1. Report from the Select Committee on Transportation; Together with the Minutes of Evidence, Appendix, and Index (London: House of Commons, 1838), xxviiGoogle Scholar. An earlier report was issued in 1837, but it is composed almost entirely of Minutes of Evidence: see Report from the Select Committee on Transportation; Together with the Minutes of Evidence, Appendix, and Index (London: House of Commons, 1837)Google Scholar.

2. Initially, NSW comprised the entire eastern part of Australia, including present-day NSW, Queensland, Victoria, and Tasmania (known as Van Diemen's Land until 1856). In 1825, Van Diemen's Land was made a separate colony: Order-in-Council separating Van Diemen's Land from New South Wales, June 14, 1825. Victoria and Queensland were not made separate colonies until 1851 and 1859, respectively.

3. Order-in-Council ending transportation to New South Wales, May 22, 1840. See Ritchie, John, “Towards Ending an Unclean Thing: The Molesworth Committee and the Abolition of Transportation to New South Wales, 1837-40,” Historical Studies 17 (1976): 144–64CrossRefGoogle Scholar.

4. At common law, oral sex was not considered sodomy: R v. Jacobs (1817) Russ. & Ry. 331. It could, however, be treated as an assault: Cocks, H.G., Nameless Offences. Homosexual Desire in the Nineteenth Century (London: J.B. Tauris & Co. Ltd., 2010), 32Google Scholar.

5. See R v. Jellyman (1839) 173 E.R. 637.

6. The first execution of a man for sodomy in NSW, of Alexander Brown in 1828, involved apparently consensual anal sex with Richard Lester who, owing to his youth and, it seems, his receptive role in the encounter, was granted a reprieve. Although consent was legally irrelevant, in practice it could, for evidentiary reasons, enable a husband to escape conviction for (perceived) consensual anal sex with his wife: R v. Jellyman (1839) 173 E.R. 637.

7. See Offences Against the Person Act 1828, 9 Geo. IV, c.31, s.15: “And be it enacted, That every Person convicted of the abominable Crime of Buggery, committed either with Mankind or with any Animal, shall suffer Death as a Felon.”

8. See Cocks, Nameless Offences, 30.

9. The offense was buggery, whether committed with man or animal, but in practice the charges distinguished between sodomy and bestiality. The same distinction is adopted here: sodomy refers to sexual acts between men; bestiality to sexual acts between men and animals; and buggery to either or both.

10. Existing empirical work on colonial buggery cases tends to adopt a much longer time-scale without going into great detail about the cases. See French, Robert, “‘Where the Action was’: Archival Sources for Gay History in Australia,” in Gay Perspectives: Essays in Australian Gay Culture, ed. Aldrich, Robert and Wotherspoon, Garry (Sydney: University of Sydney Press, 1992), 181–95Google Scholar; and Walter Fogarty, “Indecent Connection: Notions of the development of the homosexual in New South Wales law, 1788-1900” (BA (Hons) Thesis, University of New South Wales, Sydney, 1989). Aldrich, Robert in his seminal work Colonialism and Homosexuality (London: Routledge, 2003)Google Scholar discusses prosecution rates in colonial NSW but relies on the figures contained in French's aforementioned chapter. In The Fatal Shore. A History of the Transportation of Convicts to Australia 1787-1868 (London: Pan, 1988)Google Scholar, Robert Hughes accepted a version of the idea put forward in the 1838 Transportation Report; namely, that conviction rates in NSW were low in comparison with the prevalence of sodomy, extending this idea into a view that rates overall were insignificant. The premise may be reasonable, but the accompanying conclusion is questionable. See Hughes, The Fatal Shore, 264–67. The best discussion of male sexuality in colonial NSW is in Catie Gilchrist, “Male Convict Sexuality in the Penal Colonies of Australia, 1820-1850” (PhD diss., University of Sydney, 2004). See also Byrne, Paula J., Criminal Law and Colonial Subject: New South Wales, 1810-1830 (Melbourne: Cambridge University Press, 1993), 106–9CrossRefGoogle Scholar; and Kirkby, Diane, ed., Sex, Power and Justice: Historical Perspectives of Law in Australia (Melbourne: Oxford University Press, 1995)Google Scholar.

11. Charges brought in Van Diemen's Land up until 1825 are included, as are charges brought what is now Victoria and Queensland (though systematic settlement of those areas did not commence until the 1820s): see note 2.

