A History of Capital Punishment in the Australian Colonies, 1788 to 1900

Steven Anderson

• Publisher: Palgrave Macmillan
• Year: 2020
• ISBN:
  9783030537678
• Topic: Scienze sociali
• Subtopic: Criminologia

This book provides a comprehensive overview of capital punishment in the Australian colonies for the very first time. The author illuminates all aspects of the penalty, from shortcomings in execution technique, to the behaviour of the dying criminal, and the antics of the scaffold crowd. Mercy rates, execution numbers, and capital crimes are explored alongside the transition from public to private executions and the push to abolish the death penalty completely. Notions of culture and communication freely pollinate within a conceptual framework of penal change that explains the many transformations the death penalty underwent. A vast array of sources are assembled into one compelling argument that shows how the 'lesson' of the gallows was to be safeguarded, refined, and improved at all costs. This concise and engaging work will be a lasting resource for students, scholars, and general readers who want an in-depth understanding of a long feared punishment.
Dr. Steven Anderson is a Visiting Research Fellow in the History Department at The University of Adelaide, Australia. His academic research explores the role of capital punishment in the Australian colonies by situating developments in these jurisdictions within global contexts and conceptual debates.

© The Author(s) 2020

S. AndersonA History of Capital Punishment in the Australian Colonies, 1788 to 1900Palgrave Histories of Policing, Punishment and Justicehttps://doi.org/10.1007/978-3-030-53767-8_1

Begin Abstract

1. Introduction: Thinking About Punishment Over Time

Steven Anderson¹

(1)

The Department of History, The University of Adelaide, Adelaide, SA, Australia

Steven Anderson

Email: [email protected]

End Abstract

Consider the execution of John Knatchbull in 1844 outside Sydney’s Darlinghurst Gaol (Illustration 1.1) compared to that of Ned Kelly in 1880 at the Old Melbourne Gaol (Illustration 1.2). Both were notorious figures in Australian criminal history during their lifetime except that the former was sentenced to a public execution while the latter underwent a private execution. The sketch of Knatchbull, a convicted murderer of aristocratic birth, does well to capture the atmosphere of public executions.¹ To the far right, horses mounted with late spectators are in full stride, rushing to join the throng of an estimated 10,000 Sydneysiders present. In the foreground male, female, and child spectators are all visible in a crowd that swells the closer it comes to the towering image of the scaffold. A dozen mounted military personnel stand guard at the base of the structure. Following the steps upward are two clergymen attending to Knatchbull while the executioner makes the final adjustments to the rope around his neck. The jutting architecture of Darlinghurst Gaol informs the background of the work but the drama is soon to be played out on the tongue of the entrance gate. One imagines that, as Knatchbull fell into the cavity below, the static image of the prison was secondary to the screams, gasps and jolts of Sydneysiders gathered shoulder to shoulder.

Illustration 1.1

The execution of John Knatchbull outside Sydney’s Darlinghurst Gaol on 13 February 1844

(Source ‘Woolloomooloo Gaol, Execution of John Knatchbull’, Government Printing Office, Glass Negative 1–21799, held by State Archives and Records Authority of NSW)

Illustration 1.2

The execution of Ned Kelly inside Melbourne Gaol on 11 November 1880

(Source ‘Sketch of Ned Kelly at the Gallows, Melbourne Gaol, 11 November 1888’, copied and digitised from an image appearing in the Australasian Sketcher, 20 November 1880, p. 185, John Oxley Library, State Library of Queensland, record number: 187795)

The image of Ned Kelly’s hanging gives the opposing perspective of a private execution. The ten thousand itching, impatient spectators at Knatchbull’s feet are exchanged for the cold interior walls of Melbourne Gaol. In the absence of the distracting public, legal functionaries and religious advisors enclose him while the symbol of the cross is held steadily over his head. The white cap would soon be pulled over Kelly’s face, hiding the grotesque contortions that always occur the moment the noose jabs at the neck. Though not depicted in the sketch, contemporary newspaper reports attest to the fact that there was a small crowd watching the hanging in the cellblock itself but not one was a curious onlooker. Each of the twenty-three spectators was present in a professional capacity—mostly journalists and government officials. They recorded their names and occupations as a matter of legal necessity.² To the newspapermen who would publish their accounts, the powerful architecture of the prison was all around them, inhabited by them, inescapable no matter where their eyes looked. From the perspective of Ned Kelly, looking outwards from the drop at Melbourne Gaol, the distractions had been removed; all that was staring back at him was the blank faces of officialdom and the dreary walls of the prison block.

