The Dark Side of the Law

It is no surprise that things were very different in the colonial era. However, it can be a shock when we discover just how different things were – especially in relation to crime and punishment.

While flogging, leg irons and solitary confinement are well-known aspects of law enforcement in the colonial era, they merely graze the surface of how grim things could get in the name of upholding the law. Below are just some examples of the way law was enforced throughout the colonial era, giving some degree of context to why many convicts resorted to bushranging.

Relics of convict discipline, Beattie Studio, Hobart, c1914–41. [SLV]

The Bloody Code

Arising in the 17th century, the “bloody code” described the harsh stance on crime taken by the British authorities. Under this code, hundreds of offences became punishable by death ranging from severe crimes such as treason and murder, through to relatively minor ones such as property theft and creating a disturbance. The idea was to prevent crime against property by making the penalty so harsh for even minor charges that it became too big of a risk. It was later deemed that it was creating an awful waste of life, do many cases that would have been hanging offences were commuted to transportation sentences. Inevitably it was apparent that this approach was heavily slanted against the poor, but this was not acknowledged with any considerable sense of guilt or urgency to rectify the imbalance.

It wasn’t until 1823, when the New South Wales Act was passed in Britain, that Australia was able to craft its own laws. Up to this point it was British law without any regional variation to compensate for differences in circumstances between the British Isles and the Australian penal settlements. This meant that the harsh approach to law enforcement continued in New South Wales and Van Diemen’s Land in exactly the same way as it did in the motherland.

With such a dim view of crime that positioned even the most paltry of offences as worthy of death sentences, the act of pursuing fugitives in Australia was treated more like pest control than pursuing the course of justice. Bushrangers and bolters would face almost certain death if they came across soldiers, or constables (in the early days this was the title given to men specifically employed to recapture escaped convicts), or bounty hunters. If they were not shot, they would almost certainly hang. At that stage defendants were tried before a panel of judges, trial by jury wouldn’t come into place until the mid-1820s. It was rare for a defendant to get off with a term of imprisonment rather than death, with most prisoners resigning themselves to their fate.

With a mindset such as this, it is hardly surprising that the following punishments could evolve. It should be stressed that they are not for the squeamish.

Flogging

One of the most infamous corporal punishments that were doled out to convicts was flogging. This was the most simple punishment, designed as a retribution for misdeeds and as a deterrent for other criminally minded individuals.

Typically, the victim would be bound to a tripod, known as “the triangle”, with their back exposed. They would be stripped to the waist and whipped repeatedly. The instrument of torture was a scourge that consisted of a handle and nine knotted strands of rope, hardened with tar. This was referred to as the “cat-o-nine-tails”, and the long lacerations that it left behind were described as a “cat’s scratch”. The minimum number of lashes was usually 50 (colloquially known as a “tickler”), though the maximum tended to fluctuate depending on the views on the safety of such a punishment at any particular time.

Cat-o-nine-tails [Hyde Park Barracks Collection.]

The wounds from flogging were typically quite considerable. It was not unheard of for a man to receive 150 lashes and have the flesh on his back left as bloodied pulp. A doctor was always to be in attendance to monitor the convict during proceedings, once the prevalence of convicts dying from the punishment became a cause for concern to authorities. If the offender passed out he would be splashed with water to revive him before resumption of the flogging. If he remained unconscious he was taken to his cell to rest before resuming the punishment. Following the flogging, the recipient would usually be taken to the infirmary where the wounds would be washed with salt water. After a few days, when the wounds began to heal, they would be sent back to work.

Women and children were not usually flogged, though there are anecdotes of women receiving lashes. Typically they would be struck with a cane (referred to

In some cases these whips and scourges were modified to make them even more damaging. For example, on Sarah Island in Macquarie Harbour (also known as Hell’s Gates) the strands of the cat-o-nine-tails were laced with pieces of lead to ensure that each stroke broke the skin and inflicted as much pain as possible. This more brutal variation of the flaggellator’s tool became known as the “Macquarie Cat”.

In the case of many early bushrangers, flogging was a trigger to their taking the bush. Matthew Brady, for example, had received over 500 lashes by the time he escaped from Sarah Island. The dehumanising effect of such punishment was also a key factor in why William Westwood kicked off a murderous riot on Norfolk Island. Such was the traumatic effect of flogging on convict era bushrangers, that many, such as the Jewboy Gang, used the same to exact revenge on tyrannical masters or other authority figures.

