Freedom on the Fatal Shore: Australia’s First Colony

By John Hirst

Freedom on the Fatal Shore brings together John Hirst's two books on the early history of New South Wales. Both are classic accounts which have had a profound effect on the understanding of our history. This combined edition includes a new foreword by the author.

Convicts with their "own time", convicts with legal rights, convicts making money, convicts getting drunk - what sort of prison was this? Hirst describes how the convict colony actually worked and how Australian democracy came into being, despite the opposition of the most powerful. He writes: "This was not a society that had to become free; its freedoms were well established from the earliest times."

“Colonial Australia was a more ‘normal’ place than one might imagine from the folkloric picture of society governed by the lash and the triangle, composed of groaning white slaves tyrannised by ruthless masters. The book that best conveys this and has rightly become a landmark in recent studies of the System is J.B. Hirst’s Convict Society and Its Enemies.” —Robert Hughes, The Fatal Shore

“Anyone with an interest in Australian political culture will find The Strange Birth of Colonial Democracy invaluable.” —Professor Colin Hughes, former Electoral Commissioner for the Commonwealth

John Hirst was a member of the History Department at La Trobe University from 1968 to 2007. He has written many books on Australian history, including Convict Society and Its Enemies, The Strange Birth of Colonial Democracy, The Sentimental Nation, Sense and Nonsense in Australian History and The Shortest History of Europe.

• Language: English
• Publisher: Black Inc. Books
• Release date: May 1, 2008
• ISBN: 9781921866326

John Hirst

John Hirst was a member of the History Department at La Trobe University from 1968 to 2007. He has written many books on Australian history, including Convict Society and Its Enemies, The Strange Birth of Colonial Democracy, The Sentimental Nation, Sense and Nonsense in Australian History and The Shortest History of Europe.

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Freedom on the Fatal Shore

Australia’s First Colony

BEING

Convict society and its enemies: a history of early New South Wales (1983)

The strange birth of colonial democracy: New South Wales 1848–1884 (1988)

John HIRST

FREEDOM ON THE FATAL SHORE

Published by Black Inc.,

an imprint of Schwartz Publishing Pty Ltd

Level 5, 289 Flinders Lane

Melbourne Victoria 3000 Australia

email: [e-mail]

http://www.blackincbooks.com

© John Hirst, 2008

Convict Society and Its Enemies and The Strange Birth of Colonial Democracy were originally published by Allen & Unwin in 1983 and 1988 respectively.

ALL RIGHTS RESERVED.

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means electronic, mechanical, photocopying, recording or otherwise without the prior consent of the publishers.

Illustration on p.1, Carl Friedrich Dietch, Reise nach Neu-Süd Wallis, Leipzig, 1829 p.205, Mitchell Library, Sydney.

Every effort has been made to contact the copyright holders of material in this book. However, where an omission has occurred, the publisher will gladly include acknowledgement in any future edition.

The National Library of Australia Cataloguing-in-Publication entry:

Hirst, J. B. (John Bradley), 1942-

Freedom on the fatal shore : Australia’s first colony /

ISBN: 9781863952071 (pbk.)

Includes index.

Bibliography.

Penal colonies--Great Britain. Convicts--New South Wales--Social conditions. Democracy--New South Wales--History. New South Wales--Exiles. New South Wales--Social life and customs--1788-1851. New South Wales--Politics and government--1851-1891.

994.402

Book design: Thomas Deverall

Typeset by J&M Typesetting Pty Ltd

Foreword

Freedom on the Fatal Shore reprints my two books on the early history of New South Wales, Convict society and its enemies and The strange birth of colonial democracy. Taken together they cover the first hundred years of the colony’s history.

The phrase ‘the fatal shore’, originally in a convict ballad, has been made famous as the title of Robert Hughes’ magnificent book on the convict system. The advance publicity for The Fatal Shore had no need to tell lies about it, but it made the claim that this was the first book seriously to examine the convict experience in Australia. I was ropeable. Why was my book Convict society and its enemies, then four years old, being overlooked? When this claim was repeated in a quality newspaper, I determined to write a letter-to-the-editor to correct this error and push my own claims. My wife told me that I should not think of doing such a thing until I had seen the Hughes book. I am very pleased to have followed her advice. In his Introduction Hughes wrote:

Colonial Australia … was a more ‘normal’ place than one might imagine from the folkloric picture of society governed by the lash and the triangle, composed of groaning white slaves tyrannized by ruthless masters. The book that best conveys this and has rightly become a landmark in recent studies of the System is J. B. Hirst’s Convict society and its enemies.

The Fatal Shore, sometimes drawing on my work, acknowledges that convicts were not slaves owned by their masters, that they could be punished only by order of the court, that they possessed and claimed various rights which they were very ready to defend, that they were better fed than working people in Britain, that they were not usually called ‘convicts’ – and, finally, that assignment to private masters, which was the centrepiece of the convict system, was ‘by far the most successful form of penal rehabilitation that had ever been tried in English, American or European history’. But these acknowledgements come as summary statements; we don’t see close up and in memorable detail governors and masters being forced to negotiate with convicts, or convicts working ‘in their own time’ and making good money, or ticket-of-leave men running their own cattle with their master’s. Hughes devotes the greater part of his book to the penal VIII settlements where convicts who committed further crimes were sent: Norfolk Island, Macquarie Harbour, Moreton Bay and Port Arthur. These were horrible places and Hughes’ words have the power to convey the horrors, fresh and raw. There are pages and pages on the oppressions and floggings; this is what he wants to drill into our memories.

