Bruce Kercher

FORUM: THE "NEW" AUSTRALIAN LEGAL HISTORY

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

"I sentence you," says the Judge, "but to what I know not—perhaps to storm and shipwreck—perhaps to infectious disorders perhaps to famine—perhaps to be massacred by savages — perhaps to be devoured by wild beasts. Away, take your chance; perish or prosper, suffer or enjoy; I rid myself of the sight of you, the ship that bears you away saves me from witnessing your sufferings, I shall give myself no more trouble about you."

For over 150 years from the early eighteenth century, convict transportation was a primary method of punishing serious crime in Britain and Ireland.¹ Convicts were first sent to the colonies in North America and the Caribbean and then to three newly established Australian colonies on the other side of the world. Conditions were very different between the two locations, yet the fundamental law of transportation remained the same for decades after the process began in Australia.

Before the American Revolution, about 50, 000 convicts were transported from Britain and Ireland to the American colonies.² After the revolutionary war put a rude end to that, the British government eventually found a new location for its unwanted criminals: the colonies that eventually united to become Australia in 1901. Between 1788 and 1868, another 160, 000 British and Irish criminals were forced to take a much longer voyage to New South Wales, Van Diemen's Land, and Western Australia.³

Today, there is much more interest in Australia about convict transportation than there is in America. Dozens of books have been published about Australian convicts, but few about their transportation to America.⁴ The same difference in focus is evident in legal history, as can be seen by two general legal histories published in the 1980s. Alex Castles's An Australian Legal History⁵ had one chapter and dozens of other references on convicts and the law, while the second edition of Lawrence Friedman's A History of American Law⁶ had only one sentence specifically on convict transportation. Castles apparently believed that it was not possible to provide a comprehensive legal history of Australia without extensive reference to convicts, but Friedman thought very differently about America.⁷

Most of the books and articles on convict transportation to the Australian colonies say little about the law, beyond the bloody details of convict discipline. Magistrates could order disobedient convicts in New South Wales and Van Diemen's Land to be flogged or sent to places of secondary transportation such as the infamous Norfolk Island and Macquarie Harbour. Others were sentenced to work in road gangs, where they lived in the bush and worked in leg irons for all the daylight hours except on Sundays. Many convict women were confined in the penal sections of Female Factories.⁸ We should be careful not to place too much emphasis on the punitive aspects of these penal colonies. Convicts who committed no further offenses in the colonies were not supposed to be subject to these penalties. They had other problems, however, because the common law restricted the legal rights of condemned felons (attaint), and most of them were assigned to work for private masters. Little has been written about the law of attaint and private assignments in the Australian colonies.⁹ Australians' passionate interest in convicts has not extended far into the small ranks of the country's legal historians.

The purpose of this article is to examine two crucial legal questions: whether transported convicts were attainted as felons, and whether their masters had a property right to their services. It concentrates on New South Wales because the case law is most readily accessible there. These questions are also relevant to the American colonies, but there was one great difference between them and New South Wales. Unlike the American colonies, New South Wales was a penal colony, a place of close government supervision of convicts. Yet it operated under the same legislation as that in force during transportation to America.

The Transportation Acts

In 1718, the British Parliament passed the most significant of its many transportation acts.¹⁰ Despite amending and supplementary legislation in later years, its basic principles were in force for the rest of the eighteenth century in both America and the new colony founded in 1788, New South Wales. Thousands of British and Irish convicts crossed the Atlantic and Indian Oceans under this statute, heading in opposite directions to lives of forced work. Transportation did not begin with this act,¹¹ but it regularized it and led to a great increase in the number of convicts crossing the seas.

The 1718 Transportation Act covered two kinds of offenses, those that fell within the benefit of clergy and those that did not. In each case, the prisoner was convicted of a capital felony. However, the benefit of clergy effectively became, over time, an exemption from capital punishment for certain lesser felonies. Lay people were able to use it only once and were burned on the base of the left thumb to show that they had done so. They were also punished by whipping or imprisonment.¹² This was one of several devices to lessen the horrors of capital punishment without formally abolishing it. When a court found a person guilty of a clergyable offense, the Transportation Act of 1718 gave it the discretion to transport the prisoner to America for seven years instead of ordering a burning or flogging. A judge could also order the transportation of those found guilty of petty larceny, which was not even nominally capital.¹³ This direct sentence of transportation was the first kind of transportation under the 1718 Act.

The second kind applied to those guilty of non-clergyable felonies, that is, the more serious felonies for which people could still be executed. Through Crown mercy, however, they could be transported instead of hanged as they were initially sentenced to do.¹⁴ After their conviction and formal sentence of death, the king had discretion to exercise mercy by pardoning these prisoners, upon condition of their transportation to America for fourteen years or such other period as he determined. The completion of the term of transportation had the effect of an unconditional pardon for the original crime. Later legislation created new crimes, but it retained the distinction between transportation through direct sentencing, and transportation as a condition of a pardon from a sentence of death.¹⁵

The second kind of transportation, under which the king's pardon was conditional on transportation, was a continuation of the seventeenth century system. According to Alan Atkinson, the 1718 Act made a major change when it provided for the addition of a direct sentence of transportation. No longer could it be argued that all transported convicts had entered into a tacit agreement with the Crown to accept exile in place of a death sentence. Nor could it be claimed that they had all been pardoned, conditionally or otherwise, when they were allowed the benefit of transportation instead of death. This had implications in both America and Australia, as the two meanings of transportation would be in contest for another century or more. In the older form, transportation was merely exile following a pardon, while in the newer it became closely monitored punishment, with compulsory service attached. This ambiguity of status was linked, Atkinson argues, to ambiguities about the empire itself. The early eighteenth-century notion of a weak empire with a scattering of power gradually gave way to a more authoritarian one in which power and law were directed from London.¹⁶ As shown below, the tensions between these competing visions of transportation and of the nature of the empire were also evident in New South Wales right up to the abolition of transportation to that colony in 1840.

The operational provisions of the 1718 Transportation Act firmly linked both forms of convict transportation to indentured labor.¹⁷ The act provided for merchants to enter into contracts to carry the convicts to America, under which they gained a property interest in the convicts' services. In America, the merchants sold the labor of the convicts just as they sold the labor of indentured workers. The confusion between convict transportation and indentured labor is also shown by section 5 of the 1718 Transportation Act, which provided for the transportation of unconvicted people between fifteen and twenty-one years of age who agreed to travel to America.¹⁸ The preamble to the act stated that one of its purposes was to solve the problem of the lack of servants in the American colonies.

None of the colonies in America or the West Indies was a penal colony in the sense that the Australian colonies were. Once the convict went aboard the contracting merchant's ship, the British government had little further interest in her or him, so long as the person did not return early to Britain or Ireland (the penalty for which was death).¹⁹ The preamble to a 1766 act that extended the 1718 Transportation Act to Scottish convicts²⁰ revealed the British Parliament's plan. It stated that many dangers and inconveniences followed when transported convicts were set loose in the colonies without anyone holding property or another interest in their services. The assumption was that the convict's master would restrain her or him from committing new crimes in the colony. The government's aim was that once convicts left Britain or Ireland, control over them would be through the self-interested profit motive, rather than by public regulation at public expense. This suited Britain's self-perception as a place of liberty as much as it did its treasury. There was no need to build penitentiaries or convict barracks nor even for the government to charter private vessels. The whole scheme of transportation to North America may have cost the British government £200,000,²¹ but that is an average of only £4 per head. The British were proud that its form of exile was not the imprisonment at hard labor favored by other European governments.²² Any lack of liberty took place out of sight, over the seas.

Transportation to the American Colonies

The government paid some of the shipping contractors an initial fee of £3 per convict (later rising to £5), while the contractors also gained the proceeds of the sale of the convict's labor.²³ Once they arrived in America, the contractors' agents sold the convicts like animals or slaves, sometimes on the ship, sometimes on a wholesale basis, and sometimes after being moved around like goods for sale.²⁴ As it was only their labor that was sold, and for a fixed period, the convict's value was less than that of slaves, but since it was for a longer period, it was more than that of indentured servants. Women fetched a lower price than men.²⁵ The typical price range for convicts was £8 to £20.²⁶ The contractors were supposed to take all the convicts offered by the courts in Britain or Ireland, putting them at risk of being stuck with those of lower value. There was no such risk in the carriage of slaves and indentured servants, among whom they could select whom to carry.²⁷ It is likely, however, that some merchants quietly released un-profitable convicts in Britain or Ireland rather than sending them on to America as they were legally required to do.²⁸

The 1718 Transportation Act did not explicitly require that convicts be put to labor, only that they be taken out of Britain or Ireland for the period fixed by the courts or the Crown in its mercy. The sale of convict labor was a consequence of the merchants' ownership of their services, not a direct requirement of the statutory scheme. Wealthy convicts were able to pay for cabins during the voyage²⁹ and once they arrived in America, they could buy their own liberty. Convicts who could pay only part of the price the merchant expected were required to work for only part of the period of transportation.³⁰ For these convicts, transportation was simply compulsory exile for a period, fitting Atkinson's older model of transportation. This applied to both kinds of transportation, showing the uneasy blend between the two.

Virginia and Maryland took the greatest number of convicts, followed by Pennsylvania.³¹ The colonial legislatures tried to restrict transportation, but were unsuccessful in the face of the Parliament's clear intention in its favor under the 1718 Act, and the refusal of royal assent to some of these colonial acts.³² The reaction of some Americans is best shown by Benjamin Franklin's often quoted statement that in return for the British sending convicts, Americans could send rattle snakes back to Britain.³³

Convict servants were under tight control in the American colonies, but it did not differ much from that imposed on indentured laborers.³⁴ Discipline was enforced through whipping and the use of chains, although they could petition the courts for relief against excessive punishment or non-supply of food and clothing.³⁵ The penalty for running away was a whipping, plus an increase in the period of service, a multiple of the days missing.³⁶ The logic of masters having property in their convict servants' labor precluded the payment of wages to them. Indentured servants were entitled to freedom dues, property or money on completion of their period of service. This right was extended to and then denied convicts in Virginia.³⁷ Indentured servants were typically required to work for four years though the length varied from person to person, whereas 73 percent of convicts were required to work for seven years, 25 percent for fourteen years, and 2 percent for life.³⁸ During the course of the eighteenth century, the link between the length of the convict's sentence of transportation and the period of the contract of service was broken. No matter what the original sentence, all convicts came to be sold for seven-year terms of service.³⁹ Their labor was sold to cover the price of transportation, not to match the sentence imposed in England.

Atkinson argues that American colonial attitudes to convict rights and obligations changed in the middle of the eighteenth century. Before the 1740s convicts were seen principally as common indentured servants, but thereafter they were assimilated with slaves. Convicts in Virginia lost their rights to freedom dues in 1753, and the language of the legislative debates now referred to their sentences of transportation as punishment and to them as criminals under sentence. An act of 1748 prohibited them from giving evidence in court, by analogy with Africans, and another in the following year disqualified them from voting.⁴⁰ Despite that, there were many more similarities between indentured and convict servants than differences.

The most detailed analysis of the legal rights of American convicts was written by A. E. Smith, but it is less than satisfactory. Published in 1947, the book shows dated attitudes, such as the author's contentment that the subsequent lives of the convicts remains shrouded in mystery.⁴¹ His most useful chapter (chapter 11) tells of the "custom of the country," an American invention formed by a combination of the terms of the indenture between master and servant, the customary practices of the country, and colonial legislation. The custom of the country was a rich combination of law as practice and practice as law, the phrase sometimes being incorporated into colonial legislation.⁴² It covered entry into contracts, the discipline of convicts and indentured servants, and the obligations of masters. The chapter also states that when the courts were satisfied that a master had been abusive, they could end the contract of service or transfer the person to a new master. Servants could enter into contracts with their masters, but only when they appeared before a magistrate for endorsement. They could hold property, but they were not permitted to engage in trade. Nor could they marry without the consent of their masters. Any money they earned in their free time could be taken by the master.⁴³

In short, Smith argued, the labor of indentured and convict servants was the property of their masters. As a result, when a court ordered that the services be terminated, it often ordered the payment of compensation to the master.⁴⁴

The problem with this analysis is that in common with other historians,⁴⁵ Smith failed to distinguish the rights of convicts from those of indentured servants. He listed the freedom dues payable in each colony but did not say which colony allowed them to convicts. And what did the courts do when a convict's master was abusive? Did they order that the convict should be released from that master and become a free agent? If so, how did the convict order her or his affairs afterwards while still a transported convict but free of the obligation to undertake labor? In reverse, when a convict ran away, did magistrates order an extension of the period of service as happened to indentured servants? If so, some convicts may have been forced to stay longer in America than their original sentences required. The logic of a master holding a property right in a convict's services meant that there was no necessary connection between the length of transportation and the period actually served for a master, and Atkinson has shown that even from the time of the first sale at the ship side, the two were often not the same.⁴⁶

In running convicts together with indentured laborers, Smith was reflecting the attitudes of the eighteenth century. Although officials required certification of the arrival of convicts and that their origins, crimes, and places of incarceration be made available for inspection, convicts and indentured servants were treated alike for the most part.⁴⁷ Further research in court records is needed, however, focused on the differences rather than the similarities of convicts and indentured laborers. Two economic historians have worked on the differences between the two, but not legal historians.⁴⁸

The main problem with failing to distinguish between these groups is that at common law some convicts were subject to felony attaint. Attaint did not apply to all transported convicts, but only to those who had been sentenced to death and then received the king's conditional pardon of transportation. When felons were sentenced to death, Blackstone said, they became dead in law. At common law, they forfeited their goods to the Crown along with the profits to their freehold land. They had no right to acquire further property, sue in the courts, or give evidence in court.⁴⁹ Those guilty of treason and murder also lost all of their estates in land to the Crown, while those guilty of non-capital felony and other crimes that rendered a person infamous were merely disqualified from serving as a juror or witness in court without the other disabilities.⁵⁰

Civil death was of less significance if the person stayed in jail for just some days or weeks before being hanged. But if a pardon conditional on transportation meant that the felon remained attainted until the period of transportation expired, then he or she had to live in a shadowy legal world for fourteen years or even more. Blackstone stated that attaint followed people who were banished, by which he meant, presumably, that they remained attainted for the full period of their sentences of transportation.⁵¹ Not even the expiry of a sentence ended the attaint for some crimes, though it did for most.⁵²

If attaint followed convicts to America, then regardless of whether they remained in bound service for the whole period, they were unable in law to hold property or sue. Obtaining a magistrate's approval for entry into a contract was beside the point if the law of attaint applied. Attainted people were incapable at law of living an independent life. Ekirch's Bound for America and Smith's Colonists in Bondage, the two most important books on convict transportation to America, do not deal with this problem, although they do discuss a version of the rule against evidence by convicts. Ekirch states that in neither Virginia nor Maryland were convicts allowed to give evidence in court. They could, however, give evidence in cases involving other convicts (to prevent them from shielding one another at criminal trials). He cites colonial statutes for this rule, rather than the common law on attaint.⁵³

The law of attaint so far as it affected evidence by transported convicts was accepted as law in a Maryland court's decision of 1789, Clarke's Lessees v. Hall.⁵⁴ The plaintiff challenged the validity of a will that had been witnessed by a convict who had been transported in 1750. The court of appeals held that the plaintiff had to prove the witness's incompetence, noting that some offenses made a person infamous and unable to give evidence and others not. If the plaintiff failed to prove the nature of the crime for which the witness had been transported, the will would be valid. As we will see, the same device of requiring strict proof of attainted status was also used in New South Wales to avoid the consequences of attaint in unsuitable circumstances.

