending to encompass the latter part of the transportation process, the Act prefigured a situation in which bondage on board ship and colonial servitude might both be considered integral to the sentence passed by the courts. By legislative sleight of hand, servile bondage was thus added to the common armoury of the penal law.

For the time being, the legislation was indeed founded on pretence, for the British parliament was currently incapable of reaching across the Atlantic in such matters in any detail. For instance, according to the Act, the "Person or Persons ... contracting ... [and] his or their Assigns" were to "have a Property and Interest in the Service" of convicts for the terms specified: seven years, fourteen years, or whatever was attached to their pardon. This implies that the full term of servitude began with the original contract. However, current practice in America held that it began, whether for convicts or other indentured servants, "on the Day the Ship or Vessel Importing them, first anchors".(29) More strangely still, except at the beginning of the period (for which see below), the term observed was never more than seven years, whatever the British courts might have specified.(30) This arrangement was sanctioned by the king himself in one instance (1772), when he pardoned two Scots convicts on condition that they be transported for life and at the same time bind themselves to the contractor who conveyed them to America (and presumably his assigns) for seven years only.(31)

II

The dual status of convicts abroad, as transported British criminals and as indentured American servants, caused significant problems of administration. Were convicts in servitude to be treated, in the main, like other indentured servants, or were they to be subject to distinctive forms of degradation? Two colonies, Virginia and Maryland, received virtually all convicts (and most of the other indentured servants) transported between 1718 and 1775.(32) It is therefore the response of these two that needs to be considered. They were neighbouring colonies, both bordering the Chesapeake Bay, and there were some similarities in practice.(33) However, Maryland can be considered more thoroughly a penal colony. In terms of total population, it was about half the size of Virginia, and yet, while the intake of convicts to each colony varied very much from year to year, overall it seems likely that Maryland's share was larger.(34) Thus convict transportation was bound to make a greater impact on Maryland. Nearly half of all incoming indentured servants who disembarked at the capital, Annapolis, after 1745 (when satisfactory figures begin) were convicts, and in 1755 it appears that 22.4 per cent of white employees in Maryland were convicts.(35) There are no comparable figures for Virginia.

In both colonies the 1718 Act caused some dismay. There was a belief that with greatly increased numbers of convicts the colonies would be devastated by new levels of crime.(36) At the outset, then, the convicts were considered mainly from the point of view of law and order. The lower house of the Maryland legislature made two unsuccessful attempts, in 1719 and 1723, to force purchasers to give security for the good behaviour of their convicts.(37) In Virginia a scheme was apparently discussed for a new frontier settlement, where all convicts might be kept under strict control.(38) However, a bill passed in 1722 (vetoed by the privy council) aimed merely to establish a register of all convicts arriving; to force ships' captains to give security of [pound]100 for each one sold, and buyers [pound]10, to guarantee good behaviour; and to ensure that all sales were for the full period of transportation.(39)

This early fear had no very rational basis. A magistrate in Annapolis was told in 1723 that "a parcell of reputed Convicts to the number of four score" was at large near the town, and yet in spite of this enormous number (no doubt much more than the truth), all that could be said against them was that "they goe about the ... plantations in a Loose Manner". In fact, the number of crimes committed by covicts in the colonies was surprisingly small.(40) As a result, presumably, problems of law and order, although they were not forgotten, soon ceased to be a matter of much concern. At the same time, colonial ideas about the convicts became more complicated, and their ramifications more profound. With some over-simplification, the period from the 1720s to 1775 can be divided into two. During the first phase, to about the 1740s, it can be argued that the convicts were seen principally as common indentured servants. Then, in the decades leading up to the Revolution, they came to be considered in a more broadly moral, legalistic and abstract fashion, not only in fact but by deliberate principle. This is a process central to the point I wish to make in this article. During the second phase there was a tendency to assimilate convicts, in principle, with slaves rather than with ordinary indentured servants.(41) The change which took place in the middle decades of the century is particularly clear in official pronouncements in Virginia, though Maryland's history is interesting for other reasons.

Convicts are first to be considered, then, as servants. In Virginia, at least to begin with, employers usually accorded them the common rights which indentured servants had enjoyed for many generations in England and North America.(42) The most important of these was the right to freedom dues. Indentured servants were paid no regular wage, but on completing their indentures they could claim from their masters provision for an independent start in the world. Men were entitled to a musket, ten bushels of corn and thirty shillings (or the same value in goods), and women to fifteen bushels and forty shillings. In 1748 the entire bounty was fixed at [pound]3.10s. for both men and women.(43)

In time there arose some doubt among Virginians as to whether convicts were entitled to such dues. The matter was raised in the legislature in 1736 and again in 1740, and at length, in 1748, a Servants and Slaves Act affirmed that convict servants had the same rights as "volunteers".(44) However, within a few months there were attempts in the upper house to repeal the relevant parts of this Act, and this was indeed done in 1753.(45) Now, for the first time, the arguments against freedom dues for covicts appear in the records of the legislature. These servants, it was said, were sentenced to transportation "as a Punishment" and were obliged "by ... Service to work out their Pardon". To allow them freedom dues, like ordinary indentured servants, was inconsistent with their status as criminals under sentence: "putting Volunteers and Convicts on the same Footing as to Rewards and Punishments, is discouraging the Good and Encouraging the Bad".(46)

By this time convicts had begun to suffer as well from other kinds of disqualification, which set them apart from the rest of the white population. As early as 1732 there had been an attempt to deprive those charged with serious crimes, committed within the colony, of the right of trial at the General Court in Williamsburg, Virginia's highest criminal court. Even for capital offences it was thought that convicts might be tried and sentenced in the county courts, as slaves were. This idea was rejected by the legislature.(47) However, an Act was passed in 1738 simplifying the procedure by which convicts were brought to Williamsburg for trial. Normally individuals were tried at the General Court with a jury made up of men recruited from the county where the crime had been committed, who might be considered as the neighbours and peers of the accused. It was argued that convicts were not part of the local community in any real sense, so that they might be fairly tried before juries made up of citizens of Williamsburg. As a means of implementing this reform county magistrates, when they committed convicts for trial at the capital, were required to send up a certificate drawing attention to the status of the accused.(48)

This was an important step towards giving convict servants in Virginia a distinctive status in colonial law, a process continued in the 1740s. An Act of 1748 prohibited convicts from giving evidence in courts of law, in terms similar to those used for disqualifying blacks and Indians. This was already impossible for convicted felons in England, and it is evidence of their different status once transported that such a ban had not hitherto been observed for convicts in Virginia (although, as we will see, it did exist in Maryland). Even now, the 1748 Act did not appeal to English precedent. Instead, its argument went as follows: "And whereas convicts, as well as negroes, mulattos, and Indians, are commonly of such base and corrupt principles, that their testimony cannot be depended upon: ... no person convicted, and sentenced to transportation ... shall be admitted in any court of this colony, or before any justice of the peace, to be sworn as a witness".(49) Any court might make up its own mind as to the credibilityof witnesses. This act forbade convicts from testifying at all (except against each other), as if their very presence affected the dignity of proceedings at law.

