Capital Crimes in the Colonies
As scholars like Bruce Kercher and Alex Castles have noted, the early legal history of Australia was often a case of melding English principles with the limitations and novelties of local conditions.[50] When the British colonization of Australia began in 1788, New South Wales inherited English law except where it was neither practical nor necessary.
PunishÂment was, to use the words of the colony's first Judge Advocate, to be â€?inflicted according to the laws of England as nearly as may be, considÂering and allowing for the circumstances and situation of the settlement and its inhabitants'.[51] When Western Australia and South Australia were proclaimed colonies (in 1829 and 1836, respectively) each adopted the bulk of English law as it then stood at the time. However, there was a slight variation for the colonies that separated from New South Wales— that is, Van Diemen's Land in 1825, Victoria in 1851 and Queensland in 1859. These colonies took a snapshot of New South Wales' law, rather than inheriting that of England’s directly.[52] Thus, reforms to capital punishment in England throughout the nineteenth century, and also to New South Wales earlier on, are of special importance to understanding the evolution of capital offences in the Australian colonies more broadly.At the time New South Wales was proclaimed a colony in 1788, England had a famously excessive capital code. Serious crimes like murder and rape were represented but so too were infringements like hunting in disguise and tree cutting for profit. Many have considered the expansion of the capital code in England (through legislation like the â€?Black Act’ of 1723) as an attempt by the propertied classes to secure their possessions and livelihoods in a quickly industrializing world.[53] Yet, despite England’s â€?bloody code’ promising over two-hundred capital crimes, in practice, only the commission of twenty-five or so of them might actually earn the offender a trip to Tyburn’s hanging tree.[54] Early in the nineteenth century reform-minded MPs in the British Parliament— headlined by men like Samuel Romilly, William Ewart, James Makintosh and Robert Peel—sought to temper England’s penal code.
Their job was mostly completed by 1837 at which point there was a wholesale reduction of capital crimes. From 1861 until the end of the nineteenth century, only five crimes could warrant the death penalty in England: murder; high treason; espionage; piracy with violence; and arson in the royal dockyards.[55] Once criticised for being more akin to a lottery than justice, the capital code in England was reduced, narrowed and far more considered by 1900.To turn to the situation in New South Wales, it adopted many of the reforms related to capital punishment as they were passed in England. G. D. Woods has usefully identified the years 1828, 1833, 1837 and 1838 as key markers for the retreat of the death penalty in the colony.[56] Taken alone, 1828 is an important landmark owing to the passage of the Australian Courts Act. The Act ended any speculation that the laws operating in England as of 25 July 1828 (the precise date chosen) were enforceable in Australian jurisdictions. By extension, alterations to capital statutes made in England prior to that date were automatically received into the criminal law of New South Wales. Thereafter, it was at the individual discretion of lawmakers to adopt or ignore English legislaÂtion as they saw fit. 1828 also marked the year that many forms of simple larceny were officially made non-capital while petit treason was to be prosecuted simply as murder. In 1833, lesser cases of forgery, yet more forms of larceny as well as the theft of specific livestock (cattle, sheep, horses, etc.) were no longer a problem for the hangman. The changes for 1837 in the colony were comparatively modest and did not reduce the number of capital crimes per se—both hanging in chains and dissection of the body after execution was abolished.
1838 was an important year for the capital statutes in New South Wales. By adopting a raft of English statutes passed the previous year, the tone of the criminal law in the colony was substantially altered.
Many forms of property-related crimes like housebreaking, burglary, robbery, pickpocketing, smuggling, shipwrecking and arson were made non-capital so long as (to speak in the broadest terms about it) no one was harmed or threatened during its commission. However, if there was any intent to murder while committing many of the aforemenÂtioned crimes (i.e. not just harm the victim) then death was sometimes kept as a possibility. Extortion, riot, incitement to mutiny and some offences relating to slavery were similarly downgraded. Various forms of attempted murder were made non-capital but in sometimes confusing ways. For instance, strangling or suffocating with intent to murder was made non-capital but poisoning, stabbing, cutting or bodily injury with similar murderous intent was still visited with death. For the most part, longer terms of transportation took up the void for many of these one-time capital crimes.[57]The extensive set of English capital crimes reproduced in New South Wales in 1788 was eventually whittled down. In fact, on the eve of FederÂation in 1901 only eleven crimes remained capital in New South Wales. Nine of them were defined by the Criminal Law Amendment Act of1883:
[M]urder (including murder committed recklessly, but not manslaughter) (s 9); attempted murder (s 16); acts done to property with like intent (s 17); rape (s 39); carnally knowing a girl under ten (s 41); burglary with intent to murder or cause grievous bodily harm (s 103); setting fire to a church or dwelling knowing a person to be inside (s 177); setting fire to or destroying a ship or vessel carrying persons (s 212); and exhibiting a false light or signal with intent to bring a vessel into danger (s 215).[58]
The remaining two capital crimes, treason and arson in the royal dockÂyards, were still applicable in New South Wales owing to English law that was adopted earlier on in the settlement’s history.[59] A study by Jo Lennan and George Williams attests to the fact that, by the conclusion of the nineteenth century, each Australian jurisdiction had a relatively modest capital code.
