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Perish or Prosper: The Law and Convict Transportation in the British Empire, 1700–1850

Published online by Cambridge University Press:  28 October 2011


For over 150 years from the early eighteenth century, convict transportation was a primary method of punishing serious crime in Britain and Ireland. Convicts were first sent to the colonies in North America and the Caribbean and then to three newly established Australian colonies on the other side of the world. Conditions were very different between the two locations, yet the fundamental law of transportation remained the same for decades after the process began in Australia.

Forum: The “New” Australian Legal History
Copyright © the American Society for Legal History, Inc. 2003

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1. The epigraph is from Jeremy Bentham, The Rationale of Punishment, 1830, book 5, chap. 2, quoted slightly differently in Shaw, Alan G. L., Convicts and the Colonies (London: Faber and Faber, 1966), 57.Google Scholar

2. See Ekirch, A. Roger, Bound for America: The Transportation of British Convicts to the Colonies, 1718–1775 (Oxford: Clarendon Paperbacks, 1987), 27Google Scholar; Grubb, Farley, “The Transatlantic Market for British Convict Labor,” Journal of Economic History 60 (2000): 94.CrossRefGoogle Scholar See also Smith, Abbott E., Colonists in Bondage: White Servitude and Convict Labor in America 1607–1776 (Gloucester, Mass.: Peter Smith, 1947)Google Scholar, appendix; Bailyn, Bernard, Voyagers to the West: A Passage in the Peopling of America on the Eve of the Revolution (New York: Knopf, 1987), 294–95Google Scholar; Ekirch, A. Roger, “Bound for America: A Profile of British Convicts Transported to the Colonies, 1718–1775,” William and Mary Quarterly, 3d ser., 42 (1985): 185200CrossRefGoogle Scholar; Fogleman, Aaron S., “From Slaves, Convicts, and Servants to Free Passengers: The Transformation of Immigration in the Era of the American Revolution,” Journal of American History 85 (1998): 4376, table 1.CrossRefGoogle Scholar

3. See Vamplew, Wray, ed., Australians: Historical Statistics (Sydney: Fairfax, Syme and Weldon, 1987), 4.Google Scholar

4. Australia: see for example, Hirst, John, Convict Society and Its Enemies: A History of Early New South Wales (Sydney: Allen and Unwin, 1983)Google Scholar; Robson, Leslie L., The Convict Settlers of Australia (Melbourne: Melbourne University Press, 1965)Google Scholar; Shaw, Convicts and the Colonies. America: see for example, Smith, Colonists in Bondage; Ekirch, Bound for America; Bailyn, Voyagers to the West. Apart from Ekirch, Bound for America, the American books tend to be about forced labor generally, of which convict transportation was a part. On the need for the comparative history of convict labor, see Duffield, Ian and Bradley, James, eds., Representing Convicts: New Perspectives on Convict Forced Labor Migration (London: Leicester University Press, 1997)Google Scholar, introduction. Shaw, Convicts and the Colonies, chap. 1, provides just that. Representing Convicts came from a conference held in Edinburgh in 1995. Another was held in Leicester in 1999, “Colonial Places, Convict Spaces: Penal Transportation in Global Context, c. 1600–1940.” See; These conferences covered convict transportation to America, Australia, and elsewhere.

5. Castles, Alex C., An Australian Legal History (Sydney: Law Book Co, 1982).Google Scholar

6. Friedman, Lawrence, A History of American Law (New York: Touchstone, 1985).Google Scholar Nor is there any reference to banishment, exile, or transportation in Friedman, Lawrence, Crime and Punishment in American History (New York: Basic Books, 1993).Google Scholar

7. Since convict transportation was mainly to Virginia and Maryland, its neglect by American legal historians may be part of a general neglect of southern legal history. See Finkelman, Paul, “Exploring Southern Legal History,” North Carolina Law Review 64 (1985): 77116.Google Scholar

8. This odd institution of convict management was at once a prison, a factory, and a marriage bureau. See Salt, Annette, These Outcast Women: The Parramatta Female Factory, 1821–1848 (Sydney: Hale and Iremonger, 1984).Google Scholar

9. See, though, parts of Castles, Australian Legal History, and Currey, Charles H., Sir Francis Forbes: The First Chief Justice of New South Wales (Sydney: Angus and Robertson, 1968).Google Scholar

10. 4 Geo. 1, c. 11. For the background to its enactment, see Ekirch, Bound for America, 17; Beattie, J. M., Crime and the Courts in England, 1660–1800 (Oxford: Clarendon Press, 1986), chap. 9.Google Scholar

11. On seventeenth-century transportation, see Smith, Colonists in Bondage, chap. 5; and see (1597) 39 Eliz. c. 4; and Habeas Corpus Act, 1679 (31 Car. 2, c. 2, s. 12).

12. On the benefit of clergy, see Linebaugh, Peter, The London Hanged: Crime and Civil Society in the Eighteenth Century (London: Penguin, 1993), 82Google Scholar; Beattie, Crime and the Courts, 141–48, 452, 610; and see Blackstone, William, Commentaries on the Laws of England (1st ed., 1765–1769; reprint, Chicago: University of Chicago Press, 1979), vol. 4, chap. 28.Google Scholar

13. See Beattie, Crime and the Courts, 506.

14. On the practical but systematic discretion available to prosecutors, juries, judges, and the Crown concerning punishment, see Beattie, Crime and the Courts, chap. 8 especially; Ignatieff, Michael, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850 (New York: Pantheon Books, 1978), 1920CrossRefGoogle Scholar; King, Peter, “Decision-Makers and Decision-Making in the English Criminal Law, 1750–1800,” Historical Journal 27 (1984): 2558CrossRefGoogle Scholar; King, Peter, Crime, Justice, and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000), chap. 9Google Scholar; Morgan, Gwenda and Rushton, Peter, Rogues, Thieves and the Rule of Law: The Problem of Law Enforcement in North-East England, 1718–1800 (London: UCL Press, 1998), chap. 7.Google Scholar

15. See, for example, (1734) 7 Geo. 2, c. 21; (1768) 8 Geo. 3, c. 15; and see Ekirch, Bound for America, 22. On the percentages of convicts hanged and transported, see Ekirch, Bound for America, 21; Reid, Charles J., “Review Essay: Tyburn, Thanatos, and Marxist Historiography: The Case of the London Hanged,” Cornell Law Review 79 (1994): 1186Google Scholar; King, Crime, Justice, chap. 8; Morgan and Rushton, Rogues, chap. 7.

