The Legacy of Convictism and the Timing of the Transition

The proclamation of the Private Execution Acts through Australian Colonial Parliaments beginning in 1855 was early in the context of the British Empire. It anticipated the United Kingdom itself while compa­rable settler colonies like New Zealand, Canada and the Cape of Good Hope were similarly delayed.

Whatever the individual justification of each far-flung parliament, the fact that the Australian colonies were the pacesetter in the British Empire regarding private executions requires further investigation. A cursory knowledge of colonial history is enough to know that the key difference between the Australian colonies and the other substantial British settle­ments is their long association with convicts.

Australia Imagined (2005) is a primary source compendium exam­ining how the British periodical press constructed Australia during the colonial era and provides written evidence for the colonies’ image problem abroad. In the introductory essay Judith Johnston and Monica Anderson acknowledge that before the discovery of gold, the �general tone' of the British press towards Australia was �one of disparagement, due solely to the transportation of convicts'.^[581] It is hard to disagree with such an assessment upon further examination of the printed extracts they provide. Sydney Smith's work published in the Edinburgh Review of 1819 viewed New South Wales as a �sink of wickedness' and a place where convicts go to �become infinitely more depraved'.^[582] Smith then compared New South Wales to a sunken marsh that �may be drained and cultivated' but, in the meantime, �no man who has his choice, would select it... for his dwelling-place'.^[583] In a separate extract from 1849 written by William Smith O'Brian, a prominent Irish nationalist turned transportee himself, Britain is squarely blamed for creating in Australia a �school of sin', �nurseries of depravity' and a collection of colonies �drowned with the flood of her own wickedness'.^[584] Another example comes from the London publication Leisure Hour which conducted a five part overview of the Australian colonies in 1852.

Insecurities over the standing of the Australian colonies in the civilised world were perceptible on the continent itself. As the authors of Australia Imagined rightly point out, the disparaging views of the British press were being �overheard' by the colonists themselves, since many of these periodicals were circulated, purchased and read in Australia very soon after publication.^[586] Commenting on Australia's lack of renown abroad, The Courier of Hobart printed an article in 1851 entitled �The Reputa­tion of the Colony'.^[587] It regretted how the British public would never consider �penal colonies as fields of national glory' and thought that the reputation of both New South Wales and Van Diemen's Land had been �very much injured by the uses to which they have devoted them'.^[588] It continued by stating that: �Every judge, in pronouncing the sentence of the law, makes a point to allude to this country in no very flattering terms'.^[589] When the London correspondent for Bell’s Life in Sydney and Sporting Reviewer in 1849 said to, �Thank your kind stars that you are living far away from civilised life', the newspaper did not take kindly to the intended compliment. Such an accusation was labelled a �slur' as the newspaper asked �Why should it be that this vast country be marked out by them as a blot upon the map of the world, and its sons held up as but one degree removed from the dusky savages whom civilisa­tion has displaced?'^[590] A senior figure in the early Australian Catholic Church, William Ullathorne (see Chapter 4), was another keenly aware of Australia's reputation abroad.

With a need to transform the image of Australia abroad, and with the insecurities perceptible among the colonists themselves, a natural correlation emerges between the introduction of private executions and the legacy of convictism. For the three colonies that proclaimed an end to public executions in 1855—New South Wales, Victoria and Van Diemen's Land—all had recent experiences with convicts to varying degrees. New South Wales ceased transportation in 1840 (ignoring a brief resumption in 1848), Van Diemen's Land accomplished the same in 1853 whereas the experience with convicts in the Port Phillip District (later Victoria) was miniscule by comparison and over by 1849.^[592] Between 1850 and 1868 Western Australia accepted almost 10,000 British convicts before it too abolished public executions only three years later in 1871.^[593]7 South Australia was unique in that the adop­tion of Edward Gibbon Wakefield’s plan for �Systematic Colonisation' circumvented the need for convict labour, although the convict-free status of the colony (and its gallows) has recently been challenged in the historiography by Paul Sendziuk and me.^[594]

Executions were not the only physical punishment profoundly affected by the memory of the convict era. In comparison with other British settler societies and the United Kingdom itself, Australia was compara­tively reluctant to use the whip after the 1850s. For example, the two oldest penal colonies in Tasmania and New South Wales had all but finished with the punishment by 1900.^[595] Mark Finnane in Punishment in Australian Society (1997) briefly explores the connection between this relatively early demise in usage by reference to the convict past:

To what extent was the memory of the convict era a factor in the demise of flogging after the 1850s? To argue that it was a significant factor would be consistent with what we know of the larger history of changes in modern Western penality.

For Finnane, it was not simply the mere fact of convictism that provoked the decline of whipping in Australia, but also the way the period was remembered and sustained by Marcus Clarke’s widely read book For the Term of His Natural Life (1874).^[597] The image of the �lash’ was used by Clarke in his fiction to highlight the �brutality and brutalising effects of the convict system’.^[598] The book was not just a �reflection of opinion’ but it became an �agent of political and cultural formation’ during the late nineteenth century.^[599] Whether it was an execution or a whipping, the use of bodily punishments in the colonies were clearly influenced by the cultural legacy of the convict era.^[600]

The timing of the Private Execution Acts in Australia is a reminder that punishment is intimately connected to the society it resides within. David Garland wrote that �designing penal policy’ is an exercise in �defining ourselves and our society in ways which may be quite central to our cultural and political identity’.^[601] If Australian colonists like Henry Grattan Douglass were insecure in their civilised standing in the world because of a penal past, the introduction of private executions went some way to assuaging that concern. It was, to repeat his words one last time, an opportunity to �show the whole world the progress which had been made in civilisation’.^[602]

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Between the years following the successful passage of the Private Execu­tion Acts through the Australian colonies and Britain passing a similar law, there was more than enough time for self-congratulation.

In the Mother Country the old system is doomed... Australia can take credit for having already, in practice, solved questions, that for genera­tions had formed subjects of discussion among the thinkers and writers in England, and which have been the battle-ground of many debates in the British Parliament. And not among the least of the questions in which the sister colonies have anticipated reforms in the old country, are these public executions.^[606]

These types of sentiments, combined with Henry Grattan Douglass' initial motivation for introducing the first Private Execution Act in New South Wales, demonstrate that this was something more than just another penal reform. To first recognise and then abolish something as stereotypically �barbarous’ and �savage’ as public executions before the �Mother Parliament’ was significant given the foundation history of New South Wales and Van Diemen’s Land in particular. There appears a deep, underlying desire to publicise to Britain that the Australian colonies were civilised and refined, so much so that their actions should be an example for others to copy. The need to transform the image of the Australian colonies from a collection of penal societies to a collection of civil soci­eties was a unique situation that was not present in Britain or any of its other substantial possessions. Their early adoption affirmed a nervous colonist’s �civilised’ sense of self in light of a colonial culture that was often fearful of a scornful imperial gaze.