Shipping merchants received a fixed amount of money from the British government for every convict they transported across the Atlantic. The government only required that convicts were banished – forced labour was not a part of the sentence. However, since the money the merchants received from the government subsidy did not entirely cover the cost of shipping convicts to the colonies, they sold felons who could not afford to pay for their voyage as indentured servants for terms of seven years, regardless of their sentence of banishment, upon arrival in America.
Felons who served their full sentence of banishment could legally return to Britain without consequence or fear of conviction. However, for convicts returning home before the expiration of their sentences, execution was the standard punishment. Therefore no matter how Higgins returned, whether or not he paid for his transport or later bought out any servitude he may have been sold into, just by returning within seven years he would have committed a capital offence.
The Transportation Act 1718 stipulated that only the monarch possessed the power to pardon convicts found illegally in Britain.
From Gottleb Mittelberger’s Journey to Pennsylvania in the Year 1750 and Return to Germany in the year 1754:
“…When the ships have landed at Philadelphia after their long voyage, no one is permitted to leave them except those who pay for their passage or can give good security; the others, who cannot pay, must remain on board the ships till they are purchased and are released from the ships by their purchasers. The sick always fare the worst, for the healthy are naturally preferred and purchased first; and so the sick and wretched must often remain on board in front of the city for two or three weeks, and frequently die, whereas many a one, if he could pay his debt and were permitted to leave the ship immediately, might recover and remain alive.
The sale of human beings in the market on board the ship is carried on thus: Every day Englishmen, Dutchmen, and High German people come from the city of Philadelphia and other places, in part from a great distance, say twenty, thirty, or forty hours away, and go on board the newly-arrived ship that has brought and offers for sale passengers from Europe, and select among the healthy persons such as they deem suitable for their business, and bargain with them how long they will serve for their passage money, which most of them are still in debt for, When they have come to an agreement, it happens that adult persons bind themselves in writing to serve three, four, five, or six years for the amount due by them, according to their age and strength. But very young people, from ten to fifteen years, must serve till they are twenty-one years old.
Many parents must sell and trade away their children like so many head of cattle, for if their children take the debt upon themselves, the parents can leave the ship free and unrestrained; but as the parents often do not know where and to what people their children are going, it often happens that such parents and children, after leaving the ship, do not see each other again for many years, perhaps no more in all their lives.
It often happens that whole families, husband, wife, and children, are separated by being sold to different purchasers, especially when they have not paid any part of their passage money.
When a husband or wife has died at sea, when the ship has made more than half of her trip, the survivor must pay or serve not only for himself or herself, but also for the deceased. When both parents have died over halfway at sea, their children, especially when they are young and have nothing to pawn or to pay, must stand for their own and their parents’ passage, and serve till they are twenty-one years old. When one has served his or her term, he or she is entitled to a new suit of clothes at parting; and if it has been so stipulated, a man gets in addition a horse, a woman, a cow…”
William Thompson, Solicitor General and Recorder of the City of London, guided the passage of the 1718 bill through Parliament. He acted as the link between “the central administration, parliament and the city.” The Act transformed penal policy by allowing judges in the superior courts, the assizes, to sentence felons directly to transportation for 7 or 14 years in the colonies while maintaining the option of pardoning some persons, initially sentenced to hang, on condition of 14 years transportation. The most significant feature of the new Act, however, was that it allowed justices of the peace (the magistrates in the lower courts, the quarter sessions) to sentence those found guilty of lesser crimes – usually misdemeanours – to 7 years transportation. It also specified that those who returned to England before the term of their sentence had expired should face execution. In addition, it was recognized that if the system was to work effectively the government needed to fund it. Consequently, the Treasury agreed to pay the merchant Jonathan Forward £3 per head, later raised to £5, to carry convicts sentenced by the courts of London and the Home Counties to the American colonies, a trade which he dominated for the next 20 years. In other parts of the country, arrangements were made by local authorities and paid for by county taxes.