The 'illegal sentences which magistrates were daily passing': The Backstory to Governor Richard Bourke's 1832 Punishment and Summary Jurisdiction Act in Convict New South Wales

Abstract

<p>Recent literature has recast the history of the British empire as a vast project of intervention in and reordering of colonial legal administrations. Closer inspection of local moments of legal reform, however, reveals substantial complications and contradictions in that project. This article re-considers Governor Richard Bourke's Punishment and Summary Jurisdiction Act 1832, the most celebrated legal intervention in the history of the 'convict colony' of New South Wales by a governor whose liberalism and humanitarianism epitomized the spirit of imperial reform agendas. The nature and objectives of Bourke's so-called Fifty Lashes Act are widely misunderstood. This article shows that while Bourke positioned his Act as a matter of legal urgency, its core aim was to render convict punishment more useful and economical. Moreover, Bourke's reforms were less innovative than is commonly assumed, being mostly required to re-assert and refine existing law that was being disregarded. Nevertheless, Bourke's reforms did address long-contested legal issues surrounding the summary jurisdiction of colonial magistrates and the local application of English transportation law. The backstory to the Act reveals the remarkably complicated and truly disordered state of the law in New South Wales, but this article also shows how the implementation of legal reform was seasoned with confusion and caution.</p>