From In For The Long Haul: First Fleet Voyage & Colonial Australia: The Convicts' Perspective, by Annegret Hall (ESH Publication, 2018), Kindle pp. 17-19:
By mid-century the fear that increasing crime rates would lead to widespread social disruption spawned new penalties intended to discourage property theft. The legal imperatives for these were bolstered by a growing concern about the civil insurrection in France, especially after the French Revolution took place in 1789. The British Parliament passed bills reclassifying many petty crimes as capital offences (to which the death sentence applies). Capital crimes now included burglary, highway-robbery, house-breaking in daytime, private stealing or picking pockets above 1 shilling, shoplifting above 5 shillings, stealing above 40 shillings, maiming or stealing a cow, horse or sheep, or breaking into a house or church. The official punishment for these offences was now the same as for murder and treason – death by hanging.
Quite unfairly the new laws came into effect rapidly and were little understood by the poor, of whom 90% were illiterate. Consequently, the severity of the changes went largely unappreciated by the working class, which Thomas Paine – author of The Rights of Man – claimed was intentional to disadvantage the poor. Other enlightened members of English society, including the judiciary, strongly opposed the imposition of the new capital sentences for minor offences and this became a cause célèbre for many social reformers; the same people advocating for the abolition of the slave trade in the 1770s.
Mercifully, there were several ad hoc legal options available to those members of the judiciary who were inclined to avoid the imposition of a capital sentence. The legal loopholes were not recognised officially, but they were commonly applied, nonetheless. In particular, juries could be encouraged to apply pious perjury in assessing the severity of an offence when a prisoner was charged with a minor property or financial crime. Such actions permitted judges to assign imprisonment by transportation rather than the death sentence. For example, a court clerk could routinely understate the value of stolen property on the charge sheet in order that it was below the capital offence threshold.
In fact, the widespread application of judicial leniency in the late 1700s meant that transportation beyond the seas became the de facto sentence imposed by courts for minor crimes. Relaxation of the capital sentencing laws was tolerated because a sentence of transportation satisfied the political imperative of removing petty lawbreakers from decent society. Ironically, the lenient judicial practices posed a new problem for the prison system in England; where were all these transported prisoners to go? After 1775, the American Colonies no longer accepted transportees and there was no other offshore prison to send them to.
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