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Judicial Corporal Punishment previously sentenced to adults in Australia until the mid-1940s

The late Robert Hughes author of the highly acclaimed 'The Fatal Shore' - Reviewed by the New York Times - provides 'inter alia' an accurate account of Corporal Punishment sentences in the initial 100 years after settlement in New South Wales.  Five pages from Chapter 12, peculiarly titled Metastasis, describe the ruthlessness, frequency and severity of such punishment.

"The basis of this standard was the cat-o'-nine tails, whose whistle and dull crack were as much a part of the aural background to Australian life as the kookaburra's laugh. "Flogging in this country," one old hand in the 1820s remarked to the newly arrived Alexander Harris, "is such a common thing that nobody thinks anything of it.

Most floggings by then were confined to 25, 50, 75, 100 or, on very rare occasions, 150 lashes. By the standards of earlier days when punishments of 500 lashes were handed out by the likes of Foveaux and Marsden, such inflictions may sound light. But they were not; and in any case a magistrate could stack up separate floggings for different aspects of the same deed."

Below is an extract from Chapter 5 of  A Complete Account of the Settlement at Port Jackson by Watkin Tench:

May, 1790. In proportion, however, as lenity and mitigation were extended to inability and helplessness, inasmuch was the most rigorous justice executed on disturbers of the public tranquility. Persons detected in robbing gardens, or pilfering provisions, were never screened because, as every man could possess, by his utmost exertions, but a bare sufficiency to preserve life*, he who deprived his neighbour of that little, drove him to desperation. No new laws for the punishment of theft were enacted; but persons of all descriptions were publicly warned, that the severest penalties, which the existing law in its greatest latitude would authorise, should be inflicted on offenders. The following sentence of a court of justice, of which I was a member, on a convict detected in a garden stealing potatoes, will illustrate the subject. He was ordered to receive three hundred lashes immediately, to be chained for six months to two other criminals, who were thus fettered for former offences, and to have his allowance of flour stopped for six months. So that during the operation of the sentence, two pounds of pork, and two pounds of rice (or in lieu of the latter, a quart of pease) per week, constituted his whole subsistence. Such was the melancholy length to which we were compelled to stretch our penal system.

History of whipping as a criminal punishment in Australia - Griffith University -  Research Brief 21:

"Into the 1930s and early 1940s, judges ordered whippings with a cane, a leather strap or a birch rod. Others directed whipping with the infamous cat of nine tails. While whippings were in decline, they continued to be applied to offences like robbery in company, robbery with violence, or wounding with intent to do grievous bodily harm. But most whipping sentences occurred following convictions for sexual offences against women and children.....In Queensland, whipping stayed ‘on the books’ in the Criminal Code until the mid-1980s."

Settlers and Convicts; Or, Recollections of Sixteen Years' Labour in the Australian Backwoods (author: Alexander Harris - 1805-1874) is a biography of a free settler who came to the colony of NSW circa 1840. It follows his sixteen years in the colony from arrival to farming to woodcutting to house building and shop keeping with a couple of near death experiences thrown into the mix.  Below are extracts:

Pg 20  A man gets drunk, has his clothes stolen, and is afraid to go home to his master: he is tried first for drunkenness, a second time for making away with his clothing, and a third time for absconding. His sentence is in sum total one hundred lashes, which with the cat-o'-nine-tails is really nine hundred lashes.

But the fact is, flogging in this country is such a common thing that nobody thinks anything of it. I have now got a man under me who received 2,600 lashes with the cat in about five years, and his worst crime was insolence to his overseer.

