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“‘Tried and Attainted’: Comparisons of the Application and Reception of the Common Law of Attaint in Virginia and New South Wales”

Published online by Cambridge University Press:  15 December 2025

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Abstract

Common Law, the shining cornerstone of the English Justice system, becomes a muddy pool when trying to uncover the ways in which it arrived into the early Virginian, Maryland, and early Eastern Australian colonies. This is particularly true for the common law of felony attainder. Attaint—social and legal death without physical death—had lasting implications on the question of legal personhood for the convicts transported from England to these colonies between 1614 and 1840. This article revisits the work done by Bruce Kercher, adding new primary research from the American colonies to enrich and challenge Kercher’s arguments. Expanding the primary source material used in the analysis gives us a deeper and more nuanced understanding about how attainder was received and applied in the colonies—in particular, in the American colonies—and a deeper understanding of outside forces that influenced property rights beyond that of the question of attainder. This article provides nuance to how common law was understood and applied by those with and without formal legal training in early developing colonial societies.

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Law and History Review , First View , pp. 1 - 21
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
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© The Author(s), 2025. Published by Cambridge University Press on behalf of American Society for Legal History

She tapped her fingers on the desk and muttered under her breath in frustration.

“Anno Roquim…no Rege…. *inaudible* … cattal num. is that null… Johib….wait forfit…”

She could see the words on the faded parchment but her rudimentary Latin skills were being challenged by the faded ink, water damage, and slanted ornate scribble that passed for handwriting. Inconsistent legal abbreviations the seventeenth century writers had used didn’t help. But as she read, page after page, day after day, Latin giving way to English at last, patterns began to emerge. Or rather, it was the pattern of no pattern at all. Footnote 1

Between 1614 and 1840, over 200,000 people were convicted in England of crimes and then transported to her colonies—first to Virginia and Maryland, with smaller numbers to Georgia, South Carolina, Philadelphia, New York, Massachusetts, and the Caribbean islands, and after the American Revolution to New South Wales (NSW) and Van Diemen’s Land (VDL). The legal systems that surrounded convicts transported to both the early American and early Australian colonies have been scrutinized from many directions—from English/British legislative changes around sentencing, to colonial laws that convicts were subject to under sentence.Footnote 2 What hasn’t been closely scrutinized, especially in the American context, is the question of felony attaint.Footnote 3

Early America and Early Australia have a shared legal history that is not often probed. What has always interested me is the shared commonalities—both colonies were inheritors of the same judicial framework, the same common law roots, and a shared history of transportation of English convicts. How unique was the Australian judicial approach to felony attaint? Were the divergences in the reception and application of felony attaint in NSW due to the penal nature of the colony, or can a deeper examination of the Virginian sources tell us a different story?

This article is an exploration of the common law of attainder and the way it was applied to the convicted and subsequently transported felon to both Virginia and Maryland (1614–1783) and NSW (1788–1840). It builds on the works of Bruce Kercher, who to date has been the sole scholar who has worked on the question of reception and application of attaint as it applied to Transported convicts.Footnote 4 His detailed research examined Australian court and judiciary records, while I delve into and focus on the Virginian and Maryland legislature and court records to enrich, challenge, and strengthen the comparisons he made in Perish or Prosper. While Kercher based his analysis and arguments on the Australian primary sources, he rested on secondary sources for his American comparisons.Footnote 5 In essence, this article does the opposite—I rest on Kercher for my Australian comparison (along with other sources) and have made a detailed examination of the American court and judiciary records for an in depth analysis, supplementing and advancing Kerchers arguments and understandings on how attaint was received and applied in the colonies.

Felony Attaint in England

What is the common law of Attainder or “Attaint”? In simple terms, it is a “civil and legal death”—an end to all rights and capacities after receiving a sentence of death for treason or felony in the courts (Judicial attainder).Footnote 6 During the English Tudor years, Parliamentary Attainder rose as a way to thwart perceived enemies, strip them of lands and political power, often without a conviction before the courts.Footnote 7 Prior to 1509, no attainder mentioned the death penalty—perhaps, because death was prescribed as the punishment for felony convictions.Footnote 8 Judicial attainder—a process of the common law—required the presence of the accused, but Parliamentary attainder—not a process of common law—did not.Footnote 9 Generally, both judicial and parliamentary attainder was accompanied by the forfeiture of all property and goods to the Crown, titles (if you had them), the loss of rights to sue or give evidence in court, and forbade inheritance of any lands, goods, or titles by heirs. While parliamentary attainder is the most commonly understood and studied, this article is interested in judicial attainder that followed (or should follow) felony convictions, given that this was the kind of attainder applied to individuals who were subsequently transported to either the American or Australian colonies.

How did attainder apply to the transported felon? To answer that, I need to first give a brief overview of transportation itself. Over the 15th, 16th, and 17th Centuries, punishments for crime were increasingly severe and have often been called the “bloody codes” by historians.Footnote 10 Banishment was technically against common law, but, with increasing demands for labor from the new Virginian colony, King James saw the value in sending these troublemakers away to meet the labor needs of the fledgling colony, ordering in 1614 a reprieve from execution for those “whoe for strength of bodie or other abilities shall thought fitt to be ymploied […] beyond the Seas.”Footnote 11 Given common law prohibition on banishment, these individuals were pardoned from death on condition that they consent to transport themselves to the Americas.Footnote 12 They were also, however, expected to pay their own way. Many could not afford to do so, in spite of being pardoned, and a thriving trade developed hand in hand with the indentured servant trade, which shipped convicts, and then sold them in Virginia or Maryland on arrival (for four to fourteen years) to recoup costs.Footnote 13

This system, however, did not fully suit the English government, given that merchants only selected criminals who were profitable to sell in the colonies rather than all convicts actually pardoned. In 1718, the Transportation Act passed—meaning convicts could now be directly sentenced to transportation.Footnote 14 Consent was removed, though pardons from death still formed part of the judicial framework. A government contractor (Jonathan Forward was the first) was paid a subsidy by Parliament and was required to remove all London criminals, profitable in the American colony or not. Other merchants continued as before, many out of Bristol, but did not receive the government subsidy, and continued to select those that could be sold for the highest price. At the outbreak of the American Revolution, the convict trade to America slowed (but did not end completely until the 1790s), and after a failed experiment in Africa, convicts were shipped instead to the new colony of NSW.Footnote 15 It is important to note that none of the Acts, which implemented or adapted transportation mentioned attainder.Footnote 16

We thus have four pathways to the colonies as a convict. Prior to 1718: a death sentence pardoned on condition of transportation (which should carry felony attaint, unless the Pardon also pardoned attaint). Post 1718 Transportation Act: both those who were Pardoned from a death sentence (should be attainted, unless Pardon cleared attaint), and those directed sentenced to transportation (should not be attainted as it was not a death sentence). And to complicate matters, the fourth pathway was those that paid their own way to the American colonies and were thus free upon arrival—who should be attainted in line with their sentence (attainted for a pardoned death sentence, not attainted for a direct transportation sentence).

Records of convicts being attainted on conviction are patchy, and do not fit the pattern we might expect—that is, attainted on sentence of death, but not on direct sentence of transportation. Some records have a sentence of death for theft, but because the criminal returned the stolen items they were not attainted.Footnote 17 Others were sentenced directly to transportation—meaning they should not be attainted—but their conviction record states “tried and attainted.”Footnote 18 There are also a handful of cases where the convict was “relieved of that burden.”Footnote 19 Perhaps, the pardon from death for transportation also pardoned from attainder—“Reprieve persons attained of felony and to transport beyond the seas” was one argument for a Transportation Act in the years before it was passed.Footnote 20 (Except as we will see in the later Australian context that the1819 Bullocks versus Dodd case argued that attaint was not actually nullified by a pardon for Transportation).Footnote 21

Some convicts, like a William Thomas in 1624, requested attaint not be applied in his case.Footnote 22 Just to make the situation even muddier, Sir John Kelying commented in 1660 that those convicted of manslaughter “hath a liberty of bailing by the common law if the person be not attainted,” suggesting either that not every case was automatically attainted, that attaint had been applied prior to sentencing, or that those attainted were sometimes released from prison or not actually “legally dead.”Footnote 23 Some cases appear in the Old Bailey recognizing that an individual was “known attainted,” which may or may not simply be an indication of a prior conviction of any kind.Footnote 24 In essence, there is almost no consistency to those who were attainted, and those who were not. Most cases that make any kind of reference to attainder appear in the records prior to the 1718 Transportation Act, which makes this common law particularly difficult to trace in England. Thus, in some cases, those sentenced to death were attainted, some were not; some pardoned from death were attainted, some were not. Technically, none who were directly sentenced to Transportation should have been attainted, but some were.

