Citation:Bruce Kercher, The Unruly Child: A History of Law in Australia (Sydney: Allen & Unwin, 1995), pp. 22-42
CHAPTER 2 — THE CONTRADICTIONS OF CONVICT LAW
FREEDOM AND THE LASH, 1788-1820 In July 1788, just a few months after the British occupation of New South Wales commenced, two convicts took the first civil action in an Australian court. Henry and Susannah Kable sued Duncan Sinclair, the master of a First Fleet vessel, the Alexander, for the loss of their baggage on the voyage from England. Both of them had been condemned to death and reprieved, but only Susannah was to be sent to New South Wales. A prison turnkey dashed across England to plead successfully for Henry and their baby to go too. When this romantic story became public, a subscription was taken up to buy what they would need in exile. These were the goods that were stolen at sea and which led to the court case. It was an audacious claim, because Sinclair was so far above them in the colony’s social structure and because it directly contradicted the law of England.1 At common law, when a person was condemned to death under a conviction for felony, according to Blackstone he or she was pronounced ‘no longer fit to live upon the earth’ but was ‘to be exterminated as a monster and a bane to human society’.2 Condemned criminals became immediately dead in law, unable to give evidence in court, act for another person or sue in the civil courts. Their goods were forfeited to the crown, as Were the Profits of their lands. This ‘felony attaint’ was not removed when their sentence was commuted to transportation to a penal colony. Only the expiry of the sentence or a pardon under the great seal of England could remove the attaint. Henry and Susannah had both been condemned and should not have been able to own their property, let alone sue for it.
David Collins, the Marine officer who was the first judge-Advocate of the colony, decided to ignore the common law. He awarded £15 damages  for the lost baggage. Although he was not a lawyer, he must have known about the law of attaint, which was the most important of all English laws in a penal colony. He obviously knew that the Kables were convicts, despite their coy omission of that fact from their claim. The rule of law had arrived the Australian bush, but it was not the same as English law.
Kable v Sinclair showed that the penal colony of New South Wales would not be a closed prison. Convicts would be entitled to hold property and to enforce their rights in the courts. Like prisoners in London, their lives would depend as much on the amount of property they acquired as on their legal status. The personal autonomy of English law was transported to Australia, but in a new form.
When male or female convicts arrived in Sydney or Hobart in the first fifty years, they were usually assigned to work either for the government or for a private individual. In the early years the government provided a food allowance for those who were privately assigned, while their masters obtained the benefit of their work. Until tighter regulations were introduced, both privately and publicly assigned convicts were allowed to work for themselves in the afternoons, earning an income.3 In effect, part of the day was their own. Some lived in accommodation supplied by their masters, while many others lived in their own housing. Convicts on assignment mixed with the community, had children and wore no special clothing. In the early years New South Wales and Van Diemen’s Land were as much places of exile as vast prisons.
The treatment of convicts under the assignment system was determined by the attitude of their masters. Some lived in notoriously cruel conditions, such as at Castle Forbes, the property of James Mudie. His men sometimes declared that they would rather die than be returned to work there.4 For others, life on assignment was much less harsh. Some were even assigned to their husbands or wives, a practice that was not ended until the 1830s.5 Life on assignment for some convicts resembled that of a domestic or agricultural servant in Britain, even though they were subject to tighter regulation, such as the need to have a pass to leave their masters’ properties. There was also an underlying sting which distinguished convicts from free workers. One Van Diemen’s Land convict wrote in 1835:
. . . we have as much to eat as we like, as some masters are a great deal better than others. 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; but if he don’t he may as well be hung at once, for they would take you to the magistrates and get 100 of lashes, and then get sent to a place called Port Arthur to work in irons for two or three years, and then he is disliked by everyone . . . Of a night, after I have done my work, I have a chance to make a few shillings . . .6 Australian convicts were under closer government supervision than those  who had been sent to North America before the American Revolution. The private contractors who shipped convicts across the Atlantic sold their labour to the new masters; and each purchaser then held complete property in the convict’s work. Although the Transportation Act, on which the Australian convict system was originally based, provided for the same system to operate in New South Wales, it did not work that way in practice.7 The property in Australian convict labour was first vested in the governors, who were able to keep it for the government’s own use or assign it to individuals. Once the assignment to a private person was made, the assignee had a limited property right in the services of the convict. This was the view of Francis Forbes, the first Chief Justice of New South Wales, which he and two other judges affirmed in Jane New’s case in 1829.8 Forbes questioned many of the controls over assigned convicts which the governors had exercised until then. In particular, he said, the governors had no right to remove assigned convicts from masters unless they had failed to look after their convicts properly. He did recognise, however, that the private master’s property interest was subject to the governor’s power to pardon convicts and grant tickets of leave. This overall government control meant that there were true penal colonies in Australia, unlike America. This change was evidence of the gradual reduction in private involvement in imprisonment and punishment. The personal autonomy that characterised English criminal law was in slow decline.
