English and American Attitudes Towards Convict Transportation 171 8- 1775* Kenneth Morgan West London Institute of Higher Education

hough Dr Johnson exaggerated when he referred to Americans as ‘a race of convicts’,’ about one-quarter of all British immigrants T arriving in colonial America in the eighteenth century were

transported felons. Between 1718 (when transportation to the colonies was established by parliamentary act) and 1775 (when the traffic was cut off by the approach of war) some 50,000 convicts were shipped across the Atlantic from the British Isles and sold by contractors to settlers in the colonies. The main social characteristics of British convicts bound for America are clear in outline. Around 80 per cent were male; most were between 15 and 29 years of age; some had skilled occupations while others were ordinary labourers; nearly all were drawn from the lower orders of British society. These convicts had usually been sentenced to transportation at quarter sessions and assize courts for committing various types of felony and larceny but, as we shall see, only a small minority were guilty of really serious crimes. Nor were a majority of the convicts members of organised gangs of criminals; on the contrary, they were largely people who had resorted to petty theft during hard times. It is therefore safe to conclude that the typical transport was young, male and poor but not an habitual criminaLz

* I am grateful to Gwenda Morgan, for sending me portions of her thesis; to Marcus Rediker, for helpful dialogue on this topic; and to the participants in the Modern British History seminar at the University of Melbourne, for discussing this essay with me. ’ James Boswell, The Life of SamuelJohnson, edited by G.B. Hill, revised and enlarged by L.E Powell (2 vols, Oxford, 1934; originally published 1791), 11, p. 312. * A . Roger Ekirch, ‘Bound for America: A Profile of British Convicts Transported to the Colonies, 1718-1775: William and Mary Quarterly (hereafter WMQ), third series, 1985, xlii,

416 184-200.

KENNETH MORGAN Yet the reception felons encountered in America was frequently hostile.

The Governor of Jamaica, in the first year of transportation, accused imported convicts of quitting the island and inducing ‘others to go with them a pyrating,’ adding that ‘the few that remains proves a wicked, lazy and indolent people, so that I could heartily wish this country might be troubled with no more [of] them.’3 The provincial council of Jamaica endorsed this negative view of convicts just a few years later when it declared in 1731 that ‘if it be prudence in England to banish rogues; it must certainly be prudence here to endeavour to keep them Even sharper comments were voiced by people in the mainland colonies. In 1757 the lawyer and politician William Smith Jr, in his history of the colony of New York, quoted with approval a long passage from the Zndependent Reflector which claimed that transported felons had been sentenced for ‘the most atrocious crimes’, that they were ‘a herd of the most flagitious Banditti upon Earth’, and that neither trade nor industry could flourish in colonies peopled with these ‘unrestrainable Renegadoes’.s Benjamin Franklin, the best-known American critic of transportation, wrote in the 1750s that rattlesnakes would be a suitable return to the mother country for dumping felons in the colonies, and that ‘the emptying their jails into our settlements is an insult and contempt, the cruellest that ever one people offered another, and would not be equal’d even by emptying their jakes on our tables’.6 Another Pennsylvanian, the politician John Dickinson, complemented these sentiments when he wrote in 1768 that transportation was an ‘insult and indignity not to be thought of, much less borne without Indignation and Resentment’.’

These are just a sample of the highly unfavourable remarks made by Americans who had daggers drawn when discussing convict transportation. None of the above commentators, however, lived in areas where felons were numerous, for nearly all convicts sent to the colonies were shipped to Maryland and Virginia.* There is also a discrepancy between the

Governor Sir Nicholas Lawes to the Council of Trade and Plantations, 1 September 1718, Calendar of State Papers, Colonial Series America and West Indies, August 1717-December 1718, edited by C. Headlam (London, 1930), p. 345.

Council of Jamaica to Governor Hunter, enclosed in Hunter to Newcastle, 15 December 1731, in ibid, as quoted in Ekirch, ‘Bound for America’, p. 199.

William Smith Jr, The History ofthe Province of New York, edited by Michael Kammen (2 vols, Cambridge, Mass., 1972; originally published 1757), I, p. 223.

Franklin to the printers of the [Pennsylvania] Gazette, 9 May 1751, and Franklin to the printer of the London Chronicle, 9 May 1759, in The Papers of Benjamin Franklin, edited by Leonard W. Labaree et a/ (New Haven, Conn., 1959- ), IV, 131-33, VIII, 351. ’ Quoted in Basil Sollers, ‘Transported Convict Laborers in Maryland during the Colonial Period’, Maryland Historical Magazine, 1907, 11, 46. * Of 7,010 convicts transported from London between 1718 and 1744 whose destination can be verified, 97.2 per cent were sent to the Chesapeake (Ekirch, ‘Bound for America’, p. 185). For analyses of the convict trade see Abbot Emerson Smith, Colonisis in Bondage: White Servitude and Convict Labor in America, 1607-1776 (Chapel Hill, North Carolina, 1947), chapters 5 and 6 ; Kenneth Morgan, ‘The Organisation of the Convict Trade to Maryland: Stevenson, Randolph and Cheston, 1768-1775: WMQ, third series, 1985, xlii, 201-227; A. Roger Ekirch, Bound for America: the Transportation of British Convicts to the Colonies, 271 8-1 775 (Oxford, forthcoming); Kenneth Morgan, ‘Convict Transportation to Colonial America’, Reviews in American History, xv, forthcoming.

417

CONVICT TRANSPORTATION 1718-1 775 aspersions cast on felons and the fact that most transports were not monstrous criminals. Why were such negative attitudes expressed towards convicts in the colonies? Were heated protests typical of people living alongside convicts in the Chesapeake? Were colonial misgivings about transportation echoed by English spokesmen? And if transportation produced such angry reactions, why did Great Britain despatch felons to British America, and why were they readily bought there, right up to the War of Independence? These are the main questions addressed in this essay, which is an examination of English and American attitudes towards convict transportation in its heyday.’ My approach seeks to relate these attitudes to the workings of the English legal system in the eighteenth century and to the context of unfree labour in the colonial Chesapeake. The main thrust is that convict transportation was viewed in an ambivalent way on both sides of the Atlantic but was maintained until 1775 because it suited the social needs of the home government and the economic needs of buyers in Maryland and Virginia.

