From Arthur to Franklin

After Arthur’s departure[1], the economic and social situation in VDL deteriorated and this had an impact on policing. First, Arthur’s successors, Sir John Franklin[2] and Sir John Eardley Eardley-Wilmot[3] lacked his autocratic personality and the administrative ability to make the convict system run effectively.[4] Secondly, from 1 July 1836 the British Government refused to fund the heavy police costs and required Franklin and Eardley-Wilmot to pay for the police and gaols from local taxation and land sales. This created tension with both the Legislative Council and the colonists and made police funding a controversial issue. Thirdly, there were changes in the management of convicts. Under the assignment system convicts were usually assigned to work for private employers, who provided shelter, food, clothing, and food according to government regulation.[5] In response to criticisms that this was too lenient, the British Government introduced the probation system in 1842.[6] At the same time, the British Government flooded the colony with convicts, including those from NSW where transportation ended in 1840. The annual population of convicts increased from 17,661 in 1836 to 30,279 in 1846.[7] This had a marked effect of levels of crime in the colony and bush-ranging, subdued under Arthur, became a much greater threat. Fourthly, in the 1840s VDL experienced an economic depression and the large numbers of convicts on release and the increasing numbers of free immigrants found work scarce. All sources of public revenue, especially land sales, withered and by 1844 the colony was virtually bankrupt. There was market for neither the produce nor the labour of pass-holders.[8]

Sir John Franklin

Franklin had no experience of civil government when he arrived in Hobart in January 1837. Faced with ‘the Arthurite clique’, entrenched in key positions throughout the colony, Franklin reported to the Colonial Office that he intended to break it. This he notably failed to do and the day-to-day running of VDL devolved to John Montagu who had been both colonial treasurer and secretary in the latter years of Arthur’s administration.[9] Montagu’s continued influence resulted in opposition to the penal ideas of Alexander Maconochie, Franklin’s private secretary that, had they been implemented, might have led to significant penal reform in the colony.[10] Maconochie wrote a Report on the State of Prison Discipline in Van Diemen’s Land published in1838, at the request of the English Society for the Improvement of Prison Discipline and with the approval of the British authorities. It was sent by Franklin (who was aware that it was condemnatory of the system) to the Colonial Office, which transmitted it to the Home Office. It was published as a parliamentary paper and used by the Molesworth committee on transportation (1837-1838). There is no justification for criticisms levelled at Maconochie over the publication of this report, but the storm it aroused in Hobart left Franklin with little alternative but to dismiss him.[11]

The other major change was the appointment of Francis Burgess previously a successful Chief Commissioner of Police in Birmingham as Chief Police Magistrate in September 1843.[12] Burgess imported his ideas on policing, especially the prevention and detection of crime and the training of police to VDL.[13] During the 1830s, ideas for reforming the police were heatedly debated and Burgess injected new perspectives into a locally devised policing system.[14] In response to these changes, an anti-transportation movement emerged and railed against convict immorality.[15] Widespread homosexuality, crime and even cannibalism were attributed to convicts, demonstrating that the probation system did not reform, merely hardened. These claims were extreme. Although homosexuality existed and cannibalism may have occurred, anti-transportationists magnified their allegations for political purposes, as Sturma has shown NSW colonists did in 1844.[16] By building an atmosphere of crisis, the anti-transportationists in VDL extracted major concessions from the British Government. In 1846, transportation was suspended indefinitely.

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[1] Petrow, Stefan, ‘After Arthur: Policing in Van Diemen’s Land 1837-46’, in Enders, Mike and Dupont, Benoît, (eds.), Policing the lucky country, (Hawkins Press), 2002, pp. 176-198 looks at the period from 1837 in greater detail.

[2] Fitzpatrick, Kathleen, Sir John Franklin in Tasmania 1837-1843, (Melbourne University Press), 1949 and ‘Franklin, Sir John (1786-1847), ADB, Vol. 1, pp. 412-415.

[3] Roe, Michael, ‘Eardley-Wilmot, Sir John Eardley (1783-1847)’, ADB, Vol. 1, pp. 345-346; Shaw, A.G.L., ‘Three Knights: Sir James Stephen, Sir John Franklin, and Sir John Eardley-Wilmot’, Tasmanian Historical Research Association Papers and Proceedings, Vol. 36, (1989), pp. 141-153.

