New South Wales Penal Settlements and the Transformation of Secondary Punishment in the Nineteenth-Century British Empire
This paper uses a comprehensive survey of sentencing patterns and penal regulations to demonstrate the collapse of internal transportation in the colony of New South Wales into a system of extra-penal labour. It argues that a combination of judicial exigencies, local regulations, and creative misinterpretations of metropolitan penal reform turned the penal outpost established at Newcastle in 1804 into an experiment of interest to local and metropolitan reformers – an experiment that was rolled out throughout New South Wales, its peripheries, and in selected outposts of the British Empire after 1820.
In 1795 “Scotch Martyrs” Thomas Muir, Thomas Fyshe Palmer and William Skirving mounted a peculiar attack on the system of convict transportation. These elite political dissidents, transported to New South Wales for sedition, argued that their sentences of transportation amounted merely to temporary exile.1 They claimed that they could not be forced to work in New South Wales and that they were free to leave the colony, so long as they did not return to Great Britain during the fourteen-year term of their sentences. According to Governor Hunter, they had “been particularly cautious of not giving the public any claim upon their labour.” They paid their own passage, avoided being “assigned over [by their ship’s captain] to the Governor,” and fed themselves without resort to public stores.2 Two legal opinions argued that some combination of statute and the King’s prerogative allowed all convicts sentenced to transportation to be kept in New South Wales for the duration of their sentence. However, they agreed that the Martyrs could not be forced to work if their labour had not been explicitly “assigned” or “adjudged” by the sentencing court.3 The vast majority of convicts in the colony laboured, not because of their sentences of transportation, but because they had been transported “at the public expence” [sic] under the Transportation Act of 1784 (25 Geo. III, c. 46).4 The independent gentlemen Martyrs were left to their own devices in the colony.
The success of the legal arguments made by the Scotch Martyrs demonstrates the continued currency of the early modern assumption that transportation was simply a species of banishment. Convict labour, in this rendering, merely paid for transport, board and keep. However, in metropolitan and colonial practice, the legal distinction between transportation and forced labour had been eroding for over eighty years. Since the Transportation Act of 1717 (4 Geo. I, c. 11), the sale of convict labour had helped fund transportation to North America. The Act empowered the Crown to assign convict labour to contractors who sold it on for profit to masters in the colonies of Virginia, Maryland and Pennsylvania, so that sentences of transportation articulated into a form of indentured servitude.5 The distinction between exile and labour eroded even more rapidly in the penal/settler colony of New South Wales. As Alan Atkinson and Bruce Kercher showed some years ago, this transition was built into the very organisation of transportation to the colony. Unlike the American scheme, the cost of shipping convicts to New South Wales was paid entirely by the British government. Convict labour was assigned to ships’ captains as before, but they were instructed to assign it on to the governor directly, on the assumption that convicts would labour in the public service under his authority during the term of their sentences. In this respect, the Scotch Martyrs’ arguments in 1795 were already quite outmoded.
Another more subtle distinction lingered in metropolitan law and practice in the years between the cessation of transportation to North America and its recommencement to New South Wales in 1788. In those years, when there was nowhere to send exiles, labour became even more integral to metropolitan sentences of transportation, both as an alternative to exile, and as a component of it. Legislation in the 1770s allowed individuals convicted of transportable offences to instead be imprisoned in hulks “or any proper place of confinement” and to be forced to “hard labour” for periods of three to ten years. “Hard Labour” had been a sentencing option available to courts of record since 5 Ann c. 6 (1706), but was expanded and more frequently deployed in the 1770s as a secondary punishment, ordered “in place of” or “instead of” transportation.6 The Removal of Prisoners Act of 1784 (23 Geo III, c. 12) also allowed healthy male convicts sentenced to transportation, but stranded in Britain by the Revolutionary War, to be kept at “hard labour” while awaiting removal.7 While this Act reflected a growing expectation that convicts should “work for their subsistence,” it also educed concerns about the severity and legality of eroding the distinction between sentences of hard labour and transportation. It was hurriedly replaced by the Transportation Act of 1784, which omitted the term “hard” from the definition of the labour which transportees would be required to undertake in the Hulks.8 Thus, labour as a condition of transportation, and “hard labour” as a secondary punishment, remained nominally distinct.
In this article, we argue that in New South Wales hard labour and transportation were conflated earlier and more decisively than they were in the metropole, transforming transportation into a species of extra-penal labour and confinement rather than a form of exile sponsored by convict work. This conflation was particularly evident in the emerging system of internal relocation to penal settlements, established on the peripheries of New South Wales as sites of exile and exemplary punishment. While some historians have offered nuanced analyses of the life and management of particular penal stations,9 in Australian historiography these ultra-coercive spheres of work and discipline have been largely marginalised as an irregular and unrepresentative component of the convict experience.10 In one notable exception, Ray Evans and Bill Thorpe identified penal stations as embodying a distinct species of convict servitude, which they termed “penal labour,” where convict work was explicitly punitive and distinct from what was in New South Wales usually described as “ordinary labour.”11 However, the emergence of this novel system in the period of Governor Lachlan Macquarie (1810–21), and its relationship to local and imperial penal reform, have yet to be explored.
