Posted by Krista Kesselring; 10 January 2017

The State Papers contain a remarkable rough draft of an Act intended to condemn petty offenders to slavery. Prepared at the opening of the 1621 parliament by an unknown author, the proposal had the following title: ‘An Act for keeping in servile works such persons as shall be convicted of petit larceny and felony capable of the benefit of clergy, and such as shall be convicted for cheaters or incorrigible rogues.’ It echoed in some ways the infamous but short-lived 1547 Act to enslave the persistently unemployed, though this one – somewhat surprisingly, perhaps, given its talk of slavery – presented itself as a measure not just of heightened rigour but also of mercy.[1]

The text is given below. The measure did not pass – nothing passed into law from the 1621 parliament, save for a few new taxes – and the proposal was probably not discussed in parliament in quite the form advanced in this rough draft. The proposal is of interest, though, for a few reasons, not least for what it suggests of early seventeenth-century thinking about both penal experimentation and the ways in which slavery might be justified.

The 1621 parliament convened in the context of the continental war, concerns about ‘popish insolencies’ at home and abroad, and King James VI/I’s need for taxes. It’s best known to political historians for the debates on monopolies, the trial of Lord Chancellor Francis Bacon for corruption, and the disputes over parliamentary privilege, both individual and institutional. Those disputes over privilege culminated in a Protestation from the Commons to the king that affirmed their ‘ancient and undoubted’ freedom of speech. After the king tore the Protestation from the Commons’ record and had its chief authors and proponents arrested (including former chief justice Sir Edward Coke), he retrospectively decreed the gathering to have been merely a convention and no parliament.[2] As such, none of the bills discussed in this parliament, save for the tax bills, became law.

Unaware that their work would come to naught, members of the 1621 parliament had turned their attentions to some ‘law and order’ bills. They discussed the abolition of trial by battle – by then largely but not entirely defunct (and only finally abolished in the 19^th century). They debated a measure that ostensibly sought to repress ‘the odious and loathsome sin of drunkenness’ while also restraining the ‘excessive prices of beer and ale.’[3] They discussed the many problems with informers and a bill to reform the practice by which felons forfeited all their assets, proposing to make those estates liable for debts. A bill to allow women to claim benefit of clergy for minor offences (and thus to evade a death sentence) came before them, though it wouldn’t pass until the 1624 parliament. MPs spent a good deal of time investigating abuses at the Fleet Prison, with the Speaker of the House charging the Warden with running something ‘worse than the Inquisition of Spain, or galleys among the Turks.’[4] Concerns about illegitimate bondage also shaped discussions of how to protect subjects from wrongful imprisonment.

Members of the Commons also discussed the problems of poverty, or at least the problems the poor posed for the better off. While they rejected a measure to reduce the ‘great charge’ needed for relief of the poor, Sir Edwin Sandys did suggest sending ‘a great number of our poor people into Virginia.’[5] They also debated a measure to allow ‘rogues’ to be more easily and speedily sent to Houses of Correction upon the order of just one justice rather than two. (The bill hearkening to Magna Carta to protect subjects from wrongful imprisonment was apparently not thought to run counter to the proposal to deal with the unruly, idle poor.)

But was the proposal to sentence petty offenders to a life of slavery brought before parliament? It seems not. The Commons Journal reports that on 5 May the House did have the first reading of a measure ‘concerning petit larceny and the manner of punishment of offenders therein’ – a title close enough to that of the proposal to make one wonder.[6] The only draft surviving in the Parliamentary Archives for a bill with such a title mandated whipping and corporal punishment, though, not slavery.[7]

The 1621 proposal to enslave petty offenders likely did not receive a parliamentary hearing, then. But it was put to paper; it does reflect someone’s thinking at the time.

The proposal is of interest in coming when it did, contemporaneously with the English entry into the Atlantic slave trade, the increasing use of coerced labour in colonial endeavours, and the incipient development and racialization of a system of hereditary, chattel slavery.[8] Infamously, the English came in time to dominate the slave trade and to extract significant wealth from the labour of millions of enslaved Africans. This document, however, hearkens back to an older understanding of slavery, one that familiarized the English with the institution and that arguably helped lay a foundation for what was to follow.

In proposing the denial of freedom and coercion of labour as something ‘profitable to the state’, it’s evocative of sixteenth-century humanists’ earlier suggestions that slavery might aid the commonwealth in correcting idleness (e.g., in More’s Utopia). As Michael Guasco has noted, the English in these years managed to combine a national pride in their ostensible rejection of the slavery so common elsewhere with a belief, shaped by the Bible and by classical sources, that bondage might be incurred as a punishment and to reform the sinful.[9] They did, moreover, have a recent history of sentencing offenders to the galleys and to military service. In the colonies, too, Englishmen were using the highly charged language of slavery for the bondage they imposed upon some offenders. Some of the English were still squeamish about slavery justified on purely commercial grounds, but had an intellectual tradition that allowed a place for bondage when justified as punitive and redemptive.^[10] Given this history and context, perhaps the more interesting thing about the proposal to enslave petty criminals is that it secured no traction.

The proposal also speaks to the ‘penal pluralism’ that Joanna Innes and others have shown to pre-date what was long thought to be the ‘real’ age of penal innovation in the late 18^th and 19^th centuries.[11] While still enamoured with the exemplary qualities of executions, authorities in the early modern era sought options other than death alone to allow more offenders be punished. They turned to shaming and corporal punishments, imprisonment, and transportation, by fits and starts, to supplement the gallows. Indentured servitude came to be attached to transportation; but the writer of this proposal was suggesting a form of servitude focused on public works rather than private profit, to be used ‘at home’ not just abroad, and using the freighted language of slavery.[12] He did propose that a convict-slave might be freed after eight years for good behaviour; if necessary, though, the slavery could be for life. He also suggested enslavement as an improvement upon imprisonment, expressing concerns that time in gaol made offenders worse not better or at least left them with little chance of rejoining law-abiding society.

