Great Britain and the British Empire{{anchor|Transportation, etc. Act 1799}}
Initially based on the
royal prerogative of mercy, and later under
English law, transportation was an alternative sentence imposed for a
felony. It was typically imposed for offences for which
death was deemed too severe. By 1670, as new felonies were defined, the option of being sentenced to transportation was allowed. Depending on the crime, the sentence was imposed for life or for a set period of years. If imposed for a period of years, the offender was permitted to return home after serving their time, but had to make their own way back. Many offenders thus stayed in the colony as free persons, and might obtain employment as jailers or other servants of the penal colony. England transported an estimated 50,000 to 120,000 convicts and political prisoners, as well as prisoners of war from
Scotland and
Ireland, to
its overseas colonies in the Americas from the 1610s until early in the
American Revolution in 1776, when transportation to America was temporarily suspended by the
Criminal Law Act 1776 (
16 Geo. 3. c. 43). The practice was mandated in Scotland by the
Transportation, etc. Act 1785 (
25 Geo. 3. c. 48), but was less used there than in England. Transportation on a large scale resumed with the departure of the
First Fleet to
Australia in 1787, and continued there
until 1868. Transportation was not used by Scotland before the
Act of Union 1707; following union, the
Transportation Act 1717 (
4 Geo. 1. c. 11) specifically excluded its use in Scotland. Under the
Transportation, etc. Act 1785 (
25 Geo. 3. c. 46) the
Parliament of Great Britain specifically extended the usage of transportation to Scotland. It remained little used under Scots Law until the early 19th century. In Australia, a convict who had served part of his time might apply for a
ticket of leave, permitting some prescribed
freedoms. This enabled some convicts to resume a more normal life, to marry and raise a family, and to contribute to the development of the colony.
Historical background Trend towards more flexibility of sentencing , a 19th-century
convict ship that brought prisoners to Australia In the 17th and 18th centuries, criminal justice in England was severe, later termed the
Bloody Code. This was due to both the particularly large number of offences which were punishable by execution (usually by hanging), and to the limited choice of sentences available to judges for convicted criminals. With modifications to the traditional
benefit of clergy, which originally exempted only clergymen from the general criminal law, it developed into a
legal fiction by which many common offenders of "clergyable" offences were extended the privilege to avoid execution. Many offenders were pardoned as it was considered unreasonable to execute them for relatively minor offences, but under the
rule of law, it was equally unreasonable for them to escape punishment entirely. With the development of colonies, transportation was introduced as an alternative punishment, although legally it was considered a condition of a pardon, rather than a sentence in itself. Convicts who represented a menace to the community were sent away to distant lands. A secondary aim was to discourage crime for fear of being transported. Transportation continued to be described as a public exhibition of the king's mercy. It was a solution to a real problem in the domestic penal system. There was also the hope that transported convicts could be rehabilitated and reformed by starting a new life in the colonies. In 1615, in the reign of
James I, a committee of the council had already obtained the power to choose from the prisoners those that deserved pardon and, consequently, transportation to the colonies. Convicts were chosen carefully: the Acts of the Privy Council showed that prisoners "for strength of bodie or other abilities shall be thought fit to be employed in foreign discoveries or other services beyond the Seas". During the
Commonwealth,
Oliver Cromwell overcame the popular prejudice against subjecting Christians to slavery or selling them into foreign parts, and initiated group transportation of military and civilian prisoners. With the
Restoration, the penal transportation system and the number of people subjected to it, started to change inexorably between 1660 and 1720, with transportation replacing the simple discharge of clergyable felons after
branding the thumb. Alternatively, under the second act dealing with
Moss-trooper brigands on the Scottish border, offenders had their benefit of clergy taken away, or otherwise at the judge's discretion, were to be transported to America, "there to remaine and not to returne". There were various influential agents of change: judges' discretionary powers influenced the law significantly, but the king's and Privy Council's opinions were decisive in granting a royal pardon from execution. The system changed one step at a time: in February 1663, after that first experiment, a bill was proposed to the
House of Commons to allow the transporting of felons, and was followed by another bill presented to the Lords to allow the transportation of criminals convicted of felony within clergy or petty larceny. These bills failed, but it was clear that change was needed. Transportation was not a sentence in itself, but could be arranged by indirect means. The reading test, crucial for the
benefit of clergy, was a fundamental feature of the penal system, but to prevent its abuse, this pardoning process was used more strictly. Prisoners were carefully selected for transportation based on information about their character and previous criminal record. It was arranged that they fail the reading test, but they were then reprieved and held in jail, without bail, to allow time for a royal pardon (subject to transportation) to be organised.
