Protecting the Colony from its People: Bushranging, Vagrancy, and Social Control in Colonial New South Wales
Abstract
During the 1830s, the Bushranging Act and the Vagrancy Act were crafted to prevent crime, revolt and insurrection in the colony of New South Wales. These statutes contained exceptional methods to police and control colonial populations and suspended legal safeguards designed to protect the population from abuses of power. Supporters of the laws argued that extreme measures were necessary due to the emergency of the occasion. Understanding the Bushranging Act and the Vagrancy Act’s enactment and operation, as well as the purposes they were designed to serve and the liberties they infringed to achieve these ends requires attention to local circumstance. A fine-grained analysis, rooted in the peculiarities of life in colonial New South Wales and anchored by the law’s operation on the ground is needed to understand the malleability of British law at this place and at this time. In this article, I argue that rather than a select criminal contingent, the New South Wales’ authorities increasingly feared that the composition of the colony threatened their colonial enterprise. The Bushranging Act of 1830 and the Vagrancy Act of 1835 contained wide coercive and discretionary powers to mitigate the extent of this threat.
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Vagrancy Act 1835 (NSW), 6 Will. IV No. 6.
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Governor Macquarie to Earl of Liverpool (October 18, 1811), HRA, series I, volume XVII (Canberra: Library Committee of the Commonwealth Parliament, 1916), 406–8.
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McLeod, “The Origins of Consorting Laws,” 114.
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Although this legal inheritance was largely assumed before 1828, it became formalized in the Australian Courts Act, 1828 (NSW), 9 Geo. IV, c. 83, s. 24. http://www.legislation.act.gov.au/a/db_1785/19870112-2268/pdf/db_1785.pdf (August 12, 2017).
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Ibid., 6.
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Vagrancy Act 1835 (NSW), 6 Will. IV No. 6.
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Governor Bourke to E. G. Stanley (September 15, 1834), HRA, series I, volume XVII, 531; Bushranging Act 1830 (NSW), 11 Geo. IV No. 10; and Transported Offenders and Suspected Robbers Apprehension Act 1834 (NSW), 5 Will IV No 9.
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Karskens, The Colony; Stephen Nicholas, ed., Convict Workers: Reinterpreting Australia's Past (Cambridge: Cambridge University Press, 1988); and Hirst, Convict Society and Its Enemies.
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Once a worker secured employment, they and their employer were subject to the Masters and Servants Act. Masters and Servants Act 1828 (NSW), 9 Geo. IV No. 9; and Hirst, Convict Society and Its Enemies, 101.
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Nettelbeck, “Creating the Aboriginal Vagrant,” 80.
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Ibid.
101
Coleborne, “Mobility Stopped in its Tracks,” 87–103.
102
The Slavery Abolition Act 1833 (United Kingdom), 3 & 4 Will. IV, progressively freed slaves over a number of years. Most slaves had to undergo a period of “apprenticeship” to their former masters before they were free, and 1838 is generally considered the year that slavery was abolished in the British Empire. Boehme, Kate, Mitchell, Peter and Lester, Alan, “Reforming Everywhere and All at Once: Transitioning to Free Labor across the British Empire, 1837–1838,” Comparative Studies in Society and History 60 (2018): 688–718CrossRefGoogle Scholar. It is worth noting that Vagrancy Law was used to control the recently freed, ex-slave population in the Caribbean after emancipation in 1838. See note 2 for details.
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“Advance Australia,” Sydney Gazette, June 24, 1834, 2.
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Neal, The Rule of Law in a Penal Colony, 9, 141–65.
105
There were complaints that convict constables interfered with free people before the Vagrancy Act. See for example Hannibal Macarthur to P. P. King (April 18, 1823). SLNSW, MLA 1976: King Family Papers Vol. 1, Correspondence, 1799–1829, CY904, 261.
106
Byrne, Criminal Law and Colonial Subject, 168.
107
Ibid., 196.
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Paula Byrne, “‘The Public Good’: Competing Visions of Freedom in Early New South Wales,” Labour History 58 (1990): 82.
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K. G. Allars, “Burton, Sir William Westbrooke (1794–1888),” Australian Dictionary of National Biography. https://adb.anu.edu.au/biography/burton-sir-william-westbrooke-1857 (April 1, 2020); and Currey, Sir Francis Forbes, 419.
110
Governor Bourke to E. B. Stanley (September 15, 1834), HRA, series I, volume XVII, 524–33.
111
Ibid., 520–36.
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Governor Darling to Earl Bathurst (June 15, 1827), HRA, series I, volume XII (Canberra: Library Committee of the Commonwealth Parliament, 1919), 679.
113
Ibid.
114
Eburn, “Outlawry in Colonial Australia,” 106–26; Kimber, “‘A Nuisance to the Community,’” 276–77; and Susanne Davies, “Vagrancy and the Victorians: the Social Construction of the Vagrant in Melbourne, 1880–1907” (PhD diss., University of Melbourne, 1990), 115–25.
115
This was a criticism of the Bushranging Act. Governor Bourke to E. B. Stanley (September 15, 1834), HRA, series I, volume XVII, 524–33.
116
Governor Bourke to E. G. Stanley (September 15, 1834), HRA, series I, volume XVII, 535.
117
McKinnon, “Convict Bushrangers of New South Wales,” 10.
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Penelope Edmonds and Hamish Maxwell-Stewart, “‘The Whip Is a Very Contagious Kind of Thing’: Flogging and Humanitarian Reform in Penal Australia,” Journal of Colonialism & Colonial History 17 (2016); and David Andrew Roberts, “Beyond ‘the Stain’: Rethinking the Nature and Impact of the Anti-Transportation Movement,” Journal of Australian Colonial History 14 (2012): 205–79.
119
British House of Commons, Report of the Select Committee of the House of Commons on Transportation (London: Henry Hopper, 1838); and Ritchie, John, “Towards Ending an Unclean Thing: the Molesworth Committee and the Abolition of Transportation to New South Wales, 1837–1840,” Australian Historical Studies 17 (1976): 144–64CrossRefGoogle Scholar.
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Although there was a brief resurgence of convict transportation in the late 1840s, Bruce Kercher argues that transportation to New South Wales effectively ended in 1840. Kercher, Bruce, “Perish or Prosper: the Law and Convict Transportation in the British Empire, 1700–1850,” Law and History Review 21 (2003): 564, 581CrossRefGoogle Scholar.
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Woollacott, Settler Society, 158.
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See footnote 11.
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McLeod, “The Origins of Consorting Laws,” 114.
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Thalia Anthony and Eileen Baldry, “Fact Check: Are First Australians the Most Imprisoned People on Earth?” The Conversation, June 6, 2017. https://theconversation.com/factcheck-are-first-australians-the-most-imprisoned-people-on-earth-78528 (December 15, 2021).
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“The Facts About Australia's Rising Toll of Aboriginal Deaths in Custody,” Guardian Australia, April 9, 2021. https://www.theguardian.com/australia-news/2021/apr/09/the-facts-about-australias-rising-toll-of-indigenous-deaths-in-custody (December 12, 2021).
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Gregoire and Nedim, “Policing the Poor.”
