Transportation was unknown to the common law of England it derives its origin from Acts of Parliament; the transportation Acts have two specific objects in view, the punishment of criminals, and the supply of the Colonies with labour.[1]
Transportation was the primary punishment for female convicts convicted in Great Britain or throughout the British Empire. Convicts were relocated overseas to serve out a sentence of penal servitude entailing imprisonment and hard labour, or other manual labour through assignment or probation. Transportation was also applied as a punishment for offenders who were inhabitants of New South Wales or Van Diemen’s Land, including those who had previously been transported: convicts already serving sentences of penal servitude or those who had served their sentences. [2]
The sentence of transportation within an Australian colony was considered the highest form of secondary punishment, often imposed after a sentence of death was commuted.[3] Whilst many of the original crimes resulting in transportation from Britain were for very trifling offences, the sentence of transportation within the Australian colonies was reserved for more serious offences such as larceny, receiving, and attempted murder. Sheep stealing was a particularly prominent colonial crime; those charged often received the capital punishment of death, which was sometimes commuted to transportation for life.
Although there are reports of transportation as a colonial sentence being applied prior to 1823, decisions appeared to be inconsistently enforced and the term ‘transportation’ loosely interpreted. Up until the early 1820’s, convicts charged with serious offences in Van Diemen’s Land were regularly ‘transported’ to Port Jackson to appear in the Criminal Court at Sydney. If found guilty, the Van Diemen’s Land prisoners were usually sentenced to transportation to Newcastle or Parramatta in NSW, or transported back to VDL; convict women previously located in NSW could be transported to VDL to serve out their sentence, or ‘to any place the Governor might think fit to direct’. [4] VDL female convict records show that, prior to 1821, approximately seven women were sent to the old Female Factory in Sydney, whilst waiting for the new Factory to be built at Parramatta (completed in 1821). Between 1819 and 1821, ten female convicts from Van Diemen’s Land (VDL) were sentenced to be sent to Newcastle as a secondary punishment, either through an Order of Transportation, or to complete their remaining sentence. However, due to terminal illness or pregnancy of those thus sentenced, as few as four of the women may have actually left VDL. At least thirty-five women tried in Sydney were transported to VDL under sentence for periods of 2 years to life - many had arrived free to the colony.
In 1822 the penal settlement at Macquarie Harbour was established, offering an alternative arrangement for transportation for male and female convicts. Nine convict women from VDL were sentenced specifically to transportation to Macquarie Harbour as punishment for crimes within the colony. At least two women ended up at Macquarie Harbour in response to the magistrate’s judgement: ‘to be transported to such part of the Territory as His Honour the Lieutenant-Governor may think proper for the remainder of her sentence’, indicating that the term ‘transported’ was possibly more aligned to decisions on relocation rather than a court decision of an ‘Order of Transportation’.
In 1823, the government of New South Wales and Van Diemen’s Land clarified the rules governing the colonial sentence of transportation:
ANALYSIS OF AN ACT To provide for the better Administration of Justice in New South Wales and Van Diemen's Land, and for the more effectual Government there of. 4 GEO. IV.—CAP. XCVI. (Passed, 19th July, 1823).
