Perish or prosper: The law and convict transportation in the British Empire, 1700-1850

Law and History Review

Volumn 21, Issue 3, 2003, Pages 526-584

  Kercher, Bruce ^a  

^a MACQUARIE UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

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EID: 67049096630     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.2307/3595119     Document Type: Review

References (346)

1. The epigraph is from Jeremy Bentham, The Rationale of Punishment, 1830, book 5, chap. 2
2. quoted slightly differently in Alan G. L. Shaw, Convicts and the Colonies (London: Faber and Faber, 1966), 57
3. See A. Roger Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1718-1775 (Oxford: Clarendon Paperbacks, 1987), 27
4. Farley Grubb, "The Transatlantic Market for British Convict Labor," Journal of Economic History 60 (2000): 94
5. See also Abbott E. Smith, Colonists in Bondage: White Servitude and Convict Labor in America 1607-1776 (Gloucester, Mass. : Peter Smith, 1947), appendix
6. Bernard Bailyn, Voyagers to the West: A Passage in the Peopling of America on the Eve of the Revolution (New York: Knopf, 1987), 294-95
7. A. Roger Ekirch, "Bound for America: A Profile of British Convicts Transported to the Colonies, 1718-1775," William and Mary Quarterly, 3d ser., 42 (1985): 185-200
8. Aaron S. Fogleman, "From Slaves, Convicts, and Servants to Free Passengers: The Transformation of Immigration in the Era of the American Revolution," Journal of American History 85 (1998): 43-76, table 1
9. See Wray Vamplew, ed., Australians: Historical Statistics (Sydney: Fairfax, Syme and Weldon, 1987), 4
10. Australia: see for example, John Hirst, Convict Society and Its Enemies: A History of Early New South Wales (Sydney: Allen and Unwin, 1983)
11. Leslie L. Robson, The Convict Settlers of Australia (Melbourne: Melbourne University Press, 1965)
12. Shaw, Convicts and the Colonies
13. America: see for example, Smith, Colonists in Bondage
14. Ekirch, Bound for America
15. Bailyn, Voyagers to the West
16. Apart from Ekirch, Bound for America, the American books tend to be about forced labor generally, of which convict transportation was a part. On the need for the comparative history of convict labor, see Ian Duffield and James Bradley, eds., Representing Convicts: New Perspectives on Convict Forced Labor Migration (London: Leicester University Press, 1997), introduction
17. Shaw, Convicts and the Colonies, chap. 1, provides just that. Representing Convicts came from a conference held in Edinburgh in 1995. Another was held in Leicester in 1999, "Colonial Places, Convict Spaces: Penal Transportation in Global Context, c. 1600-1940. " See http://iccs.arts. utas.edu.au/abstracts3.html; http://spider.lib.latrobe.edu.au/AHR/goodo/ colonial.html. These conferences covered convict transportation to America, Australia, and elsewhere
18. Alex C. Castles, An Australian Legal History (Sydney: Law Book Co, 1982)
19. Lawrence Friedman, A History of American Law (New York: Touchstone, 1985)
20. Nor is there any reference to banishment, exile, or transportation in Lawrence Friedman, Crime and Punishment in American History (New York: Basic Books, 1993)
21. Since convict transportation was mainly to Virginia and Maryland, its neglect by American legal historians may be part of a general neglect of southern legal history. See Paul Finkelman, "Exploring Southern Legal History," North Carolina Law Review 64 (1985): 77-116
22. This odd institution of convict management was at once a prison, a factory, and a marriage bureau. See Annette Salt, These Outcast Women: The Parramatta Female Factory, 1821-1848 (Sydney: Hale and Iremonger, 1984)
23. See, though, parts of Castles, Australian Legal History
24. and Charles H. Currey, Sir Francis Forbes: The First Chief Justice of New South Wales (Sydney: Angus and Robertson, 1968)
25. J. M. Beattie, Crime and the Courts in England, 1660-1800 (Oxford: Clarendon Press, 1986), chap. 9
26. On seventeenth-century transportation, see Smith, Colonists in Bondage, chap. 5; and see (1597) 39 Eliz. c. 4; and Habeas Corpus Act, 1679 (31 Car. 2, c. 2, s. 12)
27. On the benefit of clergy, see Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (London: Penguin, 1993), 82
28. Beattie, Crime and the Courts, 141-48, 452, 610
29. and see William Blackstone, Commentaries on the Laws of England (1st ed., 1765-1769; reprint, Chicago: University of Chicago Press, 1979), vol. 4, chap. 28
30. See Beattie, Crime and the Courts, 506
31. On the practical but systematic discretion available to prosecutors, juries, judges, and the Crown concerning punishment, see Beattie, Crime and the Courts, chap. 8 especially
32. Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850 (New York: Pantheon Books, 1978), 19-20
33. Peter King, "Decision-Makers and Decision-Making in the English Criminal Law, 1750-1800," Historical Journal 27 (1984): 25-58
34. Peter King, Crime, Justice, and Discretion in England, 1740-1820 (Oxford: Oxford University Press, 2000), chap. 9
35. Gwenda Morgan and Peter Rushton, Rogues, Thieves and the Rule of Law: The Problem of Law Enforcement in North-East England, 1718-1800 (London: UCL Press, 1998), chap. 7
