Two notable features in the 17th and 18th centuries in England were the severity of the criminal justice system (resulting in overcrowded prisons) and the development of overseas colonies (with a consequent demand for labourers). Transportation to “distant lands” was introduced as an alternative punishment to the death penalty as well as being seen to discourage crime by creating fear of being “exiled”. An additional benefit was that it provided a cheap labour force for colonists as well as potentially leading to the rehabilitation and reform of convicts by removing them from their criminal environment in England.
Until 1717 transportation was part of the penal process and not a direct sentencing option. The Transportation Act (long title: An Act for the further preventing Robbery, Burglary, and other Felonies, and for the more effectual Transportation of Felons, and unlawful Exporters of Wool; and for declaring the Law upon some Points relating to Pirates; also referred to as the Felons Act), was introduced into the House of Commons in 1717. It legitimised transportation as a direct sentencing option for judges to transport criminals to the American colonies.
This arrangement was to last for nearly six decades until the outbreak of the American War of Independence led to its suspension in 1776. Transportation of criminals ceased to be a sentencing option in English courts until the Parliament issued Orders in Council on 6 December 1785 (as authorised by the Transportation Act (24 Geo. III c. 56 in 1784), mandating the establishment of a penal colony in New South Wales. Transportation of English criminals resumed in 1787 with the departure of the First Fleet for the Colony of New South Wales, under the command of Governor Arthur Phillip. Nearly 700 of the 1,044 of new arrivals were convicts.
Prior to his departure Phillip had drawn up a detailed memorandum of his plans for the proposed new colony. In one paragraph he wrote: “The laws of this country [England] will of course, be introduced in [New] South Wales, and there is one that I would wish to take place from the moment his Majesty’s forces take possession of the country: That there can be no slavery in a free land, and consequently no slaves.” He was making a clear distinction between slavery where people were “property” to be bought and sold and transportation of convicts who would be “free” at the end of their sentences.
Governor Phillip also received Instructions from King George III “with the advice of his Privy Council” for managing the convicts, granting and cultivating the land and exploring the country. The Aborigines’ lives and livelihoods were to be protected and friendly relations with them encouraged, but the Instructions make no mention of protecting or even recognising their lands. To date, no official copy of these instructions has been located and the information about the contents relies on a manuscript draft in the Public Records Office in London dated 20 April 1787 (CO 201/1ff 29-45v).
Other relevant Imperial legislation setting out the conditions for transportation of convicts to the Australian colonies and defining the powers of governors in dealing with convicts include:
- The New South Wales Act 1787 (27 Geo III, c 2) is the foundation Act of the legal system of the Australian colonies. It established the first criminal court, the Court of Criminal Jurisdiction, which operated in New South Wales between 1788 and 1823 (including the dependency of Van Diemen’s Land from 1803 to 1823). It ensured that British law landed with the First Fleet in 1788 and that the convict colony had the basis for law enforcement. The Court of Criminal Jurisdiction was established by the first Charter of Justice by way of Letters Patent on 2 April 1787 and was to “proceed in a more summary way than is used in this realm”, by adapting court procedures to the conditions of the new convict colony.
- The Transportation Act 1790 (30 Geo III c 47), in addition to declaring felons and other offenders should be transported to New South Wales authorised the Governor of a penal colony to remit, absolutely or conditionally, a part or the whole of the sentences of convicts.
- With the 1784 Transportation Act due to expire in 1824, a new Transportation Act (5 Geo IV c 84) was passed to authorise His Majesty “to appoint any place or places beyond the seas, either within or without Her Majesty’s dominions”, to which offenders so sentenced shall be conveyed; The order for their removal must be given by one of the principal Secretaries of State. The places so appointed are the two Australian colonies of New South Wales, Van Diemen’s Land, and … Norfolk Island. The 1824 Transportation Act gave to the Governor of a penal colony a property in the services of a transported offender for the period of his sentence, and authorised the Governor to assign over such offender to any other person. Debate on the Transportation of Offenders Bill in the UK Parliament on 4 June 1824 gives an insight into the attitudes of English politicians on transportation of convicts at this time.
- The Australia Courts Act 1828 (9 Geo IV c 83) empowered the Governor to grant a temporary remission of sentence.
- The Forgery, Abolition of Punishment of Death etc Act 1832 (2 & 3 Will IV c 62) abolished the death penalty for all offences of forgery, except for forging wills and certain powers of attorney. The exception was abolished in 1837.
While the English courts were responsible for sentencing offenders to be transported to the Australian colonies, once convicts arrived in New South Wales and Van Diemen’s Land they were subject to a variety of colonial laws, framed by the local legislatures that had been established by the New South Wales Act 1823 (4 Geo IV c 96).
However the reach of the Colonial Office in London could extend into regulations governing convict treatment and discipline in the colonies. While Lieutenant Governor Arthur agreed that it was necessary to maintain and even increase the “dread” of transportation as a deterrent to crime in England, he felt it necessary to protest in 1833 when the Secretary of State, Edward Stanley, ordered him to send nominated bad offenders to work in irons on their arrival, thus bypassing the normal debarkation procedures for convicts in Hobart. Arthur was able to stall implementation of these orders, raising issues of cost and lack of incentives for reformation, until the orders were cancelled because they were deemed illegal.
In another dispute with the Secretary of State (this time Lord Goderich) Arthur was appalled at the suggestion that all prisoners doing road works should be “ironed”, the rationale of the Colonial Office being that if they weren’t, it reduced the dread of transportation. While such a move was seen as beneficial to English society, for Arthur, the man on the ground, it would seriously interfere with a convict’s incentive to reform. He also had to justify using convict labour for public works, since the Colonial Office thought this another “soft option”. In the end Arthur prevailed.
During Arthur’s time as Lieutenant Governor convicts were a source of labour to build roads, bridges, courthouses, hospitals and other public buildings, to work on government farms, or if educated, to undertake tasks such as record-keeping for the government administration. They were also assigned to be servants for eligible free settlers.
However it was inevitable that, with the steady increase in the numbers of free settlers and labourers arriving in all Australian colonies, agitation would grow for the abolition of transportation and a corresponding move towards representative government. Attitudes were also changing in England.
In 1838 the House of Commons Select Committee on Transportation (Molesworth Report) concluded that transportation had not succeeded in deterring crime; in fact it contributed to moral corruption and was akin to slavery. The Report, along with a barrage of protests from groups such as the Australasian Anti-Transportation League saw the abolition of transportation to New South Wales in 1840 (Order in Council 22 May 1840). Agitation from the citizens of Van Diemen’s continued as they demanded cessation of transportation for their Colony and on 20 May 1851 Sir William Molesworth presented their petitions to the English Parliament.
However transportation to Van Diemen’s Land continued until 1853, when the St Vincent arrived in Hobart with the final cargo of convicts, following a promise by the Colonial Office in February 1853 to cease transportation. From the arrival of the first transport ship in Hobart in 1812, the Indefatigable, to 1853 it is estimated more than 70,000 convicts had been sent to the Colony.
In Van Diemen’s Land a Cessation of Transportation medal was struck in 1853 to celebrate the end of “the hated stain”.