A similar step appears to have been taken by the Virginia legislature in 1749 with a new Electoral Act for the House of Burgesses. Hitherto the franchise had depended on manhood and property. The text of this Act has not survived, but it seems likely that the relevant parts were copied in an Act of 1762. If so, Virginia was now successful in disqualifying any "recusant, convict, or any person convicted in Great Britain or Ireland, during the time for which he is transported", together with "any free negro, mulatto or Indian, although such persons be freeholders".(50) It is impossible to know how many men in Virginia had become freeholders while still subject to transportation, but it is unlikely that the number could have had any real effect on voting. Taking both Acts together, those of 1748 and 1749, it seems fair to suggest a concerted attempt, not only to stigmatize convicts, but at the same time to define the community of good citizens, who were alone thus qualified to enjoy the rights attached to the idea of freedom. The Act of 1753, which deprived convict servants of freedom dues, was a natural consequence.

This process may be better understood by comparing it with events in England about the same time, and in particular the Vagrancy Acts of 1740, 1744 and 1752. These too can be seen as attempts to set apart from the rest of the population, more precisely than had been possible hitherto, a certain body of poor men and women. To some extent, poverty and ill repute were two sides of the same coin, for, as Samuel Johnson put it, poverty "is a state in which no conduct can avoid reproach".(51) Though a convict transported to North America might still leave his offence behind him, his reputation was becoming a steadily more portable item. (I return to this point below.) More broadly, the process of degradation can be traced back to the 1718 Act. An Englishman valued the right of consent, shaped as it was, in principle, to his condition in life. The 1718 Act had separated the right of consent from the business of transportation, and had thus helped to launch the distinctively eighteenth-century project of refining that right -- enlarging it for some and limiting it for others. These later events, in Britain and America, carried the project forward, imposing silence where, from an ideal constitutional point of view, there had once been a population of voices.

Maryland's convict administration seems to have been more thorough than that of Virginia. With proportionately more convicts among its white inhabitants than Virginia, it was perhaps inevitable that the authorities in the smaller colony should have taken more energetic steps to deal with the problem. The surviving records of the Maryland county courts show an immediate response to the 1718 Act, even before the bills of 1719 and 1723 (mentioned above), in so far as records were kept at the porttowns of all convicts brought in, their ship, and their date of conviction.(52) It also appears to have been settled from an early stage that convicts could not testify in the courts.(53) This must mean that they were also unable to vote as freeholders in provincial elections, and it seems unlikely they were given freedom dues: certainly their right to either was never debated in Maryland.

Effective disqualification depended on convicts being identified. The original effort was hard to maintain, so that even in Maryland convicts tended to disappear into the general population. Indeed the 1723 bill was designed partly "for the better discovery" of convicts pretending to be free.(54) In 1728 similar legislation drew attention to the fact that "masters of vessels importing felons and offenders have neglected to bring testimonials of the offences whereof the said felons and offenders have been convicted". As a result convicts were sometimes sold as common indentured servants and as "persons of good repute". It was also difficult, said the Act, to ensure that they were bound in servitude for the entire period of their transportation. Lack of information "hath already occasioned disputes between the persons entitled to the service of the felons and the felons themselves concerning their term of servitude; and several other masters of ships have imported felons for less time of servitude than their sentence required".(55)

The little evidence we have suggests that before the 1718 Act, in Maryland at least, convicts transported under the terms of the Act were sold for four years only, like common servants.(56) For a short time after the Act, apparently, terms of servitude might in fact have coincided with terms of transportation.(57) But through most of the period to 1775, as we have seen, there was no apparent variation from the seven-year term, a small aspect of the system which may perhaps be seen as the work of the convicts themselves (the impact of their voices), and as the result of disputes such as those described. The editor of the Sydney Monitor was to say much later that English convicts were to be subdued "as you would [tame] the Lion". Lions are hard to find among the convicts in North America: there is only this evidence, by which they appear to have established customary rights incidental to their bondage in the colonies.(58) Here, in other words, is an example of rights contingent on community.

Besides, as in Virginia, convict status in Maryland was partly shaped by market considerations, so that convicts tended to be treated as servants. As in Virginia there was a belief that "their Crimes are purged away", not by exile, but "by a Completion of their Time of servitude",(59) although this period might have no relation to the term imposed by the courts. It also appears that masters advertising for the return of runaway convict servants by no means always identified them as convicts.(60)

During the middle decades of the eighteenth century, however, in Maryland, as in Virginia and elsewhere, there was a new concern with the moral basis of citizenship. As a result convicts were more readily identified as such,(61) and transportation began to appear more frequently as a form of pollution. In 1755 the principal secretary to the Lord Proprietor's court in England remarked to the governor of Maryland that "'tis truly hard upon the Province that the Scum and Dregs of the People here sent, should be the Cause of Ruin to Honest men there".(62) Similar imagery occurs in the comparison by Benjamin Franklin (a Pennsylvanian), also in the 1750s, between transportation and the British "emptying their jakes on our tables". The moral basis of this approach -- the idea that the convicts conveyed an inherent social impurity to American shores -- is well summed up in a couplet published in the Maryland Gazette in 1752, which suggested that "Old Transgressors" might "cease to Sin" when "Ethiopian Slaves, Wash out the Darkness of their Skin".(63) Our reputation for "Virtue", said a Marylander in 1767, must be affected in "our mother country, and our sister colonies".(64) Gatrell has maintained (in the argument I have referred to above) that it was "Victorian and subsequent policy and categorisation" which linked the term "crime" with metaphors of disease and contamination; nineteenth-century concerns, he says, made the "criminal" into "a special and an afflicted type".(65) Here, as I have suggested above, it could be said that his timing is misplaced. The "pathology" of crime was of a piece with mid-eighteenth-century ideas about civil status and citizenship.