36. On the percentages of convicts hanged and transported, see Ekirch, Bound for America, 21
37. Charles J. Reid, "Review Essay: Tyburn, Thanatos, and Marxist Historiography: The Case of the London Hanged," Cornell Law Review 79 (1994): 1186
38. Alan Atkinson, "The Free-Born Englishman Transported: Convict Rights as a Measure of Eighteenth-Century Empire," Past and Present 144 (1994): 88-115
39. See Smith, Colonists in Bondage, 147-51
40. Ekirch, Bound for America, 97
41. Ekirch, Bound for America, 224
42. Grubb, "Transatlantic Market," 117-19
43. On the contracts, see Smith, Colonists in Bondage, chap. 6
44. Kenneth Morgan, "The Organization of the Convict Trade to Maryland: Stevenson, Randolph and Cheston, 1768-1775," William and Mary Quarterly 42 (1985): 201-27
45. and on the end of the subsidy, see Bailyn, Voyagers to the West, 263
46. On transportation to America, see also Javier Bleichmar, "Deportation as Punishment: A Historical Analysis of the British Practice of Banishment and Its Impact on Modern Constitutional Law," Georgetown Immigration Law Journal 14 (1999): 115-63
47. Ekirch, Bound for America, 122-23, 129
48. Smith, Colonists in Bondage, 221-22
49. Ekirch, Bound for America, 124-25
50. Grubb, "Transatlantic Market," 94-122. Grubb provides an economic analysis of the pricing of coerced labor
51. Smith, Colonists in Bondage, 122
52. Grubb, "Transatlantic Market," table 1
53. Ekirch, Bound for America, 76
54. Smith, Colonists in Bondage, 103
55. Grubb, "Transatlantic Market," 110, 116, also found that shippers were able in practice to select among the convicts, while special subsidies were paid for some individuals
56. Ekirch, Bound for America, 102
57. Smith, Colonists in Bondage, 125
58. Ekirch, Bound for America, 119
59. Bailyn, Voyagers to the West, 260-61
60. Ekirch, Bound for America, 114-16
61. Smith, Colonists in Bondage, 117
62. Fogleman, "Slaves, Convicts, and Servants," 58
63. See Smith, Colonists in Bondage, 119-21, 130
64. Bailyn, Voyagers to the West, 261-63
65. Mary S. Bilder, "The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce," Missouri Law Review 61 (1996): 775-77
66. and see Atkinson, "Free-Born Englishman," 99-100
67. Smith, Colonists in Bondage, 130
68. Ekirch, Bound for America, vii
69. Bailyn, Voyagers to the West, 263
70. Morgan, "Organization of the Convict Trade," 203
71. On indentured laborers, see also David W. Galenson, White Servitude in Colonial America: An Economic Analysis (Cambridge: Cambridge University Press, 1981)
72. Ekirch, Bound for America, 147, 198
73. Generalizations are difficult, because conditions changed over time and place: see Christine Daniels, "Gresham's Laws: Labor Management on an Early Eighteenth-Century Chesapeake Plantation," Journal of Southern History 62 (1996): 205-38
74. As to the operation of criminal law within the American colonies, see, for example, Kathryn Preyer, "Penal Measures in the American Colonies: An Overview," American Journal of Legal History 26 (1982): 326-53, noting at 344 that a common punishment in eighteenth-century Pennsylvania was a capital sentence followed by a pardon on condition of the person leaving the colony
75. James D. Rice, "The Criminal Trial before and after the Lawyers: Authority, Law and Culture in Maryland Jury Trials, 1681-1837," American Journal of Legal History 40 (1996): 455-75
76. See An Act concerning Servants and Slaves, Virginia, 1705 (at http://www.law.du.edu/russell/lh/alh/docs/virginiaslaverystatutes.html); Ekirch, Bound for America, 150
77. Ekirch, Bound for America, 196
78. Farley Grubb, "The Statutory Regulation of Colonial Servitude: An Incomplete-Contract Approach," Explorations in Economic History 37 (2000): 45
79. Ekirch, Bound for America, 153-56
80. Smith, Colonists in Bondage, 131
81. Grubb, "Statutory Regulation," 60-61
82. On the freedom dues payable in the colonies of America and the West Indies, see Smith, Colonists in Bondage, 238-40
83. Fogleman, "Slaves, Convicts, and Servants," 52
84. Grubb, 'Transatlantic Market," 98, 109, 114-15
85. Grubb, "Statutory Regulation," 60
86. Atkinson, "Free-Born Englishman," 97-98
87. and see, concerning Irish convicts, Bob Reece, The Origins of Irish Convict Transportation to New South Wales (Basingstoke: Palgrave, 2001), 13
88. Atkinson, "Free-Born Englishman. "
89. Smith, Colonists in Bondage, 303
90. Grubb, "Statutory Regulation," 70-71
91. See also Smith, Colonists in Bondage, 258, 264, 267, 275
92. Grubb, "Statutory Regulation"; Christopher L. Tomlins, Law, Labor and Ideology in the Early American Republic (Cambridge: Cambridge University Press, 1993), 249-53
93. Smith, Colonists in Bondage, 278
94. See, for example, Bilder, "The Struggle over Immigration," 754, noting that the primary difference between indentured servants and convicts was the way they entered into their indenture
95. See also A. G. Roeber, Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680-1810 (Chapel Hill: University of North Carolina Press, 1981), 90-93, distinguishing slaves from whites, but not convicts from indentured laborers
96. Atkinson, "Free-Born Englishman," 97-98
97. Bailyn, Voyagers to the West, 325
98. Fogleman, "Slaves, Convicts, and Servants," 57
