Indentured Servants, Not Convicts

Sir: Soon Australia will celebrate the bicentenary of the founding of an English colony in N.S.W. by people of the First Fleet of whom more than 700 were convicts but whose warrants of custody had been left in England.

Warrants of custody issued in Britain have never been valid outside Britain, according to the Oxford Companion to Law. It also states that by habeas corpus people must not be held prisoner except when the custodian holds and can produce a lawful warrant in writing.

By habeas corpus not even a criminal shall be sent prisoner to places beyond the seas. The first English textbook on law, Coke's Institutes 1641, states that "no subject of this realm that is a resident of the Kingdom of England shall be sent prisoner into ports, garrisons, islands or places beyond the seas, and that every such imprisonment is hereby enacted and adjudged to be illegal".

This prerogative writ does not prohibit people being sent, carried, conveyed or transported, but does prohibit them being sent prisoner. The great English lawyer Jeremy Bentham, and Sir Francis Forbes who drafted the Transportation Act 1823 and served as the first Chief justice of N.SW- both stated that the convicts were sent as indentured servants.

It appears that the laws prohibited what was done in the name of the law in the colony, and there is a probability that no part of Australia was, at law, an English prison colony.

22nd May, 1984

Bert Rice,

Neal Street, Bayswater, Vic.

(I would imagine that this applied to Norfolk Island as well)