We examine how the terminology and patterns of colonial sentencing, changing management protocols and contemporary debates about the nature of the convict experience in the colony, fostered an evolving system of punitive relocation—relocation that was increasingly called “transportation” but looked much more like a peculiar colonial version of imprisonment. While John Gascoigne demonstrated that New South Wales fostered progressive experiments in penal reform from the 1820s, we show that crucial innovations were in fact emerging in the colony before the pivotal Royal Commission of Inquiry conducted by John Thomas Bigge between 1819 and 1821.12 These innovations were not marginal and irregular; they were integral to convict discipline in the colony by 1819 and prefigured important imperial experiments in transportation from the 1820s. The rapid collapse of transportation, confinement and hard labour marked New South Wales as a peculiar jurisdiction, a site of experimentation, despite the fact that the colony was viewed by contemporary penal reformers and by generations of historians as a retrograde enterprise, the very antithesis of the modern penitentiary.13
Sentencing Patterns and the Transformation of Transportation
Despite the arguments made by the Scotch Martyrs, labour was integral to the condition of most convicts transported to New South Wales. From at least the mid-1790s, the hours of convict labour were officially regulated.14 In response to concerns about the progress of public works, these regulations were occasionally reiterated in a manner that firmly claimed convict labour as “the property of the Crown.”15 Meanwhile, despite early instructions that convicts should labour only for government, local necessity saw many convicts assigned to private masters, while others were allowed to live independently and work for wages or subsistence. Thus, from the outset, there emerged gradations in the conditions and character of convict servitude in New South Wales, defined by the nature of the labour each was required to perform. By the early 1800s, for example, there was a recognised distinction between the lot and the behaviour of convicts who were “off the store” – that is, “allotted to settlers and other cultivators” or permitted to maintain themselves – and “convicts at public labour,” whose service was “exacted from them by the hand of authority” and who therefore tended to be more refractory and less industrious.16
Graded labour was even more central to punishment meted out within the colony. In 1802, Governor Hunter endorsed a policy of sentencing refractory convicts who were “upon their own hands” (that is, working independently) to “a certain time to labour for the public, according to the degree of the crime committed.”17 Convicts already in public employ could be punished by being set to even more gruelling forms of labour—“repairing roads, loading and unloading boats,” for example.18 Alternatively, ordering convicts to work in chains rendered regular labour more punitive. From at least the late 1790s, the sentencing repertoire of the Court of Criminal Jurisdiction included orders “to work in the gaol gang,” “hard labour in Government employ” or “hard labour at Toongabbie,” for periods of six to twelve months for vagrancy, robbery, breaking and entering, and murdering an Aborigine. These were akin to the sentences of “hard labour” increasingly favoured by English courts, although, in New South Wales in the 1790s, “hard” or punitive labour issued to convicts already serving British sentences of transportation often supplemented horrendous floggings of up to five hundred lashes.19
Punishing convicts with more punitive labour was predated by punishments involving relocation—though, at first, relocation was couched in the early modern language of banishment rather than transportation. Using the Crown prerogative of mercy and his power to remit locally imposed sentences, the founding governor, Arthur Phillip, commuted death sentences ordered on convicts by the Court in late February 1788, within weeks of the arrival of the “First Fleet”. He directed that the spared prisoners be simply “exiled from the settlement,” perhaps “landed” on a remote corner of the continent where they could serve the public by “forming connexions with the natives.” Later records suggest that these convicts were in fact “transported” to the new satellite settlement on Norfolk Island.20 In 1789 and 1792, Phillip also commuted death sentences ordered on two free colonists on the condition of their “residing, during the term of [their] natural life, at Norfolk Island.”21
The relationship between relocation and labour in early court sentencing was inconsistent. Judge Advocate David Collins described sentences entailing relocation as “transportation” or “hard labour at Norfolk Island,” or neither.22 His successor, Richard Atkins, sentenced convicts to “transportation,” but also to “transportation… in irons”—the latter appearing to cobble together sentences of transportation and hard labour in a manner that diverged significantly from the practice of English courts.23 By the late 1790s, under Judge Advocate Richard Dore, the criminal court was regularly sentencing free settlers, emancipated convicts and convicts still under sentence to “transportation” to Norfolk Island for periods of three, seven and fourteen years. Echoing section 8 of the 1784 Transportation Act, Dore sometimes stipulated that an individual “work for government in the common gaol gang until the time of his embarkation,” but he did not qualify the nature of employment during the term of relocation.24 What a sentence served on Norfolk Island entailed in this period is unclear but it was unlikely to have amounted to especially punitive labour.
The system of internally relocating convicts was accelerated, and its character changed, by the establishment of a settlement at Newcastle in 1804. Governor Philip Gidley King’s design was to open a new site of government enterprise for the extraction of primary resources (coal, salt, cedar, lime) and to people it with “the most turbulent and refractory characters.”25 The first convicts to arrive were the “principal Irish promoters and actors” implicated in the uprising at Castle Hill in March 1804, some sent by a General Court Martial and others sent by the governor without trial.26 They were followed, within weeks, by a group of Englishmen who had misbehaved en route to New South Wales but were relocated arbitrarily to Newcastle chiefly to dilute the settlement’s Irish contingent.27 Thus began a long history of ill-described and sometimes authoritarian relocations to Newcastle that reflected the original, imprecise conception of the settlement as a sphere of business and banishment.28
At the same time, sentences passed down by the Criminal Court and the magistrates illustrated Newcastle’s emerging function as a site of formal secondary punishment. Court sentences used the term “hard labour at Newcastle” regularly from May 1804.29 Sentences of transportation to Newcastle appear to have begun around 1808 and increased after Norfolk Island was abandoned in the early 1810s. Between 1812 and 1815, at least fifty-five men and women (free and bond) arrived at Newcastle via Ellis Bent’s Criminal Court, mostly for theft and burglary. A dozen of these were sentences of “Transportation for Life… and to be kept at hard labour,” passed by Governor Macquarie in commutation of capital sentences—a formula used in all commutations thereafter.30 Convicts sent to Newcastle by the court for shorter periods of one to five years uniformly received sentences of “hard labour.” Only the severest sentences used the terminology of transportation—for either seven or fourteen years (Bent’s Court did not issue life sentences), “to such part of the Territory as His Excellency shall appoint” (language drawn directly from metropolitan transportation legislation). The distinction between “transportation” and “hard labour” to Newcastle was apparently deliberate, although it was nonetheless distorted by the occasional awarding of longer terms of seven and fourteen years “hard labour” (mostly, though not exclusively, to non-convicts), sometimes specifying that a part of that sentence be spent “in irons in the gaol gang.”31 This slippage suggests that, while transportation and hard labour remained nominally distinct as secondary punishments, the two were increasingly confused, perhaps synonymous.