99. See Grubb, "Transatlantic Market"
100. Grubb, "Statutory Regulation. "
101. See also David Eltis, "Free and Coerced Transatlantic Migrations: Some Comparisons," American Historical Review 88 (1983): 251-80
102. and, distinguishing convict labor from slavery, David Eltis, The Rise of African Slavery in the Americas (Cambridge: Cambridge University Press, 2000), 66-67, 73-75
103. Blackstone, Commentaries, vol. 4, 373, and on forfeiture, see 373-79
104. See Francis Forbes, "Summary of the Law ... with regard to Persons who have been Adjudged Guilty of Crimes," 1 January 1823, in Historical Records of Australia, ed. Frederick Watson (Sydney: Library Committee of the Commonwealth Parliament, 1914-1925 [hereafter HRA]), series 4, vol. 1, 419
105. Blackstone, Commentaries, vol. 1, 431
106. Forbes, "Summary of the Law," 421-22
107. Ekirch, Bound for America, 154
108. See also Atkinson, "Free-Born Englishman," 102-4
109. Smith, Colonists in Bondage, 131, 235
110. with William Blackstone, Commentaries on the Laws of England (9th ed., London, 1783; reprinted, New York: Garland Publishing, 1978), vol. 1, 108
111. Blackstone, Commentaries, 1st ed., vol. 1, 105
112. F. W. Hall, "The Common Law: An Account of Its Reception in the United States," Vanderbilt Law Review 4 (1951): 791-825
113. Michael C. Tolley, "Maryland and Its Anglo-Legal Inheritance," Journal of Legal History 11 (1990): 355
114. Kermit Hall, William M. Wiecek, and Paul Finkleman, American Legal History: Cases and Materials, 2d ed. (New York: Oxford University Press, 1996), 24
115. and see Blackstone, Commentaries, 1st ed., vol. 1, 105
116. "1984 Survey of Books Relating to the Law: IV. Legal History: Criminal Justice in Colonial America, 1606-1660. By Bradley Chapin," Michigan Law Review 82 (1984): 881 n. 13
117. See Warren M. Billings, "Justices, Books, Laws and Courts in Seventeenth-Century Virginia," Law Library Journal 85 (1993): 277-96
118. See also Finkelman, "Exploring Southern Legal History," 109-10, on the localized power of the courts in Virginia
119. On attitudes to the reception of English law in eighteenth-century Virginia, see Roeber, Faithful Magistrates, 74
120. See Charles A. Rees, "Preserved or Pickled? The Right to Trial by Jury after the Merger of Law and Equity in Maryland," University of Baltimore Law Review 26 (1997): 382-83
121. For some of the many possible examples of this point, see Friedman, History of American Law, prologue
122. Philip Girard, "Themes and Variations in Early Canadian Legal Culture: Beamish Murdoch and his Epitome of the Laws of Nova-Scotia," Law and History Review 11 (1993): 101-44
123. Cornelia H. Dayton, Women before the Bar: Gender, Law and Society in Connecticut, 1639-1789 (Chapel Hill: University of North Carolina Press, 1995)
124. Bruce H. Mann, Neighbors and Strangers: Law and Community in Early Connecticut (Chapel Hill: University of North Carolina Press, 1987), 6-7
125. Hall, American Legal History, 23-29
126. Tomlins, Law, Labor and Ideology, 240
127. On the British attempts to continue transportation after the revolution, see A. Roger Ekirch, "Great Britain's Secret Convict Trade to America, 1783-1784," American Historical Review 89 (1984): 1285-91
128. Reece, Origins, chaps. 8-11
129. For Newfoundland, see Jerry Bannister, "Convict Transportation and the Colonial State in Newfoundland, 1789," Acadiensis 27 (1998): 95-123
130. For Nova Scotia: Jim Phillips of the University of Toronto has generously sent the author copies of documents held by the Nova Scotia Archives and Records Management relating to convicts sent to Nova Scotia. The first reference is dated 1753, when the colony's officials refused to receive convicts from Newcastle. Shiploads of convicts continued to be sent (and resistance continued in the colony) into the late 1780s, even after the first fleet of convicts had begun the long voyage to New South Wales. On the resumption of transportation, see Beattie, Crime and the Courts, 592-601; and on the use of hulks and imprisonment at hard labor in the meantime, see 564-69, 573-76
131. See Australians: Historical Statistics, ed. Vamplew, 104-5
132. Robson, The Convict Settlers of Australia, 3
133. For a non-lawyer's view of this structure, see Alan Atkinson, "The First Plans for Governing New South Wales," Australian Historical Studies 24 (1990): 22-40
134. and for recent lawyers' views, see David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (Cambridge: Cambridge University Press, 1991), chap. 1
135. Bruce Kercher, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South Wales (Sydney: Federation Press, 1996), chap. 1
136. On the first judge advocate, see John Currey, David Collins: A Colonial Life (Melbourne: Miegunyah Press, 2000)
137. See Caldwell, "Population," 114
138. The New South Wales and Van Diemen's Land cases used here are taken from one of two sources: http://www.law.mq.edu.au/scnsw; and http://www.law.mq.edu. au/sctas. The former site contains many hundreds of cases decided in New South Wales between 1824 and 1838, while the latter contains Van Diemen's Land cases beginning in 1824
139. Charles Bateson, The Convict Ships, 1787-1868 (Glasgow: Brown and Ferguson, 1959), chap. 2