16. Atkinson, Alan, “The Free-Born Englishman Transported: Convict Rights as a Measure of Eighteenth-Century Empire,” Past and Present 144 (1994): 88115.CrossRefGoogle Scholar

17. See also (1719) 6 Geo. 1, c. 23.

18. See Smith, Colonists in Bondage, 147–51.

19. Ekirch, Bound for America, 97. See Morgan and Rushton, Rogues, 165–68, showing that retransportation was sometimes ordered for this.

20. (1766) 6 Geo. 3, c. 32.

21. Ekirch, Bound for America, 224.

22. Ibid., 3.

23. See ibid., 18, 71–72, 228; Grubb, “Transatlantic Market,” 117–19. On the contracts, see Smith, Colonists in Bondage, chap. 6; Morgan, Kenneth, “The Organization of the Convict Trade to Maryland: Stevenson, Randolph and Cheston, 1768–1775,” William and Mary Quarterly 42 (1985): 201–27.CrossRefGoogle Scholar On the effects of the absence of a subsidy in some areas, see Morgan and Rushton, Rogues, 153; and on the end of the subsidy, see Bailyn, Voyagers to the West, 263. On transportation to America, see also Bleichmar, Javier, “Deportation as Punishment: A Historical Analysis of the British Practice of Banishment and Its Impact on Modern Constitutional Law,” Georgetown Immigration Law Journal 14 (1999): 115–63.Google Scholar

24. Ekirch, Bound for America, 122–23, 129; Smith, Colonists in Bondage, 221–22; and see the detailed chap. 10 in Bailyn, Voyagers to the West.

25. Ekirch, Bound for America, 124–25; Grubb, “Transatlantic Market,” 94–122. Grubb provides an economic analysis of the pricing of coerced labor.

26. Smith, Colonists in Bondage, 122; Grubb, “Transatlantic Market,” table 1.

27. Ekirch, Bound for America, 76.

28. Smith, Colonists in Bondage, 103. Grubb, “Transatlantic Market,” 110, 116, also found that shippers were able in practice to select among the convicts, while special subsidies were paid for some individuals.

29. Ekirch, Bound for America, 102; Smith, Colonists in Bondage, 125.

30. Ekirch, Bound for America, 119; Bailyn, Voyagers to the West, 260–61.

31. Ekirch, Bound for America, 114–16; Smith, Colonists in Bondage, 117; Fogleman, “Slaves, Convicts, and Servants,” 58.

32. See Smith, Colonists in Bondage, 119–21, 130; Bailyn, Voyagers to the West, 261–63; Bilder, Mary S., “The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce,” Missouri Law Review 61 (1996): 775–77Google Scholar; and see Atkinson, “Free-Born Englishman,” 99–100.

33. Smith, Colonists in Bondage, 130; Ekirch, Bound for America, vii; Bailyn, Voyagers to the West, 263; Morgan, “Organization of the Convict Trade,” 203. On indentured laborers, see also Galenson, David W., White Servitude in Colonial America: An Economic Analysis (Cambridge: Cambridge University Press, 1981).Google Scholar

34. Ekirch, Bound for America, 147, 198. Generalizations are difficult, because conditions changed over time and place: see Daniels, Christine, “Gresham's Laws: Labor Management on an Early Eighteenth-Century Chesapeake Plantation,” Journal of Southern History 62 (1996): 205–38.CrossRefGoogle Scholar As to the operation of criminal law within the American colonies, see, for example, Preyer, Kathryn, “Penal Measures in the American Colonies: An Overview,” American Journal of Legal History 26 (1982): 326–53CrossRefGoogle Scholar, noting at 344 that a common punishment in eighteenth-century Pennsylvania was a capital sentence followed by a pardon on condition of the person leaving the colony; Rice, James D., “The Criminal Trial before and after the Lawyers: Authority, Law and Culture in Maryland Jury Trials, 1681–1837,” American Journal of Legal History 40 (1996): 455–75.CrossRefGoogle Scholar

35. See An Act concerning Servants and Slaves, Virginia, 1705 (at; Ekirch, Bound for America, 150.

36. Ekirch, Bound for America, 196; Grubb, Farley, “The Statutory Regulation of Colonial Servitude: An Incomplete-Contract Approach,” Explorations in Economic History 37 (2000): 45.CrossRefGoogle Scholar

37. Ekirch, Bound for America, 153–56; Smith, Colonists in Bondage, 131; Grubb, “Statutory Regulation,” 60–61. On the freedom dues payable in the colonies of America and the West Indies, see Smith, Colonists in Bondage, 238–40; Grubb, “Statutory Regulation”; and see An Act concerning Servants and Slaves, Virginia, 1705, section 13.

38. Fogleman, “Slaves, Convicts, and Servants,” 52; Grubb, “Transatlantic Market,” 98, 109, 114–15; Grubb, “Statutory Regulation,” 60.