From 1816, Bent’s successors (first and briefly, the controversial Frederick Garling, then the more qualified John Wylde), brought more regularity to the court’s sentences, at the same time as the number of convictions began to increase markedly; in 1817, for example, fifty-nine convicts went to Newcastle via the Court, more than had arrived there during 1812–15. The range of sentences was expanded to include “Transportation to Newcastle for life” (as opposed to life in commutation). Moreover, the term “transportation” was applied to all court sentences to Newcastle, even those consisting of only one year, and these no longer specified “hard labour” as a supplementary condition. Transportation was thus established as a sentence of distinct severity: as opposed to shorter sentences of “hard labour” or imprisonment, which were instead ordered to be undertaken in gaol gangs at Parramatta, Liverpool or the Parramatta Factory.32 This trend continued during the early 1820s, when transportation to penal stations emerged as one of the most important pillars of discipline doled out by the Court, accounting for more than half of its verdicts between 1820 and 1823. In those years, some 450 convicts were directed to penal stations at Newcastle, Port Macquarie (established in 1821) or Macquarie Harbour (in Van Diemen’s Land from 1822).33 This change did not amount to a colonial divestment in hard labour; as explained below, it signalled the decisive collapse of transportation into extra-punitive labour within the colony.
Emphasis on hard labour in penal settlements is even more marked in magisterial sentences to Newcastle. From 1804, some Government Orders stipulated “hard labour at the Coal Mines” as a punishment for specific outlawed activities, applicable to both free and bond, and punishable by benches of magistrates. Such crimes included “enticing or harbouring any Deserters or Apprentices [from Merchant ships]”34 and, later, possessing, distilling and trafficking spirits35 or falsely proclaiming oneself to be a skilled mechanic.36 However, in practice, magistrates soon extended this punishment option to a broader range of convict misdemeanours and summary offences that, by local convention, lay within their jurisdiction.37 From 1806, the “Judge Advocate’s Bench of Magistrates” was occasionally sentencing convicts to “hard labour at Newcastle,” as well as to hard labour at unspecified locations and in gaol gangs for petty theft, abusive language and absconding.38 From 1812 to 1820, around 1,200 convicts arrived at Newcastle under sentences attributed to magistrates, four times as many as arrived via the court.39
Although surviving bench records for the 1810s are rare, magistrates appear to have avoided the terminology of transportation. Perhaps they understood that only courts of record were entitled to transport, a conclusion weakened by the fact that the capacity of magistrates to issue sentences of hard labour was also dubious. Magisterial sentences to Newcastle were overwhelmingly for terms of one to three years. However labelled, these relocations were commensurate with the older and broader convention of sentencing convicts to labour in a “gaol gang,” or whatever might be “the most troublesome work the government may have.” As former magistrate Alexander Riley explained to a House of Commons Select Committee in 1819, Newcastle was considered a more severe option, appropriate for the most “troublesome characters” and particularly advantageous because it broke “the connection they may have formed with other convicts of improper characters.”40 Thus, as a form of punishment, a magisterial sentence to Newcastle seemed to combine the penalties of hard labour and banishment.
Convicts were thus “convicted,” “sent” and “removed” to Newcastle under what was variously described (in official correspondence) as “banishment,” “transportation,” a “local sentence,” a “fine,” a “colonial sentence” or “an additional colonial sentence.”41 That these terms were used so loosely demonstrates two important trends. First, as Bruce Kercher has noted, informality and confusion in legal practice was endemic in the early colony—the result both of poorly trained magistrates and judge advocates and of simple necessity in a colony with an unfree, convict majority.42 Second, we think, trained and untrained judicial officers in the colony agreed that hard labour and transportation were fundamental to penal discipline in the colony. By the late 1810s, the Criminal Court defined all sentences to Newcastle as “transportation” and assumed that transportation to Newcastle involved extra or punitive labour. At the same time, magisterial sentences to hard labour at Newcastle, however described by the bench, were increasingly understood by government and commentators to be a species of transportation. In 1817, for example, the Parramatta Bench ordered convicts “be Transported to Newcastle to Hard Labour”43 and Commissioner Bigge himself characterised all sentences to Newcastle as “transportation” in his 1822 report.44 By the 1820s, internal transportation was shorthand for some species of confinement under a remote and specially coercive labour regime—the result of an experimental fusion that attracted the interest of commentators and policy makers.
Newcastle and the Expansion of Penal Discipline in New South Wales
The collapsing distinction between transportation and hard labour in New South Wales penal settlements can be tracked most clearly in the changing administration of Newcastle from 1804 to 1820. Newcastle was founded simultaneously as a place of banishment and business but it was not always well managed. Initially, discipline at Newcastle was poor, smuggling and corruption were rife, and the settlement failed to harvest adequate resources for the growing colony. While some convicts at the settlement worked in harsh conditions and all suffered the privations of isolation, some commentators thought that, on the whole, convicts were “treated there as they were previously in Sydney.”45
Things changed at the settlement during the mid-1810s, around the time that the lexicon of “transportation” became firmly entrenched in criminal court sentences and public discourse. A major reconfiguration of the settlement began in 1815 when convicts at Newcastle were denied the privilege of undertaking private employment in their own time.46 Then, from 1816, discipline and production at the settlement were transformed by a raft of Government and General Orders, issued by local commandants. Many reforms focused on efficient commodity extraction, others addressed the related concerns of penal labour discipline. Longer work hours were ordered for convicts who mustered late, and those found drunk, idle or leaving work before the bell were flogged. Convicts who reported sick were closely monitored, and the sale, purchase and exchange of government slops were prohibited. Convicts and soldiers were forbidden from interacting and constables were given authority to question and detain residents.47 The commandants, invested with extensive jurisdiction to act summarily as magistrates sitting alone, enforced the local “system” with “considerable severity of punishment” including “flogging inflicted with more severity than at other settlements,”48 working refractory convicts in irons and gaol gangs and withdrawing their privileges. Punishment was tempered by a system of rewards and incentives. An imposing church was built and convicts attended it weekly.49 A school for convicts’ children was established and a string of convict-managed farms in the rich agricultural land in the Hunter Valley were permitted “as an encouragement to industry and reform.”50 Increasingly, release from Newcastle, irrespective of the term of sentence, was made contingent on good behaviour and the favourable recommendation of the commandant.