As in Virginia, Maryland convicts were more easily assimilated with slaves in this period. For instance, an Act of 1765, "to prevent the mischief Arising from the Multiplicity of Useless Dogs", declared that "any Convict servant, Negro, or other slave" found abroad with a dog might receive up to fifteen lashes on "his Naked Back".(66) Disabilities extended, as far as possible, even to former convicts. In 1770 William Eddis found that "Those who survive the term of servitude seldom establish their residence in this country: the stamp of infamy is too strong upon them to be easily erased".(67) In short, their "moral darkness" could not be washed out as it might have been in earlier times.

In 1769 the Maryland Assembly sought to restore the system of identification which had operated in the first years after 1718. The justification was now entirely in terms of moral citizenship, on which rested the right to raise one's voice among other Englishmen in America: "convicted Felons [the Act maintained] are often imported into this Province and pass as persons of Character and many of them are received as Witnesses to the great Vexation and Prejudice of the Inhabitants of this Province". The main point of the Act was to create a register of convicts, and to ensure that county courts knew all convicts within their area. Claims by labourers and others that they belonged to the free community were to be immediately checked by reference to indexed volumes.(68) Once again, the legislation was not entirely effective. Surviving records suggest that even where county clerks began to keep such lists, they were not always indexed and they did not continue for more than a few years.(69)

III

Thus a firm line was drawn, in principle, around the convict population of both Virginia and Maryland. Nevetheless, considerable legal ambiguities remained at the end of transportation to North America, and beyond. The notion that convicts were in some sense redeemed, or even pardoned, was weakened, but it remained important. According to Sir William Blackstone: "the effect of...[any] pardon by the king, is to make the offender a new man; to acquit him of all corporal penalties and forfeitures ...and not so much to restore his former, as to give him a new credit and capacity".(70) The idea of "new credit and capacity" had always been inherent in the process of transportation. On becoming a member of a distinct community -- Eden's "new country" -- he became in a very real sense "a new man" (typicality in that period was, of course, always masculine). This had been clearly recognized earlier in the century, at least in Virginia, in so far as convicts had been there allowed to testify in courts of law, to share the rights of indentured servants and, if otherwise qualified, to vote for members of the House of Burgesses. This older pattern of rights reflected a sense of community and of geography which was central to the oppositionist view described above, and which was consistent with the British government and parliament's slight control of both space and time within the empire. Distance allowed for the maintenance of distinct communities and moral economies beyond the ocean. Besides, even in England the courts did not usually seek to imprison men and women for periods of more than three years.(71)

During the last half of the century, however, the administrative and military arrangements of the empire, and a rapidly expanding sense of community and geography, meant that both space and time could be more thoroughly controlled. Perhaps nothing proves this so clearly as the foundation of a penal settlement in New South Wales, on the other side of the world, when it was no longer possible to send convicts to North America. The situation was greatly complicated -- not to say confused -- by force of habit and precedent, and by the oppositionist views of a chance few in authority, such as Lord Sydney. For instance, contractors for transportation were wholly reimbursed by government, and it followed that they should be ordered to assign their cargo to the governor on arrival.(72) The convicts in New South Wales were therefore justifiably considered "servants of the Crown". However, it was by no means clear to begin with that they would be subject to any kind of forced labour, and the first governors were provided with neither instructions on this point nor the means of detailed supervision.(73)

The commission of the first governor, Arthur Phillip, conveyed, or pretended to convey, the authority to pardon men and women sentenced in Britain. This was shortly afterwards interpreted to imply no more than the power "to emancipate and discharge [them] from their servitude", and in 1790 the larger power was given instead by act of parliament.(74) The power to pardon seems, by this time, to have been considered merely as an expansion of the power to emancipate, for recent theory, associated with the names of Howard, Eden and Bentham, stressed that penal restraint was a meaningless void unless filled with labour, moral submission and good order.(75) Thus it ceased to matter that something like a quarter of the convicts had arrived at the settlement with conditional pardons, and that it was hardly logical to pardon them over again. For many up-to-date officials, men and women convicted under the 1718 Act were typical of the whole, and it followed that the conversation of king and subject -- the exchange of pardon and consent -- was a negligible fiction.(76)

Nor did ocean barriers negate this attitude. Phillip and his successors carried with them, much more substantially than the older type of North American governors had done, the power of the British state, duplicated within an apparent void on the other side of the world. Theirs was a type of proconsular authority which was to be increasingly common throughout the empire during the nineteenth century: by this means, the immediate potency of Whitehall was transported too.(77)

All convicts were held to be assigned to the governor, and this encouraged the idea that the basis of his control over the convicts lay in his authority as master of their labour-power. In particular cases, he surrendered that authority by pardoning. Indeed, in New South Wales penal restraint was commonly described as "servitude", while pardoning was called "emancipation". These terms became part of the colonial vernacular.(78) Also, the conflation of the two aspects of punishment opened the way for lifelong servitude, something which had hitherto seemed wrong for Englishmen ("being Christians by baptism", as Henry Woodford might have said).

The older view prevailed in so far as civil and criminal courts were established from the beginning in New South Wales, and the convicts were apparently intended to appear in them with all the rights of free people. No-one in the settlement, convicts or otherwise, was to be allowed trial by jury, because it was considered impossible to recruit suitable juries.(79) However, convicts were admitted as witnesses, as they had once been in Virginia, and for a time they might sue and be sued. Indeed, it seems to have been thought initially that they needed no more than emancipation (freedom from bonded labour) in order to receive grants of land, and it follows that they might have defended such title in the courts.(80) In the first case tried by the civil court, in 1788, the plaintiffs were two convicts, husband and wife, who succeeded in recovering property from the captain of the ship in which they had been transported.(81) But this right was short-lived. It was abolished by the second governor, John Hunter (1795-1800), who seems to have thought that it was conditional on his authority as master of the colony's labour supply: "I would not allow the public service", he said, "to be impeded by any private dealings".(82)

