Convict society and its enemies: a history of early New South Wales 9780868613413, 9780868613499

Table of contents :
Frontmatter
Illustrations (page 6)
Preface (page 7)
1 The enemies (page 9)
2 Masters and servants (page 28)
3 Convicts and society (page 78)
4 The shame of Botony Bay (page 189)
Sources (page 218)
Notes (page 222)
Index (page 240)

Citation preview

Convict society and its enemies

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Convicts at their hut in their ‘own time’ at the weekend: washing clothes gardening, and at right, grinding the week’s wheat ration into flour

J.B. Hirst

Convict society and its enemies A history of early New South Wales

GEORGE ALLEN & UNWIN

Sydney London Boston

© J.B. Hirst 1983 This book Is copyright under the Berne Convention. No reproduction without permission. All rights reserved. First published in 1983 by George Allen & Unwin Australia Pty Ltd 8 Napier Street, North Sydney, NSW 2060 Australia George Allen & Unwin (Publishers) Ltd Park Lane, Hemel Hempstead, Herts HP2 4TE, England Allen & Unwin Inc. 9 Winchester Terrace, Winchester, Mass 01890 USA

National Library of Australia Cataloguing-in-Publication entry: Hirst J.B. (John Bradley). Convict Society and its enemies. Includes bibliographical references and index. ISBN 0 86861 341 X. ISBN 0 86861 349 5 (pbk.). 1. New South Wales — Social life and customs — 1788-1851. 2. Penal colonies, British. 3. Convicts — New South Wales — Social conditions. 4. New South Wales — Exiles. I. Title. 994.402

Set in 10/11 pt Baskerville by Graphicraft Typesetters Ltd, Hong Kong Printed in Hong Kong by Bright Sun Printing Press Co. Ltd

Contents

Illustrations 6

Preface / 1 The enemies 9 2 Masters and servants 28 Making convicts servants 33

Flogging and work 57 Good masters and bad 69 3 Convicts and society 78

The economy and penal principles 82 The law and convicts’ rights 106 Rebellion and security 133

Status and politics 150

Dependence and self critectsm 169

4 The shame of Botany Bay 189

Sources 218 Notes 222

Index 240

Illustrations

Frontispiece Convicts at their hut in their ‘own time’ at the weekend

1 Bentham’s plan for a penitentiary panopticon 13 2 The Female Penitentiary or Factory at Parramatta 18 3 The Government Farm, Parramatta 1791 35 4 The Convict Barracks, Sydney 43 5 The symbols of the convict system 65

6 Shepherding sheep 96

7 The Macarthurs’ Elizabeth Farm household list 105 8 A form for everything: a standard petition 131-2 9 Skirmish between bushrangers and constables, Illawarra 146 10 The restraint on disrespect for emancipists 154 11 Not a true gentleman: Samuel Terry 168 12. A road gang on the Bathurst road 180 13. The beginning of a stock joke: the first parliament of Botany

Bay 190

14. Dr William Bland 205 15 A persistent symbol: ‘The Convict’ in chains 214

Preface

This book records a conversion. When I began to study the early history

of New South Wales I set out to answer the question of how a penal colony had changed into a free society. Since the colonists themselves had opposed the ending of transportation, I looked first of all at the reasons why the British government decided to abandon it. At that stage

I shared the idea of the British opponents of transportation that the colonists had become so accustomed to exercising extreme powers over their convict labourers that they had blinded themselves to the evils of the system and had to be forcibly rescued from them. As I studied the system, however, I began to feel that the colonists had been slandered

and that the unique society of early New South Wales needed to be looked at in a new light. I put aside the assumptions of its enemies and saw that my task was to re-examine both the society and its enemies. It is particularly important to examine the enemies as well because some of

the most important assumptions of those who opposed and stopped transportation to New South Wales still powerfully influence accounts of early colonial society. For reasons which the book will make clear, I also came to believe that my original question about the transformation of the colony into a free society is the wrong question to ask. This was

not a society which had to become free; its freedoms were well

established from the earliest times. A writer on the early history of New South Wales has the benefit of many good books to draw upon. This study owes a particular debt to

A.G.L. Shaw Convicts and the Colonies, A.C.V. Melbourne Early Constitutional Development in Australia and the several works of C.H.

Currey on the colony’s legal history. I have also relied heavily on Jennifer McKinnon’s ‘Convict Bushrangers in New South Wales, 1824-1834’, an M.A. thesis written at La Trobe University. I have made extensive use of the Sydney newspapers of the period, but have read only selectively in the manuscript collections in the Mitchell Library and the New South Wales Archives. On many matters discussed in this book, much more can be known. I am grateful to Richard Broome, Christine Hirst, Allan Martin and

8 Preface Val Tarrant who read and commented on my work. The following institutions kindly gave permission for the reproduction of illustrations: the Mitchell Library, NSW, the National Library; the Archives Office of New South Wales; the British Museum (Natural History) London, the Public Record Office, London; Bud Dumas and the Sydney Cove Authority.

I The enemies

In 1786 the British government decided to send convicts sentenced to transportation to a new colony to be founded in New South Wales. A little over 50 years later, against the wishes of the colonists, the British government decided that transportation to New South Wales should cease. The ministers who were responsible for this second decision believed not only that transportation to the colony was an ineffective punishment, but also that the whole colonial society had been debased and corrupted by the experience. They were appalled at the irresponsibility of their predecessors in founding a community composed largely of felons. But that decision had not gone unchallenged. The enemies of the convict colony were at work even before it began. When the British government decided to send convicts to Botany Bay, it turned its back on a new, alternative scheme for the punishment

of criminals — confinement to a penitentiary.' In this new form of prison the prisoners were to be kept in separate cells, put to work, given

improving literature and subjected to the ministration of a chaplain. The isolation and the silence would bring the criminal to acknowledge his errors; and the work, the books, and the clergyman would reform him. This was a revolutionary proposal, for in the eighteenth century prisons were not regarded as the standard instrument of punishment. Prisons held debtors, those awaiting trial or punishment, and only a very few people who had actually been sentenced to short periods of imprisonment. The usual sentences imposed in the criminal courts were death (the punishment for some 200 offences), transportation (to which death sentences were frequently commuted) and whipping. Punishment was directed at the prisoner’s body — to kill or maim it, or to ship it out of the country. The penitentiaries were to avoid attacks on the body and to concentrate chiefly on the prisoner’s mind.

The idea of the penitentiary came from John Howard, a zealous evangelical Christian who spent years visiting and inspecting the prisons. His book The State of the Prisons published in 1777 exposed their filthy, diseased and chaotic state and proposed a new regime in

which prisoners would be kept healthy and adequately fed, but

10 Convict society and its enemies

subjected to strict discipline and hard labour. The proposal for imprisonment as a standard punishment came at an opportune time. Two years before, the American colonies had revolted and refused to take any more convicts. The jails quickly became dangerously overcrowded. Some of the convicts sentenced to transportation were put

in hulks on the Thames and at ports on the southern coast as a ‘temporary measure. A committee of the House of Commons in 1779 urged the government to find another place to send convicts and to begin building penitentiaries. In the same year the parliament passed a bill for the establishment of penitentiary houses.

The bill had originally provided for a series of penitentiaries throughout the country, but in its final form provided only for two, one for men and one for women, near London. However, the government

showed no eagerness about getting the penitentiaries built. It was deterred by the cost — which was why the national network of penitentiaries had been abandoned — and by the general reluctance to

see criminals turned loose on the country after their time was up. Supporters of the penitentiary claimed that their institution would turn

out reformed characters, but that miracle had yet to be performed. While nothing substantial was done towards building penitentiaries, the government decided to send convicts to Botany Bay. The penitentiary

scheme lapsed. As a consequence, the new colony was immediately viewed with hostility by the penal reformers.

One of the most notable of these was Jeremy Bentham, the law reformer, who was soon to become England's leading authority on crime and punishment. Bentham was in Russia when the decision to send the

convicts to New South Wales was taken. He had gone there with the hope of interesting Catherine the Great in a new penal code drawn up by himself. Bentham believed that the law should be readily understood

by all and accessible in one document — a code — rather than ina multitude of different Acts passed at different times and as likely as not

in conflict with each other. Offences should be clearly defined and punishment should be carefully designed to match the seriousness of the

crime. The word ‘codify’ itself is one of Bentham’s inventions and devising criminal codes was one of his chief occupations. In England Bentham saw little chance of reform being introduced for though the law was all he said it was — complex, incoherent and indiscriminately savage — parliament showed no signs of losing faith in it. It was still

adding death sentences to more and more offences, flouting one of Bentham’s principles that punishment for a lesser offence should not be the same as for a greater. In Europe monarchs themselves still ruled and among the ‘enlightened despots’ Bentham hoped to find one who would adopt a code of his devising. In Russia and with Catherine, he said, he could achieve more in a month than in a life-time in England.’

While he was in Russia Bentham developed a new plan for a

The enemies 11 penitentiary building. He borrowed the idea from his brother, an engineer who was employed by the Russian government as a technical adviser. He was supervising the building of ships during Bentham’s visit,

and to overcome the lack of skilled overseers he arranged the work processes in a circle around his office. This arrangement gave Bentham his idea for the design of a penitentiary. If all the prisoners were put in

separate cells arranged in circular tiers around a central observation point, they could be readily and very cheaply supervised. Not all the prisoners would actually be under inspection at once, but by a careful arrangement of light and blinds the prisoners would not be able to tell when they were being watched. Consequently they would have to assume that they were under constant surveillance. This Bentham described as ‘a new mode of obtaining power of mind over mind’.*® The prisoners would work and, besides being reformatory, the work would

cover the cost of their maintenance and give a profit to the contractor — to whom the whole operation should be given. Bentham saw himself

as a discoverer in the science of human affairs and delighted in christening his discoveries with new terms. The circular penitentiary he called the panopticon because of its ‘all seeing’ principle. Bentham fervently believed that by this discovery he had solved the

problem of finding a cheap and effective punishment for England’s criminals. He dashed off a pamphlet explaining the panopticon and sent it to England. The scheme was offered not merely as an ideal form for a prison; 1t would bring great savings and improved management to schools, hospitals, mad houses and work houses. All this, as he boasted, from ‘a simple idea in Architecture’. Bentham did believe that social problems had simple solutions. It was only muddled thinking, stupid respect for precedent and the self-interest of experts and professionals which kept them from the normal mortal’s sight. While he was writing his pamphlet he heard from a friend in England of the government's decision to send convicts to Botany Bay. He realised

at once that this scheme would work against the adoption of his panopticon proposals. He wrote back asking his friend to find out how

much the New South Wales scheme would cost per head. Nothing, Bentham believed, could be cheaper than the panopticon.® When he

returned to London he began to lobby for the adoption of the panopticon scheme and to collect information which would damn the new colony.°

Bentham was opposed to the transportation of criminals in any circumstances.’ It clearly offended against the principles which he had set up for determining legitimate and effective punishments. Governments exist, Bentham claimed, to promote the greatest happiness of the greatest number; they should maximise pleasure and minimise pains (the words ‘maximise’ and ‘minimise’ are also Benthamite inventions). Punishment is an evil since it causes pain and only so much should be

12. Convict society and its enemies inflicted as is necessary to deter people from committing crime and so

secure the general good. Transportation was a poor punishment

because it was uncertain. No one knew beforehand how much or how

little pain was actually going to be inflicted when an offender was shipped across the seas to work in the colonies. Transportation was regarded as a lesser punishment than death, but death might actually be inflicted if the ship carrying the offender to the colonies was wrecked.

People were sentenced to different periods of transportation, but since

the experience might be very burdensome or no pain at all, these variations were derided by the man who wanted to fine-tune his punishments to match the crime. Because transportation was an uncertain fate it was a very poor deterrent. Men are most likely to be deterred from

crime, said Bentham, when the punishment for an offence is known precisely and is sure to be inflicted. Men are not likely to be deterred if they are threatened with one punishment — death — which is actually commuted to another — transportation — which in itself was a great unknown. Even if transportation could be so arranged as to inflict the same amount of pain on all those sentenced to it, it would still be a poor punishment because it was inflicted at a distance — away from the sight and sound of those who were to be deterred. The second purpose of punishment, according to Bentham, was to reform the offender. Here too transportation rated poorly. A man sent

to compulsory labour in the colonies might become a _ reformed character, but this would be more by accident than design. The chief interest of those for whom he laboured was to get work out of him, not to attend to his morals. Bentham had formulated his arguments against transportation in his general works on law and punishment, written before the colonisation of New South Wales by convicts. When the first reports of the colony reached London, Bentham thought he had a knock-down case against

it. If transportation to the American colonies had been a poor punishment, the failings of transportation to this penal colony were beyond belief. In a postscript to his panopticon pamphlet, published in 1791, he began his attack upon it. He set forth his complete case against the colony in Panoptzcon Versus New South Wales published in 1802.°

In this Bentham quoted extensively from the account of the colony written by the first judge advocate, David Collins. Collins took a hopeful

view of the colony; it was all the more telling, said Bentham, that his book provided more than enough evidence to condemn it. When criminals had been sent to America, Bentham argued, they entered an established moral society. In New South Wales they existed in a society composed largely of themselves. There were insufficient decent people to supervise their work and establish order and discipline.

The convicts did very little work and were free to gamble and drink. Drunkenness was universal. Collins could name some few reformed

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The enemies 19 Only women convicts in New South Wales experienced an institutional regime of this sort.'”

The evangelicals took the world as their parish. Their great reform and missionary movements are the cathedrals of that age of religious

revival and they still amaze us with their reach and span. In 1820 Buxton listed the subjects he was currently studying: “The Criminal law; The Prisons; The Police; Botany Bay; The Slave Trade; The Practice of

burning Widows in India by Authority of the English Resident; Lotteries; Colonisation, viz., Land for supporting Schools, and Eman-

cipation of Slaves’. On New Year’s eve, Buxton would lay down for himself the causes on which he would work during the following year — this was the discipline to keep his mind off worldly things and on the

Lord’s work. Botany Bay did not appear regularly in his list and amid all their other causes the evangelicals did not give it consistent attention. What they brought to this and to every other cause was the heightened significance of God’s purposes and national righteousness. Botany Bay

was not merely a penal colony. It was a base from which the gospel might be spread in that quarter of the globe. Johnson was sent with

these hopes. Marsden, after despairing of the convicts and the Aborigines, fulfilled them with his great mission to the Maoris. But the work was endangered by the convicts. They were creating in New South Wales a ‘nest of vipers’, said Wilberforce in the House of Commons in

1819, which could ‘form a nucleus of contagion in that part of the world’. In this debate the ministers remained unperturbed by the quotation of figures which showed that the colony had a crime rate sixteen times as great as the English county of Warwickshire. What can

you expect, replied the ministers, if you send criminals there? This indifference was the typical response of those who were pleased simply to get rid of convicts.?! As Bentham said, men were happy so long as the

convicts did not trouble what they regarded as ‘the only spot in the world worth thinking about’ — the United Kingdom.” The evangelicals

did most to make men think more broadly and to take the

responsibilities of Empire seriously — Hindus had to be converted, slaves freed, and Botany Bay purified.

If transportation were to cease, the criminal law would have to be . recast and new methods of punishment found. The evangelicals were firm supporters of the law reformers and did most to promote the new

forms of punishment — solitary confinement, hard labour, rigid discipline.*” Though they were happy to use Benthamite arguments to support these causes, they were not moved by Bentham’s passion for codification. To Bentham the existing laws were stupid and illogical; the evangelicals did not hesitate to call them barbarous, bloody and murderous.** They went into the prisons. They worked to save offenders

from the gallows — and then argued a la Bentham that the law was ineffective because its punishments were not enforced. The evangelicals

20 Convict society and its enemies wanted to reduce or abolish the use of the death penalty so that God's

work of reclaiming the wicked could proceed. It was inhuman and unchristian for society simply to hang people out of hand. The reform of the criminal was part of the evangelicals’ larger plan to reform the whole society. They wanted all the lower orders to become sober, hard working and pious. Those who fell foul of the law could be reformed compulsorily in the new prisons which would teach them habits of work

and introduce them to God’s truths. The rigid discipline which the evangelicals imposed on themselves, knowing that every minute of their

time should be devoted to God’s service, could there be imposed on those whose careless and unthinking lives had led them into crime. So the humane and christian concern to save people from the gallows led to

solitary confinement and the treadwheel. Of their work in promoting these ‘reforms’ the evangelicals were as proud as of their campaign against slavery. The case against transportation and the penal colony was, as we have seen, well developed before the colony was fairly established. Over time

it changed in two ways. The first related to the capacity of

transportation to New South Wales to deter people from crime.” Bentham had argued that transportation was an uncertain punishment — it might inflict considerable pain or very little. As the starvation years

passed and the colony became prosperous, it seemed to observers in England that transportation was becoming more certain, but in a way that was disastrous for its capacity to deter — the odds on the likelihood

of its inflicting pain were lengthening. A few convicts had made fortunes and all lived in comparative comfort. The penal reformers could cite letters from convicts urging their friends and families to join

them and cases of criminals asking to be transported or committing crimes solely in order to be sent. After the end of the Napoleonic wars in 1815, crime increased rapidly and the government began to pay more

heed to the critics of transportation to New South Wales. It tried to ensure as a minimum that no convict had an easy time in the colony and later that the worst offenders suffered more. But to concede anything to the reformers was dangerous, for they could readily show that the ills which the government itself now acknowledged were incurable. While

convicts were handed over to private masters their punishment and reformation could never be properly provided for. Convicts who had committed very serious offences could be given light work and lesser offenders could find themselves slaving for a tyrant. Even if — what was impossible to imagine — a fixed and certain amount of suffering could

be imposed by transportation, it would still fail to deter because the favourable view of the colony was too well established. This was the

danger of punishment at a distance which Bentham had warned against. The second change in the case against New South Wales was more

The enemies 21 fundamental. It occurred in the 1830s, just before the decision was taken to abandon transportation to the colony. This was the decade when many reform causes came to fruition. The Whig party, coming to power in 1830 after years in the wilderness, moved first to reform the system of parliamentary representation. Towns whose population had declined or disappeared altogether were no longer to elect members; these seats were given to the towns and counties whose population had increased with the growth of trade and industry. Once this reform was passed after a long and bitter struggle, others followed quickly. The closed corporations which had governed towns, both new and old, were

replaced by elected bodies. Slavery was abolished throughout the empire. The administration of the poor law was reorganised on Benthamite lines with a central administration to supervise local authorities and a sure test to guard against imposters: conditions in the workhouse were to be worse than the lowest paid employment outside. Lord John Russell, the home secretary in the second Whig government, moved decisively to reform the criminal law, to establish central control over existing prisons, and to commence building penitentiaries. During the 1830s New South Wales began to be described as a slave

society which had been corrupted as much by transportation as the West Indies had been by slavery. The argument against one evil had been carried over into the case against another. After long years in which the same points were made again and again, the case against New South Wales had jumped into another key. Previously the colony had been seen as a corrupt society because the evil doers were dragging down

the virtuous. Now corruption was associated with the fundamental relationship of the penal colony — the enforced labour of the convict for the benefit of his master. Neither convict nor master, whatever their character, could avoid its taint. In earlier times it had been perfectly acceptable to describe a convict who had been put to work as a slave. When the anti-slavery campaign began in the late eighteenth century, it was conceded that the state had a right to make slaves of convicted criminals. Thomas Clarkson in his classic essay against slavery called these people ‘voluntary slaves’ since

they had a choice in their enslavement — they could remain lawabiding and free. By conceding that there was legitimate slavery, Clarkson could highlight the illegality of enslaving the African who had committed no offence.*® Bentham, though opposed to slavery, did not hesitate to use the word to describe the condition of those who were to

be confined in the penitentiaries. He composed an inscription which would be placed above their doors: ‘Had they been industrious when free, they need not have drudged here like slaves’.?” Sometimes when transportation to New South Wales had been criticised as too lenient, its

defenders had replied that the convict was in the condition of a slave and so was undergoing real punishment.”® But by the 1830s, to describe

22 Convict society and its enemies the convicts of New South Wales as slaves was to damn the system of transportation and the colony. Of course what was objected to was not

compulsory labour as a punishment for convicts, but that private persons should control and benefit from it.*? This led to unequal treatment which made transportation an ineffective punishment and established the corrupting relationship of slave ownership. Compulsory labour in a penitentiary — the favoured alternative to transportation — was perfectly acceptable and was no longer described as slavery. The abolition of slavery was achieved after a stupendous effort to rally the religious forces of the nation, and those who had not worked

directly for its removal shared in the great self-satisfaction which followed its demise. What could be more virtuous than an empire which had spent twenty million pounds to purchase the freedom of its slaves? The evil reputation of slavery grew after its condemnation was official

and ‘slavery’ became a word of unrivalled potency. The anti-slavery campaigners did not rest. Having removed slavery from the empire, they now worked to extirpate it from Africa itself. They denounced schemes of indentured labour as slavery in disguise and the emigration of coolies from India had to be suspended. The hard-pressed workers of England began to call themselves white slaves in the hope of shaming their employers and the nation in to taking some care for their welfare. In this atmosphere slaves and slavery and all their attendant evils were discovered in New South Wales. When the campaign against slavery began, the slave owners and the

societies which used slaves were not thought of as corrupt beyond redemption. The strategy of the anti-slavery campaigners was based on the contrary assumption, for at first they attacked only the slave trade. They considered that once the supply of new slaves ended, the slave owners would take more care of those they had; they would become

more aware of the advantages of free labour (for slave labour was thought by its opponents to be inefficient); and there would be a gradual transition to a free labour force. The slave trade was abolished in 1807, but in the years that followed there was no sign that the slaves were treated better or that there was any willingness on the part of the

colonists to consider the advantages of a free labour force. This intransigence was the foundation for the view that the slave owners and

their society had been corrupted by slavery. The anti-slavery campaigners now saw that they would have to move against slavery directly, and they offered a programme for the improvement of the slave's condition and the gradual abolition of slavery. The use of the whip was to be limited and banned altogether for female slaves; families were not to be broken up; slaves were to be given one week-day off; they

could purchase their freedom, and give evidence in court; religious instruction was to be provided; and, most radical of all, children were in

future to be free at birth. This programme would be very difficult to

The enemies 23 implement not only because of the opposition from those in Britain with an economic interest in the slave colonies, but because the slave codes were controlled by the colonial assemblies and were clearly a matter for internal government. The British parliament had an overriding power, but the government was very reluctant to use it. In 1823 it deflected an

effort made by Buxton to have the colonial assemblies instructed to institute a programme of amelioration by undertaking to advise them in the strongest terms to institute their own reforms. This advice was not well received. Jamaica rejected it outright and

other colonies made merely token changes. While the government urged patience, the anti-slavery campaigners set out to demonstrate that the slave colonies would never reform themselves.*° In the first place, they were not dealing with men of honour. The slave owners had lied about the conditions of slavery. When the anti-slavery campaigners

had objected to the use of the cartwhip, they had said it was a mere ©

badge of authority and was never used. When it was proposed to prohibit its use by law, the slave owners said its use was absolutely essential! The campaigners also pointed out that the slave-holding interest was so pervasive that every institution -in the colonies was subservient to it. The legal rights which the slaves possessed, pitiful in themselves, were rendered worthless by the courts which always took the master’s side. Men appointed to protect slaves to meet Britain’s request for amelioration were themselves slave owners. The colonial church owned slaves and supported slavery, and the few clergymen who dared to minister to the slaves were ruthlessly persecuted. The evil of these societies went beyond the cruel subjection of their work force. Absentee land owning was common and the men actually running the estates and composing the colonial assemblies were coarse and vulgar. There was a mania of gambling and speculation and in the management of estates all was sacrificed to short-term gain. These evils — common enough to colonial societies — were seen as having derived from slavery itself.

The key concept in the argument that the colonies would never reform themselves was that of the corrupting effects of the absolute power thought to be held by owners and managers over their slaves. Having enjoyed absolute power, no man would ever yield it up. It blinded slave owners to their own best interests. The owners believed that their estates would be ruined if slavery were abolished — which turned out largely to be the case — but their opponents found the basis of their attachment to slavery not in an ordinary desire for wealth, but in the lust for personal power.

The arguments about absolute power linked the anti-slavery campaign most clearly to the cause of liberalism, which was strengthening in England and in Europe in the early nineteenth century. There were no slaves to free in England, but the abuse of power

24 Convict society and its enemies by the slave holder was an effective cautionary tale for a cause which wanted to extend rights, abolish special privileges, and limit the power of hereditary monarchs and orders. The campaign against slavery had another domestic implication. It flourished at the same time as harsh work disciplines were being imposed in the new factories and legislation which had formerly given working people some protection was being

repealed. By concentrating on the evils of the situation in which labourers were owned, the anti-slavery campaign helped to legitimate the view that a wage labourer was a genuinely free man, no matter on what terms he was forced to work. It was because they heard so much

about the evils of slavery and so little about their own plight that working people began to call themselves ‘white slaves’.°*! The corrupting effects of absolute power upon the masters became an

increasingly important part of the argument against slavery, as well as being used to explain why its beneficiaries would never give it up. To concentrate solely on the condition of the slaves themselves involved the anti-slavery campaigners in some difficulty. If they claimed that slaves were poorly treated, it was said with some justice that they were better

fed than the English poor. (Wilberforce on one occasion had the good sense to suspend the anti-slavery campaign while people in England were starving.) If they highlighted cases of shocking cruelty, it was said that this was the work of bad masters, a tiny minority of which England, too, had its examples. But if the corrupting effects of absolute power

were stressed, then the distinction between good and bad masters disappeared, because no man, however well disposed, could avoid the

terrible temptations which slavery held out to him. The travelling lecturers in the anti-slavery cause were instructed to stress as the first of

slavery’s evils that it was degrading and demoralising to all parties involved in it.*”

It was these arguments which did finally persuade the British parliament to by-pass the colonial assemblies and abolish slavery directly. They were also the arguments which were transferred to the case against New South Wales. That masters there were corrupt was

now a common-place. The fact that the colonists did not want transportation stopped now bore heavily against them — it was a sure sign of their depraved desire to hold on to personal power. Even the more particular evils of the West Indian societies were found to have their parallels in New South Wales. When Lord Howick, the under secretary of state for colonies in the early 1830s, found that speculation was rife in New South Wales, that interest on money was high and properties heavily mortgaged, he took this as proof that all the evils of the slave societies had taken root in the colony.”

Though the British nation was prepared to spend two hundred million pounds to abolish slavery, it was not so anxious to spend money

on penitentiaries and keep its criminals at home. In parliament there

The enemies 25 was still plenty of support for transportation on the traditional grounds that it was cheap and got rid of unsavoury characters. Even within the Whig government which took the decision to abolish transportation to

New South Wales, there were really only two ministers who were determined about the matter. They were Lord John Russell, who as home secretary transformed the criminal law, and Lord Howick, who

maintained his interest in Australia after he had left the colonial

office.** Both men thought of New South Wales as a slave society and were deeply involved in the campaign to rid Africa of slavery. They were

strongly influenced by the Thoughts on Secondary Punishments, an attack on transportation written by Archbishop Whately in 1832. Whately was a philosopher and an economist as well as a churchman, and was the most eminent pamphleteer against New South Wales since Bentham. His work contained little detailed information on New South

Wales and much of that was wrong; its strength was the spirited demonstration from first principles that transportation must be an ineffective punishment and totally incompatible with colonisation. No convict, he said, was as wicked as the person who devised the plan of transportation to New South Wales.* Arguments of this sort impressed Russell and Howick who were determined to do what was right and not

what was simply convenient. They had a high sense of their responsibility. They were appalled at the state of society which had been

created in New South Wales, what Whately called a ‘monstrous excresence’,*® and they knew that if they did not act, it could well continue for some time yet since transportation was a convenience to Britain and the colonists. °’

Though Russell and Howick accepted the case against the present system of transportation, they did not want to abandon it completely.

They were deterred by the cost of alternatives and more by the realisation that 1f convicts were kept in Britain they would find it very hard to get work after their punishment was over. One thing was clear

to them — assignment of convicts to private masters in any circumstances would have to cease. But if convicts were employed on public works in the colony or confined in colonial penitentiaries, then transportation would be more acceptable. The difficulty was that not too many convicts could be sent because, on becoming free, they would flood into the colonial societies already overwhelmed by viciousness. So

alternatives to transportation to Australia would have to be provided. Penitentiaries were planned at home and more convicts were to be sent

to Bermuda. Finally Russell decided to abandon transportation altogether to New South Wales and to continue it on a reduced scale to Van Diemen’s Land and Norfolk Island. The convicts would remain of course in the government’s hands so that punishment and reformation could be properly controlled and ‘slavery’ avoided. Like most reformers,

Russell had a touching faith in the ability of warders and super-

26 Convict society and tts enemies intendents to avoid the capriciousness and tyranny to which private masters were thought to be particularly prone.”®

In the House of Commons there was one determined opponent of transportation in any form: William Molesworth, an ambitious young

Radical. The Radicals were increasingly impatient at the pace and scope of reform under the Whigs to whom they had given their support. Molesworth was among those who planned either to hurry the Whigs on

or to unseat them.** In domestic matters they had little hope of pressuring the government because the Tories would support the Whigs against moves for radical reform. But in colonial matters it was possible

that Tories and Radicals might find a common ground against the Whigs. Molesworth became a keen student of colonial affairs. He was in any case a supporter of the plans of systematic colonisation propounded by Edward Gibbon Wakefield which were being given their first trial in the new colony of South Australia. These involved the orderly sale and settlement of the land, the proceeds of the sales being used to pay the

passage of free workers so that convicts would not have to be used. Molesworth believed that transportation to the Australian colonies should be abandoned completely and that sufficient funds could be raised to pay for the migration of a free labour force if land was sold at a higher price.

In April 1837 Molesworth successfully moved in the House of

Commons for the establishment of a _ select committee into transportation.*° Lord John Russell, who had already decided that assignment at least must be abandoned, co-operated with him. As the instigator of the committee, Molesworth in accordance with the usual practice became its chairman. Russell and Howick were among those appointed to the committee and when it came to make up its report, they used their influence to prevent Molesworth from recommending in favour of the total abolition of transportation. They were happy to see the present system condemned and to use the committee’s evidence to support the changes which they had decided upon. Molesworth, as chairman, was in charge of collecting evidence and cross-examining witnesses. It was very easy to show that the assignment of

convicts to private masters produced unequal treatment and that this variety had nothing to do with the nature of the offenders’ crimes. Molesworth devoted himself to collecting the evidence which would demonstrate the moral corruption of the colonies. He was himself a

notorious libertine, but for his inquisitorial role he adopted the

standards of Wilberforce and collected a rich harvest of crime and depravity. Even so, like Bentham before him, he had to distort his evidence to support the central claim that the convicts were dragging the whole community down to their level. The evidence showed that the

first generation of native born Australians was remarkably honest. Molesworth also used ‘slaves’ and ‘slavery’ as magic words; one touch of

The enemies = 27

these and colonial society was left without a shred of decency. He brushed aside any attempt to consider how the convict might be

different from the slave.*!

The evidence and report of the Molesworth committee was the official, public indictment of the convict system in New South Wales. Britain now disowned what it had established. Sending convicts to New South Wales had never been an unquestioned part of public policy as the sending of them to the American colonies had been. The convict colony had been established just as the forces which were to destroy it were gathering strength. The penal reformers had already made their mark; Wilberforce had been converted to serious religion; and one week after the first fleet sailed the first anti-slavery organisation was formed. The new colony had a constant opposition. The British bequeathed to Australia not only disreputable origins, but scathing accounts of just how demoralised and debased the first European settlement was. Much of this criticism now exercises little influence on our views of early New

South Wales for we have lost Bentham’s certainty about crime and punishment and we have abandoned Wilberforce’s morality. But slaves

and slavery are a different matter. We still feel to the full the

indignation about them which spurred Russell and Howick to action.

Our present understanding of convict society is still very much influenced by the case which the anti-slavery campaigners developed and which was appropriated by the enemies of New South Wales. We must examine the claims that the convicts were like slaves, that their masters were corrupted by power and that New South Wales was similar to the slave societies of the Americas.

2 Masters and servants

When Lord John Russell or Lord Howick put aside their papers on transportation and slavery and drove home from Whitehall they had no reason to doubt that a footman would be there to open the door, that fires would be lit in the grates, and dinner would be cooked and served. A land-owner heading back to his home or estate in New South Wales had no such certainty. His servants might be brawling or drunk, or some of them might have run away or been arrested for a robbery in the town or on a neighbouring property. If a servant of the Lords of England did offend, he could be dismissed; and if he offended grossly, he could be dismissed without a character, that 1s without a reference necessary to get another job. This power, seldom exercised, was enough to secure

good servants and excellent service. In addition to the power of dismissal, all the masters of England could work their employees for long hours and pay them as little as the market would bear. The antislavery campaigners, who were mostly employers of labour, never

considered that these powers were excessive or likely to lead to corruption.

A convict servant who gave offence could be sent to court and awarded a flogging, but flogging was no guarantee of good service. Had it been so — and heaven knows there was enough of it — the land-owner in New South Wales could have driven home with as much confidence

as Lord John Russell. The power to hurt is one thing; the power to command constant obedience is another. If the slave holders of New South Wales were corrupt, it was not from having more power than the masters of England. To think that convicts were slaves who only worked because of fear of

the lash was a very poor preparation for actually getting work out of them. When the missionary L.E. Threlkeld arrived in Sydney from the South Seas his sympathy and zeal were aroused by the plight of convicts. He wrote off to the British and Foreign Bible Society asking for a supply of bibles for them and told the Society that the ‘white slaves’ of Australia deserved as much sympathy and concern as the black slaves of America.