Reception of Common Law into the Colonies

Sentencing and application of attaint in Britain were thus inconsistent. What about in the colonies of Virginia and NSW? Alan Atkinson argued that after the 1718 Act, most contemporaries in the American colonies held to the belief that all convicts had been spared the gallows by a pardon and thus were attainted, in spite of the fact that pardoned convicts were not the majority of those transported.Footnote 25 This, however, seems to simplify and distort the reality.

The reception of Common Law into colonies is just as straightforward as common law itself—that is, not at all. Eminent legal historians have been examining the reception of the common law for decades, none of whom have been able to conclusively point to a consistent reception or application of common law.Footnote 26 While none, other than Bruce Kercher, were directly focused on felony attaint, the general consensus is that colonists only adopted the common laws the colonists themselves were familiar with or had need of.

While the first charter for Virginia stated that those who resided or were born in the colony were full citizens of England, there is a significant body of evidence that Virginia did not receive all English common laws. Sir William Blackstone’s Commentaries on the Laws of England argued that the laws of England, only apply to England, and not to Wales, Scotland, Ireland, “or any part of the king’s dominions.”Footnote 27 Although he went on to state that the law was a birthright of Englishmen, and that though they carry the laws with them, they only take the laws “as is applicable to their own situation and the condition of an infant colony.”Footnote 28 Blackstone is implying here that American colonies only took the common laws that the colonists themselves decided on. Virginian planter Landon Carter took umbrage at Blackstone’s notion that the colonists did not all of the carry common laws with them: “By this doctrine the colonists are in a legal view … a conquered people and are only subject to the Parliament.”Footnote 29 However, Blackstone is not incorrect in that colonists adapted common and judicial law to colonial conditions.Footnote 30

Indentured or Convicted?

The problem with examining attaint as it applied to Virginian convicts is the entanglement of the convicted with indentured servants in the records.Footnote 31 William Eddis wrote “owners generally conceive the opinion that the difference is merely nominal between the indentured servant and the convicted felon.”Footnote 32 In Maryland, Governor Sharpe was instructed in 1755 by officials in London that convict contractors should sell a “Convict as if an indented servant.”Footnote 33

Two key cases illustrate the complexity for historians in separating the indentured servant from the convict. Harry Piper was an agent in America for English merchants Dixon and Littledale. In 1767, Piper wrote of difficulties in selling one of the passengers aboard the Ruby, William McGrath.Footnote 34 The problem arose because the captain called McGrath a felon, but alleged that he did not have the conviction papers. McGrath, on the other hand, denied this vehemently, asserting his innocence and claiming that he was forced to sign a four-year indenture while at sea. Was McGrath a convict or not? Cross-checking other sources doesn’t solve the riddle. The Ruby made convict runs to Virginia in 1754, 1756, 1760, and 1770.Footnote 35 She carried convicts at least once from Derbyshire for Sydenham and Hodgson (who were also convict traders) in 1760. In his letter, Piper mentions that the transaction occurred the previous year, but no sailing of the Ruby has been discovered in either 1765, 1766, or 1767. This does not mean that there was no shipment, just that no evidence of it has as yet been uncovered. The fact that McGrath signed a four-year indenture also suggests that he was not a convict.Footnote 36

However, when conviction records are checked, the situation becomes more convoluted. In 1764—just three years prior to Piper’s letter—a William McGrath appears before the Justices at the Old Bailey. There is no record of the crime, but it states “no prosecution.”Footnote 37 It is possible that McGrath was caught in criminal activity, but the victim refused to prosecute, thus setting him free. Perhaps, then McGrath thought it best he leave the country. The captain, perhaps discovering McGrath’s criminal past, thought best to report it when they reached the colony, although there were no conviction papers. All of this is obviously conjecture. In the end, McGrath was sold as a convict, although only for four years. It is hard to say with absolute certainty that he was either a convict or a voluntary indentured servant.

Another equally ambivalent case is the one of “Messenger.” Virginian planter Landon Carter bewailed the fact that he had to fire his servant shepherd named Messenger in February 1776, for he was a “known thief” and had been stealing “sheep to feed his whores.”Footnote 38 This servant is elusive—Carter does not give us his first name, his last name is not listed on any immigration list, as an indentured servant, nor on any extant ship’s passenger list. However, in September 1776, James Messenger was convicted in the Old Bailey for returning from transportation. He was found at an inn, and he argued that he had worked there for the last six months.Footnote 39 The prosecutor noted that he was first sentenced “October last,” and if this sentence had been carried out fairly soon thereafter, this puts James in the colony at the same time as our elusive shepherd, and then back again (due to being fired) at the right time. The original conviction record for James has, however, not been found, nor has information about which ship he may have been transported upon. This case tells us more about the paucity and opacity of the sources than anything else. But it demonstrates the difficulty in discovering with any certainty the convict or indentured status of servants in the colony. It also tells us how difficult it is to ascertain the attainted or not status of any individual.

Newspapers and court records often fail to differentiate the indentured servant from the convict. In many instances, you cannot establish that someone in the records is a convict without cross examination of other sources, especially if you want to trace their attainted status.Footnote 40 In 1751, an Irish servant, John Murphy, was advertised as a runaway; he can be identified as a convict using Coldham’s emigration lists.Footnote 41 Even in sale advertisements, the servant and convict are entangled, for instance, the 1771 Virginia Gazette advertisement for “100 healthy servants” from the Justitia, which is a known convict ship once you cross-reference other sources.Footnote 42 In a runaway notice from Westmoreland County, three servants ran away and one was described as a “rogue” who had been “burnt on the hand,” which was a common form of punishment for a first criminal offense.Footnote 43 So, while this person may or may not have been shipped to the colony as a convict, he had almost certainly run afoul of the law at some point.

If colonists did not always differentiate between an indentured servant and a convict, what hope does a historian have? My own work on felony attaint was a direct response to trying to unwind these entanglements of convict and indentured. I thought at first it would be a useful argument to show the ways in which convicts were legally different from indentured servants in the Virginian context, and the key to the convicts’ legal status. Given that convicts transported to Virginia were bought and sold in the market, left in wills, used as gambling wagers, and they had few rights in the courts of law, it would be easy to draw the conclusion that this was because they were attainted felons—and thus “legally and socially dead.”

Except—they were not legally and socially dead. Nor did this differentiate them from indentured servants who were also bought and sold in the market and had few rights in law.

In the early stages of Virginia and Maryland history, records exist of convicts testifying—usually as witnesses on land boundaries—demonstrating that they were not, in fact, legally dead. Convict servant Ninian Beale testified numerous times on land boundary issues, while convict Woolfren Hunt testified on relationship status in will hearings.Footnote 44 It could be, especially in Beale and Hunt’s cases that their attaint status was overlooked due to the conditions in the colony. With high death rates, it would be detrimental to colonists if their convict servants could not testify. Convicts also testified in the courts in cases of bastardy, generally as a means to establish the father of the illegitimate child.Footnote 45 In these cases, if the father was a servant, he was sentenced to extra time in service; if the father was free, he had the rights to allocate where his child was to be bound.Footnote 46

However, convicts don’t just appear before the court when testifying. They also often appear before the court in freedom suits, that is, suing their owners for their freedom. Hercules Kent’s case is particularly revealing. Kent, a black man, arrived in Maryland as a convict—convicted in Chester and transported by a merchant named William Langton.Footnote 47 He sued for his freedom in 1732 but was denied and subsequently enslaved.Footnote 48 This case has several important implications. First, and perhaps most importantly, is that it even exists in the first place.

The judicial framework would not have allowed this case to proceed to court if Kent was enslaved, as slaves had no legal personhood in this period. He, by his own admission, was convicted of a felony and thus not an indentured servant. It cannot, however, be ascertained with certainty if Kent was attainted or not, given his conviction record has not yet been viewed. Kent is not, however, the only convict who sues for his freedom in the court of law, suggesting that either felony attaint is not a barrier to these types of suits or that it had expired on transportation to the colony.