Within two decades of first settlement this more authoritarian view was entirely dominant within the colony. In 1812 Robert Campbell, a local merchant, explained the procedure by which convicts could then operate as people of property. Their rights as such were very limited. "I have known some instances", he said, "of cognisance being taken by the magistrates of a prisoner owing money, ordering him to pay so much out of his weekly earnings". This included debts to other convicts, but apparently nothing could be done if a convict was owed money by a free individual.(83) Within a very short period the rights of convicts in New South Wales had nearly all been reduced to those which related to their condition as a people in servitude. It seems likely too that the courts had now also ceased to act in cases of theft from convicts: henceforth the convicts' only formally recognized asset was to be their own humanity. This was partly a result of the new penology: note that Campbell occasionally spoke of the convicts as "prisoners", a term never used of them in North America. It was consistent with the orderly regime of a newly modelled prison that, as Campbell explained, "no person can strike a convict", and convicts were entitled to complain to a magistrate of any unauthorized violence against them.(84) They were under the protection of the government more thoroughly than their predecessors had been in North America, but their status was more strictly defined.

By 1812, although convict property was not forfeit to the crown, the rights contingent on such property barely existed in New South Wales. To begin with (if we can believe Governor Hunter), this disqualification was due not so much to English precedent as to local circumstances, and to the assumption that transported men and women were servants whose first obligation was to the state, their master. However, this assumption was grounded in a new understanding of the rights of government, over and above the rights of the subject (at least in matters of property). Here was an imperial state, with a power far beyond that existing in the earlier eighteenth century. In short, the subjection of convicts in New South Wales was a direct result of the extension of empire.

The editor of the Sydney Monitor in 1828 was unaware of the governor's original power over convict servitude. Understanding only the way in which transportation had been traditionally linked with the royal pardon, he believed that convicts on arrival were technically free. Even with respect to those sentenced under the terms of the 1718 Act, he was right up to a point. From a strictly legal point of view, it could well have been argued that during the first years of settlement at Sydney the only disabilities convicts were obliged to suffer were those common to indentured servants abroad.

IV

The extension of the British empire in this period is usually dealt with in commercial and/or military terms. But it also has to be understood from an ideological point of view. As C. A. Bayly says, the outer parts of the empire were ahead of England itself in undergoing a "revolution in government", a "constructive imperialism" in these years.(85) Norman Baker similarly points to a new administrative energy, effective throughout the empire, and arising partly from "a more rational and at times moralizing view of society as a whole".(86) There may have been a declining interest in transportation among English magistrates in the 1770s.(87) However, the system received a new lease of life with the establishment of settlement in New South Wales, and this was partly because the moral dimensions of empire were now made to overlap with those of criminal punishment, each being shaped from Whitehall. Among the new visions of empire can be found one whose rigid order slightly resembles that of a great panopticon.

To refine this point we return to the North American colonies. At first sight there seems to be a contradiction in the attitude of the Americans during the last decades before the Revolution. On the one hand their degradation of convicts has to be seen as the result of a more highly articulated sense of community, and a new sense of moral dignity attached to the idea of being American. And yet this involved making themselves mere agents of British authority and more entirely managers of a prison population.(88) Partly the explanation lies with the belief, well-established by mid-century in North America, that consent was not only a right of citizenship but also its best means of expression; and which therefore stressed the virtues of voluntary emigration, in which settlers "by common Consent take possession of a new country, and form themselves into a political Society".(89) By this precept convicts were naturally categorized with slaves. Both came involuntarily and were therefore set apart from "political Society".(90)

However, a broader perspective suggests that the American adherence to British needs was reinforced by new ideas about morality and government which were common to civilization on both sides of the Atlantic. Among educated people, it was no longer possible to become "a new man", to take on a "new credit and capacity", simply by changing one's neighbourhood or by going abroad. Both rights and duties were now defined in more abstract and universal terms. The power of legislation, reaching beyond the seas, was beginning to overtake that of common law and tradition. The new approach was tied to the idea of the brotherhood of man, whether more or less radically stated, an idea which was meaningless unless reputation could be seen to serve as a passport beyond one's own community. Virtue, expressed as patriotism, might merge communities within a nation, as it did in North America, Britain and elsewhere.(91) But it also brought into being a supranational "republic of virtue", drawn together by the kind of civic morality embodied, say, in the character of George Washington, modelled on the best heroes of ancient times, and equally significant in Philadelphia, Paris or St Petersburg.

The admiration of liberty, which was such an important aspect of political debate during the second half of the eighteenth century, was thus tightly bound to the idea of honesty and candour, virtues to be prized among all men aspiring to the responsibilities of citizenship. It was also tied to the question of property, and to issues surrounding the security of property. "Cato", the revolutionary pamphleteer, maintained that "all Civil Happiness and Prosperity is inseparable from Liberty". But these were linked with the capacity to "possess, in Security, the Effects of our Industry".(92) The convicts were the antithesis of such a programme. As the antithesis they helped, perhaps, to accentuate and clarify such thinking. They were non-citizens, or rather anticitizens.(93) One of the arguments used in Virginia against allowing them freedom dues referred to the gangs of thieves which would flourish if convicts were given equality with other servants.(94) This was the independent republic of vice, much encouraged by the increase of traffic across the Atlantic following the Peace of Paris in 1763: convicts moved much more freely by water, their sentences notwithstanding.(95) It was partly against this upside-down community that the republic of virtue sought to define itself.

Thus within the British empire the brotherhood of man undermined the power of neighbourhoods and national communities to make up their own minds about rights and duties, whether in general or in particular cases. This might lead to explosions of resentment, such as the American Revolution. But otherwise the new rigidity greatly strengthened the imperial state, as it was to do within continental Europe under Napoleon. In the British case, while there was of course much regional variation, the way was open for Whitehall, parliament and the courts to rule even in Sydney, on the other side of the world, much more effectively than they had ever done in Annapolis or Williamsburg.

(1)Sydney Monitor, 20 Oct. 1826.

(2)See, in particular, 5 Geo. IV, c. 84 (Transportation Act, 1824), amended at the beginning of 1828 by 9 Geo. IV, c. 83, s. 9 (New South Wales Act); A. G. L. Shaw, Convicts and the Colonies: A Study of Penal Transportation from Great Britain and Ireland to Australia and Other Parts of the British Empire (London, 1966), pp. 144, 231-2.