Female convicts were subject to the same general rules of assignment as men, but most of their work was domestic. Early attempts to turn them into outdoor labourers failed, and in Governor Macquarie’s period (from 1810 onwards) they were usually assigned to household work until they were married. This was part of a deliberate policy of bringing young women to the colonies for reproduction. As Byrne argues, their labour was less important than their sex. Another consequence of this difference in treatment was that the women in domestic service had no right to free time when they could earn their own incomes. As a result of this, they had less room for personal control over their daily lives than men.9 Male and female convicts under assignment were subject to discipline. The rules were a mixture of local orders and Acts, imperial legislation and, in some cases, whatever punishment occurred to the judge or magistrate at the time. Castles’ research reveals that in the first few years in Sydney, the courts showed creativity in their sentences, especially during the time of food shortages. One convict was confined for a week on Pinchgut, a rocky little island opposite the present Sydney Opera House. In effect, this became the first place of secondary punishment in Australia. This was a mild punishment compared with that of another convict who stole some  potatoes; he was ordered to be given 300 lashes, to have his flour ration stropped for six months, and to be chained to another convict.10 For convicts, the importation of the common law included its cruelty. Flogging was the most common punishment for breaches of discipline, but it was mostly confined to men. Marcus Clarke described it in his 1874 novel, For the Term of his Natural Life: Three wooden staves, seven feet high, were fastened together in the form of a triangle. The structure looked not unlike that made by gipsies to boil their kettles. To this structure Kirkland was bound. His feet were fastened with thongs to the base of the triangle; his wrists, bound above his head, at the apex. His body was then extended to its fullest length, and his white back shone in the sunlight. . . . The third blow sounded as though it had been struck upon a piece of raw beef, and the crimson turned purple.11 Convicts could only be punished by the order of magistrates or judges. Masters had no right to beat their convict servants. The most serious offences could be tried only by the judges, but they rarely left the main towns. Before its separation as an independent colony in 1825, Van Diemen’s Land had no resident judge to try serious criminal cases. This led to allegations that serious thefts went unpunished there because it would have been too expensive for the prosecutor to take the case to Sydney. No mainland judge visited the island to try serious criminal cases until 1821, seventeen years after Hobart was established. It led to a splurge of executions, as terror was used to instil obedience into the unruly Vandemonians. Minor offences by convicts were prosecuted there much more regularly, because the amateur magistrates who heard these cases were present in most communities. Capital offences, which should have been tried in Sydney, were instead tried by the island’s magistrates, who could not order executions but who made very heavy use of the lash and other physical punishment instead. Free people, who were not subject to trial by the magistrates, often managed to evade punishment altogether in Van Diemen’s Land.12This peak of amateurism, with its combination of illegally heavy punishment of some and lucky escapes from punishment by others, was even more capricious than the enforcement of the criminal law in the frontier period on the mainland. Law in Australia was already showing the pluralism of its English parent.
The magistrates were given wide punitive powers, at first without explicit guidance, but subsequently by local and imperial statutes. In 1825, for example, one of the first Acts of the newly established New South Wales Legislative Council empowered a magistrate sitting alone to order the punishment of recalcitrant male convicts by work at a treadmill for up to ten days, flogging of up to 50 lashes, solitary confinement on bread and water for up to seven days, or imprisonment with hard labour for up to three months.13  Some of the magistrates imposed these and other sentences arbitrarily. A Supreme Court justice, Roger Therry, reported that a convict was sentenced to 50 lashes for not taking off his hat to a magistrate as he met him on the road. Therry also showed that the lash was used illegally to attempt to force convicts to confess their guilt or reveal stolen property. These illegal punishments were not restricted to men: he also complained that two women were chained together until they restored a stolen gown. Magistrates also acted beyond their strict powers when they used iron collars against female convicts, and when one ordered a woman to be lashed. Some magistrates sentenced people to transportation to the penal settlement at Newcastle for indefinite periods, which was also beyond their powers. They also manipulated the rules. When the official penalties were reduced in 1832, the magistrates found a way around the restriction by splitting the offences in two, so doubling the available punishments. Illegal sentences left the magistrates vulnerable to being sued or prosecuted by those they punished, but in 1825 the local and imperial legislatures passed indemnity Acts to prevent this.14 Despite the brutal power of the law, convicts were not merely passive victims of a brutal system. Byrne shows that the magistrates’ court records reveal the convicts’ expectations about working conditions, which they tried to enforce. In Sydney their circumstances approached those of wage labour and their claims concerned food and accommodation. Plantation conditions applied in the country, where they complained about food and accommodation; in the bush the relationship between convict and master was closer to a traditional British paternalist role, with enforceable obligations on either side. Byrne argues that the law was a site for struggles over working conditions, not just something used to enforce the discipline of convicts. A charge of insolence or refusal to work was often met by the convict’s own complaint about working conditions. As shown later, the convicts also brought civil actions of their own before the magistrates.15 Although the magistrates heard complaints by both sides, there was nothing neutral about their use of the law. Even if they were unable to hear complaints against their own servants, magistrates were themselves masters who heard complaints by members of their own class. Sometimes they interpreted the very action of complaining as insolence.16 Despite that, the law was a constraint on the behaviour of all members of the colonial community, including the powerful. Masters had to act within its broad limits and had to follow its sometimes awkward procedures. The inconvenience involved in taking reluctant or disobedient convict workers to a magistrate for punishment affected the daily relationship between convicts and masters. Informal sanctions, such as the withholding of discretionary rations, sometimes replaced the punishment imposed by the courts.
