The Path to Freedom
Overview
Qualified Levels of Freedom:
1. Ticket of Leave
2. Conditional Pardon
3. Free Pardon
Absolute Pardon
Free by Servitude
1. Freedom v emancipation
2. Certificate of Freedom
» Overview
Once a convict had served their original sentence, they were deemed to be ‘free by servitude’ or ‘freed men’ or ‘free men’ and were entitled to unrestricted travel and to live and work freely in the community. However, prior to the completion of their original sentence, different levels of qualified freedom were available, subject to the convict meeting the various regulatory requirements. These included tickets of leave, conditional pardons and free pardons (all of which were often referred to as indulgences). Each of these qualified freedoms required formal application to and approval by the Government. The system as established by Governor Arthur in Van Diemen’s Land (VDL) was slightly more complex than that in New South Wales (NSW).[1]
General Musters still required all freed or free men and women to attend. Failing to attend a muster would mean indulgences were revoked: 'As sufficient notice is given, those Persons who do not make their appearance will Forfeit all Indulgences they hitherto have had from the Crown'.[2]
» Qualified Levels of Freedom
1. Ticket of Leave
Convict discipline depended not only on punishment but also on incentives and rewards. It was considered that the best inducement to good behaviour was the prospect of shortening the convict's period of servitude. Governor King introduced the ticket of leave system in NSW in 1801. It helped reduce costs by allowing those who could support themselves honestly to do so and was also a reward for good behaviour.[3]
After serving a portion of their sentence and being of good behaviour, a convict could apply for a Ticket of Leave. This indulgence allowed convicts to work for themselves or others on condition that they remained in a specified area, reported regularly to local authorities and, where possible, attended divine worship every Sunday.[4]
There was no fee charged for a ticket of leave application.[5]
1.1 Changes to the system in VDL
In August 1841 the requirements for a Ticket of Leave were outlined as follows:
That applications for Tickets-of-Leave shall not be received by the Police and Visiting Magistrates until the following periods shall have been served in the colony by the applicants; viz.-
Convicts under sentence for seven years to have served four years; under sentence for fourteen years, six years, and under sentence for life, eight years in the colony,
excepting in cases of public service rendered, and upon those occasions the applications are to be received and forwarded without reference to the period of service in the colony.[6]
In April 1843, amending legislation was passed in England which was extended to the colonies and provided that:
Those persons who have obtained tickets-of-leave may possess personal property, and may bring actions for the recovery of any property with the exception of real property, which they cannot hold; but wherever a ticket-of-Leave is revoked, the property so acquired is declared to vest in the crown, and shall be disposed of at the discretion of the governor …[7]
In November 1850, under the Probation System, the ticket of leave system was further updated for female convicts as follows:
…. In my Despatch of the 8th January last, I transmitted copy of a correspondence which had taken place between the Comptroller General and myself as to the expediency of inducing Passholders to remain in one service, by allowing a diminution of the periods for which they are required to serve for a Ticket of Leave, proportionate to the length of their continuous service.
2. Since writing that Despatch the breaking up of the Establishment on board the Anson, and the sanction which Your Lordship had given for the distribution of the female convicts into private service immediately on their arrival have brought the subject of the Regulations under which Female Passholders were allowed to enter service prominently under notice, and considering that no step could be more likely to lead to the reformation of the women than one which would give them settled habits, and allow that favorable relation to arise between master and servant which length of service is almost certain to produce, I have proposed that every engagement should be for twelve months terminable during that period by the employer as heretofore, but terminable only on my authority on the part of the Passholder should any sufficient cause be shewn, and that for every year of continuous service a deduction from the period for which they would otherwise be required to serve for a Ticket of Leave should be made in accordance with the following scale which was submitted in my Despatch of the 8th January.
|
Period of Service |
Deduction |
|
1 Year |
2 months |
|
1½ “ |
3½ “ |
|
2 “ |
5½ “ |
|
2½ “ |
8 “ |
|
3 “ |
11 “ |
and for each successive six months a deduction increasing by two weeks.