XXXVI. If any Person under Sentence of Transportation shall be convicted of an Offence which, if committed in England, would be punishable by Transportation, the Court before whom he is tried may sentence him to safe Custody in New South Wales, or any of its Dependencies, for any Term not exceeding the Term for which he would have been sentenced if convicted in England; such Detention to be computed from the expiration of his original Sentence. (Hobart Town Gazette and Van Diemen's Land Advertiser, 9 January 1824 - p 2)
A sentence of transportation could henceforth be carried out anywhere within the colony. Decisions on transportation were possibly made easier after 1824 when Van Diemen’s Land commenced trials at its own Supreme Court, further strengthened after December 1825 when VDL become a distinct colony, independent from NSW and with John Lewes Pedder, Esq. appointed to the position of Chief Justice of the Supreme Court with ‘Powers, Authorities and Jurisdictions within the said Island of VDL and the said Islands, Territories and places thereto adjacent’. *
Philip Tardiff, in his research Notorious Strumpets and Dangerous Girls: Convict Women in Van Diemen’s Land 1803-1829, explains:
‘While many faced the Quarter Sessions or the Supreme Court, relatively few were actually found guilty and transported’…’for those who were (less than 4 percent), such a sentence normally entailed a long period spent in Crime Class, followed by assignment. If the woman was sentenced to transportation while still a convict, the new sentence was usually served concurrently with the existing one.’[5]
Tardiff’s statement ’the new sentence was usually served concurrently with the existing one’, contradicts the original decree (mentioned above) that ‘such Detention to be computed from the expiration of his original Sentence’. This could indicate that the application of the sentence evolved over time and also may have depended on the leniency of the court. (Refer to the story of Jane Boyle, below, whose two sentences overlapped).
Research also indicates inconsistency and confusion over the many Acts of British Parliament governing Orders of Transportation that were passed in the first quarter of the 19th century, which possibly meant that magistrates may have been uncertain over the application of the various Acts towards women.
In 1825 a new Act A Bill for Punishing Offences committed by Transports Kept at Labour in the Colonies, was derided as ineffectual for not including the punishment of women:
‘But this Act only applies to male prisoners; so we suppose,' the “Ladies” are still to enjoy freedom from the visitations of the law’. (The Australian, Thursday 24 November 1825 - Page 3).
A previous Act, An Act for the Summary Punishment of Misbehaviour or Disorderly Conduct in any Offender in the Service of Government or of any Inhabitant in New South Wales or Van Diemen's Land. [8th February, 1825] (Male Convicts Punishment Act 1825 No 4a), had also failed to address punishment for female convicts. This was followed In August 1826 with 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, (link) which covered moderate punishment allowable by a factory superintendent, but still omitted any direction for magistrates on handing down the severe punishment of an Order of Transportation for female convicts. The 15th August of the same year saw yet another Proclamation: An Act for the Transportation of Offenders to Penal Settlements, and, for the more effectual Punishment and Security of the same (Transportation Act 1826 No 5a), a NSW Act which ‘thereby appointed, Port Macquarie, Moreton Bay, and Norfolk Island, to be the Places to which offenders, convicted in New South Wales, shall be sent or transported’. The above Acts, a mixture of Colonial Acts, enacted before, during and after the separation of powers between NSW and VDL, failed to address the application of the transportation punishment as it applied to female convicts in VDL. [*]
The inconsistency of the previous acts was finally rectified in 1827 with the Act for the Transportation of Offenders from Van Diemen's land (link). This Act attempted to ‘produce uniformity in the laws in force in this Colony, as to the transportation of offenders convicted therein’. It defined expectations relating to the punishment of female offenders; giving the Female Factory superintendents custody and management of females assigned to incarceration and hard labour, including responsibility for their assignment or probation outside the factory.
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ANNO OCTAVO. GEORGII IV. REGIS. (No. 4.) 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 Transportation of Offenders from Van Diemen's land.] WHEREAS, by an Act of Parliament made and passed in the fourth year of the Reign of King George the First, entitled an act for the further preventing robbery, burglary and other felonies, and for the more effectual transportation of felons…[6] I. BE IT ENACTED, by His Excellency The LIEUTENANT GOVERNOR aforesaid, with the Advice of the Legislative Council, that from and after the commencement of this Act, when any person or persons shall be convicted before any Court of competent jurisdiction within this Colony or any of the Dependencies thereof, of any offence, for which, by any law in force in this Colony, such person or persons shall be liable to be transported, it shall be lawful to and for that Court, or any subsequent Court holden for the same place, to order and adjudge that such person or persons so convicted as aforesaid, shall be transported beyond the sea for the term of life, or years, for which such person or persons shall be so liable to be transported as aforesaid.