140. and see Alan Frost, Botany Bay Mirages: Illusions of Australia's Convict Beginnings (Melbourne: Melbourne University Press, 1994), chap. 6 at 112 especially
141. Hundreds of voyages: see the appendices in Bateson, The Convict Ships. Appointment of superintendents on board ship: see (1815) 55 Geo. 3, c. 156, s. 14; (1816) 56 Geo. 3, c. 27
142. Atkinson, "Free-Born Englishman," 108
143. See, for example, Bruce Kercher, "A Convict Conservative: George Crossley and the English Legal Tradition," Law in Context 19 (1998): 17
144. Atkinson, "Free-Born Englishman," 109
145. Alan Atkinson, The Europeans in Australia: A History (Melbourne: Oxford University Press, 1997), 1: 69-70
146. See Barrie Dyster, "Public Employment and Assignment to Private Masters, 1788-1821," in Convict Workers: Reinterpreting Australia's Past, ed. Stephen Nicholas (Cambridge: Cambridge University Press, 1988), chap. 9
147. Atkinson, "The First Plans," 38-40
148. Hirst, Convict Society, 37
149. Atkinson, Europeans, 200-201, 210
150. Former convicts: see John T. Bigge, Report of the Commissioner of Inquiry, on the Judicial Establishments of New South Wales, and Van Diemen's Land (1823; reprinted, Adelaide: Libraries Board of South Australia, 1966 [hereafter Bigge, Judicial]), chap. 3
151. See Hirst, Convict Society, 83, 206-7
152. John Ritchie, The Evidence to the Bigge Reports (Melbourne: Heinemann, 1971), 7-9
153. On the assignment board, see Barton v. Parry (No 2) (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/barton-v-parry-no-2-1834.htm
154. Brian H. Fletcher, Ralph Darling: a Governor Maligned (Melbourne: Oxford University Press, 1984), 124-26
155. Shaw, Convicts and the Colonies, 196
156. See also Regulations for the Assignment of Male Convict Servants, in Australian, 19 May 1835
157. Patronage: Roger Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria (1863; reprinted, Sydney: Sydney University Press, 1974), 133-34
158. On the method of assigning convicts before then, see John T. Bigge, Report of the Commissioner of Inquiry into the State of the Colony of New South Wales (1822; reprinted, Adelaide: Libraries Board of South Australia, 1966, hereafter Bigge, Colony), 18-20
159. See Hazel King, Richard Bourke (Melbourne: Oxford University Press, 1971), 145-46, 206
160. Cable v. Sinclair, July 1788, State Records of New South Wales, 2/8147
161. For studies of this case, see Kercher, Debt, Seduction, xviii-xix, 52-53
162. Neal, The Rule of Law, 1-7
163. On this practice, see Grace Karskens, The Rocks: Life in Early Sydney (Melbourne: Melbourne University Press, 1998), 176
164. Stephen Nicholas, "The Care and Feeding of Convicts," in Convict Workers, ed. Nicholas, chap. 12
165. Bigge, Colony, 74-98. The latter is famous for its attacks on the rehabilitation policy of Governor Macquarie, including his appointments of some former convicts to the magistracy
166. Crossley v. Smyth, Wentworth and Cleary (1803), in Phillip G. King, Letter Book:Legal: Correspondence with Judge Advocates, Reports of Appeals, etc, 1800-1806, vol. 4, Mitchell Library, A2019, 281
167. For an example of a ticket of leave, see R. V. Badderly and Howard (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/r-v-badderly-and- howard-1828.htm
168. Robert Hughes, The Fatal Shore: A History of the Transportation of Convicts to Australia, 1787-1868 (London: Collins Harvill, 1987)
169. For more measured analyses, see for example Karskens, The Rocks
170. Hirst, Convict Society
171. Shaw, Convicts and the Colonies
172. Castles, Australian Legal History, 112
173. citing Bigge, Judicial, 7
174. Currey, Forbes, 33
175. On Bigge, see Hirst, Convict Society, chap. 3
176. Bigge had a greater impact on Van Diemen's Land than New South Wales: see Stefan Petrow, "Policing in a Penal Colony: Governor Arthur's Police System in Van Diemen's Land, 1826-1836," Law and History Review 18 (2000): 351-95
177. Bigge, Judicial, 7
178. Petition of Emancipated Colonists, enclosure in Macquarie to Bathurst, October 1821, HRA, series 1, vol. 10, 549-56; and see Macquarie to Bathurst, 351-53, and enclosures, 353-64 (which include the formal records of Eagar v. Field). See Castles, Australian Legal History, 112-14
179. Currey, Forbes, 32-34
180. Bigge, Judicial, 9
181. Bigge, Judicial, Ibid., 9-10
182. See Kercher, "A Convict Conservative"
183. Castles, Australian Legal History, 106-10
184. Hirst, Convict Society, 116, 156-57
185. and see In re Roberts and Williams (1838), http://www.law.mq.edu.au/ scnsw/Cases1838-39/html/in-re-roberts-and-williams-18.htm
186. (1823) 4 Geo. 4, c. 96, ss. 34, 35; repeated by (1828) 9 Geo. 4, c. 83, ss. 32, 33. This was recommended by Francis Forbes: see "Heads of Points for Consideration" 1823, in HRA, series 4, vol. 1, 417-18. On the interpretation of these provisions, see R. V. Simms (1831), http://www.law.mq. edu.au/scnsw/Cases1831-32/html/r-v-simms-and-others-1831.htm
187. R. V. O'Brien (1831), http://www.law.mq.edu.au/scnsw/Cases1831-32/html/r- v-o-brien-and-others-1831.htm
188. R. V. Smith (1831), http://www.law.mq.edu.au/scnsw/Cases1831-32/html/r-v- smith-1831.htm
189. R. V. Raine, Lee and Kemp, 1828, http://www.law.mq.edu.au/scnsw/ Cases1827-28/html/r-v-raine-lee-and-kemp-1828.htm
