Penal Servitude

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.^[1]  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. ^[2]

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 ^[†][3] 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.^[4] 

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’.’^[5]

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:

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.^[7]  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.

https://eng.ichacha.net/zaoju/penal%20servitude%20act.html

Appendix 1: List of Female Convicts sentenced to Penal Servitude in Van Diemen's Land (Tasmania)

^[1] https://www.oldbaileyonline.org/static/Punishment.jsp#imprisonment-penal-servitude

^[2] https://www.oldbaileyonline.org/static/Punishment.jsp#imprisonment-penal-servitude

^[3] https://www.oldbaileyonline.org/static/Punishment.jsp#imprisonment-penal-servitude

^[4] http://vcp.e2bn.org/justice/page11360-types-of-punishment-transportation-and-penal-servitude.html

^[5] https://www.legislation.gov.uk/ukpga/1857/3/pdfs/ukpga_18570003_en.pdf

^[6] Conduct Register of Female Convicts Reconvicted in the Colony. (CON42)

^[7] Eldershaw, P.R., 1965 (revised 2003), ARCHIVES OFFICE OF TASMANIA GUIDE TO THE PUBLIC RECORDS OF TASMANIA, SECTION THREE, CONVICT DEPARTMENT.

Further Resources

UK Parliament Transportation And Penal Servitude Bill 9 Feb 1857.

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. [26th June 1857.]

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)