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Australian Journal of Legal History |
GREGORY DURSTON[*]
This article will examine the prosecution of prematurely returned transports between 1718 and 1799, focussing on their incidence, motivation, method of return, and the manner in which they were apprehended, convicted and punished. The study is confined to the Metropolitan area, which in this context encompasses the adjacent cities of London and Westminster, and the surrounding County of Middlesex. All these parts had their serious crimes determined at the shared Old Bailey court, with its eight sessions per year, rather than at the provincial (and bi-annual) Assizes system used by the rest of England. In practise, the Old Bailey court was the only forum in the Metropolitan area that tried returnees in significant numbers.[1]
Although English penal transportation had a legal history dating back to 1597, it was very rarely employed until the middle of the seventeenth century. After 1650, however, the practice of reprieving prisoners from execution via an exercise of the royal (or Lord Protector’s) prerogative of mercy, on condition that they agreed to transport themselves to the colonies, became more common. Additionally, during the 1660s, transportation was made a punishment in its own right (rather than being purely a condition of reprieve) for a small selection of very specific offences, such as burning hayricks and pillaging on the Scottish Border. As a result, between 1655 and 1699 about 4 500 convicts were sent to the Americas.[2] Others followed them in the opening decades of the eighteenth century. Nevertheless, prior to 1718, transportation was largely limited to those who had initially been sentenced to death, and was plagued with problems of enforcement, which discouraged its use. Convicts who received benefit of clergy (a fiction allowing most laymen to avoid execution for a range of felonies) could not be transported, usually being perfunctorily branded and then discharged. It was also feared that many capitally convicted felons who were pardoned on condition of transporting themselves ‘neglected to perform the said Condition’, in the words of the preamble to the Transportation Act 1718.[3] Others committed further crimes prior to their departure; thus, in 1678, Susan Banster stole goods worth £13 ‘as she was going’.[4]
Despite such problems, the potential value of penal transportation was not lost on the legislature. Many observers felt that clergied convicts were treated too leniently. As a result, there were two unsuccessful parliamentary attempts in 1663 to stiffen the consequences of committing clergyable felonies by replacing branding with transportation. There was another unavailing parliamentary bill to this effect in 1702.[5] Success was finally attained in 1717, when the Transportation Act received the royal assent, coming into force the following year. After this date, defendants convicted of clergyable offences, especially those involving dishonesty (rather than violence), were usually sentenced to transportation for seven years. Additionally, the Act allowed those convicted of petty theft (not punishable by death) or vagabondage to be sentenced to transportation rather than the customary whipping or Bridewell incarceration. However, although some minor thieves, such as ‘Stormy’ Barnes, convicted at the Old Bailey of stealing a 7d. wool cap in 1737, and a few vagabonds from counties such as Devonshire, were transported, it was a relatively rare disposal in England (though not in Ireland). The Act also placed on a sound statutory basis the existing process by which those who were convicted of non-clergyable felonies and sentenced to death could be pardoned on condition of transportation, after the King and his cabinet had reviewed their sentences in the light of reports from the Recorder of London. After 1718, most reprieves were on condition of transportation for 14 years or life.
Finally, the new statute made effective provision for forcibly removing convicts from the country after they had received their sentences, significantly reducing absconding and the commission of post-conviction crimes. This was partly done by granting the sentencing courts the power to transfer convicts: ‘… to the Use of any Person or Persons who shall contract for the Performance of such Transportation’. As a result, individual merchants were given contracts to remove convicts from various judicial areas, such as Newgate and the Home Circuit.[6] Felons would normally remain in prison until their transportation date, when they were handed over to the merchant agents who would sell their labour on to planters and other Americans on arrival in the New World. These contractors also provided a bond to guarantee that transportation would take place. Ships’ masters would certify the receipt of the convicts from jail, and obtained landing certificates on arrival in America from the governor or chief customs house officer of the appropriate colony. These certificates were then returned to the courts as evidence that the sentence had been carried out. Additionally, after 1718, the initial cost of transportation was borne by the state, not the contractor, facilitating the removal of prisoners who were unlikely, because of their poor physical or mental condition, to secure a good price across the Atlantic. Thus, in 1718, Jonathan Forward was awarded a contract to take London convicts to Maryland for five pounds a head, the fee to include guards and leg irons to secure them in the ships.[7] It has been estimated that the average government expenditure for each eighteenth century transport was at least six pounds.[8] As a result of these changes, whole shiploads might be dispatched at a time, such as the 130 convicts who were taken from Newgate in September 1731.[9] Shipments that ran into three figures were quite normal from London (though the city also acted as a marshalling point for convicts from adjacent counties).[10]
From the moment sentence was passed, any escape from lawful custody constituted a ‘return’, the penalty for which was death. Indeed, early concern that those who escaped prior to arriving in America might claim that they had not ‘returned’ from transportation, led to a statute in 1720[11] making it clear that they, too, would be subject to death.[12] As a result, in 1782, Thomas Nowland was convicted of returning from transportation after escaping from Newgate, where he had been sent shortly after receiving a sentence of seven years transportation. At the same Sessions, Robert Sideaway was convicted of returning despite having escaped from the Old Bailey Court itself, immediately after receiving the same sentence. His counsel argued that, as he had never been returned to jail from the court, he should not be deemed to have been subject to the sentence. This was swiftly rejected by the presiding judge, who observed that if the transporting ships ‘should be ready in the river [after sentence], the court would probably prefer that mode’.[13]
It is impossible to determine precisely how many convicts were sent to America in total. Some figures place it at as many as 50 000 people from England alone after 1650. The most plausible estimate suggests that 36 000 convicts were transported from England between the advent of the 1718 Act and the Revolution of 1776. Whatever the figure, the proportion coming from London or its immediate environs (even if not originally born in the area) was particularly high. One assessment suggests that those from the Metropolis and the South-Eastern counties made up half the total English figure.[14] As a result, Metropolitan penal practise was transformed after 1718, perhaps unsurprisingly, given that the City and its Aldermen had been a motive force behind the Act’s introduction.[15] Thus, there were no sentences of transportation passed at the Old Bailey in the four years prior to 1718 (as might be expected, given the bucolic nature of the few crimes for which it could be imposed). However, in 1718, almost 140 sentences of seven years were passed. The following year, there were nearly 200. Between 1718 and 1776, approaching 14 000 such sentences were handed down at this one court. Of these, about 9 000 were given to men, and something under 5 000 to women. The proportion of women is much higher than the national pattern, where about 80 per cent of transports were male.[16] However, given the apparently higher incidence of criminality (or at least prosecution) found amongst eighteenth women living in urban areas, it is not surprising.[17] Additionally, of course, the inferior Sessions for Middlesex (Hick’s Hall), Westminster and the City of London (the Guildhall Justice Room) all passed numerous sentences of transportation pursuant to the 1718 Act. Thus, and typically, after the Westminster Sessions held in April 1750, 10 people were transported.[18] Like the Old Bailey Court, these inferior sessions would be held eight times a year in each of the three locations. Given the incidence of such sentences, it is not surprising that the punishment swiftly entered popular consciousness. In 1724, after Ann Southerwood snatched a watch from a drunkard, ran off and was detained, she immediately (and correctly) accepted that ‘she must cross the water for it’.[19]