Transportation as a commercial transaction , an artist transported for forging bank notes,
The residence of Edward Riley Esquire, Wooloomooloo, Near Sydney N. S. W., 1825, hand-coloured
aquatint and etching printed in dark blue ink. Australian print in the tradition of British decorative production. Transportation became a business: merchants chose from among the prisoners on the basis of the demand for labour and their likely profits. They obtained a contract from the sheriffs, and after the voyage to the colonies they sold the convicts as
indentured servants. The payment they received also covered the jail fees, the fees for granting the pardon, the clerk's fees, and everything necessary to authorise the transportation. These arrangements for transportation continued until the end of the 17th century and beyond, but they diminished in 1670 due to certain complications. The colonial opposition was one of the main obstacles: colonies were unwilling to collaborate in accepting prisoners: the convicts represented a danger to the colony and were unwelcome.
Maryland and
Virginia enacted laws to prohibit transportation in 1670, and the king was persuaded to respect these. The penal system was also influenced by economics: the profits obtained from convicts' labour boosted the economy of the colonies and, consequently, of England. Nevertheless, it could be argued that transportation was economically deleterious because the aim was to enlarge population, not diminish it; but the character of an individual convict was likely to harm the economy.
King William's War (1688–1697) (part of the
Nine Years' War) and the
War of the Spanish Succession (1701–14) adversely affected merchant shipping and hence transportation. In the post-war period there was more crime and hence potentially more executions, and something needed to be done. In the reigns of
Queen Anne (1702–14) and
George I (1714–27), transportation was not easily arranged, but imprisonment was not considered enough to punish hardened criminals or those who had committed capital offences, so transportation was the preferred punishment.
Transportation Act 1717 There were several obstacles to the use of transportation. In 1706 the reading test for claiming benefit of clergy was abolished (
6 Ann. c. 9). This allowed judges to sentence "clergyable" offenders to a
workhouse or a
house of correction. But the punishments that then applied were not enough of a disincentive to commit crime: another solution was needed. The Transportation Act was introduced into the House of Commons in 1717 under the
Whig government. It legitimised transportation as a direct sentence, thus simplifying the penal process. Non-capital convicts (clergyable
felons usually destined for branding on the thumb, and
petty larceny convicts usually destined for
public whipping) were directly sentenced to transportation to the American colonies for seven years. A sentence of fourteen years was imposed on prisoners guilty of capital offences pardoned by the king. Returning from the colonies before the stated period was a capital offence. The bill was introduced by
William Thomson, the
Solicitor General, who was "the architect of the transportation policy". Thomson, a supporter of the Whigs, was
Recorder of London and became a judge in 1729. He was a prominent sentencing officer at the Old Bailey and the man who gave important information about capital offenders to the cabinet. One reason for the success of this Act was that transportation was financially costly. The system of sponsorship by merchants had to be improved. Initially the government rejected Thomson's proposal to pay merchants to transport convicts, but three months after the first transportation sentences were pronounced at the Old Bailey, his suggestion was proposed again, and the Treasury contracted
Jonathan Forward, a London merchant, for the transportation to the colonies. The business was entrusted to Forward in 1718: for each prisoner transported overseas, he was paid £3 (), rising to £5 in 1727 (). The Treasury also paid for the transportation of prisoners from the
Home Counties. The "Felons' Act" (as the Transportation Act was called) was printed and distributed in 1718, and in April twenty-seven men and women were sentenced to transportation. The Act led to significant changes: both
petty and
grand larceny were punished by transportation (seven years), and the sentence for any non-capital offence was at the judge's discretion. In 1723 an Act was presented in
Virginia to discourage transportation by establishing complex rules for the reception of prisoners, but the reluctance of colonies did not stop transportation. In a few cases before 1734, the court changed sentences of transportation to sentences of branding on the thumb or whipping, by convicting the accused for lesser crimes than those of which they were accused. This manipulation phase came to an end in 1734. With the exception of those years, the Transportation Act led to a decrease in whipping of convicts, thus avoiding potentially inflammatory public displays. Clergyable discharge continued to be used when the accused could not be transported for reasons of age or infirmity.
Women and children Penal transportation was not limited to men or even to adults. Men, women, and children were sentenced to transportation, but its implementation varied by sex and age. From 1660 to 1670, highway robbery,
burglary, and
horse theft were the offences most often punishable with transportation for men. In those years, five of the nine women who were transported after being sentenced to death were guilty of simple larceny, an offence for which
benefit of clergy was not available for women until 1692. Also, merchants preferred young and able-bodied men for whom there was a demand in the colonies. All these factors meant that most women and children were simply left in jail. Some magistrates supported a proposal to release women who could not be transported, but this solution was considered absurd: this caused the Lords Justices to order that no distinction be made between men and women. Women were sent to the
Leeward Islands, the only colony that accepted them, and the government had to pay to send them overseas. In 1696
Jamaica refused to welcome a group of prisoners because most of them were women;
Barbados similarly accepted convicts but not "women, children nor other infirm persons". Thanks to transportation, the number of men whipped and released diminished, but whipping and discharge were chosen more often for women. The reverse was true when women were sentenced for a capital offence, but actually served a lesser sentence due to a manipulation of the penal system: one advantage of this sentence was that they could be discharged thanks to benefit of clergy while men were whipped. Women with young children were also supported since transportation unavoidably separated them. The facts and numbers revealed how transportation was less frequently applied to women and children because they were usually guilty of minor crimes and they were considered a minimal threat to the community.