12. Offences Act, 9 Geo. IV, c.31, s.18.

13. To be clear, I am not concerned in this article with exploring rates of conviction in detail. Data on convictions are provided in Part II, but I do not seek to explain these data and the changes they reveal in any causal way, ostensibly because of the unusual nature of criminal trials in this early colonial period, and the changes that came about in the mid-1830s concerning trial by jury. In essence, prior to 1833, criminal trials were tried before a deputy judge-advocate and six military officers. Following more than a decade of agitation for reform, the Jury Trials Act 1833 provided for trial by a civilian jury of twelve members in the Supreme Court, but retained the option of trial by military jury at the defendant's request. This option remained in place until 1839. See Bennett, J.M., “The Establishment of Jury Trial in Australia,” Sydney Law Review 3(3) (1961): 463–85Google Scholar; Chesterman, Michael, “Criminal Trial Juries in Australia: From Penal Colonies to a Federal Democracy,” Law & Contemporary Problems 62 (1999): 69–102CrossRefGoogle Scholar. The records discussed herein indicate that criminal trials for buggery between 1834 and 1838 (when my analysis concludes) were heard before a mix of civil and military juries. Accordingly, I do not think it fruitful to engage in speculation as to what might have motivated these differently composed juries to reach the results that they did. That being said, a number of the cases that were either dismissed, or in which “not guilty” verdicts were reached, were based on an apparent lack of evidence, suggesting that the Supreme Court and juries (in both forms) took seriously the task of adjudging the evidence before them, and were not inclined to convict solely on the basis of the “unspeakable” nature of the offense before them.

14. Cocks, Nameless Offences, 30.

15. All of the cases in the period 1788–1828 provide sufficient detail to determine the origin of the complaint. Six of the forty-four cases in the period 1828–1838 do not provide sufficient detail to determine the origin of the complaint.

16. In a number of the cases it is unclear whether the putative victim was in fact subjected to sexual assault or if the law's prohibition on same-sex intimacy meant that consent was retrospectively withdrawn once the act(s) were discovered. Acknowledging this murky aspect of the cases is in no way intended to undermine the fact that some men and boys were the victims of sexual aggression. Note also the possibility that victims might be held complicit in the commission of buggery: see Williams, Glanville, “Victims and Other Exempt Parties in Crime,” Legal Studies 10 (1990): 245–57, at 247–48CrossRefGoogle Scholar.

17. As discussed in Part III, it is possible that the increasingly organized nature of policing in the 1830s facilitated complaints by civilians. For an overview of the development of policing in colonial NSW, see Swanton, Bruce, The Police of Sydney, 1788–1862 (Sydney: Australian Institute of Criminology and NSW Police Historical Society, 1984)Google Scholar.

18. In the first volume of The History of Sexuality, Foucault observed how nineteenth-century society “takes great pains to relate in detail the things it does not say.” Alongside the typically repressive aspects of Victorian culture, Foucault noted a parallel “institutional incitement to speak” about sex, “a determination on the part of agencies of power to hear it spoken about, and to cause it to speak through explicit articulation and endlessly accumulated detail.” Far from a censorship of sex, there was “rather an apparatus for producing an ever greater quantity of discourse about sex.” Foucault, Michel, The History of Sexuality. The Will to Knowledge. Volume I, trans. Hurley, Robert (Camberwell: Penguin, 2008), 8, 18, 23Google Scholar.

19. Report of the Commissioner of Inquiry into the State of the Colony of New South Wales (London: House of Commons, June 19, 1822)Google Scholar. Two further reports were issued in 1823 concerning the judiciary and agriculture.

20. Foucault, Michel, Discipline and Punish. The Birth of the Prison, trans. Sheridan, Alan (New York: Vintage, 1995), 135–70Google Scholar. Foucault argues that in the eighteenth century, Western societies began to engage in “projects of docility” to make “possible the meticulous control of the operations of the body, which assured the constant subjection of its forces”; this “relation of docility-utility,” he says, “might be called ‘disciplines.’”

21. See Evans, Raymond, “19 June 1822: Creating ‘An Object of Real Terror’: The Tabling of the First Bigge Report,” in Turning Points in Australian History, ed. Crotty, Martin and Andrew, David Roberts (Sydney: UNSW Press, 2009), 48–61Google Scholar.

22. See generally Foucault, Discipline and Punish.

23. Blackstone, William, Commentaries on the Laws of England, 4 Vols., 4th ed. (Oxford: Clarendon Press, 1770), I:107Google Scholar. Note that the qualifying remarks did not appear in the first edition. See also Case 15—Anonymous 1722, 2 Peere Williams’ Reports 75.

24. See Cooper v. Stuart (1899) 14 App. Cas. 286.

25. See Locke, John, Second Treatise of Government (1689), ed. Macpherson, C.B. (Indianapolis: Hackett, 1980), §§ 27, 35, 40, 47Google Scholar.

26. See Mabo v. Queensland (No. 2) (1992) 175 C.L.R. 1.

27. Blackstone, Commentaries, I:107.

28. 25 Hen. VIII, c.6 (1533). The Act was confirmed during the reign of Elizabeth I: Cocks, Nameless Offences, 32.

29. Coke, Edward, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and other Pleas of the Crown, and Criminal Causes (London, 1644), 58–59Google Scholar.

30. See Chitty, Joseph, Commentaries on the Laws of England by the late Sir W. Blackstone. A New Edition with Practical Notes. Vol. IV (London, 1826), 212–13Google Scholar (n.8); and Cocks, Nameless Offences, 32.

31. Cocks, Nameless Offences, 17.

32. Hughes, The Fatal Shore, 264.

33. See “1796, Francis Wilkinson,” in Unfit for Publication, http://www.unfitforpublication.org.au/trials/1700s/3-1796-francis-wilkinson (accessed January 7, 2020).