He described New South Wales society as ‘a half slave sort of system

Masters and servants 29 where every man is a jailer and his servant does his work under the dread of the lash’. Threlkeld was troubled at having been the indirect cause of a convict being punished. The convict had been beating an Aboriginal woman and when Threlkeld intervened to protect her, the convict assaulted him, for which he received 75 lashes. In New South Wales Threlkeld became a missionary to the Aborigines and on his mission station and farm at Lake Macquarie he himself became a master of convicts. Here he discovered the limits to the power of the New South Wales slave holders. For a time he had compliant convicts received straight from the ship, but then he was given some tougher

characters. They were abusive and lazy; they feigned sickness; the skilled men pretended not to know their trades; they declared boldly they would never behave and told Threlkeld to return them to the government. Though it was ‘odious’ to his feelings, Threlkeld sent them to the court at Newcastle which had ordered floggings and periods in the cells. This made very little difference and besides took up a great deal of time. Someone had to be sent to fetch the constable, which took two days there and back. Taking the men into court took a further three days. Clearly it was better to punish the men on the spot. So Threlkeld

withdrew their rations of tea, sugar and tobacco which most masters

supplied as extras to the basic ration of flour and meat. This only increased their obstinacy. The shoe-maker who formerly made four pairs of shoes in one week now only made three ‘and once hardly that, two pair being only girls slippers’. The breaking point came when the men refused to accept their ration of beef. They dumped it outside the door of the store and said it was too

boney. It was a little boney, Threlkeld admitted, but they had been given extra weight to make up, and his own family were eating the same. The men also said in a cocky and mysterious manner that they were making a present of their meat to Threlkeld as they could do without it. He soon learnt why. They picked the lock of the store and took away nearly all the pork. Threlkeld gave up. He sent the seven men

back to government and asked for better replacements. The men had got what they wanted — after a period on the roads, which if they were lucky would not be too arduous, they would be assigned somewhere else and it might be closer to a town or a grog shop or to a highway with travellers and carts to be robbed and their master might let them have spirits and not make them observe the Sabbath. Threlkeld remained a dedicated and sensitive missionary to the Aborigines, but his zeal for the reform of the poor white slaves 9f Australia slackened. ' The man who wrote the most extensive first-hand accounts of New South Wales society in the convict era and upon whom historians have

drawn very heavily was, like Threlkeld, a committed opponent of slavery and thought of convicts as slaves. He was Alexander Harris, the son of a non-conformist minister of religion, who fell into disgrace and

30 Convict society and its enemies came to New South Wales in 1825. He lived and worked among convicts and labouring people and also had experience as an owner or manager

of a stock station. Before he returned to London in 1841 he became a

convert to evangelical Christianity which he had abandoned in his youth. In his two major works on New South Wales, Settlers and Convicts

(1847) and The Emigrant Family or The Story of an Australian Settler (1849), he gives a panorama of life and labour in the colony and particularly of social relations, both among working men and between them and their masters. As an observer of particular episodes, life styles and work situations Harris has no equal, but we will have cause to question some of his broader generalisations and judgements on society in New South Wales. His treatment of the convicts’ ‘slavery’ is a case in point. In Settlers

and Convicts he records visiting one farm where the convicts reported they were almost starved. ‘What else can be expected under this system of white slavery’, Harris asks. “The masters’ interest is to get as much as

possible for as little as possible’. So when the work is simple and undemanding like shepherding sheep, the master naturally says ‘Well,

the very lowest amount of strength a man can walk about with will suffice for this work: consequently if I only give this man a diet that keeps him alive I get all I want’. But such a simplistic account of the master’s interest is at odds with so much else in the book. In several places he refers to good masters — even in this same paragraph — who

clearly didn’t take this view of their interest. And in the extended account of shepherding later in the book a much more complex picture emerges. At most sheep stations the shepherds killed sheep illegally to supplement their own rations and to feed their dogs. Plenty of masters winked at this practice and reasoned thus “Well, the men must be fed and so must the dogs or the work cannot be done’. On one occasion Harris reports that he was staying in a shepherd’s hut where a newlyslaughtered sheep was hanging up. The master, one of the largest sheep

holders in the colony, called by and he nearly ran against the sheep before he saw it. But once he had seen it, he deliberately turned around, looked everywhere but there, and would not see it. Had he ‘noticed’ it,

he would have had to charge the men and lose some of his best shepherds.

To sustain the simplistic view of the master’s interest, Harris had to make out that shepherding was a straight-forward and simple task. All the man had to do was walk behind his sheep so he needed very little food. Though it was not a very physically demanding job, a shepherd was actually in a position of great responsibility, as Harris himself well knew. If he lost his flock and let the dingoes get to it, the master suffered a severe loss. Some stupid masters, Harris tells us, thought they would make the men careful by taking them to be flogged every time they lost

a single sheep. But this by no means had the effect they sought, as

Masters and servants 31 another of Harris's stories makes clear:

The hut-keeper counted in the sheep at the gate, the shepherd and his dog keeping them up. When the last was in, and the shepherd was turning away, the hut-keeper said, “Muikkey, you are twentyseven short.” “Be damned to it! No?” said Mikkey. “I tell you, you are.” “Count ‘em again.”” Again they were counted; again they

were short. Again they were put into the yard and the shepherd counted them out himself. “Twenty-seven short!” he said; “I may as well be flogged for a hundred as for these’; and he positively put the dogs of the station on them and sent them scampering in all directions through the bush. One master Harris knew who followed this harsh policy became aware of how self-defeating it was; he changed his system, left off flogging and became one of the best masters in the colony. The good masters may have been naturally generous or they may have had an enlightened view

of their self-interest; either way they didn’t behave according to the ‘white slavery formula to which Harris's analysis sometimes succumbed.* In the great crusade against slavery, the relations between the masters and slaves were usually depicted in a very misleading way. ‘Relations is

scarcely the word to use because it requires that there be two agents encountering each other. The opponents of slavery saw not a relationship but solely the operation of will and power. The slave was bought and sold, he was property, and so they reasoned that his master treated him as a thing and not as a person, a mere tool or instrument to do his bidding. Nowhere could slave masters in fact treat their slaves as things, because ‘things’ do not run away, answer back, rob, or go slow. When the opponents of slavery did recognise that slaves were not perfectly

obedient, it was only to see them being physically coerced and corporally punished. Certainly the chains and whips were part of slavery, but so were incentives, indulgences, days off, garden plots, promotions to lighter or more skilled and better rewarded work. Slavery

is forced labour but what masters want is willing workers. How they acquired or attempted to acquire them, with what mixture of punish-

ment and incentive, differed from place to place, from country to country. Establishing what form the accommodation took between masters and slaves and between free society and slavery has been one of the great preoccupations of historians of the Americas in recent times. It was understandably something with which the opponents of slavery were not very concerned. They painted a very simple picture and it was

this which Threlkeld and Harris and many others up to the present brought to their understanding of convicts in New South Wales. Threlkeld learnt his error the hard way; fortunately for us, Harris’s work transcends the anti-slavery propaganda which had influenced him so much.

32 Convict society and tts enemies Convict labour was forced labour, though the convicts were not slaves. From the very earliest times at Sydney Cove, the convicts assigned to the service of private persons were known as servants and were called

such by their masters. Being a servant and having a master was regarded then in Britain as the natural and proper position for working

people. That a man should be an employee only, responsible for his work but nothing else, was considered subversive of the well-ordered ranking of society and the deference and respect which inferiors owed to their superiors. All kinds of work, not merely domestic service, were associated with personal service and belonging to a master’s family or household. But though the relationship of master and servant was the ideal and was unchallenged in agriculture and in domestic service, which in the eighteenth century employed the bulk of the people, a growing proportion of working people lived outside its constraints. In

the country, working in their own cottages, were the spinners and weavers of the clothing industry; moving across the countryside were the

great gangs of navvies who built the canals and lived riotously; in the towns skilled workmen, casual labourers, street hawkers and porters constituted the ‘loose and disorderly sort’ who troubled moralists and magistrates and composed the town mobs. The inclusion of skilled workers in this list may be surprising to modern eyes. Skilled men later

used their higher earnings to pursue respectability; in the late eighteenth century they used them to buy more leisure time and drink. Many of the mechanics, as they were called, worked until they earned enough to support themselves and took the rest of the week off. They

were the most fervent worshippers of Saint Monday. In the largest towns, living among the most disorderly, was the true underworld of professional pickpockets, thieves and prostitutes. These people knew what a good servant was but their whole lives turned on outraging that ideal — only the suckers worked and touched their caps to the masters, the flash man tricked and robbed them. Fewer than half of the convicts sent to New South Wales came from the country. Nearly all of these were used to regular work and they were less likely to have been regularly involved in crime. Those sent from

rural Ireland were often first offenders convicted on very minor or trurnped up charges.’ A well-disposed country worker transported to Australia and assigned to a settler found it very easy to adapt to what was required of him. One of these wrote home to his parents: ‘all a man has got to mind is to keep a still tongue in his head, and do his master’s duty, and then he is looked upon as if he were at home’.* Here was a proper servant who had a fit sense of the obligation not only to work but to serve and please his master; to do his duty. But most of the convicts

had not been bred as proper servants. They came from the loose disorderly sort, chiefly from the towns; they were unused to regular hours, regular employment or hard manual labour; large numbers of

Masters and servants 33 them were professional thieves. The masters of New South Wales had to

struggle hard to get these people to work at all and it was they who forced the masters to settle for something much less than having good servants.

Making convicts servants We are now less ashamed of our convict origins and are more ready to honour the convicts for their pioneering work. The book published in 1965 which finally established the large professional criminal element

among the convicts nevertheless dignified them with the title The Convict Settlers of Australia. ‘Settlers’ is not a term Governor Phillip would have used. In those early trying days at Sydney Cove he thought enviously of how much easier it would be to found a colony when its people were settlers, eager to work hard to establish themselves. He had hoped for a ‘great and voluntary exertion’ from everyone after the first

landing, and had been bitterly disappointed.’ The convicts were extremely reluctant to work and stopped altogether when they weren't being watched. They hid the tools. They wandered off into the bush. Phillip was preoccupied with clearing and building; already the convicts

had their own occupations and diversions. They tramped across to Botany Bay to visit the French ship under La Perouse, which had arrived just after the first fleet, and begged to be taken on board offering to bring convict women as inducement. The seamen of the first

fleet ships, which still lay in the cove, came ashore and sometimes managed to bring rum to share or barter with the convicts who were forbidden to have it. The officers of the ships were taking on board the colony’s first exports — specimens of the native animals and Aboriginal artefacts. The convicts collected these and were paid in food and rum. The governor soon declared, fruitlessly, that this trade must stop. In it the convicts showed more persistence and enterprise than they gave to

their official tasks.2 The Aborigines were not happy at having their fishing tackle, spears and shields taken and retaliated by killing convicts

who were wandering in the bush. The wanderings and the killings continued. Sometimes there was harmony; the convicts regularly visited an Aboriginal family in a nearby cove, took them presents from what they could spare and danced and sang with them.’ Within months of the first landing, less than the full ration was issued and within two years the colony faced starvation. Its hope for a decent ration and survival depended on what crops could be coaxed from the

roughly-cleared grounds at Parramatta where the soil was more promising than at Sydney. Still the convicts wouldn’t work well. Phillip

thought that 50 good farmers would grow more than a thousand convicts. He had been fated to start a colony with men who had never

34 Convict society and its enemies known hard manual labour and who had been brought up in indolence and vice. They seemed totally irresponsible; they would rather consume rations from the store and live in idleness than work in the fields, and yet without more crops the store would soon be exhausted.* Coercing men into an enterprise does make them less responsible. ‘This madness of a penal colony at the Antipodes was not of the convicts’ choosing. They could reckon that before Phillip and the officers would allow themselves or the convicts to starve something would be done. As indeed it was — the Szrzus was sent to the Cape of Good Hope for supplies; to reduce the number of mouths to be fed some of the convicts were sent to

Norfolk Island; fishing parties were instituted; the Supply sailed for Batavia. Not if they could help it, would the convicts be the settlers of

Australia. No overseers had been sent out to control the work of the convicts. The military refused to have anything to do with the convicts or their work; the officers saw their job as strictly military, to protect the colony

against insurrection or attack. Even when convicts were clearing the land on which they were camped, they declined to take any of the responsibility for supervising. The overseers had accordingly to be chosen from among the convicts themselves. The best behaved were given the job, and the payment was freedom from physical toil. Official hours of labour were set down; apart from meal breaks convicts were expected to work the whole day. The overseers soon found that keeping convicts up to their work all day was a hard labour in itself and that at

the end there was very little to show for it. So they abandoned the official time scale and put the convicts on task work.’ A day’s or a week’s task was set down — so much land cleared, so many bricks made — and once this was finished the convict was free to go. At first officialdom was

loath to accept this — it was disruptive of good order and discipline to have convicts wandering around on their own affairs during the hours when officially all were meant to be at work. Two convicts were charged

for being absent from work from Wednesday morning to Friday morning ‘contrary to orders’, that is that they should work each day from sunrise to sunset. They said in defence they were working on task work and they had completed the week’s work by Wednesday morning and had gone off into the bush looking for ‘greens’. The court sentenced them to 100 lashes.° However very soon task work was accepted as the

norm and recognised at the highest level. It was practised on the government farms at Parramatta, to which Phillip himself devoted a great deal of personal attention since their success was so crucial. The governor was involved in negotiations with the convict farm labourers over hours, rations, and the amount of the task — so many rods to be broken per day with the hoe — the convicts being in a good bargaining position since there was no one else to do the work.’ In Britain task work or piece work was common for skilled workers and was a sign of their

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36 Convict society and its enemies superior status and greater independence. In agriculture it was very rare, for here masters could command good servants and expected them to work hard for long hours. In New South Wales, in the early days at

least, agriculture like everything else had to recognise the claim of labour to independence. , After their tasks were done, in what they ‘emphatically’ called ‘their | own time’, most convicts gave themselves over to ‘improper pursuits’ ‘ such as drinking, gambling or stealing.® If a convict hurried through his

_ task he could have a large part of each day or a couple of days of the _ week for these. Despite the whips and the exhortations to reform, the work and leisure habits of the ‘loose disorderly sort’ were continued in the new land. Some of the convicts regularly took extra work in their own time and most probably did so at some time. The skilled men were in most demand, but the unskilled could also get work fetching wood and water, doing other odd jobs or labouring on the farms of the small ex-convict settlers. The work they did in their own time was always better done than their government tasks. Bricks and nails made for private buyers were better than those made for the government. The grass cutters cut the inferior stuff for their government task and saved the best for when they would be working on their own account at the _ end of the week. The land on the government farms was just scratched

, over by the hoes. } ~~ "The convicts were paid for their extra work in goods. What they | valued most was spirits which under Phillip were not yet abundant. ' James Ruse, the first of the ex-convict settlers, employed convicts in their own time to clear a portion of his land. Their payment was to be ___ the first year’s crop.} This was the first of many profit sharing schemes.

The official hours for labour continued to be proclaimed, though most convicts were no longer working in accordance with them. An

individual or a gang who didn’t finish the task early had to stay at work until the day officially ended. A convict regularly doing less than his task would be liable to be punished for neglect of work. The official hours remained the rule for those convicts doing work which could not be easily tasked. Since most of these were doing light or administrative work they were better off than those swinging the hoe or dragging the

brick carts. There were many variations in the official hours. When rations were short, half days off were given to encourage the cultivation of gardens and in starvation periods, the hours for each day were greatly reduced. There were also alterations according to the season. For those on task work and their overseers a reduction in the official hours was the signal for a corresponding reduction in the quantity of the daily tasks. A half day off meant eight rods had to be hoed rather than sixteen. When Hunter, the colony’s second governor, arrived in 1795 he put the convicts on full ration and proclaimed a full working day, sunrise to

sunset apart from meal breaks. He was distressed to find that

Masters and servants 37 superintendents ‘without any authority’ were tasking the convicts — as they had done for years — and that as a result no government gangs

were at work in the afternoons. So entrenched was the habit of the afternoon being free for leisure or extra work that if the weather was

bad in the morning the government task for that day would not be done at all even if the afternoon was fine. Hunter denounced these practices in his public orders. Task work might be acceptable, he proclaimed, so long as the task was close to being a full day's work. He insisted that all

return to the official hours so that the amount of work that could be done in a full day could be established and then set as the task. After _ four years of fruitless proclaiming he gave up{ By 1799 the official hours —

acknowledged that the afternoon was the convicts’ own. At first the afternoon officially began at 1.00 pm. In the winter when work began later it was set at 2.00 pm, and if an hour was taken at breakfast at 3.00 pm.'® For some years alterations were proclaimed with variations in

rations and seasons and finally the official day became in all seasons: on Monday to Friday a dawn start, an hour for breakfast, and knock off at 3.00 pm; on Saturdays knock off at 10.00 am. Most convicts were still on task work and could well finish earlier each day or have some whole days at the end of the week to themselves. | In Governor Phillip’s time nearly all the convicts had been employed by the government. For nearly three years after Phillip’s departure and

before Hunter’s arrival, the government was in the hands of the New South Wales Corps and under their rule most convicts were transferred

from public to private service. Just after Phillip left, authority came from London for the officers to be granted land and they very quickly took advantage of this and set about farming. Each officer was allowed ten convicts who were still to be fed and clothed from the government

store, which also supplied the tools they used. The officers also employed large numbers of convicts in their own time to help clear and

cultivate the land and build houses and outbuildings. To give the government workers more opportunity to work for them, they reduced the hours of government work, and to keep Sunday as free as possible for extra work they abandoned one church service and scheduled the

other at dawn and put a time limit of three-quarters of an hour upon it.'' They paid for the extra work chiefly in spirits, but tobacco, sugar and tea were also used and highly valued by the convicts. Any work which their ten assigned convicts did beyond the official hours (or their

task) also had to be paid for. Under the stimulus of rum and the supervision of the work by those who were interested in its success, private agriculture boomed. The government farms were wound down. For the first time the colony looked as if it could become self--supporting

in food. The produce of the officers’ farms was bought by the government store to be issued out to the convicts — among whom were those, assigned and otherwise, who had grown it. The convicts were now

38 Convict society and its enemies raising their own food, just as the British government had hoped, but it had not expected that this would be with profit to private settlers and at continuing expense to itself.

Rum had become a key item in the economy and the officers controlled this trade as well as being the major cultivators of the land. They paid for the rum with treasury bills which they received from the

government store and by paymasters bills drawn on the regimental funds in England. The profits in this trade especially in the early years

were enormous. Its effects on the good order of the colony and the discipline of the convicts were disastrous. Cases of convicts and exconvict settlers drinking themselves to death were now reported.’ Convicts would do anything to acquire rum. Anything could be traded for it. Rum was not only a stimulus to work but also to robbery and

gambling. Convicts who gambled away their rations and then their clothes in an attempt to win rum or something to barter for it, then had to rob to survive. Drunkenness became as it was to remain, one of the most common of convict offences. To the convicts a passion for spirits was no new thing. This was another of their former habits which they reestablished in the new country. The three governors who ruled after the military regime — Hunter, King, Bligh — attempted to curb the flow of spirits. They were most disturbed by its effects on the small ex-convict settlers. Many of these traded away their crop for grog at very high prices, fell into debt to the suppliers, neglected their farming and lost their land. It was acquired by the officers or the ex-convict traders who began their commercial careers as agents for the officers but soon traded on their own account. The improvident habits of the small settlers and their exploitation by

the rum traders hindered agricultural progress and threatened the policy of making ex-convicts self-reliant on the land. To limit the rum trade these governors had to take on the New South Wales Corps which proved more than a match for all three. They got rid of Bligh in a coup on 26 January 1808 and for the second time they became the direct rulers of the colony. The blatant transfer of the colony’s resources into the officers’ hands in the years after Phillip’s departure marked the beginning of capitalism in Australia. One historian of socialist sympathies was so outraged at the officers’ behaviour that he described the convicts as being ‘withdrawn

from public service and zmpressed into the service of the farmerofficers!’ — as if more force was needed to keep them at private work than at public or that they regretted the change. The reverse was nearer the truth. In fact the officers were more accommodating to the convicts

than Phillip had been. They reduced the hours of public labour and

those who did not want to work in the extra time didn’t have to. Those who did work were paid liberally in spirits, which Phillip had forbidden

to the convicts and which became abundant only after his departure

Masters and servants 39 when the officers’ trading activities got into full swing. The officers did deals with the convicts in government work. They got convicts to work in their own time as well as the public’s to unload a ship which had to be

turned round speedily and then to cart bricks for the new barracks, which had been given top priority once Phillip left, by promising them days off equal to the extra time worked. When the tasks were done, the convicts claimed sixteen days free. Grose, the commanding officer and lieutenant-governor, was worried at their being free for so long so he gave them half a pint of spirits for each of the sixteen days on condition that they still did their government tasks.'* If work done is taken as a

guide, the convicts responded much better to the indulgences and incentives which the military offered than they did to Phillip’s gesture of

equality of rations between military and convicts. The military had smarted under this slur to their status and did away with it as soon as they came to power.

In the long term as well, the convicts benefited enormously by the shift to private agriculture supported by government purchase. The original aim for the colony had been that convicts should grow the food to support themselves. Phillip soon realised that public farming would never flourish because only those with a direct interest would expend the effort necessary to get the convicts to work. He urged that farmers and

settlers be brought out and that convicts be assigned to them. The settlers would grow enough to support themselves and their servants, but what would the market be for the rest of their crop? Phillip never

turned his attention to this. One of his officers considered that the

settler might live modestly and sell his surplus to supply the ships that called at Port Jackson.'? Had the colony developed in this way or had

public farms been retained the convicts would have had a bare subsistence, but, no matter what its proportions, their food and drink would have been local products. But the officers at a stroke took the colony beyond subsistence farming — either public or private — and gave it the means to trade on a large scale with the outside world. The

treasury bills they acquired at the government store were used to purchase rum, tea, sugar and tobacco and these were then given or paid or sold to the convicts. The consumption per capita of all these products in early New South Wales was outstandingly high and exceeded that of Britain. !® Even in the colony’s harshest pioneering days the convicts had more chance of regularly enjoying these than the lower orders at home.

The British government which had to honour the bills of the government store in its penal colony baulked at the expense and instructed Governors Hunter and King to reduce it. They were to do this by reducing the number of people ‘on the store’, and these included the convicts assigned to the officers, and by re-establishing the public farms so that the store could be supplied without purchase. At first Hunter was reluctant to interfere with the officers’ indulgences because as one

40 Convict society and its enemies who had lived through the starvation periods under Phillip he was impressed by the success of private farming. But London insisted that officers must support their servants and after a long struggle which was not completed until King’s rule they were made to do so. Hunter made

an attempt to revive government farming but he could do little since there were very few convicts available. Many had become free and the rest were in private service. Governor King made a more determined effort and was helped by the influx of new convicts. The old government

farms were worked out so he cleared new land at Castle Hill and concentrated public farming there. At its peak in 1803 it employed 280

convict labourers. King himself did not have much faith in public farming. The difficulties of finding conscientious overseers remained and King reported that the value of the crops raised did not equal the cost of feeding and clothing the convict labourers.'’ Mid-way through his term the British government informed him that he did not have to persist at undue lengths and the public farms again declined.'® Had public farming become successful there would have been no profit in private farming and fewer resources for trading. Though the British government wanted to reduce expenses, it was finally persuaded that the private sector was too strong to be denied and that it alone could assure the prosperity of the colony.

Convicts who were in private service, fed and clothed by their masters, still maintained the distinction between the task or the time the master could demand of them and their ‘own time’ in which they might

or might not do extra work. Governor Hunter had fought against the task work system; Governor King recognised it officially and published lists of tasks and their money value.'’ For example, by an 1804 order, a

convict planting corn had to do one and a half acres per week for his master and the payment for corn planting was given at 6s 8d per acre. If in his own time a convict planted another acre of corn (beyond the one and a half acres of his task) he was entitled to be paid 6s 8d, which he usually received in goods. A rate per day was also set down for convicts doing extra work other than what was tasked. If a convict worked for two hours beyond 3 o'clock on five days of the week, he had worked ten extra hours which was computed as one day’s extra work. By the official raté this was worth ls. A free market situation operated for extra work

and the official rates were frequently exceeded. If a neighbouring farmer would pay more the convict was free to do his extra work there. The official rates were in part an attempt to keep these wages down. They also indicate how well the convicts were maintaining the customs of the foundation years and how far they were from being good servants. During the long governorship of Macquarie (1810-1822) the convicts began to lose their customary rights over the times and method of their work. Macquarie came to the colony to re-establish lawful control after the rebellion against Bligh. He was a great builder of roads, courthouses

Masters and servanis 41 and churches; he laid out new towns and refashioned Sydney; he encouraged decency and marriage. He also worked to make the convicts proper servants.

By an order of 1814 masters were required to return their convict servants if they could not employ them in their extra time.”° Small masters often did not have extra work to give or could not afford to pay for it, so their convicts would be at large in their own time seeking work

in other places. This freedom was an inducement to robbery and dissipation and Macquarie hoped to end it by limiting all convicts to one master and one place. He also forbad the equally dangerous practice of small masters paying for extra work by profit-sharing arrangements. If convicts were allowed to grow grain or own stock on their own account, they could more readily become receivers of stolen property which could blend with their own and make detection difficult. These orders were

largely ignored; they expressed Macquarie’s ideals rather than his practice for, had they been enforced, small masters could not have survived.*' With his own servants however — those employed on public

works and government services — Macquarie did make significant changes which in time affected those in private employment as well. In May 1819 the governor's builders had completed a three-storied

convict barracks at Hyde Park. It was designed to house all the convicts who were working for the government in and around Sydney. Until this time, convicts had devoted a part of their earnings from extra

work in their own time — after 3.00 pm or when their task was complete — to pay for their lodgings in a private house or pub. Macquarie’s plan was that convicts should now work for the government

the whole day — mornings and afternoons — and sleep in the new government institution at night. For the first time in the thirty years of the colony's history, convicts were to be under constant surveillance, to be locked up at night and their ‘own time’ was to be taken from them. Clearly this was to be a very difficult operation and Macquarie had to

move cautiously. The new work regulations and the rules for the barracks were published in the Sydney Gazette and placarded around the town. They began with the falsehond — which has been copied by historians — that convicts had only been allowed their ‘own time in

order to earn enough to pay for their private lodgings. That was certainly one of its functions in Sydney and other towns at the time, but the practice had begun in the first months at Sydney Cove when convicts

were living in huts which were provided for them or which they had built for themselves in a few days. It had continued in private service where convicts were housed on their masters’ property and did not have

to pay for lodgings. Of course the truth of the matter could not be stated: the convicts had only been brought to do some work for government when they had had a good part of the day to themselves. It was that indulgence which Macquarie now wanted to end, and he would

42 Convict society and its enemies need, as he well knew, more than a mythical account of its origins to succeed. In return for doing a full day’s work for the government, the new rules announced that the ration would be increased by half — to one-and-a-half pounds of flour and one-and-a-half pounds of meat per day, plus vegetables. Though the convicts were to be confined to the barracks and its yard every night of the week, they were to be allowed

out on the weekend. Saturday they could have free to work for themselves around the town, and after church Sunday morning — where they were to appear, hands and face washed, shaved, with clothes well brushed and shoes cleaned — they were to be at leisure in the town. After one year in barracks those who had already served three years of their term were guaranteed a ticket-of-leave, which enabled convicts to work on their own account and, with certain restrictions, to live as they pleased. Those who had already served four years without committing crime were allowed to sleep out of barracks as were all married men of good character. When the rules were first published those who were to be allowed to sleep out of barracks were worried that they would miss out on the promised tickets-of-leave which were offered only to those who went into the barrack. A subsequent order extended the promise to them. Would all these inducements be sufficient? How could 600 men who had gone off to their own lodgings every afternoon be made to turn their

steps on the one day to the new barrack gate? Macquarie found the answer. He fixed the day for going into barracks on the King’s birthday. He announced that no work would be done on that day and at midday a

feast would be given in the mess hall of the new barracks for all the

convicts whose home it was to be thereafter. And after the feast — here an old New South Wales formula was made to work for new ends — a half pint of spirits would be given to each convict. On the morning of

the King’s birthday all the convicts who were in the jail gang as a punishment had their sentences remitted by the governor — ‘at the particular request of Major Druitt, the Chief Engineer’ who was in charge of government work in Sydney — and were allowed to rejoin their old gangs at the barrack feast. At 1.00 pm the governor, his Lady and Master Macquarie and the two judges came to the barracks while

the dinner was in progress. The governor congratulated the men on their enjoyment of a house and being better off than before since now all their needs were taken care of. He promised favour and indulgence to the well behaved and severity to those who persisted in crime. The governor and the judges then drank to the health and future comfort of the convicts. When the governor and his family left, they received three cheers ‘from the grateful people, who all appeared to be happy in their new condition’.** Here at last were the outward signs at least of good order, deference and gratitude, of good servants responding as they ought to a benevolent master. We know however that most convicts

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all been determined to gain economic independence when their sentence expired, the convict system would have been much harsher. Either what opportunities there were for ex-convicts to become their own master would have been removed, or the ticket-of-leave would have been abandoned and much more use made of the extension of servitude as a punishment for convict offences. We can now better understand why the convict system was not merely

repressive — concerned with the maintenance of discipline and the

Convicts and society 101 extraction of work — but also allowed the indulgence of a humane concern to assist some convicts to early freedom. The magistrates who

ordered floggings week after week were the same men who wrote approving sentences at the foot of petitions for tickets-of-leave, pardons

and other indulgences. In doing this work the magistrates were considered by the government as far too lax and generous. But in helping to free these convicts, the magistrates were not for the most part freeing them from the workforce, and in differing ways they continued to maintain a jurisdiction over them and their work. Ex-convict workmen were subject to the Masters and Servants Acts. Initially the magistrates administered the English law as modified by the governors’ orders but in 1828 the legislative council passed a local Act

‘for the better Regulation of Servants, Labourers and Work People’. This measure and later amendments are sometimes considered as signs of how readily the masters of New South Wales applied to free men the

harsh measures which they used against convicts. But masters in England, where all labour was ‘free’, had little to teach masters in New South Wales about the use of the law to control offending servants. The

local Act was based on English law and differed from it only in providing six months jail as a maximum punishment instead of three months of hard labour in a house of correction. The New South Wales Act provided for this as an alternative maximum punishment (and so indicated its respect for English practice), but since the colony didn’t have houses of correction it doubled the term of imprisonment without

hard labour in the common jail.” In both countries the rights of free men were well established and respected, but the notion that a labourer should be free, as we understand the term, was subversive of the control and discipline which was proper in the master-servant relationship. As a

free man, the labourer entered a contract with his master which then bound him to his duty and which the court would enforce. Under the New South Wales law, if a man left a job before his contract expired or if he neglected or skimped his work he was liable to be imprisoned and forfeit all or part of the wages due to him. If he lost or damaged his master’s property he had to pay double damages or go to jail. Servants could bring actions against masters who ill used them and could collect damages to the extent of up to six months wages.

In the New South Wales countryside, as in England, labourers contracted to serve their master for quite extensive periods of time, usually a year. Wages for country work were given as so much per year,

whereas 1n Sydney shorter terms and weekly wages were the norm. Wages in the country were not generally paid in cash, but in cheques and orders on Sydney agents. When settlement day came a worker quite commonly was found to have already drawn a good part of his wages as

goods from his employer's store. Free workers were issued with the standard convict ration as part of their wage, but they consumed more

102 Convict society and its enemies (particularly extra tea, sugar and tobacco) and they drank rum which was not usually issued to convicts. These transactions were a source of

considerable conflict between masters and servants. The workers

objected to the high prices charged for the goods which were set by the masters well above Sydney prices to cover the costs of transport and to give them a profit (and to reduce the cost of wages). The masters were the losers when men drew goods from the store and ran off before they had done the work to pay for them. The temptation to escape was very strong for a man who had consumed all his wages early in his contract

and faced the dismal prospect of living on standard rations until his debt was paid off. The men called this ‘riding the dead horse’.°® Whatever the laws, the shortage of labour in New South Wales made

the lot of the labourer far superior to his counterpart in Britain. The fear of the sack or not having his employment renewed no longer operated, nor did the employer’s practice of demanding that a man bring a good character from his previous job.*’ Nevertheless the law was

regularly invoked to keep men to their contract. Most cases before the courts were brought by the masters and their word was given more credence than their servants. On the other hand, the magistrates and the Court of Requests (a small-claims court) ruled for the men when cases of masters not paying wages were brought before them.°® The most

pressing issue for the employers in master-servant relations became the punishment for neglect in the care of sheep. Without recourse to the court, sheep masters docked the wages of shepherds for loss of sheep, a practice which the men had to accept since the legal penalty for loss was

payment of double damages. Though free shepherds cost more than convicts, the docking of wages was a more effective deterrent (and for the employers more rewarding) than flogging.»*” A ticket-of-leave man was under stricter control. In law he remained a convict and for neglect of his work and any misbehaviour his ticket was removed and he was returned to the ranks of the convicts. ‘his was the most effective encouragement to good behaviour that the colony

discovered. It operated to better effect on men who were generally better behaved than the rest, or who at least were more useful and willing workers. There was no economic restriction on the ticket-ofleave men — the early attempts to keep their wages below those of free labour were soon abandoned. In fact the ticket-of-leave men were the elite of the workforce and were preferred as constables and overseers in

private employment. The 1826 assignment regulations of Governor Darling had insisted that absentee masters must employ a free overseer, but the next regulations in 1835 recognised the common practice and allowed overseers for absentees to be ticket-of-leave men.°° Even after a ticket-of-leave man became free the fact of his having had a ticket stood him in good stead and he was preferred to the man who had served his full term as a convict.

Convicts and society 103 Under Darling new restrictions were placed upon the ticket-of-leave

men which ensured that nearly all of them would have to become employees. They were forbidden in future to hold publicans’ licences or to have convict labour assigned to them which severely reduced their chances to set up their own business or to lease land. Moreover tickets

were to be valid only in a specified district to be determined by the government so that ticket-of-leave men could be directed to work where

they were most needed. If they wanted to travel out of the district to which they had been allotted they had to seek permission and carry a passport.®!

The more control they had over ticket-of-leave men and ex-convicts the less likely magistrates and masters were to put barriers in the way of convicts becoming free. However, the control was far from being such that the convict lost interest in becoming free. The ticket-of-leave man

and the ex-convict received good wages, lived much better than the convict, could choose his master and was no longer liable to be flogged.

An incident on Mr. Bracton’s farm in Harris’s novel The Emigrant Family allows us to see the ex-convict enjoying his advantage though still

subject to control. It is Saturday afternoon and the workers, free and

bond, have come in from all parts of the property to collect their rations. The flour has been delayed on the road and, though the master

promises to make up the ration in full as soon as it arrives, the men decide not to return to their posts until they get their allowances of flour. It happens that the local magistrate arrives just in time to witness

this rebellion. He rides up to the men and berates them for their ingratitude to the master whom he knows to be the best in the district. He calls for those who are prisoners to stand to one side and tells them to

take what’s available and return to their stations or be flogged on

Monday. The convicts, cowed, hand in their ration bags. The

magistrate turns and rides away knowing that his power over the free men depended on the nature of their agreements with their master — it may be, for instance, that they had a contract stipulating that so much in rations would be provided — and in any case action could only be initiated by the master himself. ‘I suppose you wouldn't like to flog any of us, would your’ jeered one of the free men as he rode away. The magistrate turns and recognises the man who has spoken. He had run away from a neighbouring employer leaving behind a debt of £15 for overdrawn wages. This gave the magistrate the advantage: ‘I don’t wish to interfere in any affairs between masters and their hired servants. But Pll tell you this; Captain Scobell made great enquiries after you at the

time... If he finds you now, I very much doubt whether he won't prosecute you, still.’ This threat was presumably enough to bring this man, if not the rest, into line. But there 1s no doubt of the magistrate’s

comparative weakness in regard to the free men or the confidence behind that jeer about the immunity from flogging.