Additionally, hundreds of other convicts who had been sentenced to death at the Old Bailey were ordered for transportation (for 14 or more years) as a condition of their sentences being commuted. Even the most serious offences could be treated this way, in special circumstances, including 11 per cent of murders and 30 per cent of highway robberies committed between 1749 and 1771.[20] There were a variety of reasons for such indulgence: youth, commission of a first offence, a minor role in the crime etc. Some were quite esoteric; in 1741, William Duel was reprieved on condition of transportation after he survived his own execution at Tyburn (strangulation not being complete). John Meth was reprieved after his trip to Tyburn proved abortive when the hangman was arrested en route. (Unfortunately, he ‘quickly returned’ to London and resumed his criminal career).[21] In Surrey, between 1722 and 1749, it appears that 43 per cent of men, and 40 per cent of women, convicted of non-clergyable offences and sentenced to death were reprieved on condition of transportation.[22] The proportions were probably similar in the London area; within seven years of the new Act coming into force, the Metropolitan based Bernard Mandeville could note that: ‘... for some years last past, on many occasions, [transportation] has been substituted, and inflicted in the room of capital punishment’.[23] The proportion of death sentences reprieved on condition of transportation increased dramatically over the course of the eighteenth century, so that about half of those capitally convicted in London in the second half of the century had their sentences commuted.[24] Ultimately, almost a fifth of transports were convicts who had been reprieved in this manner. The 17 Old Bailey sessions presided over by Lord Mansfield between 1757 and 1768 are indicative of the punishment’s significance. These saw only 29 people being clergied and branded, 102 were hanged, while fully 448 were transported.[25]
Strictly speaking, forced work in America was not part of the sentence; the convicts’ labour was sold to help cover the merchant’s cost of transporting them, and to secure him a profit, not to match the sentence imposed in England.[26] Those who could afford it, such as the notorious perjurer Elizabeth Canning (who benefited from a public subscription), could buy their own freedom after arrival in America and resume normal life in the colonies. This did not mean, of course, that they could return to England until the expiration of their sentence, as Joseph Derbin discovered in 1763, after he had his freedom purchased by friends. While on board the Neptune, en route to America, he was given a paper witnessed by David Ross from Maryland, one of the men that prisoners were ‘consigned to’, noting that as a result of their payment ‘Joseph Derbin is a freeman’. This also led to a colonial JP granting him a pass so that he could travel freely in the New World. Foolishly, Derbin used his liberty to return to London. When he attempted to argue that his documentation meant that he had a ‘right to be here’, the court was dismissive: ‘You can’t be so weak as to imagine they [the American authorities] have power to reverse the sentence you received here’. He was sentenced to death.[27] However, given that even unskilled but healthy convicts could sell for at least £10, and prices could reach twice that, purchasing their freedom was beyond the means of most transports.[28]
Even before 1718, premature return by convicts had been perceived as a problem. It was feared that many preferred to follow the example of Mary Carleton, a notorious thief and bigamist who was convicted at the Old Bailey, condemned, reprieved and transported to Jamaica, but returned home after less than two years.[29] Similarly, a man who was arrested for shop-breaking in 1678, turned out to have been transported and when: ‘… question’d about his return after transportation, he alleadged several frivolous excuses’.[30] This anxiety increased greatly after 1718. By the 1730s, some observers were openly envious of the penal galleys found in parts of continental Europe, seeing them as a more effective punishment. They feared that many convicts returned within a year as even more incorrigible criminals, and proposed that a system of ‘laborious’ public works be implemented for them instead.[31] Those who were ignorant of the nature of convict labour professed to be astonished that felons in America could prefer the ‘hazards of Hanging, to the pains of industry’. Some attributed it to their inherently malicious natures.[32] In reality, efforts to abscond from forced labour and return home were unsurprising. Convicts were often kept under harsh discipline by their new masters. This may even have got stricter as the eighteenth century advanced and American attitudes towards them hardened. Indeed, several colonies made unavailing attempts to prevent their admission, though these were usually overturned in London. In the years immediately after 1718, convict conditions sometimes differed only slightly from those imposed on voluntarily indentured labourers. Later in the century, they increasingly came to be treated as on a par with black slaves and Indians, sometimes being bracketed with these groups in colonial legislation.[33] They could be whipped or chained, and any convict who ran away and was then caught might expect to be especially severely flogged. Some escapees fled wearing iron collars, and many carried scars on their backs. Indeed, some advertisements for their capture spoke openly of these as an identifying feature, such as the marks of ‘severe whippings’ borne by Sarah Davis in 1758.[34]
The few surviving memoirs written by transports bear testimony to the harshness of their lives (though some may have been apocryphal). Among them is that of William Green, a Londoner, who ran away from his apprenticeship to join a criminal gang in Sherwood Forest, was narrowly reprieved from execution (probably in view of his youth) and transported in lieu. After being convicted at the Nottinghamshire Assizes, in 1762, he was sent down to London to board the ‘Sally’ near the Tower. This ship left for America on 1 May of that year, Green being one of 26 felons onboard. A day out to sea, they were secured below decks for ‘fear of rebelling’, only six being allowed on deck at any time. They arrived in Maryland two months later and were told to wash and comb their hair before disembarking. The convicts were then manacled in pairs and marched to a small town, where the captain put them on public display before selling them. Potential purchasers examined them like cattle, scrutinising their teeth and limbs, asking their trades and the offences for which they were convicted. Green was sold quite swiftly to a local planter. With several other transports he worked for this master for six days a week; they grew their own food on the seventh. Any attempt to escape was punished by increasing their term of service by a multiple of their time at liberty (normal colonial practise), a day for an hour, a week for a day, a month for a week, a year for a month etc.[35] John Lawson had similar experiences when, at the age of 18, he was transported to Rapahannock (now Essex) County in Virginia for 14 years. He was purchased by a tobacco planter, forced to wear a canvas shirt and trousers in the fields, rather than ‘European’ clothes, and was not even provided with shoes. He spent his working day hoeing from sunrise to sunset with more work being provided in a mill after dark. Significantly, perhaps, he was part of a joint team of 18 black slaves and six transports. According to Lawson, his treatment was indistinguishable from that meted out to the Negroes.[36] This is, perhaps, not surprising, black slaves were normally at least twice the price of convicts, because of their (usually) greater physical capacity, unlimited period of service and the fact that their progeny would also be slaves.