Smith recognized the common law origin of this evidentiary rule. But apparently he did not realize that attaint was applicable only to some of the transported convicts nor did he see the inconsistency between allowing capital felons to sue while refusing to hear their evidence.⁵⁵ Smith referred to the custom of the colony under which servants could sue in the courts, enter into contracts in the presence of magistrates, and hold property without trading. But this also contradicted the law of attaint. These rights were laid down, for instance, in a Virginia statute of 1705 (An Act concerning Servants and Slaves), without any distinction being drawn between convicts and other servants.

One real possibility is that the law of attaint was simply ignored in America apart from the question of convict evidence. While they were still serving their sentences, there was no practical chance for convicts to hold more than minimal property, and their masters had a right to seize their earnings under the custom of the country. Apart from evidence, the only situation in which attaint would have had a practical consequence was when a convict's period of service expired before the period of transportation ended. This might have happened through a court order against an abusive master, or if the convict managed to buy out the obligation of service. In both of those cases, some convicts would have had practical autonomy while common law attaint might still have applied in legal theory. If attaint applied only in its application to evidence and not the right to hold property and sue, then that was precisely the opposite to what happened in New South Wales.

The formal law of England might have been reconciled in one of several ways with what appears to have been the local practice concerning freed convicts. First, it might not have been difficult for a convict to hide his or her convict background and to pretend to be a former indentured laborer. Even if it were known that a servant was a convict, unless there was proof of a death sentence having been imposed, the person could not be treated as attainted. Or a court could refuse to give effect to the law of attaint, either by quietly ignoring it or by holding formally that it was not applicable to the conditions of a colony containing so many British and Irish convicts. The revolutionary Maryland constitution of 1776 declared in Article 16 that no law to attaint anyone of treason or felony ought to be made. This suggests that attaint was not enthusiastically received before the revolution.⁵⁶ (Alternatively, it may indicate that revolutionary Americans wished to distinguish their own liberality from the cruelty of their former British rulers.)

The formal law governing the reception of English law in the colonies allowed colonial courts great flexibility. It would have been quite consistent with the reception rules for a colonial court to hold that the English law of attaint did not apply in America. In the first edition of his Commentaries in 1765, Blackstone wrote that English law was the birthright of British subjects in settled colonies. He qualified this in later editions with the words that they received "only so much of the English law, as is applicable to their own situation and the condition of an infant colony."⁵⁷ The question of the reception of English law is easier to trace in the Australian colonies than in the American, as the Australian colonies were all assumed to be "settled" in a terra nullius, a land without owners or sovereigns. Parliament confirmed this theory by implication when it enacted section 24 of the Australian Courts Act, 1828, which stated that the Australian colonies were to receive English law "so far as the same can be applied" in the colonies.⁵⁸

Blackstone noted that many of the colonies in America had been acquired by conquest or cession rather than settlement and so did not automatically adopt the laws of England. When a colony was acquired by conquest or cession, its preexisting laws, if not infidel and against the laws of God, remained in force until changed by the king of England. If they were infidel, they were of no effect, and the king's judges were to decide according to natural equity until the king declared which laws were to apply.⁵⁹ Once the king declared that English law was to apply, there was little to distinguish a conquered from a settled colony.

The common law rule on reception differed from one American colony to another and from one period to the next. The charters establishing some of the American colonies stated that the colonial legislatures were required to pass only those laws that were not repugnant to the general laws of England. With that came the common law, though with considerable adaptation to colonial conditions.⁶⁰ After the charter period ended in Virginia and it became a Crown colony, attempts were made to make colonial law more consistent with that of England, but not very successfully.⁶¹ The picture is clearer only after the revolution. For example, the Maryland constitution of 1776 stated in Article 3 that the inhabitants of Maryland were entitled to the common law and statute law of England as "applicable to their local and other circumstances" plus other laws since made there and adopted in Maryland.⁶² Whatever the formal law on reception was during the colonial period, it is clear that the judges of the American colonies were inclined to pick and choose among the very many kinds of English law, rather than just accept it all without question, and that this process varied from colony to colony.⁶³ We will find that some judges of the more loyal Australian colonies took a similar pluralist approach.

Convict transportation to Maryland and Virginia was not a continuation of the imprisonment that they had suffered in Britain or Ireland before being placed on board ship. The punishment of transportation to America was essentially exile, to which was attached in practice a form of compulsory service modeled on the indentured labor that had been invented (or at least specifically adapted) in the American colonies. There was no close official surveillance nor special discipline. If, as seems likely, the law of attaint was ignored in the American colonies except for the evidence rule, then even the most serious criminals, those who had been sentenced to death, were in effect forced into exile for a fixed period. But otherwise they were in almost the same position as the indentured servants who had sailed to America from Britain, Ireland, and the rest of Europe. As Atkinson states, however, change was underway even before the revolutionary war. Convicts were beginning to be seen as criminals under punishment rather than exiles, and the British government was beginning to exercise tighter control over the colonies. At the same time, however, older notions of convict management, based on liberty after a conditional pardon, and of the pluralistic spread of power in the empire remained in the minds of many people. The tensions between these views were now transferred to the other side of the world.

Transportation to New South Wales and Van Diemen's Land

When Britain resumed the mass transportation of convicts after the American Revolution,⁶⁴ it chose a new location at the most distant possible location, New South Wales. This time there was no confusion between convicts and indentured servants, no way that a convict could disappear into existing towns and villages. Before the first convicts arrived in 1788, New South Wales was populated solely by its indigenous peoples, whom the British called Aborigines, peoples who had been there for tens of thousands of years. New South Wales had no indentured laborers, no preexisting plantation society with an eager demand for labor, no towns, roads, or farms. Nor were the climate, animals or trees at all familiar. The seasons were reversed (and many of the native plants flowered in mid-winter in any case), kangaroos and wallabies found two of their four legs to be mostly redundant, and evergreen angophoras and eucalypts grew in thin soil rather than familiar deciduous trees in rich soils. Instead of snow in January, there were wild storms in that month at the end of hot, humid days.

The first fleet of convicts left England in May 1787 and arrived at Sydney Cove in January 1788. Seven hundred and seventeen convicts landed, together with 273 free people, mainly members of the marines and their families. For its first fifty years, the New South Wales population was largely composed of convicts and exconvicts. They remained a very substantial proportion of the population until after transportation to mainland New South Wales virtually ended in 1840. Even in 1841, 20 percent of the colony's population were still British or Irish convicts.⁶⁵

Early New South Wales was a penal colony, a place founded for the exile and punishment of the convicts of Britain and Ireland. An audacious experiment was undertaken there, the creation of a new society through convict labor and a largely convict population. Its roads were built by convicts, as were its lovely yellow sandstone public buildings and bridges. Even the architects were convicts, as were the police. At the beginning, everyone knew everyone else by status: people were either "bond" or free. The convicts were put to work either for private masters, by analogy with those in the American colonies, or for the government. Hundreds of them worked for the government, either through their initial assignments on arrival, or as a form of punishment in work gangs. And a much greater proportion worked on settler's farms and at their businesses.

The colony's administration was much more centralized than it had been in colonial North America. The governors of New South Wales had extensive authority to control convicts. They had power to assign convicts to private masters and to set them free through pardons or, later, under a form of parole. In the absence of a legislature until 1824, the governors made general orders or proclamations including many on convict discipline. The first governors of New South Wales were as autocratically powerful as those of any other British colony at any time. In the colony's first decades, the military and all colonial officials were under their orders, and the governors sat alone as the court of appeal in civil matters. The colony's first judges had the military title of judge advocate and until 1809 they were obliged to obey the orders of the governor according to "the rules and discipline of war."⁶⁶ The first judge advocate was an officer of the marines and while his successors held no military or naval positions, they were under the same obligation of martial obedience. Civilian judges with military titles came to direct the birth of English law in a penal colony. In doing so, they eventually clashed with the military and naval officers who held the position of governor of New South Wales, including William Bligh.⁶⁷

At the beginning, the colony of New South Wales covered most of Australia, as well as the islands off its eastern and southern coasts, most importantly Van Diemen's Land and Norfolk Island. Van Diemen's Land became a separate colony in 1825, and retained the scourge of convict transportation until 1856 (when it received its last convicts, via Norfolk Island). After transportation ended, Van Diemen's Land changed its name to Tasmania.⁶⁸ From 1824 onwards, there were two supreme courts in the Australian colonies, the Supreme Court of New South Wales in Sydney, and the Supreme Court of Van Diemen's Land in Hobart.

The rest of this article is based largely on the surviving records of the decisions of the New South Wales Supreme Court, until the practical end of transportation to that colony in 1840, and on a few of the early decisions of the Supreme Court of Van Diemen's Land. The minutes of both courts are progressively being published on the internet.⁶⁹

The convict voyages to New South Wales and Van Diemen's Land were mostly government voyages in government chartered ships. Unlike the transportation of convicts to North America, which was based on the contractor obtaining both a subsidy and a property interest in the services of each individual convict, the Navy Board chartered the transports and storeships for the first fleet to New South Wales. This voyage was on a much larger scale than any convict voyages across the Atlantic: about one thousand people and all they would need for two years had to be transported to the other side of the world, to a largely unknown land. The primary contractor, William Richards, entered into most of the charterparties as agent for the owners of the first fleet ships. He supplied nine ships, at a rate of ten shillings per register ton per month. These privately owned ships were accompanied by two naval vessels, the Sirius and the Supply. Some of the hundreds of later convict transportation voyages were paid on a per head basis, before the government reverted to payment on a tonnage basis. Few convicts traveled on naval vessels. There was no government supervision of the actual voyages until the appointment of surgeon superintendents from 1814 onwards.⁷⁰

The most striking difference between transportation to America and Australia was that since the shipping contractors were fully paid for transporting the convicts, they retained no property right in convict labor,⁷¹ and there were no officially sanctioned sales of their services on arrival. The statute law was the same, but the practice was entirely different. The American system of sales of convicts could not have worked at the beginning of the colonization of New South Wales in any event, as there was no preexisting demand for convict labor. It might have worked a decade or two later, but by then a new system of convict management was well established, even if the statutory law lagged behind. Therefore, although wealthy convicts sometimes paid for a more comfortable passage to New South Wales,⁷² once they arrived there they could not do as some American convicts had done and buy their way out of the obligation of service during the period of their transportation. Wealthy or well-connected convicts may have been liberated quickly, but this could not be done through formal purchase. There never was a well-developed market for the purchase and sale of convict labor, though as we will see, there is some evidence of sales of this labor. This was an underground market, against the wishes of the governors, so no convict had an opportunity to buy her or his freedom. This time, the obligation to serve was central, not peripheral, to transportation.

While the British government showed little interest in convicts after they left for America, the attitude was very different toward those sent to the Australian colonies. At first it was unclear that convicts were to be subject to forced labor,⁷³ the emphasis being on exile. The first governor of New South Wales, Arthur Phillip, soon made clear that he wanted to treat convicts as servants of the Crown. Later in his governorship and in the interregnum that followed his departure from the colony in 1792, the practice developed under which the governors transferred their property interest in most of these Crown servants' labor to private masters, including former convicts.⁷⁴ Soon after the arrival of each new batch of convicts, the governors who succeeded Phillip distributed them without charge as an economic resource, frequently receiving requests for certain kinds of convict servants. They also distributed land, tools, and equipment from the government store.⁷⁵ Assignments of convicts were sometimes made as an act of patronage toward favored settlers until 1827, when Governor Darling transferred the power to make the assignments over to the Land Board.⁷⁶ As late as his period in office, 1825–1831, assignment to private masters was very much the favored method of dealing with convicts. There were still over 23,000 assigned convicts in 1837.⁷⁷

A modified version of the American system was in effect for most of the fifty years of convict transportation to mainland New South Wales. If the American colonies were primarily a place of exile for transported convicts, New South Wales was more a place of punishment as well as exile.

Felony Attaint in New South Wales, 1788–1820

In July 1788, less than six months after the formal commencement of the penal colony of New South Wales, two convicts, Henry and Susannah Cable, sued Duncan Sinclair in the first civil action taken in Australia. Sinclair was the captain of the Alexander, one of the privately owned vessels in the first fleet that had arrived in Sydney Cove in January. Henry and Susannah's claim before the judge advocate and two assessors was that Sinclair had failed to hand over their baggage, which had been placed on board his ship before it sailed from England. They won damages of £15, proving that New South Wales was a place ruled by law and not just naval, military, or prison discipline.⁷⁸

In awarding damages, the Court of Civil Jurisdiction ignored the law of felony attaint. Henry and Susannah had both been sentenced to death in England, then granted the conditional pardons that led to their transportation to New South Wales. If English law had been followed, they would have had no right of ownership of the goods, let alone a right to sue to enforce it.

Under the common law's reception of law rules, the court had power to reject the operation of the law of attaint in the colony. It could easily have been argued that attaint was not "applicable" to the circumstances of a penal colony, where a large percentage of the population were attainted under English law. The colony's new courts needed to hear their evidence, primarily against one another. If convicts had been unable to hold property, the colony would have become a much more confined prison than it was. A black market would likely have developed, along with a festering resentment that might have endangered security. If early New South Wales was a prison, it was an open prison rather than the closed and isolated institution that prison became during the nineteenth century.

The result in Cable v. Sinclair showed that convicts would have some opportunity to live autonomous lives. New South Wales was a place of much greater restrictions on convicts than America. They were under constant surveillance and an increasingly formal code of discipline,⁷⁹ but in some ways they had greater freedom. Most of the convicts in New South Wales were assigned to work for private masters, and many of them lived in lodgings or in their own dwellings in the new towns of Sydney and Parramatta. Convicts were supposed not to be paid for the compulsory work they did for their assigned masters, but they had time in the afternoons to do extra work, earning the money they needed to live relatively independent lives. Some worked for themselves full time despite being assigned, sharing the profits with their masters.⁸⁰ Sometimes the extra paid work was for their masters (eventually for a fixed annual amount in lieu of hourly rates though usually in kind rather than in money) and sometimes for others. The rates were (ineffectively) regulated by government order. Paid work in the convict's "own time" officially ended in 1823, part of a gradual decline in the autonomy of New South Wales convicts. A system of incentives continued after then, however, including unofficial partnerships with their exconvict masters. These rewards were much less likely to be earned by women than men.⁸¹ Under this system, convicts retained their own property and money, and Cable v. Sinclair showed that the courts allowed them to sue to recover their debts and protect this property.

