Let us now see who had the power to sentence and fix the place of exile. The Statute of 39 Elizabeth c. iv, 1597-8, to which your correspondent refers as being ample enough to cover "the plan of colonizing by banishment of convicts," authorizes this penalty for "dangerous rogues," who "shall and may lawfully be banished out of this Realme and all other the Domynions thereof." This was to be done "by the Justices of the Peace" at the "Quarter Sessions." Not a word is said about the Chief Justice. The place to which they were to be sent was to be decided "by the Privie Council;" and thus, certainly, not by Popham alone. So that, if there were shame in the transaction, the most honored men of the nation were equally involved in the disgrace. It is unfair and ungenerous to single him out to meet a purpose, as the sole object of obloquy and rebuke.
And now, as to the return of these persons to England. Your correspondent, assuming that a part of them were convicts, truly says, in agreement with his assumption, that they would not be "over-anxious to revisit their native land. They had saved their necks once by emigrating, and were not in haste to put them again into the halter." And so he invents the story about a second pinnace, with which they could "lead generally a wild and free life, such as was congenial to their character and dispositions." This is a precious statement; but it happens to be directly opposite to the citation fearlessly made from Sir William Alexander, which declares that "Those that went thither, – as endangered by the laws, – dreaming of new hopes of home, returned thither with the first occasion." None were left behind. If they had been convicts, they would have pursued some such plan as is intimated by your correspondent, and not have gone back to the hazard of certain death. For the statute last quoted enacts, "if any such Rogues, so banished as aforesaid, shall returne againe into any part of this Realme or Dominion of Wales without lawful Lycence or Warrant so to do, that in every such case such offence shall be Fellony, and the Party offending therein shall suffer Death as in case of Fellony." This was but poor encouragement for convicts to seek their native shores. The winter had been hard. But Captain Davies, who had borne news of the "success" of the enterprise to England, had come back to Sagadahoc in the spring, "with a shipp laden full of vitualls" and other useful things, so that starvation had no horrors; and the summer was at hand. Sir William testifies that they had "new hopes" inviting them to go home. But, if they were condemned criminals, what "new hopes" could have been cherished by men who had nothing to expect but certain detection, by the letter R "branded in the left shoulder," for identification, as soon as they stepped on their native shores; and penal death as its sequel? These "hopes" must have been "new" indeed, if they rested only on a halter, a hangman, and a gallows! Here your correspondent and one of his chief witnesses entirely disagree. The former says, they "were not over-anxious to revisit their native land," fearing the halter. The witness says, that "they returned back with the first occasion" – hasting, and hopeful of a better condition than the one they had left. The one says, that, as liberated jail-birds, they led a roving life here, fearing death at home. The other, in effect, says they had a happy voyage to England, with bright anticipations of a more prosperous life!
We may now look at the kind of men who were to go as settlers to the early colonies on our coast. The Charter of James, April 10, 1606, under which this colony was formed, gives the information. It proves that the specially enumerated patentees, "they and every one of them, shall and may, at all and every time and times hereafter, have, take, and lead in the said voyage, and for and towards the said Plantations, and Colonies, and to travel thitherward, and to abide and inhabit there, in every the said Colonies and Plantations, such and so many of our subjects as shall willingly accompany them or any of them, in the said voyages and Plantations."
The reader will note the sole condition annexed, as to the persons selected to go: "such and so many of our subjects, as shall willingly accompany" any or all of the patentees. Can any language be plainer? Force by the sentence of the civil law is not here thought of. The "willingness" of the "honest," hard pressed yeomanry, seeking to better their livelihood, is here provided for. The "willing" ones are allowed to go, except such as, by the royal power might "be specially restrained." So that the real rogues, however "willing" to go, might thus be forbidden, lest they should contaminate the honest men, described by Gorges, who, "not liking to be hired out as servants to foreign states, thought it better became them to put in practice the reviving resolution of those free spirits, that rather chose to spend themselves in seeking a new world, than servilely to be hired out but as slaughterers in the quarrels of strangers." The same provision existed in the patents to Gilbert and Raleigh. Yet no one has supposed that these leaders took convicts.
Yet this is not all. The same Charter of 1606 expressly provides: "that all and every the Persons being our subjects, which shall dwell and inhabit within every or any of the said several Colonies or Plantations, and every of their Children, which shall happen to be born within any of the Limits and Precincts of the said several Colonies and Plantations, shall have and enjoy all Liberties, Franchises and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions." Now, if the Popham Colony was composed of convicts, how enviable their condition! The sentence of the law did not touch them, except in words! They still had all the "Liberties" of the most innocent Englishman on his native soil! They were "subjects," – "loving subjects," as the same class of "willing" emigrants were called in the Charter of 1609. What "convicts" ever had such "Franchises and Immunities" since the world began? Their state was nothing less than perfect freedom! They were, therefore, no convicts at all; and so could return home safely, and with "new hopes," just as soon as they deemed the change desirable.
