Fines were promoted as a punishment by Governor Arthur whose philosophy was that punishment should ‘aim … at inflicting not physical, but spiritual pain’. It should be applied judiciously’ (Tardiff). [1]
In 1818 a Proclamation was issued by Governor Lachlan Macquarie granting judicial power to Magistrates (Justices of the Peace) to impose ‘pecuniary Fine or Fines, Penalty or Penalties’. [2] Payments received were to be divided, with a share being paid out to informers :
…one Moiety of every such Penalty or Penalties shall be payable to His EXCELLENCY the GOVERNOR of this Territory for the Time being, to be applied as His EXCELLENCY shall think proper, and the other Moiety thereof to the Informer or, Informers prosecuting for the same…[3]
The Proclamation followed doubts and confusion over the authority of the Magistrates in the colony of NSW and its dependencies to impose pecuniary punishments. It authorised Magistrates to lawfully issue a warrant for apprehending any offender[4], decide on a fine penalty and costs commensurate with the crime and nominate an appropriate payment period. Conditions for non-payment of fines were also set by the magistrate; the default punishment was a period of imprisonment with or without hard labour apportioned with the amount of the fine and associated costs, but in some cases the outstanding amounts were raised through the sale of the offender's belongings. [5][6] Sureties for good behaviour may have also been applied (for example, released on recognisance for keeping the peace).
Magistrates used a classification of offences in their courts in Van Diemen's Land. Fines were usually punishment for minor crimes (summary offenses), for example, offences against Good Order (refer to Classes of Offences). Fines were convenient to administer, as there was no obligation to provide food and shelter for miscreants, or arrange their transportation to a gaol or House of Correction. Fines were also an efficient solution to relieve the over-crowding in the female factories.
The majority of fines were imposed on women who were free by servitude, married or had obtained their ticket-of-leave. These women usually had the means to pay their fines, and could also continue working and being of value to society. For the homeless, penniless, destitute and aged, defaulting on a fine was possibly a way to ensure access to shelter and food.
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The first record of a female convict being fined was Ann Ward (per Active from Sydney) in April 1815. For being drunk and disorderly, Ann was fined 5/- and required to find sureties for her good behaviour for 12 Months. She was free by servitude at that time. She was fined 4 more times for being drunk and disorderly between 1815 and 1830. By 1830 Ann Ward would have had to pay the equivalent of a British Crown.[i]
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Fining as a sentence existed throughout the convict era in Van Diemen’s Land, although usage increased sharply from 1843. At that time the assignment system had been replaced with the Probation system, allowing convicts to earn an annual income. However, even before the Probation system commenced, and contrary to the common belief that convict labour was synonymous with slave labour, there were opportunities for convicts to earn income. In 1818, wages of convicts were: men £10, women £7 per annum.[7] In the mid-1840’s the wage base rate of £7 per annum was considered a ‘reasonable wage’ for convicts.’[8] This did not mean that the wages were always paid in cash as payment in kind also existed.
In December 1833 An Act for regulating the Police in the towns of Hobart and Launceston, and for removing and preventing nuisances and obstructions therein;" codified the fine of 5/- for drunkenness:
53 – Drunken persons may be apprehended, and conveyed before Magistrate, who may fine: them 5/- .if not paid within an hour to put them into the stocks.[9] [ii]
This act was responsible for the majority of fines for female convicts issued after this date, although only 2960 of the 6,675 instances of female convict drunkenness resulted in the recording of a sentence or fine. In cases where drunkenness was accompanied by disorderly behaviour, convicts were often fined for both offences. Other minor offences occasioning the 5/- fine were for disturbing the peace, using obscene language and misconduct - the type of offences usually associated with drunkenness.
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Out of 1,636 offences by the 180 women from the ship Rajah, several women were prolific repeat offenders; Mary Ann King was sentenced 80 times and fined on 17 occasions before she died aged 65 in 1868. Margaret Wood recorded 49 offences over a 23-year period between 1842 and 1885, 39 of which were fines for being drunk and incapable or disorderly. Her fines totalled £415 (an average of £18 per annum) and were not always paid, with a default period in gaol on at least 14 occasions.