After this complete rejection of the law of attaint at the very beginning of the colony, it was introduced to New South Wales piece by piece.⁸² The first changes were made by governors' orders of 1798 and 1801, which restricted the rights of the creditors of convicts to sue them.⁸³ This was the reverse of some of the formal law of attaint. The common law of attaint did not allow convicts to use their own disability as a defense to an action against them. At common law, attainted convicts could not sue, but they could be sued. The governors' orders restricted the common law rights of their creditors by giving convicts a practical immunity from suit.

This restriction on actions against convicts was not justified by the common law's reception of law rules: those rules allowed some of English law to be left behind, not the creation of new rules such as this, which contradicted English law. This flexible attitude to the adoption and creation of law was characteristic of early New South Wales law.

Flexibility with English law was even more evident in the courts. Although seemingly directed solely against serving convicts being sued, the 1801 order was taken to be a prohibition on them either suing or being sued in the colony's main civil court, the Court of Civil Jurisdiction. The members of that court reminded them, however, that they could both sue and be sued before the magistrates, who had general jurisdiction over the convicts.⁸⁴ The civil court had expanded on the apparent meaning of the 1801 order, and in doing so it went far beyond anything that might have been justified by the common law. Through this, convicts also retained their right to earn and hold property (though not freehold title to land, apparently). In the period of the Court of Civil Jurisdiction (1788–1814), convicts could also give evidence in all courts, even if attainted; this was the "uniform Practice of the Courts in this Colony."⁸⁵

These new restrictions from 1801 onward did not apply to those who held tickets of leave. Tickets of leave, a forerunner of parole, were invented by Governor King, apparently in 1801.⁸⁶ They allowed a convict to live free of the restrictions of compulsory labor, although still under a formal sentence of transportation. Convicts could live independently, and earn their own living, while serving out their sentences of transportation. Tickets of leave were an incentive to compliant behavior and had the great advantage to the government of taking them "off the store." That is, the government was no longer obliged to supply clothing and food to those who had been assigned to government work. Since the idea behind tickets of leave was to allow their holders to become independent, all the local restrictions on their suing or being sued in the Court of Civil Jurisdiction also ended once a ticket was granted. At common law, they may still have been attainted, but that was irrelevant in New South Wales before a dramatic change in 1820.

These were the rules of a penal colony, rules that were created to match its circumstances and that helped to create those circumstances. The law helped to make penal New South Wales into a place of exile and compulsory work under strict surveillance. Most convicts did not live the blood-soaked lives told in such detail by Robert Hughes.⁸⁷ While they complied with the many rules that applied to them, serving convicts lived relatively free lives, probably more so in many cases than those who had been transported to the American colonies. After obtaining the permission of the governor, many of them married even before their sentences expired or they received tickets of leave. Many others lived in stable relationships. Once they received their tickets of leave, the main restrictions on them were that they could not yet return to Britain or Ireland, and that they were often required to live in one particular district. Otherwise they lived largely as if their sentences had expired. A ticket of leave meant that their sentences became a form of exile rather than punitive labor.

1820: English Law Is Followed

The practice of refusing to give full effect to the law of attaint continued when a new civil court (the first Supreme Court, 1814–1824) commenced operation. This court's judges were more determined to put English law into effect than those of the Court of Civil Jurisdiction that preceded it. The judges of the new court found that it was possible to get around the common law's restrictions on attainted convicts, while paying lip service to them. They insisted on strict proof of the crime and sentence of a convict in Britain and Ireland, even though the necessary proof, the court record, was unavailable in the colony. They then refused to adjourn the case until the court record could be sent from Europe to the colony on the other side of the world. They also refused to allow questions to be put to witnesses which might discredit them through revealing their attainted status.⁸⁸ This meant that attaint could continue to be ignored for convicts who had been convicted in Britain or Ireland. This device even had the approval of Commissioner Bigge,⁸⁹ who was sent from England in 1819 to enquire into the state of convict discipline in New South Wales, with the task of recommending ways to make it more of a deterrent. He noted the comment of Judge Barron Field of the first Supreme Court that "the sting of the law in this remote colony, where it would sting itself to death, is well and wisely taken away by the law itself; the letter killeth, but the spirit giveth life."⁹⁰ Field assumed that the law of attaint had been formally received in the colony, but used these techniques to give effect to the practice of the colony, under which ticket of leave holders and those who had received colonial pardons were restored to complete civil rights.

In 1820, however, Field suddenly put the law of attaint into effect against an Irish attorney, Edward Eagar, even though Eagar had been pardoned by the colony's Governor Macquarie. Eagar attempted to sue Field in a lower court, but Field obtained an adjournment to allow proof of Eagar's attainted status to be sent from Ireland. Eagar subsequently sued a man named de Mestre in Field's own Supreme Court, and Field declared that Eagar's colonial pardon was of no effect. Field also said that he had discretion whether to call for proof of conviction from Britain or Ireland. The courts could choose whether to hear cases brought by convicts or evidence given by them,⁹¹ and that discretion would be exercised according to the judge's attitude to the merits of the convict's case⁹² (which could include a judgment as to her or his character). Bigge, not known for his sympathy to the emancipist cause, was critical of this.⁹³

In reaching this decision in the Supreme Court, Field relied on an English decision, Bullock v. Dodds (1819) 2 B. and Ald. 258; 106 E.R. 361. In that case, a convict who had been pardoned in Sydney by Governor Macquarie had returned from New South Wales to England and commenced a legal action in the King's Bench Court. The court refused to hear his claim. The relevant Transportation Act, (1768) 8 Geo. 3, c. 15, stated that transportation had the effect of a pardon under the Great Seal of England. The court held, however, that this pardon operated only on completion of the term of transportation, which in this case was transportation for life. This meant that another formal pardon was necessary before the attaint could be lifted. Anyone who did not remain in the place of transportation for the full period of the sentence and returned early to Britain was still attainted. It also held that Governor Macquarie's pardon was informal as it had only been issued under the seal of the colony and not confirmed, as required, under the Great Seal of England. The governor's purported pardon merely had the effect of a statement of intention to exercise mercy. Worse than that, the court held that any property acquired during the attaint became the property of the Crown.

Bullock v. Dodds said nothing about whether this law was part of the law of New South Wales, as the case was heard in England under English law. It also said nothing about the convict being obliged to remain in service for the full period of the transportation, just that the initial conditional pardon upon transportation did not take effect if the person returned early to Britain. If the decision did apply in the penal colony, a person transported for seven years, say, would remain attainted until the seven years expired, regardless of an informal colonial pardon or the grant of a ticket of leave. After seven years, the attaint would have ended.

In 1820, Judge Field simply assumed that Bullock v. Dodds applied in New South Wales as part of New South Wales law, and so did all of those who held judicial office in the colony after him. They lost the opportunity to make a careful assessment of the common law's rule on the reception of English law and to decide whether felony attaint was applicable in the circumstances of the colony. That question was only ever raised formally in connection with convict evidence, not the rest of the law of attaint.

Convicts and emancipists were suddenly immensely vulnerable as a result of Field's decision. From the beginning of New South Wales, the governors had emancipated many serving convicts, through either conditional or unconditional colonial pardons. (When it was imposed, the condition of the governor's pardon was that the person not return to Britain or Ireland.) A few of these emancipists managed to become very wealthy, building fine houses on the shores of Sydney harbor. Many of them received land grants from the government on their emancipation or had held it in other ways since that time. All of this was now at risk, including the titles to land of even the most respectable residents. If a free person bought land that had once been held by an emancipist, he or she may have had no right to hold it and no right to pass on the title. The titles to land, ships, and commercial goods were at risk. Much of the wealth of the colony was now in the discretion of the judges of the supreme court, who could decide whether or not to adjourn a case and seek proof of conviction from Britain or Ireland.

Field's provocative decision raised the political temperature in the colony, where the main division was between the emancipists who continually pressed for increased civil rights, and the more conservative exclusives, those who had not been transported. In defense of his actions, Field claimed that he was the first person to find the technical loophole, the requirement that strict proof of status be shown before attaint would be applied.⁹⁴ Over the preceding ten years, an increasing number of respectable (that is, non-convict) lawyers had been arriving in the colony, bringing closer attachment to English law. There had been controversy over the rights of convict attorneys (such as Eagar) to practice law before the courts,⁹⁵ but now the conflict spread far beyond that.

After Field's decision, the immediate concern of the emancipists was with the invalidity of pardons as much as thirty years old. They reminded the British government that they were the majority of the colony's population, that their labor had built the colony, and that they possessed the bulk of its wealth, which was now at risk. They said that the civil rights of those who had received colonial pardons had not been questioned before the Eagar cases, but that their credit, their reputation, and their incentives for hard work had all now been destroyed.⁹⁶

In response, the British Parliament passed an act in 1823 to provide retrospective validation to the governors' pardons. Until ratified in Britain, these past colonial pardons were to have effect only within the colony. The same act provided that in future the governors' pardons were to have effect in the colony from the date of their issue, once they were subsequently approved in London.⁹⁷ Another act in 1824 extended the effect of colonial pardons to other courts in the empire.⁹⁸

These acts did nothing for the other, greater problem: a penal colony was now subject to the whole of the law of attaint. A large proportion of the colony's population who had not yet received pardons and whose sentences had not yet expired, including ticket of leave holders, could not sue, hold property, or give evidence. If the laws of attaint had been followed strictly, the colony would have been ungovernable in its existing form, and the governors' rehabilitation policies would have collapsed. It was too late to prevent wealth getting into the wrong, attainted hands, however. That began with the decision in Cable v. Sinclair only a few months after the colony commenced. The problem now was to reconcile formal English law with a very well established local practice. That took more than twenty years. In the meantime, the colony's customary practice continued with a number of variations.

1820–1843: The Reconciliation of Law and Customary Practice

In June 1824, a new, permanent Supreme Court of New South Wales heard its first case, a murder trial.⁹⁹ (In the same year, the Legislative Council began operation, as the first stage in the reduction of the governor's autocratic law-making powers.) ¹⁰⁰ This second supreme court had both criminal and civil jurisdiction, unlike the former court of the same name that sat from 1814 to 1824, and which was a civil court only. The new court had all the jurisdiction of the superior courts at Westminster, and was headed by a chief justice, Francis Forbes.¹⁰¹ Forbes was a barrister with extensive experience in North America. Formerly Chief Justice of Newfoundland, he was a highly skilled lawyer of liberal tendencies whose usual approach was to adapt English law to local circumstances whenever possible. He often searched in the great body of the English legal inheritance for suitable laws for new societies, saying in one case that

Of all evils upon society, I know of none more to be deprecated, than to be governed by unsuitable laws—they interfere with the daily habits and pursuits of mankind; they are opposed to their feelings and opinions, and carry in them all the consequences of oppression.¹⁰²

He had several available tools to adapt the law to the needs of a new society, including the flexible nature of the reception of law test, his obligation to certify that the Legislative Council's acts were consistent with his fluid views of the laws of England (which became the foundation of judicial review of legislation),¹⁰³ and a reliance on technicalities to keep out whatever English law could not otherwise be avoided. While Forbes was willing to use technicalities, it was not his favored approach. In criticizing Field's decision in Eagar v. de Mestre, Forbes noted that attaint attached until a formal pardon was granted. He went on:

While such is the law, every attempt to evade it is, to say the least, very un-courtlike; nor is the objection to the evasion, suggested in Mr Field's letter, the less, from the disclosure that, to be discreetly, it must be exercised with partiality.¹⁰⁴

Despite that, Forbes and his colleagues on the new supreme court bench continued to require strict proof of conviction and attaint after 1824. Forbes knew the law of attaint and pardons very well,¹⁰⁵ but he avoided it by requiring strict proof in cases such as R. v. Cable (1826).¹⁰⁶

Convicts from Britain and Ireland traveled to New South Wales with a document called an indent. This was a record of their conviction and sentence of transportation, and it was sufficient to hold the person in custody.¹⁰⁷ In Sydney, these documents were filed in the Colonial Secretary's office.¹⁰⁸ In 1832, an act of the New South Wales Legislative Council declared that an indent was sufficient proof that a person had been transported as a convict.¹⁰⁹ But it did not prove whether he or she was attainted at common law, as indents rarely stated the nature of the crime and therefore whether a person had been sentenced to death. An exception was made when an indent showed that a person was transported for life: the Supreme Court decided in 1832 by a two to one majority that this can only have been for a capital felony to which attaint applied.¹¹⁰

Sometimes it was easy to prove attaint. If a convict had been sentenced to death by a court in New South Wales, this could be proved through the record of conviction but not through confession by the convict concerned. The Supreme Court judges did not insist on the witnesses answering questions that would reveal an attaint. ¹¹¹ Even when a convict did admit to having received a death sentence, that was insufficient to prove attaint. ¹¹²

A. Convict Evidence

The question of whether the evidence of an attainted person was admissible could not be avoided forever. When there was clear proof of a witness's having been sentenced to death, and the case turned on that person's evidence,¹¹³ the judges had had to meet it head on, as a matter of principle. Was the English law against evidence by an attainted person in force in New South Wales? That is, was it suitable to the circumstances of the colony? The question was particularly acute in cases concerning the penal settlements such as Norfolk Island and Moreton Bay, places famous for their violence among convicts and where much of that violence was usually witnessed only by other convicts. A sentence to Norfolk Island, in particular, was designed to be the worst punishment in the British empire, short of death. Prisoners undertook desperate acts to get away from there, including mutiny and piracy, even knowing that the likely result was the hangman's noose. Some said it was better to be sent to Sydney for trial and execution than to remain any longer in these penal settlements.¹¹⁴ Many of those sent there had been sentenced to death by the New South Wales court and then respited. If their evidence could not be received, people there could get away with murder.

The question of whether the English law against evidence by attainted convicts had been received as part of New South Wales law was put squarely to the court in R. v. Gardener (1829).¹¹⁵ By that time, there were three members of the permanent Supreme Court, Forbes CJ and Stephen and Dowling JJ. The question for the court was whether to hear the evidence of men who had been convicted in New South Wales and sentenced to death, and who had been witnesses to further offenses committed at the Port Macquarie penal settlement, on the north coast of New South Wales. The court decided unanimously that their evidence could be heard. Forbes claimed in his judgment that the objection to their evidence could have been made in nine out of ten of the trials he had presided over in New South Wales, but he had never before heard of the objection being made. "The uniform practice has been to admit the testimony of such persons from the necessity of the thing," he said, the only exception being if the witness had been convicted of perjury. In short, Forbes said, the rule "does not apply to the state and condition of this Colony." Juries could hear the evidence of such persons, but were bound to be skeptical about it. Dowling and Stephen concurred.

