Thousands of British offenders, who by their exile and sufferings have expiated their crimes, trod almost alone the first stages of Austral colonisation, and amidst toils and privations, initiated a progress now beheld by nations with curiosity and admiration. Economists still weigh in uncertain balances the loss and the gain, and the legislator longs for facts which may decide the perpetual conflict between them who denounce and those who approve this expedient of penal legislation. It is not the intention of this narrative to anticipate conclusions: its design will be accomplished when the story of the past is truly told.
Exile, the penalty denounced by the Almighty against the first homicide, was among the earliest affixed by man to lesser crimes, or whenever the presence of the offender endangered the public repose. The Roman law permitted the accused to withdraw from impending judgment by a voluntary exile. Such was the practice in the time of Cicero. When men sought to avoid bondage or death, adjudged by the laws, they had recourse to exile as to an altar; nor did they forfeit their civic standing, except with their lives.[37]
At a later period, under the imperial government, the islands of the Mediterranean became places of exile: several thousand Jews were banished from Rome to the Island of Sardinia.[38]
Transportation was unknown to the common law of England, but abjuration of the realm, which resembled the Roman practice, was not infrequent: "it was permitted," said Sir Edward Coke, "when the felon chose rather to perdere patriam quam vitam,"—to lose his country rather than his life. The culprit having found sanctuary within the precincts of a church, took oath to abjure the realm: assuming the character of a pilgrim, he received a cross to protect him on his journey. By the Act of James I. the privilege of sanctuary was taken away,[39] and thus the abjuration, founded upon it, virtually abolished.
The Spanish was the first Christian nation which to banishment united penal labor. Columbus found it difficult to allure adventurers: to work the mines, was necessary to gratify his patrons, and he prevailed on Ferdinand to furnish colonists by clearing the galleys. These recruits attended the great discoverer on his third expedition (1498): they largely contributed to the disorders which vexed the infant settlement, and aroused the resentment of the unfortunate Indians.[40]
Banishment was first formally recognised by English law in the reign of Elizabeth (39 Eliz. cap. 4).[41] It was enacted, that "dangerous rogues, and such as will not be reformed of their roguish course of life, may lawfully by the justices in their quarter sessions be banished out of the realm, and all the dominions thereof, and to such parts beyond the seas as shall for that purpose be assigned by the privy council." Return was made felony without benefit of clergy. A brand was affixed upon the shoulder, of the breadth of an English shilling, with a great Roman R upon the iron: "for a perpetual mark upon such rogue, during his or her life."[42]
Until commerce had extended the knowledge of distant parts, and the constant publication of correspondence with colonies made their affairs familiar, imagination depicted them as desolate and frightful. The London apprentice and the plough boy, thought of exile as a severe calamity. The love of home was rendered more intense, by the universal wilderness imagined beyond it: thus, loss of country was deemed a penalty fully equal to ordinary offences, and more severe than any domestic form of punishment short of the scaffold.
"Duri est non desiderare patriam. Cari sunt parentes; cari liberi, propinqui, familiares; sed omnes omnium caritates patria una complexa est: pro qua quis bonus dubitet mortem oppetere?"
It is to James I. that the British nation and the colonists owe the policy, whether salutary or baneful, of sending convicts to the plantations: "the good sense of those days justly considered that their labor would be more beneficial to an infant settlement, than their vices could be pernicious."[43] James directed the sheriff to deliver, and the governor and court of Virginia to receive one hundred prisoners, included in the definition of rogues and dangerous persons, and compelled the proprietors of that colony to become agents in their deportation.
The Lord Chief Justice Kelyng stated, that about the time of the restoration it became customary for a prisoner within benefit of clergy to procure from the king "a conditional pardon," and to send him beyond the seas to serve five years in some of the king's plantations; there to have land assigned him, according to the usage of those plantations for servants after their time expired.[44] A needless delay of departure, or a return within the period appointed, made the instrument of pardon void.