190. In the estate of Dempsey (1838), http://www.law.mq.edu.au/scnsw/ Cases1838-39/html/in-the-estate-of-dempsey-1838.htm
191. See Castles, Australian Legal History, 114
192. R. V. Murphy and Sullivan, 1824, http://www.law.mq.edu.au/scnsw/html/r-v- murphy-and-sullivan-1824.html
193. MacDonald v. Levy (1833), http://www.law.mq.edu.au/scnsw/Cases1833-34/ html/macdonald-v-levy-1833.htm
194. See F. Forbes, "Summary of the Law ... with regard to Persons who have been Adjudged Guilty of Crimes," 1 January 1823, in HRA, series 4, vol. 1, 419-22
195. R. V. Cable (1826), http://www.law.mq.edu.au/scnsw/html/r-v-cable-1826. htm
196. See also Hart v. Rowley (1825), http://www.law.mq.edu.au/scnsw/html/hart- v-rowley-1825.htm
197. R. V. Baker (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/r-v- baker-1828.htm
198. Watkins v. Solomon (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/ watkins-v-solomon-1834.htm
199. On the legal status of the indent and the consequences of an error in it, see Hogan v. Hely (1831), http://www.law.mq.edu.au/scnsw/Cases1831-32/html/ hogan-v-hely-1831.html
200. and see Cooper v. Clarkson (1831), http://www.law.mq.edu.au/scnsw/ Cases1831-32/html/cooper-v-clarkson-1831.html
201. R. V. Ross, 1838, http://www.law.mq.edu.au/scnsw/Cases1838-39/html/r-v- ross-1838.htm
202. Doe dem Cotton v. Farrell (1847) 1Legge 408
203. Doe dem Tugwell v. Farrell (1847) 1 Legge 399
204. Septon v. Cobcroft (1833), http://www.law.mq.edu.au/scnsw/Cases1833-34/ html/septon-v-cobcroft-1833.htm (Forbes and Burton in the majority, Dowling in dissent)
205. R. V. Geeson, Herbert and Welsh (1828), http://www.law.mq.edu.au/scnsw/ Cases1827-28/html/r-v-geeson-herbert-and-welsh-.htm
206. See Belcher v. Deneen (1832), http://www.law.mq.edu.au/scnsw/Cases1831- 32/html/belcher-v-deneen-1832.htm
207. See also R. V. Redfern and Wells (1827), http://www.law.mq.edu.au/scnsw/ Cases1827-28/html/r-v-redfern-and-wells-1827.htm
208. If another witness was available, the judges asked the condemned person to stand aside. See R. V. Griffiths (1826), http://www.law.mq.edu.au/scnsw/html/ r-v-griffiths-1826.htm
209. Mutiny: R. V. Douglas and others (1834), http://www.law.mq.edu.au/scnsw/ Cases1834/html/r-v-douglas-and-others-1834.htm
210. Piracy: see R. V. Flanagan and others (1827), http://www.law.mq.edu.au/ scnsw/Cases1827-28/html/r-v-flanagan-et-al-1827.htm
211. R. V. Walton and others (1827), http://www.law.mq.edu.au/scnsw/Cases1827- 28/html/r-v-walton-et-al.-1827.htm
212. Preference of death: see for example R. V. McDonnel and Miller (1832), http://www.law.mq.edu.au/scnsw/Cases1831-32/html/r-v-mcdonnel-and-miller-1832. htm
213. R. V. Lacey and others, in Tasmanian, 14 December 1827
214. R. V. Donovan (1824), http://www.law.mq.edu.au/scnsw/html/r-v-donovan- 1824.html
215. R. V. Vials (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/r-v- vials-1834.htm
216. R. V. Jeffries (1835), http://www.law.mq.edu.au/scnsw/cases1835-36/html/ r-v-jeffries-1835.htm
217. R. V. M'Allister and Wilson, in Australian, 7 March 1828
218. R. V. Gardener and Yems (1829), http://www.law.mq.edu.au/scnsw/Cases1829- 30/html/r-v-gardener-and-yems-1829.htm
219. See also R. V. Dwyer, Kinnear, Madden and Blewit (1825), http://www.law.mq.edu.au/scnsw/html/r-v-dwyer-kinnear-madden-and.htm
220. R. V. Farrell, Dingle and Woodward (1831), http://www.law.mq.edu.au/ scnsw/Cases1831-32/html/r-v-farrell-dingle-and-woodwa.htm
221. See Currey, Forbes, 462-64
222. Castles, Australian Legal History, pp. 200, 500, 503, 507, 528
223. John M. Bennett, The Lives of the Australian Chief Justices: Sir James Dowling (Sydney: Federation Press, 2001), chap. 3
224. R. V. Dick and Jasper (1829), http://www.law.mq.edu.au/scnsw/Cases1829- 30/html/r-v-dick-and-jasper-1829.htm
225. See also his shift from R. V. Ballard (1829), http://www.law.mq.edu.au/ scnsw/Cases1829-30/html/r-v-ballard-or-barrett-1829.htm
226. R. V. Murrell (1836), http://www.law.mq.edu.au/scnsw/cases1835-36/html/r- v-murrell-and-bummaree-1836.htm, concerning the court's jurisdiction over clashes among Aborigines
227. Therry, Reminiscences, 203-5
228. Burton: R. V. McCabe (1833), http://www.law.mq.edu.au/scnsw/Cases1833-34/ html/r-v-mccabe-1833.htm
229. R. V. Palmer (1838), http://www.law.mq.edu.au/scnsw/Cases1838-39/html/r- v-palmer-1838.htm
230. and see R. V. Nicholls (1837), http://www.law.mq.edu.au/scnsw/Cases1836- 37/html/r-v-nicholls-1837.htm
231. R. V. Blackhall, Martin and Watkins (1838), http://www.law.mq.edu.au/ scnsw/Cases1838-39/html/r-v-blackhall-1838.htm
232. Forbes: R. V. Ryan, Steel, McGrath and Daley (1832), http://www.law.mq. edu.au/scnsw/Cases1831-32/html/r-v-ryan-steel-mcgrath-and-d.htm
233. Willis: R. V. Humphreys, in Sydney Herald, 3 November 1840
234. By 1833, Governor Bourke thought that the new majority on the court would either revert to the common law, or recommend a new colonial act on the subject (Bourke to Goderich, 18 March 1833, HRA, series 1, vol. 17, 50-51). In the meantime, convict evidence continued to be admitted into evidence: see the peculiar R. V. Harris and Piesnell (1832), http://www.law.mq.edu.au/scnsw/ Cases1831-32/html/r-v-harris-and-piesnell-1832.htm (evidence admitted because defendant also a convict?)