The issue was again before the same judges two years later, in R. v. Farrell, Dingle and Woodward (1831).¹¹⁶ This case concerned a bank robbery. A gang entered a sewer under the bank, broke through the bank's walls, and stole the vast sum of £12, 000. One of the robbers, a man with the splendid name of William Blackstone (or Blaxstone), turned Crown's witness. After the robbery but before the trial, he was convicted of another felony and sentenced to death, which was commuted to transportation to Norfolk Island for fourteen years. Was his evidence admissible in the subsequent bank robbery trial?

This time, the court split, with Forbes in the minority. In majority, Dowling and Stephen stuck with their reasoning in R. v. Gardener. They said that the reception of law rule left "a wide discretion to the Judges, to mould the principles and rules of the common law, to the actual state of society." The rule against attainted evidence was not central to English law, but was a mere rule of practice. They were also sceptical about what difference the issue of a formal pardon might make to a person's credibility: "he would still remain the same infamous and worthless villain."

This was an attack on the law rather than on the credibility of convict evidence in general. Dowling thought that the evidence of some convicts was believable. In another case, he observed

that he felt a sincere pleasure in bearing testimony to the respectable and honest evidence given this day by witnesses who had arrived in this Colony under particularly unpleasant circumstances. That the character of men so circumstanced, who had shewn after their arrival in this country a desire to atone to society and the laws for the commission, perhaps in youth, of a slight offence, should never, so long as he had the honor to sit in that Court, be subjected to reproach or vituperation. That where such men had evinced a disposition to become good and upright members of society, he would feel called upon to protect them from insult and domination.¹¹⁷

In Forbes's dissent he noted that the statutory test of the reception of English law, whether the law of England "can be applied,"¹¹⁸ had the same effect as the common law test. Forbes now declared that the rule against attainted evidence was a fundamental law of England and of other legal systems in Europe. Judges could depart from such laws only in very exceptional circumstances. Forbes reasoned, like Dowling, that the intention of transportation from Britain and Ireland was that the convict would get a fresh start in New South Wales. The evidence of such persons should be allowed both as a matter of rehabilitation and necessity. People in that position would suffer a serious penalty if they committed perjury, through the loss of their conditional and qualified liberty in the colony. But Blackstone's case was worse: he had been transported from England, then convicted of felony again in New South Wales, and finally had admitted to participation in the bank robbery. No further penalty could operate if he committed perjury after twice being convicted and sentenced to transportation. Forbes concluded that the evidence of doubly convicted felons should be admissible only in regard to events that occurred in the places of secondary transportation, such as Norfolk Island. There, necessity did require that even the doubly convicted should be allowed to give evidence. Forbes's conclusion, then, was that British and Irish convicts should be able to give evidence, but not those who had been convicted again in New South Wales except where the evidence was of events that took place at the penal settlements.

This was among Forbes's most cautious decisions, and one in which he had changed his mind in only two years. In R. v. Gardener, he had made no distinction between those convicted in New South Wales and those transported from Britain or Ireland. Forbes was not always a consistent judge.¹¹⁹

Forbes was renowned for adapting the law to local circumstances. But in R. v. Farrell he refused to do so on such a crucial point in a penal colony. He concluded his judgment in the case by arguing, as more conservative judges so often did, that his role was to apply the law, not to change it. The latter was the task of the legislature. His caution here may have been based on another of his characteristic concerns, to protect the rights of accused prisoners. It may be that when these two fundamental principles of his legal thought came into conflict, he held in favor of what would later be called civil liberties. While his dissenting view did not prevent the conviction of the bank robbers on the dubious word of Blackstone, the judges sentenced them to transportation (under a sentence called death recorded) ¹²⁰ rather than to execution. Forbes's doubt about the legality of their conviction may have saved their lives.

The controversy over the Farrell case continued for several years, the Australian newspaper arguing repeatedly that the prisoners had been wrongly convicted. By 1833, Blackstone had once again been convicted of a capital felony and was again transported to Norfolk Island.¹²¹ To some people, he was now utterly discredited. By this time, a new judge had arrived in the colony, Burton J, to replace Stephen J who had comprised the majority in R. v. Farrell with Dowling. Burton took an even stronger line against convict evidence than Forbes. His general approach was the opposite to that of Forbes and Dowling as his inclination was to apply English law whenever possible. He was also much less sympathetic to convicts. He told a jury in 1841 that:

I deny that convicts should be treated as sick patients, morally sick, whose reformation is the only object, and who are to be petted, and flattered, and beguiled into reformation, or an appearance of reformation. I deny that the sole end of punishment is the reformation of the criminal; this is a mistaken, and, in my opinion, a mischievous theory. Another object of punishment is to be a terror to evil doers.¹²²

Burton recognized, however, that he was bound by the majority decision in R. v. Farrell. So did Forbes and a later judge, Willis J.¹²³ That is, after the retirement of Stephen J at least two of the three judges on the bench would have decided Farrell differently, but they declared that the prisoners in that case had been properly convicted.¹²⁴ Convicts continued to give evidence. In one case in 1834 some of them testified while still wearing their leg irons.¹²⁵

This strict adherence to precedent was consistent with Burton's approach to the law, a forerunner of an attitude that would later dominate the Australian bench until the second half of the twentieth century. Forbes and Burton also held very different views about the nature of convict transportation. Forbes held what Atkinson refers to as the older view, one in which transportation was essentially based on pardon, and in which an analogy could be made with the indentured servants of colonial America. Burton emphasized its punitive aspects and, as Atkinson would expect, he stressed the authority of the law rather than the chief justice's community and tradition approach (which Atkinson calls the oppositionist view).¹²⁶

The uncertainty about convict evidence lasted until 1843, when the imperial Parliament finally passed an act to clarify that convicts could give evidence. The Legislative Council of New South Wales passed a similar act in the next year. ¹²⁷ By then, transportation to mainland New South Wales had been abolished and the last British and Irish convicts were serving out their sentences. In mainland New South Wales, the gap between formal English law and colonial practice lasted the full period of transportation, and the colony's customary practice eventually received parliamentary approval.

B. Right to Hold Property and Sue

For the rest of the law of attaint, there were no such dramatic declarations of inapplicability. The permanent Supreme Court simply assumed that the common law concerning the rights of convicts to hold property and sue in the courts were applicable and in force in New South Wales. Despite that, the customary practice in use since 1801, which allowed those with tickets of leave to hold property, continued.¹²⁸ Many serving convicts (those without tickets of leave) also continued to live independently, creating new marital or non-marital relationships, and earning money in their free time. While they were not supposed to be paid for their assigned labor, unlike those in America they could keep their own money earned through extra work. The common law was in sharp conflict with the customary practice of convict management in New South Wales. These were reconciled in two ways, through an insistence on formal proof of convict status (as explained earlier), and through an alteration to the usual law of marital property. Eventually, the imperial and colonial legislatures intervened.

Most of the Supreme Court judges thought that a strict application of the law of attaint was inappropriate in the colony. In R. v. Cable (1826), for instance, the defendant was charged with stealing a horse from George Seymour. The defense counsel argued that the charge was impossible, because Seymour was an attainted convict and could not have owned the horse. Chief Justice Forbes declared that convicts had been sent to New South Wales for reformation and had to have their property protected once they were in a position to gain any. He pointed out that many convicts (including Seymour) had been assigned to work for their free wives and stated that the fruits of their labor should be protected as much as that of anyone else. Forbes was no doubt relieved to find that formal proof of attaint had not been tendered. Despite Forbes's preferences, the judges were sometimes forced to recognize that attainted convicts could not hold property, so that it was impossible to steal it from them. By law, it was the property of the Crown, and the criminal charge had to be stealing from the Crown.¹²⁹

The judges were even more reluctant to allow attaint to operate as a defense when a convict sued to protect her or his property. In Belcher v. Deneen (1832) ¹³⁰ for instance, Dowling J was concerned with the situation of convicts who had been given some liberty by the colonial government (presumably meaning a ticket of leave) who then had dealings with others who assumed they were free. He said that those they dealt with could not, in justice, rely on a defense of attaint. In these cases, the strictest proof of attaint was required, and an indent was not usually enough despite the colonial legislation that reinforced their evidentiary value. Ticket of leave holders gained that indulgence through good conduct, and some of them became wealthy merchants who "retrieved the errors of early life" and whose property ought to be protected. The Supreme Court also took a strict line on the pleading of felony attaint.¹³¹ The court accepted that attaint was part of the law of New South Wales, but the justices did what they could to avoid its application to ticket of leave holders.

The judges of the Supreme Court felt compelled to apply the law of attaint when it was unavoidable, and this was exacerbated in 1827, when Forbes CJ declared tickets of leave to be unlawful.¹³² His argument was that the governor's power to mitigate the sentence of convicts was derived from the transportation acts, which empowered him only to pardon offenders, not to provide tickets of leave. Tickets of leave were not "remissions" under those acts.¹³³ Most important, tickets of leave interfered with the masters' property right in the services of an assigned convict, a point discussed below. Parliament affirmed the validity of tickets of leave in the next constitutional statute for New South Wales and Van Diemen's Land, but it did not make clear whether ticket of leave holders were attainted.¹³⁴

In 1832, the colonial and imperial legislatures finally attempted to clarify the law on whether attaint applied to holders of tickets of leave, but their statutes contradicted one another. The first of these acts was passed by the New South Wales Legislative Council, which formally declared that ticket of leave holders were free of attaint. Its aim was to return the colony's formal law to the customary practice of the colony in use since 1801.¹³⁵

At the time it passed this act, the Legislative Council was unaware that this policy was directly opposed to that of the imperial Parliament. In the same year the Parliament in London passed an imperial act¹³⁶ stating that no transported person was to be capable of acquiring or holding property or bringing an action in court to recover property until a pardon was granted. That is, while the statute reinforced the legitimacy of tickets of leave, it did not allow ticket holders to hold, acquire, or sue for any property. Tickets of leave were now clearly lawful but largely useless.

The Supreme Court considered the clash between these two statutes in Tunnicliff v. Barrett (1833).¹³⁷ Chief Justice Forbes held there that

the Act of the Imperial Parliament was the law of this country; he wished the law had stood according to the local act; it would have been much better; what was the use of giving persons Tickets-of-Leave and shutting Court's of Law against them, it was making them vagrants, it was a plain position of common sense. The [imperial] Act passed in July, as soon as it arrived was promulgated, and became a posterior law by which the other laws were abrogated.

He held that there was no doubt that the imperial Parliament intended the act to apply in New South Wales, which was one of only a few penal colonies in the empire. Forbes said that "The effect of the act is to repeal that part of the local ordinance respecting persons holding tickets of leave. Acts of the Imperial Parliament made for the Colonies are paramount and control the ordinances of the local legislature, without any express adoption."

On occasions like this, the British empire operated like a federation, in which the paramount laws of the empire prevailed in the event of a clash. Some colonial officials and judges still worked on pluralist assumptions of law, but when there was a direct conflict between colonial law and practice, and that of the empire, it was clear that the latter prevailed. The pluralism of the eighteenth-century empire appeared to be fading.

Justices Dowling and Burton agreed with Forbes, Dowling noting one devastating extra feature of the imperial act. It declared that all transported convicts, whether attainted at common law or not, were unable to hold property or sue in the courts. The distinction between capital and non-capital convicts was abolished; a statutory version of attaint now applied to all of them. Suddenly the customary practice of the colony was swept aside entirely. With it went the legal rights of all the convicts in the colony who had not yet received a pardon or whose term of transportation had not expired. On its face, little was now left of the old notion of convicts having been pardoned and sent into exile. American notions of transportation were also fading.

If the clumsy attempt of the imperial Parliament to impose and extend legal orthodoxy on New South Wales were to be followed strictly, then the whole nature of the management of convicts would have to change. Rehabilitation objectives would be damaged, and the concept of tickets of leave destroyed. As the Supreme Court declared in Gilroy v. Mannix (1832), the imperial statute was retrospective, applying to those transported before 1832 as well as those after it.¹³⁸ Forbes held in Williams v. Hanson (1835) ¹³⁹ that the statute provided that no convict could sue on a contract entered into before the sentence expired or a pardon was given: "we have repeatedly held that ticket of leave holders can maintain no action." All convicts, no matter when convicted and whether sentenced to death or not, were in the same position.

In fact, however, the imperial statute did not immediately end the use of tickets of leave. The colonial government continued to issue them, even if any property their holders managed to acquire was now dependent on the fragile device of lack of proof of convict status.¹⁴⁰ Convict status was now easier to prove, since an indent showed at the very least that a person was a convict, which was all that was needed now. Despite that, Forbes was still insistent on strict proof of convict status after the 1832 statute came into force. He held that even having a ticket of leave was not sufficient evidence.¹⁴¹ This was a strong example of judicial resistance to imperial law. Forbes still believed in convict autonomy and in the legitimacy of colonial customary practices.

The clash of views between the British and colonial governments continued well after the imperial statute came into force. The view of the Crown Law Officers in London was that any money possessed by convicts became the property of the Crown at the moment their ship left for Australia.¹⁴² When money was owed to a convict, that person could not sue to recover it. The money belonged to the Crown, and the convict had to petition the Crown to obtain access to it.¹⁴³

The colonial government's practice of convict management did not match the law even after the imperial Act of 1832 laid it down so forcefully. In 1838, Governor Gipps said that any money that came with convicts on their voyage of transportation or that they earned while under sentence was not confiscated, but placed in the bank for them. It was then given to them on their obtaining a ticket of leave rather than, as should strictly have been the case, when they obtained a pardon or their sentence expired.¹⁴⁴ Allowing ticket of leave holders to get their money was not usually a problem, said Gipps, as the amounts were usually small. However one convict, Henry Herring, had £714, which caused problems to the governor. Gipps gave him half the money after he received his ticket.¹⁴⁵ Even when Herring got his money, he had no right in law to retain it, or to sue for it if others came into possession of it.

When a convict's money was in the savings bank, he or she had to apply to the government for access to it. If a convict was charged with a crime, for instance, the government might release some of the money to pay for a lawyer.¹⁴⁶ Even under the more sympathetic colonial governors, convicts' rights to property were now discretionary.

The British Parliament finally reconciled imperial law and New South Wales practice in 1843, after convict transportation to the mainland of the colony effectively ended in 1840. Under (1843) 6 Vict. c. 7, ticket of leave holders were given the formal legal right to hold goods and leases of land and to sue in the courts to protect them. If their ticket was revoked, their property vested in the Crown. They did not obtain the right to freehold title to land, but otherwise the law reverted to what it had been in the customary practice of the colony since 1801. Once again, custom eventually received imperial endorsement. Despite a stricter imperial scheme, some law was still made in the colonies, even when it favored convict liberty.