Thus, under this regulation a Convict remaining for three years in one service would become entitled to a deduction of eleven months, and if she continued in the same service for six years, to a deduction of three years, three months & two weeks …[8]
1.2 Carrying the Ticket of Leave
Convicts were required to carry their Ticket of Leave at all times and, if they failed to produce it at time of muster, would be considered Prisoners of the Crown and could be returned to Government Service.[9]
1.3 Revocation of a Ticket of Leave
Tickets of Leave could be revoked (or not granted) as punishment for any breaches of the convict laws, including absconding, being absent from muster or, for women, being pregnant.
The following article appeared in the Launceston Examiner:
PRINCIPAL SUPERINTENDENT'S DEPARTMENT. March 10th, 1842. The Ticket-of-Leave granted to Catherine Fawles, per Hector, has been cancelled by order of the Lieutenant-Governor; His Excellency considering her unworthy of the indulgence, in consequence of her having been sent to the Female House of Correction in a state of illegitimate pregnancy.
...
The promises of Ticket-of-Leave given to the under-mentioned convicts have been cancelled by order of the Lieutenant-Governor; His Excellency considering them unworthy of the indulgence in consequence of their having been sent to the Female House of Correction in a state of illegitimate pregnancy: Anne Armstrong, Newgrove. Jane Skinner, ditto. Jane Owen, ditto.[10]
2. Conditional Pardon
Convicts were eligible to apply for a Conditional Pardon after a certain amount of their sentence had expired, they were of good behaviour and were holding a Ticket of Leave as follows:
… That applications for Conditional Pardons from convicts holding tickets-of-leave shall not be received until the applicants, if under sentence for seven years, shall have held their ticket for one year; if under sentence for fourteen years, two years; and if for life, three years: but in no case can the application be received and forwarded for the Lieutenant-Governor's consideration until the convicts under sentence for seven and fourteen years, and for life, shall have served four, six, and eight years respectively in the colony; …[11]
and…
It is to be distinctly understood, that those convicts only who have held their tickets uninterruptedly for one two, or three years, as the case may be, are allowed to apply for Conditional Pardons.[12]
Conditional Pardons could also be granted in exchange for information leading to the apprehension of a person for a crime.[13] Convicts applied at their local Police Office and applications were sent to the King or Queen for approval. Often pardons were received a year or so after the application. A Conditional Pardon gave the convict the status of a free person except that they were only allowed to travel within certain jurisdictions.
Those neglecting to produce their Conditional Pardon at time of muster would be considered Prisoners of the Crown and could be returned to Government Service.[14]
2.1 Conditional Emancipation
In the earlier years of colonisation, the term conditional emancipation was often used but had the same meaning as conditional pardon. Government notices sometimes used the term, for example in 1816 ‘HIS EXCELLENCY the GOVERNOR in CHIEF having been pleased to extend Conditional Emancipations to the undermentioned Persons …’.[15] The term was used less after about 1820 in relation to the document itself but continued to be used in general discussion. However, it was clearly the same instrument evidenced as follows:
REWARD, whereas, on the night of the 10th of Dec. last, a most barbarous and cruel Murder was committed on the body of Eleanor Doran,[16] wife of John Doran, on the road between Hobart and New Norfolk, about five miles from the latter place.
… I am authorised … to promise a Reward of a free pardon to any person (not being the actual perpetrator of the deed) holding a Conditional Emancipation or a Conditional Pardon … who shall give such information as shall be the means of bringing the perpetrator or perpetrators of the said horrid murder to Justice …
M. FORSTER, C. P. M.[17]
Female convict Phoebe McCluckey, who arrived in VDL via NSW in April 1816, married John Gee in VDL in October the same year.[18] Gee had been transported for life arriving in NSW in 1802 and later in VDL in 1814. His records state he was granted a conditional emancipation on 7 August 1821.[19]
2.2 Extended Pardons
In NSW, prior to July 1845, Conditional Pardons were limited to the colony and later could be extended to either everywhere except Europe or only in Australian colonies and New Zealand. From October 1846 Conditional Pardon holders could travel anywhere except back to their place of transportation.[20]
Conditional Pardons were similarly extended in VDL:
Comptroller-General's Office,
14th July, 1845.