There were four forms of convict protest, according to Alan Atkinson:  one was a radical rejection of official values, while the other three included at least some acquiescence in them. This partial acceptance of formal values was interwoven with an assertion of the convicts’ own views of their rights. The three ways in which they pressed their rights were appeals to authority, (such as through claims in court), refusing to work, and compensatory retribution (when they destroyed property). The latter was not an unprincipled rejection of official power but a response to an infringement own perceptions of right. The important implication of Atkinson’s work is that these customary rights were based partly on official values as applied to convicts, and partly on expectations of the work done by free labourers in Britain and Ireland. The result of this interaction was a peculiarly local version of rights, which frequently went beyond official ideas. It was this blend of views that was internalised by the convicts, not simply the official statement as to correct behaviour. When a magistrate accepted one of these convict pleas, he was engaging in a multi-sourced determination of local law.
Those in the first of Atkinson’s categories, who undertook a total challenge to official authority, sometimes expressed themselves violently. Bushranging commenced when convicts ran away from an often brutal imposition of force. Convict rebellions were the most dramatic expression of a general rejection of official values, but despite a nagging fear of insurrection, especially by Irish political prisoners, there were very few of them. The rebellions on the mainland, Norfolk Island and Van Diemen’s Land were minor and short-lived.
The most important convict rebellion began in 1804 at Castle Hill, outside Sydney. About 300 convicts armed themselves as part of a careful plan to march on Sydney, where they apparently aimed to seize a ship. This had all the elements of a good revolt.. Irish rebels, a declaration of martial law, treachery by a military leader in capturing the rebel leaders, a bloody battle, a court martial, immediate executions (one without trial), and the rebels’ grand rallying cry of ‘death or liberty’. Most of these military actions were lawful by imperial standards except, probably, the execution without trial. Nor were military legal procedures fully followed in the trials. The rebels’ aim was to seize not government, but liberty, a return to Ireland. According to O’Farrell, their actions were motivated less by desperation caused by a brutal regime than by a mixture of frustration, sickness of heart and resentment at the English oppression of their religion. This rebellion was an exception, however, not part of the usual pattern among Irish convicts of conditional acceptance of the penal societies’ overall structure and of the almost universal colonial drive for wealth.17 The Act that established the Court of Criminal jurisdiction authorised it only to inflict capital and corporal punishment, but, together with the governors and the magistrates, the court developed a more feared punish--ment, secondary transportation. Convicts were sent to specifically penal settlements when they committed further offences in the colonies. Names such as Macquarie Harbour, Port Arthur, Norfolk Island, Coal River (Newcastle), Port Macquarie and Moreton Bay resonate with blood and horror. It was much greater punishment to be sent there than to be flogged or sentenced to public work such as building roads, even as a member of a chain gang.18 The first penal settlement was Norfolk Island, occupied in 1788, just a few weeks after Sydney. Initially it was not a place for doubly convicted convicts but was simply another convict settlement with the same general rules as the mainland. Within three years, however, it had begun to be used as a place for rebellious and recidivist convicts, its chief attraction being its isolation. In 1800 Foveaux took command there and established the island’s bloody reputation by initiating a pattern of torture and harsh physical discipline, which remained over the succeeding decades. Some were so desperate to get away from the island that they committed brutal crimes so they could be sent to Sydney for trial.
Even under Foveaux, however, the basic system of convict management in the first period at Norfolk Island remained as it was at Sydney. This meant that convicts of both sexes lived there. As on the mainland, they had property rights, free time and some autonomy, and they interacted with a local settler community. This is shown by correspondence between Thomas Jamison, an official surgeon in Sydney, and Michael Hayes, a convict who was sent to the island in 1805 as punishment for a locally committed crime. Hayes acted as Jamison’s commercial agent on Norfolk Island, including acting for him in the island’s civil court. Hayes also traded on his own behalf and acquired a considerable amount of property. There is barely a hint of his convict status in this correspondence until the order to evacuate the island was made in 1807. He then had difficulty in obtaining permission to remove his property. He appears to have held his property as of right, but the right to have it shipped on government vessels was restricted to free and emancipist settlers.
