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From Prison to Society

Characterising Crime in Colonial Australia Using the Records of the Court of Criminal Jurisdiction
Thomas Kehoe, Jeffrey Pfeifer et Jason Skues
p. 47-64

Résumés

La criminalité en Australie à la période coloniale a fait l’objet de nombreux travaux de recherché mais peu ont adopté une perspective quantitative. L’ensemble des dossiers de la Cour de justice pénale — qui a fonctionné entre 1788 et 1823 en tant qu’arbitre unique des crimes graves commis dans la colonie — offre la possibilité d’un traitement statistique des poursuites pénales intentées au cours des premières années après la colonisation britannique. L’analyse révèle que la fréquence des poursuites a été élevée au cours de la première décennie qui a suivi la colonisation britannique, puis a diminué, s’est stabilisée et, par la suite, alors que le nombre total d’accusations a augmenté, le taux est resté proportionnel à la croissance démographique. La répartition des infractions faisant l’objet de poursuites devant les tribunaux a également évolué au cours de la même période, le poids des délits graves augmentant. Au travers du recours à des méthodes à la fois historiques et criminologiques, ce article démontre que l’évolution des saisines du tribunal reflète une profonde transformation sociétale : la communauté pénale des origines, placée sous étroites surveillance, cédant la place à une société diversifiée et plus complexe.

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Texte intégral

  • 1 Wise, Roberts (2016).
  • 2 See Allen (2015); Allen (2017); Grabosky (1974); Philips, Davis (1994); Wise, Roberts (2016).
  • 3 See Godfrey, Cox (2008).
  • 4 Grabosky (1974); Sturma (1983).
  • 5 Finnane, Piper (2016).
  • 6 There appears to be some confusion over the actual name of this Court throughout history. Althoug (...)
  • 7 This progression is vexed. Kay Daniels, for instance, described a “transition from penal settleme (...)

1The British settlement in Australia began as a penal outpost and consequently crime, criminals, and criminal justice are fundamental to its early history.1 The extent of illegal behaviours, and the regulation of moral turpitude, vices, and more vicious acts, has drawn sustained attention from historians and criminologists.2 However, the picture of crime in the earliest years after settlement remains incomplete. There is a dearth of quantitative analysis of crime trends during the first three decades of British colonial rule to complement a vast qualitative literature, though where applied it has proven useful at testing older theories.3 Moreover, the existing studies either present fragmentary data or begin decades after first settlement.4 Nonetheless, the utility of such data is widely recognised and has led to valuable digitisation efforts, notably Finnane and Piper’s Prosecution Project, which has made the records of state-based supreme courts from 1823 onwards readily accessible to researchers.5 This article presents new quantitative analyses of trends in serious crime derived from the records of the Court of Criminal Jurisdiction (hereafter: the Court),6 the primary court in colonial Australia between first settlement in 1788 and the formation of the state supreme courts in 1823. By so doing, it develops the picture of crime in the colony. More broadly, the data on crime helps trace the dramatic change over the first three decades after settlement from a highly-scrutinized prison environment to a fully-fledged settler-colonial society.7

  • 8 On the history of crime statistics in Britain see: Godfrey et al. (2008, p. 28-29).
  • 9 Notably by Byrne (1993) and previously by Alex Castles in his chapters on law in the colony from (...)
  • 10 “Australian Historical Population Statistics 2014”, Australian Bureau of Statistics (2016).
  • 11 These limitations have long bothered Australian historians. For example see Byrne (1993, p. 3-11)

2The statistical data from the Court are an untapped resource. The raw case files have long been available, but the trials themselves pre-date the general compilation of crime statistics in Britain and its colonies.8 Whilst many of the cases have been qualitatively examined,9 these statistics were not collated until comparatively recently and quantitative analysis has not been conducted. These data also potentially have greater explanatory power than in other circumstances. Compared to other places where similar data sets could be developed or already exist (e.g. Britain, the US, Germany, and France), the settler population in colonial Australia was tiny, rising from under 1,000 in 1788-90 to approximately the size of a small city (≈40,000) by 1823.10 Consequently, although a majority of serious cases were tried in the Court, the dataset is comparatively small. There are clearly limitations to these data that will be discussed,11 yet the small population and a single primary court mean the quantifiable data on serious crime is relatively contained, and useful conclusions can be drawn from it.

3Quantitative analysis is not a replacement for qualitative study. Rather, it provides another line of evidence contributing to a more complete picture of historic crime. But as will be discussed at the end of this article, developing a fuller account may require going beyond the complementary quantitative-qualitative methods employed by traditional social and quantitative historians. As a result, the article also intervenes into the ongoing debate around the differences between histories of crime and historical criminology. Long-standing methodological differences have in part facilitated an absence of quantitative data analysis in colonial Australia, but the approach taken here may offer a means of bringing the two disciplines closer together. It is argued that to better characterize this early colonial history, modern criminological theories must be retrospectively applied. And, in turn, the account of crime and societal development in colonial Australia presented here has implications for current criminological theory.

The Court of Criminal Jurisdiction: Function and Operation

  • 12 Collins (1804, p. 13).
  • 13 Wise, Roberts (2016, p. 35-37).

4When the British First Fleet arrived in Sydney Cove in January 1788, it was to establish a colony for primarily penal purposes. Only approximately half of the people arriving were convicts, however, and for many of the earliest settlers  including the prisoners, their overseers, and their respective families  the colony heralded a new beginning. Especially for the convicts, there was only a vague prospect of making the nine-month return journey to Britain. It quickly became evident that a sentence of seven years transportation effectively condemned the convicted to life on the other side of the world. But, due to its penal nature, the entirety of the new colony was closely guided by a set of formal directives regarding the establishment and operation of governmental, judicial, and military systems.12 For judicial practice, Lieutenant Governor David Collins was provided with directives that included the 1787 Charter of Justice, which decreed that the common and statutory law of Britain would be applied to the colony.13

  • 14 Woods (2002, p. 21-28).
  • 15 It is important to note that there was some debate over exactly how the law was to be applied in (...)
  • 16 Collins (1804, p. 28).