In reference to the notice from this office under date 21st June, notifying that existing conditional pardons would, on application, be extended to the Australian Colonies and New Zealand, the Lieutenant-Governor has now been pleased to direct, that all instruments of conditional pardon shall be immediately forwarded to this office, in order that the same may be laid before his Excellency, and replaced in the hands of the holders of the same by fresh instruments of pardon, enabling them to proceed to the Australian Colonies and New Zealand whenever they may think fit to do so.
M. Forster, Comptroller-General.[21]
Tuesday, October 30, 1845.
COLONIAL SECRETARY’s OFFICE.
The Lieutenant Governor having received instructions from Her Majesty's Secretary of State, signifying Her Majesty's approval of the condition of the Pardons held by the undermentioned persons being extended to a residence within the Australian Colonies and New Zealand, has directed the same to be published for general information …
Mary Ryan, William Bryant …
Mary Ann Sullivan, Sovereign …
Mary Ann Kerr, Hector …[22]
GOVERNMENT NOTICE.
Colonial Secretary's Office, January 11, 1847.
His Excellency the Administrator directs it to be notified, that it has been decided by Her Majesty's Government to qualify, in the Pardons granted to Convicts in Australia, that condition which confined the effect, of the Pardon to the Australian Colonies; and to give the Convict, either Colonial or British, the power of removing to any place which he may desire, provided he should not return to the country or colony from which he had been transported. Conditional Pardons granted hereafter will, therefore, be available everywhere save in the country or colony from which the parties to whom they may be issued may have been transported.
It is further notified, that this arrangement is to have a retrospective effect; and that all persons who now hold Exceptive Absolute Pardons available everywhere except in Europe, or Conditional Pardons available either in the Australian Colonies or in Van Diemen's Land only, will have extended to them the benefit of this regulation, provided they have not disqualified themselves for receiving this indulgence by any Colonial offence subsequent to the issue of their former Pardons.
Those persons who are desirous of obtaining new Pardons will apply to the Police Magistrate of the District in which they reside, returning at the same time the Deed of Pardon which they hold; and for the extended form of Pardon the lesser fee of two shillings and sixpence will be demanded, to repay to the Colonial Treasury the expense of printing the deeds on parchment, and for the time of the clerk employed in preparing them.
By His Excellency's Command,
J. E. BICHENO[23]
GOVERNMENT NOTICE
Colonial Secretary's Office, April 5,1847.
The Lieutenant-Governor having, received instructions from the Secretary of State for the Colonies, signifying Her Majesty's approval of the Pardons held by the under mentioned persons being extended, the only condition of such Pardons, being that the holders thereof shall not return to or be found within the United Kingdom of Great Britain and Ireland, His Excellency has directed the same to be notified for general information:
… Mary Monk, Frances Charlotte …
Jane Willing, Platina …
By His Excellency's Command,
J. E. Bicheno.[24]
2.3 Breaching the extension limitations
The first Transportation Act established returning from transportation, without any legal authority, a capital offence. In the 18th and early 19th century, anyone caught would be sentenced to death under the 'Bloody Code' but, as hanging became unpopular from the late 1820s, the punishment was converted to transportation for life.[25]
Three women were hanged between 1754 - 1764 for returning from transportation - possibly from the Americas. Three men were hanged in the 19th century, the last male was in 1810 at Warwickshire. Although several women were given the death sentence none was hanged for this offence after 1764.[26]
Mary Ann Fielding, aged 19, originally convicted in 1795 in England of stealing, was sentenced to 7 years’ transportation and arrived in Sydney in 1796 aboard the Indispensable. After returning to England before the expiration of her sentence, she was again convicted and sentenced to transportation for life, arriving back in NSW in 1801 aboard the Nile.[27]
Susan Courtney, aged 25, was convicted in England in 1817 for forgery and sentenced to 14 years’ transportation. She arrived in Hobart via Sydney in 1818 but, by 1823 she had made her way back to England, was convicted of returning from transportation and sentenced to death – commuted to transportation for life - and returned to NSW aboard the Grenada in 1825.[28]
2.4 The Cost of Pardons
The cost of obtaining a Deed of Pardon was outlined as follows:
… His Excellency has decided that the course formerly pursued in issuing Deeds of Pardon to convicts entitled them, shall in all future applications be reverted to viz that the personal description of the convict, and the fee of 3/6 for registering the Pardon shall be forwarded by the Police Magistrate of each District before any Deed of Pardon will be issued …
I have also to inform you that in cases where the holder of a Deed of Pardon applies for a pardon with extended conditions, a fee of 2/6 is to be demanded, and also forwarded to this office with the Deed in question.[29]
The fee for Free and Conditional Pardons was increased in 1841 to five shillings and applicants were required to produce certificates of good conduct from their employers.[30]
3. Free Pardon
A Free Pardon was granted to a convict being officially forgiven, usually in response to an act of bravery. This could be granted locally through the Lieutenant Governor. Male Convicts were granted Free Pardons for capturing bushrangers or murderers on the run. It was harder for a female convict to achieve a free pardon, but that's exactly what Isabella Renshaw accomplished in 1836:
The Lieutenant Governor has been pleased to grant a Free Pardon to Isabella Renshaw, HYDERY, (the wife or James Kerr) as a reward for her heroic and meritorious conduct in the capture of Henry Hunt [the bushranger].[31]
» Absolute Pardon
An Absolute Pardon meant that a convict's sentence was completely remitted. All their civil rights were restored and they could move beyond the limits of the colony or even return to Britain.