Of course, it is probable that those with more benign masters would be less likely to attempt to escape, though even then, simple homesickness could be a powerful motive. William Barton, a Metropolitan robber, became the ‘darling’ of the master who had purchased him (for £18), and was given the easy task of supervising the black slaves on his plantation. Despite this, the loss of his wife, friends and ‘his beloved London’ led him to return.[37] Similarly, in 1744, Samuel Ellard, who was arrested three years into his sentence of transportation, told his captor that he had been comfortably employed as a butcher while in America, and: ‘… lived very well, but could not be easy till he returned to his native country’. To escape, he had apparently swum a river and lived on the flesh of a single squirrel for three days.[38] It is not surprising that after 1718 concern swiftly grew that the deterrent value of the punishment was being attenuated by such individuals.[39]
Many, probably the majority, of those who ran away from forced labour remained in America rather than attempting to go home, perhaps moving to a different colony where they were unknown and where the numerous advertisements in colonial newspapers, giving personal details, that usually followed escapes, were unlikely to be widely read (though there were regular instances of cross-border recapture).[40] However, others combined escape with a return to Britain. In the middle of the century, John Poulter, a notorious professional thief, explored some of the means whereby this occurred. According to Poulter, those who had money or wealthy contacts (perhaps fellow gang members) would pay the ship’s captain or merchant for the transport’s labour, before he left England; this usually cost about ten pounds. The convict would then get a certificate stating that he was free to go when he got to America. Once there, he could buy his passage back to England on one of the ships that left every week (though obviously not the one on which he had arrived). Few questions were asked about such people; if they had the money ‘they are refused no ship’. This appears to have been the procedure used by Joseph Derbin. Those without such resources could work their passages back. If Poulter is to be believed, there were even instances of convicts illegally purchasing their freedom without going to America, a view that was shared by Bernard de Mandeville, who was convinced that the country’s ‘subtle criminals’ had discovered numerous ways to avoid their sentences altogether. This is borne out by some Old Bailey cases. Thus, Edward Crawley was sentenced to transportation in July 1732, but found at large a year later. The Court asked whether he actually was ‘carried on board or delivered to the Care of the Merchant who was to Transport him’. The evidence was doubtful.[41] Additionally, although merchants who contracted to carry transports were supposed to take all convicts offered by the courts, feeble and unskilled prisoners yielded little profit, and it is possible that some were quietly released. Convicts without the money to buy even their freedom would have to escape following purchase. Even so, according to Poulter, for many convicts being transported was merely ‘four or five months pleasure’.[42] As this comment also suggests, most convicts who went home appear to have done so relatively early in their sentences: Bernard de Mandeville was convinced that many ‘returned again by the first shipping’.[43] This was appreciated by their American purchasers; Lawson’s new master had him chained while taking him up river to his plantation.
Despite such precautions, convicts proved adept at escaping, especially in the early years, when the new system had ‘teething’ problems. Some did not even reach America. As a result, in September 1720, the first cases of returning early from sentences of transportation passed under the new Act began to crop up at the Old Bailey. Thus, James Holliday and Anthony Goddard escaped from their ship following an apparent convict mutiny, after which they forced the vessel into Vigo in Portugal, before heading for London.[44] In March of 1721, a group of eight returnees, were tried together and convicted.[45] Things did not improve in 1722, when William Sladden failed to even get out of territorial waters, having joined 19 other transports in making a ‘rising and got off in the Downs’.[46] Some would take more drastic measures to escape. In October 1734, several convicts who were embarked in Bristol, and secured below decks, used a ballast stone to loosen a plank in the ship’s hull, so that it sprang a leak; they then shouted out that the vessel was sinking. This prompted the ship’s master to run the boat ashore to save himself and his crew. The six convict survivors confessed that the holing of the vessel was done so that they ‘might have an opportunity all to make their escape’.[47]
Other convicts made the decision to abscond shortly after their arrival in America, perhaps concluding that the masters who had purchased their labour were harsh, or that their own appetite for such work was low. However, escaping was fraught with difficulties. The terrain was often wild and plantations remote. In the 1730s, a reward of between 30s and £5 might be offered for their capture and a system of magistrates’ passes meant that documentation was often necessary to move any distance (at least in theory).[48] After fleeing, convicts would normally travel at night and hide in woods during the day, until they reached New York, Boston or Philadelphia ‘in which [places] no questions are asked them’.[49] Some escapees took weapons and disguises to increase their chances. Many others took the tools of their trades, so that they could secure future employment. About half escaped alone, half in pairs or small groups.[50] When they fled with others, it was usually with fellow convicts, rather than with voluntarily indentured servants or slaves. Unsurprisingly, those aged between 20 and 35 were most likely to escape from their masters. This was the most common age for transports. Additionally, they were physically best able to take care of themselves while on the run; over 71 per cent of runaways from Maryland and Virginia fell into this category.[51] Typically, in the 1740s, Henry Simms, who had been shipped to Maryland and sold for twelve guineas, escaped within days, taking his master’s horse one night and riding thirty miles across bad roads to the coast. There, he abandoned the animal and hailed a ship that was lying off shore. This vessel, being short of hands, picked him up and offered to let him work his passage home. Once there, he resumed his criminal career as a highwayman.[52] Similarly, William Parsons, who was transported in 1749 for counterfeiting, escaped shortly after reaching Maryland, turned highwayman while still in America and, with the money he robbed, returned to England where he continued his criminal activities.[53]
Before the American Revolution broke out in 1775, almost a thousand convicts were being sent across the Atlantic every year, despite the sentence having been in decline since the early 1760s. This immediately became impossible, although the courts, including the Old Bailey, continued to pass sentences of transportation that stipulated the American colonies until well into the 1780s. In 1776, as a temporary expedient, the government introduced the use of ‘hulks’, the hulls of old warships, moored in the Thames (and later in other harbours), as short-term receptacles for those sentenced to transportation. Frequently, their inmates would spend their days ashore, employed in guarded working parties engaged in tasks such as embanking and dredging, returning to the vessels at night. By a statute of 1776[54] any convict who was liable to be transported could, ‘in lieu thereof’, be punished by being sent to a hulk. In the case of those transported to seven years, this could be for between one and five years; for those transported for 14 years, for between one and seven years. John Howard counted at least 1937 convicts as being aboard such vessels in 1788. However, as the country’s fortunes waned in the American war it became obvious that these ships would not be a temporary measure, and attempts were made to find another permanent destination. The 1776 Act expressly provided that convicts liable to be sent to America could be transported to ‘any parts beyond the sea’.[55] The West coast of Africa (especially the area around the Gambia River) was one of a number of destinations considered, a few individuals even being sent there.[56] Judges sitting at the Old Bailey were aware of these attempts to find a suitable foreign location, and several passed sentences during the 1780s that stipulated Africa as the prisoner’s allotted destination.[57] However, few, if any, went from London to that continent.