104 Convict society and its enemies When the magistrate in the story rode up to the men he could not distinguish the band from the free. They dressed alike, did the same work and collected the same basic rations. This was typical of employment practices in the colony generally. By the 1820s there were some types of work — fencing and clearing stumps — for which free men were employed almost exclusively.®® On the other hand, labouring with

a hoe was performed almost exclusively by convicts who were all the smallholders could afford to employ. But in all other categories of work

convicts and free men were both employed — this was true of shepherding, shearing, ploughing, reaping, bullock-driving, clerical work, and schoolteaching. In some skilled or demanding work convict workers were paid the same as their free colleagues.®* Just as employers varied in their legal status — being both free migrant and ex-convict —

so the workforce encompassed ex-convicts, convicts, and in time

increasing numbers of native-born and free migrants. | It was the arrival of growing numbers of free migrant workers in the 1830s which threatened the unity of the workforce. They were reluctant to associate with convicts and masters made some attempt to house and

work them separately.” The convicts and ex-convicts resented the preference which was shown to the migrants as superior workmen and

the migrants in turn were angry to see wage rates undercut by the employment of convict mechanics. The tension would have been worse | if the 1830s, when working-class migration and transportation operated ~ together, had not been prosperous. A prolonged tension between the — . two groups would almost certainly have led to work being divided much more according to legal status. When the British government attempted to resume transportation in the late 1840s the working-class migrants were a vital force in the opposition movement.

Our best guide to the organisation of the workforce is the 1828 census, which was taken before there were significant numbers of free migrant workers. The head of each household was required to list the names of each person in his family and those he employed and to supply details of their occupation, religion, legal status and so on. He was given

no instructions as to the order in which he should place the names. Fortunately a good number of these householders’ forms survive and in those from the large properties which employed convicts, ticket-of-leave men, ex-convicts and native-born we can gain glimpses of how work was organised and how the master saw his household.* One master, George Innes, a stockholder at Bathurst, listed his family first and then his employees according to their legal status; one man had come free, one was born in the colony, four were free by servitude, two held tickets-of-leave, and then 19 convicts completed the list, except for George Innes (Jnr.) a black lad, a native of the colony, as house-servant. What is notable about this form of listing is its rarity. Where there is a pattern — on many forms people seem to have been listed at random —

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106 Convict society and its enemies it is more likely to be household servants first, then the skilled men, and finally the labourers; or a listing according to place of work: household,

stables, blacksmith or carpenter’s shop, outstations. As it happened

George Innes’s listing by legal status meant that he had roughly categorised his men by function. His overseer came first — he had come

as a free emigrant. The one man born in the colony was a carpenter. Most of the ticket-of-leave and the ex-convicts were skilled men. Functions only became seriously jumbled in the listing of the convicts, for some of these were skilled men and some shepherds. In contrast to this most of the returns which listed men by function or place of work gave a very jumbled ranking according to legal status. The overseer might be a ticket-of-leave man and so he was listed before ex-convicts, and sometimes, against all the regulations, a convict would be overseer and so rank above ticket-of-leave men and ex-convicts. Bond and free

were mixed together in the ranks of the skilled and again in the unskilled. We can see in this how the customary differentiations according to function and skill not only defined the place of a convict (no matter what his crime), but imposed themselves on bond and free together. A master asked to describe his household was more likely to

think of what men did and where they were, rather than their legal status. Of course the difference in legal status was not insignificant — the master had to be aware of it if he wanted to punish a man and he well knew that ex-convicts and ticket-of-leave men had to receive wages and convicts did not. The men themselves would have been even more acutely aware of these differences, but in the day-to-day routine they would have been overborne by other realities: the bonds between men doing the same job, the distinctions between those who gave orders and those who obeyed them, those with skills and those without, and those at the head station and those out on the run. The census takers had a difficult task in processing the householders’

forms. They had to produce aggregate figures on the numbers of convicts, ex-convicts, ticket-of-leave men, native-born and_ free migrants. On some of the forms we can see them at work, putting small numbers beside the names and keeping running totals of each category in the different households. With these small markings they took apart

the world of work so that the colony might be depicted for Governor Darling and the Colonial Office and all who read the summary figures then and since, according to the legal status of its people. We must be careful not to follow in their footsteps.

The law and convicts’ rights Convicts were reduced to bondage by due process of British law. Unlike the slave-owners of America, the masters of New South Wales did not

Convicts and society 107 have to justify their use of forced labour. As the slave societies came under attack from the late eighteenth century onwards, they elaborated more complete ideologies to justify the bondage of their slaves. In New

South Wales we look in vain for a local ideology of oppression. In believing that convicts should be made to work the colonists were affirming no more than what British law had laid down as punishment for crime. Though conviction before the law justified the ‘enslavement’ of the convicts, their conviction was not something that was harped upon in

New South Wales. As the critics of transportation never tired of pointing out, the colonists took no particular notice of the convicts’ past

crimes; it was their previous occupations in which they were most interested. An habitually harsh master or a temporarily angry one might berate his men as ‘convict scoundrels’, but generally the term convict was avoided. Convicts were referred to as assigned servants or

government men.' Had the convicts’ subjection been a matter of criticism or in need of defence, this delicacy would have been the first

thing to disappear. It was made possible because the subjection of convicts had been put beyond question by the most revered and respected of British institutions. Only a quarter of the convicts were sent for life.* For most the law

which subjected them to forced labour also set the period for their release. Until the mid 1820s only a few convicts were held beyond the term of their original sentence. The magistrates frequently sentenced prisoners to penal settlements, but whatever the terms of these colonial sentences of retransportation, the convicts became free on the expiry of their original British sentence. The rest of the colonial sentence was annulled. The commandant of the Newcastle penal settlement did not hold records of the convicts’ original convictions. As soon as convicts

declared that their original term was served, he sent them back to Sydney since he did not want the responsibility of retaining them further.’ The convicts who did serve longer than their original term were those who had been tried before the criminal court for serious crime and who escaped the death penalty. The court had the option to award a sentence of transportation instead of death — these sentences were served in addition to the original sentence — and the governor reprieved some convicted criminals on condition that they serve for life. Commissioner Bigge wanted the magistrates courts to assume greater powers, and the New South Wales Act of 1823 on his recommendation laid down that sentences of transportation imposed by the magistrates should be served in addition to the original imperial sentences. Thereafter about a quarter of the convicts served more than their original time for this was the proportion sentenced to the penal settlements or chain gangs. The New South Wales Act also gave magistrates the power

to extend the period of servitude (without transportation to a penal

108 Convict society and its enemies settlement) as a punishment for lesser crimes committed by convicts.

The power was seldom used and this punishment was dropped altogether when the legislative council drew up its own penal code for convicts in 1830. The governor sometimes had difficulty in establishing when men became free because the convict-ship indents, which listed the date of conviction and other particulars of those on board, were not always

complete. This was particularly the case with the Irish boats. The governors then had only the convict’s word as to when his sentence expired. Governors Phillip and Hunter kept men at work even though they claimed to be free and urgently requested accurate information on

their sentences. Meanwhile the men were very discontented and threatened opposition to all authority.° Later governors, fearing prosecutions for wrongful imprisonment, were more circumspect. In doubtful cases Darling and Bourke gave men tickets-of-leave while they sought the necessary information. ° In most cases the claim to freedom was made without difficulty. A convict would declare himself free and the local magistrates would send him down to Sydney for his identity and sentence to be checked on the

indent. Darling wanted to stop the journeys to Sydney and instructed magistrates to conduct the business by post; they would send down a description and the claim about conviction date and if all was in order a certificate of freedom was returned.’ The certificate of freedom was a New South Wales invention, made necessary because in a society of convicts an ex-convict needed a ready means of indicating that he was a free man. The certificate proclaimed that the holder was ‘restored to all the rights and privileges of free subjects’. This pronouncement went beyond what the British law allowed because for some offences the undergoing of punishment and even a pardon were not sufficient to restore full rights to the offender.’ Convicts in New South Wales were regarded as servants and so the relationship with their masters was conceived of in terms familiar to British custom and law. The classification of the convict as servant did not strain the customary meaning of that word very much. The convict servant was obliged to remain with the master to whom he was assigned,

but the free labourers of England were commonly bonded to their masters for long periods and could only break their contracts under severe penalties, formal and informal. For many years the convict servant received wages — first for extra work and then a fixed annual amount in lieu — and after the obligation to pay wages was removed in 1823, some payment especially to the skilled continued to be made. The

offences in the convict labour code — _ neglect, disobedience, drunkenness, abusive language, and absconding — would certainly have been regarded as intolerable in a British servant and would have formed grounds for dismissal or action under the Masters and Servants

Convicts and society 109 Acts. The convict differed from the British servant in his liability to be flogged for these offences. This penalty was applied not by the master, but by the law, and the law which punished the convict was in theory at least also his protection against ill usage — the convict could complain

to the magistrates about his master. In practice the law protected convicts very imperfectly, but it was effective in protecting them from the larger claims to authority which the masters would have made if

they had come to exercise this unaccustomed power themselves, as indeed some had only been too ready to do until thwarted by Governor King. Punishment by process of law was not as degrading as punishment by private power alone. In the magistrates courts the great majority of cases in which masters

complained of their convicts were settled in the masters’ favour. However, the masters’ hold upon the court was not quite as strong as it is

usually depicted. It is incorrect to assume that because the unpaid magistrates were masters themselves they would always be anxious to oblige their fellow masters. The magistrates had a general interest in

maintaining convict discipline, but they were superior men both in

wealth and education and so were free from any personal ties or

obligations to the middling and small masters. How better to

demonstrate their superior status than by carefully examining the com-

plaint of a convict against a small farmer and perhaps reproaching the master and even taking his servant from him? Magistrates were also

to some extent competitors with other masters in the struggle to find good servants and their court could be used to transfer likely men from ‘unsuitable’ masters to themselves. It was presumably to this interest that one convict was appealing when he ran from his master and told the local bench that he would work hard for a year for any gentleman if he were given a ticket-of-leave.° Convicts brought before the courts by their masters would frequently allege some form of ill-treatment in extenuation of their offence. The courts usually gave little credence to these counter-charges. They took much more notice when convicts arrived alone to lay charges against

their masters. Since the convict ran the risk of being punished for bringing false or malicious charges, it was likely that there was some basis for his complaint. When a convict arrived at the court he was held there or at the lockup if necessary until his master could be summoned to appear. When Ralph Rashleigh fled from his tyrannical ex-convict master Arlack he had to be held in the local lockup for a week until the court sat. There he would receive only bread and water, so Rashleigh accepted the constable’s invitation to work for him and be well fed until the court met.'° In the towns and in the closely settled areas nearby it was relatively easy for a convict to have access to the court. He slipped out of the house

or left his work in the field and he could be at the court before the

110 = Convict society and its enemies master knew he was missing. Where the convict was some distance from the court — it might be 50 to 80 miles in the new pastoral country — it was much harder for him to make a complaint. If he left his master’s property without a pass he might be picked up as a runaway before he reached the court. Masters were required to give servants a pass if they wanted to make a complaint at the court, but asking a master for a pass was tantamount to requiring him to confess his guilt. A master faced with a request for a pass might well threaten to bring his own charges

against a convict for some shortcoming in the past or future if he persisted.'' A boy who had been horsewhipped in the field reported that when he had asked for a pass to complain his master had whipped him

again and then told him to go to the magistrates. (The master was summoned and fined ten shillings.)'* If a pass was refused, a convict had

no recourse but to take the risk and run for it. Alexander Harris, who according to his story was clerk to a country court, records that it was then a race between master and man, the master to report his servant to the police as a runaway, the convict to complain to the court of his master.'’ In one such case the master caught up with his man on the road and attempted to ride him down." In judging whether to lay a charge against his master, the convict had to consider the reputation of the magistrate. Some magistrates were known for their sympathetic treatment of convicts and so could be approached with confidence, or their names were used by convicts who threatened to appeal to them in the course of the day-to-day struggle between master and man.'”

General charges of ill-treatment and oppression levelled by the convict against his master were not likely to get very far, but if he could show that his master had clearly violated the local rules and regulations governing assignment he had more chance of success. The prohibition against striking a convict was well nigh absolute. A harsh master who

could suppress by bluffs and threats most attempts by his convicts to approach the magistrates was nevertheless in a convict’s power if he lost control of himself and struck him.'® This was the charge the magistrates would always attend to. A small fine or a recommendation that servants

be withdrawn was the usual punishment for masters. The harshest penalty I know to have been inflicted on a master was twelve months imprisonment and a fine of £20 in a case where the servant’s hand had been severely wounded.'’ Given slightly less importance and somewhat

more difficult to police was the provision of adequate rations and clothing. After Governor Brisbane abandoned the requirement for private masters to provide the government ration, disputes about food became more difficult to settle. The convicts sometimes claimed as a right the tea, sugar and tobacco which were regarded by masters as

extras and hence removeable as a punishment. Governor Darling reinstated an official ration scale for those in private service in 1831 which did not include these ‘luxuries’. Convict claims about the amount

Convicts and society 111 of work they were required to do were more readily settled in the days when task work was common. Cases were held over while a constable was sent off to measure, for example, the number of rods hoed.'* In the 1820s and 1830s there were no longer any official regulations about the amount of work which constituted a fair day’s task though customary standards — the ploughing of an acre a day — could still be appealed to. This absence was most significant for the shepherds who were asked

to mind larger and larger flocks. One magistrate said he would not punish men for losing sheep because they were set an impossible task, but he was a rarity. '9 In earlier times the courts distributed very rough justice, but by the 1820s and 1830s the due process of an English court of petty sessions was generally observed. Magistrates were prohibited from hearing cases involving their own servants. Evidence was given on oath and both the charge and witnesses’ statements were taken down in writing. Convicts were given the opportunity to question the evidence brought against them and to speak in their own defence. Speaking their mind here — within limits — was not construed as insolence as it could well be on the farm. On some occasions, especially in the more remote centres, courts fell short of these standards. Men were sent to the magistrates with a pass and a note explaining their offence and convicted on this evidence alone. *°

‘The magistrates’ power to punish convicts for any crime not capital and for their offences against the labour code was not founded in any

express provision of the law or charters which had established the colony. There was accordingly no official stipulation as to the nature or

extent of the punishments they could award. Flogging was their standard punishment and sentences of several hundred lashes were common in the early years. Some limit was first imposed to these by the exhortations and orders of Governor Macquarie who was an opponent of severe corporal punishment. He increased the number of jail gangs to provide an alternative to flogging and ordered that a magistrate sitting

alone should not award more than fifty lashes. The magistrates were unwilling to accept such a marked reduction on their previous practice and the new maximum became in practice a hundred lashes, with fifty being the number most commonly given. Magistrates sitting together also adhered to these limits. While Bigge was in the colony, and at his suggestion, Macquarie also gave instructions that only a court composed of at least two magistrates could sentence convicts to transportation to Newcastle, a restriction which they did not always observe.*! The British parliament regularised the jurisdiction of the magistrates in the 1823 New South Wales Act and an addendum in 1825,” but in doing so conferred upon the magistrates more powers than they were in fact exercising. For the punishment of crimes not capital it allowed the magistrates to impose sentences of transportation of up to three years

112. Convict soctety and tts enemies (which were now to be additional to the original sentence) or simply to extend the period of sentence (a punishment not previously used). For offences against the labour code it provided whipping as a punishment with no limit as to the number of lashes except that it was not to extend

to ‘privation of life or member’. Contrary to what Macquarie had allowed or Bigge recommended, all these powers could be exercised by a

magistrate sitting alone, and so there was no distinction between his jurisdiction and that of a bench consisting of two or more or the quarter

sessions, the court composed of all the magistrates of the district meeting once a quarter. These new and increased powers of punishment did not lead to any significant changes in practice — the power to extend the sentence was only sparingly used and a hundred lashes remained the usual maximum flogging. When the local legislative council assumed control over the inferior courts, it placed much more restriction on the magistrates than the imperial parliament had done. In 1830 the council took from the single magistrate all jurisdiction over crime, leaving him to deal only with offences against the labour code.*? Under an Act passed in 1832 two or more magistrates constituting a local bench lost their control over the more serious non-capital crime to the quarter sessions which alone could award transportation to a penal settlement. In all courts fifty lashes was set as the maximum flogging for a first offence, and a hundred for a second. A single magistrate hearing offences against the labour code could in no circumstance award more than fifty lashes.” The magistrates were unwilling to accept this last restriction. In the smaller more remote centres the bench was usually occupied by only one magistrate and so persistent offenders here could not receive more than

fifty lashes. This limitation became a rallying cry for the opponents of Governor Bourke, who had proposed it to the council, and in practice it was evaded by ‘splitting’ of offences, that is by dividing the convict’s

misbehaviour into two separate offences each of which could be punished by up to fifty lashes. Masters and magistrates did not regard this as illegal and defended the practice by arguing that if, for example,

a man deserted his flock that was absence from work and clearly deserved punishment; if while he was away sheep were lost or destroyed that made the offence more serious and he was legitimately also charged

with neglect. One magistrate explained the circumstances in which offences should and should not be split — if a man was insolent and afterwards refused to work that was clearly two offences; if a man was

drunk and insolent that was only one since the drink led to the insolence.*? Apart from this evasion, the process of transferring to the more broadly-based courts the imposition of the severer punishments went on unimpeded.

In contrast to the rough, summary justice of the magistrates, the colony’s criminal court where convicts were tried for serious crime was

Convicts and society 113 conducted, on the whole, with scrupulous impartiality and with firm adherence to the principle that the accused was innocent until proven guilty. Acquittals were common — between a quarter and a third of those charged went free.”° In form the criminal court established at the colony’s foundation was

like a court-martial. It was presided over by the judge-advocate, a military officer whose usual function was to give legal advice to courtmartials, and its other members were six military or naval officers. A majority vote was sufficient for conviction. The judge-advocate drew up the charge against the prisoner, conducted the case against him, and had a vote with the other officers on the verdict and sentence. He was

committing magistrate, prosecutor, and juryman as well as judge. David Collins, the first judge-advocate, was a conscientious officer, but

he was not trained in the law. Though its organisation and personnel were very different from an English criminal court, the colonial court took pains to follow the English model in its procedures. The legal historians who have examined its early records are impressed by its performance.*’ The prisoners were charged only with crimes known to the statute and common law of England and in their details the indictments followed the English precedents. The forms of proof required by English law were used. Prisoners were heard in their own defence and

were allowed to carry out a careful and close cross-examination of witnesses. Subsequently the bringing to Sydney of the witnesses whom a convict requested for his defence involved the government in considerable trouble and expense, which it continued to bear even after convicts used this opportunity to bring fellow convicts to Sydney who in fact had no material evidence to offer.”® As in England, a mistake in the indictment — an incorrect spelling or an inadequate address — was regarded

as fatal to a conviction, for the punishment of most of the crimes tried before the court was death and in these cases the prisoner was given the benefit of every doubt. After the departure of the first judge-advocate, there was a falling off in the quality of the court’s deliberations and in some cases the military officers were clearly using it to defend their commercial interests and to pursue their vendetta against the governor — but these were not cases involving the commission of crimes by convicts.*? After 1810 the position

of judge-advocate was held by a lawyer and the arrival of a new regiment to replace the New South Wales Corps provided the material

for a less partial court. In the next ten years there were only three verdicts which aroused general dissatisfaction.*° They involved cases in which there had been conflict between military men and other members

of the community and a question of honour between children of free migrants and convicts. In 1823 the British government reorganised the legal system of the colony. The new supreme court which the New South Wales Act of that

114 Convict society and its enemies year established was to hear criminal cases. It was to be presided over by

a judge learned in the law, prosecutions were to be conducted by an attorney-general and a jury was to determine guilt or innocence. The only significant departure from English practice was in the size and composition of the jury — it was to be formed by seven military or naval

officers. The presence of military officers in the jury became an important political issue in the colony with the liberal/emancipist group arguing for civilian juries in which ex-convicts should be included. But there were no allegations made about the integrity of the military juries.

The Australan, the leading liberal/emancipist newspaper, went out of its way to commend the officers’ record.*! The chief justice thought the military officers were more lenient than a civil jury would have been.” When the accused were given the choice of a military or civilian jury after 1833, 40 per cent opted for the military officers. °°

Commissioner Bigge had been unhappy to see convicts escaping punishment in the criminal court on technicalities and had recom-

mended that in future errors in the indictment, apart from the statement of the crime itself, should not nullify a prosecution. This proposal was embodied in the first draft of the New South Wales Act but it did not survive the scrutiny of James Stephen, the colonial office's legal adviser, who did not want to see people convicted on ‘inaccurate, loose and unintelligible’ indictments.** When the new attorney-general arrived in the colony he found of course that most of the people he was prosecuting were men already convicted of serious crimes. He wondered whether they deserved the benefit of a supreme court trial with its high standards of proof and considerable chances of acquittal. He suggested they might be dealt with in a more summary way — by what he called a ‘criminal equity’. When this proposal was referred to James Stephen he

declared that he could not understand it.*’ This reluctance to depart from English standards maintained for the convicts the same considera-

tion in their trials as free-born English subjects facing a court for the first time.

The criminal law which the court administered was a particularly savage one. Many offences were punished by the death penalty, but as

in England many of those condemned to die were reprieved and sentenced to transportation for life instead. There was no sense that convicts, being all old offenders, were no longer worthy of mercy. Governors, like the administrators of the law in England, took great

care in the choice of those to be saved. Favour was shown to the

penitent, robbers who had not used violence, and those who had for some reason gained public sympathy. Governors also bowed to the hand of fate — if the rope slipped or broke and so allowed a man who proclaimed his innocence to cheat death, then a last-minute reprieve was granted.*°

We can see at close quarters the considerations which controlled the

Convicts and society 115 selection of who was to die and who to live in the treatment of the convicts who seized the ship which was carrying them to Norfolk Island

in 1826. There were 66 prisoners on board; of these 31 were charged with piracy, 8 acquitted and 23 sentenced to death. The governor and his advisers then had to decide who was actually to die. They chose those who had been most violent or whose previous crimes (which had led to

their shipment to Norfolk Island) had been most vicious, and added a few who had been previously saved from death to serve as examples of the fate awaiting those who abused mercy. These principles excluded the ‘captain’ of the pirates who might have been expected to suffer as a ringleader. He had shown ‘moderation and humanity’ after the ship was seized and the crime for which he was sentenced to Norfolk Island was his first offence — his first, that is, since he had been in the colony. Six

men out of the 23 were announced for death, but then the jury petitioned to save one of these and they were supported by a sergeant of

the guard and two soldiers who said this man had been the means of saving their lives. He was accordingly spared. *’

In England the death penalty was removed from some crimes in the 1820s and in the 1830s the law reformers triumphed so that by the end of that decade capital punishment was retained in practice for murder only. By that time the New South Wales legislative council had achieved a measure of autonomy in law making and the new English penal code

did not apply automatically in the colony. The legislative council had been created in 1823 and in 1828 the extent of its powers was clarified; English laws up to that date were to apply in the colony, though the council could by local law exclude those it didn’t want, and henceforth new English law was to apply only if the council specifically adopted it.

The colony which contained such a high proportion of convicted criminals might have been thought likely to hesitate before making any drastic reforms to its penal code, but the amendments to the English

criminal law were readily adopted by the council. As well as the reduction in penalties, these included an alteration in court procedure

to prohibit the mentioning of any previous conviction against the accused until after the jury had given its verdict and the widening of the

rights of the accused to be represented by counsel, not wholly an academic question even for the convicts of New South Wales who sometimes had lawyers to represent them. This was in fact the one matter on which the legislative council did hesitate before following the English law.** While it delayed the supreme court ruled that since this was a fundamental matter of citizens’ rights, the English law applied in the colony even though it had not been formally adopted.*? Generally the English law was followed without question for the authority which it

carried and the confidence it imparted to its local administrators was immense.

From 1810 the colony’s judges were men trained in the law and they

116 Convict soctety and tts enemies brought a new determination to see that the operation of not only the courts but of government in all its arms was soundly based on the practices and express provision of the English law. The new judges questioned the legal basis of the governor’s authority and the jurisdiction of the magistrates, which were both distinctly shaky before the passage of the 1823 New South Wales Act. Governors Macquarie and Brisbane who had to bear this disruption were astounded and outraged at the lengths to which the judges carried their opposition. ‘These men

seemingly had no sense that authority might be in special need of support in a colony largely peopled by convicts and ex-convicts.

Judge Jeffrey Bent, sent out to open a reconstituted civil court in 1814, kept it shut for over two years because he refused to accept the admission of ex-convict lawyers which his junior colleagues and the

governor favoured. He marked his doubts about the governor's authority to make local regulations by flamboyantly refusing to pay the toll for travel on the Parramatta road which led to a cause célébre in the police court.*” At a meeting of newly-inducted magistrates in 1822, Judge Advocate Wylde told them that since the governor had no right to make local regulations, they had no right to enforce them and that they

would do so at their peril.*’ Only to a limited extent were the judges

reflecting a general unwillingness among the free to accept the unfettered personal rule of the governor. They acted chiefly out of a desire to protect their own and the law’s independent status; they were determined that it was not to be at their hands that the majesty of the law was subverted to the needs of an obnoxious penal colony. Under the provisions of the New South Wales Act the governor and his officials were given formal authority as an executive council and the

governor henceforth legislated through a legislative council and not merely by orders and proclamations. The powers of the magistrates were made secure and defined. The law was given the full independence which the judges had formerly claimed for it. The new supreme court was granted all the powers of the courts of Westminster and so could issue writs by which it could intervene in the operations of the inferior courts and the processes of government itself.** Furthermore, the chief justice was given a veto on all legislation because the governor could submit no proposed law to the council unless it bore his certificate that it was consistent with the laws of England as far as the circumstances of the colony would allow. The government’s own operations were made subject to legal scrutiny from within by the appointment of an attorneygeneral and a solicitor-general.

Governor Darling took office under this constitution. The disputes between governor and judges continued with this difference, that the judges were armed with greater power and one of the key issues now became the extent of the governor’s authority over convicts. Francis Forbes, the first chief justice of the supreme court, was bound to fall out

Convicts and society 117 with Darling. Forbes was a liberal; he was determined to uphold the independence of the court; and was proud to have been the instrument by which a ramshackle colony had been brought under the control of the full might of the English law. Darling was a military man and a Tory; he was charged by the British government with the responsibility of seeing that convicts were properly punished and he expected the full support of all officials, including the judges, in carrying out this task and maintaining order in what he considered was a potentially explosive situation. In overseeing the assignment of convicts Darling assumed, as had all his predecessors, that he had the power to withdraw convicts from their masters. Forbes questioned this power and held on to his doubts even

after a special provision had been inserted into the 1828 Australian Courts Act to make the governor’s power secure. The matter took on great significance because Darling in an attempt to muzzle the opposition press removed the convict servants from the editors of the two papers, though no claim was made that the servants were being mistreated. Darling’s earlier attempts to control the press had led to bitter conflict between the chief justice and himself. Forbes agreed that the

press had gone too far im its criticism of the governor, but he was reluctant to approve of any large powers to control it. He gave uncertain advice and at the last minute used his veto power to declare Darling's

measure repugnant to the English law and forced the governor to a humiliating capitulation. *

After the editors’ servants had been removed, Forbes and his

colleagues ruled from the bench that the governor had exceeded his powers. To justify this decision they wilfully misconstrued the passage in

the amending legislation — this had given the governor the power to withdraw servants and also to grant indulgences to convicts — and the learned judges read this to mean that servants could only be withdrawn in order to grant them indulgences. In broad terms the chief justice defended their view by arguing that parliament could not have intended

to give the governor a power which threatened the properties of the settlers for if the governor could withdraw servants he could ruin any

man at will. The British law officers rejected the judges’ view; the colonial office threatened further legislation if the judges persisted in it;

and rather sheepishly they gave it up.** If they had prevailed in this attempt to limit the governor's power, the judges would have reduced the protection given to the convict, for the removal of servants from a bad master was the ultimate sanction. However, in other differences over the governor’s power, and generally in their rulings, the judges protected and enhanced the convict’s rights. In its desire to make transportation a more effective deterrent, the colonial office encouraged the view that the governor could increase the punishment of the worst offenders by sending them immediately to a

118 Convict society and its enemies penal settlement or working them in irons. Governor Darling reported to the colonial office that his chief justice had advised him that both these courses were illegal. Though the penal settlements were clearly part of the colony of New South Wales which had been nominated as a place of transportation, Forbes held that the sentence of transportation should be served in the ordinary service of the government or a private master. Convicts could only be sent to the penal settlements by order of a colonial court. Similarly, only the sentence of a colonial court could put the convict in irons, unless they were necessary to prevent escape. These views reflected the unwillingness of the judges to regard the colony as a penal settlement serving England’s convenience; in their eyes

New South Wales was a normal civil society which happened to have convicts as the major part of its working population. These would be controlled and punished by the local courts; the colony had its penal settlements just as England had hers. To allow the convicts to be moved to penal settlements or have their punishment varied by executive action of the British government or the local government would introduce an unacceptable arbitrariness to the colony’s affairs. Forbes reiterated his

views in the early 1830s when the British government moved to implement a general scheme to classify offenders, sending the worst to

penal settlements, the less heinous to work in irons, and the rest to ordinary assignments. The British law officers supported the chief justice’s views that working in irons was an unwarranted additional punishment to the sentence of transportation. No clear ruling was given on whether the governor could send people to penal settlements with-

out sentence of a colonial court. Governors Brisbane and Darling had occasionally sent notorious offenders to penal settlements, but

Bourke showed more respect for the local view that this was

unwarranted.*

The tendency of the supreme court to regard convicts as members of

a normal civil community was evident in a famous ruling by John Stephen, the second judge of the court, and the uncle of James Stephen the legal adviser and later permanent under-secretary at the colonial office. Some convicts had been arrested at Bathurst for cattle stealing and sent up to Sydney. They were held there in the watch-house for five or six weeks without being brought to court. They applied for a writ of habeas corpus, which Judge Stephen granted and so they were released. The crown, opposing the issue of the writ, argued that the men could be confined since they were, after all, convicted offenders who no longer enjoyed the rights of free men. The judge declared that the magistrates had no more right to detain a prisoner than a free man and added that ‘the rights of prisoners were as sacred in the eye of the law as those of free men, and while he had the honour of sitting where he did, he would

never allow them to be impugned and treated carelessly’. The Magistrates were disturbed at these pronouncements and Governor

Convicts and society 119 Darling wrote to Stephen asking if his remarks had been correctly reported in the press. Stephen regarded this request as an affront to the independence of the bench and declined to answer. He was supported by Chief Justice Forbes who thought that Darling was treating the court as if it were a court-martial answerable to him. The judges argued that if the magistrates were in any doubt about the ruling they could apply to

the court themselves; to have the governor interposing in matters between superior and inferior courts was intolerable. When pressed,

Stephen reported to the governor that the press reports were not accurate, though the attorney-general told the governor that they were

substantially so. There was no doubt that the prisoners had been released. Darling referred the matter to the colonial office and Stephen was subsequently censured for adopting such a high-handed attitude to the governor. The ruling itself was not questioned. *®

Later rulings of the court reveal a similar concern to make convict status mean as little as possible. In an 1838 case the attorney-general in cross-examining a witness asked ‘what were you sent out for?’ Judge Willis refused to allow the question on the grounds that a witness was not required to degrade himself. The attorney-general disputed the matter and the judge referred to a recent unanimous ruling of the full court that a witness was not required to answer whether he had been in the pillory.*’ This ruling, taken in conjunction with the adoption in the previous year of the new English law which prevented reference to an accused person’s previous crimes, meant that convicts and ex-convicts who constituted nearly all the accused and most of the witnesses in criminal cases could not be presented as such before the courts. That they had been or were still convicts was well enough known, but no reference could be made to it and no details elicited as to the nature of their crimes. In 1841 the court went further and ruled that it was repugnant to the

principles of English law for a government official to ask a person whether he had been transported to the colony. This judgement was given in response to a Census Act passed by the legislative council. The census was to collect information on civil condition and so ex-convicts

would have to be identified — they were to be described delicately enough as ‘other free persons’. The court held that since a witness under oath in court did not have to degrade his character, still less should he

be required to do so before some petty census collector. The Act accordingly was sent back to the council which added a proviso that census collectors could not ask direct questions about civil condition. Householders were to be relied on to provide this information about themselves and those under their roof.*

The establishment of the supreme court and the creation of the attorney-general’s office brought the operations of the magistrates courts under closer and more effective surveillance. The attorney-

120 Convict society and its enemies general inspected the quarterly returns of punishment sent in by the magistrates and reported to the governor when punishments were contrary to those laid down in the 1823 New South Wales Act. Because

of continuing irregularities the governor issued a circular to the magistrates in 1826 which drew attention to their breaches of law and set out their powers. The difficulty lay not simply in the magistrates being too harsh; sometimes they were too lenient. The New South Wales

Act had set down one sort of punishment for minor criminal offences and another for offences against the labour code; the magistrates, used to the greater freedom which they had possessed before their powers were defined by statute, tended to operate as if all punishments were available for any offence. So a man might be sentenced to transportation for an offence against the labour code (for which whipping or hard

labour were the only punishments allowed), and a thief might be flogged instead of being transported. The circular also had to remind magistrates that they were not allowed to punish on suspicion. *? Under the New South Wales Act the maximum period of transporta-

tion which the magistrates could inflict was three years. Before the passing of the Act magistrates had frequently imposed longer sentences

than this. In 1826 the attorney-general informed the governor's executive council that there were hundreds of men still at Port Macquarie serving sentences which by the new law would be illegal. A commission was sent to Port Macquarie to examine these cases and as a result 484 men were released and returned to the colony proper. This signified the government’s increased respect for the rule of law and also

reflected its desire to overcome the shortage of labour in the colony proper. °*”

As the local legislative council replaced imperial legislation on the punishment of convicts with a number of its own Acts, the law became more complex and difficult to establish. This made illegal punishments more likely and Governor Bourke on his arrival had to set a number of men free from the penal settlements. Bourke with the support of the chief justice consolidated the law into one measure so that magistrates

could follow it more readily. Had Bourke’s Act been solely one of consolidation it would have been completely acceptable. However, since it also restricted the single magistrate in all circumstances to awarding a punishment of no more than fifty lashes, it became, as we have seen, a matter of contention and evasion.”’ Chief Justice Forbes regarded the oversight of the magistrates courts

as an important part of his duties. There was no appeal from the magistrates to the supreme court, but there were other ways cases could be brought before him. Convicts could petition the chief justice if they

considered they were being illegally detained. When Forbes and his colleagues visited the hulk in Sydney Harbour in August 1828 — these face-to-face encounters between judges and prisoners in detention were

Convicts and society 12] an important and regular part of the administration of justice — three prisoners alleged that their sentences of retransportation were illegal. The judges upheld their complaint and the men were freed. The judges took the occasion to address their own circular to the magistrates on what punishments could be imposed for what crimes.** A few cases from the magistrates courts came before the judges by application for a writ of habeas corpus in the supreme court. Only a well placed and resourceful convict could find a lawyer to act for him, but since attacking the government in court was one of the few channels open to an opposition, lawyers from the liberal/emancipist party were very ready to act. In 1829 Sydney Stephen applied for a writ of habeas corpus to free a convict who had been sentenced to transportation by the magistrates for perjury after he had given two conflicting stories as to how he had acquired a stolen bank note. Stephen submitted that the proof of perjury had been insufficient and that one of the magistrates had an interest in the case. The court granted the writ and set the man free, but Governor Darling, unwilling to see him escape unscathed, sent him to the penal settlement at Moreton Bay. By executive action he was to suffer the punishment which the supreme court had declared to be unwarranted. Darling relied on the power, which Forbes said he did not possess, to fix any place within the colony for the serving of a British sentence of transportation. The liberal/emancipist party sent news of this case to their friends in the House of Commons and questions were asked there about the arbitrary power wielded by the governor of New South Wales. Darling lamented that the governor’s job was impossible; he was attacked for not making transportation a severe punishment and then for improper severity. Surely the governor of a ‘receptacle for hopeless criminals’ was not to be plagued by questions as to the fate of individual wretches under his charge. His broad conclusion was that the Law of England was not a suitable instrument for the governing of New South Wales or the control of convicts.” The traditions and practices of the English law were a potent force in New South Wales even though its society was constituted very differently from that of the mother country. In some matters, however, the law had to be bent to suit local conditions. The New South Wales charters and

Acts had allowed for this in requiring that English law should be applied in the colony in so far as local circumstances would permit. There were notable departures from English practice in the direction of increasing the rights of convicts under sentence, and one measure which removed from all inhabitants in the colony what was a basic right under English law.