Hughes acknowledges that I discuss ‘the lower depths of the System’ but suggests that I may have underestimated the moral and human significance of these places. Certainly, he concedes, only a minority of the convicts was sent there but they provided ‘a standard of terror’ which was designed to enforce good behaviour in all the rest. As in Russia under the communists, only a small fraction of the population had to be sent to the Gulag to keep the rest in line. This slips into equating convict New South Wales with the arbitrariness of totalitarian rule – and so denies an important part of its ‘normality’. You could be sent to Norfolk Island only by a trial in open court where the standard of proof was beyond reasonable doubt. If everyone lived in the shadow of terror, a convict could not write home, ‘all a man has got to mind is to keep a still tongue in his head and do his master’s duty and he is looked upon as if he were at home’ (which I cite) or ‘I hav got a very good place all the Bondeg I am under is to answer My name Every Sunday before I goes to church so you Mit not think that I am made a Slave of, for I am not, it is quite the reverse of it’ (which Hughes cites). These convicts no more lived in terror of Norfolk Island than I do of a maximum-security prison. Of course, given who the convicts were, there were plenty who did not want to work or would not accept any authority or could not stop thieving. They could well end up on Norfolk Island – or perhaps be kept in some sort of order by fear of it.

None of Hughes’ acknowledgement of ‘normality’ disturbs the controlling image of the book: that one society determined on a sort of final solution for crime by shipping its ‘scum’ to the other side of the world. ‘Scum’ is his term, which he uses regularly to show how convicts were thought of. But ‘scum’ is at odds with much of what Hughes reports as the book proceeds – like convicts having legal rights and not being called convicts – and sometimes a single passage breaks down in contradiction. Consider his treatment of the Second Fleet. Since the convicts are ‘thieves and scum’, the government is happy to allow private contractors to ship them to New South Wales and make money out of it. The contractors for the Second Fleet treat the convicts appallingly, and as the dead and dying are carried off the boats in Sydney Cove the contractors open a store selling the food and clothing that should have been supplied to the convicts on the voyage. But when news of this terrible voyage reaches London, there is public outrage and an enquiry, though no one is prosecuted. Soon, however, improvements are made: contractors get paid according IX to how many convicts they land alive in Sydney; doctors are sent with them and finally doctors are given authority over even the ship’s master to ensure that convict health and well-being are protected. After these changes, it was safer to sail as a convict to Australia than as a free migrant to America. The story, even in Hughes’ hands, is of humanitarian concern extending to convicts, growing acceptance of responsibility by governments and innovative methods to extend their control. This is the world in which New South Wales took shape; its ruling spirits were not, as Hughes claimed on the first page of his book, Hobbes and Sade.

The more convicts are depicted as ‘scum’, the harder it is to explain how New South Wales made such an untroubled transition to a free society. Hughes cannot explain this; I took it as the central task of my book. I concluded that the answer is to be found in how this settlement was conceived and run from the outset. In the Introduction I wrote: ‘This was not a society which had to become free; its freedoms were well established from the earliest times.’ This puzzled some readers. Was I saying that convicts did not endure bondage? No. Was I saying that New South Wales in 1788, with the governor all-powerful, was a free society? No. I was saying that in this strange convict colony no permanent bars or exclusions at odds with a free society ever took hold:

No one had a vote in New South Wales until transportation ended, but the making of a free society had been going on almost since the day it began. Free children had been born to convict parents. Convicts had been gaining their freedom; no bar was placed on their economic activities and they enjoyed the same legal rights as those who had come free. Employers of all sorts had become used to a mixed labour force, part convict, part ex-convict and later nativeborn and free emigrant as well. When transportation ended no legal or institutional changes were required. The convicts still in bondage gradually progressed to freedom. The proportion of convicts in the labour force declined to zero.

There is a story to be told of the colony slowly acquiring the legal and political institutions of a free society, but the social structure of a free society was already there.

Most histories describe early New South Wales as a jail or a penal colony (in my view misleading terms for what was a unique social formation) and then they have to find some grand transforming event which changed a penal colony or a jail to a free society. No one agrees on what event this was; no one’s event looks quite significant enough. Among the events chosen have been: the arrival of the first free settlers; the governorship of Macquarie who favoured the ex-convicts; the creation in 1823 X of a small nominated Council to advise the governor; the arrival of the first free migrant workers in the 1830s; the end of transportation in 1840. My suggestion in the book is that none of these themes of transformation works well because the convict system of , without the intervention of any other factor, reproduced something other than itself – it made free people, the children of convicts and the ex-convicts, who, in the words of the certificate of freedom, enjoyed ‘all the rights and privileges of free subjects’. Freedom grew automatically on this fatal shore. If there had been no convict women (and hence no children of convicts) and if convicts on becoming free had left the colony or remained as less than free subjects, then the simple founding social structure of convicts and their guards would have been perpetuated. A society of that sort would rightly be called a penal colony. A major transformation would have been required to make it into a free society.

Hughes’ book did not suffer in popular estimation because it depicts convict outcasts in a gallery of horrors and leaves unexplained how such a place turned without disruption into a normal self-governing colony. This is how Australians see their convict past; a dark age created here by the British which stands as symbol of what modern Australia is not. Australians are no longer ashamed of their convict past but when in their family-history researches they find a convict ancestor who lived well or prospered, they put it down to good fortune in a world of tyranny. In fact any convict with skill or merely just a willingness to work would be most unlucky not to do well.

My book runs against the grain of popular understanding in two ways: in finding ‘normality’ among the horrors, and in ascribing it in part to the Britishness of the place. It was the British respect for law and the unwillingness of the British government to allow the free settlers to run the colony in their interest that explain why the subjugation of convicts did not become tyranny.

While transportation to New South Wales continued, the British government kept power in its own hands. Its local agent was the governor, appointed by the Colonial Office and responsible to it. There was a local Legislative Council but its powers were severely limited and its members were nominated by the governor himself. When transportation ceased in 1840, the British government allowed elections to take place for the Legislative Council; only for two-thirds of the members, the rest being nominated as in the past by the governor, and with the Council still having far from full authority over the colony’s destiny. The landowners, squatters, merchants and professional men who occupied seats in the Council assumed that when self-government was granted, they would be in charge. As in England most of the people would be excluded from political rights; at the Council elections only one man in five had the vote. XI When self-government came in the 1850s, this elite was quickly bundled out of office and liberals and democrats formed governments and passed laws giving all men the vote and removing the bulwarks of conservative rule. This was an amazingly rapid and unexpected transformation. The strange birth of colonial democracy attempts to explain why the transformation happened and assesses the nature of the polity which was constructed on the democratic freedoms.