The end of transportation The outbreak of the
American Revolutionary War (1775–1783) halted transportation to America. Parliament claimed that "the transportation of convicts to his Majesty's colonies and plantations in America ... is found to be attended with various inconveniences, particularly by depriving this kingdom of many subjects whose labour might be useful to the community, and who, by proper care and correction, might be reclaimed from their evil course"; they then passed the
Criminal Law Act 1776 (
16 Geo. 3. c. 43) "An act to authorize ... the punishment by hard labour of offenders who, for certain crimes, are or shall become liable to be transported to any of his Majesty's colonies and plantations." For the ensuing decade, men were instead sentenced to hard labour and women were imprisoned. Finding alternative locations to send convicts was not easy, and the act was extended twice by the
Criminal Law Act 1778 (
18 Geo. 3. c. 62) and the
Criminal Law Act 1779 (
19 Geo. 3. c. 54). This resulted in a 1779 inquiry by a parliamentary committee on the entire subject of transportation and punishment; initially the
Penitentiary Act 1779 was passed, introducing a policy of state prisons as a measure to reform the system of
overcrowded prison hulks that had developed, but no prisons were ever built as a result of the act. The
Transportation, etc. Act 1784 (
24 Geo. 3. Sess. 2. c. 56) and the
Transportation, etc. Act 1785 (
25 Geo. 3. c. 46) but as yet not settled by Britain or any other European power. The British policy toward Australia, specifically for use as a
penal colony, within their overall plans to populate and colonise the continent, would differentiate it from America, where the use of convicts was only a minor adjunct to its overall policy. In 1787, when transportation resumed to the chosen Australian colonies, the far greater distance added to the terrible experience of exile, and it was considered more severe than the methods of imprisonment employed for the previous decade. The
Transportation Act 1790 (
30 Geo. 3. c. 47) officially enacted the previous orders in council into law, stating "his Majesty hath declared and appointed... that the eastern coast of New South Wales, and the islands thereunto adjacent, should be the place or places beyond the seas to which certain felons, and other offenders, should be conveyed and transported ... or other places". The act also gave "authority to remit or shorten the time or term" of the sentence "in cases where it shall appear that such felons, or other offenders, are proper objects of the royal mercy". At the beginning of the 19th century, transportation for life became the maximum penalty for several offences which had previously been punishable by death. The system of criminal punishment by transportation, as it had developed over nearly 150 years, was officially ended in Britain in the 1850s, when that sentence was substituted by imprisonment with
penal servitude, and intended to punish. The
Penal Servitude Act 1853 (
16 & 17 Vict. c. 99), long titled "An Act to substitute, in certain Cases, other Punishment in lieu of Transportation", Over time the alternative terms of imprisonment would be somewhat reduced from their terms of transportation.
Transportation locations British convicts were transported to a number of regions across the British Empire between 1600 and the mid-1800s. In the First British Empire period, North America was the preferred transport location whilst in the Second Empire period, following the
American Revolution, Australia became the preferred location. For a brief period in the mid-1800s the
Cape Colony was considered as an alternative location to transport convicts due to the growing unpopularity of the policy in Australia. This resulted in the
Convict Crisis of 1849 which prevented the colonies in southern Africa from becoming penal colonies.