34. See “1796, George Hyson,” in Unfit for Publication, http://www.unfitforpublication.org.au/trials/1700s/2-1796-george-hyson (accessed January 7, 2020).

35. See, e.g., R v. Jellyman (1839) 173 E.R. 637, in which a man was indicted for having committed “an unnatural offence with his wife,” who in turn testified that Mr. Jellyman had penetrated her anally, though not “so much as he did six years ago.” Justice Peterson noted that he had had the misfortune to try other buggery cases involving wives on previous occasions (i.e., Jellyman's was apparently not the first case to raise this issue). In His Honor's view, a woman who consented to sodomy was an accomplice and therefore her evidence “would require confirmation.” Accordingly, he directed the jury that, “[i]f you either disbelieve the evidence, or believe the prosecutrix did not resist, you ought to acquit; it was her duty to have resisted such an attempt to the utmost.” The jury found Mr. Jellyman not guilty, although on which ground is unclear. What this case shows, aside from the possibility of convicting a man for sodomy based on anal intercourse with his wife (but in practice only if she resisted), is how buggery law also functioned as a de facto rape clause for married women, at least if anal penetration was involved. Although women were legally presumed to consent to sexual activity with their husbands, Jellyman indicates that this presumption did not extend to anal sex. I thank Kate Gleeson for pointing this out to me.

36. Although it seems that a woman could be found guilty of buggery if she engaged in any sexual contact with an animal. See Coke, The Third Part of the Institutes, 58–59.

37. Woods, G.D., A History of Criminal Law in New South Wales. The Colonial Period. 1788-1900 (Sydney: Federation Press, 2002), 121Google Scholar.

38. Subsequent references to cases archived on the Unfit for Publication Web site simply refer to the name of person(s) charged, followed by the year. All cases can be accessed via the “Trials” section of the Web site. See Unfit for Publication, http://www.unfitforpublication.org.au/ (accessed January 30, 2020).

39. De Waal includes one case preceding English settlement, involving two Dutch sailors. See Adriaen Spoor and Pieter Engels (1727).

40. “Introduction. 1st edition. 2007,” in Unfit for Publication, http://www.unfitforpublication.org.au/preliminaries/introduction/1st-edition-2007 (accessed January 7, 2020).

41. Kercher, Bruce and Salter, Brent, The Kercher Reports: Decisions of the New South Wales Superior Courts, 1788 to 1827 (Sydney: Francis Forbes Society for Australian Legal History, 2009)Google Scholar; “Legge's Supreme Court Cases (NSW),” in AustLII, http://www.austlii.edu.au/cgi-bin/viewdb/au/cases/nsw/NSWLeggeSC/ (accessed January 7, 2020).

42. R v. Wilson (1814) NSWSupC 1 (March 28, 1814).

43. Although 1837 would have made a somewhat neater cutoff point in the sense of encompassing a 40-year period, I selected 1838 in order to capture a full decade's worth of data after the passage of the 1828 Act, which only came into force in NSW on July 25, 1828. Somewhat fortunately, I found no charges beyond May in 1838, meaning that even if a mid-1838 cutoff date were adopted, the results would not be any different. In addition, including 1838 in the broader analysis enables proper consideration of the evidence presented to the Select Committee on Transportation.

44. For example, a case from 1812 concerned allegations that Richard Bayly, Thomas Brown, and Michael Simpson attempted to commit “an unnatural crime one with the other, & with brutal, grossly indecent conduct in violation of good morals & to the disgrace of Society.” I have treated this case as involving three charges. See also the case concerning William Thomas Williams (1833), in which two attempted sodomy charges were brought in respect of attempts made on two different men. Similarly, where a capital charge failed at trial and the accused was subsequently charged with the lesser offense, I have treated the matter as involving two charges. See, for example, James Cullen and George Dutton (1834).

45. This is a recognized method for placing raw numbers of charges into context. See Cocks, Nameless Offences, 23; and Sturma, Michael, Vice in a Vicious Society: Crime and Convicts in Mid-Nineteenth Century New South Wales (St. Lucia: University of Queensland Press, 1983), 65Google Scholar.

46. To calculate average annual figures, I determined the number of charges per 100,000 persons for each year based on the actual number of charges for that year, and the population in the colony in that same year. I then determined the average of these combined figures. This method yields a more accurate result than simply determining the average number of charges for an entire period, the average population for the same period, and converting those figures into an average per 100,000 persons.

47. See William Lee (1835). The case involved the anal rape of a 10-year-old girl. The accused was found not guilty.

48. Males under the age of 14 were not considered capable of committing rape: Chitty, Commentaries, 212. They were also not treated as liable to the charge of aiding and abetting sodomy (that is, of willingly taking on a receptive role): J.F. Archbold, A Summary of the Law Relative to Pleading and Evidence in Criminal Cases; With Precedents of Indictments, &c. and the Evidence Necessary to Support Them (London, 1822), 262. See also Williams, “Victims,” 247.

49. A measure of inference was occasionally necessary. In view of the general tendency of newspapers and courts throughout the period to specifically note when a child was involved (and the age of said child), I have classified records that include more than the bare mention of a charge or conviction, and which do not refer to a child victim, as involving males 14 years of age and older.