If New South Wales was remote from British control, Norfolk Island was removed even from that of the governors and judges in Sydney. This is shown by Foveaux’s actions when he and his officers agreed to the immediate capital punishment of two convict mutineers. It is clear that these executions were illegal by the standards of the common law as there had not even been a trial, yet Foveaux’s decision had the support of both Sydney and London. The implication was that those in charge at Norfolk Island were autocrats, able to do what they liked, so long as the convicts were subordinated.19 After the first settlement at Norfolk Island was abandoned, Newcastle (Coal River) became for some time the only place of secondary punishment  in the vast colony of New South Wales. It was established in 1804, and most of the convicts sent there had been convicted of further offences in New South Wales. Some local free people who had committed a major crime were also transported there, and a few convicts who were experienced miners went to Newcastle as soon as they arrived from Europe. It was a very remote and sober place, as Commissioner Bigge found. While was compulsory labour on government works such as coal mining and lime burning, there was also some opportunity for convicts with money to live relatively well. They were able to buy their own houses, take in lodgers and import goods for resale. Most convicts lived as lodgers rather than in the barracks or the gaol.20
Tickets of Leave and Pardons Tickets of leave (analogous to today’s parole) were a local colonial invention of the governors. They seem to have been issued first in 1801. The governors may not have had strict imperial legal authority to grant tickets until they were recognised by statute in 1828, but, like so many aspects of convict management, rigorous imperial attention to the legality of this came only in the 1820s. Until then, the practical determination to ensure a functioning penal regime overrode most concerns about legality. The imperial government knew about the ticket of leave system and approved of it, tacitly or explicitly.
Tickets of leave allowed convicts to work solely for themselves and live in their own accommodation while remaining under formal sentence. They were conditional on the convict complying with local orders, living within a fixed area, and they sometimes required the holder not to demand ‘extortionate’ prices for labour. One advantage to the government was that they removed the prisoner from official rations. They were also a strong incentive for compliant behaviour, both before they were granted and, because they could easily be lost, afterwards. They were less attractive to the masters of hard-working assigned convicts, however, who had an incentive to block the issue of a ticket if they could.21 The final stage of the emancipation of a transported convict was legal freedom, either through completion of the period of service or through a pardon. Pardons were granted by the local governors and were usually conditional on the convict remaining in the colony until the original period of transportation expired. Absolute Pardons, allowing immediate return to Europe, were rarely given. Conditional pardons were linked to the imperial policy of granting land to emancipists with government rations for the first six months or a year; the aims were to create a local yeomanry and give the emancipists an incentive to stay in the colony.22 Tickets of leave and pardons were the most important elements in the early governors’ broad discretionary control over the lives of convicts. This  was a local version of the paternalism discretion that so strongly characterised the criminal law of England at the beginning of the nineteenth century. In Australia, however, it operated in a different context and with different effects. Patronage in the convict colonies was coupled with rewards for good behaviour, some of which included grants of land. Such grants would never have been made in Britain or Ireland. As in England, the law was seen to be merciful while its orderly values were simultaneously reinforced.
The control of convicts in colonial Australia was thus achieved through a combination of physical brutality and discretionary rewards. Neither side of this balance should be ignored; each reinforced official views of appropriate behaviour and values. The ideological function of law rested, as it still does, on the way in which official values become part of received common sense. This had to be accepted by people who were subject to it, and that process was much more complex than a simple notion of rules and values being imposed on convicts from above.23 Many of the convict policies in force before 1820 were developed locally by the governors, judges, magistrates and even the convicts themselves. English laws were sometimes broken in this period, but no one seemed to be particularly concerned about that, least of all the imperial authorities in London. There was a change in about 1820, however, which included greater concern about legality, the introduction of more bureaucratic methods and closer control over convicts. The personal autonomy of convicts was at a peak in the period to 1820, after which it gradually declined into strict imprisonment.
ENDNOTES There is no specialised study of the legal position of convicts, but aspects of it are examined by David Neal, The Rule of Law in Penal Colony: Law and Power in Early New South Wales, CUP, Cambridge, 1991; J.B. Hirst, Convict Society and its Enemies: A History of Early New South Wales, Allen & Unwin, Sydney, 1983; Paula Byrne, Criminal Law and Colonial Subject: New South Wales, 1810-1830, CUP, Cambridge, 1993; and Bruce Kercher, The Development of Law in the New South Wales Court of Civil Jurisdiction, 1788-1814, PhD thesis, Macquarie University, 1992, ch. 4.
1 The papers in Cable (or Kable) v. Sinclair, July 1788, 2/8147 are held by the New South Wales Archives Office. On the background to the case, see Neal, pp. 1-7.
2 W. Blackstone, Commentaries on the Laws of England, vol. 4, 9th ed., 1783, reprint Garland Publishing, New York, 1978, pp. 380-389, 400-401 (quotation at p. 380); and see Field to Bathurst, 15 January 1823, HRA , 4/1, p. 423; Shepherd and Gifford to Bathurst, 13 May 1818, HRA , 1/9, p. 821; F. Forbes, ‘summary of the Law . . . with Regard to Persons Who Have Been Adjudged Guilty of Crimes’, I January 1823, HRA , 4/1, pp. 419-422.
