Punishments for secondary offences
Authorities were placed in an awkward position of determining suitable secondary punishments for female convicts on a level with the harsh punishments handed out to male convicts, such as lashes with the cat-o'-nine-tails, or hard labour on road gangs and treadmills, yet acceptable for public critique. In 1826 an Act codified the summary punishment of misbehaving female convicts, including the sentence of Hard Labour. This was reported in the Colonial Times:
An Act has been promulgated in the Government gazette of last week, by His Excellency lieutenant Governor Arthur, for the summary punishment of disorderly conduct in female prisoners in this Colony. After reciting that in an Act of Sir Thomas Brisbane, passed in the sixth year of his present Majesty, provision was made for the summary punishment of male convicts, but that no provision was thereby made for punishing the misbehaviour of females. It enacts :-1st, That it shall be lawful for any Justice of the Peace within this Colony, to take cognizance in a summary way of any complaint made before him against any female prisoner, whether in the service of Government or of any Inhabitant of this Colony ; and upon conviction to punish such female offender, either by solitary confinement on bread and water, in any place appointed for safe custody, for a term not exceeding 14 days, or by confinement and hard labour in such place not exceeding three calendar months, according to the nature and degree of the misbehaviour or disorderly conduct.[i]
[i] Colonial Times and Tasmanian Advertiser, Friday 11 August 1826 p 2
The magistrates were responsible for determining the severity of a crime and if a complaint amounted to an indictable offence in Law. The police magistrates could issue a warrant or summons, and commit an accused persons for trial in a court of justice on criminal charges. When convicts were brought before magistrates to be charged with colonial offences, the magistrates used a list of offence classes to determine which of the five classes of offences the convict's colonial offence belonged, which in turn affected the sentences given. Overall, the majority of crimes committed by convict women within the colony resulting in punishments by the magistrates were offences against Good Order and Convict Discipline: absconding, being drunk and disorderly, insolence, assault, refusing to work, being out after hours, immoral conduct, pilfering.
Female convicts were punished by varying methods within the convict institutions, evolving over time from harsher punishments that became unacceptable to the public, to more reformative and task orientated punishments. The most common punishments were solitary confinement on bread and water, or separate treatment, and hard labour at the wash tubs. Many punishments were a combination of 2 or more.
Elizabeth Boucher (per Mary Anne, 1821) in 1822, for stealing a pocket handkerchief and absconding from her mistress's premises was to be fed on bread and water 14 days, to wear an Iron Collar 7 days and sit in the Stocks 3 days one hour each day.
Additionally, all Crime (or 3rd) Class prisoners were punished on admittance to a female factory by having their hair cut short. While this was considered a demeaning punishment by the women, the rationale for hair cutting could also have medical or hygiene objectives.
Hobart Town Gazette, Saturday 17 June 1826 p 2 Article
Last week, no less than 22 of the women confined in the Female Factory were sentenced to various punishments of solitary confinement, and being fed on bread and water, some of whom had been guilty of disorderly conduct, uttering insolent and abominable expressions, escaping from the cells, over and through the outer wall, and of other conduct highly unbecoming the female character. They were fortunately, prevented from escaping through a large. hole which they made in the wall, and some, of the punishments were inflicted for the ill-treatment the workmen received in mending it up.
Below is a list of punishments recorded for colonial offences in Van Diemen's Land by magistrates, Quarter Sessions or Supreme Court. Once returned to the Female Factory or House of Correction, female convicts could be subjected to secondary punishments as determined by the Superintendent or gaoler of the establishment. The methods and intensity of punishments changed over the years. The physical retribution that appeared acceptable in the early years of the assignment period was phased out as the justice system came under scrutiny, as discussed at the Enquiry into Female Convict Prison Discipline 1841-43.
- Admonishment or Reprimand
- Bread and Water
- Committed to Trial
- Crime Class
- Death Sentence
- Existing Sentence Extended
- Gaol (Imprisonment)
- Hair Cut Close or Head Shaved
- Hard Labour
- Indulgences Revoked
- Iron Collar
- Lashing, Flogging or Whipping
- Macquarie Harbour
- Penal Servitude
- Probation and Probation Extended.
- Relocation/Removed to the Interior
- Returned to the Government
- Sent to Newcastle
- Sent to Parramatta
- Separate Treatment
- Solitary Confinement
- Transportation Sentence Extended
- Treadmill or Treadwheel
- Wash Tub
Punishments used at the Female House of Correction:
The Principal Superintendent of Convicts was given powers of a Justice of the Peace/Magistrate and whose daily duty, as set out in the Rules and Regulations included 'hearing and determining offences committed within the walls'. The Superintendent and Overseer also had limited powers for 'moderate' secondary punishment as set out in 'AN ACT for the Summary Punishment of disorderly Conduct in Female Offenders in the Service of the Government, or of any Inhabitant of Van Diemen's Land;...'. Their powers were further defined in the 1829 Rules and Regulations:
Females guilty of disobedience of orders, neglect of work, profane, obscene, or abusive language, insubordination, or other turbulent or disorderly, or disrespectful conduct, shall be punished by the Superintendent with close confinement in a dark or other cell, until her case shall be brought under the consideration of the Principal Superintendent.
