Abel Magwitch and Convict Transportation: A Note on the Legal History behind the Fiction
0
조회
0
다운로드
1
인용
0
참고문헌
키워드
초록
This paper goes into the details of English penal law relevant to the case of Magwitch. At common law, crime against property were considered capital crimes. Such rigidity being intolerable in the actual law courts, it became the judges’ responsibility to be prudent in passing on the sentence of death. Of the traditional measures of mitigation, benefit of clergy retained its importance as an administrative device, as is depicted in the case of Compeyson. Above all, transportation was adopted extensively as a judicial device of avoiding death sentence. Moreover, the 1718 Transportation Act made transportation to America a statutory punishment for felonies against property. After the American Revolution, keeping convicts such as Magwitch on the hulks became a regular practice, until Botany Bay was chosen as a penal colony. That Magwitch made a fortune in New South Wales is not improbable, but common law considered a transported felon to be dead in law. The category of “attaint” applied to such person, which debilitated his property rights. Even a returned convict with a full pardon from the colonial governor was considered attainted. With his life transportation still effective, Magwitch’s return to England was an act of sheer recklessness.
Abstract
This paper goes into the details of English penal law relevant to the case of Magwitch. At common law, crime against property were considered capital crimes. Such rigidity being intolerable in the actual law courts, it became the judges’ responsibility to be prudent in passing on the sentence of death. Of the traditional measures of mitigation, benefit of clergy retained its importance as an administrative device, as is depicted in the case of Compeyson. Above all, transportation was adopted extensively as a judicial device of avoiding death sentence. Moreover, the 1718 Transportation Act made transportation to America a statutory punishment for felonies against property. After the American Revolution, keeping convicts such as Magwitch on the hulks became a regular practice, until Botany Bay was chosen as a penal colony. That Magwitch made a fortune in New South Wales is not improbable, but common law considered a transported felon to be dead in law. The category of “attaint” applied to such person, which debilitated his property rights. Even a returned convict with a full pardon from the colonial governor was considered attainted. With his life transportation still effective, Magwitch’s return to England was an act of sheer recklessness.
참고문헌 (27)
- Baker, J. H., "An Introduction to English Legal History" (2007), Oxford UP
- Beattie, J. B., "Policing and Punishment in London 1660-1750: Urban Crime and the Limits of Terror" (2001), Oxford UP
- Blackstone, William, "Commentaries on the Laws of England: In Four Books. 2 vols" (1908), Lippincott
- Boehm, Behtn A., "Nostalgia to Amnesia: Charles Dickens, Marcus Clarke and Narratives of Australia’s Convict Origins", The Victorian Newsletter, 109(Spring), pp.9~14 (2006)
- Clark, Manning, "A History of Australia Volumes I & II: From the Earliest Times to 1838" (1999), Melbourne UP
- Coke, Edward, "The First Part of the Institutes of the Laws of England, or, a Commentary upon Littleton. 2 vols" (1999), The Lawbook Exchange
- Coke, Edward, "The Third Part of the Institutes of the Laws of England; Concerning High Treason, and Other Pleas of the Crown and Criminal Causes" (2012), The Lawbook Exchange
- Collins, Philip, "Dickens and Crime" (1994), Macmillan
- Colley, Linda, "Britons: Forging the Nation 1707-1837" (2003), Pimlico
- Defoe, Daniel, "Moll Flanders" (1998), Oxford UP
- Dickens, Charles, "Great Expectations. Oxford Illustrated Dickens" (1989), Oxford UP
- Harvie, Christopher, "The Oxford Illustrated History of Britain", pp.419~462 (1984), Oxford UP
- Inwood, Stephen, "A History of London" (1998), Macmillan
- Kercher, Bruce, "Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700-1850", Law and History Review, 21(3), pp.527~584 (2003)
- 김명진, "Psyche as an Ideological Phenomena: A Bakhtinian Approach to Dickens’s Minor Characters in Great Expectations", 근대영미소설, 17(2), pp.71~93 (2010), 한국근대영미소설학회
- Langford, Paul, "The Oxford Illustrated History of Britain", pp.352~418
- Litvack, Leon, "Dickens, Australia and Magwitch Part I: The Colonial Context", Dickensian, 95(Spring), pp.24~50 (1999)
- Litvack, Leon, "Dickens, Australia and Magwitch Part II: The Search for le cas Magwitch", Dickensian, 95(Summer), pp.101~127 (1999)
- Lobban, Michael, "The Common Law and English Jurisprudence 1760-1850" (1991), Clarendon
- Manchester, A. H., "Modern Legal History of England and Wales 1750-1950" (1980), Butterworths
- 박형지, "Criminality and Empire in Great Expectations", 영어영문학, 49(4), pp.707~729 (2003), 한국영어영문학회[DOI]
- Posner, Richard A., "Law and Literature" (1998), Harvard UP
- Radzinowicz, Leon, "A History of English Criminal Law and Its Administration from 1750. Vol.1: The Movement for Reform" (1948), Stevens & Sons
- Schramm, Jan-Melissa, "Law and Literature", pp.417~435 (1999), Oxford UP