Chapter 3. Servitude and Emancipation

Stone walls do not a prison make Nor iron bars a cage.
-Source unknown

Under the assignment system a seven-year sentence convict, if well behaved, could expect a ticket-of-leave four years after arrival in Australia. Most well behaved seven-year sentence Swing-rioters assigned in Van Diemens Land had their tickets before the bulk of their number were freely pardoned on 3 February 1836 and generally before the vast majority of seven year sentence common felons had theirs.1 Free or conditional pardons for most fourteen-year and life sentence Swing-rioters transported by Eliza, Eleanor and Proteus followed in 1837 and 1838 but Swing-rioters who came on later transports as singles or in small groups did not receive the indulgences granted to convicts transported by Eliza or Proteus. Their tickets-of-leave and pardons were granted much later than were those of men who came by the principal ships; in short their emancipation privileges were no better than those of common felons.2

The Van Diemens Land Pastoral Company, established in England by Royal Charter, was granted extensive holdings at Burnie, Hampshire and Surrey Hills and Woolnorth in north-western Van Diemens Land where skilled farm labourers were desperately needed and were cheaper to employ than workers obtained under various immigration schemes. About fifty Swing-rioters were assigned to the company. At the end of February 1835 Adolphus Schayer, superintendent of the Company Establishment at Woolnorth, submitted a memorial to Company Superintendent Edward Curr asking for a ticket-of-leave on behalf of Robert Ball, a Wiltshire Swing-rioter who had been assigned to the Company since his arrival in Van Diemens Land. Curr's somewhat callous reply was:3

Robert Ball's memorial cannot be forwarded until the proper time arrives, namely four years from his arrival in the colony, and if I would forward it, Captain Smith (the local magistrate) would not. The machine breakers have got an idea that some particular indulgence is shown to their class and that they have received their tickets already generally throughout the colony. I have caused the gazettes to be searched to ascertain this fact, and only one such instance can be found and this individual Robert (William actually) Hayter was in our service; was returned as a confirmed invalid to Government, and had his leg taken off in the hospital. I suppose Ball will not wish to qualify in this manner for his Ticket.

Whoever did the search on behalf of Curr cannot have been very efficient because at the relevant date memorials or recommendations for tickets-of-leave had been approved for two other Swing-rioters in addition to Hayter.

Schayer later sent other memorials recommending tickets-of-leave on behalf of Joseph Hunt, James Edgeworth, and Charles Waters and this time Curr replied that the memorials would be forwarded and he did so because all three, and Ball, got their tickets in August 1835 two months later than they might have expected them had their memorials been submitted at the proper time. By then Curr should have learned that he could not ignore a system which he none-the-less continued to do for the remainder of his period of employment with the Van Diemens Land Company.

The story behind the issue of tickets-of-leave to former Swing-rioters assigned to the Van Diemens Land Company estates at Emu Bay and Woolnorth emerged from a letter of 9 July 1835 to the Principal Superintendent of Convicts in which Curr stated 4

... I forwarded to the Police Magistrate of this district on 3 June the memorials duly recommended of the following eight men: 1487 Robert Ball, 1219 Edward Cammell, 1217 Richard Cole, 301 James Edgeworth, 466 James Ford, 1213 Joseph Hunt, 860 John Mitchell and 1230 Charles Waters. I would willingly have complied even more scrupulously with the Government Regulations on this but that it would have been useless to them, as there was no conveyance for a letter from this place for the settled district between the 1st of May and the 16th of June. Respecting the other three men named in your letter I have to give you the following information.

671 John Duke. His general conduct unsteady. 14 November 1831, was convicted before Mr John Clarke and myself of disobedience of orders & neglect of work: reprimanded 23 February 1835. Convicted of being one out of 35 men who combined to refuse to work on New Year's Day. In explanation of this I beg to call your attention to the following extracts from a letter dated 12 March 1835 to the Police Magistrate of this district (copy enclosed). I have forgotten to state that Hew Holland informed the Magistrate during the investigation on I December last Duke was one of four men who stole and killed a lamb at this place . .. On all the above grounds I have thought it right not to recommend him for indulgence.

1200 John Hart. His general conduct is bad. He is a man who is always under suspicion and against who the offences recorded bear but a small proportion of those of which he is supposed to be guilty ... (A list of three offences follows).  I consider this man entirely undeserving of any indulgence.

308 James Kimmer, proper name Kimber. General conduct diligent & well conducted. 16 April 1835. Was convicted of being found at night under improper circumstances in the plantations of my house with one of my female convict servants. 12 days solitary confinement on bread & water. The above offence has been several times committed by him.