Absolute Pardons were considered to be
the highest and greatest Indulgence which can be extended to those under the Sentence of the Law, and consequently of the utmost Importance, [and] it will be strictly confined to the industrious, sober, honest, and truly meritorious, and the most Unquestionable Proofs, of Rectitude of Conduct for a long Series of Years will in all Cases be required.
… no Person under Sentence of Transportation for Life shall apply for an Absolute Pardon until he or she shall have resided for the Space of Fifteen Years in this Colony. And such Persons as have been transported for limited Periods are desired not to apply for Absolute Pardons until they shall have resided in the Colony for at least three-fourths of the original Period of their Transportation.[32]
To obtain an Absolute Pardon an application was made at the office of the Comptroller-General, Hobart Town, or the Police Magistrate in the interior. A recommendation was then made to the King or Queen for approval of the grant.
Again, those who failed to produce their Absolute Pardon at time of muster would be considered Prisoners of the Crown and could be returned to Government Service.[33]
Only two female convicts in VDL ever applied for an Absolute Pardon, neither of which was granted.
In the case of Susan Jones per Mellish (sentenced in 1830 to transportation for life for stealing 19 shillings) the Absolute Pardon was refused by the Queen and a Conditional Pardon was issued instead.[34]
THE HOBART TOWN GAZETTE.
GOVERNMENT NOTICE.
No. 98 Colonial Secretary's Office, 12th June, 1846.
The Queen has been pleased to grant a Pardon to Susan Jones, per "Mellish", upon condition that she does not return to, or be found within, Great Britain or the Continent of Europe.
By His Excellency's Command,
J. E. BICHENO.[35]
Elizabeth McDonald per Lady of the Lake (sentenced in 1828 to transportation for life for assaulting and stabbing her husband) applied for an Absolute Pardon but was recommended to the Queen for a Free Pardon, which she received on the proviso she did not return to Great Britain or Ireland.[36]
» Free by Servitude
Convicts who had served their complete sentence were described as ‘free by servitude’ but they were still required to apply for their certificate of freedom. This did not apply to male and female convicts who were sentenced to life. Their only options were to apply for one of the previously described pardons.
1. Freedom v emancipation
At its most basic level emancipation simply means freedom or liberation. Emancipation has been defined legally as the act by which one who was under the power and control of another, is set at liberty and is made his own master.[37] Historically, the term has been used in many contexts - religion, politics, slavery and colonialisation to name but a few.