Eventually, Australia was selected and the ‘first fleet’, carrying over 700 convicts, left England in May 1787, arriving at Sydney Cove in January 1788.[58] However, it seems that few, if any, cases of returning from Australia came before the Old Bailey prior to the end of the century. This is not surprising, given the huge distances involved and the much lower level of shipping making the arduous journey around the world. Nevertheless, several people did escape from Botany Bay prior to 1800. Amongst them was Mary Broad, who sailed with the first fleet, escaped with several other convicts after stealing the governor's boat, and reached East Timor. There, however, they were arrested and taken back to England. On arrival, Broad was sent to Newgate but, with the assistance of James Boswell, secured a pardon in May 1793. Others seem to have reached British controlled Bengal, from whence they were formally banned by the Governor General in 1802.[59] Although John Fisher was convicted in 1796 of returning from a seven-year sentence of transportation to New South Wales, 14 months after the original sentence, it seems unlikely that he had actually gone to Australia.[60]
Botany Bay took only a selection of convicts, chosen by reference to age, health, skills, gender and sentence, so that the Hulks remained in existence for decades after 1788, and there continued to be numerous cases of convicts ‘returning’ from them; effectively, given that they were only just offshore, this meant any escape from a vessel, or working party when ashore, constituted the offence. It is not surprising that many of their inmates should have attempted to get away. The conditions aboard such vessels were appalling. In 1779, the magistrate Henry Zouch pointed out that a quarter of those who had been committed to them in the ‘full vigour of health and strength’ were dead within 20 months. He was particularly alarmed at the rumoured lack of bedding, general squalor, absence of divine service and reports that the inmates lived on rotting piles of offal. In these circumstances, he felt: ‘… we cannot be surprised at the desperate attempts which are made by the prisoners of restoring themselves into liberty’.[61] Even when their conditions improved slightly, in the 1780s, they were considered schools of vice in which inmates corrupted each other and were corrupted by their guards.[62] Indicative of this, in 1799, Robert Richardson escaped from a hulk that was moored in Portsmouth harbour, within days of his arrival. He returned to Shadwell, where he gave himself up to a local constable, asking to be sent to Botany Bay rather than remaining ‘among them that he was among’. Although convicted, the jury recommended that his death sentence be reprieved ‘on account of his ingenuous conduct’.[63] In the same year, John Brown, who escaped within a couple of months of being committed to a hulk, was less fortunate. Brown could only advance in his defence that: ‘I was sent to Langston-harbour, and was there starving alive, and a hundred of us besides, and I found means to get away’. He was sentenced to death.[64]
Returnees were caught for a variety of reasons. Most commonly, though, it was because they went back to their old ‘haunts’, and were identified to the authorities by those who already knew them, or because they came to notice when detained after committing fresh crimes. It is, perhaps, natural enough that many would make the journey back to familiar surroundings, though this would greatly increase their risk of detection, especially if they had made enemies in such areas. Thus, Jane Martin, a notorious fraudster who returned to London, found that she had: ‘… exasperated many people against her, who as soon as it was rumoured that she was come back again, never left searching for her until they found her out’. She was arrested and convicted for returning, being executed in 1726.[65] However, for most Metropolitan returnees, going to a different part of the country would have defeated the very object behind their escape. Additionally, the capital was more likely to provide employment, whether legitimate or illicit. London was also a magnet for returnees from throughout the British Isles. Many would gravitate to its relative anonynimity, as well as the criminal opportunities offered by its extensive underworld. There was no guarantee that they would be safe in the capital. Nevertheless, it usually required ill fortune (or a loose tongue) for such convicts to be detected, especially if they refrained from further criminal ventures. Thus, Eleanor Conner was found in London in 1754, almost six years into a 14-year sentence imposed at the Bristol gaol delivery in lieu of death. By enormous bad luck, James Perrit, the Bristol night constable who had arrested Conner and seen her convicted, came to London on business and noticed her in the street.[66]
Financial incentives account for the exposure of many transports in the Metropolis. In the 1760s, the standard reward for securing the conviction of a returnee was £20.[67] As with other felons, this made them the targets of professional ‘thief-takers’, as well as members of the general public keen to make some extra money. The value of such incentives was well known to the authorities. Indeed, in 1751, a House of Commons Committee led by Sir Richard Lloyd appointed to ‘Revise and Consider the Laws in Being Which Relate to Felonies’ recommended enhancing the payment given for apprehending returnees, as well as proposing that the: ‘Method of convicting of such Offenders should be rendered more easy and less expensive’.[68] Several transports, such as Samuel Ellard, were taken by Stephen McDaniel, one of the capital’s most notorious thief-takers. Some of them appear to have specifically targeted returnees, making money from blackmail as well as rewards. Thus, according to one Old Bailey witness, James Sullivan made part of his living in the 1760s as a specialist who ‘takes young fellows up for returning from transportation’. The father of another suspected returnee claimed that when Sullivan and an associate arrested his son they tried to extort money from him: ‘Sullivan proffered to let him go, if I would give them five guineas’.[69] John Claxton, a thief and, apparently, multiple returnee, was also captured in London by such a bounty-hunter and prosecuted to his death.[70] James Hancock, caught by thief-takers in 1772, did not even bother to deny his guilt: ‘… they are determined to have my life for the reward; it don’t signify opposing them’. His candour, combined with popular distaste for his captors, may have prompted the jury to issue a rare recommendation for mercy with their guilty verdict. Later in the century, the new professional ‘patrols’ attached to Bow Street and other police offices, with their full-time constables, also proved adept at catching returnees.
Of the 242 returnees prosecuted at the Old Bailey, perhaps three quarters had received their original sentences from a London court. Thus, of the 11 cases of returning that were heard in the decade from 1760 to 1769, nine had originally been sentenced at the Old Bailey itself. The other two, Ann Perkins and William Brown, had been sentenced at the Leicester and Hertford Assizes respectively. The decade from 1740 to 1749 was somewhat more varied, but still showed a preponderance of Metropolitan sentences. Of the 16 returnees prosecuted whose convicting court can be identified (out of a total of 18), 11 had been sentenced at the Old Bailey. The remaining five had been transported by Assizes and gaol deliveries held at Thetford, East Grinstead, Abingdon, Chelmsford and Kingston (the last two, of course, were within 20 miles of London). As this profile also suggests, as a general rule, the risk of exposure declined with the distance of the convicting court from London, if only because identification was less likely and it was harder to secure evidence of a sentence of transportation from a convicting court.
Re-offending was the other main reason for returnees coming to light in the Metropolis. Typically, in March 1768, William Brown was transported for life at the Hertford Assizes, but appears to have returned swiftly to England and a life of crime. He was caught while burgling premises in London, and convicted at the Old Bailey in June 1769.[71] Where returnees came to light after being apprehended for a crime, they would usually be prosecuted for the ulterior offence (unless it was very minor) as well as for returning. This would increase the prospects of a conviction if there was an evidential deficiency on the main charge. Thus, in 1721, George Baker was convicted of stealing beds, blankets and pillows as well as returning from transportation.[72] Of course, many returnees who re-offended and were then caught must have avoided identification (especially if their convictions were not from a Metropolitan court). In the 1730s, Richard Kibble was reported to have been transported, and then returned to England, as many as five times before being caught, convicted and executed.[73] It was claimed that the notorious pick-pocket Mary Young (Jenny Diver) returned from transportation on at least two occasions; she was certainly transported in April 1738 under the name of Jane Webb.