The democratic activists of the 1840s and 1850s thought that democracy could only be achieved by a break from aristocratic Britain. Britain had long stood as the opponent of democracy, which was depicted as mob rule and a threat to the British freedoms, but by the 1850s developments within Britain itself made it possible to extend popular power in the colony and remain British. One of the costs of this was not to call colonial democracy, democracy. Again, I take what Britain was and what it stood for as central to understanding developments within the colony.

As citizen I am a supporter of an Australian republic, which may be thought at odds with my work as a historian which stresses the centrality of Britain to Australia. I see no contradiction here; indeed I think the British heritage of Australia will be seen more clearly when the constitutional links with Britain are finally broken. At the moment an Australian nationalism, bridling at Britain without breaking clear from it, inhibits a true understanding of our past. Nevertheless, in the debate over the republican proposal in the 1990s the historian Alan Atkinson, the most fertile of the monarchy’s supporters, argued that The strange birth of colonial democracy shows Australians are not naturally citizens ready to accept the responsibility of republican rule. There is sadly much in the book to support this reading.

The strangeness of the democratic transformation is both its rapidity and that it left a democratic people disengaged from the democratic state. It was an irresponsible freedom that grew on the fatal shore. Hughes notes this element in Australian society and ponders a link to the convict past. My book argues something else.

John Hirst

Bibliographical note

David Neal questioned my description of New South Wales convict society in ‘Free Society, Penal Colony, Slave Society, Prison?’ in Historical Studies, vol. 22, no. 89, October 1987. I replied in the same issue with ‘Or None of the Above’.

Alan Atkinson referred to The strange birth of colonial democracy in The Muddled-Headed Republic (Melbourne 1993), to which I replied in A Republican Manifesto (Melbourne 1994). I considered the matter further in ‘History and the Republic’, Quadrant, September 1996.

CONVICT SOCIETY AND ITS ENEMIES

__________________

Convicts at their hut in their ‘own time’

Preface

This book records a conversion. When I began to study the early history of New South Wales I set out to answer the question of how a penal colony had changed into a free society. Since the colonists themselves had opposed the ending of transportation, I looked first of all at the reasons why the British government decided to abandon it. At that stage I shared the idea of the British opponents of transportation that the colonists had become so accustomed to exercising extreme powers over their convict labourers that they had blinded themselves to the evils of the system and had to be forcibly rescued from them. As I studied the system, however, I began to feel that the colonists had been slandered and that the unique society of early New South Wales needed to be looked at in a new light. I put aside the assumptions of its enemies and saw that my task was to reexamine both the society and its enemies. It is particularly important to examine the enemies as well because some of the most important assumptions of those who opposed and stopped transportation to New South Wales still powerfully influence accounts of early colonial society. For reasons which the book will make clear, I also came to believe that my original question about the transformation of the colony into a free society is the wrong question to ask. This was not a society which had to become free; its freedoms were well established from the earliest times.

A writer on the early history of New South Wales has the benefit of many good books to draw upon. This study owes a particular debt to A.G.L. Shaw Convicts and the Colonies, A.C.V. Melbourne Early Constitutional Development in Australia and the several works of C.H. Currey on the colony’s legal history. I have also relied heavily on Jennifer McKinnon’s ‘Convict Bushrangers in New South Wales, 1824–183’, an M.A. thesis written at La Trobe University. I have made extensive use of the Sydney newspapers of the period, but have read only selectively in the manuscript collections in the Mitchell Library and the New South Wales Archives. On many matters discussed in this book, much more can be known.

I am grateful to Richard Broome, Christine Hirst, Allan Martin and Val Tarrant who read and commented on my work.

1 The enemies

In 1786 the British government decided to send convicts sentenced to transportation to a new colony to be founded in New South Wales. A little over 50 years later, against the wishes of the colonists, the British government decided that transportation to New South Wales should cease. The ministers who were responsible for this second decision believed not only that transportation to the colony was an ineffective punishment, but also that the whole colonial society had been debased and corrupted by the experience. They were appalled at the irresponsibility of their predecessors in founding a community composed largely of felons. But that decision had not gone unchallenged. The enemies of the convict colony were at work even before it began.

When the British government decided to send convicts to Botany Bay, it turned its back on a new, alternative scheme for the punishment of criminals – confinement to a penitentiary.¹ In this new form of prison the prisoners were to be kept in separate cells, put to work, given improving literature and subjected to the ministration of a chaplain. The isolation and the silence would bring the criminal to acknowledge his errors; and the work, the books, and the clergyman would reform him. This was a revolutionary proposal, for in the eighteenth century prisons were not regarded as the standard instrument of punishment. Prisons held debtors, those awaiting trial or punishment, and only a very few people who had actually been sentenced to short periods of imprisonment. The usual sentences imposed in the criminal courts were death (the punishment for some 200 offences), transportation (to which death sentences were frequently commuted) and whipping. Punishment was directed at the prisoner’s body – to kill or maim it, or to ship it out of the country. The penitentiaries were to avoid attacks on the body and to concentrate chiefly on the prisoner’s mind.

The idea of the penitentiary came from John Howard, a zealous evangelical Christian who spent years visiting and inspecting the prisons. His book The State of the Prisons published in 1777 exposed their filthy, diseased and chaotic state and proposed a new regime in which prisoners would be kept healthy and adequately fed, but subjected to strict discipline and hard labour. The proposal for imprisonment as a standard punishment came at an opportune time. Two years before, the American colonies had revolted and refused to take any more convicts. The jails 6 quickly became dangerously overcrowded. Some of the convicts sentenced to transportation were put in hulks on the Thames and at ports on the southern coast as a ‘temporary’ measure. A committee of the House of Commons in 1779 urged the government to find another place to send convicts and to begin building penitentiaries. In the same year the parliament passed a bill for the establishment of penitentiary houses.

