Prisoners or servants? : a history of the legal status of Britain's transported convicts

The transportation of offenders from Britain between 1717 and 1853 depended upon a legal curiosity. In the administration of a criminal justice system, the private derivative proprietary right of the transportation contractor intruded so as to alter the status of the transported offender. The nature of the contractor's right, enshrined in the 1717 statute 4 Geo I c. 11, though occasionally considered in the literature, has rarely been the subject of any detailed analysis. This thesis sets out to rectify this omission by examining what the contractor's 'property in the services' of a offender actually meant, why it was such a pivotal part of the processes of transportation, how it was transferred to third parties, and with what result. The thesis proceeds through three separate inquiries. In the first, the precursors to the 1717 legislation are reviewed so as to understand whether, and to what extent, the legislation of 1717 was modifying existing practice, or whether it was breaking new ground. The second line of inquiry examines the 1717 legislation, its immediate context, and the development of the scheme of transportation it created up until 1775 and the end of transportation to America. It will be demonstrated that the use of the concept of 'property in the service' of transported offenders was but one way of managing transportation and contrasts to the approach adopted in contemporary Ireland. The third line of inquiry re-examines the practices of transportation to Australia. Using contemporary legislation, government papers and legal instruments, a previously unrecognised outline of early transportations to New South Wales emerges. The thesis demonstrates that the transfer of the contractor's proprietary right operated differentially from England, Ireland, and Scotland. The thesis argues that the nature of the contractor's right to the service of transported offenders meant different things at different times. In colonial America it was clear that, through the process of 'sale', a transported offender became the servant of the transferee. The position in colonial Australia, however, is shown to be much less straightforward than is portrayed in the literature. Prior to 1824, the processes utilised to assign the contractor's property in the services of transported offenders, while resting on the same legal framework utilised in America, was intended to transform a convict into a servant of the governor. The evidence considered in the thesis demonstrates that this was not always successful, leaving the status of the offender in New South Wales in some doubt. Only after 1824 was it beyond question that a transported convict was, legally, a prisoner serving a custodial sentence. This thesis enables a better understanding of the processes of transportation, both to colonial America and then to colonial Australia. By examining these processes through the prism of the status of the transported offenders, a more nuanced understanding of the consequences of transportation emerges.