Aboriginal convicts: race, law, and transportation in colonial New South Wales

This thesis challenges the long-standing convention within Australian historiography whereby 'Aborigines' and 'convicts' have been treated as two distinct categories. It identifies the points at which these descriptors converge, that is, in the bodies of Aboriginal men from New South Wales sentenced to banishment or transportation. It locates their experiences on a trajectory extending from the early part of the nineteenth century through to the formative middle decades during which the rationale underpinning the trial and transportation of Aboriginal men was refined by the colonial state. In the opening decades of the nineteenth century colonial governors occasionally exercised their prerogative to banish Aboriginal men considered fomenters of hostilities against the colonists. However, they were constrained from making public examples of such men by way of staging trials as early legal opinion railed against doing so. By the middle decades of the nineteenth century colonial discourses constructing Aborigines as British subjects were deployed to argue for the sameness of Aboriginal and white subjects before the law. The perverse corollary of affording Aboriginal people protection under the law was that they also became accountable under colonial laws whose functions were often well outside their ambit of experience. This thesis argues that advocating equal treatment for all served to naturalise the disadvantages faced by Aboriginal defendants in the colonial courtroom thus facilitating trials described as farcical by some contemporaneous commentators. It demonstrates that situating Aboriginal people as British subjects facilitated the criminalisation of some acts that might otherwise be read as political resistance as it was reasoned that one cohort of British subjects could not be considered to be at war with other British subjects. Paradoxically, atypical treatment of Aboriginal people both within and beyond the courtroom was predicated on notions of difference. This led, for example, to the employment of court interpreters to facilitate the trials of Aboriginal defendants. Difference also informed official edicts eventually issued in relation to Aboriginal deaths in custody later in the middle decades of the nineteenth century. Most of all, notions of difference underpinned the rationale of exemplary sentencing that saw sixty Aboriginal men from New South Wales incorporated into the convict system during the first half of the nineteenth century as a strategy to subdue not only the captives but also their respective communities. Tellingly, no Aboriginal women became convicts. It was men, not women, who colonists considered to be martial enemies.