There are other indications that attaint was applied inconsistently in the Virginian and Maryland colonies. After 1676 in Virginia, any person previously convicted of a crime either in England or in the colony—even if pardoned—was banned from holding ecclesiastical, civil, or military office.Footnote 49 This aligns with the “civil and legal death” of attainder. Yet a William Grove was not fully subject to this law. Convicted and sentenced to death in October of 1724, he was transported to Virginia for fourteen years in December of 1724, though no record of his pardon survives.Footnote 50 In 1737, before his fourteen-year sentence was complete, he sued John King—showing he was not “legally dead” before the court. In 1747, he was nominated to serve as clerk of the vestry, but the nomination was challenged due to his previous conviction status.Footnote 51 He later witnessed a will in Fairfax County.Footnote 52 In this case, the question remains if his felony attaint was removed by the pardon, or if the colony only chose to apply the attainder when it suited them—such as preventing him from holding office.

Yet, in other cases, attaint was applied. William Riddlesden was transported in 1720 but purchased his freedom on arrival and thus never served bonded labor. However, he was denied his attorney’s license in both Pennsylvania and Massachusetts, meaning attainder was followed in his case.Footnote 53 Yet not all would-be lawyers in Virginia were prevented from serving due to their conviction status. In 1750, Governor Gooch regulated Attorneys “to prevent persons convicted of a felonious crime from obtaining a licence to practice […] as some few have done.”Footnote 54 Nonetheless when he housed a friend’s convicted son, who had previously been trained as an attorney, he was willing to let him practice but could not “for the people of the country know what he is.”Footnote 55 The evidence suggests that attainder was inconsistently applied, if at all, and only when it suited the colonists to do so.

There are other examples where attainder was not applied to convicts, in particular in the ownership of property. Jonathan Ady, in 1743, had a mortgage of 60 acres and was a successful cooper. Anthony Lamb, the father of the American Revolutionary John Lamb, was a convict who ran a successful Math Instrument business and even owned slaves.Footnote 56

Part of the reason that Attaint may not have been traceable for the colonists in Virginia could be due to the lack of conviction records that accompanied them to the colonies. While indentured servants signed an indenture that their masters had a copy of, convicts did not. There are a tiny number of convict indentures still extant, but when compared to the significant number surviving for indentured servants, this suggests that this was not common practice for convicts.Footnote 57 There are some suggestions that there should have been court papers given to the shipping merchant stating the nature of the conviction, but it seems if these were rare indeed.Footnote 58 One captain claimed they had been destroyed by the convicts, another simply could not produce them.Footnote 59 By 1728, the Provincial Court noted that merchants were “still neglecting” to bring in convict papers.Footnote 60 Without these papers or some other evidence of conviction, it would be near impossible for the colonist—or a historian—to know who was attainted or not. So were convicts attainted on arrival to Virginia and Maryland or not?

The answer seems to be unsatisfying, maybe.

Australian Contrast

As noted in the opening of this article, my aim is to build on the works of Bruce Kercher. It would be impossible—and beyond the word length allowed by this journal—to properly synopsize the detailed research and analysis he made of early NSW reception and application for felony attaint and the impact it had on the development of judicial law.Footnote 61 I am not attempting to repeat the work done by Kercher, but simply to revisit his key points with the additional primary American material.

Could NSW function as a colony when all of its early arrivals were (possibly) attainted felons or their jailors?Footnote 62 It is not un-ironic that the first civil case in the colony was two known attainted felons suing a non-attainted Captain (and winning their suit).Footnote 63 The Kable (Cable) case has been extensively studied by legal historians—and not without merit as it established the precedence that all convicts, even those under sentence, were able to take advantage of the court systems. But it is not only their civil suit that can tell us about felony attaint, so too can their marriage.

Their attainted status is clear in that they were denied permission to marry while in England. The pair garnered pity, though, and were granted permission to marry before leaving for NSW, however, the wedding does not take place until they are in Australia.Footnote 64 In this case, their attainted status was ignored or overruled because the Under Secretary Evan Nepean felt sympathy for the pair. Under the rules of felony attaint, other convicts should not have been allowed to marry either. Except they did.Footnote 65

Elizabeth Barber was sentenced to death, and thus should have been attainted.Footnote 66 She marries a Thomas Brown in the colony in February of 1788 (Thomas was directly sentenced to Transportation so should not be attainted).Footnote 67 Historically, when these two marry in 1788, there is not yet any pathway to freedom or pardons in the colony, so both would still have been considered “under sentence.” Elizabeth still has a year on her sentence (and her husband has 2 years), so unless her pardon from death cleared her attainder, she should still be under its disabling influence. But clearly, she was not. Was the nuance in this case because the male wasn’t attainted? Is that what mattered? There is no way to know. Other marriages can be examined and show nearly no pattern, except that marriage was encouraged in NSW among convicts irrespective of any attainder.

As shown in greater detail by Kercher, in NSW, the application of convict attaint shifted like a pendulum. Initially, other than in the magistrate courts, convicts were treated as if they were free and attaint was largely ignored, just as it had been in early Virginia.Footnote 68 They could sue for unpaid wages, or be sued for debts.Footnote 69 In the early years of the Australian colony, transported attorneys acted as agents to give professional advice to the Civil Court, because there were no alternatives. For legal representation, the choice was often a convict/Emancipist or someone legally unqualified.Footnote 70 Many convicted attorneys rose to prominence, including George Crossley, George Chartres, and Edward Eagar.Footnote 71 Simeon Lord and Andrew Thompson served on the magistrate’s bench (even though neither had extensive legal training).Footnote 72 Attaint was thus clearly not a disabling factor due to the fact that the conditions in the colony necessitated their expertise.

Opinions changed, as freer, legally trained individuals arrived in the colony. Just as Virginia and Maryland passed laws disbarring those who’d been convicted of crimes, in NSW, Jeffery Bent ruled in 1815 that no lawyer disbarred in England could practice in the colony.Footnote 73 Which incidentally was the same year that the first unconvicted lawyer arrives in the colony.

Much alarm was caused to Emancipists in NSW by the case Bullock versus Dodds (1819).Footnote 74 The key judgment held that those convicted of death and then reprieved for transportation were not relieved of their attainder, nor did a pardon from the NSW Governor reprieve them. This obviously concerned Emancipists in the colony, whose rights to legal recourse and property were at risk. But there are other fascinating aspects about this case for those interested in the question of felony attaint.

A key discussion in deciding this case is whether the pardon from death was also a pardon from felony attaint. Importantly, when you revisit the many Transportation Acts, the way in which the felon was pardoned shifts. The Bullock case cites 8 Geo 3 c15, the 1768 Transportation Act, which states, “Such transportation shall have the effect of pardon under the great seal.”Footnote 75 Suggesting that once transported, they should have an absolute pardon. Yet, when Bullock brings his suit, these Acts have been updated. He would have been transported under 24 Geo 3c 56 (1784 Transportation Act) which only grants “benefit of conditional pardon” and does not mention the great seal at all.Footnote 76 Importantly, however, 30 Geo 3 c47 in 1790 allows that the governor of Australia can remit a sentence either “absolutely or conditionally” and that it should “shall have the effect […] as if his majesty had signified their royal intention of mercy under his or their sign,” and that such a pardon would be ratified “in the next general pardon which shall pass under the Great Seal.”Footnote 77 This to me argues that any and all pardons granted by the governor removed attainder—Bullock should not have been under Felony Attaint based on the Acts in force when he brought his suit.Footnote 78

But hand in hand with this discussion of the pardon is the discussion regarding those who returned to England or Britain before the end of their sentences. The Transportation Acts place a further restriction on transported convicts, in that if they returned to England or Great Britain before the end of their sentence “shall be liable to be punished as any person attainted of felony without benefit of clergy” and punished with death.Footnote 79 This was a far more common problem under the American system than it was in the Australian, in part due to distance, but especially given some paid their own way to the Americas and were thus free in the colonies.Footnote 80

Importantly, and missed by the judges in the Bullock case, this death punishment applied to those who were attainted (pardoned from death on condition of transportation) and those directly sentenced and thus not attainted. In essence, returning from transportation was a *new* non-clergiable offense. So, Bullock was attainted not by his original conviction, but by this new offense of returning to England before the expiration of his sentence. In essence, Bullock was barred from suing—not because he was attainted by his original sentence—but because he was doing so in the English court system rather than the Australian.

