Right in the Middle?

By Joe Craig, Park Ranger

When Britain faced up to the reality that the thirteen North American colonies were, in fact, the free and independent United States of America in 1783, it made for a few changes in Britain’s modus operandi. No more patrolling the coast for smugglers! No more providing troops to protect people who didn’t appreciate it!  No, indeed, the United States had moved out of Britain’s protection, so it’s not hard to imagine the King and his ministers thinking “when Spain or France decides to take over, don’t come crying to me!”

So, in some ways, it would be a bit of a money saver for the British.  However, one big change for Britain was they no longer had a convenient place to rid themselves of some of their criminal class.

Beginning in the 17th Century, Britain had used its various colonies as a place to send malefactors. These felons otherwise might have been executed or at least confined to a nasty prison, so transportation for a set number of years (occasionally for life) certainly seems more humane than the aforementioned alternatives.

Actually, the real reason for employing transportation of criminals was not humanitarian.  It was simply to “get these creeps out of my neighborhood”.  With several thousand miles of ocean between them and Britain, it was a good chance it could work.  And who knows?  During the time of transportation, perhaps the malefactor might somehow rise up from his low station and become a productive member of society.  (The Gentle Reader is therefore warned not to shake too hard upon their family tree: you might discover what Great-great-great Uncle John’s “free trip to Williamsburg, Virginia” really meant.)

Those who were being transported saw things a bit differently, as might be expected.  True, they were spared the attentions of a hangman or gaoler, but confinement before and during transportation meant appalling conditions and the journey had the additional possibility of drowning at no extra cost.  If one made it to the far shore, it was a life of drudgery and near slavery for the felons, as they were sold into an indenture.  (Granted, they did have many advantages over enslaved African people, but it was no bowl of cherries, either.)

Transportation meant a hard life in an alien setting away from family and friends, sometimes in a deadly climate.  As it was at a time where literacy was not universal, nor were there fully reliable ways of communicating except face to face, parting from family, friends, acquaintances and accomplices might be very permanent.  A natural impulse for these worthies would be to get themselves back to England, which, for the record, regarded their presence as desirable as a streptococcal infection.

Returning from transportation before a sentence had elapsed was therefore a capital crime.  Not that such a threat entirely cowed some, and convicted felons strove to get themselves back home for a variety of reasons be it the simple desire to live among their own, or to continue on their criminal careers.

One quite remarkable reason why some transported individuals risked returning to Britain was a by-product of the War for American Independence: Loyalty to the King.  Such a sentiment probably was not as widespread as the desire to be reunited with friends or to transgress on familiar grounds, but several cases occurred and were heard at the Old Bailey in London.

These cases did present some problem for the justices.  On one hand the individuals were professing great Loyalty for the King and his laws.  However, The Law had said they had to leave for a set amount of time, with the emphatic penalty of death for returning before that time was up.  One also needed to wonder if the professed loyalty was sincere.

One William Wheeler was tried for returning from transportation on 6 December 1775, early in the American Rebellion.  He had been prosecuted for robbery in 1773, and shipped off to the colonies in October 1775.  He explained his early return:

“I was in America last February; they insisted at Virginia upon my taking up arms against the Regulars at Boston; I told them I would not fight against my king and country; they said what was the reason I would not, as they [the British] had dealt so hard with me, as to send me to that part of the country as a slave? I said I did not think I was hard done by; they insisted upon it I should fight, and provided me arms, and put on me a coat with Death or Liberty upon one side of it: as we were on a march I made my escape from them to a place called Norfolk, in Virginia; when I had settled there they insisted upon it I should fight: I made my escape from thence to a sea port town and took shipping and came to London: I had leave to come on shore, and as I was going to return from Darkhouse-lane I was taken.”

Wheeler’s tale sounds rather straightforward.  He is twice forced into service against the King, and deserts from rebel service as many times.  Wheeler professes that his banishment to Virginia wasn’t so bad, essentially exonerating the British law system and proclaiming himself a dutiful subject of the King.

His demonstration of loyalty was useless: Wheeler was declared guilty of returning from transportation on 6 December 1775 and duly hanged.

William Herbert was tried for returning from transportation in February, 1780.  He’d originally been tried and convicted (1775) for“wilfully and maliciously firing a loaded pistol at Walter Butler, one of the patroles of the parish of St. Andrew above the Bars”.  Herbert“received his Majesty’s mercy on condition of transportation for fourteen years” and doing the math, it appears that he arrived back in Britain a mere nine years ahead of schedule.

