A thesis submitted in partial fulfilment of the requirements of the degree of BA (Hons) in History - Department of History, University of Sydney

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Between the 1820s and the 1840s, anti-slavery ideas shaped debate about the treatment of convicts in the Australian penal colonies. This thesis investigates the impact of abolitionism on one key aspect of convict life: the use of corporal punishment. It traces the rise and decline of abolitionist rhetoric in the work of three vocal critics of flogging:

1. newspaper editor Edward Smith Hall (1786-1860);

2. English politician William Molesworth (1810-1855); and

3. penal reformer Captain Alexander Maconochie (1787-1860).

It highlights the connections between their opposition to flogging and their anxieties about the legitimacy of the wider British imperial project.

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Thank you first and foremost to my supervisor Penny Russell for her reassurance,

patience and encouragement over the year, especially as I equivocated over whether

flogging was really the topic for me. Above all, thank you for challenging me to

assess my own assumptions and for helping me to see the topic in a new light.

I would also like to acknowledge Kristie Flannery and Steph Mawson for their wise

advice on both the structure and content of this thesis. Their willingness to share ideas

was much appreciated and their passion for history continues to inspire me.

Thank you to my housemates for their patience over the last few weeks, and

especially Geraldine Pace for her encouragement throughout the year.

Thank you to family and friends for their support and for reminding me that there was

more to life than a thesis on convict flogging, especially to Michael Janda, for

forgiving my obsessive tendencies and bringing his own pedantic streak to the final

proof-reading of this thesis.

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Introduction 4

Chapter 1 Edward Smith Hall: Flogging and the “rights of Englishmen” 24

Chapter 2 Sir William Molesworth: Settler violence or metropolitan prejudice? 49

Chapter 3 Captain Alexander Maconochie: Convict reformation and the 73 bourgeois “civilising” project

Conclusion 95

Bibliography 100

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For over half a century, slavery was one of the main issues on the British political

agenda. Between 1787 and 1838, the parliamentary and public struggle to abolish the

In turn, abolitionism informed political debate on other social issues, providing

1820s, its impact could be felt in a very different facet of imperial policy: the debate

over the transportation of convicts to Australia.

In 1838, the Select Committee on Transportation, constituted the previous year to

investigate the state of the penal colonies, condemned convictism as a form of

has fuelled historical debate ever since, with historians divided over its validity. While

I revisit the debate in this thesis, my concerns are rather different. Instead of assessing

the accuracy of the charge of ‘slavery’, I examine the complex history of its rhetorical

force, within the colonies and across the empire.

By zooming in on one strand of the transportation debate – contention over the

legitimacy of corporal punishment – this study illuminates the complex process by

which reformers appropriated abolitionist arguments to the convict cause. I highlight

how the selective and sometimes even contradictory use of anti-slavery language

Macmillan, 1982). 3

140

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strengthened but also complicated opposition to the flogging of convicts. Moreover, I

investigate how the use of abolitionist rhetoric fuelled reformers’ anxieties about the

legitimacy of the wider British imperial project.

In tracing the influence of abolitionism on the flogging debate, this thesis contributes

to a growing body of literature which seeks to place Australian history in a global

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

convicts, treating it as somewhat of a litmus test of the wider penal system.

This thesis brings a fresh perspective to what might otherwise be considered an

exhausted subject. I suggest some of the different ways in which the insights of the

new imperial history, with its greater sensitivity to the role of race, gender and class

“difference” and its emphasis on the “interconnectedness” of colony and metropole,

can be used to rejuvenate old debates about convict life and to deepen our

understanding of the penal colonies’ place in the British imperial venture. Three key

themes from the new imperial history recur throughout this thesis: the contested

nature of English and British identity; the complex ties between colony and

metropole; and the nature of the bourgeois “civilising” project of empire. The strong

Interpretation, Visitors and Critique," International Journal of Heritage Studies 5:3 (1999): 135-48.

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resonance of these themes in the debate over flogging attests to a broader need to

situate analysis of the convict era in an imperial context.

*

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

penal reform, displaying the contemporary shift from punishment of the body to

Critically, concerns about the use of corporal punishment pre-dated the 1820s. From

the administration of Governor Philip King onwards, a series of government orders

Stuart Macintyre, A Concise History of Australia, Cambridge Concise Histories. (Cambridge;

Melbourne: Cambridge University Press, 1999). 44

Australia" (Honours thesis, University of Sydney, 2007).

thereby placing corporal punishment under the jurisdiction of the colony’s magistracy. To enforce this

rule, masters were required to sign indenture papers for their servants listing the terms and conditions

on which they were held. A decade later, Governor Lachlan Macquarie took the regulation of corporal

punishment a step further by setting a limit on the number of lashes; he ordered that a single magistrate

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decisions indicate that the legitimacy of flogging was never simply taken for granted,

but required careful management. However, while concerns about corporal

punishment were by no means new, their form changed radically in the 1820s:

reformers began to articulate their objections to flogging through the rubric of antislavery.

They would continue to do so into the 1840s, with varying degrees of

confidence and emphasis.

This period represented a crucial stage in the history of both transportation and

abolitionism. It was a time of significant upheaval in the penal colonies, with the

British Government’s transportation policy changing dramatically from one decade to

abolitionism (1823-38), when the campaign against the flogging of slaves was at its

abolitionist rhetoric to the convict cause.

One strategy adopted by critics was to make explicit comparisons between the

flogging of convicts and slaves. This analogy resonated across a broad cross-section

of colonial society. At one end of the spectrum, we find convicts comparing

themselves to slaves on the basis of their common subjection to the lash. Linus Miller,

one of the “Patriot exiles”, published his autobiography Notes of an Exile to Van

the Bigge Inquiry in 1819; however, by 1840 transportation to the mainland had been abolished. Mark

Finnane, Punishment in Australian Society, Australian Retrospectives. (Melbourne: Oxford University

Press, 1997). 9, 13

1807, abolitionists called for an end to the slave trade. During the second phase of abolitionist

campaigning, from 1823 to 1838, abolitionists demanded the full emancipation of slaves. Seymour

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the lash, as well as reliance on bonded labour, that “most convinced” Miller that

administrators making similar connections. Governor Richard Bourke, for example,

surmised in 1834 that magistrates’ authority to flog convicts for the elusive offence

“other disorderly or dishonest conduct” would be “out of place in any but a slave

means by which abolitionism became linked to the convict cause.

Perhaps more importantly, opponents of the flogging of convicts began to talk about

corporal punishment in terms closely derived from the abolitionist anti-flogging

model. The particular ways in which they appropriated abolitionist language will be

explored in the three chapters of this thesis. In the meantime, it is important to

familiarise ourselves with the two core components of the abolitionist anti-flogging

model: first, their commitment to the rights of slaves; and second, their alarm at the

behaviour of settlers. Abolitionist arguments need to be carefully analysed before

attempting to identify where the case against the flogging of convicts intersected and

diverged.

being captured in armed incursions into the colony of Upper Canada. For a detailed account of the

Vic.: Melbourne University Press, 2002).

Hamish Maxwell-Stewart and Lucy Frost (Carlton South, Vic.: Melbourne University Press, 2001). 25

Government House, Sydney, 15 January 1834’, contained in Appendix 2 of Select Committee on

9

Abolitionism was grounded in a conception of universal rights. A product of

Enlightenment philosophy, it upheld the notion of a “universal individual”, the

closely connected to the evangelical revival of the eighteenth century, which had at its

heart a concern with individual salvation, achieved through personal struggle rather

challenge to prevailing ideas about the racial inferiority of slaves: it conferred

subjectivity, and thus personal autonomy.

A key tenet of abolitionism was that slavery violated the individual’s right to bodily

sanctity. Thus, abolitionists framed their opposition to flogging in terms of the

who facilitated their publication, recounted at length the physical effects of the

Manchester University Press, 2000). 63

2002). 25

Bridge, one of Jamaica’s leading advocates of slavery. His slave, Kitty Hilton, accused him of severely

kicking and flogging her, leaving her naked. See Anti-Slavery Monthly Reporter no. 66 (September

1830), 373-375. The case is discussed in: Catherine Hall, "William Knibb and the Constitution of the

New Black Subject" in Empire and Others: British Encounters with Indigenous Peoples, 1600-1850, ed.

Martin Daunton and Rick Halpern (London: UCL Press, 1999). 311

Equiano, The Life of Olaudah Equiano, or Gustavus Vassa, the African (New York: Negro Universities

Press, 1969).

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reported their own conversion to the cause in terms of their exposure to the pain

Abolitionists' focus on physical suffering was deliberate. It appealed to the emerging

bourgeois culture of sensibility, in which compassion and reluctance to inflict pain

physical suffering enabled the reader to relate to and empathise with the slave’s

experience. As in other nineteenth century humanitarian narratives, the body served as

immediacy of pain, rather than the abstract wrongs of slavery, facilitated a personal

identification with the anti-slavery cause. The abolitionist critique of flogging was in

this sense deeply sentimentalist.

The second aspect of the abolitionist case against corporal punishment concentrated

on its effects on the settlers, particularly the West Indian planters. Abolitionists

expressed alarm at the apparently gratuitous nature of floggings carried out in the

slave societies, implying that planters gained an illicit pleasure from flogging their

slaves. These objections tapped into pre-existing fears that the repeated sight of

cause after he encountered a black man waiting at the door of his brother to be treated for wounds

inflicted on his back by his West Indian owner. See: Thomas W. Laqueur, "Bodies, Details, and the

Humanitarian Narrative" in The New Cultural History: Essays, ed. Lynn Hunt (Berkeley: University of

California Press, 1989). 178

war, duelling, prize fighting and even “football” were attacked as a result of this heightened awareness

of pain. See: Karen Halttunen, "Humanitarianism and the Pornography of Pain in Anglo-American

Culture" The American Historical Review 100: 2 (1995). 319-20

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most explicitly in relation to female slaves. Abolitionists protested just as much

against the exposure of women’s bodies during flogging (slaves were often stripped

Abolitionists thus linked flogging to the allegedly degraded character of the West

Indian planters. Displays of whips created a “dramatic and palpable sense of social

distance” between the British audience and the planters, highlighting the disparity

abolitionists’ broader claim that settler violence tainted the reputation of the British

nation as a force for civilisation, a claim which was quickly redeployed to provoke

Abolitionists provided a powerful model of anti-flogging rhetoric, which touched not

only on questions of slavery but human nature. Their opposition to flogging was

grounded in a commitment to the rights of slaves, and thus reflected their faith in the

human capacity for rationality and redemption. At the same time, abolitionists were

alarmed by the behaviour of settlers and highlighted a disturbingly violent, indeed

“savage”, side to human nature. Moreover, abolitionists provided a successful model

of anti-flogging rhetoric. In 1824, abolitionists achieved a limited victory when the

Women, 1780-1834" Slavery & Abolition 23: 2 (2002). 110

Debates over Virtue and Conquest in the Early Nineteenth-Century British White Settler Empire"

Journal of Colonialism and Colonial History 4:3 (2003).

12

British Government introduced an Order in Council for the Crown Colonies, which

objective: the emancipation of all slaves in the British Empire.

In evaluating the legacy of abolitionism in the debate over the flogging of convicts, it

is important to gauge the relative importance of these different factors; to weigh up to

what extent reformers’ appropriation of abolitionist language to the convict cause

reflected shared concerns about human nature, and to what extent it was motivated by

political expediency. In resolving this dilemma, I am mindful of the fact that critics of

the penal system were not the only group to build on the abolitionist case. Military

reformers who had been campaigning for the eradication of flogging in the British

army since the late eighteenth century began to draw explicit comparisons between

Significantly, these groups did not always use abolitionist rhetoric in a way which was

sympathetic to the anti-slavery cause. Indeed, what seemed to concern them most was

that “Englishmen” had been “reduced” to the state of the “negroes”, an argument

some of the complexities behind reformers’ appropriation of abolitionist arguments.

Jamaica and Barbados, were not covered and failed to introduce ameliorative legislation of their own.

See: Altink, "'An Outrage on All Decency'" 108

Punishment in the British Armies, 1790-1815" Social History 8:1 (1983): 19-35.

1870" Interventions 3:2 (2001): 169-85; ———, "'Sinful Propensities': Piracy, Sodomy, and Empire in

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They indicate that historians should be wary of assuming that abolitionist rhetoric was

simply reproduced in the penal colonies. Yet close attention to the nuances of

abolitionist rhetoric is exactly what is missing in the existing historiography on the

transportation debate: the impact of abolitionism tends to be taken for granted, with

little regard to the conflicts engendered by its use. The following section explores the

reasons for this oversight, and its repercussions for previous histories of convict

flogging.

*

The influence of abolitionism on the transportation debate is well recognised by

Australian historians. Even before the penal colonies were established, the policy of

transportation was a target of criticism from penal reformers, as it stood in the way of

began to change in the 1830s when anti-transportation campaigners attacked the

assignment system, under which convicts were allocated to private masters, as a form

Although the significance of this charge has not been lost on Australian historians,

close analysis of the process by which abolitionist rhetoric was appropriated to the

anti-transportation cause has not been forthcoming. Instead, historians have tended to

become embroiled in debate over the validity of comparing convicts to slaves. This

Transportation to New South Wales, 1837-1840" Historical Studies 17: 67 (1967). 145

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has left a major gap in the historiography of the transportation debate, a gap which is

particularly noticeable when we look at the scholarly literature on flogging.

As Catie Gilchrist has recently observed, for most Australian historians the purpose of

studying flogging has been to determine whether convict society was “brutal or

debates over the extent and severity of punishment in the penal colonies. At one end

of this debate are historians who claim that flogging was relatively inconspicuous in

One prominent strand of this debate has focused on the prevalence of flogging in

Australian colonies compared to the American slave societies, in an effort to

demonstrate whether the conditions faced by convicts were better or worse.

Much of this debate was prompted by the publication in 1983 of John Hirst’s

words” in anti-transportation literature; “one touch of these and colonial society was

Colonial Imagination," Journal of Australian Colonial History 9 (2007). 3

University Press, 1988).