5According to G. D. Woods,14 although Collins was supplied with the basic framework for extending British law to the colony, he was provided with very little guidance regarding its actual implementation beyond his formal appointment as the Deputy Judge-Advocate (though the title “Deputy” was rarely used).15 As a result, Collins opted to establish and implement three courts of judicial inquiry: Court of Criminal Jurisdiction, Civil Court, and Vice-Admiralty Court. The Civil Court dealt with issues related to the resolution of perceived grievances between parties on a variety issues including “pleas of lands, houses, debts, contracts, and all personal pleas whatsoever”, while the Vice-Admiralty Court was established to rule over “any offences committed upon the high seas”. These two Courts sat only intermittently and there is little doubt that the Court of Criminal Jurisdiction (the Court) was the most active of the judicial agencies.16

  • 17 Collins (1804, p. 27).
  • 18 Tench (1996, p. 49).
  • 19 Hughes (1987, p. 91).

6Until the Supreme Court was established in 1823, the Court acted as the trier of fact for all serious criminal offences throughout the colony and, according to Collins, “had the power to inquire of, hear, determine, and punish all treasons, misprisions of treasons, murders, felonies, forgeries, perjuries, trespasses and other crimes whatsoever”.17 It was composed of the Deputy Judge-Advocate and six “officers of the sea and land service”, who were appointed as needed. The first sitting occurred barely two weeks after landfall on 11 February 1788, and resulted in the conviction of three men for various crimes. Punishments included lashes and banishment to an isolated island.18 The second sitting on 27 February was notable for the trial of Thomas Barrett who was found guilty of stealing government stores and was sentenced to death. His execution took place only hours later and represents the first formal imposition of capital punishment in the colony.19

  • 20 Its name varied occasionally. For example, in 1813 Judge Advocate Jeffrey Bent re-named it the Su (...)
  • 21 Barker (1992, p. 48-49).

7The Court continued to sit as needed until 1823 and its basic mandate remained the same, though its character changed as the colony grey and spread.20 It was primarily located in Sydney (then known as Botany Bay), but as new settlements were established it also travelled. Eventually, additional branches were established at Norfolk Island and Van Diemen’s Land (Tasmania). By 1823, a travelling Court with local branches was no longer sustainable and, in July, the NSW Judicature Act dissolved the Court. The Supreme Court of NSW replaced the original court in October 1823 and the Supreme Court of Van Diemen’s Land followed in May of 1824.21

Crime in Early Colonial Australia

  • 22 Finnane (1987); Finnane (1994); Neal (1991, p. 5-7); Philips (1991).
  • 23 For example Damousi (1997); Garton (1991).
  • 24 Hirst (1983); Wise, Roberts (2016).
  • 25 Hill (2009); Hughes (1987); Keneally (2006).
  • 26 Wise, Roberts (2016, p. 43).

8Given that the Court had jurisdiction over most serious offences, its records provide valuable insight into the nature of crime and criminal justice in the colony during its three-and-a-half decade existence. The prosecution records also provide a useful basis for quantitative analysis. Given the nature of the settlement, scholars have long been understandably intrigued by crime and policing in the colony.22 It was notably the topic of a special issue of the Australian and New Zealand Journal of Criminology in 1991. There is, however, a dearth of quantitative sociological analysis to complement the extensive qualitative historical research. Historians have largely focused on two important topics, the convict experience23 and the rapid transformation within the first three decades after British settlement of the New South Wales (hereafter: NSW) colony from an open-air prison to a fully-fledged society.24 Alongside scholarly analysis, lurid descriptions of daily struggle, brutality, and near starvation have proliferated in popular narratives.25 As a consequence, a picture of rampant and worsening crime has emerged in both the scholarly and popular histories. Jenny Wise and David Roberts, for instance, contend that Britain’s great Australian experiment in colonial penology resulted in “crime rates… dramatically increasing… during the first half of the 19th Century”.26

  • 27 Wise, Roberts (2016, p. 35).
  • 28 Collins (1804, p. 2).
  • 29 Mann (1811, p. 4-5).
  • 30 White (1790, p. 177-178).
  • 31 Hill (2009, p. 173-177).
  • 32 Hughes (1987, p. 102).
  • 33 Butlin (1994, p. 11-12).

9Wise and Roberts follow an established narrative derived from the cultural, social, and legal contexts within which the early colony was formed, and which in turn make extensive crime appear almost inevitable.27 These include the explicitly penal nature of the colony and starvation in the first years. Observer accounts tend to support this picture. Collins, for instance, describes a veritable crime spree throughout the fledgling colony in 1789, “where scarcely a night passed” without a “garden being robbed, or a house broken into”.28 For the colony’s administration, the solution was harsher punishment. According to early historian David Dickenson Mann, “some stronger measures” of punishment were required to curtail crime.29 Chief naval surgeon in the colony John White hoped such measures would, “change [convicts’] conduct”.30 Such testimony has long shaped the historical narrative. Popular author David Hill aligns crime during the early years with the desperate conditions.31 His illustration pales in comparison to Robert Hughes’ famously purple language describing the increase of already “draconic” punishments in response to crime by “starving” people in the colony.32 More tempered historians still write of escalating crime and harsher punishments in response.33

  • 34 Cohen (1985); Davies (1991).
  • 35 Grabosky (1974, p. 29).
  • 36 Grabosky (1974, p. 29).
  • 37 Grabosky (1974, p. 34).
  • 38 Grabosky (1974, p. 32).
  • 39 Grabosky (1974, p. 38-9).
  • 40 Garton (1991).

10But as Cohen and Davies previously noted, these essentially quantitative claims about crime remain largely untested with quantitative methods.34 Questions therefore remain about how to empirically ground characterisations of early colonial crime. When Grabosky first attempted to characterize crime quantitatively during the colony’s first three decades he noted that  up to that point at least  scholars had tended to “forego attempts at quantitative analysis” because the records were too fragmentary.35 He made a valiant effort to amend this blind spot, though in the end was only able to chart “serious aggressive crime” and “serious acquisitive crime” for the period 1810 to 1820, though he still found the state of the records near impossible writing: “bluntly, data which would permit a precise mapping of criminality over time do not exist.”36 He presented no data for 1788 to 1809. He did however contradict the worsening crime narrative by showing that the available data suggested the rate of crime (per 1,000 population) was higher prior to 1835 than afterwards.37 He argued that the downward trend was “typical of most Western industrial societies” during the nineteenth and twentieth centuries. Moreover, the rate of “serious crimes against the person” fell sharply after the end of transportation in 1840, such that we can infer retrospectively that a proportionally large convict population contributed to high rates of criminality, particularly violence.38 In addition, a proportionally high number of men contributed to higher rates of crime, both against the person (i.e. violence) and against property.39 Such reasoning fitted with the popular “convict class” ideas that prevailed in the eighteenth and nineteenth centuries.40

  • 41 Byrne (1993, p. 3).