39. Atkinson, “Free-Born Englishman,” 97–98; and see, concerning Irish convicts, Reece, Bob, The Origins of Irish Convict Transportation to New South Wales (Basingstoke: Palgrave, 2001), 13.Google Scholar

40. Atkinson, “Free-Born Englishman.”

41. Smith, Colonists in Bondage, 303.

42. Grubb, “Statutory Regulation,” 70–71.

43. See also Smith, Colonists in Bondage, 258, 264, 267, 275; and see An Act concerning Servants and Slaves, Virginia, 1705; Grubb, “Statutory Regulation”; Tomlins, Christopher L., Law, Labor and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993), 249–53.CrossRefGoogle Scholar

44. Smith, Colonists in Bondage, 278.

45. See, for example, Bilder, “The Straggle over Immigration,” 754, noting that the primary difference between indentured servants and convicts was the way they entered into their indenture. See also Roeber, A. G., Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810 (Chapel Hill: University of North Carolina Press, 1981), 9093Google Scholar, distinguishing slaves from whites, but not convicts from indentured laborers.

46. Atkinson, “Free-Born Englishman,” 97–98.

47. Bailyn, Voyagers to the West, 325; Fogleman, “Slaves, Convicts, and Servants,” 57.

48. Grabb, See, “Transatlantic Market”; Grubb, “Statutory Regulation.” See also David Eltis, “Free and Coerced Transatlantic Migrations: Some Comparisons,” American Historical Review 88 (1983); 251–80Google Scholar; and, distinguishing convict labor from slavery, Eltis, David, The Rise of African Slavery in the Americas (Cambridge: Cambridge University Press, 2000), 6667, 73–75.Google Scholar

49. Blackstone, Commentaries, vol. 4, 373, and on forfeiture, see 373–79.

50. See Francis Forbes, “Summary of the Law … with regard to Persons who have been Adjudged Guilty of Crimes,” 1 January 1823, in Historical Records of Australia, ed. Watson, Frederick (Sydney: Library Committee of the Commonwealth Parliament, 19141925 [hereafter HRA]), series 4, vol. 1, 419.Google Scholar

51. Blackstone, Commentaries, vol. 1, 431.

52. Forbes, “Summary of the Law,” 421–22.

53. Ekirch, Bound for America, 154. See also Atkinson, “Free-Born Englishman,” 102–1.

54. James Clarke's Lessee v. Philip Hall, 2 H. & McH. 378; 1789 Md. LEXIS 8.

55. Smith, Colonists in Bondage, 131, 235.

56. The same ambiguity, contrasting American and English attitudes to attaint, is evident in People v. Pease, 3 Johns. Cas. 333; 1803 N. Y. LEXIS 95. See also Pemberton's Lessee v. Hicks, 3 U.S. 479; 1798 U.S. LEXIS 154; 1 L. Ed. 687; 3 Dall. 479; and see 1 Binn. 1; 1799 Pa. LEXIS 1.

57. Contrast Blackstone, Commentaries, 1st ed., vol. 1, 104–5, with Blackstone, William, Commentaries on the Laws of England (9th ed., London, 1783; reprinted, New York: Garland Publishing, 1978), vol. 1, 108.Google Scholar

58. This version of the test appears to have been adopted from the legislation applying to Newfoundland. See (1792) 32 Geo. 3, c. 46, s. 1; (1809) 49 Geo. 3, c. 27, s. 1; (1824) 5 Geo. 4, c. 67, s. 10.

59. Blackstone, Commentaries, 1st ed., vol. 1, 105. See also Calvin's Case (1608), 7 Co. Rep. la at 17b; 77 E.R. 377 at 398; and see Blankard v. Galdy (1693) Trin. 5 W & M; 90 E.R. 1089; Campbell v. Hall (1774), 1 Cowp. 204, 98 E.R. 1045. For the principles relied on by Blackstone distinguishing settled from conquered colonies, see the footnote to Calvin's Case, at 77 E.R. 398, reproducing a determination by the Lords of the Privy Council, as stated by the Master of the Rolls in 1722.

60. Hall, F. W., “The Common Law: An Account of Its Reception in the United States,” Vanderbilt Law Review 4 (1951): 791825Google Scholar; Tolley, Michael C., “Maryland and Its Anglo-Legal Inheritance,” Journal of Legal History 11 (1990): 355CrossRefGoogle Scholar; Hall, Kermit, Wiecek, William M., and Finkleman, Paul, American Legal History: Cases and Materials, 2d ed. (New York: Oxford University Press, 1996), 24Google Scholar; and see Blackstone, Commentaries, 1st ed., vol. 1, 105; “1984 Survey of Books Relating to the Law: IV. Legal History: Criminal Justice in Colonial America, 1606–1660. By Bradley Chapin,” Michigan Law Review 82 (1984): 881 n. 13.

61. See Billings, Warren M., “Justices, Books, Laws and Courts in Seventeenth-Century Virginia,” Law Library Journal 85 (1993): 277–96.Google Scholar See also Finkelman, “Exploring Southern Legal History,” 109–10, on the localized power of the courts in Virginia. On attitudes to the reception of English law in eighteenth-century Virginia, see Roeber, Faithful Magistrates, 74.

62. See Rees, Charles A., “Preserved or Pickled? The Right to Trial by Jury after the Merger of Law and Equity in Maryland,” University of Baltimore Law Review 26 (1997): 382–83.Google Scholar

63. For some of the many possible examples of this point, see Friedman, History of American Law, prologue; Girard, Philip, “Themes and Variations in Early Canadian Legal Culture: Beamish Murdoch and his Epitome of the Laws of Nova-Scotia,” Law and History Review 11 (1993): 101–44CrossRefGoogle Scholar; Dayton, Cornelia H., Women before the Bar: Gender, Law and Society in Connecticut, 1639–1789 (Chapel Hill: University of North Carolina Press, 1995)Google Scholar; Mann, Bruce H., Neighbors and Strangers: Law and Community in Early Connecticut (Chapel Hill: University of North Carolina Press, 1987), 67Google Scholar; Hall, American Legal History, 23–29; Tomlins, Law, Labor and Ideology, 240; “1984 Survey”; Preyer, “Penal Measures in the American Colonies,” 326–27.

