THE ACT OF PARLIAMENT ESTABLISHING THE COLONY. THE Orders-in-Council were followed by the Act 27 Geo. III, c. 2, passed in the year 1787, "to enable his Majesty to establish a Criminal Judicature on the eastern coast of New South Wales and the parts adjacent." Whereas by an Act made and passed in the twenty-fourth year 1787 of his present Majesty's reign, intituled-An Act for the effectual 24 Geo. III, transportation of felons and other offenders, and to authorise the c. 56. removal of prisoners in certain cases, and for other purposes therein mentioned, it is enacted that, from and after the passing of that Act, when any person or persons at any Sessions of Oyer or Terminer or Gaol Delivery, or at any Quarter or other General Session of the Peace to be holden for any county, riding, division, city, town, borough, liberty, or place, within that part of Great Britain called England, or at any Great Session to be holden for the County Palatine of Chester, or within the Principality of Wales, shall be lawfully convicted of grand or petit larceny, or any other offence for which such person or persons shall be liable by the laws of this realm to be transported, it shall and may be lawful for the Court before which any such person or persons shall be convicted as aforesaid, or any subsequent Court holden at any place for the same county, riding, division, city, town, borough, Court may liberty, or place respectively, with like authority, to order and order transadjudge that such person or persons so convicted as aforesaid shall be transported beyond the seas for any term of years not exceeding the number of years or terms for which such person or persons is or are or shall be liable by any law to be transported; and in any such case it shall or may be lawful for his Majesty, by and with the advice of his Privy Council, to declare and appoint to what place or places, part or parts, beyond the seas, either within his Order-inMajesty's dominions, or elsewhere out of his Majesty's dominions, such felons or other offenders shall be conveyed or transported: place of And such Court as aforesaid is thereby authorised and empowered tion. to order such offenders to be transferred to the use of any person or persons, and his or their assigns, who shall contract for the due performance of such transportation: And when his Majesty, his heirs and successors, shall be pleased to extend mercy to any offender or offenders who hath or have been, or shall be convicted of any crime or crimes, for which he, she, or they is or shall be by law excluded from the benefit of clergy, upon condition of transportation to any place or places, part or parts, beyond the seas, either for term of life, or any portation. Council may appoint transporta 1787 number of years, and such extension of mercy shall be signified by one of his Majesty's Principal Secretaries of State, it shall be lawful for any Court, having proper authority, to allow such offender or offenders the benefit of a conditional pardon, and (except in cases where such offenders shall be authorised by his Court may Majesty to transport himself, herself, or themselves) to order the transfer of such offender or offenders to any person or persons who shall contract for the due performance of such transportation, and his or their assigns, for such and the same term of years for which any such offender or offenders shall have been ordered to be transported, or for such term of life or years as shall be specified in such condition of transportation : order transfer of con victs to contractor. Order-inCouncil appointing New South Wales. Order of Court for transportation. civil go vernment. And whereas his Majesty, by two several Orders-in-Council, bearing date respectively on the sixth day of December, 1786, hath judged fit, by and with the advice of his Privy Council, to declare and appoint the place to which certain offenders, named in two lists to the said several Orders-in-Council annexed, should be transported for the time or term in their several sentences mentioned, to be the eastern coast of New South Wales, or some one or other of the islands adjacent : And whereas Sir James Eyre, Knight, and Sir Beaumont Hotham, Knight, two of the Barons of his Majesty's Court of Exchequer of the degree of the coiffe, according to the authority to them given by the said statute, did, on the thirtieth day of December, 1786, order that the said several offenders, in the said several lists to the said several Orders-in-Council annexed, should be transported to the place and for the time and terms aforesaid : And whereas it may be found necessary that a colony and a civil Government should be established in the place to which such Colony and convicts shall be transported, under and by virtue of the said Act of Parliament, the said two several Orders of Council, and other the said above-recited Orders, and that a Court of Criminal Jurisdiction should also be established within such place as aforesaid, with authority to proceed in a more summary way than is used within this realm, according to the known and established laws thereof: Criminal Criminal Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Government Temporal and Commons, in this present Parliament assembled, and may convene by the authority of the same, that his Majesty may, by his Commission under the Great Seal, authorise the person to be appointed Governor, or the Lieutenant-Governor in the absence of the Governor, at such place as aforesaid, to convene from time to time, as occasion may require, a Court of Judicature for the trial and punishment of all such outrages and misbehaviours as, if committed within this realm, would be deemed and taken, according to the laws of this realm, to be treason or misprision thereof, felony or misdemeanor, which Court shall consist of the Judge-Advocate, 1787 to be appointed in and for such place, together with six officers of How his Majesty's forces by sea or land; composed. procedure Which Court shall proceed to try such offenders by calling such offenders respectively before that Court, and causing the charge against him, her, or them respectively, to be read over, which charge shall always be reduced into writing, and shall be exhibited Method of to the said Court by the Judge-Advocate, and by examining witnesses upon oath, to be administered by such Court, as well for as against such offenders respectively, and afterwards adjudging by the opinion of the major part of the persons composing such Court, that the party accused is or is not (as the case shall appear to them) guilty of the charge, and by pronouncing judgment therein Judgment (as upon a conviction by verdict) of death, if the offence be capital, or of such corporal punishment not extending to capital punish- punishment. ment, as to the said Court shall seem meet; and in cases not capital, by pronouncing judgment of such corporal punishment, not extending to life or limb, as to the said Court shall seem meet. of death or corporal Marshal. II. And be it further enacted that the Provost-Marshal, or Provostother officer to be for that purpose appointed by such Governor or Lieutenant-Governor, shall cause due execution of such judgment to be had and made under and according to the warrant of such Governor or Lieutenant-Governor in the absence of the Governor, under his hand and seal, and not otherwise : cases five Provided always that execution shall not be had or done on any capital convict or convicts, unless five persons present in such In capital Court shall concur in adjudging him, her, or them, so accused must and tried as aforesaid, to be respectively guilty, and until the pro- concur. ceedings shall have been transmitted to his Majesty and by him approved. a Court of III. And be it so enacted by the authority aforesaid that the Court to be said Court shall be a Court of Record, and shall have all such Record. powers as by the laws of England are incident and belonging to a Court of Record. * CROMWELL'S PRISONERS. 