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The Transportation of Scottish Criminals to America during the Eighteenth Century

Published online by Cambridge University Press:  10 January 2014

A. Roger Ekirch
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Extract

In the last few years there has been a growth of interest in the history of crime and law enforcement in early modern Scotland. Recent studies by Stephen Davies, Bruce Lenman, and Geoffrey Parker have described the intricate operation of the country's criminal justice system. Relatively little attention, however, has been paid to the role played by transportation. During the eighteenth century, banishing criminals to the American colonies became the most common punishment employed by higher courts. By providing a merciful alternative to the death penalty without putting the public at serious risk, transportation carried enormous appeal. An attorney in Edinburgh commented, “In many cases it is absolutely necessary for the safety of the state, and the good order of society, that the country should be rid of certain criminals.” This article seeks to explore the nature of Scottish transportation, from its growing popularity in the early 1700s to its demise in 1775, a result of the American Revolution. Questions basic to an understanding of this punishment and its operation remain unanswered. How often was it utilized by courts? How many offenders were exiled during the century? What sorts of crimes had they committed? By what means were they transported to America? How did Scottish procedure differ from the system employed in England? Answers to these questions, besides shedding new light on the internal mechanics of transportation, should open a valuable window onto the Scottish criminal justice system.

Type
Research Article
Information
Journal of British Studies , Volume 24 , Issue 3 , July 1985 , pp. 366 - 374
Copyright
Copyright © North American Conference of British Studies 1985

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References

1 Davies, Stephen J., “The Courts and the Scottish Legal System, 1600–1747: The Case of Stirlingshire,” in Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. Gatrell, V. A. C., Lenman, Bruce, and Parker, Geoffrey (London, 1980), pp. 120–54Google Scholar; Lenman, Bruce and Parker, Geoffrey, “Crime and Control in Scotland, 1500–1800,” History Today 30 (1980): 13–17Google Scholar. In addition, Lenman and Parker are currently working on a broad study of crime and social control in early modern Scotland. For a recent account that describes criminal justice on the local level, see Whetstone, Ann E., Scottish County Government in the Eighteenth and Nineteenth Centuries (Edinburgh, 1981)Google Scholar.

2 “Information for John Gray …,” February 2, 1767, Scottish Record Office (SRO), Justiciary Court (JC) 3/34/634–35.

3 Blair, Robert, “Information for Duncan Kennedy …,” February 2, 1767Google Scholar, SRO, JC 3/35. See also “Information for John Gray …,” SRO, JC 3/34/628–29; Hume, David, Commentaries on the Law of Scotland, respecting the Description and Punishment of Crimes (Edinburgh, 1797), 2:101–19Google Scholar; and the earl of Hay to [?], October 21, 1725, Public Record Office (PRO), State Papers (SP) 54/16/53.

4 Imrie, John, ed., The Justiciary Records of Argyll and the Isles, 1664–1742 (Edinburgh, 1969), 2:xiii, xviii, 351, 364, 382, 384, 464Google Scholar.

5 Blair, SRO, JC 3/35; Hutcheson, Gilbert, Treatise on the Offices of Justices of the Peace … in Scotland … (Edinburgh, 1806), 1:183–84Google Scholar; private communication from Stephen J. Davies, April 4, 1982; Whetstone, p. 46.

6 James Campbell to John Campbell, [1728?], SRO, Gifts and Deposits (GD) 14/10/1/56–57.

7 High court figures are missing for the years 1722–25 (Books of Adjournal, 1718–75, SRO, JC 3/8–39).

8 “Information for John Gray …,” SRO, JC 3/34/631–32.

9 Alex Majoribanks is quoted in Robson, L. L., The Convict Settlers of Australia: An Enquiry into the Origins and Character of the Convicts Transported to New South Wales and Van Daminien's Land, 1787–1852 (Carlton, 1965), p. 10Google Scholar.

10 Petition of William Dunbar, August 24, 1763, PRO, Home Office 104/1. See also Books of Adjournal, 1718–75, SRO, JC 3/8–39.

11 Petition of Christian Scott, August 6, 1762, SRO, JC 3/33/75.

12 Books of Adjournal, 1736–75, SRO, JC 3/19–39.

13 Pardon for William Junar, June 10, 1763, and commutation for Agnes Adam, March 4, 1774, in Calendar of Home Office Papers of the Reign of George III, 1:380, 4:311Google Scholar.

14 Howard, John, An Account of the Principal Lazarettos in Europe (Warrington, 1789), p. 248Google Scholar; Blackstone, William, Commentaries on the Laws of England … (Oxford, 1765–1769), 4:19Google Scholar.