Assignment of Spouses

In this section, we examine the practice of assignment of convicts in the Australian colonies. But first it is necessary to consider the assignment of one spouse to another and its impact on attaint. The early governors of New South Wales encouraged marriage between convicts, and from 1816 onward this was enhanced by another remarkable policy: the assignment of convict husbands to work for their free wives. In a complete reversal of ancient marriage practices,¹⁴⁷ when this happened the husband's services became the property of his wife. The government paid the fares of some free wives of convicts from Britain and Ireland, while other free women chose husbands from among the arriving convicts.¹⁴⁸ There was no right for a convict to be assigned to work for her or his spouse.¹⁴⁹

At common law, married women were in a similar legal position to that of attainted convicts: they could hold no goods or income from their land, and they had restricted rights of civil litigation. On marriage, her property became his. When a woman married an attainted man, each would seem to have been restricted, but the common law had a solution.

Blackstone stated that the wives of attainted men were treated as if they were free, as if feme sole rather than feme covert.¹⁵⁰ At common law, the wives of convicts thus had more freedom than the wives of free men. This ended when the man's sentence expired, or he was pardoned. He could then seize any property she might have acquired during her temporary freedom. As attainted convicts did not live relatively freely in England, there was little need for the courts there to explore the limits of this. The Supreme Court of New South Wales had to develop the rules.

In Doe dem Clark v. Smithers (1834) ¹⁵¹ the court declared that the wives of attainted men were entitled to engage in trade during their freedom but not always to sell land. Anne Noble ran a successful business while her husband was attainted and bought land with the profits. Not long before he became free, she conveyed the land to trustees for the benefit of her children, perhaps with the aim of keeping it out of her husband's reach, or that of his creditors. The court declared that this conveyance was invalid. The wives of prisoners for life could sell land, the court held, as their husbands were in theory dead in law. The wives of prisoners for limited periods could not do so since their legal status was only temporary. The court failed to see that this was a false distinction in most cases since pardons were given so often, but the distinction was sufficient to allow a pardoned husband to take his wife's land. Chief Justice Forbes explained his decision by stating that "to the world at large she might be a feme sole; but to her husband, she was still a wife." Forbes's list of the fundamental laws of England apparently included the laws of marriage.

This application of the common law meant that particularly when a convict man was assigned to his free wife, she had the legal autonomy in the family, the right to hold property, and sue in the courts. In McNamarra v. Wilson (1834) for instance,¹⁵² a wife successfully sued Colonel Wilson, the chief police magistrate. Her convict husband, who was assigned to her, was a tailor who had made sixty police uniforms. Justice Dowling decided that the wife could sue on contracts made by her convict husband as her agent. This was the exact reversal of the normal situation of marriage, in which wives could make contracts as their husbands' agents.

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This was also shown in Beale v. Raine (1829).¹⁵³ The labor of John Beale was assigned to Rosetta Johnston when they married in 1828. She then hired him out for profit.¹⁵⁴ Despite Governor Darling's prohibition on masters (and mistresses) of assigned convicts hiring them out,¹⁵⁵ the Supreme Court held that she could sue for the work he had done. This gave effect to the practice of the colony, relying on the common assent of the people. As Justice Dowling put it, "in short she is with regard to delegations & liabilities in society in the same place that a married free man would be with respect to his wife's simple contracts."

101

These temporarily free wives paid a price for their liberty. While wives were usually exempt from imprisonment for debt, those of attainted men were not. When a married woman acted as a feme sole, she sometimes suffered imprisonment or insolvency.¹⁵⁶

102

In reverse, a convict husband assigned to his wife was liable to the full consequences of his indebtedness. At common law, an attainted person could be sued, being unable to take advantage of her or his criminality. But this did not mean that assigned convicts could be imprisoned for debt, which was first prohibited in 1798. In these cases the courts had to balance the property interests of the master or mistress in the services of the assigned convict with the creditor's interest in being able to imprison a debtor. The post-1824 Supreme Court followed the old practice of the colony, that serving convicts could neither sue nor be sued.¹⁵⁷ However, a different rule applied when the convict was assigned to a spouse. In Green v. Woodroffe (1828),¹⁵⁸ Forbes CJ held that a convict husband in such circumstances could be arrested and imprisoned. He was a baker who had traded and sued as if he were free, and Forbes held that he should be liable for the consequences of that. One rule applied to a spouse's property right in an assigned convict, and another to everyone else's.

103

The convict wives of free men suffered another disability from a rule that was apparently invented by the Supreme Court of New South Wales. In Wild v. Driver (1837) and (1838),¹⁵⁹ it declared that if the husband of a convict wife died while she was still under sentence, she could not claim her dower after the sentence expired. The right to dower did not lie in abeyance, waiting for her legal disability to end.

104

The wives of convicts assigned to them could also have their husbands taken before the magistrates and flogged for disobedience or for the breach of other convict disciplinary regulations. Whether or not this happened in practice, the formal legal position makes us rethink the notion of patriarchy in the penal colony. At common law, a husband could apply "moderate correction" (a euphemism for beating) to their wives.¹⁶⁰ Here, the reverse could apply, via the magistrates.

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Property in Australian Convicts' Services

Unlike in North America, the property in the services of New South Wales convicts was not sold by the shipping contractors once they arrived in Sydney. Transportation to New South Wales was much more a matter of government business than private enterprise. When convicts landed in Sydney, the governor, not the shipping contractor, assigned them to work, either for the colonial government or for private masters. This was a drastic change in practice from that in the American colonies. There were no sales of convict labor at the wharves in New South Wales, no mortgages of their services or regular practice of resales, no inheritances when a master died, and no opportunity for wealthy convicts to buy out their own labor.

106

Yet until 1824, the transportation legislation still contained essentially the same principles as those laid down by the Transportation Act, 1718, which had governed the transportation of convicts to the West Indies and the American colonies. Convicts were first transported to New South Wales under the new Transportation Act of 1784.¹⁶¹ In formal law, there were no significant changes to convict assignments from the days of transportation to America. The 1784 statute continued the old language: by section 1, the sentencing court was "hereby authorized and impowered to order such Offenders to be transferred to the Use of any Person or Persons, and his or their Assigns, who shall contract for the due Performance of such Transportation." This also extended the operation of the 1779 Act, which explicitly continued the "Laws, Statutes, Usages and Customs" in force for transportation to America, including the 1718 Act.¹⁶² The presumption of the legislation was that the property in the services of convicts would still pass to the shipping contractor.

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This language was still used in legislation as late as 1816, by which stage it was perfectly clear that contractors were not retaining any property in the services of the convicts they carried to Australia. Acts in 1815 and 1816 stated that the contractor and his assigns "shall have a Property in the Service of such Offender or Offenders" for the period of transportation.¹⁶³

108

Statute law and practice may have been reconciled through the terms of the shipping contracts. Atkinson says that the contractors did obtain a property right in the convicts' services, but as they were wholly reimbursed by the government, their contracts required them to assign their cargoes to the governors on arrival.¹⁶⁴

109

The next major transportation act was passed in 1824.¹⁶⁵ This was, in part, a consolidation act, passed in view of the imminent expiry of previous transportation acts. But it also altered the rules on property in convict labor. The 1824 Act made no mention of the transfer of the property or usage of the convict's labor to the contractor, although section 4 apparently gave the convict into the custody of the contractor. By section 8, when the contractor passed custody of the convict to the colonial governor or other person to whom the contractor was directed to deliver the convict, the "Property in the Service of such Offender shall be vested in the Governor of the Colony for the Time being, or in such other Person or Persons." Section 8 continued:

it shall be lawful for the Governor for the Time being, and for such other Person or Persons, whenever he or they shall think fit, to assign any such Offender to any other Person for the then Residue of his or her Term of Transportation, and for such Assignee to assign over such Offender, and so as often as may be thought fit; and the Property in the Service of such Offender shall continue in the Governor for the Time being, or in such other Person or Persons as aforesaid, or his of their Assigns, during the whole remaining Term of Life or Years for which such Offender was sentenced or ordered to be transported....

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Section 29 of the 1824 Act repealed those parts of the 1718 Act that related to contracts for the transportation of offenders. At last the law matched the practice in New South Wales, under which the governor had property in the services of convicts, and the power to assign them to private masters.

111

Under formal law, both before and after 1824 the master had property in the services of convicts and power to assign it to another person. But what did that mean for the management of convicts in New South Wales, and what rights did the new master have? New methods of penology, enforced through a much more centralized empire, came into increasing conflict with the inherited American tradition of a master holding a property right in the services of assigned convicts.

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Assignments of Convict Services

Was it possible for masters to sell or hire the services in their convicts to others, as had been the custom of the country in America? This was the essence of convict transportation to Maryland and Virginia, but from the early years of the colony of New South Wales the governors had worked on a different assumption. They assumed that their control over convicts lasted the full period of their sentences, that they could establish structures for the discipline and transfer of convicts, and, ultimately, the exercise of royal mercy through pardons and tickets of leave. This assumption sat uneasily with the notion of the master's property interest in the convicts' services. Governors gave land grants to which property rights attached, and masters thought they did the same with convicts.

113

This conflict of views about convict management was mediated through the colonial judges. Like the governors, the judges were appointed by the British government and could be easily recalled. Yet there were often sharp differences between Government House and the Supreme Court. The judges represented the tradition of the law, in this case a tradition rooted in American practice and in the words of the transportation statutes. Successive British governments and their governors sought tighter convict management devices, while the judges, supported by the words of the legislation, often said otherwise. The main question was whether the governors had an unfettered right to withdraw convict labor from private masters.

114

In 1813, Governor Lachlan Macquarie issued a regulation that purported to prohibit settlers from reassigning their assigned convicts, or from allowing them to be employed by others. But section 8 of the 1824 Transportation Act provided that the assignee of a convict could "assign over" such a convict and that the original assignee "or his or their Assigns" had property in the service of the offender for the full period of the transportation.

115

Once a governor assigned a convict to a private master, could the convict's services be sold to others, as in America? American tradition and the 1824 statute seemed to indicate so, and the attorney general and solicitor general of England thought so as well.¹⁶⁶ The old regulations were apparently overturned by the 1824 Act, if they were ever valid.

116

Governor Darling of New South Wales assumed otherwise. In 1827 he issued a new Government Notice concerning convict assignments. This stated that no person could reassign a convict. It also stated the principles under which an assigned convict would be removed from a master. The magistrates could do so on proof of inadequate food or clothing, improper treatment, or the convict being allowed to work out or to be absent from work. Thirdly, the governor reserved his right to grant tickets of leave or other indulgences.¹⁶⁷ Darling's new regulation led to a hostile review in the Australian. For this its editor, the barrister Robert Wardell, was prosecuted for seditious libel.¹⁶⁸ Convict rights were central to the politics of the squabbling colony centered at Sydney Cove.

117

Darling's order appeared to contradict the position under statutory law. Chief Justice Forbes was now required to step into this most delicate of situations, one that went to the heart of the governor's control of the colony and that exacerbated the tensions between the chief justice and the governor. Governor Darling knew that Forbes held a different view from his,¹⁶⁹ and now Forbes had to say so explicitly.

118

Forbes issued his crucial Convict Assignment Opinion in October 1827. In addition to declaring tickets of leave illegal (as discussed above), Forbes declared that there were tight restrictions on the governor's ability to control convict assignments. In upholding the law as he saw it, Forbes was directly standing in the way of Darling's control of the penal colony.

119

Forbes began his opinion with the history of the legislation. He noted that under the 1718 Transportation Act, convict labor was initially the property of the shipping contractor. By that act, the king had power to dispense with transportation (through the exercise of mercy), but only after paying compensation to the person who owned the property in the convict's labor. Forbes held that the general principles of the 1718 Act were not repealed by the 1824 Transportation Act. While the 1824 Act changed the initial ownership of the convict's services to the governor, Forbes noted that many convicts had been transported before that year. It was possible, then, that the masters of pre-1824 convicts were entitled to compensation when the governor pardoned them. Under the 1824 Act, Forbes noted that the master of an assigned convict "has a legal right of property in the services of such person during the period of his term of transportation, and that he can only be divested of such property by law, or by the act of reassignment to such other person as he may think fit." While the governors could pardon convicts as an exercise of royal clemency, they could do no more. This is why tickets of leave were unlawful, he said, as they interfered with the master's property rights. At this time, Forbes said, the governor had no right to remove a convict even after the convict complained about poor treatment. The governors often did this, moving the convict to a new master.¹⁷⁰

120

This opinion was one of several catalysts for the deterioration in the relationship between Chief Justice Forbes and Governor Darling.¹⁷¹ Darling was worried that Forbes's opinion limited his control over thousands of assigned convicts in his violent penal colony. In March 1828, the governor wrote to the British government, noting that he needed to be in control of convicts even after they were assigned to private masters. Forbes had failed to see that need. Darling thought that Forbes was greedy for power: "All men like power, and it may be very convenient to a person of Mr Forbes's Character to be entrusted with the interpretation of the Laws. I therefore take the liberty of recommending, whoever the judges may be, that this power may not be extended."¹⁷²

121

Forbes had been engaging in judicial review of the conduct of the colonial government and colonial legislation, powers that Darling thought excessive. This was too much for Darling, who thought that Forbes's views were based on his suspect origins. He said that Forbes was "a person of American principles and American feelings—This observation did not originate with me."¹⁷³ In fact Forbes was born in Bermuda, where he was later attorney general. His father had family connections and plantations in Georgia. His bald head and refusal to wear a wig caused even his colleague Dowling J to note that he had "a round head republican look."¹⁷⁴

122

While there was no truth to the suggestion that he had republican tendencies,¹⁷⁵ it is clear that Forbes was influenced by the American history of convict transportation. Forbes was a master of the common law technique described by Coke and Blackstone. When required to interpret a statute, his usual technique was to begin with the common law, then to look at the complete statutory history of the point of law in question, down to the present legislation.¹⁷⁶ In the case of convict transportation, this required him to look at the policies in force at the time of transportation to the American colonies, policies based on property rights in convict labor. The Convict Assignment Opinion shows that the American experience was transferred to the very different conditions of New South Wales. This was aided by the conservatism of those who drafted the transportation statutes. They were unwilling to abandon the familiar language of property, even when it damaged the control of the governors of the dangerous penal colonies.

123

Forbes had long held the view that transportation was essentially a mild punishment. As shown earlier, he held in his attaint cases that transportation was essentially a conditional pardon under which convicts were placed under conditional liberty. When he was chief justice of Newfoundland, he told the island's governor that he thought fourteen years' transportation was a lesser punishment than twelve months in the island's jail.¹⁷⁷ He thought, however, that the majority of settlers in New South Wales treated their convict servants as if they were slaves.¹⁷⁸ Ironically, Forbes's views of convict status made it closer to slavery than the views of Governor Darling. In Somersett's Case (1772) 20 St. Tr. 1, 82, Lord Mansfield famously said that slavery "is so odious that nothing can be suffered to support it, but positive law." Forbes thought there was positive law justifying property in the services of convict servants. In his 1827 Convict Assignment Opinion, he said "A right of property being vested in the Assignee of a transported offender cannot be taken away but by law; any regulation, not derived from law and trenching upon this right, is illegal and void, as in other cases of private property."