In double confirmation of this fact, we may go to the Charter of 18 James, Nov. 3, 1620, which speaks of the efforts made in divers years past, in the Northern Colony, by former grantees, who had "taken actual possession of the Continent," and had "settled already some of our People in Places agreeable to their Desires in those parts." This, certainly, is very far from sustaining the opinion, that the occupants of Sagadahoc were convicts. For they were settled in a place "agreeable to their Desires," until calamities darkened all their prospects. It is worth noting here, that Lord Campbell says nothing about Popham in connection with convicts and the colony. This omission is significant.
A question is proposed, with an air of confidence, as if its answer must demolish the positions of my former article. It is this: "Will 'Sabino' please point out the 'law' under which James sent off a hundred convicts in 1619, that did not exist in 1606?" The demand is adroitly made, but not pertinently. To make it touch the point, it should have been 1607. My reply is readily given.
The statute for the punishment of rogues by banishment, already noted, (39 Eliz. ch. iv.,) expired by its own limitation, in 1601; when it was renewed, to continue till the end of the first session of the next Parliament, which was held in 1603-4. It was then re-enacted, (1 James, ch. iv. and xxv.,) when the additional provision was made, that persons condemned under its sanctions should be branded on the left shoulder with "a greate Romane R," for their detection in case of their unlicensed return, so as to secure the death of the offender, "as in case of Felonie." This statute was to continue "until the end of the first session of the next Parliament" (ch. xxv.). I have no means at hand of knowing the precise date when this session closed; but the Parliament itself ended on May 27, 1606, and the statute was not revived. The temper of the king and that body was shown in the statute (3 James ch. xxvii.) entitled, "An acte for the King's most gracious generall and free Pardon." The next Parliament began Nov. 18, 1606, and ended July 4, 1607. Such was the forbearance of the supreme legislature in relation to the transportation of condemned criminals, that the session passed away, and the law, that had expired by its own limitation, was allowed to remain in this state of its natural death. Transportation seems not to have been in favor.
Therefore, from "the end of the firste session" of the Parliament whose final session was terminated May 27, 1606, till after the Popham Colony sailed, May 31, 1607, there was no statute of transportation in existence.
A re-enactment of the law, or rather a law for punishing rogues by the workhouse, and not by transportation, was not made until the Parliament beginning Feb. 9, 1609. This was four days more than a year after George Popham's death, and a year and a half after the death of the Chief Justice. So that here was at least an interval of more than two years and three-fourths, when there was no law for the exile of convicts from the royal dominions. In this space of time, the Popham Colony had its beginning, its continuance and its end, – beginning more than a year after the law had died; continuing through the larger part of the year; and ending nearly another year before it was revived, in a very different form, and with a milder penalty. During this period, no law appears in the "Statutes of the Realm" for the transportation of convicts; and it is perfectly incredible that any persons were so sentenced by the justices of the peace, and sent to Sagadahoc under any sanction of the highest judicial authority in the realm, with the specific designation of the place by the Privy Council.
The preamble of the statute of 1609 for "punishing rogues" makes known the inactivity of the magistrates in the enforcement of former provisions, and the desuetude into which this law had fallen. It declares that the earlier "Statutes had not been duly and severely putt in execution." Therefore the requisitions are made stronger, to bind the proper officers to their more stringent execution, in regard to "Houses of Correction." Transportation is not even hinted at. This previous easy state of affairs on this topic shows that the rigor of expulsion, ascribed to Popham, is a thought of later times.
It is also to be noted, that the Charter of 1606 is in strict harmony with the fact that the expired law had not been revived. Among the twenty-seven Acts of 3, 4 James, 1605-6, and the thirteen of 4, 5 James, 1606-7, no one appears on the pages to authorize the exportation of criminals. Those who went to either of the Virginias were to go "willingly," and enjoy their "liberties." If, in any other book of laws besides the "Statutes of the Realm," if there be such, or by any new and singular interpretation of any provision there can be found a rule requiring the transportation of convicts, it will not thence follow that any were sent to Sagadahoc. For the Charter will still say that only volunteers were to go, who should be free men as long as they remained in connection with the company.