"Buckley's Chance: Freedom and Hope at the Penal Settlements of Newcastle and Moreton Bay,"

Tasmanian Historical Studies 6:2 (1999): 115-28; Wolter, "Sound and Fury in Colonial Australia".

15

with tracing anti-transportation campaigners’ appropriation of abolitionist discourse

than he was with discrediting their claim that the convicts were treated like slaves.

Above all, Hirst sought to demonstrate that these claims had distorted historians’

weight on the punishment of convicts, and not enough on the rewards for their good

behaviour. Furthermore, he contended that flogging in New South Wales was

“institutionalised and controlled”, and that subsequently the opportunities for

“indulging” the “perversion” of sadism were “very much less than in the slave

Five years later, the landmark economic history, Convict Workers, gave further

credence to Hirst’s argument. In his chapter on the care of convicts, Stephen Nicholas

argued that the lash was used “judiciously” in colonial Australia, and that physical

calculated that almost two-thirds of the convicts received only one beating or no

beating at all during their sentences; and concluded that many other coerced workers,

including American and Spanish slaves, received “more brutal treatment” than

Not surprisingly, other historians quickly took issue with revisionist attempts to

downplay the prevalence of violence in the penal colonies – to “muffle” the lash as

180-81

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fixation on the convict/slave analogy. Where Hirst asserted that the use of flogging

was relatively restrained in New South Wales, David Neal simply turned the argument

around. He maintained that the figures on the use of flogging, and the bitter

complaints from magistrates about restrictions on their powers, suggested an

“arguably higher” degree of reliance on coercion in the penal colonies than in the

that flogging was used “to elicit the sounds of convicts’ complete physical and

emotional subjection”, revealing a “sub-humanising tendency” traditionally associated

While the topic of flogging has evoked some of the most passionate scholarship on

the convict era, the terms of historiographical debate have remained narrowly defined.

The preoccupation with whether convict society was “brutal or benign” has certainly

fuelled speculation over the comparative rates of flogging in the penal colonies and

slave states, but it has added little to our understanding of the influence of

abolitionism on debates over corporal punishment, or transportation more generally.

This thesis returns to the starting point of the revisionist case: anti-transportation

campaigners’ claims that the status of convicts was synonymous with that of slaves.

However, rather than seeking to test the validity of these claims, I explore the impact

of the analogy on debate over the use of flogging. Rather than assuming that the

“enemies” of convict society simply reproduced abolitionists’ objections to flogging, I

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investigate to what extent abolitionist arguments were modified. Most importantly,

rather than assuming that the appropriation of abolitionist arguments strengthened

opposition to flogging, I suggest that in particular ways they served to complicate that

opposition. This alternative approach is grounded in the wider scholarship of the new

imperial history.

The new imperial history “has at its heart the importance of difference… and its

approach calls for greater sensitivity to the interaction of class, race and gender in the

making of colonial subjects. These considerations are particularly important to bear in

mind in determining the ways in which abolitionist discourse was modified by

opponents of the flogging of convicts. Critics of the penal system had to contend with

several important differences between the circumstances of convicts and slaves. To

begin with, the notion that convicts stemmed from the “professional criminal classes”

and were considered “incorrigible” lent weight to the belief that convicts, unlike

assume that the “whiteness” of convicts was a factor in their favour, as many were

male convicts were flogged after 1817 also altered the gender dynamics of the

Cambridge University Press, 2004). 3

University of Queensland Press, 1983).

involved men; furthermore, the flogging of female convicts was explicitly prohibited in 1817. Cases of

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criminality, race and manliness became a subject of contention in the debate over

flogging, and how this complicated reformers’ efforts to appropriate abolitionist

rhetoric.

This thesis is also founded on an understanding of the “interconnectedness” of the

British Empire. A key objective of scholars of the new imperial history, exemplified

in Catherine Hall’s Civilising Subjects, has been to place colony and metropole in a

single analytic framework: to see people, commodities and ideas as circulating “not

In tracing the influence of abolitionism on the transportation debate, this thesis offers

a concrete example of how these colonial networks operated, highlighting links not

only between Britain and the Australian penal colonies, but the slave colonies,

particularly those of the West Indies.

Most importantly, this thesis is indebted to the new imperial history for its emphasis

on the “tensions” generated by colonial rule. Three recurrent sources of unease stand

out in this period and are formally explored in individual chapters. One persistent

cause of concern was the question of who could claim British “rights and liberties”;

while colonists were often viewed disparagingly from the metropole, they continued

to insist on their “Englishness” to promote their interests, for example in debates over

Karskens, The Rocks: Life in Early Sydney (Carlton, Vic.: Melbourne University Press, 1997). 113;

Kay Daniels, Convict Women (St. Leonards, N.S.W.: Allen & Unwin, 1998). 105-106

E-Press, 2005). 73

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metropolitan and colonial interests which, though traditionally understood as

concern arose out of the “civilising” objectives of British imperialism which, from the

nineteenth century, was increasingly driven by the middle-class “philanthropic

moralising mission” and directed not only at colonised subjects but the colonists

This thesis explores how these tensions played out in the transportation debate by

focusing on the work of three vocal opponents of flogging: newspaper editor Edward

Smith Hall (1786-1860), English politician Sir William Molesworth (1810–1855) and

penal reformer Captain Alexander Maconochie (1787-1860). In focusing on their

work, it is by no means my intention to suggest that they were “leaders” of the antiflogging

cause in colonial Australia. Indeed, if anything I hope to demonstrate that

their opposition to flogging was deeply ambivalent, and to debunk the mythology

surrounding them as “extraordinary” reformers. However, Hall, Molesworth and

Maconochie are representative of a range of different positions from which the

flogging of convicts was contested, both within and outside the colony. They also

stand out for their unrelenting involvement in public debate about corporal

punishment.

2003). 16

Lester (Cambridge: Cambridge University Press, 2006). 8

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The benefits of focusing on the “life histories” of individual colonists and colonial

observers have been highlighted by numerous scholars of the new imperial history.

Catherine Hall suggests that the study of individual lives provides a natural “starting

David Lambert and Alan Lester observe that colonial lives “constituted meaningful

connections across the empire in their own right”; the study of “life histories” thus

this thesis broadly follows this model, with each chapter focused on the work of one

figure.

*

In 1838 the lives of Sir William Molesworth, Edward Smith Hall and Captain

Alexander Maconochie were briefly drawn together by the Select Committee on

Transportation. The Committee was appointed to inquire into the efficacy of

transportation, the “moral state” of the penal colonies and their susceptibility to

improvement. Its findings, presented to the House of Commons on 3 August, were

definitive: the final report portrayed the colonies as a place of depravity and called for

(Oxford: Polity, 2002). 20

21

For Sir William Molesworth, the instigator and chairman of the Select Committee, it

was a gratifying moment. The young Parliamentary Radical had spent over a year

busily interviewing witnesses and reviewing colonial papers, compiling the case

colonies were in uproar. Edward Smith Hall, a resident of New South Wales since

1811, was among those outraged by the report. An ardent supporter of transportation,

he rejected the claim that the colony had outgrown the convict labour supply. While

Hall accepted the accusations of colonial immorality, he argued that the uneven sex

at the report but at those who had testified before the Committee. In Van Dieman’s

Land, Lieutenant-Governor Sir John Franklin dismissed his private secretary, Captain

Alexander Maconochie, when it was revealed that Maconochie’s criticisms of the

convict assignment system had been published in England and were heavily

referenced in the Select Committee’s report. It would be over a year before

In the aftermath of the Select Committee, Molesworth, Hall and Maconochie found

themselves in very different, indeed antagonistic, positions. Yet although they stood

divided over the future of transportation, they were united in the belief that there was

Kirsten McKenzie, "Discourses of Scandal: Bourgeois Respectability and the End of Slavery and

http://www.adb.online.anu.edu.au/biogs/A020160b.htm?hilite=maconochie.

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something deeply wrong with the existing system. All three were vocal, if ambivalent,

opponents of the flogging of convicts. Moreover, all three articulated their opposition

to corporal punishment through the rubric of anti-slavery. Ironically, the central claim

of the Select Committee’s report – that convictism was a form of slavery – was a

point on which they all agreed.

Hall, the first of the three men to appropriate abolitionist rhetoric to the convict cause,

was an outspoken opponent of flogging in the late 1820s. However, his position on

flogging was erratic, reflecting the volatile nature of colonial opinion. He drew

extensively on the abolitionist language of rights but used it in contradictory ways. As

we will see, at the heart of his dilemma over flogging was the contested nature of the

“rights of Englishmen”, an issue he conscientiously struggled to resolve.

Writing at the height of abolitionist fervour in the late 1830s, Molesworth took up the

second component of the abolitionist anti-flogging model: their objections to settler

violence. As the chief author of the Select Committee’s final report, his use of the

convict/slave analogy is well-known and has often been dismissed as a product of

metropolitan prejudice. Yet a different perspective of the power dynamics behind his

accusations of settler violence can be gained by moving away from a traditional

dichotomy between metropolitan and colonial interests.

Maconochie, who was eventually appointed commander of Norfolk Island in 1840,

was the least enthusiastic of the three men in his use of abolitionist rhetoric. A prolific

writer on questions of penal reform, he appropriated abolitionist language extensively

in the late 1830s, but had discarded it by the mid-1840s. He is fascinating not only for

his critique of corporal punishment, but for the alternatives he envisioned. His marks

system of prison discipline was an exemplary example of the bourgeois “civilising”

project of empire.

While Hall, Molesworth and Maconochie were among the most vocal critics of

corporal punishment, their opposition was always tentative. By tracing their selective

and sometimes even contradictory use of abolitionist language, this thesis seeks to

untangle some of their ambivalence. It resituates the debate over the flogging of

convicts in its original imperial context.

24

Edward Smith Hall made a name for himself in New South Wales through his

provocative newspaper, The Monitor. A gentleman settler and former banker, Hall

shocked his contemporaries with his renegade views. First published in 1826, fifteen

“firm, consistent, persevering and prudent” support for the “injured and oppressed,

public controversies, including numerous criminal libel cases, one of which landed

Darling, who regarded The Monitor as a leading cause of convict insubordination in

Given Hall’s political sympathies, one might expect The Monitor to have adopted a

strong anti-flogging platform. Yet Hall defies easy categorisation: he was clearly

troubled by the use of flogging, but his opposition was tentative and faltered at several

key moments. As editor of The Monitor, Hall was assigned convicts and thus

personally experienced some of the difficulties of enforcing discipline, including the

http://www.adb.online.anu.edu.au/biogs/A010457b.htm.

25

were a particular source of anxiety for him.

This chapter explores how Hall’s underlying ambivalence about flogging was

compounded by his contradictory use of the convict/slave analogy. Abolitionist ideas

were central to Hall’s critique of corporal punishment. The Monitor was founded just

three years after the second wave of abolitionist campaigning took off, and Hall was

quick to align the plight of convicts with that of slaves. However, he did not always

use abolitionist rhetoric in a way which was sympathetic to the anti-slavery

movement. Instead, he often followed the precedent set by military reformers in the

early nineteenth century and treated the suffering of convicts and slaves as rival

causes. The military reformers’ campaign, while not as high profile as that of

abolitionists, gained public support in the aftermath of the wars with the French

By tracing the competing influence of abolitionists and military reformers on Hall’s

ideas about flogging this chapter explains his ambivalence in terms of broader

anxieties about who could claim the “rights of Englishmen”. These two models drew

on very different understandings of rights: abolitionists adhered to a notion of

universal rights, whereas military reformers’ definition was far more circumscribed.

Punishment in the British Army, 1815-1870" The English Historical Review 100:396 (1985): 545-71; J.

R. Dinwiddy, "The Early Nineteenth-Century Campaign against Flogging in the Army" 97:383 (1982):

308-331; E. E. Steiner, "Separating the Soldier from the Citizen: Ideology and Criticism of Corporal

Punishment in the British Armies, 1790-1815" Social History 8:1 (1983): 19-35; D. M. Peers, "Sepoys,

26

As we will see, Hall’s stance on flogging changed as he grappled with the question of

which version of the “rights of Englishmen” best applied to the case of the convicts.

*

In the late 1820s, Hall was one of the most outspoken opponents of flogging in New

South Wales. In a series of articles published in The Monitor in 1826, he condemned

the infliction of illegal punishments on convicts, including the use of flogging to elicit

bench proceedings, carried out by the Legislative Council in the previous year. The

investigation implicated several leading magistrates, who were subsequently protected

his provocative coverage of the illegal punishments, Hall was accused of inciting

discontent and insubordination amongst the convict ranks. However, he dismissed the

threat of a convict revolt on the basis that the convicts were “scattered” across the

Disappointed as he was by the reaction of his fellow colonists, Hall clearly felt

vindicated when the findings of the investigation were presented to the House of

Commons in April 1826. The “light of English freedom doth occasionally break our

gloom”, he wrote on 22 September 1826. The illegal punishments “have been visited

with that measure of abhorrence which we felt they deserved, and hoped they would

The Monitor, 13 October 1826; The Monitor, 20 October 1826.

Allen & Unwin, 1983). 176

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receive!” He used the opportunity to cast himself as a true British patriot, singling out

leading members of Parliament who shared his concerns about the illegal punishments

Moreover, Hall set out to shame his fellow colonists by casting aspersions on their

Britishness. Deliberately fostering their sensitivity to the metropolitan gaze, he used

English newspaper commentary to chastise the colonial government, re-publishing

numerous articles in which New South Wales stood condemned. The Times

questioned the colony’s future within the British Empire, warning “it is time to

contract the limits of British Government, if its extremities begin to display a

even further, expressing astonishment that such events could take place “in a colony

under British jurisdiction”. According to the editor, the colonial magistrates were not

just a “disgrace to the name of England”; their cruelty was on par with “Turkish

The important point here is not whether the comments selected by Hall accurately

represented English opinion, but that he presented them as the definitive metropolitan

perspective and sought to thereby strengthen his case against flogging. Hall had

previously made similar analogies himself – in July 1826, for example, he referred to

28

and newspapers themselves added an additional level of authority. For a colony

sensitive to metropolitan opinion, such accusations carried significant weight.