Any discussion of British attitudes towards convict transportation must necessarily begin with an account of the details and intentions of the Transportation Act of 1718. The origins of this legislation lie in an order in the House of Commons in late 1717 that leave be given to introduce a bill ‘for the further preventing Robberies, Burglaries, and other Felonies: and for the more effectual Transportation of Felons’.I(’ It seems that the bill was very much a piece of government business for its handling was entrusted to just six men, including the Solicitor General, William Thomson, who had been a regular judge at the Old Bailey.]’ The bill progressed quickly through parliament without any major disagreements over its contents. It was read for the first time in the Commons on 17 January 1718; only minor amendments were made in the committee stage; and the Lords agreed to the bill becoming law on 14 March 1718.12 The preamble to the Act suggests that it was brought into being for two chief reasons: to prevent crime and to assist with the labour shortage in the American colonies. Existing statutes, it was claimed, did not deter ‘wicked and evil-disposed’ persons from robbery, larceny and other ‘felonious taking and stealing of money and goods’. At the same time labour was needed in British America where there was ‘a great want of servants, who by their labour and industry might be the means of improving and making the said colonies and plantations more useful to the nation’.I3 The Transportation Act, which covered scores of crimes, was regularly buttressed between 1718 and 1775

’ This essay does not cover Scottish or Irish attitudes towards convict transportation. I” Journuls of h e House of Commons, [hereafterCJ] xviii, 667, 23 December 1717.

503. Ibid; J.M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton, N.J. , 1986), p.

The progress of thc bill through the Commons can be traced in CJ, XVIII, 671, 675, 684-686, 691, 763, 765, 768-770. l 3 4 Geo. I, c. 11, 1718.

418

KENNETH MORGAN by supplementary statutes that created new offences leading to banishment. l 4

The passing of the Transportation Act was a government reaction to the crime wave that hit London after the War of the Spanish Succession. I t was also an attempt by the Whigs to use their political and financial power to create a stable Hanoverian regime by strengthening the position of the courts to banish those who threatened the security of property. I s The trickle of felons sent to the colonies before 1718 expanded into a steady stream thereafter as transportation was applied to the largest group of offenders tried in English courts: grand larcenists and petty larcenists (or those convicted respectively of stealing goods worth more than a shilling or less than a shilling).Ih People found guilty of these non-capital crimes against property were usually shipped to America as ‘His Majesty’s seven-year passengers’. Those convicted on capital charges, however, could receive a royal pardon and have their death sentence commuted to banishment either for 14 years or for life.Ix The penalty for returning to England prematurely was death.” This system of dealing with felons was considered sterner than imprisonment at a time when incarceration in gaols was not deemed a major solution to crime; and so transportation became an important intermediate punishment lying between the two extremes of hanging or whipping and branding.20 The sheer range of offences that could lead to exile reveals both a redefinition of crime and a desire to safeguard property (at the expense, in some cases, of customary rights).” These I‘ Amongst these were 6 Geo. I, c. 23, 1719, assaulting any person in the street to tear their clothes; 12 Geo. I, c. 29, 1725, persons convicted of forgery or perjury practising as attorneys and solicitors; 7 Geo. 11, c. 21, 1734, assaulting others with an offensive weapon and a design to rob; 16 Geo. 11, c. 31, 1743, conveying any disguise, instrument or arms to help a felon escape; 18 Geo. 11, c. 27, 1745, theft of linen, fustian and cotton goods etc; 25 Geo. 11, c. 10, 1752, stealing from lead mines; 10 Geo. 111, c . 48, 1769, receiving stolen jewels. gold and silvcr plate as a result of burglary or highway robbery; 13 Geo. 111, c. 59, 1773, counterfeiting marks or stamps used for marking gold or silver plate. Additional statutes creating offences punishable by transportation are listed in Richard B. Morris, Governmenrand Labor in Early America (New York, 1946), p. 324 note 40. li Beattie, Crime and the Courts in England, pp. 500, 502-5. “’ lhid, pp. 181-82, 500, 502, 506-7.

Maryland Gazette [hereafter M d . Gaz.] (Annapolis), 17 July 1755. The most numerous convicts were those transported for seven years. For instance, of 655 convicts imported into Baltimore County, Maryland, 1770-1774, 11 had life sentences, 123 had 14 year sentences, and the rest had seven year terms (Morris, Government and Labor in Early America, p. 328). ’’ For discussion of sentences meted out to transported felons see 4 Geo. I , c. 11; Ekirch, ‘Bound for America’, pp. 190-94; and Smith, Colonists in Bondage, pp. 111-12. l9 For examples of felons who were retried, sentenced to death and executed after returning to England before their terms expired see the Gentleman’s Magazine, 1774, xliv, 43,493 and The Newgate Calendar, edited by A. Knapp and W. Baldwin (London, 1824-1825), I , 133-34, 11, 97-107. Many convicts did, in fact, return to Britain before the end of their sentence (Virginia Gazette, 28 January 1737; Beattie, Crime and the Courts in England, pp. 540-41). 16 Geo. 11, c. 15, 1743, offered a f20 reward per convict to people securing the conviction of returned felons.

Beattie, Crime and (he Courts in England, passim; Michael Ignatieff, A Jusi Measure of Pain: the Penitentiary in the lndustrial Revolution, 1750-1850 (London, 1978), chapter one.

Ignatieff, A Just Measure ofPain, pp. 16-18. For the creation of new capital offences and the erosion of common rights in early eighteenth-century England see especially E.P. Thompson, Whigs and Hunters: the Origin of the Black Act (London, 1975).