Between 1788 and 1863 many convicts from the United Kingdom were sentenced to transportation to Australia. When convicts finished their sentence, they were freed and referred to as ‘freedmen’ or ‘freed men’. However, many of those who were freed preferred to claim the label ‘free men’. But those who had come to Australia as voluntary free settlers wanted to reserve the label ‘free men’, distinguishing themselves above those who had been ‘freed’.[38]
In other contexts, the Catholic Emancipation Act in 1829 in England restored a range of civil rights to Roman Catholics and allowed them to sit as MPs and hold public office.[39] After the American Civil War, the Emancipation Proclamation of 1863 declared all enslaved persons in the Confederacy to be permanently free.[40]
2. Certificate of Freedom
Certificates of Freedom were introduced in 1810 and were generally granted to convicts upon application to the Governor.[41] Convicts were eligible to receive a Certificate of Freedom or Free Certificate when they had completed their sentence of transportation. Again, this did not apply to convicts who were sentenced to life. The certificate stated that the ex-convict had been restored ‘to all the rights and privileges of free subjects’.[42] Not all convicts collected their certificate and some only did so several years after their sentence expired. The certificate allowed them to seek employment or travel wherever they wished, including returning to their place of transportation.
It seems that between 1810-1819 the terms Certificate of Freedom and Certificate of Emancipation were interchangeable, but the former was much more commonly used than the latter and their effect was identical.[43] Certificates issued after 1827 contained more information including native place, trade, year of birth and physical description.[44]
A variation on the Certificate of Freedom was the Colonial Certificate of Freedom, which related to sentences received for offences committed after arrival in the colony.[45]
|
Forging Certificates of Freedom The following transcript from the George Town Lower Court Records on 4th May 1852, demonstrates the desperate measures some convicts undertook to escape. LC156/1/3 George Town Lower Court Records 1849-1853 DI 167 4th May 1852 present Assistant Police Magistrate & James Gibson Esqr J.P. Mary O’Neil Duke Cornwall P.P. 15 yrs 24 yrs Neither, Charged by D. C. Axtele with absconding and being found on board the City of Melbourne on the 29 April with intent to escape from the Colony having in her possession a false certificate of freedom. Plea Guilty Eighteen Months imprisonment with hard labor.
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FURTHER RESOURCES
Biographical Database of Australia: Tickets-of-Leave
https://www.nla.gov.au/research-guides/convicts/tickets-of-leave
https://libraries.tas.gov.au/family-history/convicts-in-van-diemens-land-now-tasmania/convict-life/
https://www.records.nsw.gov.au/archives/collections-and-research/guides-and-indexes/convict-pardons-conditional-and-absolute
[1] https://libraries.tas.gov.au/family-history/convicts-in-van-diemens-land-now-tasmania/convict-life/; for more information on the NSW system see:
https://www.records.nsw.gov.au/archives/collections-and-research/guides-and-indexes/convict-pardons-conditional-and-absolute
[2] TROVE: The Hobart Town Gazette and Southern Reporter, Saturday 9 November 1816
[3] https://mhnsw.au/guides/convict-tickets-leave/
[4] Ibid
[5] TROVE: The Courier (Hobart, Tas.: 1840 - 1859) Fri 7 May 1841, p2, Government Notice. No. 97, Colonial Secretary’s Office 6th May 1841
[6] TROVE: The Courier (Hobart, Tas.: 1840 - 1859) Fri 3 Sep 1841, p4, Government Notice. No. 214, Colonial Secretary’s Office 24th August 1841
[7] Morning Post London, England, Thursday, May 25, 1843, Issue 22574 p3 Article: TRANSPORTED CONVICTS; TROVE: Launceston Examiner (Tas.: 1842 - 1899) Sat 2 Mar 1844, p6
[8] Letter from No 168, Executive, V.D. Land Govt. House 25th July 1850 signed W. Denison.
This resource is part of Libraries Tasmania’s collection and can be viewed online: Item Number GO25-1-17 59 no 168 pp247-249.
[9] https://www.nla.gov.au/research-guides/convicts/tickets-of-leave
[10] TROVE: Launceston Examiner (Tas.: 1842-1899) Sat 19 Mar 1842, p8
[11] TROVE: The Courier (Hobart, Tas.: 1840 - 1859) Fri 3 Sep 1841, p4, Government Notice. No. 214, Colonial Secretary’s Office 24th August 1841
[12] TROVE: The Courier (Hobart, Tas.: 1840 - 1859) Fri 24 Sep 1841, p4, Government Notice. No. 244, Colonial Secretary’s Office 15th September 1841
[13] https://www.nla.gov.au/research-guides/convicts/tickets-of-leave
[14] https://www.nla.gov.au/research-guides/convicts/tickets-of-leave
[15] TROVE: Hobart Town Gazette & Southern Reporter (Tas.: 1816-1821) Sat 7 Sep 1816, p1, Government and General orders
[16] Known originally as Ellen Best she arrived from Ireland, free, and married John Doran in New Norfolk on 10 October 1830. LIB TAS: Names Index: RGD36/1/1 N 1468 DI 256.