Of course, not all returnees went back to crime, although they faced extra hazards if they attempted to follow honest employment, something that may have made them vulnerable to re-offending.[74] Some reformed. In 1792, Sarah Cowden, who had been capitally convicted in February 1788, and received a conditional pardon the following year, before being put on board the hulk ‘Lady Juliana’, was found working in Spital Street in the silk industry. The constable who arrested her noted that she had had two children since escaping and that his enquiries indicated that she had also developed a good character since leaving the vessel. Although convicted, she was recommended to mercy by the jury. Their suggestion was strongly supported by the presiding judge, Lord Kenyon, who urged that if freed she continue her reformed life.[75]
Between 1718 and 1799, 242 people were indicted at the Old Bailey for returning from transportation. Thus, the number of cases of returning heard at the Old Bailey made up only about two per cent of the number transported by the same court. When sentences from other Metropolitan courts, and those conditional on reprieve, are taken into account, the figure is probably nearer one per cent. Even allowing that most returnees went undetected, it seems that only a small minority made the journey home, most remaining in America. Of those prosecuted for returning, the vast majority (221) were men. Only about nine per cent were women, well below the 20 per cent that were transported nationally, and the 35 per cent from the London area; this is, perhaps, unsurprising given the difficulties involved in fleeing from remote plantations. It also accords with figures for American runaways. In Maryland, only four per cent of runaways were women, although they made up 40 per cent of the colony’s transports.[76]
It has been argued that returnees only became a statistically significant problem in the latter part of the century.[77] There is some support for this notion, at least in the Metropolitan area. However, in the 1720s, while the system was taking root, there were also serious problems, with about 40 returnees being prosecuted at the Old Bailey. Nevertheless, this then fell to an average of just over 14 cases a decade between 1730 and 1770. By the 1770s (even before 1776), the number of prosecuted returnees was increasing; the impact of the American Revolution, and the advent of the Hulks moored in the Thames, saw an average of 50 cases a decade in the last 30 years of the century. The last convict prosecuted at the Old Bailey for returning, who actually reached America, appears to have been William Herbert, tried in February 1780. After this date, all defendants had, in reality, escaped en route to Halifax, Canada, following a convict mutiny on the ‘Swift’ in 1782, broken out of a holding prison, or, most commonly, been found at large after being sent to one of the offshore Hulks, escape from which was relatively easy. The great majority of those who returned and were prosecuted were also convicted: 184 people or about 76 per cent.
A typical indictment for a returnee apprehended in Middlesex would name the defendant, and specify the offence, time and place of the conviction for which he had originally been convicted and sentenced and then note that the accused man
feloniously, without any lawful cause, was at large within this Realm of Great Britain, to wit, at the Parish of St. Martin in the Fields, in the County aforesaid, before the Expiration of the Term of Seven years.[78]
The Crown had to establish that the ‘returnee’ was the same man or woman as the one convicted on the earlier occasion, that they were under a sentence that had not expired, and that they could be shown to have been ‘at large’ in a public place.[79] With the ‘intent that such conviction may be as little trouble as possible’ it was enacted in 1720[80] that the clerk of the assize or clerk of the peace at courts where orders for transportation had originally been made, would, at the request of a prosecutor, ‘certify a transcript’ containing brief details of the conviction and sentence which would: ‘… on production of it, be a sufficient proof of the former conviction and order for transportation’.[81] If the original sentence had been imposed at the Old Bailey, this posed few problems; if outside the capital it could be harder, with considerable logistical difficulties having to be overcome. Thus, in 1796, Henry Alport, the keeper of the New Gaol in Southwark, came up to London, produced the certificate from the Croydon Assizes where a prisoner had been convicted and sentenced to transportation, confirmed that he had been present that day at the court and seen the defendant found guilty, and also that the certificate had been personally signed in his presence by the clerk to the Croydon court.[82] A copy of the certificate appears to have been inadequate.[83] The technical requirements of the offence provided an escape route for several defendants. In 1765, Richard Swift, who had been transported at the Old Bailey for 14 years in 1764, was arrested in Coventry and put on trial: ‘… but by some-mistake, either in the indictment or record, he was there Acquitted’. He was then returned to the Old Bailey, where he admitted that he was the person mentioned in the 1764 order, and was remanded back to Newgate, to await re-transportation.[84] Defences were usually based on negating one or more of the crime’s essential elements.
The most common and successful defence, especially in the first thirty years after 1718, was for the accused man or woman to deny that s/he was the same person as the individual allegedly transported. Some, like John Creamer in 1772, produced vague stories of having spent their lives in remote parts, far from London, or having moved about the country, presumably hoping that this would make establishing their true identity harder. During the 1750s, of the five people acquitted at the Old Bailey of returning, three had denied that they were the convict sent across the Atlantic. In all of these cases, the accused stood trial under the name of the original transport, and also under the name that they claimed for themselves. Thus, in 1751, Thomas Smith was indicted as being ‘otherwise Clark’.[85] In an era of very limited bureaucratic capacity, difficult communications and devoid of access to fingerprinting, it could be hard to confirm identity to an appropriate standard.