I have told this man that at the end of four months from the date when good conduct would have entitled him to apply for indulgence I will recommend him if he continues deserving, that is to say at the end of September next (Kimber committed no further offences but was not recommended for a ticket of leave when promised).

I have now also to reply to your letter of 23 June received on the 17 inst. enquiring as the conduct of certain three men who you inform me have applied for tickets of leave.

1508 Charles Bennett. His general conduct is indifferent.

14 Nov 1832. Convicted before Mr John Clark and myself of disobedience of orders and neglect of work. Reprimanded.

23 Feb 1835. Convicted of being one of 35 men who combined to refuse to work on New Year's Day. For this latter offence particularly I have thought it right not to recommend him for indulgence.

Curr never forgot the refusing to work episode and never forgave any of the thirty-five convicts, only a handful of who were Swing-rioters, who took part in the episode. Furthermore none of the participants were convicted as the offence was committed on New Year's Day and the offenders were not brought before the bench until 23 February (as stated above offenders had to be brought before a magistrate within two days of committing an offence unless they could not be found).

500 Henry Eldridge. His general conduct is good

23  Feb. 1835. Convicted of being one of 35 men who combined to refuse to work on New Year's Day.

118 John Olden. His general conduct has been reported good but rather artful. Latterly he is much complained of for idleness & I have during last six months had too much opportunity to see that he is habitually idle.

23  Feb 1835. Convicted of being one of 35 men who combined to refuse to work on New Year's Day.

Curr then went on to imply that Olden's ticket-of-leave had been wrongly awarded as his case was brought to the attention of the Principal Superintendent of Convicts by a man who was only temporarily employed by the Van Diemens Land Company at Circular Head. He requested that Olden's ticket-of-leave be cancelled but the Principal Superintendent did not accede to that request.

In a letter of July 9 1835 to the Colonial Secretary Curr wrote:

I have further to complain to His Excellency that tickets-of-leave have been granted under date I June to 1218 Robert Cowley, 1202 John Hunt and 515 William Jefferies per Eliza contrary to Government Regulations inasmuch as their memorials were never submitted to me - the assignee of the men or to the Police Magistrate of this District, and the regulations especially enjoin a compliance with both these conditions. I know that the memorials of these men were recommended by Dr Milligan who has recently become their Superintendent but, though recommended, they were not forwarded by him for he complained to me soon after that on returning them to the men to be sent to me and by me laid before the Police Magistrate in compliance with the regulations, he heard that they had taken means to get them forwarded direct to the Principal Superintendent of Convicts.

This is a deviation from regulations of more importance than might at first appear, although it would seem that any person in the Company service can get them deprived of their men without warning, yet certainly no one but myself can provide others in their places, and the Company are consequently liable to be deprived without any warning of persons whose places it may be of utmost importance to keep filled. It is so in the instance of these three men. They are at a distant establishment, Hampshire Hills, they now comprise one third or more of its effective strength and their sudden removal lays three ploughs idle in the midst of the season. I am deprived even of the opportunity of hiring them, as I would have done, for a short time, as they get the information as soon as I do, and no doubt have left, whilst had their memorials been forwarded to me I would have provided against being left without by hiring them. It is my duty under these circumstances to apply that the tickets of leave granted to these three men may be recalled ...

(Needless to say the Colonial Secretary did not grant that request either).

As noted Swing-rioters under sentence in Australia did better than common felons transported at the same time in regard to issue of tickets-of-­leave. In Van Diemens Land all but three seven-year sentence men per Eliza and all but five per Proteus had tickets-of-leave five years after they arrived in the colony and all, including those who received colonial sentences, had them after six years. In NSW all seven-year sentence men per Eleanor had their 'tickets' five years after arrival. Settlers who had Swing-rioters assigned to them usually appreciated their quality and sometimes wrote letters on their behalf as did William Effingham Lawrence, on 24 May 1833, for Henry Herrington:

Henry Herrington was assigned to my service on arrival in this island and has continued in my service since the 11 July 1831. That his conduct has been uniformly very good; that he is sober, honest, industrious obedient and orderly and that I consider him a most fit object of the mercy of the crown in mitigation of his sentence, both as a reward for exemplary conduct and as the extension of mercy in his case might operate to the encouragement of similar good conduct in other prisoners.5

In recommending a Swing-rioter assignee for a ticket-of-leave a master lost a servant he had little hope of replacing with another of equal quality, but most were more generous in recommending a good servant for a ticket than was Edward Curr, Principal Superintendent of the Van Diemens Land Company Establishment at Circular Head.

Of one hundred and eighty Swing-rioters sentenced in Wessex counties and assigned in Van Diemens Land, one hundred and seventeen (65%) received no punishments other than reprimands or admonishments and most did not have either of those. Twenty-nine received one, twelve two, eight three, five four and nine five or more physical punishments. Four - John Alexander, James Lush, Isaac Millard and James Whitcher - received above ten physical punishments; numbers more reminiscent of those of common felons.