235. R. V. Cavenagh (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/r-v- cavenagh-chesterfield-and.htm
236. Atkinson, "Free-Born Englishman," 108 especially
237. See Sydney Gazette, 4 April 1828
238. R. V. Cunningham, Oates and McLellan (1833), http://www.law.mq.edu.au/ scnsw/Cases1833-34/html/r-v-cunningham-1833.htm
239. and see R. V. Fellows and Clayton (1835), http://www.law.mq.edu.au/scnsw/ cases1835-36/html/r-v-fellows-and-clayton-1835.htm
240. R. V. Hancock (1835), http://www.law.mq.edu.au/scnsw/cases1835-36/html/r- v-hancock-1835.htm
241. R. V. Gawenlock (1838), http://www.law.mq.edu.au/scnsw/Cases1838-39/html/ r-v-gawenlock-1838.htm
242. See contra R. V. Barker (1830), http://www.law.mq.edu.au/scnsw/Cases1829- 30/html/r-v-barker-1830.htm, Dowling J holding that a prisoner had sufficient possession of goods to sustain an information (charge) of stealing
243. See R. V. Laing (1835), http://www.law.mq.edu.au/scnsw/cases1835-36/html/ r-v-laing-1835.htm on the impact of attaint on charges of fraud
244. See also Anonymous (No. 1) (1830), http://www.law.mq.edu.au/scnsw/ Cases1829-30/html/anonymous-no-1-1830.htm (court refused to require allegedly attainted plaintiffs to give security for costs before actions taken)
245. but see contra, Gilroy v. Mannix (1833), http://www.law.mq.edu.au/scnsw/ Cases1833-34/html/gilroy-v-mannix-1833.htm
246. See also Chandler v. Eckford (1830), http://www.law.mq.edu.au/scnsw/ Cases1829-30/html/chandler-v-eckford-1830.htm (payee of promissory note executed for felony before it was paid and his assignees held able to sue on it)
247. Smithers v. Hodghen (1831), http://www.law.mq.edu.au/scnsw/Cases1831-32/ html/smithers-v-hodghen-1831.htm (plaintiff pays deposit for purchase of land, then is transported to Norfolk Island for forgery, held able to recover the deposit)
248. Conolly v. Flanagan (1834), http://www.law.mq.edu.au/scnsw/Cases1834/ html/conolly-v-flanagan-1834.htm (recovery of fees for medical attendance refused, when fees incurred before pardon granted)
249. and see Polack v. Josephson (1825), http://www.law.mq.edu.au/scnsw/html/ polack-v-josephson-1825.htm
250. Gannon v. Jobbins (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/ html/gannon-v-jobbins-1828.htm
251. Convict Assignment Opinion (1827), http://www.law.mq.edu.au/scnsw/ Cases1827-28/html/convict-assignment-opinion-18.htm
252. Tunnicliff v. Barrett (1833), http://www.law.mq.edu.au/scnsw/Cases1833- 34/html/tunnicliff-v-barrett-1833.htm
253. Williams v. Hanson (1835), http://www.law.mq.edu.au/scnsw/cases1835-36/ html/williams-v-hanson-1835.htm
254. R. V. Gallagher (1837), http://www.law.mq.edu.au/scnsw/Cases1836-37/html/ r-v-gallagher-1837.htm
255. R. V. Davis (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/r-v- davis-1834.htm
256. In re Mitchell, in Sydney Herald, 29 March 1839, per Willis J
257. This practice had been in force since about 1825. See Sydney J. Butlin, Foundations of the Australian Monetary System, 1781-1851 (Sydney: Sydney University Press, 1968), 410-19
258. For Van Diemen's Land, see Government Order No. 35, 4 June 1828, in Hobart Town Gazette, 14 June 1828
259. Atkinson, "Free-Born Englishman," begins with a discussion of this particular issue
260. In re White, in Sydney Herald, 20 May 1840
261. The Crown also waived its right to forfeiture after the convict died (In re Hussey and McGrath [1828], http://www.law.mq.edu.au/scnsw/Cases1827-28/html/ in-re-hussey-and-mcgrath-1828.htm)
262. and on the revocation of a ticket of leave (Therry, Reminiscences, 320-21)
263. On which, see Hendrik Hartog, Man and Wife in America: A History (Cambridge: Harvard University Press, 2000), chap. 4
264. Hirst, Convict Society, 80
265. For the government's refusal to do this, see, for example, R. V. Lookaye alias Edwards (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/in-re- lookaye-alias-edwards-1.htm
266. Blackstone, Commentaries, 1st ed., vol. 1, chap. 15
267. Doe dem Clark v. Smithers (1834), http://www.law.mq.edu.au/scnsw/ Cases1834/html/doe-dem-clarke-v-smithers-183.htm
268. McNamarra v. Wilson (1834), http://www.law.mq.edu.au/scnsw/Cases1834/ html/mcnamara-v-wilson-1834.htm
269. Beale v. Raine (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/ beale-v-raine-1829.html
270. American masters of assigned servants sometimes did the same: Daniels, "Gresham's Laws," 222, 224
271. In re Cave (1826), http://www.law.mq.edu.au/scnsw/html/in-re-cave-1826. htm
272. and see Lyons v. Cave (1827), http://www.law.mq.edu.au/scnsw/Cases1827- 28/html/lyons-v-cave-1827.htm
273. Dowling, Select Cases, vol. 2, State Records of New South Wales, 2/3462, p. 105
274. See also Kettle v. Stubbs (1838), http://www.law.mq.edu.au/scnsw/ Cases1838-39/html/kettle-v-stubbs-1838.htm