50. I make no claim about the nature of consent in bestiality cases. For a discussion of this issue see Peter Singer, “Heavy Petting,” Nerve (2001), https://www.utilitarian.net/singer/by/2001----.htm (accessed January 7, 2020); and Rudy, Kathy, “LGBTQ…Z?” Hypatia 27 (2012): 601–15CrossRefGoogle Scholar.

51. See Langbein, John, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003), 209–11Google Scholar. For an example of this principle in action see the case of Esau Cheeseman (1830).

52. The reason is simple: I found only one case that mentioned Aboriginality: R v. Wilson (1814) NSWSupC 1. This may be part of a general discursive erasure, but in light of the general infrequency with which Indigenous people were brought before colonial courts in the early decades of colonization, it seems more likely that buggery charges were simply not brought against Indigenous men. See Salter, Brent, “‘For Want of Evidence’: Initial Impressions of Indigenous Exchanges with the First Colonial Superior Courts of Australia,” University of Tasmania Law Review 27 (2008): 145–60Google Scholar.

53. See note 13.

54. See further Swanton, Police of Sydney.

55. An 1807 case involving an unnamed man is ambiguous. It refers only to an “unnatural attempt,” which could have referred to an attempt at sodomy or bestiality. I have not included this case in the figures for either attempted sodomy or attempted bestiality. Another case from 1809 involving John Boulton concerned “acts of indecency,” resulting in a conviction and a sentence of 1 month's imprisonment and the pillory. Again, because of the uncertainty about the nature of the offense, I have not included it in the figures referred to in the text.

56. Hobra's record is found within that concerning one Giovanni Astardo (1813), who was charged with theft.

57. To account for the fact that I split the year 1828 between two sets of data, I treated one year as running from August to the following July. That is, for example, August 1788 to July 1789 and August 1789 to July 1790. (Although this method should exclude any charges before August 1788, there were none, and, therefore, it was possible to extend the period back to the arrival of the First Fleet without affecting the results.) This was important because of the method adopted to calculate annual average figures. The population statistics that I used, obtained from Australian Bureau of Statistics (ABS), simply refer to population for each calendar year; because the population generally increased from year to year in the period in question, I erred on the side of caution and used the figure for the higher calendar year in determining rates per 100,000. For example, according to the ABS, the population in NSW in 1828 was 40,069, and in 1829 it was 40,916. So, for the year 1827–28, I used the 1828 population figure, and I used the 1829 figure for the year 1828–29. For population statistics, see ABS, “3105.0.65.001—Australian Historical Population Statistics, 2014. Population Size and Growth.” Table 1.1. Population (a)(b)(c) by sex, states, and territories, December 31 1788 onwards. http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/3105.0.65.0012014?OpenDocument (accessed January 7, 2020).

58. Compare Hughes, The Fatal Shore, 267.

59. See Alford, Katrina, Production or Reproduction? An Economic History of Women in Australia, 1788-1850 (Melbourne: Oxford University Press, 1984), 15Google Scholar, on the number of convicts as a proportion of population during the period 1788–1851.

60. See Swanton, Police of Sydney.

61. Neal, David, The Rule of Law in a Penal Colony: Law and Politics in Early New South Wales (Melbourne: Cambridge University Press, 1991), 1–6Google Scholar. Under extant English law, persons sentenced to death—as the Kables initially were—were subject to the law of attainder, meaning that they were unable to assert civil rights.

62. See further Evatt, H.V., Rum Rebellion, A Study of the Overthrow of Governor Bligh by John Macarthur and the New South Wales Corps (Sydney: Angus & Robertson, 1938)Google Scholar. This reading fits with Foveaux's apparent pragmatism on the administration of law in this period of the Colony's history. See Lord v. Scott, in which Foveaux declared: “In a Colony so peculiarly circumstanced as this is, at such an immense distance from the Mother Country, not enjoying the advantage of a Professional Lawyer to preside as Deputy Judge-Advocate in the Civil Court, and not affording the assistance of advocates, or agents regularly bred, or at all qualified to give advice in Legal Questions it is impossible to regulate the dealings between Man and Man by the strict letter of the Law, or to judge of them by any other criterion than that of sound equity and common sense.” Kercher, Bruce, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South Wales (Sydney: The Federation Press, 1996), 11Google Scholar quoting Lieutenant-Governor Foveaux in Lord v. Scott (1808) Court of Appeal. Compare the sadistic image of Foveaux presented by Hughes, The Fatal Shore, 113–19.

63. I also analyzed six reports of “gross” or “disgraceful” conduct. Although it is possible that those cases involved buggery or attempted buggery, the records preclude certainty, and the comparatively low sentences imposed on those found guilty of such offenses suggests that something less than penetration was at issue. Accordingly, those cases have not been included. See Cornelius Brown (1834), Henry Mellor (1834), Edward Lawler (1837), John Daly (1837), John Saunders (1837), William Tighe (1837). Similarly, an 1835 case brought against Nicholas Heyden appears to have involved an “unnatural attempt,” but the charge in the case was murder and no details concerning the nature of the attempt are included. Hence, that case is also not included in the sample.