Source: Police News, 03/06/1876 [SLV]

Hanging in Chains

One of the most infamous punishments utilised by the English was “hanging in chains”. This was the practice of displaying the corpse of a freshly executed criminal in a series of iron hoops and chains or a special cage made of bars and hoops called a gibbet, in a public area to act as a deterrent to other potential miscreants.

In New South Wales, this practice was carried out on Pinchgut Island (Fort Denison) in Sydney Harbour, where one body was known to have been gibbetted publicly for four years. It is said that this, above all else, terrified the local Aboriginal peoples who believe in treating the dead body as sacred. They believed that if a body was not laid to rest, the spirit was unable to rest.

In Bathurst, the bodies of the Ribbon Boys were gibbetted along the streets. The dozen men who were hanged for treason in their attempted rebellion lined the area now known as Ribbon Gang Lane.

Photograph of the skeleton and chains used to gibbet a man convicted of murder and hung at Goulburn around 1832-1833, taken between 1876 and 1877. [Mitchell Library, State Library of New South Wales]

In Perth, Tasmania, there was an area referred to as Gibbet Hill. Here a gibbet allowed a body to be displayed as people entered and exited the township. In 1837, bushranger John McKay was hung in chains here for many months. When the body was taken down the head was removed for phrenological study.

A key location for gibbetting was Hunter Island in Hobart. A small landmass just offshore near the docks, it was the perfect place to send a message to miscreants in the old English way.

On this tiny lump convicts were executed on wooden gallows and their corpses “hung in chains” from a gibbet post on the shoreline. The bodies would remain in place until they were deemed to have had a suitable deterrent effect, whereupon they were typically buried on the island. This is what happened to the headless body of bushranger James Whitehead.

During an attempted raid on Dennis McCarty’s farm by Michael Howe’s gang, Whitehead was shot and killed by soldiers. His gang members then removed the head to prevent the soldiers or McCarty from claiming the reward on it. The headless body was subsequently taken into Hobart Town, where it was hung in chains. It seems, from some accounts, that it remained in place long enough to be joined by the severed heads of Whitehead’s colleagues George “Bumpy” Jones and Michael Howe. Governor Macquarie would express dismay that he did not have the rest of Howe’s body to display as it had been buried in a shallow grave where it fell.

Hunter Island was later joined to the rest of the waterfront by filling in the gap with dirt to create a causeway, whereupon it ceased its function as a place of execution and displaying corpses, and became an industrial area.

A Price on Their Head

In the early days of colonial Australia, when a fugitive had “a price on their head” it was very literal. Whereas nowadays such terms as “headhunter” have more figurative meanings, they derive from days when a bounty hunter would take a severed head as a receipt to the relevant authorities in order to claim the reward for the capture of a fugitive. It was far easier to carry a head in a flour sack than lug a full corpse around. Due to the “Bloody Code”, there were no qualms about killing suspects as the presumption of guilt meant that they would likely be hanged anyway.

In some cases the severed heads would be put on public display; in Hobart the heads were put on spikes on Hunter Island, where the corpses of executed criminals were also displayed in gibbets. Other times the heads would be stripped of flesh and the skull used for “medical study”.

When Richard Lemon was shot dead, his head was removed and his arrested accomplice Brown was forced to carry it into Hobart Town. Perhaps the most infamous case of this happening was Michael Howe in 1818, who was decapitated after being shot, bayonetted and bludgeoned to death by soldiers. His head was displayed in Hobart and generated much interest from the locals. A similar fate had befallen other members of his gang, and in fact when Howe’s mate, James Whitehead, was shot by soldiers the head was removed by the gang so that the reward could not be claimed.

[From The Outlaw Michael Howe]

A Fate Worse than Death?

For most condemned men it was terrible enough to be sentenced to death, but to offenders of a Catholic faith there was something that brought even greater dread: dissection.

It was commonplace for universities and medical schools to get their cadavers from the prisons, where there was a steady supply of freshly executed bodies to cut up for examination. Students and veterans alike practiced their surgical trade on the bodies, often preserving pieces in jars.