(3)Sydney Monitor, 17 Nov. 1826.

(4)Sydney Gazette, 22 Nov. 1826. Blackstone had stated that a felon lost "all his chattel interests absolutely, and the profits of all estates of freehold during life", a statement which takes no account of transportation for a limited term: William Blackstone, Commentaries on the Laws of England, 4 vols. (London, 1825), iv, p. 385. This remined the case in Britain until the Abolition of Forfeiture Act, 1870.

(5)Sydney Monitor, 17 Nov. 1828.

(6)Hirst says that "In New South Wales we look in vain for a local ideology of oppression": J. B. Hirst, Convict Society and its Enemies: A History of Early New South Wales (Sydney, 1983), p. 107. While Hirst's claim is untrue, the Monitor's was almost a lone voice at this point. See also Sydney Gazette, 6 Aug. 1827.

(7)C. A. Bayly, Imperial Meridian: The British Empire and the World (London, 1989), pp. 8, 11, 116-19.

(8)P. J. Marshall, "Empire and Authority in the Later Eighteenth Century", Jl Imperial and Commonwealth Hist., xv (1987), pp. 116-17.

(9)The exact point at which transportation began was at issue in a case of covict mutiny tried in 1784. Since the offence took place in local waters, it was taken not to involve return from transportation: John Cobley, The Crimes of the First Fleet Convicts (Sydney, 1982), pp. x-xi.

(10)Sir Edward Coke, The Second Part of the Institutes of the Lawes of England (London, 1642), pp. 47-8, 201; Christopher Hill, Change and Continuity in Seventeenth-Century England (London, 1974), p. 227. Hill argues that in the seventeenth century many Englishmen were still inclined to think that the quality of being "free-born" was an exclusive one, not to be allowed, for instance, to servants (ibid., pp. 226-33). However, there is no hint of exclusiveness in contemporary rights legislation, such as Habeas Corpus.

(11)Story of Henry Woodford (or Woollford, or Davis): The Ordinary of Newgate His Account, executions on 3 Apr. 1721; Anon., Malefactors Register: or, The Newgate and Tyburn Calendar, 6 vols. (London, [1778-9?]), iii, p. 99 (annotation, presumably by the Ordinary).

(12)William Eden, "Discourse on Banishment", taken from his The Principles of Penal Law (London, 1771), in Anon., The Voyage of Governor Phillip to Botany Bay, ed. James J. Auchmuty (Sydney, 1970; first pubd London, 1789), p. 340.

(13)J. M. Beattie, Crime and the Courts in England, 1660-1800 (Oxford, 1986), pp. 506-13.

(14)V. A. C. Gatrell, "Crime, Authority and the Policeman-State", in F. M. L. Thompson (ed.), The Cambridge Social History of Britain, 1750-1950, 3 vols. (Cambridge, 1988-90), iii, pp. 250-1, 254.

(15)Shaw notes that, between 1655 and 1699, 4,500 were sent under conditional pardons, by far the most common method and the main period of transportation before 1718: Shaw, Convicts and the Colonies, pp. 24-5. Note 18 below deals with the relative importance of the two systems after 1718.

(16)A. Roger Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1718-1755 (Oxford, 1987), pp. 21-7. It will be clear throughout this article that I owe a great deal to Ekirch's exhaustive research. However, I think he allows too little for the possibility of change within this aspect of the ancien regime in North America, and thus makes it hard to reconcile what we know of the American and the Australian convict experiences. For transportation from Scotland, see David Hume, Commentaries on the Law of Scotland, 4 vols. (Edinburgh, 1844; first pubd 1979), i, pp. 354-65; ii, p. 484.

(17)See the Recorder of London in evidence before the committee "appointed to enquire what Proceedings have been had in the Execution of ... 'An Act for the effectual Transportation of Felons [1784]'" (Lord Beauchamp's committee), Public Record Office, London (hereafter P.R.O.), H.O. 7/1 (28 Apr. 1785).

(18)Ekirch's material yields 19.2 per cent: Ekirch, Bound for America, p. 35. However, it is unclear whether his evidence -- Maryland county records for 1719-74, showing terms of fourteen years or life -- serves a useful purpose here, as conditional pardons were frequently attached to terms of seven years. Among the convicts who sailed by the First Fleet to New South Wales, in 1787, there were 239 conditional pardons (the great majority attached to seven-year terms) in a total of 778 (30.7 per cent): Cobley, Crimes of the First Fleet Convicts, passim. It would, of course, be wrong to assume that this was perfectly typical of the entire eighteenth century.

(19)Story of Thomas Butler: Ordinary of Newgate His Account, executions on 11 Oct. 1752.

(20)W. Cobbett, The Parliamentary history of England from the Earliest Period to the Year 1803, 36 vols. (London, 1806-20), xxv, col. 431 (11 Apr. 1785).

(21)Report from Lord Beauchamp's committee (see n. 17 above), Journals of the House of Commons, xl (1784-5), p. 1162 (28 July 1785).

(22)Eden, "Discourse on Banishment", p. 341.

(23)Parliamentary Register, 112 vols. (London, 1775-1813), iv, pp. 104, 105 (9 May 1776). Watson mentions Townshend as a leading figure in the formation of Wildman's Club, 1762: D. H. Watson, "The Rise of the Opposition at Wildman's Club", Bull. Inst. Hist. Research, xliv (1971), pp. 56-7. He was also a member of the Society for Constitutional Information in 1780: Cobbett, Parliamentary History, xxxi, col. 914 (13 June 1794).

(24)Alan Atkinson, "The First Plans for Governing New South Wales, 1786-87", Australian Hist. Studies, xciv (1990), pp. 39-40.

(25)The Act was 24 Geo. III, c. 56. For the earlier situation, see, for example, John Howard, The State of the Prisons (London, 1777), p. 426.

(26)William Eddis, an Englishman in Maryland writing at the end of the transportation period, implies that this was what the legislation had intended: Eddis, Letters from America, ed. Aubrey C. Land (Cambridge, Mass., 1969), p. 36. See also the evidence of Duncan Campbell, 12 May 1785, before Lord Beauchamp's committee (P.R.O., H.O. 7/1); Frederick H. Schmidt, "British Convict Servant Labor in Colonial Virginia" (College of William and Mary Ph.D. thesis, 1976), pp. 110-12; Ekirch, Bound for America, pp. 119-20.

