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of those felons who would otherwise have escaped their proper punishment by obtaining the benefit of clergy, and of those for whom the death penalty, though due, was considered too severe a punishment.
In 1717 the law was made more general by the Act 4 Geo. I. cap. 11, which expressly empowered Courts to pass sentence of transportation for seven years on all convicted felons who were entitled to benefit of clergy, and provided further, that where any offenders excluded from the benefit of clergy should be pardoned on condition of transportation, the Court on receiving notification thereof from a Secretary of State should allow such offenders the benefit of a pardon under the Great Seal,' and make an order for their transportation either for fourteen years, or for such other term as may have been made part of the condition of their pardon.
In either case the Court was to 'convey, transfer, and make over such offenders ... to the use of any person or persons who shall contract for the performance of such transportation, to him or them, and his and their assigns,' and the contractors and their assigns were to have a property and interest in the service of such offenders for such term of years. The contractors were to give security for the transportation of the convict and for keeping them safe in the colonies. To return to this country before the expiration of the sentence was made a felony without benefit of clergy. The reasons for the statute are stated in the preamble to be that many offenders to whom royal mercy has been extended upon condition of transporting themselves to the West Indies, bave often neglected to perform the said condition, but returned to their former wickedness,' and that in many of His Majesty's colonies and plantations in America there is great want of servants.' It is significant that section 5 of the statute provided that. Whereas there are many idle persons who are under the age of one and twenty years lurking about in divers parts of London and elsewhere and want employment, and may be tempted to become thieves if not provided for ; and whereas they may be inclined to be transported and enter into services in some of His Majesty's colonies and plantations in America, but as they have no power to contract for themselves (i.e. being minors) and therefore that it is not safe for merchants to transport or take them into such services,' contracts for the purpose might be made before two justices of the peace, and being registered at Quarter Sessions would thereby become binding on all parties.
The provisions of this statute have been cited at some length because they illustrate very clearly the two features of the system of transportation which have speciallysinfluenced the development of the modern system of penal servitude, namely, the position of the offender as being wholly within the mercy of the Crown, and liable to be dealt with as might be thought best; and, secondly, the character of his punishment—that is to say, labour exacted from him not merely as a penalty, but rather for the public good and to keep him out of mischief. A hundred years later we find these characteristics still maintained by the Legislature. In the Act of 5 Geo. IV. cap. 84, the phraseology of the statute of 1717 is preserved: the contractor indeed is now merely a contractor for conveying the convict across the seas, and the Secretary of State is to name the Governor of a colony or some other person to whom he is to be delivered, but as soon as delivery is effected, 'the property in the service of such offender is to be vested in the Governor of the colony for the time being, or in such other person or persons, and it could be assigned to any other person. The property is no longer in the offender himself, but only in his service; still the underlying idea is not very different. Further, it will be seen that the Secretary of State is allowed to carry out the sentence of transportation in whatever way he pleases.
In 1853, when penal servitude was first established eo nomine, Parliament provided that all Acts relating to persons sentenced to transportation-of which the Act of 1824 was then the most important-should extend and be applicable to persons sentenced to penal servitude. Immense as has been the change in the treatment of convicts since the days of transportation, it appears, therefore, that the legal theory still in a manner subsists whereby the State, now represented by the Directors of Convict Prisons, has a right of property in their service; and, at all events, Parliament has imposed no restrictions on the mode of dealing with them. The historical distinction between a prisoner under sentence of penal servitude and one sentenced to imprisonment with or without hard labour has been largely obliterated in practice, but in law it remains very noticeable as a curious relic of the past.
In fact, while administration has undergone such numerous and such profound changes, the statutory provisions on which it has been based merely illustrate, without essentially modifying, the principles that were established by the beginning of the eighteenth century.
Thus in 1719 the Act 6 Geo. I. cap. 23 amends the procedure for securing a felon's transportation by providing that the Court by which the felon has been convicted may nominate two or more justices of the peace to make contracts for this purpose, and that the costs of making the contracts and handing over the prisoners to the contractors for transportation may be paid from county funds. The securities to be taken were to be in the name of the clerks of the peace, who might sue for penalties for breach of the bond.
Then in 1743, by 16 Geo. II. cap. 15, penalties for felons ordered to be transported and returning to this country were extended to those who had agreed to transport themselves on conditions ; and in 1747, 20 Geo. II. cap. 46 was a similar enactment with special reference to the persons transported in connexion with the rising
Again, in the preamble to 8 Geo. III. cap. 15, which considerably simplified the procedure for effecting the transportation of convicts, the reason for the Act is represented as being that by the existing method offenders lie several months in gaol after conviction, whereby they are rendered less capable of being useful to the public in the parts of America to which they are sent.'
It may be noted that this Act again expressly declared that the contractors for transporting convicts and their assigns shall have a property and interest in the service of such offenders' for the term of their sentence; and such a clause became common form in subsequent statutes of a similar character.