Only a few years later, however, Hall appeared to have joined the ranks of the

colonists he had previously sought to shame. In 1832, Governor Bourke introduced

the Summary Jurisdiction Act, the first comprehensive legislation regulating corporal

punishment in the colony. The Act largely served to consolidate previous government

backlash quickly followed, particularly in the Hunter Valley region, only to intensify

after a convict revolt broke out at James Mudie’s Castle Forbes estate in November

1833. Hall surprisingly joined in, calling for harsher discipline and decrying the

leniency of the “old-women Justices” whose laxity was “opening a door to Colonial

Where Hall previously dismissed the threat of convicts, now he played to colonists’

anxieties. The settlers had begun to fear their men, he warned; at night they “lie down

published letters from subscribers claiming that that convicts no longer dreaded the

lash. The new standard cat which had been issued was no heavier than a “fly-beater”,

be ordered, including absconding, absenting, neglect of work, disobedience, insolence, drunkenness

and disorderly conduct. It also restricted magistrate’s powers to punish offenders, setting a maximum

of 50 lashes for a first offence, and 100 lashes for a second offence; and prohibiting single magistrates

from awarding more than 50 lashes. Bourke also ordered floggings to be inflicted by a standard

instrument, to be issued by the Hyde Park Barracks. See: Gryphon Books Pty. Ltd., and Dove Bindery.

Documents (Melbourne: Gryphon Books, 1977). 11-17

29

convict who had received a dozen lashes that they “might give it him from morn to

Moreover, where Hall previously cast flogging as an affront to British morality, now

he explicitly justified its use in terms of the English law. In August 1832, we find

references to standard practice in England in order to justify stricter measures in New

South Wales. Hall reassured himself that vagabonds and petty thieves “at home” were

also subjected to flogging because “the law holds, and experience has shewn, that

example highlights once again the selective and pragmatic nature of Hall’s references

to metropolitan opinion.

The contrast between Hall’s exposé of illegal punishments in 1826 and his reaction to

the Summary Jurisdiction Act in 1832 and 1833 is perhaps the most dramatic example

of his inconsistent attitude to flogging. However, as Erin Ihde demonstrates in his

past. Even before Bourke’s reforms arrived on the scene, Hall’s views on corporal

30

Hall’s stance on flogging vacillated, depending on the nature of the offence and the

circumstances in which it occurred. In July 1826, he opposed the flogging of

runaways, for example, on the basis that convicts’ attempts to escape reflected their

sense of honour and self-respect; and defended a barber who was flogged for

scourging of the “infamous” Robert Rawlins for exposing his person and using

obscene language towards two young women, asserting:

We… should have been as pleased to hear of the infamous Rawlins being scourged, as we

were grieved at the fate of the poor barber and attempting run-a-way, when they had to

In Hall’s eyes, what was “torture” for one group of convicts, was fair treatment for

another. He singled out rape, bestiality and blasphemy as crimes to which he thought

he insisted that the “brutish consciences” of “low characters” would not respond to

Hall’s stance on flogging also vacillated in relation to questions of gender. Like many

of his contemporaries, he believed that convict women were irredeemable. When the

women had been “at home” in England, they were “humble enough” he wrote; in the

31

their behaviour went by unpunished. The flogging of women throughout the British

Empire had been banned in 1817, and even before this the practice had been largely

phased out in New South Wales. Yet Hall deplored what he considered to be the

subsequent disparity between the treatment of male and female convicts. Throughout

The Monitor, we find cases of Hall decrying the flogging of men, while urging more

severe treatment of women. In August 1826, for example, he complained that a man

had received 50 lashes for tying a pig belonging to a neighbour, while a female

1827 he complained that “male prisoners” were flogged for idleness, insolence,

drunkenness or gross unchastity but:

decency and humanity will not in the present day… allow of such punishments being inflicted

on our female convicts, even though they were a hundred per cent more abandoned than those

He thus appeared torn between the standards of “decency and humanity”, and his

belief that the “abandoned” female convicts had forfeited their right to proper

treatment.

It was not just Hall’s views on who should be flogged that varied over time. Even his

views on the manner in which flogging should be administered changed erratically. In

1830, Governor Darling issued a proclamation on penal settlements which included a

first class – the only class from which convict women were assigned – to the third (or penal) class, for

those considered to have committed serious offences and incarcerated in the female factories. On the

classification system see: Kay Daniels, Convict Women (St. Leonards, N.S.W.: Allen & Unwin, 1998).

79

32

clause allowing commandants to order successive punishments of up to 100 lashes

over three days. Hall criticised this method as “a cruelty of punishment exceeding any

dividing scourgings into multiple portions on the basis that it caused less harm to the

cases Hall’s arguments were based on the assumption that flogging was a legitimate

punishment, so long as it was administered in a proper and humane manner.

Clearly, Hall never fitted comfortably into either the pro-flogging or the anti-flogging

camp. His opposition to flogging vacillated depending on the nature of the offence,

the character of the offender, and the method of administration. How do we explain

this ambivalence? Most historians have treated Hall’s inconsistency as a sign of

political expediency or hypocrisy; they portray him as betraying his promise to expose

the injustices of the convict system. For example, R. B. Walker attributed Hall’s

response to the Summary Jurisdiction Act to his links with James Mudie, who

study departs significantly from this conventional depiction of Hall as a political

opportunist. He instead highlights Hall’s commitment to the principle of mutual

April 1825. He was appointed commander of the Moreton Bay penal settlement in 1826, where he

developed a reputation for cruelty. Robert Hughes describes Logan as a “relentless flogger”. A journal

kept by a convict clerk for Peter Spicer, the superintendent of convicts, showed that from February to

1987). 446

Press, 1976). 24

33

obligation and his subsequent belief that it was unfair for a master to flog his convicts

if their offence resulted from poor treatment – for example, if they refused to work

because their rations were inadequate – but reasonable under other circumstances. At

Significantly, both of these approaches explain Hall’s attitudes to corporal punishment

in terms of the local conditions of the colony. The first focuses on the power politics

of colonial elites, and the impact of patronage on Hall’s editorial policy. The second

emphasises the need to carefully balance the power of master and convict. More

importantly, both approaches tend to portray Hall’s ambivalence as a product of his

idiosyncratic personality: his personal vendetta against Governor Darling, on the one

hand; and his intellectual disposition, on the other hand. While these factors may

explain the immediate causes of Hall’s ambivalence, they do not account for the

broader cultural anxiety about flogging.

Historians’ focus on the local and personal factors behind Hall’s ambivalence has

blinded them to the trans-imperial context in which debate about the flogging of

convicts occurred. Yet close examination of The Monitor demonstrates that Hall was

not only aware of concurrent debates about the flogging of slaves and soldiers

elsewhere in the British Empire, but that they were an important reference point for

his views on convicts. His ambivalence about flogging needs to be understood in this

wider context. We need to pay close attention to the ways in which the ideas of

abolitionists and military reformers strengthened, or alternatively complicated, his

opposition to flogging.

34

*

One of the figures who appeared repeatedly in The Monitor during its early years was

a one-armed convict shepherd who, “though thin and sickly from starvation”, had

complained of insufficient rations, and warned his overseer “of the folly of giving him

only half-a-belly of victuals, when he is at the same moment entrusted with the charge

overseer that “it was in the power of such men as him, in lambing time, to revenge

Hall treated the “poor shepherd” as the emblematic convict victim, the standard

against which all other cruelties were to be compared. One of the most striking

aspects of the case he built around the “poor shepherd” is that it invoked the English

law. Hall expressed outrage that the man had been punished so severely for these

“poor shepherd” case reflected one of Hall’s main preoccupations: paramount in his

defines compensatory retribution as an act designed to punish the convict master for specific acts of

injustice. Atkinson notes that compensatory retribution usually involved wilful damage to or loss of a

master’s property, for example the deliberate loss of stock animals and rick-burning. See Alan

Atkinson, "Four Patterns of Convict Protest" Labour History 37 (1979). 30, 39-41

35

mind was the right of convicts to the protection of the English law. He framed his

opposition to flogging in terms of the “rights of Englishmen”.

of his struggle to maintain an English identity whilst at the same time adapting

Hall’s understanding of the “rights of Englishmen” evolved in relation to other parts

of the empire, and in relation to other British subjects.

Indeed, the “rights of Englishmen” was by no means a static concept which Hall

simply brought with him from England. Rather, it was informed by on-going debates

in the metropole and beyond to which he remained attuned after his arrival in New

South Wales. An avid reader of English newspapers, Hall kept up with developments

throughout the empire, and through The Monitor, he sought to expose colonists to

them as well. He explicitly promised to include more parliamentary intelligence and

In adopting the phrase “the rights of Englishmen”, Hall drew on two distinct models

of anti-flogging discourse: abolitionist and military reformist. Both of these

campaigns capitalised on the rhetorical power of the “rights of Englishmen”, yet they

used the term in very different ways. As previously noted, abolitionists adhered to a

conception of universal rights and framed their arguments against flogging in terms of

36

racial equality. Thomas Fowell Buxton, a founding member of the Anti-Slavery

Society in 1823, expressed his abhorrence to flogging in the following terms:

The heart of man revolts at the notion that because my skin is white I have therefore a right to

inflict torments and degradation… Nature has not given to the white men a right to the bodies

Importantly, abolitionists’ stated commitment to racial equality rested on

condescending assumptions about the British bestowing freedom and civilisation on

the negro. The “official” image of abolitionism – a kneeling slave asking “Am I not a

Man and a Brother?” – captured this confusing mixture of egalitarianism and

rights represented a radical challenge to the existing colonial order.

The arguments of military reformers built on the abolitionist case, but not necessarily

in a way that implied support for the anti-slavery cause. In their campaign for an end

to flogging, military reformers made explicit comparisons between the suffering of

the slave and the soldier, but they did so in a way that was often reactionary rather

sympathetic. For example, Whig MP Henry Brougham criticised fellow abolitionists

in 1811 for expressing their abhorrence at the flogging of negroes but not of British

difference, rather than universal rights, was at the heart of the military reformers’

Punishment in the British Armies, 1790-1815." 20

37

arguments. They adopted a far more circumscribed view of who could claim the

“rights of Englishmen”.

Hall referred to the anti-flogging campaigns of both abolitionists and military

reformers in The Monitor, but which did he consider most persuasive? Working out

just where Hall positioned himself in relation to the two causes, and which model of

rights he subscribed to, can help in turn to clarify his ambivalence about the flogging

of convicts.

*

Having joined the evangelical movement as a young man, Hall had direct links with

the anti-slavery cause in England. Indeed, his application to migrate to New South

Wales was supported with recommendations from none other than leading British

progress of the abolitionist cause. The very first edition of The Monitor included

extracts from the House of Commons debate over slave amelioration in the West

Indies, which included measures to prohibit the flogging of female slaves; and limit

continued to publish material on this topic. On 23 June 1826, The Monitor reproduced

a speech by Buxton which included a lengthy section on the flogging of female

Report of the Society for the Mitigation and Gradual Abolition of Slavery throughout

38

the British Dominions which drew attention to planters’ resistance to amelioration and

Abolitionist ideas informed Hall’s opposition to the flogging of convicts on a number

of levels. Here I focus on how the theme of slavery was woven into his case against

the use of illegal punishments in the period 1826 to 1830. As demonstrated at the

beginning of the chapter, this issue sparked his earliest objections to flogging, and

also provoked a vehement response from the authorities. It is thus pertinent to

consider to what extent abolitionism strengthened his resolve to speak out on the

issue, and to what extent he directly incorporated abolitionist rhetoric into his critique.

Due to his provocative coverage of the use of illegal punishments, Hall was accused

of inciting discontent and insubordination amongst the convict ranks. Governor

Darling warned commandants of penal settlements and superintendents of penal gangs

these lines came not just from the Government but from Hall’s own readers. Hall was

aware that most of his readers did not share his views on convict discipline; in

September 1827, he estimated that two-thirds of subscribers differed from him on this

Nonetheless, Hall was adamant that he must follow his conscience; that he must write

39

Indeed, he appeared to derive a peculiar satisfaction from his controversial position as

a sign of his moral integrity, comparing himself with Wilberforce and his opponents

with the West Indian planters:

We will be egoists enough to acknowledge, that in a Society in which the servants are bondmen,

our opinions are likely to be about as fashionable, as Mr. Wilberforce’s are in Jamaica or

Hall thus constructed an elaborate analogy between colonists’ response to his

exposure of convict abuse, and West Indian planters’ response to the anti-slavery

cause. Positioning himself as a moral crusader, he aligned the causes of convicts and

slaves with one another.

Hall’s belief that his opposition to the illegal flogging of convicts aligned him with

the anti-slavery cause is also demonstrated by his decision to directly target his

message at abolitionists in England. In July 1830, while in prison on charges of

criminal libel, Hall wrote to Buxton in the hope that he would take up the plight of the

convict “outcasts”. Hall had been consistently rebuked by the Colonial Secretary, but

hoped that Buxton, who was “renowned even in this remote Colony” for his

Hall carefully framed his case against illegal floggings in a way which would speak to

Buxton’s concerns as an abolitionist. He explicitly compared the situation of the

convicts to that of the slaves. The convicts’ subjection to the summary jurisdiction of

40

magistrates, he wrote, was “analogous to the taking of the negroes of our West Indian

Colonies from under the protection of His Majesty’s Judges and the old laws of

the connection between the two causes, Hall sought to ensure that Buxton would pay

closer attention to his argument.