This was particularly terrifying for Catholics who believed in the resurrection, and more precisely that the body needed to remain intact for that purpose. Therefore, for Catholics the sentence of dissection meant that not only would their earthly life be cut short, but they would also be denied eternal life. The sentence was a fate worse than death, for it meant perpetual punishment in eternity.

The Art of Hanging

In Australia, the only form of execution generally carried out was hanging. At the beginning of the colonial era, hanging utilised what was called the short drop method. In some locations a condemned person would be taken to a sturdy tree, upon which was affixed a rope with a noose on the end. In these cases the condemned usually stood on the back of a dray with the noise around their neck, and they would drop when the dray was moved away. In other places there would be a gallows scaffold made, so that multiple executions could take place at once. In these cases the condemned would fall through a trap door on a shortened rope. The short drop was quite ineffective as it strangled the condemned to death, which was a rather drawn out process.

Execution of Michael Magee. This illustrates in great detail the tools of destruction for a short-drop hanging. [Source]

In response to the inefficiency of the short drop, a long drop method was devised. This resulted in a much quicker death when down correctly. Essentially, as the body had to fall further, the weight abruptly stopping at the end of the rope would cause the neck to snap, causing a relatively painless and instant death. However, to do it properly required many calculations to be made to account for the height and weight of the condemned and how they impacted on the velocity of the fall and in turn that would define the length of the rope. Placement of the slipknot behind the ear was also important, as this would mean a sidewards snap, which would better break the neck.

The stages of a hanging, depicted on the front page of the Police News (14/04/1877).

As most hangmen were merely prisoners looking for time off their sentence, many of whom were illiterate or innumerate, needless to say it rarely went smoothly. Poor quality ropes would snap. A rope that was too short would cause strangulation, while a rope that was too long could result in decapitation.

There were many botched hangings of bushrangers. One of the most infamous was Henry Manns, who was hanged for his role in the Eugowra Rocks heist. His rope was too short and he was strangled to death slowly in front of a crowd, with the attending gaolers having to yank down on his legs to try and snap his neck. One of Jack Donohoe’s accomplices, William Smith, went through the drop with a cheap, dodgy rope, which snapped. When he came too he was under the dead bodies of the other men he was hanged with, resting against his own coffin – naturally he screamed hysterically. After much deliberation it was decided to hang him again with a better rope. The second hanging went as planned.

Moondyne Joe’s Cell

Moondyne Joe was so proficient at escaping from custody that a special cell was built for him in Fremantle. However, the cramped space, combined with poor ventilation and being chained in place led to Joe becoming gravely ill. On doctor’s orders he was permitted to engage in labour outside once a day, on his own, in the courtyard.

Never one to miss an opportunity, Moondyne Joe positioned himself behind the pile of stone that had been brought in for him to smash. Once he was certain he couldn’t be clearly seen by the guard, he proceeded to smash a hole in the perimeter wall with his hammer when he was supposed to be breaking rocks. Soon he had made a hole big enough to squeeze through and made his way to freedom. By the time the guard had realised what had happened it was too late, and Moondyne Joe was off to the bush again.

The escape-proof cell [Wikimedia Commons]

Cruel and Unusual Punishments

Perhaps no other figure in penal history in Australia is as infamous as John Giles Price. Price was the son of a baronet, and had moved to Van Diemen’s Land with his wife in 1836. Through his connections he gained the role of muster master of convicts and assistant police magistrate then in 1846 became the commandant of Norfolk Island. Price was to gain his infamy for his callous and dehumanising treatment of convicts. He believed in punishing the offenders through whatever means possible to deter further misbehaviour, with the punishments ranging from the moderate to the extreme.

A perfect illustration of this is presented in the punishment of Rocky Whelan, a convict who had spent much time on the island and would later go on to become one of Tasmania’s most deadly bushrangers.