64. Although a total of forty-eight cases over a 50-year period is a relatively small sample, this fact does not, in my view, detract from the historical usefulness of the records in deepening our understanding of the intersection between law and male sexuality in colonial NSW. See further Byrne, Criminal Law and Colonial Subject, 3–4.

65. Offences Act, 9 Geo. IV, c.31, s.15.

66. Ford, Lisa and Roberts, David Andrew, “Expansion, 1820–50,” in The Cambridge History of Australia, ed. Bashford, Alison and Macintyre, Stuart (Port Melbourne: Cambridge University Press, 2013)Google Scholar; and Hughes, The Fatal Shore, 425.

67. Cocks, Nameless Offences, 26.

68. Ibid., 43.

69. See Byrne, Criminal Law and Colonial Subject, 106–9.

70. I found only two cases in which constables appear to have directly witnessed the events upon which charges were brought (as opposed to giving evidence of being informed about the commission of an offense by other eyewitnesses): Robert Stock (1826), found not guilty of buggery but convicted for the attempt; and William Smith (1834), found guilty of buggery and sentenced to death, which was commuted to hard labor in chains for life at Norfolk Island. (However, the constable who witnessed Smith only attended the scene after being informed of its commission by two other civilian witnesses.) It was more common for members of the military to bring complaints against civilians, convicts, and other military men, but even then the numbers are comparatively low, with six cases over the entire period from 1788 to 1838: see David Dundas (1809) (complaint by various Privates against Captain); Daniel Gilmore (1812) (civilian witnessed by Private); Edward Bedford (1822) (Private witnessed by Corporal); Collins and Hogan (1832) (Privates witnessed by another Private); Samuel Jones (1834) (convict witnessed by Private); and Thomas McLean (1836) (complaint by Private against Private).

71. See further Karskens, Grace, “Defiance, Deference and Diligence: Three Views of Convicts in New South Wales Road Gangs,” Australian Historical Archaeology 4 (1986): 17–28Google Scholar.

72. As the cases against Jones (1834) and Cullen and Dutton (1834) show, the detailed descriptions in buggery cases were matched, and indeed sometimes based on, detailed bodily inspection of accused men. Jones was forcibly examined by Private Crain, while in the case against Cullen and Dutton, the assistant surgeon gave evidence of having “examined the private parts of Cullen” and finding “some moisture on the end of the penis.”

73. William Blackstone, whose Commentaries of the Laws of England were extremely influential in colonial NSW (see Kercher, Bruce, An Unruly Child: A History of Law in Australia [Sydney: Allen & Unwin, 1995], xiiGoogle Scholar), noted “the delicacy of our English law” with respect to this “offence of so dark a nature”, treating it “in it's [sic] very indictments, as a crime not fit to be named.” Blackstone, Commentaries, IV:215–16.

74. Foucault, History of Sexuality, 23. To be clear, I am not making any claim here about moral stance of these witnesses a propos of buggery; the descriptions are in fact notable for their almost clinical tone. I am simply highlighting the discursive disjunction between the legal and social framing of buggery and the detailed descriptions required or generated by the law of evidence.

75. The text in parentheses is as it appears in the record.

76. Leviticus 20:15–16. See also the case of James Strahan (1809), in which the owner of the bitch said to have been assaulted by Strahan “immediately hung” the animal. See further Oaks, Robert F., “‘Things Fearful to Name’: Sodomy and Buggery in Seventeenth-Century New England,” Journal of Social History 12 (1978): 268–81CrossRefGoogle Scholar.

77. The text is reproduced as it appears in the record.

78. Sydney Gazette and New South Wales Advertiser, December 8, 1828, 2.

79. The Sydney Herald, March 19, 1832, 4.

80. Foucault, History of Sexuality, 33.

81. See “Offences Against the Person,” Sydney Gazette and NSW Advertiser, July 30, 1828, 3; “Important Alterations in the Criminal Law,” Sydney Gazette and NSW Advertiser, April 11 1829, 3; “Condensation of the Criminal Code,” The Australian, October 7, 1829), 3; and “The Criminal Law,” The Sydney Herald, December 21, 1837, 2.

82. See “To the Editor of the Sydney Gazette,” Sydney Gazette and NSW Advertiser, March 12, 1829), 3. See, generally, Ford, Lisa and Roberts, David Andrew, “‘Mr Peel's Amendments’ in New South Wales: Imperial Criminal Reform in a Distant Penal Colony,” Journal of Legal History 37 (2016): 198–214, at 203–5CrossRefGoogle Scholar.

83. I am suggesting the possibility of an increase in the number of sexual acts between men, not an increase in any sort of self-identification related to sexual practices. See, generally, Foucault, History of Sexuality.

84. See Hirst, J.B., Convict Society and its Enemies: A History of Early New South Wales (Sydney: Allen & Unwin, 1983), 88, 94Google Scholar; Ford and Roberts, “Expansion, 1820–50,” 121–48, at 122.