The bill had originally provided for a series of penitentiaries throughout the country, but in its final form provided only for two, one for men and one for women, near London. However, the government showed no eagerness about getting the penitentiaries built. It was deterred by the cost – which was why the national network of penitentiaries had been abandoned – and by the general reluctance to see criminals turned loose on the country after their time was up. Supporters of the penitentiary claimed that their institution would turn out reformed characters, but that miracle had yet to be performed. While nothing substantial was done towards building penitentiaries, the government decided to send convicts to Botany Bay. The penitentiary scheme lapsed. As a consequence, the new colony was immediately viewed with hostility by the penal reformers.

One of the most notable of these was Jeremy Bentham, the law reformer, who was soon to become England’s leading authority on crime and punishment. Bentham was in Russia when the decision to send the convicts to New South Wales was taken. He had gone there with the hope of interesting Catherine the Great in a new penal code drawn up by himself. Bentham believed that the law should be readily understood by all and accessible in one document – a code – rather than in a multitude of different Acts passed at different times and as likely as not in conflict with each other. Offences should be clearly defined and punishment should be carefully designed to match the seriousness of the crime. The word ‘codify’ itself is one of Bentham’s inventions and devising criminal codes was one of his chief occupations. In England Bentham saw little chance of reform being introduced for though the law was all he said it was – complex, incoherent and indiscriminately savage – parliament showed no signs of losing faith in it. It was still adding death sentences to more and more offences, flouting one of Bentham’s principles that punishment for a lesser offence should not be the same as for a greater. In Europe monarchs themselves still ruled and among the ‘enlightened despots’ Bentham hoped to find one who would adopt a code of his devising. In Russia and with Catherine, he said, he could achieve more in a month than in a life-time in England.²

While he was in Russia Bentham developed a new plan for a penitentiary building. He borrowed the idea from his brother, an engineer who was employed by the Russian government as a technical adviser. He was 7 supervising the building of ships during Bentham’s visit, and to overcome the lack of skilled overseers he arranged the work processes in a circle around his office. This arrangement gave Bentham his idea for the design of a penitentiary. If all the prisoners were put in separate cells arranged in circular tiers around a central observation point, they could be readily and very cheaply supervised. Not all the prisoners would actually be under inspection at once, but by a careful arrangement of light and blinds the prisoners would not be able to tell when they were being watched. Consequently they would have to assume that they were under constant surveillance. This Bentham described as ‘a new mode of obtaining power of mind over mind’.³ The prisoners would work and, besides being reformatory, the work would cover the cost of their maintenance and give a profit to the contractor – to whom the whole operation should be given. Bentham saw himself as a discoverer in the science of human affairs and delighted in christening his discoveries with new terms. The circular penitentiary he called the panopticon because of its ‘all seeing’ principle.

Bentham fervently believed that by this discovery he had solved the problem of finding a cheap and effective punishment for England’s criminals. He dashed off a pamphlet explaining the panopticon and sent it to England. The scheme was offered not merely as an ideal form for a prison; it would bring great savings and improved management to schools, hospitals, mad houses and work houses. All this, as he boasted, from ‘a simple idea in Architecture’.⁴ Bentham did believe that social problems had simple solutions. It was only muddled thinking, stupid respect for precedent and the self-interest of experts and professionals which kept them from the normal mortal’s sight.

While he was writing his pamphlet he heard from a friend in England of the government’s decision to send convicts to Botany Bay. He realised at once that this scheme would work against the adoption of his panopticon proposals. He wrote back asking his friend to find out how much the New South Wales scheme would cost per head. Nothing, Bentham believed, could be cheaper than the panopticon.⁵ When he returned to London he began to lobby for the adoption of the panopticon scheme and to collect information which would damn the new colony.⁶

Bentham was opposed to the transportation of criminals in any circumstances.⁷ It clearly offended against the principles which he had set up for determining legitimate and effective punishments. Governments exist, Bentham claimed, to promote the greatest happiness of the greatest number; they should maximise pleasure and minimise pains (the words ‘maximise’ and ‘minimise’ are also Benthamite inventions). Punishment is an evil since it causes pain and only so much should be inflicted as is necessary to deter people from committing crime and so secure the 8 general good. Transportation was a poor punishment because it was uncertain. No one knew beforehand how much or how little pain was actually going to be inflicted when an offender was shipped across the seas to work in the colonies. Transportation was regarded as a lesser punishment than death, but death might actually be inflicted if the ship carrying the offender to the colonies was wrecked. People were sentenced to different periods of transportation, but since the experience might be very burdensome or no pain at all, these variations were derided by the man who wanted to fine-tune his punishments to match the crime. Because transportation was an uncertain fate it was a very poor deterrent. Men are most likely to be deterred from crime, said Bentham, when the punishment for an offence is known precisely and is sure to be inflicted. Men are not likely to be deterred if they are threatened with one punishment – death – which is actually commuted to another – transportation – which in itself was a great unknown. Even if transportation could be so arranged as to inflict the same amount of pain on all those sentenced to it, it would still be a poor punishment because it was inflicted at a distance – away from the sight and sound of those who were to be deterred.

The second purpose of punishment, according to Bentham, was to reform the offender. Here too transportation rated poorly. A man sent to compulsory labour in the colonies might become a reformed character, but this would be more by accident than design. The chief interest of those for whom he laboured was to get work out of him, not to attend to his morals.

Bentham had formulated his arguments against transportation in his general works on law and punishment, written before the colonisation of New South Wales by convicts. When the first reports of the colony reached London, Bentham thought he had a knock-down case against it. If transportation to the American colonies had been a poor punishment, the failings of transportation to this penal colony were beyond belief. In a postscript to his panopticon pamphlet, published in 1791, he began his attack upon it. He set forth his complete case against the colony in Panopticon Versus New South Wales published in 1802.⁸ In this Bentham quoted extensively from the account of the colony written by the first judge advocate, David Collins. Collins took a hopeful view of the colony; it was all the more telling, said Bentham, that his book provided more than enough evidence to condemn it.