VIII. AND BE IT FURTHER ENACTED, by the authority and with the advice aforesaid, that it shall, and may be lawful to keep to hard labour, every offender under sentence or order of transportation, while he or she shall remain in the common Gaol, if his or her health permit, and that it shall be lawful for the Governor, if he shall think fit to order any such offender, being a male, to be removed to any Penitentiary, and to be kept to hard labour there, under the custody and management of the Superintendent, or in chains, upon the high Roads, or other Public works, and in like manner to order any such offender, being a female, to be removed and confined in any Factory, and there kept to hard labour, under the custody and management of the Superintendent thereof, or otherwise, or when he shall think fit to assign and make over any such male or female offender to any person, or his or their assigns, for all or any part of the residue then to come of the term for which such offender shall be sentenced or ordered to be transported, which person or persons, and their assigns, shall have a property in the service of such offender, for and during the time for which he or she shall be assigned. |
Transportation as a secondary sentence was further defined in the August 20, 1835 Legislation to consolidate various Acts: An Act To Consolidate And Amend Certain Of The Laws Relating To The Courts Of General Quarter Sessions And To The More Effectual Punishment And Control Of Transported And Other Offenders (6 Will IV, No 2) available here, and (amended October 1, 1835). (Hobart Town Gazette, 20 August 1835 pages 655-656)
Between 1821 and 1858 approximately 101 convict women in Van Diemen’s Land (VDL) were sentenced to transportation, with at least six women being transported for a third time. The timeline overlaps with the Penal Servitude Act of 1853 which, when first instigated, did not provide provision for convicted women receiving sentences equivalent to 14 years or more of transportation. [Refer to Penal Servitude Punishment] [**]
There are several examples where the sentence of transportation continued past 1853 within VDL, both for serious crimes and lesser crimes resulting in sentences of under 14 years of transportation. The 15-year transportation sentence in 1854 of Jane Boyle (per Blackfriar, 1851) for robbery was an example of the ineffectiveness of the Penal Servitude Act of 1853 in the sentencing of female convicts for serious crimes at a time when transportation from Britain had ceased.
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Jane Boyle (Blackfriar, 1851) in 1854 received 15 years Transportation.
At her trial in Ireland, in April 1850, Jane Boyle was originally sentenced to 7 years transportation for stealing a frock. She was transported on the convict ship Blackfriar in 1851. Two years later transportation to Van Diemen’s Land ceased.
In March 1854, while Jane was holding a ticket of leave, she was charged in Hobart with the crime of robbery and assault (stealing a watch). She was found guilty and sentenced to 15 years transportation (with 30 months of probation). The jury, however, convicted them, and he must pass sentence, namely, Boyle and Ritchie to be transported for fifteen years, and Thompson and Williams three years' imprisonment. The woman Boyle fell down with much force, in a fit, on hearing the sentence, and had to be removed from the dock in a deplorably prostrate condition. (Colonial Times, Saturday 11 March 1854 - Page 3) Jane was found a chair to sit on during the trial – the reason being that just three weeks later, on 2nd April, while incarcerated at the Cascades Female Factory, she gave birth to a son.
Technically, Jane was free by servitude for her first punishment in 1857, but she was only 3 years into serving out her second sentence of 15 years transportation. She was finally free by servitude March 1869, having completed 18 years in the convict system in VDL. Instead of 22 years of continuous sentencing, Jane’s two sentences were served concurrently. From 1857 onwards, Jane was often hospitalised with paralysis, Morb Cordis (unspecified heart disease), until she died in 1874, aged 63, of face cancer.
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Nine female convicts were sentenced to (re) transportation for life, in some cases commuted to a lesser sentence, and in three cases where the death sentence was recorded the sentence was commuted to transportation for life.