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CONVICT TRANSPORTATION 1718-1775 features of the transportation laws plus the widespread use of pardons point to the same interplay between terror and mercy that has been identified as the dominant characteristic of the operation of the law in eighteenth-century England.**

According to John Beattie, transportation brought flexibility and stability to the administration of the law and was therefore a ‘striking success’ from the government’s point of view until 1750.23 Nevertheless, in that period there were some English commentators who advocated even harsher punishments for transported felons. In 1725 the lawyer and physician Bernard Mandeville labelled convicts as ‘the vermin of society.. .perpetually nibbling at our Property’. He felt that they should be sent to redeem the slaves in Morocco, Tunis or Algiers, for ‘it would effectually prevent the returning of the felons, make them serviceable in the most extraordinary manner, and, at the same time, be terrible beyond expre~sion’.*~ George Ollyffe, writing in 1731, thought that transportation was unsatisfactory because many felons returned to England before their sentences expired and because they then fell back into their old criminal activities. He put forward a case for more severe penalties for convicts returning illegally to the mother country plus a better means of identifying felons so that the ‘Transported and Untransported may be distinguished from each other’, by there being ‘a slit in the right Ear for one, and in the left Ear for the other’.25 An anonymous contributor to the Gentleman’s Magazine in 1750 went a stage further by calling for some capital offenders to be branded on the cheek and castrated, adding, in a misogynous manner, that all women should be transported for the ‘very first offence, be it greater or less’.2h

A more pressing concern of English critics of transportation, however, consisted of proposals for more arduous, purposeful labour for convicted felons. Some writers felt that banishment was still vital in this process. Ollyffe wanted felons to be given laborious work ‘such as may defray the expence of Attendance and Confinement, and yet promote the most Sharp and lasting Terror’. The sort of work that might fit the bill, he suggested, was labour as slaves in the colonies, chained work in the gallies, or guarding the seas and forts for imperial purposes.27 Two other pamphleteers of the 1730s considered that convicts might be employed in defence of the British Empire. Joseph Davies proposed that transported

3 1 -- See Douglas Hay, ‘Property, Authority and the Criminal Law’ in Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England edited by D. Hay et a1 (London, 1975), pp. 17-63, and Douglas Hay et al, ‘Eighteenth-Century Crime, Popular Movements and Social Control’, Bulletin of the Society for the Study of Labour History, 1972, no. 25, pp. 15-16. 23 Beattie, Crime and the Courts in England, p. 519. 2J Bernard Mandeville, A n Enquiry into the Causes of the Frequent Executions at Tyburn (London, 1725), pp. 48, 52. 25 George Ollyffe, An Essay Humbly Offer’d for an Act of Parliament to Prevent Capital Crimes (London, 1731), pp. 11-12. 26 ‘Castration Proposed for Capital Offenders’ in the Gentleman’s Magazine, 1750, xx, 532-33, as quoted in Sir Leon Radzinowicz, History of English Criminal Law and its Administration from 1750 (4 vols, London, 1956), 11, 2. 27 Ollyffe, An Essay Humbly Offer’d ..., pp. 13-14.

420

KENNETH MORGAN felons should ‘be made use of for a National Service’ by manning the gallies at Gibraltar. This would strike ‘Terror into the minds of those vile People’ and thus reform them from following ‘an extravagant vicious course of Life’.2x Joshua Gee took a less severe view of punishment for convicts, but also stressed the possible value of their labour in the colonies. He recommended that transports should be given the incentive of landownership in America. This would serve not only to rehabilitate convicts; it would also supply sufficient quantities of hemp and flax for the Royal Navy; and felons ‘being under no Difficulty to subsist.. .would marry young, increase and multiply ... by which means those vast tracts of land now waste, will be planted, and secured from the Danger we apprehend of the French over-running them’.?’ Lord Halifax, writing at the end of the Seven Years’ War when the French threat had been eliminated, also hoped that convicts could be employed in the American colonies so that ‘their Labour may turn to the Advantage of the Community’, but no schemes for public works were implemented.3”

Other English writers argued that hard labour at home would be a more effective punishment for convicts than transportation. They made various proposals with this end in mind. In 1733 Thomas Robe penned a tract advocating the establishment of workhouses throughout England to provide felons with work in keeping with the nature of their crimes. ‘The greatest offenders should be employed in digging and hewing of Stone in the Quarry, and in that sort of Work which is the most painful and laborious,’ he remarked, ‘while those whose crimes are but light and trivial, should be instructed by fit and Able Workmen to model the Stone, and to make and manufacture all sort of Iron Work.’ The aims of this differentiated treatment were to reform felons and to enable lesser criminals to earn an honest livelihood on returning to civil ~ociety.~’ An anonymous author of the 1750s added a variation to this theme. He considered that transportation was too transitory to leave a lasting impression on the mind and that it should be replaced by ‘a living visible law’, consisting of penal slavery at home, where convicts would work without pay first in chains and later without chains.32 By the 1770s, as transportation to America was coming to a end, there were further arguments that felons should be punished by hard labour at home; and that thieves and pickpockets, in particular, should be ‘committed to a public workhouse, there to be applied to some branch of useful labour’ until they

2x Joseph Davies, An Humble Proposal for the Increase of our Home Trade, and a Defence to Gibraltar.. . (London, 1731), pp. 3-4. 2q Joshua Gee, The Trade and Navigation of Great Britain Considered, (London, 1738, fourth edition), chapter 27. 3‘1 Lord Halifax to the Lords of Trade, 5 November 1763, Public Record Office, CO 5/65. 3 ’ Eboranos [Thomas Robe], Some Considerations for Rendering the Punishment of Criminals More Effectual ... (London, 1733), p. 47, as quoted in Beattie, Crime and the Courts in England, p. 550. ’2 Anon, Proposuls to the Legislature, for the preventing thepresent Executions of Convicts in a letter to the Right Hon. Henry Pelham, by a Student in Politics (1754), 26-27, as quoted in Radzinowicz, History of English Criminal Law, ii, 2.