In fact, all were less voluminous than that of New South Wales. The number of capital crimes in each colonial jurisdiction at the time the colonies’ federated in 1901, in order from most to least, was as follows: New South Wales (11); Victoria (9); Tasmania (8); Queensland (5); Western Australia (5) and South Australia (2).[60] South Australia, the jurisdiction with the least capital crimes by the close of the century, decided that only murder (including petit treason) and piracy with an attempt to murder should warrant the death penalty. This arrangement was agreed upon as far back as 1876 with the passage of the Criminal LawConsolidation Act.1 Not one jurisdiction took the initiative to abolish capital punishment until the twentieth century.
As each Australian colony was maturing there were mechanisms availÂable to shape the use of capital punishment to local conditions rather than just blindly follow the English example. That said, forms of coloÂnial governance prior to the 1850s had, for the most part, the appointed governor of each colony intimately involved in the initiation and review of any new legislation. It was only until responsible government was granted to the majority of the Australian colonies in the 1850s (Western Australia waited until 1890) that the balance of power shifted dramatÂically in favour of elected lawmakers. Open parliamentary deliberation gave colonies a new-found freedom to tailor the capital code to their own needs and desires. Major milestones for the penal laws in each jurisdiction—perhaps the creation of a criminal code or a comprehenÂsive consolidation of its criminal law—were key markers of change and endorsement for a colony's own capital code. As seen in the case of New South Wales though, the adoption of English statutes was the most common way to keep pace with reform abroad. Capital crimes in Australian jurisdictions, in terms of sheer numbers, trended downwards in the colonial period from the time of settlement onwards.
However, no two colonies had a completely identical set of capital offences. Some jurisdictions only partially adopted statutes passed by the British ParliaÂment while others expanded their capital statutes in new ways owing to local concerns. Working backwards from the situation at Federation, there were clearly areas of criminal activity in which colonial lawmakers resisted reform. This was mostly for various sexual crimes, aggravated robberies, attempted murder, and security and defence—all areas which will now be investigated further.To start with sexual crimes, the Australian colonies were slow to remove the death penalty for rape and carnal knowledge of a minor. While Britain had abolished rape as a capital sentence in 1841, Victoria, Western Australia and New South Wales still retained it as a capital [61] offence as of 1900.[62] Queensland was another colony that delayed following the English example until 1899 with the passage of their Criminal Code Act.[63] As scholars like Kaladelfos and Barber have noted, lawmakers believed that the â€?purity’ of colonial females (particularly the isolated women of the interior) needed additional protection in thinly populated districts from two perceived threats—namely, the Indigenous male and the immoral white bushman.[64] Consider this statement from John Bramson to Queensland’s Legislative Assembly in 1865 in support of maintaining rape as a capital offence:
Capital punishment will be kept for rape because the women in this colony are in a more defenceless position than at home, from our limited population and scattered habitation, and, consequently they are very liable to violence in the absence of their natural protections; and they are also liable to assaults by the Aboriginals. For the Aboriginals, I believe, hanging is the only thing that brings home to them the terror of the law.[65]
Another sexual crime that was still capital in Victoria and New South Wales in 1900 was carnal knowledge of girls under ten.[66] Although Tasmania had removed it as a capital offence before 1900, it was another jurisdiction that made criminals liable to execution for carnal knowlÂedge of minors for a large portion of the nineteenth century.[67] The same offence was made non-capital in England as of 1841, incidentally by the same legislation that had abolished rape as a capital crime.[68] Like with rape, one Victorian MP pointed out that there was â€?no such thing as consent' in cases involving people so young.[69] When discussing the clauses around carnal knowledge in New South Wales' Criminal Law Amendment Act of1883 MPs remarked in similar terms about the differÂences between England and their colony.
