Criminal Law and Colonial Subject: New South Wales, 1810-1830.

Criminal Law and Colonial Subject: New South Wales, 1810-1830. – book reviews

Albert J. Schmidt

That Byrne elects the years 1810-1830 is significant, for they mark the critical ones in the transformation of a colonial criminal justice system geared to a convict population to one accommodating a predominantly free society. Although Bryne’s criminal law title suggests a narrowly-conceived legal history, nothing could be farther from the truth. Rather than approaching the law in a formalistic manner, she depicts how the law was perceived and used by various groups in society to their own purposes. In so doing, she greatly enhances our understanding of how Wales.

This study’s importance is not derived, however, from its exploration of the relationship of a colonial people to the law and legal system imposed by the colonizer. That theme has been examined in other instances. The novelty here is how early Australia’s population mix – a tense and sometimes violent one of convict, Emancipist, aborigine, and free settler – sometimes manipulated but eventually adapted this inherited law, “British right”, to its own peculiar circumstances. Alas, the reader is allowed to witness the legal and social foundations of a free society spawned from a penal one despite the criminal law’s endless intrusions into the personal lives of those who elected as well as those who were condemned to live there!

Byrne’s purpose in sifting through detailed court records – court lists, depositions, written defenses, transcripts – is essentially to determine how people relate formally and informally to institutions and power. Her methodology and conclusions should interest a broad spectrum of scholars – legal, social, feminist, and economic historians, sociologists, and anthropologists. The data which she has gleaned reveal the values, concerns, and diverse ways in which magistrates, judges, juries, and ordinary people comprehended property, sexuality, gender, marriage, morality, violence, guilt, suspicion, evidence, and even the offence itself and how they clashed with one another over their differences. The court records also provide insights on what respectability signified and what it meant to be male and female, free and freed in this primitive world of colonial criminal justice.

In order to articulate her thesis the author effectively organizes her subject and enlivens her chapters with case studies. Part I’s “Law and the Person” contains chapters on “Labor”, “The House”, and “The Body”. The meaning of “labor” was of crucial importance in a colony conceived to transform thieves into laborers. Here the convict’s legal status – the relationship of his labor, which was usually assigned by the government to others – and the perception that he could become another’s property came into play. Convicts and the courts, female convict servants, convicts assigned to farms, gang labor, landowners, and overseers attest to this chapter’s substantive range.

The house is discussed as a place violated and as a center of criminal activity. Treatment of the male and female body, on the other hand, involves not only crimes violating the body but reconciling them with disparate popular notions of morality. These differing views are evident, too, in the way that police and magistrates reacted to male and female body crimes.

The second part, labeled “Offence in the Wilderness” is encapsulated in a single chapter, “The Creation of Bushranging”. Part of the lore of early Australia, bushranging was usually an offence by absconding, that is, escaped convicts. Brynes’ examination of the economic and legal implications of absconding for both the free population which participated in the bushranger economy and the bushrangers themselves is for this reader the best chapter.

Part III on “Suspicious Characters: Police and People” examines separately “The Structure and Style of Policing” and “Popular Use of Law.” We learn here that whatever opposition existed in England to the kind of policing established in France, there was no reluctance by Englishmen to impose it on New South Wales. There were, however, clashes between the police and the populace, especially when attempts were made to regulate the free as well as the convict population. As Bryne notes “The manner in which people were arrested and their reactions throughout the period show the convergence of convict policing with policing of a free or freed population” (p. 156). Finally, the last section, “The Courtroom,” incorporates a chapter on “Deciding What Was Good and Bad.”

In conclusion, this book is as much about method as substance. Just as the author’s ideas have relevance for studying criminal law, her methodology also has application to other kinds of legal history. Hers has been an analysis of, to use the words of Medick, “words, images, institutions, behaviors in terms of which in each place people actually represented themselves to themselves and to one another” (p. 9).(1) Wherever such a wealth of material exists, why should not other scholars recreate cultures to show how ordinary people and their institutions connect? Surely an expose like Byrnes’, which shows “how law was lived in New South Wales” (p. 9) merits a new look at legal history methodology, which, after all, has not much changed since Maitland.

Apart from its excellence in substance and method, Criminal Law and Colonial Subject is extensively documented in footnotes, more than thirty tables elaborating on the text, and an appendix; furthermore, it contains a good bibliography and is well indexed.

Albert J. Schmidt Quinnipiac College School of Law


1. H. Medick, “Missionaries in the Row Boat: Ethnological Ways of Knowing as a Challenge to Social History,” Comparative Studies in Society and History 29, no. 1 (January 1987): 86.

COPYRIGHT 1995 Journal of Social History

COPYRIGHT 2004 Gale Group