Finally, too, the proposal speaks to official fears about vagrancy and the activities of the indigent poor, and does so in a rather striking way. It manages to suggest a certain sympathy for petty offenders, and ‘poor women’, but then turns that sympathy to a call for enslavement.

The linking of criminal punishment and enslavement in this proposal is interesting given its time and place, as is seeing it in the context of the other measures that were debated in this particular parliament, but of course the linking of these two concepts lived on: one thinks perhaps of the 13^th amendment to the U.S. Constitution, the one that abolished slavery and involuntary servitude – ‘except as a punishment for crime.’

An Act for keeping in servile works such persons as shall be convicted of petit larceny and felony capable of the benefit of clergy, and such as shall be convicted for cheaters or incorrigible rogues. [The National Archives, SP 14/119, fols. 132, 131.[13]]

[fol. 132] Because experience shows that many wicked and ungodly persons are more deterred from offending through fear of hard and continual labor than by the terror of death, and that long imprisonment in common gaols renders such offenders the more obdurate and desperate when they are delivered out of the gaols, they being then poor, miserable, and friendless, are in a manner exposed  to the like mischiefs, they not having means of their own, nor place of habitation, nor likely to gain so much credit from any honest householder as to entertain them until by length of time they have given some assurances of their change of life; for avoiding therefore of so many inconveniences, and for reducing of these wicked and ungodly persons to an honest course of life, and to make them in some measure profitable to the state, who are now a shame and burthen to the common wealth:

Be it therefore enacted by the king’s most excellent majesty, the lords spiritual and temporal and commons in that present parliament assembled and by the authority of the same, that when and as often as any person or persons at any time or times hereafter shall be lawfully convicted of any such kinds of felony [fol. 131] that being adjudged to die for small faults they may be saved and condemned as slaves during life and be used as in other countries unto any public works in the kingdom, giving power after eight years service to the master of those works if they become new men, and demean themselves well, to release them of their bondage and slavery into their former liberty and freedom, never after to be taxed or twitted in the teeth either with their bondage or with their crimes for which they were so punished. If any shall escape or run away and be received, countenanced or monied by any man, he who shall so do (if under threescore years old) to serve in his place, in the same work and manner as he did that is gone, until he bring him again. If the abettor or enticer away shall be above threescore years, he to pay a sum of money for so doing, or some other punishment. Some provision must be for them, for a year or two, in which time they may learn to [earn] their victuals and clothes. And if the wandering rogues and canters were also brought within this law, it would do well, and some allowance might be had of that allowed to the house of correction. Some care must be had for the poor women also. And if any shall attempt to run away or do any violent act against the master of the work, their captain or keeper or any other, then never to have their liberty but continue slaves all their life time, without relief or redemption.

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Featured image: Wenceslaus Hollar, Eight Beggars (after Callot). All images courtesy of the Thomas Fisher Rare Book Library, University of Toronto.

[1] For the 1547 Act, see C.S.L. Davies, ‘Slavery and Protector Somerset: The Vagrancy Act of 1547’, Economic History Review 19.3 (1966), pp. 533-49.

[2] Andrew Thrush, ‘The Parliament of 1621’, The History of Parliament: The House of Commons, 1604-1629, ed. Andrew Thrush and John P. Ferris, http://www.historyofparliamentonline.org/volume/1604-1629/survey/parliament-1621

[3] Commons Journal, I, pp. 531-2 (28 February 1621). Accessed at British History Online: http://www.british-history.ac.uk/commons-jrnl/vol1

[4] CJ, I, pp. 525-6 (17 February 1621).

[5] CJ, I, pp. 596-8 (30 April 1621).

[6] CJ, I, p. 609 (5 May 1621).

[7] Parliamentary Archives, HL/PO/JO/10/1/17A.

[8] For an especially useful study of these developments, and discussion of how developments in the colonies came to influence domestic concepts of law and punishment, see Susan Dwyer Amussen, Caribbean Exchanges: Slavery and the Transformation of English Society, 1640-1700 (Chapel Hill: UNCP, 2007).

[9] Michael Guasco, Slaves and Englishmen: Human Bondage in the Early Modern Atlantic World (Philadelphia: University of Pennsylvania Press, 2014).

[10] Ibid, pp. 38, 73, 160 and passim.

[11] See, e.g., Joanna Innes and John Styles, ‘The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England’, Journal of British Studies 25 (1986), 380-435 and J.M. Beattie, Crime and the Courts in England, 1660-1800 (Oxford, 1986).

[12] On the ways in which the slipperiness of the word ‘slavery’ has contributed to the false equivalence sometimes drawn between the Atlantic system of race-based chattel slavery and various other forms of oppression and bondage, including indentured servitude, see Liam Hogan’s efforts to debunk the ‘Irish slave’ myth, e.g., https://www.opendemocracy.net/beyondslavery/liam-hogan/%E2%80%98irish-slaves%E2%80%99-convenient-myth  For an extended, classic treatment of the links between indentured servitude and enslaved labour as they developed in one English colony, see Hilary Beckles, White Servitude and Black Slavery in Barbados, 1627-1715 (University of Tennessee Press, 1989).

[13] The draft itself has many cross-outs and interpolations; these are silently ignored here, and the spelling is modernized. I’ve reversed the order of the two pages as filed, too. The text is also included in Commons Debates, 1621, ed. Wallace Notestein, Frances Helen Relf, and Hartley Simpson. 7 vols. (New Haven: Yale University Press, 1935), vol. 7, pp. 54-5.