The man was a native of County Wexford, and knew me at home when a boy. He informed me that he had been seventeen years on the island, and had not the slightest hope of ever leaving it; but his trials were only then about to commence, as the next time I saw him he was handcuffed to a lamp post, his hands tied behind his back, and a gag in his mouth, secured round his head by something resembling a head-stall, and there he remained exposed to the burning sun and the attack of flies and other insects for eight hours, merely for having a bit of tobacco in his possession. Besides this treatment Whelan had been repeatedly flogged, imprisoned in the dark cells with the black gag — a favorite instrument of torture at the time — in his mouth for eight consecutive hours at a stretch, it being the opinion of the doctor that the punishment could not be applied for a longer period without endangering the life of the prisoner. This gag, Cash tells us, was generally inflicted for some disrespect, whether real or imaginary, on the part of the prisoner towards the officials, when on their tour of inspection round the solitary cells. Whelan had been reduced to a skeleton, and the wounds on his back rarely had time to heal before being opened afresh by the cat, and all for some trivial offence such as men tioned. Under this treatment Whelan finally became so callous that he seemed to regard the lash, the dark cells, and all the rest of Price’s contrivances with the most: perfect indifference.

Source: Sydney Sportsman (Surry Hills, NSW : 1900 – 1954), Wednesday 7 August 1912, page 3

Another punishment Price seemingly enjoyed applying was the “pepper mill”. This punishment usually followed a flogging and saw the flogged man sent to grind cayenne pepper into dust. The convict was required to wear a mask for his own safety. The dust filled their eyes and lungs, and even stuck to their still-fresh lacerations as they crushed the peppers with a wheel. This would be repeated until Price was convinced that the lesson had been learned.

John Giles Price [WIkimedia Commons]

Later, the Australian gold rush had seen the population explode, and along with it came an explosion in crime. Ironically, the prisons soon became full and the Australian authorities were in a bind about what to do with the overcrowding. The solution came in the form of the acquisition of a fleet of abandoned ships that were converted into prison hulks. In Williamstown, at Point Gellibrand, the two harshest hulks in the fleet were Success and President. Here, the worst offenders were sent to be straightened out. Their possessions were destroyed; they were stripped, shaved bald, washed and deloused; then, after being uniformed, transferred to their cell. Talking of any kind was prohibited, as was any form of reading (including the Holy Bible), and the tiny portholes kept the prisoners in almost absolute darkness.

However, things got worse if any rules were broken. Typical punishments could be reduction in rations, being chained to the boltholes on deck, being flogged, or solitary confinement in the dark cell (known as the “black hole”). Another punishment was putting offenders in a cell that was too small to stand upright in. They were then suspended by their hands from the roof just high enough off the floor that they couldn’t sit down. The porthole was just on the waterline, and water would seep in through the mesh over the hole.

Another popular punishment in the hulks was to put irons on the ankles of the offender, and to lock their hands in a device that was essentially an iron bar, tethered to a belt at the waist. This kept their hands too far apart to allow them to effectively manipulate objects, or even to feed themselves.

It should come as no surprise that many of these punishments became popular on the hulks when John Giles Price was employed as the inspector general of prisons. It would prove to be his downfall as during a routine visit to the quarry at Point Gellibrand to inspect the convicts, he incited an attack by informing a convict that under the new rules that had just been implemented, any infraction would give prisoners an extra six months onto their sentence. This convict had been reprimanded for a very minor offence and only had one month left on his sentence, but under the new ruling he would have to remain on Success for an extra half a year. The furious convicts set upon Price with their tools and beat him to death on the beach.

Wax statue of a convict in “slops” on Success. [Author’s collection]

Maddening Silence

In the 19th century prisons began to adopt a Quaker ideal that the ultimate punishment is to leave the offender to ruminate on their misdeeds and punish themselves. To this end, prisoners were individually lodged in cells, all of which were juxtaposed to prevent the inmate looking across to another prisoner, and they were to remain in complete silence and isolation. In Port Arthur, this was known as the “model” or “separate” prison, and was reserved for the worst of the worst. While most prisoners were kept in the penitentiary, which was essentially a large dormitory, the separate prison was arranged in the panopticon style – a central guard point with corridors extending outwards to allow maximum visibility.

Corridor at Model Prison, Port Arthur. [Tasmanian Archives]

The “dark cell” in the separate prison took this to the next level by keeping the inmate in complete darkness. Modern studies have demonstrated that a human can spend thirty days in solitary confinement before suffering mental illness, but in the days when Port Arthur was operating inmates could be locked up in solitary for months. The bushranger William Westwood declared that after one of his many escapes he was sent by Commandant Booth to spend three months in the dark cell. The insane prisoners became a big problem for the authorities at Port Arthur and a lunatic asylum was built to house the men that had been completely broken by the treatment.