. This case indicates the shift from attaint being ignored in the Australian colony, to it applying to even freed convicts. Which neglects to take into account that those directly sentenced to Transportation—which the bulk of Australian convicts were—rather than reprieved of death, should not be attainted in the first place, unfairly placing the burden on them as well as those pardoned. John Thomas Bigge, who was sent to the colony to report back to the crown, recommended in 1822 that ex-convicts should be restored to civil rights.Footnote 81 Justice Stephen in 1827 stated “the rights of prisoners were as sacred in the eye of the law as those of free men.”Footnote 82 Thus, attaint in Australia is an example of a divergence from the common law of England, specifically adapted to a convict colony.

It is important to note that the Australian colonies spoke and dealt with attainder more explicitly than the American ones ever did. No American law mentioned attaint; rather, it seems that the reliance was instead on their unfree chattel status rather than their attainted status that disabled convicts from participating in the full process of the law.Footnote 83 One of Kercher’s aims in studying convict attaint was to understand property rights over the convict, in both the American and Australian colonies. However, because he is narrowly focused on this one law, he missed a key element—the impacts of indentured servitude and slavery. It is not attaint that transfers property rights over the convict, but the process of sale and resale in the American colonies, which established ownership, and subsequent chattelization of the convict, as well as over that of other servants and slaves. In the American colonies, these sold convicts were privately controlled by those who purchased their labor—just as slaves and indentured servants were—and in the Australian colonies, convicts were publicly controlled by the government, even when assigned to a private settler. This difference in control made all the difference to property rights.

During the French and Indian War, Sir Charles Hardy wrote to Lord Halifax that the recruitment of servants was troublesome because “the lawyers … hold Bought servants to be Property and, as such, have no Will of their own, and cannot be withheld from their Masters.”Footnote 84 The chattel status of servants in America is hotly debated, especially in an era where the myth of the “white slave” circulates.Footnote 85 While it is outside the scope of this article to go into depth on the evidence for this point, I have argued elsewhere that indentured servants and convicts were held in a temporary chattel status, which passed to their illegitimate children.Footnote 86 Because Australia lacked the same process of sale and resale, convicts there were not chattelized and “owned” in the same way as earlier convicts to America, and thus employers did not own their property rights.

While Virginian law became more and more coercive, Australian law aimed to protect the laboring abilities of the convicts themselves.Footnote 87 An argument can be made that the reason laws in Virginia excluded convicts was due to greater awareness of attaint or alignment with British law. In 1748, Virginia convicts are barred from giving testimony in a court of law, unless it was against another convict.Footnote 88 After 1769, because women could not testify, convict women had their children automatically bound to their master (rather than being sold).Footnote 89 Convict woman Winifred Jones in Maryland had five mixed-race children sold to her master. Not only were her children chattelized, each carried an extra seven-year sentence for the mother (Maryland’s fornication law was harsher than Virginia’s), meaning Jones was chattel for life.Footnote 90

Given the inconsistencies in application on sentencing, and patchy application in the colonies why does attainder—or attaint—matter historically? While attainder was inconsistently applied in the early settlements of each colony, as evident by the appearance of convicts before the courts in both locations, later treatment of convicts in both places showed greater alignment with the idea of felony attainder. By examining attaint, we can see the increased sophistication in legal practice as it developed.

Local conditions meant adaptation from English law. Separated by the distance of the Atlantic, and later the Pacific, formal institutional connections with England were minimal, leading to that initial non-application of attainder.Footnote 91 Local laws in both colonies that focused on convicts shifted over the years toward exclusion from society—that is, toward an alignment with ideas of attaint. While attaint itself was still inconsistently applied, if you examine the legislature closely, you can see the exclusion of convicts along the lines of “legal and civil death.”

Why was attainder so poorly applied in the early days of the colonies? One reason is perhaps the early structure of the court and legal systems. In both locations. In Virginia, labor shortages modified the operation of the criminal justice system, the harshness of laws, and it stands to reason the application of attaint as well.Footnote 92 While in NSW, the military justice was sufficient, and the settlement could not survive if the majority of the population was attainted.Footnote 93

The few members of the Bench and Bar in early Virginia were poorly trained in the law, and their administration of it was rudimentary.Footnote 94 Justices learned from those who had come before them rather than formal education, few read or owned legal books, and magistrates only had informal knowledge of English legal customs.Footnote 95 Formal institutional connections with England were minimal, and though they are instructed to pass laws “not contrary” to those in England, they could still develop their own unique local legislative acts and procedures.Footnote 96

Early NSW had many similarities to early Virginia. Governors frequently stated that they could not follow English law as it either did not apply or was too difficult to understand.Footnote 97 Just as in early Virginia, courts in early NSW were run by amateur judges, in a rudimentary court system.Footnote 98 Richard Dore (1798 attorney) and Ellis Bent (1809 barrister) were the only two judge advocates of the Civil Court who had any legal training.Footnote 99 Richard Atkins, the infamous judge-advocate and magistrate, wrote “my education had not been what is called a legal one, but a classical one with some reading of law.”Footnote 100 This lack of trained personnel inhibited effective operation of the court systems, and thus the application of attainder.Footnote 101

As the bench became more educated and specially trained in both locations, with better access to legal materials, English law became more consistently applied resulting in a shift toward the application of common law including that of attainder.Footnote 102 The rise of the legal profession between 1714 and 1748 in Virginia accelerated the complexity of political and legal cultures and drew towards British procedures.Footnote 103 The introduction of professionals into NSW signaled a change in attitude toward attaint, just as some of the laws in Virginia changed for greater alignment. The divergences from British law dissipated to a degree with the introduction of professional English lawyers.Footnote 104

In Virginia, specific laws such as those that prevented marriage or trading effectively controlled the servant population, including convicts, without attaint needing to come into play. Their unfree status precluded them from owning land or goods until after their sentence. Konig argued that the Virginian colony “had few of the protections of the common law courts.”Footnote 105

Each colony then developed a greater alignment with the understanding and application of common law, or at least this particular common law. For attaint this posed a further question—how does this apply to those transported? The “pure” version of the common law of attaint was that it was for life, even if a sentence had been fully served, unless a pardon was received under the Great Seal.Footnote 106 But what about those who had been locally pardoned or who had only a seven- or fourteen-year term?Footnote 107 This then circles around to the beginning of this article in the discussion of who was attainted and who was not.

If we return for a moment to the Bullocks versus Dodd case, the biggest question in the case was whether those who were pardoned from a death sentence for Transportation were also pardoned from their attainder. While the historical interest in this case has been on the judgment made, I think it is just as important that we pay attention to the discussion they had prior to judgment. Importantly, what I think this case and their prejudgment discussion shows, is the complexity of felony attaint—even practitioners of the law in the time period struggled to know how the Judicial Act should apply in cases where a convicted felon was pardoned.Footnote 108 Was he pardoned under the great seal as stated in the Act? The judges in Bullock versus Dodd certainly thought not.

This discussion also suggests that the complexity of attainder was a barrier to its application, especially for any practitioner in the colony who was not as familiar with the law. Would a lay practitioner in the Virginian or NSW colonies understand the common law of attainder and the ways in which it did or did not apply in any given case? Given the evidence, it seems unlikely that they did so.

Why does the messy, tangled, convoluted—and frankly a little unclear—history of attainder matter? By looking at one aspect of common law, we can see local divergence from English common law, while still clinging to English common law. It shows the moments in which common law shifts and changes, even while retaining connections to the old traditions. We can also see how messy the application of common law was, especially as it was sent to the colonies. Rather than treating the common law as an unchanging ancient tradition that was imported wholesale to new colonial spaces, the history of changes to attainder shows the ways in which these colonies took and adapted what was useful to them. By unpicking attaint, we can understand a bit about how the common law worked for the people who lived and worked and were subject to the law in the periods in which we study.

Acknowledgements

I would like to acknowledge Bruce Kercher. This study wouldn’t even exist without his encouragement and interest in my work a decade ago. For David Goodman and Penny Edmonds who read early editions of this work and made valuable suggestions, thank you. My appreciation must also be given to the Law and History Review editor and review team. Finally, I need to thank Cole for the push and support to write, and your unwavering belief in my abilities.

