To Begin the World Over Again

by Matthew Lockwood

  At trial it quickly became clear how Fitzpatrick had been able to pick out the man who robbed him weeks after the event. It had been dark that night, with only the stars to light the robbers’ faces, but John Rogers, who now stood charged with highway robbery, had only one hand. Rogers explained in court that, he had been pressed into the army “and sent to America in Lord Cornwallis’s army, and had my hand shot away, which was cut off in six hours after.” It would have been difficult for a poor, discharged soldier to make a living in the best of circumstances, but without a hand, crime must have seemed one of the only options left. In the end, the wound that marked his loyal service to the crown also marked him out for death. He was identified in court, found guilty, and sentenced to death.17

  Soldiers, and especially wounded soldiers, appear with depressing regularity in the criminal records of the period. William Harris was charged with the theft of a watch in 1782, but was discharged after the court was told that “ever since the prisoner has been in gaol he has had all the appearance of insanity.” “Then you will acquit him, to be sure, Gentlemen,” the court responded. It seems likely that Harris had suffered a traumatic brain injury during the war. He informed the court, “I have been in America this eight years . . . I was wounded in the head with three buck shot in America with my Lord Cornwallis, in five different places; I came home last November; at the full of the moon I am distracted in my head.”18

  The massive growth of crime and convictions that had been spurred by the American War left British authorities with a serious dilemma. In the draconian days of the late eighteenth century, when the Black Act and the Bloody Code still worked their morbid ways, theft of anything valued at more than 1 shilling was a capital offense. Indeed, by the end of the century there were more than 200 separate offenses that carried the penalty of death.19 And yet, while the triple tree and other gallows around Britain hardly lacked for occupants, the sensibilities of the time were hardly so bloody in practice as they appear on paper.

  In the face of such a crime wave, the sheer number of capital offenses required some clever workarounds if whole swaths of the British population were to be spared the noose. Who, after all, would till the fields, wash the linen, and serve the tables if the full effects of the law were brought to bear in every instance? Thus, we encounter the all too frequent farce of the jury that found 10 shillings in coins to be worth only 5 shillings, sparing the life of a petty thief with their pious perjury. And yet as ridiculous as they sometimes were in practice, the laws could not simply be reformed and re-written. Law-makers argued that the terror and majesty of the law were necessary to punish hardened criminals and to provide a deterrent example for more impressionable youths. With harsh laws and merciful hearts at an impasse, a solution was needed that allowed terror and mercy, the twin functions of the British justice system, to work in tandem, showing righteous vengeance to the wicked without executing thousands for theft and other minor crimes.20

  As was so often the case in the period, an answer to this thorny legal dilemma was found in Britain’s colonial possessions. Since the early seventeenth century, British America had been a convenient outlet for the overabundant landless poor, with those tasked with improving the criminal justice system turning to this pleasantly distant dumping ground as a social safety valve for criminals deemed too hardened to remain in Britain but not dangerous enough to necessitate extermination. Such convicts would be transported to the Americas for a term of seven to fourteen years.

  In many ways, the search for novel punishment solutions in Britain helped to remake the Atlantic world, forcibly shifting an estimated 50,000 individuals from the Old World to the New, thereby helping to relieve population pressures in Britain and providing much-needed labor to the colonies. Experiments with penal transportation began under the reign of James I, and bills were proposed to codify the process in the late seventeenth century, but the large-scale movement of convicts to the New World only really began in earnest after the passage of the Transportation Act in 1717. This innovative, seemingly humane punishment steadily grew in popularity over the course of the eighteenth century, peaking in 1765 when transportation represented an astonishing 73.1 per cent of all criminal sentences handed out in London. Even if some judges and politicians began to doubt the penal rigor of transportation to the increasingly prosperous American colonies, at the outbreak of war in 1775 transportation still represented well over half of all criminal sentences in London.21