In short, new rules defined Newcastle more consistently as a site of peculiarly harsh labour distinguished from private assignment, ordinary public labour or incarceration in Sydney. It became, as one commentator put it, “extra-penal” or “ultra-penal.”51 This is not to say that Bentham would have approved of its management. Newcastle was not a penitentiary of the panopticon mould. Its punishment regime—emphasising flogging rather than solitary reflection—was decidedly early modern and military in nature. Its extractive economy mirrored the labour regimes on the hulks, rather than the more gratuitous labour regimes emerging in metropolitan prisons. Moreover, as a place of confinement and control, it was less successful than any walled penitentiary. The fact that convicts lived in their own houses and grew some of their provisions marked a huge difference between transportation to Newcastle and incarceration in model British prisons. This difference was enhanced by the fact that, by 1820, free settlement was threatening to encircle Newcastle, lessening the capacity of the station to confine convicts without walls.52 Indeed, the frequency with which convicts absconded from the settlement seriously undermined its operation and contributed some of the most pressing law and order problems facing the colony. Ironically, then, as local authorities and imperial commentators became more invested in expanding the Newcastle experiment, Newcastle became increasingly ill suited to their ends.
As the Royal Commission was sent to New South Wales from 1819 to 1821 to find a way to reassert the “Salutary Terror” of transportation and to remake New South Wales into a viable sphere of reform, Newcastle served as an attractive solution. In his instructions to Commissioner Bigge, Lord Bathurst flagged the possibility of establishing “distinct establishments” at remote locations to act “as Receptacles… exclusively for the Reception and proper Employment” of all convicts transported to the colony. What was required henceforth was “a System of General Discipline, Constant Work, and Vigilant Superintendence,” which were best achieved by placing convicts in a state “more or less of personal confinement,” completely separated “from the Mass of the Population” and under a regime that “would afford constant means of Employment,” specifically employment “of a severer Description.”53 In Bathurst’s mind, all transportees should be sent to Newcastle-like penal stations on the fringes of the colony.
An “autocrat and functionary” fresh from a judgeship in the expanding and contentious slave economy of Trinidad, Commissioner Bigge arrived in New South Wales ready to be dissatisfied and committed both to private convict labour and to strict convict discipline.54 Motivated by his observations of Newcastle (and reflecting defects in its administration and function), Bigge proposed that the network of “New Settlements” desired by Bathurst should house convicts relocated for “bad conduct” who required “a more severe and rigid system of discipline” than could be provided in the “settled districts of the colony.” These settlements were to be strictly separated. In place of walls, commandants would take care “to withdraw from the view or reach of the convicts” all capacity to subsist in the woods (including “driving off” native fauna). Following the Newcastle model, the “New Settlements” were to be self-sustaining, with some attention to industries that might defray maintenance expenses. However, unlike Newcastle, they were to be geared primarily towards punishing and provisioning convicts, irrespective of the commercial potential of their work. Commerce with, and private enterprise within, these places would be strictly prohibited. Convicts were to wear uniforms (as they did in metropolitan penitentiaries) and to build their own solid, unadorned houses in precise and orderly arrangements, segregated “with reference to… [their] character,” and under the surveillance of a commandant residing “upon any elevated situation that will command a view of the settlement.”55
Convicts would work from daybreak until 8:00 p.m. five days a week, with no leisure time. The illiterate could undertake schooling and Sunday would be devoted to attending service. Liquor and “any species of luxury” would be forbidden and bibles, prayer books and religious tracts would be distributed via a settlement chaplain. Convict labour would be allocated according to merit: the most onerous labour to the worst offenders. Though supervisors could not strike convicts under their charge, commandants, acting as magistrates, would have power to impose fifty lashes when sitting alone and a hundred lashes if joined by one or more of “the military or civil officers of the settlement.” For “the correction of ordinary offences” such as neglect of work, insolence to overseers, petty thefts and swearing, non-violent punishments would be preferred, including “work in the heavy-work gang,” work in chains, grinding maize on a tread-wheel, reductions in rations and solitary confinement.56
Thus, using Newcastle as a model, 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. This was to be a closed, controlled environment, characterised by surveillance, classification and segregation of prisoners; the combination of labour, punishments and inducements; stimuli for rehabilitation; and mechanisms for reintegration including education and religious instruction. These outposts would exemplify many of the elements that Bentham and others thought absent from transportation.57
Bigge’s model found a receptive audience in London, among advocates of terror and liberal reformers alike. Lord Bathurst posited reoccupied Norfolk Island as an “experiment” to be built “upon the principle of a great Hulk or Penitentiary” and wished it to be “a secondary punishment, which will not admit of Mitigation as has been the Case where the Convict has been placed in the midst of a thriving and prosperous Colony.”58 In conversations about reopening Norfolk Island as a penal settlement in 1823, Under Secretary Robert Wilmot Horton envisioned it as “a penitentiary on a great scale,” where “punishment and reformation” were combined.”59 Terror and reform both marked a decisive turn away from the liberalisation of ordinary convict governance in New South Wales.60
Bigge’s suggestions, refracted through the Colonial Office, were adopted and reinterpreted in the colony. Some thought penal stations should be sites of brutal punishment: Governor Brisbane suggested that Norfolk Island be placed under a permanent state of martial law to “save the complicated machinery of Civil Courts” as it would be peopled with convicts serving for life who had “forfeited all claim to protection from the Law.”61 His successor, General Ralph Darling, similarly hoped it would be a “place of the extremest punishment short of death.”62 Others embraced the reformative potential of penal stations. An 1828 commission of inquiry into the failure of the Port Macquarie penal station stressed that, while local penal settlements should be “more dreaded than the severest punishment,” they should also be sites of earnest work and moral reform. The commission recommended that penal stations effect “removal [of convicts] from all the sources of enjoyment” and reinforce the punitive and reformative value of “unremitted,” “compulsory,” “regular and systemic” labour (particularly agricultural labour) in order to instil “habits of industry and exertion.” Like Bigge’s “Directions,” it recommended that settlements be geographically confined and “concentrated” where convicts laboured “under the immediate eye of the commandant.”63