64. On the British attempts to continue transportation after the revolution, see Ekirch, A. Roger, “Great Britain's Secret Convict Trade to America, 1783–1784,” American Historical Review 89 (1984): 1285–91CrossRefGoogle Scholar; Reece, Origins, chaps. 8–11. For Newfoundland, see Bannister, Jerry, “Convict Transportation and the Colonial State in Newfoundland, 1789,” Acadiensis 27 (1998): 95123.Google Scholar For Nova Scotia: Jim Phillips of the University of Toronto has generously sent the author copies of documents held by the Nova Scotia Archives and Records Management relating to convicts sent to Nova Scotia. The first reference is dated 1753, when the colony's officials refused to receive convicts from Newcastle. Shiploads of convicts continued to be sent (and resistance continued in the colony) into the late 1780s, even after the first fleet of convicts had begun the long voyage to New South Wales. On the resumption of transportation, see Beattie, Crime and the Courts, 592–601; and on the use of hulks and imprisonment at hard labor in the meantime, see 564–69, 573–76.

65. See Australians: Historical Statistics, ed. Vamplew, 104 – 5; Robson, The Convict Settlers of Australia, 3.

66. Commissions of Collins and Dore, the first two judge advocates: HRA, series 4, vol. 1, at 1 and 46.

67. For a non-lawyer's view of this structure, see Atkinson, Alan, “The First Plans for Governing New South Wales,” Australian Historical Studies 24 (1990): 2240CrossRefGoogle Scholar; and for recent lawyers' views, see Neal, David, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge: Cambridge University Press, 1991), chap. 1Google Scholar; Kercher, Bruce, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South Wales (Sydney: Federation Press, 1996)Google Scholar, chap. 1. On the first judge advocate, see Currey, John, David Collins: A Colonial Life (Melbourne: Miegunyah Press, 2000).Google Scholar

68. See Caldwell, “Population,” 114.

69. The New South Wales and Van Diemen's Land cases used here are taken from one of two sources:; and The former site contains many hundreds of cases decided in New South Wales between 1824 and 1838, while the latter contains Van Diemen's Land cases beginning in 1824.

70. Bateson, Charles, The Convict Ships, 1787–1868 (Glasgow: Brown and Ferguson, 1959), chap. 2Google Scholar; and see Frost, Alan, Botany Bay Mirages: Illusions of Australia's Convict Beginnings (Melbourne: Melbourne University Press, 1994)Google Scholar, chap. 6 at 112 especially. Hundreds of voyages: see the appendices in Bateson, The Convict Ships. Appointment of superintendents on board ship: see (1815) 55 Geo. 3, c. 156, s.14; (1816) 56 Geo. 3, c. 27.

71. Atkinson, “Free-Born Englishman,” 108.

72. See, for example, Kercher, Brace, “A Convict Conservative: George Crossley and the English Legal Tradition,” Law in Context 19 (1998): 17.Google Scholar

73. Atkinson, “Free-Born Englishman,” 109; Atkinson, Alan, The Europeans in Australia: A History (Melbourne: Oxford University Press, 1997), 1: 6970.Google Scholar

74. See Dyster, Barrie, “Public Employment and Assignment to Private Masters, 1788–1821” in Convict Workers: Reinterpreting Australia's Past, ed. Nicholas, Stephen (Cambridge: Cambridge University Press, 1988)Google Scholar, chap. 9; Atkinson, “The First Plans,” 38–40; Hirst, Convict Society, 37; Atkinson, Europeans, 200–201, 210. Former convicts: see Bigge, John T., Report of the Commissioner of Inquiry, on the Judicial Establishments of New South Wales, and Van Diemen's Land (1823; reprinted, Adelaide: Libraries Board of South Australia, 1966 [hereafter Bigge, Judicial]), chap. 3.Google Scholar

75. See Hirst, Convict Society, 83, 206–7; Ritchie, John, The Evidence to the Bigge Reports (Melbourne: Heinemann, 1971), 79.Google Scholar

76. On the assignment board, see Barton v. Parry (No 2) (1834), Fletcher, Brian H., Ralph Darling: a Governor Maligned (Melbourne: Oxford University Press, 1984), 124–26Google Scholar; Shaw, Convicts and the Colonies, 196. See also Regulations for the Assignment of Male Convict Servants, in Australian, 19 May 1835. Patronage: Therry, Roger, Reminiscences of Thirty Years' Residence in New South Wales and Victoria (1863; reprinted, Sydney: Sydney University Press, 1974), 133–34.Google Scholar On the method of assigning convicts before then, see Bigge, John T., Report of the Commissioner of Inquiry into the State of the Colony of New South Wales (1822; reprinted, Adelaide: Libraries Board of South Australia, 1966, hereafter Bigge, Colony), 1820.Google Scholar On the practice of convict assignment near the end of transportation to New South Wales, see Ryan v. Wilson, Australian, 16 March 1839.

77. See King, Hazel, Richard Bourke (Melbourne: Oxford University Press, 1971), 145–46, 206.Google Scholar

78. Cable v. Sinclair, July 1788, State Records of New South Wales, 2/8147. For studies of this case, see Kercher, Debt, Seduction, xviii–xix, 52–53; Neal, The Rule of Law, 1–7.

79. See, for example, (1832) 3 Wm. 4, no. 3 (New South Wales).

80. On this practice, see Karskens, Grace, The Rocks: Life in Early Sydney (Melbourne: Melbourne University Press, 1998), 176.Google Scholar

81. See Hirst, Convict Society, 36, 40, 45, 50–53, 56, 108; Stephen Nicholas, “The Care and Feeding of Convicts,” in Convict Workers, ed. Nicholas, chap. 12; Bigge, Colony, 74–98. The latter is famous for its attacks on the rehabilitation policy of Governor Macquarie, including his appointments of some former convicts to the magistracy.