But Hall also spoke to Buxton’s concerns as an abolitionist in less explicit, and

perhaps even unconscious ways. Hall sought to exploit the paternalistic dimension of

abolitionism by selecting cases involving convicts who were obviously weak or

injured – a cripple who received 50 lashes for no apparent reason; and an old and

lame ex-soldier who received 50 lashes for feigning sickness and died later that

paternalism. In a highly provocative passage, he combined the language of pain with a

sense of the convicts’ powerlessness, emphasising the “silent pleadings” and “dumb

eloquence” of their wounded bodies:

The chief evidence which I, as a public prosecutor, should have to put my trust in, would be,

by directing the felon witnesses to strip, and to shew their backs to the Jury, furrowed,

knotted, mahogany-coloured, and fleshless. I should depend upon the sight of their emaciated

forms, and on the silent pleadings of their wounds, healed indeed, but still apparent… I should

trust to the dumb eloquence of their lacerated bodies rather than to their confused, frightened

41

This passage appealed to Buxton’s abolitionist concerns on another level as well. It

raised a familiar dilemma regarding the difficulty of verifying the testimony of

convicts (or in Buxton’s case, the testimony of slaves) against that of their superiors.

One strategy developed by abolitionists to resolve this dilemma was to argue that the

“chief evidence” of their suffering was highly reminiscent of the abolitionist case.

Finally, and most importantly, when Hall appealed to Buxton he used the language of

universal rights. Citing religious doctrine in his favour, he wrote that the convicts

were “outcasts, but still men, bearing the image of the Supreme Being, defaced

as human beings, and as men, rights which he argued prevailed despite the criminal

offences which they had committed.

Clearly, Hall’s case against illegal punishments relied heavily on abolitionist rhetoric.

But in evaluating the overall importance of abolitionism, it is important to keep in

mind the audience that he was writing for. Hall’s message was targeted not just at a

colonial audience but at abolitionists such as Buxton in the metropole. This raises the

question of whether his use of abolitionist rhetoric was a simply matter of political

expediency. It is noteworthy that while Hall used the language of universal rights

when he was appealing to Buxton, this did not necessarily carry through to his

42

arguments elsewhere. Indeed, in The Monitor the abolitionists’ language of universal

rights was forced to compete with a far more exclusive definition of the “rights of

Englishmen”: that of the military reformers.

*

Just as The Monitor featured material on the progress of the abolitionist cause, it also

featured articles about the use of flogging in the British army. In October 1827, Hall

published extracts from the House of Commons debate on the Mutiny Bill, in which

arguments against corporal punishment were put forward on the basis that it was both

details: the “healed backs torn open afresh” and the “bare muscle” which “quivered

under the scourge” were vividly described in an effort to arouse the reader’s disgust

The extract from Scenes and Sketches of a Soldier’s Life was also a prime example of

the conflict between the abolitionist and military reform discourses. The author of

Scenes and Sketches of a Soldier’s Life drew attention to the incongruity of

abolitionists petitioning Parliament to prohibit the flogging of slaves, while the

“groans” of soldiers, their “countrymen”, were ignored:

And yet all this was done under the eyes of people professing Christianity and civilisation –

who were yearly inundating Parliament with petitions against flogging negroes with a cart-

43

whip – yes, while the blood of their countrymen was sprinkling a barrack square, and their

cries were ringing in their ears! They saw it not – heard it not – their feelings were too fine for

aught but distant misery. The groans of their tortured countrymen were given to the wind – no

The passage exploited the abolitionist rhetoric of pain, drawing attention to the

physicality of flogging – the blood, the cries and groans – while at the same time

implying a clear demarcation between the two campaigns. It pitted the plight of

soldiers against the plight of slaves, as competing rather than complementary causes.

Moreover, in using the term “countrymen”, the author drew on an exclusive notion of

British citizenship, rather than the universalist notion underpinning abolitionism. The

extract implied that soldiers were “countrymen” but “negroes” were not.

This more exclusive notion of citizenship is also apparent in an excerpt from William

Cobbett’s newspaper The Political Register which Hall, a great admirer, published in

The Monitor in November 1830. Cobbett was one of the principal English radicals to

passage printed in The Monitor, we find Cobbett reapplying these arguments to the

fate of convicts:

Is it not notorious, that, of late years, thousands of Englishmen have been compelled, under

pain of the dungeon and the lash, to draw wagons and carts like cattle? Have you, or

Wilberforce, or your bishop, or any other friend of the blacks, ever made a single effort to

the British Armies, 1790-1815."; Kenny, "Hall, Edward Smith (1786 - 1860)". 32

44

In attacking Wilberforce and other abolitionists for failing to take up the suffering of

convicts, Cobbett, like the author of Scenes and Sketches of a Soldier’s Life, drew on

a distinction between “Englishmen” and “blacks”.

course, another matter altogether to integrate military reformers’ arguments into his

own commentary on the flogging of convicts. It is therefore important to assess to

what extent Hall reproduced these exclusive notions of citizenship, and to what extent

he distanced himself from them.

One approach Hall took was to simply sidestep the question of rights altogether and

rely instead on arguments about the “brutalising” effects of flogging. In these

instances, Hall was able to refer to military reform in a way which did not conflict

with abolitionist arguments. For example, in November 1827 The Monitor reported

disapprovingly that a newly-appointed Policy Country Magistrate was rumoured to

have inflicted 2 275 lashes in his first week on the bench, 1 200 in his second week,

and 800 in his third week. Hall advised the magistrate that “the scourge is now

considered by the most enlightened men in the army as well as out of it, a brutalising

punishment” and warned that its use “is considered a reflection on every Magistrate

who wishes to stand well in the estimation of that part of modern society, whose good

not depend on arguments about the competing claims of “Englishmen” and “negroes”.

45

However, at other times the military reformers’ model of exclusive citizenship crept

into The Monitor in ways which sat rather uncomfortably beside his appeals to

abolitionism. In June 1827, Hall’s emblem of convict suffering, the “poor shepherd”,

reappeared in The Monitor in a somewhat unexpected context – a story about a

Jamaican slave tortured to death:

where he was left to die of hunger (the cage being suspended to a tree) for having killed his

Overseer. The birds of prey picked the eyes out of his head, and the flesh off his bones

through the bars of his cage, while swarms of insects were feasting on the lacerated and

inflamed flesh. ‘How long have you hanged there’? said the traveller – ‘Two days – and me no

die! – the birds – the birds – Ah me!’ Awful cruelty! Almost equal to the 500 lashes inflicted

Hall vividly described the agony of the slave’s prolonged death – the birds and insects

“feasting” on his flesh, and his cries for help – but for what purpose? Ultimately, Hall

seemed to be less concerned about the suffering of the Jamaican, than how the story

could be used to promote his case against convict mistreatment. Rather than garnering

sympathy for the Jamaican slave, his objective was to garner sympathy for the convict

shepherd. This example reveals Hall’s underlying suspicion that the slave’s suffering

was only ever “almost equal” to that of the convict.

An even more explicit case of Hall’s reproduction of this circumscribed notion of the

“rights of Englishmen” appeared in a July 1826 edition of The Monitor, when he

46

argued that the use of the scourge had “reduced” the convicts to “a level with the

negro”:

the people of New South Wales are a poor grovelling race, who cannot be inflamed – because

they no longer think nor feel like Englishmen: their spirit is gone – the scourge, and the

fetters, and the dungeon, and the Australian inquisition, have reduced them to a level with the

Here, Hall linked corporal punishment not simply to pain and suffering, or to moral

degradation, but to racial disorder. Implicit in his comment was a distinction between

the “negro” and the “Englishman”, a distinction he argued was threatened by the

constant use of flogging. This final example thus underlines the fluidity of the

slave/convict analogy. Just as it could be used to signify racial equality, it could also

be used to denote racial difference. Hall’s contradictory use of the analogy suggests

that he was never fully comfortable with abolitionist rhetoric.

*

Hall represented a new phase in anti-flogging sentiment, in which objections to the

corporal punishment were increasingly articulated through the rubric of anti-slavery.

The example set by abolitionists strengthened his resolve to speak out on the issue of

illegal punishments. It also provided him with the tools with which to discredit

corporal punishment: the language of pain, moral degradation and universal rights.

47

Yet ultimately the convict/slave analogy did more to confuse than clarify Hall’s

position on flogging as he was never quite certain where the two groups stood in

relation to each other. When Hall wrote for an abolitionist audience, he consciously

aligned the suffering of convicts and slaves with each other. But when he appealed to

his colonial readers, a different sentiment emerged: an underlying suspicion that the

suffering of convicts was greater than that of the slaves, and more unjust due to their

superior racial status.

At stake in the debate about flogging was the problem of imperial order: the hierarchy

of colonial subjects, and their relationship to the metropole. Hall’s views on just who

was entitled to the “rights of Englishmen” were never a clear matter. At one moment

we find him adopting the abolitionists’ framework of universal rights to which all

British subjects, white or black, might lay claim. At other times he appeared to share

more in common with the military reformers with their circumscribed view of rights –

rights as a privilege, rather than an innate entitlement.

In this respect, Hall’s contradictory use of the convict/slave analogy sheds new light

on his inconsistent attitudes to flogging outlined at the beginning of this chapter.

Significantly, as soon as Hall moved in the direction of seeing rights as a privilege, it

also became easier to argue that these rights might be forfeited under certain

circumstances. It made sense therefore to condemn the flogging of harmless convicts

such as the “poor shepherd” whilst advocating the flogging of convicts who

threatened the stability of colonial society: insubordinate convicts who rose up against

their masters; “low characters” whose offences compromised the moral order of the

colony; and perhaps even “abandoned” convict women whose unruly behaviour

48

disqualified them from the dictates of “decency and humanity”. In this sense, Hall

departed from abolitionist rhetoric not only by using the convict/slave analogy to

denote racial difference, but also in his insistence that the flogging of some categories

of convicts was necessary and even beneficial.

As Hall pondered whether or not convicts could claim the “rights of Englishmen”, he

grappled with the elusive question of human worth. In a very different sense, the

debate about corporal punishment was also a testing for English politician Sir William

Molesworth’s understanding of human nature. Instead of contemplating the character

of convicts, Molesworth was primarily concerned with that of the free colonists. As

the following chapter will demonstrate, he exploited the second aspect of abolitionist

rhetoric: the motif of settler violence.

49

English politician Sir William Molesworth is notorious among Australian historians

for his role as instigator and chairman of the Select Committee on Transportation

(1837-38). Like Molesworth’s contemporaries, historians have found it difficult to

ignore the Select Committee’s final report, with its powerful accusation that

transportation corrupted penal society in the same way that slavery corrupted the West

Indies. Since the release of John Hirst’s Convict Society and Its Enemies,

Molesworth’s contention that the status of the convict was synonymous to that of a

Preoccupied with determining the validity of this claim, few historians have sought to

closely investigate the different ways in which Molesworth used abolitionist discourse

to build his case against transportation. The complexities of his argument have been

lost in the furore over the accuracy of his allegations. One of the few exceptions to

this tendency can be found in Kirsten McKenzie’s study of bourgeois discourse in

colonial New South Wales. Rather than seeking to either prove or disprove the claims

of the report, McKenzie remains focused on its rhetorical practices, in particular,

Molesworth’s use of the abolitionist language of sexual scandal and moral

50

Following this later model, this chapter explores a second aspect of abolitionist

discourse exploited extensively in the report: the rhetoric of settler violence.

Molesworth’s claim that convicts were treated like slaves rested, at least in part, on

the widespread use of flogging in the penal colonies. For Molesworth, as for Hall, the

lash epitomised the shared suffering of the convict and the slave. Yet it was not so

much this suffering per se that troubled Molesworth, as the causes behind it. A

member of the group of “colonial reformers”, he was far less concerned about the

rights of convicts than he was about the actions of free colonists. He framed the

flogging of convicts as part of a wider pattern of lawlessness in the British Empire.

This chapter explores the nexus between Molesworth’s opposition to flogging and his

anxieties about the character of British colonists. Through a close textual analysis of

the Select Committee’s report, the witness evidence, and Molesworth’s speeches on

colonial reform, it illuminates his understanding of the dynamics of settler violence.

Moving away from a traditional dichotomy of metropolitan and colonial interests, it

draws attention to the way in which Molesworth’s use of abolitionist rhetoric

complicated his relationship with the free settlers. In doing so, it seeks to explain a

glaring contradiction in Molesworth’s political activism: his commitment to colonial

self-governance on the one hand, and his dismissal of colonial opinion on the other.

*

The flogging of convicts was one of many issues which commanded the attention of

the Select Committee. It was by no means their only, or even their main

preoccupation, but nor was it a mere side-issue. Almost all of the witnesses who had

51

resided in the colony were asked about the extent of flogging, and their views on its

The final report conveyed a decisively unfavourable view of corporal punishment.

Consistent with the rest of the report, Molesworth articulated his objections to

flogging through the rubric of anti-slavery. One strategy he used was to explicitly

compare the flogging of convicts with that of slaves. Commenting on the

unpredictability of the transportation system, he observed that the convict might be

“well fed, well clothed, and well treated by a kind and indulgent master… Or he may

be the wretched praedial slave of some harsh master, compelled by the lash to

disciplinary laws of New South Wales, enabling single magistrates to order up to 50

Molesworth employed the terms “slave” and “slavery” as “magic words” as Hirst has

colonies. Of this group, only Reverend Jack Dunmore Lang and Dr Morgan Prince did not specifically

comment on the use of corporal punishment.

Appendix, Index" in House of Commons Parliamentary Papers (1837). See: Appendix No. 2

‘Correspondence respecting Secondary Punishment’, 85-102; and Appendix 9, ‘Correspondence on the

State of Convict Discipline’, 228-256

52

connected the two systems. Abolitionist discourse also informed his discussion of

flogging in less obvious ways.

To begin with, Molesworth drew on abolitionists’ language of pain to discredit the

flogging of convicts. Contrary to the prevailing view that transportation was a light

sentence, the report found that the “average amount of pain inflicted upon offenders…

“average amount of pain” by calculating the typical number of lashes awarded to

convicts. Like many historians today, he treated corporal punishment as a litmus test

of the transportation system – the sheer quantity of flogging was offered as evidence

directed readers to Captain Alexander Maconochie’s ‘Report on Van Diemen’s Land’,

which described the floggings inflicted on convicts as “severe, even to excessive

“cruelty” of corporal punishment.

