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 Englan