Chapter 2 — the contradictions of convict law the impossibility of strict law, 1820–1840

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Citation: Bruce Kercher, The Unruly Child: A History of Law in Australia (Sydney: Allen & Unwin, 1995), pp. 22-42


The first major attack on the independence of assigned convicts was the opening of Sydney’s Hyde Park Barracks in 1819. It was built for male convicts who had not been assigned to private masters. This was not a prison; the building was a convenient place to live rather than a place of punishment. The inmates slept in hammocks in large rooms and were free to leave on weekends, when they could earn money. They had to be persuaded to live there. This was the first time a large number of convicts were kept together in government quarters, as part of Macquarie’s attempt to diminish the customary autonomy of convicts. The introduction of distinctive convict clothing in this period also symbolised the separation of convicts from the community.
Gradually, the notion that convicts could earn money in their own time also diminished. In 1816 it was reduced to a fixed payment of £10 per year for those whose time was devoted solely to their masters’ work, and even that was abolished in 1823. It was replaced, though, by an informal system [30]
of private rewards and indulgences, including passes allowing the convicts to go into town on Sundays.24 As in the great London prisons, which Dickens described, convicts in Australia only gradually lost their independence, their right to live their lives as they wished.
Women were under a greater restriction at the Female Factories in Parramatta, Hobart and Moreton Bay. The first of these was established in 1804. The most important was Governor Macquarie’s Parramatta factory, which was completed in 1821. It was designed as a place to keep women separate from men until they were married. He was a great moralist, determined to end what he saw as the scandal of newly arrived young women being assigned to single men. The factory was more than a sanctuary against lust, however. It was also a prison for refractory convicts and, as its name implies, a place for manufacturing cloth. Marriage bureaus prison, labour exchange and factory, the one institution had multiple and conflicting roles. In it, women were confined and regulated much more closely than male convicts at the time. The mass of women were drawn into institutional life much earlier than male convicts.
Macquarie divided the Parramatta factory inmates into two groups, and Governor Darling subsequently refined the classification further, splitting them into three. The first class were new arrivals and blameless destitutes, from which assignments (and marriages) were made. The second was probationary and included those who had been returned from service. The third were locally convicted criminals under punishment, including some free women who had committed local crimes. Those in the third class were not paid for their work and lived separately from the others. Hard labour at the factory (sometimes in solitary cells) was one of the main forms of punishment for women, the alternatives being fines and periods in the stocks. With rare exceptions, the lash was confined to men.
Byrne stresses that female convicts were not passive, powerless victims of male stereotyping of their roles. By being insolent they could escape an unwanted assignment and be returned to the factory. They used the law, she argues, to attain a degree of autonomy. Marriage also allowed a different version of freedom when women were assigned to their husbands. While this might appear to have been an escape into a new form of subservience, it was not necessarily so, because even married women sometimes engaged in independent trade, as chapter 3 shows . Clark noted that the women of the Hobart factory showed a different form of independence when Lady Jane Franklin visited them: they greeted her by taking down their pants and waggling their bare bottoms at her.25
There was a major change in 1820, when convicts formally lost the key to their personal autonomy, their right to hold property and sue in the courts. Kable v. Sinclair was no longer good law. For more than 30 years that decision to refuse to follow English law had been essential to the [31] character of New South Wales and Van Diemen’s Land. Without it, the lives of the convicts would necessarily have been dependent on their masters or the government. The right to sue was especially important, since there were few cash transactions. An absence of sterling meant that most transactions were carried out on credit or through payment by promissory notes, which were written promises to pay in the future. Convicts were paid in this way for work done in their own time, and they had to be able to sue. The ticket of leave system was also based on Kable v. Sinclair. Ticket holders lived as if Australia were a vast debtor’s prison, confined by the walls and some regulations, but otherwise free to live as they could afford; they could not do this if their civil legal rights were removed. Early New South Wales and Van Diemen’s Land were remarkably egalitarian places, in which legal status was irrelevant to the common interest of the colonists, the rush for wealth. All of this depended on the continued acceptance of David Collins’ decision at the beginning of British occupation.
The law of felony attaint came to New South Wales in stages.26 It began with a governor’s order in 1798, which said that government convicts were not to be arrested for debt. This was extended to all assigned convicts in 1801, and from this the courts developed a unique local rule. Assigned convicts could sue or be sued only in the magistrates’ courts. Ticket of leave holders and pardoned convicts had the same civil rights as free people. This went further than the common law, which did not prevent actions against attainted convicts. In another way it did not go as far, because the magistrates’ courts were open to serving convicts, and ticket of leave holders still had complete civil freedom. This local rule of one court for convicts and another for the free, which cannot be explained as a simple application of Blackstone’s rules about the transfer of the common law, was in force until 1820.