I did not refer to Ogilby and Chalmers as original authorities, but as good investigators. The former has been long known. My favorable opinion of the latter is drawn from the Preface to his "Introduction to the History of the Revolt in the American Colonies." Your correspondent seems to undervalue him. But to sustain my estimate, I may quote the expressions of the American editor of the above-named volumes. "His works are deemed to possess much merit as the result of profound research and a discriminating judgment." – "His official station gave him access to all state papers." – "He took advantage of this opportunity, to investigate in its original sources the history of the colonies." – "His work (Political Annals) has ever been quoted with entire confidence and respect; and this circumstance speaks clearly in favor of the author's candor and honesty." When he speaks of no earlier transportation than 1619, I have been ready to give him credit. Your correspondent refers to him as writing, "that the policy of sending convicts to the plantations originated with King James, and that in the year 1619 he issued an order to send a hundred dissolute persons to Virginia." I am content with this statement. Bancroft thinks "some of them were convicts: but it must be remembered that the crimes of which they were convicted were chiefly political;" and political felons, as well as those whom in the same volume he calls "the Puritan felons that freighted the fleet of Winthrop," were "endangered by the law;" and yet not for this reason to be regarded as tainted in the least with moral guilt. His opinion, too, is that there was never sent to South Virginia – for he seems not to have heard of the accusations brought against the northern colony – any "considerable number" of persons convicted of "social crimes;" "certainly not enough to affect its character." This statement may be taken as a sufficient reply to the charge that Popham "stockt" the plantations out of "all the gaoles of England." Indeed, all that Bacon, nearly twenty years after his colony had ceased, and other far later writers have said, on the topic contained in the quotation from him, relates to the later affairs in the southern colony; and can be connected with Popham only as he was a prime mover in the enterprise of colonization, carried on after his death. It cannot be shown that they had Sagadahoc in mind. Weber, as "revised and corrected" by Professor Bowen, adheres to 1619.
Against a remark of mine, the communication states, that there was "no later occupancy of New England till the Pilgrims arrived in 1620." I said "the Popham Colony was followed by a succession of occupancies, that proved title." I say so still. I did not mean that all these occupancies were colonies. They were at Monhegan, by Sir Francis Popham and Captain John Smith; at Pemaquid, by the annual visits of the English from Virginia; at Mount Desert, by Argall; at Saco, by Vines; at Plymouth, by the Pilgrims and by numerous others, after that great and memorable event in our national history. They were made under the protection of the Charter of James in 1606; energetically promoted in the outset by Popham, "the first to procure men and means to possess New England;" and sustained for years at great expense by Sir Ferdinando Gorges. In this connection I wish to supply an omission noticed by your correspondent, where I said, that the colony "proved title as against the former and never-revived claims of France." "West of the Kennebec" was in my mind, but not written. I thank him for the correction, as it strengthens my position. It would have been better to have said, "the French never had any possession on the coast, west of the Kennebec."
As to the settlement of Gosnold, I have before shown that it was not a "chartered colony." It was deserted on the day when its small house was scarcely fitted for a permanent dwelling. It was "undertaken on private account;" asserted no general claim; proved no title; and was not renewed.
The powder and cannon stories appear to be singularly confused by Williamson. His misplaced footnote referring to the History of King Philip's War has misled us both. It is made as authority for the latter, when it should be for the former, and the tradition (I quote from memory) is from "an ancient mariner." As it is unsupported, it can hardly be claimed as history. As to the cannon story, one of our best antiquarians thinks that it has had no earlier mention than is found in Morse and Parish, about two centuries after its alleged occurrence, as derived from the Norridgewock Indians. Such a tradition is of very little account. If these stories had been true, it is marvellous that the "speechifying" Indians round about Arrowsic should not have told their prowess and their sufferings to the listening Jesuits in 1611. It may be well to know that a valued New Hampshire historian locates the narrative about the cannon at Dover, N. H., in the time of Waldron, when a large number of Indians were captured by stratagem. If the servants of the colony set dogs on the meddlesome Indians, the wise men in council in a later colony in New England, as Hazard gives it, decided to employ "mastiffe-dogs" to hunt down Indians in 1656. Why not blame both?
That portions of the population in Maine were corrupt, after settlements were dotted along the coast, is true. Deterioration often follows colonization. For all the influence for good that Massachusetts has spread, here and elsewhere, all ought to be glad, though here it was somewhat irregularly introduced. The celebrations at Sabino Head are not intended to detract from the merits of Plymouth Rock. They were many. It is no harm to wish that they had been more.