To establish identity, the Crown would usually call one or more witnesses who had seen the accused man sentenced at the earlier hearing. This could be a court officer, gaoler, or the victim of the original offence etc. Ideally, they would call several of them to do this. However, getting witnesses from provincial assizes to confirm identification was particularly troublesome, and such thoroughness was most common where the transportation had been ordered (for at least 14 years) in lieu of execution for a serious crime. Thus, great pains were taken to confirm the identity of Eleanor Conner, who was alleged to have returned almost 6 years into a 14-year sentence imposed at the Bristol gaol delivery where she had initially been sentenced to death. Thomas Stokes, the town-clerk at Bristol, attended the Old Bailey to confirm that he had witnessed her conviction at the original hearing. Additionally, John Mason, the gaoler of Bristol’s Newgate prison, attended court to give evidence that the defendant had been held in his custody for almost two years before being transported, to say that he, too, had been in court when she was convicted, and that he remembered her being put on board ship for America. Similarly, James Perrit, a night constable from Bristol was called to confirm her being tried and convicted of pick-pocketing there, that he saw her receive the death sentence and was also present when she begged for a Royal pardon, and received a sentence of transportation. Given the plethora of evidence available, it is, perhaps, unsurprising that the accused woman was not successful in her claim that she was ‘not the person’, despite her strange claim that she had heard that the ‘real’ Eleanor Connor had been drowned crossing the Atlantic.[86] In emergency, anyone who might confirm identity could be pressed into service by the prosecution. Thus, at Joseph Derbin’s trial in September 1764, the Court found itself short of a witness to ‘prove the prisoner to be the identical person mentioned in this Record’. They decided to have recourse to the Court Shorthand writer, Thomas Gurney (presumably there recording details for the Old Bailey Sessions Papers), on the basis that he ‘must remember the prisoner being tried here’. Very reluctantly ‘considering the place I am in here, I should be glad was I never to be call’d upon to give evidence on such an affair as this’ he agreed, and confirmed the identification.[87]
Occasionally, as with Mary Quin in 1751, the prosecution would fail to call an identifying witness at all, so that: ‘There being no proof of the identity of her person, she was acquitted’. More commonly, even if a witness was called, s/he would fail to come up to proof, perhaps deliberately to avoid having an execution on their conscience, or because the passage of time had genuinely clouded their memories. Thus, in 1751, the principal identifying witness against Thomas Smith, the prosecutor from his original trial, merely: ‘… believed the prisoner to be the person he had convicted in the April sessions, 1749 but he would not swear it, [so] he was acquitted’.[88] In 1744, Samuel Ellard, who was found three years into his sentence of transportation, would also have escaped because the two witnesses from his original trial who were called ‘could not be positive he was the identical person’. Unfortunately, the thief-taker who arrested him, armed with his certificate of conviction, claimed that the defendant had admitted to being the man identified in the document. This was enough to convict him.[89]
Under the original Act, the King could ‘at anytime pardon, and dispense with any such transportation, and allow the return of any such offender or offenders from America’.[90] However, in exceptional circumstances, less formal excuses would be accepted for returning to England. This usually required the cause to have been beyond the convict’s control, and, preferably, some official involvement. The onus for proving such a lawful excuse seems to have been on the accused, something that was becoming normal practise in English law where a defence was ‘peculiarly within the knowledge’ of the defendant.[91] In September 1746, Thomas Huddle was acquitted for returning from Virginia because he was able to call two witnesses to prove that he had been pressed into the navy there, and had even attempted to run away from his allotted vessel before it sailed from America. After his hearing, one of the sailors who had given evidence in his support ‘took him away again immediately on board his Ship’.[92] Similarly, in 1776, Benjamin Payne was acquitted after being found ‘at large’. However, it appeared that the ship in which he was being transported to America had been lost at sea, that he escaped from the wreck and got ashore in Portugal. He was then sent back to England from Lisbon, with a pass from the British consul, which was duly produced in court.[93] During periods of conflict, French or other warships and privateers might attack vessels transporting convicts, sometimes capturing their crews. Thomas Sutton’s ship had been taken by the French while en route for America and carried into Port Lewis, from whence he was sent back to England ‘in a cartel-ship as a prisoner of war’. As a result, he, too, was acquitted, and again ordered for transportation.[94] William Lee’s case was even more unusual. He was arrested with only a year to go on his sentence and ran a double defence. In the first place he denied that he was the man sent to the Americas six years earlier. Additionally, however, he pointed out that he had been forcibly sent to England from the colonies to serve a sentence in the Marshalsea prison for incompetence while serving as pilot to HMS Monarque while she was in the Halifax River in 1755, as a result of which the ship was lost. Consequently, the prisoner could claim: ‘I am not the man, but supposing I was, I was brought back contrary to my inclination; by sentence of a court martial in America’. When his claim was confirmed by a turnkey from the prison (traditionally used for Admiralty cases), he was found ‘not guilty’.[95] William Harding’s patriotic motives were also accepted. He had been sent to America in 1773, but deserted after his purchaser, an officer in the Revolutionary armies, forced him to serve with the rebels. This seems to have swayed the Old Bailey jury, which acquitted.[96]
Nevertheless, most ‘excuses’ were rejected. Unsurprisingly, Richard Parsons was unsuccessful in 1751 when he claimed that he had come back to England to ‘get assistance from his friends, after which [he promised] he’d return and abide there for ever, pursuant to the sentence passed upon him’.[97] However, more ingenious excuses were also swiftly rejected. Thus, in 1753, Peter Ticknor claimed to have been taken prisoner while on his voyage to America, detained in Hispaniola, pressed for an English warship, discharged during a truce, resided in Boulogne and only to have returned to London to warn the Duke of Richmond of a murder plot. He, too, was convicted.[98] Even claims to patriotism during the American Revolution were not necessarily effective. In 1780, William Herbert was convicted and sentenced to death, five years after being transported. Herbert freely admitted that he was the man sent across the Atlantic, but pointed out that he had been compelled by the revolting Americans to take up arms against his own country, took the first opportunity to desert to the King’s troops, and accepted the offer of a free pardon (for revolutionary activity) and permission to return to England from Lord Cornwallis. He produced a certificate to this effect issued by General Pigot. However, it clearly did not extend to convicts, and he was sentenced to death.[99]
A crucial element in the offence was being ‘at large’ after the sentence had been imposed. This meant being at liberty in a public place. Thus, a convict who was identified while in custody in England after being transported was not guilty of the offence. The Old Bailey court was a stickler for this requirement, insisting on direct evidence on the issue and refusing to infer that a convict must have been at large at some point in even quite blatant cases. Edward Merriot, indicted for returning early from a sentence of transportation originally imposed at Hick’s Hall, appears to have come to the authorities’ notice because he was arrested and committed to the New Prison for house-breaking. There, he was spotted by an observant turn-key, James Emms, who had seen him during his earlier incarceration in the same jail. Merriott was well aware of the danger that he was in; as soon as he saw Emms he: ‘… ran and hid himself, because he knew that I knew him’. However, and fortunately for Merriott, although the original prosecutor identified him as the same man as the one transported, and all the documentation was in order, Emms, as he freely admitted, had only seen the defendant in prison, not ‘at large’. No other witness who had done so was available at court. Consequently: ‘As no evidence was given of his being seen at large since his being transported, he was acquitted’.[100]
The need for being seen at large seems to have been appreciated by many prosecution witnesses. Thus, in 1774, Robert Angus was sentenced to transportation for seven years by the magistrates sitting at Hick’s Hall, but was back in London within a year. There, he picked a man’s pocket of a watch, was pursued and detained. At the Old Bailey, the man who arrested him stressed without prompting that Angus ‘was not in custody till I stopped him’.[101] However, because it was what modern criminal lawyers would call a ‘state of affairs’ crime, an acquittal did not necessarily preclude a subsequent prosecution, if an individual was later seen at large and arrested. This produced some strange consequences. Thomas Brown was prosecuted in September 1765 for returning from a sentence of transportation imposed at the Old Bailey in December 1763. He denied that he was the same man, calling his father to establish that he was, and had always been, known as William Dukes. However, after his acquittal, he immediately
acknowledged himself to be the person transported by the name of Thomas Brown, tried in December sessions, 1763. … [and] desired to be continued in Newgate to go with the transports to serve out the remainder of his time.