When criminals had been sent to America, Bentham argued, they entered an established moral society. In New South Wales they existed in a society composed largely of themselves. There were insufficient decent people to supervise their work and establish order and discipline. The convicts did very little work and were free to gamble and drink. 9 Drunkenness was universal. Collins could name some few reformed characters, but against this had to be set the appalling record of new crimes committed by the convicts, which Collins had also faithfully recorded. The very least one would expect of a punishment was that while undergoing it the offender should not be able to commit further crimes. The convicts not only persisted in their wickedness, they contaminated others by their example and influence. Here Bentham strained Collins’s evidence and established a theme which was finally to do fatal damage to the colony’s reputation.⁹

In denouncing transportation and the laxity of New South Wales, Bentham always pointed out the contrast with the panopticon. Here punishment could be varied not only in length of time but also in intensity. It would be visible to all – the public would be given free access – and so be the more effective as a deterrent. The inmates would be kept at labour by the effortless operation of the inspection principle – the unseen and unknown eye in the observation towers. This discipline coupled with the work of the chaplain would guarantee reformation.

In Bentham’s eyes the only plausible reason ministers could have had for continuing to transport offenders was that it was believed to be cheap. But transportation to New South Wales had turned out to be a very expensive operation. The cost per convict was several times more than what it would have been in the panopticon. If it was argued that in time the costs of the colony would diminish, Bentham had a reply: the costs of the panopticon would reduce to nothing. So began the juggling of statistics on the cost of penitentiaries and of New South Wales which continued for 50 years. Whatever the cost of running penitentiaries, the buildings themselves would be an enormous initial expenditure. This helped to keep the convicts flowing to New South Wales.

Bentham’s efforts to have the panopticon built failed.¹⁰ At first the scheme received official encouragement. Pitt, the prime minister, came to inspect a model of the panopticon at Bentham’s house. He was authorised to proceed with the work and it was accepted that he himself would be the contractor, the person to manage and profit by the enterprise. But as the project met opposition from the land holders on all the sites which Bentham proposed, the government dragged its feet. To Bentham’s infinite frustration, the scheme was shuffled between departments, delayed and thwarted. He was finally told that there was less need for the panopticon because of the improved state of New South Wales. It was this which prompted him to write Panopticon Versus New South Wales which mocked the notion of ‘improvement’ in the penal colony. For good measure he issued another pamphlet claiming that there was no legal basis for the authority which the government exercised in the colony.¹¹ The government ignored these broadsides. The panopticon affair ended with a 10 long quarrel on the amount of compensation Bentham was to receive in return for the money he had spent.

Bentham did finally play a great part in the undoing of New South Wales, not through the panopticon but through the principles he gave to the law reformers who followed him. From the 1810s Romilly, Mackintosh and Brougham argued in the House of Commons for a reform of the criminal law and in particular for a reduction in the use of the death penalty. They attacked transportation and the convict colony with Bentham’s arguments. For twenty years the reformers made little progress, but when the Whigs replaced the Tories in the 1830s among the new ministers were men sympathetic to their views.

In the fight to get the panopticon adopted Bentham had been supported by William Wilberforce, the great evangelical leader and anti-slavery campaigner. It was a strange alliance: Bentham the atheist concerned with the fine adjustment of pleasure and pain; Wilberforce the christian concerned with the salvation of lost souls. Wilberforce, like many of Bentham’s acquaintances, urged him to soften his denunciations of the ministers and officials who had frustrated his scheme. What good would be done, Wilberforce said to Bentham, if you gain a reputation as a clever biting satirist, but the panopticon itself is lost. Bentham was enraged at Wilberforce’s piety and respect. His difficulties with ministers convinced him that only terror tactics would work. Wilberforce’s view of Bentham’s troubles was that ‘A little, ever so little, Religion, would have prevented it all’.¹²

Wilberforce also shared Bentham’s interest in the tiny penal settlement on the other side of the globe. He was not an outright opponent of the colony like Bentham – who wanted to send a fleet and bring everyone home again – but the principles he espoused were just as damaging to the standing of the convict colony as Bentham’s.

Wilberforce became a serious christian in 1785, the year before the government decided to send convicts to Botany Bay. He had previously been a nominal member of the Church of England, but now the awful truths of an all-seeing God and eternal punishments and rewards bore in upon him. This handsome, rich young man with a beautiful voice and a charming manner turned away from his life of ease. Every minute he must now serve his Master. Each morning he prepared a list of ‘serious subjects’ to contemplate in vacant moments during the day. And before going into company he went over what he called conversation ‘launchers’ by which he could turn the talk to serious matters.¹³ Henceforth his position in parliament and his connections with the great and powerful were to be used for sacred purposes. He decided to devote himself to the reform of morals and the abolition of the slave trade.

Wilberforce wanted to rescue the poor from irreligion, drunkenness and blood sports, but he was equally concerned to reform his own order. 11 Openly and without danger to their rank or their claim to be christians, the gentlemen and nobles of England lived what Wilberforce regarded as dissolute lives; gambling, drinking, Sabbath breaking, and committing adultery. They were careless about their fate hereafter and the condition of the poor, which should have been their especial concern. The higher orders in fact lived by a code of honour which smiled on what Wilberforce regarded as sins, but was itself strictly enforced. If a man’s honour was impugned, he challenged his assailant to a duel. Wilberforce regarding duelling as a barbarous custom.

By the time of his death in 1833 Wilberforce had seen slavery abolished in the Empire and the reform of morals well advanced. When he began his campaign, worldly parents were horrified at their children taking up serious religion. They thought they would isolate themselves from all decent company and be unable to find eligible marriage partners. Thirty years later Wilberforce was able to record that these fears were happily no longer valid since ‘it has pleased God to diffuse serious religion so much through the higher ranks in society’.¹⁴ Very soon family prayers, church going, at least outward respectability would become the norm. In 1844 duelling was forbidden to military officers, the last upholders of the old code of honour.