  Capitalism, as it is wont to do, quickly wormed its way into the transportation system, with contractors vying for the right to ship convicts across the Atlantic and recouping their expenses by selling the labor of the men and women they transported. Upon arrival in Maryland or Virginia, convicts were sold as indentured laborers to the labor-hungry planters of the Chesapeake Tidewater, augmenting the ever-growing supply of other unfree agricultural workers, African slaves and European indentured laborers. Conditions for convict workers varied but, as with all coerced labor, they could be dismal. Like slaves, convict laborers who fled from their masters were actively sought, captured and returned—newspapers of the era are filled with advertisements offering tempting rewards for the return of convict servants.

  The American colonists had mixed feelings about criminal transportation. On the one hand, in many places convicts were a relatively cheap source of labor, a favorable alternative to African slavery. Roughly half of all transported convicts were sent to Maryland and Virginia where they were employed in the labor-intensive tobacco industry. George Washington himself purchased convicts to work his estate at Mount Vernon as late as 1774. The value of convict labor to many Chesapeake planters was real, and alongside the more familiar advertisements for fugitive slaves, newspapers of the time were rife with advertisements seeking the return of convict laborers. For instance, in November 1775, James Braddock of Talbot County, Maryland placed an ad in the Maryland Gazette offering a reward of up to £5 for the capture and return of two convicts.22

  Transportation worked to the benefit of many in the Americas, but there was a dark side to the practice as well. Few Americans trusted convict laborers and sensational stories of their ingrained and unrepentant criminality abounded. When Marylanders gathered to discuss the coming of a new political order and to consider a possible end to penal transportation in the 1770s, they would have remembered John Swift’s brutal murder of the young children of John Hatherly, a prosperous tobacco planter in Elkridge, Maryland, only twenty years earlier. For many Americans, it seemed clear that Britain had sent the dregs of European society to their shores, and hard labor and a change of climate could do little to change such unredeemable refuse. There was no place for such scum in America’s new enlightened empire of liberty.23

  Beyond the practical dangers of accepting perhaps a thousand convicted felons each year, being on the receiving end of the transportation system had a perverse psychological, or at least public relations, impact. Americans bristled with incensed indignation at Samuel Johnson’s cutting quip that the colonists were nothing but “a race of convicts, and ought to be thankful for anything we allow them short of hanging,” and Benjamin Franklin called the practice of penal transportation, “an insult and contempt, the cruelest perhaps that ever one people offered another.” Thomas Jefferson did his level best to sweep the whole sordid history of transportation under the rug. In the years after the revolution and the end of transportation he defensively claimed that:

  the Malefactors sent to America were not sufficient in number to merit enumeration as one class out of three which peopled America. It was at a late period of their history that the practice began. I have no book by me which enables me to point out the date of its commencement. But I do not think the whole number sent would amount to 2000 & being principally men eaten up with disease, they married seldom & propagated little. I do not suppose that themselves & their descendants are at present 4000, which is little more than one thousandth part of the whole inhabitants.24

  In reality, l
arge numbers of felons were still appearing on American shores right up until the outbreak of warfare in 1775. At first, transportation was merely disrupted by the war, with British blockades and the hostility of American ports toward British ships making it difficult for convict ships to land. Most believed this to simply be a temporary halt rather than the end of a system, and as late as May 1776 the British solicitor-general, Alexander Wedderburn, was convinced that once “tranquility was restored to America, the usual mode of transportation might be again adopted.”25 Colonists themselves were unsure of where their provisional governments stood on transportation. When a convict transport landed in Maryland in July 1775, it was met by four men deputed by the local Committee of Observation who scrutinized its logbook, found that it was transporting fourteen felons from Britain and immediately ordered it to turn around in accordance with the boycott on British goods. The captain asked permission to at least land the convicts, citing recent arrivals of convicts at Annapolis and Baltimore, who were just then being advertised for sale. The deputation conferred and came to the decision that the convicts could be landed at the captain’s own risk, because, as they reasoned, “they could see nothing in the proceedings of the congress relative to convicts or servants.”26