(27)Legislative Journals of the Council of Colonial Virginia, ed. H. R. McIlwaine, 3 vols. (Richmond, 1918-19; hereafter L.J.C.), ii, pp. 1034-5 (11 Apr. 1749). Even Smith says that "the service of the term was to have the effect of a pardon": A. E. Smith, Colonists in Bondage: White Servitude and Convict Labor in America, 1607-1776 (Chapel Hill, 1947), p. 111.

(28)Eden, "Discourse on Banishment", p. 341. There does appear to have been some passing doubt in 1717-18 as to whether quarter sessions should have the power to award sentences of transportation: Journals of the House of Commons, xviii (1714-18), pp. 768-9 (19 Mar. 1718); see Beattie, Crime and the Courts in England, 1660-1800, pp. 283-8, and cf. Ekirch, Bound for America, p. 17.

(29)House of Delegates' address to the governor of Maryland: Proceedings and Acts of the General Assembly of Maryland, 1757-1758, ed. J. Hall Pleasants (Archives of Maryland, lv, Baltimore, 1938), p. 602 (19 Apr. 1758). In Virginia, court records, in identifying convicts brought to trial within the colony, generally specified the ship and date on which they had arrived, in order to affirm their status.

(30)Duncan Campbell, in evidence before Lord Beauchamp's committee, 12 May 1785 (P.R.O., H.O. 7/1) spoke of the term being thus limited by "the Laws of the Colonies", though no such laws existed. See also James M. Matra (an American Loyalist), memoranda attached to his "Proposal for Establishing a Settlement in New South Wales", 23 Aug. 1783, in Historical Records of New South Wales, 8 vols. (Sydney, 1893-1901), i, pt 2, p. 7; Eddis, Letters from America, p. 36; Schmidt, "British Convict Servant Labor in Colonial Virginia", pp. 118-19; Ekirch, Bound for America, p. 120. In the 1770s there was a printed assignment form, for the use of ships' captains delivering convicts, in which "the Term of seven Years" appeared as an invariable: item 14 in Gary Hendershott, Southern History: A Price List, sale 73 (Oct. 1991); kindly shown to me by John Dann, William Clements Library, University of Michigan, Ann Arbor.

(31)Calendar of Home Office Papers, 1770-2, pp. 614-15. I have found no other examples of this among the Scottish pardons. Presumably the convicts were to be the contractor's personal servants.

(32)David W. Galenson, White Servitude in Colonial America: An Economic Analysis (Cambridge, 1981), pp. 124-5; Ekirch, Bound for America, pp. 114-17.

(33)In both, white bonded labour seems to have been used mainly by small capitalists: see Russell R. Menard, Economy and Society in Early Colonial Maryland (New York, 1985), pp. 254, 258; Ekirch, Bound for America, pp. 140-4.

(34)Smith, Colonists in Bondage, pp. 115, 118, 311, 329. No detailed comparison of the systems in Virginia and Maryland has yet been made. However, Smith gives annual figures for all convicts entering Maryland 1745-75 (showing that London sent 58 per cent and Bristol 35 per cent) and for all convicts sent to the various colonies from London. It thus appears that Maryland took 46 per cent of London convicts and, other details suggest, the great majority of those from Bristol as well. For the earlier period, Ekirch's figures imply that about 55 per cent of convicts went to Maryland: Ekirch, Bound for America, p. 115; and see Schmidt, "British Convict Servant Labor in Colonial Virginia", p. 70.

(35)Counting men alone, the figure was 30 per cent, and in two of the best-settled counties (Queen Anne's and Charles) convict men were in the majority. See "An Account of the Number of Souls in the Province of Maryland in the Year 1755", Gentleman's Mag. (1764), p. 261; Smith, Colonists in Bondage, p. 325; Evarts B. Greene and Virginia D. Harrington, American Population before the Federal Census of 1790 (Gloucester, Mass., 1966), pp. 125-6, 139-41; Schmidt, "British Convict Servant Labor in Colonial Virginia", pp. 217-18; Ekirch, Bound for America, pp. 141-4. The evidence is more ambiguous for the earlier years. Information on prices offered in Maryland for indentured servants suggests that the influx of convicts from 1718 did not much affect the market: Margaret M. R. Kellow, "Indentured Servitude in Eighteenth-Century Maryland", Social History, xvii (1984), p. 234. However, see Menard, Economy and Society in Early Colonial Maryland, pp. 125, 248-9, 257. In New South Wales in 1804, 67.4 per cent of employed men were convicts: Historical Records of Australia, ed. Frederick Watson, 3rd ser., v (Sydney, 1922), p. 40.

(36)Ekirch, Bound for America, pp. 134-7, 168-9.

(37)Basil Sollers, "Transported Convict Laborers in Maryland during the Colonial Period", Maryland Hist. Mag., ii (1907), pp. 28-9; Ekirch, Bound for America, p. 138.

(38)Hugh Jones, The Present State of Virginia, ed. Richard L. Morton (Chapel Hill, 1956; first pubd London, 1724), pp. 134-5. Fairfax harrison, citing Jones, says that this scheme was discussed during the debate on the 1722 Act: F. Harrison, "When the Convicts Came", Virginia Mag. Hist. and Biog., xxx (1922), pp. 251-2. While this seems likely, Jones does not in fact say so.

(39)Journals of the House Burgesses, ed. H. R. McIlwaine, 13 vols. (Richmond, 1908-15; hereafter J.H.B.), 1712-26, pp. 330, 332, 333, 353 (17, 19, 21, 28 May, 7 June 1722); L.J.C., ii, pp. 669, 670, 672, 673 (22, 23, 26, 29 May 1722); The Laws of Virginia: Being a Supplement to Hening's The Statutes at Large, 1700-1750, comp. Waverley K. Winfree (Richmond, 1971), pp. 217-20. For the bill's disallowance, see Executive Journals of the Council of Colonial Virginia, ed. H. R. McIlwaine, 6 vols. (Richmond, 1925-66), iv, pp. 60-1 (18 Jan. 1723), 447-8. The opinion of counsel, Richard West, 3 July 1723, is to be found in Opinions of Eminent Lawyers on Various Points of English Jurisprudence, ed. G. Chalmers (London, 1858), pp. 436-8.