Above all, Molesworth relied on the abolitionists’ rhetoric of settler violence. As

noted in the introduction, abolitionists expressed alarm not only at the effects of

flogging on slaves but their masters: they implied that planters gained an illicit

pleasure from flogging their slaves. Drawing on this model, Molesworth argued that

Allen & Unwin, 1983). 26

including Port Arthur), and about 30 000 in 1837. The Committee did not have access to returns from

New South Wales, but based on figures for one month, estimated that over 108 000 lashes were

inflicted in 1833. See: Ibid. xii, xxiii-xxv.

53

the flogging of convicts was carried out in an arbitrary manner. He redeployed two

familiar arguments against transportation – that it failed to deter crime or to reform

the offender – to show that colonists turned to the lash to gratify their own violent

urges.

First, Molesworth deemed the use of flogging to be gratuitous because it failed to

deter potential offenders. In a speech to the House of Commons in 1840, two years

after the Select Committee’s report was handed down, Molesworth protested that

“much more suffering is inflicted in the penal colonies than is credited in this country;

was a distinctly utilitarian bent to this argument. Molesworth implied that the

suffering of convicts might be justified if it served the purpose of preventing crime at

home. However, the British “criminal population” remained under the false

impression that life in the penal colonies was easier than at home, negating any

which made it problematic, and which made the motivations of settlers questionable.

Second, Molesworth concluded that the use of flogging was gratuitous on the basis

that it was an ineffective mode of punishment. He repeated the common argument that

flogging “hardens” and “brutalises” offenders, and insinuated that convicts’ dread of

claimed that reliance on flogging rendered the offender “incapable of moral

Murray, 1903). 108

54

it could have “no effect in deterring him from the immediate gratification of his

punishment, Molesworth speculated that its continued use in the penal colonies could

only be explained by a malicious streak in settler society.

Reading through the witness evidence from the Select Committee, it is not difficult to

see how Molesworth reached this conclusion. Almost every witness could recall a tale

about at least one bad master, commanding officer or overseer who arbitrarily dealt

out floggings. Accurate or not, witnesses’ testimony fuelled Molesworth’s perception

of gratuitous violence. Some witnesses offered up cases of their own accord. John

offered the example of Anderson, a convict overseer who “seemed to delight in seeing

his fellow-convicts punished”:

I believe scarcely a day passed over without four or five, and in some instances 16 or 17

individuals, being flogged upon the report of the man [Anderson]. If the gang, during the time

they were at labour, had been idle, or any man that he had a spite against, he [Anderson]

would go before the commanding officer, and swear that he had been idle; of course the man

Harbour penal settlement.

1838, in "Report, Minutes of Evidence, Appendix, Index" in House of Commons Parliamentary Papers

(1837-38). 45.

55

Anderson seemed to exemplify the worst elements of penal system. But far from

suggesting that his was an isolated case, Barnes presented such abuses of power as the

norm. He told the Select Committee that he had even heard of a commanding officer

at a penal settlement “ordering a man to be flogged because he did not take his hat off

fears that flogging corrupted all levels of colonial society, from the convict overseers

to high-ranking officials.

Not all of the witnesses were as obliging as Barnes, but even those who required more

prompting from the Select Committee eventually came up with tantalising stories of

convict abuse. Peter Murdock, a former superintendent of convicts, originally stated

that he did not believe there was a great deal of punishment inflicted on the “settler’s

case “where the punishment was so very bad, under one master, that Colonel Arthur

called for a return of the number of lashes inflicted on his men, and he was ordered to

Meanwhile, John Russell, a military surgeon and former commandant of Port Arthur,

knew of a “very stout, strong” master who “always punishes his servants by giving

Minutes of Evidence, Appendix, Index" in House of Commons Parliamentary Papers (1837-38). 122.

Murdock served as superintendent of convicts at Emu Plains from 1821 to 1824, and was then posted to

the penal settlement at Maria Island. He owned properties in New South Wales and Van Dieman’s

Land, where he resided until February 1837.

Minutes of Evidence, Appendix, Index" in House of Commons Parliamentary Papers (1837-38). 57.

Russell resided in Van Dieman’s Land from 1829 to 1833. He was posted to the colony as assistantsurgeon

commandant at Port Arthur for one year, starting in September 1830.

56

gratifying violence, providing Molesworth with further ammunition against

transportation.

Clearly there was a compelling case to be made from the witness testimony that the

floggings carried out in the penal colony were acts of gratuitous violence. However,

this perspective was not the only one presented to Molesworth and the Select

Committee. Several witnesses made the counter argument that the flogging of

convicts was, or at least could be, carried out in an orderly and regulated fashion.

Moreover, they expressed concerns that the floggings inflicted on convicts were not

severe enough. Three witnesses stand out for their pro-flogging views.

Thomas Livingstone Mitchell, ex-surveyor-general of New South Wales, defended the

use of corporal punishment on practical grounds: the need to obtain labour from the

convicts. He blamed the inefficiencies of penal labour on the fact that overseers

flogging in promoting a more orderly labour process, he advised the Select Committee

that the unlimited power of punishment was “indispensable” to supervisors.

Where Mitchell focused on questions of labour productivity, Henry Breton, a

lieutenant-colonel, stressed the role of flogging as a deterrent. When Breton was

appointed police magistrate, he quickly discovered that a sentence of 100 lashes in the

served as assistant-surveyor general and then surveyor general. His responsibilities included the

management of roads and bridges. He was on leave in England for eighteen months when he was

interviewed by the Select Committee . D. W. A. Baker, "Mitchell, Sir Thomas Livingstone (1792 -

1855)" Australian Dictionary of Biography 2 (1967),

http://www.adb.online.anu.edu.au/biogs/A020206b.htm?hilite=Thomas%3BLivingstone%3BMitchell.

57

insisted on supervising floggings and claimed that he had thereby ensured that they

became an “object of terror”, noting that he “had only one single instance of a man

The most extensive defence of flogging was put forward by Ernest Augustus Slade,

Select Committee that the floggings in the colony were not sufficiently harsh. He

protested that there were “cases where men have been sentenced to receive 50

describe how he had remedied this situation. He ordered a new whip, two feet long

with five lashes, each in turn with six or seven knots. He also insisted on supervising

floggings, and recommended to Governor Bourke that all other magistrates should be

compelled to do the same. Slade boasted to the Select Committee that 50 lashes under

his supervision were “equal to 1, 000 under any other man’s ever before in the

Minutes of Evidence, Appendix, Index" in House of Commons Parliamentary Papers (1837), 144.

Breton was a lieutenant-colonel in the fourth regiment. He served in NSW for four years until March

1836.

for Sydney in October 1833. He was dismissed in November 1834 after scandal erupted surrounding

his domestic arrangements, and soon thereafter he returned to England. Hazel King, "Slade, Ernest

Augustus (1805 - 1878)" Australian Dictionary of Biography 2 (1967),

http://www.adb.online.anu.edu.au/biogs/A020413b.htm.

"Report, Minutes of Evidence, Appendix, Index" in House of Commons Parliamentary Papers (1837),

56.

58

Far from dwelling on the gratuitous nature of flogging, Mitchell, Breton and Slade

emphasised the laxity of the penal system – indeed, their primary concern was the

lack of violent punishment inflicted on convicts. Furthermore, they portrayed their

subsequent efforts to institute harsher floggings not as an abuse of the penal system,

but as a responsible use of the power invested in overseers, magistrates and

superintendents. However, their message was lost on Molesworth. Although they

approached the defence of flogging from a slightly different angle, his response to the

three witnesses was virtually identical: their views on corporal punishment were not

just misrepresented, they were totally ignored. Mitchell and Breton’s comments on

flogging were not acknowledged in the report, although reference was made to their

was made to his evidence; it was almost as though his support of flogging – alongside

his confessions of sexual impropriety – was so objectionable that his evidence was

rendered inadmissible.

Molesworth’s interaction with these witnesses, and his decision to privilege one set of

views over the other in the final report, raises interesting questions about the power

dynamics of the inquiry. The notion that Molesworth was an agent of metropolitan

interests holds strong in the existing historiography. Likewise, it is tempting to

explain his use of the abolitionist rhetoric of settler violence as the product of

metropolitan prejudice. Yet such an account rests on a vastly oversimplified

understanding of colony-metropole relations. While colonial relations were never

convicts’ right to legal redress; and the punishment of women convicts. Mitchell was quoted in

reference to the system of road parties, but in his support for giving overseer’s an unlimited power to

punish was not mentioned.

59

section revisits the debate over the role of metropolitan prejudice in the inquiry, in

order to develop a fuller understanding of his appropriation of abolitionist discourse.

*

Molesworth is an unpopular figure amongst most Australian historians. They have

tended towards a rather cynical view of his role in the Select Committee, emphasising

his political ambitions as a member of the Parliamentary Radicals. Furthermore, they

have tended to regard his report as a product of metropolitan prejudices. Even those

who have challenged other assumptions about the report have preserved the notion of

a strict dichotomy between metropolitan and colonial interests. Two key examples of

this approach are the works of John Ritchie and John Hirst.

John Ritchie’s study, published in 1967, challenged the conventional assumption that

the Select Committee was the decisive factor behind the abolition of transportation.

Ritchie argued that the Whig Government had largely anticipated Molesworth’s

investigation and was relatively uninfluenced by its recommendations. He instead

placed Lord John Russell, Viscount Howick and the Colonial Office at the centre of

the story, arguing that it was their efforts to ameliorate the criminal code that provided

simply seek to correct conventional assumptions about the role of Molesworth, but to

Lester (Cambridge: Cambridge University Press, 2006). 8

Transportation to New South Wales, 1837-1840" Historical Studies 17: 67 (1967). 158

60

discredit his findings. Ritchie’s study of the Select Committee was infused with

nationalist sentiment. He objected that Molesworth’s interpretation was “unfair” and

“unprincipled”, based on the “manipulation of evidence to antecedently determined, if

victims of Molesworth’s prejudice: “A people who had struggled to their feet and who

were taking their first haltering steps towards self-respect, permanent stability and

independence were placed in the position of the mute accused and had slurs heaped

interests.

Molesworth had to “distort” the evidence and that he “brushed aside” alternative

viewpoints. Moreover, in his discussion of the reception of the report in New South

Wales, Hirst emphasised the sense of betrayal experienced by colonists. Not only had

the colony’s reputation been tainted by fellow colonists such as Reverend Jack Lang

and landowner James Mudie; but it seemed as though Britain itself had turned its back

on New South Wales. Hirst argued that the crisis surrounding the report led to the

“clear realisation that the colony’s interests might be injured or ignored by the mother

country”, and subsequently produced “a strengthened and more widespread

was again premised on the tension between metropolitan and colonial interests.

61

This conventional assessment of the report as a product of metropolitan prejudices is

not entirely unwarranted. As suggested previously, a comparison of the report and the

witness evidence demonstrates that Molesworth was highly selective in his treatment

of the issue of flogging. Indeed, Molesworth’s response to the evidence of witnesses

who spoke in favour of corporal punishment demonstrates that he was highly prepared

to dismiss evidence that he disagreed with. But in their attempts to discredit

Molesworth for this selectivity, historians have oversimplified the power dynamics of

the inquiry process. The complexities behind this process become clearer when we

delve deeper into the witness testimony on flogging and settler violence.

First and foremost, historians have failed to acknowledge the fact that witnesses

brought their own agendas to the inquiry. While Molesworth certainly exercised

significant influence over the final report, it would be wrong to see him as completely

in control of the inquiry. Molesworth could seek to direct the interviewing process,

but witnesses were equally in a position to obstruct it. For example, Molesworth

consistently sought to prompt comments about flogging as a source of “degradation”.

While some witnesses responded suitably, others were less forthcoming. Reverend

William Ullathorne was reliably melodramatic, singling out the scourge as the

man” he told the Select Committee; “there is a feeling of degradation about him, that

Wales and Norfolk Island. His pamphlet The Horrors of Transportation Briefly Unfolded to the People

was published in 1837, the year before he gave evidence before the Selct Committee. T. L. Suttor,

"Ullathorne, William Bernard (1806 - 1889)" Australian Dictionary of Biography 2 (1967),

http://www.adb.online.anu.edu.au/biogs/A020497b.htm?hilite=ullathorne.

"Report, Minutes of Evidence, Appendix, Index" in House of Commons Parliamentary Papers (1837-

38), 20-21

62

Molesworth sought Colonel Arthur’s reassurance that the convict’s vulnerability to

summary punishment “must make him feel in every way degraded” and “destroy all

self-respect”, he received a far less effusive response. Arthur’s acknowledged

attempts to direct the interview process did not always deliver the results he expected.

Sir Edward Parry, for example, insisted that degradation was in fact an “essential

feature” of transportation; that “the object of sending people there [to the penal

unpredictable process, not always within Molesworth’s control.

Furthermore, the witnesses were quite prepared to perform the role of the

“benevolent” settler while indicting others. Barnes, for example, noted the gratitude of

a convict whose flogging he had prevented on the grounds of poor health. The convict

was among a group of bushrangers who held Barnes up at Coal River; Barnes told the

Select Committee that the convict “recollected the circumstance with a little gratitude,

juxtapose his own benevolence against the horrors of convict discipline. Nor was he

alone in doing so. Even landowner James Mudie was happy to point the finger at

others, so long as it did not bring into question the legitimacy of his own practice of

"Report, Minutes of Evidence, Appendix, Index" in House of Commons Parliamentary Papers (1837).

289. Arthur served as Governor of Van Dieman’s Land from 1824 to 1837. A. G. L. Shaw, "Arthur, Sir

George (1784 - 1854) " Australian Dictionary of Biography 1 (1966),

http://www.adb.online.anu.edu.au/biogs/A010034b.htm?hilite=colonel%3Bgeorge%3Barthur.