References

1 Latin based on the record QJI 1 3 1626 Jan, Lancashire archives, Preston.

2 There are far too many to list, but some of the key works are. For English law see: J. A. Sharpe, Crime in Early Modern England, 1550–1750 (Longman, 1984); A. Roger Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1718–1775 (Oxford University Press, USA, 1990). For Comparative Law see: Jennie Jeppesen, “From Whips to Wages: From Coercive to Incentive Driven Labour,” in Frontiers of Labor: Comparative Histories of the United States and Australia, ed. Greg Patmore and Shelton Stromquist (Chicago: Illinois University Press, 2018); Bruce Kercher, ‘Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700–1850’, Law and History Review 21, no. 3 (Fall 2003), http://www.historycooperative.org/journals/lhr/21.3/forum_kercher.html; For American colonial law see: David H. Flaherty and Institute of Early American History and Culture (Williamsburg Va.), Essays in the History of Early American Law (Published for the Institute of Early American History and Culture of Williamsburg, Va., by the University of North Carolina Press, 1969); Warren M. Billings, “The Law of Servants and Slaves in Seventeenth-Century Virginia,” The Virginia Magazine of History and Biography 99, no. 1 (January 1, 1991): 45–62; Douglas Greenberg, “Crime, Lawn Enforcement, and Social Control in Colonial America,” American Journal of Legal History 26 (1982): 293. For Australian colonial law see: Bruce Kercher, ‘Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700–1850’, Law and History Review 21, no. 3 (2003); John Braithwaite, ‘Crime in a Convict Republic’, The Modern Law Review 64, no. 1 (2001): 11–50, https://doi.org/10.1111/1468-2230.00307; David H. Flaherty and Institute of Early American History and Culture (Williamsburg Va.), Essays in the History of Early American Law (Published for the Institute of Early American History and Culture of Williamsburg, Va., by the University of North Carolina Press, 1969); James Edward Gillespie, ‘The Transportation of English Convicts after 1783’, Journal of the American Institute of Criminal Law and Criminology 13, no. 3 (1922): 359–81, https://doi.org/10.2307/1133932.

3 Cheapside Shoplifting, T16780116-9 (Old Bailey 16 January 1678), https://www.oldbaileyonline.org/browse.jsp?id=t16780116-9&div=t16780116-9; Bruce Kercher, ‘Commerce and the Development of Contract Law in Early New South Wales’, Law and History Review 9, no. 02 (1991): 25, https://doi.org/10.2307/743650.

4 Kercher, ‘Perish or Prosper’; Bruce Kercher and Brent Salter, eds, The Kercher Reports: Decisions of the New South Wales Superior Courts, 1788 to 1827 (Francis Forbes Society for Australian Legal History, 2009), https://trove.nla.gov.au/version/34077632; B. Kercher, ‘A Convict Conservative: George Crossley and the English Legal Tradition’, Law in Context, 1998, https://www.semanticscholar.org/paper/A-Convict-Conservative%3A-George-Crossley-and-the-Kercher/5f739e1378ad2f61a4534df7160b6681666c0b92; Bruce Kercher, ‘Resistance to Law under Autocracy’, The Modern Law Review 60, no. 6 (1997): 779–97; Bruce Kercher, Debt, Seduction, and Other Disasters: The Birth of Civil Law in Convict New South Wales (Federation Press, 1996); ibid.; Bruce Kercher, An Unruly Child: A History of Law in Australia (Allen & Unwin, 1995).

5 Due to his reliance on secondary sources for the Virginian and Maryland convict legal experience, Kercher has made some errors in his comparative elements of the two systems, in particular in his discussions on property rights and masters control over their convicts: “there was little to distinguish the rights of masters in NSW in 1829 from those in Virginia or Maryland a century earlier. Convict labor was privately owned,” Kercher, ‘Perish or Prosper’, 572. It is beyond the length of this paper to examine in depth, but there were significant and crucial differences between the two systems. I disagree with Kercher that property rights were transferred from the governor to employers in Australia. For a full discussion see: Jennie Jeppesen, Sentenced to Servitude: A Transnational Comparative History of Transportation to America and Australia, (Forthcoming); Jennie Jeppesen, ‘In the Shadows between Slave and Free. A Case for Detangling the Word Slave from the Word Chattel’, Atlantic Studies 17, no. Special Issue on Comparative Abolitions (2020): 399–418, https://doi.org/10.1080/14788810.2019.1708158; Jennie Jeppesen, ‘“To Serve Longer According to Law”: The Chattel-like Status of Convict Servants in Virginia’, in Order and Civility in the Early Modern Chesapeake, ed. Debra Meyers and Melanie Perreault (Lexington Books, 2014).

6 1 Steph. Comm. 408; 1 Bish. Crim. Law, David Eltis et al., eds, The Cambridge World History of Slavery: Volume 3, AD 1420-AD 1804 (Cambridge University Press, 2011), 138.

7 Often used on individuals already deceased, who had claimed sanctuary or fled the realm, and generally without evidence. During the Tudor years, many of these attainders were reversed when the next faction came to power.

8 Stanford E. Lehmberg, ‘Parliamentary Attainder in the Reign of Henry VIII’, The Historical Journal 18, no. 4 (1975): 677, JSTOR.

9 Matthew Steilen, ‘Bills of Attainder’, Houston Law Review, no. 53 (2016): 772.

10 See: Douglas Hay, Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (London: A. Lane, 1975., 1975); V. A. C. Gatrell, The Hanging Tree: Execution and the English People 1770–1868 (Oxford University Press, 1996); Peter King and Richard Ward, ‘Rethinking the Bloody Code in Eighteenth-Century Britain: Capital Punishment at the Centre and on the Periphery’, Past & Present 228, no. 1 (2015): 159–205, https://doi.org/10.1093/pastj/gtv026.

11 Patent Roll, C. 66/2043 as quoted in: Abbot Emerson Smith, ‘A.E. Smith Research Notes’, n.d., 79 SV05, Special Collections Research Center, Swem Library, College of William and Mary. (This could include the army or navy) Acts of the Privy Council, Colonial Series Vol 1, 4, 10

12 .http://www.oldbaileyonline.org/browse.jsp?id=o16810520-1-punish55&div=o16810520-1#highlight; Calendar State Papers, Domestic, 1667 CCV11 #136, “to be him transported beyond seas, with their full consent.”; “If they refuse to bee transported […] parton to be null and voyd” Patent Roll, c66/2912 No3, Some could not afford to leave: http://www.oldbaileyonline.org/browse.jsp?id=o16810831-4-punish62&div=o16810831-4#highlight Those who did transport themselves were free upon arrival in the colony – George Nicholas is one example. Frederick Hall Schmidt, ‘Sold and Driven: Assignment of Convicts in 18th Century Virginia’, The Push from the Bush 23 (October 1986): 5.

13 Jeppesen, Sentenced to Servitude, ch. 1.

14 Geo I C II 1718 (Known as the Transportation Act) William David Evans et al., A Collection of Statutes Connected with the General Administration of the Law: Arranged According to the Order of Subjects, with Notes (W. H. Bond, 1836), 51.

15 For Africa see: Emma Christopher, A Merciless Place: The Lost Story of Britain’s Convict Disaster in Africa and How It Led to the Settlement of Australia (Allen & Unwin, 2010). For the late end of the American system see: Teresa Foster, ‘Felonious Women & Familial Bonds: Transportation to the Maryland Colony 1718–1739’ (PhD, UMBC, 2018). Indentured servitude continued until the 1900s.

16 For the legal implications of these Acts, see A. Brooks, ‘Prisoners or Servants? : A History of the Legal Status of Britain’s Transported Convicts’ (PhD, University of Tasmania, 2016), ch. 4, https://eprints.utas.edu.au/23008/.

17 “Is not attainted of felony” July 1664 Winchester Assizes Trial of Nathaniell Wateridge.; Calendar of Home Papers as quoted in Smith, ‘Research Notes’.

18 Ibid., fol. 14. OldBailey, s17401015-1

19 Smith, ‘Research Notes’.

20 Calendar State Papers Colonial 1629 quoted in Abbott Emerson Smith Papers, Box 1, Folder 30. Also in 1622, Calendar State Papers Domestic, 439

21 Kercher, ‘Perish or Prosper’, 549.

22 1624 William Thomas Calendar State Papers Domestic 1619–1625, CLXXIV 77, Nov 17 1624 CJ Ley to Conneil.

23 Sir John Kelying, A Report of Divers Cases in Pleas of the Crown, Adjudged and Determined; in the Reign of the Late King Charles II. With Directions for Justices of the Peace and Others. Collected by Sir John Kelyng, Knt. Late Lord Chief Justice of His Majesty’s Court of King’s Bench. From the Original Manuscript, under His Own Hand. To Which Is Added, the Reports of Three Modern Cases, Viz. Armstrong and Lisle; The King and Plumer; The Queen and Mawgridge. (London, 1708), 92, Eighteenth Century Collection Online.