3 On the right to earn a living, see for example, orders, 28 October 1802, HRA , 1/4, p. 326; 26 October 1811, HRA , vol. 7, p. 631; and see Wylde and Field to Goulburn, 5 April 1817, HRA , 4/1, P. 247.
4 Castle Forbes: R. Therry, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria, 1863, reprint SUP, Sydney, 1974, pp. 164-174, 177-178, 498; and, justifying his policies, James Mudie, The Felonry of New South Wales, 1837, reprint Lansdowne Press, Melbourne, 1964.
5 Portia Robinson, The Women of Botany Bay, revised ed., Penguin Books, Ringwood, 1993, pp. 277-290; ‘Marginalia’ in Mudie, p. 215.
6 Letter by Henry Tingley to his parents, in Select Documents in Australian History 1788-1850, ed. C. M. H. Clark, Angus & Robertson, Sydney, 1950, pp. 131-132.
7 Transportation Act (1784) 24 Geo. III c. 56; H. V. Evatt, ‘the Legal Foundations of New South Wales’, ALJ, vol. 11, 1938, pp. 411-412; A. E. Smith, Colonists in Bondage: White Servitude and Convict Labour in America, Peter Smith, Gloucester Mass., 1965, Part II. On indentured servants generally, see D.W. Galenson, White Servitude in Colonial America: an Economic Analysis, CUP, Cambridge, 1981.
8 On Jane New’s case, Sydney Gazette, 17 and 24 March 1829, see (1824) 5 Geo. IV c. 84; Forbes to Horton, 6 March 1827, HRA , 4/1, pp. 695-699; Forbes to Hay, 12 November 1827, HRA , 4/1, p. 748; Stephen to Horton, 27 March 1825, HRA , 4/1, pp. 607-608. See also Molesworth Report (1838), in J. M. Bennett and A. C. Castles, A Source Book of Australian Legal History: Source Materials from the Eighteenth to the Twentieth Centuries, LBC, Sydney, 1979, p 2; and for a jaundiced view see Mudie, p. 29. The political background is examined by Neal, pp. 110-113; and see C. H. Currey, Sir Francis Forbes: The First Chief Justice of New South Wales, Angus & Robertson, Sydney, 1968, ch. 31.
9 Byrne, pp. 38-51; and see Portia Robinson, ‘the First Forty Years’, in In Pursuit of Justice: Australian Women and the Law 1788-1979, J. Mackinolty and H. Radi eds, Hale & Iremonger, Sydney, 1979, pp. 1-16; Robinson, Women of Botany Bay. 10 Alex Castles, An Australian Legal History, LBC, Sydney, 1982, p. 64, Castles wrongly suggests that he was chained to a coffin, rather than to a convict called Coffin.
11 Marcus Clarke, For the Term of his Natural Life, 1874, reprint OUP, London, 1952, pp. 363-364.
12 Alex Castles, ‘the Vandemonian Spirit and the Law’ THRA , vol. 38, 1991, pp. 108-110; L.L. Robson, A History of Tasmania: Vol. 1 From the Earliest Times to 1855, OUP, Melbourne, 1983, pp. 60, 81, 118-119; H. Melville, The History of Van Diemen’s Land from the Year 1824 to 1835, inclusive during the Administration of Lieutenant-Governor Arthur, ed. G. Mackaness, 1835, reprint Horwitz, Sydney, 1965, p. 18.
13 (1825) 6 Geo. IV No. 5; and see (1830) 11 Geo. IV No. 12; (1832) 3 Wm IV No. 3 (NSW).
14 Therry, pp. 43-49, 164-170; Circular to Magistrates, 20 April 1820, HRA , 4/1, p. 337; Hirst, Convict Society, pp. 111-112, 175-176; Currey, Forbes, ch. 15; Castles, ‘Vandemonian’, p. 112. On the avoidance of (1832) 3 Wm IV No. 3 (NSW), see Michael Sturma, Vice in a Vicious Society: Crime and Convicts in Mid-Nineteenth Century New South Wales, UQP, St Lucia, 1983, pp. 14-18. Indemnity Acts: (1825) 6 Geo. IV No. 18 (NSW); (1825) 6 Geo. IV c. 69, s. 5 (imp.).
15 Byrne, ch. 2; and see Alan Atkinson, ‘Four Patterns of Convict Protest’, Labour History, vol. 37, 1979, pp. 28-51.
16 Sturma, pp. 19-20; Atkinson, pp. 36, 43.
17 P. O’Farrell, The Irish in Australia, UNSWP, Sydney, 1986, ch. 2; L. Silver, The Battle of Vinegar Hill, Doubleday, Sydney, 1989; R.W Connell, ‘the Convict Rebellion of 1804’, Melbourne Historical Journal, vol. 5, 1965, pp. 27-37. Illegality at trial: M. Grove, ‘Observations on the Influence of Courts-Martial in the Colonial Court’, unpublished paper delivered to the Royal Australian Historical Society, 1993. On a subsequent alleged plot, see B. W O’Dwyer, ‘Michael Dwyer and the 1807 Plan of Insurrection’, JRAHS, vol 69, 1983, pp. 73-82. On other rebellions, see Hirst, Convict Society, pp. 134-135, 142.
