Legislation, ideology and personal agency in the Western Australian penal colony

This art icle was downloaded by: [ Universit y of West ern Aust ralia] On: 31 March 2014, At : 21: 09 Publisher: Rout ledge I nform a Lt d Regist ered in England and Wales Regist ered Num ber: 1072954 Regist ered office: Mort im er House, 37- 41 Mort im er St reet , London W1T 3JH, UK World Archaeology Publicat ion det ails, including inst ruct ions f or aut hors and subscript ion inf ormat ion: ht t p: / / www. t andf online. com/ loi/ rwar20 Legislation, ideology and personal agency in the Western Australian penal colony Sean Wint er a a Universit y of West ern Aust ralia Published online: 21 Oct 2013. To cite this article: Sean Wint er (2013) Legislat ion, ideology and personal agency in t he West ern Aust ralian penal colony, World Archaeology, 45: 5, 797-815, DOI: 10. 1080/ 00438243. 2013. 850903 To link to this article: ht t p: / / dx. doi. org/ 10. 1080/ 00438243. 2013. 850903 PLEASE SCROLL DOWN FOR ARTI CLE Taylor & Francis m akes every effort t o ensure t he accuracy of all t he inform at ion ( t he “ Cont ent ” ) cont ained in t he publicat ions on our plat form . However, Taylor & Francis, our agent s, and our licensors m ake no represent at ions or warrant ies what soever as t o t he accuracy, com plet eness, or suit abilit y for any purpose of t he Cont ent . Any opinions and views expressed in t his publicat ion are t he opinions and views of t he aut hors, and are not t he views of or endorsed by Taylor & Francis. The accuracy of t he Cont ent should not be relied upon and should be independent ly verified wit h prim ary sources of inform at ion. 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Term s & Condit ions of access and use can be found at ht t p: / / www.t andfonline.com / page/ t erm s- and- condit ions Legislation, ideology and personal agency in the Western Australian penal colony Downloaded by [University of Western Australia] at 21:09 31 March 2014 Sean Winter Abstract The archaeology of British convict transportation has typically been interpreted using concepts of penal ideology and human agency, but with limited reference to the law that governed the process. Transportation was defined by numerous pieces of legislation that changed over time and encompassed an ideological shift from the banishment of criminals to their reform in penitentiaries. The use of legislation as an interpretative framework is assessed with reference to the Western Australian penal colony in operation between 1850 and 1875. This case study suggests that only some aspects of the convict system can be explained with reference to law and that archaeological data are best interpreted with reference to legislation, penal ideology and human agency. Keywords Convicts; transportation; legislation; penitentiary; Western Australia. Introduction Convict transportation was used by the British government for over 250 years, resulting in the forced migration of as many as 300,000 people (Pearson 1999, 7). Transportation was both ideologically and legislatively driven. However, both the ideology underpinning transportation and the legislation in which was enshrined developed at different speeds and this impacted on the form of the penal system in different places at different times. Archaeological investigation of convict transportation has tended to focus on ideology, interpreting archaeological data as resulting from ideological forces. Likewise, historical investigation of convict transportation has also tended to eschew the use of legal structures as interpretative tools. Of the few historical analyses of transportation law that have been completed, research by Kercher (2003) World Archaeology Vol. 45(5): 797–815 Archaeology of Legal Culture © 2013 Taylor & Francis ISSN 0043-8243 print/1470-1375 online http://dx.doi.org/10.1080/00438243.2013.850903 798 Sean Winter Downloaded by [University of Western Australia] at 21:09 31 March 2014 demonstrates convincingly that transportation legislation was complex, with its interpretation reliant upon specific legal knowledge. This perhaps explains both archaeologists’ and historians’ reluctance to use the law as an interpretative framework. Transportation, however, was intrinsically a legal system and the careful use of legislation as an interpretative tool allows intriguing readings of archaeological data to be developed. This paper examines convict transportation to Western Australian in the second half of the nineteenth century as a competing process of ideology and law, with both also subject to human agency. It first discusses previous archaeological approaches to transportation, then covers the development of legislation over time, moving to show how law, ideology and personal agency combined to influence the physical form of the Western Australian system. The archaeology of convict transportation Despite the British transportation system being a global one, comprising over twenty different penal colonies, and also long running, beginning c. 1640 and lasting until the 1920s (MaxwellStewart 2010; Pearson 1999; Winter 2013), archaeological investigations have concentrated primarily on transportation to Australia between 1788 