These principles were incorporated into a new, detailed set of regulations distributed to penal settlements in 1829. They sought to regularise and formalise a rigorous system of discipline and management on the stations, emphasising the need to keep inmates “at some species of Labour of a uniform kind which they cannot evade,” but also urging the reformative potential of these regimes. By being kept “in permanent habits of labour” convicts could learn “the power of earning their subsistence by honest Industry,” motivated by “the hope of ultimate relief and amendment.”64 These ideas were not revolutionary—unlike the much better known reform programs implemented by Alexander Maconochie in Norfolk Island after 1840 and the Pentonville-inspired “separate system” at Port Arthur from 1847. They nevertheless demonstrate the modernising and reformist pretensions derived from the system of extra-penal labour implemented in sites of internal transportation in Macquarie’s New South Wales—pretensions that were repackaged and re-exported by Commissioner Bigge in the early 1820s.65
Bigge’s vision articulated, under Governors Brisbane (1822–25) and Darling (1825–31), into a network of penal settlements predicated on confinement through remoteness and extra-punitive labour and graded according to degrees of severity and discipline. Port Macquarie (founded 1821) was to be a repository for “first grave offences,” Moreton Bay (1824) a repository for Port Macquarie absconders, and Norfolk Island (1825) was to be reserved for “higher class of offences,” the “ne plus ultra of convict degradation” for convicts “forever excluded from all hope of return.”66 This system was layered by other penal measures. At the urging of Chief Justice Forbes, Brisbane established Sydney’s own hulk, the Phoenix, “for the reception of Transports” awaiting removal to a penal station and soon after established as a “House of Correction” and “Public Gaol.”67 The graded penal system also coincided with improved regulation of other institutions such as the Parramatta Female Factory, Hyde Park Barracks and Sydney Gaol, now referred to as penitentiaries and featuring far more prevalently in the sentences issued by colonial authorities. And, in the late 1820s, the existing system of work gangs was reconfigured and expanded to provide another gradation to sentencing and an alternative to penal settlements for convicts deserving of shorter sentences of hard labour (rather than transportation).68
To a considerable degree, this graded system of penal settlements was reflected in sentencing until the regulations of 1829. It is not easy to draw a clear connection between the severity of convict crimes and their sentencing to particular sites of transportation, although, in one suggestive Supreme Court case involving six house breakers, those who confessed were sent to Port Macquarie and the two who did not were sent to Norfolk Island.69 Grading is evident in the fact that the overwhelming majority of individuals sent to Port Macquarie after mid-1822 (when the drafting of convicts to Newcastle ceased) were sentenced by magistrates. In contrast, from 1825, both Moreton Bay and Norfolk Island became the preferred destinations for capital respites and convicts sentenced to transportation by the new Supreme Court and the newly constituted Courts of General and Quarter Sessions. From February 1826, when sentencing to Port Macquarie virtually ended, Moreton Bay became the primary penal settlement. Just under five hundred convicts arrived there in 1826–27, mostly from Sessions held at Sydney, Parramatta, Windsor, Argyle and Newcastle. With only a handful of exceptions, Norfolk Island only received convicts sent via the Supreme Court. In 1826–29, of the roughly 218 known cases where death sentences were commuted, spared convicts were divided fairly evenly between Moreton Bay (113) and Norfolk Island (105).70 However, commutations to Norfolk Island were nearly all for life; Moreton Bay received more convicts with lesser sentences.
The convict population also understood and defended the graded nature of the system. For example, in 1827 convicts on board the Wellington mutinied against their relocation to Norfolk Island, some later defending themselves on the grounds that they had not committed wrongs justifying such extreme punishment, and that, therefore, their relocation to Norfolk island was “irregular,” if not illegal. While their pleas were rejected, Chief Justice Forbes expressed sympathy for their cause in private correspondence.71 Likewise, a large number of men transferred from Port Macquarie to Norfolk Island in July 1830 protested that they had been “unfairly dealt with.”72
While court sentencing and convict reactions suggest a reasonably consistent hierarchy in the minds of convicts, magistrates and judges, some research suggests that convict and court perceptions did not always correlate to everyday realities. Moreton Bay may have been the bloodiest and most brutal establishment before 1830, stricken by sickness, overcrowding and drought, and ruled with severity bordering on tyranny under the infamous Commandant Patrick Logan (1826–30).73 Even so, Norfolk Island remained the more feared destination in part because of its reputation as the repository of the worst convicts, and in part because it was the most like a penitentiary—populated by men only and almost impossible to escape.74
In 1795, the Scotch Martyrs argued successfully that transportation to New South Wales was a species of simple exile. Two decades later, colonial courts and administrators had redefined local transportation very differently, conflating banishment with extra-penal labour and reform. These experiments, in turn, were rolled out around the colony and the British Empire—to the Dockyards of Bermuda, to Moreton Bay, Norfolk Island and Van Diemen’s Land and, eventually, to Gibraltar.75 The rapid change in discourse, sentencing practice and penal regulations demonstrates two things. First, metropolitan policy and practices of convict administration together effected the collapse of early modern exile into convict servitude in the early nineteenth century. This collapse stemmed in equal parts from planning, from folklore and from accidents of practice. Second, penal stations established in New South Wales’s peripheries between 1788 and 1825 exemplified the further collapse throughout the British Empire of sites of transportation into peculiar and sometimes innovative iterations of the modern penitentiary, where both punishment and reform could be meted out through a combination of exile and punitive hard labour.