124

Parliament responded to this opinion by enacting section 9 of the Australian Courts Act (1828). This gave the governors discretion to revoke assignments of convict labor and to grant convicts "temporary or partial remissions of their sentences." Parliament and the British government appeared to be less interested in ancient rights of property in convict labor than in the regular management of its penal colonies.¹⁷⁹ Section 9 authorized the governors to issue tickets of leave, but it did not make clear just when the governor could revoke an assignment. The interpretation of this provision was at the heart of the controversy to follow. Could the governor withdraw labor whenever he chose to do so?

125

No, said the Supreme Court in Jane New's Case in March 1829.¹⁸⁰ Governor Darling purported to revoke an assignment, originally made by the governor of Van Diemen's Land, of a woman to her husband. Darling argued that governors had complete discretion over assigned convicts, and that she was still a prisoner of the Crown under her original conviction in England.

126

Jane New's husband brought her case before the Supreme Court on a habeas corpus, complaining of the loss of her services. Had Darling acted correctly in revoking the assignment of New to her husband and ordering her detention in the Female Factory? On the broadest view, this turned on the interpretation of section 9 of the Australian Courts Act (1828). Could the governors revoke these assignments as they thought fit, or could they do so only for the purpose of the remission of sentences? Were the revocations of assignments and remissions of sentences separate issues, or were they part of the one discretionary power? Governor Darling wanted them to be separate in order to achieve the broad power that he had been pressing for throughout his governorship.¹⁸¹

127

The Supreme Court declared that the governor had been wrong to revoke the assignment of Jane New to her husband. There was no need to consider the broad question of the governors' powers to revoke assignments, because Forbes found that the New South Wales governor had no power to intervene in an assignment made by another governor.¹⁸² He also concluded that the governor of Van Diemen's Land had had no power to allow a serving convict to leave the colony and travel to New South Wales. The chief justice therefore ordered that she had to be kept in custody as a convict at large and returned to Van Diemen's Land.¹⁸³ That could have been the end of the litigation, but the court also answered the broader and more important question.

128

Forbes was acutely aware of the significance of the governors' powers to revoke convict assignments. Since convict labor was the only secure labor available to masters, he said, their whole estates turned on it. Masters still had a property right in their assigned convicts' services, and this was so important that Parliament cannot have intended to remove it at a word, Forbes said, to place it at the discretion of the governor. Property rights could not be removed at whim. He therefore construed the ambiguous meaning of section 9 to meet this and the purpose of the legislation (to legalize tickets of leave). Governors could revoke assignments under section 9 only when they were giving temporary or partial remissions of sentence (tickets of leave), for the purposes of rehabilitation. This did not take away their undoubted power to revoke assignments where masters had acted cruelly towards their servants. That was a matter of implied contract between the master and governor, he said, and in these cases the revocation could be made only after due inquiry. Property could not be taken away without a hearing. On this reasoning, there was little to distinguish the rights of masters in New South Wales in 1829 from those in Virginia or Maryland a century earlier. Convict labor was privately owned, regardless of imperial demands for tighter regulation. The other judges (Stephen and Dowling JJ) agreed with Forbes.

129

The other central right of American masters was to sell or hire out their convicts' labor, and the decision in Jane New's Case makes clear both that this happened in New South Wales and that it was lawful. In what was almost an aside, Dowling J said that it "is a matter of history that in former times it was not an uncommon thing for the Assignee of a Convict to sell his Services or Assign them to another person for pecuniary consideration." If so, this is not at all well known to historians. There were no public sales as in America, and the sales were (wrongly) declared illegal by the governors. Given those declarations, the practice may well have gone on quietly. Dowling certainly did not indicate that it had been illegal.

130

Justice Dowling said that until section 9 was enacted, assigned masters had an "indefeasible property" in the services of the convict as long as the sentence continued. This ended only when section 9 of the Australian Courts Act became law, Dowling said. Under section 9, one master could not assign a servant to another "except with the written consent and License of the Governor." Dowling continued "This is a material qualification of the right of property of the Master in the Services of the Convict, but a most salutary alteration, in order to prevent the abuses arising from the previously unlimited power of transferring the Services of a prisoner from person to person as a matter of Sale, barter or letting. There is here a positive position prohibition of that system." Masters still had a property right in their assigned convicts' services, but it was now in the control of the governors.

131

In Dowling's view, the practice that had been so characteristic of convict transportation to America, the buying and selling of convicts, was abolished only in 1828. Only then did the strongest analogy to slavery come to a legal end. But even after then, the majority of judges thought it was still lawful for one master to hire out convict servants to others, as shown below.

132

The issue of the governors' revocations of assignments flared again when Governor Darling tried to suppress political dissent in the colony. Darling had the instincts of an autocrat.¹⁸⁴ He railed against Forbes's use of judicial review and sympathy for convicts, and he became the involuntary champion of conservative causes. The colony's newspaper press included two reformist newspapers, the Australian and the Monitor, which pressed the emancipists' favorite causes, trial by jury and a representative legislature. The conservative exclusive faction resisted these reforms, arguing that a convict colony was not suited to such liberal institutions because so many of the colonists were infamous. Both newspapers attacked Darling relentlessly, accusing him of overly harsh treatment of convicts. One of the colony's leading barristers and the cofounder of the Australian, W. C. Wentworth, eventually called for the impeachment of Darling.¹⁸⁵ Governor Darling made great efforts to muzzle the press. These included repressive legislation and the prosecution of editors and proprietors for criminal libel and sedition.¹⁸⁶

133

Another of Darling's tactics was to remove the assigned convict servants from the opposition newspapers, the Monitor and the Australian. This brought him into direct conflict with Chief Justice Forbes once again. Printers and reporters were often assigned convicts, and it was these people whose assignments Darling ended for political reasons in March 1829. This led to indecisive litigation,¹⁸⁷ but that was the least of the problems of Edward Smith Hall, the editor of the Monitor. He was sentenced to prison six times for libel, four times for articles written while he was in jail.¹⁸⁸

134

Hall responded aggressively to the governor's relentless campaign against him. In the first civil action before a jury in New South Wales, he obtained £10 damages against the magistrates who had convicted him of harboring Peter Tyler, his foreman printer, whose assignment had been revoked. He also obtained damages against the principal superintendent of convicts at Sydney for the illegal removal of Tyler, as did the proprietor and editor of the Australian in a similar action.¹⁸⁹ In these cases, the Supreme Court relied on its decision in Jane New's Case to hold that the newspaper staff had been wrongly removed.

135

The British government chastised Governor Darling for removing convict servants from the newspaper proprietors merely because they had criticized him.¹⁹⁰ Sir George Murray, the secretary of state, told the governor that he had power to remove convicts from their masters, but that the principal reason for doing so was the benefit of the convict. The power could also be used to withdraw convicts from masters who abused them. The governor was quite candid that he withdrew Tyler in the hope of giving him "less means of disseminating his poison, that the tranquillity of the Colony would be the better preserved."¹⁹¹ In the face of Supreme Court opinion, Darling again revoked the assignment of Tyler, but this drew the anger of the British government since the revocation was obviously again for political reasons.¹⁹² Darling found that he had the power to do as he did, but the British government disapproved of his reasons for doing so.

136

When Forbes wrote his opinion in the Jane New case, he knew that the British attorney general and solicitor general held a contrary view of the powers of the governors under section 9. He simply disagreed with them, stating that their view was "clearly untenable," which was an unusual stance for a colonial judge to take before the days of judicial independence.¹⁹³ After the Supreme Court's decision arrived in London, the Crown Law Officers again asserted that they held a different view. Horace Twiss, undersecretary of state, said he had carried the bill through Parliament, and that the intention of section 9 was exactly opposite to that assumed by the Supreme Court judges.¹⁹⁴ The British government reported this to Governor Darling through Murray. He told him that the Crown Law Officers held the view that a governor could revoke an assignment under section 9 regardless of any intention to remit the sentence. Murray advised the governor to follow the advice of the Crown lawyers, not of the judges. This was merely an extrajudicial opinion of the Supreme Court judges, Murray said, and he hoped they would change their minds if it were put to them directly. If not, the governor was to abstain from further revocations of assignments and refer the matter to London for a decision by the Privy Council or further amendment by Parliament.¹⁹⁵

137

This had the potential to be a full-blown constitutional crisis, the Crown lawyers being of one opinion and the colonial judges another, with the governor being advised by the British government to follow the view of the Crown lawyers. However Dowling J buckled when he heard of the British view. He said he would follow the advice of the Crown lawyers.¹⁹⁶ Forbes also buckled, though in less obsequious language. He claimed that only after they reached their decision in Jane New's Case did he and the other judges find out that the British government was of a different view. (This was not so: Dowling told Murray that the judges had received the advice of the Crown lawyers a few days before writing their opinions. This was not the only time that in defending himself, Forbes misrepresented the past.¹⁹⁷) Forbes rejected the allegation that, in their judgments, he and his colleagues had courted popularity and said that he took to heart the British government's desire for harmony between himself and Governor Darling.¹⁹⁸ He and the governor had both been chastised for their hostile relationship.

138

At this time, the Privy Council apparently had jurisdiction to hear appeals from New South Wales, as a matter of Crown prerogative, but in fact there were no appeals from the permanent Supreme Court until 1845.¹⁹⁹ In the meantime, the Crown lawyers acted as an informal court of appeal, as Jane New's Case shows. This required the Supreme Court to defer to the views of those who had no formal constitutional position over their decisions.

139

The eventual reversal of the Supreme Court's view of section 9 was not the end of masters having property in the services of their convict servants. Nor did it mean that masters held their servants only at the whim of the governors, even if the law stated so. After Darling was criticized for doing that, his successors removed convicts only for justifiable reasons—because the convict was unsatisfactory, because the master had acted improperly, or because the convict had been emancipated or granted a ticket of leave. When a convict was emancipated or given a ticket of leave, a replacement was at once provided to the master. Under colonial regulations, masters could lend assigned convicts to one another, but not for a fee.²⁰⁰

140

These drastic restrictions on the property rights of convict masters did not eradicate all influences of the American notion of convict transportation. The transportation legislation still spoke in the language of property, and the Supreme Court was willing to give effect to that notion right up to the end of the assignment of convicts to private masters. Despite the governors' regulation to the contrary, Forbes CJ, Dowling J and Burton J allowed masters to hire out their laborers and to sue in debt for the money they were owed for such work.²⁰¹ They also allowed the master of a convict to sue another person for withholding the convict from his services.²⁰² Only Willis J dissented from this view, in his characteristically acid way. In 1839, he criticized Dowling for being the assignee of many convicts, which Willis thought was analogous to slavery. Willis also said that the services of many convicts were hired out from one master to another, contrary to the government regulations. Dowling and Stephen both thought that the hiring of convicts was legal so long as the governor gave consent. Right to the end of transportation to New South Wales, Dowling emphasized the master's property in convict services and its importance for the development of the colony and rehabilitation of the offender.²⁰³ And right to the end of the assignment of convicts, there was a trade in their services.

141

The system of assigning convicts to private masters was finally abolished in 1840.²⁰⁴ Assignment was replaced by the use of public labor in penal camps and settlements for all convicts.²⁰⁵ After more than 150 years, one of the most successful experiments in British penology came to an end in New South Wales and Van Diemen's Land. Thousands had been transported to New South Wales, very many of whom started new lives with new families. A few became wealthy, some were hanged for new crimes in the new land, more lived hellish lives in places like Norfolk Island, but the great bulk lived ordered working lives in the relative liberty of the penal colony.²⁰⁶ At the heart of this was the assignment system and the belief that transportation was for rehabilitation, not merely punishment.

142

The exile and incidental compulsory labor that had characterized convict transportation to America was extended to and then gradually tightened in New South Wales in the fifty years after 1788, before finally being abolished in 1840. In the eyes of the penal reformers, moral reformation was to replace physical punishment, and graded punishments were to replace the lottery of private assignments. This change led, logically, to the horrors of separate treatment, in separate cells, and separate stalls in chapels at places like Port Arthur in Van Diemen's Land. The last convicts arrived in mainland New South Wales in November 1840 (apart from unsuccessful revivals later in 1849). After then a new theory was put into effect in Van Diemen's Land and later in Western Australia. Convicts gained the supposed benefits of greater consistency of treatment and a concentration on moral reform, but at the price of the loss of their autonomy and participation in ordinary life that had characterized private assignments.²⁰⁷

143

Conclusion

Just as Maryland and Virginia had a "custom of the country" concerning coerced labor, so did New South Wales. From the beginning of the settlement at Sydney, convicts were able to hold property, live their own lives, and sue in the courts. The practice was for the governors to assume ownership of convict services as soon as the transport ships arrived from Britain or Ireland. The governors assigned most of them to private masters, some of whom passed them on to others, sometimes for a fee if Dowling J is to be believed. When convicts were assigned to their wives, a very peculiar form of marriage resulted, one unique to penal colonies.

144

This custom had some elements in common with that in America. There was a similar system of passes for convict servants who traveled away from their places of employment in both America and Australia,²⁰⁸ as well as physical punishment for disorderly or disobedient conduct. Some American convicts received payments at the end of their service, while the governors granted some early New South Wales convicts land, tools, and grain on their emancipation. But the differences were stark.

145

In some ways, New South Wales convicts were more free than those who had preceded them across the Atlantic to America. In the new colony men, though not women it seems, often had opportunities to earn extra money in their own time and few restrictions on how they spent it. After they obtained tickets of leave, and even before then in some cases, they lived in their own houses or as lodgers. No American convicts were assigned to their spouses as a matter of royal grace. Slavery, convict labor, and indentured labor were all different, but in Virginia and Maryland they had much in common as well: people, or their labor, could be property and with that word came a powerful body of rights. This property right was central to the customs of those ancient colonies. By studying that, we can begin to understand the debates in New South Wales.

146

In other ways, New South Wales convicts were under much tighter control than those in America. It was a penal colony, with private assignment of labor at its core. Convicts had no opportunity to buy their own freedom. There was no special convict discipline in America, no chain gangs, no places of secondary transportation, no convict barracks, no work for the government, no slop clothing, no government farms worked by convicts. A penal colony, particularly one being established from scratch, required a much stronger and more interventionist government than those of Virginia or Maryland. In America, convicts were treated largely in the same way as free indentured laborers. In New South Wales, the reverse appears to have happened, with free workers being treated to something approaching convict discipline.²⁰⁹

147

The law of attaint seems to have had little effect in America, although we cannot be certain of this. There has not yet been a thorough study of American colonial law concerning convicts. The Australian experience gives some hints about issues to examine. Attaint was particularly inappropriate for a penal colony and quite contrary to the custom of New South Wales. People could get away with murder there unless the rules of evidence were relaxed. Before and after the issue of tickets of leave, convicts entered into the commercial life of the colony and needed to have property rights and access to the courts. Yet the British Parliament eventually insisted on imposing the law of attaint, egged on by the exclusive cause, those who wished the convict stain to be permanent.