[4] Ibid, Boyce, James, Van Diemen’s Land, pp. 213-235 considers the late 1830s and 1840s.

[5] Shaw, A.G.L., The Origins of the Probation System in Van Diemen’s Land’, Historical Studies, Australia and New Zealand, Vol. 6, (1953), pp 16-28 and ‘Sir John Eardley-Wilmot and the Probation System in Tasmania’, Tasmanian Historical Research Association Papers and Proceedings, Vol. 11, (1963), pp. 5-19; ibid, Shaw, A.G.L., Convicts and Colonies, chapters 11-14

[6] Under this system male convicts worked in probation gangs scattered throughout the penal colony for at least two years. For the following two years convicts received a probation pass, allowing them to work for wages while reporting to the police. If well behaved, they became eligible for a ticket-of-leave and later a conditional pardon. See, Brand, Ian, The Convict Probation System: Van Diemen’s Land, 1839-1854, (Blubber Head Press), 1990.

[7] Eldershaw, P.R., Guide to the Public Records of Tasmania, Section Three: Convict Department Record Group, (State Library of Tasmania), 1966, p. 64.

[8] Ibid, Hartwell, R.M., The Economic Development of Van Diemen’s Land 1820-1850, chapter 3.

[9] Reynolds, John, ‘Montagu, John (1797-1853)’, ADB, Vol. 2, pp. 248-250.

[10] Barry, John V., ‘Maconochie, Alexander (1787-1860)’, ADB, Vol. 2, pp. 185-186. See also, Ward, Gerard, ‘Captain Alexander Maconochie, R.N., K.H., 1787-1860’, Geographical Journal, Vol. 126, (4), (1960), pp. 459-468.

[11] Maconochie claimed then and later that he arrived in VDL with no preconceptions against the convict system and no acquaintance with penological theories. However, in 1818, in his A Summary View he had formulated several propositions about ‘penal science’ in a discussion of penal conditions in NSW. Although some of these were contrary to the views he advanced from 1837 onwards, two remained always basic in his proposals: punishment should aim at the reform of the convict and a convict’s sentence should be indeterminate, with release depending not on the lapse of time but on his own industry and exertions during incarceration. Ward considers this discussion in A Summary View scarcely sufficient to invalidate Maconochie’s assertion that before his arrival in VDL he had ‘not previously studied the subject of punishment’.

[12] O’Brien, G.M., ‘Burgess, Francis (1793-1864)’, ADB, Vol. 1, pp. 180-181.

[13] Weaver, M., ‘The New Science of Policing: Crime and the Birmingham Police Force, 1839-1842’, Albion, Vol. 26, (2), (1994), pp. 289-308.

[14] For the proposals for police reform in England see Philips, D. and Storch, R.D., Policing Provincial England, 1829-1856: The Politics of Reform, (Leicester University Press), 1999.

[15] Morrell, W.P., British Colonial Policy in the Age of Peel and Russell, (Oxford University Press), 1930, pp. 387-426; ibid, Robson, L., A History of Tasmania, Vol. 1, pp. 491, 497-499.

[16] Sturma, M., Vice in a Vicious Society: Crime and Convicts in Mid-Nineteenth Century New South Wales, (University of Queensland Press), 1983, pp. 51-63.

The end of Arthur’s rule: more corruption, the courts and the police

Other cases where political differences intersected with allegations against the police involved editors Henry Melville[1] and Gilbert Robertson[2]. They gave much space in their Hobart Town newspapers to the meetings of the Political Association, which was formed to organise opposition to Arthur and took up the abuses of the felon police at its first meeting in November 1835.[3] Melville, who had spent time in jail for contempt of court when defending Robert Bryan, edited the Colonial Times that published damning commentaries on the faults of Arthur’s administration.[4] He used colourful language to condemn ‘the detestable system of employing Janissaries, ready and willing to swear anything to gratify their corrupt motives,’ roaming the streets like wolves ‘daily destroying every thing human.’[5]