In 1839, The government of NSW passed An Act to abolish the Transportation of Female Convicts, and to provide for the more effectual Punishment of Female Offenders within the Colony of New South Wales. The object of the Act was to replace the transportation of female offenders with a sentence of hard labour, ‘solitary confinement imprisonment in the dark cells [repealed in 1841][7]] of any of the said Female Gaols or Factories, and on bread and water, for any period not exceeding twenty days at any one time, and not exceeding sixty days in the space of any one year, as to the Court in its discretion shall seem meet…’ [8] The government of VDL did not follow up with a similar decision, and continued to use transportation as a sentence until the Abolition of Transportation Bill was passed by the British parliament in 1853. Transportation was then replaced as the primary colonial sentence by Penal Servitude. [Refer to Penal Servitude punishment]
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Honora Connor, Thrice Transported
Honora Connor was one of five convict women tried in Sydney and transported to Van Diemen’s Land as a punishment. Honora received two Orders of Transportation as a primary punishment, and one as a secondary punishment. Overall, Honora had been convicted to a total 28 years transportation, serving 20 years, with a period of approximately 7 months freedom in between sentences.
Honora was 25 years old when she arrived in Sydney Cove in 1828 on the City of Edinburgh, transported from Cork, Ireland where she had been found guilty of highway robbery. Honora was described as being 5ft 2 ½, with a sallow complex and several freckles, cocked nose, scar on right side of forehead, dark brown hair, and grey eyes. Her sentence was 7 years transportation – depending on the severity of the judgment a female convicted of Highway Robbery could have been given the death sentence commuted to transportation for life. Honora was fortunate to receive a lighter sentence. In 1829, Honora (under the alias of Mary), while an assigned servant, had permission to marry Robert Swaine, a former convict on the Coromandel (3), and was now also known by the name of Honora Swain/e.[†] She was the mother of two children: Bridget born in 1829 and Thomas born in 1830.
In 1833 while on a ticket of leave, Honora was convicted at the Sydney Supreme Court for receiving property knowing it to have been stolen. Honora had only 2 years and 3 months left of her original sentence and this time was sentenced to 14 years transportation. She was sent on the Isabella to the Moreton Bay penal settlement in Queensland.[9]
The Moreton Bay Penal settlement operated from 1824 to February 1842, and became the city of Brisbane. ‘During the time of the settlement nearly 2400 men and 145 women lived at depots stretching from Stradbroke Island to Limestone (Ipswich), including Cowper’s Plains, Eagle Farm and environs of the present city of Brisbane. They were under the control of military commandants with detachments numbering up to 100 soldiers’. (Moreton Bay Penal Settlement). Honora was described as a servant and would have been assigned to a household in the area.
In July/August 1838, an ”Act for the Conditional Remission of Sentences of Convict transported to Norfolk Island and Moreton Bay, and to enforce the conditions thereof.", was passed by the Legislative Council in NSW. The Act applied only to those sentences which were passed by the colonial courts of New South Wales. Prisoners under that Act at Moreton Bay who were sentenced to 14 years and having served three years could receive a commutation. Honora, having served 5 years, was eligible to receive a conditional remission of her sentence.
The following year, plans were being prepared for the closing down of the Moreton Bay penal settlement and for free settlers to move into the area, and Honora was sent back to Sydney.[10] On 30th May 1840, she was granted her Certificate of Freedom No 40/919, having served just 7 of her 14 years of secondary transportation.
Sadly, her freedom was short-lived. On 2 June 1840 Honora/Honorah was tried at Sydney Quarter Sessions, for larceny and found guilty.[13] She was sentenced to 6 calendar months imprisonment and hard labour in the female Factory [Parramatta] with every 4th week in solitary confinement.