421

CONVICT TRANSPORTATION 1718-1 775 ‘indemnified the person from whom ...g oods were stolen, and paid all expenses as may have been incurred’ in bringing them to justice.33

By the third quarter of the eighteenth century various Englishmen were beginning to raise doubts, not merely about the effectiveness, but also about the justice of t r an~por t a t ion .~~ These strictures came at a time of frequent public disorder in London and of widespread dissatisfaction with the English criminal law.” A number of commentators in the 1750s criticised transportation because it seemed too harsh a penalty for many trifling crimes. ‘Such punishments as Branding, Whipping and even Transportation,’ Joshua Fitzsimmonds argued, ‘might be very properly changed to hard Labour and Correction, suitable to the Nature of the Crime.’36 The novelist Henry Fielding, in his role as a Middlesex magistrate, found transportation unsatisfactory because it had ‘an appearance of extreme severity’ for such minor crimes as petty larceny. He noted that judges were beginning to acknowledge this by often ordering such offenders to be whipped instead of bani~hed.~’ Joseph Massie, a well-informed writer on social policy, claimed that transportation was both ineffective and unjust. He felt that many poachers, stealers of poultry and fish, and similar petty offenders were never brought to court because banishment was ‘more severe than the generality of People desire to have inflicted for such pilfering thefts’.38 By the 1760s even the conservative Sir William Blackstone, the leading English jurist, was reflecting these changing views by incorporating into his influential Commentaries some similar ideas from Cesare Beccaria, the Italian law reformer, about the need for proportional punishments for crime.39

There were further attacks on the injustice of transportation in the early 1770s. Sir John Fielding, the London magistrate, wanted the law altered so that convicts returning prematurely from America could be sent back to the colonies for an extended term, though he conceded that those coming home illegally a second time should be hanged. ‘It is much to be regretted,’ he added in 1773, ‘that the law as it stands does not admit of a greater diversity of punishments according to the different nature of crimes and circumstances of the offender.’41 The penal reformer William Eden agreed ’’ ‘Thoughts on the Punishment of Convicts by Labour instead of Transportation’, Gentleman’s Magazine, 1776, xlvi, 254.

li Ignatieff, A Jus t Measure of Pain, pp. 45-47; John Brewer, ‘The Wilkites and the Law, 1763-74: a Study of Radical Notions of Governance’ in An Ungovernable People: the English and their Law in the Seventeenth and Eighteenth Centuries edited by J . Brewer and J. Styles (London, 1980), p. 137. ”Joshua Fitzimmonds, Free and Candid Disquisitions on the Nature and Execution of the Laws of England (London, 1751), p. 45, as quoted in Beattie, Crime and the Courts in England, p. 554. ’’ Henry Fielding, A Proposal for Making Effectual Provision for the Poor (London, 1753), as quoted in Ignatieff, A Just Measure of Pain, p. 45. ’’ Joseph Massie, A New System of Policy.. , for Relieving, Employing, and Ordering the Poor of England (London, 1758), p. 119. ’’) Beattie, Crime and the Courts in England, pp. 555-57. “’ Sir John Fielding to the Earl of Suffolk, 1 February 1173, Calendar of Home Office Pupers of the Reign of George 111, 1760-1775, edited by J . Redington and R.A. Roberts (4 vols, 1878-1899), rv, 10-12.

422

Beattie, Crime and the Courts in England, pp. 540-47.

KENNETH MORGAN that the death penalty for arriving back early from transportation was unduly harsh, ’especially where the original offence was not capital’. Though Eden advocated hard labour at home or abroad for serious offenders, he considered that transportation was inflicted ‘upon offences by no means so heinous in their nature, as to require the extirpation of the criminal from the society of his fellow-citi~ens’.~~ This was a sentiment shared by the lawyer Henry Dagge who added that transportation was ‘difficult to justify.. .on the footing of sound policy’ because banishment of ‘notorious offenders from one part of the King’s dominions to another, is only to shift, not to remove the gr ievan~e’ .~~ The London philanthropist Jonas Hanway joined this chorus of disapFrova1 by attacking transportation as a means of depriving the state of manpower and by criticising laws which allowed ‘malefactors’ to be ‘pardoned by the royal clemency’ or to ‘escape condemnation thro’ the tenderness of the e ~ i d e n c e ’ . ~ ~ These quotations highlight the two common ingredients displayed by English critics of transportation between 1750 and 1775: the emergence of a humanitarian conscience and a sustained critique of the arbitrariness and irrationality of much of the existing legal system.44

It seems that the government was attuned to these criticisms of transportation. In the late 1760s and early 1770s it examined various plans for disposing of felons other than in the Chesapeake. One proposal involved shipping convicts to East Florida, where labourers were scarce.4s Another scheme, put forward in a bill drawn up by Lord Mansfield, was to stop transportation to the colonies by either dumping convicts in the East Indies or shutting them up for their terms in strong houses scattered throughout England,46 That the Treasury in 1772 stopped paying the bounty of five pounds a head to the London merchant contractors who shipped the bulk of the felons to America can also be interpreted as an indication of changing government attitudes towards expelling criminals from England.47 But despite these signs of waning enthusiasm for transportation, the system continued down to 1775 and was only disrupted by the coming of war. The ensuing problems of controlling convicts on the hulks during the War of Independence plus a renewed crime wave in the metropolis in the early 1780s then led to moves to restore t r anspor t a t i~n .~~ By 1785 a committee of the House of Commons was beginning to regard ‘the old system of Transporting to America’ as answering ‘every good Purpose which could be expected from it’.“ It is not surprising, therefore,

4’ William Eden, Principles of Penal Law (London, 1771), pp. 28-30. For a detailed treatment of Eden’s views on transportation see G.C. Bolton, ‘William Eden and the Convicts, 1771-1787: Australian Journal of Politics and Hbtory, xxvi, 1980, pp. 30-44. 42 Henry Dagge Esq, Considerations on Criminal Law (London, 1774, second edition), 11, p. 183. 43 Jonas Hanway, The Defects of Police the Cause of Immorality (London, 1775), pp. 215-16. 44 On the latter theme see the comments in Brewer, ‘The Wilkites and the Law’, passim. ‘’ Purdie and Dixon, Virginia Gazette, 8 October 1767. 46 Ibid, 2 September 1773, 9 June 1774. ” Beattie, Crime and the Courts in England, pp. 546-47. 4R Ibid, pp. 565-67, 592-93; Ignatieff, A Just Measure of Pain, p. 93. 4y CJ, 1785, XI, 1161.