85. Gilchrist, “Male Convict Sexuality,” 343, citing figures given in The Colonist and Van Diemen's Land Commercial and Agricultural Adviser, February 11, 1834, 2 (21,845 male convicts and 2,698 female convicts). As late as 1855, when sex ratios in the cities were almost balanced, the rate in rural NSW was still approximately four to one. See Davidson, Alastair, The Invisible State: The Formation of the Australian State 1788-1901 (Melbourne: Cambridge University Press, 1991), 50Google Scholar.

86. See Hirst, Convict Society, 55–56: “In the pastoral areas of the interior convicts were at all times away from their masters’ eyes.” But see the case of Cullen and Dutton (1834).

87. Hirst, Convict Society, 12, 68.

88. In making this suggestion I absolutely do not seek to undermine the genuine preference some or even many of these men had for sexual contact with other men, or the fact that sexual preference and opportunism may have coincided.

89. See Gilchrist, “Male Convict Sexuality,” 26, for discussion of this earlier historiographical position.

90. Frank Bongiorno has also noted this feature of buggery prosecutions in the early decades of the colony: Bongiorno, Frank, The Sex Lives of Australians (Collingwood: Black Inc., 2012), 7Google Scholar.

91. This is not to downplay the enormous emphasis placed on female sexuality, especially of convict women, and its role in social disorder: see Grimshaw, Patricia, Lake, Marilyn, McGrath, Ann, and Quartly, Marian, Creating a Nation (Ringwood: Penguin, 1996), 77Google Scholar.

92. See Ford, Lisa and Roberts, David Andrew, “New South Wales Penal Settlements and the Transformation of Secondary Punishment in the Nineteenth-Century British Empire,” Journal of Colonialism and Colonial History 15 (2014)CrossRefGoogle Scholar.

93. In 1819 the Hyde Park Barracks opened as a place to house convicts working for the government in and around Sydney. According to Hirst, “[f]or the first time in the thirty years of the colony's history, convicts were to be under constant surveillance”: Hirst, Convict Society, 41.

94. Ibid., 87; Ford, Lisa and Roberts, David Andrew, “Legal Change, Convict Activism and the Reform of Penal Relocation in Colonial New South Wales: The Port Macquarie Penal Settlement, 1822-26,” Australian Historical Studies 46 (2015): 174–90, at 175CrossRefGoogle Scholar.

95. Evans, “An Object of Real Terror,” 48.

96. Roberts, David Andrew, “‘A Sort of Inland Norfolk Island’? Isolation, Coercion and Resistance on the Wellington Valley Convict Station, 1823-26,” Journal of Australian Colonial History 2 (2000): 50–72, at 52, 57Google Scholar.

97. For figures on this expansion of private assignment see Nichol, W., “Ideology in New South Wales, 1820-50,” Push From the Bush 28 (1990): 25–41, at 32Google Scholar.

98. As Ford and Roberts have noted, “Bigge's ‘Directions for the New Settlements’ designed a system that married transportation within New South Wales with many elements of the emerging principles of the penitentiary. … These outposts would exemplify many of the elements that Bentham and others thought absent from transportation.” Ford and Roberts, “New South Wales Penal Settlements.” Some two decades prior to the publication of Bigge's Report, Jeremy Bentham had penned his comparison of the modern panoptic penitentiary with the existing system of transportation to NSW, advocating strenuously for the adoption of the former over the continuation of the latter. See Bentham, Jeremy, “Panopticon versus New South Wales: or, the Panopticon Penitentiary System, and the Penal Colonization System, Compared,” in The Works of Jeremy Bentham, published under the superintendence of his executor, John Bowring (Edinburgh: William Tait, 1838–43), IV:173Google Scholar. In this respect, the implementation of Bigge's recommendations regarding penal settlements amounted to an endorsement of Bentham's disciplinary model of penal reform, a process that would be repeated 15 years later in William Molesworth's inquiry into transportation in NSW: see Part IV of this article. On panopticism, see Foucault, Discipline and Punish, 195–228.

99. Ford and Roberts, “Expansion, 1820–50,” 122. For example, the previous practice of allowing convicts to work for wages in the afternoon was abandoned; thus, “after 35 years the last vestiges of the convicts ‘own time’ disappeared.” Hirst, Convict Society, 46.

100. In Ford and Roberts, “Expansion, 1820–50,” 123. See also Ford and Roberts, “Legal Change,” 175–76; and Roberts, “‘A Sort of Inland Norfolk Island’?” 55.

101. Grabosky, Peter, Sydney in Ferment: Crime, Dissent, and Official Reaction, 1788 to 1973 (Canberra: Australian National Univerity Press, 1977), 63Google Scholar. See also Hughes, The Fatal Shore, 428, noting a significant increase in the number of floggings between 1830 and 1835. For a more sympathetic picture of Darling, see Therry, Richard, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria, facsimile of the 1863 first edition (Sydney: Sydney University Press, 1974), 80–81Google Scholar.

102. Evans, “An Object of Real Terror,” 57–58. On the “pitiful police force” in rural NSW prior to the 1820s, see Hirst, Convict Society, 145–46.