From the first convicts were accepted as witnesses in the courts, contrary to the practice of English law. Since at first they constituted the

majority of the population and held such a range of positions in the society, the law could scarcely have operated if their evidence had not

122 Convict society and its enemies been admitted. The admission of convict testimony was an important enhancement of convicts’ rights since it enabled the courts to protect their lives and property — to which the chief threat came from other convicts — and also to give evidence against their masters. When the

judges came to offer formal reasons for the admission of convict evidence they relied on the special circumstances of the colony and also the rule that the only proof that a man was a convict was a certified copy of his conviction.** Since the only record available in the colony was the

ship’s indent, no convincing objection could be made to a convict witness because he could not be proved to be such. But if there was no

conclusive local proof of a man’s convict status, what right had the government to treat him as a convict? Eventually a convict challenged the legality of his detention on the basis of the indent and the supreme court and the legislative council had to rule that the ship’s indent was sufficient evidence of convict status.®° This left the legal argument in

favour of admitting convict witnesses to rely solely on the special circumstances of the colony. The one matter of legal dispute was whether a conviction for a second crime committed in the colony should make the convict ineligible as a

witness. Here there was no difficulty about obtaining the proof of conviction and to take the word of a doubly-convicted felon seemed to

strain to the utmost the pragmatic argument in favour of convict testimony. Nevertheless, in 1831 the supreme court ruled by two to one

to admit this evidence, though the replacement of one of the judges later tipped the court’s opinion the other way. The matter was settled by

the legislative council in 1844 in favour of admitting all evidence no matter what the criminal record of the witness.*° The chief business of the colony’s first civil court was the settling of disputes over commercial transactions. Convicts were heavily involved in the colony’s business life as traders, workers in their ‘own time’, and as consumers and they sued or were sued for debt in the civil court in the same way as everyone else. According to the law of England, convicts

could not sue, but they could be sued since they were not to take advantage of their legal disability.°” In New South Wales, however, the harm to society arose not from allowing convicts to sue but from their being sued. If a convict was imprisoned for the non-payment of a debt he was no longer available to work for his master or the government. There was some advantage, then, not in escaping the law, but in falling foul of it. Governors Hunter and King issued orders that convicts were not to be imprisoned for debt and told traders that if they advanced credit to convicts ‘1t must be wholly and absolutely upon the strength of their good faith in the integrity of such people’.°® Needless to say this faith was often misplaced and those who were owed money by convicts still sought writs from the court and it was some time before it refused to

Convicts and society 123 issue them. There was in this matter a clear clash of interest between a

convict’s creditor and his master and the court was not anxious to

abandon the creditor despite the governor’s orders. But first as defendants and then as plaintiffs convicts were gradually excluded from the civil court.°? This paralleled the decline in the extent of the business dealings carried on by convicts while still under sentence. Trading and shopkeeping were now more firmly in the hands of the free, chiefly ex-

convicts whose standing before the court was unquestioned. The magistrates courts became the place where cases of convicts owing or being owed money were settled. The magistrates could find means to make convicts meet their obligations other than by imprisoning them, which was the only course open to the civil court. In magistrates courts the convict’s right to sue was maintained — he could, for example, lodge a complaint against his master for the non-payment of wages.°° According to English law a convict could not own property. For the first thirty years of the colony’s history this principle was simply ignored

and the courts operated on the contrary assumption. The right to sue, of course, depended on the convict being able to hold property. The matter was first questioned by Bigge who was disturbed to see convicts

bringing money with them and having the use of it while under

sentence. As a result of his recommendation convicts were henceforth made to surrender their money on arrival; it was kept in the Savings Bank until the convict became free or acquired a ticket-of-leave.°' No special legislation was thought necessary to validate this practice; it rested merely on the general principle of English law so that doubts then arose as to how far this principle was operative in the colony. By its other actions the local government indicated that it did not want to

push the principle very far. It paid wages to convicts who acted as overseers and constables. It expected convicts to possess a certain amount of money before they could become free since a ticket-of-leave

or a certificate of freedom was only issued after a payment of a customary fee to the clerk who prepared it.** The courts also limited the

application of the principle. The supreme court ruled that convicts could hold property to some extent since otherwise people could not be

charged with stealing it.’ The common understanding became that convicts were entitled to hold property which they had acquired after coming to the colony. This was the ruling given by the chief magistrate at a Sydney quarter sessions trial in 1825 in which a convict baker — able to run a business because he was assigned to his wife — prosecuted another baker for stealing some of his flour. The proceedings of this trial give a good indication of the stratagems which had to be adopted

to protect the convict from the disabilities of the English law. The convict baker, the prosecutor in the case, is in the witness box under cross examination from the lawyer for the defence:

124 Convict society and its enemies Mr Rowe

(defence lawyer): Are you a free man?

Baker: No I am a prisoner assigned to my wife.

Mr Rowe: Are you a prisoner in consequence of a crime committed in this, or in the

Mr Allen

Mother Country?

(prosecuting lawyer): You are not bound to answer these questions.

Mr Rowe: The indictment lays the property in the

witness, and I want to show, that being a

convict attaint he cannot possess property.

Mr Allen: I submit that the only evidence is the record of conviction — let that be produced.

Chairman: I do not know how this question can be

raised; it is immaterial whether the property belongs to the prisoner by permission of the crown, or to the prisoner himself. I am of opinion that the conviction does not affect property subsequently acquired.

Mr Allen: The main thing wanting is the record of conviction; Mr Rowe does not know that we will produce a pardon.

Mr Rowe: But this man’s person is not his own. Chairman: If any man was to violate that person by assault or battery, he would find himself mistaken; the Law is open to him as to others.

The jury brought in a verdict of guilty, and so declared that the convict baker did own his flour.™

The local evasions of the law were rudely disturbed in 1832 by the interference of the House of Lords. Their lordships, anxious to render

transportation more terrifying, tacked on to a criminal law bill an amendment designed to make life tougher for the convicts of New South

Wales. Tickets-of-leave were under no circumstances in future to be

given earlier than the time set down in the local regulations, and convicts were also to serve for these periods before being eligible for

pardons. Until his sentence expired or before he was pardoned the convict could not acquire or hold property or sue for its recovery.°’ The magistrates courts might still evade this in dealing with convict cases,

but the other courts found it impossible to avoid such a clear and direct ruling from the imperial parliament. It particularly damaged the interests of the ticket-of-leave holders who, though still technically convicts, had been treated as free men for the purpose of civil actions. The exclusion of convicts from actions in the civil court had not been

Convicts and society 125

extended to them and they were thus still able to sue there for the recovery of debts.°° This was an important right since many ticket holders conducted businesses. Their right to sue had finally been enshrined in local law in 1832, the same year in fact in which the right was being taken from them by the British parliament, whose enactment of course overrode the local provision. Once the ticket-of-leave men

were stripped of their rights, they found that they could not recover debts or wages due to them.* The supreme court had to rule that stealing property described as belonging to a ticket holder was no crime. Governor Bourke pointed out to the colonial office the damage the British law was doing to the ticket-of-leave system which was such an

important encouragement to good behaviour. The Office replied that it had not realised the full implications of the law’s amendment and would arrange to have it repealed. Despite regular reminders from Bourke and his successor the measure was not repealed until 1842.” Meanwhile the governor had to offset the damage as best he could. Fortunately the mover of the amendment in the House of Lords had been ignorant of the regulations concerning pardons and conditional pardons. To be eligible for these convicts had to serve a longer period than that set down for the ticket-of-leave. Typically a convict would

obtain his ticket and then after the required number of years would apply for a conditional pardon. The Lords amendment took the periods set down in the ticket-of-leave regulations and made them the minimum for both tickets-of-leave and pardons. So under the new law everyone eligible for a ticket-of-leave was also eligible for a pardon. This was the loophole the governor used. He began to grant conditional pardons in large numbers to men who had qualified for a ticket-of-leave.’’ The disadvantage of the conditional pardon from the governor's point of view was that, unlike the ticket, it could not be revoked, so the spur to good conduct was removed; but the holder of a conditional pardon could sue in the courts. The one measure passed by the legislative council which was generally recognised in the colony to be more oppressive than anything in English law was the Bushranging Act of 1830. This provided that any person could be arrested on suspicion of being a convict runaway and be taken

before a magistrate for examination. The onus was placed on the suspect to prove that he was not a runaway, rather than on the crown to

prove that he was. One of the judges would have disallowed this measure because it flouted the principle that a man was innocent until proved guilty, but the chief justice and the third judge upheld the law. Forbes argued that given the special circumstances of the colony in being the receptacle for thousands of convicted criminals the Act was not repugnant to English law and he also relied on the precedent of the English Vagrant Act which allowed vagrants to be taken up and held if they could not give a good account of themselves. (This shows how

126 Convict society and tts enemtes readily English law could be laid aside; the wonder is that these special circumstances were appealed to so rarely.)” Since the Bushranging Act is often cited as evidence of the tyrannical

propensities of the rulers of New South Wales, it is important to examine its operation carefully. It did not fall particularly harshly on convicts or ex-convicts. A convict legitimately travelling on the road would have a pass from his master to prove that he was not illegally at large; an ex-convict could produce his certificate of freedom. The men who suffered most under the Bushranging Act were the free emigrant workers. If they were apprehended they had no readily accepted means

of identifying themselves. Alexander Harris, who claims to have suffered much under the law, provided himself with a letter from a magistrate but this was not enough to allay suspicion.’* These free workers could be held in a lockup for days while enquiries were made and then sent under armed escort down to Sydney so that their stories and identities might be checked. Of course the dress and bearing of the more affluent free emigrants were generally sufficient to save them from interference. Harris recommended that a system of internal passports or identity

papers should be introduced to protect the free emigrant.’* This suggestion was occasionally made by respectable and influential free emigrants, but identity papers were generally considered continental, degrading to the status of a gentleman, and an interference in the rights of a British subject.’° There were more regular voices raised for putting

the convicts in uniform which would have protected the emigrant worker by making the convict more readily identifiable. The convicts in

government service usually did wear a distinctive dress but those in private service did not. Bigge had clearly favoured uniforms for all, though finally he did not include it in his recommendations. The objection to it was that the free settlers, especially the most wealthy, did not want to have their servants wait upon them in some hideous garb. In their domestic circle their aim was to recreate the comforts and styles of the old country; they did not want to be reminded there of the colony’s

peculiar institution. They dressed their convict household servants in livery. ”°

The more modest proposal that convicts should wear a badge was put forward by Sir John Franklin while governor of Van Diemen’s Land and was actually accepted by the British government in 1838 just on the eve of the abolition of transportation to New South Wales. Governor Gipps was opposed to this innovation and he postponed introducing it on the pretext that the New South Wales badge system should be the same as that in Van Diemen’s Land of which he had not yet received the details. The governor pointed out to the colonial office that the system would create a new offence — the non-wearing of the badge — and so lead to more punishments being inflicted. The well-disposed convicts would

Convicts and society 127 feel the shame of the badge most keenly and would be the ones least

likely to accept it. The chief difficulty, as he saw it, would be the opposition of the wealthy settlers who would resist fiercely the imposition of a badge over the livery of their domestic servants, grooms,

coachmen and footmen. The colonial office did not pursue the matter

further.”

There were other methods which could have been used to identify all the convicts or the habitual offenders and runaways. They could have been branded, which was a common method of marking troublesome slaves in the Americas and still practised in Britain itself. Some of the convicts arriving in New South Wales had been deserters from the army and were branded with a D and some of the convicts had been burnt in the hand. There was only one local proposal to use such methods on the convicts. It came oddly enough from Captain Maconochie, the humane

penal reformer, who suggested that all convicts be branded, not conspicuously, but with a small ‘private’ brand between the toes or elsewhere.’ The Bushranging Act was certainly opposed to the spirit of English law, but it was made necessary because society was unwilling to impose the distinctions and restrictions which would have made it easier to identify convicts. The free settlers did not want the trouble of identity papers which they would themselves have had to carry nor did they want their own servants marked as convicts. The free emigrant working men

had to pay the price for this. It was a bitter irony, as Alexander Harris pointed out, that they should suffer the greatest disadvantage under the Bushranging Act — ‘nothing could be at once more unjust and more absurd than to make it penal not to be in a penal condition’’? — but for the convicts the absence of uniforms, badges and distinguishing marks was an inestimable boon. It did make it easier to escape (or to wander off temporarily), to remain at large and pass oneself off as a free person.

From day to day they could appear to themselves and to others as ordinary servants. Those who had a good position and ample rewards

could dress well and be indistinguishable from respectable free settlers.°” Since convicts could not be readily distinguished from free people it was difficult to enforce restrictions on their activities. In 1825 the legislative council put a blanket prohibition on convicts being served

in pubs. The publicans complained that it was impossible for them to tell who were convicts and the law was amended to prohibit convict drinking only after 8 p.m. and on Sundays. The same measure declared that convicts could not be abroad after 8 p.m., so in the evenings the difficult task of telling who was a convict now had to be performed by constables as well as publicans. Some years later the council tried an absolute prohibition again, with the publican being fined only if he ‘knowingly and wilfully’ admitted and served a convict. That made it too easy for the publicans to serve convicts and escape penalty, so later

128 Convict soctety and tts enemies measures transferred responsibility back to them, with the proviso that a

publican was to receive a lesser fine if he had been imposed upon by falsehood and fraud.*! Meanwhile convicts were regularly drinking in

licensed premises and in sly grog shops as well. These were the incidental freedoms which convicts enjoyed because they could not be readily recognised. When convicts had been transported to the American colonies they were treated basically like other indentured labourers and the colonial governors had had no particular responsibility for them. Their fate was determined by their masters and the operation of the local servant law. In New South Wales, however, the governor remained responsible to the British government for the treatment and condition of convicts even after most of them were in private hands. The concern to make transportation an effective punishment meant that the British government’s interest in these matters increased from 1815 onwards. The governor was also obliged to consider the convicts’ own submissions about their

fate, for the right of the British subject to petition the sovereign for indulgence or pardon became in the colony the right to approach the governor. To exercise these responsibilities and process all the petitions an increasingly elaborate bureaucracy was created. The rights of access

which convicts had to this bureaucracy and the benefits it conferred operated like their rights under the law to limit their disabilities as bond labourers in private hands. A basic obligation upon the governor was to know who the convicts

were, where they were located, and when they became free or died. Friends and relatives in Britain wanted to know about the whereabouts

and condition of those transported and the local government was expected to provide this information to London so that enquiries could be answered. This was one of the purposes of the musters taken annually until the 1820s for these listed every person in the colony by name.*

When musters were abandoned, records of assignments began to be kept more thoroughly and these enabled the whereabouts of individual convicts to be traced, though these records, like the musters, were far from perfect. The office of the superintendent of convicts, founded in 1826, became the repository for all the convict records and operated a general enquiry service for any member of the public who wanted to contact a convict. The office also became responsible for seeing that letters addressed to convicts reached them.® Letters sent to convicts, either from overseas or within the colony, were carried free of charge as were the letters written by the convicts to their relations and friends at home. **

The writing of convict petitions was a minor industry. Most convicts had their petitions written for them, usually by a well educated convict or the clerk at the local court, and for this they were charged a fee. At one stage a petition office run for profit was operating in Sydney.®°

Convicts and society 129 Clerks of court had advantages as petition writers because they could also offer to put in a good word for the convict with the local magistrates

and so increase the chance of the petition’s success. The clerk at Windsor charged 5/- per petition and for this work in 1819 collected £123, a considerable sum, twice the annual wages of a working man.*° Since petitioning was a right and a legitimate business for a convict to be pursuing he had a strong claim to be given the time and opportunity which the preparation of a petition required. He frequently needed to travel — perhaps to arrange for the writing of the petition itself, more often to collect the signatures and endorsements of former masters or

other people who might speak on his behalf.®’ In 1827 workers in government employment who wanted to apply for tickets-of-leave were given time off so that they could visit their former masters or overseers and get their support.*® Masters could very easily refuse to endorse the petition of someone who was assigned to them, but it would have been a bold master who refused a pass to a convict to pursue petition business. *°

At first the number of matters on which convicts petitioned the governor were few, chiefly the granting of pardons and tickets-of-leave. By the 1830s a full list of the type of request made’by petition and letter would read something like this:

To receive a pardon To have wife and children sent To receive a ticket-of-leave from Britain

To have a ticket-of-leave restored To live out of barracks

after losing it for bad conduct _—‘To have Fridays off (in addition to

To spend bank money living out of barracks) to

To marry support family To have husband or wife To receive rations while husband assigned was at a penal settlement

To be assigned elsewhere for To be informed on the progress of

personal or family reasons an earlier application

The number of subjects for petitions grew chiefly because convict life was being controlled more closely. In the early years the government convicts made their own living arrangements — and so didn't have to petition to live out of barracks; and all convicts retained the property they brought with them — and so didn’t have to petition to acquire it from the Savings Bank. Marriage was at first something which the governors implored of the convicts rather than the reverse; when it became a matter for regular petition, permission was usually granted and the convict given a ticket-of-leave.*° But once the administration of tickets was tightened up and labour became in short supply an applica-

tion to marry generally had to have the support of the master to be successful, especially in the case of men whose labour was more valued, for the couple would have to live on the master’s property. If one of the

partners was free an alternative arrangement was for the convict to be

assigned to him or her, which was also one of the new matters for

130 Convict society and its enemies petition.”' The development of the convict bureaucracy thus could be seen solely as an agent of control, and the right of access to it and the

benefits it conferred paltry things in comparison to the freedoms enjoyed in earlier times. This would be a wholly valid view if it were not for the changes which

the new bureaucracy brought in the administration of the ticket-ofleave, which was the crucial indulgence of the system since it was the gateway to freedom. In the early days convicts acquired a ticket-of-leave

as a result of having special skills and claims or influential patrons. Macquarie imposed the limitation of a minimum period of service and required applications to have the support of magistrates and the clergy, but was very ready to break his own rules. When Governor Brisbane tightened the administration following Bigge’s report he imposed the new restriction that the support of the convict’s master was necessary for a successful application.”* Previously the support of his master had helped many a convict to a ticket, but it had not been mandatory. Once it was, there was the clear danger that a master who wanted to retain the services of a convict would withhold support from his application for

a ticket-of-leave and in any event masters who wanted to retain a convict’s service could have a black mark put against his name by trumping up some charge against him. This opportunity for abuse was well recognised at the time and the governors who followed Brisbane did

what they could to rectify it. Darling abandoned the requirement that

the master’s support was essential; the master could inform the magistrates that he was opposed to the granting of a ticket-of-leave, but they could endorse and forward an application notwithstanding.”* To

reduce the temptation to manufacture offences, Bourke promised masters that any man who acquired a ticket would be replaced and Gipps assigned convicts in the first instance only for the period in which they would become eligible for a ticket.’* As the master’s influence was reduced, the governors relied first of all on the magistrates for an assessment of the convict’s character, but as the central records of offences

improved, the result of an application depended less on anyone's support or endorsement and more on the bare facts of the convict’s record. Under the old system some individuals gained tickets very rapidly, but the convict with no special skills or claim to notice could well miss out even though he had a clean record.” The bureaucracy did

much more to ensure that these men would gain their tickets in the

minimum time.

The convict system began in the eighteenth century world where patronage and influence were all in all; by the time it ended govern8 (Opposite) A form for everything: a standard petition asking for wife and children to be sent out, to which the convict’s master adds a special plea By this stage only those eligtble for a ticket-of-leave could have families sent.

To His Excellency. 7 My Youde al itch tit M: SVM IE:

| &e. &e. &e,

Governor and Commander in Chief, , .

c47if4

THE HUMBLE PETITION OF pO (1100 {O V4 003) 4EAE , by the Ship rs Mee rf Lome, Bef OF) 4 Jaw fe: 0 fi bee a F

a Prisoner fer. ff ‘ | , D ated, eo to LES AS he ra Ads z a.

SHEWETH, s

That your Petitioner is desirous of bemg re-united to the Family from which he was separated at the Time of his Transportation,

| and particulars of which are stated on the other side. That Testimonials are subjoined of his Ability to Support his

7 said Family, and of his having endeavoured, by good conduct, to merit ! this Indulgence. That he hombly prays, therefore, that your Excellency will be

pleased to transmit to the Right Llonorable the Secrerary or STATE, a Recommendation that your Petitioner's said Family may be sent to

this Colony at the Expense of Government. , And vour will ever we . yro:; | ; a Petitioner ° , ie & if oo ~ 66g a pray, LEY

Le oo a“ a

, I certify that the Petitioner above-named has been in my Service since the | Month of coe ee Ce err & » 19, and that during that Tine his

\ gyn? , ,

Conduct has heen such, that I respectfully recommend his Petition to the

feavcoralle Cansideration of tis Eseetleney the GovEemxon. , Iam also satisfied that he is both alle aud willing to maintain his Family. |

: LE. 2 sarah eo CM a Petitioner's Employer. ,

Wer severally certify tat we are nel acquainted with any Circumstance -

that should induce us to withheld our Signatures fr Oy flis Letition, and we .

Ahercfore recamgucns ihe gime, oS i“ LA - LK GL Or- i

ee a o a: , Se _o Lf. . . . a an ;

la le Oe. L Ome, Cpe Lina ot lai AO AOL sat OE AEP. Oy oman, * a tml” afl pam ede line pL? 4 cichenebdaaiepiptiidbiinnsais hd nate 2 : Magistrate. |

I pIhy fl, LE s , :

LAME MNNAM LE oF LO Sammmdbelarsyprniaie Magistrate. :

de ta. a4 y { fe a ALLA

N, B.—This Petition must be mbimitted through the Principal Superintendent of Convicts, :

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‘ a Pa F : wa oy a Petitioner’s Standing No.——~———

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Present Residence, vis. «(0777 010 Or re |

- Town or Parish, «°° Jet pt aw

: Street, ——_———« - 4 ef % Ge wr oe Mage F ee of

ae , fe , Children, viz.—

P | : NAMES. AGES.

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- — meron at teaneendieeaetecnaeeetetemattnnacanadanenei ‘enatanttnnateitiaaatastaneatdtademaemaatanennaansenntnictetaceseanetedienmamennttdttaaanesatemmaseenntmenianetennenienmnaeeel

aa || f.hep “Pp Si, ee . et Fae kh. Ping 4 g, Aa

e : as *,? € * « *

- . , Respectable Persons, to whom Petitioner's Family are known; viz.—

7 ae . NAMES, RESIDENCES. | = YE~ »Z. Mt PatLefeRtfi& A : ee ee : , 2ih | ‘ by ; 4 - Lt sg : BD MF Late Geer Baek ae er KE Aer, Sa ae

:: Lb; :abwee SS.. Lo ' £> x PS wea OME WAELA ra(Ht vA pet ett;he, Perry 4 SL ;318 x8 # ;BO om ;

-: LESom Les, Ya. 26LEM. fr| Aad :~ Ge it bab-Cal ae a a ee Oo” 8G ee Printed as the Caante Ofise, by Horatio W ila. «* . of . f

Convicts and society 133 ment administrators, relying on central records and issuing standardised application forms, were countering or supplanting the influence of the convict’s master and his local rulers, the magistrates. In processing the applications for all indulgences reference was first made to the convict’s record. This is the modern administrative method and the convicts were the first in Australia to experience its cumbersomeness and impersonal style as well as its impartiality and equity.

Rebellion and security On a Sunday evening early in March 1804 the convicts working at Castle Hill government farm overpowered the constables and overseers and set

out to take over the colony. Once they had neutralised the military, their plan seems to have been to obtain a ship and sail to freedom. They first went in small groups to the farms in the nearby settlements to seize

arms and then they mustered some 250 to 300 strong outside Parramatta. The rebel leaders had arranged for the convicts in Parramatta to rise in their support. This part of their plan failed. Thwarted here, they

decided to retreat to the Hawkesbury where they hoped to find sanctuary and further support among the ex-convict farmers. On the following morning a small detachment of soldiers, who had marched through the night from Sydney, overtook them on the road. Two rebel leaders were captured by foul play during a parley, and the rebels, after

making a short-lived stand, fled as the soldiers opened fire and advanced upon them. The rebel leader was hung without trial at the Hawkesbury, and a court martial subsequently sentenced ten others to death, of whom two were reprieved as it was not clear that they had taken a leading part. Nine men were severely flogged and 30 were sent to the penal settlement at Newcastle.’ The circumstances at Castle Hill were unusual. It was rare for several hundred convicts to be living and working together. Governor King had been instructed to re-establish government farming, which had lapsed after Phillip’s departure, and he concentrated the convicts on new land at Castle Hill to ensure good returns and efficient supervision. At the time of the rebellion the number of the convicts at the farm was falling because a few months before King had received word that he did not have to persist with public farming, which he thankfully abandoned. Not until the opening of the Convict Barracks at Sydney fifteen years later were similar numbers of convicts brought together in one place, and these men did not work together. Most of the leaders and many of the rebels were Irish. During the previous ten years there had been a series of minor revolts in Ireland and a major rebellion against English rule in 1798. About a third of the Irish convicts then in the colony had been transported for their involvement

134 Convict society and tts enemies

in these revolts.“ The government farm brought together seasoned campaigners in rebellion, some of whom were educated men, as well as large numbers of their countrymen. Philip Cunningham, the leader of the rebellion, had been transported for ‘fomenting’ rebellion in 1799. At Castle Hill he had been employed as overseer of the stonemasons and

lived in a house of his own. Ireland’s cause helped bind these men together. Their rallying cry was ‘Death or Liberty’ which had been used by the United Irishmen in 1798. The Irish rebels were nationalists who

looked upon all their countrymen as potential supporters and in the colony, as at home, the English were the enemy. Later the colony received English political rebels, but they held themselves aloof from

their fellow convicts whose crimes and characters they found as repellent as other respectable people. These were not the men they were

accustomed to lead and their causes — protection for handloom weavers and stockingers or democratic rights — made no sense in the colony. They did not disturb the colony’s peace as the Irish rebels had done. °

The Castle Hill revolt was the first and only rebellion among the convicts in New South Wales proper. There were many convicts who ran

away or became bushrangers, but this was the only attempt by the convicts to seize power or to take mass action of any sort against authority. On one other occasion there was an appeal for mass action, but it was not responded to. In September 1830 a dozen or so convicts from several

sheep stations near Bathurst banded together, acquired arms by robbery, and marched around the district urging others to join them. They gathered over one hundred men, but most went against their will. At Everndon’s station the overseer refused to join them and baring his breast dared them to shoot him. Two of the leaders fired from point blank range and killed him. After reloading his gun one said ‘Who 1s the

next man that would say he would not go?’ With the shooting of the overseer, the rebels’ chances of leading a willing band disappeared. On the following evening they locked all the men they had collected into a shearing shed and told them they were not to leave until morning. The

rebels rode off with the arms, ammunition and supplies they had commandeered. A civilian posse tracked them to their hideout but had to retreat after an hour’s gun battle. Subsequently, on two occasions, groups of soldiers and mounted police fought pitched battles with them

and failed to take them. But on the next encounter the rebels surrendered. They were hung at Bathurst after a special sitting of the supreme court. What their plans were remains unclear. Most were

newcomers to the colony and they plainly miscalculated the willingness of the convicts to join a mass protest or rebellion.‘ Fear, as J.A. Froude tells us, is the parent of cruelty. For several years before the Castle Hill rebellion the authorities had feared that the Irish

Convicts and society 135 were planning something. During a scare in 1800 men were flogged in an attempt to elicit information. One young man, aged 20, was given 100 lashes on his back, 100 on his buttocks, and 100 on the calves of his legs. He took this without crying out and insisted that he didn’t know where the pikes were hidden and said if he did he wouldn't tell.’ But once the Castle Hill rebellion was suppressed, the fears receded and by the time of Macquarie’s governorship a convict rebellion was almost inconceivable. The rulers and masters of New South Wales did not live in fear. They were not much troubled by thoughts of rebellion, nor were they overly disturbed by the number of runaways and bushrangers or the extent of crime. This is of great significance for the understanding of New South Wales society. The maintenance of the convicts’ rights before the law and the granting of indulgences such as the ticket-ofleave would have been thrown into peril if there had been deeply held or prolonged fears about a convict rising. When bold Jack Donahoe, the most elusive and disturbing of the bushrangers, was at large the police magistrate of the district suggested to the government that all tickets-ofleave should be withdrawn until the bushrangers were captured. This

group punishment was in his eyes the way to reduce support for the bushrangers and to encourage informers. The government rejected the suggestion, but it is a sign of what measures might have been pressed upon it if a real panic had swept the colony. The colonial secretary's response to the suggestion was: “This might have the desired effect, but I fear that it would be considered cruel.’® This was a man who was not yet afraid. There was certainly some anxiety, though not panic, when the news of the Bathurst ‘rising’ reached Sydney. It was some time before a clear

report of what had happened could be obtained and for weeks rumour

flourished — there were 500 insurgents under arms and _ the commandant and all the military at Bathurst had been murdered.’ Governor Darling feared the worst, but he was always jittery about

convict insubordination. He sent more soldiers to Bathurst and others to guard the iron gangs and road parties which he was afraid might rise in

support of the rebels. When accurate reports did arrive, the colonists had the reassurance of knowing that only under duress had the rebels got others to join them. It was the British government rather than the colonists which was constantly afraid of convict rebellion and disorder. In British eyes a colony chiefly composed of convicts and ex-convicts must inevitably be

turbulent and rebellious. When the British government provided the governor with a small legislative council in 1823 it did so with great misgivings because it did not want to hamper the governor’s ability to take decisive measures in an emergency. The 1823 New South Wales Act provided that if the governor thought a measure essential to the peace and safety of the colony, he could carry it through the council if

136 Convict society and its enemies only one member supported it. If rebellion or insurrection had broken out, or if the governor feared it was about to, he could pass measures to suppress the rebellion even though opposed by every member of the council. The council members were to be nominated, not elected; they

would be government officials and free emigrants; yet the British government seemed to think that the contagion of rebellion would spread even to them and that only the governor could be relied on. As Chief Justice Forbes remarked, what sort of council would it be that would refuse to pass a law to suppress a rebellion.’ The New South Wales Bill had also included a clause, on Bigge’s recommendation, to allow the governor to deport without trial any person who was engaged in treasonable or seditious activities. This extravagant safeguard against rebellion met determined opposition in the House of Commons and had to be dropped.’ But the government’s fears remained. It instructed the governor to pardon convicts above the labouring class only on condition

that they left the colony. Two years later it modified the order — educated ex-convicts were to leave only if the governor thought it necessary — because well-informed persons, that is those living in the colony itself, had persuaded the colonial office that educated convicts were unlikely to rouse the rest to revolt. ’° Members of the select committees of the House of Commons who

examined New South Wales affairs in London, and Commissioner Bigge, during his enquiry in the colony, were also concerned at the likelihood of revolt or crippling disorder. The witnesses they examined generally did not share their fears and sometimes it is clear that until the matter was put to them they had scarcely given it any thought. Their responses to these enquiries provide us with much of our evidence on the reasons why the colonists felt so confident about their safety. Convicts will always ‘split upon each other’. This was how Major

Druitt, the officer in charge of the government convicts in Sydney, answered Bigge’s enquiry about the possibility of rebellion. Bigge was

worried that the housing of the convicts in barracks provided more opportunity for successful combination, especially as there were more men in the convict barracks at Hyde Park than across the town in the military barracks. Druitt was also able to tell Bigge of the convicts stealing from each other, which was a constant annoyance for anyone who had to supervise them, but a reassuring depravity none the less.'! . Convict treachery was generally regarded as the basic guarantee of the colony’s safety. The authorities had indeed been told of the Castle Hill rising in advance, but had taken little notice because there had been so many other tales of intended risings. On nearly every convict ship there were plans for a rising, but word of these always reached those in charge and no convict ship was ever taken.’ The writers who have stressed the loyalty of convicts to each other are not wholly wrong. Some individuals did have a strong sense of belonging