82. See Kercher, Debt, Seduction, 49–65.

83. HRA, series 1, vol. 2, 246, 358–59; Historical Records of New South Wales, 4: 447.

84. See Sydney Gazette, 16 September 1804, 2.

85. Crossley v. Smyth, Wentworth and Cleary (1803), in Phillip G. King, Letter Book:Legal-Correspondence with Judge Advocates, Reports of Appeals, etc, 1800–1806, vol. 4, Mitchell Library, A2019, 281. On Crossley, see Kercher, “Crossley.”

86. See Hirst, Convict Society, 102–3 especially; and on their forerunners, see Atkinson, Europeans, 201, 212. For an example of a ticket of leave, see/R. v. Badderly and Howard (1828),

87. Hughes, Robert, The Fatal Shore: A History of the Transportation of Convicts to Australia, 1787–1868 (London: Collins Harvill, 1987).Google Scholar For more measured analyses, see for example Karskens, The Rocks; Hirst, Convict Society; Shaw, Convicts and the Colonies.

88. Castles, Australian Legal History, 112, citing Bigge, Judicial, 1.

89. Currey, Forbes, 33. On Bigge, see Hirst, Convict Society, chap. 3. Bigge had a greater impact on Van Diemen's Land than New South Wales: see Petrow, Stefan, “Policing in a Penal Colony: Governor Arthur's Police System in Van Diemen's Land, 1826–1836,” Law and History Review 18 (2000): 351–95.Google Scholar

90. Bigge, Judicial,7.

91. Petition of Emancipated Colonists, enclosure in Macquarie to Bathurst, October 1821, HRA, series 1, vol. 10, 549–56; and see Macquarie to Bathurst, 351–53, and enclosures, 353–64 (which include the formal records of Eagar v. Field). See Castles, Australian Legal History, 112–14; Currey, Forbes, 32–34.

92. Bigge, Judicial, 9.

93. Ibid., 9–10.

94. Field to Bathurst, 15 January 1823, HRA, series 4, vol. 1, 424, referring to Doe v. Pearce, published in the Sydney Gazette in 1818.

95. See Kercher, “A Convict Conservative” Castles, Australian Legal History, 106–10; Hirst, Convict Society, 116, 156–57; and see In re Roberts and Williams (1838),

96. See HRA, series 1, vol. 10, 549.

97. (1823) 4 Geo. 4, c. 96, ss. 34, 35; repeated by (1828) 9 Geo. 4, c. 83, ss. 32, 33. This was recommended by Francis Forbes: see “Heads of Points for Consideration” 1823, in HRA, series 4, vol. 1, 417–18. On the interpretation of these provisions, see R. v. Simms (1831),; R. v. O'Brien (1831),; R. v. Smith (1831), 1831.htm; R. v. Raine, Lee and Kemp, 1828, lee_and_kemp1828.htm; In the estate of Dempsey (1838), See Castles, Australian Legal History, 114; Currey, Forbes, 34–35.

98. (1824) 5 Geo. 4, c. 84, s. 26; and on pardons within Great Britain, see (1825) 6 Geo. 4, c. 25.

100. See (1823) 4 Geo. 4, c. 96.

101. For a biography of Forbes, see Currey, Forbes.

103. (1823) 4 Geo. 4, c. 96, s. 29.

104. HRA, series 4, vol. 1, 484, quoted in Currey, Forbes, 34.

105. See F. Forbes, “Summary of the Law… with regard to Persons who have been Adjudged Guilty of Crimes,” 1 January 1823, in HRA, series 4, vol. 1, 419–22.

107. On the legal status of the indent and the consequences of an error in it, see Hogan v. Hely (1831),;and see Cooper v. Clarkson (1831),; R. v. Ross, 1838,; Doe dem Cotton v. Farrell (1847) 1Legge 408; Doe dem Tugwell v. Farrell (1847) 1 Legge 399.

108. See R. v. Raine, Lee and Kemp (1828).

109. (1832) 3 Wm. 4, no. 3, s. 35; and see (1830) 11 Geo. 4, no. 12, s. 2; (1832) 3 Wm. 4, no. 3, s. 35. See also Belcher v. Deneen, 1832.

110. Septon v. Cobcroft (1833), (Forbes and Burton in the majority, Dowling in dissent).

112. See Belcher v. Deneen (1832), (per Dowling J, relying on Cooper v. Clarkson [1831]). See also R. v. Redfern and Wells (1827),

113. If another witness was available, the judges asked the condemned person to stand aside. See R. v. Griffiths (1826),

114. Mutiny: R. v. Douglas and others (1834), Piracy: see R. v. Flanagan and others (1827),; R. v. Walton and others (1827), Preference of death: see for example R. v. McDonnel and Miller (1832),; R. v. Lacey and others, in Tasmanian, 14 December 1827; and see Australian, 29 May 1835; R. v. Donovan (1824),; R. v. Vials (1834),; R. v. Jeffries (1835),; R. v. M'Allister and Wilson, in Australian, 7 March 1828.

116. R. v. Farrell, Dingle and Woodward (1831), See Currey, Forbes, 462–64; Castles, Australian Legal History, pp. 200, 500, 503, 507, 528; Bennett, John M., The Lives of the Australian Chief Justices: Sir James Dowling (Sydney: Federation Press, 2001), chap. 3.Google Scholar

118. The statute replaced the common law test of reception of law in 1828, 9 Geo. 4, c. 83, s. 24.

119. See also his shift from R. v. Ballard (1829), to R. v. Murrell (1836),, concerning the court's jurisdiction over clashes among Aborigines.

120. Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out. Under (1823) 4 Geo. 4, c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death. If the judge thought that the circumstances made the offender fit for the exercise of royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded. The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

121. Therry, Reminiscences, 203–5.

122. See Sydney Herald, 1 May 1841.

123. Burton: R. v. McCabe (1833),; R. v. Palmer (1838),; and see R. v. Nicholls (1837),; R. v. Blackball, Martin and Watkins (1838), Forbes: R. v. Ryan, Steel, McGrath and Daley (1832), Willis: R. v. Humphreys, in Sydney Herald, 3 November 1840. By 1833, Governor Bourke thought that the new majority on the court would either revert to die common law, or recommend a new colonial act on the subject (Bourke to Goderich, 18 March 1833, HRA, series 1, vol. 17, 50-51). In the meantime, convict evidence continued to be admitted into evidence: see the peculiar R. v. Harris and Piesnell (1832), (evidence admitted because defendant also a convict?).

124. See Australian, 7 June 1833, 27 September 1833, 1 November 1833, 18 November 1833, 22 November 1833, 20 January 1834.

125. R. v. Cavenagh (1834), In 1844, the New South Wales Legislative Council enacted 8 Vic. no. 1, which allowed those convicted of crimes to give evidence: see Bennett, Dowling, 48.

126. Atkinson, “Free-Born Englishman,” 108 especially.

127. (1843) 6 & 7 Vic, c. 85 (imp); (1844) 8 Vic. no. 1 (NSW).

128. See Sydney Gazette, 4 April 1828.

129. R. v. Cunningham, Oates and McLellan (1833),; and see R. v. Fellows and Clayton (1835),; R. v. Hancock (1835),; R. v. Gawenlock (1838), See contra R. v. Barker (1830),, Dowling J holding that a prisoner had sufficient possession of goods to sustain an information (charge) of stealing. See R. v. Laing (1835), on the impact of attaint on charges of fraud.

130. See also Anonymous (No. 1) (1830), (court refused to require allegedly attainted plaintiffs to give security for costs before actions taken), but see contra, Gilroy v. Mannix (1833), See also Chandler v. Eckford (1830), (payee of promissory note executed for felony before it was paid and his assignees held able to sue on it); Smithers v. Hodghen (1831), scnsw/Cases1831-32/html/smithers_v_hodghen_1831.htm (plaintiff pays deposit for purchase of land, then is transported to Norfolk Island for forgery, held able to recover the deposit); Conolly v. Flanagan (1834), (recovery of fees for medical attendance refused, when fees incurred before pardon granted); and see Polack v. Josephson (1825),; Therry, Reminiscences, 319 and see 330–31.

133. See (1824) 5 Geo. 4, c. 84, s. 26, referring to the ending of attaint on a “remission” being granted; and see (1790) 30 Geo. 3, c. 47. The contrary argument was put by the attorney general in R. v. Ross (1838).

134. Australian Courts Act (1828) 9 Geo. 4, c. 83, s. 9 and see s. 33 (the former referring not to tickets of leave but to “temporary and partial remissions”). See Darling to Bathurst, 8 November 1827, HRA, series 1, vol. 13, 604–7, and see 622–25; Murray to Darling, 31 July 1828, Mitchell Library, A 742; HRA, series 1, vol. 14, 270.

135. (1832) 3 Wm. 4, no. 3, s. 36.

136. (1832) 2 & 3 Wm. 4, c. 62, known as Lord Wynford's Act. See Septon v. Cobcroft, 1833.

138. See also R. v. Ross (1838).

142. Glenelg to Gipps, 10 March 1838, HRA, series 1, vol. 19, 314.

143. In re Mitchell, in Sydney Herald, 29 March 1839, per Willis J.

144. This practice had been in force since about 1825. See Butlin, Sydney J., Foundations of the Australian Monetary System, 1781–1851 (Sydney: Sydney University Press, 1968), 410–19.Google Scholar For Van Diemen's Land, see Government Order No. 35, 4 June 1828, in Hobart Town Gazette, 14 June 1828. Atkinson, “Free-Born Englishman,” begins with a discussion of this particular issue.

145. Gipps to Glenelg, 1 May 1838, HRA, series 1, vol. 19, 402.

146. In re White, in Sydney Herald, 20 May 1840. The Crown also waived its right to forfeiture after the convict died (In re Hussey and McGrath [1828],, and on the revocation of a ticket of leave (Therry, Reminiscences, 320–21).

147. On which, see Hartog, Hendrik, Man and Wife in America: A History (Cambridge: Harvard University Press, 2000), chap. 4.Google Scholar

148. See Governor Darling's Regulations, dated 9 March 1826, governing the assignment of convict labor (HRA, series 1, vol. 12, 252–53). Regulation 11 provided for assignment to spouses, under which wives could also be assigned to work for their husbands. See also Bigge, Colony, 20; R. v. Cable (1826); Hirst, Convict Society, 80.

149. For the government's refusal to do this, see, for example, R. v. Lookaye alias Edwards (1828),

150. Blackstone, Commentaries, 1st ed., vol. 1, chap. 15.

154. American masters of assigned servants sometimes did the same: Daniels, “Gresham's Laws,” 222, 224.

155. See Governor Darling's Regulations, 9 March 1826, regulation 9, HRA, series 1, vol. 12, 252–53. The legality of the regulation is examined below.

156. In re Cave (1826),; and see Lyons v. Cave (1827),; In re Mary Smith, 15 November 1828, Dowling, Select Cases, vol. 2, State Records of New South Wales, 2/3462, p. 105. See also Kettle v. Stubbs (1838),

157. For an instance of the attorney general holding that view, seemingly misinterpreting 2&3 Wm. 4, c. 62, see In the estate of Dempsey (1838).

159. Wild v. Driver (1837), Wild v. Driver (1838), On the inheritance rights of a wife of a ticket of leave holder, see R. v. Smith, Australian, 6 August 1839.

