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on works of public utility, the duration of which is dependent on the convict's conduct and industry, and a period of discharge on licence subject to special supervision by the police. The difference lay in the third period: the ticket-of-leave granted to a convict under sentence of transportation only allowed him to be at large in a colony; the licence granted under the Act of 1853 allowed him to be at large only in the United Kingdom; and since 1864 this limitation has been removed, and the licence allows him to be at large anywhere. There have been a good many minor modifications of the law since 1857 affecting in particular the conditions under which a convict serves the third part of his sentence, i. e. the period when he is at large on licence, but in its main outlines the penal servitude of to-day is still practically identical with the system adopted in 1847 for persons under sentence of transportation, with this distinction, that in 1847 it was intended that a convict should be discharged from prison into a colony, and now he is discharged at the place where he was convicted. It is even a question whether the present system could not have been established under the Acts relating to transportation without fresh legislation at all; but if this is too hazardous a speculation to embark on, it will at least be seen that the present system has been established wholly by administrative action, and that legislation has at the most facilitated the process and in no way directed it.

The origin of penal servitude then has to be sought in transportation, and has to be sought at a distance of just 300 years. The history of transportation has been often told from one point of view. How first the American colonists, and especially the colonists of the West Indies, required labourers to till their lands; how in later times the Irish of Cromwell's day, and those concerned in various risings and conspiracies towards the end of the seventeenth century, were sent out for the purpose; how afterwards the supply of negroes from Africa rendered white slaves unnecessary; how then the American colonists resisted transportation from this country, and how the achievement of their independence made the system for a time impossible; how it revived on the discovery of Australia ; the abuses to which the system as reconstituted at the end of the last century gave rise, the strenuous resistance to its continuance offered by the Australian colonists and others at the beginning of the present reign, the successive reforms introduced in order to meet their objections, and the final determination to abandon it altogether as a part of our penal system-all this has been frequently told and need not now be repeated, but the legal basis on which the system rested is not so familiar, and a review of its gradual development during three centuries affords a curious and striking illustration of

the tenacity with which legal ideas once established hold their ground long after their practical application has been completely transformed.

It is a curious coincidence that as penal servitude was established eo nomine by statute as a substitute for transportation, so transportation makes its first appearance in the statute book as a substitute for a form of penal servitude.

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It is well known that the increase in the number of masterless men, sturdy rogues, and other disorderly persons, engaged the attention of the Legislature during the reign of Henry VIII. Various Acts passed for restraining this evil were repealed in 1547 by the Act 1 Edw. VI. cap. 3, which provided in lieu of the earlier statutes that a vagabond, i. e. any runagate servant or any other which liveth idly and loiteringly,' should be brought by any one who had offered him work which he had refused, or had entered into an agreement with him for service which he had broken, before two justices of the peace, who should cause him to be branded on the breast with a V, and adjudge him to such presentour to be his slave to have and to hold the said slave unto him his executours or assignes for the space of two yeeres then next following.' The master was to supply bread and water or 'small drinke and such reffuse of meate as he shall think meete,' and 'cause the said slave to worke by beating, chaining or otherwise in such worke and labour (how vile soever it bee) as hee shall put him unto.'

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If the slave ran away he was to be branded on the forehead or cheek with an S and adjudged slave for ever, and a second flight amounted to felony.

Section 8 expressly gave the master a property in his slave of the same kind as in any other his moveable goods or chattels.'

If, however, no one wished to have such a rogue and vagabond in service, he might nevertheless be branded with the V and sent to the place where he was born, to be slave either to the corporation of the citie' or to individual inhabitants in turn. Vagabonds born outside the realm could be sent to their own country. This is a curious anticipation of the assignment' of transported convicts in vogue 200 years later, and it will be seen later that the idea of property in the offenders under this Act persisted in a very curious way till quite modern times, and has probably materially affected the treatment of a very much larger class of delinquents.

The Act was repealed two years later by 3 & 4 Edw. VI. cap. 16, and the earlier law revived with considerable additions. Under this Act' valiant beggars or sturdy vagabonds' were to be whipped or put in the stocks. It was confirmed by statutes of 1551 (5 & 6 Edw. VI. cap. 2), 1555 (2 & 3 Ph. & M. cap. 5), and 1562 (5 Eliz.

cap. 3), and in 1572 and 1576 the law was made more rigorous (14 Eliz. cap. 5, and 18 Eliz. cap. 3) by allowing punishment by boring the ear, imprisonment, and finally death as a felon. These punishments, however, were abolished in 1593 by 35 Eliz. cap. 7 ; and in 1597 all previous statutes on the subject were repealed, and further provisions made by the Act 39 Eliz. cap. 4 for dealing with the different kinds of persons included under the denomination of 'rogues, vagabonds, and sturdy beggars.' Any such person could be arrested by the appointment of a justice of the peace, constable, headborough or tythingman- the tything man or headborough being assisted therein with the advice of the minister and one other of that parish'-and was to be thereon stripped to the waist and openly whipped untill his or her bodie be bloudie'; and afterwards the offender, furnished with a certificate of the punishment having been duly carried out, was to be sent back to the parish where he was born or where he last dwelt for the space of a year, 'there to put him or her selfe to labour as a true subject ought to doe.' If the parish where he was born or last dwelt could not be ascertained, he was to go to the village through which he last passed without punishment, to be thence conveyed to the house of correction or common gaol, and there to be employed at work until such time as he could be placed in some service or received in an almshouse.