423

CONVICT TRANSPORTATION 1718-1 775 that early after the end of the American War there was an attempt to revive transportation with America5” and, when that failed, there were more successful endeavours to ship convicts to Botany Bay when other possible destinations had been closed or d i s~arded .~’

* * *

So much for English reactions to convict transportation from 1718 to 1775; what of the responses at the receiving end in the same period? There was no shortage of negative views on this issue in the Chesapeake where there were widespread fears that convicts would, and did, commit crime. In Virginia in particular there was an almost obsessive insistence that transports were mainly to blame for crime in the colony, Two historians of the Old Dominion, Robert Beverly and Hugh Jones, both commented adversely in the 1720s about the murders and robberies perpetrated by felons. Beverly considered that convicts were ‘very injurious to the country’ and Jones characterised them as ‘loose villains’.s2 In 1732 a petitioner to the Virginia Council complained that there were ‘many Burglaries and Felonies committed chiefly by imported convict^'.^' In the same year Governor William Gooch argued that the disobedience of Northern Neck planters to the laws of the colony could be traced to their mingling with convicts.54 William Byrd I1 of Westover, a large planter and slaveowner, commented in 1740 that sending felons to Virginia only encouraged ‘publick crimes & is the reason [that those] enimies to mankind are so much e n c r e a ~ t ’ . ~ ~ The Reverend William Stith, historian at the College of William and Mary, thought Virginia by 1747 was ‘a mere Hell upon Earth, another Siberia, and only fit for the Reception of Malefactors and the vilest of the People’.56 And it was claimed in 1748 that most of the felonies and other capital offences committed in Virginia were carried out

50 A. Roger Ekirch, ‘Great Britain’s Secret Convict Trade to America, 1783-1784, American Historical Review, 1984, lxxxix, 1285-291. ” See, amongst many studies, Beattie, Crime and the Courts in England, pp. 592-601, and Mollie Gillen, ‘The Botany Bay Decision, 1786: Convicts, not Empire’, English Historical Review, 1982, xlvii, 740-66. s2 Robert Beverly, The History and Present State of Virginia (London, 1722), pp. 287-88; Hugh Jones, The Present State of Virginia, edited by Richard L. Morton (Chapel Hill, N. Carolina, 1956), p. 87. s3 Executive Journals of the Council of Colonial Virginia edited by H.R. McIlwaine (Richmond, Virginia, 1930), IV, 282. 54 William Gooch to the Board of Trade, 30 March 1732, Public Record Office, CO 511323, fols. 12-13. For a discussion linking arson and other criminal acts to convicts in the Northern Neck of Virginia in the late 1720s and early 1730s see Fairfax Harrison, ‘When the Convicts Came’, Virginia Magazine of History and Biography, 1922, xxx, 250-60. A comparison of the text and the citations to this article reveals, however, that not all of the crimes discussed can be attributed to convicts. ss William Byrd I1 to Mr Smyth [6 September 17401 in The Correspondence of the Three William Byrds of Wesfover, Virginia edited by Marion Tinling (2 vols, Charlottesville. Virginia, 1977). TI, 557. 5b William Stith, The History of the First Discovery and Settlement of Virginia: Being an Essay towards a General History of the colony (Williamsburg, Virginia, 1747; reprinted Spartanburg, S. Carolina, 1965), p. 168.

424

KENNETH MORGAN by convicts.s7 It is difficult to say how far these accusations were true or how far they were based on an intense dislike of a group regarded as being outside the boundaries of the community. But it is worth noting that, though convicts undoubtedly had a hand in some crimes, burglary and robbery were common in Virginia and were obviously not confined to the actions of transported felons.sH

The anxiety felt by many about convicts in the Chesapeake was reflected in the way that newly imported felons were often treated as animals and lumped together with other dependent members of society lacking economic status. At convict sales in Virginia convicts were sold ‘in the same manner as horses or cows in our market or fair’.sy A similar situation obtained in Maryland where transports were chained together in pairs, driven ‘in lots like oxen or sheep’, and inspected by prospective purchasers who searched them ‘as the dealers in horses do those animals in this country’ by looking at their teeth and viewing their limbs ‘to see if they are sound and fit for their labour’.M’ Many whites also stigmatised convicts along with other lower-class groups as mere human commodities. According to John Adams, the planters and farmers of Maryland held ‘their negroes and convicts, that is all labouring people and tradesmen, in such contempt, that they think themselves a distinct people’.61 And William Eddis, an Englishman living in Maryland, observed in the early 1770s that all servants in the province were seen as outcasts and that ‘the difference is merely nominal between the indented servant and the convicted felon’, a situation which meant that indentured servants were ‘indiscriminately blended with the most profligate and abandoned of mankind’.62 In the Northern Neck of Virginia, however, planters identified convicts more with black slaves than with white servants. Though opinion in the Northern Neck on the subject of convicts outran that in the rest of the colony, a Virginian act of 1748 supported this view by stating that felons could not be sworn as witnesses in court or permitted to give evidence in civil or criminal

57 The Statutes at Large: Being a Collection of All the Laws of Virginia edited by William Waller Hening (Richmond, Virginia, 1819), V, p. 545. For further contemporary comments linking convicts with crime in Virginia see Gwenda Morgan, ‘The Hegemony of the Law: Richmond County, Virginia, 1692-1776‘ (PhD dissertation, Johns Hopkins University, logo), especially pp. 195-96, 208. 5x Hugh F. Rankin, Criminal Trial Proceedings in the General Court of Colonial Virginia (Williamsburg, Virginia, 1965), p. 158. I know of no study that gauges the degree of convict involvement in crime in the colonial Chesapeake. 5y William Barker Jr to John Palmer, 16 December 1758, as quoted in Frederick Hall Schmidt, ‘British Convict Servant Labor in Colonial Virginia’ (PhD dissertation, College of William and Mary, 1976), p. 156.

