Convict Guide - published 2006 - Manual / Resource - Page 117
Guide to New South Wales State archives relating to convicts and convict administration
Chapter 11: Colonial Trials and
Court Records
11.1
Background to the records
Convict rights
Convicts could not be punished except by 'due process of law' and in the
colony possessed more legal rights than was the case in England. They
were admitted as witnesses in criminal courts (in England this was not
permitted) and they could bring actions and own property. (Hirst,
Convict Society, pp.81-2).
Establishment of the
courts of civil and
criminal jurisdiction
New South Wales was a penal colony and that played a major part in
determining the structure and operation of the various courts. The first
Charter of Justice (1787) established courts of criminal and civil
jurisdiction and provided for the disposal of minor criminal matters and
public order offences by three designated justices of the peace (the
Governor, Lieutenant Governor and Judge Advocate).
Phillip's second commission enabled him to appoint additional justices
and he acted on this by selecting a number of civil and military officers
to act as magistrates from 1788.
Bench of
Magistrates
The first bench of magistrates was convened in Sydney on 19 February
1788 and by 1800 sittings were held regularly in Parramatta and the
Hawkesbury district. The use of magisterial proceedings had become
widespread by the 1820s, with benches of magistrates 'meeting
regularly at Parramatta, Liverpool, Windsor, Evan, Bringelly and Cooke
districts'. (Golder, High and Responsible Office, p.12). At Liverpool and
Windsor one magistrate had responsibility for the police organisation.
Magistrates' powers
of administration
and punishment
The weekly meetings of the Sydney bench were described as Petty
Sessions but, from as early as 1788 some colonial magistrates seem to
have assumed powers over non-capital offences which belonged to the
Quarter Sessions in England. As the magistrates' powers were not
clearly defined they developed a 'repertoire of convict punishments'. By
1820 they could punish convict offenders with extra work, consignment
to a gaol gang, imprisonment and transportation to a penal settlement.
Corporal punishment remained the most common punishment imposed
on male convicts. The flogging of females was disallowed from 1817.
(Golder, High and Responsible Office, pp.8-9).
Flogging of convicts
Floggings interfered less with a convict's availability for work than did
imprisonment and were imposed for 'absconding, absenting, neglect of
work, disobedience, insolence, drunkenness and disorderly conduct'.
(Hirst, Convict Society, p.56). Only a court could order a flogging and
masters were forbidden to whip their servants. The actual punishment
was carried out within gaols or barracks, in the town, at the lock-up or
at the place where the court met in country areas. The flogger usually
was himself a convict and was paid a small wage for this duty. Flogging
came under criticism in the press and in 1823 the treadmill, which was
approved by prison reformers, was introduced as an alternative. During
the 1830s solitary confinement also came into favour. (Hirst, Convict
Society, p.63).
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State Records Authority of New South Wales