160. Blackstone, Commentaries, 1st ed., vol. 1, 432.

161. (1784) 24 Geo. 3, c. 56. See also (1788) 28 Geo. 3, c. 24, s. 5. The 1784 Act was repealed by (1815) 55 Geo. 3, c. 156, s. 1, but that act also stated that the contractor and his assigns “shall have a Property in the Service of such Offender or Offenders” for the period of transportation. So did its successor, (1816) 56 Geo. 3, c. 27, s. 3. For similar language in other late eighteenth-century statutes, see (1766) 6 Geo. 3, c. 32; (1785) 25 Geo. 3, c. 46; (1768) 8 Geo 3, c. 15.

162. (1779) 19 Geo. 3, c. 74, s. 2.

163. (1815) 55 Geo. 3, c. 156, s. 2; (1816) 56 Geo. 3, c. 27, s. 3.

164. Atkinson, “Free-Born Englishman,” 108.

165. (1824) 5 Geo. 4, c. 84.

166. See Murray to Darling, 30 August 1828, Mitchell Library, A 746. As discussed below, this changed in 1828: see 9 Geo. 4, c. 83, s. 9. See also Bathurst to Darling, 10 February 1827, HRA, series 1, vol. 13, 115–16. For the background to this, see the footnotes in Convict Assignment Opinion, (1827), For one version of this controversy, see Shaw, Convicts and the Colonies, 231–33.

167. Australian, 3 August 1827.

168. R. v. Wardell (No. 2) (1827), (The jury disagreed, so the prosecution was abandoned.)

170. Forbes to Horton, 6 March 1827, HRA, series 4, vol. 1, 695–99; Forbes to Darling, 1 August 1827, Chief Justice's Letter Book, State Records of New South Wales, 4/6651, 104. On removal to a new master, see, for example, Ritchie, Evidence, 158.

171. There were many others, including the interpretation of colonial legislation, declarations that some of the colonial acts were repugnant to English law, the judges' supposed sympathy for the emancipist faction, and the appointment of a new registrar of the Supreme Court. See the footnotes in R. v. Howe (1828),; Ex pane Raine (No 1) (1828),; and the cases listed in under the heading “Forbes C.J. and Governor Darling, conflict between.” See also Currey, Forbes; and Fletcher, Ralph Darling.

172. Darling to Huskisson, 1 March 1828, Mitchell Library, A 1202, Reel CY 535, 3–21; HRA, series 1, vol. 14, 6.

173. Ibid., 4–8. A few days earlier, Darling told Huskisson that Forbes was “greedy of power, almost beyond example…. He has further done every thing in his power to embarrass the Government by his strained interpretation of the Laws with respect to the Convict Population, and by his open countenance even in Court of Dr. Wardell and others, whose hostility to the Government has been unbounded” (26 February 1828, HRA, series 1, vol. 13, 813).

174. Currey, Forbes, 5, and on this paragraph, see chap. 1; Bennett, John M., The Lives of the Australian Chief Justices: Sir Francis Forbes (Sydney: Federation Press, 2001), chap. 1.Google Scholar For Forbes's response, see Forbes to Wilmot Horton, 7 March 1828, Catton Papers, Australian Joint Copying Project, Reel M791; and see Forbes to Wilmot Horton, 28 December 1828.

175. See especially Forbes to Horton, 7 March 1828, Catton Papers, Australian Joint Copying Project, Reel M791.

176. On Coke, see Cromartie, Alan, Sir Matthew Hale, 1609–1676: Law, Religion and Natural Philosophy (Cambridge: Cambridge University Press, 1995), 2526CrossRefGoogle Scholar; Blackstone, Commentaries, 1st ed., vol. 1, 87; and see Postema, Gerald J., Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986), chap. 1.Google Scholar

177. R. v. Edmund Gahan (1817) discussed in Forbes's report to the island's governor, 26 October 1817, Letter Books of the Colonial Secretary's Office, Provincial Archives of Newfoundland, GN/2/1/28, Vol. 28, 1817–1818, 49.

178. Forbes to Horton, 6 February 1825, Catton Papers, Australian Joint Copying Project, Reel M791. The analogy between convicts and slaves was often made and is the subject of some debate among historians in Australia: see Hirst, Convict Society, chap. 2; Neal, The Rule of Law, chap. 2; Stephen Nicholas “The Convict Labor Market” in Convict Workers, ed. Nicholas, chap. 8, and Dyster, “Public Employment,” ibid., chap. 9. Neal is mistaken at 36 when he says that the service of convicts remained the property of the governors, who merely licensed masters to use it. Nicholas makes the same mistake at 112. On the ill-treatment by some masters, see See R. v. Hitchcock and others (1833),; R. v. Benson and others (1825),; R. v. McGregor and Maloney (1834),

179. See Murray to Darling, 31 July 1828, Mitchell Library, A 742; Historical Records of Australia, series 1, vol. 14, 270.

180. In re Jane New (1829), See Currey, Forbes, chap. 31; Bennett, Dowling, chap. 2. See also the similar case of In re Harris (1827).

181. The other great controversy between Forbes and Darling concerned the governor's powers to punish convicts. This was at the heart of the Sudds and Thompson controversy, on which see Transportation Opinion (1826),

182. This was later repaired by statute. See the judgment of Willis J. in Walker v. Hughes, Australian, 25 June 1839.

183. After she left court, Jane New escaped: see Australian, 24 and 31 March, 8 April 1829, 22 November 1833; Sydney Gazette, 31 March, 9 April 1829; Enclosure with the Despatch No. 36 – 12th April 1831, Mitchell Library, A 1208, CY 541, pp. 1343–67; HRA, series 1, vol. 15, 28f, and see 678–701, 712–13. See also Karskens, The Rocks, 91. 182.

184. For a contrary view, see Fletcher, Ralph Darling.

185. This is one of the great themes of early New South Wales history. On these issues, see, for example, Edgeworth, Brendan, “Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824–1831),” Australian Journal of Law and Society 6 (1990): 5082Google Scholar; Neal, The Rule of Law; and Bennett, Lives: Dowling, chap. 4, all of which take a legal view of the events. On the call for impeachment, see Ex parte Went-worth, in re Mansfield (1829),; Currey, Forbes, chap. 39.