William Green, The Sufferings of William Green (London, 1774), as cited in Morgan, ‘The Organization of the Convict Trade to Maryland’, p. 217. ‘” Diary and Autobiography of John Adams, Vol2 1771-1781, edited by Lyman H. Butterfield et a1 (Cambridge, Mass., 1961), p. 183. ‘* William Eddis, Letters from America, edited by Aubrey C. Land (Cambridge, Mass., 1969). pp. 37-38, 40. It has recently been suggested that the distinctions between indentured and convict servants faded where labour needs were great in the Chesapeake: see Bernard Bailyn, Voyagers to the West: Emigration from Britain to America on the Eve of the Revolution (New York, 1986), pp. 260, 264, 324-25.

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CONVICT TRANSPORTATION 1718-1 775 cases because ‘convicts, as well as negroes, mulattoes, and Indians, are commonly of such base and corrupt principles, that their testimony cannot be depended upon’.h’

Another major type of social unease about convicts was the fear that they would corrupt others. A Maryland act of 1723, noting the burglaries, murders and felonies carried out by imported convicts, claimed that such actions had ‘Debauched the minds and Principles of severall of the Ignorant and formerly Innocent Inhabitants.. .so as to Induce them to Comitt severall of the like Crimes’.64 Hugh Jones, in a similar vein, asserted in 1724 that convicts transported to Virginia ‘spoil servants that were before very good’.hs And in the early stages of the Seven Years’ War, when Virginia badly needed recruits to build forts and protect frontier areas, Governor Robert Dinwiddie advised George Washington to enlist servants but not convicts ‘who probably may be fractious, & bad Examples to the others’.66 Lying behind many of these comments linking convicts with crime, stressing their bad influence on others, and viewing lower-class groups as riff-raff was the fear that unfree labourers threatened social stability by learning from each other’s behaviour and experiences.67 Perhaps the greatest anxiety was that convicts and slaves would forge a union, something which gained credence from instances of felons and blacks colluding or running away together.6x This qualifies T.H. Breen’s statement that the eighteenth-century Virginia gentry feared blacks ‘but no one expressed apprehension about the poor whites, the tenants, the indentured servants or the debtors’.‘j9 While it is true that the ‘giddy multitude’70- an amalgam of these groups - had been quiescent since the days of Bacon’s Rebellion in 1676, it is clear that a variety of people in the eighteenth-century Chesapeake, especially planters and politicians, had as many qualms about having convicts at close quarters as about the presence of slaves. 71

(’’ Morgan, ‘The Hegemony of the Law’, pp. 213-21; Hening, The Statutes at Large, V, 545-47. 64 This act is printed in Archives of Maryland, (hereafter Md. Archs.) edited by W. Hand Browne et a1 (72 vols, Baltimore, 1883-1972), XXVIII, 320-22. bs Quoted in Morris, Government and Labor in Early America, p. 331. bb Robert Dinwiddie to George Washington, 19 August 1756 in The Papers of George Washington, Colonial Series, 3, edited by W.W. Abbot et a1 (Charlottesville, Virginia, 1984),

67 This theme is touched upon in Morgan, ‘The Hegemony of the Law’, chapter four, and in Marcus Rediker, ‘ “Good Hands, Stout Heart, and Fast Feet”: The History and Culture of Working People in Early America’, LabourlLe Travailleur, 1982, x, 141-42. hK Morgan, ‘The Hegemony of the Law’, pp. 218-20. ‘’ T.H. Breen, ‘A Changing Labor Force and Race Relations in Virginia, 1660-1710: Journal of Social History, 1973, vi, 13. ”’ Ihid, 17-18. ” For fears of slaves in the eighteenth-century Chesapeake see Jack P. Greene, ‘Society, Ideology, and Politics: An Analysis of the Political Culture of Mid-Eighteenth-Century Virginia’ in Society, Freedom, and Conscience: The Coming of the Revolution in Virginia, Massachusetts, and New York edited by R.M. Jellison (New York, 1976), pp. 67-69; Edmund S. Morgan, American Slavery American Freedom: The Ordeal of Colonial Virginia (New York, 1975), pp. 308-9, 385.

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p. 359.

KENNETH MORGAN It must not be supposed, however, that everyone in the Chesapeake

opposed the importation of convicts for there are indications that transportation was a matter of considerable debate, and that its pros and cons were heatedly discussed. For instance, in Landon Carter’s private minutes of a Virginia bill of 1752 to make owners of convicts liable for the costs of prosecution in court cases, John Martin, a lawyer, merchant, planter and burgess for Caroline County, reacted against the motion. He doubted whether the Governor of Virginia had the power to pass such a bill and pointed out that fellow Virginians would no longer buy convicts if the bill became law. He averred that convicts made good servants and that the preamble to the bill was false in stating that most felonies in Virginia were committed by convicts. Martin was seconded after his speech by John Woodbridge, a planter and burgess from Richmond County. Landon Carter of Sabine Hall, a member of one of the most prominent Virginia planter families, was roused to speak out against these views. He insisted that if Virginians refrained from buying convicts it would serve the community by cutting down on ‘the great Propensity to Villany that the most of them discovered’. He also observed that the statutes on transportation were not intended to provide a trade for the convenience of ship captains, and that the proposed legislation might lead purchasers to pay less for convicts so that they would not be great losers if the felons proved bad. This debate over transportation between influential members of the Virginia gentry petered out when the bill concerning felons was read a second time and shelved ‘because it seemed to carry a retrospection’, so Carter argued, ‘but Mr Vaulx had other reasons for committing of it, vizt, I believe for destroying

