The Popham Colony

The opinion of Lord Campbell in his favor should not be neglected by an impartial seeker for truth. He is severe on most of the Chief Justices, not sparing even the good Sir Matthew Hale. His commendations are therefore the more valuable. In his "Life" of this Chief Justice, he describes the particular traits to his discredit, when, with other young men, he entered on his illegal acts on the highway; and then says, "We must remember that this calling was not then so discreditable as it became afterwards." He speaks of the change in his purposes; his diligence as a student; and, after some quotations, presented in this discussion, he says, "He held the office (of Chief Justice) fifteen years, and was supposed to conduct himself in it very creditably." "Many of his judgments in civil cases are preserved, showing that he well deserved the reputation which he enjoyed." "On the trial of actions between party and party, he is allowed to be strictly impartial, and to have expounded the law clearly and soundly." "I believe that no charge could justly be made against his purity as a judge."

And then, as to the reasons why censures were brought against him, this biographer says, "Yet, from the recollection of his early history, some suspicion always hung about him, and stories, probably quite groundless, were circulated to his disadvantage." "Of these we have a specimen" about "Littlecote Hall." It is "unfair to load the memory of a judge with the obloquy of so great a crime, upon such unsatisfactory testimony." A distinguished ruler – more exalted than Popham, whom Palfrey calls "that eminent person" – once wrote, "Remember not the sins of my youth."

If he was called "the hanging judge," it was because criminals were to be punished. Lloyd says, to his credit, that "the deserved death of some scores preserved the lives and livelihood of some thousands; travellers owing their safety to this judge's severity many years after his death." Aubrey says the same.

But, if all were true, as alleged to the disparagement of the Chief Justice, is there so necessary a connection between him and the colonists at Sabino as that they, except the ten men in office, must therefore have been "villains and convicts"? He certainly has on all sides the praise of having been the earliest and the most active promoter of colonization on our wild New England shores. In this relation he gained the distinct commendation of Hubbard, as "the first that ever procured men or means to possess New England," – "the main pillar" of the enterprise, with not the remotest allusion to any such acts in its accomplishment as are mentioned by your correspondent. His statement leads one to think, that he regarded these early movements as preparatory to the settlements in Massachusetts. He certainly has said nothing that can lead us to suppose he connected "convicts" with Popham's efforts.

There is a statement made, derived from Strachey's use of the word "prepared," in two instances, as though this preparation consisted chiefly in furnishing convicts for transportation to Sagadahoc. Where is the proof? There is not a word in the context to warrant any such application, and indeed no where else. One of the "prepared" expeditions was captured by a Spanish fleet, and the men held in a kind of piratical duress. The communication proceeds to say, in condemnation of the old historians and Popham, that "no word of sympathy was expressed by the old writers for the persons enslaved by the Spaniards; nor did Popham, so far as we know, make any attempts to rescue them from their hard fate." Alas! where is the proof of this sweeping assertion? Exactly opposite was the fact. His humane regard for the captives was forthwith put into action. It would have been well for the furtherance of history, if one well versed in "the old writers" against Popham had also seen and produced a single testimony in his favor. Take one sentence from Gorges, relating to this Spanish capture: "The affliction of the captain and his company put the Lord Chief Justice to charge and myself to trouble in procuring their liberties, which was not soon obtained." This citation is enough to show his efforts for their release, and proves great humanity on the part of this "noble patron of justice and virtue," as he has been well described; and that he was not herein "a heartless wretch," as your correspondent writes, and furnishes no proof of his allegation.

The quotations from Lloyd – himself mostly valuable for his quotations – are prominently presented, as bearing on the character of the colonists. He says that Popham "provided for malefactors." But that is no certain proof that he sent them to Sagadahoc. The plan and its completion are different things, and its completion was not necessarily here. "He first set up the discovery of New England to maintain and employ those that could not honestly live in the Old." But this proposal, this "setting up," if made in regard to Sagadahoc, does not prove that the suggestion was ever carried out. With the singularly imperfect knowledge of foreign geography, that has always characterized English education, all Virginia seems to have been New England, and vice versa. New England was North and South Virginia. We admit the plan. We demand the proof that convicts were banished to this region. Besides, where is the inhumanity of the proposal, or its fulfilment? It was intended to save the lives of criminals, who otherwise would have been hung, according to evidence and the laws of their time; and doubtless the culprits condemned would have deemed the provision merciful, that by banishment allowed them to live.

The quotation from Sir William Alexander has been often made; and it is valuable, as coinciding accurately with the views expressed in my communications. His book is rare; and I take his words from your columns: —

"Those that went thither being pressed to that enterprize, as endangered by the Law, or their own necessities, (no enforced thing prouing pleasant, discontented persons suffering while they act can seldom have good success and neuer satisfaction) they after a Winter stay dreaming of new hopes at home returned back with the first occasion."

Here we are accurately taught that the people – that is, the laborers in the colony – went "as endangered by the law, or their own necessities." How were they "endangered"? By what "law"? By what "necessity"? A writer of that time furnishes the reply, – in the crowded population, the poverty of the working class, and the encroachments of their rich neighbors; and urges emigration as the relief. He writes the following: —

"Look seriously into the land, and see whether there bee not just cause, if not a necessity to seek abroad. The people do swarme in the land as young bees in a hive in June: insomuch that there is hardly room for one man to live by another. The mightier, like old strong bees, thrust the weaker, as younger out of their hives. Lords of manors convert townships, in which were a hundredth or two hundredth communicants, to a shepheard and his dog. The true laboring husbandman, that sustaineth the prince by the plow, who was wont to feed many poore, to set many people on work, and pay twice as much subsidie and fifteenes to the king for his proportion of earth, as his landlord did for ten times as much; that was wont to furnish the church with saints, the musters with able persons to fight for their soveraigne, is now turned laborer, and can hardly scape the statutes of rogues and vagrants… The poore metall man worketh his bones out and swelteth himself in the fire; yet for all his labor, having charge of wife and children, he can hardly keep himselfe from the almes box… The poor man receiveth very neere four pence for every sixepeny worth of work. The thoughtfull poore woman that hath her small children standing at her side and hanging on her breast, she worketh with her needle and laboureth with her fingers, her candle goeth not out by night, she is often deluding the bitterness of her life with sweete songs, that she singeth to a heavy heart… I warrant you her songs want no passion; she never saith, O Lord, but a salt teare droppeth from her sorrowfull heart, that weepeth with the head for company with teares of sweetest bloud. And when all the week is ended, she can hardly earn salt enough for her water gruel to feede on upon the Sunday."

Surely here is a picture of extreme poverty, – fully corroborated by a document in Mather, – showing how "the land grew weary of her inhabitants;" and how "children, neighbors and friends, especially the poor, were counted the greatest burdens." It tells us how the honest yeomanry and worthy laborers of that day were harassed by the encroachments of their "mightier" neighbors, and the rigid oppression of the civil law. They were "endangered" through no fault of their own. One cannot but recall a part of the petition of Agur, – "lest I be poor, and steal" to support life. But are we to consider such men as "rascals and villains"? And were any such men, sentenced, as men of guilt, to go forth as a part of the colony? Symonds here gives a full and sufficient interpretation to the meaning of Lloyd and Alexander.

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.