1651 of war. AFTER the battle of Worcester, when the Scottish army which invaded England to reinstate Charles II was defeated by Cromwell on 3rd September, 1651, and 10,000 prisoners were taken, the Prisoners Scottish prisoners were brought to London, and marched through the city into Tothill Fields. Most of the common soldiers-according to an old chronicle-" were sent to the English plantations, * The Act is silent about the Court of Civil Jurisdiction; post, p. 531. 1651 Slavery in the plantations. Law of and 1,500 of them were granted to the Guiney merchants, and sent to work in the gold-mines there." "All the foot, and others who were taken in the town [of Worcester], except some few officers and persons of quality, were driven like cattle, with a guard, to London, and there treated with great rigour; and many perished for want of food, and being enclosed in little rooms till they were sold to the plantations for slaves, they died of all diseases."— Clarendon, History, book xiii. "It is pretended, of the Scots there were slain about 2,000, and 7,000 or 8,000 taken prisoners, who, being sent to London, were sold for slaves to the plantations of the American isles."-Rapin, History of England. Heath's Chronicle, p. 301, ed. 1676, describes the prisoners as "driven like a herd of swine through Westminster to Tothill Fields, and there sold to several merchants, and sent into the Barbadoes." The prisoners, according to another authority cited in Notes and Queries, Nov. 30, 1850, p. 448, were "sold away slaves, at half-a-crown a dozen, for foreign plantations, among savages." And Echard, History of England, vol. ii, p. 727, says that Cromwell "marched off triumphantly to London, driving 4,000 or 5,000 prisoners like sheep before him, making presents of them, as occasion offered, as of so many slaves, and selling the rest for that purpose into the English plantations abroad." By the jus gentium of that time, all prisoners taken in war were slaves, and could be transported beyond the seas and sold abroad. ! Sale of convicts. 1685 Market value. TRANSPORTATION TO AMERICA. "THE prisoners condemned to transportation were a saleable commodity. Such was the demand for labour in America, that convicts and labourers were regularly purchased and shipped to the colonies, where they were sold as indented servants. The courtiers round James II exulted in the rich harvest which Monmouth's rebellion promised, and begged of the monarch frequent gifts of their condemned countrymen. Judge Jeffries heard of the scramble, and indignantly addressed the King:-'I beseech your Majesty that I may inform you that each prisoner will be worth £10, if not £15, apiece; and, sir, if your Majesty orders these as you have already designed, persons that have not suffered in the service will run away with the booty.' At length the spoils were distributed. The convicts were in part persons of family and education, accustomed to ease and elegance. Take all care,' wrote the monarch, under the countersign of Sunderland, to the Government in Virginia, 'that they continue to serve for ten years at 1685 least, and that they be not permitted in any manner to redeem themselves by money or otherwise until that term be fully expired. Prepare a Bill for the Assembly of our colony, with such clauses as shall be requisite for this purpose. No Virginia Legislature seconded such malice, and in December, 1689, the exiles were pardoned. Tyranny and injustice peopled America with men Colonisation nurtured in suffering and adversity. The history of our colonisa- and crime. tion is the history of the crimes of Europe. "Thus did Jeffries contribute to people the New World. On another occasion he exerted an opposite influence. Kidnapping Kidnapping. had become common in Bristol, and not felons only, but young persons and others, were hurried across the Atlantic and sold for money. At Bristol, the Mayor and Justices would intimidate small rogues and pilferers, who, under the terror of being hanged, prayed for transportation as the only avenue to safety, and were then divided among the members of the Court. The trade was The trade exceedingly profitable-far more so than the slave trade-and had at Bristol. been conducted for years. By accident, it came to the knowledge of Jeffries, who delighted in a fair opportunity to rant. Finding that the Aldermen, Justices, and the Mayor himself were concerned in this kidnapping, he turned to the Mayor, who was sitting on the Bench, bravely arrayed in scarlet and furs, and gave him every ill name which scolding eloquence could devise. Nor would he desist till he made the scarlet chief magistrate of the city go down Handy to the criminal's post at the bar, and plead for himself as a common dandy. rogue would have done. The prosecutions depended till the revolution, which made an amnesty; and the judicial kidnappers, retaining their gains, suffered nothing beyond disgrace and terror." -Bancroft's History of the United States, c. xiv; The Colonies on the Chesapeake Bay. The scene between Jeffries and the Mayor of Bristol is described in North's Life of the Lord Keeper Guildford, vol. ii, p. 24, as follows: "There had been an usage among the Aldermen and Justices of that city [Bristol]-where all persons, even common shopkeepers, more or less, trade to the American plantations-to carry over The Mayor criminals who were pardoned with condition of transportation, and and his men. to sell them for money. This was found to be a good trade, but not being content to take such felons as were convicted at their assizes and sessions, which produced but a few, they found out a shorter way, which yielded a greater plenty of the commodity. And that was this: The Mayor and Justices, or some of them, usually met at their tolsey (a Court-house by their Exchequer) about noon, which was the meeting of the merchants, as at the Exchange at London; and there they sat and did justice-business |