In double confirmation of this fact, we may go to the Charter of 18 James, Nov. 3, 1620, which speaks of the efforts made in divers years past, in the Northern Colony, by former grantees, who had "taken actual possession of the Continent," and had "settled already some of our People in Places agreeable to their Desires in those parts." This, certainly, is very far from sustaining the opinion, that the occupants of Sagadahoc were convicts. For they were settled in a place "agreeable to their Desires," until calamities darkened all their prospects. It is worth noting here, that Lord Campbell says nothing about Popham in connection with convicts and the colony. This omission is significant.
A question is proposed, with an air of confidence, as if its answer must demolish the positions of my former article. It is this: "Will 'Sabino' please point out the 'law' under which James sent off a hundred convicts in 1619, that did not exist in 1606?" The demand is adroitly made, but not pertinently. To make it touch the point, it should have been 1607. My reply is readily given.
The statute for the punishment of rogues by banishment, already noted, (39 Eliz. ch. iv.,) expired by its own limitation, in 1601; when it was renewed, to continue till the end of the first session of the next Parliament, which was held in 1603-4. It was then re-enacted, (1 James, ch. iv. and xxv.,) when the additional provision was made, that persons condemned under its sanctions should be branded on the left shoulder with "a greate Romane R," for their detection in case of their unlicensed return, so as to secure the death of the offender, "as in case of Felonie." This statute was to continue "until the end of the first session of the next Parliament" (ch. xxv.). I have no means at hand of knowing the precise date when this session closed; but the Parliament itself ended on May 27, 1606, and the statute was not revived. The temper of the king and that body was shown in the statute (3 James ch. xxvii.) entitled, "An acte for the King's most gracious generall and free Pardon." The next Parliament began Nov. 18, 1606, and ended July 4, 1607. Such was the forbearance of the supreme legislature in relation to the transportation of condemned criminals, that the session passed away, and the law, that had expired by its own limitation, was allowed to remain in this state of its natural death. Transportation seems not to have been in favor.
Therefore, from "the end of the firste session" of the Parliament whose final session was terminated May 27, 1606, till after the Popham Colony sailed, May 31, 1607, there was no statute of transportation in existence.
A re-enactment of the law, or rather a law for punishing rogues by the workhouse, and not by transportation, was not made until the Parliament beginning Feb. 9, 1609. This was four days more than a year after George Popham's death, and a year and a half after the death of the Chief Justice. So that here was at least an interval of more than two years and three-fourths, when there was no law for the exile of convicts from the royal dominions. In this space of time, the Popham Colony had its beginning, its continuance and its end,—beginning more than a year after the law had died; continuing through the larger part of the year; and ending nearly another year before it was revived, in a very different form, and with a milder penalty. During this period, no law appears in the "Statutes of the Realm" for the transportation of convicts; and it is perfectly incredible that any persons were so sentenced by the justices of the peace, and sent to Sagadahoc under any sanction of the highest judicial authority in the realm, with the specific designation of the place by the Privy Council.
The preamble of the statute of 1609 for "punishing rogues" makes known the inactivity of the magistrates in the enforcement of former provisions, and the desuetude into which this law had fallen. It declares that the earlier "Statutes had not been duly and severely putt in execution." Therefore the requisitions are made stronger, to bind the proper officers to their more stringent execution, in regard to "Houses of Correction." Transportation is not even hinted at. This previous easy state of affairs on this topic shows that the rigor of expulsion, ascribed to Popham, is a thought of later times.
It is also to be noted, that the Charter of 1606 is in strict harmony with the fact that the expired law had not been revived. Among the twenty-seven Acts of 3, 4 James, 1605-6, and the thirteen of 4, 5 James, 1606-7, no one appears on the pages to authorize the exportation of criminals. Those who went to either of the Virginias were to go "willingly," and enjoy their "liberties." If, in any other book of laws besides the "Statutes of the Realm," if there be such, or by any new and singular interpretation of any provision there can be found a rule requiring the transportation of convicts, it will not thence follow that any were sent to Sagadahoc. For the Charter will still say that only volunteers were to go, who should be free men as long as they remained in connection with the company.
I did not refer to Ogilby and Chalmers as original authorities, but as good investigators. The former has been long known. My favorable opinion of the latter is drawn from the Preface to his "Introduction to the History of the Revolt in the American Colonies." Your correspondent seems to undervalue him. But to sustain my estimate, I may quote the expressions of the American editor of the above-named volumes. "His works are deemed to possess much merit as the result of profound research and a discriminating judgment."—"His official station gave him access to all state papers."—"He took advantage of this opportunity, to investigate in its original sources the history of the colonies."—"His work (Political Annals) has ever been quoted with entire confidence and respect; and this circumstance speaks clearly in favor of the author's candor and honesty." When he speaks of no earlier transportation than 1619, I have been ready to give him credit. Your correspondent refers to him as writing, "that the policy of sending convicts to the plantations originated with King James, and that in the year 1619 he issued an order to send a hundred dissolute persons to Virginia." I am content with this statement. Bancroft thinks "some of them were convicts: but it must be remembered that the crimes of which they were convicted were chiefly political;" and political felons, as well as those whom in the same volume he calls "the Puritan felons that freighted the fleet of Winthrop," were "endangered by the law;" and yet not for this reason to be regarded as tainted in the least with moral guilt. His opinion, too, is that there was never sent to South Virginia—for he seems not to have heard of the accusations brought against the northern colony—any "considerable number" of persons convicted of "social crimes;" "certainly not enough to affect its character." This statement may be taken as a sufficient reply to the charge that Popham "stockt" the plantations out of "all the gaoles of England." Indeed, all that Bacon, nearly twenty years after his colony had ceased, and other far later writers have said, on the topic contained in the quotation from him, relates to the later affairs in the southern colony; and can be connected with Popham only as he was a prime mover in the enterprise of colonization, carried on after his death. It cannot be shown that they had Sagadahoc in mind. Weber, as "revised and corrected" by Professor Bowen, adheres to 1619.
Against a remark of mine, the communication states, that there was "no later occupancy of New England till the Pilgrims arrived in 1620." I said "the Popham Colony was followed by a succession of occupancies, that proved title." I say so still. I did not mean that all these occupancies were colonies. They were at Monhegan, by Sir Francis Popham and Captain John Smith; at Pemaquid, by the annual visits of the English from Virginia; at Mount Desert, by Argall; at Saco, by Vines; at Plymouth, by the Pilgrims and by numerous others, after that great and memorable event in our national history. They were made under the protection of the Charter of James in 1606; energetically promoted in the outset by Popham, "the first to procure men and means to possess New England;" and sustained for years at great expense by Sir Ferdinando Gorges. In this connection I wish to supply an omission noticed by your correspondent, where I said, that the colony "proved title as against the former and never-revived claims of France." "West of the Kennebec" was in my mind, but not written. I thank him for the correction, as it strengthens my position. It would have been better to have said, "the French never had any possession on the coast, west of the Kennebec."
As to the settlement of Gosnold, I have before shown that it was not a "chartered colony." It was deserted on the day when its small house was scarcely fitted for a permanent dwelling. It was "undertaken on private account;" asserted no general claim; proved no title; and was not renewed.