Transportation to North America From the early 1600s until the
American Revolution of 1776, the British colonies in North America received transported British criminals. Destinations were the island colonies of the
West Indies and the
mainland colonies that became the United States of America. In the 17th century transportation was carried out at the expense of the convicts or the shipowners. The
Transportation Act 1717 allowed courts to sentence convicts to seven years' transportation to America. In 1720, an extension authorized payments by
the Crown to merchants contracted to take the convicts to America. The Transportation Act made returning from transportation a
capital offence. The number of convicts transported to North America is not verified:
John Dunmore Lang has estimated 50,000, and
Thomas Keneally has proposed 120,000. Maryland received a larger felon quota than any other province. Many prisoners were taken in battle from Ireland or Scotland and sold into
indentured servitude, usually for a number of years. The American Revolution brought transportation to the North American mainland to an end. The remaining British colonies (in what is now Canada) were regarded as unsuitable for various reasons, including the possibility that transportation might increase dissatisfaction with British rule among settlers and/or the possibility of
annexation by the United States – as well as the ease with which prisoners could escape across the border. After the termination of transportation to North America, British prisons became overcrowded, and dilapidated ships moored in various ports were pressed into service as
floating gaols known as "hulks". Following an 18th-century experiment in transporting convicted prisoners to
Cape Coast Castle (modern Ghana) and the
Gorée (Senegal) in West Africa, British authorities turned their attention to
New South Wales (in what would become Australia). From the 1820s until the 1860s, convicts were sent to the
Imperial fortress colony of
Bermuda (part of
British North America) to work on the construction of the
Royal Naval Dockyard and other defence works, including at the East End of the archipelago, where they were accommodated aboard the
hulk of
HMS Thames at an area still known as "
Convict Bay", at
St. George's town. on
Ireland Island,
Bermuda, showing
prison hulks
Transportation to Australia warns that damage to the bridge can be punished by transportation. In 1787, the
First Fleet, a group of
convict ships departed from England to establish the first colonial settlement in Australia, as a
penal colony. The First Fleet included boats containing food and animals from London. The ships and boats of the fleet would explore the coast of Australia by sailing all around it looking for suitable farming land and resources. The fleet arrived at
Botany Bay,
Sydney on 18 January 1788, then moved to
Sydney Cove (modern-day
Circular Quay) and established the first permanent European settlement in Australia. This marked the beginning of the
European colonisation of Australia.
Violent conflict on the Australian frontier between
indigenous Australians and the colonists began only months after the First Fleet landed, lasting over a century. Convicts forced to work in
the bush on the frontier were sometimes the victims of indigenous attacks, while convicts and ex-convicts also attacked indigenous people in some instances, such as the
Myall Creek Massacre. In the
Hawkesbury and Nepean Wars, a group of Irish convicts joined the
Aboriginal coalition of
Eora,
Gandangara,
Dharug and
Tharawal nations in their fight against the colonists.
Norfolk Island, east of the Australian mainland, was a convict penal settlement from 1788 to 1794, and again from 1824 to 1847. In 1803,
Van Diemen's Land (modern-day Tasmania) was also settled as a penal colony, followed by the
Moreton Bay Settlement (modern
Brisbane,
Queensland) in 1824. The other
Australian colonies were established as "free settlements", as non-convict colonies were known. However, the
Swan River Colony (Western Australia) accepted transportation from England and Ireland in 1851, to resolve a long-standing
labour shortage. Two penal settlements were established near modern-day
Melbourne in
Victoria but both were abandoned shortly after. Later, a free settlement was established and this settlement later accepted some convict transportation. Until the massive influx of immigrants during the
Australian gold rushes of the 1850s, free settlers had been outnumbered by penal convicts and their descendants. However, compared to the
British American colonies, Australia received a larger number of convicts. Convicts were generally treated harshly, forced to work against their will, often doing hard physical labour and dangerous jobs. In some cases they were cuffed and chained in work gangs. The majority of convicts were men, although a significant portion were women. Some were as young as 10 when convicted and transported to Australia. Most were guilty of relatively minor crimes like theft of food/clothes/small items, but some were convicted of serious crimes like rape or murder. Convict status was not inherited by children, and convicts were generally freed after serving their sentence, although many died during transportation or during their sentence.
Convict assignment (sending convicts to work for private individuals) occurred in all penal colonies aside from
Western Australia, and can be compared with the practice of
convict leasing in the United States. Transportation from Great Britain and Ireland ended at different times in different colonies, with the last being in 1868, although it had become uncommon several years earlier thanks to the loosening of laws in Britain, changing sentiment in Australia, and groups such as the
Anti-Transportation League. In 2015, an estimated 20% of the Australian population had convict ancestry. In 2013, an estimated 30% of the Australian population (about 7 million) had Irish ancestry – the highest percentage outside of Ireland – thanks partially to historical convict transportation.
Transportation from British India In
British India – including the province of
Burma (now
Myanmar) and the port of
Karachi (now part of
Pakistan) –
Indian independence activists were penally transported to the
Andaman Islands. A penal colony was established there in 1857 with prisoners from the
Indian Rebellion of 1857. As the Indian independence movement swelled, so did the number of prisoners who were penally transported. The
Cellular Jail in
Port Blair,
South Andaman Island, also called Kālā Pānī or Kalapani (Hindi for black waters), was constructed between 1896 and 1906 as a high-security prison with 698 individual cells for
solitary confinement. Surviving prisoners were repatriated in 1937. The penal settlement was shut down in 1945. An estimated 80,000 political prisoners were transported to the Cellular Jail ==France==