24 See: OldBailey online, t17090117–13, t17260302–37, s17430519–1, t17411014–36

25 Alan Atkinson, ‘The Free-Born Englishman Transported: Convict Rights as a Measure of Eighteenth-Century Empire’, Past & Present 144, no. 1 (1994): 19, https://doi.org/10.1093/past/144.1.88.

26 Hugh F. Rankin, Criminal Trial Proceedings in the General Court of Colonial Virginia, Williamsburg Research Studies (Colonial Williamsburg; distributed by the University Press of Virginia, Charlottesville, 1965), Library of Virginia; Warren Billings, ‘The Transfer of English Laws to Virginia 1606–50’, in The Westward Enterprise: English Activities in Ireland, the Atlantic, and America 1480–1650, ed. K.R. Andrews (Liverpool University Press, 1978); Holly Brewer, ‘Age of Reason? Children, Testimony, and Consent in Early America.’, in The Many Legalities of Early America, ed. Christopher L. Tomlins and Bruce H. Mann (University of North Carolina Press, 2001), 201; Holly Brewer, ‘Slavery, Sovereignty, and “Inheritable Blood”: Reconsidering John Locke and the Origins of American Slavery, Sovereignty, and “Inheritable Blood”’, The American Historical Review 122, no. 4 (2017): 1038–78, https://doi.org/10.1093/ahr/122.4.1038; William Stoebuck, ‘Reception of English Common Law in the American Colonies’, William and Mary Law Review 10, no. 2 (1968): 393; W. Hamilton Bryson, ‘English Common Law in Virginia’, The Journal of Legal History 6, no. 3 (1985): 249–56, https://doi.org/10.1080/01440368508530845; Alex C. Castles, ‘The Reception and Status of English Law in Australia’, The Adelaide Law Review 2, no. 1 (1963): 1–32; Kercher, ‘Perish or Prosper’; Paul Samuel Reinsch, English Common Law In The Early American Colonies (The Lawbook Exchange, Ltd., 2004); Charles Joseph Hilkey, Legal Development in Colonial Massachusetts, 1630–1686 (The Lawbook Exchange, Ltd., 2005); Julius Goebel, Cases and Materials on the Development of Legal Institutions (The Vermont Printing Co, 1949); George Lee Haskins, Law and Authority in Early Massachusetts: A Study in Tradition and Design (University Press of America, 1968); Zechariah Chafee, Colonial Courts and the Common Law (1952). William Stoebuck, ‘Reception of English Common Law in the American Colonies’; Bryson, ‘English Common Law in Virginia’; David Thomas Konig, ‘Dale’s Laws and the Non–Common Law Origins of Criminal Justice in Virginia’, American Journal of Legal History 26 (1982): 354; Billings, ‘The Transfer of English Law’; Christopher Tomlins, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (Cambridge University Press, 2010); Flaherty and Va.), Essays in the History of Early American Law; Douglas Greenberg, ‘Crime, Lawn Enforcement, and Social Control in Colonial America’, American Journal of Legal History 26 (1982): 293; The Cambridge History of Law in America (Cambridge University Press, 2008). Many studies of common law in America have focused on Maryland, and unfortunately applied it to “the colonies” as a whole. Each colony, however, followed their own rules and regulations and it was not until after the Revolution in 1783 that some semblance of uniformity was attempted.

27 William Blackstone, Commentaries on the Laws of England, 4 vols (Clarendon Press, 1765), 93.

28 Ibid., 105. This material is found in the 2nd reprint of Blackstone. Also digitized here: http://www.lonang.com/exlibris/blackstone/bla-004.htm [Accessed 29th May 2012 2:36pm]

29 Carter 1774 quoted in Bryson, ‘English Common Law in Virginia’, 250.

30 See for instance the analysis on the laws of bastardy: John Ruston Pagan, Anne Orthwood’s Bastard: Sex and Law in Early Virginia (Oxford University Press, 2003).

31 I was lucky enough to meet Bruce Kercher in 2011 at the Australia and New Zealand Law and History conference in Brisbane, Australia, where we discussed the problem of felony attaint and the entanglement of servant and convict in the Virginian colony. It was his encouragement that sent me down the path of trying to untangle these two groups using the lens of attainder in the first place.

32 William Eddis, Letters from America, Historical and Descriptive; Comprising Occurrences from 1769, to 1777, Inclusive. (printed for the author, and sold by C. Dilly, in the Poultry, 1792), 32.

33 Caecil Calvert, “Caecil Calvert to Governor Sharpe, December 23rd 1755 Correspondence of Governor Sharpe, 1753–1757 Volume 6,” 330, Archives of Maryland Online, http://aomol.msa.maryland.gov/000001/000006/html/am6--322.html.

34 Harry Piper to Dixon, October 24 1767 Harry Piper, ‘Items Relating to Alexandria, Va’, 1776 1767, MSS 2981-a v.1, Albert and Shirley Small Special Collections Library, University of Virginia.

35 London to VA, ship Ruby, Capt. Edward Ogle, October 1754 Peter Wilson Coldham, The King’s Passengers to Maryland and Virginia (Heritage Books Inc., 2009), 147. 1760: http://www.nationalarchives.gov.uk/a2a/records.aspx?cat=157-ddfjaddit_1&cid=1-2-1-148&kw=Ruby#1-2-1-148 1758–1763: Bristol Record Office 39654/1 “Voyage accounts for the Ruby” Thanks to Teresa Foster for information about the 1756 and 1770 voyages.

36 If the captain had lost the conviction papers as claimed, he should have been forced to sign a seven-year indenture, not four, as convicts were sold for at least seven years

37 www.londonlives.org/browse.jsp?id=LMOBPS45008_n1966-4&div=LMOBPS45008PS450080217

38 Landon Carter and Jack P Greene, The Diary of Colonel Landon Carter of Sabine Hall, 1752–1778. Edited, with an Introduction, by Jack P. Greene, Virginia Historical Society Documents: V. 4-5 (Charlottesville: University Press of Virginia, 1965), 970.

39 James Messenger Returning from transportation (OldBaileyonline t17760911-85 1776). Messenger was “respited” from death in 1777 http://www.londonlives.org/browse.jsp?div=LMSLPS15088PS150880059

40 See also: letters from planters who describe an individual in one letter as a servant, and in a different letter as a convict Charles Carroll, Dear Papa, Dear Charley: The Peregrinations of a Revolutionary Aristocrat, as Told by Charles Carroll of Carrollton and His Father, Charles Carroll of Annapolis, with Sundry Observations on Bastardy, Child-Rearing, Romance, Matrimony, Commerce, Tobacco, Slavery, and the Politics of Revolutionary America, ed. Ronald Hoffman et al. (Published for the Omohundro Institute of Early American History and Culture, Williamsburg, Virginia, the Maryland Historical Society, Baltimore, and the Maryland State Archives, Annapolis, by the University of North Carolina Press, 2001), 615.

41 NY Gazette, April 15 1751, Coldham, The King’s Passengers to Maryland and Virginia; Peter Wilson Coldham, The Complete Book of Emigrants, 4 Vols (Genealogical Publishing Company, 1993), 573.

42 Virginia Gazette – Rind, March 28 1771 See also Virginia Gazette April 21 1775 which announces the Justitia with no mention the servants are convicts. Captain of the Justitia is Kidd, servants were sold by Thomas Hodge. See: Duncan Campbell, ‘Duncan Campbell Business Letterbook 1772–1776’, London, n.d., Mitchell Library State Library NSW. Includes many letters regarding the loading of the Justitia from many prisons, including the captains name. See also: Felons transported from London to Virginia by the Justitia, Capt. Colin Somervell, December 1770 Coldham, The King’s Passengers to Maryland and Virginia, 221.

43 American Weekly Mercury, August 2 1739, Issue 1022, p3. There are of course many ways a hand can be burnt, but the terminology “Burnt on the Hand” usually implies that of the criminal punishment. Other forms of burns are usually described “burn marks.” It was used when someone found guilty, but were released – they were burnt on the hand to make sure they did not escape death a second time. Not all convicts underwent this process. See also: American Weekly Mercury, July 1734, Issue 758, p4 American Weekly Mercury July 7 1737, Issue 914, p3 American Weekly Mercury, February 22 1738 Issue 999 p3 Pennsylvania Gazette, August 16 1744 Issue 818 p3; Pennsylvania Gazette August 30 1744 Issue 820, p4 Pennsylvania Gazette, September 22 1748 Issue 1032 p3 American Weekly Mercury August 16 1739 Issue 1024, p3; American Weekly Mercury, August 2 1739, Issue 1022, p3; NY Gazette, April 15 1751, NY Gazette, May 13 1751, NY Evening Post, September 9 1751; Virginia Gazette, March 24 1775 p4 This list of runaway notices is not in any way exhaustive.