I was sent for to Bathurst Courthouse to identify a man supposed to have taken the bush from the farm that I have charge of.  I had to go past the triangles, where they had been flogging incessantly for hours. I saw a man walk across the yard with the blood that had run from his lacerated flesh squashing out of his shoes at every step he took. A dog was licking the blood off the triangles, and the ants were carrying away great pieces of human flesh that the lash had scattered about the ground. The scourger's foot had worn a deep hole in the ground by the violence with which he whirled himself round on it to strike the quivering and wealed back, out of which stuck the sinews, white, ragged, and swollen. The infliction was a hundred lashes, at about half-minute time, so as to extend the punishment through nearly an hour. The day was hot enough to overcome a man merely standing that length of time in the sun; and this was going on in the full blaze of it. However, they had a pair of scourgers, who gave one another spell and spell about; and they were bespattered with blood like a couple of butchers. I tell you this on the authority of my own eyes. It brought my heart into my mouth.”

I know of several poor creatures who have been entirely crippled for life by these merciless floggings; and, which is worst of all, oftentimes for offences which no considerate and right-thinking person would dream of considering heinous and unpardonable.

Below are extracts from Digger History - Punishment in the Colonial Days:

Military justice in colonial days was harsh. Execution was common. Lashes (being struck with a whip) were administered in the hundreds at a time and sometimes the prisoner died as a result. He was often scarred for life. Often the whip was the dreaded "cat 'o nine tails" which was a whip with nine separate woven tails with a knot and three strands at the end of each one.

Punishment issued to Soldiers was in some instances far more severe than that of the convicts . Up to 1,500 lashes were issued as punishment. Although that many was rare, it did occur, not many lived following . (An example was 300 lashes issued to a soldier for being absent from duty ). Execution was also common and in some cases was carried out after the lash had been used.

The Marines and Soldiers were supposed to be the law upholders and to break the laws of the day bought disgrace to the Uniform, King, and, the ultimate sin, the Regiment. Therefore , the punishment for any indiscretion was severe and was intended to keep the soldiers focused and in line.

The First Fleet sailed from Spithead, England on 13th May 1787 carrying food, clothing & other supplies for 2 years.  568 male, 191 female convicts & 13 children, 206 Marines with 27 wives, 19 children & 20 officials travelled 15,000 miles in a little over 8 months to reach Australia

20% of the first convicts transported were women, most were in their middle 20's, a few were early teens , several were aged, one was 82 years. 50% had been tried in Middlesex, some at county Assizes (Devon, Kent & Sussex), the rest were at Quarter Sessions.

Most common crime was theft, of money, clothing or food. No convict of the First Fleet was convicted of a political crime. Nearly all were English from London & its suburbs, principal cities & towns.

The first criminal court was assembled on 11th Feb 1788. President was Judge Advocate Collins with 3 Naval Officers & 3 Marine Officers as members. A convict was sentenced to 200 lashes for hitting a marine with an adze. Another to 50 lashes for stealing some wood (later remitted ). A third convict who stole some bread was put in irons and marooned for 1 week ( on bread & water) on a small island in the harbour..........Pinchgut.

On April 12th 1790 one Thomas HALFORD was found guilty of stealing 3 pounds of potatoes valued at one shilling & six pence. He was sentenced to 2,000 lashes.

From October 1788 to March 1789, 7 Marines robbed the government stores while they were on guard duty. Six were sentenced to death and were hanged the day following their trial. The seventh turned King's evidence and was acquitted.

Surgeon General White's 1st return for the colony showed since foundation of the colony, 4 marines, 27 male , 13 female convicts & 11 children had died from illness. Four convicts were killed by natives, 5 had been executed and 14 " were lost in the woods & were presumed to be dead " The most common cause of death was "heat sickness" ( heat stroke) followed by snake bite.

In the Muster & Census returns those over 12 years were classified as adults. That meant that they were treated a adult should they break any law and come before the Court.

The Female Factory at Parramatta was given the nick name of "The Bride Factory". Well behaved young male convicts were encouraged to marry & choose a wife from the "Bride factory" The women were lined up for inspection & if they were lucky were chosen. Many escaped the harsh treatment dished out to them at the factory this way. They were treated worse than animals, some examples were...

  • 2 women were chained together for a month for "using language un-befitting ladies" 
  • For stealing, another woman was chained to a dog for 2 months. 
  • A common punishment was to shave a prisoners head and clamp a spiked iron collar around her neck.