[17] TROVE: Launceston Advertiser (Tas.: 1829-1846) Thu 29 Jan 1835, p5, Advertising
[18] LIB TAS: Names Index: RGD36/1/1 N235
[19] LIB TAS: Names Index: CON31/1/12 p1 DI 145
[20] https://www.records.nsw.gov.au/archives/collections-and-research/guides-and-indexes/convict-pardons-conditional-and-absolute
[21] TROVE: The Cornwall Chronicle (Launceston, Tas.: 1835-1880), Sat 16 Aug 1845, p 81, Advertising
[22] TROVE: HOBART TOWN GAZETTE Tue Oct 30, 1845.
[23] TROVE: Colonial Times (Hobart, Tas.: 1828-1857), Fri 15 Jan 1847, p4, Government Notice
[24] TROVE: Colonial Times (Hobart, Tas.: 1828-1857), Fri 9 Apr 1847, p4, Government Notice
[25] https://www.oldbaileyonline.org/static/Punishment.jsp#transportation; see also Sheffield Independent, Saturday, March 18, 1843.
[26] The final numbers have not been researched. The courts were required to have witnesses testifying that they recognised the offenders. One woman, Jane Smith’s verdict was non-compos mentis. Other women are untraceable.
[27] FCRC database
[28] Ibid
[29] Colonial Secretary J.E. Bicheno to the Police Magistrate at Launceston; source: Manuscript 3251; https://manuscript3251.wordpress.com/2009/10/26/ms-3251-1837-1851-box-2-vol-5/
[30] TROVE: The Courier (Hobart, Tas.: 1840 - 1859) Fri 7 May 1841, p2, Government Notice. No. 97, Colonial Secretary’s Office 6th May 1841
[31] TROVE: The Cornwall Chronicle (Launceston, Tas.: 1835-1880) Sat 2 Jul 1836; Colonial Times (Hobart, Tas.: 1828-1857) Tue 28 Jun 1836, p3, Contents of the Gazette
[32] TROVE: The Sydney Gazette and New South Wales Advertiser (NSW: 1803-1842) Sat 9 Jan 1813, p1, Classified Advertising
[33] https://www.nla.gov.au/research-guides/convicts/tickets-of-leave
[34] LIB TAS: Names Index: CON40/1/5 p34 DI 194
[35] TROVE: The Courier (Hobart, Tas.: 1840-1859), Sat 20 Jun 1846, p4, The Hobart Town Gazette
[36] TROVE: The Courier (Hobart, Tas.: 1840-1859), Sat 14 Sep 1844, p2, Convict Department; LIB TAS: Names Index: CON40/1/3 p53 DI 59
[37] https://thelawdictionary.org/?s=emancipation; Fremont v. Sandowu, 50 N. H. 303
[38] Laugesen, Amanda. Convict words: Language in early colonial Australia. Oxford University Press, USA, 2002. pp. 89-95.
[39] https://www.parliament.uk/about/living-heritage/evolutionofparliament/2015-parliament-in-the-making/get-involved1/2015-banners-exhibition/rachel-gadsden/1829-catholic-emancipation-act-gallery/#:~:text=In%20the%201828%20County%20Clare,Irish%20peasants%20entitled%20to%20vote.
[40] https://thelawdictionary.org/?s=emancipation; https://en.wikipedia.org/wiki/Freedman#:~:text=In%20the%20United%20States%2C%20the,Proclamation%20and%20the%2013th%20Amendment.
[41] https://www.records.nsw.gov.au/state-archives/indexes-online/indexes-to-convict-records/index-to-certificates-of-freedom
[42] https://mhnsw.au/guides/convict-certificates-freedom/
[43] https://mhnsw.au/guides/convict-certificates-freedom/
[44] Ibid
[45] https://www.familysearch.org/learn/wiki/en/Australia_Convict_Records
Page updated 1/05/2023 by Helen Ménard