The best American evidence revealing divisions over convict transportation is found in the debates in Maryland over the decision to quarantine incoming convict ships in 1767. English gaols in the eighteenth century were notoriously unclean and unhealthy; and though mortality among convicts on the ocean passage seems to have declined over time, there was always the possibility of felons catching either gaol fever (typhus) or smallpox.73 A newspaper war broke out in the pages of the Maryland Gazette in 1767 after allegations that a distemper had been communicated to a Mrs Blake and her negroes in Queen Anne’s County, on the Eastern Shore, by an infected convict imported from Brist01.’~ The first contributor to the debate, styling himself ‘A.B.’, argued that ‘false Reports’ had been spread about ‘contagious Disorders’ scattered by newly imported felons. He supported his claim by noting that, despite the large numbers of convicts anually brought to the province, there had previously been only infrequent reports about convicts spreading disease; that the sellers in

72 The Diary of Colonel Landon Carter of Sabine Hall, 1752-1778 edited by Jack P. Greene (2 vols, Charlottesville, Virginia, 1965), I, pp. 71, 73, 79-80, 83, 85-86. Robert Vaulx was a planter and burgess for Westmoreland County. ’3 Beattie, Crime and the Courrs in England. p. 229; Morgan, ‘Convict Trade to Maryland’,

I I

pp. 213-15. 7J Governor Horatio Sharpe to Hugh Hamersley, 27 July 1767, Md. Archs., XIV, 412,

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CONVICT TRANSPORTATION 1718-1 775 Maryland over a long period of time had experienced no ill effects; and that poor living conditions were a more likely explanation of the sickness amongst blacks. This writer also distinguished between different types of convicts by stating that ‘the wicked and bad.. .mostly run away to the Northward ... whilst those, more innocent, and who came for very small Offences, serve their Times out here, behave well, and become useful People’. 7s

Two anonymous contributors opposed these views just a few weeks later in the same issue of the Maryland Gazette. The first writer, one T.D.’, felt that the disorder affecting Mrs Blake’s blacks could be traced to a convict ship and that it originated ‘from the long infected Walls, and deeply corrupted Mansions of NEWGATE’. He added that the sellers of convicts had only avoided disease by ‘carrying a Piece of Tar’d Rope, by Way of Nosegay’. The second contributor, ‘Philanthropos’, criticised ‘A.B.’ for writing about the conditions of Negro quarters and passing over in silence the illnesses occurring from long confinement of people in gaols or ships. He thought it was misleading to give the impression that ‘the general Sense of the People is in favour of this vile Importation’ of ‘the most abandon’d Profligates in the Universe’. The persons interested in the importation of convicts, he declared, were ‘the Contractors at home, and those who have the sales of them here - AND THEY ONLY’. But ‘Philanthropos’ failed to differentiate between different types of convicts; to him they were all ‘abandoned Outcasts of the British Nation’.76

The bottom line in this debate was the fact that convicts were always readily bought on arrival in the Chesapeake. Demand is the essential key to understanding the importation of convicts in this region, where transports were employed in skilled and semi-skilled farming tasks and in industrial, craft and construction work. The economies of Maryland and Virginia always generated great demand for imported unfree labourers; the supply of convicts was more steady than that of indentured servants or slaves; and felons were relatively cheap, selling for about one-third of the price of young male slaves. Convict and indentured servants were also needed in the Chesapeake because of the constant leakage of workers from the dependent labour force at the end of their terms of service. In addition, a chain of connections existed between merchant firms, justices of the peace and gaolers in England - the means by which supplies of convicts were secured - and also between ship captains, agents of the firms and customers needing convict labour in the Chesapeake. These are all convincing reasons for the regular importation of convicts in this region at a time when the home government did not compel English merchants to ship felons there. The most complete extant business records that survive on this topic (those of a leading Bristol firm) - show that in late colonial Maryland there were many customers who placed standing orders for

75 Letter of ‘A.B.’, 30 July 1767, Md. Gaz. ‘A.B.’ was probably Thomas Ringgold, a substantial importer of both slaves and convicts in Maryland (see Governor Horatio Sharpe to Hugh Hamersley, note 70 above). 7h Letters of ‘C.D.’ and ‘Philanthropos’, 20 August 1767, Md. Gaz.

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KENNETH M O R G A N transports before the ships carrying them arrived; and that it was an exceptional customer who specifically requested indentured servants from this firm rather than convicts.77 Such evidence shows that, despite misgivings, there were always people who would buy the labour of convicts when it was available.

There were certainly considerable costs involved in shipping and provisioning convicts, especially for shiploads of unhealthy residual^.'^ But young, fit, healthy convicts could always be sold profitably, as contemporaries realised. Henry Laurens remarked on one occasion that ‘persons who are interested in the business of Transporting Felons.. .make considerable Booty in the trade’.’’ And Governor Sharpe of Maryland thought that convict contractors, who were selling felons to planters for between f 8 and 220 sterling, were making good profits ‘when less than $6 is a reasonable Premium for the Conveyance or Passage of any Perscn from England hither’.*” But transportation did not depend entirely on the contractors’ quest for profits; the colonists were also responsible for the traffic. Two governors of Maryland grasped the essence of the situation. Governor Charles Calvert admitted in 1725 that he wished convicts could be sent to ‘any other of His Majesty’s Plantations but while we purchase they will send them, and we bring the Evil upon ourselves’.81 Forty years later the position was still the same, as Governor Horatio Sharpe confessed when asked why Marylanders continued to import convicts. ‘There are in all Societies,’ he noted, ‘People that will run all Risks for the Sake of making Profit.’** When the assemblies of Maryland and Virginia (and other colonies) challenged the English laws on transportation, their criticisms did not have the unanimous support of all colonists; and various colonial governors found that any such proposals were blocked by the Board of Trade and the Privy CounciL83