Minutes of Evidence, Appendix, Index" in House of Commons Parliamentary Papers (1837-38). 70.

Parry was commissioner for the Australian Agricultural Company from 1829 to 1834. He oversaw 300

to 400 convicts on the company’s estate at Port Stephens and occasionally acted as a magistrate. Ann

Parry, "Parry, Sir William Edward (1790 - 1855)" Australian Dictionary of Biography 2 (1967),

http://www.adb.online.anu.edu.au/biogs/A020282b.htm?hilite=edward%3Bparry.

63

ordering floggings as a magistrate. His statements to the Select Committee are worthy

of particular attention given his reputation as a harsh disciplinarian.

Following his appointment as a justice of the peace in 1830, Mudie served on the

bench at Maitland and built a reputation as a fearsome magistrate due to his frequent

of the Castle Forbes estate, site of the convict mutiny in November 1833. Mudie made

no attempt to conceal his reputation as a “flogger” from the Select Committee. He

described convicts’ jubilant reaction to his removal from the position in 1836: one

convict who passed him on the street called out ‘No more fifties [fifty lashes] now,

Simultaneously, however, Mudie presented himself to the Select Committee as a

sensitive and respectable settler. By contrasting his lawful conduct as magistrate

against the misuse of power by others, Mudie sought the favour of Molesworth. He

vividly described a scene at Newcastle settlement in the mid-1820s involving the

commandant and a convict who momentarily left his post:

the commandant abused the man, and called him a damned scoundrel, and said, ‘Where have

you been, and why were you not in attendance,’ and he kicked him, and in fact knocked him

down, and he then ordered them to send for the flogger to flog him; the people were at that

Minutes of Evidence, Appendix, Index" in House of Commons Parliamentary Papers (1837), 37

64

time in church, and it occasioned a considerable deal of talk; he ordered the man to be flogged,

By drawing on this example of maltreatment, Mudie demonstrated to the Select

Committee that he, too, shared their concerns about the arbitrary, uncontrolled use of

flogging. Most importantly, he did so without implicating himself or bringing into

question the legitimacy of his own practice as a magistrate. With witnesses like Mudie

clearly bringing their own agendas to the inquiry, Molesworth could never be fully in

control.

The power dynamics of the inquiry process were clearly more complicated than

historians have previously conceded. But perhaps more importantly, historians have

neglected the implications of the report for Molesworth’s own political outlook.

Molesworth, a member of the group of “colonial reformers”, had previously spoken

out in favour of colonial self-government. Yet the process of investigating the penal

colonies fundamentally challenged his vision of the colonies. This final section of this

chapter explores how Molesworth’s use of the abolitionist rhetoric of settler violence

complicated his personal commitment to colonial self-government. It places the

findings of the Select Committee’s report in the context of his speeches on colonial

reform.

*

When Molesworth was elected to the House of Commons in December 1832, he

joined the “colonial reformers”. The group, which also included Lord Durham and

65

Charles Buller, were advocates of Edward Gibbon Wakefield’s ideas on systematic

colonisation. Molesworth took a keen personal interest in this matter, and became a

member of the South Australian Association in 1833, and of the New Zealand

Association in 1837. His brother, Francis Alexander, was among the first emigrants to

The “colonial reformers” were also vocal supporters of self-government in the

colonies. One of the causes that attracted their attention were the 1837-38 rebellions

in Canada, which they attributed to the British government’s failure to maintain

Governor of Lower Canada to override the decisions of the Canadian House of

Assembly on monetary matters. Speaking in defence of colonial self-government,

Molesworth expressed a vision of the Canadian rebels as responsible and virtuous

citizens, and as true Britons. He reminded the House of Commons, that the “Saxon

will permit no one to interfere with his purse; he will fight for it first; that is the

Molesworth’s biographer, Millicent Garrett Fawcett, greatly admired his commitment

to colonial self-government. Writing in 1901, she argued that Molesworth “foresaw,

as very few did in his time, that the root of Colonial loyalty could flourish only in

66

glowing biography, few have shown much interest in Molesworth’s ideas on colonial

reform. Her fear that he would “fall into undeserved neglect” is borne out by the

within Australian history, his views on colonial reform remain neglected.

Yet Molesworth’s anti-transportation stance and his commitment to colonial reform

were closely connected. Indeed, in March 1838, just five months before the Select

Committee on Transportation handed down its final report, he made a lengthy speech

in the House of Commons setting out his fears that Britain’s colonies were in disarray.

Sure enough, the “moral contamination” of the penal colonies was a major

discover that, far from blaming the free settlers for the state of the penal colonies,

Molesworth looked to another cause altogether.

Consistent with his stance on colonial self-government, Molesworth attributed the

problems of transportation not primarily to the colonists, but to maladministration by

the Colonial Office, and above all the ineptitude of the Colonial Secretary, Lord

Glenelg. The penal colonies were in a “condition of national infamy”, he argued, yet

Glenelg had done nothing to resolve the problem. The country was instead “solely

indebted” to the Lord for Stroud (and by implication Molesworth himself) for

supporting his motion for the establishment of the Select Committee on

Egerton (London: John Murray, 1903). 22

67

neglect, and concluded that British colonists “might be justified in inferring that there

really is no such person in existence as the Colonial Minister, that Lord Glenelg is a

merely imaginary presence, a nominal being, without functions to perform, or at least

vote of censure against Glenelg.

While Molesworth’s attack on Glenelg reeked of political point-scoring, there was

also a serious side to his allegations. During the parliamentary debate, Molesworth

was criticised for singling out Glenelg for censure rather than the Government as a

whole. Yet Molesworth did so deliberately in order to demonstrate that the structure

of the department, and the position of Colonial Secretary, in particular, was

problems of mismanagement, misinformation, and above all, ignorance. The

“governing of our Colonies”, Molesworth told the House of Commons, “has been far

more objectionable, more ignorant, necessarily on account of the great distance

between subjects and the seat of all authority”. Raising the spectre of foreign rule, he

claimed that the British colonial system had started to resemble “the Spanish system

This was not the only occasion on which Molesworth made it clear that he blamed

maladministration by the Colonial Office for the state of the penal colonies. In a

68

speech on transportation in 1840, he criticised the home government for establishing

the penal colonies in the first place, and creating the structure in which violent

punishment had become normalised – for it was the home government which had

blamed the home government for failing to take measures to end transportation

sooner.

Time and time again, Molesworth made it clear that the problems of the penal systems

were a product of the distance between colony and metropole. Yet the great irony in

Molesworth’s situation was that he himself got caught up in the messy politics of

distance. While his first instinct was to blame the Colonial Office, Molesworth started

to have niggling doubts about the reliability of the colonists. In taking up the

abolitionist rhetoric of settler violence, he started to reconsider his earlier vision of

colonists as responsible and virtuous British citizens.

Central to Molesworth’s dilemma was the fact that he himself had never ventured to

the colonies. His knowledge of imperial affairs was thus always second-hand, the

product of parliamentary inquiries and personal reading rather than direct experience.

When Molesworth was eventually offered the opportunity to make his mark in the

colonies, he shied away, declining Wakefield’s suggestion that he head a second

colonies remained in the realms of the imagination. With no direct experience of the

penal colonies, he was thus forced to recognise that the witnesses had unique

authority on the subject. Molesworth reassured the House of Commons that “there

69

could be no doubt either of the knowledge of or the veracity of the witnesses

trusted.

Weighing heavily on Molesworth’s mind was the concern that some witnesses’ views

on the colony had been corrupted by the length of their stay. The report of the Select

Committee suggested that the accounts of those who resided in the colonies for

relatively short periods were more reliable than others. It placed greater emphasis on

the observations of Captain Cheyne and Captain Alexander Maconochie, for example,

on the basis that they had not “resided so long in that colony as to have their feelings

colonists, suggesting that the settlers ““accustomed” to seeing convicts in “a state of

moral prostration before them, manacled and tortured” had lost the capacity to

annotated version of the report which he independently organised to have published.

Demonstrating just how seriously he took the claims about the impact of flogging on

colonists, Molesworth added a footnote to the report alleging that constant exposure to

the lash “deadened” the “heart” of the settler:

every kind and gentle feeling of human nature is constantly outraged by the perpetual

spectacle of punishment and misery, by the frequent infliction of the lash, by the gangs of

slaves in irons, by the horrid details of the penal settlements, till the heart of the emigrant is

70

gradually deadened to the sufferings of others, and he becomes at last as cruel as the other

The use of flogging thus not only became a sign of the moral corruption of the penal

colonies; it also became grounds for dismissing colonial opinion.

In turn, Molesworth distinguished himself from the colonists on the basis of his

sensitivity. The language of pain was invoked continuously in the report, to describe

both the physical and psychological sufferings of convicts. The terms “suffering” and

“torture” were used indiscriminately, in what might appear to the modern reader to be

a mere exercise in hyperbole. But there was indeed a greater rationale behind this

wording – it was part of Molesworth’s strategy of setting himself apart from the

colonists, juxtaposing his sensitivity to pain against the latter’s apparent lack thereof.

From the safety of the metropole, Molesworth thus distanced himself from the

unsettling behaviour of the colonists. Disturbed by the breakdown of British

“civilisation” on the frontiers, a self-proclaimed champion of colonial selfgovernment

turned on the colonists and instead came to be seen as the agent of

metropolitan interests. Against the will of the majority of colonists, he called for the

immediate end to transportation.

*

71

Molesworth’s use of abolitionist rhetoric went well beyond simplistic analogies

between the flogging of convicts and slaves. More than anything else, Molesworth

was troubled by what flogging revealed about and did to the free colonists. It was

through the abolitionist rhetoric of settler violence that he was able to articulate these

concerns, and to build a case, based both on general principles and witness testimony,

against the use of corporal punishment. But while Molesworth was able to sustain a

far more consistent anti-flogging position than Hall ever did, his use of abolitionist

rhetoric was not without problems: they opened him up to the charge that his

understanding of the penal system was a product of metropolitan prejudice.

However, as this chapter has demonstrated, to explain Molesworth’s use of

abolitionist rhetoric purely as the product of metropolitan prejudice is to misrepresent

the complex dynamics behind the report. In focusing on the colonists as the “victims”

of the inquiry, historians have failed to consider what impact it had on Molesworth

himself. What is interesting about the whole episode is that it not only stirred debate

in the colonies about their ties to the “mother country”, but that it disrupted

Molesworth’s own views of how the British Empire should be run.

Although his initially blamed the Colonial Office for the state of the penal colonies,

Molesworth gradually found himself condemning the colonists themselves for failing

to live up to his vision. His use of the abolitionist rhetoric of settler violence forced

him to reflect on the character of British colonists. Flogging seemed to reveal a

perverse, even savage side to human nature: a taste for violence which sat uneasily

beside Molesworth’s early idealism. The colonists of New South Wales and Van

72

Dieman’s Land were a long step away from the responsible and virtuous British

subjects of his imagination.

Yet for all his despair at the state of the penal colonies, Molesworth was not without

hope that new methods of discipline might mitigate the worst of transportation and

that the reputation of British colonists might still be restored. One of the schemes he

deemed worthy of further consideration was that of penal reformer Captain Alexander

system at Norfolk Island. He promised much, but to put his plans in practice proved

more difficult than he had foreseen. The next chapter tracks the development of

Maconochie’s ideas over the course of the late 1830s and 1840s.

73

When Captain Alexander Maconochie arrived at Norfolk Island in March 1840, he

was confronted by the “most formidable sight” of 1 400 doubly-convicted prisoners,

the “refuse” of New South Wales and Van Dieman’s Land. “A more demoniacal

next four years, these doubly-convicted prisoners were joined by several hundred

Maconochie’s ambitious penal experiment.

Maconochie accepted the position of commander at Norfolk Island on the

understanding that he would be permitted to trial a scheme of prison discipline which

he had long been developing: the marks system. He proposed that instead of a

conventional time sentence, prisoners should receive a sentence of marks (or points)

to be earned. Convicts would receive marks for each day’s labour and other good

behaviour. Conversely, marks would be deducted for idleness, insubordination and

other misconduct. Once a convict earned a specified number of marks, he would be

committed additional offences in the penal colonies and whose sentences were subsequently extended.

In August 1840, transportation to the mainland ceased and all newly-arrived convicts were sent to

Norfolk Island and Van Dieman’s Land. Maconochie was only officially authorised to trial his marks

system on the newly-arrived convicts but within a week of his arrival he decided it was impossible to

to refine the system over the course of the next decade. See: Alexander Maconochie. "Australiana:

Thoughts on Convict Management and Other Subjects Connected with the Australian Penal Colonies"

74

The introduction of Maconochie’s marks system represented a sharp break from the

island’s past. Previous commanders were renowned for their brutal treatment of

convicts. His immediate predecessor, John Anderson, was a “firm disciplinarian and a

flogger”, who was alleged to have once ordered five men to 1 500 lashes before

Following the legacy of earlier penal reformers, Maconochie hoped that convict

labour would no longer by stimulated by the fear of the lash but rather by the desire to

In making the case for this alternative approach, Maconochie reiterated many of the

familiar objections to corporal punishment outlined in the preceding chapters.

However, there was also a discernible shift in his arguments against flogging between

the late 1830s and the mid-1840s. His writings highlight the declining influence of

abolitionist rhetoric, and its replacement by the dispassionate language of penal

science. As we will see, Maconochie’s critique was distinctive for its lack of emphasis

on physical pain. He eschewed the sentimentalism that pervaded earlier abolitionist

rhetoric, and instead framed his case in terms of the question of convict reformation.

The implications of this transition are explored in the first half of this chapter.

(London: J.W. Parker, 1839),

http://ezproxy.library.usyd.edu.au/login?url=http://galenet.galegroup.com/servlet/MOML?af=RN&ae=

F105573646&srchtp=a&ste=14&locID=usyd. 19-21

75

Maconochie was also in a much better position than Hall or Molesworth to put his

ideology into practice. In assessing his contribution to the debate on corporal

punishment, we not only need to consider his objections to flogging, but the

alternatives that he envisioned. As such, the second half of this chapter explores the

assumptions underpinning the marks system. It highlights the close ties between

Maconochie’s scheme and the bourgeois “civilising” project of empire.