18 Court of Criminal Jurisdiction enabling Act: (1787) 27 Geo. III c. 2 (imp.). Chain gang legislation: (1830) 11 Geo. IV No. 12, ss 1, 3; (1832) 3 Wm IV No. 3, ss 3, 18, 24 (NSW).
19 The main source on Norfolk Island is M. Hazzard, Punishment Short of Death: A History of the Penal Settlement at Norfolk Island, Hyland House, Melboume, 1984. On the Hayes correspondence, see M. Roe, ‘trade, Life, and Law at Norfolk Island 1806-1808: Michael Hayes’s Records’, THRA , vol. 35, 1988, pp. 93-111. Desperate to escape: R. v. Farrell (1831) 1 Legge 5, p. 28.
20 Newcastle as a Convict Settlement. The Evidence before J. T. Bigge in 1819-1821. ed. J. W Turner, Council of the City of Newcastle, Newcastle, 1973.
21 Sid Hammell, “Tickets of Leave”, honours paper, Macquarie University, 1992; Stephen to Horton, 27 March 1825, HRA , 4/1, p. 609; Forbes to Hay, 12 November 1827, HRA , 4/1, pp. 748-749; Jane New’s case, Sydney Gazette, 24 March 1829; Macquarie to Bathurst, 28 June 1813, HRA , 1/7, p. 779; proclamation, Sydney Gazette, 8 June 1811, p. 1; Sydney Gazette, 16 March 1806, p. 1; First Bigge Report (Great Britain, Report of the Commissioner of Inquiry, on the Judicial Establishments of New South Wales, and Van Diemen’s Land, 1822, p. 130; Mudie, p. 108; Therry, pp. 134-135, 167-168. On recognition of tickets, see (1832) 2 & 3 Wm IV c. 62; (1832) 3 Wm IV No. 4, s. 36.
22 Pardons: 30 Geo. III c. 47; 6 Geo. IV c. 25; 9 Geo. IV c. 83, ss 34-3s; 2 & 3 Will. IV c. 62 (imp.); Molesworth Report, pp. 2-3; First Bigge Report, pp. 119-120. Land policy: Instructions to Governor Phillip, HRA , 1/1, pp. 14-15; Brisbane to Bathurst, 14 May 1825, HRA , 1/11, p. 579.
23 W Nichol, ‘Ideology and the Convict System in New South Wales, 1788–1820’, Historical Studies, vol. 22, 1986, p. 1.
24 Brisbane to Bathurst, HRA , 1/11, p. 574; Hirst, Convict Society, pp. 41-46, 50-51.
25 Parramatta Female Factory: (1830) 11 Geo. IV No. 12, s. 3 (NSW); (1832) 3 Wm IV No. 3, ss 3, 18 (NSW); Brisbane to Bathurst, 14 May 1825, HRA , 1/11, p. 578; Report of the Select Committee on Transportation, 1812, in Clark, Select Documents, pp. 117-118; Therry, ch. 13; Annette Salt, These Outcast Women: The Parramatta Female Factory 1821-1848, Hale & Iremonger, Sydney, 1984; Hilary Weatherburn, ‘the Female Factory’, in Pursuit of Justice. On the factory in Hobart, see Robson, p. 146, and on bare bottoms there see C. M. H. Clark, A History of Australia, vol. 3, MUP, Melbourne, 1973, p. 207. On the use of the lash against women, see Castles, ‘Vandemonian Spirit’, p. 112; Pursuit of Justice, opposite p. 1.
26 The gradual introduction of attaint is discussed in Kercher, pp. 100-121.
27 Eagar v. Field and Eagar v. De Mestre are in HRA , 1/10, pp. 351-364, 553-554; and see Eagar to Bathurst, 3 April 1823, HRA , 4/1, pp. 463-464; First Bigge Report, pp. 131-137. See also N. McLachlan, ‘Edward Eagar (1787-1866): A Colonial Spokesman in Sydney and London’, Historical Studies, vol. 10, 1963, p. 431. The English decision followed in Eagar was Bullock v. Dodds (1819) 2 B.& Ald. 258; 106 ER 361.
28 Ellis Bent to Bathurst, 1 July 1815, HRA , 4/1, pp. 136-141; Jeffery Bent to Bathurst and enclosures, 1 July 1815, HRA , 4/1, pp. 144-162, 204-205; Jeffery Bent to Goulburn, HRA , 4/1, pp. 302-311; First Bigge Report, p. 145. See C. H. Currey, The Brother’s Bent: Judge-Advocate Ellis Bent and Judge Jeffery Hart Bent, SUP, Sydney, 1968, chs 2 and 3. On convict attorneys, see Anthony Fisher, ‘From Norman Conquest to Rum Rebellion’, in J.M. Bennett, A History of Solicitors in New South Wales, Legal Books, Sydney, 1984.