The evidence cited in this essay shows that the system of transporting convicts to the colonies had supporters and detractors on both sides of the Atlantic. In both England and America there were people who were unhappy with the traffic. Some English critics advocated harsher penalties for transpdtted criminals; others wanted convicts to perform more arduous labour at home or abroad; still others highlighted the injustice of banishment for minor offenders and called for proportionality in punishment. Many people in the Chesapeake were dissatisfied with transportation for different reasons. They accused convicts of spreading

” Morgan, ’Convict Trade to Maryland’, pp. 201-27. See also Bailyn, Voyages ro the West, pp.

’* Morgan, ‘Convict Trade to Maryland’, p. 219. ’’ Henry Laurens to George Appleby, 10 March 1774, The Papers of Henry Laurens edited by G.C. Rogers et a1 (Columbia, S. Carolina, 1968- ), IX, 347. xo Governor Horatio Sharpe to John Sharpe, 24 October 1755, Med. Arch. , I, 300. R’ Charles Calvert to the Upper and Lower Houses of Assembly, 15 October 1725, ibid,

R2 Governor Horatio Sharpe to Hugh Hamersley, 27 July 1767, bid, XIV, 413. Smith, Colonists in Bondage, pp. 119-22. For unsuccessful attempts to restrict the convict

trade in Maryland see Margaret M.R. Kellowm ‘Indentured Servitude in Eighteenth-Century Maryland’, Histoire Sociale-Social History, 1984, xvii, 238-39.

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266-70.

XXIV, 324-25.

CONVICT TRANSPORTATION 1718-1 775 crime, disease and corruption; they lumped transports with other lower- class groups; they feared the explosive mixture of convicts and slaves; in short, they viewed felons as a contagious blot on the landscape. But there were more powerful transatlantic interests which ensured that the shipping of convicts to America was maintained until the end of the colonial period. Successive Hanoverian governments persisted with transportation because it was a pragmatic method of removing large numbers of non-capital offenders from England, because it was less expensive than imprisonment, and because it was securely sanctioned by decisions made in the courts. In the Chesapeake some merchants and planters welcomed the dumping of convicts because it fitted the continuous demand for cheap, white, bonded labour when alternative sources were not always available. This was sufficient in many cases to overcome any social stigma that may have been attached to convicts.

Of course, the convicts themselves had their own attitudes towards bondage: many tried to avoid it at all costs. Several felons admitted to Sir John Fielding that ‘they had rather be hanged than transported a second time’84 This dread of transportation is borne out in petitions submitted by people sentenced at the Old Bailey between 1725 and 1735. For example, a twelve year old girl called Elizabeth Howard, who had lost the use of her limbs in gaol, requested that the judge should take into account that this was her first conviction, and pleaded that her sentence be changed ‘to Corporal Punishment here for the heinousness of her Crime and not to Transport her out of her Native Isle’.85 A young journeyman named James Barton, who was confined in Newgate for theft of a small quantity of thread, made a similar request. After noting that his pregnant wife and child had died since he had been in gaol, he begged that his transportation sentence should be commuted to corporal punishment so ‘that he may not be forced into foreign Parts, but remain in England’.x6 There was a similar revulsion against transportation by those who had experienced it in the colonies. At least two former transports left vivid accounts of their sufferings in bondage in Maryland in the mid-eighteenth century.x7 Most felons, however, demonstrated their antipathy to transportation by fleeing from their employers whenever possible - as the hundreds of newspaper advertisements for runaway convicts reveal. All sorts of strategies were tried. Some convicts stole horses or canoes to make a quick getaway; some

x4 See Sir John Fielding to the Earl of Suffolk, note 40 above. xs Petition of Elizabeth Howard, 1728, Misc. MSS. 38.3, Corporation of London Records Office, Guildhall, London. Howard’s crime is not stated, but the petition notes that she was ‘disguis’d in Liquor’ when committing the offence. Her sentence was changed, on account of her youth, from transportation to an unspecified punishment and discharge. x6 Petition of James Barton, n.d, ibid. Barton’s transportation sentence was altered; he was put on bail for three years and allowed to stay in England. x7 See The Sufferings of William Green (London, 1774) and An Apology for the Life of Bumpfylde-Moore Carew (London, ?1749).

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KENNETH MORGAN attempted to sign as sailors on board ship; some escaped with the tools of their trade; and a good many ran off with either slaves, indentured servants or seamen.8x The overall aims were mobility and a desire to return home to Britain. By the use of good hands, a stout heart and fast feet, runaway convicts, like fleeing slaves or indentured servants, gave their response to the major reality of lower-class life in colonial America: the exploitation of unfree labour.89

xx Here is a very selective list of relevant advertisements that illustrate these points (with the names of convicts in brackets): Maryland Gazette, 16 October 1751 (Joseph Rainbird and James Cole) and 10 August 1769 (William Gafford); The Maryland Journal and Baltimore Advertiser, 19 June 1776 (Thomas Scott); Dunlap, Maryland Gazette; or the Baltimore General Advertiser, 18 July 1775 (Richard Dawson); Purdie and Dixon, Virginia Gazette, 21 June 1770 (John Booker and John Libiter); Parks, Virginia Gazette, 28 April-5 May 1738 (Thomas Lee, George Barry, William Waters); Hunter, Virginia Gazette, 12 March 1752 (John Osborne and Anne Barrett); Rind, Virginia Gazette, 7 September 1769 (Francis Redman and John Larkins). '' Cf. Rediker, 'Good Hands, Stout Heart, and Fast Feet', passim.

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