*

Maconochie was 52 years old when he was appointed commander of Norfolk Island.

Like many of his predecessors, his background was in the armed services. His family

had encouraged him to pursue a legal career, but lured by the prospect of adventure,

Maconochie instead joined the navy as a first-class volunteer. He served during the

Napolenoic wars and was held prisoner at Verdun from 1810 to 1814. After his

release, he fought in the war against the United States, but was paid off in 1815 and

colonies, Maconochie was acquainted with the rigours of naval discipline. He had the

advantage of being able to ground his arguments against corporal punishment in his

personal observation of its effects, giving him an authority which Hall and

Molesworth had always lacked. He confidently claimed that he understood the effects

(1967), http://www.adb.online.anu.edu.au/biogs/A020160b.htm?hilite=maconochie.

76

Despite their differences in experience, many of the objections Maconochie raised

against corporal punishment overlapped with those of Hall and Molesworth. Like

them, he warned that corporal punishment “excited sympathy” among other convicts

not only on convicts but its practitioners, warning that those entrusted with the

“hazardous power of inflicting at will vindictive punishment” were vulnerable to a

Molesworth in so far as he took up the theme of slavery. But whereas abolitionist

language was a consistent component of the work of Hall and Molesworth, this was

not to be the case for Maconochie. Although he exploited abolitionist rhetoric in his

first publication, we find much fewer references to slavery in his later work.

Moreover, the way in which Maconochie used abolitionist language changed

significantly during this period.

Maconochie was a prolific writer on questions of penal reform. His first published

controversial report on convict discipline, as well as papers on a range of colonial

topics from representative government to the management of aborigines. The theme

of slavery featured prominently in Australiana. He repeatedly referred to the

assignment system as a form of “domestic slavery” which turned the convicts into

77

footnote, he referred to the evidence given by Colonel George Arthur before the

Select Committee on Transportation that the condition of the convict “in no way”

differed from that of the slave “except that his master cannot apply corporal

echoed Hall in warning that the conditions of convicts were worse than those in the

slave colonies: he asserted that the form of “bondage” in the West Indies had been

Maconochie supplemented his own writings in Australiana with correspondence from

colonists, many of whom repeated the argument that flogging was a slave-like form of

punishment. One correspondent objected to the flogging of convicts on the grounds

at hearing convict masters and mistresses “talking coolly of fifty lashes”, but reasoned

that it was not the fault of any individuals but rather of the assignment system, which

between slaves, convicts and the lash was foremost in the minds of Maconochie and

his correspondents.

By contrast, slavery was a far less prominent theme in Maconochie’s next book,

78

Where Australiana contained over 30 references to slavery, Crime and Punishment

contained only four. There was also a subtle shift in Maconochie’s use of abolitionist

rhetoric. As in Australiana, he continued to associate prison labour with slavery and

Indies slave society. There were no more tales of convict masters and mistresses

“talking coolly of fifty lashes” like their planter counterparts.

Instead the term “slavery” was used in a far more generic sense. On two occasions,

Maconochie wrote of the need to “banish” slavery from the system of secondary

generic application of abolitionist rhetoric was a sign of its continued authority, I

would suggest that the opposite was the case: together with its infrequent use, the

generic use of the term “slavery” in Crime and Punishment was symptomatic of its

loss of relevance. Abolitionist rhetoric no longer evoked the strong associations that it

had seven years earlier. It had been reduced to a series of catch phrases, devoid of

their original context.

Punishment, and Make Their Effect Improving, yet Their Operation Severe" (London: J. Hatchard,

1846),

http://ezproxy.library.usyd.edu.au/login?url=http://galenet.galegroup.com/servlet/MOML?af=RN&ae=

F104347038&srchtp=a&ste=14&locID=usyd.

79

The declining influence of abolitionism on Maconochie’s thinking was already

apparent in the text of Crime and Punishment. By the following year, his transition

was complete. In 1847, Maconochie published Norfolk Island, 1840-44, a series of

only discarded the term from his critique of corporal punishment, he also turned his

back on one of the key strategies of abolitionist anti-flogging rhetoric: he abandoned

the standard focus on physical suffering. Noticeably absent from his accounts of

flogging in Norfolk Island were the gory details which had featured so prominently in

the commentary of Molesworth and Hall.

Indeed, at the forefront of Norfolk Island was the question of how much weight

should be given to sentiment and reason. Maconochie distinguished between two

different modes of criticism that could be used to discredit corporal punishment: the

sentimental approach, “which laments, however weakly, over the physical sufferings

of criminals”; and the penal science approach, “which desires to guard their morals

and higher interests”. While he did not see the two approaches as mutually exclusive,

Maconochie, sentimentalism retained some of its attraction – thus we find him

warning that “far from feeling too much” when he had witnessed floggings, he was

of feeling was in fact desirable when approaching the topic of corporal punishment. In

apparatus of slavery” in the appendix. Ibid. 25

80

justifying his fervour for penal reform, he reassured his readers: “I do not think that

feeling for bodily suffering had much to do with the matter, but an earnest, perhaps

Maconochie tried his best to distance himself from the sentimentalism that

characterised abolitionism.

In the interval between the publication of Australiana and Norfolk Island, the

emotionally charged language of abolitionism largely disappeared from Maconochie’s

writings. This transition in his thinking was arguably symptomatic of broader changes

in British political culture: it corresponded to the general decline of abolitionist

influence in public debate. Australiana was published in 1839, when the abolitionist

victory was still fresh in the minds of the British people; it was less than a year since

slaves in the West Indies and the Cape Colony had obtained full emancipation.

However, with this goal secured, already the energy which had been directed into the

anti-slavery cause was beginning to dissipate. By the time Crime and Punishment and

Norfolk Island were published in the mid-1840s, the heyday of abolitionism was well

language and the decline of abolitionism seems relatively straight-forward. What is

less clear, however, is to what extent the shift represented disenchantment with

abolitionism itself, and in particular, the principle of racial equality.

Numerous scholars have argued that the mid-nineteenth century witnessed a

hardening of racial attitudes. Catherine Hall, a leading proponent of this view,

81

contends that disillusionment with the conduct of freed slaves in the postemancipation

era caused political liberals to reassess their optimism in the existence

of a common humanity. Their commitment to racial equality was replaced by a

heightened awareness of racial difference, and a subsequent desire to guard the

increased emphasis on racial separation in European colonists’ daily lives, for

example in the management of their home environments, childrearing practices and

Yet despair at racial difference does not seem to have played a significant role in

Maconochie’s decision to discard the language of abolitionism from his critique of

corporal punishment. Indeed, racial thinking was noticeably absent from his writings,

particularly when placed against those of his contemporaries. Reverend Naylor, who

served as the chaplain of Norfolk Island during Maconochie’s administration,

expressed anxieties about the racial make-up of the prisoners, lamenting that “the

English farm labourer” was “indiscriminately herded” with “Chinamen from Hong

Kong, the aborigines of New Holland, West Indian blacks, Greeks, Caffres and

Oxford University Press, 2004). 37

Manchester University Press, 2000). 65-67

82

Rather than looking to race as the determining factor in Maconochie’s case, it is more

useful to maintain a broad approach and examine the assumptions about human nature

underlying his writings. While it is impossible to sustain the argument that his work

represented an attempt to guard the “whiteness” of British colonists, his preoccupation

with convict reformation does suggest an underlying belief in the need to regenerate

colonial society. His shift away from abolitionist language, while not necessarily

precipitated by despair at racial difference, certainly represented a renewed attention

to the moral welfare of British colonialists. As such, the following section investigates

his understanding of how the marks system fitted into the bourgeois “civilising”

project of empire.

*

Maconochie’s optimism in the possibility of convict reformation has earned him the

admiration of many historians since his principal biographer, John Vincent Barry,

took up his case in the late 1950s. Barry painted a glowing portrait of Maconochie, a

dedicating an entire section to the remarkable case of Charles Anderson, “The Man

in this hagiographic tradition. Convict transportation was “one of the blackest

chapters in the lexicon of man’s inhumanity”, wrote Sheldon Glueck in the foreword

his frequent attempts to abscond, he was ordered to be chained to a rock on Goat Island for two years.

Governor Bourke eventually investigated Anderson’s case and he was sent to Port Macquarie, and

finally to Norfolk Island. When Maconochie assumed command of the island, he gave Anderson some

unruly bullocks to manage. He gradually became “less wild” and was placed in charge of a signal

station. See Ibid. 121-124.

83

to Barry’s biography, but Maconochie was one of the “few exceptional administrators

of these colonies who laboured with dedication to salvage the men entrusted to their

prophetic reformer, a noble anomaly in the theatre of antipodean terror and

biography by John Clay, deviates little from this interpretation, with the front cover

promising the story of “How one man’s extraordinary vision saved transported

Intent on upholding Maconochie as an enlightened reformer, they tended to take his

sympathy for his convict charges at face value and to thus portray him as an

exceptional figure, ahead of his times. Yet, Maconochie’s attitudes towards the

convicts were far from straightforward. This becomes evident when we unpack some

of the ideological premises of the marks system, as well as the inconsistencies

between his rhetoric and his practice when it came to the use of flogging.

Maconochie’s optimism in the possibilities of convict reformation reflected his

religious outlook. His writings were infused with the evangelical language of

salvation. He emphasised the “common nature” of humanity, and spoke of the

United Nations Congress in Geneva in 1955 on the Prevention of Crime and the Treatment of

Offenders. Glueck, a Professor of Law at Harvard, was famous his controversial work on juvenile

delinquency. Clay, a Jungian analyst, developed an interest in penology while working at Peper Harow,

a therapeutic community for disturbed adolescents, in the 1970s.

84

transitory state rather than their innate condition – that they were “temporarily

on the basis that they too were God’s creatures with a “stake in this world, and

consequently in the next”. Although many of the convicts were “very bad”, he

maintained that “every one has human reason, feelings, and affections”; he was

adamant that even the worst of the convicts could be reformed so long as these

However, for all his proclamations about the “common nature” of humanity,

Maconochie remained committed to a hierarchical vision of society. Where radical

elements of the evangelical movement used biblical and theological arguments to

argue for the abolition of a class-based society, he retained a far more conservative

outlook. The very notion that convicts were “fallen” captured his sense of social

order. Accordingly, Maconochie had very definite ideas about what the reformation of

convicts would entail. His marks system of punishment was an exemplary version of

the bourgeois “civilising” project of empire.

With its focus on independence and self-control, the marks system was closely tied to

contemporary middle class ideals of manliness: the commitment to hard work and the

punishment “give no charge to men of their own destiny” and instead treated the

(Oxford: Polity, 2002). 35

85

to make each convict responsible for his actions, “to place his fate in his own hands”.

In doing so, it trained the convicts in the “habits of prudent accumulation, postponing

not simply wait until the time sentence was completed, but were forced to earn their

Similarly, his understanding of what constituted good conduct was contingent on

middle class norms of civility. Marks were to be granted to convicts if they had been

“orderly, obedient, sober, zealous, attentive, active, industrious, cleanly in their

encouraged the convicts to undertake also accorded with his bourgeois tastes.

Convicts’ attendance at church and school, and the learning of musical instruments,

having inculcated proper table manners in the convicts: men who were previously

“fed more like hogs” and “tore their food with their fingers and teeth”, were given

remarkable attention to detail in his attempts to cultivate behaviour consistent with

bourgeois values.

86

Most importantly, Maconochie sought to develop a sense of loyalty to empire among

his convict charges. This objective came to the fore in May 1840, just two months

after he arrived on Norfolk Island, when he decided to celebrate the Queen’s Birthday

by ordering a general holiday. He provided fresh rations for dinner, gave each

convict Thomas Cook, the day’s celebrations represented the fundamental contrast

between Maconochie’s methods and those of his predecessors. Men who had been

“ruled with the rod of Iron” and “received their hundreds at the Triangles” for being

just a short distance from their barracks were suddenly permitted to range the island

Birthday reflected the success of his command. For others, however, the day was a

sign of his indulgent and reckless methods. He was loudly condemned in the colonial

Critically, Maconochie defended his actions in terms of the national significance of

the occasion. He stated that he was disturbed by “the hatred existing in most prisoners

… towards their native country and all her institutions”, and that the Queen’s Birthday

ways in which the day’s activities fostered the convicts’ deference to empire, from

claimed that the celebrations had been a major success, reviving “the memory of

Clay, Maconochie's Experiment. 151

87

success of the day that he extended the same principle to St George’s, St Patrick’s and

Maconochie’s defence of the Queen’s Birthday celebrations was also carefully

designed to play to fears about the insecurity of colonial ties. He emphasised that

nothing could be more important in regard to “our distant colonies” than “maintaining

suggested that the convicts’ attachment to the empire should be cultivated as part of

the reforming process itself:

Loyalty and love of country are among the purest and least selfish of all the sentiments of our

nature, and thus too among the most important; - and in a reforming system of penal

discipline… it will be found well, I am persuaded, to recognise the wisdom of directly

He implied that “loyalty” and “love of country” could themselves be enlisted as tools

of reformation.

The marks system, Maconochie’s grand alternative to corporal punishment, promised

much. According to Maconochie, all convicts, however degraded, could be reinvented

as manly, civilised and loyal colonial subjects. He implied that they too could share in

the bourgeois “civilising” project of empire. Yet the cracks in his vision inevitably

88

began to surface when it came to implementing the marks system. The fact that his

system was so heavily premised on bourgeois values would come to be a serious

pitfall of the marks system.