This was all swept aside in formal terms in the Eagar cases in 1820. In it, the local courts held for the first time that serving convicts and ticket of leave holders were subject to the full rigours of the English law of attaint, including the rules against holding property, suing in the courts and giving evidence. This was a devastating change for ticket of leave holders. Worse than that, the decision also affected all the emancipated convicts who had been granted a pardon before completing their sentence. The Supreme Court held that the governors’ pardons were invalid because they had not been endorsed in England as required by statute. One of the two Eagar decisions had extra piquancy because the plaintiff, the emancipist attorney Edward Eagar, was taking action against one of the two judges in the colony, Barron Field. A whiff of self-interest added to the hurt.
This drastic alteration in the locally applicable law was not due simply to changes in the demographic composition of the colony. The arrival of a powerful group of free immigrants was no doubt influential, as were the [32] arguments of those who opposed the emancipists, but there was also an important change in fundamental legal attitudes. Professional judges had replaced the amateurs from the end of 1809, when Ellis Bent arrived, and they bought with them a stronger adherence to English law. It took ten years for this to affect the local law of attaint. The court in the Eagar cases followed an English decision of 1819 which prevented one of Macquarie’s emancipists from suing in an English court because his pardon had not affirmed under the great seal in England. In the Eagar cases, this was extended to actions taken in the colony.27
There had been hints of the Eagar principle before 1820. Ellis Bent was determined to bring the colony’s law closer to the law of England, but he allowed the locally developed attaint rule to continue. He also let emancipist attorneys practise law in his courts under the title of ‘law agents’, recognising the practical necessity of this because there were no free lawyers in the colony. This ended when his brother Jeffery arrived as judge of the first Supreme Court in 1814. Jeffery was affronted by the notion of convict lawyers and refused to allow them to practise. Since there were no free lawyers, he would not allow the Supreme Court to do more than hold formal hearings until at least two properly qualified free attorneys arrived. As a result, the court did not operate until 1817, after he had been dismissed and his successor arrived. Under him, local practice gave way to strict English propriety, regardless of its ridiculous practical effect. Strict law meant that for a long period there was no civil law at all, which was compounded when Ellis’s illness prevented him from sitting in the smaller of the colony’s civil courts.28
The effect of the Eagar decisions was potentially devastating, especially when Chief Justice Forbes subsequently declared that the expiry of a sentence ended attaint only for some crimes and only if the convict had served the full period of transportation rather than being pardoned early by the local governor. This meant that many wealthy emancipists, who may have been pardoned many years earlier, were declared incapable of holding property.29 For two decades some of the richest people in the colony were emancipists, including Henry Kable, Simeon Lord and Samuel Terry, Macquarie even appointed some of them as magistrates. Now, they found they owned nothing and had no civil rights.
Even property held by free people was put at risk by the Eagar cases: what would happen to property that had passed unlawfully through emancipist hands? Many of the colony’s land titles were suddenly felt to be doubtful. The rule of law itself was also at risk because a large percentage of the population could no longer give evidence. So was the ticket of leave system, which depended on the Kable v. Sinclair principle.
The Eagar cases and the refusal to allow convict attorneys to practise law fed into the colony’s primary political conflict, between the emancipists [33] and the exclusives. The emancipists were already lobbying for representative institutions, such as juries and an elected legislature. The exclusives, those who had come to the colony as free subjects, opposed this liberalisation on the ground that the colony was corrupted by the presence of convicts. Extreme exclusives such as Mudie argued that the penal colonies should be divided permanently into two castes, with no release from the legal and social stigma of transportation.30 By 1820, however, it was too late for them to prevent wealth falling into emancipist hands. Kable v. Sinclair and the general disregard of English legal propriety had allowed that to happen for more than twenty years. The Eagar decisions came much too late and left the colony in an impossible position.
The restriction of convict autonomy and the clumsy assertion of English legal propriety in Eagar were reinforced by the reports of Commissioner Bigge in 1822 and 1823.31 Bigge had been commissioned by the British government to recommend a more punitive convict system. He criticised Governor Macquarie’s liberal regime with its emphasis on rehabilitation, and his reports led to tighter restrictions on convicts in New South Wales and Van Diemen’s Land. In particular, after Bigge there was a new emphasis on places of secondary punishment, in order to increase the deterrent value of transportation for those supposedly considering a life of crime. The perceived needs of Britain supposedly conflicted with the, relatively liberal nature of New South Wales.
Convict policy was influenced by a combination of the attitudes to punishment held by the dominant political party in London and local ideas. Bigge accepted the exclusive argument that convicts should be separated from the rest of the community to prevent corruption of general morals and the development of any notion of equality between free and emancipist people. He recommended, however, that there should be less emphasis on the lash and that the ticket of leave system should continue. His reports did not lead to the end of the assignment system, but they were part of a trend towards tighter convict surveillance, closer attention to legality, and the end of the governors’ discretion.