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The fine of 5/-[iii] remained as the base rate for minor offences throughout the convict era in VDL with its real monetary value fluctuating between 1815 and 1853. On a female convict base wage of £7 per annum, a 5/- fine would be almost a month’s wages.[iv] An increase in the base rate to 10/- was consistent after the cessation of transportation. Default sentences for non-payment of fines of 5/- usually resulted in 7 days’ imprisonment or 24 hours in solitary confinement; a 10/- fine default could result in 14 days’ imprisonment or 48 hours in solitary confinement; while defaulting on 20/- could result in a month of confinement or 7 days’ hard labour. The amount of the fines and type of default sentences imposed by magistrates would vary depending on the prior behaviour of the woman. In the 1845 Regulations for the Visiting Magistrates some justification for inconsistencies in sentences was offered:
‘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." ('REGULATIONS OF THE PROBATIONARY ESTABLISHMENT FOR FEMALE CONVICTS IN VAN DIEMEN’S LAND' (July 1, 1845))
As a comparison of the value of 5/- in the first half of the 19th century: 43 women were transported to Van Diemen’s Land for periods of seven years to life (99 years) for stealing 5/- or property to the value thereof. In Van Diemen’s Land, stealing property to the value of 5/- could result in a female convict being committed to trial at the Supreme Court; sentences included transportation for 7 years, an extension of an original transportation sentence, 3 years’ imprisonment or up to 18 months’ hard labour. In 1818, 5/- was the price of 1 lb. (453 grams) of butter [10] or a quart (1.1 litres) of Isle de France rum. The affordability of alcohol was perhaps the reason so many women were fined for drunkenness.[11]
Although 5/- was the base rate for fines, some offences attracted far larger monetary penalties. These included the charge of harbouring absconding convicts, which was addressed in 1825 with ‘An Act to prevent the harbouring of Runaway Convicts and the encouraging of Convicts tippling or gambling [19 January, 1825.], (known as the ‘Harbouring Act’).[12] The fine for harbouring[v] was ‘not less than Five Dollars nor more than Fifty Dollars for every such offence and a further sum of One Dollar for each and every day he, she or they shall so harbour or employ such person, and rewarding any informers’. [13] The 1825 Act was amended in 1835 to reflect a change in colonial currency, with a penalty not 'less than two pound nor more than twenty pounds’.[14] [vi]
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In 1828, married convict Sarah O’Neale of the Canada was fined 20 dollars and 4 dollars for the 4 days that absconder Mary Wright was harboured. Sarah was free by servitude at the time, as was Sarah Smith, from the Providence, who was fined £10 and costs for harbouring a runaway convict in 1830. In 1833 Mary Lambert , also from the Providence, was on a ticket of leave when she was fined £10 and costs when found guilty of harbouring with culpable negligence. Approximately ten fines were issued to female convicts in VDL under the Harbouring Act.
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The 1835 Harbouring Act also imposed substantial fines for bringing food, tobacco, liquor or letters into a gaol or House of Correction without the consent of the Gaoler: those charged were also liable to fines of ‘not less than two pounds nor more than fifty pounds’. [15]
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Two women from the Duke of Wellington received the considerable fine of £50 plus costs for illegally selling alcohol: Sarah Griffin in 1827 and Caroline Osmond in 1830 were both free by servitude when prosecuted. Fellow shipmate, Matilda Walker was also free by servitude in 1823 when, for conveying spirits into the gaol at Launceston, she was fined £10. Corporal Davis was paid £5 for the role he played in bringing Matilda to trial: Treasurer of the Police Fund, for that Sum paid Corporal Davis, for Fines levied on Matilda Walker, for conveying Spirits into the Gaol at Launceston. £5 0 0. (Disbursements, Hobart Town Gazette and Van Diemen's Land Advertiser, Friday 29 April 1825 - Page 2) |
Pecuniary punishment within the Female Factories
Factory Superintendents did not have authority to impose fines. They could, however, refer any charges against the women to the visiting Magistrates. (Probation years ).[16]
Fines were not the only method of imposing a monetary punishment. Within the Female Factories women of good behaviour were allocated task work for which they could earn credits. The punishment books kept by the supervisor of the Cascades Female Factory from 1851– 1854 indicate that 275 women had their credit stopped at least once for a defined period.
