13 Chapter 1 Constables, convicts and corruption How naturally and easily these three words -- ’constable,’ ’convict’ and ’corruption’ -- complement each other in the Australian historical consciousness. The phrase comes from a sub- heading in a book that attempts to explain the historical precedents of the hostile public attitude to the police in Australia.1 While questioning the premise that early nineteenth-century attitudes to the police had permanently tainted relations between them and the public, the authors nevertheless claim that the questionable quality of the men employed during the early colonial period as constables was the ’major defect in the police system’) Historian Humphrey McQueen was prepared to accept that ’one of the heritage of the convicts has been corrupt police forces’.3 While not attempting to deny the existence of corruption, brutality or cowardice amongst the colonial police, I question why only these characteristics have dominated the discourse up until the present time. The English system of parish constables, drawn from the higher strata of town and village life and elected by their community to serve for a year in an unpaid position, was initially imported to the colony to deal with law and order. Governor Phillip was empowered to appoint both constables and night watchmen and, two weeks after the arrival of the First Fleet, he appointed a free man, John Smith, as the colony’s first constable. In 1789, after the robbery of the stores by the marines, Phillip appointed twelve convicts to form a night watch, ’and the first attempt toward a police in this settlement commenced’.4 There is some confusion about the actual number of constables as only ten men can be identified. Of the ten, at least seven were literate and some had good connections.5 It seems that the intention, right from the start, was to establish a literate and capable force. This system continued until the arrival of Governor Hunter in 1795. He instigated the election of unpaid constables by the inhabitants of the colony along 1 D. Chappell, and P.R. Wilson, The Police and the Public in Australia andNew Zealand (University of Queensland Press, St Lucia, 1969), p. 4. The authors discuss the sentiments expressed in a survey carried out in the late 1960s. 2 Ibid., p. 28. 3 H. McQueen, A New Britannia: An Argument Concerning the Social Origins of Australian Radicalism and Nationalism (Penguin, Ringwood, 1970), p. 133. 4 David Collins quoted in J. King, The First Settlement: The Convict Village that FoundedAustralia, 1788-98 (Macmillan, South Melbourne, 1984), p. 136. 5 M. Gillen, TheFounders of Australia: A Biographical Dictionary of the First Fleet (Library of Australian History, Sydney, 1989). 14 the lines of the English system. Recognising the ’very fatiguing duties of a constable’, Hunter offered encouragement in the way of an annual suit of new clothes, a pint of spirits served to each on Saturdays, and the same rations as those given to the military and free people.6 In 1796 the election took place in the districts of Sydney, Parramatta, Toongabbie and the Hawkesbury and the subsequent constables were sworn in and issued with a set of printed instructions as to their duty. Elections took place again in July 1797. A General Order issued at the time stated: The time for the election of constables to serve for the ensuing year being arrived, the governor desires that the inhabitants of the different town and country districts to meet immediately and proceed to the choice of those men whom they are desirous should take upon them that office in their respective districts for the next twelve months.7 Although there is no clear definition as to who could take part in the election, the 1798 General Order included an appeal to ’the gentlemen who have the choice of such persons [constables] will be very particular in their selection.’8 Obviously only a small proportion of the inhabitants of the town and country districts would fit the title of gentleman. Despite the care taken in the appointment of local constables, robberies increased and in 1799, Hunter once again appealed to the respectable inhabitants to form committees to examine the most effective means of combating the problem.9 Complaints about the negligence of the elected petty constables and watchmen continued, but Hunter persisted with the idea of the local community appointing their own upholders of the law. A return of 1801 reveals that 48 constables and watchmen were appointed to watch over a population of 5547 in the colony. Sydney had 27 constables and there were seven at Parramatta, eight at Toongabbie, and six on the Hawkesbury. However, by 1810 and the arrival of Lachlan Macquarie as governor, the appointment of constables had been taken out of the hands of the inhabitants and become the prerogative of the local magistrates. With the free population increasingly comprising ex- convicts, there may have been the suspicion, in the eyes of the authorities, that the community could no longer be trusted to appoint suitable persons for the role of constable. An established, traditional system that had been in place in England, however well it had worked for several centuries, wilted when transplanted to the rough, raw environment of the Hunter to the Duke of Portland, Enclosure: Encouragement to Constables, 30 April 1796, HRA, Vol. I, pp. 566-7. Government and General Order, 11 November 1797, HRNSW, Vol. III, p. 206. Government and General Order, 5 December 1798, HRNSW, p. 513. Government and General Order, 2 July 1799, HRNSW,, p. 586. 