Convict Guide - published 2006 - Manual / Resource - Page 61
Guide to New South Wales State archives relating to convicts and convict administration
Chapter 5: Pardons: Conditional
and Absolute
5.1
Background to the records
Early Governor's
discretionary
powers
In the formative years of the colony the Governor possessed the
discretion to grant free pardons and conditional pardons as rewards for
good behaviour, for special skills or for undertaking special
responsibilities. (Hirst, Convict Society, p.85). From 1790, the Governor
was empowered to remit, either absolutely or conditionally, the whole or
any part of a prisoner's sentence. (Shaw, Convicts and the Colonies,
p.82). Pardons were also sometimes granted on arrival to educated or
gentleman convicts with private means.
Governor
Macquarie’s new
regulations on
granting pardons
Following Governor Macquarie's arrival, persons who had received
pardons and certificates after the 'Rum Rebellion' were required to
surrender them. They were then examined and reissued subject to
Macquarie's approval.
The Select Committee on Transportation in 1812 expressed concern
about the number of pardons granted and about those given to convicts
on arrival. In response, Macquarie introduced new regulations setting
minimum periods to be served for both pardons and tickets of leave.
A court case in England declared invalid absolute pardons granted
before 1819 because they had not been issued under the Great Seal.
The issue was resolved by the New South Wales Act of 1823 which
'gave to all pardons previously granted the Standing of a pardon under
the Great Seal'. (Hirst, Convict Society, p.159). The Act also allowed the
Governor to recommend but not grant pardons, although they were to
take effect from the date of the Governor's signature.
Restrictions on
Absolute pardons
Conditional pardons required their recipients to remain within the
'Government limits', that is the colony until their original term had
expired. In a despatch dated 20 July 1845 Governor Gipps received
instructions to restrict the issuing of absolute pardons and to introduce
two classes of conditional pardons 'the first class to be valid everywhere
except in Europe' which was to be given to those who were under the
former system would have been recommended for absolute pardons and
the second class 'to be valid only in the Australian colonies including
New Zealand' to those who 'under ordinary circumstances be
recommended for conditional pardons'. (HRA Vol. 24, pp.410-411).
State Records holds records which reflect these changes (see NRS
1175-76).
Greater movement
for holders of
conditional pardons
In a despatch dated 13 May 1846 it was further decided 'to give the
convict, either colonial or British, the power of removing to any place he
may desire provided he should not return to the country or colony from
which he had been transported'. (HRA Vol. 25, p.56). 'This arrangement
will have a retrospective effect and will apply to all conditional pardons
now in force'. It was hoped that this would draw off the 'redundancy of
labour' in Van Diemen's Land. (HRA Vol. 24, p.411).
From 1847 the main series of conditional pardons (NRS 1172) bear the
wording 'valid in all parts of the World except Great Britain and Ireland'.
If the convict had been tried elsewhere that colony would also be added.
58
State Records Authority of New South Wales