(40)Deposition of Charles Hammond, 12 Sept. 1723, in Maryland Provincial Court, liber 1722-4 (Maryland Hall of Records, Annapolis, 767); Ekirch, Bound for America, pp. 169-77.

(41)When Kenneth Morgan says that convicts in the Chesapeake were "often treated as animals and lumped together with other dependent members of society lacking economic status", he refers to the entire period 1718-75, but his evidence all comes from this second phase: "English and American Attitudes towards Convict Transportation", History, lxxii (1987), pp. 425-6.

(42)Jones, Present State of Virginia, p. 87. For the previous evolution of white servitude in Virginia, see also Warren M. Billings, "The Law of Servants and Slaves in Seventeenth-Century Virginia", Virginia Mag. Hist. and Biog., xcix (1991), pp. 45-53.

(43)Enforced by local legislation, 4 Anne, c. 49 and 22 Geo. II, c. 14: The Statutes at Large: Being a Collection of All the Laws of Virginia, ed. William Waller Hening, 13 vols. (Richmond, 1809-23), iv, p. 451; v, p. 550. Billings notes that while the Act of Queen Anne was the first to set out freedom dues, "they were often implied in earlier statutes": Billings, "Law of Servants and Slaves", p. 52 n. 24.

(44)J.H.B., 1727-40, pp. 288, 289-90, 291, 293-4, 403 (3, 8, 9 Sept. 1736, 27 May 1740); L.J.C., ii, p. 849 (11, 14 Sept. 1736); 22 Geo. II, c. 26 (Statutes at Large, ed. Hening, v. pp. 547-58).

(45)27 Geo. II, c. 7: Statutes at Large, ed. Hening, vi, p. 359. However, the same Act, in requiring certificates of freedom to be issued at the end of servitude, made no distinction between convicts and non-convicts. It similarly affirmed that all servants were to have "the property and benefit... [of goods and money] to their own use".

(46)L.J.C., ii, pp. 1034-5 (11 Apr. 1749).

(47)Report from the Committee on Propositions and Grievances, J.H.B., 1727-40, p. 123 (23 May 1732). There was also a bill introduced in 1730 "for bringing [transported convicts] ... to a due and speedy punishment for their Crimes", which was defeated in the upper house, and whose text is lost: ibid., pp. 87, 88 (24, 25 June 1730); L.J.C., ii, pp. 771, 772, 783 (24, 25 June, 8 July 1730).

(48)12 Geo. II, c. 4: Statutes at Large, ed. Hening, v, pp. 24-6.

(49)22 Geo. II, c. 13: ibid., pp. 546-7.

(50)L.J.C., ii, pp. 1047, 1049, 1050 (3, 4, 5, 6 May 1749). Ekirch merely says that convicts were thus disqualified by the 1762 Act (3 Geo. III, c. 1: Statutes at Large, ed. Hening, vii, p. 519): Ekirch, Bound for America, p. 154. However, the clauses in question do not appear in the 1762 Act as part of that Act's distinctive purpose.

(51)Nicholas Rogers, "Policing the Poor in Eighteenth-Century London: The Vagrancy Laws and their Administration", Social History, xxiv (1991), p. 131; and see Gertrude Himmelfarb, The Idea of Poverty: England in the Early Industrial Age (London, 1984), pp. 68-85 (Johnson quoted on p. 4).

(52)Schmidt, "British Convict Servant Labor in Colonial Virginia", pp. 79-80. No record of this kind appears for Virginia: ibid., pp. 77, 81; Smith, Colonists in Bondage, p. 219.

(53)Thus in 1751 a law was passed to make an exception of cases where the evidence of convicts was needed against each other: Proceedings and Acts of the General Assembly of Maryland, 1748-1751, ed. J. Hall Pleasants (Archives of Maryland, xlvi, Baltimore, 1929), pp. 518, 530, 536 (29 May, 7, 8 June 1751), 616 (the Act). For a brief explanation of the Act, see H. Hamersley's submission to C. Pratt: Proceedings and Acts of the General Assembly of Maryland, 1752-1754, ed. J. Hall Pleasants (Archives of Maryland, 1, Baltimore, 1933), pp. 624-5 (June 1752).

(54)Sollers, "Transported Convict Laborers in Maryland during the Colonial Period", pp. 28-9.

(55)Quoted ibid., pp. 32-3.

(56)Story of James Appleton, a former transportee: Ordinary of Newgate His Account, executions on 11 Sept. 1721. The chronology of this story supports Appleton's statement about four-year terms.

(57)Hugh Jones wrote of Virginia in 1724 that convicts "serve seven, and sometimes fourteen years": Jones, Pressent State of Virginia, p. 87.

(58)Schmidt, "British Convict Servant Labor in Colonial Virginia", p. 256.

(59)Maryland Gazette, 30 July 1767.

(60)Kellow, "Indentured Servitude in Eighteenth-Century Maryland", pp. 238-9.

(61)Kellow has found that, among 24 runaways advertised in the Maryland Gazette in 1729-30, 11 were apparently convicts though not so described, whereas, among 178 in 1760-4, 115 were clearly identified as convicts: ibid., pp. 238-9. However, throughout the whole period the inventories attached to Maryland wills (preserved in the Maryland Hall of Records) very rarely identify white bonded servants as convicts.

(62)Cecilius Calvert to Horatio Sharpe, 23 Dec. 1755: Correspondence of Governor Horatio Sharpe, i, 1753-1757, ed. William Hand Browne (Archives of Maryland, vi, Baltimore, 1888), p. 329.

(63)Benjamin Franklin, 9 May 1759, quoted in Morgan, "English and American Attitudes towards Convict Transportation", p. 417; couplet quoted in Ekirch, Bound for America, p. 152.

(64)Maryland Gazette, 20 Aug. 1767.

(65)Gatrell, "Crime, Authority and the Policeman-State", pp. 252-3.

(66)Passed 4 December 1765: Proceedings and Acts of the General Assembly of Maryland, 1764-1765, ed. J. Hall Pleasants (Archives of Maryland, lix, Baltimore, 1942), p. 277.

(67)Eddis, Letters from America, pp. 36-7. Ekirch has attempted to trace former convicts in the Chesapeake, but has found very few: Bound for America, pp. 179-82. It may be significant (although Ekirch does not suggest it) that of the eight for whom probate inventories could be located in Maryland, among a total of 395 arriving between 1719 and 1750, all but one were dead by 1750 and were thus, presumably, early arrivals.