11The scholarly landscape has changed considerably since Grabosky’s study. Access to the Court’s records improved in the late 1970s and 1980s. Although not nearly as advanced as Finnane and Piper’s (2016) project of digitizing court records, the archivists did record the name of each person charged and the nature of the charges laid for over 2,000 cases from 1788 to 1823, which provides a basis for quantitative characterizations of crime. Unfortunately, they did not record convictions or punishments. Nonetheless, no attempt to use this data for quantitative analysis has been made, though other scholars have drawn on the Court’s records. Historian Paula J. Byrne undertook an extensive qualitative study of them, though despaired of using them to construct a complete database of colonial crime due to “the ‘grey area’ of crimes, which do not appear before the courts”.41 She therefore eschewed the effort entirely.

  • 42 Rossmo, Routledge (1990); Messner (1984); Skogan (1977).
  • 43 Hope et al. (2005); Lachs et al. (2008).
  • 44 Block, Block (1984); Johnson (2005).
  • 45 Kehoe, Kehoe (2016, p. 75-76, 2017). Essentially, historical cases present a more extreme version (...)
  • 46 Rude (1985).
  • 47 Byrne (1993).
  • 48 Philips (1977, p. 45).

12Fragmentary data and the “grey”  or “dark”  number are obstacles well known to criminologists.42 Scholars have attempted to estimate unreported crimes in the present day through tracking repeat offenders and police-citizen interactions43 and using victim surveys.44 Such complementary approaches are rarely available to scholars of historical crime.45 For most historical crime we must often be, as George Rude argues, content with charting its contours across time and its apparent social effects.46 Despite Byrne’s concerns, the Court’s records do provide a formally documented basis for a database that can complement qualitative research.47 This database will never be complete, as she laments, though no dataset on crime is ever so. And importantly, a similar approach to characterising past crime was advocated by Philips in his study of Victorian England.48

  • 49 For an explanation of this “police knowledge” measure see Aldous (1997, p. 217).
  • 50 For example see Edwards (1999, p. 42).

13There are additional caveats in the available data that should also be considered. Not all the accused were convicted, but given the aim here is to characterise criminality, the charges laid can be used as an approximate index of the number of crimes about which authorities were aware, even if the perpetrator was never caught and convicted.49 Charges as an indicator of historic crime rates has been used extensively including, for example, for characterizing crime during the pre-policing era in the United Kingdom.50 Even though this indicator may only reveal the tip of an iceberg, it can be used to more accurately chart the distribution and trends in crimes of different types that occurred in the rapidly changing colony.

Quantifying Serious Crime using the Court of Criminal Jurisdiction Records

14The following records were used by state archivists to compile the list of charges laid: “Minutes of Proceedings”, “Miscellaneous Criminal Papers”, “Informations, depositions, and related papers”, and “Returns of Prisoners Tried”. Each of these collections is fragmentary and almost surely (as the archivists admit in the document preface) incomplete. Nonetheless, together these records yielded a list of 2,317 persons charged, which includes individuals charged on multiple occasions, but does not duplicate individuals charged with multiple offences during a single incident.

  • 51 Sturma (1983).

15The focus on “serious” crimes: The court notionally focused on serious crimes, though as reflected in its records, even comparatively minor offences were heard. As such, the Court’s records provide the foundational data for quantitative assessment of crime trends in the early colony. In so doing, this article follows Michael Sturma’s quantitative approach.51 He examined offences charged in the colonial Supreme Courts later in the nineteenth century. These courts took the place of the Court and the present authors therefore aimed to create a data set that aligned with his, albeit roughly.

  • 52 For discussion see Palermo et al. (2014); Skogan (1977).

16The use of charges as a measure of “police knowledge” of crime: The totality of charges provides a rough account of how many offences were known to authorities and therefore can be used a measure of “police knowledge”, which goes some way to limiting the differential between the offences that appeared in official record and the full amount of crime, which is a consistent problem in characterising historic crime where victim surveys and other complementary methods are unavailable. (The problem of the “dark number” for all offences is well known and does not bear repeating here).52

  • 53 Morgan, Weatherburn (2006).

17Categorisation of types of charges: For this study, the standard criminological categories for offences were used. Specifically: “Against the person” and “Against property”.53 Crimes against the person included charges of murder, assault, sexual offences, and armed robbery (theft directly from a person). Crimes against property included theft, burglary, fraud, and other similar serious offences not involving direct involvement of a personal victim during the criminal act.

18The authors also subdivided some key charges and charted these as well, particularly cases of civil suit and forgery, in order to separate out non-serious offences, and highway robbery and bushranging, so as to track the rise of these distinctly Australian frontier crimes.

19Where the offense could not be determined, it was listed as unknown. Crimes like forgery that did not fall in the above categories and occurred rarely, minor offences, and those cases where the charges are not known, were classified together in a third category as “miscellaneous crimes”.

  • 54 Data were analysed using the Statistical Package for the Social Sciences (SPSS) Version 24.0.

20Raw trends: To explore the distribution of the raw number of charges laid between 1788 and 1823, the annual frequency of each type of charge for the entire period was calculated.54 The raw number of charges was also compared for men and women, and independent and group crimes. In addition, we examined whether there were differences in the raw number of charges for each type of charge across each Judge Advocate that served during the period 1788-1823. Figure 1 shows a plot of the frequency of each type of charge as a function of year.

21A standardised value to assess the crime in the population: The raw frequencies were converted into a rate per 100,000 (of population) by dividing the number of charges for each type of charge in a given year by the total population for that same year, and then multiplying this value by 100,000. The distributions of these rates on a year-by-year basis are plotted in Table I and Figure 1.