103. Roberts, David Andrew, “The ‘illegal sentences which magistrates were daily passing’: The Backstory to Governor Richard Bourke's 1832 Punishment and Summary Jurisdiction Act in Convict New South Wales,” Journal of Legal History 38 (2017): 231–53, at 233CrossRefGoogle Scholar. According to Grabosky, “the years 1834 and 1835 were among the busiest ever for New South Wales hangmen”: Sydney in Ferment, 65. See also Evans, “An Object of Real Terror,” 58.

104. See Ford and Roberts, “New South Wales Penal Settlements”; Ford and Roberts, “Legal Change”; Roberts, “‘A Sort of Inland Norfolk Island’?”; and Evans, Raymond and Thorpe, William, “Power, Punishment and Penal Labour: Convict Workers and Moreton Bay,” Australian Historical Studies 25 (1992): 90–111CrossRefGoogle Scholar.

105. Roberts, David Andrew, “A ‘Change of Place’: Illegal Movement on the Bathurst Frontier, 1822-25,” Journal of Australian Colonial History 7 (2005): 97–122, at 99Google Scholar; and Ford and Roberts, “New South Wales Penal Settlements.”

106. Hirst, Convict Society, 46.

107. Ford and Roberts, “Expansion, 1820–50,” 125.

108. Roberts, “A ‘Change of Place,’” 98. See also Roberts, David Andrew, “Masters, Magistrates and the Management of Complaint: The 1833 Convict Revolt at Castle Forbes and the Failure of Local Governance,” Journal of Australian Colonial History 19 (2007): 57–94Google Scholar.

109. Gilchrist, “Male Convict Sexuality,” 46.

110. Grabosky, Sydney in Ferment, 59.

111. Sturma, Vice, 86.

112. McKenzie, Kirsten, “Discourses of Scandal: Bourgeois Respectability and the End of Slavery and Transportation at the Cape and New South Wales, 1830-1850,” Journal of Colonialism and Colonial History 4 (2003)CrossRefGoogle Scholar.

113. Gilchrist, “Male Convict Sexuality,” 336–40.

114. Ibid., 340.

115. Proclamation by His Excellency Lachlan Macquarie, Esquire (February 24, 1810) (emphasis in original).

116. Grimshaw, Lake, McGrath, and Quartly, Creating a Nation, 57.

117. In a related manner, evidence of heterosexual inclinations could be used to cast doubt on the veracity of accusations of unnatural crimes. See R v. Wilson (1814) NSWSupC 1.

118. Grabosky, Sydney in Ferment, 53.

119. See New South Wales, Legislative Council, Committee on Immigration, Final Report of the Committee on Immigration (Sydney, 1835), 4, 5, 7, 12.

120. Concern over sexual contact between young and adult male prisoners on ships bound for NSW also increased in the 1830s: see Gilchrist, Catie, “The ‘Crime’ of Precocious Sexuality: Young Male Convicts and the Politics of Separation,” Journal of Australian Colonial History 8 (2006): 43–66Google Scholar.

121. Assisted emigration took off in the 1840s with the establishment of various private emigration schemes, most notably those run by Caroline Chisholm, who arrived from India with her husband in the late 1830s. See Summers, Anne, Damned Whores and God's Police. The Colonisation of Women in Australia (Sydney: NewSouth Publishing, 2016 [originally published in 1975]), 438–40Google Scholar; and Therry, Reminiscences, 419–26.

122. Bongiorno, Sex Lives, 16

123. Gilchrist, “Male Convict Sexuality,” 26–27.

124. Bongiorno, Sex Lives, 20. On the wholesale adoption of bourgeois familial ideals in NSW in the 1840s, see Summers, Damned Whores, 431–32.

125. McKenzie, Kirsten, Scandal in the Colonies: Sydney and Cape Town, 1820-1850 (Melbourne: Melbourne University Press, 2004), 5–6Google Scholar. See also McKenzie, Kirsten, “Of Convicts and Capitalists: Honour and Colonial Commerce in 1830s Cape Town and Sydney,” Australian Historical Studies 33 (2002): 199–222CrossRefGoogle Scholar.

126. McKenzie, “Discourses of Scandal” (referring specifically to concern over domestic servants within the family).

127. Ibid.

128. See Foucault, History of Sexuality, 18.

129. The Legislative Council was first created in 1823 but it was a toothless entity beholden to the governor. The council was numerically, but not substantively, strengthened in 1828. Cramp, Karl R., The State and Federal Constitutions of Australia (Sydney: Angus & Robertson, 1913), 11–12, 18Google Scholar.

130. The council consisted of thirty-six members, twenty-four of whom were to be elected by the enfranchised part of the population, whereas the remaining twelve members were to be selected by the governor. The governor could still withhold his assent from bills, but he could no longer guarantee the passage of his own legislative proposals: Hartwell, R.M., “The Pastoral Ascendency, 1820-50” in Australia: A Social and Political History, ed. Greenwood, G. (Sydney: Angus & Robertson, 1955), 46–97, at 67Google Scholar. It is of note, however, that all laws repugnant to British law remained invalid.

