Felonious Returns, or There’s No Place Like Home

By Natasha Bailey

Joseph Parker was indicted for that at the Sessions of Gaol-Delivery holden at the Old-Baily… [he] was duly convicted of stealing the Goods of the said Rice Price, to the value of 4 s. and 10 d. and was accordingly ordered to be transported to some of his Majesty’s Colonies, or Plantations, in America, for 7 Years, according to the Statute in that Case made and provided: And that he, (the said Parker) afterwards, to wit, on the 5th of January last, feloniously, and without lawful Cause, was at large, in the Parish of St Michael Quern, before the Expiration of the Term he was ordered to be transported for…¹

It’s a hot summer day on Newgate-street as Rice Price hurries up the road, past the old Franciscan buildings of Christ’s Hospital, weaving through the throng of people.² With Newgate Market just off to the left and Newgate Prison and the Old Bailey courts just at the end of the street, there’s always a crowd. So it’s not surprising in itself that Price sees a familiar face, nor that it belongs to a lawbreaker: a fellow with an unusual mark on his cheek and whose voice he remembers from when he made off with a silver instrument case from Price’s shop last year. But what is he doing here? Isn’t he supposed to be on the other side of the Atlantic?

When it comes to crime and punishment in the eighteenth and nineteenth century, transportation has loomed large in our historical imagination. We tend to think of convicts being shipped to Australia, often for minor offences, never to return to their homeland. Transportation as a criminal punishment in England (and later in Britain) looked quite different for much of this time, however. Offenders were being sentenced to transportation well over a century before the colonisation of Australia and were sent comparatively nearer to home. Until the 1770s, those transported were sent to British colonies in North America, generally Virginia or Maryland. And of course, a transatlantic passage was far quicker and more affordable compared with a voyage to the edge of the southern hemisphere… Between 1720 and 1869, 392 defendants were tried at the Old Bailey for the crime of “feloniously returning from transportation” before their sentence had elapsed.

Transportation had been suggested as an alternative to imprisonment as early as 1584. In his Discourse of Western Planting, the writer Richard Hakluyt suggested that amongst the virtues of an English colony in Virginia would be the useful employment of “the many thousandes of idle persons within this realme… [who] often fall to pilferinge and thevinge and other lewdnes”.³ In 1613, only six years after the establishment of the first permanent colony at Jamestown, the first convicts were sent to Virginia. Other destinations included Maryland and the Carolinas, where labour was particularly needed for tobacco and cotton plantations. Transportation intensified during the eighteenth century; as sentencing became increasingly harsher (see previous post ‘Leopard-Spotted Satin’ for details on sentencing in the 1700s), transportation was offered as an alternative to the death penalty. As stipulated by the 1717 Transportation Act (4 George I c. 11), the shortest possible sentence of transportation was seven years, for minor offences which would usually be punished by whipping, branding or a workhouse sentence. If the crime was punishable by death, the sentence was extended to fourteen years and could be offered if the King approved a defendant’s appeal for mercy.⁴ Between 1700 and 1800, the Old Bailey proceedings document over 15,000 sentences of transportation for crimes ranging from arson to entering a neighbour’s garden and damaging twelve of his cucumber plants.⁵

Returnees usually seem to have been turned in by people they knew, whether neighbours, local police officers or former victims. The case of the unfortunate John Steele deserves special mention here. Having been released a few months early by his master, Steele returned to England only to find his wife had married another man in his absence. Her new husband promptly denounced Steele for early return. “[He] now swears against me only to get rid of me, that he may have my Wife to himself”, a justifiably resentful Steele told the court.⁶ The court often relied on those who had testified in the original case to identify the defendant, with variable results. At Samuel Ellard’s trial, two witnesses were called on to confirm his identity; neither was able to do so. Indeed, the witness John King could not remember whether the man he had testified against three years earlier had had one eye or two!⁷

Defendants gave a wide range of justifications for their early return. Many complained of poor treatment by their masters: Robert Walker testified that he had been “very ill-used in the country and was glad to get home again”.⁸ Those who could not get anybody to buy their labour contract at all likewise suffered. Samuel Johnson (also known as ‘Cabbage’) claimed that nobody would hire him because of “some Hurt or Bruise about his Body, of which he could not be cur’d, till he return’d to England”.⁹ John Oney, aged 74 and partially blind, told the court at his trial that since he was “so aged, and infirm… no one would buy, or employ him”.¹⁰ Several defendants stated that they had not returned of their own free will, but had been “press’d”: abducted and forced to serve on naval ships. This practice became increasingly common during the eighteenth century, given the high death and desertion rates amongst sailors and the fact that wages could legally be paid as much as two years in arrears. And of course there were those who simply told the court of their great homesickness: although Samuel Ellard “lived very well” as a butcher in America, he reported that he “could not be easy till he returned to his native country”.¹¹