These trends were clear in the second penal settlement at Norfolk Island. In 1824, the Colonial Secretary, Lord Bathurst, ordered the reoccupation of the island. His aim was to send the worst convicts from New South Wales and Van Diemen’s Land there, as a place of punishment and deterrence. In particular, convicts who committed serious further crimes in the colonies would be sent there, as the one punishment just short of death. Lesser offenders were sent to Moreton Bay.
Secondary punishment came under formal law after 1820. An imperial Act of 1823 authorised the re-transportation within New South Wales of convicts who had committed local crimes. On the recommendation of Bigge, the new sentence commenced when the old one expired. Bigge’s [34] reports also ensured that those who were transported from the United Kingdom for a second or third time were sent to penal settlements as soon as they arrived in Australia. Even the magistrates had power to send re-offending convicts there. This was an extraordinary jurisdiction to be exercised summarily by one man.32 Many convicts must have feared additional time on Norfolk Island more than any number of lashes.
The great difference between the first and second settlements at Norfolk Island was that the second had little connection with ordinary society. There were no land grants to emancipists or local assignments of convict labour, and no private sales of food. There was only one reason for anyone to be there, the punishment of crime. It was exclusively a penal island after 1824. The more punitive Commandants even removed the right of prisoners to work their own garden plots. This separation from normal life was exacerbated when Governor Darling ordered that the women there, the wives of officials and convicts, were to be withdrawn.
There was no less brutality in the second period on Norfolk Island than the first. Roger Therry showed this when he described several Norfolk Island convicts who were witnesses in a case he was prosecuting as Attorney-General:
Of these six or seven witnesses there was not one who had not from time to time undergone the punishment of 1000 lashes each and upwards. They were as little reclaimable by the lash, as if so many drops of water had been poured upon their backs. They looked less like human beings than the shadows of gnomes that had risen from their sepulchral abode.33
Therry also cited a first-hand account of a man who chose to die in 1830 rather than make an appeal for clemency, which would have meant being sent to Norfolk Island. As Therry emphasised, only a minority of convicts were treated so badly, but some were, which showed that there was no sudden jump from punishment of the body to supposedly rational bureaucratic imprisonment.
The governor’s powers were also restricted by the closer attention to legality after 1820. In 1826 Governor Darling showed his autocratic tendency when he overruled a Quarter Sessions sentence of seven years’ transportation to a penal settlement. Darling thought that the offence, committed by two soldiers who were trying to obtain a dismissal from the army, deserved severe physical punishment. He ordered them to work in a chain gang with especially heavy chains, but one of the soldiers, Sudds, died. An outcry about this led to an appeal to London, where the imperial officials confirmed that Darling had acted illegally. It was less clear whether Darling had the power to send convicts to the penal settlements, or whether only the courts could do that. Chief justice Forbes thought that Darling acted illegally when he ignored a Supreme Court order to let a [35] convict go free, and sent him to Moreton Bay instead. The governors were gradually losing their autocratic powers and falling under the rule of law.34 Paternalist discretion was also in decline. The governors’ individual power to reward approved behaviour gradually gave way to bureaucratic consistency. Beginning with Governor Macquarie, tickets of leave and pardons came to be granted at fixed periods after the commencement of service, although they were still used to reward good behaviour. This trend was accelerated when Governors Darling and Bourke gave up their personal right to assign convicts, with its scope for patronage, and transferred the task to a board of commissioners. At the same time, there was increased official concern about the moral conduct of the convicts’ masters.35

Directory: courses -> lawdemo -> FTP
FTP -> Canadian Perspectives on Law and Society: Issues in Legal History
FTP -> Citation: Bruce Kercher, The Unruly Child: a history of Law in Australia (Sydney: Allen & Unwin, 1995), pp XI-XXI introduction english Flotsam
FTP -> Chapter 2 — the contradictions of convict law freedom and the lash, 1788-1820
FTP -> Citation: Alex C. Castles and Michael C. Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia, 1836–1986, (Adelaide: Wakefield Press, 1987), pp. 1-28 1 The Aboriginals and their Law
FTP -> Citation: E. P. Thompson, Customs In Common (New York: The New Press, 1991), pp. 159-175 V
FTP -> Citation: Richard Broome, Aboriginal Australians 2nd ed., (Sydney: Allen and Unwin, 1994), pp. 9-21 1 Traditional Life
FTP -> Chapter 3 — property, geography, and british columbia’s courts
FTP -> Citation: Alex C. Castles and Michael C. Harris, Lawmakers and Wayward Whigs: Government and Law in South Australia, 1836–1986, (Adelaide: Wakefield Press, 1987), pp. 55-73 3 Juristic Wisdom in Solomon’s Theatre
FTP -> Chapter 5 — Cranford V. Wright: Law and Authority in British Columbia
FTP -> Citation: David Neal, The Rule of Law in a Penal Colony: Law and Practice in Early New South Wales (Sydney: Cambridge University Press, 1991), pp. 61-83 chapter 3 The Rule of Law

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