This larger trend was part and parcel of a metropolitan drive towards imperial legal uniformity focused increasingly on penal practice and criminal law. However, following Beattie’s studies of county court practice decades ago, we have insisted on the primacy of local sentencing and local policy in New South Wales in turning internal transportation into a regime synonymous with confinement and hard labour. This transformation, as we have described it, adapted metropolitan trends in punishment to meet the very local need to discipline convicts whose forced labour was already integral to their transportation to New South Wales. It also occurred earlier than scholars have hitherto acknowledged. While a number of scholars have discussed the importance of Norfolk Island to empire-wide discussions of transportation in the 1840s, we argue that Newcastle played a less obvious role in transforming metropolitan discussions of the character and potential of penal transportation decades before.76 In short, we argue that the details of legal practice and of daily administration in the colony of New South Wales are vital if we are to understand the transformation of secondary punishment in the early nineteenth-century British Empire.
The research underpinning this paper was supported by the Australian Research Council: DP110103832 and DP1096583. Thanks to Leah Grolman for her editorial assistance.
1. This, despite the fact that one of the sentencing judges clearly distinguished between banishment and transportation: An Account of the Trial of Thomas Muir esq. Younger of Huntershill before the High Court of Justiciary at Edinburgh, on 30th and 31st days of August, 1793 for Sedition, 2nd US ed. (New York: Samuel Campbell, 1794), 87.
2. Hunter to Portland, 25 October 1795, in Historical Records of New South Wales: Grose and Paterson, 1793–1795, vol. 2 (hereafter HRNSW 2), ed. Frank Murcott Bladen (Mona Vale: Lansdown Slattery, 1978), 882–83.
3. Unsigned Opinion, HRNSW 2, 886; R. Dundas to the Duke of Portland, 5 September 1796, in Historical Records of New South Wales: Hunter, 1796–1799, vol. 3 (hereafter HRNSW 3), ed. Frank Murcott Bladen (Mona Vale: Lansdown Slattery, 1978), 112.
4. Dundas to Portland, 5 September 1796, in HRNSW 3, 113.
5. Farley Grubb, “The Transatlantic Market for British Convict Labor,” Journal of Economic History 60, 1 (2000): 94–122. See generally, A. Roger Ekirch, Bound for America: The transportation of British convicts to the colonies 1718–1775 (Oxford: Clarendon Press, 1987); Abbot Emerson Smith, Colonists in Bondage: White servitude and convict labor in America, 1607–1776 (Chapel Hill: University of North Carolina Press, 1947).
6. “Hulk” or “Hard Labour Act” of 1776 (16 Geo. III, c. 43); “Penitentiary Act” of 1779 (19 Geo. III, c. 74, section 32). On hard labour, see John Beattie, Crime and Courts In England, 1660–1800 (Oxford: Clarendon Press, 1986), 492–502, 522–25; John Beattie, Policing and Punishment in London, 1660–1750: Urban crime and the limits of terror (Oxford: Oxford University Press, 2001), 331–35. Sentences of transportation dropped from one half to one quarter of all sentences between the early 1770s and the 1790s: Beattie, Crime and the Courts in England, 520–619, 601.
7. The “Removal of Prisoners Act” 1784, (24 Geo. III, c. 12) was quickly repealed and replaced by the “Transportation Act” 1784 (24 Geo. III, c. 56).
8. “Debate in the House of Commons on the Bill for the Temporary Reception of Criminals under Sentence of Death,” 11 March 1784, The Parliamentary History of England from the Earliest Period to the Year 1803, vol. 24 (London: Hansard, 1815), 755–57; see section 8 of the “Transportation Act” 1784 (24 Geo. III, c. 56).
9. Especially Hamish Maxwell-Stewart, Closing Hell’s Gates: The death of a convict station (Crows Nest, NSW: Allen & Unwin, 2008).
10. John Hirst, Convict Society and its Enemies: A history of early New South Wales (North Sydney: George Allen & Unwin, 1983); Stephen Nicholas, ed., Convict Workers; Reinterpreting Australia’s past (Cambridge: Cambridge University Press, 1988).
11. Ray Evans and William Thorpe, “Power, Punishment and Penal Labour: Convict Workers and Moreton Bay,” Australian Historical Studies 25, 98 (1992): 90–111. See also Ray Evans and William Thorpe, “Freedom and Unfreedom at Moreton Bay: The structures and relations of secondary punishment,” in Barrie Dyster, ed., Beyond Convict Workers (Sydney: Department of Economic History, University of New South Wales 1996), 64–82; Ray Evans and William Thorpe, “The Last Days of Moreton Bay: Power, sexuality and the misrule of law,” Journal of Australian Studies 53 (1997): 59–75; Hamish Maxwell-Stewart, “Convict Workers, ‘Penal Labour’ and Sarah Island: Life at Macquarie Harbour,” in Ian Duffield & James Bradley, eds, Representing Convicts: New perspectives on convict forced labour migration (London: Leicester University Press 1997), 142–62; Tamsin O’Connor, “Buckley’s Chance: Freedom and hope at the penal settlements of Newcastle and Moreton Bay,” Tasmanian Historical Studies 6, 2 (1999): 115–28.
12. John Gascoigne, The Enlightenment and the Origins of European Australia (Cambridge: Cambridge University Press, 2002).
13. Jeremy Bentham, Letter to Lord Pelham... Giving a comparative view of the system of penal colonization in New South Wales, and the home penitentiary system (London, 1802); Plea for a Constitution: Shewing the enormities committed to the oppression of British subjects (London, 1803); Panopticon versus New South Wales: Or the panopticon penitentiary system, and the penal colonization system, compared (London 1812). See Robert Vincent Jackson, “Jeremy Bentham and the New South Wales Convicts,” International Journal of Social Economics 25 (1998): 370–79.
14. Government Orders, 9 October 1795, 24 November 1795, 21 July 1796, in Frederick Watson, ed., Historical Records of Australia, Series I (hereafter HRA I), Governors’ Despatches to and from England, vol. 1 (Sydney: Library Committee of the Commonwealth Parliament, 1914), 679, 682, 696.
15. Government Order, 15 May 1798, in HRA I, vol. 2, 214.
16. King to Portland, 1 March 1802, in HRA I, vol. 3, 423–4.
17. Hunter to Portland, 10 June 1797, in HRA I, vol. 2, 20.
18. “Public Labour of Convicts, Maintained by the Crown,” 1805, in HRA I, vol. 5, 665.