29 Forbes, 1 January 1823, HRA , 4/1, pp. 419-422; and see his dissenting judgment in R. v. Farrell (1831) 1 Legge 5. See also evidence of Field to Bigge, October 1820, HRA , 4/1, pp. 866-867.
30 Mudie, ch. 1.
31 There were three Bigge Reports, one in 1822 and the others in 1823. The two that concerned the law were Great Britain, Reports of the Commissioner of Inquiry, on the Judicial Establishments of New South Wales, and Van Diemen’s Land (1822 (448) and 1823 (33)). Commission: see Bathurst to Bigge, 6 January 1819, in Bennett and Castles, pp. 6-8; J. M. Bennett, ‘the Day of Retribution: Commissioner Bigge’s Inquiries in Colonial New South Wales’, American Journal of Legal History, vol. 15, 1971, p. 89.
32 Re-transportation within NSW: (1823) 4 Geo. IV c. 96, ss 19, 36; and see (1830) 11 Geo. IV No. 12, and (1832) 3 Wm IV No. 3 (NSW); Hirst, Convict Society, p. 107. Second transportation from U.K.: Brisbane to Bathurst, 14 May 1825, HRA , 1/11, p. 573. Magistrates’ power of transportation: (1825) 6 Geo. IV c. 69, s. 3; Forbes to Horton, 6 March 1827, HRA , 4/1, p. 697. On the power of the Commandants, see (1830) 11 Geo. IV No. 12, ss 10-11; (1 832) 3 Wm IV No. 3, ss 7-8 (NSW).
33 Therry, p. 21, and see pp. 22-26.
34 Sudds case: Castles, Australian Legal History, pp. 159-160; Hirst, Convict Society, pp. 118, 121, 177; and for comments supporting Darling, see Mudie, pp. 32-40. Moreton Bay: J. G. Steele, Brisbane Town in Convict Days 1824-1842, UQP, St Lucia, 1975.
35 (1832) 2 & 3 Wm IV c. 62; 1837-38 Select Committee on Transportation, in Clark, Select Documents, pp. 133-134; First Bigge Report, pp. 119, 122-125; Therry, p. 133; Hammell, pp. 9, 13, 16, 18. Concern with morality of masters: S. G. Foster, ‘Convict Assignment in New South Wales in the 1830s’, Push from the Bush, no. 15, 1983, pp. 35-80; Therry, pp. 133-134.
36 (1823) 4 Geo. IV c. 96, ss 34-35; (1824) 5 Geo. IV c. 84, s. 26; (1825) 6 Geo. IV c. 25; Macquarie to Bathurst, HRA , 1/10, p. 352; Field to Bathurst, 15 January 1823, HRA , 4/1, pp. 423-429; First Bigge Report, p. 119. See Dugan v. Mirror Newspapers Ltd (1978) 142 CLR 583, pp., 604-605.
37 Convict deposits: S.J. Butlin, Foundation of the Australian Monetary System 1788-1851, SUP, Sydney, 1968 reprint, pp. 410-419; Hirst, Convict Society, p. 123; J. Maclehose, Picture of Sydney and Strangers’ Guide in N.S.W. for 1839, 1839, reprint John Ferguson, Sydney, 1977, p. 21; Stanley to Franklin, 1842, in Clark, Select Documents, p. 158; Brisbane to Bathurst, 14 May 1825, HRA , 1/11, p. 576; Australian, 13 March 1829. Government wages: Brisbane to Bathurst, HRA , 1/11, p. 578.
38 Therry, p. 319 and see pp. 330-331.
39 R. v. Joseph Eames, Sydney Gazette, 2 June 1825; R. v. Farrell (1831) 1 Legge 5, pp. 11, 24; First Bigge Report, pp. 136-138; evidence of Field to Bigge, December 1820, HRA , 4/1, p. 781; Field to Bigge, 23 October 1820, HRA , 4/1, pp. 866-867; Field to Bathurst, 15 January 1823, HRA , 4/1, pp. 423-429; Forbes, 12 June 1823, HRA , 4/1, pp. 483-484; Macquarie to Bathurst, 1 September 1820, HRA , 1/10, pp. 351-352.
40 R. v. Charles Kable was reported in Sydney Gazette, 8 and 22 July 1822; see also Australian, 13 March 1829; Sydney Gazette, 10 March 1829. Legal effect of indents: Doe dem. Cotton v. Farrell (1847) 1 Legge 403; (contra: Doe dem. Tugwell v Farrell (1847) 1 Legge 399); Hogan v. Hely, 31 March 1831, Sydney Gazette, 5 April 1831; Bourke to Goderich, 25 January 1833, HRA , 1/17, p. 21; (1830) 11 Geo. IV No. 12, s. 2 (NSW); (1832) 3 Wm IV No. 3, s. 35 (NSW). The indents were often inaccurate: see First Bigge Report, p. 121.