44 Debbie Hooper, Abstracts of Chancery Court Records of Maryland, 1669–1782 (Heritage Books, 2008), 12, 29, see also 2, 13, 19, 25, 33,. Unfortunately, many of the earliest records from Virginia were destroyed by fire. See for instance Charles Hamrick and Virginia Hamrick, Northumberland County, Virginia, Court Order Book, 1699–1713 (Iberian Pub. Co., 1999), 6.

45 See for example: Hamrick and Hamrick, Northumberland County, Virginia, Court Order Book, 1699–1713, 175, 235. See Northampton Order and Wills 1683–89 p 111; Accomack County Deeds Wills and Orders 1663–66 p87; Accomack County Order and Wills 1671–73 p118–9, 121.

46 For examples see: Accomack County Orders 1676–79 p 78,79,88; Accomack County Wills Deeds and Orders 1678–82, p 41, 44; Northampton County Order Book and Wills 1683–89 p 76–77, 81; Northampton Order and Wills 1683–89 p 111; Accomack County Wills Deeds and Orders 1678–82 p 31.

47 I have discovered two shipments made by William Langton from the Chester region in the right time period for Kent to have been transported, but no shipping indents survive. Walter E. Minchinton, The Trade of Bristol in the Eighteenth Century (Bristol Record Society, 1957), 18. At the time of writing this article, the conviction record for Kent in Chester has not been uncovered, given that documents were unavailable for inspection due to material conditions when I visited the archive. ‘Chester Quarter Sessions’, n.d., ZQSF, Chester Archives, http://archive.cheshire.gov.uk/CalmView/Record.aspx?src=CalmView.Catalog&id=ZQ%2fSF. Transportation bonds that were available in Chester archive on my visit did not list either Kent or Langton. The Langton family was active in the slave trade, although the last slave shipment that William Langton participated in was in 1711 “Voyage 16083, Union Sloop.” Notice however that his last name is spelled with a D rather than a T in that record. This could be a transcription error, or a different individual.

48 Queen Anne County Judgment Record 1732–1735, MSA CE450-6, p162 ‘Convict Servant Research Notes Collection’, n.d., MSA SC2293, Maryland State Archives. This case shows that the color of his skin overrode his status as a convict, as it was for many other servants. There were other black men who were also convicts: John Baptist” Lower Norfolk County Wills and Deeds C 1651–1656 ff8; “Degroe” Lancaster County Orders 1655–1666, 369 and Lancaster County Deeds 1654–1668 337; “John Keratan” Charles City County Deeds Wills Orders 1655–1665, 604–5, 617–18; “Casor” Northhampton County Deeds Wills 1651–1654 f226 and 1655–1668 f10; “Philip Gowen” Henry R. McIlwaine, ed., Minutes of the Council and General Court of Colonial Virginia, 2nd edn (Library of Virginia, 1979), 411.; “Edward Mozingo” Ibid., 316. 1722-3, Liber 8, SR 4330-3p.277, Edward Smith late of the City of Annapolis in Ann Arundel County 10 June 1723 A Mullato man being a Convict named Bristow 14 pounds. See also Elizabeth Jones OldBaileyOnline.org t17350416

49 Hening, Statutes at Large;3: 250.

50 http://www.oldbaileyonline.org/browse.jsp?id=t17241014-9-defend62&div=t17241014-9#highlight; Peter Wilson Coldham, The Complete Book of Emigrants in Bondage, 1614–1775, with Peter Wilson Coldham (Genealogical Publishing Company, 1988), 340.

51 ‘Truro Parish Vestry Book’, n.d., MMC-2489, Library of Congress.

52 Fairfax County Will Book E1 1752–1767

53 His Lordship vs William Riddelson, April 1721, Provincial Court Judgements 17119–1722 403–405 417–419, Massachusetts Historical Society.

54 Gooch to BOT May 10 1750 William Gooch, ‘Official Correspondence of William Gooch’, 1751 1681, TR 16, Colonial Williamsburg Foundation, John D. Rockefeller, Jr. Library, Special Collections Section.

55 Gooch to his Brother, March 1743, William Gooch, ‘Private Correspondence of William Gooch’, 1751 1681, TR 17, Colonial Williamsburg Foundation, John D. Rockefeller, Jr. Library, Special Collections Section.

56 Anthony Vaver, Bound with an Iron Chain: The Untold Story of How the British Transported 50,000 Convicts to Colonial America (Pickpocket Publishing, 2011), 224, 247.

57 See MS692.1, MS 63732 and MS 2018 at the Maryland Historical Society for the convict indentures. Queen Anne Land Records at the Maryland State Archives has by far the most recorded of these, on the other hand none were recorded at all in Charles County.

58 “Capt. Edwyn Tomkyns alledges convicts but no such order of any court or assizes produced” Corporate Records Office London, MSS 57/7 Reel M-825, Colonial Williamsburg

59 Landing certificate to Port York Virginia, “all papers relating to their condemnation were forced out of the captains hands” MSS 57/7 Colonial Williamsburg

60 Provincial Court Judgments PL07 Chap 23, Maryland State Archives MSA SC2293. Campbell complained that the keeper at Madiston “omitted orders this time 12 month which I beg you will now produce” when reminding that keeper to provide orders from the Justice for the next batch of convicts. Campbell, “Business Letterbook Vol 1,” 28.

61 See in particular Kercher, ‘Perish or Prosper’, 545–67.

62 R Else-Mitchell, The Foundation of New South Wales and the Inheritance of the Common Law : An Address Delivered to the Royal Australian Historical Society on 29th January, 1963, in Commemoration of the 175th Anniversary of the Foundation of New South Wales. (DS Ford Printers, 1963), 4, http://trove.nla.gov.au/work/19521355?selectedversion=NBD4030634.

63 Cable v. Sinclair, NSWKR 7; NSWSupC 7 (Court of Civil Jurisdiction Proceedings 1788), https://www.law.mq.edu.au/research/colonial_case_law/nsw/cases/case_index/1788/cable_v_sinclair/; Gareth Griffith et al., The Kable Case: Implications for New South Wales (NSW Parliamentary Library, 1996).

64 “Cabel and Holmes […]I married soon after our arrival here.” The Rev. Richard Johnson to Under Secretary Evan Nepean July 12th, 1788

65 A convict named Write attempted to stop the banns of marriage and he felt that “although [he] be a prisoner, he did not act inconsistently in forbidding the banns.” ‘Document II John Brunker and Mary Ann McGreery’, The Push from the Bush 2 (1978): 71.

66 ‘S17820911-1 Elizabeth Barber Conviction Old Bailey Online’, accessed 19 August 2024, https://www.oldbaileyonline.org/record/s17820911-1?text=barber.

67 https://www.ancestry.com.au/search/collections/1780/?marriage=1788-2

68 Kercher, ‘Commerce and the Development of Contract Law’, 295.

69 Kercher, ‘Resistance to Law under Autocracy’, 785.

70 Kercher, ‘A Convict Conservative’, 23–24.

71 I do not have space in this paper to properly delve deep into the significance of these careers.

72 Kercher, ‘Commerce and the Development of Contract Law’, 272, 295, 304; Braithwaite, ‘Crime in a Convict Republic’, 28.: Gillespie, ‘The Transportation of English Convicts after 1783’, 370. M. Roe, ‘Colonial Society in Embryo’, Historical Studies: Australia and New Zealand 7, no. 26 (1956): 150, https://doi.org/10.1080/10314615608595053.

73 William Waller Hening, 2 Statutes at Large; Being a Collection of All the Laws of Virginia, From the First Session of the Legislature in the Year 1619, New York Public Research Libraries (Samuel Pleasants, 1810), 2:398/391; Robert Hughes, The Fatal Shore: A History of the Transportation of Convicts to Australia, 1787–1868 (Random House, 2003), 336.

74 Bullock v Dodds, English Reports Citation: 106 E.R. 361 ___ (Court of the King’s Bench 1819), http://www.commonlii.org/uk/cases/EngR/1819/194.pdf.

