Penal servitude replaced transportation as a primary punishment for convicted felons in 1853. The sentence of transportation had involved the relocation of a convict to a penal settlement, with a term of imprisonment that usually included hard labour. With the cessation of transportation to the eastern Australian colonies, the Penal Servitude Acts of 1853 and 1857 introduced the punishment of Penal Servitude. The provisions of this sentence did still allow transportation of a prisoner out of the country in which they were sentenced, but in most cases the punishment was served within that country.
Penal Servitude Acts of 1853 and 1857.
The Penal Servitude Act 1853[*], long titled “An Act to substitute, in certain Cases, other Punishment in lieu of Transportation” (amended in 1857), operated in conjunction with the Convict Prisons Act 1853 (16 & 17 Vict. c. 121), long titled "An Act for providing Places of Confinement in England or Wales for Female Offenders under Sentence or Order of Transportation”.
The Penal Servitude Act of 1853 gave judges the discretion to sentence anyone who might otherwise have been transported for less than 14 years to serve a term of ‘Penal Servitude’. This meant imprisonment which could also include hard or light labour in a gaol. 
Abolition of Transportation. — This Act provides that no person shall in future be sentenced to transportation for less than 14 years, and empowers the Court at its discretion to substitute " penal servitude" in the proportion of 4 years of the latter for 7 years of the former, 4 to 6 years servitude for 7 to 10 years transportation, 6 to 8 years servitude for 10 to 15 years transportation, 10 years servitude for more than 15 years' transportation, and servitude for life for transportation for life. It also enables her Majesty, under seal of the Secretary of State, to grant license to any convict to be at large in such part of the United Kingdom, and for such portion of the term of transportation or imprisonment as shall seem fit, and to revoke such license at pleasure, upon which revocation the convict may be apprehended and committed to prison. Persons convicted of larceny, having been before convicted, are not in future to be liable to transportation.
Title ACTS OF THE LATE SESSION Date Wednesday, Aug. 31, 1853 Bury and Norwich Post (Bury Saint Edmunds, England) Issue Number 3714 Source Library British Library Gale Document Number GALE|R3209875318
For women convicted of serious felonies the 1853 Act was inadequate. The Act was amended by the Penal Servitude Act 1857 which allowed for women convicted of serious crimes to undergo lengths of sentences of 14 years and over and up to life in penal servitude [†] The 1857 amendment abolished the sentence of transportation in all cases and provided that a person who would otherwise have been liable to transportation would now be liable to penal servitude instead. Exceptions were still being made, at the discretion of judges, to sentence male convicts to transportation to Western Australia up until 1868.
An Act to amend the Act of the Sixteenth and Seventeenth Years of Her Majesty, to substitute in certain Cases other Punishment in lieu of Transportation.
26 June 1857:
Sentence of transportation abolished, and sentence of penal servitude substituted.
No person shall be sentenced to transportation; and any person who, if this Act and the said Act[*] had not been passed, might have been sentenced to transportation, shall be liable to be sentenced to be kept in penal servitude for a term of the same duration as the term of transportation to which such person would have been liable if the said Act and this Act had not been passed; and in every case where, at the discretion of the court, one of any two or more terms of transportation might have been awarded, the court shall have the like discretion to award one of any two or more of the terms of penal servitude which are hereby authorized to be awarded instead of such terms of transportation:
*The “said Act” means the Penal Servitude Act 1853 (c. 99)
Penal Servitude Act 1857, https://www.legislation.gov.uk/ukpga/Vict/20-21/3/section/2
The 1857 amendment allowed:
‘Any Person now or hereafter under Sentence or Order of Penal Servitude may, during the Term of the Sentence or Order, be conveyed to any Place or Places beyond the Seas to which Offenders under Sentence or Order of Transportation may be conveyed, or to any Place or. Places beyond the Seas which may be hereafter appointed as herein mentioned’ …’Magistrates may recommit Convicts whose Licences are revoked to Penal Servitude in any Convict Prison’.’
The only convicts transported to Australia after this 1857 amendment were male prisoners sent to the penal settlement in Western Australia, which eventually closed in 1868.
The Penal Servitude Act of 1853 (amended in 1857, 1864, 1891 and 1926), lasted under British Law until 1948, when it was repealed by the Criminal Justice Act 1948, s.83(3) & Sch.10, Pt.I.
Convict Women in Van Diemen’s Land punished with Penal Servitude
Between 1855 and 1866 thirty-six convict women in Van Diemen’s Land were sentenced by the Supreme Court or at the Quarter Sessions to Penal Servitude for serious felonies. At the time of their offences, thirty women were free by servitude or had gained their certificate of freedom, four had their ticket-of-leave and two unknowns. Five women guilty of murder and attempted murder had the death sentence recorded which was commuted to Penal Servitude for periods between 10 years and life:
Maria Drake [Thompson] (per Margaret 1843) in 1858, for attempting to poison, had death recorded, commuted to Life of Penal Servitude.
Ann Conolly [Ryan] (per Maria 1849) while free by servitude for eleven years, In 1861, was found guilty of the murder of a 6-week old baby, and sentenced to death. The sentence was commuted to Penal Servitude for life. Article - The Mercury, 15 April 1861 - Page 2
In 1856 Van Diemen’s Land changed its name to Tasmania. The same year the Cascades Female Factory was proclaimed a gaol and transferred to the local authorities (Sheriff’s Department). From this time, until the Cascades Gaol closed in 1877, when all inmates were moved to Campbell Street Gaol, there appears to be some confusion over record keeping with a cross-over of responsibilities or duplication of records. As explained by Eldershaw, if a convicted person had previously been in the convict system their records would be maintained by the convict department, however it would have been difficult to keep track of name changes. Many female convicts disappeared from the records, and a few – possibly only six who were native born or had arrived free- appeared in the convict department’s records, serving imprisonment, who should have had their records kept by the Sheriff’s department.
[*] The Penal Servitude Act 1853 ( 16 & 17 Vict c 99 ) substituted penal servitude for transportation to a distant British colony, except in cases where a person could be sentenced to transportation for life or for a term not less than fourteen years. [
[†] Section 2 of the Penal Servitude Act 1857 ( 20 & 21 Vict c 3 ) abolished the sentence of transportation in all cases and provided that in all cases a person who would otherwise have been liable to transportation would be liable to penal servitude instead.
 Conduct Register of Female Convicts Reconvicted in the Colony. (CON42)
 Eldershaw, P.R., 1965 (revised 2003), ARCHIVES OFFICE OF TASMANIA GUIDE TO THE PUBLIC RECORDS OF TASMANIA, SECTION THREE, CONVICT DEPARTMENT.
Archives Office of Tasmania, GUIDE TO THE PUBLIC RECORDS OF TASMANIA, SECTION THREE, CONVICT DEPARTMENT by P.R. Eldershaw, HOBART, ARCHIVES OFFICE OF TASMANIA, 1965 (Revised 2003).
By E. Crawford (May 2021)