There are anecdotal reports of the superintendent exceeding his powers of 'moderate' secondary punishment by using the spiked iron collar, and solitary confinement boxes - described as 'like sentry boxes' (The Courier, Tuesday 18 December 1855 - Page 2).
The superintendent was responsible for recording offences and sentences in punishment books, two of which have survived, covering the period 1851 to 1854. The punishments methods within the establishment endeavoured to be judicious but on close inspection were inconsistent. Besides punishments mentioned above as determined by magistrates, further examples of in-house punishments, many for petty offences, are:
On 19 July 1843, Jane Eskett, who was transported on the Garland Grove, was charged at Cascades Female Factory on the complaint of the Superintendent John Hutchinson with insubordination in openly resisting his lawfully constituted authority on the night of Monday 17 July. Jane pleaded guilty. The case of insubordination was dismissed but she was found guilty of misconduct and received 14 days in solitary confinement. Jane's case is interesting in that John Hutchinson quelled her behaviour by using a gag. At her hearing, the Superintendent stated the following (TAHO, AC480/1/1).
I am the Superintendent of the Female House of Correction, and on Monday last at 12 o'clock in the day there was a considerable noise and uproar proceeding from the cells. I first went Mrs Stewart to beg they would desist and to inform them if they did not I should come to them, Mrs Stewart is one of the Officers of the Establishment. I was obliged to go to them with cuffs & gags the noise proceeded from Eskith no one of the number she was in one of the cells confined under a special order of the Governor. I opened the cell door in which she was confined, her conduct was so riotous I was compelled to put the gag on. I repeatedly advised her to desist, and at last she did, her behaviour was such as to cause insubordination in the Building so I was compelled to remover her. After she confessed her fault I took off the gag and she then commenced most violent language in consequence of a noise in the adjoining cell. Her language was not bad but violent. I was compelled her to removed her to one of cells. Her language was not bad to me personally. She did not continue violent in the next cell. Eskitt's general conduct up to the time of this disturbance has been very good. There about thirty or thirty five women engaged in the disturbance it did not commence with this woman and she was not worse than the rest. She was using violent language at the time I gagged her she did not fight.
Cleaning the yards
Nightwatch duties (with credit stopped)
Remanded to appear before the visiting Magistrate
Deprived of comforts: half rations, removal of blankets or straw in bedding, not to be exercised
Punishment ward, refractory or dark cell
The 1826 Act for the Summary Punishment of Disorderly Conduct in Female Offenders
COLONY OF VAN DIEMEN'S LAND: 1826--1830
VAN DIEMEN'S LAND.
COPIES of the LAWS and ORDINANCES passed by the Governor and Council of the Colony of Van Diemen's Land: 1826-1830
Anno Septimo GEORGII IV. REGIS • No. 1.
By his Excellency Colonel George Arthur, Lieutenant Governor of the Island of Van Diemen's Land and its Dependencies, with the Advice of the Legislative Council.
AN ACT for the Summary Punishment of disorderly Conduct in Female Offenders in the Service of the Government, or of any Inhabitant of Van Diemen's Land; and for vesting in the Principal Superintendent of Convicts the like Powers and Authorities as are given to the several Justices of the Peace, by a Law or Ordinance made in the Sixth Year of His Majesty's Reign, by his Excellency Sir Thomas Brisbane, late Governor of New South. Wales, with the Advice of the Council of that Colony, intituled, "An Act for the Summary Punishment of disorderly Conduct in any Offender in the Service of Government, or of " any Inhabitant of New South Wales or Van Diemen's Land, " and by the present Act.
WHEREAS; under and by virtue of the said Law or Ordinance, the several Justices Of the Peace in this Colony are authorized to take cognizance, in a summary way, of every complaint made against any such male offender as is therein described, for misbehaviour or disorderly conduct during the term of his transportation or subsisting conviction; and upon conviction of any such offender, to inflict or cause to be inflicted such moderate punishment as in and by the said Law or Ordinance is mentioned and allowed, subject nevertheless to the proviso and restriction therein in that behalf contained; But no provision is thereby made for punishing the misbehaviour and disorderly conduct of female offenders of the like description; For·remedy whereof be it Enacted, by his Excellency the Lieutenant Governor of Van Diemen's Land; with the advice of the Legislative Council, That it shall and may be lawful for any Justice assigned to. keep the peace within this Colony, to take cognizance, in a summary way, of any complaint made before him against any female offender convicted in Great Britain, or other parts of The King's dominions, and transported to this Colony, or convicted in this Colony and under sentence or order of transportation for misbehaviour or disorderly conduct during such her term of transportation, or during the time she shall be under such sentence or order of transportation, whether such female offender be in the service of the Government or of any inhabitant of this Colony or its dependencies, and upon conviction to punish such female offender, either by solitary confinement on bread and water, in any place appointed for safe custody, for any term not exceeding Fourteen days, or by confinement and hard labour in such place for any term not exceeding Three calendar months, according to the nature and degree of the misbehaviour or disorderly conduct.