Norma Townsend wrote:6

It is a measure of the differences between the convict systems of New South Wales and Van Diemens Land that over half the Swing protesters transported to the latter were punished for assorted offences but only 9 per cent of the Wessex men in New South Wales. Given that the Swing protesters were comparable groups transported for the same offences and at the same time, the contrast is stark. It underlines the more penal, oppressive nature of Governor Arthur's regime and the closer scrutiny to which convicts were subject on the island compared with the freer environment and beneficial effects of the assignment system in New South Wales.

It would be interesting to know where Townsend got her information about the percentage of Wessex Swing-rioters punished for offences in New South Wales when she herself acknowledged that The record of punishments at petty sessions is incomplete because of the partial survival of the bench books recording the details. It is an established fact that the widespread abuses of the assignment system in New South Wales led to its abandonment and the subsequent cessation, in 1841, of transportation to that colony. Because the assignment system was working so efficiently in Van Diemens Land, largely because of Lieutenant Governor Arthur's efforts, the island colony remained the sole dumping ground for Britain's felons and continued so for another twelve years.

Relatively few Swing-rioters were punished by flagellation but those in New South Wales were more likely to be so punished and to receive more lashes on each occasion than were their Van Diemens Land counterparts as is obvious from the comparative data presented in Table 6.

In the years 1833 to 1836 inclusive, while a majority of transported Swing-­rioters were still under sentence, twenty-three to twenty-five percent of all convicts in New South Wales received corporal punishment compared to six to eighteen percent of convicts in assigned or Government service in Van Diemens Land. In the same period the percentages flogged in Port Arthur penal settlement exceeded those of New South Wales only in the year 1835.

The number of New South Wales Swing-rioters punished for offences during servitude will remain unknown but there is no doubt that some New South Wales men fared very badly compared to their Van Diemens Land counterparts who committed similar offences.

In New South Wales James Cook was given twelve months in an iron gang (in which he died) for pilfering from his master and Isaac Cole, a chimney sweep and farm labourer from Wilton, was given twenty-five lashes for receiving stolen cedar and later twelve months in an iron gang for pilfering. Whereas in Van Diemens Land Thomas Fisher got three months hard labour in irons for pilfering from his master and Moses Turnham six months imprisonment with hard labour for stealing a bushel of potatoes in a garden.

In New South Wales Henry Eldridge, a woodman from Fordingbridge, received his first punishment of fifty lashes for absconding in March 1833 and in May of the same year he was given twenty-five lashes for neglect of duty and violent language. In June 1833 he was given another fifty lashes for neglect and disobedience and in August 1833 he absconded for a second time and was sentenced to twelve months in an iron gang. Also in New South Wales, George Shergold was given one hundred lashes for neglect of duty and later put in an iron gang for nine months for repeatedly absconding. But in Van Diemens Land the first time Richard Beckingham was charged with neglect of duty he was reprimanded and the second time he merely lost his job as watchman.7 Also in Van Diemens Land, John Kimber was sentenced to hard labour in a road party for a mere three months for absconding and gross neglect of duty.8

Van Diemens Land ex-convict offenders, especially those who had received free pardons or other emancipation advantages, were severely treated. Samuel Summerfield was pardoned for his machine breaking offence on 3 February 1836 but on 21 January 1837 he was tried for breaking and entering the house of Job Neale in October 1836 and stealing goods of value 9/8d ($0.97). He was sentenced to transportation for life, the first three years at Port Arthur.

Thomas Harding moved from assignment in the south to northern Van Diemens Land sometime after getting his free pardon. His conduct record was endorsed, below notification of free pardon:9

August 10th 1838 - F.S. Receiving 5 one Pound notes knowing them to have been stolen from H. Watson committed for trial/ R. Wales.

He was then charged with:

Receiving 5 promissory notes value £5, the property of Edward Stratton.

