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  • New South Wales Penal Settlements and the Transformation of Secondary Punishment in the Nineteenth-Century British Empire
  • Lisa Ford and David Andrew Roberts

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...

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