19. Court of Criminal Jurisdiction, Minutes of Proceedings (hereafter CC Minutes), 1798–1800, State Records of New South Wales (hereafter SRNSW), X905.
20. Phillip to Sydney, 15 May 1788, in HRA I, vol. 1, 22. George Barrington, A Voyage to New South Wales: Comprising an interesting narrative of the transactions and behaviour of the convicts (Dublin, 1801), 241.
21. Recorded in David Collins, An Account of the English Colony in New South Wales, vol. 1 (London, 1798), 66, 103. The cases were R v. Wright  and R v. Ingram , CC Minutes, SRNSW 5/1147A.
22. Eg, Collins, An Account of the English Colony, 193, 394, 397, 408.
23. Eg, R v. Wilson , R v. Sanders and Bevan,  and R v. Williams , CC Minutes, 1795–1797, SRNSW 1147B. For the use of transportation in English sentencing, see “Punishment at the Old Bailey,” The Proceedings of the Old Bailey, accessed August 23, 2013, http://www.oldbaileyonline.org/static/Punishment.jsp#transportation.
24. CC Minutes, 29 March 1798–23 December 1800, SRNSW X905.
25. King, 2 January 1805, in Historical Records of New Zealand, vol. 1, ed. Robert McNab (Wellington, 1908), 269. See also King to Hobart, 16 August 1804, in Historical Records of New South Wales, ed. Frank Murcott Bladen, vol. 5, King, 1803, 1804, 1805 (Mona Vale: Lansdown Slattery, 1979), 366.
26. King to Hobart, 12 March 1804, in HRA I, vol. 4, 577.
27. King to Menzies, 8 May 1804, in HRA I, vol. 5, 411.
28. Between 1812 and 1819, over 450 individuals (roughly 30 per cent of arrivals) were recorded as having been “convicted” or “sent” by the governor: Gaoler’s Lists of convicts sent to Newcastle from 1811–1820, SRNSW 4/3492-4/3503.
29. The first appears to have been James Bevan, who raped an infant. “Court of Criminal Jurisdiction,” Sydney Gazette, 20 May 1804: 3–4; CC Minutes, 17 May 1804, SRNSW 5/1149, 187.
30. “Commutations of Sentences, 1810–22,” SRNSW 4/7020.
31. “Reports and Returns of Prisoners Tried before the Courts of Criminal Jurisdiction, Sydney, 1811–1817,” in Select Committee on the State of Gaols, British Parliamentary Papers: Crime and punishment, prisons, vol. 1 (Shannon: Irish University Press, 1969), 512–20; “Report of Prisoners tried before the Judge Advocate,” 12 March 1810, HRA 1, vol. 7, 324–25.
32. “Reports and Returns of Prisoners Tried Before the Courts of Criminal Jurisdiction, Sydney, 1811–1817,” Select Committee on the State of Gaols, 521–28.
33. Court of Criminal Jurisdiction, Reports of Prisoners Tried, October 1816–February 1824, SRNSW X725; Returns of Trials, Van Diemen’s Land, 1821–1823, SRNSW X726.
34. Sydney Gazette, 23 September 1804.
35. Sydney Gazette, 26 January 1811: 1–2. Governor Macquarie’s Proclamation of 26 January 1811 distinguished between “hard labour” for possession of illegal spirits and “transportation” for distilling or trafficking.
36. Sydney Gazette, 12 April 1817: 1.
37. Eg, the case of Jane Jones, who was “banished” to Newcastle for “hard labour,” Sydney Gazette, 27 April 1806: 3; and James Batters, “sent to the Coal River and there kept to hard labour for the space of two years,” Judge Advocate’s Bench, Minutes of Proceedings 1806–1808, SRNSW SZ769: 425.
38. Judge Advocate’s Bench of Magistrates, Proceedings 1806–1808, SRNSW SZ769. See, e.g., pp. 35, 157 for sentences to Newcastle.
39. Gaoler’s Lists of convicts sent to Newcastle from 1811–1820, SRNSW 4/3492-4/3503.
40. Evidence of Alexander Riley, House of Commons, “Report of the Select Committee on the State and Description of Gaols and other Places of Confinement,” 1819, Minutes of Evidence, in British Parliamentary Papers: Crime and punishment, prisons, vol. 1, 11, 93.
41. Letters received by the Colonial Secretary from Newcastle, 1804–1826, SRNSW 4/1804-13; letters sent to Newcastle, 1814–1827, SRNSW 4/3492-3516.
42. Bruce Kercher, “Perish or Prosper: the Law and Convict Transportation in the British Empire, 1700–1850,” Law and History Review 21, 3 (2003): 527–84.
43. “Extract from the Report made of Proceedings at the Court House in Parramatta for the Quarter ending 30th September 1817,” HRA I, vol. 9, 541–42. See also Returns of the Parramatta Bench, October–December 1824, SRNSW 4/6671:55, 58–59, 63; Eagar to Bigge, 19 October 1819, in John Ritchie, ed., The Evidence to the Bigge Reports: New South Wales under Governor Macquarie, vol. 2 (Melbourne: Heinemann 1971), 6, 33; W.C. Wentworth, A Statistical, Historical, and Political Description of the Colony of New South Wales (London, 1820), 265–66; Thomas Reid, Two Voyages to New South Wales and Van Diemen’s Land (London, 1822), 275; Charles Clarke, A Summary of Colonial Law, the Practice of the Court of Appeals from the Plantations, and of the Laws and Their Administration in All the Colonies (London: S. Sweet, 1834), 641.
44. John Thomas. Bigge, “Report of the Commissioner of Inquiry into the State of the Colony of New South Wales,” 1822, in British Parliamentary Papers: Colonies, Australia, vol. 1 (Shannon: Irish University Press, 1971), 34.
45. Riley, “Evidence to House of Commons Committee Gaols, 1819,” 11.
46. Campbell to Thompson, 20 July 1815, SRNSW 3/3494: 128–29, and consolidated in Wallis’ instructions, 5 June 1816, 4/1806, p. 29b, although convicts were allowed to work their own gardens on Saturdays.
