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Thinking Outside the Cell
Defined Terms
Baker's Dozen Problems
Articles & Reports - Bibliography
Judicial Corporal
Punishment previously sentenced to adults in Australia
until the mid-1940s
The late Robert Hughes author of the
highly acclaimed 'The Fatal
Shore' - Reviewed by the New York Times
- provides 'inter alia' an accurate account of Corporal
Punishment sentences in the initial 100 years after settlement in
New South Wales.
Five pages from Chapter 12, peculiarly titled
Metastasis, describe the ruthlessness, frequency and severity of
such punishment.
"The basis of this
standard was the cat-o'-nine tails, whose whistle and dull crack were as
much a part of the aural background to Australian life as the kookaburra's
laugh. "Flogging in this country," one old hand in the 1820s remarked to the
newly arrived Alexander Harris, "is such a common thing that nobody thinks
anything of it.
Most floggings by then
were confined to 25, 50, 75, 100 or, on very rare occasions, 150 lashes. By
the standards of earlier days when punishments of 500 lashes were handed out
by the likes of Foveaux and Marsden, such inflictions may sound light. But
they were not; and in any case a magistrate could stack up separate
floggings for different aspects of the same deed."
Below is an extract from Chapter 5 of
A Complete Account of the Settlement at Port Jackson
by
Watkin Tench:
May,
1790. In proportion, however, as lenity and mitigation were extended to
inability and helplessness, inasmuch was the most rigorous justice executed on
disturbers of the public tranquillity. Persons detected in robbing gardens, or
pilfering provisions, were never screened because, as every man could possess,
by his utmost exertions, but a bare sufficiency to preserve life*, he who
deprived his neighbour of that little, drove him to desperation.
No new laws for the punishment of theft were
enacted; but persons of all descriptions were publicly warned, that the severest
penalties, which the existing law in its greatest latitude would authorise,
should be inflicted on offenders. The following sentence of a court of justice,
of which I was a member, on a convict detected in a garden stealing potatoes,
will illustrate the subject. He was ordered to receive three hundred lashes
immediately, to be chained for six months to two other criminals, who were thus
fettered for former offences, and to have his allowance of flour stopped for six
months. So that during the operation of the sentence, two pounds of pork, and
two pounds of rice (or in lieu of the latter, a quart of pease) per week,
constituted his whole subsistence. Such was the melancholy length to which we
were compelled to stretch our penal system.
"Into the 1930s and early 1940s, judges ordered
whippings with a cane, a leather strap or a birch
rod. Others directed whipping with the infamous cat
of nine tails. While whippings were in decline, they
continued to be applied to offences like robbery in
company, robbery with violence, or wounding with
intent to do grievous bodily harm. But most whipping
sentences occurred following convictions for sexual
offences against women and children.....In Queensland, whipping stayed ‘on the books’ in
the Criminal Code until the mid-1980s."
Settlers and Convicts; Or, Recollections of Sixteen Years' Labour in the
Australian Backwoods
(author:
Alexander Harris
- 1805-1874)
is a biography of a free settler who came to the colony of NSW
circa 1840. It follows his sixteen years in the colony from arrival to
farming to woodcutting to house building and shop keeping with a couple of near
death experiences thrown into the mix. Below are extracts:
Pg 20 A man gets drunk, has his clothes stolen, and is afraid to go
home to his master: he is tried first for drunkenness, a second time for
making away with his clothing, and a third time for absconding.
His sentence is in sum total one hundred lashes, which with the
cat-o'-nine-tails is really nine hundred lashes.
But the fact is, flogging in this country is such a common thing that nobody
thinks anything of it. I have now got a man under me who received
2,600 lashes with the cat in about five years, and his worst crime was insolence
to his overseer.
I was sent for to Bathurst Courthouse to identify a man supposed to have taken
the bush from the farm that I have charge of.