41 Emancipist campaigns: Macquarie to Bathurst and Petition of Emancipists, 22 October 1821, HRA , 1/10, pp. 549-557; Eagar to Bathurst, 3 April 1823, HRA , 4/1, pp. 441-476. See McLachlan, and chapter 4. Imperial legislation on attaint: (1832) 2 & 3 Wm IV c. 62; (1843) 6 Vic. c. 7. NSW Act: (1832) 3 Wm IV No. 3, s. 36. See Therry, pp. 320-321; Clark, Select Documents, pp. 136, 158; Hirst, Convict Society, pp. 124-125; Hammell, pp. 27-28.
42 R. v. Farrell, Dingle and Woodward (1831) 1 Legge 5, p. 18; (1844) 8 Vic. No. 1 (NSW); (1844) 7 & 8 Vic. c. 85 (imp.); Therry, pp. 203-205, 331; Debate on Evidence Bill, Sydney Herald, 21 June 1844; Alex Castles, ‘the Reception and Status of English Law in Australia’, Adelaide Law Review, vol. 2, 1963, p. 9; Currey, Forbes, pp. 462-464; Hirst, Convict Society, p. 122.
43 Crossley’s appearance for wealthy people: see, for example, evidence of Palmer in Anthony Fenn Kemp v George Crossley, Court of Appeal Minutes, 12-13 April 1810, 4/1724 (AONSW); Sydney Gazette, 26 September 1812, p. 2; evidence of Wylde to Bigge, December 1820, HRA , 4/1, p. 840. On Crossley, see Crossley’s petition, 18 December 1817, HRA , 4/1, pp. 268-271; K.G. Allars, ‘George Crossley: An Unusual Attorney’, JRAHS, vol. 44, 1958, p. 261; Fisher, pp. 16-18; A. Halloran, ‘some Early Legal Celebrities: First Series’, JRAHS, vol. 10, 1924, pp. 176-189; Currey, Brothers Bent, pp. 35-37. Convict attorneys at Hobart: Castles, ‘Vandemonian Spirit’, p. 111.
44 Crossley, Amos and Field: Wylde to Goulburn, 31 March 1817, HRA , 4/1, pp. 229-230; Petition of Crossley, 18 December 1817, HRA , 4/1, p. 270; Macquarie to Wylde and Field, 10 March 1817, HRA , 4/1, p. 856; evidence heard by Bigge, November-December 1819, HRA , 4/1, pp. 755-773, 783-784, 850; John Amos to Bathurst, 27 July 1820, HRA , 4/1, pp. 339-343; and see Bennett, ‘Retribution’, pp. 93-95: Bennett, History of Solicitors, pp. 25-29; Allars, pp. 293-296; Halloran, pp. 185-188.
45 Mudie, pp. 149-151 (quotation p. 151). Convict attorneys after 1824: Charter Establishing Courts of Judicature in New South Wales, clause 10, October 1823, HRA , 4/1, pp. 512-513; In re Roberts and Williams (1838) 1 Legge 89.
46 Maconochie, p. 248. On Maconochie, see J. V Barry, Alexander Maconochie of Norfolk Island: A Study of Pioneer in Penal Reform, OUP, Melbourne, 1958, including appendix, ‘Summary of Papers on Convict Discipline, Sent Home by Captain Maconochie, R.N.’.
47 Coultman Smith, Shadow over Tasmania, 22nd impression, Walch & Sons, Hobart, 1985, pp. 58-60; Robson, pp. 151, 443, 488.
48 On Molesworth and the end of transportation to New South Wales, see Molesworth Report; Russell to Gipps, 6 July 1840, HRA , 1/20, p. 700; N. Thompson, ‘the Molesworth Enquiry: Does the Report Fit the Evidence?’, Journal of Australian Studies, vol. 1, 1977, pp. 33-51; Clark, History, vol. 3, pp. 417-421; J. B. Hirst, The Strange Birth of Colonial Democracy: New South Wales 1848-1884, Allen & Unwin, Sydney, 1988, pp. 20-21.
49 Hirst, Convict Society, pp. 22-27, 211; Robson, 329.
50 See Alexandra Hasluck, Unwilling Emigrants: A Study of the Convict Period in Western Australia, OUP, Melbourne, 1959; I. van den Driesen, ‘Convict Migrants in Western Australia 1850-1968’, JRAHS, vol. 72, 1986, p. 40; addresses at 1985 symposium on convicts in Western Australia, published in Westerly, no. 3, 1985; L. Poole, ‘Convicts in Western Australia: Some Myths Exploded’, Social Sciences Forum, vol. 5, 1978, pp. 10-35; Argus Supplement, 25 June 1864, in Bennett and Castles, pp. 14-16.
51 See Robson, pp. 388-389, 442-443, 453, ch. 23; Stanley to Franklin, 1842, in Clark, Select Documents, pp. 156-159.