Herbert’s defense seems persuasive:

“I am the person who was convicted for shooting at that man, almost five years ago. I received his majesty’s clemency for fourteen years transportation. I had not been in the country long before they compelled me to take up arms against my king and country. I took the first opportunity of deserting from their service and going over to the king’s troops; I surrendered myself to [General] Lord Cornwallis, and took the benefit of the proclamation which offered a free pardon, and leave to return to their own country, to all persons who would come over to the king’s troops. I was innocent of the crime for which I was tried. George Hartley, who was convicted about two years ago, declared and took his sacrament upon it, that he was the man who shot at [Butler].”

In addition to his oral testimony, Herbert also showed some documentation of his actions as a Loyal Briton surrounded by rebels:

“The prisoner produced a certificate under the hand of General Pigot of his having deserted from the American forces and taken the benefit of the proclamation.”

Despite Lord Cornwallis’ promises and General Pigot’s documentation, Herbert was convicted of returning from transportation and sentenced to death on 23 February 1780.

By contrast was the case of Thomas Cox, tried and convicted in Salisbury in 1773 for forgery, and returned to England in 1777.  Cox admitted to the judge: “I acknowledge I was in America; I was convicted for this affair [his forgery conviction]; I have a witness to prove the reason of my returning, his name is [Joseph] Thompson.”

Thompson’s testimony is rather interesting.  He stated: “I knew the prisoner in America at Baltimore: one Captain Grice, captain of a company of the Provincials, entreated and almost insisted on his going into the company.”

Unlike Wheeler, coerced into joining the Rebel forces, Cox is “entreated” to enlist.  Picking up on that concept, the judge particularly asked Thompson: “Did he [Captain Grice] force [Cox] into it?”

Thompson noted: “[Cox] was not forced into it, but he could get no employment or livelihood on account of it; I came away on the same account myself; I sailed the same day he failed; they threaten there if they will not enter into the companies to tar and feather them….”

There is an implied threat to those who will not serve, but as Thompson notes, Cox was not forced into serving against the King.  Cox was found not guilty on 14 May 1777.  In 1778, William Harding was tried for the same offense as Wheeler, Cox and Herbert. Harding’s original offense was highway robbery in 1773, and after conviction “received his majesty’s pardon, on condition of transportation for seven years.”

Harding’s defense might be a basis for a movie:

“I came over to England in consequence of General Howe ‘s proclamation; when I first went over [to the American colonies] I was sold to one Mr. Davis, who was made a rebel captain; he took me out about this time twelve month to Philadelphia in the rebel service; he forced me to go along with him, I was there four days; we heard the English troops were landed at a place called the head of Hell [Head of Elk, present-day Elkton, MD]; I then deserted because I would not fight against my King and Country; I was taken again by the rebel light horse; I was then put under guard for deserting from them; I went back to Philadelphia till the battle was fought at Brandawine[sic]; I kept there about a month after the battle was fought; I was ordered to be shot there; but General Washington sent down to twelve of us, that if we would all take the oath of allegiance and serve the Americans, we should all be acquitted; I thought I had better do that than die; I did take the oath, after that another battle was fought. I was at that battle, but I could not make my escape; I would not fight against my King and Country; we retreated back to a place called Kensington, I staid there a month; I heard from a deserter that General Howe gave a proclamation that all that came to him should have a free pardon; upon which I and six more deserted to him to Philadelphia, there we took the oaths of allegiance, and I came home by the proclamation along with one Captain Malne . I sent to him; he sent a note that he could not come to day, but he would come to morrow morning; he was going out in a day or two’s time about some business; I deserted from the Americans once; they took me again; I was cast for death for it, and was to have been shot for it.”

Fortunately for Harding the justices found him not guilty on 15 July 1778, perhaps moved by his many tribulations caused by his professed loyalty to the British Crown.

Harding and Cox were much more fortunate than Wheeler and Herbert.  All four narratives not only bring home the choices that everyday people had to make during the war for Independence.  They also show how many individuals, often powerless amid great events, were truly stuck between a rock and a hard place.

[Note:  the trials of Harding, Cox, Wheeler and Herbert can be found at oldbaileyonline.org, a spectacular website that show the mean streets of London from the late 1600’s to the 1900’s]
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