The â€?temptations' to commit such a crime, one New South Wales MP suggested, â€?were greater here than in England, because people were more isolated'.[70] [71]Buggery was a sexual act that remained a capital offence for a long time in the Australian colonies. In England the crime of buggery (incluÂsive of bestiality), remained a capital offence until 1861; the last recorded hanging for the crime took place there in 1836.25 By 1900, however, Victoria and Tasmania held onto sodomy as a capital crime.[72] Richard Davis has speculated that its longevity as a capital offence in Tasmania was owing to a heavy gender imbalance in the colony. In the first decades of settlement, the island's males could outnumber its female population by as much as three to one depending upon the year selected.[73] Davis suggests that successive convict era governors thought sodomy needed to be treated severely because â€?leniency would suggest to the convict popuÂlation that the government condoned unnatural crimes'.[74] A fear that homosexual activity was rampant in Australia's penal settlements was raised in William Molesworths widely circulated 1837 report into the convict system.[75] Moreover, preventing sexual activity among convicts was taken into account when modifying their physical sleeping quarters and managing day-to-day discipline.[76] Victoria had more caveats than Tasmania on its definition of sodomy as defined by its Crimes Act of 1890. There, death was only warranted in instances that involved anyone under fourteen, or for persons of any age should violence and a lack of consent accompany its commission.[77] Although colonial authorities were technically executing men for sodomy into the 1860s, the victim’s age was a key consideration as to whether or not the punishment would actually be carried out.[78]
Aggravated forms of robbery were treated harshly by colonial statute books for a long time. Robbery accompanied with wounding, violence or similar bodily harm, was still considered a capital offence in Victoria and Western Australia by the end of the nineteenth century. The same crime remained capital in New South Wales as well, though it needed to be accompanied by an intent to murder. This is something of a hangover from an earlier period when successive colonial administraÂtions were trying to suppress bushranging. For instance, various laws passed in Sydney during the 1830s affirmed the death penalty for people who harboured a known robber and for anyone fraudulently receiving mail—both crimes known to sustain convicts on the run.[79] Tasmania unequivocally refused for much of the 1830s to adopt an English statute that made the theft or killing of livestock non-capital.[80] Moreover, it expanded its capital code in 1835 when it determined that any escaped convict in Tasmania who used firearms or committed a felony while at large was liable to suffer death.[81] Western Australia was the last penal outpost on the continent and similarly expanded its capital code with an eye to control escaped transportees. In 1854 an Act made it a capital offence for convicts illegally at large to commit robbery with violence, enter a dwelling and intend to commit a felony, or attempt to wound anyone with a weapon. The legislation’s preamble explained that â€?more stringent laws than now exist’ were needed to suppress crime by absconded convicts and guarantee the safety of officials trying to capture them.[82] Though the majority of these convict-era capital offences were abolished by 1900, it does demonstrate how colonial administrators looked to the gallows as a means to combat perceived threats to public safety.
While murder itself was a capital crime in all six colonies at Federation, the lesser crime of attempted murder remained capital in New South Wales, Victoria, Western Australia and Tasmania. Wounding, poisoning and drowning were some of the different methods explicitly referred too by the relevant statutes. Some colonies also had the death penalty in place for crimes that involved destroying dwellings or ships by setting them alight. Although it may seem frivolous by modern standards, such crimes were also in place to prevent the endangerment of life. New South Wales, Victoria and Tasmania all had provisions that, should the intent be to kill people located inside the structure, such damage should be considered a capital offence. The same rationale was in place for New South Wales, the only colony that considered the display of false signals to ships with such severity. Or for Tasmania which placed the casting off of a ship on the same terms as setting fire to it.[83] England, meanwhile, only treated murder capitally after 1861, other violent crimes short of taking human life was a job for the prison warden.
The last area of crime where capital offences still persisted in the colonies at the time of Federation is that of security and defence. New South Wales, Queensland and Western Australia all thought treason should be met with death. Interestingly, Tasmania’s Defence Act of 1885 made members of its own defence force liable to capital punishment should a soldier desert to the enemy or traitorously surrender a fortiÂfication.[84] By 1900 New South Wales was the only colony that retained arson in the royal dockyards as an offence punishable by death while forms of piracy accompanied with violence were made capital only in Tasmania, Queensland and South Australia.[85] As late as 1899 one Queensland MP affirmed his position that the death penalty for piracy was â€?very proper for the offence’ since the perpetrators of such a crime â€?needed no more consideration than wild beasts’.[86] Fears over inadequate defence capabilities were one of the major reasons for Federation while shipping was the means by which the colonies connected with other markets within the British Empire. However, given high treason, espiÂonage and arson in the royal dockyards were still capital offences in England as of 1900, the Australian colonies were not alone in taking a tough stance towards these matters.
When comparing the English capital code to that of the Australian colonies—and, for that matter, the colonies to each other—there were points of divergence and convergence. Though the trajectory was to reduce the number of capital offences, the unique factors of Australia settlement led to the occasionally tardy adoption of English standards. The gender imbalance within the colonies, an isolated frontier, the presÂence of convicts and a desire to safeguard the â€?purity’ of women and children were all invoked in different circumstances to keep an offence capital after England had downgraded it. Yet, as any historian of the gallows knows, it is one thing for a capital crime to exist on the statute books but quite another for hanging to be actually carried out to the letter of the law. Both members of the executive and the judiciary had means available to guarantee that only those criminals they thought deserving would actually shake hands with the hangman. First though we need to reach an estimation of how many criminals were actually executed in Australian history.