Convicts and society 137 to an oppressed group whom they would not betray, and in matters of small moment convict loyalty was generally complete. Thus if a master who had been robbed of a bag of flour asked his convicts for information on the robber he was unlikely to get any help. An informer was naturally enough disliked and the rough boys could make his life very

uncomfortable. But if something big was being planned — say a

concerted attack on the master or the farm store — then the master was much more likely to be informed. The informer acted partly through fear because he knew that when the hunt was on for the perpetrators those really responsible would attempt to shift the blame elsewhere — possibly on to himself — and partly through hope of reward because in

return for information on matters of consequence men were given tickets-of-leave or at least moved to another part of the colony so they were out of reach of their former workmates.’ As with everything else, Governor Darling reduced the giving of rewards to convicts to a system. For every piece of information given or every convict runaway who was caught, the convict had so much time struck off the period which he had to serve before being eligible for a ticket-of-leave. In 1829, 824

tickets were awarded to male convicts, and 65 men (or 8 per cent) received them early as a result of informing or catching runaways. The most active man in this work had been sentenced for life in 1825, and as a result of catching 23 runaways he was freed after four years service, instead of the normal minimum of eight years." Well over half the convictions for serious crime were secured by one of the accused turning King’s evidence.'’ In return for his own immunity he provided the information to hang or transport his fellows. Once a gang of bushrangers had committed a serious crime, men became much more reluctant to offer them food and shelter, because they knew that when the gang was caught one of its members was bound to talk, and then the details of their movements and associates would be revealed. '° The willingness of the convicts to betray each other helped to preserve

for them their full rights as British subjects under the law. Had the robbers and bushrangers been true to each other the usual processes of

the law would not have been sufficient to convict them and some other ,

measures would have been needed to control and punish them. This is

another instance in which the ‘depraved’ character of the convicts worked for their benefit. We have already seen how the opportunities

for early freedom and economic advancement were related to the general tendency of ex-convicts to spend their wages — chiefly on drink — rather than save them. When Bigge was in the colony he examined closely the precautions which were taken to reduce (for prevention was impossible) the escape

of convicts from the colony by sea. He reported that the colonists considered that the best security against escape was the high standard of living which the convicts generally enjoyed and the special indulgences

138 Convict society and its enemies and rewards which were held open to those with industry and skill.'’ The transportation committee of the House of Commons which sat under Molesworth’s chairmanship in 1837 --8 was told something similar by Lieutenant Colonel Breton, an officer who had recently served in the

colony. When he was asked whether there were sufficient soldiers to quell a general insurrection, he replied that a revolt was most unlikely, but should one occur the convicts who were close to getting their tickets-

of-leave would help to put it down.’ For many convicts the colony certainly did provide a better living than they had been used to and the holding out of rewards by private masters and the opportunity to obtain a ticket-of-leave were powerful incentives towards compliance. It is important also to remember that the convict system did not run the risk of obliterating the distinctions to which men of skill and some education were accustomed; because of its need to employ convicts throughout the

work force it generally upheld them. Nevertheless a present-day observer looking back is impressed as much with the repression of the system; if men were so satisfied why so much flogging and the creation of horrendous penal settlements? The evidence which the colonists used to support their views was that the men most likely to run from their masters or attempt to escape from the colony were the most recent arrivals from Britain.’? At first men were homesick; many were unused to hard work, and the townsmen especially found the isolation of bush life intolerable. But once men became accustomed to colonial life and work, they were less likely to run away. The colonists well knew that there were incorrigibles who would continue to run until they were

put on Norfolk Island or the scaffold; that harsh usage and flogging drove some men to destruction, but they were confident that most of the

convicts became, if not contented with their lot, at least willing to endure for the sake of what lay beyond. In this lay another security against general insurrection. It was difficult to persuade first generation slaves of the legitimacy of slavery. Slave revolts in the Americas were always more common among

those who had been brought from Africa rather than those born to ° slavery. Convicts were made so by the law and generally they accepted the legitimacy of their conviction, even though of course they were still

interested in escaping the rigours of their punishment. The predominant attitude of the convicts towards the law was that of a gambler; they regarded detection and conviction not as an injustice, but as bad luck.?° With these attitudes, the convicts could be rallied into plans for escape or to the denunciation or even the punishment of harsh masters, but not against their convict status itself. After lawyers, professional criminals are the closest students of the law. Cunningham, the convict ship surgeon, tells of the convicts staging

mock court scenes on board ship with highly-detailed technical addresses from the ‘lawyers’.”’ In every group of convicts there was

Convicts and society 139 always a bush lawyer, declaiming about some quibble of the law which might be used to the convicts’ advantage.** In the colony the law was an instrument open to the convicts’ use and so its claim to legitimacy was

made more secure. The higher courts did allow the convicts to go free on technicalities and in the lower courts convicts could make complaints against their masters. We have some indication of how the law was an accepted part of the convicts’ lives in the willingness of the poorer ex-convicts to bring their domestic and neighbourhood quarrels to the magistrates for settlement.*? Ex-convicts who had married convict women went so far as to bring their wives before the magistrates for offences included in the convict labour code. Special measures had to be taken to discourage this use of the law.** The colonists in speaking of their safety did not usually refer to the convicts’ acceptance of the law — that the law could be regarded as illegitimate was almost beyond imagining — but they clearly derived

satisfaction and reassurance from the ritual accompanying the imposition of the law's ultimate penalty. Executions in Sydney were regular public events and they were extensively reported in the press,

which had previously carried details of the trial and discussion on whether the criminal was likely to be reprieved or hanged. How men behaved on the scaffold was a matter of great interest. ‘I am glad to hear that the poor unhappy persons who suffered this day the vengeance of the law died penitently’, wrote George Allen in his diary in January 1825.*° Confessing to the crime and seeking God’s forgiveness was the

proper behaviour for a man about to die. A man was expected to confess to ease the consciences of the jury which had convicted him.” The convicts who were executed in Sydney had already suffered much at

the hands of the law and they were the most hardened of the convicts

and yet about half of those who died on the scaffold conformed to the ritual and confessed to their crimes.*’ Among the many who were reprieved, confessions and penitence were more common. Some confessed to more crimes than those they had been convicted of. These claims always had to be examined closely because convicts sought by this means to free others from their fate.*® Some proclaimed their innocence

of the crime for which they were to suffer, but confessed to others. Shouting defiance was very rare. The unrepentant rebels were urged by

the clergy to put aside their earthly concerns. One prisoner on the scaffold warned the convicts to beware of Moreton Bay which was a hell on earth, and though this message was presumably not unacceptable to

secular authority, the Catholic priest interrupted him and urged him to direct his thoughts to another world.** Another convict was interrupted by the sheriff when he complained of hard usage, hunger and severe floggings, but he had begun his speech with a confession and an offer of forgiveness to all.°? A few men proclaimed their innocence. A large number kept silent. The significant point is that there were sufficient

140 Convict society and its enemies confessions for the last sanction of the law not to appear as a crude instrument of terror but as an affirmation of what society legitimately

expected of all its members. |

Men who knew nothing of the colony thought the great expanses of the Australian bush would provide a refuge for runaways and bushrangers who could live apart from the settlement and provide a focus for revolt. In the Americas there were colonies of runaway slaves which maintained an independent existence, encouraged further runaways, and fought regular battles and made treaties with the society they had

left. The men who knew the colony had to explain this was not a possibility in Australia. The bush was hostile. Bigge’s informants told him of the pitiful state in which runaways returned from the bush; they

had to be kept in hospital and fed up before they were fit to be punished.*! With a kangaroo dog a man might survive better since he was assured of meat. Once this became clear the settlers in the Hunter Valley were forbidden to keep kangaroo dogs so that the runaways from

the Newcastle penal settlement could not appropriate them. The Aborigines found no difficulty in surviving where the Europeans perished, but generally they co-operated with the authorities rather than assisting the runaways. Aborigines turned runaways in and provided valuable assistance in tracking bushrangers.*®* If a runaway

were to remain free he needed to find someone who could feed and shelter him or was willing to give him work without asking questions. The place where a man had the best chance of being lost in the crowd was Sydney and the town rather than the bush was the runaways’ chief

resort. Some did lose themselves or escaped by sea, but many were

picked up on the street, in the pubs, at race meetings and boxing matches. *4

Becoming a bushranger was the other way for a runaway to survive. Some bushrangers robbed in a small way merely taking enough food and goods for their own consumption; others, operating in larger gangs,

took more booty and used some of it to supply their friends and supporters.*” The bush was an important cover for their operations; they came from it to surprise people on the road and retreated into it, but the bush itself did not afford them a living. The authorities knew that they could not live apart from the settlements; they must continue to rob and eventually they would be tracked and caught. The bushrangers knew this too; some became reckless and cruel, but for others the inevitability of death gave them a magnanimity and grace. There were a few instances of bushrangers moving beyond robbery and seeking a means to escape from the gallows or a penal settlement. One group intended to move towards the coast, to live off their plunder until they could get a ship to take them away, but were caught before they could implement their plan. Other groups moved into the interior taking stores and some cattle with them; one was reported to have

Conucts and society 141 planted several acres of wheat. This was precisely the situation which the outside observers feared, but the groups were small and were fairly quickly tracked and caught. The country west of the ranges where these settlements were attempted was more open and tracking the men was

relatively easy. Major Mitchell, the colony’s surveyor-general, was questioned closely by the Molesworth committee on the possibilities of convict runaways living in the interior. He was confident that the police could find and put down any such settlement. By this time too (1838),

settlement had spread further and Mitchell thought that if convict runaways pushed off into the interior they would be troubled by lack of water. *©

Because the bush was so inhospitable running away was not regarded as a particularly serious offence. A runaway was only a temporary and not a permanent loss to the stock of labour and in some cases no loss at all because the runaway from one master was employed by another, the runaway passing himself off as a free man. Runaways generally worked well and behaved themselves to avoid attracting notice. One runaway worked for a settler for eight months, saved his wages and had become a

farmer himself before he was recognised.*’ Masters were fined for employing runaways, but, like the publicans who were prohibited from

serving convicts, they complained that it was hard to identify the proscribed party. There was pressure for the law to be relaxed, which in practice the unpaid magistrates could no doubt effect, and in any case

masters, like the publicans, were prepared to risk the fine.** For the convict, the penalty for running away was a flogging, usually of fifty lashes, which was the standard punishment for offences against the

labour code. Repeated absconding was regarded more seriously. Suggestions that the penalty for a first offence be increased were resisted

on the grounds that a light penalty encouraged convicts to give themselves up. Only as transportation was being abandoned was the law changed to make a captured runaway serve an additional time equal to his absence. *

There was a regular system of monetary reward offered for the capture of runaways, and the reward was increased if the runaway had been absent some time or had committed a serious robbery. A runaway’s

whereabouts would often be known, but men would wait until he ‘weighed his weight’, that is until the reward had increased, before taking him or informing the police.*® Convicts who caught runaways could choose to take the money reward or a reduction in the time they had to serve before being eligible for a ticket-of-leave. Police were eligible to receive the rewards and these formed an important supplement to their income, second only to that which came from sly grog

convictions. Where the police had received outside help, the usual practice was to accredit the reward to the chief constable of the district who then distributed it to his informers or assistants, whose identity was

142 Convict society and its enemies thus protected. The magistrates studiously avoided knowing too much about this business. *?

Because masters and the authorities were confident that men could

not escape for long, convicts being transferred from one place to another were given a pass and told to find their own way. The newlyarrived convict assigned up the country experienced something of the dangers and opportunities of the colony en route to his first master. Some robbed, or sold their bedding and got drunk; others had their bedding and belongings stolen from them.** The Molesworth committee which was so ready to believe that the bush could hide runaway convicts was surprised to learn how often convicts were trusted to move around the colony without supervision. Lieutenant Colonel Breton told them that the masters in the bush at a great distance from a court could give

an offending convict a pass and let him find his own way to the magistrates where he would be awarded a flogging. The committee

should have been surprised at men being tried in the absence of witnesses — which was certainly contrary to the usual procedure — but it was impressed instead with a man walking unsupervised to his punish-

ment. But why wouldn’t he abscond, one committee man asked. The answer was that he would be bound to be caught as most runaways were and then he would be punished twice, for his original offence, and the absconding. *°

Since it was so easy for convicts to run away the colony had to cope with the problem of bushrangers — the runaways who lived by crime —

but the opportunities for escape meant that the masters were less vulnerable to the hostilities and desperation which develop when hardened and embittered men are closely confined. Running away was a safety valve. Men escaped their direct oppressors, but usually not the system. Even from the penal settlements on the mainland — Newcastle,

Port Macquarie, Moreton Bay — there was nothing to bar escape.

Though survival outside these isolated settlements was almost impossible, men continued to run. The one place in the colony from which men could not run was Norfolk Island, which became the most dreaded of the penal settlements. The only chance for respite on the island lay in a concerted attack on authority and here, rather than on the mainland, unsuccessful attempts at rebellion continued to be made — in 1826, 1834 and 1842. In assessing the likelihood of revolt and disturbance in New South

Wales, outside observers tended to number up the ex-convicts and include them with the convicts as the unstable element in society. To those who knew the colony this was nonsense. When a Loyal Association

of militia had been formed in 1800 to help protect the colony against the French without and the Irish rebels within, it was composed chiefly of ex-convicts.** The Australian, which spoke for the liberal/emancipist

group, was particularly incensed at these misconceptions. Who, it

Convicts and society 143 argued, was more respectful to the government, obedient to the laws and generous with their wealth than the emancipists? Why would they want to revolt? Certainly not to enrich themselves for they could buy up

all the free emigrants in the colony. The paper pointed out that free emigrants and emancipists were bound together by their common interest in the preservation of the law and property.” That governments exist to

protect property was a truth fully realised by those who lived among thousands of professional thieves. The convicts certainly did much to cement the fellow feeling between all property-holders by robbing them

all indiscriminately. The emancipist merchants and shopkeepers suffered from the thieves as much or more than the free emigrant colonists. Thieves broke into the offices of the Monztor newspaper at the very time it was criticising Governor Darling for his harshness towards convicts.*° The chief victims of the bushrangers were the ex-convict small farmers. The larger properties of the free settlers were generally

left alone because the greater number of people living and working there made attack more dangerous. The convict bushrangers were not at all like Robin Hood; these men robbed from the poor to feed and support themselves. The humblest settler or an assigned servant in his hut had clothes or food which the bushranger could use. One thing that

distinguished Bold Jack Donohoe was that he did concentrate on robbing the rich. He would waylay gentlemen on the road and make them give up their clothing. This was one reason for his fame but he was far from being a typical bushranger. Despite the Australzan’s disclaimers, there was of course an element of truth in the belief that a society of ex-convicts and convicts would be

prone to disorder. Bushrangers were able to survive not so much because of the shelter of the bush, but on account of the support they received from ex-convicts and convicts. They supplied information, shelter, companionship and a market for their stolen goods. The only offences for which the colony had to adopt harsher penalties than those in English law were the harboring of robbers and the receiving of stolen goods.*’ But the support for bushrangers was, in the case of ex-convicts, limited to a few individuals and among convicts at large only partial at best. As we have seen, convicts and ex-convicts were the victims and captors of bushrangers as well as their supporters. It was not unknown for bushrangers to rob people who had earlier offered them assistance. The ties and loyalties which drew bushrangers together into their gangs

and connected them to their supporters rested very uncertainly on a generalised fellow feeling among convicts and were strongest when men had shared specific experiences as ship mates, hut mates or work mates or when they came from the same part of the old country.*

The fellow feeling among the Irish was the strongest of these subsidiary attachments. Their nationality, religion, and, for the Gaelic speakers, their language marked them off from the English majority.

144 Convict socrety and its enemies They were on the whole less depraved and hardened in crime and so were more trusting of each other. They were older and more of the men were married. It was the Irish who took most advantage of the opportunity of bringing their wives and children to the colony. Irish clannishness showed itself in the passionate devotion to their priests, in the great wakes held after the execution of an Irishman and in the ballads which

celebrated Donohoe’s exploits and linked the convict’s plight with Ireland’s wrongs.*? Had there been this degree of attachment among the convicts generally, the colony’s history might have been very different. In contrast to the alarmist views of outside observers, the colonists positively boasted that their lives were as safe in New South Wales as in England itself. To claim that property as well as life was as safe as in

England was straining credibility too much, but the assertion that Sydney’s crime and drunkenness were no worse than London’s or seaport towns’ was commonly made. What helped to reconcile the colonists to the depredation of the robbers was the knowledge that detection in a

small community was much more certain than in the large cities of England and particularly London where the professional thieves had learned their trade.°® For the newly-arrived free emigrants the relief at finding that the colony was not the pandemonium it was depicted was immense and this may have protected them from any fears thereafter, for certainly there were isolated cases of convicts taking revenge on the lives and more frequently the property of the masters.°’ When some of the men on Castle Forbes, an estate in the Hunter Valley, ran away in 1833 they returned the next day to settle scores with their master. They fired at him while he was at the edge of the river sheep washing and one called out ‘You'll send no more men to be flogged’. “You villain, you tyrant’, yelled another, ‘I'll make you remember flogging, I will you tyrant’. The shots all missed but of course the attempt was enough to hang them. Before they were caught they robbed one other settler and

stripped and flogged a third. ‘How do you like it?’ called out the youngest runaway, an Irish lad of 17, who had received two floggings of fifty lashes in the previous four months. °”

But the murderous feelings of revenge which flogging induced in some convicts were not turned solely or even mainly on masters and magistrates. The actual flogging was performed by the professional scourger who was usually a convict, or if not, an ex-convict. Of all men, convicts hated the floggers most.*’ In their eyes they were not merely an

instrument of others, but a traitor to their own kind. How careful

magistrates and masters were to reserve the work for the professional scourger was demonstrated when a travelling magistrate was appointed as an experiment to move from station to station in the outback country to save masters the trouble of taking men huge distances to court. A

scourger accompanied the magistrate and on one occasion he was delayed because of an accident to his horse. The magistrate rode on

Convicts and society 145 alone. He heard the cases but the sentences could not be put into effect. Neither the magistrate himself nor the master nor any of the men on the station was thought of as being capable of wielding the whip.” As well

as nurturing feelings of hatred and revenge, convicts coped with flogging by accepting it into their own world and making it a test of manhood. It was a great boast to have endured a flogging without crying out. At the convict barracks in Sydney the convicts were drawn up to watch the floggings. They laughed at those who cried out under the lash.°°

The security which the colonists felt was evident in their failure to improve the local police force which was notoriously poorly staffed and organised. The constables were convicts and in later times ex-convicts, generally illiterate, and very poorly paid. There was a huge turnover in personnel as constables were dismissed for drunkenness, corruption and neglect of duty. Given the composition of the colony, it was inevitable

that constables should be ex-convicts, but higher wages might have attracted a better type. No one was prepared to pay for this and so the choice had to be made from the dregs. A constable was meant to devote his full time to his duties, but many took on the job as a sideline. This irregularity was frequently winked at for men who had a small farm or some trade or business were a better quality than the rest, though of course they had less time to devote to police duties.°® In Sydney the organisation of the force was more complete than else-

where. All the constables were under the control of the Police Magistrate, a full-time officer in government employment, and they were rostered into regular beats. In the 1830s the plans to imitate the new London police did not lead to much improvement since the quality

of the men remained dismally low. The regulation that the Sydney constables wear a uniform was not enforced.*’ Nowhere in the colony

did the constables wear a distinctive dress which meant that bushrangers could pass themselves off as constables to gain access to houses and to confuse travellers on the road.*®

In the country constables were responsible to the local magistrates who hired and fired them. There was no colony-wide organisation of the police and no regular machinery for exchanging information between the various magistrates who controlled the constables, despite regular

recommendations for improvements in this regard from boards and enquiries.°? One centrally controlled organisation might promise more efficiency, but local control of police could not be avoided while men were unreliable, poorly educated, and in need of constant supervision.

Magistrates were reluctant to yield up their control of the local constables since they personally benefited from it, not merely from the power and patronage it afforded, but because of the protection it gave to their own property to have a constable resident upon it.” This pitiful police force was adequate for the colony's needs until the

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The shame of Botany Bay 191 emigration for men of small capital, but he conceded that the colony had one serious drawback — ‘it is the only country in the world which you are ashamed to confess the having visited’. ’

Imagine a group of people enjoying a joke about some banana republic, and then telling them, when the laughter stopped, that you intend to emigrate there. No banana republic of the present day stands as low in our esteem as New South Wales did in English eyes. An intending emigrant to New South Wales had to face the embarrassment and scorn of his peers and the entreaties of his relatives not to go.* The Reverend J.D. Lang tells us that the hardest thing to bear after he had decided to go to New South Wales on finishing his university degree was not the thought of leaving his native land but the taunts of men who hadn’t done nearly as well as he had at the university — “There's that

poor fellow Lang despairing of a situation in Scotland and going to Botany Bay to hold forth to the Kangaroos’.’ Both Lang and Cunningham reported that many people were deterred from emigrating because of the colony’s convict taint. Once they were settled in the colony, the free emigrants generally came to think of it as their home. This surprised Commissioner Bigge whose former colonial experience had been in the West Indies where

men made their fortunes and then returned home to Britain.'° The

attachment of the free emigrants has sometimes been doubted by those

who see patriotism growing most strongly among the convicts, emancipists and the native born. To sustain this view Bigge’s evidence has to be ignored or misread.'! Certainly some of the free emigrants did return finally to Britain. It is also true that the emancipists were tied more firmly to the colony, sometimes by legal requirement — where their pardon was only conditional — and generally by the prejudice

they would encounter in British society. The emancipists regarded themselves as the better patriots, accusing the free emigrants of being interlopers in a convict colony. Significantly, however, they did not accuse them of only wanting to make their fortunes and leave; on the contrary, the case against them was that they were constituting themselves into an oppressive landed aristocracy. Bigge gave one reason for the attachment of the free emigrants to the colony. Large fortunes could no longer be made quickly as in the rumtrade days and the colonists had to reconcile themselves to making only moderate profits over a long period. The West Indies and India, where large profits were made quickly, probably attracted a superior emigrant with greater capital. We may also surmise that since New South Wales was a last resort, the most despised of the colonies, the men who went there stayed because their reception back in Britain was so uncertain. To some extent, everyone in the colony was an outcast.

The families who were remaking their lives in New South Wales remained acutely conscious of the low opinion in which the colony was

192 Convict society and its enemies held. This awareness had important consequences. It gave a special intensity to the desire to distance themselves from the emancipists. The formation of a ‘society’ which excluded emancipists was not merely to secure the emigrants’ claims to gentility within the colony, but to tell those at home that the corruption of Botany Bay was being resisted. To those anxious relatives, the quality and exclusiveness of New South Wales ‘society’ were important pieces of news. There was also a determination that despite its peculiar social composition the colony should be as much like a British community as possible. The British practices

and traditions whose significance has been emphasised in earlier

sections of this book — the classification of convicts as servants, the maintenance of English law and of convicts’ rights under it, the respect for property and hence of the emancipists’ right to convict labour — were not adhered to through inertia only. They were an affirmation of

normalcy, a denial that something terrible and strange was being created at the antipodes. These attachments were often at the expense of the emigrants’ immediate self-interest and of the maintenance of convict discipline. Governor Darling, who was preoccupied with disc1pline, thought the great evil of the colony was the passion that it should be like England.’ The development of the legal system was related in a very particular way to the shame its practitioners felt at being in Botany Bay. Before J.H. Bent, the first judge of the civil court, left England, he requested a knighthood and was refused. His biographer puts this request down to

mere vanity. Perhaps so — but this is not to be understood in the ordinary way. Going to New South Wales involved a loss of caste and Bent wanted the knighthood, as he put it, ‘to raise the character of the Colony and add as much respectability as possible to the situation I am

going to hold’.'* On his arrival he refused to admit the emancipist lawyers to his court and though the dispute with the governor which followed led to his dismissal, his stand was upheld in London. Bent wanted his court to be as pure as any in the King’s dominions, and he considered that his own honour would have been compromised if he had acted differently.

The first chief justice, Francis Forbes, appointed to the supreme court which was established under the 1823 New South Wales Act, had

a similar concern. He was proud to report that under his control the courts of the colony had become as independent and powerful as the courts at Westminster.'* The supreme court during his years as chief justice extended the law’s power by keeping to a minimum the convicts’

legal disability. Bent disturbed the local custom of tolerance and indulgence towards emancipists; Forbes confirmed and extended the convicts’ rights. Both were concerned to uphold the probity, independence and Englishness of the law. A judge sent to the slave societies of the West Indies presided over a law system which departed funda-

The shame of Botany Bay = 193 mentally from English principles, but no dishonour attached to him for

so doing because these colonies were not in themselves regarded as damaging to honour and respectability. New South Wales certainly was, and the judges responded by making the law and the courts as English as possible, no matter what the local exigencies, in order to protect their own reputation. Despite the barrage of adverse criticism and mockery that came from Britain, the emigrants believed in the future of their colony. What gave them most cause for optimism was the fine character of the native-born. The Rev. Robert Cartwright told Bigge that but for this he would have left the colony long since.'’’ The native-born grew tall and strong and had more endurance than the European. Though largely the children of convicts, they did not inherit the vices of their parents. They were law abiding and sober. To men who believed in the power for good or ev:! of blood and inheritance this was an amazing outcome. To us now it seems

somewhat less so. The abundance of food compared with what was available to the poor in Britain and a favourable climate explain the health of the native-born and the shortage of labour why it was easy for them to get work and follow an honest life. The native-born were more likely to have as parents not the degraded and drunken ex-convicts but those who had small farms and businesses or a regular trade.'® Even so, that the whole generation almost without exception should turn out so well does remain something of a mystery. This is as it should be; for if

we had a completely satisfying explanation of the phenomenon we might overlook its contemporary significance which was simply that it was miraculous. In the midst of degradation and dissipation had grown this wholesomeness.

Some hint of the colony's regenerative power had been given in the first years at Sydney Cove. Women who had been thought barren gave birth. Everyone was impressed by the numbers of children who were being produced. Actually the birthrate was not outstandingly high, but the impression was well grounded, for infant mortality was low and since so many of the women were of childbearing age, the proportion of children in the population rose rapidly. Only a handful had come in the first fleet. There was a remarkable official effort to ensure that these children were well educated. Very early on convicts were appointed as teachers and the proportion of children in school and the fact that these

were government schools marked the colony off from the mother country. The clergy quickly came to the view that the convicts could never be reformed and they decided that the hope of the colony lay with

the children, a view which was generally shared by governors and officials.'’ The presence of children is one reason among others for not viewing the early settlement as a jail, and the determination to see that they were properly educated shows how quickly those in the colony were working to confound the critics of Botany Bay. Among all the reasons

194 Convict society and its enemies given for the fine character of the native-born, perhaps we should add the eagerness of officialdom and the emigrants to see that they did well. The attitude of the emigrants towards the native-born has sometimes been obscured or distorted by the studies which divide the population into two parts, the emigrants on one side who pined for England and didn’t think of the colony as home, and on the other convicts, eman-

cipists and native-born who were more attached to the colony and among whom ‘Australian’ values and attitudes took firmer root.'® We have already questioned the claim that the emigrants were not attached to the colony. It is also important to see that the grouping of the nativeborn with convicts and emancipists obscures the very obvious fact that

the basis of their attachment to the colony — that is, that they were natives — distinguished them from the convicts and emancipists equally as much as from the emigrants. To the native-born, the convicts and ex-

convicts were certainly not Australians.

It was on the sporting field that the native-born tested their claim to superiority over the Europeans. In cricket they may have been playing chiefly against emigrants; in boxing, which was the most popular testing ground and where the birth-place of the contenders was central to the interest the contests aroused,’* the native-born was more likely to be encountering an ex-convict. In politics the liberal party claimed to be speaking for the nativeborn in demanding that full powers of self-government be granted to

the colony. In the 1820s Wentworth and Hall made much of the exclusion of the native-born from the land. At this time land grants were being made only to new emigrants with capital. This was one matter on which Governor Darling yielded and schemes to provide small ~ grants to the native-born were instituted.*° The short-lived newspaper, the Currency Lad, run by Horatio Wills, ‘an Australian’, in the interests

of the native-born, sided firmly with the liberal party in its constitutional demands. In the debate over convict discipline, however, this son of a convict took a tough line and urged that a first flogging should

be severe enough to deter the convict from coming back.?! The Currency Lad was chiefly distinguished by its enthusiastic and extensive coverage of sporting events. This the editor defended because he saw

sport as a means of keeping clear the line of demarcation between natives and Europeans and stimulating the natives to excellence and affording opportunities for notoriety and heroism.” Apart from Wentworth’s pre-eminence as liberal leader, the native-

born did not play a large part in liberal politics. This troubled the liberal leaders for they frequently complained of general apathy and warned that if people grew up knowing so little about the practices of the British constitution they would become entirely careless about their political rights. One can see the danger. Obtaining the right to sit on a jury, on which the liberals expended so much effort, was in all con-

The shame of Botany Bay = 195

science a tame matter compared with the thrill of seeing Cable, the native-born boxer, triumph in the ring. Nothing in the social or political life of the colony deterred the emigrants from seeing the native-born as a distinct group, potentially favourable to their own cause, and certainly not to be confused with convicts, ex-convicts or liberals. Many of the famous glowing accounts

of the native-born character were written by emigrants or those sympathetic towards them. Commissioner Bigge, who was the author of one of these, envisaged that an emigrant/native-born alliance could be the foundation of the colony’s future respectability. He noted that the emigrants generally did not extend their prejudice against ex-convicts to their children.*? The Sydney Herald, fierce in defence of the emigrants, looked to the native-born for support.** The toasts of the Currency Lads and Currency Lasses were given at ‘society’ dinners as well as at the

rowdy Anniversary dinners organised by the emancipists on the 26 January.” The local law on criminal punishments linked emigrants and ‘Native-born together for special treatment in cases where they were convicted of transportable offences. Instead of being transported to a penal settlement — which was the fate of the convict or the emancipist — they were allowed to serve their term in assignment within the

colony.”° In the wild talk about the operation of civilian juries, emigrants were said to be determined not to convict the native-born, which was a threat or accusation to match the claim that emancipists would not convict their own kind.?’

In all the traumas associated with migration and settlement in new

societies, the claim to superiority or worth because of birth in the mother country has been a prop on which migrants have frequently relied. When they do, they regard the native-born as inferior or at best people of doubtful worth and accordingly resist any claims which the native-born may make to superiority over the parent stock. Victoria in the late nineteenth century provides a classic case of this jealousy. What is notable about the New South Wales emigrants’ attitude to the nativeborn is their lack of resentment at the natives’ claims. Indeed the boast of superior strength and staying power was conceded. The reason for

this is simple. The emigrants could not boast of their British birth because the convicts, who were responsible for the ignominy cast upon the colony and themselves, were British-born as well. In circumstances

where they needed it most, as outcasts of the civilised world, the reassurance of British birth was not available to them. The emigrants could boast of coming to the colony free, and their cleanness before the law, which served to distinguish them from convicts and ex-convicts, became also their bond with the native-born. Instead of resenting them,

the emigrants encouraged them as a virtuous counterweight to the influence of their fellow countrymen, the convicts, and as a demonstration of the healthiness of their society.

196 Convict society and its enemies What other reassurances did the emigrants have of the worth of their colony? The most tangible was its growing prosperity. The economic progress of the colony was close to the emigrant’s heart — since he had come to make his fortune — and part of his everyday experience as he witnessed the extension of improvements, the spread of settlement, the growing refinement of life. Colonial ‘society’ became less limited and its enjoyments more diverse. Its progress was recorded by the numbers at the government house balls, and a milestone in its history was the King’s

Birthday ball in 1826 when for the first time the number of ladies equalled that of the gentlemen.”®

Prosperity must win Britain’s approval if nothing else would. The colony depicted itself as a valuable addition to the empire and as its Capacity to produce wool and take emigrants became more evident, interest and respect did grow. However, the boasts about prosperity were likely to lead to trouble from those in Britain who took a specialist’s

interest in the punishment of criminals. If the colony was prosperous

and known to be so, could transportation any longer deter? The colonists had never been concerned at the punishment of the convicts for their British crimes. The prosperity of the colony did not seem to them to be at odds with its penal function for it was a sign of the reformation that had been and could be wrought in the convicts. Men who had lived by scrounging and crime had learnt to labour and on the expiry of their sentence were able to support themselves honestly. If they

had been kept in England they would have returned to a life of crime. But in the 1820s and 1830s in England, the preoccupation was not with reformation but with deterrence. The colonists were eager to be noticed by the world at large; they

grasped at every favourable reference to their development and prospects, but in looking so anxiously for the good opinion of others they constantly met the old scorn and distaste. A speech in the House of Commons or a paragraph in a newspaper was enough to show that their

attempts to depict the colony as a respectable, well ordered and prosperous society had failed miserably. The words ‘Botany Bay’ dogged

them. This had been the destination of the first fleet and the name stuck. It had alliteration and euphony on its side and easily carried a

mocking or sarcastic tone. The colonists well knew that so long as that name was in use all the old associations of degradation and of a world turned upside down survived. But far from persuading others to give up

the term, such was their uncertainty and insecurity that they used it among themselves as a term of abuse. If anything was preposterous, unprincipled or contradictory it was derided as a Botany Bay produc-

tion. So the liberals mocked the emigrants for wanting to make themselves into a Botany Bay aristocracy.*? The emigrants mocked the liberals for their Botany Bay constitutions and described emancipists as Botany Bay jurymen.”*°

The shame of Botany Bay = 197

Accepting the bad opinion of others was an alternative to fighting against it. One way the colony could be made interesting to a British audience was by the recounting of the colonial careers of the notorious criminals who were transported to it.*! This of course emphasised its penal character which otherwise the colonists had an interest in downplaying. Laughter was another mode of acceptance. The jokes about the people of New South Wales being chosen by the best judges in England were common currency. **

It is fascinating to look at the amusing anecdotes which appear in accounts of life in the colony during the convict era. Their sardonic irony strikes us as typically Australian and we can suggest that their telling represents a half acceptance of what England expected of life in Botany Bay. L.E. Threlkeld, the missionary to the Aborigines, records that on one occasion he sent two convicts into town with his 11-year old

son. One of the convicts became drunk and on the return journey threatened to beat his son. Fortunately a faithful Aborigine had accompanied the party and he stood forward to protect his ‘young master’. Threlkeld was sure that he would have flattened the convict to the ground for the Aborigine was drunk too.* The sober Quaker missionary James Backhouse tells us of a Sydney merchant who took the pledge. He

decided to tip the wine he had in his store into the harbour. As he performed the deed, one man from a little vessel cried out “That’s real murder’. **

James Mudie, execrated by the colonial liberals as a tyrant for his cruelty towards convicts, had the best ear for convict dialogue of all the colonial commentators and large sections of it appear in his writings. This alone would suggest he was not the heedless monster he was made out to be. One of Mudie's stories concerns a young man who was going down to Sydney to choose a wife from the Female Factory. As he passed Mudie’s gate he was told that there was a young woman servant on the

property who might suit. The girl was sent for and she immediately accepted his proposal. He abandoned his plans to go to Sydney and presented himself before Mudie to ask for the hand of a very pregnant woman. Mudie tells the story in mock pastoral style and gives the name

Celebs to the young man. The young woman approached her master

first (Mudie enjoyed the title of your Honour because he was a magistrate):

Marianne: I wish to ask you a favour, your honour. His Honour: Why, Marianne, you have no great reason to expect particular indulgence; but what is it? Marzanne (curtsying and looking still more interesting): I hope your honour will allow me to get married. His Honour: Married! To whom? Marianne (rather embarrassed): To a young man, your honour. His Honour: To a young man! What 1s he?