*

Unlike many of his contemporaries, Maconochie was little inclined to acknowledge

some of the ambiguities surrounding convicts’ reformation. Where others worried that

convicts’ reformation might only be “outward”, he was adamant that their progress

could be objectively measured. He repeatedly emphasised the scientific basis of his

system, using numerous medical analogies to highlight this point. He described the

marks system as a form of “moral surgery”; and referred to the prisoners as patients to

had confirmed his optimism in the possibilities of convict reform, demonstrating that

Maconochie’s confidence in the possibilities of reformation lurked deep uncertainties,

demonstrated by the inconsistencies between his ideology and practice. Our

understanding of Maconochie as a staunch opponent of corporal punishment is

complicated by the fact that he continued to order floggings of convicts during his

time as commander of Norfolk Island.

Maconochie’s use of corporal punishment has generally been explained in the context

of official hostility to his methods. On the instruction of Governor George Gipps,

Maconochie was forced to continue issuing sentences of flogging. In March 1841, he

89

reported to Gipps that corporal punishment had lately been applied on seven

occasions, for offences including perjury, insolence and attempted assault. He was

clearly uneasy about this process, warning Gipps that “the more I see of this form of

Yet Maconochie’s use of corporal punishment cannot simply be explained as

acquiescence to Gipps’ orders. By 1843, Maconochie himself defended the use of

corporal punishment so long as it was guided by the principle that men were capable

of “recovering” themselves. He claimed that he could inflict a flogging while still

retaining “the affections and cooperation of all the more manly and consequently

the issue. In 1847, three years after he left Norfolk Island, he admitted that corporal

punishment “had its occasional rare use” so long as it was carried out “privately, with

only officers present” and “did not seem to rest on personal favour”. In this setting,

corporal punishment “appealed beneficially to those cautious feelings which being in

a degree in all men it is as unwise altogether to neglect, as it is an utter mistake

necessity of flogging as a measure of last resort, but actively defending it as a

“beneficial” mode of punishment.

The tension between Maconochie’s criticism of corporal punishments, and his

continued use of it on Norfolk Island, is highlighted by his practice of ordering

in Ibid. 248

90

flogging in cases of “unnatural vice”, or sodomy. From the early years of white

settlement, the incidence of “unnatural vice” amongst convicts was a subject of great

advocated harsh punishments for those found guilty of the offence. In Norfolk Island,

he reassured his readers that he was “even more severe” than any of his predecessors

confirm this practice. One convict, described as a “poor lad, weak and much

ashamed”, received a fine of 1 000 marks and “twice 50 lashes” for “unnatural

There is some irony in this. As Catie Gilchrist has observed, Maconochie regarded

prison discipline, he dated the increase in “unnatural vice” on Norfolk Island with the

re-introduction of chains and the lash in 1842. He told the inquiry that “the tendency

to unnatural offence reoccurred with that change [because] the men had lost their self

vice”.

It is unclear to what extent Maconochie was actually conscious of the tension between

his rhetoric and practice. He worried that corporal punishment was ultimately

Australia, 1820-1850" (PhD thesis, University of Sydney, 2006).

Transportation at Norfolk Island, for 20, 15, 10, and 7 Years, with Particulars of Their Offences." In

British Parliamentary Papers, Transportation Series, 7 (1846). 802-04

Colonial Imagination" Journal of Australian Colonial History 9 (2007). 16

Criminal Law, House of Lords, quoted in Ibid. 17

91

ineffective – that it “rather gratifies my own feelings on the subject than improves the

men’s” – but did not seem to see his actions as contributing further to the convicts’

“depravity”. Indeed, he seemed to believe that although he had not discovered any

“remedies” to “unnatural vice”, flogging and other measures might operate as

The prevalence of “unnatural vice” at Norfolk Island severely tested Maconochie’s

optimism in the possibilities of convict reformation. Where he otherwise deemed

flogging ineffective and unacceptable, Maconochie argued that it was necessary, even

beneficial for this particular category of prisoner. His reaction to “unnatural vice”, a

fundamental breach of middle class sexual norms, thus exposed the failure of the

marks system to resolve underlying tensions over the legitimacy of flogging. While

the marks system implied that convicts too could share in the bourgeois project of

empire, Maconochie applied a very different logic to those who failed to meet his

terms. His decision to resort to the use of corporal punishment signalled the fragility

of his belief in a “common humanity” and revealed the limits of his reform project.

*

In 1844 Maconochie was recalled from his position at Norfolk Island. When he

returned to London in August that year, he was unwilling to concede any flaws on the

part of his controversial administration. Despite the glaring inconsistencies between

his ideology and practice, Maconochie tried his best to evade responsibility for the

212

92

failures of his penal experiment. He sought to deflect attention on to the colonial

authorities.

Maconochie had good reasons to be bitter. He had been recalled from his position

England, no position was forthcoming; the Colonial Office, while maintaining that his

recall was not prejudicial to his character, did not offer him any further

Commons. In July 1846, a revolt broke out on Norfolk Island, which ultimately led to

the execution of thirteen convicts. Although the revolt occurred more than two years

after Maconochie had left the penal settlement, the crisis was viewed by others as

Seeking to vindicate his position, Maconochie sought to shift the blame for his

failures onto others. With his English audience in mind, Maconochie argued that his

experiment had been thwarted by antagonistic colonial officials. He had never been

given a proper chance: “Nothing could be more unfavourable than my position on

Norfolk Island for conducting a great moral experiment”, he wrote in 1847. He

complained that his officers were “not at all cordial in their support” and that he had

been let down by Gipps, who “frequently hesitated, and not unfrequently even

93

Back home, it was easy for Maconochie to shift the blame onto colonial society. Yet

the attitudes of colonists to convict discipline, and flogging in particular, were never

as clear cut as he later made out. In his very first publication Australiana, he

commented on their mixed views. On the one hand, he expressed disappointment at

the evidence given before the Select Committee, as it demonstrated an “almost

settlers were obsessed with their own “comfort and prosperity”, which they

erroneously aligned with the restraint, rather than the improvement, of the

colonies. He supplemented his own writings with correspondence from fellow

colonialists in the hope that it would demonstrate “that I am not singular in my

opinions, – that many see as I see, and reason as I reason, – and that the light of

their communications illustrated that there was still “general intelligence and good

feeling to be found, amidst all the injury inflicted by a vicious social system, in the

publications, captured the confusion at the heart of the debate on convict discipline:

the fractured nature of both metropolitan and colonial opinion.

As this chapter has demonstrated, the fractured nature of colonial opinion was not just

something that Maconochie observed, or that stood in the way of his penal experiment

– it was something he helped to create. For all his confidence in the possibilities of

94

convict reformation, Maconochie was just as ambivalent as his contemporaries about

the legitimacy of corporal punishment. His decision to discard abolitionist rhetoric in

favour of the dispassionate language of penal science failed to resolve this underlying

ambivalence.

Maconochie’s inconsistent attitudes to corporal punishment reflect the paradox at the

heart of his marks system. In his attempts to create more manly, civilised and loyal

colonial subjects among the convicts, Maconochie implied that they too could share in

the bourgeois “civilising” project of empire. But it was also because his marks system

was so heavily premised on bourgeois values that he found himself questioning his

belief in a “common humanity”. The failure of some convicts to fit into his idealised

model of manly, civilised and loyal colonial subjects severely tested his optimism in

human nature.

For all its promises of salvation, the marks system did not always succeed and

Maconochie subsequently reverted to traditional methods of discipline. His decision

to resort to corporal punishment exposed the limits of his reform project. The same

logic that had guided Hall two decades earlier continued to apply: what was “torture”

for one group of convicts was deemed fair treatment for another. The recalcitrant

convict proved to be too much, even for Maconochie’s scientific theories.

95

From the 1820s to the 1840s, opposition to the flogging of convicts in colonial Australia was energised by the concurrent debate over the flogging of slaves. Contrary to the prevailing view that abolitionist discourse was simply reproduced by critics of the penal system, this thesis has drawn attention to the complexities that accompanied its use. Edward Smith Hall, Sir William Molesworth and Captain Alexander Maconochie each seized on the abolitionist model to bolster their case against the corporal punishment of convicts. However, they did not attach identical importance to abolitionist discourse, nor did they use it in the same ways. In comparing their rhetoric, several important patterns of use emerge.

In following the lives of Hall, Molesworth and Maconochie, we gain a sense of the rise and fall of abolitionist discourse during this period. As early as the mid-1820s Hall articulated his objections to corporal punishment through the rubric of antislavery.

Writing in the late 1830s, when comparisons between convictism and slavery were well established in colonial political discourse, Molesworth was even more confident in his use of the analogy. By contrast, abolitionism was only a fleeting influence on Maconochie’s writing and by the late 1840s he had explicitly distanced himself from it. The extent to which abolitionism affected the three men changed over time, as abolitionism itself came in and out of fashion.

There were also significant differences of emphasis between Hall, Molesworth and Maconochie in terms of their use of abolitionist rhetoric. The diverse ways in which they incorporated abolitionism into their work shows that it was a flexible discourse.

The aspect of abolitionism which resonated most strongly with Hall was the focus on the right to bodily sanctity, while the question of settler violence occupied the leading place in Molesworth’s work. Maconochie did not rely heavily on either of these aspects of abolitionism, but instead used the convict/slave analogy in a more general sense. All three appropriated abolitionism selectively, borrowing some aspects and discarding others.

The flexibility of abolitionist rhetoric contributed to its immediate appeal, yet it could also be a pitfall. The piecemeal approach to appropriating abolitionist rhetoric led to a variety of problems. This was most blatantly the case for Hall, whose selective use of abolitionist rhetoric ultimately did more to confuse than to clarify his position on whether flogging was a violation of convict rights. In a less obvious way, the appropriation of abolitionist rhetoric proved problematic for Molesworth, as it undermined his commitment to colonial self-government and opened him up to the charge of metropolitan prejudice. Even Maconochie found it difficult to avoid self-contradictions: at the same time that he criticised the sentimentalism of abolitionism, he reverted to arguments about the “hardening” of feeling associated with witnessing corporal punishment.

Reformers’ piecemeal approach to appropriating abolitionist language was not the only source of tension. Ultimately, the use of abolitionist rhetoric in attacks on the penal system proved to be difficult to sustain between the 1820s and 1840s, due to the underlying differences between the circumstances of convicts and slaves. Critics of the penal system departed from abolitionist rhetoric on a number of points. While we might assume that race was the major point of departure, this was not necessarily the case. Of the three men whose work has been closely analysed in this thesis, Hall was the only one who significantly diverged from abolitionist rhetoric on racial grounds: he used the convict/slave analogy to denote racial difference rather than racial equality. In contrast, Molesworth upheld the abolitionist legacy, emphasising the detrimental effects of flogging upon the character of the British colonist. Meanwhile, racial thinking was noticeably absent from Maconochie’s writings. Hall, Molesworth and Maconochie’s differing responses suggest that while race was an important theme in the debate over flogging, it was not a factor that consistently divided abolitionists and critics of the penal system.

This study has revealed that it was their understandings of criminality that prompted critics of the penal system to depart most significantly from abolitionist rhetoric.

Gender and class were both factors at work here, with opposition to flogging remaining conditional on the character and behaviour of convicts. Despite Hall’s assertions about the rights of convicts and Maconochie’s faith in the possibilities of reform, both continued to subscribe to the belief that the flogging of certain categories of convicts – insubordinates and “low characters”, “abandoned” women and “weak” men – was inevitable and possibly even beneficial. Their critique of corporal punishment reached its limits at the conventional notion of convict incorrigibility.

Furthermore, opposition to flogging remained conditional in so far as it was tied to fears of lawlessness. In purely focusing on the behaviour of settlers and ignoring the question of convicts’ rights, Molesworth left open the possibility that flogging might be acceptable so long as it served the common good.

Given their selective and problematic use of abolitionist rhetoric, it is tempting to conclude that Hall, Molesworth and Maconochie were more interested in capitalising on the success of this discourse than its actual content. Certainly, there were elements of political expediency in all of their cases: Hall’s use of abolitionist rhetoric changed depending on the intended audience; Molesworth’s attacks on the Colonial Office reeked of political point-scoring; and Maconochie was all too happy to blame colonists for the failures of his marks system. Yet it would be wrong to reduce their use of abolitionist rhetoric to pure pragmatism. This thesis has demonstrated that abolitionists’ concerns about human nature resonated strongly with the each of them.

As Hall and Molesworth debated the legitimacy of flogging convicts, they grappled with fundamental questions about human nature: the question of human worth, on the one hand; and the human capacity for violence, on the other. These questions remained at the heart of the flogging debate even when the abolitionist influence waned. Although Maconochie discarded anti-slavery rhetoric, he continued to share abolitionists’ concern for individual salvation.

Perhaps the most important legacy of abolitionism in the flogging debate was that it forced colonists and colonial observers to think about corporal punishment not simply in terms of the local conditions of the penal colonies, but in terms of the broader imperial context. In utilising the abolitionist discourse of universal rights, Hall was compelled to evaluate the status of convicts not only in relation to the free colonists, but in relation to other British subjects. In borrowing the abolitionist motif of settler violence, Molesworth was forced to revise his views on colony-metropole relations.

Finally, Maconochie’s use of abolitionist rhetoric in the late 1830s set the tone for his later work, prompting him to clarify his vision of the bourgeois “civilising” project of empire. In this sense, the debate about flogging not only reflected the “interconnected” nature of the British Empire, it also helped to foster that sense of “interconnectedness”. By integrating abolitionist rhetoric into their case against flogging, Hall, Molesworth and Maconochie helped to cultivate an imperial mentality.

Abolitionism defined opposition to the flogging of convicts between the 1820s and 1840s, often strengthening criticism of the penal system, but sometimes complicating it as well. The complex relationship between abolitionism, flogging and the transportation debate, long overshadowed by a preoccupation with whether convict society was “brutal or benign”, highlights the on-going need to resituate convict history in an imperial context. Historians need to appreciate, as Hall, Molesworth and Maconochie did, that the politics of punishment were inextricably tied to the legitimacy of the British Empire.

100

Newspapers

Anti-Slavery Monthly Reporter (1828-1830)

The Monitor (1826-1828)

The Sydney Monitor (1828-1835)

Government sources

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