Below are excerpts of letters that are in a fuller version on webpage Before Waterloo:

"the assizes are held every quarter, at Launceston, and at this place (Hobart Town).  The first assizes held here after we arrived, there were twenty-seven cast for death, four of which were reprieved and sent to a penal settlement for life, twenty three were executed - on Wednesday seven, Friday seven, and on Monday nine, which made twenty-threeThere is a drop here that they can execute twelve at a time.  We went to see the nine suffer, and such a sight we neither of us saw before; all of them appeared to die very penitent.  They are very severe with them here, as most of their offences were for sheep-stealing.  At the last assizes twelve were executed and I saw all of them."


"My station is over a gang of convicts, consisting of from forty to eighty, all in chains, with heavy irons round each leg; the cause of the different number of them is, they are put in irons for a certain time, some for one, two, and three months, and others for six months, or during the Lieutenant-Governor's pleasure; I have one that has been for pleasure one year and five months; their sentences are according to the nature and degree of the offence they may have committed and they never take their irons off until they have served their sentence, day or night.  

I fetch them from the prison barracks at half-past five in the morning, and they work till nine o'clock, and out again at ten till one, for dinner; then again from half-past two till six at night; in winter time was work from seven in the morning till five in the evening, when I take them into the barracks, where they remain till I fetch them out in the morning.   

The business I have with my gang, is to overlook them with a stick in my hand, and to see them work, and I am obliged to be very severe with them, to keep them properly under; and yet they say I am the best overseer they ever had, for were I to make the least report against them for being idle, they would get five-and-twenty or fifty lashes, so that I abstain reporting them as much as possible, for whatever the overseer says is law."

Cat 'O Nine Tails

Flogging in Victorian jails in the 1800's

Punishment in Australia's Colonial Days

By the Pleasing Countenance of My Superiors - The life of Dugong Magistrate Thomas Cook, J.P. - August 5th, 1854 - by Michael Williams

Professor Peter Graboskyt author of "ON THE HISTORY OF PUNISHMENT IN AUSTRALIA AND NEW ZEALAND"

Below is an interesting perspective within the below extracts:

Those engaged in research on the history of punishment may be so for a variety of motives. Some may be driven by pure intellectual curiosity, others, perhaps, by sublimated punitive impulses. Others still, not content with a mere understanding of the forces which have shaped penal policy, seek to influence these forces now and in the future. But our concern here is history as an independent variable: Of what use is it? What purpose does it serve? What can it achieve?

Research on the history of punishment can enhance our understanding of contemporary issues. Occasionally, even governments seek out historical knowledge. (eg, Gurr, Grabosky and Hula, 1977; Grabosky 1977).  Lamentably, governmental interest in affairs of the past now appears all but non-existent, and practitioners of criminal justice tend not to be appreciative of historical inquiry. At best, the nostalgia buffs among them find it interesting, if not terribly useful. The more cynical, whose vision extends no further than the next election, are probably inclined to the attitude of Henry Ford: 'History is more or less bunk.'

History and Practice

This lack of enthusiasm shown by today's policy makers and administrators should not, however, discourage scholars from adopting an historical perspective. I would argue that in addition to creating knowledge for its own sake, historical research can make a very real contribution to the development and implementation of contemporary policy.

The first way in which such relevance can be demonstrated is by learning from our mistakes. In the words of Santayana, those who cannot remember the past are condemned to repeat it. An exploration of notable past failures of policy and administration can yield general principles, if not explicit lessons, which might be applicable to contemporary matters. We can of course learn from successes as well as failures.

Isobelle Barrett Meyering thesis Contesting corporal punishment: Abolitionism, transportation and the British imperial project - University of Sydney - Oct 2008 - provides 'inter alia' an accurate account of Corporal Punishment sentences in the initial 100 years after settlement:

Corporal punishment of convicts was frequent in the early years of white settlement, but was increasingly curtailed, in theory if not in practice, from the 1820s. Floggings of several hundred lashes were commonly reported in the first two decades of settlement whereas, by 1832, the maximum sentence awardable in New South Wales was 100 lashes.