275. Green v. Woodroffe (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/ html/green-v-woodroffe-1828.htm
276. Wild v. Driver (1837), http://www.law.mq.edu.au/scnsw/Cases1836-37/html/ wild-v-driver-1837.htm
277. Wild v. Driver (1838), http://www.law.mq.edu.au/scnsw/Cases1838-39/html/ wild-v-driver-1838.htm
278. On the inheritance rights of a wife of a ticket of leave holder, see R. V. Smith, Australian, 6 August 1839
279. Blackstone, Commentaries, 1st ed., vol. 1, 432
280. Atkinson, "Free-Born Englishman," 108
281. See Murray to Darling, 30 August 1828, Mitchell Library, A 746. As discussed below, this changed in 1828: see 9 Geo. 4, c. 83, s. 9. See also Bathurst to Darling, 10 February 1827, HRA, series 1, vol. 13, 115-16. For the background to this, see the footnotes in Convict Assignment Opinion, (1827), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/convict-assignment-opinion-18. htm
282. For one version of this controversy, see Shaw, Convicts and the Colonies, 231-33
283. Australian, 3 August 1827
284. R. V. Wardell (No. 2) (1827), http://www.law.mq.edu.au/scnsw/Cases1827- 28/html/r-v-wardell-no-2-1827.htm. (The jury disagreed, so the prosecution was abandoned.)
285. See In re Harris (1827), http://www.law.mq.edu.au/scnsw/Cases1827-28/ html/in-re-harris-1827.htm
286. Forbes to Darling, 1 August 1827, Chief Justice's Letter Book, State Records of New South Wales, 4/6651, 104
287. There were many others, including the interpretation of colonial legislation, declarations that some of the colonial acts were repugnant to English law, the judges' supposed sympathy for the emancipist faction, and the appointment of a new registrar of the Supreme Court. See the footnotes in R. V. Howe (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/r-v-howe-1828.htm
288. Ex parte Raine (No 1) (1828), http://www.law.mq.edu.au/scnsw/Cases1827- 28/html/ex-parte-raine-no-1-1828.htm; and the cases listed in http://www.law.mq.edu.au/scnsw/html/subject-index-1824-1836-d-m.htm under the heading "Forbes C. J. and Governor Darling, conflict between. "
289. and Fletcher, Ralph Darling
290. Fletcher, Ralph Darling, Ibid., 4-8. A few days earlier, Darling told Huskisson that Forbes was "greedy of power, almost beyond example... . He has further done every thing in his power to embarrass the Government by his strained interpretation of the Laws with respect to the Convict Population, and by his open countenance even in Court of Dr. Wardell and others, whose hostility to the Government has been unbounded" (26 February 1828, HRA, series I, vol. 13, 813)
291. John M. Bennett, The Lives of the Australian Chief Justices: Sir Francis Forbes (Sydney: Federation Press, 2001), chap. 1. For Forbes's response, see Forbes to Wilmot Horton, 7 March 1828, Catton Papers, Australian Joint Copying Project, Reel M791; and see Forbes to Wilmot Horton, 28 December 1828
292. On Coke, see Alan Cromartie, Sir Matthew Hale, 1609-1676: Law, Religion and Natural Philosophy (Cambridge: Cambridge University Press, 1995), 25-26
293. Blackstone, Commentaries, 1st ed., vol. 1, 87
294. and see Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986), chap. 1
295. R. V. Edmund Gahan (1817) discussed in Forbes's report to the island's governor, 26 October 1817, Letter Books of the Colonial Secretary's Office, Provincial Archives of Newfoundland, GN/2/1/28, Vol. 28, 1817-1818, 49
296. Forbes to Horton, 6 February 1825, Catton Papers, Australian Joint Copying Project, Reel M791. The analogy between convicts and slaves was often made and is the subject of some debate among historians in Australia: see Hirst, Convict Society, chap. 2
297. Neal, The Rule of Law, chap. 2
298. Stephen Nicholas "The Convict Labor Market" in Convict Workers, ed. Nicholas, chap. 8
299. and Dyster, "Public Employment," Convict Workers, ibid., chap. 9
300. Neal is mistaken at 36 when he says that the service of convicts remained the property of me governors, who merely licensed masters to use it. Nicholas makes the same mistake at 112. On the ill-treatment by some masters, see See R. V. Hitchcock and others (1833), http://www.law.mq.edu.au/scnsw/Cases1833-34/ html/r-v-hitchcock-and-others-1833.htm
301. R. V. Benson and others (1825), http://www.law.mq.edu.au/scnsw/html/r-v- benson-cogan-sprole-rod.htm
302. R. V. McGregor and Moloney (1834), http://www.law.mq.edu.au/scnsw/ Cases1834/html/r-v-mcgregor-and-maloney-1834.htm
303. In re Jane New (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/ in-re-jane-new-1829.html
304. Bennett, Dowling, chap. 2
305. The other great controversy between Forbes and Darling concerned the governor's powers to punish convicts. This was at the heart of the Sudds and Thompson controversy, on which see Transportation Opinion (1826), http://www.law.mq.edu.au/scnsw/html/transportation-opinion-1826.htm