I had to go past the triangles, where
they had been flogging incessantly for hours. I saw a man walk across the yard
with the blood that had run from his lacerated flesh squashing out
of his shoes at every step he took. A dog was licking the blood off the
triangles, and the ants were carrying away great pieces of human flesh that the
lash had scattered about the ground. The scourger's foot had worn a deep hole in
the ground by the violence with which he whirled himself round on it to strike
the quivering and wealed back, out of which stuck the sinews, white, ragged, and
swollen. The infliction was a hundred lashes, at about half-minute time, so as
to extend the punishment through nearly an hour. The day was hot enough to
overcome a man merely standing that length of time in the sun; and this was
going on in the full blaze of it. However, they had a pair of scourgers, who
gave one another spell and spell about; and they were bespattered with blood
like a couple of butchers. I tell you this on the authority of my own eyes. It
brought my heart into my mouth.”
I know of several poor creatures who have been entirely crippled for life by
these merciless floggings; and, which is worst of all, oftentimes for
offences which no considerate and right-thinking person would dream of
considering heinous and unpardonable.
Below are extracts from Digger History - Punishment in the Colonial Days:
Military justice in
colonial days was harsh. Execution was common. Lashes (being struck with a
whip) were administered in the hundreds at a time and sometimes the prisoner
died as a result. He was often scarred for life. Often the whip was the
dreaded "cat 'o nine tails" which was a whip with nine separate woven tails
with a knot and three strands at the end of each one.
Punishment issued to
Soldiers was in some instances far more severe than that of the convicts .
Up to 1,500 lashes were issued as punishment. Although that many was rare,
it did occur, not many lived following . (An example was 300 lashes issued
to a soldier for being absent from duty ). Execution was also common and in
some cases was carried out after the lash had been used.
The Marines and
Soldiers were supposed to be the law upholders and to break the laws of the
day bought disgrace to the Uniform, King, and, the ultimate sin, the
Regiment. Therefore , the punishment for any indiscretion was severe and was
intended to keep the soldiers focused and in line.
The First Fleet sailed
from Spithead, England on 13th May 1787 carrying food, clothing & other
supplies for 2 years. 568 male, 191 female convicts & 13 children, 206
Marines with 27 wives, 19 children & 20 officials travelled 15,000 miles in
a little over 8 months to reach Australia
20% of the first
convicts transported were women, most were in their middle 20's, a few were
early teens , several were aged, one was 82 years. 50% had been tried in
Middlesex, some at county Assizes (Devon, Kent & Sussex), the rest were at
Quarter Sessions.
Most common crime was
theft, of money, clothing or food. No convict of the First Fleet was
convicted of a political crime. Nearly all were English from London & its
suburbs, principal cities & towns.
The first criminal
court was assembled on 11th Feb 1788. President was Judge Advocate Collins
with 3 Naval Officers & 3 Marine Officers as members. A convict was
sentenced to 200 lashes for hitting a marine with an adze. Another to 50
lashes for stealing some wood (later remitted ). A third convict who stole
some bread was put in irons and marooned for 1 week ( on bread & water) on a
small island in the harbour..........Pinchgut.
On April 12th 1790 one
Thomas HALFORD was found guilty of stealing 3 pounds of potatoes valued at
one shilling & six pence. He was sentenced to 2,000 lashes.
From October 1788 to
March 1789, 7 Marines robbed the government stores while they were on guard
duty. Six were sentenced to death and were hanged the day following their
trial. The seventh turned King's evidence and was acquitted.
Surgeon General White's
1st return for the colony showed since foundation of the colony, 4 marines,
27 male , 13 female convicts & 11 children had died from illness. Four
convicts were killed by natives, 5 had been executed and 14 " were lost in
the woods & were presumed to be dead " The most common cause of death was
"heat sickness" ( heat stroke) followed by snake bite.
In the Muster & Census
returns those over 12 years were classified as adults. That meant that they
were treated a adult should they break any law and come before the Court.
The Female Factory at
Parramatta was given the nick name of "The Bride Factory". Well behaved
young male convicts were encouraged to marry & choose a wife from the "Bride
factory" The women were lined up for inspection & if they were lucky were
chosen. Many escaped the harsh treatment dished out to them at the factory
this way. They were treated worse than animals, some examples were...