(68)Passed 24 December 1769: Proceedings and Acts of the General Assembly of Maryland, 1769-1770, ed. Raphael Semmes (Archives of Maryland, lxii, Baltimore, 1945), pp. 165-7.

(69)Anne Arundel County Convict Record, 1771-5 (index for 1771 only, and no physical descriptions), and Baltimore County Convict Record (no index and no physical descriptions), both Maryland Hall of Records, CR 40,516. I am indebted to the Hall of Records for making copies of this material available to me.

(70)Blackstone, Commentaries, i, p. 402.

(71)Beattie, Crime and the Courts in England, 1660-1800, pp. 562-3.

(72)The earliest surviving contracts for New South Wales, dated 1789 (P.R.O., A.O. 3/291), specify assignment to the governor, though this had no legislative basis until 1824 (5 Geo. IV, c. 84). I am very grateful to Dan Byrnes for details from the contracts.

(73)See, for example, Governor Phillip's second commission, 2 Apr. 1787, and his instructions, 25 Apr. 1787: Historical Records of Australia, ed. Watson, 1st ser., i (Sydney, 1914), pp. 2-8, 9-16. Phillip himself seems to have been the first to describe the convicts in this way. I am grateful to John Brewer for help with the description.

(74)Phillip's second commission used a standard form in giving him the power "to pardon all ... [criminal] offenders and to remit all such offences", meaning those committed in the colony. His instructions interpreted this to include transported convicts, but restated it in the terms quoted, and without reference to pardoning: ibid., pp. 4, 14. The Act (30 Geo. III, c. 47) seems to have resulted from the realization that the king could not otherwise convey the power to pardon transported convicts.

(75)Beattie, Crime and the Courts in England, 1660-1800, pp. 604-5.

(76)The first convict to be doubly pardoned was William Blatherhorn, 1794: Molie Gillen, The Founders of Australia: A Biographical Dictionary of the First Fleet (Sydney, 1989), p. 38.

(77)John Benyon, "Overlords of Empire? British 'Proconsular Imperialism' in Comparative Perspective", Jl Imperial and Commonwealth Hist., xix (1991), passim.

(78)The original distinction between emancipation and freedom by serving one's sentence is clear in Arthur Phillip to Lord Grenville, 5 Nov. 1791: Historical Records of Australia, 1st ser., i, p. 270. By 1812 the local meaning of "emancipation" seems to have been further refined so as to imply the issue of a conditional, but not an absolute, pardon; "it makes them free of [i.e., within] the country; not to come home again": William Richardson in evidence before the House of Commons select committee on transportation (Eden committee), 20 Mar. 1812, Report from the Select Committee on Transportation, Parliamentary Papers, 1812 (341), ii, p. 57.

(79)Atkinson, "First Plans for Governing New South Wales", pp. 37-8.

(80)This is the only possible interpretation of Phillip's instructions: Historical Records of Australia, 1st ser., i, p. 14. See also Alan Atkinson, "Sunshine from Frost", Push from the Bush: Bull. Social Hist., no. 26 (Apr. 1988), pp. 12-17.

(81)Sir Victor Windeyer, "'A Birthright and an Inheritance': The Establishment of the Rule of Law in Australia", Tasmanian Univ. Law Rev., i (1962), pp. 658-61. The couple were at first described as "New Settlers of this place", but this was crossed out. Nowhere were they described as convicts. This was also the practice in the criminal courts, after the first few weeks of settlement, presumably because appearance in any court with rights apparently intact seemed inconsistent with convict status. New South Wales State Archives, Sydney, 2391, SZ765. Gloria Thompson's unpublished work has been a help to me here.

(82)John Hunter in evidence before the Eden committee (see n. 78 above), 28 Feb. 1812: Report from the Select Committee on Transportation, p. 48.

(83)Robert Campbell in evidence, 12 June 1812: ibid., pp. 75-6. In 1818 it was declared in the New South Wales Supreme Court that disqualification depended on proof of conviction, which must be secured from England, so that in practice the local right to sue was restored to convicts: Barron Field to Earl Bathurst, 15 Jan. 1823, Historical Records of Australia, ed. Watson, 4th ser., i (Sydney, 1922), pp. 423-5.

(84)Ibid.; Hirst, Convict Society and its Enemies, pp. 108-9.

(85)Bayly, Imperial Meridian, pp. 8, 11, 116-19.

(86)Norman Baker, "Changing Attitudes towards Government in Eighteenth-Century Britain", in Anne Whiteman, J. S. Bromley and P. G. M. Dickson (eds.), Statesmen, Scholars and Merchants: Essays in Eighteenth-Century History Presented to Dame Lucy Sutherland (Oxford, 1973), p. 219.

(87)Beattie, Crime and the Courts in England, 1660-1800, pp. 546-8, 563-5.

(88)See, for example, the reasons given in the Virginia upper house for dissent from the bill enforcing freedom dues for convicts: L.J.C., ii, pp. 1034-5 (11 Apr. 1749).

(89)Richard Bland, 1766, quoted in Michael Kammen, "The Meaning of Colonization in American Revolutionary Thought", Jl Hist. Ideas, xxxi (1970), p. 342, see also pp. 353-4; James H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill, 1978), p. 128.

(90)It was on such grounds, presumably, that there was some objection to convicts serving in the revolutionary army: Samuel Smith to [George Johnstone], 1 Apr. 1778, Rigeley Papers, Maryland Historical Society, Baltimore, MS 672.1.

(91)For Britain, see Linda Colley, "Whose Nation? Class and National Consciousness in Britain, 1750-1830", Past and Present, no. 113 (Nov. 1986), passim.

(92)Quoted in Michael Kammen, Spheres of Liberty: Changing Perceptions of Liberty in American Culture (Madison, 1986), p. 31.

(93)Rogers, "Policing the Poor in Eighteenth-Century London", pp. 144-5.

(94)Points made in dissent from an amendment to a bill from the lower house: L.J.C., ii, pp. 1034-5 (11 Apr. 1749).

(95)Douglas Hay, "War, Dearth and Theft in the Eighteenth Century: The Record of the English Courts", Past and Present, no. 95 (May 1982), pp. 142-3.
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