Those convicted could be ordered to transport themselves, i.e. pay for their own passage overseas. George Thorpe was accordingly tried in 1785 for return from transportation despite never actually having left the country. Thorpe’s neighbour testified that they had been unable to find a transatlantic passage for any less than ten guineas, around £904 in today’s money, which Thorpe could not afford. Thorpe had told his lawyer that America was “the only place where he could get a livelihood, therefore he did not try to obtain a passage at any other place” and that he had not wished to go to France or Holland because “then he would be a stranger in a foreign land”.¹²

With the outbreak of the American Revolutionary War in 1775, transported prisoners defended their return to Britain on new grounds: that they had wished to escape service in pro-independence American militias. Pro-independence recruiters saw transported men as potential soldiers who might be persuaded to fight against their country… since that same country had sentenced them to forced labour. According to William Weaver, who had been transported to Virginia, recruiters had asked why he refused to join up “as [the British] had dealt so hard with [him], as to send [him] to that part of the country as a slave?”.¹³ Masters who joined militias might take their convict ‘servants’ with them. William Harding reported at his trial that he had deserted four days after his master took him to fight in Philadelphia and was due to be shot if he did not swear allegiance to the American forces.¹⁴

When the Revolutionary War began, the prevailing view in Britain was that the rebellion would be short-lived and easily suppressed. Once it became clear that this was not the case—the conflict would in fact continue for eight years— alternative plans had to be made for convict transportation. Maryland and Virginia were now out of the question. With the passage of the so-called ‘Hulks Act’ (16 Geo. III c. 43.), men deemed physically fit were sentenced to hard labour on prison ‘hulks’: ships moored at harbours and along the coast, which served as floating prisons. Female convicts, along with any men who were unfit for “raising sand, soil, and gravel from, and cleansing the river Thames” as the act specified, were jailed. Trial records do document offenders being sentenced to “transportation to America” into the 1780s, but in practice these sentences were usually carried out on hulks. Conditions on the hulks were dire and “gaol fever”, as typhus was then known, was especially rife. Lawmakers cast about for an alternative to American transportation.

In the parliamentary session of 1^st April 1779, Joseph Banks suggested Botany Bay (now part of modern Sydney) as a site for convict settlement, the climate being “similar to that about Toulouse” and there being “little Probability of any Opposition from the Natives.”¹⁵ Sites in West Africa corresponding to the modern-day states of Sierra Leone, The Gambia and Senegal, were also considered, probably due to the high cost of shipping prisoners to Australia. However, the parliamentary committee appointed to investigate deemed these locales unsuitable, citing (amongst other concerns) the effect of the climate on labourers and the possibility that the settlement would either be attacked by the local people or that the convicts would themselves prey on and rob nearby communities.¹⁶ The settlement in Sydney Cove thus became the first British penal colony in Australia, following the arrival of the ‘First Fleet’ in 1787.¹⁷

By 1868, more than 162,000 prisoners had been transported to Australia, few of whom would ever return to Britain. Although cases of “felonious return” did continue to be heard at the Old Bailey well into the 1800s, they almost always referred to escape from hulks or from a British jail after sentencing. Only three defendants—Edward George Barrington in 1850, James Owen in 1863 and Charles Leeson in 1881—were tried for return from transportation to Australia and none were found guilty. This reflected not only the increased difficulty of return from so far away but perhaps also changing attitudes towards transportation. Following the 1807 abolition of the slave trade in Britain, comparisons were increasingly being drawn between transportation and slavery. Members of the 1837 select committee report into transportation argued that the condition of the convict labourer differed from that of a slave only in that the master of a convict could not beat him and did not own his labour for life.¹⁸ Yet the alternative offered—imprisonment—often still involved aspects of forced labour. Prisoners performed repetitive, dull labour like picking oakum (unravelling tarred rope) and walking on treadwheels to turn machinery, all in complete silence, with the aim of encouraging reflection on their misdeeds. Perhaps some inmates found comfort in the promise of being able to return home after their sentence, but still others must have wondered during the course of the long, dull days locked up whether labouring on an Australian farm would really have been so bad…