As long as he remained in custody, he could not be prosecuted for ‘being at large’.[102]
Occasionally, for some reason, a transport would return slightly early, but after apparently spending a substantial period abroad (or, alternatively, be caught long after they had returned home). In these cases, the courts might be more sympathetic, especially if the period remaining on the sentence was very short. Thus, in 1747, Thomas Butler was indicted for returning six years and ten months into his seven-year sentence. However, the court decided that the original order for his transportation was ‘flawed’ and he was acquitted. It would appear that the judges had regard to legal nicety to serve the interests of justice in this case.[103]
The original statute of 1718 imposed death as the automatic penalty for those returning from transportation, in the same way that it was for anyone else accused of a felony outside benefit of clergy.[104] Obviously, those who returned early were unlikely to get a second chance of mercy, especially where their original transportation was a condition imposed for commuting a death sentence. Further clemency would have undermined the punishment. Thus, Richard Parsons, an old Etonian and the son of a Baronet, who had been sentenced to death for forgery and pardoned on condition of transportation to America for the rest of his life, returned in 1751, was identified by a chance encounter and indicted. At trial, he begged for mercy, claiming that he came back temporarily to get assistance. However, when he asked for a favourable recommendation from the presiding Judge, he was told that to those ‘guilty of such an offence as his, mercy was very seldom extended’.[105] Although his well connected father and wife used ‘all their interest’ to obtain another pardon for him, they were unsuccessful, and he was hanged at Tyburn the month after his conviction.[106]
Nevertheless, clemency was sometimes shown to returnees. Indeed, in exceptional circumstances there might be a recommendation for mercy by the trial Jury, as occurred with John Bagnall in 1772. Bagnall had been convicted and sentenced to seven years transportation at the Nottingham Assizes in 1770, being put on board ship near the Tower in the same year. However, it seems the vessel was wrecked off the Scilly Islands and he was saved by another ship, which brought him back to Plymouth. From there he returned to his former master in London. He failed to surrender promptly to the authorities (which would have provided him with a lawful excuse) though he claimed to have asked his employer whether he should give himself up to a magistrate. He was eventually caught by a thief-taker.[107] If John Howard is to be believed, of the 31 people found guilty at the Old Bailey of returning from Transportation between 1749 and 1771, only 22 (71 per cent) were actually executed, the remainder being pardoned (probably contingent on re-transportation) or dying in prison.[108]
Transportation provided an intermediate punishment between death and immediate release that was almost as effective at ridding the kingdom of criminals as execution, yet without occasioning the considerable costs entailed in long-term penal imprisonment, the only realistic alternative and its eventual replacement.[109] At a popular level, it was widely feared, and there were even instances of convicts refusing to accept it in lieu of execution. After a troubled first decade, the system appears to have settled down and worked relatively smoothly, from an English perspective, until the crisis engendered by the 1770s, though whether the punishment was worth the acute ill feeling it engendered amongst many Americans, and which contributed to that crisis, is, of course, another matter. The legal framework established after 1718 was sufficiently effective to be preserved, to a significant degree, during the following century, when attention switched to Australia.
It is unsurprising that some transports found their lives in America intolerable and sought to escape back to England generally, and to London in particular. The conditions were harsh and those from urban areas must have found heavy agricultural labour especially difficult. At the same time, escape was a viable option. For professional criminals, at least, returning seems to have posed few problems, while for ordinary felons who were young, male and sufficiently determined it was certainly a realistic ambition and for the remainder, a possibility. However, the number who actually returned to London appears to have been relatively modest. Of course, many, probably the majority, of those who did come back must have avoided exposure in the Metropolis, especially if they had originally been convicted in the provinces, delayed their returns, avoided re-offending and were constantly on their guard. Even so, the relative paucity of prosecutions would suggest that it was not a popular option. Doubtless, once the initial shock of relocating to foreign shores had been surmounted, the economic opportunities of the New World proved attractive, even for runaways; as one defendant pointed out, when claiming that he had been returned to England against his will, American wage levels were almost twice those available in London. Escape from the hulks was, of course, much easier and rather more common.
Exile was a novel punishment in England, unknown at common law, its only historic parallel being the medieval abjuration process (like transports, abjurors faced execution if they returned). Because of this, the courts had to work out its legal ramifications as they went along in the years immediately after 1718, gradually developing a complicated body of case law exploring the punishment’s parameters. Ostensibly, those who were caught could expect no mercy, something that was necessary for deterrent purposes. However, although many contemporary observers felt that ‘few or none’ of those prosecuted for returning escaped death, this was not quite the reality.[110] The courts observed legal propriety fairly carefully, insisting that the considerable technical requirements of the offence be met and that the accused be firmly identified, so that although (unsurprisingly) conviction rates were much higher than for other felonies, almost a quarter of those indicted escaped. When the significant numbers who were reprieved, after being convicted, are added to the total, it seems that about 40 per cent of those prosecuted avoided execution. Understandably, however, this was not something that the authorities chose to publicise.
[*] MA, DipL, LLM, PhD, Barrister. Senior Lecturer, Kingston University Law School, England.
[1] The published reports of this court’s proceedings, the Old Bailey Sessions Papers (hereafter cited as OBSP), are now available online at www.oldbaileyonline.org. However, some caution must be exercised in using the site’s search engine, as, inevitably in such a huge project, mistakes, such as ‘double counting’ and mis-categorisation, have crept in. For a general discussion of the value and limitations of these reports, see J H Langbein, ‘The Criminal Trial Before the Lawyers’ (1978) 45 The University of Chicago Law Review 263-316.
[2] J A Sharpe, Crime in Seventeenth Century England (1987) 147.
[3] 4 Geo I, c 11.
[4] OBSP, 11 December 1678, Trial of Susan Banster.
[5] J M Beattie, Crime and the Courts in England 1660-1800 (1986) 471.
[6] Ibid 504-505.
[7] J M Beattie, Policing and Punishment in London: 1660-1750 (2001) 430. Because of their labour intensive form of agriculture, Virginia and Maryland were the most common convict destinations, though Pennsylvania took a significant number, and most American colonies took occasional batches. By 1718, the West Indies had largely moved to a slave economy.
[8] J Innes, ‘The Role of Transportation in 17th and 18th Century English Penal Practice’ in C Bridge (ed), New Perspectives in Australian History (1990) 14-15.
[9] Grub-Street Journal, 30 September 1731.
[10] J D Butler, ‘British Convicts Shipped to American Colonies’ (1896) 2 American Historical Review 24.
[11] 6 Geo I c 23.
[12] W Hawkins and T Leach, A Treatise of the Pleas of the Crown (7th ed, 1795) vol 1, 403.
[13] OBSP, 16 October 1782, Trial of Robert Sideaway.
[14] See on this A R Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1718-1775 (1987).
[15] Beattie, above n 7, 429.
[16] A R Ekirch, ‘Bound for America: A Profile of British Convicts Transported to the Colonies, 1718-1775’ (1991) reproduced in Crime and Justice in American History, vol 1, 99.
[17] J M Beattie, ‘The Criminality of Women in Eighteenth Century England’ (1974) 8/4 Journal of Social History 96.
[18] Sessions held at Westminster 1750, Sessions Book No 1072, 44, held at Westminster City Archives, London.
[19] OBSP, 26 February 1724, Trial of Ann Southerwood.
[20] Ekirch, above n 14, 35.
[21] London Journal, 6 May 1726.
[22] Innes, above n 8, 4.
[23] B De Mandeville, An Enquiry into the Causes of the Frequent Executions at Tyburn (1725) 46.
[24] L Radzinowicz, A History of English Criminal Law and its Administration from 1750 (1948) vol 1, 147-151.
