Page:History of New South Wales from the records, Volume 1.djvu/567

 OF TRANSPOBTATION. 443 But this method of punishing political offenders was checked by Magna Charta, which declared that no freeman should be outlawed Magna or exiled but by lawful judgment of his peers, or by the law of the land* Some of the most conspicuous instances of banishment by Act Attainder. of Parliament in modem times are — The Earl of Clarendon— 19 Car. II, c. 10 (1679). Sir Thomas Sandys— 22 & 23 Car. II, c. 1 (1682). Francis, Lord Bishop of Rochester— 9 Geo. I, c. 17 (1723). The first Act of Parli;iment by which banishment from the realm was recognised as a method of punishing offenders was passed in 1597,t for the purpose of dealing with the "rogues, Vtgranta. vagabonds, and sturdy beggars" who formed one of the great social troubles of the Tudor times. It enacted that " dangerous rogues, and such as will not be reformed of their roguish course of life, may lawfully, by the Justices in their Quarter Sessions, be banished out of the realm and all other the dominions thereof, into such parts beyond the seas as shall be for that purpose assigned Transport- by the Privy Council ; or otherwise be adjudged perpetually to the the gaUey. gallies of this realm." By the same statute every rogue so banished and returning witliout license was made guilty of felony, but within the benefit of clergy, t And for the better indemnifying the nation against such rogues so returning, it was also enacted that prior to their banishment they should be " thoroughly burned upon the left shoulder with a hot burning-iron of the breadth of BrandiDg. an English shilling, with a great Roman R upon the iron, for a perpetual mark upon such rogue duiing his or her life." But although this statute of Eli2abeth was the first by which banishment from the realm — afterwards known as transportation teenth century. It was applied in ordinary cases as well as in political disturbances, and probably owed its origin to the difficulty of providing accommodation in the tolbooths. Banishment &om the Sovereign's " hail dominions fuith of Scotland," or from one district of Scotland to another, was a common sentence. . . The ordinary place of exile during the eighteenth century was " His Majesty's plantations in America." — ^Rogers, Social Life in Scotland, vol. i, p. 37. t 39 Eliz., c. 4. X By an ancient custom of the realm, men in holy orders when accused of any felony might claim the right of trial by compurgation before their fellow priests. If the claim was allowed, the accused was handed over to the Ordinary ; in other words, to the safe keeping of the Bishop of the diocese. Trial by compurgation meant nothing more than a solemn declaration of innocence, by the accused on oath taken in the presence of other priests ; Digitized by Google
 * Banishment as a judicial sentence prevailed in Scotland from the seven-