131. See Wentworth, W.C., “Responsible Government in Australia: State Constitutions and Federal Power,” The Australian Quarterly 28:2 (1956): 7–19Google Scholar; Irving, T.H., “The Idea of Responsible Government in New South Wales before 1856,” Australian Historical Studies 11 (1964): 192–205Google Scholar.

132. 18 & 19 Vict., c.54.

133. Hartwell, “Pastoral Ascendency,” 66.

134. For example, the number of colonial officials who were dismissed from their positions for personal immorality—usually cohabiting with a woman—increased noticeably in the 1820s and 1830s: see Bongiorno, Sex Lives, 17–19.

135. Ford and Roberts, “New South Wales Penal Settlements.”

136. Kidston, R.R., “The Office of Crown Prosecutor (More Particularly in New South Wales),” Australian Law Journal 32 (1958): 148–54, at 149Google Scholar; and Sturma, Vice, 79–80. Until 1823, the deputy judge-advocate had the combined duties of a prosecutor and a judge. In 1823, following the passage of the New South Wales Act and the creation of the Supreme Court, the office of deputy judge-advocate was abolished, and his prosecutorial duties were assigned to the attorney general. See Woods, History of Criminal Law, 49. From that time on, offenses cognizable in the Supreme Court were to be “prosecuted by information in the name of His Majesty's Attorney-General or other officer appointed for such purpose by the Governor”: Kidston, “Crown Prosecutor,” 149, quoting 9 Geo. IV., c.83, s.5. Thus, “all indictments here are strictly ex officio in the original sense of that term.” Ibid., 150. This feature of criminal procedure in NSW also suggests that, unlike in England, statutory provision for costs in cases of private prosecution probably did not contribute much to the rise in complaints or charges from 1828 onwards. See Cocks, Nameless Offences, 44; and Sturma, Vice, 68, 79–80.

137. See John Unwin (1830). Justice Dowling's notebook includes the following statement: “The 9 G 4. C. 31 s.18 does not make any alteration in the nature of the crime of Buggery. Therefore whereas prisoner penetrated the body of a Bitch dog but was disturbed before he sated his lust Held that he could not be capitally convicted.”

138. See also Thomas Maher (1830).

139. R v. Cozins (1834) 6 Car. & P. 350.

140. The Sydney Monitor stated that Dalton was “remanded on a charge of assault”; presumably, however, it meant a charge of attempt.

141. Dinesh Wadiwel, “The Sovereign Whip: Flogging, Biopolitics and the Frictional Community,” Journal of Australian Studies 27 (2003): 117–25, at 121; Hughes, The Fatal Shore, 428.

142. Pillory (Final) Abolition Act, 1 Vict., c.23 (1837).

143. Offences Act, 9 Geo. IV, c.31, s.15.

144. See Castle, Tim, “Watching Them Hang: Capital Punishment and Public Support in Colonial New South Wales, 1826-1836,” History Australia 5 (2008): 43.1–43.15CrossRefGoogle Scholar.

145. Therry, Reminiscences, 21.

146. See Michael Connolly (1832); Samuel Jones (1834); William Smith (1834); William Hazleton (1836); James Sherwood (1836); Richard Norris (1838).

147. An Act to Regulate the Execution of Criminals, 17 Vict., c.40 (1855). See Woods, History of Criminal Law, 162–63.

148. Foucault, Discipline and Punish, 130–31. See further Tadros, Victor, “Between Governance and Discipline: The Law and Michel Foucault,” Oxford Journal of Legal Studies 18 (1998): 75–103, at 97–98CrossRefGoogle Scholar.

149. Foucault, Discipline and Punish, 130–31.

150. Hughes, The Fatal Shore, 498–99.

151. See note 2.

152. Maconochie, Alexander, Report on the State of Prison Discipline in Van Diemen's Land, &c (London: W. Clowes & Sons, 1838), 7 (emphasis in original)Google Scholar.

153. Ibid., 9 (emphasis in original).

154. Ibid., 3.

155. Ibid., 10.

156. Hughes, The Fatal Shore, 501.

157. Ritchie, “Towards Ending an Unclean Thing,” 159.

158. Gilchrist, Catie, “‘This Relic of the Cities of the Plain’: Penal Flogging, Convict Morality and the Colonial Imagination,” Journal of Australian Colonial History 9 (2007): 1–28, at 21Google Scholar.

159. Order-in-Council ending transportation to New South Wales, May 22, 1840.

160. Ritchie, “Towards Ending an Unclean Thing,” 150 (citations omitted).

161. Like Bigge, Molesworth was also influenced by Jeremy Bentham's work on the merits of penitentiaries over transportation: Ritchie, “Towards Ending an Unclean Thing,” 153. See further Bentham, “Panopticon versus New South Wales.”

162. 1838 Transportation Report, xxvii.

163. 1837 Transportation Report, 66 (1031).

164. Ibid., 67 (1061). See also Hughes, The Fatal Shore, 267.

165. 1837 Transportation Report, 146 (2262).

166. 1838 Transportation Report, 24 (237)–26 (263).

167. See Therry, Reminiscences, 19–21.

168. 1838 Transportation Report, App. (E.), No. 45, Enclosure (D.), 274.