47. Government and General Orders from Newcastle, 1816–1824, SRNSW 2/8632; David Andrew Roberts and Daniel Garland, “The Forgotten Commandant: James Wallis and the Newcastle Penal Settlement, 1816–1818,” Australian Historical Studies 41, 1 (2010): 5–24.
48. Bigge, “Report of the Commissioner of Inquiry,” 117.
49. Morisset’s evidence, in John William Turner, Newcastle as a Convict Settlement: The evidence before J.T. Bigge in 1819–1821 (Newcastle: Newcastle Public Library, 1973), 77, 78.
50. Macquarie, GGO, 24 December 1818, SRNSW 2/8623; Bigge, “Report of the Commissioner of Inquiry”, 118; “Instructions for the Guidance and Government of Captain James Wallis”, 5 June 1816, SRNSW 4/1806: 29c; Turner, ed., Newcastle as a Convict Settlement, 27, 128, 194–95; Campbell to Wallis, 17 September 1817 and 29 November 1817, in SRNSW 4/3497: 56, 173; Wallis, GGO, 16 August 1818, and September 1818, SRNSW 2/8623.
51. Alexander Harris, The Secrets of Alexander Harris: A frank autobiography (Sydney: Angus and Robertson, 1961), 178; Alexander Harris, Settlers and Convicts: Or, Recollections of sixteen years’ labour in the Australian backwoods ([London, 1847;] Melbourne: Melbourne University Press), 229.
52. Macquarie to Bathurst, 15 February 1819, in HRA I, vol. 10, 43–4.
53. Bathurst to Bigge, 6 January 1819, in HRA I, vol. 10, 6.
54. Ray Evans, “19 June 1822, Creating ‘An Object of Real Terror’: The tabling of the first Bigge report,” in The Great Mistakes of Australian History, ed. Martin Crotty and David Andrew Roberts (Sydney: University of New South Wale Press, 2006), 48–61.
55. Bigge, “Directions and Regulations for the Conduct of the New Settlements at Moreton Bay, Port Bowen, and Port Curtis,” in “Report of the Commissioner of Inquiry,” 180–86.
56. Bigge, “Directions and Regulations,” 180–86.
57. Bentham, Panopticon versus New South Wales, as discussed in Gascoigne, Enlightenment and the Origins of European Australia, 123–47.
58. Bathurst to Brisbane, 22 July 1824, HRA I, vol. 11, 321–2.
59. Horton’s address to Parliament, July 1823, in Australian, 17 March 1825: 2.
60. Evans, “19 June 1822,” 61.
61. Brisbane to Horton, 24 March 1825, in HRA 1, vol. 11, 553.
62. Darling to Hay, 18 July 1827, in HRA I, vol. 13, 105–6.
63. Morisset and Busby, Report of the Commissioners of Inquiry at Port Macquarie, 4 August 1828, in HRA I, vol, 15, 481–528.
64. Penal Settlement Regulations, 1829, SRNSW 4/7088-1; Dumeresq, Busby and Thomson, “Report of the Board Appointed to Prepare a Code of General Regulations for the Penal Settlements,” 1 July 1829, in HRA I, vol. 15, 114–16.
65. Gascoigne, Enlightenment and the Origins of European Australia, 139–45.
66. Brisbane to Horton, 24 March 1825, in HRA 1, vol. 11, 553–5; Bathurst to Brisbane, 22 July 1824, in HRA 1, vol. 11, 322; Darling to Hay, 18 July 1827, in HRA I, vol. 13, 105–6. Other sites, notably at Wellington Valley, were established with the apparent intention of their becoming penal settlements but were soon designated as not being “immediately penal.” David Andrew Roberts, “‘A Sort of Inland Norfolk Island’?: Isolation, coercion and resistance on the Wellington Convict Station, 1823–26,” Journal of Australian Colonial History 2, 1 (2000): 50–72.
67. Darling to Bathurst, 23 October 1826, in HRA I, vol. 12, 658; An Act for the Better Regulation of the Hulk or Floating Prison, in Sydney Harbour, and for Establishing Houses of Correction in the Colony, 30 June 1828, in Sydney Gazette, 4 July 1828.
68. Darling to Huskisson, 28 March 1828, in HRA I, vol. 14, 70–71.
69. R v. Fell, Woodgate, Anson, Townsend, Kenyon and Green, 23 June 1825, Returns of Prisoners Tried before the Supreme Court, SRNSW X727.
70. We are indebted to Tim Castle and Amanda Kaladelfos for access to their data on capital convictions during this period.
71. Forbes to Wilmot Horton, 6 March 1827, in John Michael Bennett, ed., Some Papers of Sir Francis Forbes: First chief justice in Australia (Sydney: Parliament of New South Wales, 1998), 129–31; Sydney Gazette, 24 February 1827: 3; Erin Ihde, “Liberty or Life!: The convict pirates of the Wellington,” Darkmatter no. 5 (2009): 103–15.
72. Bourke to Morisset, 12 March 1832, SRNSW 4/7088-1: 51–52; “Indulgences to the Port Macquarie Men Removed to Norfolk Island in July 1830,” 1 December 1830, SRNSW 4/7088-1: 109–11.
73. Douglas Gordon, “Sickness and Death at the Moreton Bay Convict Settlement,” The Medical Journal of Australia 2, 12 (1963): 473–80; Charles Bateson, Patrick Logan; Tyrant of Brisbane Town (Sydney: Ure Smith, 1966); Evans and Thorpe, “Power, Punishment and Penal Labour,” 90–111.
74. Evidence of Cunningham, Select Committee on Secondary Punishments, 1832, 38; Monitor, 12 January 1829.
75. Clara Frances Edith Hollis Hallet, Forty Years of Convict Labour: Bermuda, 1823–1863 (Bermuda: Juniperhill Press, 1999).
76. See, eg, Norval Morris, Maconochie’s Gentlemen: The story of Norfolk Island and the roots of modern prison reform (Oxford: Oxford University Press, 2002); contrast Roberts and Garland, “The Forgotten Commandant,” 5–24.