It is also to be noted that the State had not yet recognized any duty incumbent on it in respect of the transported convict. A system had grown up whereby this country could get rid of the more heinous offenders, and so long as the means of doing so existed there was no need to consider what happened to the offenders after they were transported. But in 1776 it became evident that as the American colonies were actually in revolt, we could not get rid of our convicts by the simple mode of transporting them there. Hence the Act of 16 Geo. III. cap. 43, which, as a temporary measure for two years only, allowed hard labour in this country to be substituted for transportation; though from the terms of the preamble, which is a masterpiece of make-believe, no one would suspect but that transportation was being discontinued as a mere measure of expediency : Whereas 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 courses.' The utility of convicts' labour in this country was thus only recognized by Parliament when it was no longer possible to compel the colonists to accept the benefit of it in America; and henceforth the best mode of utilizing this labour is found to be an exceedingly troublesome question.
At first, at all events, the State showed no great readiness to
undertake the duty. Persistent attempts were made to throw the responsibility for looking after the offenders, who were or ought to be sentenced to transportation, on local prison authorities. Under the Act of 16 Geo. III, the Justices of Middlesex were to appoint an overseer or overseers to manage and direct works for the dredging and cleansing of the Thames and the improvement of its channel for the purposes of navigation, and on this work convicts were to be employed—the only conditions being that while so employed they were to be clothed and supplied with bread and any coarse or inferior food and water or small beer,' and should be given on discharge a decent suit of clothes and a gratuity, not less than 408. and not more than £5.
Further, in every county the justices were to take into consideration' the state of the houses of correction, and appoint places either there or elsewhere for receiving offenders ordered to hard labour in lieu of being transported. Such offenders were to be kept quite separate from all other prisoners, and to be under overseers specially appointed by Quarter Sessions.
This statute might have led to the development of a system of penal servitude under the local prison authorities pari passu with the development of imprisonment, and had the work been taken up then with any vigour we should have been spared much subsequent difficulty and confusion. But vigour for such a purpose was not to be expected from the country justices of the eighteenth century; and in the year 1779 when, as the preamble to the Act 19 Geo. III. cap. 74 recites, transportation to the American colonies was still ‘attended with many difficulties,
' the State took upon itself the duty of erecting in one of the home counties 'two plain, strong and substantial edifices or houses which shall be called the Penitentiary Houses, for confining six hundred male and three hundred female convicts. Three supervisors were to be appointed for the purpose by the King in Council, and the site was first to be approved by the Lord Chancellor, the Speaker of the House of Commons, the Judges of the King's Bench and Common Pleas, the Barons of the Exchequer, and the Lord Mayor of London. The labour on which the inmates were to be engaged was to be sufficiently remunerative to pay salaries for governors and taskmasters. A fixed number of the offenders liable to transportation might be sent there from each of the circuits for terms of hard labour
up to seven years; the others were to serve on board hulks either on the Thames, as under the Act of 1776, or on some navigable river designated by Order in Council under superintendents locally appointed. The superintendents or governors of the penitentiaries were to have the same powers as gaolers at common law. Extremely minute regulations were made for the discipline to be maintained and the treatment of the prisoners there, including a rudimentary progressive stage system, a reduction of the term of detention on account of good conduct, and the grant of gratuities on discharge. Similar regulations were to be observed as far as possible by the superintendents and other officers of the places appointed for the confinement of such convicts as could not be received in the penitentiaries. These regulations form the basis of subsequent prison legislation.
The expenses were to be defrayed from funds provided by Parliament; and in fact the statute lays down an excellent and comprehensive scheme for dealing with the whole of our criminal population.
Unfortunately it was not carried into effect; and though further provision for the same purpose was made by 34 Geo. III. cap. 84, no State penitentiary was actually erected till 1813, when Millbank was begun, in pursuance of the Act 52 Geo. III. cap. 44, on the same lines as those laid down in the Act of 1779.
The truth seems to be that the discovery of Australia suggested a much easier and more effective way of disposing of convicts ; for it was no doubt hoped that if they were shipped there, as little would afterwards be heard of them as was heard of the convicts transported in the old days to America.
In 1784 the Act 24 Geo. III. cap. 56, following very closely the lines of earlier statutes, made temporary provision for transportation. Orders in Council might be made assigning places either within or without His Majesty's dominions to which convicts might be sent ; and they were to be conveyed by contract as under previous statutes, the contractors and their assigns being vested with a property in the service of the convicts. In default of transportation provision was indeed made for the detention of convicts in places appointed for that purpose either by Order in Council or by three or more justices of the peace ; but so long as they could be shipped elsewhere this provision was not likely to be much resorted to. On this basis the modern system of transportation was founded, but whatever may have been anticipated from it, the results of shipping over our criminal classes to a continent where there were no Europeans, except such as might be persuaded to go there in order to give them employment, was very different from the results that had been obtained when they were shipped to colonies where, at all events in the first instance, there was a great demand for cheap labour. The Government, in fact, could no longer free itself altogether from responsibility for the transported convicts, though it did its best to discharge that responsibility on the other side of the globe