The evangelicals whom Wilberforce led and ennobled remained a minority group in the Church of England, even though their ethic became so pervasive. The church was suspicious of their fundamentalist theology and of their willingness to work with the dissenters, the protestant groups outside the church. In the task of reforming morals the Methodists had been at work among the lower orders for many years before Wilberforce and his circle began to influence the wealthy as well. The evangelicals and the Methodists worked together to run Sunday schools, temperance organisations and bible societies. In their greatest labour – the abolition of slavery – the evangelicals had been preceded by the Quakers who continued to play a prominent part in the anti-slavery organisations when the leadership passed to the great evangelicals, first Wilberforce, then Buxton.

Wilberforce’s first achievement as a reformer of morals was to secure from his friend Pitt, the prime minister, the right to nominate the first chaplain for the settlement at Botany Bay. He chose, of course, an evangelical, Richard Johnson. Botany Bay was to be this young man’s first parish. Poor Johnson! The convicts were the last people who would accept the austere, puritan ethic of the evangelicals. The civil and military officers were scarcely any more sympathetic to his ministry. Johnson had no church for five years and then had to build it himself. The officers objected to his insistence on the need for personal salvation and for numbering them among the sinners. Most of them offended against the evangelical 12 code by having convict mistresses. Johnson reported back to Wilberforce on the depravity of the convicts and of the higher orders in society. Wilberforce lobbied the government to send more clergy and teachers. He knew the secretary of state was not a religious man but he appealed to him as a practical statesman with the argument the evangelicals always used with the worldly – religion, if it did nothing else, brought decency and order.¹⁵

Samuel Marsden was sent to assist Johnson and like him made no impression on the convicts, except through the floggings he ordered as a magistrate.¹⁶ Both Johnson and Marsden soon despaired of influencing the convicts and placed their hopes in the children. Subsequently more clergy were sent – also of an evangelical sort – but still without result. Bibles were sent out with the convicts as a result of evangelical lobbying, but the convicts tore the pages out to make them into playing cards. They used soot to make the black dots and blood for the red.¹⁷

Johnson returned home in 1800. Marsden stayed until his death in 1838. Wilberforce remained his patron, protecting him in his various scrapes in local politics and receiving from him information on the depravity of the convict colony. He offered to pass this information on to Bentham to help him blacken the colony’s reputation in order to boost the panopticon.¹⁸ Wilberforce was one of the most consistent critics of New South Wales society. A society composed of convicts and ex-convicts could scarcely be expected to attain high standards of morality, but judged by evangelical standards it was even worse, for to the crimes punishable by the law, Wilberforce added the non-observance of the Sabbath and sexual relations not sanctioned by marriage.

The evangelicals had an important influence on the way women convicts were treated in the colony. They set great store on women’s ‘purity’ and in their eyes what was bad in the behaviour or treatment of men was shocking and indecent in the case of women. In Britain as a result of their influence the flogging of women was outlawed in 1817. This extended as a matter of course to New South Wales, so women could not be subjected to the standard punishment meted out to men. One of Marsden’s consistent themes in his reports to Wilberforce was the necessity of attending to the morals of the female convicts who worked in the government factory at Parramatta, weaving cloth. The women retained here were those not wanted by the colonists and those sent as a punishment. No sleeping quarters were provided for them. They were free from their official work at 3 pm and so had a chance to take extra work to support themselves, but Marsden reported that most survived by prostitution. This may have meant no more than that they shared a man’s bed on a semi-permanent basis in return for shelter. But to the evangelicals anything other than marriage was an abomination. As a result of evangelical pestering, the 13 local government finally built a new factory which was a closed institution where women worked and slept and were kept from all outside influence and temptation. The new factory was sometimes described as the female penitentiary, though it lacked the solitary confinement which the best minds insisted upon. Only women convicts in New South Wales experienced an institutional regime of this sort.¹⁹

The evangelicals took the world as their parish. Their great reform and missionary movements are the cathedrals of that age of religious revival and they still amaze us with their reach and span. In 1820 Buxton listed the subjects he was currently studying: ‘The Criminal law; The Prisons; The Police; Botany Bay; The Slave Trade; The Practice of burning Widows in India by Authority of the English Resident; Lotteries; Colonisation, viz., Land for supporting Schools, and Emancipation of Slaves’.²⁰ On New Year’s eve, Buxton would lay down for himself the causes on which he would work during the following year – this was the discipline to keep his mind off worldly things and on the Lord’s work. Botany Bay did not appear regularly on his list and amid all the other causes the evangelicals did not give it consistent attention. What they brought to this and to every other cause was the heightened significance of God’s purpose and national righteousness. Botany Bay was not merely a penal colony. It was a base from which the gospel might be spread in that quarter of the globe. Johnson was sent with these hopes. Marsden, after despairing of the convicts and the Aborigines, fulfilled them with his great mission to the Maoris. But the work was endangered by the convicts. They were creating in New South Wales a ‘nest of vipers’, said Wilberforce in the House of Commons in 1819, which could ‘form a nucleus of contagion in that part of the world’. In this debate the ministers remained unperturbed by the quotation of figures which showed that the colony had a crime rate sixteen times as great as the English county of Warwickshire. What can you expect, replied the ministers, if you send criminals there? This indifference was the typical response of those who were pleased simply to get rid of convicts.²¹ As Bentham said, men were happy so long as the convicts did not trouble what they regarded as ‘the only spot in the world worth thinking about’ – the United Kingdom.²² The evangelicals did most to make men think more broadly and to take the responsibilities of the Empire seriously – Hindus had to be converted, slaves freed, and Botany Bay purified.