Provided alway, That a quarterly return of all sentences imposed by every such Justice, under the authority of this Act, shall be made to the Governor or Acting Governor for the time being of this Colony.
And whereas, under and by virtue of an Act of Parliament made and passed in the Fifth year of His Majesty's reign, intituled, " An Act for the Transportation of " Offenders from Great Britain," His Majesty is authorized to direct that male offenders convicted in Great Britain, and being under sentence or order of transportation, shall be removed to any part of His Majesty's dominions out of England, and there confined and kept to hard labour, under the custody and management of a Superintendent and an Overseer, to be respectively appointed as therein mentioned; and such Superintendent and Overseer are thereby respectively authorized to inflict upon any such offender who shall be guilty of any misbehaviour or disorderly conduct, during such custody, such moderate punishment as shall be allowed by one of His Majesty's Principal Secretaries of State; and such Superintendent is thereby authorized, in every such place of confinement, to act in every respect as a Justice of the Peace:
And whereas the duties of the Principal Superintendent of Convicts in this Colony are similar to those of the said Superintendent mentioned in the said Act of Parliament:
And whereas the necessity of resorting to the police and other magistrates for the punishment of such male offenders as aforesaid, in the service of the Government, as have been guilty of misbehaviour and disorderly conduct, hath frequently occasioned great hindrance both to the magistrates in the execution of their offices, and to the carrying on of the public works and the maintenance of good order amongst such male and female offenders as aforesaid would be greatly facilitated by giving and conveying to the said Principal Superintendent of Convicts the powers, and authorities hereinafter contained in that behalf:
Be it therefore further Enacted, by the authority and with the advice aforesaid, That it shall be lawful for the Principal Superintendent of Convicts for the time being to take cognizance, in a summary way, of every complaint made before him against any male or female offender convicted in Great Britain, or any other part of the King's dominions, and transported to this Colony, or convicted in this Colony, and being under sentence or order of transportation for any misbehaviour or disorderly conduct during his or her term of transportation, or during such time as he or she shall be under sentence or order of transportation whether such offender be in the service of the Government, or of any inhabitant of the said Colony or its dependencies; and to examine into, hear, and determine the matter of every such complaint; and upon proof by one or more credible witnesses upon oath, (which oath such Principal Superintendent of Convicts is hereby authorised to administer,) to convict or acquit the offender against whom such complaint shall be made; and also, without the complaint of any other person, and without examination of any witness or witnesses, to convict any such male or female offender, being in the service of the Government, of any misbehaviour or disorderly conduct committed by him or her within the view of the said Principal Superintendent of Convicts; and upon every such conviction as aforesaid, to order and cause such moderate punishment to be inflicted upon the offender convicted, as under and by virtue of the said recited Law or Ordinance, and of the present Act, or either of them, any Justice of the Peace is authorized to inflict or cause to be inflicted in a like case.
Provided alway, That nothing herein contained shall be deemed to authorize any Justice of the Peace, or the said Superintendent of Convicts, to take cognizance of any misbehaviour or disorderly conduct of any such offender as aforesaid, who, at the time of such misbehaviour or disorderly conduct, shall be in the-private service of such Justice, or the said Principal Superintendent of Convicts respectively.
Provided also, That the said Principal Superintendent of Convicts shall make a weekly Return, on Monday in every week, to the Governor or Acting Governor for the time being of this Colony, of all. convictions made and all punishments ordered by him, under the authority of this Act, during the week preceding every such Report.
Provided also, That this Act shall continue and: be in force for the term of Two-years from and after the making hereof, and no longer.
Passed the Council this 1st day of August 1826.
John Montagu, Clerk of the Council.
Punishments within Probationary Establishments
The following regulations were defined for the Visiting Magistrate in 'REGULATIONS OF THE PROBATIONARY ESTABLISHMENT FOR FEMALE CONVICTS IN VAN DIEMEN’S LAND' (July 1, 1845):
- —The probationary Establishment will be visited by this Magistrate at least twice in each week.
- —He will investigate all charges brought against the women, and award punishment, as sanctioned by law. In the discharge of this duty care will be taken to regulate the description and amount of punishment by the temper, disposition, and understanding of the offender. The description of punishment, which to one would be trifling, to another would be severe. Want of attention in inflicting punishment on this principle frequently renders it unequal and unjust.
- —A distinction is also to be drawn between offences: some in their nature are criminal, whilst others are mere breaches of discipline or of regulation; and it is not too much to expect that, under a strict system of personal superintendence on the part of the Officers, offences will not be frequent, and severe punishment seldom required.
- —Advice, admonition, and kindness, will in most cases be found effectual; but if these fail, and it should be found necessary to resort to punishment, extension of the allotted period of probation—or separate or solitary confinement—will, it is hoped, in most cases, be found sufficient.
The Prosecution Project: Tasmanian Courts, Early Justice