Between the execution of John Knatchbull in 1844 and Ned Kelly in 1880 the Australian colonial parliaments—commencing with New South Wales in 1853—passed legislation to abolish public executions. It irrevocably changed the way hangings were carried out on the continent. However, a closer look at the subject of capital punishment in the Australian colonies reveals a host of other, subtler shifts occurring—not all strictly related to the practice of executions. To begin with the number of available capital crimes were being whittled down. When European settlement took hold at Sydney Cove, a dizzying array of offences could see a person hang—its early penal regime was, after all, a child of England’s notorious ‘bloody code’. Yet, at the conclusion of the nineteenth century no colony had more than a dozen capital offences on their statute books. Mercy appeared to be dispensed more freely as the years passed. For those sentenced to death in New South Wales between 1788 and 1798 only 28% were extended mercy, compared to a commutation rate of 67.1% between 1890 and 1900.³ Moreover, after spiking around the highpoint of the convict era in the 1820s and 1830s, execution numbers in Australia steadily declined in proportion to a growing population. Eventually only criminals of the deepest dye were considered a problem for the hangman to solve—the rest were usually left for the prison warden to sort out. When all things are considered, a forensic examination of the Australian death penalty reveals a punishment never settled or fixed, but one subject to constant debate and revision.

The history of the Australian continent was transformed the moment the British decided to colonize the land to ease the congestion of its own penal system. New South Wales, intended first as a penal settlement, was the first colony established by Britain in 1788. The legal fiction of Terra Nullius, meanwhile, was invoked to deprive traditional owners the control of land occupied by their forefathers. The eastern colonies of Tasmania (formerly known as Van Diemen’s Land), Victoria and Queensland were carved out from the vast tract originally designated for New South Wales. Western Australia and South Australia were established from the outset as separate colonies. It is easy to look back at the six Australian colonies as a homogenous whole but it is important to remember that each one eventually developed its own administration, judiciary and legal system. As such each individual colony’s experience of capital punishment, though evolving in a similar direction, often moved to slightly different time signatures. This similar but separate trajectory was continued even after the six colonies federated to form the new nation of Australia on 1 January 1901. Capital punishment itself was first abolished in Queensland in 1922 while the remaining jurisdictions waited until the latter half of the twentieth century to do the same.⁴

Throughout the nineteenth century, the ‘lesson’ of the gallows was a phrase used often in the Australian colonies. It alludes to the idea that communication is essential to the practice of punishment. Embedded within any execution was a host of messages, the most obvious being strictly penal in nature. In the words of Samuel Frederick Milford in 1866, Judge of the Supreme Court of New South Wales: ‘The object of capital punishment is to alarm and deter persons predisposed to crime from committing it’.⁵ Those administering punishment always looked for strategies to best communicate that fact to the onlooker. For instance, some Australian jurisdictions thought it necessary to hang Indigenous offenders on a gallows mounted at the very spot where their crime was committed, preferably in front of the wrongdoer’s own people. Only then, the authorities believed, could the consequences of transgressing settler law be fully understood. However, the intended lesson of the gallows was often subject to a number of unwanted and unforeseen distractions—even at run-of-the-mill executions of European criminals. An unruly scaffold crowd, a botched hanging, the misbehaving criminal, a punishment too severe for the crime—all of these factors had the potential to derail the example. In the blink of an eye, a just punishment could morph into an unruly exhibition that meant all the wrong things. It is no consequence then that all of these distractions, slowly but surely, were removed by the time of Federation. Hangings were hidden inside the prison, the list of capital crimes was narrowed and the post of hangman was professionalised. Executions became, for most people, only accessible through the reportage of journalists. I argue throughout this monograph that safeguarding the lesson of an execution in the midst of changing cultural beliefs and popular memory is what shaped the evolution of capital punishment over time in Australia.

Chapter 2 sets the scene by providing an overview of Australia’s ‘hanging years’. The colonial period was, after all, where the vast majority of executions took place. It expands upon the existing historiography of capital punishment in Australia to give a basic picture in each of the six c...

Table of contents

• Cover
• Front Matter
• 1. Introduction: Thinking About Punishment Over Time
• 2. Australia’s Hanging Years
• 3. The Ideal and Reality of Execution Procedure
• 4. The Criminal at the Gallows
• 5. The Scaffold Crowd
• 6. The End of Public Executions
• 7. Race and the Reprisal of Public Hangings
• 8. The Push to Abolish Capital Punishment
• 9. Conclusion: Death of a Spectacle
• Back Matter