- 2 women were
chained together for a month for "using language un-befitting ladies"
- For stealing,
another woman was chained to a dog for 2 months.
- A common
punishment was to shave a prisoners head and clamp a spiked iron collar
around her neck.
Below are excerpts of letters that are in a fuller
version on webpage
Before Waterloo:
"the assizes are held every quarter, at
Launceston, and at this place (Hobart Town). The first assizes held
here after we arrived, there were twenty-seven cast for death, four of
which were reprieved and sent to a penal settlement for life, twenty
three were executed - on Wednesday seven, Friday seven, and on Monday
nine, which made twenty-three. There is a drop here that they can
execute twelve at a time. We went to see the nine suffer, and such a
sight we neither of us saw before; all of them appeared to die very
penitent. They are very severe with them here, as most of their
offences were for sheep-stealing. At the last assizes twelve were
executed and I saw all of them."
"My station is over a gang of convicts,
consisting of from forty to eighty, all in chains, with heavy irons
round each leg; the cause of the different number of them is, they are
put in irons for a certain time, some for one, two, and three months,
and others for six months, or during the Lieutenant-Governor's pleasure;
I have one that has been for pleasure one year and five months; their
sentences are according to the nature and degree of the offence they may
have committed and they never take their irons off until they have
served their sentence, day or night.
I fetch them from the
prison barracks at half-past five in the morning, and they work till
nine o'clock, and out again at ten till one, for dinner; then again from
half-past two till six at night; in winter time was work from seven in
the morning till five in the evening, when I take them into the
barracks, where they remain till I fetch them out in the morning.
The business I have with my gang, is to
overlook them with a stick in my hand, and to see them work, and I am
obliged to be very severe with them, to keep them properly under; and
yet they say I am the best overseer they ever had, for were I to make
the least report against them for being idle, they would get
five-and-twenty or fifty lashes, so that I abstain reporting them as
much as possible, for whatever the overseer says is law."
Cat 'O Nine Tails
Flogging in Victorian jails in the 1800's
Punishment in
Australia's Colonial Days
By the Pleasing Countenance of My Superiors - The life of Dugong Magistrate
Thomas Cook, J.P. - August 5th, 1854 - by Michael Williams
Professor Peter Graboskyt
author of
"ON
THE HISTORY OF
PUNISHMENT IN AUSTRALIA AND NEW ZEALAND"
Below is an interesting perspective within the below extracts:
Those engaged in
research on the history of punishment may be so for a variety of motives.
Some may be driven by pure intellectual curiosity, others, perhaps, by
sublimated punitive impulses.
Others still, not content with a mere
understanding of the forces which have shaped penal policy, seek to
influence these forces now and in the future. But our concern here is
history as an independent variable: Of what use is it? What purpose does it
serve? What can it achieve?
Research on the history
of punishment can enhance our understanding of contemporary issues.
Occasionally, even governments seek out historical knowledge. (eg, Gurr,
Grabosky and Hula, 1977; Grabosky 1977).
Lamentably, governmental
interest in affairs of the past now appears all but non-existent, and
practitioners of criminal justice tend not to be appreciative of historical
inquiry. At best, the nostalgia buffs among them find it interesting, if
not terribly useful. The more cynical, whose vision extends no further than
the next election, are probably inclined to the attitude of Henry Ford:
'History is more or less bunk.'
History and Practice
This lack of enthusiasm shown by today's
policy makers and administrators should not, however, discourage scholars
from adopting an historical perspective.
I would argue that in addition to creating
knowledge for its own sake, historical research can make a very real
contribution to the development and implementation of contemporary policy.
The first way in which such relevance can
be demonstrated is by learning from our mistakes. In the words of Santayana,
those who cannot remember the past are condemned to repeat it. An
exploration of notable past failures of policy and administration can yield
general principles, if not explicit lessons, which might be applicable to
contemporary matters. We can of
course learn from successes as well as failures.