If transportation were to cease, the criminal law would have to be recast and new methods of punishment found. The evangelicals were firm supporters of the law reformers and did most to promote the new forms of punishment – solitary confinement, hard labour, rigid discipline.²³ Though they were happy to use Benthamite arguments to support these causes, they were not moved by Bentham’s passion for codification. 14 To Bentham the existing laws were stupid and illogical; the evangelicals did not hesitate to call them barbarous, bloody and murderous.²⁴ They went into the prisons. They worked to save offenders from the gallows – and then argued à la Bentham that the law was ineffective because its punishments were not enforced. The evangelicals wanted to reduce or abolish the use of the death penalty so that God’s work of reclaiming the wicked could proceed. It was inhuman and unchristian for society simply to hang people out of hand. The reform of the criminal was part of the evangelicals’ larger plan to reform the whole society. They wanted all the lower orders to become sober, hard working and pious. Those who fell foul of the law could be reformed compulsorily in the new prisons which would teach them habits of work and introduce them to God’s truths. The rigid discipline which the evangelicals imposed on themselves, knowing that every minute of their time should be devoted to God’s service, could there be imposed on those whose careless and unthinking lives had led them into crime. So the humane and christian concern to save people from the gallows led to solitary confinement and the treadwheel. Of their work in promoting these ‘reforms’ the evangelicals were as proud as of their campaign against slavery.

The case against transportation and the penal colony was, as we have seen, well developed before the colony was fairly established. Over time it changed in two ways. The first related to the capacity of transportation to New South Wales to deter people from crime.²⁵ Bentham had argued that transportation was an uncertain punishment – it might inflict considerable pain or very little. As the starvation years passed and the colony became prosperous, it seemed to observers in England that transportation was becoming more certain, but in a way that was disastrous for its capacity to deter – the odds on the likelihood of its inflicting pain were lengthening. A few convicts had made fortunes and all lived in comparative comfort. The penal reformers could cite letters from convicts urging their friends and families to join them and cases of criminals asking to be transported or committing crimes solely in order to be sent. After the end of the Napoleonic wars in 1815, crime increased rapidly and the government began to pay more heed to the critics of transportation to New South Wales. It tried to ensure as a minimum that no convict had an easy time in the colony and later that the worst offenders suffered more. But to concede anything to the reformers was dangerous, for they could readily show that the ills which the government itself now acknowledged were incurable. While convicts were handed over to private masters their punishment and reformation could never be properly provided for. Convicts who had committed very serious offences could be given light work and lesser offenders could find themselves slaving for a tyrant. Even if – what was impossible to imagine – a fixed and certain amount of suffering 15 could be imposed by transportation, it would still fail to deter because the favourable view of the colony was too well established. This was the danger of punishment at a distance which Bentham had warned against.

The second change in the case against New South Wales was more fundamental. It occurred in the 1830s, just before the decision was taken to abandon transportation to the colony. This was the decade when many reform causes came to fruition. The Whig party, coming to power in 1830 after years in the wilderness, moved first to reform the system of parliamentary representation. Towns whose population had declined or disappeared altogether were no longer to elect members; these seats were given to the towns and counties whose population had increased with the growth of trade and industry. Once this reform was passed after a long and bitter struggle, others followed quickly. The closed corporations which had governed towns, both new and old, were replaced by elected bodies. Slavery was abolished throughout the empire. The administration of the poor law was reorganised on Benthamite lines with a central administration to supervise local authorities and a sure test to guard against imposters: conditions in the workhouse were to be worse than the lowest paid employment outside. Lord John Russell, the home secretary in the second Whig government, moved decisively to reform the criminal law, to establish central control over existing prisons, and to commence building penitentiaries.

During the 1830s New South Wales began to be described as a slave society which had been corrupted as much by transportation as the West Indies had been by slavery. The argument against one evil had been carried over into the case against another. After long years in which the same points were made again and again, the case against New South Wales had jumped into another key. Previously the colony had been seen as a corrupt society because the evil doers were dragging down the virtuous. Now corruption was associated with the fundamental relationship of the penal colony – the enforced labour of the convict for the benefit of his master. Neither convict nor master, whatever their character, could avoid its taint.

In earlier times it had been perfectly acceptable to describe a convict who had been put to work as a slave. When the anti-slavery campaign began in the late eighteenth century, it was conceded that the state had a right to make slaves of convicted criminals. Thomas Clarkson in his classic essay against slavery called these people ‘voluntary slaves’ since they had a choice in their enslavement – they could remain law-abiding and free. By conceding that there was legitimate slavery, Clarkson could highlight the illegality of enslaving the African who had committed no offence.²⁶ Bentham, though opposed to slavery, did not hesitate to use the 16 word to describe the condition of those who were to be confined in the penitentiaries. He composed an inscription which would be placed above their doors: ‘Had they been industrious when free, they need not have drudged here like slaves’.²⁷ Sometimes when transportation to New South Wales had been criticised as too lenient, its defenders had replied that the convict was in the condition of a slave and so was undergoing real punishment.²⁸ But by the 1830s, to describe the convicts of New South Wales as slaves was to damn the system of transportation and the colony. Of course what was objected to was not compulsory labour as a punishment for convicts, but that private persons should control and benefit from it.²⁹ This led to unequal treatment which made transportation an ineffective punishment and established the corrupting relationship of slave ownership. Compulsory labour in a penitentiary – the favoured alternative to transportation – was perfectly acceptable and was no longer described as slavery.

The abolition of slavery was achieved after a stupendous effort to rally the religious forces of the nation, and those who had not worked directly for its removal shared in the great self-satisfaction which followed its demise. What could be more virtuous than an empire which had spent twenty million pounds to purchase the freedom of its slaves? The evil reputation of slavery grew after its condemnation was official and ‘slavery’ became a word of unrivalled potency. The anti-slavery campaigners did not rest. Having removed slavery from the empire, they now worked to extirpate it from Africa itself. They denounced schemes of indentured labour as slavery in disguise and the emigration of coolies from India had to be suspended. The hard-pressed workers of England began to call themselves white slaves in the hope of shaming their employers and the nation in to taking some care for their welfare. In this atmosphere slaves and slavery and all their attendant evils were discovered in New South Wales.