75 Great Britain, 28 The Statutes at Large: From the Magna Charta, to the End of the Eleventh Parliament of Great Britain, Anno 1761, with University of Michigan (C. Eyre and A. Strahan, 1768), 28:161, http://archive.org/details/statutesatlarge26britgoog.

76 Great Britain, 34 The Statutes at Large: From the Magna Charta, to the End of the Eleventh Parliament of Great Britain, Anno 1761 [Continued to 1807] (J. Bentham, 1782), 34:733.

77 Great Britain, 37 The Statutes at Large: From the Magna Charta, to the End of the Eleventh Parliament of Great Britain, Anno 1761 (1790), 37:110.

78 It is unclear to me why the judges in Bullock v Dodd cited the 1768 version of the Act instead of the 1784 version.

79 This Statement is in all the Transportation Acts from 1717 onwards.

80 t17760911-85 James Messenger Returning from transportation; Christopher Teixeira, ‘The Crime Of Coming Home: British Convicts Returning From Transportation In London, 1720–1780’, n.d.; Gregory Durston, ‘Magwitch’s Forbears: Returning from Transportation in Eighteenth-Century London’, Australian Journal of Legal History 9, no. 2 (21 August 2020): 137–58, https://doi.org/10.3316/informit.346181380219263; Victor Bailey, ‘Returning from Transportation, 1787–1789, 1809–1810’, in Nineteenth-Century Crime and Punishment (Routledge, 2020); This was such a huge problem, that a catching these convicts became a way of life - Jonathan Wild is the most famous (and the most corrupt as he himself turned out to be controlling these convicts for his own financial gain, and turned them in only when they were no longer of use to him) See: Henry Fielding, The History of the Life of the Late Mr. Jonathan Wild the Great, 1743, https://ia801301.us.archive.org/13/items/historyoflife00fiel/historyoflife00fiel.pdf; Gerald Howson, Thief-Taker General : Jonathan Wild and the Emergence of Crime and Corruption as a Way of Life in Eighteenth-Century England (New Brunswick, U.S.A. : Transaction Books, 1985), http://archive.org/details/thieftakergenera0000hows.

81 Ironically, this is one of the only parts of the report that agrees with Macquarie J. M. Bennett, ‘The Day of Retribution-Commissioner Bigge’s Inquiries in Colonial New South Wales’, The American Journal of Legal History 15, no. 2 (1971): 95, https://doi.org/10.2307/844229.

82 As quoted in Braithwaite, ‘Crime in a Convict Republic’, 20.

83 Jeppesen, ‘To Serve Longer According to Law’; Jeppesen, ‘In the Shadows’.

84 Sharpe to Shirley Proceedings and Acts of the General Assembly, 1755–1756 Archives of Maryland Online Volume 52, Preface 30. Abbot Emerson Smith, Colonists in Bondage: (Peter Smith, 1965), 282.

85 Liam Hogan, ‘Debunking the Imagery of the “Irish Slaves” Meme’, Liam Hogan, 14 September 2015, https://medium.com/@Limerick1914/the-imagery-of-the-irish-slaves-myth-dissected-143e70aa6e74; Liam Hogan and Matthew Reilly, ‘The Irish in the Anglo-Caribbean: Servants or Slaves? Why We Need to Confront the “Irish Slave Myth” and How Terminology Is Not Simply Semantics.’, History Ireland 24, no. 2 (2016), https://www.historyireland.com/volume-24/the-irish-in-the-anglo-caribbean-servants-or-slaves/.

86 The 1662 law which stated “bond or free according to the mother” applied to the children of indentured servants and convicts as well as slaves. These children were sold into servitude, and if mixed race could become enslaved. Hening, Statutes at Large, 3:143/140; Hening, Statutes at Large, 2:177/170. Jeppesen, ‘To Serve Longer According to Law’; Jennie Jeppesen, ‘White Slaves’ Myth and the Contested Narrative of American Slavery’, Melbourne Historical Journal 45 (2017): 5–17; Jeppesen, ‘In the Shadows’; Jeppesen, Sentenced to Servitude, 1,2,5,9 10,11.

87 For more detail on this point see: Jennie Jeppesen, ‘From Whips to Wages: From Coercive to Incentive Driven Labour’, in Frontiers of Labor: Comparative Histories of the United States and Australia, ed. Greg Patmore and Shelton Stromquist (Illinois University Press, 2018).

88 “convict and negro “testimony cannot be depended upon” William Waller Hening, 5 Statutes at Large; Being a Collection of All the Laws of Virginia, From the First Session of the Legislature in the Year 1619, Harvard Library (Franklin Press, 1819), 5:537/546; Rankin, Criminal Trial Proceedings in the General Court of Colonial Virginia. Gooch to Board of Trade May 10 1750, Gooch, ‘Official Correspondence of William Gooch’. Maryland passed a law banning testimony in 1751 Basil Sollers, ‘Transported Convict Laborers in Maryland during the Colonial Period.’, Maryland Historical Magazine 2, no. 1 (1907): 33.

89 William Waller Hening, 8 Statutes at Large; Being a Collection of All the Laws of Virginia, From the First Session of the Legislature in the Year 1619, Lenox Library New York (JG Cochran, 1821), 8:377. Hening, Statutes at Large, 5:539.

90 Edith Miriam Ziegler, Harlots, Hussies, and Poor Unfortunate Women: Crime, Transportation, and the Servitude of Female Convicts, 1718–1783, Atlantic Crossings (University of Alabama Press, 2014), 101.

91 Kathryn Preyer, ‘Penal Measures in the American Colonies: An Overview’, The American Journal of Legal History 26, no. 4 (1982): 326, https://doi.org/10.2307/844940.

92 Greenberg, ‘Crime, Lawn Enforcement, and Social Control in Colonial America’, 303.

93 Braithwaite, ‘Crime in a Convict Republic’, 19.

94 Bryson, “English Common Law in Virginia,” 252; Hall, “Common Law,” 794.

95 Pagan, Anne Orthwood’s Bastard, 59; Billings, ‘The Transfer of English Law’, 242.

96 Preyer, ‘Penal Measures in the American Colonies’, 326; Warren M. Billings, ‘Pleading, Procedure, and Practice: The Meaning of Due Process of Law in Seventeenth-Century Virginia’, The Journal of Southern History 47, no. 4 (1981): 569–84, https://doi.org/10.2307/2207403.

97 Kercher, ‘Resistance to Law under Autocracy’, 789. Ibid.

98 Kercher, ‘Commerce and the Development of Contract Law’, 269. “Should not underestimate the importance of legal ignorance” Kercher, ‘Resistance to Law under Autocracy’, 780, 795.

99 Kercher, ‘Commerce and the Development of Contract Law’, 272.

100 Atkins to King December 15 1800 and Atkins to Balmain December 17 1800 as quoted in: Roe, ‘Colonial Society in Embryo’, 149.

101 Alex C. Castles, An Australian Legal History (Law Book Co, 1982), 382.

102 William Stoebuck, ‘Reception of English Common Law in the American Colonies’.

103 Ian K. Steele, ‘The Anointed, the Appointed, and the Elected: Governance of the British Empire, 1689–1784’, in The Oxford History of the British Empire (Oxford University Press, 1998), 2:118.

104 A professional lawyer can be defined as: “men who possess and use a special body of ordered learning”, and often was taught under apprenticeship like other trades. Those who did not undertake a law apprenticeship would not have been “professional” lawyers. James Williard Hurst, ‘Lawyers in American Society 1750–1966’, Marquette Law Review 50, no. 4 (1967): 601–2. After 1730, to prevent those without training to style themselves lawyers, all potential layers had to submit to an examination by a Judge, and then serve five year clerkship with a lawyer already registered. See: Penelope J. Corfield, Power and the Professions in Britain 1700–1850 (Routledge, 2012), 76.; Kercher, ‘Commerce and the Development of Contract Law’, 277; Kercher, ‘Resistance to Law under Autocracy’, 788.

105 Konig, ‘Dale’s Laws and the Non-Common Law Origins of Criminal Justice in Virginia’, 367, 370.

106 Else-Mitchell, The Foundation of NSW and the Inheritance of the Common Law., 14.

107 Eltis et al., The Cambridge World History of Slavery, 138.

108 Interestingly Bullocks, the plaintiff, was convicted in 1807 and the bill for which he was suing for payment of was drawn up in 1809, which is before his sentence was even commuted. So if attainted, he should never have been able to receive the bill in the first place.