Two contractual arrangements were employed in managing the early Australian convict transports: (1) the charter party, through which the ships were hired, and clothing and provisions were acquired; and (2) the 'contracts of effectual transportation', through which the contractor and his agents were given authority to discipline the convicts throughout the passage, and held responsible for delivering them to the stated destination.
The Charter Party
The contracts for ship-hire were modeled closely on the charter parties employed by the Navy Board for naval transports. They differed in also specifying the table of rations and (in some cases) the articles of clothing that the contractor was required to purchase and supply to the prisoners throughout the voyage. Several complete contracts have survived, and a number of summaries.
There was a second contract, which mirrored the charter party, between the contractor and the ship owners. One copy of these contracts is known to have survived - for the First Fleet ship, the Friendship. Where he was not also the owner, the contractor also issued instructions to the captains relating to the management of the convicts throughout the voyage - fragments of William Richards' instructions for the First Fleet have survived.
The ship owners employed the masters, and issued them with sailing instructions for the voyage, which in some cases could be extremely detailed. We have a copy of the sailing instructions from Camden, Calvert & King to Donald Trail for the Neptune (1790). Camden, Calvert & King seem to have appointed Trail as the de facto commodore of the Second Fleet, so that he assumed the primary responsible for decisions about navigation.
And in their turn, the master employed the ships' officers and crew members, which they signed, either with their name or an X, upon coming aboard. It was through this chain of delegated authority that convict transports were managed.
Accountability was reinforced by reporting arrangements, with the masters writing to the owners and the contractors, and in some cases to government officials, when they touched at foreign ports or encountered friendly ships at sea. Because he did not own the ships he employed (although he had an interest in one of them), William Richards appointed on-board agents, usually the surgeon, and the government usually had an agent - a 'naval agent' or a 'surgeon superintendent' - as well. These men also reported at regular intervals to their superiors. Examples of most of these reports also survive.
In cases of severe failure, the ships' officers might be dealt with through the criminal law (as Donald Trail and his Chief Mate were for the Second Fleet). But it was more usual for financial penalties to be applied - either payments were withheld, or the contractor was 'mulcted', that is, money was taken away.
These arrangements changed and adapted over time, and it is necessary to study the system throughout its entire life to understand fully how it worked.
Contracts of Effectual Transportation
Under the North American transportation system, which survived until the outbreak of the American War of Independence in 1775, the contractors were assigned the legal right to the convicts' service - their freedom and their labor - which was sold in the marketplace upon arrival in an American port to help pay for the cost of the voyage. In Daniel Defoe's classic, 'Moll Flanders', Moll avoids this indignity by arranging for a rich patron to pay these costs.
To modern readers, these arrangements seem to be extraordinary, but they would have seemed familiar to contemporaries, since they were identical to those used for indentured labor, and similar to the master-servant relationship which applied in the workplace, the home and even at school.
These same legal arrangements were employed for the early Australian convict ships, and since there was no labor market in the newly-established colony, the convicts' labor was transferred to the Governor upon arrival. However, the contracts of effectual transportation still performed important functions:
a. They imposed a legal obligation on the contractor and the captain (his agent) to deliver the convicts to the legally-stated destination, and financial bonds of forty pounds per head were provided to ensure that this happened.
b. These contracts created a master-servant relationship between the captain of the ship and the convicts, which empowered the masters to discipline the convicts if their misbehaved throughout the voyage. Strictly speaking, this was not punishment, and the law required any discipline to be proportionate. There was no statutory provision empowering the masters of convict ships to discipline the prisoners, and short of outright mutiny (in which the law of the sea empowered captains to take whatever measures were necessary to defend the ship), the captain would have had no legal authority for his actions.
This section unpacks the legal and contractual foundations on which the transportation system was based.
- Gary L. Sturgess, 25 February 2016