[i] In 1813, Governor Lachlan Macquarie received a shipment of Spanish colonial silver dollars. From these he created 2 coins – the “Holey Dollar" from The outer ring of the coin valued at five shillings in trade, and the centre section called the “Dump” valued at 15 pence in trade. (Legislation that ended the usage of non-British coinage in Australia was enacted on 15 August 1829). (Australia's History 1788 - 1931 Viewed Via Our Coins, https://www.sterlingcurrency.com.au/blog/news-research/proclamation-and-colonial-coins/australias-history-1788-1931-viewed-via-our-coins/)
[ii] Only 16 women were put in the stocks for drunkenness after this proclamation; from 1831 the stocks lost favour as a form of punishment for women.
[iii] Also known as a British Crown, equivalent to 60 pre-decimal pence, or AUD 60 cents, UK 25 pence. At average inflation rate of British currency, 5/- in 1830 is equivalent to £183.40 in 2000 (aprox AUD$330) (http://www.concertina.com/calculator/)
[iv] £1= 12/- (shillings), £7 a year = 84/-, or 7/- per month.
[v] The 1835 Harbouring Act set out that Fines and shares of penalties imposed were payable to His Majesty ‘for the public uses of this Island and the support of the Government thereof for defraying the expenses of the Judicial and Police Establishments….
[vi] The Harbouring Act was also used to prevent convicts in the service of the crown from entering licenced premises for drinking and gambling without the proven permission of their overseer master or mistress. The hefty fines, in this instance, was imposed on the licensee of the premises.
[1] Tardiff, P., Notorious Strumpets and Dangerous Girls: Convict Women in Van Diemen’s Land 1803-1829, p.27-
[2] The Hobart Town Gazette and Southern Reporter, 26 December 1818 - Page 1
[3] Ibid
[4] Proclamation, By His Excellency LACHLAN MACQUARIE, Esquire, Captain General, Governor and Commander in Chief in and over His Majesty's Territory of New South Wales and its Dependencies, &c. &c. &c. The Hobart Town Gazette and Southern Reporter, Saturday 26 December 1818 - Page 1
[5] The Hobart Town Courier, Friday 29 May 1835 - Page 2
[6] http://classic.austlii.edu.au/au/journals/AUColLawMon/1852/1.pdf pp.55-56
[7] Evans, G W. History and description of the present state of Van Diemen's Land : containing important hints to emigrants, with abstracts from the General Muster Books for the years 1819, 1820, 1821, and the lists of the Civil establishment, 2nd ed., London : John Souter, 1824. at:http://digital.sl.nsw.gov.au
[8] https://www.digitalpanopticon.org/VDL_Convict_Labour_Contracts_1848-1857
[9] Colonial Times, Tuesday 19 November 1833 - Page 2
[10] The Hobart Town Gazette and Southern Reporter, Saturday 7 November 1818 - Page 1
[11] Colonial Times, Tuesday 5 December 1843 - Page 1
[12] http://classic.austlii.edu.au/au/legis/nsw/num_act/rcha1825n2344/ p.3
[13] http://classic.austlii.edu.au/au/legis/nsw/num_act/rcha1825n2344/
[14] http://www.austlii.edu.au/au/legis/tas/num_act/aatcaacotlrttcogqsattmepacotaoo6win21750/aacaacotlrttcogqsattmepacotaoo6win21750.pdf, Clause XLVII,
[15] http://www.austlii.edu.au/au/legis/tas/num_act/aatcaacotlrttcogqsattmepacotaoo6win21750/aacaacotlrttcogqsattmepacotaoo6win21750.pdf, Clause LXXII
[16] https://www.femaleconvicts.org.au/administration/probation-system
By E. Crawford (July 2021)