198 Convict society and its enemies Marianne (her embarrassment increasing): I really don’t know! His Honour: What is his name?

Marianne: I can't tell.

His Honour: Where does he live?

Marianne: I don't know, your honour.

His Honour: You don’t know his name, nor what he is, nor where he lives! Pray how long have you known him? Marianne (her confusion by no means over): Really, to tell your honour the truth, I never saw him till just now. Mrs Parsons sent for me to speak to him; and so, — we agreed to be married, if your honour will give us leave. It’s a good chance for me. Do, your honour, give me leave!

His Honour: Love at first sight, eh! Send the young man here. [Exzt Marianne |

Enter Celebs.

His Honour: Well, young man, I am told you wish to marry Marianne, one of my convict servants. Celebs (grinning): That’s as you please, your honour. His Honour: As I please — Why, have you observed the situation the young woman is in? (Marianne being “in the way ladies wish to be who love their lords.’’) Celebs (grinning broadly): Why, your honour, as to that, you know, in a country like this, where women are scarce, a man shouldn't be too “greedy!” I’m told the young woman’s

very sober, — and that’s the main chance with me. If I go to the factory, why, — your honour knows I might get one in the same way without knowing it, — and she might be a drunken vagabond besides! As to the pickaninny, if it should happen to be a boy, you know, your honour, it will soon be useful, and do to look after the pigs.*°

These accounts were not introduced by their authors as jokes. The general theme of the works in which they appeared was the depravity of colonial life. But when the normal standards are completely reversed, then ‘depravity’ can be an object of amusement as well as dismay. This

was one way in which the respectable could come to terms with their thoroughly disrespectable environment — and what outsiders thought of them for being in it. The dependence of the colony upon Britain made the defence of its reputation more difficult. In denouncing the plans and proposals of their enemies as ‘Botany Bay’ productions, the colonists had as always in

colonial politics an eye on the British audience. The emigrants who wanted to thwart the liberals’ constitutional proposals said the colony was not yet ready for them and to emphasise the point they highlighted

the unsavoury aspects of colonial life. During Bourke’s rule they proclaimed that the convicts were out of control. This was a dangerous

The shame of Botany Bay 199 game to play for if they succeeded in persuading the British policymakers of the colony’s failures, then their own reputation would suffer by association and even their own interests might be endangered — as the event proved. As the failure of the transportation system to deter was insisted on

more determinedly in Britain, the colonists had to take up the

unaccustomed theme of how much the convicts suffered in New South Wales. The Sydney Gazette on one occasion filled its editorial column with an account of the bad masters and harsh treatments which convicts had to endure in New South Wales. One modern author who wants to damn the system cites this as evidence from one who must have known.* He overlooked the first passage in the editorial which pointed out that English critics were wrong to think that transportation was no punish-

ment. In the 1830s one pamphleteer defended transportation by arguing that the negro slave had an easy time compared with the convict. He was answered by another who denounced him for looking upon the convicts as slaves, whereupon the first writer changed course completely and asserted that the slave codes of the Americas were much

harsher than the local laws to control convicts.*’” These were the

confusions which arose when colonial writers sought to impress a British

audience which on the one hand wanted convict punishments to be harsher and yet on the other could be expected to oppose slavery. When the British government decided to abandon assignment and then transportation in any form the colonists were disappointed but not overly surprised. What appalled them was the evidence taken by the

Molesworth committee of enquiry which was used to justify these decisions. Molesworth believed that convictism had corrupted the whole society, the free as well as the bond. He eagerly sought evidence on the extent of crime and moral depravity which enabled him to come to his triumphant conclusion that no civilised society in the world had sunk as low as New South Wales.

Much of this evidence was obtained from colonists who were in London. On the general corruption of New South Wales he elicited much from the Reverend J.D. Lang and from James Mudie, the victim

of Governor Bourke’s ‘leniency’. Lang judged moral matters by evangelical standards. For him the depravity of the masters of New

South Wales was shown by their support of horse racing, the

attendance at fancy dress balls and the possession of mistresses.°*> Mudie was wild 1n his denigration of every aspect of colonial life. The worse the

picture he painted the more harm he would do to Governor Bourke’s reputation. But his mockery knew no restraint and he turned it on the emigrants themselves. He told of respectable wealthy men in Sydney who had married convict mistresses. He could name names if they wanted. Before taking her place in Sydney society one of these women had formerly beat the tambourine in the streets of London with the

200 Convict society and its enemies hurdy gurdy people. He declared that the oldest families in the colony — the ancient nobility — were ridiculously proud. It was quite laughable. One woman who had begun her colonial career milking cows on her farm now compared her family with the Dukes of Bedford.°*°

Whatever the polite world in England had thought of colonial society, previous public enquiries had not questioned the character and standing of the colony’s gentlemen or collected this sort of evidence

against them. The Molesworth enquiry made another departure. It went beyond the examination of the convict system to enquire closely into the sexual lives of the convicts. The chairman pumped his witnesses for information on beastiality and homosexuality among the convicts. Mudie offered him some assistance but his star witness was E.A. Slade, a former superintendent of the convict barracks who had been sacked by Governor Bourke because of his own sexual misdemeanours which were

straightforwardly heterosexual. Slade readily agreed with Molesworth that sodomy was more prevalent in New South Wales than anywhere else in the civilised world. Convictions for 1t in the supreme court were rare because of the difficulty of obtaining evidence. When men were caught they were taken before the magistrates who could convict them in a summary way and award a flogging. But on what evidence the committee wanted to know. The men were found with their trousers down. Just that? With their trousers down in secluded places with other men. But what if they were merely easing themselves, asked one com-

mittee man. Slade then revealed all: the men were found in an improper, indecent position with their trousers down.*° To mention this

subject at all was almost taboo. To uncover and print these details consigned the colony to outer darkness.

When printed copies of the committee’s evidence reached Sydney they created a furore. The colony had been traduced and the reputation

of every respectable person in it questioned. Worse, it had been betrayed by those colonists who had fed the committee the dirt to blacken the colony’s name. Mudie had ridiculed the emigrants who had rallied to him in his difficulties. Slade, a reprobate himself, had dared to set himself up as a judge of the colony’s morals. Lang, whose family

had benefited from convict labour, had characterised the masters as immoral slave holders. A public meeting of leading men in Sydney was quickly convened which defended the operation of the convict system

and asked the governor to establish a local committee of enquiry to

answer the slanted evidence which Molesworth had collected.*! Only the Sydney Herald affected not to be disturbed by the Molesworth evidence. It claimed that in broad terms an accurate view of the

colony had been presented. Nor was it troubled at the prospect of transportation being totally abandoned. The Herald like the emigrant party generally had been involved for years in depicting the colony as

disorderly and ill-disciplined as a means of discrediting Governor

The shame of Botany Bay 201 Bourke and the liberal party. It had also urged on the emigrant party the advisability of forgoing transportation as a means of finally putting an end to convict influence. So in its eyes there was no necessity for the Molesworth enquiry to disturb the usual alignment of colonial politics. It criticised the Sydney public meeting which complained of the Molesworth evidence as a front for the liberal party.*? But in this the Herald

seriously miscalculated. The emigrants were disturbed at the Molesworth evidence. In the hands of such as Mudie, Lang and Slade, the claims of the colony’s corruption had been carried too far and had returned to plague their inventors. The emigrants, quite as much as the liberals, wanted transportation to continue to provide the colony with a

labour force. There was, it is true, a slight difference between the parties on the matter. The emigrants could see the point of the Herald’s

recommendation that transportation be abandoned, but they had no more than toyed with this idea. While labour was in short supply, transportation had to continue. Because the case for ending transportatlon was put as a means for ending convict influence, the liberals, as the defenders of the emancipists, had more than their economic interests to make them supporters of transportation. The leading part in calling a public meeting may have been taken by

liberals, but the meeting was genuinely bi-partisan. The legislative council, where the emigrants were strongly represented, regarded it as such when at the governor’s invitation it discussed the suggestion that a local enquiry should be held. After a long debate on how best to repel the attacks which had been made upon the colony the council decided against holding a local enquiry and propounded instead a set of resolu-

tions defending the colony’s moral state and the convict system, and more particularly the assignment of convicts into private service.*? To

demonstrate the respectability of their own order the councillors pointed out that the free emigrants included many officers of the Army, Navy, and the East India Co.’s Service. They rescued the native-born

colonists from the imputations cast upon them and claimed that the emigrants and native-born together (a conjunction whose significance has been noted above) were sufficiently numerous to impress a character

of respectability on the colony at large. They pointed to the great material progress of the colony in the short space of 50 years as evidence of the enterprise and industry of the colonists and as a sure sign that the society was not as depraved as Molesworth wanted to paint it. Churches and other worthy causes were well supported. In defending assignment, they asserted that no system of punishment was so cheap, so effective, and so reformatory.

As was common with colonial defences of transportation, they took no account of whether transportation was an effective deterrent. They stressed instead its reformatory aspects — men were taken from their old associates and taught to work so that on becoming free they had a

202 Convtct society and its enemies strong inducement to continue in an honest course of life. This was usually what the colonists took to be ‘reformation’, but having read the

Molesworth evidence, the councillors knew that Molesworth didn’t

accept it as such. He was not impressed with mere alteration in

behaviour; he wanted the actual reformation of the inner man which required moral and religious instruction. So the councillors now added

the proviso that assignment was reformatory so long as it was accompanied by adequate religious instruction and in their debates they considered how travelling missionaries might be sent to the convicts in the bush to produce reformation on the Molesworth formula. The legislative council resolutions were drawn up in a measured and restrained style; in the council debates the bitterness which the councillors felt at being disowned so completely and publicly by a House of Commons committee showed through. Jibes against British society came from men who were not usually given to criticising it. Where after all,

the councillors pointedly asked, had the crime and depravity which disturbed Molesworth been created? Britain produced the criminals, shipped them off with little or no thought as to their morals or religion

and was then surprised to find them not angels. By the methods of analysis adopted by the Molesworth enquiry — taking the worst cases

and generalising from them — Britain could itself be shown to be a totally depraved society. **

Rejection led men into strange paths. One conservative councillor, fiercely determined to turn back on Britain the criticisms that had been made of New South Wales, said he would make his point even though

he would be denounced as another Papineau — the rebel leader in French Canada.* Broughton, the Anglican Bishop and a member of the council, in taking up Mudie’s criticisms of the colony’s ancient nobility, said that what did origins matter for in time the best families would be respected as much as the English dukes who had acquired their property through ‘feudal ravages or spoliation of the church’. This

was scarcely the way for an Anglican Bishop to describe the English aristocracy. But Broughton had felt the denunciation of the colony keenly. After reading Molesworth’s evidence, his relations at home had

written to commiserate with him on living in such a dreadful place.* This was the pity that enraged the emigrants. The liberals were particularly dismayed at Molesworth’s attack on the colony because Molesworth was a Radical. They had looked to British Whigs and Radicals to provide them with a constitution which would allow them to triumph over the emigrant party. That had been denied them and now a Radical had held up the colony to universal execration

and a Whig government was planning to ruin it by cutting off the supply of convicts. What had gone wrong? The Australzan pondered this matter again and again. It looked to the part the emigrants had played in starting the stories of the colony’s demoralisation. When it

The shame of Botany Bay 203 became known that Molesworth had recommended and the government

had accepted that the price of the colony’s land should be raised, the paper became convinced that New South Wales was being sacrificed to South Australia, the pet scheme of the Radicals. Since that colony had been saddled with a high land price and a no-convict policy, it seemed

that New South Wales was being made to conform lest its success damaged the chances of the new colony. This was a common view. The Australian was closer to the truth when it sensed that Molesworth took up colonial policy merely as a party manoeuvre to embarrass the Whigs. But finding a true explanation brought little comfort: it was ‘a game ... to you Tories, Whigs and Radicals, but it is present death to us’. The disorientation which arose from being attacked by a Radical and the frustrations of powerlessness bore heavily on the Australian's editor. At one stage he announced he would sift this conspiracy to the bottom;

on another that he would in future ignore Molesworth and _ his committee, that he would fling them aside ‘with the same contempt as they would have us flung from our place among the Christian people of the earth’. But like prisoners who talk senselessly and compulsively about what their captors intend for them, he could not leave the subject alone. *’

Helplessness was the prevailing mood. Before the colony's protests could be heard, the British government would have acted on the report on which it had given ample signs that it would look sympathetically.

Some hoped that though Molesworth had traduced them the British government and parliament would see justice done. This feeling evapo-

rated with the news that the government had raised the price of land.

Only the Herald spoke boldly. It called on the colonists to make immediate plans for proclaiming their independence. They should begin by boycotting British goods and favouring other European powers which might be helpful in their time of need.*

Though the Herald had stood aloof while the rest of the colony pursued the Molesworth libels, it had come by a different path to share the general anger and frustration at Britain’s treatment of the colony. It had urged the colonists to cease troubling about obtaining convicts from

Britain and to look instead to coolies from India. The labour supply from that source would be more ample and the colonists would no longer be at the mercy of the British government and those who had a bee in their bonnet about punishment and reformation of convicts. Coolies had been brought to the Herald’s attention because they had been used by the land owners of Mauritius and the West Indies after they had been deprived of their slaves. Just as the Herald turned to them as the solution to New South Wales labour problems, a huge outcry was

raised in England at the coolie trade as a revival of slavery under another name. The British government banned further shipments from India. The Herald was furious. It had largely acquiesced in the Moles-

204 Convtct society and tts enemies worth attack on the colony while everyone else was in a rage because it

wanted transportation to be abandoned; now that the alternative to transportation which it had long advocated was ruled out, its criticisms

of Britain were more savage than anything that had gone before. It denounced the hypocrisy of Britain in subjecting its own ‘white slaves’ to

long hours in factories and to the inhuman workhouses and yet objecting to the employment of Indian coolies on better terms in the empire overseas. The critics who confused a well regulated system of indentured labour with slavery were old women and gaping idiots.‘ Molesworth had taken a leading part in denouncing the coolie trade and having attacked both transportation and the Herald’s alternative to it, he was left without a friend in the colony. But Molesworth was not, as

the colonists saw him, intent on ruining the colony. He wanted to see

New South Wales labour problems solved by a large influx of free emigrants. To pay for these he recommended an increase in the price of

land. This was the last straw. When news that the government had accepted this recommendation reached Sydney, the Herald issued its call for independence.

The Australian, which had insisted on the colony’s right to selfgovernment since its first numbers, announced that it was not yet ready to follow the Herald in demanding full independence.* Here was an odd reversal. It was the liberal party which had regularly been taunted with disloyalty and now its newspaper proclaimed its reluctant loyalty while

the Herald played with sedition. However, shortly afterwards the Australian did publish an independence manifesto written by ‘A Backwoodsman’ and addressed to the native-born of the colony.*! This

began with a desperate boast. It was the jealousy felt by that pygmy island Britain for the Australian giant which explained the attack on the colony. But ‘A Backwoodsman’ had none of a giant’s invulnerability. The whole piece shouts of the hurt he felt at the gross insult which Britain had heaped upon the colony — ‘She tells us — aye from the bosom of her parliament she tells us — that we are a “race of devils” — “Let them be swept from the face of the earth” — “Sink them”, she

says, “Sink them!” Such, such is the language of the parent to her unoffending and loyal offspring’. These indignities could not be borne. In the coming war of independence the Backwoodsman thought that the Australian troops might take up the cry ‘Sink them’ and hurl it back as a war cry on the mercenaries which Britain would send to quell them.

That it was the emigrant paper which first called for the colony’s independence shows more clearly than anything else that this was a time of crisis in the colony’s affairs. The emigrants’ loyalty to Britain was

deeply felt, but this was not an easy and uncomplicated attachment. What if Britain assaults the economic interests of the emigrants? And where can the emigrants turn if while insisting on their Britishness they are denounced by the mother country itself?

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15 symbol: ynvict’ 2 5 yA>persistent ‘The Convict’ ts put‘Th in chains though, as the plaque on 72s modern sculpture ex ims, mncorrigibl ( ' as fate. ; yiOngibles suffere Sy MPTESS*TONS Rocks Square aV/ailr (Sculpture by Bud Dumas, ‘First I sszons’ 1 al Street, Rocks, Sydney) Syd ‘reet, The Rocks,

The shame of Botany Bay = 215 desire to leave open the option of taking exiles probably had less to do

with the colony’s future labour needs than with his distaste for the arguments of the anti-transportation movement. For him and his supporters in the electorate it was a contest about history and selfrespect. He said to the electors at Parramatta: The evils of the old assignment system had been very eloquently expatiated upon. He admitted that the system had its errors and its evils; but he could point out people in that very town, who under that very system, had cast off the disgrace into which they had unfortunately fallen, and who having risen into stations of the highest respectability, left behind them families that were an honour and a credit to the country. The electorate of Cumberland County was poor ground for the anti-

transportation movement. This was the heartland of old New South Wales where the emancipists had established farms and businesses and passed them on to their chjldren. These were legacies that the rhetoric

of the anti-transportation movement did not touch. Michie was defeated at every polling place. Where Sydney spilled over into the county area he did better, but Fitzgerald was triumphant at Parramatta, Liverpool, Campbelltown, Windsor and Penrith.°® This was only a symbolic victory since Fitzgerald did not in substance oppose the

anti-transportation cause. It was a final protest before the antitransportation movement's view of the past became orthodoxy. The leaders of the anti-transportation movement were right to claim that the revival of transportation would lead to bitter social divisions throughout the society. They were wrong to claim that this has been so in previous times. Certainly there had been a bitter conflict between the emigrants and the emancipist elite, but, as we have seen, apart from the entry into ‘society’ there were no bars put on the position an emancipist could occupy and outside the ranks of ‘society’ the emancipists had clear numerical superiority over emigrants and there had been considerable

intermixing between the two groups. From the time of the arrival of large numbers of free emigrants in the 1830s this situation changed. Free emigrant workers regarded the unpaid labour of convicts as a

threat to their livelihood. In the 1840s the emigrant leaders of the democratic movement saw ex-convicts and the native-born as a drag upon the mobilisation of the people.°’ Middle-class emigrants who did not have the security which came from belonging to ‘society’ were more insistent on general respectability as the guarantee of their worth and so were concerned to limit convict influence.

The Reverend J.D. Lang who championed and sponsored the movement of free emigrants to the colony led vicious campaigns in the 1830s to ‘purify’ the colony. He denounced the employment of convicts

and ex-convicts on the colony’s newspapers and as teachers of the

216 Convict soczety and its enemies young. He also attacked the immorality of ‘society’ by which he meant

its sexual laxity and indecorous amusements — and its indifference about positions which convicts occupied. Lang was horrified that a respectable man should pick up a newspaper edited by an ex-convict or

allow his children to be taught by a convict or place bets with an emancipist bookmaker.*® Gentlemen in ‘society’ had never concerned themselves in this way with convict influence. Governor Bourke shared Lang’s opposition to the employment of convicts as teachers and tutors and took special steps to stop them being assigned for this purpose.” Lang and Bourke shared a commitment to a colony peopled solely by free people and once that ideal was formulated convicts were viewed as a contagion — which was how they appeared to the anti-transportation movement. This was not how they were viewed in old New South Wales. The anti-transportation movement was quasi-nationalist. It attacked the perfidy of British ministers, threatened independence, adopted a national flag and embraced four out of the five colonies. Yet it was by claiming that the colonies were British communities with aspirations as high as any others that it repulsed the efforts to reintroduce transportation. In standing up to Britain the colonists proved to themselves and, they hoped, to the mother country that they were worthy Britons and not weakened in spirit by the convict heritage. The size and demeanour

of the protesting crowds showed that they had the British political virtues; at the great Circular Quay protest meeting it rained — and even

Englishmen did not brave the rain so well. Though there was a long sustained campaign against Britain, there was less insistence than during the 1830s protests on the special qualities of the Australian experience from which Britain herself could usefully take lessons. In making a new beginning, the anti-transportation movement suppressed the sense of an Australian identity which had grown up in convict times.

The men who had proclaimed Australia’s virtues in answer to Molesworth’s calumnies were of course still proud to be Britons. It was a

further misapprehension of the anti-transportation movement to consider that the British character of the community was not well established until its own success. A coerced convict labour force may have been ‘un-British’ but its effects on the tone and ordering of the society had been limited by the determination of the colonists to be a

British community in spite of their peculiar institution. This determination — most clearly evident in the upholding and extending of convicts’ rights under the law — had saved the colony from becoming the domain of those creatures so active in the imagination of the antitransportation league — the slave owner and the tyrant. After the anti-transportation movement had scored its victory, John West, one of its Tasmanian leaders, wrote its history. He concluded that ‘The strenuous resistance of transportation had cleared the character of the colonists’.®° Clearing of character was not to be achieved so readily.

The shame of Botany Bay = 217 The colonists loudly proclaimed that they had been born again by large-

scale free emigration and the anti-transportation movement, but the world still remembered the convicts. The shame of Botany Bay could not be thrown off. Since the colonists had imposed a vow of silence about their origins upon themselves, even a mention of the convict past was enough to cause anguish. In 1899 a newly-appointed governor gave great offence by sending this message: ‘Greeting, your birth stain have you turned to good’.®!

Fate was unkind to the colonists. In the second half of the nineteenth century belief in race and blood strengthened so the convict stain was considered to be part of the people’s physical inheritance and not to be set aside by a symbolic gesture like the anti-transportation movement.

Hence the desperate efforts to prove that the convicts had not bred much or that the convict population had been swamped in the gold fields rush. Even apart from the convict heritage, the colonists feared that the British stock might have degenerated in Australia. This was one

reason why the victory of Australian cricketers over the English was

greeted so enthusiastically. This pathetic uncertainty about the Australian-born contrasts sharply with the confidence that all the colonists had felt in the early nineteenth century in the capabilities of

the currency lads and lasses. And they were chiefly the children of convicts.

It was not until after the Second World War that Australians could speak levelly and without shame about the convict origins of their country. Now people are pleased to find a convict ancestor. But our emancipation is not yet complete. More often than not, our under-

standing of convict society is still based on the assumptions of its enemies.

Sources

Books, journal articles, printed official papers and theses which are cited more than once in the notes are listed alphabetically below under the heading ‘Chief Sources Used’. In the notes they are referred to by short title only. Full titles and other details of books, articles, official papers and theses used only once are given in the notes. Where manuscript material is referred to in the notes a full reference and the location of the material has been given there in the usual way. Newspaper titles in some instances have been abbreviated in the notes (see List of Abbreviations). The references to the evidence collected by Commissioner Bigge are not to the Bonwick transcripts, as is usual, but to the Colonial Office records made available on microfilm by the Joint Copying Project. The series,

volume and folio numbers are cited in the notes on each occasion. Other

Colonial Office material has been consulted on the Copying Project microfilms, which are available in the major Australian libraries.

Abbreviations

Cmt. Committee CO Colonial Office Col. Sec. Colonial Secretary

Gazette Sydney Gazette

Herald Sydney Herald HRA Historical Records of Australza (series I unless otherwise indicated) HRNSW_ Historical Records of New South Wales

ML Mitchell Library

NSWA — New South Wales Government Archives

S.Cmt. Select Committee V.&P. Votes and Proceedings of the New South Wales Legislative Council

Chief sources used Abbott, G. and Little, G. (eds) The Respectable Sydney Merchant, A.B. Spark of Tempe Sydney: Sydney University Press, 1976 Allen, G.W.D. (ed.) Early Georgian. Extracts from the Journal of George Allen (1800-1877) Sydney: Angus and Robertson, 1958

Sources 219 Atkinson, A. ‘Four patterns of convict protest’ Labour History 37, 1979, pp. 28-51 Atkinson, J. An Account of the State of Agriculture and Grazing in New South Wales (1826) Sydney: Sydney University Press, 1975.

Backhouse, J. A Narrative of a Vusit to the Australian Colonies London: Hamilton, Adams and Co., 1843

Barry, J.V. Alexander Maconochie of Norfolk Island Melbourne: Oxford University Press, 1958 Bentham, J. The Works of Jeremy Bentham ed. J. Bowring 11 vols, Edinburgh: William Tait, 1843 Bigge, J.T. Report of the Commissioner of Inqutry into the State of the Colony of New South Wales, Britesh Parliamentary Papers, 1822 vol. 20 (448) Bigge, J.T. Report of the Commusszoner of Inquiry on the Judicial Establishments of New South Wales and Van Diemen’s Land, British Parliamentary Papers, 1823 vol. 10 (33) Bigge, J.T. Report of the Commissioner of Inquiry on the state of Agriculture and Trade in the Colony of New South Wales, Britesh Parliamentary Papers, 1823 vol. 10 (136) Castles, A.C. An Introduction to Australian Legal History Sydney: Law Book Co., 1971 Chisholm, A.H. (ed.) Secrets of Alexander Harris Sydney: Angus and Robertson, 1961

Clark, C.M.H. Select Documents in Australian History 1788-1850 Sydney: Angus and Robertson, 1950 Cobley, J. Sydney Cove 1788 London: Hodder and Stoughton, 1962

Collins, D. An Account of the English Colony in New South Wales (1798) Adelaide, Libraries Board of South Australia, 1971 Committee on Police and Gaols, Report, Votes and Proceedings of the New South Wales Legzslattve Council 1835

Committee on Police and Gaols, Report, Votes and Proceedings of the New South Wales Legislattve Council 1839

Conlon, A. ‘“Mine is a Sad yet True Story’, Convict Narratives 1818-1850’, Journal of the Royal Australkan Historical Soczety 55, 1969, pp. 43-82 Coupland, R. Wilberforce; a narrateve London: Collins, 1945 Crowley, F.K., Working class conditions in Australia 1788-1851, Ph.D thesis, University of Melbourne, 1945

Cunningham, P. Two Years in New South Wales (1827) Sydney: Angus and Robertson, 1966 Currey, C.H., Chapters on the legal history of New South Wales 1788-1863, LL D thesis, University of Sydney, 1929 Currey, C.H. Ser Frances Forbes. The First Chief Justice of the Supreme Court of New South Wales Sydney: Angus and Robertson, 1968 Currey, C.H. The Brothers Bent Sydney: Sydney University Press, 1968 Fletcher, B.H. Landed Enterprise and Penal Society. A History of Farming and Grazing in New South Wales before 1821 Sydney: Sydney University Press, 1976

Gilchrist, A. John Dunmore Lang; Chiefly Autobiographical 1799 to 1878 Melbourne: 1951

Gunson, N. (ed.) Australian Reminiscences and Papers of L.E. Threlkeld 2 vols, Canberra: Australian Institute of Aboriginal Studies, 1974

220 =Convict soctety and its enemies Harris, A. Settlers and Convicts (1847) Melbourne: Melbourne University Press, 1953

Harris, A. The Emigrant Family (1849) Canberra: Australian National University Press, 1967

Ingleton, G.C. True Patriots All Sydney: Angus and Robertson, 1952 Lang, J.D. An Historical and Statistical Account of New South Wales 2 vols, London: Cochrane and M’Crone, 1834 Lang, J.D. Transportation and Colonization London: A.J. Valpy, 1837 Lang, J.D. Remznzscences of my life and times ed. D.W.A. Baker, Melbourne: Heinemann, 1972 Legge, J.G. A Selection of Supreme Court Cases in New South Wales from 1825 to 1862 vol. 1, Sydney: Government Printer, 1896

Macarthur, J. New South Wales. Its Present State and Future Prospects London: D. Walther, 1837 MacCallum, D. “The Early “Volunteer” Associations in New South Wales’ Journal of the Royal Australian Historical Soczety 47, 1961, pp. 352-67

McKinnon, J., Convict Bushrangers in New South Wales 1824-1834, MA thesis, La Trobe University, 1979 McQueen, H. ‘Convicts and Rebels’ Labour History 15, 1968, pp. 3-30 Melbourne, A.C.V. Early Constitutional Development in Australia (1934) St Lucia: University of Queensland Press, 1963 Mudie, J. Vendzcation of James Mudie and John Larnach Sydney: 1834

Mudie, J. The Felonry of New South Wales (1837) Melbourne: Lansdowne Press, 1964 Onslow, S.M. Some Early Records of the Macarthurs of Camden Sydney: Angus

and Robertson, 1914 Perry, T.M. Australia’s First Frontter Melbourne: Melbourne University Press, 1963

Phillips, M. A Colonial Autocracy. New South Wales under Governor Macquarie, 1810-1821 (1909), Sydney: Sydney University Press, 1971

Ritchie, J. The Evidence to the Bigge Reports: New South Wales under Governor Macquarie 2 vols, Melbourne: Heinemann, 1971 Robson, L. The Convict Settlers of Australia Melbourne: Melbourne University Press, 1965 Roderick, C. (ed.) John Knatchbull. From Quarter Deck to Gallows Sydney: Angus and Robertson, 1963 Roe, M., Administration of P.G. King, MA thesis, University of Melbourne, 1953

Select Committee on Gaols, Report, British Parliamentary Papers, 1819 vol. 7 (575)

Select Committee on Transportation, Report, British Parliamentary Papers, 1812 vol. 2 (341)

Select Committee on Transportation, Report, Britesh Parliamentary Papers, 1837 vol. 19 (518)

Select Committee on Transportation, Report, British Parliamentary Papers, 1837-38 vol. 22 (669)

Shaw, A.G.L., Convicts and the Colonies: A Study of Penal Transportation from Great Britain and Ireland to Australia and Other Parts of the Britesh Empire London: Faber, 1966

Sources 22] Tench, W. Sydney's First Four Years ed. L.F. Fitzhardinge, Sydney: Angus and Robertson, 1961 Therry, R. Remznescences of Thirty Years’ Residence in New South Wales and Victoria (1863) Sydney: Sydney University Press, 1974 Tucker, J. Ralph Rashleigh London: Folio Society, 1977 Ward, R. The Australian Legend Melbourne: Oxford University Press, 1958

Wentworth, W.C. A _ Statestecal Account of the Britesh Settlements in Australasia 2 vols, London: G.B. Whittaker, 1824 Whately, R. Thoughts on Secondary Punishments London: B. Fellowes, 1832 Whately, R. Remarks on Transportation and ona Recent Defence of the System London: B. Fellowes, 1834 Yarwood, A.T. Samuel Marsden. The Great Survivor Melbourne: Melbourne University Press, 1977

Notes

1 ‘The enemies 1 M. Ignatieff A Just Measure of Pain: The Penitentiary in the Industrial Revolution 1750-1850 London: MacMillan, 1978 2 M.P. Mack Jeremy Bentham; An Odyssey of Ideas New York: Columbia University Press, 1963, p. 364 3 Bentham Works vol. 4, p. 39

4 ibid.