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If, however, any such offenders shall appeare to be daungerous to the inferiour sort of people' or otherwise be such as will not be reformed of their roguish kind of life,' they were to be committed to the common gaol or house of correction, and being brought up at the next Quarter Sessions might be banished out of this realme and all other the dominions thereof, and at the charges of that countrie (? county) shall be conveied unto such parts beyond the seas' as might be assigned by the Privy Council, or might else 'be judged perpetually to the galleys of this realme.' A rogue and vagabond returning from such banishment was guilty of felony.

This appears to be the only statute under which an offender could be condemned to the galleys. It is possible that the galleys may have been to some extent supplied by felons condemned to death and pardoned conditionally on their serving in this capacity. Mr. Corbett, in his 'Drake and the Tudor Navy' (1898, i. 402), points out that there is evidence of convicts being employed on galleys in the early part of the sixteenth century; and that in 1582 and 1584 there was a project for making a similar use of felons convicted at Assizes of the less heinous crimes when sentence of death was respited. But at this time there was only one galley enrolled in the Royal Navy, and there is no extant evidence of

servitude in the galleys having ever been anything but an altogether exceptional form of punishment so far as England is concerned.

The special interest of this statute of 1597, however, for our present purpose is that it fixed the lines on which transportation was to be subsequently developed, and that in order properly to understand this development it is important to notice the class of offenders to whom it was first applied and the kind of treatment that was deemed suitable for them. The legislation in 1597 was clearly not so much imposing a specific punishment for a specific offence as providing a means of dealing with an undesirable class of the community. Labour was to be enforced not so much as a punishment as by way of keeping sturdy rogues out of mischief; and when a rogue was shown to be incorrigible, he was practically to become a slave in order that he might work for the public good. This had been enacted explicitly by the statute of 1547, but though the law establishing actual slavery in such cases had been repealed, it can scarcely be doubted that the Act of Elizabeth was intended to put something very similar in its place; and the later history of transportation shows that this is actually what happened. The political offenders transported to the plantations during the seventeenth century were virtually slaves to the colonists to whom they had been assigned, and there is every reason to believe that the earlier transportees' were no better off. But it is probable that the greater number of these were reprieved felons. We have no evidence of the provisions for transporting mere vagrants, which are contained in the Act of 1597, having ever been put into effect. Among the State papers there are many at the end of the sixteenth and beginning of the seventeenth century which relate to the measures to be taken for repressing vagrancy, but apart from a proclamation in 1603, assigning Newfoundland, the East and West Indies, France, Germany, Spain, and the Low Countries as places to which incorrigible and dangerous rogues might be sent, there is no evidence of transportation having been actually resorted to. It may be conjectured that in this as in other matters the central Government found it impossible to get the local authorities to take active steps for carrying out the policy laid down by Parliament. Just as Quarter Sessions were slow to provide the houses of correction they were required to build for the criminal and vagrant population, so no doubt they failed to use the other powers with which they were vested for getting rid of them.

In the early part of the seventeenth century there are among the State papers notices of various commissions sent to Lords-Lieutenant and other county authorities for putting the statute of 1597

into force. There is also the draft of a bill, dated 1654, for the transportation of vagrants to the Western Colonies; and in 1656 Cromwell's major-generals and commissioners were urged to treat with merchants for this purpose. Then by the Act 13 & 14 Car. II. cap. 12, power was again expressly given to Quarter Sessions to transport incorrigible vagrants. If these measures had been carried out consistently, a system of penal servitude might have been evolved by local authorities under the supervision of Parliament in the same way as imprisonment with hard labour has grown up. But things have turned out differently. This mode of punishment has, in fact, been carried out directly by the central Government : Secretaries of State have fixed the places where the punishment is to be undergone and the form it is to take; the Legislature has merely given facilities for the discharge of this duty; and royal commissions have done little more than report on the results obtained and suggest improvement in minor details. Though the right of property in the service of the persons liable to transportation was not explicitly recognized by statute till the eighteenth century, it can scarcely be doubted that some idea of the kind did from the first have a direct influence on their mode of treatment. It would naturally grow up, partly by analogy with other contracts of service, partly from the fact that the offenders had by their conviction of felony forfeited all civil rights, and having been saved from the capital penalty only by the intervention of the Crown, were to be regarded as wholly at the disposal of the Crown.

Under 18 Car. II. cap. 3, Judges of Assize could transport or cause to be transported for life to the plantations in America mosstroopers convicted in Cumberland or Northumberland as 'notorious thieves and spoil-takers.' Here transportation is clearly a mode of getting rid of disorderly persons, and the fact that their offences had to some extent a political complexion, no doubt made the imposition of this punishment seem more natural. But in an Act of 1670 it is recognized for more ordinary offenders in the form which it retained for more than a century afterwards. By 22 Car. II. cap. 5 benefit of clergy was taken away from certain offences against the State, such as stealing naval or military stores, but power was given to the Court before whom an offender was convicted to stay execution and to cause the offender to be transported to the plantations, and there to be kept to hard labour for seven years, judgment of felony to be executed on him should he return before. A similar treatment for persons guilty of fireraising and other malicious damage to property was authorized by an Act of 1670 (22 & 23 Car. II. cap. 7); and in later statutes it was more and more frequently used as a means of disposing both

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