Page:History of New South Wales from the records, Volume 1.djvu/568

 444 LEGAL HISTORY the realm. The first orders for tmnsport- atioD, to the colonies. The first Act —was formally recognised as an appropriate punishment for offenders against the laws, the origin of the system must be sought for in much earlier times than the sixteenth century. It will be found, in fact, in the ancient custom by which men who fled from justice or retribution to the sanctuary were aUowed to abjure the realm — in other words, to transport themselves to any part of the outside world they pleased. They were required to make oath before the coroner, in the church to which they had fled, that they would quit the realm on a given day ; a cross was thereupon given to them to ensure their protection on their journey to the coast ; but if they failed to present themselves at the place and on the day appointed for their embarkation, they forfeited the privileges they had obtained. The privilege of sanctuary was taken away by an Act passed in the reign of James I, and abjuration of the realm consequently ceased. The first recorded public documents authorising the transporta- tion of convicts, and specially designating their destination, are three Orders in Council, dated January, 1614, July, 1615, and March 20, 1617, respectively. These orders directed certain criminals to be delivered to the Governor of the East India Company, to be transported to the East Indies. The first recorded instance of transportation to a colony appears in a letter addressed by James the First in 1619 to the Treasurer and the Council of the Colony of Virginia, directing them to " send a hundred dissolute persons to Virginia, whom the Knight Marshal should deliver to them for that purpose." The word " transport " appeared for the firat time in an Act of Parliament passed in 1666, for " preventing of theft and rapine upon the northern borders of England."* The moss-troopers of that time gave as much trouble to the Lords of the Marches as and if they made oath— as they usually did— that they believed him innocent, he became at once a free man. Anyone who could read was entitled to claim benefit of clergy, cleiHci or ** clerks," being in early times the only men who had learned to read. Laymen in later times acquired the art in order that they might be qualified to claim this privilege, and consequently it became commou to all educated persons. It was not entirely abolished until the time of (xeorge IV. The reason why it was so long retained in the ad- ministration of the criminal law was, apparently, because it was practicalW a means of showing mercy to offenders convicted for the first time. To prevent their claimmg the privilege twice, the practice of burning in the nand was introduced ; the criminal being thereby made to carry the register of his conviction in his hand. '* 18 Car. I, c. 3 (1643). Digitized by Google