5 I.R. Christie (ed.) The Correspondence of Jeremy Bentham, vol. 3, London: Athlone Press, 1971, pp. 489-93, 513-18 6 Bentham Manuscripts, University College, London, box 19 (a), ff. 98, 99-100, box 107, ff. 113-15, box 116 (b), ff. 405-6 7 A View of the Hard Labour Bill (1778) in Bentham Works vol. 4, and An Introduction to the Principles of Morals and Legzslatzon (1789) in ibid vol. 1

8 Bentham Works vol. 4

9 ibid., p. 214 10 L.J. Hume ‘Bentham’s Panopticon; an administrative history’ Hestorzcal Studzes 15, 1973, pp. 703-21, 16, 1974, pp. 36-54 11 A Plea for the Constztutzon (1803) in Bentham Works vol. 4 12 Bentham Works vol. 10, pp. 391-5, vol. 11, pp. 140-3, 145-7; Wilberforce to Bentham, 21 Nov. 1796, British Museum Add. MSS 33542, ff. 353-4 13 R.I. and S. Wilberforce, The Life of Wilkam Wilberforce London: John Murray, 1838, vol. 1, p. 92; Coupland Wilberforce p. 192 14. A.M. Wilberforce (ed.), Private Papers of William Wilberforce London: ‘T.F. Unwin, 1897, pp. 236-7, 279 15 HRNSW vol. 1, part 2, pp. 633-5, vol. 2, pp. 27-8, 196, 245-6, 271-3, vol. 5, pp. 727-9 16 Yarwood Marsden 17. Backhouse Narrative p. 395 18 Bentham Works vol. 10, p. 394 19 Yarwood Marsden pp. 154-5, 187-8, 225; Shaw Convicts and Colonies pp. 100-101 20 C. Buxton Memarrs of Sir Thomas Fowell Buxton London: John Murray; 1855, p. 101

21 Parliamentary Debates, first series, vol. 39, cols 464-509

Notes 223 22 Bentham Works vol. 4, p. 183 23 See the eight issues of Report of the Committee of the Society for the Improvement of Prison Discipline and for the Reformation of Juvenile Offenders, London 1818-1832 24 Life of Willam Allen London: Charles Gilpin, 1846, vol. 1, p. 235, vol. 3, p. 9; Coupland Wilberforce p. 356 25 Shaw Convicts and Colonies chap. 6 26 T. Clarkson An Essay on the Slavery and Commerce of the Human Species London: T. Cadell, J. Phillips, 1786, pp. 5-6, 49

27 Bentham Works vol. 4, p. 32 28 Shaw Convicts and Colonies p. 103; see below, p. 199 29 Whately Remarks on Transportation pp. 36-7 30 Anti-Slavery Monthly Reporter, vols 1-5, 1825-1833 31 D.B. Davis The Problem of Slavery in the Age of Revolution New York: Cornell University Press, 1975 32 Sir George Stephen Antz-Slavery Recollections (1854) London: Cass, 1971, Appendix 33 Howick to Melbourne, 19 Feb. 1834, Grey Papers, University of Durham 34 Howick to Russell, 6 Aug. 1838, Russell to Howick, 19 Nov. 1838, Grey Papers

35 Whately Secondary Punishments pp. 154-5 36 Whately Remarks on Transportation p. 88 37 For Russell and Howick’s views see: Parliamentary Debates, third series, vol. 37, cols 725-8: Russell to Criminal Law Commissioners, 20 Oct. 1836,

pp. 6-7, Parliamentary Papers 1837, vol. 31; [Viscount Howick] ‘Secondary Punishments-Transportation’ Edinburgh Review 58, Jan. 1834 pp. 336-62, Howick’s submission to Molesworth Committee 31 May 1838,

Colonial Papers, Transportation, no. 2, Grey Papers; Papers relative to Transportation and Assignment of Convicts, Parliamentary Papers 1839, vol. 38

38 Phillips to Stephen, 15 April 1837, CO 201/264 39 J. Hamburger Intellectuals in Politics: John Stuart Mill and the Philosophic Radicals New Haven: Yale University Press, 1965 40 A.M. Priestly, The Molesworth Committee and New South Wales, MA thesis, Australian National University, 1967; J. Ritchie “Towards ending an

unclean thing: the Molesworth Committee and the abolition of transportation to New South Wales 1837-40’ Hestorical Studies 17, 1976,

pp. 144-64 41 S. Cmt. on Transportation 1837, Evidence pp. 8, 286

2 Masters and servants 1 Gunson Reminiscences of L.E. Threlkeld pp. 180, 211, 268-70 2 Harris Settlers and Convicts p. 132, chap. 16 3 Robson Convict Settlers chaps 1-4 4 S$. Cmt. on Transportation 1837, Appendix p. 355 Making convicts servants 1 Cobley Sydney Cove p. 227

224 Convict soctety and its enemies 2 ibid. pp. 83-5; Collins Account pp. 14-17 3 Collins Account p. 37 4 HRA vol. 1, pp. 46, 56, 195-7; Collins Account pp. 51-2 5 Collins Account pp. 14-5 6 Cobley Sydney Cove p. 164 7 Tench Sydney's First Four Years pp. 249-50; Collins Account pp. 185-6, 192-3

8 Collins Account p. 435 9 Tench Sydney's First Four Years p. 256 10 HRA vol. 1, pp. 681-2, 696-7, vol. 2, pp. 214, 218, 359, 585 11 Collins Account pp. 256-7, 268; HRA vol. 2, pp. 178-9, 185-6 12 Collins Account pp. 272, 309

13. B. Fitzpatrick Britzsh Imperialism and Australia, 1783-1833 (1939) Sydney: Sydney University Press, 1971, p. 95 (my emphasis)

14 Collins Account p. 269 15 Tench Sydney's First Four Years p. 75 16 HRA vol. 2, p. 137, vol. 4, p. 615; Lang Account of New South Wales vol. 1, p. 383; Onslow Macarthurs of Camden p. 375; Australian 3 Sept. 1830; A.E. Dingle ‘“The truly magnificent thirst”: an historical survey of Australian drinking habits’ Hestorical Studies 19, 1980, pp. 227-49; J. Burnett Plenty and Want: a social history of diet in England London: Nelson, 1966, p. 9 17 HRA vol. 3, pp. 422-4, vol. 4, pp. 480, 504-5 18 HRA vol. 4, p. 34 19 HRA vol. 3, pp. 36-7, vol. 5, pp. 74-5 20 Phillips Colonzal Autocracy p. 136 21 Bigge evidence CO 201/118 ff. 384, 411, 414, 454; Bigge Report p. 75 22 Gazetie 1, 8, 29 May, 5 June 1819 23 Ritchie Evidence vol. 1, p. 12; Bigge evidence CO 201/120 f. 311 24 Ritchie Evidence vol. 1, p. 26 25 Bigge evidence CO 201/118 f. 124 26 Ritchie Evidence vol. 1, pp. 44-5 27 Bigge Report pp. 31-2 28 Ritchie Evedence vol. 2, pp. 133-4; Bigge evidence CO 201/118 f. 124, 201/120 ff. 313-5; HRA vol. 11, pp. 650-60; Edward McQuade to his wife, 24 Jan. 1825, in his petition to Col. Sec. 16 Aug. 1827, 4/1112.1 NSWA

29 Ritchie Evidence vol. 1, p. 34 30 Gazette 7 Dec. 1816; Bigge evidence CO 201/123 f. 36; S. Cmt. on Gaols 1819, Evidence p. 74 31 Answers to Bigge’s questionnaire to landholders CO 201/118, oral evidence on agriculture 201/123, evidence 201/120 ff. 70-2

32 Bigge Report pp. 168-9 33 The orders were rather cryptic and confusing. They and their consequences are best explained in J. Atkinson Agriculture and Grazing pp. 110-13. Brisbane himself was confused, see HRA vol. 11, p. 578 34 Bigge evidence CO 201/123 f. 137 35 Ritchie Evidence vol. 2, p. 280 36 Phillips Colonzal Autocracy p. 130; Ritchie Evedence vol. 1, p. 7

Notes = 225 37 Submission of H. Macarthur, Assignment of Convicts 1834-6, Col. Sec. 4/1116 NSWA

38 Changes in rations are noted regularly in early volumes of HRA. For variations under Macquarie see Bigge Report p. 63. Tender advertisements of the Commissariat in the Gazette are also helpful

39 HRA vol. 2, pp. 240, 369 40 Collins Account p. 207 41 Roderick John Knatchbull pp. 203-205 42 J. Atkinson Agriculture and Grazing pp. 112-3; Government Order 29 June 1831, Col. Sec. Printed Circulars 1831-2, SZ79 NSWA 43 Collins Account p. 211; Fletcher Landed Enterprise p. 29 44 Harris Settlers and Convicts p. 4; HRA vol. 14, p. 231 45 Ritchie Evidence vol. 1, pp. 98, 218, vol. 2, p. 74; Bigge Report p. 66 46 HRA vol. 11, pp. 76-7; Gazette 9 Sept. 1824; Government Order 16 Feb. 1830, in Goulburn Magistrates, Letters received from Government, A664 ML; Bigge evidence CO 201/123 f. 37 47 Government Gazette 8 Oct. 1834; Cmt. on Police 1839, Evidence p. 14 48 Mudie Vindication passim; S. Cmt. on Transportation 1837, Evidence p. 32 49 J. Atkinson Agriculture and Grazing p. 116

50 Cunningham Two Years p. 289; J. Atkinson Agriculture and Grazing pp. 77, 115; Mudie Vendication p. 23; S. Cmt. on Transportation 1837, Evidence pp. 32-3, 165; Bigge evidence CO 201/118 f. 411; Goulburn Magistrates Bench Book, depositions of Charles Macarthur against Thomas Thompson, Dec. 1824, MSS 2482/1 ML 51 Brindley Park Station Diary, A4463 ML

52 This is an inference based on Mudie Vzndicatzon pp. iv-v, 43; Harris Settlers and Convicts chap. 16; Depositions at Queanbeyan court 1838-44, 4/5650 NSWA; Bourke to CO 20 Sept. 1834, CO 201/240 ff. 390-1 53 Perry First Frontzer p. 90; Bigge evidence CO 201/118 ff. 414-5; Papers

supporting Petition of Thomas Cunninghame 7 Sept. 1827, Col. Sec. 4/1112.1 NSWA 54 Herald 27 Aug. 1835; Gazette 20 Sept. 1834 55 Bigge evidence CO 201/118 f. 414, 201/120 ff. 111-113; Submission of H. Macarthur, Assignment of Convicts 1834-6, Col. Sec. 4/1116 NSWA; Australian 25 Nov. 1826 56 Herald 5 Feb., 6 April 1835; S. Cmt. on Transportation 1837, Evidence pp. 93-4 57 Allen Early Georgian pp. 115-16; Herald 23 April 1835 58 For a discussion of the female convicts see below pp. 56-7

59 Ritchie Evidence vol. 2, pp. 81-2; S. Cmt. on Transportation 1837, Evidence pp. 151, 167, 227; Herald 3 May 1838; HRA vol. 19, p. 604 60 Collins Account pp. 179, 238; Shaw Convicts and Colonies p. 73

61 Gazette 9 Jan. 1813 62 Bigge Report pp. 169-70 63 Government Gazette 27 May 1835 64 Cunningham Two Years pp. 130-1, 279 65 Cmt. on Immigration, V. &@ P. 1838, Evidence pp. 3-4, 20, 25, 43, 47 66 S. Cmt. on Gaols 1819, Evidence p. 22

226 Convict soctety and its enemies 67 Bigge evidence CO 201/123 f. 153; Cunningham Two Years p. 278 68 S. Cmt. on Transportation 1837, Evidence p. 99 69 Herald 19 Nov. 1835, 8, 10 Aug. 1838; Sydney Monitor 21 Nov. 1835 70 Gazette 26 Nov. 1833; Herald 7 Nov. 1833 71 ~Bigge Judicial Establishments p. 62; Ritchie Evedence vol. 1, p. 38; Harris Settlers and Convicts p. 49

72 J. Lhotsky 4 Journey from Sydney to the Australian Alps 1834 Hobart: Blubber Head Press, 1979, p. 100 73M. Sturma ‘Eye of the Beholder: The Stereotype of Women Convicts, 1788-1852’ Labour History 34, 1978, pp. 3-10 74. A. Summers Damned Whores and God’s Police, The Colonization of Women in Australia Ringwood: Penguin, 1975, chap. 8 Flogging and work 1 Conlon ‘Convict Narratives’

2 Harris Settlers and Convicts p. 69 3. Shaw Convicts and Colonies p. 202 4 HRA vol. 3, pp. 43, 457, 471-3, 745-6, vol. 4, pp. 159-64, 335, 452-3, vol. 5, p. 73; Minutes on Bayly’s Court Martial, 8 March 1803, War Office 71/195; Governor King to Sir Charles Morgan, 9 May 1803, War Office 71/197, PRO London

5 Australian 15 Dec. 1838 6 S. Cmt. on Transportation 1837, Evidence p. 118; Sydney Monitor 2 Oct. 1833

7 Cmt. on Police 1835, Further evidence p. 7; S. Cmt. on Gaols 1819, Evidence pp. 86-7 8 Harris Settlers and Convicts pp. 200-201 9 S$. Cmt. on Transportation 1837, Appendix p. 95 10 S. Cmt. on Transportation 1837, Evidence pp. 56-7, 118, 144-5; Bigge evidence CO 201/124 f. 84 11 Roderick John Knatchbull pp. 91, 220-5; Tucker Ralph Rashleigh chap. 25; Gazette 17, 24 Sept. 1833; S. Cmt. on Transportation 1837, Evidence pp. 56-7 12 HRA vol. 14, p. 38, vol. 17, pp. 315-6 13. Bigge Report p. 159; Bigge evidence CO 201/118 ff. 382-3, 387-8, 411, 443, 452

14 J. Atkinson Agriculture and Grazing pp. 87-9 15 Abbott and Little Sydney Merchant pp. 62-3, 73, 76, 92, 105, 111, 112, 114, 117, 120, 130 16 The Gazette, though still the official paper in the 1820s, frequently took a strong anti-flogging stand (e.g. 19 Aug. 1826) as did the Australan in the 1830s (30 Dec. 1831). The evidence to the Cmt. on Poltce 1839 indicates considerable anti-flogging opinion. See also Backhouse Narrative p. 455 17. Cmt. on Police 1835, Further evidence p. 8, 1839, Evidence p. 215; Herald 16 April 1835

18 Therry Remznescences p. 42; S. Cmt. on Transportation 1838, Evidence p. 38; The Journal of William Busby, FM4/2116 ML, records when his workmen had to go to hospital after flogging, see tabular returns 1-10, 12-17 May 1834

Notes 227 19 A.E. Smith Colonists in Bondage, White Servitude and Convict Labor in America 1607-1776 Gloucester Mass: P. Smith, 1965, pp. 267-8, 270-1, 275

20 Cunningham Two Years pp. 328-9 21 Collins Account p. 83; Ingleton True Patriots All p. 240 22 Cunningham Two Years pp. 215, 329 23 Shaw Convicts and Colonies, p. 202 24 Letters of John Busby (answers from the Col. Sec. are available in Col. Sec. Letters sent NSWA), Journal of William Busby, FM4/2116 ML 25 Alexander Berry, Australian 28 Aug. 1838 26 Letter to Governor Darling, 17 Oct 1831

27 Abbott and Little Sydney Merchant, p. 88 28 Chisholm Secrets p. 106 Good masters and bad 1 Bigge evidence CO 201/121 f. 75; Reminiscences of Martha Mackenzie, MSS 944 ML, p. 20; Harris Settlers and Convicts pp. 11-12 2 Shaw Convicts and Colonies, p. 193 3 Ritchie Evidence vol. 2, pp. 69-70; Bigge evidence CO 201/123 ff. 121-2

4 Gazette 1 Jan. 1833; Herald 15 April 1833, 12 March 1835; S. Cmt. on Transportation 1837, Evidence p. 48 5 Shaw Convicts and Colonies p. 229; G. Rudé ‘“Captain Swing” in New South Wales’ Historical Studies 11, 1965, pp. 467-80

6 T.L. Mitchell Journal of an Expedition into the interior of Tropical Australia (1848) New York: Greenwood Press, 1969, pp. 417-21

7 S. Cmt. on Transportation 1837, Evidence p. 290 8 Gazette 26 Nov. 1833; Cunningham Two Years p. 311; Ward Legend p. 77 9 Harris Settlers and Convicts pp. 127-28 10 K. Fitzpatrick Ser John Franklin in Tasmania, 1837-1843 Melbourne: Melbourne University Press, 1949, p. 53; Barry Alexander Maconochie p. 39; Ward Legend p. 35 11 Chisholm Secrets p. 173 12 Harris Settlers and Convicts p. 188 13. Chisholm Secrets p. 111 14 Harris Emigrant Family pp. 276-77 15 Harris Settlers and Convicts pp. 127-28, 230

16 ibid. p. 68 17 Bigge evidence CO 201/118 f. 414, 201/120 ff. 111-12, 147; Gazette 14 July 1825; Australian 25 Nov. 1826; North Richmond Bench Book 28 Sept. 1837, 4/5697 NSWA

18 Shaw Convicts and Colonies p. 222 19 Allen Early Georgian p. 125 20 Whately Secondary punishments p. 90 21 S$. Cmt. on Transportation 1837, Evidence p. 293

22 W. Molesworth Report from the Select Committee of the House of Commons on Transportation (1838) Adelaide: Libraries Board of South Australia, 1967, pp. 35-6 notes 23. Gazette 21 March 1828

24 G. Arthur Defence of Transportation London: George Cowie, 1835, pp. 14-31

228 Convict society and tts enemies 3 Convicts and society 1 HRNSW vol. 1, part 2, pp. 52, 53, 90

2 ibid, p. 127 3 Tench Sydney's First Four Years pp. 167-8, 295, 312, 332

4 HRA vol. 1, p. 324 5 Gazette 8, 15 July 1804 6 HRA vol. 10, p. 287; Shaw Convicts and Colonies p. 86; Ritchie Evidence vol. 2, pp. 211-4; Fletcher Landed Enterprise pp. 216-9 7 Castles Legal history p. 39 The economy and penal principles

1 W. Ullathorne The Catholic Mission in Australasia (1837) Adelaide: Libraries Board of South Australia, 1963, pp. 19-20 2 Bigge evidence CO 201/118, ff. 49-64 3 Bigge evidence CO 201/121, ff. 62-3 4 Bigge evidence CO 201/120, f. 87; J. Waldersee Catholic Society in New South Wales 1788-1860 Sydney: Sydney University Press, 1974, pp. 100102; Cunningham Two Years p. 277

5 Australian 10 May 1826 6 Bigge evidence CO 201/121, f. 64; Government Gazette 21 May 1834 7 Government Gazette 11 April 1832 8 Ritchie Evidence vol. 2, p. 116; Bigge evidence CO 201/118, f. 452; HRA vol. 11, pp. 717-81 9 S$. Cmt. on Transportation 1812, Report p. 13; HRA vol. 7, pp. 674-5 10 HRA vol. 7, pp. 777-9, 782-5 11 Ritchie Evidence vol. 1, p. 158, vol. 2, p. 116; Bigge evidence CO 201/120, f. 148; Bigge Report pp. 121-2

12 Gazette 9 Jan. 1813, 1 March 1826, 5 Feb. 1829; HRA vol. 13, pp. 2-3 13. Bigge evidence CO 201/120, f. 227

14 HRA vol. 10, pp. 4-7, 807-8 15 Bigge Agriculture and Trade pp. 79-80 16 Bigge Report; J. Ritchie Punzshment and Profit Melbourne: Heinemann, 1970

17. HRA vol. 11, pp. 471-2 18 HRA vol. 12, pp. 365-6 19 HRA vol. 12, pp. 366-7, vol. 13, pp. 76-7, 387, 534-5, vol. 14, pp. 216-7, 377-8, 695-6, vol. 15, p. 101; Report of Board ... on Principal Superintendent of Convicts, enclosure in Bourke to CO, 2 May 1834, CO 201/ 239; P.E. Leroy, The emancipists from prison to freedom: the story of the Australian convicts and their descendants, PhD thesis, Ohio State University, 1960, p. 66

20 HRA vol. 11, p. 80, vol. 15, pp. 832-3 21 HRA vol. 12, pp. 252-3; Cunningham Two Years p. 277 22 Col. Sec. to Magistrates and Police, 13 June, 12 July, 18, 28 Sept., 3 Oct., 17 Nov. 1832, 4/3833 NSWA; Crowley, Working class conditions, pp. 138-9 23 Government Gazette 2 May 1832, 13 May 1835 24 HRA vol. 16, pp. 330, 640 25 HRA vol. 13, p. 673, vol. 19, pp. 603-4

Notes 229 26 Gazette 8 Nov. 1822 27 HRA vol. 11, p. 579 28 Gazette 2 Jan. 1827; List of tickets-of-leave issued in 1829, enclosure in Darling to CO, 2 April 1830, CO 201/211 29 Secretary of State and Under Secretary to Bourke, 9 Feb., 10, 27 May, 18, 26 Aug., 22 Sept., 1834, CO 202/30, 32 30 Papers on convict indulgences left incomplete by Governor Brisbane, Col. Sec. 4/6974; notes on Petition of Robert Hughes Oct. 1824, Col. Sec. 4/1872 NSWA 31 Col. Sec. to Magistrates, 2, 7, 11, 26 Dec. 1826, 8 Jan. 1827, 4/3825 NSWA

32 HRA vol. 14, pp. 64-9, 412-4 33 Account of Record Branch in Report of Board ... on Principal Superintendent of Convicts, enclosure in Bourke to CO, 2 May 1834, CO 201/239; HRA vol. 22, p. 463 34 HRA vol. 15, pp. 766-8, vol. 17, pp. 17-9; Cmt. on Police 1835, Evidence p. 47 35 Goulburn Magistrates, Letters received from Government, A664 ML 36 HRA vol. 13, p. 167, vol. 15, pp. 482-528; Bigge evidence CO 201/120, ff. 227-8, 257

37 HRA vol. 15, pp. 105-113; Shaw Convicts and Colonies pp. 203-10; J. Anderson Recollections of a Peninsula Veteran London: Edward Arnold, 1913, pp. 153, 171

38 HRA vol. 13, pp. 105-6 39 HRA vol. 12, pp. 513-4, vol. 14, pp. 70-1 40 Gazette 11 June, 17 Oct., 19 Nov. 1827; Australian 27 Jan. 1825; Herald 12 Feb. 1835; Tucker Ralph Rashleigh pp. 100-114, 241-2; Harris Settlers and Convicts p. 69; Chisholm Secrets p. 100 41 McKinnon, Convict Bushrangers, pp. 8-37

42 HRA vol. 16, pp. 788-9 43. HRA vol. 17, pp. 327-8 44 HRA vol. 12, pp. 584-5, 591-2, vol. 13, pp. 135-41 45 See above note 6, Convicts and society, introduction 46 Perry First Frontzer Conclusion, Appendix 3 47 Papers on the Assignment of Convicts 1834-6, Col. Sec. 4/1116 NSWA 48 Shaw Convicts and Colonies pp. 66-9 49 R. Goddard, The structure of New South Wales society in 1828, MA thesis, University of Melbourne, 1967, p. 119 gives landholders as 14% of the emancipist population (male and female); assuming all landholders were male, the proportion of the landholders in the male population is approximately 20% (see p. 212) 50 Harris Settlers and Convicts pp. 130-1. 224-6; see also Bigge evidence CO 201/118 f. 415; Backhouse Narrative p. 310

51 Ward Legend pp. 94-5 5Z Chisholm Secrets p. 169; Ward Legend p. 184 93 Crowley, Working class conditions, pp. 352, 474 54 Cunningham Two Years p. 264 55 Clark Select Documents pp. 416-9; D. Simon ‘Master and Servant’ in J. Saville (ed.) Democracy and the Labour Movement London: Lawrence and Wishart, 1954; George White A Digest of all the Laws at Present in

230 Convict society and tts enemies Existence respecting Masters and Work People (1824) New York: Garland, 1979

56 Harris Settlers and Convicts pp. 153, 181, 183; Cmt. on Police 1839, Evidence p. 280 57 Cmt. on Immigration, V. &@ P. 1841, Evidence pp. 15, 31 58 Crowley, Working class conditions, pp. 257-312

59 Harris Settlers and Convicts pp. 182-3; Cmt. on Immigration, V. & P. 1835, Evidence pp. 67, 74; Mudie Vzndicatzon p. 59 60 Cmt. on Police 1835, Evidence passem; HRA vol. 12, p. 252; Government Gazette 13 May 1835 61 HRA vol. 12, pp. 248-50; Gazette 8 Nov. 1826, 2 Jan., 3 March 1827

62 Harris Emigrant Family pp. 200-2 63 Cunningham Two Years p. 264; J. Atkinson Agriculture and Grazing pp. 91-2; Lang Account of New South Wales vol. 1, pp. 355, 360 64 Report on cmt. on government salaries and wages, enclosure in Darling to

CO, 8 April 1827, CO 201/182; Cmt. on Police 1835, Report p. 26, Evidence of Police Magistrate Sydney, Appendix pp. 21-2; R. Walker The Newspaper Press in New South Wales, 1803-1920 Sydney: Sydney University Press, 1976, pp. 48-9

65 Cmt. on Immigration, V. & P. 1838, Evidence pp. 2, 14, 20 66 Herald 26 Feb. 1835; Lang Remznescences p. 114 67 Col. Sec. 4/1238-41 NSWA The law and convicts’ rights 1 Cunningham Two Years p. 238; Lang Account of New South Wales vol. 1, p. 348

2 Robson Convict Settlers p. 9 3 Bigge Report pp. 100-101 4 11 Geo. IV No. 12 5 HRNSW vol. 1, part 2, pp. 329, 354; HRA vol. 2, pp. 31, 366

6 HRA vol. 14, pp. 116-8, 565-6; vol. 15, pp. 155-6, 541-3, vol. 17, pp. 564-5 7 Circular No. 28/3, 1 Feb, 1828, Goulburn Magistrates, Letters received from Government, A664 ML 8 Bigge Report pp. 138-9, Judzczal Establishments pp. 8, 37 9 Bigge evidence CO 201/123 f. 80; J. Bayne to H. Macarthur, 8 May 1827, Goulburn Magistrates Bench Book, MSS 2482/1 ML

10 Tucker Ralph Rashleigh chap. 17 11 Mudie Vzndication pp. 4, 8, 10, 13, 16, 30 12 Proceedings of the Patrick Plains Bench, Bourke to CO, 20 Sept. 1834, CO 201/240, ff. 372-3, 376-7 13. Chisholm Secrets pp. 157-8 14 HRA vol. 15, p. 306 15 Mudie Vindication pp. 8-9, 35; Gazette 6 Jan. 1838; Gunson Reminzscences of L.E. Threlkeld pp. 269, 324; A. Atkinson ‘Convict protest’ p. 45 16 Mudie Vindication p. 22; A. Atkinson ‘Convict Protest’ p. 46 17 Gazette 28 June 1807 18 Bigge evidence CO 201/120, f. 148 19 Cmt. on Immigraizon, V. &@ P. 1837, Evidence p. 41

Notes 231 20 S. Cmt. on Transportation 1837, Evidence p. 145; Chisholm Secrets p. 87; for a refusal to accept this evidence, Gazette 2 Jan. 1827 21 HRA series 4, vol. 1, p. 337; Bigge Report pp. 100-101

22 6 Geo. IV c. 69 23 11 Geo. IV Nos 12, 13 24 3 Will. IV No. 3. The legislation of 1830 which this superseded had provided that a convict could be whipped three times with 50 lashes on each

occasion, so setting a maximum of 150 lashes. This was higher than the

customary maximum and the infliction of punishment on separate occasions does not seem to have been widely adopted.

25 Cmt. on Poltce 1839, Evidence pp. 61, 74, 80, 104; Mudie Vindication pp. 50, 55, 57-9 26 An estimate based on Roe, Administration of P.G. King, p. 152 and Gazette 10 Feb. 1825

27 Castles Legal history pp. 31-7; J.M. Bennett (ed.) A History of the New South Wales Bar Sydney: Law Book Co., 1969, p. 5 28 Government Gazette 1 May 1833; Herald 30 March, 9, 12 Nov. 1835 29 Currey Brothers Bent pp. 21-41 30 Bigge Judicial Establishments pp. 33-4 31 17 March 1825, 27 May 1826, 16 Sept. 1831 32 Currey Forbes p. 367 33. A.G.L. Shaw Heroes and Villains. Governors Darling and Bourke in New South Wales Sydney: Sydney University Press, 1966, p. 26 34 Bigge Judzczal Establishments p. 57; HRA series 4, vol. 1, p. 478

35 HRA series 4, vol. 1, p. 614 36 Gazette 2 Oct. 1803; HRA vol. 11, pp. 156-7, 174-5, vol. 12, pp. 244-5 37 HRA vol. 13, pp. 103-4, 156-8 38 Currey, Chapters on legal history, pp. 428-30; C.H. Currey ‘The Influence of English Law Reformers ... on the law of New South Wales’ Journal of Royal Australian Historical Society 23, 1937, pp. 227-41; HRA vol. 19, pp. 44-5, vol. 21, p. 153 39 Legge Supreme Court Cases pp. 123-39 40 Currey Brothers Bent chap. 3 41 HRA vol. 10, pp. 633-48 42 Castles Legal history pp. 69-70 43 Currey Forbes chaps 19, 20 44 ibid., pp. 244-8, chap. 31; HRA vol. 15, pp. 346-53, 648, 664-9, 709-11 45 HRA vol. 11, p. 78, vol. 13, p. 187, vol. 15, p. 862, vol. 17, pp. 197-200, 315, 685-90; HRA series 4, vol. 1, pp. 691-2 46 Currey Forbes pp. 241-4; Gazette 3 March 1827; HRA vol. 13, pp. 188-9, 206-9, 259-63, 516-7 47 Australian 6 Feb. 1838 48 Currey, Chapters on legal history, pp. 134-5 49 HRA vol. 12, pp. 328-30 50 Executive Council Minutes, 19 Jan., 3, 6 June 1826, CO 204/1; Gazette 10 June 1826 51 HRA vol. 16, p. 781; Bourke to CO 14 Dec. 1834, enclosures, CO 201/241

52 Currey Forbes pp. 242, 315-6 53 HRA vol. 13, pp. 97-9, vol. 14, pp. 5-6, vol. 15, pp. 837-50, 862

232 Convict society and its enemies 54 Bigge Judicial Establishments p. 7 55 This was Hogan’s case. HRA vol. 17, p. 21; Gazette 5 April 1831; Legge Supreme Court Cases p. 24; 11 Geo. IV No. 12, section 2 56 Currey Forbes pp. 462-4; Legge Supreme Court Cases pp. 5-38; 8 Vic. No. 1 57 HRA vol. 9, p. 821

58 HRA vol. 2, pp. 358-9, vol. 3, p. 260 59 Gazette 16 Sept. 1804; S. Cmt. on Transportation 1812, Evidence p. 43 60 HRA series 4, vol. 1, pp. 246-7, 423-4, 802-3 61 HRA vol. 10, p. 785, vol. 12, pp. 218-9, 659-60; S.J. Butlin Foundaizons of the Australan Monetary System Melbourne: Melbourne University Press, 1953, pp. 409-420 62 HRA vol. 14, pp. 412-4; Gazette 12 Feb., 7, 21 March 1829 63 HRA vol. 15, p. 844; Australian 13 March 1829 64 Gazette 2 June 1825

65 2&3 Will. IV c. 62, section 2 66 HRA series 4, vol. 1, pp. 246-7, 802-3 67 3 Will. IV No. 3, section 35 68 Australian 25 Oct. 1833 69 Australian 27 Feb. 1838 70 Shaw Convicts and Colonies p. 231 71 HRA vol. 17, pp. 558-9 72 Currey Forbes chap. 39 73 Harris Settlers and Convicts chap. 8

74 ibid., p. 227 75 ‘Opinions of the Magistrates as to the expediency of prolonging ... the Bushranging Act’, pp. 11-12, V. @ P. 1834; Cmt. on Police 1835, Evidence p. 26, 1839, Evidence p. 232; Herald 20 May 1839

76 Ritchie Evidence vol. 1, pp. 17, 45; Bigge evidence CO 201/118, ff. 409-10, 412, 455-6; Papers on Assignment of Convicts 1834-6, Col. Sec. 4/1116 NSWA; Cmt. on Police 1839, Evidence p. 101; Australkan 2 Feb. 1826, 30 Aug. 1833

77 HRA vol. 19, pp. 468-9, vol. 20, pp. 75-6 78 Barry Alexander Maconochie p. 85 79 Harris Settlers and Convicts p. 83 80 S. Cmt. on Transportation 1838, Evidence p. 70 81 5 Geo. IV No. 3; 7 Geo. [TV No. 2; 3 Will. IV No. 8; 6 Will. IV No. 8; 2 Vic. No. 18; Austrahan 2 Feb. 1826, 19, 22 July 1833

82 HRA vol. 16, pp. 418-9 83. HRA vol. 22, pp. 461, 464 84 HRA vol. 12, p. 95; 5 Will. IV No. 24 85 HRA vol. 15, pp. 605-6; Lang Account of New South Wales vol. 2, p. 55 86 Bigge Judicial Establishments p. 73 87 HRA vol. 4, p. 331; Superintendent of Police to Col. Sec. 21 May 1828, Surveyor of Roads to Col. Sec. 2 June 1828, Col. Sec. 4/1980, 28/4157 NSWA

88 Gazette 24 Feb. 1827 89 Currency Lad 15 Sept. 1832 90 Ritchie Evidence vol. 1, pp. 148, 158

Notes 233 91 ‘“She only married to be free’: Documents concerning marriage’ Push from the Bush, 2, 1978, pp. 73-4; Gazette 24 March, 14 May 1827

92 Gazette 8 Nov. 1822 93 ibid., 2, 4 Jan. 1827 94 Government Gazette 13 May 1835, 22 Aug. 1838; HRA vol. 19, p. 604, vol. 22, p. 456 95 Bigge evidence CO 201/127, ff. 13-14 Rebellion and security

1 R.W. Connell ‘The Convict Rebellion of 1804’ Melbourne Historical Journal 5, 1965, pp. 27-37 2 G. Rudé ‘Early Irish Rebels in Australia’ Hzestorzcal Studies 16, 1974, pp. 17-35

3 McQueen ‘Convicts and Rebels’ 4 McKinnon, Convict Bushrangers, pp. 127-32 5 Ingleton True Patriots All pp. 22-3 6 McKinnon, Convict Bushrangers, p. 227 7 Australian Oct. 1830 8 HRA series 4, vol. 1, p. 661 9 Melbourne Constetutzonal Development pp. 95-7; HRA series 4, vol. 1, p. 479

10 HRA vol. 12, pp. 217, 340, 659, vol. 13, pp. 193-4, vol. 14, p. 409 11 Ritchie Evedence vol. 1, pp. 13, 14; Bigge evidence CO 201/120, ff. 94, 97; Bigge Report p. 33 12. McQueen ‘Convicts and Rebels’ pp. 14-6; Cunningham Two Years p. 294 13. Mudie Vzndicatzon p. 6; Cunningham Two Years p. 298; HRA vol. 13, p. 616 14 Darling to CO, 2 April 1830, enclosure ‘List of 958 Tickets of leave issued to individuals in N.S.W. between Ist January and 3lst December 1829’, CO 201/211 15 Bigge Judicial Establishments p. 86; Ingleton True Patriots All pp. 198-9 16 Harris Emigrant Family p. 307; McKinnon, Convict Bushrangers, p. 214

17 Bigge Agriculture and Trade p. 81 18 S. Cmt. on Transportation 1837, Evidence p. 139 19 McQueen ‘Convicts and Rebels’ p. 12; Bigge evidence CO 201/120, f. 97; Cunningham Two Years p. 279; McKinnon, Convict Bushrangers, p. 11; O.P.Q. “The Transportation System’ New South Wales Magazine, Aug. 1833, pp. 18-9 20 Collins Account pp. 196-7; Lang, Account of New South Wales vol. 2, pp. 65-6; Cunningham Two Years p. 313, Conlon ‘Convict Narratives’ p. 70 21 Cunningham Two Years pp. 300-301

22 Mudie Vindication p. 37; S. Cmt. on Transportation 1838, Evidence pp. 132, 134; HRA vol. 14, pp. 614-5; Gazette 22 Jan. 1833 23. Australian 9 Dec. 1824, 20 Nov. 1829, 10 Feb. 1830; Herald 9 April, 28 Dec. 1835

24 Herald 13 May 1839; Circular 1 Jan. 1837, Col. Sec. 4/7019 NSWA 25 Allen Early Georgian p. 94 26 Australian 3 May 1826, 22 Nov. 1826 quoting Morning Chronicle

234 Convict society and its enemies 27 This is an estimate based on press reports of executions 28 Therry Reminiscences pp. 22-4 29 Australian 21 April 1829 30 Australian 15 Sept. 1825 31 Bigge evidence CO 201/124, ff. 84, 150 32 Bigge evidence CO 201/120, f. 266 33. McKinnon, Convict Bushrangers, pp. 219-25; Bigge evidence CO 201/120, f. 263

34 ‘Opinions of the Magistrates as to the expediency of prolonging ... the Bushranging Act’, pp. 4, 8, V. &. P. 1834; Cmt. on Police 1835, Evidence of Police Magistrate Sydney, Appendix pp. 19-21; Bigge evidence CO 201/120, ff. 98, 99; Herald 29 Aug. 1833; Gazette 22 April 1830 35 The account of bushranging which follows is derived from McKinnon, Convict Bushrangers