1. Old Bailey Proceedings Online, 16th April 1740. Trial of Joseph Parker (t17400416-27). Available at: https://www.oldbaileyonline.org/record/t17400416-27 ↩︎
2. Yes, this was apparently his real name. ↩︎
3. Richard Hakluyt, A discourse on western planting, written in the year 1584 (Cambridge, MA : Press of J. Wilson and Son, 1877), p. 37. ↩︎
4. Transportation for life was also a possible sentence but seems to have been less common during the eighteenth century than the nineteenth. ↩︎
5. This is a hot contender for my favourite crime in the Old Bailey archive, particularly since the accused reportedly lost his shoe whilst attempting to steal the cucumbers and made his accuser help him look for it… (Old Bailey Proceedings Online, 17^th July 1784. Trial of Thomas Chadwick (t17840707-78). Available at: https://www.oldbaileyonline.org/record/t17840707-78 ↩︎
6. Old Bailey Proceedings Online, 13^th October 1725. Trial of John Steele (t17251013-64). Available at: https://www.oldbaileyonline.org/record/t17251013-64 ↩︎
7. Old Bailey Proceedings Online, 17^th October 1744. Trial of Samuel Ellard (t17441017-29). Available at: https://www.oldbaileyonline.org/record/t17441017-29 ↩︎
8. Old Bailey Proceedings Online, 8^th September 1773. Trial of Robert Walker (t17730908-24). Available at: https://www.oldbaileyonline.org/record/t17730908-24 ↩︎
9. Old Bailey Proceedings Online, 17^th October 1727. Trial of Samuel Johnson (t17271017-30). Available at: https://www.oldbaileyonline.org/record/t17271017-30. ↩︎
10. Old Bailey Proceedings Online, 16^th October 1728. Trial of John Oney (t17281016-19). Available at: https://www.oldbaileyonline.org/record/t17281016-19 ↩︎
11. Trial of Samuel Ellard. ↩︎
12. Thorpe was probably using foreign in the sense of ‘non-English-speaking’ since he would certainly have been considered just as much of a foreigner in the by-then independent United States. ↩︎
13. Old Bailey Proceedings Online, 6^th December 1775. Trial of William Weaver (t17751206-69). Available at: https://www.oldbaileyonline.org/record/t17751206-69 ) ↩︎
14. Old Bailey Proceedings Online, 15^th July 1778. Trial of William Harding (t17780715-89). Available at: https://www.oldbaileyonline.org/record/t17780715-89 ↩︎
15. House of Commons, Journals of the House of Commons, vol. 37 (1^st April 1779), p. 311. ↩︎
16. House of Commons, “First Report From The Committee Appointed To Enquire What Proceedings Have Been Had In The Execution of an Act, passed in the Twenty-fourth Year of the Reign of His present Majesty, intituled, “An Act for the effectual Transportation of Felons and other Offenders, and to authorize the Removal of Prisoners in certain Cases; and for other Purposes therein mentioned” (9^th April 1785)”. ↩︎
17. Plans to settle in Botany Bay itself were abandoned within a week of landing and the fleet sailed further north to Sydney Cove. ↩︎
18. House of Commons Select Committee on Transportation, Report from the Select Committee on Transportation together with the minutes of evidence, appendix, and index (HC 1837, 518-19, paras. 4281, appendix 1 no. 7 (despatch from Mr Secretary Stanley to Lieut.-Governor Arthur, 12^th Oct 1833), appendix 2 (despatch from Major-General Bourke to Mr Secretary Stanley, 15^th Jan 1834). ↩︎

Further reading

Clare Anderson, “Transnational Histories of Penal Transportation: Punishment, Labour and Governance in the British Imperial World, 1788–1939”, Australian Historical Studies, 47:3, pp. 381–397.

Emma Christopher, A Merciless Place: The Lost Story of Britain’s Convict Disaster in Africa (Oxford: Oxford University Press, 2011).

Hamish Maxwell-Stuart, “Convict Transportation from Britain and Ireland 1615–1870”, History Compass, 8 (2010), pp. 1221-1242.

Graham Seal, Condemned: The Transported Men, Women and Children Who Built Britain’s Empire (New Haven : Yale University Press, 2021).

The eighteenth-century statutes regarding transportation are all available on the Level 1 open shelves at the Law Library.

The Digital Panopticon is an online collection of millions of records related to convicts in Britain and Australia between 1780 and 1925. Many of these people were sentenced at the Old Bailey so if you’ve ever wondered what became of defendants I’ve written about, you might find the answers here… The site alos has a number of excellent articles related to convict history: I particularly recommend “Convicts and the Colonisation of Australia, 1788-1868” which outlines the connections between penal transportation and the genocide of Aboriginal peoples in Australia.

The website ‘Convict Voyages’ (an output from the 2013-18 European Research Council-funded project ‘Carceral Archipelagos’) provides a fascinating and accessibly-written insight into the global history of criminal transportation. Whilst the site itself has lapsed, you can still access a fully functional web-archived version from 2018 by searching convictvoyages.org on the Internet Archive’s Wayback Machine.