  As it transpired, Wedderburn’s optimism was gravely misplaced. For a people determined to create a new, more perfect society independent of Britain, the importation of criminals could hardly be tolerated. To many colonial minds criminal immigrants clogged the courts and slowed the civilizing of American society. In 1751, Benjamin Franklin decried British intransigence in colonial legislation on these matters, stating that “such Laws are against the Publick Utility, as they tend to prevent the Improvement and Well Peopling of the Colonies.” Never short on wit, Franklin turned the logic of transportation as a method of rehabilitation on its head by suggesting that perhaps the British would agree to an exchange of American rattlesnakes for British convicts—perhaps both simply needed a change of climate to reform—concluding that at least “the Rattle-Snake gives Warning before he attempts his Mischief; which the Convict does not.” In the 1770s, America’s leaders once more realized that if their young nation was to be “well peopled” and free from undesirable elements that might breed crime, disobedience, and disorder, British convicts could not be welcomed on their shores, even as low-cost labor. Unwilling to meekly accept the importation of such undesirable cargo any longer, the nascent American states closed their ports to the transportation of convict laborers. And so, in April 1776, a lone convict ship landed in Virginia, the last in a long line of such vessels, disgorging from its hold, for the final time on American shores, the wretched residue of Britain’s courts.27

  By closing the primary outlet for Britain’s criminal underclass, the revolution forced innovations in empire building, colonial settlement, and judicial philosophy. American critics of criminal transportation could not have imagined that the closing of their ports to British convicts would fundamentally alter the history of the world, not just in Britain and America but in Asia and Oceania as well. Within a few years, the search for new dumping grounds for British felons would help lead to the growth of the penitentiary, the conquest of India, and the settlement of Australia.

  The safety valve of colonial exile had been closed by the war, and although harsher and harsher punishment became the norm, nobody could realistically condone executing thousands of desperate souls for petty theft and other minor crimes. But these thousands of convicts could not be freely pardoned, nor their disorderly behavior blithely excused. There were rational, utilitarian considerations to take into account as well. Transportation had been introduced not only as a method of tempering the harshness of English law, but also as a means of best utilizing population resources at a time of growing international competition. The English had long gazed across the Channel with nervous envy at the numerical advantages of France. With concerns over the expense of foreign trade and colonization firmly fixed in their minds, wasting precious manpower by executing criminals became increasingly unconscionable, or at least poor imperial strategy.

  Charles Davenant, the political economist who introduced the idea of the centrality of “balance of trade” for national health, had also claimed:

  The Bodies of Men are without a doubt the most valuable Treasure of a Country . . . the People being the first Matter of Power and Wealth, by whose Labour and Industry a Nation must be Gainers in the Balance, their Increase and Decrease must be carefully observ’d by any Government that designs to thrive; that is, their Increase must be promoted by good Conduct and wholesome Laws, and if they have been Decreas’d by War or any other Accident, the Breach is to be made up as soon as possible, for it is a Maim in the Body Politick affecting all its Parts.28

  Those countries that could best utilize even their marginal populations, the poor and criminal alike, would have an advantage in an increasingly global contest. Transportation had seemed to solve this problem nicely, turning potential corpses into settlers and cheap plantation labor. The closure of American ports to convicts, however, created the need for a new penal solution that gave proper consideration to the needs of retribution, deterrence and national utility.