Results of the Quantitative Analysis of the Court of Criminal Jurisdiction Data

22Trends in the raw charges over time: During the period between 1788 and 1823, a total of 2,317 charges were laid. Men were charged in 2,103 (90.8%) versus women in 214 cases (9.2%). Of all the charges, 932 (40.2%) were independent crimes involving one defendant.

23The most common type of charge was for a crime against property (65.2%), followed by a crime against the person (21.5%). As can be seen in Table I, no other type of crime (miscellaneous crime, civil suit, unknown, forgery, highway robbery, bushranging) exceeded more than 5% of the total number of charges.

Table I. Total Number of Charges by Type.

Type of Charge

N

%

Crime against the person

499

21.5

Crime against property

1510

65.2

Miscellaneous crime

113

4.9

Civil Suit

15

0.6

Unknown

41

1.8

Forgery

53

2.3

Highway Robbery

77

3.3

Bushranging

8

0.3

Note: There was one charge with a missing type.

Figure 1. Total Number of Charges between 1788 and 1823.

24The total number of charges laid per year was relatively stable between 1788 and 1808, though there was a substantial increase in the total number of crimes per year from 1809 to 1823 (see Figure 1).

  • 55 The first mention of “bushranger” is in a hearing from 3 December 1819 against Dennis McDaniel wh (...)

25An inspection of the specific charge types displayed in Figure 2 shows the pattern for the number of charges per year from 1788 and 1823 is consistent with the distribution of crimes against the person or property, with an increase in the less frequent charges such as highway robbery and bushranging toward the end of the period examined.55

26Trends in the rate of crime over time: Although the total number of charges for the different types of crimes is presented above, such statistics are commonly reported as a rate per 100,000 in the population in order to assess the crime rate in a changing population. This calculation can be seen in Figure 3. With a high rate of crime (per 100,000) in 1788 and 1789, perhaps due to a small population of just 645 people in 1789, the median rate for total number of charges between 1788 and 1823 was 431 per 100,000 in the population, with rates varying from 85 to 3,725 per 100,000.

Figure 2. Total Number of Charges by Type between 1788 and 1823.

Figure 2. Total Number of Charges by Type between 1788 and 1823.

Figure 3. Rate of Total Number of Charges per 100,000 in the population between 1778 and 1823.

27The rate of different types of charges can be seen in Figure 4.

Figure 4. Rates of Different Types of Charges per 100,000 in the population between 1788 and 1823.

28Gender Division: Although there was only a total of 214 female offenders charged over the course of the time-period examined, the number of female offenders grew over time in line with the steady increase in the population and the number of cases heard by the court. This growth is commensurate with a developing and diversifying colony.

  • 56 Appendix A: Schedule of Persons Tried, 1788-1815, n.d., p. 105.
  • 57 Moses (2000); Rogers, Bain (2016).
  • 58 Kercher (1995).
  • 59 Barker (1992).

29Aboriginal offenders: Aboriginal offenders are noticeably absent. Though some of the accused may have been Aboriginals, there are no clear indications of aboriginal defendants in the available data. In 1822, Seth Hawker and Catherine Overhand were tried for murdering an aboriginal girl56 and we know from the wealth of literature on colonial Australia that there was considerable and often brutal contact between the settlers and the aboriginal population.57 Bruce Kercher has previously demonstrated that Terra Nullius did not totally exclude Aboriginals from consideration in colonial law during the first decades after European settlement.58 As such, we would perhaps expect to see at least a few non-European defendants. However, Aboriginals were believed to lack the religion and morals necessary for admittance into British society and were not permitted to give testimony before the court.59 Consequently, their low rate of appearance before the Court is in keeping with their being considered aliens or, worse, part of the native fauna.

30Analysing the Trends in Serious Crime, 1788  1823: Cursory analysis of the raw data from the Court of Criminal Jurisdiction suggests a steadily worsening crime problem, especially after 1808. As the raw data show, the absolute number of charges laid against defendants in the Court was relatively stable for the first 20 years after settlement. Charges then increased consistently across nearly every subsequent year until the court was dissolved in 1823.

31The picture looks different however, when the charges are converted to a rate in population. The rate of charges was highest at the beginning of settlement before falling precipitously to lows in the early 1790s, rising again towards the end of the decade to approximately one-third of their absolute highest point in 1788, and then dropping again. Whilst acknowledging considerable fluctuation from year to year, after 1799 the rate of charges for serious offences (both against the person and against property) was comparatively stable when compared to the colony’s first decade, and certainly against the earliest years 1788 to 1790. After an unstable first decade of settlement, what could initially appear as a worsening crime problem may reflect a relatively stable rate of charges in a growing population.

32Even though the rate of charges was high in the earliest years of settlement, many of them were for offences now considered relatively mild. In 1788, minor thefts such as “stealing bread”, “stealing planks”, and “stealing flour” were more common than the more serious offense of “burglary”. Though seemingly petty, such crimes were no doubt viewed in a different light given the shortages of food and other supplies during the early years of the settlement. But the charges laid in the Court a decade later were more typically serious when considered through the lens of a more stable, affluent colony. For instance, on 11 March 1799, four men were charged with “Burglary of a warehouse… and stealing tobacco”. Such differences highlight the variance between legal assessments of the severity of criminality versus those of public perception, which are often more deeply affected by context.

  • 60 Appendix A: Schedule of Persons Tried, 1788-1815, n.d., p. 6.

33During the early years, what constituted violent crime was similarly mild when compared to the later years. A gang murdered Thomas Bulmore in 1788, but the other charges for violent offences were for assault and “abuse”, though the meaning of the latter charge is unclear.60 Eight years later, charges for murder and rape were more frequently laid.

  • 61 “Australian Historical Population Statistics 2014”, Australian Bureau of Statistics (2016).
  • 62 Johnson (2010, p. 3-4).
  • 63 White (1970, p. 15-16).