The corridors were carpeted to nullify the sound of movement, and inmates and guards wore cloth slippers for the same purpose. All verbalising was prohibited and inmates communicated with their guards using sign language. When moving around outside the cells the inmates wore calico masks that hid their identities to prevent recognition by other inmates. The result of such profound isolation and silence was that many of the prisoners began to suffer insanity, with hallucinations being a common symptom.

Many of the features of this system were adopted by prisons more broadly in the coming decades, notably the use of masks, silence and social isolation. However, in many cases these were employed only at the outset of a prisoner’s sentence to break them in, or as a punishment for rowdier inmates. Prisoners would be shifted to new cells every time they came back from work and were only referred to by the number pinned to their shirt, or their cell number.

[SLV]

Leg Irons

One of the most common punishments for offenders was to be put in leg irons. This saw iron shackles being placed around the ankles, joined together with an iron chain or attached to a ball and chain. The shackles – or irons – were riveted together by a blacksmith to make it more difficult to remove them, thus making them permanent for the duration of the prisoner’s sentence (though convict-made irons tended to be far less durable than those made by professional blacksmiths). In rare instances prisoners were able to mangle the irons in order to get their feet out.

The ball and chain was more typical on convict ships, with the device being removed upon arrival in Australia. Naturally the deterrent effect came from the very real risk of the weighted iron ball dragging the offender down if they jumped overboard. However, most existing examples of the ball and chain were actually replicas made in the 1860s and later as souvenirs, when the closure of many of the penal colonies saw a thriving tourism industry develop. During this time many of the “facts” about life in the convict era were spread by tour guides looking to shock and titillate their audiences.

Ball and chain [Sydney Living Museums]

Typically, offenders would have heavier irons attached depending on the severity of their offence. This could be in the form of thicker irons or heavier chains; the worse the behaviour, the heavier the irons. It was reported that while he was doing time on Norfolk Island, Martin Cash was at one time made to wear shackles as thick as a man’s arm, making him barely mobile.

As the irons were permanently attached to the convict’s ankles until a blacksmith removed them, they were forced to undertake literally every action with them on, including sleeping. In order to be able to undress while wearing the irons, convict uniforms featured trousers that lacked a fly, but rather buttoned up on the outside of the leg.

It was not uncommon for some offenders to have spent so much time in leg irons that it permanently crippled their ankles and feet. The infamous Tasmanian convict Mark Jeffrey was so badly crippled by his time in irons that he required two walking sticks to be able to move or stand. Due to the way the irons would bruise and break the skin, convicts began using strips of cloth bound around the ankle and big toe to try and pad against the shackle. This was referred to as a “toe rag”, and eventually became used as a derogatory term for a former convict.

Typically, the chain would be kept from dragging along the ground by attaching a cord to the central ring and connecting it to a belt around the waist. There were variations on the theme, of course, with one being belts on the calf that kept the irons from dragging – as depicted in photos of the Clarke brothers following their capture.

Rules for Prisoners and items of discipline such as handcuffs and chains. [Tasmanian Archives]

Time Marches On

In time the use of capital and corporal punishment in Australia was phased out, though not until well into the 20th century in some cases. As late as 1958 men were sentenced to be flogged, the last two being William John O’Meally and John Henry Taylor. As for execution, the last person legally executed in Australia was Ronald Ryan in 1967, though the death penalty was still applicable up until 1985, when New South Wales were the last to abolish it.

Given the cruel and severe nature of many of the punishments that convicts faced, it is little wonder that so many “took the bush” and why so many bushrangers would rather have died in battle than be captured alive. There is no evidence to suggest the severity of the punishments acted as a deterrent any more than a good upbringing and fair treatment. Indeed, many commentators viewed the prisons as a breeding ground for criminals as the old hands gave tuition to the young offenders. The punishments also had a brutalising effect on many, as evidenced by the later deeds of William Westwood and Rocky Whelan following years of floggings, solitary confinement and other punishments. It seems that the socio-economic factors in crime were overlooked or misinterpreted, with crime broadly considered the province of the underclasses. Indeed, many of the crimes people were subject to these punishments for breaking were crimes against property, demonstrating that the punishments were not so much about morals as they were about preventing the poor from competing with the ruling class over wealth and resources. Not much has changed, as there are many people that continue to campaign for the reintroduction of these extreme measures for many of the same reasons.

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