36 S. Cmt. on Transportation 1838, Evidence p. 83 37 Herald 29 Oct. 1835 38 Gazette 20 Aug. 1828; Papers on the Assignment of Convicts 1834-6, Col. Sec. 4/1116 NSWA; Cmt. on Police 1839, Evidence pp. 48-9, 90-1; compare 5 Geo. IV No. 3 with 4 Vic. No. 10 39 Cmt. on Police 1839, Evidence pp. 60, 73, 80, 328, Report pp. 72-5; 4 Vic. No. 10 40 J. Atkinson Agriculture and Grazing p. 141; Gunson Reminiscences of L.E. Threlkeld p. 284; McKinnon, Convict Bushrangers, pp. 207-10

41 Cmt. on Police 1839, Evidence pp. 65, 221, 240, Report pp. 56-8 42 Cmt. on Police 1839, Evidence pp. 245-6 43 S. Cmt. on Transportation 1837, Evidence p. 145 44 MacCallum ‘“Volunteer” Associations’ pp. 353-7 45 Australian 20 Oct. 1825, 30 Jan. 1829 46 Australian 16 Dec. 1829 47 11 Geo. IV No. 12 48 McKinnon, Convict Bushrangers, pp. 52-3, 132, 154-5. On these associations generally see Collins Account p. 196; HRA vol. 1, pp. 36, 723 (note 35), vol. 3, p. 583; S. Cmt. on Transportation 1837, Evidence pp. 165-6; 263-4; Conlon ‘Convict Narratives’ p. 54; Gazette 12 March 1828; Herald 24 Aug. 1835

49 Robson Convict Settlers p. 10; Ward Legend chap. 3; Petitions to have wives sent 1824-7, Col. Sec. 4/1112.1, summary table of those approved by

Governor Bourke, 4/1112.2 NSWA; S. Cmt. on Transportation 1838, Evidence pp. 36-7; Lang Account of New South Wales vol. 2, pp. 65-6

50 HRA vol. 12, p. 645; Wentworth Bretesh Settlements vol. 2, p. 153; Cunningham Two Years pp. 228, 280, 308 51 Herald 13 July 1838; McKinnon, Convict Bushrangers, pp. 76-9, 108, 111 52 Mudie Vindication pp. vili-x1; Gazette 28 Nov. 1833; Herald 16 Dec. 1833 53 Tucker Ralph Rashleigh chap. 21 54 Cmt. on Police 1839, Evidence p. 121

55 Cunningham Two Years p. 296; Backhouse Narrative p. 263; Ritchie Evidence vol. 1, p. 141

56 Bigge evidence CO 201/118, ff. 443-4; HRA vol. 15, p. 762; Cmt. on Police 1835, Report p. 29

Notes 23) 57 Cmt. on Police 1835, Evidence of Police Magistrate Sydney, Appendix; Cmt. on Poltce 1839, Evidence p. 127

58 McKinnon, Convict Bushrangers, pp. 202-3; Tucker Ralph Rashleigh chaps 19, 20 59 H. King ‘Problems of Police Administration in New South Wales 1825-51’ Journal of Royal Australian Historical Society 44, 1958, p. 65

60 HRA vol. 15, p. 763; McKinnon, Convict Bushrangers, p. 206; Harris Emigrant Family pp. 307-8 61 H. King ‘Some Aspects of Police Administration in New South Wales 1825 51’ Journal of Royal Australian Historical Society 42, 1956, pp. 205-230; McKinnon, Convict Bushrangers, pp. 188-194; Australzan 14 July 1825;

Cmt. on Police 1835, Report pp. 7-11, 1839, Report pp. 14-5 62 MacCallum ‘“Volunteer” Associations’ pp. 358-9; S. Cmt. on Gaols 1819, Evidence p. 60; Ritchie Evidence vol. 2, pp. 61, 66; W.C. Wentworth 4 Statestecal, Hzstorzcal and Political Description of the Colony of New South

Wales London: G. and W.B. Whittaker, 1819, pp. 32-5 63 HRA vol. 10, pp. 609-10, vol. 11, p. 90 64 HRA vol. 17, pp. 477, 504-5 65 HRA vol. 17, pp. 147-8, vol. 22, p. 33; S. Cmt. on Transportation 1837, Evidence pp. 134-143; Cmt. on Polsce 1839, Evidence p. 206 66 The Petition of the Proprietors of Stock, V. & P. 1836

67 S.H. Roberts The Squatting Age in Australia 1835-1847 (1935) Melbourne: Melbourne University Press, 1964, chaps 3, 4; HRA vol. 18, pp. 230-1; S. Cmt. on Transportation 1837, Evidence pp. 190, 198 68 D. Denholm, Some Aspects of Squatting in New South Wales and Queensland, 1847-1864, PhD thesis, Australian National University, 1972, p. 56 Status and politics

1 Roe, Administration of P.G. King, p. 177; Melbourne Constztutzonal Development p. 61; S. Cmt. on Transportation 1837, Evidence p. 14

2 Ritchie Evidence vol. 2, pp. 235-6 3 Austrahan 10 Dec. 1830 4 Australian 2 Dec. 1831 5 D.R. Hainsworth The Sydney Traders Melbourne: Cassell, 1972 6 HRA vol. 1, pp. 587-8 7 Roe, Administration of P.G. King, pp. 174-5 8 HRA vol. 7, p. 775, vol. 10, pp. 222-4 9 Yarwood Marsden pp. 161, 198; Bigge Report p. 148; HRA vol. 9, pp. 237-8 10 Phillips Colonial Autocracy pp. 262-8; Bigge Report pp. 88-9, 148; HRA vol. 9, pp. 441-75; Wentworth British Settlements vol. 1, pp. 395-412; S. Cmt. on Gaols 1819, Evidence p. 19

11 HRA vol. 8, pp. 479-542 12 Herald 16 July 1838 13. HRA vol. 10, pp. 214-35, 310-11 14 Bigge Report pp. 80-90, 144-55 15 Melbourne Constitutional Development pp. 72-3; HRA vol. 10, pp. 54956; HRA series 4, vol. 1, pp. 423-9, 483-4, 866-7 16 C.M.H. Clark A History of Australia vol. 1, Melbourne: Melbourne Univer-

236 Convict society and its enemies sity Press, 1962, pp. 357-8 17 Bigge Report pp. 131-9, Judzczal Establishments pp. 7-8 18 Wilmot Horton to Peel, 5, 7, 8 July 1823, Peel Papers, British Museum Add MSS 40357, ff. 67-9, 73-8 19 Bigge Judzczal Establishments pp. 36-41 20 See the accounts of the debate and editorial comments in the early issues of the Australzan 21 Australian 23 Dec. 1824, 31 March 1825, 6 Oct. 1825

22 HRA vol. 8, pp. 483-4, 511-2 23 Wentworth British Settlements vol. 1, pp. 419-20 24 17, 24 Nov. 1825, 29 Nov. 1833 25 Melbourne Constztutzonal Development pp. 69, 135-6

26 ibid Part 3, chap. 5 27 8, 15, 18 June, 30 July, 3, 31 Dec. 1835 28 Macarthur New South Wales chaps 3, 8 29 Lang Transportation pp. 118-20 30 Macarthur New South Wales p. 128; Herald 13 Feb. 1839 31 Mudie Felonry Introduction, chap. 1

32 ibid. p. xii

33 Australian 14, 16 April 1830; Gazette 13, 15 April 1830 34 Australian 8 April 1831, Gazette 7 April 1831; Sydney Monitor 13 April 1831. Campbell later claimed that he was not accusing the emancipists of being twice convicted, but simply asking if they were so — in which case they would have been ineligible (Gazette 12 April 1831)

35 6 Will. IV No. 6

36 Government Gazette 22 Aug. 1838 37 Lang Transportation chap. 4; Macarthur New South Wales pp. 19-23 Dependence and self criticism

1 The following account of the colony’s constitution is taken chiefly from Melbourne Constztutzonal Development

2 H. King Richard Bourke Melbourne: Oxford University Press, 1971, pp. 157-60 3 HRA vol. 18, p. 72 4 HRA vol. 18, pp. 392-9 5 Australian 10 March 1825 6 Australian 16 Oct. 1829 7 Currency Lad 23 Feb. 1833 8 HRA vol. 12, p. 762, vol. 13, p. 206, vol. 14, p. 621 9 Currey Forbes p. 208; A Liberal ‘The Transportation System’ New South Wales Magazine, Sept. 1833, p. 112 10 E.g. HRA vol. 14, p. 619; Sydney Monitor 22 Sept. 1826 11 3, 15, 24 April, 28 Aug., 30 Sept., 11 Nov., 31 Dec. 1829, 27 Aug. 1830 12 Australian 20 May 1831 13. Currey Forbes chaps 6, 14, 15 14 HRA vol. 16, pp. 719-23, vol. 17, pp. 150-1 15 Currey Forbes chap. 18 16 Australian 25, 29 Nov., 2, 6, 13, 20, 27 Dec. 1826 17 Gazette 6 Jan., 5, 6 Feb., 3, 20 March, 22, 29 June, 6, 16 July 1827

Notes 237 18 HRA vol. 13, pp. 192-3 19 19 May 1826 20 Sydney Monitor 28 May 1828 21 Sydney Monitor 28 May 1828, 9, 16 Feb. 1829, 17 July, 7, 14, 25 Aug. 1830;

HRA vol. 15, pp. 594-9, 628-32, 859 22 Gazette 30 Oct. 1830; Sydney Monitor 30 Oct., 13 Nov. 1830 23. Shaw Convicts and Colonies pp.-195, 209, 214-6 24 Herald 12 March 1835 25 Petitions received 22 Aug., V. @ P. 1833 26 Herald 29 April, 13 May 1833 27 HRA vol. 17, p. 324 28 See above p. 112 29 Sydney Monitor 17 July 1830 30 Australian 13 Sept. 1833; A Liberal “The Transportation System’ New South Wales Magazine, Sept. 1833; Unpaid Magistrate Observations on the

Hole and Corner Petztzon’ Sydney: 1834; An Emigrant of 1821 Party Polittcs Exposed Sydney: 1834

31 This account is based on the official enquiry into Mudie’s estate and accompanying documents in CO 201/240 (part of which is printed in Mudie Vzndzcatzon), and on press reports of the rebels’ trial 9, 10 Dec. 1833

32 Australtan 13 Dec. 1833 33 Therry Remzniscences p. 167 34 E.g. C.M.H. Clark A Hestory of Australa vol. 2, Melbourne: Melbourne University Press, 1968, pp. 204-6 35 Herald 4 July 1838 36 ©Bigge evidence CO 201/121, ff. 77-8 37 Herald 10, 13 Nov. 1834 38 Herald 28 Sept., 2 Nov. 1835 39 Cmt. on Police 1839, Evidence pp. 88-96 40 Cmt. on Police 1835, Evidence pp. 26-7 41 Australian 11, 18 Oct., 29 Nov. 1833 42 Austrahan 16 Dec. 1833

4 The shame of Botany Bay 1 J. King The Other Side of the Coin, A Cartoon History of Australia Sydney: Cassell, 1976, p. 18 2 Parliamentary Debates, first series, vol. 39, cols 498, 506

3 Lang Account of New South Wales vol. 1, p. 336 4 J. Bowring to Sir J. Jamison, 5 April 1837, Sydney Monitor 12 Feb. 1838 5 Collins Account p. 502 6 F.G. Clarke The Land of Contrarities, Britesh Attitudes to the Austrahan Colonies 1828-1855 Melbourne: Melbourne University Press, 1977, p. 170 7 Australian 24 March 1825; Cunningham Two Years pp. 14-6 8 Onslow Macarthurs of Camden p. 2; Australian 12 Jan. 1839 9 Lang Reminiscences pp. 28-31; Lang Account of New South Wales vol. 2, pp. 219-20, 227; Gilchrist John Dunmore Lang vol. 1, p. 23 10 Bigge Agriculture and Trade p. 82 11 Ward Legend p. 17; see also K. Inglis The Australzan Colonists Melbourne:

238 Convict society and its enemies Melbourne University Press, 1974, p. 38

12 HRA vol. 13, p. 99 13. Currey Brothers Bent pp. 99-100; HRA series 4, vol. 1, pp. 95 -7 14 HRA series 4, vol. 1, p. 690 15 Ritchie Evidence vol. 1, p. 157 16 R. Ward and K. McNab ‘The nature and nurture of the first generation of

native-born Australians’ Hzstorical Studies 10, 1962, pp. 289-308; P. Robinson “The Hatch and Brood of Time: Recreating a Generation. Parents and Children, New South Wales, 1788-1828’, paper delivered at ANZAAS Conference, Auckland, Jan. 1979

17 B. Gandevia and F.M. Forster ‘Fecundity in Early New South Wales’ Bulletin of the New York Academy of Medicine 50, 1974, pp. 1081-96; J.F.

Cleverly The First Generation. School and Society in Early Australia Sydney: Sydney University Press, 1971

18 Ward Legend chap. 2 19 Australan 15 April 1829; Cunningham Two Years p. 211 20 Australan 4 March, 29 April 1831 21 Currency Lad 10 Nov. 1832, 18 May 1833

22 ibid., 27 Oct. 1832 23 Bigge Judicial Establishments pp. 40-1 24 Herald 18 April 1831, 15 Jan. 1835

25 Austrahan 28 April 1825; Herald 16 March, 27 April 1835; Cunningham Two Years p. 207

26 7 Geo. IV No. 5 27 Australian 15 Nov. 1826 28 ibid., 29 April 1826 29 ibid., 15 Dec. 1825, 7 Oct. 1829 30 Herald 15 Jan., 21 Sept. 1835 31 Tench Sydney's First Four Years pp. 242, 257-8; Therry Remznzscences chaps 6, 11 32 Lang Account of New South Wales vol. 2, p. 245; Cunningham Two Years p. 228 33. Gunson Reminiscences of L.E. Threlkeld p. 99 34 Backhouse Narrative p. 352

35 Mudie Felonry pp. 118-9 36 Barry Alexander Maconochie pp. 39-40 37 New South Wales Magazine 1833, pp. 17, 103, 236-7 38 Lang Account of New South Wales vol. 2, p. 245; Gilchrist John Dunmore Lang vol. 1, pp. 195, 203-6 39 S. Cmt. on Transportation 1837, Evidence pp. 101-2, 110-11

40 ibid., pp. 66-9 41 Herald 24, 28 May 1838 42 ibid., 7 June, 16 July 1838 43 Clark Select Documents pp. 154-6 44 The debates on 26 June, 3, 17 July 1838 are reported in the Australian and Herald 45 Berry, Australzan 20 July 1838

46 ibid., 17 July 1838 47 ibid., 18, 25 May, 5, 26 June, 3 July 1838, 8 Jan. 1839

Notes 239 48 Herald 30 Jan. 1839 49 ibid., 20, 27 July 1838, 7, 14 Jan. 1839. 50 Australian 9 Feb. 1839 51 ibid., 19 Feb. 1839 52 Herald 16 Jan., 4, 13 March, 8 April 1839; Sydney Times 2 July 1838, reprinted in Australian 10 Aug. 1838; W. Bland Letters to Charles Buller

Esq. M.P. from the Australian Patriotic Association Sydney: 1849, pp. 27-74 53 Shaw Convicts and Colonies chap. 13

54 ibid., chaps 14, 15 55 The following account is based on Sydney Morning Herald 12, 13, 19 June 1849, 13 Aug., 18 Sept., 3, 4, 7 Oct., 1850; People’s Advocate 16, 23 June 1849 which record meetings and debates on transportation 56 Sydney Morning Herald 23, 27, 29 March 1849; Bell’s Life in Sydney 24, 31 March 1849 57 People’s Advocate 10, 31 March, 7, 14 April 1849 58 Australan 20 July 1838; Lang Account of New South Wales vol. 2 p. 245; Lang Reminzscences Appendix B; Gilchrist John Dunmore Lang vol. 1, pp. 194-206

59 John Wighton to Assignment Board 1833, Col. Sec. 4/2179.3 NSWA; Cmt. on Immigration, V. & P. 1838, Evidence p. 31

60 J. West The Hestory of Tasmania (1852) Adelaide: Libraries Board of South Australia, 1966, vol. 1, p. 313 61 Sydney Morning Herald 11 May 1899

Index

Aborigines, 19, 29, 33, 79, 104, 140, Bourke, Richard, 49, 60, 89-90, 94, 108,

147, 197 112, 118, 120, 125, 130, 147-9, 163-4,

agriculture, 37, 39-40, 45-6, 49, 51, 64, 168, 170-1, 173, 176, 179-84, 186,

97-8 see also government farms, 199, 216 settlers Breton, Lieut. Col., 138, 142

Allen, George, 75, 139 Brisbane, Thomas, 46, 62, 88-91, 116, anti-transportation movement, 104, 211- 118, 130, 147, 175

17 Broughton, W.G., 202

Arthur, George, 72, 76-7 Busby, John, 66-9

assignment, 32, 47, 52, 68-9, 80, 195; bushrangers, 53, 56, 84, 90, 94, 135, 137,

administration 37, 40-1, 48, 53, 58-9, 140-3, 145-7 61-2, 69, 83-5, 88-90, 95-9, 102, Bushranging Act, 125-7 110, 117, 121, 128-30, 168, 171; Buxton, T.F., 16, 19, 23, 179

cessation 25, 170, 199, 211; criticised

20, 22, 26, 77, 95, 181; defended 77, Campbell, Robert, 167

201-2, 207-10, 215 Canning, George, 161, 189

attorney-general, 89, 116, 119-20 Cartwright, Robert, 193

Australian, 114, 142-3, 162-3, 173-4, Castle Forbes estate, 50, 144, 151, 182-3

177-8, 182, 184, 186, 202-4 Castle Hill government farm, 40; rebel-

Australian Courts Act, 1828, 117 lion at 133-4, 136

Castlereagh, Lord, 161

Backhouse, James, 197 Census of 1828, 104-6

Bank of New South Wales, 151 certificate of freedom, 108, 123, 126, 170 Bathurst, 89, 97, 118, 134-5, 147 chain gangs see iron gangs

Bayly, Nicholas, 58-9 clearing gangs, 62

Bell's Life in Sydney, 213 Collins, David, 12-14, 113, 189

Bent, Jeffrey, 116, 156, 192 commissariat see store, government

Bentham, Jeremy, 10-15, 17, 19, 20-1, commissioners of crown lands, 149, 171

27, 210 constables see police

Berry, Alexander, 75 constitution, 116, 164, 168-72, 177 Bigge, J.T., enquiry and recommenda- convict barracks, 44, 61, 129; Hyde Park,

tions, 46-7, 49, 54, 62, 76, 87-8, 91, 41-4, 46, 80, 133, 136, 145 95-6, 107, 111-12, 114, 123, 126, convict bureaucracy, 88-95, 128-33 130, 136-7, 157-60, 191, 195 convict discipline, 71, 77, 174, 176-8,

Bingle, John, 176 181-8, 192, 194, 198-9 see also

Bland, William, 205-10 convicts working conditions, flogging Bligh, William, 38, 40 convict labour, 54, 68, 91-2, 98, 140;

Bloodsworth, James, 80 supply, 62, 89, 120

196, 198 120, 139

Botany Bay, 33; use of term, 188-91, convict labour code, 57-8, 108, 111-12,

Index 241 convict system, 49, 54, 68-9, 71-2, 102, 107-112, 116, 119-21, 123, 142, 100-1, 138, 175, 213 see also assign- 175-6, 181-2, 187, 200; of requests,

ment, transportation 102; supreme, 113-25, 134, 157, 200;

convicts, absenting 67-9; clothing, 38, see also juries

42, 45, 110, 126-7; contamination by, Crawley, John, 75 14, 19, 21, 26, 181, 195, 199, 213, criminal law, English, 9-10, 17, 19-20; 215-16; crimes committed in NSW, in NSW, 17, 114-15, 143, 195; reform

14, 19, 36, 38, 41, 44, 68, 73, 107, of, 10, 15, 19-20, 25, 115, 161, 174 137, 143-4, 185, 200, 206; domestic Cumberland Plain, 51, 97-8; County,

servants, 53, 56-7, 95, 126-7; 213-15

drunkenness, 12, 38, 55, 68-9, 79; Cunningham, Peter, 64, 138, 190-1 extension of sentence, 64, 100, 107-8, Cunningham, Philip, 134 112; families, 42, 80, 92-3, 129-32, Currency see native-born

144; food rations, 29, 33-4, 39, 42, Currency Lad, 194 46-50, 70, 110; gentlemen, 85-6, 89, 136, 150; in government service, 33-7, Darling, Ralph, 48-9, 88-96, 108,

39-46, 49, 62, 66-8, 85, 88-9, 95, 116-21, 130, 135, 137, 173-4, 177-9, 123, 129; housing, 41-4, 54-5; not so 186, 192, 194

identified, 126-8; incorrigibles, 62, Donahoe, Jack, 135, 143-4, 147 71-2, 74, 138, 179; informers, 53, Douglass, H.G., 175, 187 136-7, 141-2; insolence, 70, 111; Druitt, George, 42, 44, 136 Irish, 32, 83, 133-5, 142-4; and law, drunkenness, 84, 99-100, 145 see also

138-40; legal rights, 58, 81-2, 106- convicts 28, 135, 137, 147, 149, 169, 187, 192-

3, 207, 216; leisure, 17, 33, 36-7, 42, Eagar, Edward, 150, 158-9 52, 55, 68, 127-8, 140; letters, 128; emancipists see ex-convicts not so named, 107, 153; origins, 32-4, emigrants, and ex-convicts, 97-9, 150-6, 74, 76, 100, 195, 209-10; overseers, 160, 167, 192, 196, 215-16; loyalty to

34, 80, 92-3, 95, 97, 106, 149; Britain, 204; and native-born, 194-5,

politicals, 71, 133-4; profit sharing 201; origins, 150-1, 155, 199-202; with, 36, 41, 51-2, 75; property, 88, owners and masters, 74, 88-9, 96-7, 122-4; protection of, 174-88; rebel- 126-7, 143-4; patriotism, 191-2, 194; lions, 133-5, 142, 144, 182-4; records in politics (exclusives), 163-6, 169-73, concerning, 86-9, 90-2, 107-8, 128, 179, 181-2, 198-201, (liberals), 163, 132-3; reformation, 12-14, 196, 201- 187; power, 149, 162, 169-72; 2, 208-10, 215; runaways, 56, 84, 90, workers, 26, 54, 104, 126-7, 204, 212,

94, 110, 125-7, 135, 137-8, 140-2, 215

147; as servants, 32, 108, 127, 192; evangelicals, in Britain, 15-20, 56, 80,

skilled, 36, 46-7, 50, 52, 69, 76-7, 174, 210; in NSW, 152-3, 199

83-5, 88-9, 92-3, 95, 104, 127, 138; exclusives see emigrants as slaves, 21-2, 25, 27-30, 77, 81-2, ex-convicts, 87-8, 126, 139, 145, 194-5; 199, 207; solidarity, 136-7, 143-4, disabilities, 158-9, 168-70, (proposed) 185; standard of living, 20, 39, 49, 88, 97-9, 164-9; economic opportu-

137-8; torture of, 135, 175-6; well- nity; 82, 85-6, 100, 152-3, 169-70, disposed, 29, 32, 44, 53, 61, 70-1, 192; and emigrants, 150-1, 163, 196; 126-7; women, 16-19, 33, 53, 56-7, lawyers, 150, 156-8; magistrates, 153, 78-80, 92, 139, 152-3, 193, 197-8, 157-8; owners and masters, 38, 80-2, 206; work protests, 29, 31, 33, 44-6, 85-6, 96-9, 123, 142-3, 166-7, 18948, 103; working conditions and pay- 90, 193, 215; patriotism, 191, 194; in

ment, 12, 34-57, 64-70, 82-6, 89, politics, 158-64, 169, 173, 187; rights, 92-3, 95, 104, 106, 110-11, 138, 215- 82, 86, 97-9, 108, 123, 169-70; status,

16 150-8, 160, 166-7, 171; workers, 54,

courts, 59, 139, 178, 192-3; civil, 81-2, 99-106, 170 see also liberal/emancipist

122-5, 156-7; criminal, 81, 107, party

112-13; magistrates, 29, 48, 66, 75, executions, 53, 114-15, 139, 144

242 Convict soctety and its enemies executive council, 116, 172 land, method of occupation, 51, 97, 170;

exiles, 211-13 grants, 88, 97-100, 194; sale, 26, 99100, 203-4; squatting, 148-9

Female Factory, 17-19, 56, 79, 197-8 landowners see settlers

Field, Barron, 158-9 Lang, J.D., 165-6, 169, 191, 199-201,

Fitzgerald, Robert, 213-15 215-16

flogging, 9, 17, 28, 51-3, 57-69, 76, Larnach, John, 182-3 103, 111-12, 120, 135, 141, 144-5, law, convicts’ attitude, 138-40; departures

175, 179, 181-3, 185-6, 194 from English, 81-2, 121-7, 185;

Forbes, Francis, 114, 116-21, 125, 136, influence of English, 106-7, 113-21,

162, 170-2, 175, 192 164, 192-3, 216 see also convicts legal

Franklin, John, 126 rights, courts

legislative council, Acts and resolutions,

gang system, 64, 164, 208-9, 211 see also 101, 108, 112, 115, 119-20, 122, 125,

iron gangs, road gangs 127, 149, 163, 168, 170-1, 201-2,

Gipps, George, 53, 126, 130, 168 211-12; composition and powers, 115government farms, 33-7, 39-40, 48, 64, 16, 135-6, 162, 168, 170-2

133 Lhotsky, J., 56

Grose, Francis, 39 liberal/emancipist party, 121, 163, 165,

168-70, 177-9, 182-3, 185-7, 194-5,

Hall, E.S., 173, 178-9, 182, 194 198, 201-4

Harris, Alexander, 29-31, 52, 57, 60, 68, ‘liberalism, and convict system, 72-3,

72-5, 99-100, 103-4, 110, 126-7 75-6; in England and Europe, 23-4,

Hely, Frederick, 91-2 161-3, 169, 185-7; in NSW, 163, homosexuality, 93, 200, 211 186-7 Horton, Wilmot, 161 Lord, Simeon, 154, 158 Howard, John, 9 Loyal Association, 142 Howick, Lord, 24-8, 211 Lycett, Joseph, 85 hulks 10, 87 Hume, Joseph, 179 Macarthur family, 105, 151, 174

Hunter, John, 36-40, 108, 122, 152 Macarthur, Hannibal, 70, 175-6, 187 Hunter River valley, 50-1, 97, 140, 144, Macarthur, James, 151, 165-6, 169

147, 181-3 Macarthur, John, 105, 150-1, 160

Mackintosh, James, 15, 159, 161-2, 179

independence, demand for, 203-5, 216 Maconochie, Alexander, 127

Innes, George, 104, 106 Macquarie, Lachlan, 40-7, 53, 63, 85-7,

iron gangs, 68, 76-7, 94, 135, 147-8, 90, 111-12, 116, 130, 153-9, 162, 188

179, 181 magistrates, 60, 103-4, 109-10, 118,

Irving, John, 80 162, 181, 187; appointment, 171-2; ex-convict, 153-4, 157-8; local

Jackson, Tom, 62-3 administrators, 45, 83, 85-6, 90-2, jails, British, 9, 19, 21, 68, 78; in NSW, 97-9, 101, 108, 129-30, 133, 141-2, 60, 63, 66, 171 145, 149: self criticism, 175-6 see also

jail gang, 42, 111 courts

Jamison, John, 185 maize, 47-50

Johnson, Richard, 16-17, 19 marriage, 17, 41, 56, 79-80, 129-30,

Jones, David, 59 197-8 see also convicts families

courts 150, 175-6, 187

judges, 42, 115-19, 170, 192-3 see also Marsden, Samuel, 17, 19, 69-70, 85, juries, 113-14, 159-67, 170-1, 181, 190, masters, of convicts, 21, 24, 26, 28, 30-1,

194-5 47, 49, 69-77, 84, 86, 109-10, 141, 181, 184, 187, 199, 200, 206-7

Kentish, Nathaniel, 205-6 Masters and Servants Acts, 101-3 King, Philip, 38-40, 58-9, 85, 109, 122, Meehan, James, 184

133 Michie, Archibald, 213-15

Index 243 military, 16, 34, 60, 78-80, 92-4, 113- Poole, John, 183 14, 133-6, 147-8, 150-6; numbers, Port Macquarie, 92, 120 136, 138, 147-8 see also New South press, 89, 117, 162, 164, 173, 178, 182,

Wales Corps 187, 215-16

Mitchell, Thomas, 71-2, 141 Principal Superintendent of Convicts, Molesworth, William, 26, 202-4, 211; 91-2, 128-33 committee on transportation, 26-7, prisons see jails 76-7, 138, 141-2, 199-205, 211 publicans, 96, 103, 127-8, 178

Monitor, 143, 173, 178-9, 182 pubs, 51, 55, 127-8, 140 Moreton Bay, 92, 121, 139

Mudie, James, 151, 166-7, 182-6, Ralph Rashleigh, 74, 109

197-201 receivers, 41, 90, 140, 143

musters, 81, 87-8, 128 Redfern, William, 155-7, 159 road gangs, 77, 94, 135, 147, 179-80,

native-born, 17, 26, 57, 79, 193-5, 201, 182

204, 210, 217 Rossi, Francis, 151

Newcastle, penal settlement, 85, 107, rum, 33, 37-9, 42, 45, 99-100; trade,

133, 140 38, 58-9, 84, 150, 152

New South Wales Act, 1823, 107, 11ll- Ruse, James, 36 14, 116, 120, 135-6, 159-62, 170, 177 Russell, Lord John, 21, 25-8, 210-11 New South Wales Corps, 37-40, 49,

58-9, 64, 86, 113 Scott, T.H., 150-1, 173

Norfolk Island, 25, 34, 48, 57, 72, 93, self-government, 160-1, 164, 177, 204-5

"115, 142 settlers, 87-8, 97-8; large, 45-6, 49-51, 62, 64, 74, 83, 97-9, 143; small, 36,

Corps 109, 133, 143

officers see military, New South Wales 38, 41, 45, 49, 52, 74-5, 80-1, 97-9,

orphan homes, 79 shepherds, 30-1, 45, 51-2, 56, 65, 95-6,

overseers, 34, 36-7, 40, 44, 67, 85, 88, 102, 111

94, 97, 102, 152, 209 see also convicts, Slade, E.A., 200-1

overseers slavery, campaign against, 15-16, 19, 21-5, 28, 31, 75, 174, 186, 203

panopticon, 11-15 sly grog, 33, 55, 128, 141, 148

pardons, 53, 79-80, 85-6, 101, 124, 129, — society, British horror at, 189-93, 196-8,

158-9; conditional, 85, 125, 191 202; criticism of 9, 12-14, 16-17, 25, Parramatta, 33, 133, 147-8, 175, 215 198-200, 204, 210; defended, 193-6, passes, for convicts, 51, 55, 84, 103, 110, 200-2, 205-10; as jail, 78-82; jokes

142 about, 197-8; judges’ views, 118, 164;

pastoral industry, 46, 51-2, 55-6, 65, Mudie’s two castes, 166-7; organi96-8, 102, 148-9, 212; areas, 110, sation, 150, 152-3, 189-90, 192, 216;

142, 147, 171 no ruling class, 169-72; as slave

patriotism, 191, 210, 216 society, 21-2, 24-9, 81-2, 164-6, 181,

penal reformers, 10, 20, 63, 77-8, 210 185, 206-7, 213; stability, 133-50, 206 penal settlements, 57, 61, 65, 77, 92-4, ‘society, 150-9, 162, 192, 195-6, 199-

107, 118, 120, 142, 147, 179, 181-2 200, 206, 216

penitentiaries, 9-10, 14, 20-2, 24-5, 77, solicitor-general, 89, 116

208, 211 solitary confinement, 17, 19-20, 63, 70

petitions, from convicts, 81, 83, 86, 120, South Australia, 26, 203

128-9 south-west country, 97

Phillip, Arthur, 33-4, 38-9, 48, 79, 108, Spark, A.B., 62-3

152, 169 sport, 140, 194, 199, 213-4

Pitt, William, 14, 16 squatters, 148-50, 212

police, 60-1, 67, 80, 85, 88, 102, 109, Stanley, Lord, 186 111, 127, 141, 145-6, 171; mounted, Stephen, James, 114

134, 147 Stephen, John, 118-19

244 Convict society and its enemies

Stephen, Sydney, 121 offences, 107, 111, 118, 120-1, 177;

store, government, 34, 37, 39, 53, 83 costs, 11, 14; criticism of, 9-12, 20-2,

Sudds and Thompson case, 177 25-7, 61, 69, 75, 77, 81, 168, 174,

Sydney, 33, 41, 66-8, 147-8; convicts, 179, 181, 196, 199; defended, 19, 21,

41-4, 47, 52-3, 55, 66-7, 95, 25, 63, 211; NSW attitudes to, 24, (attracted to) 46, 140, (journeys to) 47, 164-6, 184-5, 196, 199-204, 209;

108, 113; crime, 144, police, 145 numbers, 87; resumption, 104, 211-2 Sydney Gazette, 41, 162, 178, 199 see also Molesworth, W. Sydney Herald, 164-6, 168, 173, 181, treadwheel, 20, 63, 66, 68, 208 183-4, 195, 200-1, 203-5

Sydney Times, 205 Vagrant Act, 164, 168

Van Diemen’s Land, 25, 91, 126, 211

Terry, Samuel, 167-8

Therry, Roger, 183 Wakefield, E.G., 26 Threlkeld, L.E., 28-9, 31, 197 Ward, Russel, 100

tickets-of-leave, 42, 47, 67, 100, 108-9, Wardell, Robert, 162-3, 184 123, 135, 185, 211; administration, Wellington Valley, 60-1, 89 53-4, 79, 85-6, 90-2, 101-3, 124-5, Wentworth, W.C., 160-3, 169, 173, 177,

129-30, 137, 141, 178; holders, 97, 184-5, 194

102-3, 124-5, 138, 187 West, John, 216-17

trade and commerce, 38-9, 51, 58-9, Whately, Richard, 25 81, 85-6, 92-3, 96, 122-3, 152 Wilberforce, William, 15-17, 19, 24, 27,

transportation, alternatives to, 19, 25, 175 68, 207-12: to America, 12, 27, 58, Willis, J.W., 119

64, 128, 207; British policy and Wills, Horatio, 194

administration, 9, 20, 38-40, 80-1, workforce, 51, 65, 82, 91-4, 100-6, 129, 83, 86-8, 90, 93, 95-6, 117-18, 124, 138, 149, 201, 203-4, 211-12

128, 170, 181, 186, 203, 211; Wylde, John, 116

cessation, 9, 25, 168, 199; for colonial