306. This was later repaired by statute. See the judgment of Willis J. in Walker v. Hughes, Australian, 25 June 1839
307. See also Karskens, The Rocks, 91
308. For a contrary view, see Fletcher, Ralph Darling
309. This is one of the great themes of early New South Wales history. On these issues, see, for example, Brendan Edgeworth, "Defamation Law and the Emergence of a Critical Press in Colonial New South Wales (1824-1831)," Australian Journal of Law and Society 6 (1990): 50-82
310. Neal, The Rule of Law
311. and Bennett, Lives: Dowling, chap. 4, all of which take a legal view of the events
312. On the call for impeachment, see Ex parte Wentworth, in re Mansfield (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/ex-parte-wentworth-in- re-mans.html
313. See Edgworth, "Defamation Law"
314. In re Tyler (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/in- re-tyler-r.-v-rossi-and-oth.htm
315. For the withdrawal of labor from Hayes, the editor of the Australian, see In re Hayes (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/in-re- hayes-1829.html
316. Hayes v. Hely (1830), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/ hayes-v-hely-1830.htm
317. See R. V. Hall (Nos. 2, 3, 4, 6, 7 and 8) (1829), http://www.law.mq.edu. au/scnsw/Cases1829-30/html/1829.htm
318. Hall v. Hely (1830), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/ hall-v-hely-1830.htm
319. See attachments to Darling to Murray, 20 May 1829, HRA, series 1, vol. 14, 762-77 (judgment at 765-71). This was not the first time he took such a stance: see Bennett, Lives: Forbes, 35-37
320. Twiss, 1 December 1829, Mitchell Library, A 742
321. Murray to Darling, 30 January 1830, HRA, series 1, vol. 15, 346-53. See also Murray to Darling, 6 April 1830, HRA, series 1, vol. 15, 391. On the consequences of the Sydney Gazette's commentary on this, see R. V. Mansfield (No. 2) (1830), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/r-v-mansfield- no-2-1830.htm: the Supreme Court refused to proceed in contempt against the editor for his hostile view of the court's decision in Jane New's Case
322. On prerogative appeals, see Lord v. Wentworth (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/lord-v-wentworth-1829.htm
323. See also the view of Burton J. in the notes to Lyons v. Morgan (1837), http://www.law.mq.edu.au/scnsw/Cases1836-37/html/lyons-v-morgan-1837.htm
324. See Cain v. Broomfield (1833), http://www.law.mq.edu.au/scnsw/Cases1833- 34/html/cain-v-bloomfield-1833.html
325. For a similar Van Diemen's Land case, see R. V. Moring (1825), http://www.law.mq.edu.au/sctas/html/r-v-moring-1825.htm
326. See also Somerville v. Hosking, Sydney Herald, 26 June 1839
327. On the removal of convicts, see also Lamb v. Brenan (1837), http://www.law.mq.edu.au/scnsw/Cases1836-37/html/lamb-v-brenan-and-holden-1837. htm
328. A master could not sue his servant for negligence: Crawford v. Cullen (1830), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/crawford-v-cullen-1830. htm
329. See Hirst, Convict Society, 76-77
330. Shaw, Convicts and the Colonies, chap. 12
331. On the "normalisers" in convict historiography, see Marion Quartly, "Convict Histories," in Oxford Companion to Australian History, ed. Graeme Davison, Stuart Macintyre, and John Hirst (Melbourne: Oxford University Press, 1998), 154
332. See Hirst, Convict Society, chap. 4
333. Bruce Kercher, An Unruly Child: A History of Law in Australia (Sydney: Allen and Unwin, 1995), 40-42
334. Smith, Colonists in Bondage, 265
335. Ekirch, Bound for America, 147
336. and see An Act concerning Servants and Slaves 1705 (Virginia), section 21
337. See Michael Quinlan, "Regulating Labor in a Colonial Context," Australian Historical Studies 111 (1998): 303-4
338. citing Neal, The Rule of Law, 133-37
339. Francis Forbes, "Heads of Points for Consideration" 1823, in HRA, series 4, vol. 1, 417, recommended that the former illegal sentences now be given force of law and the magistrates indemnified. This did not prevent litigation against them, as to which see, for example, R. V. Dawson (1827), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/r-v-dawson-1827.htm
340. and see M'Arthur v. Hill and Hall (1826), http://www.law.mq.edu.au/scnsw/ html/m-arthur-v-hill-and-hall-1826.htm
341. R. V. Howe (1826), http://www.law.mq.edu.au/scnsw/html/r-v-howe-1826.htm
342. R. V. Hall (No. 3) (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/ html/r-v-hall-no-3-1828.htm
343. See also Hirst, Convict Society, 58-6, 175-76
344. Shaw, Convicts and the Colonies, 193-94
345. See Bruce Kercher, "Resistance to Law under Autocracy," Modern Law Review 60 (1997): 779-97
346. Atkinson, "Free-Born Englishman," especially 111-12