Melville suffered as a result. In March 1836, two of his assigned servants, who worked as printers, accepted an offer of a drink from a former employee called John Gibson.[6] Gibson took them to a bake-house adjoining a pub where they talked and illegally drank rum. After Gibson left the bake-house on the pretext of getting more money, constables arrived to arrest Melville’s printers, who were sentenced by Chief Police Magistrate Forster to four months each on a road gang. The publican was fined, but Gibson went unpunished despite being implicated in the drinking. Melville alleged that Gibson had had a long career as an agent provocateur for the police and was seeking to injure him. Printers were scarce in Hobart Town and without the help of his convicted servants Melville found it difficult to publish his newspaper. Melville prosecuted Gibson for enticing his servants away, but the case was dismissed.[7]

In November 1828, Arthur appointed Gilbert Robertson chief district constable at Richmond and rewarded him with 1,000 acres of land for his services against the Aborigines. But in 1832, he dismissed him for neglecting his duties and disobeying the directions of the police magistrate.[8] After Robertson allowed his assigned servants to join convict constables in long drinking sessions, they were withdrawn. Thereafter Robertson bore a grudge against Arthur and, as a journalist or editor of the Colonist and True Colonist newspapers, mounted a ‘malevolent’ attack on the governor and his supporters, which Arthur felt created ‘a prejudice’ in England against his government. For libelling Arthur and others, Robertson spent some time in jail.[9]  The convict police were a particular object of Robertson’s contempt, especially following his second arrest for drunkenness after he intervened to stop constables beating a suspect in early 1836.[10] Robertson, placed in the watch-house overnight, was incensed at being denied his right to communicate with his family or a solicitor. Ultimately, the magistrates dismissed the case without allowing Robertson to call witnesses in his defence. Claiming his case was typical of many others, Robertson demanded that Arthur review the evidence. Arthur acquiesced, but concluded that Robertson was lucky to have had the case dismissed.[11]  In October 1836, Robertson was arrested for letting off fireworks on the day of Arthur’s departure and was beaten as the police dragged him to the watch-house.[12] The case was dismissed after Robertson produced three military witnesses to prove that some of the constables had committed perjury. In the True Colonist, Robertson made much of the fact that one of the constables, Nicholas Clark, had already been dismissed twice from the police but was allowed to keep his ticket of leave.[13] An enquiry instigated by acting Lieutenant Governor Kenneth Snodgrass resulted in the discharge of two constables and the removal of three others from Hobart Town.[14]

Postcard: Hobart c1843

As the Robertson case showed, recourse to the courts could act as a break on arbitrary power and the rule of law was not extinguished under Arthur’s autocracy. When convict discipline was not an issue or evidence from respectable witnesses could be presented, aggrieved colonists had a greater chance of obtaining redress for police misconduct or spite. But magistrates usually placed the onus on the accused to prove that the police had acted illegally. This was hardly surprising. Magistrates exercised judicial and executive functions, but their predominant duty was to enforce convict discipline by supporting a vigilant police not to ensure that justice was impartially dispensed. Their freedom of manoeuvre was limited by the close surveillance of Arthur and the chief police magistrate over their actions. Some chafed at this surveillance, but most magistrates enjoyed the power and authority they possessed, and very few questioned the need for a powerful central authority in a penal colony. Self-interest was a powerful motivation.

Attitudes to the police were shaped by the geographical context of policing and by how police actions affected particular interests. In the interior, settlers welcomed the security and order imposed by Arthur’s measures against bushrangers and Aborigines, which enabled them to concentrate on developing their land holdings. Policemen in rural areas were scattered and the chances of clashing with settlers were minimised. Settlers might complain if police interfered with their property or failed energetically to stop stock stealing, but they did not normally attack the management of the convict system or question Arthur’s authority. Their prosperity depended on the imposition of order and, fearing the loss of convict servants, they did not want to alienate Arthur or his magistrates.