Corporal punishment in Australia was usually by whipping (teenagers) or flogging (adults) until the mid 20th Century

          "Flogging with the cat for adult male offenders, and birching and parental caning for boys, were still in use in South Australia in the 1950s, as may be seen in several historical news items. The clearest picture of what the "parental caning" involved comes in this May 1956 illustrated news item, where it is interesting to note that one youth so caned was aged 17, despite the supposed upper limit of 14 (according to Cadogan)."

A Flogging at the Woolloomooloo police station in 1883 -  Australian Town and Country Journal, Sydney, 22 Sept 1883, p.17:

"The first sentence of corporal punishment under the new Criminal Law Act was carried out at the Woolloomooloo police station last Tuesday. There were present the inspectors of police and other officers of the force, also Dr. Egan, who was in attendance professionally as medical officer on the occasion. Frederick Mildwater, the prisoner, is a man about 30 years of age, and is said to have a wife and children. He is about the medium height, and well built, but not stout or particularly muscular. At noon precisely he, being stripped to the waist, was brought into the yard, where the ominous-looking triangle structure stood ready to receive him. He looked ashy pale, but his demeanour was determined, and he walked firmly up to the place, where he was tied up in the usual way. Then the lash was laid on vigorously. After about six strokes of the cat had been administered, the appearances of punishment began to show up painfully, and as the seventh stroke was laid on the unfortunate man spoke, or rather moaned out the words, "Oh, don't. Oh, don't." After this he made no complaint, and scarcely uttered a sound, but it was evident that he suffered terribly. Long before the allotted number of lashes had been given the prisoner's back was ridged with bruises, black and blue, with here and there a dark red stain that told of terrible irritation. And finally, when the active punishment was over (for the actual suffering in such cases must continue for a weary time) the man's back was almost raw, and presented a truly sickening spectacle. Mildwater appeared faint and ill, when he was cut down; but he was able to walk away, and did so. He was afterwards removed to Darlinghurst, where he has to do a term of six months' imprisonment, with hard labour."

Contesting corporal punishment: Abolitionism, transportation and the British imperial project - University of Sydney - Oct 2008

 

          "The cat-of-nine-tails is one of the major icons of Australia’s convict past. From readers of Robert Hughes’ The Fatal Shore to visitors to the (now closed) theme park, Old Sydney Town, Australian audiences have been captivated by the spectacle of flogging................ Corporal punishment of convicts was frequent in the early years of white settlement, but was increasingly curtailed, in theory if not in practice, from the 1820s.  Floggings of several hundred lashes were commonly reported in the first two decades of settlement whereas, by 1832, the maximum sentence awardable in New South Wales was 100 lashes."

Punishment on Pinchgut Island (now Fort Denison, Sydney Harbour) - recollection of an 18th century prisoner on Pinchgut Island, Sydney.

Corporal punishment is defined in Australia as 'the use of physical force towards a child for control, correctional or disciplinary purposes in a way that won’t result in any lasting harm'.

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The Writer attended Catholic schools from 1955 to 1969 during an era when ‘spare the rod, and spoil the child’ was common parlance.  He, and the vast majority of his classmates, were whipped with a leather strap by school teachers on the hand or buttock for indisgressions. From about 4 years old until about 8 years old if he, or his brothers, transgressed in the family home, his father applied the wrong end of the feather duster to the wrongdoer’s open palm a couple of times.  The Writer managed to survive and learn what was right and wrong in his household and at his schools where school teachers were respected and occasionally admired. Corporal punishment didn’t negatively affect the Writer demonstrably.

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Parent/Child Punishment in the Home Model provides evidence of Judicial Corporal Punishment for Juveniles in four newspaper articles all published in May 1956.

www.corpun.com - History of Judicial Corporal Punishment in Australia

AUSTRALIA:  Domestic Corporal Punishment chronicles the abolition of Corporal Punishment in schools, starting in the state school system.