Honora’s freedom was again short-lived when she was tried at Sydney Quarter Sessions for larceny on 7 April 1841 and found guilty.[14] She was sentenced to 7 years transportation to Van Diemen’s Land (VDL) and placed on the HM Hulk Phoenix in Sydney Harbour. In August she was sent to the Sydney Gaol still awaiting a transport ship to VDL.[15] On 3rd September 1841 she finally arrived in Hobart Town per Marian Watson. In VDL Honora had only one conviction for being absent from her employer and was sentenced to one-month hard labour at the female house of correction and afterwards assigned in the interior. In 1848 Honora was finally free – she had been granted a conditional pardon on condition she not return to or be found within the limits of New South Wales.[16]
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[*] The Acts were originally passed by legislation of the Colony of New South Wales which included VDL as a dependency. After VDL was proclaimed a separate colony from NSW on 3rd December 1825 by Governor Darling, with its newly appointed Legislative Council first meeting in April 1826, Van Diemen's Land (Tasmania) became responsible for its own legislation.
[**] The Penal Servitude Acts of 1853, amended in 1857, allowed the punishment of Penal Servitude with or without transporting the prisoner out of the country in which they were sentenced. Transportation to West Australia continued for male convicts until 1868 creating an overlap in some instances of transportation and Penal Servitude.
[†] No marriage registration has been found.
[1] The Colonist and Van Diemen's Land Commercial and Agricultural Advertiser, Tuesday 1 April 1834 - P.3
[2] Tardiff, P., Notorious Strumpets and Dangerous Girls: Convict Women in Van Diemen’s Land 1803-1829, p.28
[3] UK Parliament Transportation And Penal Servitude Bill 9 Feb 1857. https://hansard.parliament.uk/Commons/1857-02-09/debates/cb661d41-fc50-4edb-982d-cd61420b4d02/TransportationAndPenalServitudeBill
[4] GOVERNMENT & GENERAL ORDER Government House, Hobart Town December 1, 1825. Hobart Town Gazette, Saturday 3 December 1825 - P.1
[5] Tardiff, P., Notorious Strumpets and Dangerous Girls: Convict Women in Van Diemen’s Land 1803-1829, p.28
[6] ANNO OCTAVO. GEQRGII IV. REGIS. (No. 4.) | [An Act for the Transportation of offenders from Van Diemen's Land.] Hobart Town Gazette, Saturday 29 September 1827 - P.1
[7] No. 3, An Act to repeal so much of an Act, intituled, "An Act to abolish the Transportation of "Female Convicts, and to provide for the more "effectual punishment of Female Offenders, "within the Colony of New South Wales," as authorises the confinement of any Female Offender in a Dark Cell.
Government Gazette Proclamations And Legislation - New South Wales Government Gazette, Saturday 10 July 1841 - P.933
[8] No. 22. An Act to abolish the Transportation of Female "Convicts, and to provide for the more effectual "Punishment of Female Offenders within the "Colony of New South Wales. Government Gazette Proclamations And Legislation - New South Wales Government Gazette, Saturday 7 December 1839 - P.1391
[9] https://www.slq.qld.gov.au/sites/default/files/0011-198218-slq-a2-series-reel-a2.10-2014-04.pdf p.39
[10] Government Gazette Proclamations And Legislation - New South Wales Government Gazette, Saturday 14 July 1838 - P. 537
[11] SLQ - A2 SERIES - Reel A2.10 - 2014 04 https://www.slq.qld.gov.au/sites/default/files/0011-198218-slq-a2-series-reel-a2.10-2014-04.pdf p.8
[12] SLQ - A2 SERIES - Reel A2.10 - 2014 04 https://www.slq.qld.gov.au/sites/default/files/0011-198218-slq-a2-series-reel-a2.10-2014-04.pdf p.40
[13] State Records Authority of New South Wales; Kingswood, New South Wales, Australia; Clerk of the Peace, Index to Quarter Sessions, Criminal Cases, 1839-1888; Series Number: NRS 846; Reel: 2728
[14] Court of Quarter Sessions. WEDNESDAY, MAY 19. (Before the Chairman and Colonel Shadforth.) Australasian Chronicle, Saturday 22 May 1841
[15] State Archives NSW; Kingswood, New South Wales; Gaol Description and Entrance Books, 1818-1930; Series: 2517; Item: 4/6296; Roll: 855
[16] Colonial Times, Friday 19 May 1848 P.4.
By E. Crawford (June 2021)