Typical views were expressed by the landholders and other inhabitants of Hamilton, fifty miles north of Hobart Town. In 1836, hearing news of his departure from the colony, they thanked Arthur for ending the dangerous attacks of bushrangers and Aborigines and for organising ‘a very complete and efficient’ police, which protected their lives and property.[15] These actions, they said, were supplemented by his wise laws and his support of ‘moral and religious’ measures, which transformed the colony from ‘a state of comparative poverty and immorality to that of affluence and respectability.’ Religious leaders appreciated Arthur’s repression of ‘vice and licentiousness’ and promotion of ‘the interests of social order and morality,’ thereby largely contributing to ‘the general welfare and permanent prosperity of the community.’[16]

Criminal statistics, compiled by Colonial Secretary John Montagu[17], could be interpreted to demonstrate that the interests of order and morality were protected under Arthur.[18] Montagu revealed a gradual decline of convictions for ‘heinous’ crimes against person and property. Table 3 shows that murder, burglary, housebreaking, stealing in a dwelling house, stealing in a dwelling house and putting in fear and sheep-stealing all decreased. It appeared that convictions for assault remained steady, but larceny increased. Police vigilance probably accounted for the decline in burglary and housebreaking, but fear of punishment probably deterred potential murderers.[19] Many convicts had been transported for committing larcenies and probably found the habit hard to break, especially if they had no work, and the police could do little to stop them.

The police were, thought Montagu, more obviously responsible for ‘the increased detection and punishment of all the minor offences committed by convicts’. [20] Cases involving general misdemeanours by convicts, the main targets of police, increased from just over 11 per one hundred of the population in 1824 to over 43 by 1832. In the same period, drunkenness involving both the free and convict population rose from over 3 per hundred in 1824 to nearly 10 by 1832, with the free rate alone rising to over 14 per hundred in 1835. Colonial Secretary Montagu thought increased drunkenness was partly due to the growing number of convicts who had become free by servitude. But the primary reason for the increase was police initiative. Drunkenness was visible to the police, who derived part of the fine levied for this offence. VDL enjoyed a period of prosperity under Arthur that probably had a significant impact on crime rates than his police reforms.

New Norfolk c1834

Critics of the police were not convinced by criminal statistics and remained sceptical of the effectiveness of police work. The Colonial Times claimed that Tasmania was not as free of crime as some boasted because many crimes were ‘assiduously hushed up’ by the police. The decline in convictions for property crime could be attributed to police inability to deal with criminals or to their concentration on offences where convictions were more easily obtained, which explained the rise in cases involving misdemeanours.[21] The Hobart Town Courier suggested that most misdemeanours were of ‘a very light and venial character,’ brought by constables for mercenary reasons, and did not indicate that the community habitually broke the law.[22] The low rate of drunkenness among the convicts compared with the free population might have had little to do with police action, but much to do with the severity of convict regulations. The long sentences imposed on convicts inconvenienced masters, who were not inclined to prosecute their convict servants and risk losing their services. This interpretation received some support from Forster’s claim that one quarter of assigned convicts had never been brought before a magistrate for misconduct, but misbehaved badly once released from the convict system.

Attitudes to the police in the larger towns differed from those of settlers in the interior. The most vociferous opponents of Arthur’s police system were in Hobart Town. This occurred for a number of reasons. As bushrangers and Aborigines rarely attacked towns, urban residents did not benefit as much as isolated settlers from the containment of these threats. Urban residents were less reliant on convict servants and less likely to be affected financially by opposing Arthur’s policies. Police numbers were more concentrated in towns, where the population density was greater and urban residents found it harder to avoid contact with policemen. Free residents wanted the large convict and ex-convict population of Hobart Town and Launceston to be well regulated, but complained when they were intimidated by convict policemen armed with legislative powers.

Intimidation included making false arrests, often accompanied by violence, instigating unnecessary summonses, demanding the payment of bribes, prosecuting citizens for offences which gave them part of a fine and manufacturing crimes against opponents of the government in order to gain a ticket of leave or a pardon. Convict constables also encouraged crimes and committed perjury and had a reputation for doing or saying anything to escape punishment or secure a reward. Hobart Town was presided over by the chief police magistrate, a key figure in the convict bureaucracy. Many dubious practices were committed there because policemen tried to impress the magistrate with their energy and vigilance, even to the point of harassing the regime’s most outspoken critics. Free settlers naturally bridled at the police powers given to convicts still serving their sentences and felt that Arthur had taken his analogy of the colony as a jail too far by letting the criminals superintend the warders. While the theory of using a criminal to watch a criminal might be seductive, they argued that in practice this experiment was bound to fail as the free population increased in size.