34By the early 1820s, both offences against the person and against property acquired a more distinctly modern character. The colony had grown from 1,336 British convicts, guards, and administrators in 1788 into a population of 40,000 Europeans spread across a far larger portion of what became Australia.61 In this new era, charges for offences against property still vastly exceeded those for crimes against the person; but the grander scale of these non-violent offences is significant. The quantity of items stolen was typically more substantial in later years than during the earliest period after settlement. Thirty years on, theft of entire herds of cattle was not unheard of. “Highway robbery”, which gave way to a preference for the uniquely Australian charge of “bushranging”, had become more common. Though essentially the same crimes, bushranging had a distinctly Australian character resulting from the colony’s penal origins and a very different antipodean environment. Nearly all bushrangers were ex- or escaped convicts who fled to harsh rural areas beyond the easy reach of the law and committed crimes to survive.62 Consequently, by the end of the period examined, bushranging had become a well-known feature of rural life and the standard charge laid.63

  • 64 “Australian Historical Population Statistics 2014”, Australian Bureau of Statistics (2016).
  • 65 Daniels shows that attitudes towards convict women and “prostitutes” were complex and nuanced, bu (...)

35Prosecutions for rape and assault on women and young girls were also more common by the 1810s. A growing female population and the birth of a new generation of white settlers who could become victims of crime likely partly explains this increase. However, by 1823, the population remained approximately 75% men (30,206 men versus 10,426 women).64 Consequently, this change may also reflect profound changes in the colony’s social and legal dynamics that, as Daniels and Damousi have each shown, made women more willing to report crimes, and the criminal justice system more likely to take them seriously and lay charges against offenders.65 Such changes reflect societal transformation, just as the growth in the number of women and girls also meant a higher proportion of female offenders. Taken together, more serious offences of all types, along with more female victims and offenders are commensurate with a society rapidly growing and diversifying from a penal settlement into a fully-fledged settler colony.

From Prison to Society

  • 66 Wise, Roberts (2016).

36There are two interesting features of the quantitative data presented above. First, there is, overall, a steady improvement in rates of crime. Secondly, however, this improvement follows an initial period of turbulence during the first decade after settlement (1788-1799). The picture from 1800 onwards counters the idea that crime “escalated” in any meaningful sense during the early nineteenth century. Rather, the raw number of incidents appears to have increased, but only insofar as the population grew and demographics changed. The initially high rates of crime during the first decade runs directly counter to existing narratives of later crime escalation, though also seems to correspond with the observations of contemporaries. But valid questions remain about what is shown by a high rate of charges during this early period. Does it suggest more crime and a more criminalised society reflective of an (albeit disputed) idea of a “convict class”? Or conversely, should we assess these data through the lens of penology as Roberts and Wise suggest?66 Was prosecuted crime a function of greater official scrutiny?

  • 67 Byrne (1993).
  • 68 Ambrey et al. (2014, p. 877-896); O’Connell and Whelan (1996, p. 179-195).
  • 69 Dykstra (2009, p. 321-347).

37Resolving these problems and best contextualizing the data from the Court requires adopting a complementary methodology that includes traditional historical practices, quantitative analyses, and the application of theoretical frameworks of the sort used by sociological criminologists. For instance, the historical materials including archival documents and observer diaries used by historians like Byrne offer invaluable insight into particular incidents and, more broadly, into how people perceived crime at the time.67 But an extensive criminological literature demonstrates that perceptions of crime rarely accurately reflect the reality. People tend to inflate crime rates and overestimate the frequency of serious incidents.68 Such distorted perceptions can filter into historical analysis, as Dykstra persuasively argues in relation to a presumed high rate of murder on the American frontier in the nineteenth century, which in turn supported an untenable narrative of crime having occurred at society-crushing levels.69

  • 70 Godfrey et al. (2008, p. 21); Sharpe (2014, p. 59-63).
  • 71 Sturma (1983, p. 6). On this historiography see Innes and Styles (1986).
  • 72 Monkkonen (2002, p. 45).

38A truly complementary method must incorporate a current theoretical lens to more accurately characterise historic crime and avoid such pitfalls as the perception versus reality problem. Scholars of historic crime  whether calling themselves historians of crime or historical criminologists  have come to recognise the benefits of a complementary methodology.70 In a study of nineteenth century criminality in Australia, Sturma argues for combining statistics and qualitative reports because it is too easy to infer more dramatic trends from contemporary impressions or spectacular cases,71 but quantitative analysis is also unsatisfactory on its own. As Monkkonen points out, crime statistics are one form of historical data and cannot be treated as “transparent” reflections of reality, but as another “opaque” piece of an overall puzzle,72 (He made this point with particular clarity around homicide rates in history, noting that the complementary information such as population size is often unknown.)

  • 73 Monkkonen (2002); Sturma (1983).
  • 74 For a valuable classic study see: Bonnell (1980).
  • 75 Foucault (1995).
  • 76 Godfrey, Lawrence (2005, p. 73, 76-77).

39Monkkonen’s argument highlights the limitations of Sturma’s social historical approach.73 Social historians have traditionally avoided the retrospective application of theory on the basis that current theories are not necessarily applicable to the different social and cultural contexts in the past.74 Whilst scholars must tread carefully applying theory as a means of characterizing the past, eschewing it completely is unnecessarily limiting. For instance, theories of penology and hyper-surveillance help explain why there was a higher rate of offences per population in the early years of the colony. Michel Foucault most famously drew on Jeremy Bentham’s discussion of the panopticon to characterize so-called “disciplinary” societies in which authorities observe, regulate, and normalize behaviours as a matter of course.75 His was a broad theory about modern, complex, and diversified societies in which such systems are emergent and omnipresent in otherwise innocuous structures. However, the prison imagery is less metaphoric when applied to the early colony at Sydney Cove where the aim was expressly penal and, as Godfrey and Lawrence point out in their brief history of changing modes of punishment, not necessarily guided by humanitarian concerns. Instead, in the new antipodean penal colony, administrators overtly sought to coerce desired behaviours through regulation and harsh punishment.76

  • 77 Garton (1991).
  • 78 For population statistics see “Australian Historical Population Statistics 2014”, Australian Bure (...)

40Reconceptualised as a prison first and a settlement second, the data from the Court become somewhat easier to explain. Conditions in the early settlement including low rations and its penal nature almost certainly warped perceptions of crime. The idea that convicts were more prone by nature to criminality existed amongst the colony’s administration and their assessments shaped the historical concept of a “convict class”.77 But given the small population in the colony in 1788, 1789, and 1790 (859-following departure of the First Fleet ships; 645 in 1789; 2,056 in 1790), it may be that criminal incidents were far more easily detected, a situation that no doubt changed as the population grew and spread out from a small conclave in Sydney Cove to a series of semi-independent settlements spread over thousands of kilometres.78

  • 79 For a classic study of British prisons see DeLacy (1981, p. 182-216).
  • 80 “Australian Historical Population Statistics 2014”, Australian Bureau of Statistics (2016).