[25] P Linebaugh, The London Hanged: Crime and Civil society in the Eighteenth Century (1991) 360.
[26] B Kercher, ‘Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700–1850’ (2003) 21(3) Law and History Review 527-585.
[27] OBSP, 12 September 1764, Trial of Joseph Derbin.
[28] A G L Shaw, Convicts and the Colonies (1966) 35. To put monetary value into some perspective, in the early and middle years of the century, a male labourer’s weekly earnings in London ranged between 9s. and 12s. A highly skilled craftsman, such as a jeweller or chair-carver, might earn over £3. G Rude, Hanoverian London: 1714-1808 (1971) 88.
[29] J L Rayner and G T Crook, The Complete Newgate Calendar (1926) vol. I, 264-268.
[30] OBSP, 16 January 1678, Trial of unnamed man.
[31] A Hayward (ed), Lives of the Most Remarkable Criminals who have been Condemned and Executed for Murder, the Highway … (1927) 293.
[32] Anon (undated), A Method Whereby Criminals liable to Transportation may be render’d not only honest but Honest members of the Publick, London, 2.
[33] A Atkinson, ‘The Freeborn Englishman Transported’ (1994) 144 Past and Present 88-115.
[34] K Morgan, ‘Convict Runaways in Maryland, 1745-1775’ (1989) 23 Journal of American Studies 253-268, 259.
[35] W Green, The Suffering of William Green, Being a Sorrowful Account of his Seven Years Transportation (1774) 1-12.
[36] J Lauson, The Felon’s Account of his Transportation At Virginia in America (1969) (originally published c 1753) 6-9.
[37] Hayward, above n 31, 20-27.
[38] OBSP, 17 October 1744, Trial of Samuel Ellard.
[39] Mandeville, above n 23, 47.
[40] Butler, above n 10, 27.
[41] OBSP, 10 October 1733, Trial of Edward Crawley.
[42] J Poulter, The Discoveries of John Poulter, alias Baxter (7th ed, 1753) 28.
[43] Mandeville, above n 23, 47. He suggested swapping Transports for white Barbary slaves held in Morocco as an alternative punishment.
[44] OBSP, 7 September 1720, Trial of James Holliday.
[45] OBSP, 1 March 1721, Trial of John Filewood et al.
[46] OBSP, 7 September 1722, Trial of William Sladden.
[47] Read's Weekly Journal, or British-Gazetteer, 12 October 1734.
[48] G Morgan and P Rushton, Eighteenth-Century Criminal Transportation: The Formation of the Criminal Atlantic (2004) 63.
[49] J Poulter, The Discoveries of John Poulter, alias Baxter (7th ed, 1753) 28.
[50] Morgan, above n 34, 260-261.
[51] Ekirch, above n 14, 241.
[52] Rayner and Crook, above n 29, vol III, 145-147.
[53] Rayner and Crook, above n 29, vol III, 262.
[54] 19 Geo 3 c 74.
[55] Hawkins and Leach, above n 12, 402.
[56] Shaw, above n 28, 42-43.
[57] See, for example, OBSP, 10 April 1782, Trial of Patrick Madan.
[58] The debate about its destination had entered popular consciousness well before the fleet’s departure. In December 1786, Joseph Woolley, a soldier, stole garments from the lodgings where he was billeted. When questioned by a JP, he said that he did it: ‘… to go to Botany Bay; for he was tired of the military law, and was determined to go there’.
[59] The Times, 14 September 1802, 3.
[60] OBSP, 6 April 1796, Trial of John Fisher.
[61] H Zouch, Observations upon a Bill Now Depending in Parliament (1779) ix and 29.
[62] Howard, An Account of the Principal Lazarettos in Europe (1789) 216.
[63] OBSP, 11 September 1799, Trial of Richard Richardson.
[64] OBSP, 30 October 1799, John Brown.
[65] Hayward, above n 31, 381.
[66] OBSP, 27 February 1754, Trial of Eleanor Connor.
[67] W Stubbs and G Talmesh, The Crown Court Companion (3rd ed, 1762) 511.
[68] Journals of the House of Commons (1803 reprint), 1751/04/23/ vol 26, 190.
[69] OBSP, 18 September 1765, Thomas Brown.
[70] Hayward, above n 31, 366.
[71] OBSP, 28 June 1769, Trial of William Brown.
[72] OBSP, 6 December 1721, Trial of George Baker.
[73] Morgan and Rushton, above n 48, 63.
[74] Innes, above n 8, 16.
[75] OBSP, 31 October 1792, Trial of Sarah Cowden. (Doubtless, her parish also did not want to be burdened with her young children).
[76] Morgan, above n 34, 255.
[77] Beattie, above n 5, 540-541.
[78] Stubbs and Talmesh, above n 67, 510.
[79] OBSP, 5 December 1746, Trial of Henry Thomas.
[80] 6 Geo 1 c 23 f 7.
[81] Hawkins and Leach, above n 12, 402.
[82] OBSP, 17 February 1796, Trial of Thomas Atwell.
[83] OBSP, 15 January 1777, Trial of Thomas Floyd.
[84] OBSP, 17 April 1765, Trial of Richard Swift.
[85] OBSP, 17 April 1751, Trial of Thomas Smith.
[86] OBSP, 27 February 1754, Trial of Eleanor Connor.
[87] OBSP, 12 September 1764, Trial of Joseph Derbin.
[88] OBSP, 17 April 1751, Trial of Thomas Smith.
[89] OBSP, 17 October 1744, Trial of Samuel Ellard.
[90] Hawkins and Leach, above n 12, 402.
[91] See Bayley J in R v Turner [1816] EngR 587; (1816) 5 M & S 206.
[92] OBSP, 3 September 1746, Trial of Thomas Huddle.
[93] OBSP, 21 February 1776, Trial of Benjamin Payne.
[94] OBSP, 15 January 1748, Trial of Thomas Sutton.
[95] OBSP, 13 September 1758, Trial of William Lee.
[96] OBSP, 15 July 1778, Trial of William Harding.
[97] OBSP, 16 January 1751, Trial of Richard Parsons.
[98] OBSP, 7 June 1753, Trial of Peter Ticknor.
[99] OBSP, 23 February 1780, Trial of William Herbert.
[100] OBSP, 5 April 1758, Trial of Edward Merriot.
[101] OBSP, 13 September 1775, Trial of Robert Angus.
[102] OBSP, 18 September 1765, Trial of Thomas Brown.
[103] OBSP, 29 April 1747, Trial of Thomas Butler.
[104] Hawkins and Leach, above n 12, 402.
[105] OBSP, 16 January1751, Trial of Richard Parsons.
[106] Rayner and Crook, above n 29, vol III, 200.
[107] OBSP, 9 December 1772, Trial of John Bagnall.
[108]. Howard, above n 62, 255.
[109] See on this J Willis, ‘Transportation versus Imprisonment in Eighteenth-and Nineteenth-Century Britain: Penal Power, Liberty, and the State’ (2005) 59 Law & Society Review 171-210.
[110] Hayward, above n 31, 45.
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