186. See Edgworth, “Defamation Law”; Currey, Forbes, chaps. 18–20, 33, 34–35.

187. In re Tyler (1829), For the withdrawal of labor from Hayes, the editor of the Australian, see In re Hayes (1829),; Hayes v. Hely (1830), See also In re Harris (1827); and Monitor, 30 August, 1 and 25 October 1827 (on the removal of another convict, in 1827).

188. See R. v. Hall (Nos. 2, 3, 4, 6, 7 and 8) (1829),

189. Hall v. Hely (1830),; Hayes v. Hely (1830). See also In re Hayes (1829).

190. Murray to Darling, 3 May 1830, HRA, series 1, vol. 15, 463-64 (and see 810–12). See also Bennett, Dowling, 36–39.

191. Darling to Murray, 6 July 1829, HRA, series 1, vol. 15, 53. (Hall's written complaint about this is at 54–67.)

192. Despatch, 2 August 1830, HRA, series 1, vol. 15, 648–54. See also Walker, Robin B., The Newspaper Press in New South Wales, 1803–1920 (Sydney: Sydney University Press, 1976), 1617Google Scholar; Currey, Forbes, chap. 31.

193. See attachments to Darling to Murray, 20 May 1829, HRA, series 1, vol. 14, 762–77 (judgment at 765–71). This was not the first time he took such a stance: see Bennett, Lives: Forbes, 35–37.

194. Twiss, 1 December 1829, Mitchell Library, A 742.

195. Murray to Darling, 30 January 1830, HRA, series 1, vol. 15, 346–53. See also Murray to Darling, 6 April 1830, HRA, series 1, vol. 15, 391. On the consequences of the Sydney Gazette's commentary on this, see R. v. Mansfield (No. 2) (1830), the Supreme Court refused to proceed in contempt against the editor for his hostile view of the court's decision in Jane New's Case.

196. Dowling to Murray, 10 July 1830, Mitchell Library, A 1297, CY 540, pp. 165–84; and see HRA, series 1, vol. 15, 709–11.

197. See also his judgment in R. v. Murrell (1836), falsely claiming that “no discussion took place as to the authority of the Court” in R. v. Bollard (1829).

198. Forbes to Murray, 19 July 1830, Mitchell Library, A 742; HRA, series 1, vol. 15, 664–69.

199. Flint v. Walker (1845, 1847), 5 Moo PC 179, 13 ER 459. On prerogative appeals, see Lord v. Wentworth (1829), See also the view of Burton J. in the notes to Lyons v. Morgan (1837),, and see Forbes and Dowling to McLeay, 14 August 1834, Chief Justice's Letter Book, 1824–1835, State Records of New South Wales, 4/6651, 382. The Crown had failed to act on (1828) 9 Geo. 4, c. 83, s. 15.

200. Regulations for the Assignment of Male Convict Servants, in Australian, 19 May 1835. See also Gipps to Glenelg, 8 October 1838, HRA, series 1, vol. 19, 603–4, 616, 679, and773.

201. See Cain v. Broomfield (1833),; Carr v. Stephen, Sydney Gazette, 23 March 1839. For a similar Van Diemen's Land case, see R. v. Moring (1825),

202. Barton v. Parry (No. 2) (1834). See also Somerville v. Hosking, Sydney Herald, 26 June 1839. On the removal of convicts, see also Lamb v. Brenan (1837), http.7/ A master could not sue his servant for negligence: Crawford v. Cullen (1830),

203. The case concerned whether a contract for the sale of the use of ten assigned convicts for three months was void as in breach of Governor Bourke's order that transfers could not be made without the previous sanction of the governor: Walker v. Hughes, Sydney Herald, 3 and 24 June, 1 July, 13 and 30 September 1839; Australian, 19 March, 25, 27, 29 June 1839. (The Supreme Court decided that such a contract was not void, Willis J. in dissent.)

204. See Glenelg to Gipps, 30 June 1838, HRA, series 1, vol. 19, 461–62. See King, Richard Bourke, 221–22.

205. See Hirst, Convict Society, 76–77; Shaw, Convicts and the Colonies, chap. 12.

206. On the “normalisers” in convict historiography, see Quartly, Marion, “Convict Histories,” in Oxford Companion to Australian History, ed. Davison, Graeme, Macintyre, Stuart, and Hirst, John (Melbourne: Oxford University Press, 1998), 154.Google Scholar

207. See Hirst, Convict Society, chap. 4; Kercher, Bruce, An Unruly Child: A History of Law in Australia (Sydney: Allen and Unwin, 1995), 4042.Google Scholar

208. Smith, Colonists in Bondage, 265; Ekirch, Bound for America, 147; and see An Act concerning Servants and Slaves 1705 (Virginia), section 21.

209. See Quinlan, Michael, “Regulating Labor in a Colonial Context,” Australian Historical Studies 111 (1998): 303–41CrossRefGoogle Scholar, citing Neal, The Rule of Law, 133–37.

210. Francis Forbes, “Heads of Points for Consideration” 1823, in HRA, series 4, vol. 1, 417, recommended that the former illegal sentences now be given force of law and the magistrates indemnified. This did not prevent litigation against them, as to which see, for example, R. v. Dawson (1827), and see M'Arthur v. Hill and Hall (1826),; R. v. Howe (1826),; R. v. Hall (No. 3) (1828), See also Hirst, Convict Society, 58–6, 175–76; Shaw, Convicts and the Colonies, 193–94.

211. See Kercher, Bruce, “Resistance to Law under Autocracy,” Modern Law Review 60 (1997): 779–97.CrossRefGoogle Scholar

212. Atkinson, “Free-Born Englishman,” especially 111–12.