15 new penal colony. Although the framework of an English legal system was established from the outset, competing interests, the particular realities of the situation, and the prospect of new possibilities soon left its mark on the imported model.1° The role of the most interactive element of that model, the constable, became more challenging as he was required to police a seemingly unusual population. The English principle of the community itself being responsible for maintaining peace and order and appointing its own representatives to police the community rests to a large degree on the general acceptance of the population of its role in upholding the law. The alternative system is the imposition of a rule from above through agents of the state.11 In the very particular society that was colonial New South Wales during the 1820s and 1830s, where the majority of the population had demonstrated, by their lawful convictions, that they did not always agree with accepted community values or had little interest in upholding certain laws, the parish constable system was ill-suited. Nearly 54000 convicts arrived during this time, out of a total of 80000 transported to New South Wales in the fifty-three years from 1788 to 1841.12 In 1828, only 13 per cent of the population were free immigrants, rising to about 37 per cent by the end of the 1830s. These were also the decades that saw greater than ever numbers of convicts being emancipated and becoming part of the free population.13 The policing of a population comprised mostly of convict and ex-convict members entailed a far greater intervention into everyday lives than was the case in Britain under the parish constable system. Even though they were appointed locally, the constables were, in fact, agents of a penal system rather than representatives of their community. It is the dominance of the penal system in the establishment of Australia that has encouraged a distorted view of many aspects of that early society. Part of the answer to the question posed at the beginning of this chapter lies in the juxtaposition of the words convict, constable and corruption: words that evoke a deeply held conviction in the national consciousness that the beginnings of our society were both unnatural and grotesque. The on- going narrative of the convict era has constantly emphasised the unnatural aspects of the early a0 p.j. Byme, Criminal Law and Colonial Subject: New South Wales, 1810-1830 (Cambridge University Press, Cambridge, 1993), p.155. 11 A.H. King, ’Some Aspects of Police Administration in New South Wales, 1825-51’, Royal Australian Historical Society, Journal and Proceedings, Vol. 42, Part 5, 1956, pp. 206-7. 12 L.L. Robson, The Convict Settlers of Australia (Melbourne University Press, Melbourne, 1965), p. 170. a3 Rossi Report on the Police to Darling, October 7 1826, HRA, Vol. XII, p. 679. 16 settlement.14 Despite attempts by historians such as John Hirst, and contributors to the controversial Convict Workers: Reinterpreting Australia’s Past, to render the colonial experience more normal than has hitherto been imagined,15 the notion of grotesqueness continues to inform popular debate. The existing narrative is reinforced from time-to-time by the publication of books such as The Fatal Shore by Robert Hughes,16 building on nineteenth- century gothic tales from Marcus Clarke, Price Warung, James Tucker and others. It is no accident that Hughes’s book has been one of the most widely-read accounts of the convict era. Nicely situated between popular culture and academia, Hughes’s chronicle of the beginnings and early years of settlement accord with a public imagination that has its roots in the convict historical fiction of nineteenth-century writers. The origins of much of this early writing can be found in the views of anti-transportationists who were mainly responsible for the promulgation of the idea that the penal settlement was mired in slavery, excessive brutality and unnatural behaviour.17 As Richard White demonstrated, attempts to describe Australian society more often ’reflect the hopes, fears and needs of [its] inventor’.Is Furthermore, Laurie Hergenhan points out that ’convicts have always occupied a vivid, if simplified, place in the Australian popular imagination’.19 The legend of the convicts as victims of an unjust society struggling against the double alienation of exile and an outcast social position in the new colony, still resonates today despite various attempts to redress the balance.