The letter of Mr. Kidder relative to the "pretty pynnace of about thirty tonne," is again referred to by your correspondent. What are we to understand by the few notices of her history? Simply this, that on "August 28," "the carpenters labored about the building of a small pinnace." Their first act was to prepare the timber from the surrounding forest, – not necessarily of "green pine," where the ridge bears oak, maple and spruce now, and perhaps did then, – and put it into shape for future use. It was left to season during the autumnal months. Then, after Captain Davies returned to England, with an account of the "forwardness of their plantation," on the 15th of December, the seasoned timber was "framed," and the craft completed, as the "Brief Relation" says, "notwithstanding the coldness of the season and the small help they had." For reasons satisfactory to the leaders of the colony, after Captain Davies returned to them, Strachey says "they all ymbarqued in the new arrived shipp and in the new pynnace, the Virginia, and sett saile for England." Gorges says they "all resolved to quit the place, and with one consent to [go] away." Sir William Alexander says, "Those that went thither … returned back with new hopes." The "Briefe Relation" says the news from home "made the whole company to resolve upon nothing but their return with their ships; … having built a pretty bark of their own, which served them to good purpose, as easing them in their returning;" and asserts "the arrival of these people here in England," – of course, the same "people" who embarked, and in the same "ships" in which they commenced the voyage. Any other interpretation will be a violent perversion of language. As to any persons of the colony remaining to be rovers on the coast in another supposed pinnace, it will be time enough to consider that conjecture, when proof shall be brought to change it into history. It will be "credulity" to answer such a "demand" on our faith, as long as it is unsupported by evidence; and we shall still believe that "The Virginia" was not, perhaps the first craft of the Northmen, French, Basques, Dutch, or Indians, of whom we were not thinking – but was the pioneer ship of the English people in the new world, and was a striking proof of the skill and enterprise of the laboring colonists, with Digby, the London shipwright, as their head in her construction.
But, whatever may be said of the enterprise or its details, whether favorable or unfavorable, the true and single point for grave consideration is the prominent fact, that a colony was founded at the mouth of the Kennebec under the charter of James, 1606, which Popham "certainly was a chief instrument in procuring," and that this was the first thus laid in New England under English sway.
No personalities, no imputation of sinister and never existing motives, no disparagement of the character of the prime movers and later advocates, – for Gorges has been blamed as well as Popham, – no reproaches thrown upon the laboring colonists, and no finger of derision pointed at the failure of their purpose, should turn the reader of history away from this path. The leading minds in England, with the King as their friend, were actuated by the desire to turn to good account the discoveries of the early navigators; the reports of fishermen returning from our coast, and the more systematic researches of Gosnold, who, Strachey says, came "for discovery;" and Weymouth, whose narrative, and Pring, whose exact description pointed out the Kennebec as the place for speedy occupation. Emphasis was given to the determination of the associates, by their bearing with them a charter and a constituent code of laws, carrying out the principles of the English Constitution. An expedition of that nature, and at that time, required relatively much more of thought, energy and means than one of ten times its numbers and power would do at the present day. The fact, that it came directly to the Kennebec, shows that its course and destination did not depend on any capricious views of its commander; but were in accordance with a previously matured plan "for the seizing such a place as they were directed unto by the council of the colony." Its approach near to the claimed territory of France implies a previous knowledge of the coast, and a purpose to take possession within the chartered limits, fully up the undisputed boundary line. This occupation, and those made in the few following years, were called in the patent of 18 James, Nov. 3, 1620, the "actual possession of the continent;" thus showing how exalted a value was placed on these incipient, though feeble measures, by the highest authority in the mother land. The commercial purposes of the undertaking at Sagadahoc were not all. A religious purpose was connected therewith, and carried on during its continuance. Its great purpose was to secure title within the territory granted to the company. Signal disasters attended the later part of its life; and, though it failed commercially, Gorges "had no reason greatly to despair of means." In its historic influence, and in its opening the way for immediate and successive efforts, it was, in the words of Maine's most worthy and distinguished living historian, "one of the steps in the grand march of civilization."
As such, and as the first chartered "step" on our rock-bound coast by "English hearts and hands," we have thought it proper to do it honor; and this too as persons united in no one single denomination of Christians. We have taken pleasure in aiding to bring before the appreciative mind of the community "this initial point in the history of the settlement of New England," and its bearing on subsequent settlements along our shores. We have thought that the Charter of 1606 gave life to this and other enterprises. It was in harmony with its design and privileges, that "the King's Majesty and the bishops consented" to the wishes of the people at Leyden to remove to this land; and so far gave them the aid of the Church, which Mather says was not possessed with the spirit of persecution against them, though some of its members indulged that folly. The several documents following this leading instrument of title and occupation, such as the enlarged charters, "The First Plymouth Patent," and the patents issued for the benefit of Maine and Massachusetts, are traceable to this source, and to the able men concerned in its origination and provisions. So that, in a pure and great historical fact and its sequences, we have had enough to warrant our past commemorations. It is no fault of ours, that other colonies came earlier and later, and did not build a sea-going vessel in this northern latitude in the first year of their stay. We rejoice where they were successful, permanent, and a blessing to the world. But why cannot we be allowed to celebrate an event, one of the greatest of its times, without being taunted with sayings, which, while bearing bitterness, need the support of evidence; and with words which, however amiably they may have been intended, boldly represent us as culprits, "indictable at common law"?