Penal transportation (or simply transportation) was the relocation of convicted criminals, or other persons regarded as undesirable, to a distant place, often a colony, for a specified term; later, specifically established penal colonies became their destination. While the prisoners may have been released once the sentences were served, they generally did not have the resources to return home.
Banishment or forced exile from a polity or society has been used as a punishment since at least the 5th century BC in Ancient Greece. The practice of penal transportation reached its height in the British Empire during the 18th and 19th centuries.
Transportation removed the offender from society, mostly permanently, but was seen as more merciful than capital punishment. This method was used for criminals, debtors, military prisoners, and political prisoners.
Penal transportation was also used as a method of colonization. For example, from the earliest days of English colonial schemes, new settlements beyond the seas were seen as a way to alleviate domestic social problems of criminals and the poor as well as to increase the colonial labour force, for the overall benefit of the realm.
Great Britain and the British Empire
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.
Trend towards more flexibility of sentencing
In the 17th to early 19th 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
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.