15 Ekirch, A. Roger, “Bound for America: A Profile of British Convicts Transported to the Colonies, 1718–1775,” William and Mary Quarterly, 3d ser., 42 (1985): 184–200CrossRefGoogle Scholar.

16 Howard, pp. 248–49. In arriving at my calculation, I have also allowed for the fact that Justiciary records for the high court in Edinburgh were missing for four years. The calculation, however, does not include political prisoners transported during the eighteenth century, of which there were over twelve hundred (see Smith, Abbott Emerson, Colonists in Bondage: White Servitude and Convict Labor in America, 1607–1776 [Chapel Hill, N.C., 1947], pp. 197–203)Google Scholar. In Dobson, David, Directory of Scots Banished to the American Plantations, 1650–1775 (Baltimore, 1984)Google Scholar, there are 437 criminals identified as having been ordered for transportation from 1720 to 1775. Unfortunately, Dobson does not furnish adequate information on the judicial records that he consulted, so it is impossible, on the basis of this figure, to estimate more accurately the total number of transports during those years.

17 Sentence of banishment against Alexander Karr, February 14, 1764, SRO, JC 3/33/442. See also Patrick Haldone, “Answers for Mr. Hays …,” June 20, 1744, SRO, JC 3/24/593. By the 1760s, recipients of transportation pardons were normally allowed to transport themselves (see criminal pardons, 1762–72, Calendar of Home Office Papers of the Reign of George III, 1:256, 380Google Scholar; 2:112, 285; 3:385, 614).

18 Petition of Robert Thomson, January 27, 1740, SRO, JC 3/23/163–64; petition of Janet Anderson, June 12, 1754, SRO, JC 3/29/563–64. See also, e.g., the earl of Hay to [?], PRO, SP 54/16/53; Haldone, SRO, JC 3/24/593; remission for Peter Taylor, December 21, 1750, SRO, JC 3/27/468; petition of John Donaldson, August 11, 1753, SRO, JC 3/29/271; petition of John Macfarlane and James Young, June 1754, SRO, JC 3/29/567; petition of Ronald McDonald, February 10, 1755, SRO, JC 3/30/258; petition of Alexander Shand, July 22, 1760, SRO, JC 3/32/314–15; and assorted cases in Imrie, ed. (n. 4 above), vol. 2, esp. pp. 382, 384.

19 Petition of Walter Denny, July 1, 1735, SRO, JC 3/19/716–17; northern circuit court order, October 16, 1749, SRO, JC 11/14. See also [James Campbell] to Sir James Campbell, April 7, 1729, SRO, GD 14/10/1/281–82; and Blair (n. 3 above), SRO, JC 3/35.

20 Petition of Janet Jameison, January 1734, SRO, JC 3/18/757. See also petition of Anne Mar, February 6, 1760, SRO, JC 3/32/247; and James Lawson to John Semple, September 3, 1763, SRO, James Lawson Letterbook (Colonial Williamsburg microfilm, Williamsburg, Virginia).

21 Petition of William Lauder, July 1732, SRO, JC 3/18/394–95; petition of Helen Mortimer, August 17, 1759, SRO, JC 3/32/198–99. See also petition of Jean Davidson, August 3, 1732, SRO, JC 3/18/412–14. Courts sometimes responded sympathetically to the plight of prisoners unable to arrange transportation by banishing them from Scotland, thereby permitting their residence elsewhere in Britain.

22 [Burt, Edward], Letters From a Gentleman in the North of Scotland … (London, 1754), 1:46–48Google Scholar.

23 Deposition of John Johnston, November 7, 1739, PRO, SP 63/402/137. See also the accompanying depositions and letters in PRO, SP 63/402/129–43; and Mackenzie, W. C., The Western Isles: Their History, Traditions and Place-Names (Paisley, 1932), pp. 45–49Google Scholar.

24 “An act to extend an act … entitled, A n Act for the further preventing robbery …,” 6 Geo. 3, c. 32.

25 Blair, SRO, JC 3/35.

26 Patrick Colquhoun to John Davidson, November 30, 1770, SRO, GD 214/726/2; landing certificates, 1771–75, transportation papers, SRO, JC 27; sentence of banishment against Thomas Young, July 11, 1771, SRO, JC 3/37. In 1773, for unknown reasons, Parliament repealed the 1766 act, but transportation arrangements remained in Colquhoun's hands (see “An act for … repealing and amending Several of the laws …,” 13 Geo. 3, c. 54).