41As in any contemporary prison, the inhabitants were closely monitored and small deviations from established norms were assertively curtailed.79 Very little of a serious nature goes unobserved, meaning that even minor breaches result in prosecutions and recorded data. The colony changed rapidly by 1800, however. It had expanded in size to 5,217 and a settlement expressly for prison purposes had been founded on Norfolk Island.80 The original settlement had spread considerably beyond its initial location in Sydney Cove. Through the next decade a new colony was established in Van Diemen’s Land (Tasmania) in 1803 and the overall population continued to grow. These developments diluted the penal nature of the society and, moreover, the ability of colonial administrators to observe the colonists, convict and free alike. A strict regime of laws and punishments remained, but offences became harder to detect, and perpetrators more difficult to identify and locate.

Conclusions and Future Directions

  • 81 Philips (1977, p. 44-45).

42This article has presented new quantitative data on crime in colonial Australia drawn from the records of the sole court that adjudicated serious offences, The Court of Criminal Jurisdiction. When assessed as a rate in population, these new data reveal a turbulent first decade with a high rate of offences that steadied by the turn of the nineteenth century and thereafter tracked the growth in population. A complementary analysis allows us to better interpret these findings. Rather than suggesting the overtly criminalised society that some contemporary observers suggest, the data instead point to a highly scrutinised penal community in which very little escaped observation by authorities and which in turn criminalised minor breaches of the law as severe deviance. As British settlement in Australia grew and diversified in later years, crime began to look more like it did elsewhere in Victorian Britain, with authorities focusing more acutely on the serious breaches of the peace, whilst their interest in and more ability to police more minor offences  important to social control in a prison system  receded.81 Of course, the historical record would benefit from further study into the unknown rate of criminality and the particular relationship between the penal nature of the colony and people’s behaviour.

43These conclusions derive from an approach to the study of crime in the past that draws together historical and historical criminological methods, the divergence of which has in the past limited scholars’ ability to better characterize this history. The colonial Australia case study shows that a complementary method drawing on the qualitative and quantitative methods employed by social historians and interpreted through the lens of theory can offer new avenues for knowledge advancement. But further efforts should be made to interrogate this relationship between histories of crime and criminology. Nonetheless, when a complementary lens is applied, the data presented here suggest we think of crime during the first decades after settlement as reflective of a progression from prison to a diversified colony.

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Bibliographie

Aldous, C., The police in occupation Japan: control, corruption, and resistance to reform, London, Routledge, 1997.

Allen, M., Policing a free society: Drunkenness and liberty in colonial New South Wales, History Australia, 2015, 12, 2, p. 144-165.

Allen, M., The myth of the flogging parson: Samuel Marsden and severity of punishment in the age of reform, Australian historical studies, 2017, 48, 4, p. 486-501.

Ambrey, C.L., Fleming, C.M., Manning, M., Perception or reality, what matters most when it comes to crime in your neighbourhood?, Social indicators research, 2014, 119, 2, p. 877-896.

Australian and New Zealand journal of criminology, 1991, 24, 2, p. 65-168.

Barker, A.W., What happened when: a chronology of Australia 1788-1990, Sydney, Allen & Unwin, 1992.

Block, C.R., Block, R.L., Crime definition, crime measurement, and victim surveys, Journal of social issues, 1984, 40, 1, p. 137-159.

Bonnell, V.E., The uses of theory, concepts and comparison in historical sociology, Comparative studies in society and history, 1980, 22, 2, p. 156-173.

Brame, R., Paternoster, R., Missing data problems in criminological research: two case studies, Journal of Quantitative Criminology, 2003, 19, 1, p. 55-78.

Butlin, N.G., Forming a colonial economy: Australia 1810-1850, Cambridge, Cambridge University Press, 1994.

Byrne, P.J., Criminal law and colonial subject, New South Wales 1810-1830, Cambridge, Cambridge University Press, 1993.

Castles, A.C., The reception and status of English law in Australia, The Adelaide law review, 1963, 2, p. 1-31.

Castles, A.C., An Australian legal history, Sydney, The Law Book Company Ltd., 1982.

Cohen, S., Visions of social control. Crime, punishment, and classification, Cambridge, Polity Press, 1985.

Collins, D., An account of the English colony in New South Wales, from its first settlement in January 1788 to August 1801, London, 1804.

Damousi, J., Depraved and disorderly: Female convicts, sexuality and gender in colonial Australia, Cambridge, Cambridge University Press, 1997.

Daniels, K., Prostitution in Tasmania during the transition from penal settlement to “civilised” society, in Daniels, K. (Ed.), So much hard work: women and prostitution in Australian history, Sydney, Fontana Books, 1984.

Daniels, K., Convict women, Sydney, Allen & Unwin, 1998.

Davies, S., Vagrancy and the Victorians: The social construction of vagrancy in Melbourne 1880-1907, The University of Melbourne, PhD Thesis, 1991.

DeLacy, M.E., Grinding men good? Lancashire’s prisons at mid-century, in Bailey, V. (Ed.), Policing and punishment in nineteenth century Britain, London, Croom Helm, 1981.

Dykstra, R., Quantifying the wild west: the problematic statistics of frontier violence, The western historical quarterly, 2009, 40, 3, p. 321-347.

Finnane, M. (Ed.), Policing in Australia historical perspectives. Sydney, University of New South Wales Press, 1987.

Finnane, M., Police and government — Histories of policing in Australia, Oxford, Oxford University Press, 1994.

Finnane, M., Piper, A., The prosecution project: understanding the changing criminal trial through digital tools, Law and history review, 2016, 34, 4, p. 873-891.

Foucault, M., Discipline and punish: the birth of the prison, New York, Vintage Books, 1995.

Garton, S., The convict origins debate: historians and the problem of the “criminal class”, Australian and New Zealand journal of criminology, 24, 2, 1991, p. 66-82.

