Prisoners or Servants? A history of the legal status of Britain’s transported convicts by Alan Brooks Bachelor of Arts (ANU 1967), Bachelor of Laws (ANU 1971), Graduate Diploma in Humanities (University of Tasmania 2007) Submitted in fulfilment of the requirements for the degree of Doctor of Philosophy, School of Humanities, University of Tasmania, February, 2016 This thesis is made available for loan and limited copying in accordance with the Copyright Act 1968. Page ii This thesis contains no material that has been accepted for the award of any other degree in any other tertiary institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due acknowledgement is made in the text of the thesis. Page iii Abstract The transportation of offenders from Britain between 1717 and 1853 depended upon a legal curiosity. In the administration of a criminal justice system, the private derivative proprietary right of the transportation contractor intruded so as to alter the status of the transported offender. The nature of the contractor’s right, enshrined in the 1717 statute 4 Geo I c. 11, though occasionally considered in the literature, has rarely been the subject of any detailed analysis. This thesis sets out to rectify this omission by examining what the contractor’s ‘property in the services’ of a offender actually meant, why it was such a pivotal part of the processes of transportation, how it was transferred to third parties, and with what result. The thesis proceeds through three separate inquiries. In the first, the precursors to the 1717 legislation are reviewed so as to understand whether, and to what extent, the legislation of 1717 was modifying existing practice, or whether it was breaking new ground. The second line of inquiry examines the 1717 legislation, its immediate context, and the development of the scheme of transportation it created up until 1775 and the end of transportation to America. It will be demonstrated that the use of the concept of ‘property in the service’ of transported offenders was but one way of managing transportation and contrasts to the approach adopted in contemporary Ireland. The third line of inquiry re-examines the practices of transportation to Australia. Using contemporary legislation, government papers and legal instruments, a previously unrecognised outline of early transportations to New South Wales emerges. The thesis demonstrates that Page iv the transfer of the contractor’s proprietary right operated differentially from England, Ireland, and Scotland. The thesis argues that the nature of the contractor’s right to the service of transported offenders meant different things at different times. In colonial America it was clear that, through the process of ‘sale’, a transported offender became the servant of the transferee. The position in colonial Australia, however, is shown to be much less straightforward than is portrayed in the literature. Prior to 1824, the processes utilised to assign the contractor’s property in the services of transported offenders, while resting on the same legal framework utilised in America, was intended to transform a convict into a servant of the governor. The evidence considered in the thesis demonstrates that this was not always successful, leaving the status of the offender in New South Wales in some doubt. Only after 1824 was it beyond question that a transported convict was, legally, a prisoner serving a custodial sentence. This thesis enables a better understanding of the processes of transportation, both to colonial America and then to colonial Australia. By examining these processes through the prism of the status of the transported offenders, a more nuanced understanding of the consequences of transportation emerges. Page v Acknowledgements I need to express my thanks to the many people who have made this thesis possible, including friends and fellow post-graduates who expressed interest and offered encouragement. Special thanks go to Bronwyn Meikle for her continued friendships, support, criticism, and guidance. I want to acknowledge assistances offered by Mary McKinlay of Richmond, Tasmania, and Alan King of the County Mayo Library at Castlebar, Ireland, for pointing me in the right direction with Irish transportation legislation and for revealing the presence of the Queen’s University Belfast Irish legislation database. I also want to acknowledge the help of Sarah Minney in locating archival material for me at the London Metropolitan Archives, the National Archives at Kew and the Surrey County Library at Kingston-upon-Thames. Dr John McGowan of Musselburgh, Scotland read an early draft of Chapter 6 and offered constructive criticism of my understanding of the Scottish Courts and Scottish sentencing. Dr Jennifer Jeppesen let me read some of her work prior to publication and graciously gave me a copy of her 2014 PhD thesis at the University of Melbourne. Thanks also to my supervisor, Dr Stefan Petrow, for opening up new opportunities and for his constant encouragement, support, and wisdom. Finally, I want to express my especial thanks to my partner, David Gliddon, for his unfailing support and encouragement and allowing me the time and space in which to explore some of the unexpected and esoteric pathways which opened up as the research progressed. This would not have been possible without him. Page vi Table of Contents List of Tables: ...................................................................................................... viii List of Figures: ....................................................................................................... ix Abbreviations: ......................................................................................................... x Introductory Notes ................................................................................................. xi Introduction ............................................................................................................. 1 Chapter 1: Two Indentures .................................................................................... 26 Chapter 2: Pre-1717 experiments with transportation .......................................... 60 Chapter 3: The enactment of 4 Geo I c. 11 in 1717 ............................................ 104 Chapter 4: The legislation of 1784 and the revival of transportation ................. 165 Chapter 5: Transportation from Ireland .............................................................. 229 Chapter 6: Transportation from Scotland ............................................................ 265 Chapter 7: The status of convicts in early New South Wales ............................. 315 Chapter 8: Getting rid of the rubbish; the legislation of 1824 ............................ 342 Conclusion: ......................................................................................................... 391 Appendix 1: ......................................................................................................... 400 Appendix 2: ......................................................................................................... 410 Appendix 3: ......................................................................................................... 417 Appendix 4: ......................................................................................................... 420 Appendix 5: ......................................................................................................... 426 Appendix 6: ......................................................................................................... 428 Appendix 7: ......................................................................................................... 429 Appendix 8: ......................................................................................................... 432 Appendix 9: ......................................................................................................... 434 Bibliography: ...................................................................................................... 438 Page vii List of Tables: Table 1: English statutes prior to 1717 authorising forced deportations .............. 62 Table 2: Offenders 'respited' during 1614 ............................................................. 81 Table 3: Felons reprieved by the Open Warrant of 23 January 1614 ................... 88 Table 4: Summary of British transportation legislation between 1717 and 1775 138 Table 5: A summary of statutory responses to the disruption to transportation to America ............................................................................................................... 148 Table 6: Overview of Shelton's Accounts Nos. 1 to 4 ........................................ 201 Table 7: Overview of some of Shelton's accounts between 1791 and 1803 ....... 215 Table 8: Summary of Irish Transportation legislation prior to 1719 .................. 235 Table 9: Irish transportation legislation between 1719 and 1756 ....................... 238 Table 10: Irish transportation statutes from 1775 to 1800 .................................. 254 Table 11: Transport arrivals from Ireland, 1791 to 1796 .................................... 257 Table 12: Comparison of English and Scottish sentencing terminology ............ 274 Table 13: Scottish convicts transported to New South Wales and Van Diemen's Land, indicating the number with adjudged service