Regardless of the discrepancy between conduct and court records he was found guilty and sentenced to seven years transportation on 2 October 1838. He was assigned to Spring Hill Road Party, located on the Launceston to Hobart road approximately fifty miles (eighty kilometres) north of Hobart, from which he absconded on 5 November 1838.10 He remained at large for over six months but appeared on the apprehended list on 3 May 1839 after which he was charged and sentenced as follows:11

Absconding from Spring Hill - Existing term of Transportation extended two years APM April 30 1839 JW I Stg a pr of Boots the property of Mr. Wm Lovatt 12 mos Hard Labor in chains  APM approved Vide Lt. Govs Decis 3 May 1939 Approved to B Water Ch Gang & conduct to be reported in 9 months if well conducted Vide Lieut Govs Decision 3 May 1839.9

His conduct in B(ridge)water Chain Gang was never recorded because on 17 May 1839 he was reported as absconding:

... from the custody of a constable on his way from Hobart to Bridge-water, on the 13th instant. 1235 Thomas Harding, per Proteous (sic), tried at Southampton 18th Dec. 1830, 7 years, and Launceston Q.S. October 1838, 7 years, ploughman, 5ft 5, complexion dark,12

Harding was never apprehended and what happened to him is unknown. An unsubstantiated account said he returned to England which is possible but unlikely.

Robert Kimmence, freely pardoned in 1836, was again sentenced, in 1837, to fourteen years transportation for receiving stolen sheep the first three years to be spent in Port Arthur penal settlement. He received a ticket-of-leave in late October, 1844, and was approved for conditional pardon in October 1847.13 Thomas Legg, per Proteus, found guilty of stealing a bushel of barley, was sentenced in Launceston on 28 June 1842 to imprisonment in chains with hard labour for twelve months.14

Thomas Boxall per Eliza and John Walduck per Proteus together with William Smith per York (who was not a Swing-rioter) were charged in July, 1839, with assaulting a constable in the execution of his duty.15 Walduck was found guilty and sentenced to two years imprisonment with hard labour but Boxall and Smith were found not guilty. Obviously a touchy character with small regard for authority, Walduck had a further eight months imprisonment with hard labour added to his colonial sentence for aiding and abetting a fellow prisoner in committing an assault on his overseer.16

William Burgess per Eliza was charged in July 1839 with receiving stolen clothing, value thirty-five shillings and George Davey per Eliza was charged in June 1842 with stealing four shirts, value eight shillings; both were sentenced to seven years transportation.17

Francis Norris, per Eliza, was charged on 28 December 1840 with stealing one pound of shingle nails, value eight pence, and other articles and was sentenced to six months imprisonment with hard labour. Samuel Seal was convicted on January 2 1838 of receiving forty-six stolen eggs value three shillings and sentenced to seven years transportation. John Shergold, per Eleanor to New South Wales and Hind to Van Diemens Land, was sentenced to six months imprisonment and fined fifty pounds for aggravated assault in September 1844. Richard Weedon, per Proteus, was found guilty of stealing two pieces of pork, value seven pence per pound, at Hobart Quarter Sessions on 29 May 1841 and sentenced to transportation for seven years. He died, still under sentence, on 23 May 1847.18

David Bartlett was freely pardoned on 3 February 836 and married Mary Ann Skewes at Hobart on 31 January 1842.19 He apparently went through a form of marriage while his Australian wife was still living because he was charged with bigamy on 27 January 1859, convicted and sentenced to twelve months hard labour at Port Arthur.20

Due to some piece of bureaucratic bungling the list of seven-year sentence men to be pardoned which arrived in New South Wales in early 1836 did not include the name of any Swing-rioter so the seven-year men there remained unpardoned and most served out their sentences in full while some remained convicts nearly two years after they should have been free because Governor Richard Bourke, the so-called convict's friend, declined to use his executive powers to pardon men with blameless records he knew should have been free.

In New South Wales Hampshire man George Clarke and Dorset man Charles Symes were amongst an unknown number of Swing-rioters who were sentenced for colonial offences after receiving their freedom. Clarke was transported to Norfolk Island, with others, for further crimes and sailed on the Governor Phillip on 7 June 1844. Symes apparently re-offended some fifteen years after he got his freedom as his free certificate is endorsed 13 Aug 1853 - Maitland 2 yrs - roads. Larceny.21

Table and Figure Chapter 3.

Year	1833	1834	1835	1836	1837
New South Wales
Number of male convicts in colony	23,357	25,200	27,340	29,406	32,102
Percentage flogged	25	25	26	23	18
Average no. of lashes per flogging	41	38	46	44	45
Van Diemens Land (excluding Port Arthur)
No. of male convicts	12,651	12,824	13,800	14,214	14,426
Percentage flogged	18	17	11	6	6
Average no. of lashes per flogging	37	34	34	30	30
Port Arthur
No. of male convicts	475	735	911	937	919
Percentage flogged	23	23	29	13	29
Average no. of lashes per flogging	50	38	29	42	26

Table 6. Returns of Corporal Punishments; New South Wales compared to Van Diemens Land. Adapted from Shaw 12

 

 

Figure 6. Percentage of 7-year sentence Swing-Rioters per Eliza, Proteus and Eleanor (in order left to right in each group of three) with ticket-of-leave or pardon at stated times after arrival in Australia.

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