148

The problem was that the needs of the British government and those of the penal colony of New South Wales were so often in conflict. Some governments wanted the colony to be a place of deterrence, rather than rehabilitation, while some of the governors they sent, such as Macquarie and Bourke, favored rehabilitation. So did most of the judges. The rights of convicts and their masters were at the center of the great debates in the colony, those between emancipists and exclusives about the very nature of New South Wales. Was it a penal colony with a few free settlers, or an ordinary Crown colony in which transportation was incidental? Was transportation essentially exile, or was it a sentence analogous to imprisonment in a penitentiary? Was convict service essential to the imperial scheme, or merely incidental as it had been in America?

149

When the imperial Parliament ruled in 1832 that all convicts, whether condemned to death or not and whether ticket holders or not, were unable to hold property or sue, it was not merely a blunder of an institution out of touch with colonial conditions. Periodically, British governments attempted to tighten up convict discipline, such as when Commissioner Bigge visited New South Wales in the early 1820s. Some governments were more punitive than others, responding to pressures in England for tighter punishment, and so were some governors, particularly Darling.

150

While attitudes changed from one government or person to the next, the trend was towards greater control over convicts. Penology was changing. The masters of assigned convicts could not inflict a flogging, but they could take them to a magistrate for punishment. The illegal punishments inflicted by magistrates in colony's earlier years had ceased by the mid-1820s,²¹⁰ but the days of the relative freedom of both convicts and their masters were also passing. In 1829, the British government insisted that the governors were in control of assigned convicts, and the 1832 imperial act was designed to place further restrictions on the freedom of convicts when it expanded attaint so drastically. Convicts were now less likely to suffer arbitrary flogging, but they were more likely to be treated like prisoners under close confinement than the mere exiles that those sent to America had been in the early eighteenth century.

151

There were many sources of the powerfully resilient custom of the penal colony of New South Wales. It was based on a combination of contradictory elements, bits of formal English law, the policies of the British government and its legal advisers, the governors' orders and proclamations, the practices of convicts and their masters, the decisions of the colonial judges, and even elements of the customs of Maryland and Virginia. The latter were deeply embedded in the language of the imperial transportation legislation and were reinforced by the North American experience of Francis Forbes. Frontier societies often experienced informal resistance to the laws that were supposedly in force there, which led to the growth of new, informal laws,²¹¹ but this was something beyond that. Formal legal institutions with properly trained lawyers were in place in New South Wales by 1824, yet this blend of imperial and colonial principles, and law and practice, continued well after then. British governors and judges engaged in the making of new blended laws, sometimes resisting clearly expressed imperial law and policy.

152

As Atkinson insightfully argues, the issues of convict rights and of the power of the empire were interconnected. Convict freedom declined in the 1820s and 1830s, under an increasingly centralized empire and the belief that transportation was too easy. Both the nature of transportation and the source of power in the empire were contested, both in America and New South Wales. Before transportation to the American colonies ended, there were shifts toward a new notion of transportation, one based on enlightenment ideas of punishment. That was accelerated in New South Wales, as was the centralizing power of the empire. However, Atkinson's argument needs some refinement. There was more resistance to imperial pressures toward greater punishment of convicts than he states, and the debate over the rights of convicts to property lasted longer and was more complex than he indicates.²¹²

153

Many people in New South Wales resisted the policies and laws of the British government and Parliament, not least among them being the judges. Chief Justice Forbes, with the support of Dowling J and the first Stephen J, favored convict rehabilitation policies, using technicalities, refusal to follow English law, and interpretation of legislation to ensure considerable continuity between American and New South Wales approaches to convict management. The oddity was that New South Wales was a penal colony unlike those in America, yet the legislature was slow to recognize that. Even after the statutory changes to enforce the governors' control, the judges insisted on the strong enforcement of a property right in the masters of assigned convicts, a practice that had been born in America. Francis Forbes, the most American of Australian judges, ensured that this element remained at the center of New South Wales convict management until almost the end of transportation to New South Wales.

154

Bruce Kercher is professor of law at Macquarie University <bruce.kercher@mq.edu.au>. The author acknowledges the financial support of the Australian Research Council and Macquarie University toward this project. He is also indebted to Marie Mittiga, a graduate of Macquarie University (whose 1999 essay covered some of these themes) and to the four anonymous reviewers of this article for their extensive, valuable comments.

Notes

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

^2.�See A. Roger Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1718–1775 (Oxford: Clarendon Paperbacks, 1987), 27; Farley Grubb, "The Transatlantic Market for British Convict Labor," Journal of Economic History 60 (2000): 94. See also Abbott E. Smith, Colonists in Bondage: White Servitude and Convict Labor in America 1607–1776 (Gloucester, Mass.: Peter Smith, 1947), appendix; 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; 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; 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.

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

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

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

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

^7.�Since convict transportation was mainly to Virginia and Maryland, its neglect by American legal historians may be part of a general neglect of southern legal history. See Paul Finkelman, "Exploring Southern Legal History," North Carolina Law Review 64 (1985): 77–116.

^8.�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).

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

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

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

^12.�On the benefit of clergy, see Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century (London: Penguin, 1993), 82; Beattie, Crime and the Courts, 141–48, 452, 610; 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.

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

^14.�On the practical but systematic discretion available to prosecutors, juries, judges, and the Crown concerning punishment, see Beattie, Crime and the Courts, chap. 8 especially; Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850 (New York: Pantheon Books, 1978), 19–20; Peter King, "Decision-Makers and Decision-Making in the English Criminal Law, 1750–1800," Historical Journal 27 (1984): 25–58; Peter King, Crime, Justice, and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000), chap. 9; 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.

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

^16.�Alan Atkinson, "The Free-Born Englishman Transported: Convict Rights as a Measure of Eighteenth-Century Empire," Past and Present 144 (1994): 88–115.

^17.�See also (1719) 6 Geo. 1, c. 23.

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

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

^20.�(1766) 6 Geo. 3, c. 32.

^21.�Ekirch, Bound for America, 224.

^22.�Ibid., 3.

^23.�See ibid., 18, 71–72, 228; Grubb, "Transatlantic Market," 117–19. On the contracts, see Smith, Colonists in Bondage, chap. 6; Kenneth Morgan, "The Organization of the Convict Trade to Maryland: Stevenson, Randolph and Cheston, 1768–1775," William and Mary Quarterly 42 (1985): 201–27. On the effects of the absence of a subsidy in some areas, see Morgan and Rushton, Rogues, 153; and on the end of the subsidy, see Bailyn, Voyagers to the West, 263. On transportation to America, see also 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.

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

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

^26.�Smith, Colonists in Bondage, 122; Grubb, "Transatlantic Market," table 1.

^27.�Ekirch, Bound for America, 76.

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

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

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

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

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

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

^34.�Ekirch, Bound for America, 147, 198. 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. 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; 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.

^35.�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.

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

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

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

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

^40.�Atkinson, "Free-Born Englishman."

^41.�Smith, Colonists in Bondage, 303.

^42.�Grubb, "Statutory Regulation," 70–71.

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

^44.�Smith, Colonists in Bondage, 278.

^45.�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. 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.

^46.�Atkinson, "Free-Born Englishman," 97–98.

^47.�Bailyn, Voyagers to the West, 325; Fogleman, "Slaves, Convicts, and Servants," 57.

^48.�See Grubb, "Transatlantic Market"; Grubb, "Statutory Regulation." See also David Eltis, "Free and Coerced Transatlantic Migrations: Some Comparisons," American Historical Review 88 (1983): 251–80; 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.

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

^50.�See Francis Forbes, "Summary of the Law ... with regard to Persons who have been Adjudged Guilty of Crimes," 1 January 1823, in Historical Records of Australia, ed. Frederick Watson (Sydney: Library Committee of the Commonwealth Parliament, 1914–1925 [hereafter HRA]), series 4, vol. 1, 419.

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

^52.�Forbes, "Summary of the Law," 421–22.

^53.�Ekirch, Bound for America, 154. See also Atkinson, "Free-Born Englishman," 102–4.

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

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

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

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

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

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

^60.�F. W. Hall, "The Common Law: An Account of Its Reception in the United States," Vanderbilt Law Review 4 (1951): 791–825; Michael C. Tolley, "Maryland and Its Anglo-Legal Inheritance," Journal of Legal History 11 (1990): 355; Kermit Hall, William M. Wiecek, and Paul Finkleman, American Legal History: Cases and Materials, 2d ed. (New York: Oxford University Press, 1996), 24; and see Blackstone, Commentaries, 1st ed., vol. 1, 105; "1984 Survey of Books Relating to the Law: IV. Legal History: Criminal Justice in Colonial America, 1606–1660. By Bradley Chapin," Michigan Law Review 82 (1984): 881 n. 13.

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

^62.�See 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.

^63.�For some of the many possible examples of this point, see Friedman, History of American Law, prologue; 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; Cornelia H. Dayton, Women before the Bar: Gender, Law and Society in Connecticut, 1639–1789 (Chapel Hill: University of North Carolina Press, 1995); Bruce H. Mann, Neighbors and Strangers: Law and Community in Early Connecticut (Chapel Hill: University of North Carolina Press, 1987), 6–7; Hall, American Legal History, 23–29; Tomlins, Law, Labor and Ideology, 240; "1984 Survey"; Preyer, "Penal Measures in the American Colonies," 326–27.

^64.�On the British attempts to continue transportation after the revolution, see A. Roger Ekirch, "Great Britain's Secret Convict Trade to America, 1783–1784," American Historical Review 89 (1984): 1285–91; Reece, Origins, chaps. 8–11. For Newfoundland, see Jerry Bannister, "Convict Transportation and the Colonial State in Newfoundland, 1789," Acadiensis 27 (1998): 95–123. For Nova Scotia: Jim Phillips of the University of Toronto has generously sent the author copies of documents held by the Nova Scotia Archives and Records Management relating to convicts sent to Nova Scotia. The first reference is dated 1753, when the colony's officials refused to receive convicts from Newcastle. Shiploads of convicts continued to be sent (and resistance continued in the colony) into the late 1780s, even after the first fleet of convicts had begun the long voyage to New South Wales. On the resumption of transportation, see Beattie, Crime and the Courts, 592–601; and on the use of hulks and imprisonment at hard labor in the meantime, see 564–69, 573–76.

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

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

^67.�For a non-lawyer's view of this structure, see Alan Atkinson, "The First Plans for Governing New South Wales," Australian Historical Studies 24 (1990): 22–40; 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; Bruce Kercher, Debt, Seduction and Other Disasters: The Birth of Civil Law in Convict New South Wales (Sydney: Federation Press, 1996), chap. 1. On the first judge advocate, see John Currey, David Collins: A Colonial Life (Melbourne: Miegunyah Press, 2000).

^68.�See Caldwell, "Population," 114.

^69.�The New South Wales and Van Diemen's Land cases used here are taken from one of two sources: 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.

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

^71.�Atkinson, "Free-Born Englishman," 108.

^72.�See, for example, Bruce Kercher, "A Convict Conservative: George Crossley and the English Legal Tradition," Law in Context 19 (1998): 17.

^73.�Atkinson, "Free-Born Englishman," 109; Alan Atkinson, The Europeans in Australia: A History (Melbourne: Oxford University Press, 1997), 1: 69–70.

^74.�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; Atkinson, "The First Plans," 38–40; Hirst, Convict Society, 37; Atkinson, Europeans, 200–201, 210. 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.

^75.�See Hirst, Convict Society, 83, 206–7; John Ritchie, The Evidence to the Bigge Reports (Melbourne: Heinemann, 1971), 7–9.

^76.�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; Brian H. Fletcher, Ralph Darling: a Governor Maligned (Melbourne: Oxford University Press, 1984), 124–26; Shaw, Convicts and the Colonies, 196. See also Regulations for the Assignment of Male Convict Servants, in Australian, 19 May 1835. Patronage: Roger Therry, Reminiscences of Thirty Years' Residence in New South Wales and Victoria (1863; reprinted, Sydney: Sydney University Press, 1974), 133–34. 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. On the practice of convict assignment near the end of transportation to New South Wales, see Ryan v. Wilson, Australian, 16 March 1839.

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

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

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

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

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

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

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

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

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

^86.�See Hirst, Convict Society, 102–3 especially; and on their forerunners, see Atkinson, Europeans, 201, 212. For an example of a ticket of leave, see R. v. Badderly and Howard (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/r_v_badderly_and_howard__1828.htm.

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

^88.�Castles, Australian Legal History, 112, citing Bigge, Judicial, 7.

^89.�Currey, Forbes, 33. On Bigge, see Hirst, Convict Society, chap. 3. Bigge had a greater impact on Van Diemen's Land than New South Wales: see 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.

^90.�Bigge, Judicial, 7.

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

^92.�Bigge, Judicial, 9.

^93.�Ibid., 9–10.

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

^95.�See Kercher, "A Convict Conservative"; Castles, Australian Legal History, 106–10; Hirst, Convict Society, 116, 156–57; and see In re Roberts and Williams (1838), http://www.law.mq.edu.au/scnsw/Cases1838-39/html/in_re_roberts_and_williams__18.htm.

^96.�See HRA, series 1, vol. 10, 549.

^97.�(1823) 4 Geo. 4, c. 96, ss. 34, 35; repeated by (1828) 9 Geo. 4, c. 83, ss. 32, 33. This was recommended by Francis Forbes: see "Heads of Points for Consideration" 1823, in HRA, series 4, vol. 1, 417–18. On the interpretation of these provisions, see R. v. Simms (1831), http://www.law.mq.edu.au/scnsw/Cases1831-32/html/r_v_simms_and_others__1831.htm; R. v. O'Brien (1831), http://www.law.mq.edu.au/scnsw/Cases1831-32/html/r_v_o_brien_and_others__1831.htm; R. v. Smith (1831), http://www.law.mq.edu.au/scnsw/Cases1831-32/html/r_v_smith__1831.htm; 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; In the estate of Dempsey (1838), http://www.law.mq.edu.au/scnsw/Cases1838-39/html/in_the_estate_of_dempsey__1838.htm. See Castles, Australian Legal History, 114; Currey, Forbes, 34–35.

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

^99.�R. v. Murphy and Sullivan, 1824, http://www.law.mq.edu.au/scnsw/html/r_v_murphy_and_sullivan__1824.html.

^100.�See (1823) 4 Geo. 4, c. 96.

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

^102.�MacDonald v. Levy (1833), http://www.law.mq.edu.au/scnsw/Cases1833-34/html/macdonald_v_levy__1833.htm.

^103.�(1823) 4 Geo. 4, c. 96, s. 29.