Isobelle Barrett Meyering
thesis
Contesting corporal punishment: Abolitionism, transportation and the British
imperial project
-
University of Sydney - Oct 2008 - provides 'inter alia' an accurate
account of Corporal Punishment sentences in the initial 100
years after settlement:
Corporal punishment of
convicts was frequent in the early years of white settlement, but was
increasingly curtailed, in theory if not in practice, from the 1820s.
Floggings of several hundred lashes were commonly reported in the first two
decades of settlement whereas, by 1832, the maximum sentence awardable in
New South Wales was 100 lashes.
Corporal
punishment in Australia was usually by whipping (teenagers) or flogging (adults)
until the mid 20th Century.
"Flogging
with the cat for adult male offenders, and birching and parental caning for
boys, were still in use in South Australia in the 1950s, as may be seen in
several historical news items. The clearest picture of what the
"parental caning" involved comes in
this May 1956 illustrated news item, where it is interesting to note that
one youth so caned was aged 17, despite the supposed upper limit of 14
(according to Cadogan)."
"The
first sentence of corporal punishment under the new Criminal Law Act was
carried out at the Woolloomooloo police station last Tuesday. There were
present the inspectors of police and other officers of the force, also Dr.
Egan, who was in attendance professionally as medical officer on the
occasion. Frederick Mildwater, the prisoner, is a man about 30 years of age,
and is said to have a wife and children. He is about the medium height, and
well built, but not stout or particularly muscular. At noon precisely he,
being stripped to the waist, was brought into the yard, where the
ominous-looking triangle structure stood ready to receive him. He looked
ashy pale, but his demeanour was determined, and he walked firmly up to the
place, where he was tied up in the usual way. Then the lash was laid on
vigorously. After about six strokes of the cat had been administered, the
appearances of punishment began to show up painfully, and as the seventh
stroke was laid on the unfortunate man spoke, or rather moaned out the
words, "Oh, don't. Oh, don't." After this he made no complaint, and scarcely
uttered a sound, but it was evident that he suffered terribly. Long before
the allotted number of lashes had been given the prisoner's back was ridged
with bruises, black and blue, with here and there a dark red stain that told
of terrible irritation. And finally, when the active punishment was over
(for the actual suffering in such cases must continue for a weary time) the
man's back was almost raw, and presented a truly sickening spectacle.
Mildwater appeared faint and ill, when he was cut down; but he was able to
walk away, and did so. He was afterwards removed to Darlinghurst, where he
has to do a term of six months' imprisonment, with hard labour."
Contesting corporal punishment: Abolitionism, transportation and the British
imperial project - University of Sydney - Oct 2008
"The cat-of-nine-tails is one of the major icons of
Australia’s convict past. From readers of Robert Hughes’ The Fatal Shore to visitors to the (now
closed) theme park, Old Sydney Town, Australian audiences have been captivated
by the spectacle of flogging................ Corporal punishment of convicts was frequent in the early years
of white settlement, but was increasingly curtailed, in theory if not in practice,
from the 1820s. Floggings of several hundred lashes were commonly reported in the first
two decades of settlement whereas, by 1832, the maximum sentence awardable in
New South Wales was 100 lashes."
Punishment on Pinchgut Island (now Fort Denison, Sydney Harbour) - recollection
of an 18th century prisoner on Pinchgut Island, Sydney.
Corporal punishment is defined in Australia as 'the use of physical force
towards a child for control, correctional or disciplinary purposes in a way that
won’t result in any lasting harm'.
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The
Writer attended Catholic schools from 1955 to 1969 during an era when
‘spare the rod, and spoil the child’ was common parlance. He, and the vast
majority of his classmates, were whipped with a leather strap by school teachers
on the hand or buttock for indisgressions. From about 4 years old until about 8
years old if he, or his brothers, transgressed in the family home, his father
applied the wrong end of the feather duster to the wrongdoer’s open palm a
couple of times, with hindsight the whacks were not applied with force, but at
the time they appeared frightening. The
Writer managed to survive and learn what was right and wrong in his household
and at his schools where school teachers were respected and occasionally
admired. Corporal punishment didn’t negatively affect the Writer demonstrably.
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