  With few other options at hand, the authorities took a radical new step in British judicial history, imprisonment as punishment. Imprisonment had, of course, been used for centuries, but until the crisis of the late eighteenth century had usually been reserved for debtors and those awaiting trial. During the American Revolution, however, the British turned to incarceration with gusto. By the end of the war, as many as 30,000 individuals were being imprisoned each year in London alone, representing nearly 3 per cent of the entire population. This figure is all the more astounding when one considers that England’s current incarceration rate is 0.001 per cent of the population, and that even the United States, which has one of the largest prison populations in the world, only imprisons about 0.9 per cent of its population.29

  The birth of a carceral culture in Britain had a long period of gestation. In the face of rapid population growth at a time of economic stagnation, Tudor London converted a former royal palace at Bridewell into an institution designed to house vagrants found within the city, where inmates were to be put to work as a means of correcting their idle and criminal habits. The idea of incarcerating and disciplining the transient poor spread across the country and “workhouses” began to crop up in many English cities and towns. Over the next two hundred years, the idea of reforming criminals, or the poor population from which they were invariably thought to come, through forced labor would become a regular feature of political debate. In 1576, Parliament pressed every English county to set up a workhouse and fifty years later James I created a commission with the power to convert sentences of transportation to “toyle in some such heavie and painful manuall works and labors here at home and be kept in chaines in houses of correction.” In 1652, a commission directed by Sir Matthew Hale tasked with investigating possible law reforms, proposed a broad system of incarceration, but its recommendations were rejected when Oliver Cromwell dismissed the Barebones Parliament that had established the commission. A similar commission under the direction of the novelist and magistrate Henry Fielding likewise had its recommendation that some felons should be sentenced to work in the royal dockyards rejected when it failed to pass in the House of Lords in 1751.30

  The sad state of existing prisons and jails had long been public knowledge, and throughout the eighteenth century attempts were made to reform the system and improve conditions. As early as 1729, James Oglethorpe, the eventual founder of the colony of Georgia, had been tasked with leading a parliamentary inquiry into the wretched state of the country’s jails and prisons. By the second half of the eighteenth century, these reformers began to turn to calls to replace capital sentences and other forms of physical punishment with imprisonment. Perhaps the most influential voice in the rising chorus of penal reformers belonged to the Italian theorist Cesare Beccaria. In his highly inf
luential 1764 treatise, On Crimes and Punishments, Beccaria advocated for a rationalization of criminal justice that would bring European legal systems in line with Enlightenment principles of order, consistency, and utility. To this end, Beccaria argued that punishment should be designed to serve the greatest public good. Capital punishment, which focused on retribution, was by this metric of less value to society than incarceration, which allowed for both deterrence and the possibility of rehabilitation.31

  Beccaria’s reformist agenda, and perhaps especially his advocacy of imprisonment over execution, would influence the thinking of countless luminaries of the era, including Jeremy Bentham, Thomas Jefferson, and John Adams, but in Britain his Enlightenment principles would become suffused with evangelical Protestantism in a manner that had long-lasting consequences for the history of penal reform. For men such as John Howard, one of Britain’s foremost philanthropists and prison reformers, if incarceration was to lead to rehabilitation, the removal of the negative influences of prison sociability and the institution of enforced silence and personal reflection were pre-requisites. Howard came by his reformist views by experience. In 1755, while en route to Portugal, Howard had been captured by the French and imprisoned at Brest. Thus, when in 1773 he was appointed Sherriff of Bedfordshire, he quickly became alarmed at the dreadful state of the county’s prisons. Over the next four years Howard toured prisons throughout Britain and Europe, with his fact-finding mission culminating in his 1777 work, The State of the Prisons in England and Wales. Howard’s opus not only detailed the poor conditions of most prisons and the ill-health of the prisoners housed within, but also put forward a much-needed reform agenda. Among a host of suggestions, Howard advocated for single-cell housing of prisoners as a means of preventing the spread of disease, ensuring order and forcing reflection on sin and misdeeds. Howard’s ideas were well received, earning the support of other reformers such as the philanthropist Jonas Hanway, who argued for the use of imprisonment as a method for reforming the idle and criminal poor. Spurring the government to take concrete action, however, was nigh on impossible in ordinary times. Only in a time of crisis would the government be forced to act. The American Revolution provided just such a crisis.32