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

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

^106.�R. v. Cable (1826), http://www.law.mq.edu.au/scnsw/html/r_v_cable__1826.htm. See also Hart v. Rowley (1825), http://www.law.mq.edu.au/scnsw/html/hart_v_rowley__1825.htm; R. v. Baker (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/r_v_baker__1828.htm; Watkins v. Solomon (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/watkins_v_solomon__1834.htm.

^107.�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; and see Cooper v. Clarkson (1831), http://www.law.mq.edu.au/scnsw/Cases1831-32/html/cooper_v_clarkson__1831.html; R. v. Ross, 1838, http://www.law.mq.edu.au/scnsw/Cases1838-39/html/r_v_ross__1838.htm; Doe dem Cotton v. Farrell (1847) 1Legge 408; Doe dem Tugwell v. Farrell (1847) 1 Legge 399.

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

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

^110.�Septon v. Cobcroft (1833), http://www.law.mq.edu.au/scnsw/Cases1833-34/html/septon_v_cobcroft__1833.htm (Forbes and Burton in the majority, Dowling in dissent).

^111.�R. v. Geeson, Herbert and Welsh (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/r_v_geeson__herbert_and_welsh_.htm.

^112.�See Belcher v. Deneen (1832), http://www.law.mq.edu.au/scnsw/Cases1831-32/html/belcher_v_deneen__1832.htm (per Dowling J, relying on Cooper v. Clarkson [1831]). 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.

^113.�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.

^114.�Mutiny: R. v. Douglas and others (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/r_v_douglas_and_others__1834.htm. 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; R. v. Walton and others (1827), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/r_v_walton_et_al.__1827.htm. 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; R. v. Lacey and others, in Tasmanian, 14 December 1827; and see Australian, 29 May 1835; R. v. Donovan (1824), http://www.law.mq.edu.au/scnsw/html/r_v_donovan__1824.html; R. v. Vials (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/r_v_vials__1834.htm; R. v. Jeffries (1835), http://www.law.mq.edu.au/scnsw/cases1835-36/html/r_v_jeffries__1835.htm; R. v. M'Allister and Wilson, in Australian, 7 March 1828.

^115.�R. v. Gardener and Yems (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/r_v_gardener_and_yems__1829.htm. 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.

^116.�R. v. Farrell, Dingle and Woodward (1831), http://www.law.mq.edu.au/scnsw/Cases1831-32/html/r_v_farrell__dingle_and_woodwa.htm. See Currey, Forbes, 462–64; Castles, Australian Legal History, pp. 200, 500, 503, 507, 528; John M. Bennett, The Lives of the Australian Chief Justices: Sir James Dowling (Sydney: Federation Press, 2001), chap. 3.

^117.�R. v. Dick and Jasper (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/r_v_dick_and_jasper__1829.htm.

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

^119.�See also his shift from R. v. Ballard (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/r_v_ballard_or_barrett__1829.htm to 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.

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

^121.�Therry, Reminiscences, 203–5.

^122.�See Sydney Herald, 1 May 1841.

^123.�Burton: R. v. McCabe (1833), http://www.law.mq.edu.au/scnsw/Cases1833-34/html/r_v_mccabe__1833.htm; R. v. Palmer (1838), http://www.law.mq.edu.au/scnsw/Cases1838-39/html/r_v_palmer__1838.htm; and see R. v. Nicholls (1837), http://www.law.mq.edu.au/scnsw/Cases1836-37/html/r_v_nicholls__1837.htm; R. v. Blackhall, Martin and Watkins (1838), http://www.law.mq.edu.au/scnsw/Cases1838-39/html/r_v_blackhall__1838.htm. 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. Willis: R. v. Humphreys, in Sydney Herald, 3 November 1840. By 1833, Governor Bourke thought that the new majority on the court would either revert to 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 peculiarR. 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?).

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

^125.�R. v. Cavenagh (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/r_v_cavenagh__chesterfield_and.htm. In 1844, the New South Wales Legislative Council enacted 8 Vic. no. 1, which allowed those convicted of crimes to give evidence: see Bennett, Dowling, 48.

^126.�Atkinson, "Free-Born Englishman," 108 especially.

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

^128.�See Sydney Gazette, 4 April 1828.

^129.�R. v. Cunningham, Oates and McLellan (1833), http://www.law.mq.edu.au/scnsw/Cases1833-34/html/r_v_cunningham__1833.htm; 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; R. v. Hancock (1835), http://www.law.mq.edu.au/scnsw/cases1835-36/html/r_v_hancock__1835.htm; R. v. Gawenlock (1838), http://www.law.mq.edu.au/scnsw/Cases1838-39/html/r_v_gawenlock__1838.htm. See contra R. v. Barker (1830), http://www.law.mq.edu.au/scn-sw/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. 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.

^130.�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), but see contra, Gilroy v. Mannix (1833), http://www.law.mq.edu.au/scnsw/Cases1833-34/html/gilroy_v_mannix__1833.htm. 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); 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); 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); and see Polack v. Josephson (1825), http://www.law.mq.edu.au/scnsw/html/polack_v_josephson__1825.htm; Therry, Reminiscences, 319 and see 330–31.

^131.�Gannon v. Jobbins (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/gannon_v_jobbins__1828.htm.

^132.�Convict Assignment Opinion (1827), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/convict_assignment_opinion__18.htm.

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

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

^135.�(1832) 3 Wm. 4, no. 3, s. 36.

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

^137.�Tunnicliff v. Barrett (1833), http://www.law.mq.edu.au/scnsw/Cases1833-34/html/tunnicliff_v_barrett__1833.htm.

^138.�See also R. v. Ross (1838).

^139.�Williams v. Hanson (1835), http://www.law.mq.edu.au/scnsw/cases1835-36/html/williams_v_hanson__1835.htm.

^140.�R. v. Gallagher (1837), http://www.law.mq.edu.au/scnsw/Cases1836-37/html/r_v_gallagher__1837.htm.

^141.�R. v. Davis (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/r_v_davis__1834.htm.

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

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

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

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

^146.�In re White, in Sydney Herald, 20 May 1840. The Crown also waived its right to forfeiture after the convict died (In re Hussey and McGrath [1828], http://www.law.mq.edu.au/scnsw/Cases1827-28/html/in_re_hussey_and_mcgrath__1828.htm, and on the revocation of a ticket of leave (Therry, Reminiscences, 320–21).

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

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

^149.�For the government's refusal to do this, see, for example, R. v. Lookaye alias Edwards (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/in_re_lookaye_alias_edwards__1.htm.

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

^151.�Doe dem Clark v. Smithers (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/doe_dem_clarke_v_smithers__183.htm.

^152.�McNamarra v. Wilson (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/mcnamara_v_wilson__1834.htm.

^153.�Beale v. Raine (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/beale_v_raine__1829.html.

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

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

^156.�In re Cave (1826), http://www.law.mq.edu.au/scnsw/html/in_re_cave__1826.htm; and see Lyons v. Cave (1827), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/lyons_v_cave__1827.htm; In re Mary Smith, 15 November 1828, Dowling, Select Cases, vol. 2, State Records of New South Wales, 2/3462, p. 105. See also Kettle v. Stubbs (1838), http://www.law.mq.edu.au/scnsw/Cases1838-39/html/kettle_v_stubbs__1838.htm.

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

^158.�Green v. Woodroffe (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/green_v_woodroffe__1828.htm.

^159.�Wild v. Driver (1837), http://www.law.mq.edu.au/scnsw/Cases1836-37/html/wild_v_driver__1837.htm; Wild v. Driver (1838), http://www.law.mq.edu.au/scnsw/Cases1838-39/html/wild_v_driver__1838.htm. On the inheritance rights of a wife of a ticket of leave holder, see R. v. Smith, Australian, 6 August 1839.

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

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

^162.�(1779) 19 Geo. 3, c. 74, s. 2.

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

^164.�Atkinson, "Free-Born Englishman," 108.

^165.�(1824) 5 Geo. 4, c. 84.

^166.�See Murray to Darling, 30 August 1828, Mitchell Library, A 746. As discussed below, this changed in 1828: see 9 Geo. 4, c. 83, s. 9. See also Bathurst to Darling, 10 February 1827, HRA, series 1, vol. 13, 115–16. For the background to this, see the footnotes in Convict Assignment Opinion, (1827), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/convict_assignment_opinion__18.htm. For one version of this controversy, see Shaw, Convicts and the Colonies, 231–33.

^167.�Australian, 3 August 1827.

^168.�R. v. Wardell (No. 2) (1827), 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.)

^169.�See In re Harris (1827), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/in_re_harris__1827.htm.

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

^171.�There were many others, including the interpretation of colonial legislation, declarations that some of the colonial acts were repugnant to English law, the judges' supposed sympathy for the emancipist faction, and the appointment of a new registrar of the Supreme Court. See the footnotes in R. v. Howe (1828), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/r_v_howe__1828.htm; 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." See also Currey, Forbes; and Fletcher, Ralph Darling.

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

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

^174.�Currey, Forbes, 5, and on this paragraph, see chap. 1; 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.

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

^176.�On Coke, see Alan Cromartie, Sir Matthew Hale, 1609–1676: Law, Religion and Natural Philosophy (Cambridge: Cambridge University Press, 1995), 25–26; Blackstone, Commentaries, 1st ed., vol. 1, 87; and see Gerald J. Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1986), chap. 1.

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

^178.�Forbes to Horton, 6 February 1825, Catton Papers, Australian Joint Copying Project, Reel M791. The analogy between convicts and slaves was often made and is the subject of some debate among historians in Australia: see Hirst, Convict Society, chap. 2; Neal, The Rule of Law, chap. 2; Stephen Nicholas "The Convict Labor Market" in Convict Workers, ed. Nicholas, chap. 8, and Dyster, "Public Employment," ibid., chap. 9. Neal is mistaken at 36 when he says that the service of convicts remained the property of the governors, who merely licensed masters to use it. Nicholas makes the same mistake at 112. On the illtreatment 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; R. v. Benson and others (1825), http://www.law.mq.edu.au/scnsw/html/r_v_benson__cogan__sprole__rod.htm; R. v. McGregor and Maloney (1834), http://www.law.mq.edu.au/scnsw/Cases1834/html/r_v_mcgregor_and_maloney__1834.htm.

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

^180.�In re Jane New (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/in_re_jane_new__1829.html. See Currey, Forbes, chap. 31; Bennett, Dowling, chap. 2. See also the similar case of In re Harris (1827).

^181.�The other great controversy between Forbes and Darling concerned the governor's powers to punish convicts. This was at the heart of the Sudds and Thompson controversy, on which see Transportation Opinion (1826), http://www.law.mq.edu.au/scnsw/html/transportation_opinion__1826.htm.

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

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

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

^185.�This is one of the great themes of early New South Wales history. On these issues, see, for example, 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; Neal, The Rule of Law; and Bennett, Lives: Dowling, chap. 4, all of which take a legal view of the events. On the call for impeachment, see Ex parte Wentworth, in re Mansfield (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/ex_parte_wentworth__in_re_mans.html; Currey, Forbes, chap. 39.

^186.�See Edgworth, "Defamation Law"; Currey, Forbes, chaps. 18–20, 33, 34–35.

^187.�In re Tyler (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/in_re_tyler_r._v_rossi_and_oth.htm. 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; Hayes v. Hely (1830), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/hayes_v_hely__1830.htm. See also In re Harris (1827); and Monitor, 30 August, 1 and 25 October 1827 (on the removal of another convict, in 1827).

^188.�See R. v. Hall (Nos. 2, 3, 4, 6, 7 and 8) (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/1829.htm.

^189.�Hall v. Hely (1830), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/hall_v_hely__1830.htm; Hayes v. Hely (1830). See also In re Hayes (1829).

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

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

^192.�Despatch, 2 August 1830, HRA, series 1, vol. 15, 648–54. See also Robin B. Walker, The Newspaper Press in New South Wales, 1803–1920 (Sydney: Sydney University Press, 1976), 16–17; Currey, Forbes, chap. 31.

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

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

^195.�Murray to Darling, 30 January 1830, HRA, series 1, vol. 15, 346–53. See also Murray to Darling, 6 April 1830, HRA, series 1, vol. 15, 391. On the consequences of the Sydney Gazette's commentary on this, see R. v. Mansfield (No. 2) (1830), 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.

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

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

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

^199.�Flint v. Walker (1845, 1847), 5 Moo PC 179, 13 ER 459. On prerogative appeals, see Lord v. Wentworth (1829), http://www.law.mq.edu.au/scnsw/Cases1829-30/html/lord_v_wentworth__1829.htm. 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, and see Forbes and Dowling to McLeay, 14 August 1834, Chief Justice's Letter Book, 1824–1835, State Records of New South Wales, 4/6651, 382. The Crown had failed to act on (1828) 9 Geo. 4, c. 83, s. 15.

^200.�Regulations for the Assignment of Male Convict Servants, in Australian, 19 May 1835. See also Gipps to Glenelg, 8 October 1838, HRA, series 1, vol. 19, 603–4, 616, 679, and 773.

^201.�See Cain v. Broomfield (1833), http://www.law.mq.edu.au/scnsw/Cases1833-34/html/cain_v_bloomfield__1833.html; Carr v. Stephen, Sydney Gazette, 23 March 1839. 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.

^202.�Barton v. Parry (No. 2) (1834). See also Somerville v. Hosking, Sydney Herald, 26 June 1839. On the removal of convicts, see also Lamb v. Brenan (1837), http://www.law.mq.edu.au/scnsw/Cases1836-37/html/lamb_v_brenan_and_holden__1837.htm. 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.

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

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

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

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

^207.�See Hirst, Convict Society, chap. 4; Bruce Kercher, An Unruly Child: A History of Law in Australia (Sydney: Allen and Unwin, 1995), 40–42.

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

^209.�See Michael Quinlan, "Regulating Labor in a Colonial Context," Australian Historical Studies 111 (1998): 303–4, citing Neal, The Rule of Law, 133–37.

^210.�Francis Forbes, "Heads of Points for Consideration" 1823, in HRA, series 4, vol. 1, 417, recommended that the former illegal sentences now be given force of law and the magistrates indemnified. This did not prevent litigation against them, as to which see, for example, R. v. Dawson (1827), http://www.law.mq.edu.au/scnsw/Cases1827-28/html/r_v_dawson__1827.htm and see M'Arthur v. Hill and Hall (1826), http://www.law.mq.edu.au/scn-sw/html/m_arthur_v_hill_and_hall__1826.htm; R. v. Howe (1826), http://www.law.mq.edu.au/scnsw/html/r_v_howe__1826.htm; R. v. Hall (No. 3) (1828), http://www.law.mq.edu.au/scn-sw/Cases1827-28/html/r_v_hall__no_3___1828.htm. See also Hirst, Convict Society, 58–6, 175–76; Shaw, Convicts and the Colonies, 193–94.

^211.�See Bruce Kercher, "Resistance to Law under Autocracy," Modern Law Review 60 (1997): 779–97.

^212.�Atkinson, "Free-Born Englishman," especially 111–12.

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