The Fatal Shore

by Robert Hughes

  The cure for these and other abuses lay in tighter bureaucratic control over assignment. Governor Darling set up a board to which all applications for servants had to be sent; he told its members to favor settlers with a good record and to turn down applications from men with a record of cruelty or excessive lenience. Unfortunately, much of the paperwork in processing applications for assigned servants was done by convict clerks, who rarely refused a bribe. Nevertheless the successive administrations of Darling and Bourke did much to make assignment more “objective.” But it could not guarantee the quality of a convict’s labor.

  Throughout the life of the System, the average “dungaree settler” was likely to end up with an unskilled, resentful cuckoo of a convict who had been born and raised in a city and could not tell a hoe from a shovel. Only one convict in five had been an agricultural worker. But incompetents could neither be fired, like free workers, nor sent back to the government. This arrangement, Governor Richard Bourke remarked in 1832, was “for the most part very Unsatisfactory”:

  The Convict generally does as little as he can.… Much of his time is passed on the road going to or returning from Hospital, or to a Justice to complain of his master’s treatment, or to answer the Master’s charges against him for negligence, drunkenness or insubordination. Many also are unsuited to labour of any sort.45

  By then, the cavalier habits of some settlers with their assigned convicts had already been causing some concern in England. A farmer saddled with an incompetent convict would swap him off with another settler or abandon him in town. The inconvenience and waste of time in haling a convict before a magistrate’s court, which might be three days’ journey from the farm, discouraged complaint through legal channels; so the incompetent assigned man would simply be dumped on the road or left in town, to beg or survive as best he could. The authorities had no choice but to put these outcasts in jail, on a skimpy allowance of bread and water, until they were either reassigned or put in a government work gang.46

  It was demoralizing for them and irksome for the government; but in New South Wales, at least, there seemed to be no way of stopping it. Ten years after Bigge described the problem in his report, it was still perplexing the Crown. By 1831, there were about 13,400 assigned servants scattered around New South Wales, and keeping track of them was becoming a clerical nightmare. So although convicts could not, of course, be legally sold by one master to another, Governor Bourke compromised: Now they could be reassigned without the cumbersome business of recalling them to Sydney, endorsing their papers and sending them out into the remote bush again. All one needed was a formal permission to transfer, which “indeed is Seldom refused … as it is not only a convenience … but it saves expense.”47

  Masters who were caught transferring servants without permission would be blacklisted from getting assigned men again. But neither Bourke nor his predecessors could get rid of the common assumption among landowners that, whatever the Crown might say about its ownership of convict labor, the fact was that convicts were slaves, and masters should be left to treat them as such. Farmers without servants believed they had a right to them. “Every man, who cannot obtain Land or Convict Servants as he wishes, thinks no doubt he has a right to complain of the Governor’s injustice,” wrote Governor Darling in 1831.48

  Nor were such feelings without legal support. Sir Francis Forbes, the first chief justice of the Supreme Court of New South Wales, thought masters did have a right to the labor of their assigned servants. He based this on seventeenth-century American precedents. The settlers wanted to believe him, but the Crown refused, pointing out that in America the settler paid for the convict’s passage, which gave him this right—but not in Australia.

  Even Forbes’s position looked mild compared to the one adopted, a few years later, by William Charles Wentworth, who had become a power in the colony (see Chapter 10) by agitating for the rights of Emancipists. In 1839 Wentworth actually proposed that assignment should be cancelled altogether and that convicts be sold outright to the highest bidder. Worse still, he wanted to institute group punishments of assigned convicts. If one man on a property committed a crime, all the other servants should be penalized by an automatic extension of their sentence unless they informed on him. This, Wentworth thought, would reduce the main inconvenience settlers had to put up with from their assigned men—the difficulty of getting them to “tell” on one another.49

  The convicts, on the other hand, believed they had rights, and that these arose from the fact that they worked. A man was a convict from sunrise to afternoon, but overtime was his to sell. The more skilled he was, the harder he could bargain with his master. In this way, some masters were gradually forced to make concessions, even within the unequal class relations of the colony.

  What were these rights? Some were conventional: food, clothing, health care. The government enforced strict standards for the first two and was by no means indifferent to the third. By the 1830s, masters were obliged to pay a shilling a day, up to thirty days, toward the keep of an assigned man in hospital—hardly a lavish allowance, but the cause of much grumbling among settlers.50

  Before 1830, the master had to give each assigned man a wage of £10 a year, which paid for his clothes and bedding. In 1831 Governor Darling changed this by ruling that the master must issue the blankets, palliasses, and clothes directly, instead of wages. The workers’ diet was rough and monotonous. “They can make a meal from what would not be looked at in England,” wrote the convict John Broxup. In 1823 a settler in Van Diemen’s Land, Gilbert Robertson, was accused of feeding his men on dead magpies. But on most farms the servants ate what the masters ate.51