Godfrey, B., Cox, D.J., “The last fleet”: crime, reformation, and punishment in Western Australia after 1868, The Australian and New Zealand journal of criminology, 2008, 41, 2, p. 236-258.

Godfrey, B.S., Lawrence, P., Crime and justice, 1750-1950, Devon, Willan Publishing, 2005.

Godfrey, B.S., Williams, C.A., Lawrence, P., History & crime, London, Sage Publications, 2008.

Hill, D., 1788. The brutal truth of the First Fleet. The biggest single overseas migration the world had ever seen, North Sydney, Random House, 1987.

Hirst, J.B., Convict society and its enemies: a history of early New South Wales, Sydney, Allen & Unwin, 1983.

Hope, V.D., Hickman, M., Tilling, K., Capturing crack cocaine use: estimating the prevalence of crack cocaine use in London using capture recapture with covariates, Addiction, 2005, 100, 11, p. 1701-1708.

Hughes, R., The fatal shore. A history of the transportation of convicts to Australia 1787-1868, London, Collins Harvill, 1987.

Innes, J., Styles, J., The crime wave: Recent writing on crime and criminal justice in eighteenth-century England, Journal of British studies, 1986, 25, 4, p. 380-435.

Johnson, M.P., Domestic violence: it’s not about gender-or is it?, Journal of marriage and family, 2005, 67, 5, p. 1126-1130.

Johnson, M., Australian bushrangers: law, retribution, and the public imagination, in Lincoln, R., Robinson, S. (Eds.), Crime over time: temporal perspectives on crime and punishment in Australia, Newcastle upon Tyne, Cambridge Scholars Publishing, 2010.

Kehoe, T.J., Kehoe, E.J., Crimes by US soldiers in Europe, 1945-1946, Journal of interdisciplinary history, 2016, 47, 1, p. 53-84.

Kehoe, T.J., Kehoe, E.J., A reply to Dykstra’s evident bias in “Crimes committed by US soldiers in Europe, 1945-1946”, Journal of interdisciplinary history, 2017, 47, 3, p. 385-396.

Keneally, T., The commonwealth of thieves: The story of the founding of Australia, London, Chatto & Windus, 2006.

Kercher, B., Alex Castles on the reception of English law, Australian journal of legal history, 2003, 7, p. 37-45.

Lachs, M., Bachman, R., Williams, C., Kossack, A., Bove, C., O’Leary, J., Older adults as crime victims, perpetrators, witnesses, and complainants: a population-based study of police interactions, Journal of elder abuse & neglect, 2004, 16, 4, p. 25-40.

Monkkonen, E.H., Crime, justice, history, Columbus, OH, The Ohio State University Press, 2002.

Messner, S.F., The “dark figure” and composite indexes of crime: some empirical explorations of alternative data sources, Journal of criminal justice, 1984, 12, 5, p. 435-444.

Moses, A.D., An antipodean genocide? The origins of the genocidal moment in the colonization of Australia, Journal of genocide research, 2000, 2, 1, p. 89-106.

Morgan, F., Weatherburn, D., The extent and location of crime, in Goldsmith, A., Israel, M., Daly, K. (Eds.), Crime and justice: A guide to criminology, Sydney, Lawbook Co., 2006.

Neal, D., The rule of law in a penal colony: Law and power in early New South Wales, Cambridge, Cambridge University Press, 1991.

O’Connell, M., Whelan, A., The public perception of crime prevalence, newspaper readership and “mean world” attitudes, Legal and criminological psychology, 1996, 1, p. 179-195.

Palermo, T., Bleck, J., Peterman, A., Tip of the iceberg: reporting and gender-based violence in developing countries, American journal of epidemiology, 2014, 179, 5, p. 602-612.

Philips, D., Crime and authority in Victorian England, London, Croom Helm, 1977.

Philips, D., A nation of rogues? Recent writings on crime, law, and punishment in Australian history. Australian and New Zealand journal of criminology, 1991, 24, p. 161-166.

Philips, D., Davis, D., Nation of rogues? Crime, law and punishment in colonial Australia, Melbourne, Melbourne University Press, 1994.

Rogers, T.J., Bain, S., Genocide and frontier violence in Australia, Journal of Genocide Research, 2016, 18, 1, p. 83-100.

Rossmo, D.K., Routledge, R., Estimating the size of criminal populations, Journal of Quantitative Criminology, 1990, 6, 3, p. 293-314.

Rude, G., Criminal and victim: crime and society in early nineteenth-century England, Oxford, Oxford University Press, 1985.

Sharpe, J.A., Crime in early modern England, 1550-1750, London, Routledge, 2014.

Skogan, W.G., Dimensions of the dark figure of unreported crime, Crime and delinquency, 1977, 23, p. 41-44.

White, C., History of Australian bushranging, Hawthorn, Victoria, L. O’Neil, 1970.

White, J., Journal of a voyage to New South Wales, London, 1790.

Wise, J., Roberts, D., Development of crime and the criminal justice system in Australia, in Harkness, A., Baker, D., Harris, B. (Eds.), Locating crime in context and place: Regional and rural perspectives, Sydney, Federation Press, 2016.

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Notes

1 Wise, Roberts (2016).

2 See Allen (2015); Allen (2017); Grabosky (1974); Philips, Davis (1994); Wise, Roberts (2016).

3 See Godfrey, Cox (2008).

4 Grabosky (1974); Sturma (1983).

5 Finnane, Piper (2016).

6 There appears to be some confusion over the actual name of this Court throughout history. Although the 1787 Charter of Justice commanded that a Court of Criminal Jurisdiction be established in the new colony, Collins opted to name the institution as the “Court of Criminal Judicature”. For purposes of consistency, we have opted for the more commonly used “Court of Criminal Jurisdiction”.

7 This progression is vexed. Kay Daniels, for instance, described a “transition from penal settlement to [so-called] ‘civilized’ society” see Daniels (1984).

8 On the history of crime statistics in Britain see: Godfrey et al. (2008, p. 28-29).

9 Notably by Byrne (1993) and previously by Alex Castles in his chapters on law in the colony from 1788-1823 and, particularly on the Court of Criminal Jurisdiction. See Castles (1982, chapters 3-4).

10 “Australian Historical Population Statistics 2014”, Australian Bureau of Statistics (2016).

