Transportation was a compromise on the part of the English judges with the more humane feelings of their nature. As long as the felon was in England, unless he was pardoned outright, he had to be made subject to the extreme penalty. The law prescribed the punishment of death, and the law had to be enforced. The judges may not have thought all the circumstances of a crime such as to justify them in recommending the criminal to royal mercy; at the same time, there may have been extenuating incidents among these circumstances which rendered them reluctant to apply the extreme punishment permitted by statute. It is doubtful whether a single convict was imported into Virginia, previous at least to 1650, whose case when tried in the English courts was not marked by circumstances in mitigation of its criminality. In 1661, a special committee was appointed by the Privy Council to consider, among other things, “how felons condemned to death for small offences” might be disposed of for the use of the English Plantations, and they recommended that the justices of the peace should be granted the power to distribute among these Plantations “all people of a loose and disorderly habit of life” who were a charge upon the parishes in which they were found.[1] During the first years following the Restoration,
- ↑ Minutes of the Council for Foreign Plantations, British State Papers, Colonial, vol. XIV, No. 59, pp. 30, 31; Sainsbury Abstracts for 1661, p. 8, Va. State Library. See House of Lords Calendar, 1663-64, March 28, for draft of an act for transporting persons convicted of felony within clergy or of petty larceny, beyond seas: “Persons convicted of felony who have benefit of clergy may now be burnt in hand and detained prisoners for any length of time not exceeding one year, and any women convicted of stealing any money or goods above the value of twelve pence and under the value of ten shillings may be branded in the hand and further punished by imprisonment, whipping, or sending to the House of Correction for any time not exceeding one year, but as it has not been found that these punishments prevent persons from committing the like crimes again, the bill provides that such offenders may at the discretion of the Judge or Justices be delivered to any merchant, planter or adventurer of other person (willing to take them) to be transported to Jamaica, Virginia or any other English plantation beyond the seas, there to serve for not less than five nor more than nine years.” This bill had been introduced the previous session, but was not reported from committee; it was revived and again dropped. Royal Hist. MSS. Commission, Seventh Report, part I, p. 175.