  A master might give his convicts tea, sugar, milk or a bit of the rank, locally grown colonial tobacco as an “indulgence,” a little reward for good work. But custom might turn the master’s indulgence into the convict’s right or claim. This tended to happen especially after the 1820s, when Macquarie’s successors—Governors Brisbane and Darling—did away with wages and “own time” rights for assigned servants. They were replaced by an informal system of incentives and rewards, “indulgences” under the law but essential to the efficient ordering of a property. At the master’s discretion, men could be favored with easy jobs or punished with hard ones; they could be given work that would teach them trade skills, or sent to the most routine tasks of common labor. “Luxuries” like tea, sugar and soap, a half-pint of rum or dinner in the homestead kitchen, were prized as signs of status and regarded as forms of payment, replacing the wages and overtime that Brisbane and Darling cancelled. Some men certainly felt they had a right to tea, sugar and tobacco, and they vociferously told their masters so. When William Larissey, a convict at Port Macquarie in 1836, was told his sugar and tea were stopped, he seized his master by the neck. “Damn my bloody limbs and bones,” he shouted, “if I don’t have the worth of that tea and sugar out of you.” He paid for this outburst with twelve months in the iron gang.52

  Not all convicts were as defiant as this, but the bench books of the magistrates’ courts show many cases of men brought up for “insolent” behavior in disputes with their masters over rations and clothing. Sometimes—though much more rarely—a convict would bring his master to court. In 1833, in the district of Scone north of Sydney, there were 210 charges by masters or overseers against assigned convicts, and only six charges by convicts against masters—all of which, however, were upheld by the magistrates. They involved matters like rotten meat and insufficient shelter; one convict, Simon Lewis, assigned to an absentee station-owner, was found to have had no blanket or mattress from him in four years.53

  Very occasionally, convicts would band together to bargain in defense of what they perceived as their rights. But it was more common to “go slow” (after sizing the master up), either for the pleasure of inconveniencing him or in the hope of being transferred. Thus, finding he was in bond to “a hard hearted wreach” in Van Diemen’s Land, the convict George Taylor “began to only do that part of my
work which I thought proper and soon aforded my Master an opertunity of takeing me to a magistrate, this was repeated two or three times [but] I found I could not get from him by this means.”54

  Although it was by no means impossible, or always difficult, for an assigned man, once before the magistrate, to justify his insolence or violence by proving his master had provoked him, not a few convicts took their legal rights at face value and brought their masters to court for ill-treatment. The usual complaints were stoppage of rations and physical violence. Thus, in 1829 the convict James Davis, assigned in New South Wales to Mr. David Hayes, “maketh Oath and saith … I swear I have had no Rations since Friday last excepting part of a Loaf; a Two-Pound Loaf was shared among five of us.” He was backed by four other convicts and won. In the same year, Thomas Argent, assigned to a Sydney butcher named William Merritt, was ordered to wash Merritt’s gig with warm water and then go to Parramatta to take delivery of some livestock. “Argent said he was weak and faint with hunger, having received nothing to eat since Friday, and that he would not go.… Mr. Merritt jumped up and gripped him by the breast with one hand, and struck him twice with the other, and dragged him out of the hut, and then took up a paling and threatened to beat his brains out.” Argent, terrified, said he would put himself in police custody, at which Merritt mounted his horse and tried to run him down.55

  Argent’s reward for getting Merritt into court was to be reassigned to another and better master. The government had no interest in assigning convicts to brutes, but some masters seemed unable to grasp that their servants were, in the ordinary sense, human. Such was the case with a Mrs. Ramus of Hamilton, Van Diemen’s Land, whose assigned man, George Willey, had in 1833 been sentenced to twenty-five lashes for insolence. The punishment was to be inflicted in the local jail, and Willey had words with Mrs. Ramus’s brother over his right to take rations there when he was flogged. At this point, the Hamilton magistrate reported,

  Mrs. Ramus’ brother ordered his hands to be tied behind him with a piece of hide rope, a heavy bullock chain to be put around his waist which was attached to another chain and yoked to a pair of bullocks, he himself following on horseback with a loaded gun. In this state the man was brought to my house, a distance of 5 miles, when I immediately ordered him to be set at liberty.56

  An order followed, depriving Mrs. Ramus of all her assigned servants. Losing one’s convicts in this way was more of a risk in Van Diemen’s Land in the 1830s, because of Arthur’s evenhanded strictness. But a cruel settler in New South Wales could be stripped of his servants, especially if his social connections were poor.

  The most vivid disagreements over the matter of rights were caused by the ticket-of-leave system. There were only three ways in which the law might release a man from bondage. The first, though the rarest, was an absolute pardon from the governor, which restored him to all rights including that of returning to England. The second was a conditional pardon, which gave the transported person citizenship within the colony but no right of return to England. The third was the ticket-of-leave. The convict who had been given a ticket-of-leave no longer had to work as an assigned man for a master. He was also free from the claims of forced government labor. He could spend the rest of his sentence working for himself, wherever he pleased, as long as he stayed within the colony. He was, as the phrase went, “on his own hands,” in contrast to the assigned man who was merely said to be “off the store.” The ticket lasted only a year and had to be renewed, and it could be revoked at any time. It was an effective way of fostering conformity and self-help while keeping the convict on a leash.