When the campaign against slavery began, the slave owners and the societies which used slaves were not thought of as corrupt beyond redemption. The strategy of the anti-slavery campaigners was based on the contrary assumption, for at first they attacked only the slave trade. They considered that once the supply of new slaves ended, the slave owners would take more care of those they had; they would become more aware of the advantages of free labour (for slave labour was thought by its opponents to be inefficient); and there would be a gradual transition to a free labour force. The slave trade was abolished in 1807, but in the years that followed there was no sign that the slaves were treated better or that there was any willingness on the part of the colonists to consider the advantages of a free labour force. This intransigence was the foundation for the view that the slave owners and their society had been corrupted 17 by slavery. The anti-slavery campaigners now saw that they would have to move against slavery directly, and they offered a programme for the improvement of the slave’s condition and the gradual abolition of slavery. The use of the whip was to be limited and banned altogether for female slaves; families were not to be broken up; slaves were to be given one week-day off; they could purchase their freedom, and give evidence in court; religious instruction was to be provided; and, most radical of all, children were in future to be free at birth. This programme would be very difficult to implement not only because of the opposition from those in Britain with an economic interest in the slave colonies, but because the slave codes were controlled by the colonial assemblies and were clearly a matter for internal government. The British parliament had an overriding power, but the government was very reluctant to use it. In 1823 it deflected an effort made by Buxton to have the colonial assemblies instructed to institute a programme of amelioration by undertaking to advise them in the strongest terms to institute their own reforms.

This advice was not well received. Jamaica rejected it outright and other colonies made merely token changes. While the government urged patience, the anti-slavery campaigners set out to demonstrate that the slave colonies would never reform themselves.³⁰ In the first place, they were not dealing with men of honour. The slave owners had lied about the conditions of slavery. When the anti-slavery campaigners had objected to the use of the cartwhip, they had said it was a mere badge of authority and never used. When it was proposed to prohibit its use by law, the slave owners said its use was absolutely essential! The campaigners also pointed out that the slave-holding interest was so pervasive that every institution in the colonies was subservient to it. The legal rights which the slaves possessed, pitiful in themselves, were rendered worthless by the courts which always took the master’s side. Men appointed to protect slaves to meet Britain’s request for amelioration were themselves slave owners. The colonial church owned slaves and supported slavery, and the few clergymen who dared to minister to the slaves were ruthlessly persecuted.

The evil of these societies went beyond the cruel subjection of their work force. Absentee land owning was common and the men actually running the estates and composing the colonial assemblies were coarse and vulgar. There was a mania of gambling and speculation and in the management of estates all was sacrificed to short-term gain. These evils – common enough to colonial societies – were seen as having derived from slavery itself.

The key concept in the argument that the colonies would never reform themselves was that of the corrupting effects of the absolute power thought to be held by owners and managers over their slaves. Having enjoyed 18 absolute power, no man would ever yield it up. It blinded slave owners to their own best interests. The owners believed that their estates would be ruined if slavery were abolished – which turned out largely to be the case – but their opponents found the basis of their attachment to slavery not in an ordinary desire for wealth, but in the lust for personal power.

The arguments about absolute power linked the anti-slavery campaign most clearly to the cause of liberalism, which was strengthening in England and in Europe in the early nineteenth century. There were no slaves to free in England, but the abuse of power by the slave holder was an effective cautionary tale for a cause which wanted to extend rights, abolish special privileges, and limit the power of hereditary monarchs and orders. The campaign against slavery had another domestic implication. It flourished at the same time as harsh work disciplines were being imposed in the new factories and legislation which had formerly given working people some protection was being repealed. By concentrating on the evils of the situation in which labourers were owned, the anti-slavery campaign helped to legitimate the view that a wage labourer was a genuinely free man, no matter on what terms he was forced to work. It was because they heard so much about the evils of slavery and so little about their own plight that working people began to call themselves ‘white slaves’.³¹

The corrupting effects of absolute power upon the masters became an increasingly important part of the argument against slavery, as well as being used to explain why its beneficiaries would never give it up. To concentrate solely on the conditions of the slaves themselves involved the anti-slavery campaigners in some difficulty. If they claimed that slaves were poorly treated, it was said with some justice that they were better fed than the English poor. (Wilberforce on one occasion had the good sense to suspend the anti-slavery campaign while people in England were starving.) If they highlighted cases of shocking cruelty, it was said that this was the work of bad masters, a tiny minority of which England, too, had its examples. But if the corrupting effects of absolute power were stressed, then the distinction between good and bad masters disappeared, because no man, however well disposed, could avoid the terrible temptations which slavery held out to him. The travelling lecturers in the anti-slavery cause were instructed to stress as the first of slavery’s evils that it was degrading and demoralising to all parties involved in it.³²

It was these arguments which did finally persuade the British parliament to by-pass the colonial assemblies and abolish slavery directly. They were also the arguments which were transferred to the case against New South Wales. That masters there were corrupt was now a common-place. The fact that the colonists did not want transportation stopped now bore heavily against them – it was a sure sign of their depraved desire to hold 19 on to personal power. Even the more particular evils of the West Indian societies were found to have their parallels in New South Wales. When Lord Howick, the under secretary of state for colonies in the early 1830s, found that speculation was rife in New South Wales, that interest on money was high and properties heavily mortgaged, he took this as proof that all the evils of the slave societies had taken root in the colony.³³

Though the British nation was prepared to spend two hundred million pounds to abolish slavery, it was not so anxious to spend money on penitentiaries and keep its criminals at home. In parliament there was still plenty of support for transportation on the traditional grounds that it was cheap and got rid of unsavoury characters. Even within the Whig government which took the decision to abolish transportation to New South Wales, there were really only two ministers who were determined about the matter. They were Lord John Russell, who as home secretary transformed the criminal law, and Lord Howick,