Urban residents attacked the powers of the police as part of a broader assault on the transportation system. Settlers in the interior tended to be more conservative than urban residents and their fortunes were linked to the continuance of transportation. Urban residents tended to have a greater ideological attachment to the concept of the freeborn Englishman and his rights. They wanted to transform the penal colony into a free society, even if this meant losing the economic benefits associated with transportation. They believed that their civil and political rights would be withheld as long as VDL remained a penal colony and as a result they highlighted abuses of the convict system, claimed that transportation did not reform convicts and used examples of convict police abusing their powers as evidence of this claim.

However, the British government praised Arthur’s rule and, although the anti-transportation campaign grew in strength, convicts were sent to VDL until 1853. Nor did the British government change Arthur’s convict police system, which, with some modifications, remained until VDL became the self-governing colony of Tasmania in 1856. In 1858, the colonists, scarred by nearly thirty years of a centralised police system, adopted a decentralised English model. Police forces were controlled by municipal councils and lay magistrates replaced paid magistrates. Local accountability did not necessarily herald the end of arbitrary government. The elites who controlled the councils and the local courts used their power to protect their own interests, often to the detriment of the rule of law and, haunted by the Arthur years, they resisted the intrusions of the central government for the rest of the century.

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[1] Flinn, E., ‘Melville, Henry (1799-1873)’, ADB, Vol. 2, pp. 221-222.

[2] Godfrey, Margery, ‘Robertson, Gilbert (1794-1851)’, ADB, Vol. 2, pp. 384-385.

[3] Colonial Times, 10 November 1835.

[4] AOT EC 4/3, 645, 6 June 1836; Morris Miller, E., Pressmen and Governors: Australian Editors and Writers in Early Tasmania, (Sydney University Press), 1973, pp. 43-53, and ibid, Melville, Henry, The History of Van Diemen’s Land From the Year 1824 to 1835, pp. 182-184.

[5] Colonial Times, 29 March, 5 April 1836.

[6] True Colonist, 8 April 1836; Colonial Times, 8, 19 April 1836. In an earlier incident constables abducted two of Melville’s dogs and charged him with not keeping his dogs under control. See Colonial Times, 25 August 1835.

[7] Colonial Times, 19 April 1836.

[8] ML: Arthur Papers, Vol. 50, Gilbert Robertson correspondence, Arthur to Glenelg, 29 October 1836; Hobart Town Gazette, 8 November 1828, 28 April 1832; AOT EC 4/2, 300, 16 March 1832.

[9] Ibid, Melville, Henry, The History of Van Diemen’s Land From the Year 1824 to 1835, pp. 166-169.

[10] True Colonist, 4 March 1836.

[11] AOT CSO 41/3, Burnett to Forster, 22 April 1836.

[12] True Colonist, 11 November 1836; Bent’s News, 12 November 1836.

[13] True Colonist, 11 November 1836, AOT POL 315/1, Montagu to Robertson, 2 December 1836.

[14] Lea-Scarlett, E.J., ‘Snodgrass, Kenneth (1784-1853)’, ADB, Vol. 2, pp. 454-455.

[15] ML: Arthur Papers, Vol. 52, Addresses, land and householders of Hamilton, 12 August 1836, inhabitants of Hamilton, August 1836.

[16] ML: Arthur Papers, Vol. 52, Addresses, Price to Arthur, 5 August 1836

[17] Reynolds, John, ‘Montagu, John (1797-1853)’, ADB, Vol. 2, pp. 248-250.

[18] CO 280, Arthur to Franklin, 29 October 1836, Statistical Returns of Van Diemen’s Land from 1824 to 1835, 10 October 1836; Hobart Town Courier, 28 October 1836.

[19] Maconochie, Alexander, Thoughts on Convict Management and Other Subjects Connected with the Australian Penal Colonies, (J.C. MacDougall), 1838, pp. 145-146.

[20] CO 280, Arthur to Franklin, 29 October 1836, Statistical Returns of Van Diemen’s Land from 1824 to 1835, 10 October 1836; Hobart Town Courier, 28 October 1836.

[21] Colonial Times, 3 May 1836.

[22] Hobart Town Courier, 4 May 1834.