11 These limitations have long bothered Australian historians. For example see Byrne (1993, p. 3-11).

12 Collins (1804, p. 13).

13 Wise, Roberts (2016, p. 35-37).

14 Woods (2002, p. 21-28).

15 It is important to note that there was some debate over exactly how the law was to be applied in NSW. According to Alex Castles formative 1963 paper, its status as a penal settlement and the plenary powers of the governor made NSW some what different for the application of law from other “settled” colonies, though essentially believed that the law largely extended from Britain. See: Castles (1963, p. 2-3). Bruce Kercher later saw Castles’ view as a “product of its time”, noting that he failed to consider Aboriginals and other context-specific issues that affected the law: Kercher (2003, p. 37-38).

16 Collins (1804, p. 28).

17 Collins (1804, p. 27).

18 Tench (1996, p. 49).

19 Hughes (1987, p. 91).

20 Its name varied occasionally. For example, in 1813 Judge Advocate Jeffrey Bent re-named it the Supreme Court.

21 Barker (1992, p. 48-49).

22 Finnane (1987); Finnane (1994); Neal (1991, p. 5-7); Philips (1991).

23 For example Damousi (1997); Garton (1991).

24 Hirst (1983); Wise, Roberts (2016).

25 Hill (2009); Hughes (1987); Keneally (2006).

26 Wise, Roberts (2016, p. 43).

27 Wise, Roberts (2016, p. 35).

28 Collins (1804, p. 2).

29 Mann (1811, p. 4-5).

30 White (1790, p. 177-178).

31 Hill (2009, p. 173-177).

32 Hughes (1987, p. 102).

33 Butlin (1994, p. 11-12).

34 Cohen (1985); Davies (1991).

35 Grabosky (1974, p. 29).

36 Grabosky (1974, p. 29).

37 Grabosky (1974, p. 34).

38 Grabosky (1974, p. 32).

39 Grabosky (1974, p. 38-9).

40 Garton (1991).

41 Byrne (1993, p. 3).

42 Rossmo, Routledge (1990); Messner (1984); Skogan (1977).

43 Hope et al. (2005); Lachs et al. (2008).

44 Block, Block (1984); Johnson (2005).

45 Kehoe, Kehoe (2016, p. 75-76, 2017). Essentially, historical cases present a more extreme version of Brame and Paternoster’s “second circumstance” of missing data — that a victim is missing and cannot be interrogated — which creates significant conceptual problem for criminologists who desire something approaching a complete dataset. See Brame, Paternoster (2003, p. 74-75).

46 Rude (1985).

47 Byrne (1993).

48 Philips (1977, p. 45).

49 For an explanation of this “police knowledge” measure see Aldous (1997, p. 217).

50 For example see Edwards (1999, p. 42).

51 Sturma (1983).

52 For discussion see Palermo et al. (2014); Skogan (1977).

53 Morgan, Weatherburn (2006).

54 Data were analysed using the Statistical Package for the Social Sciences (SPSS) Version 24.0.

55 The first mention of “bushranger” is in a hearing from 3 December 1819 against Dennis McDaniel who was charged with “harbouring a bushranger” after which “Bushranging” was used as a charge. However, “highway robbery” was also used through to the end of the period examined in 1823.

56 Appendix A: Schedule of Persons Tried, 1788-1815, n.d., p. 105.

57 Moses (2000); Rogers, Bain (2016).

58 Kercher (1995).

59 Barker (1992).

60 Appendix A: Schedule of Persons Tried, 1788-1815, n.d., p. 6.

61 “Australian Historical Population Statistics 2014”, Australian Bureau of Statistics (2016).

62 Johnson (2010, p. 3-4).

63 White (1970, p. 15-16).

64 “Australian Historical Population Statistics 2014”, Australian Bureau of Statistics (2016).

65 Daniels shows that attitudes towards convict women and “prostitutes” were complex and nuanced, but legal protections for them did slowly, but steadily, improve over the early 19th Century. See Daniels (1984, p. 15-86). Importantly, in her later work she notes that class often distorted courts’ views such that it was more likely for judges to assume that convict women were prostitutes and such women did not receive as much protection. This class dynamic changed as the colony grew. See: Daniels (1998, p. 205-206). On convict women also see Damousi (1997).

66 Wise, Roberts (2016).

67 Byrne (1993).

68 Ambrey et al. (2014, p. 877-896); O’Connell and Whelan (1996, p. 179-195).

69 Dykstra (2009, p. 321-347).

70 Godfrey et al. (2008, p. 21); Sharpe (2014, p. 59-63).

71 Sturma (1983, p. 6). On this historiography see Innes and Styles (1986).

72 Monkkonen (2002, p. 45).

73 Monkkonen (2002); Sturma (1983).

74 For a valuable classic study see: Bonnell (1980).

75 Foucault (1995).

76 Godfrey, Lawrence (2005, p. 73, 76-77).

77 Garton (1991).

78 For population statistics see “Australian Historical Population Statistics 2014”, Australian Bureau of Statistics (2016).

79 For a classic study of British prisons see DeLacy (1981, p. 182-216).

80 “Australian Historical Population Statistics 2014”, Australian Bureau of Statistics (2016).

81 Philips (1977, p. 44-45).

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Table des illustrations

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Titre Figure 2. Total Number of Charges by Type between 1788 and 1823.
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Thomas Kehoe, Jeffrey Pfeifer et Jason Skues, « From Prison to Society »Crime, Histoire & Sociétés / Crime, History & Societies, vol. 23, n°1 | 2019, 47-64.

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Thomas Kehoe, Jeffrey Pfeifer et Jason Skues, « From Prison to Society »Crime, Histoire & Sociétés / Crime, History & Societies [En ligne], vol. 23, n°1 | 2019, mis en ligne le 30 septembre 2021, consulté le 28 mai 2022. URL : http://journals.openedition.org/chs/2365 ; DOI : https://doi.org/10.4000/chs.2365

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Auteurs

Thomas Kehoe

School of Humanities and Social Sciences
University of New England
tkehoe@une.edu.au

Jeffrey Pfeifer

Department of Psychological Sciences
Swinburne University of Technology
jpfeifer@swin.edu.au

Jason Skues

Department of Psychological Sciences
jskues@swin.edu.au

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Droits d’auteur

© Droz

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