  Ticket-of-leave men could be denounced by anyone, and thus they lived in some uncertainty. As an editorial in the Sydney Gazette put it,

  A ticket-of-leave is the most tender kind of liberty that can be conceived; it is liberty in one sense, and non-liberty in another.… Under the present system, a ticket-of-leave exempts a man from the service of one master, while upon the other hand he becomes the slave of hundreds of others. From the Magistrate, down to the meanest constable in the district, a ticket-of-leave holder is continually kept the subject of apprehension.57

  One lost one’s ticket, Governor King proclaimed in 1804, by being idle, or insolent to “any officer, soldier or Constable,” or charging too much for out-of-hours work. But fragile as it was, the ticket-of-leave was craved by every convict in the colony and regarded by most of them as a natural right, a goal that one struggled toward and was entitled to. It played an immense role in the moral economy of colonial life. The worst thing a master could do to a convict servant was to keep him from getting his ticket-of-leave.

  The less scrupulous settlers sometimes tried to do this. More convicts were always coming in one end of the System from the transports than were going out the other, as “ticket-of-leavers” or Emancipists. Thus, from January 1826 to December 1828, 6,032 male convicts arrived in Australia, while 4,140 men were added to the free population by the expiry of sentence or the granting of tickets-of-leave.58

  But this did not reduce the demand for assigned labor, because so many of the newly freed men became farmers themselves and needed working hands. “Since convict labour has become so exceedingly valuable as it now is,” Governor Gipps reported to the secretary for war and the colonies in 1838,

  it is a matter of very frequent complaint that Masters prevent their Servants from getting Tickets of Leave from an unwillingness to lose their labour; and that they even cause (in some cases) their men to be punished, for the sake of retaining their services … [E]ach punishment which an assigned man receives, puts him back a year in getting his Ticket. I am willing to hope that the cases are but few.59

  They were probably more common than Gipps was “willing to hope,” and they had been going on for nearly forty years before the government cast an official eye on them. The prisoner Thomas Cook described the fate of one convict, assigned to “a very oppressive and miserable-hearted man” at White Rock in New South Wales during the early 1830s. Originally sentenced to 14 years’ transportation,

  he had toiled hard and so fared for the space of 5 years and 9 months of that term, without a charge being preferred against him; but as he approached his probationary period of servitude (6 years) entitling him to a Ticket of Leave … his master, to benefit himself by the Blood and Sweat of a hard-toiling Slave, preferred a charge of insolence and threatening language against him.

  That meant a magistrate’s sentence of 50 lashes, and a year’s delay on the ticket-of-leave. When the year was almost gone,

  his cruel Master, unmoved by compassion or gratitude, again brought him before the Bench, and charged him again with disrespectful conduct upon which he was again sentenced 50 lashes. Thus was this pitiable object despairing of obtaining a moment’s liberty until the death of his master or the termination of his sentence. He was nearly stupid from hard toil and cruel treatment.60

  A master might goad an assigned man to insolence or violence, simply by battering him with insults. The Sydney Gazette in 1826 complained about “the all too prevalent custom”

  of casting an unhappy fellow creature’s life and character into his teeth, and by this means leaving the man either passively to suffer under such a gross outrage … or to resent it by insubordinate language and conduct, whereby he becomes subject to … 50 lashes! for the magistrates … generally feel it imperative to lean on the side of power.61

  District benches close to Sydney were apt to treat convicts fairly and well, partly because their magistrates were more in the public eye. The Stonequarry bench, run by a settler from New York named Henry Antill, who had married the daughter of an Emancipist and settled down to become the largest landowner in the modern district of Picton, had a name for decency, and Antill was by no means the only even-handed magistrate in New South Wales.

  But the further outback a farm was, the more opportunity it held for tyranny and the more likelihood there was of collusion between settlers and magistrates. George Loveless, another
Tolpuddle Martyr, believed from his own experiences that no one could “form a just impression of the System” unless he had been assigned in such remote places:

  One magistrate will bring his men to be tried before a neighbour magistrate, and it is a frequent practice for the master to pay a private visit to the magistrate, and say he is going to bring such a man or men before him, and wishes that such or such particular punishment may be dealt out. On the arrival of the men … the magistrate enquires what they have to say in answer to this charge, and frequently, if they attempt to answer, he interrupts them, saying “I will not believe a word you have to say, and I shall sentence you to receive so many lashes.”62

  While it is true that the masters won most cases in which they brought their servants to court for disobedience or insolence, one cannot simply assume that this was due to collusions of class between masters and magistrates. As Hirst observed, the magistrates “were superior men both in wealth and education and were free from personal ties or obligations to the middling and small masters. How better to demonstrate their superior status than by carefully examining the complaint of a convict against a small farmer and perhaps reproaching the master or even taking his servant from him?”63 The area of offense that magistrates always paid attention to was summary punishment by master of man, and here the claims of convicts often succeeded—partly because the physical evidence, the wounds and weals, spoke clearly in court. But a servant in the settled areas had a better chance of access to a magistrate’s court than one in the outback, where lodging a complaint might entail a walk of fifty miles or more—and require permission from the master to leave the property for several days.