and 1868. There has been virtually no archaeological examination of British convict transportation to the Americas, Southeast Asia or other more isolated colonies such as Mauritius, Bermuda and Gibraltar. Similarly, while other European countries such as Spain, France and Russia also used convict transportation, there is limited archaeological investigation of convictism in these areas, with Smith and Buckley’s (2007) study of French convict transportation to New Caledonia a notable exception. Within Australia, the legal aspects of British penal transportation have been investigated only as a small part of larger interpretative frameworks. Researchers have examined convictism primarily as an ideological system that encompassed processes of punishment, discipline, labour and reform, and have interpreted human relations in terms of binary oppositions such as domination and resistance. These approaches have followed the seminal works of theorists such as Ignatieff (1978) and Foucault ([1977] 1995) who examined convictism in terms of ideological changes to penal theory rather than law. In these works, both Foucault and Ignatieff positioned legislative change as the result of pressure from reformers such as Bentham and Howard, who argued for the reform of criminals through punishments that targeted the mind rather than the body. Traditional forms of punishment, including capital and corporal punishment, targeted the body and were considered non-reformative (Foucault [1977] 1995). Transportation was effectively a commutation of the death penalty and as such was one of these older physical punishments; it was used in lieu of execution and operated effectively as a social death (Millett 2003) in that it removed convicts from their family and social networks, usually permanently. As such the new theory opposed transportation as a practice and ideological developments have been positioned as driving legislative change (Foucault [1977] 1995). While not entirely ignoring legislation, researchers have followed this ideological approach when interpreting archaeological data from convict sites. Both Gojak (2001) and Gibbs’ (2012) overviews of convict archaeology in New South Wales demonstrated that the majority of studies there (e.g. Karskens 1984, 1986; Thorp 1988) have concentrated on ideology rather than legality within the system. The situation is similar for other major studies outside New South Wales and in particular prison architecture, and archaeology, has been examined for ways in which it Downloaded by [University of Western Australia] at 21:09 31 March 2014 Legislation, ideology and personal agency 799 Figure 1 Legal framework through which convicts progressed towards freedom in the 1820s (after Kerr 1984). embodied changes to penal theory rather than law. Kerr’s (1984) examination of Australian penal architecture used both ideology and law to interpret the built environment. He positioned convict sites within a legal system where good behaviour saw convicts progress up a ladder towards freedom, while poor behaviour resulted in greater punitive measures and eventually execution. He defined convict sites based on their position within this legal framework, as convicts at different levels of the system inhabited different types of sites (1984, 61) (Fig. 1). He then used ideology to explain the development of convict sites and buildings over time. Bavin (1994) followed this approach in her examination of three nineteenth-century Western Australian prisons, suggesting their design was strongly based in contemporary ideological approaches to reform and that they were intended to be symbolic of both punishment and reform. Gibbs’ (2001, 2006) study of the larger Western Australian system divided sites into those used for running the system, those for housing convicts, administrators and soldiers and those for the utilization of convict labour. However, his studies both of the Lynton convict depot (Gibbs 2007) and of mining sites staffed with convict labour (Gibbs 1997) were based within an ideological interpretative framework that also stressed the individual agency of specific people. A number of studies have used Goffman’s (1968) theoretical framework within which convict sites (typically prisons) are interpreted as ‘total institutions’ where human interactions are governed by very specific rules designed to regulate human behaviour (Casella 2009a). In reality, the entire penal system was a total institution, with prisons simply being the most obvious expression of that system. In Tasmania, Casella (1999a, 1999b, 2000, 2001a, 2001b) investigated the Ross Female Factory in terms of convict agency, positioning female convicts within a domination/resistance framework. Casella’s use of law was intrinsically based in the institutional ideology supporting legal systems designed to control convict behaviour and in convict resistance to those systems. Recent studies by Mein (2012) and Casella (2009b) have Downloaded by [University of Western Australia] at 21:09 31 March 2014 800 Sean Winter also used institutional models to interpret prison sites. While none of these studies ignored the legal framework within which convictism was situated, there has been a tendency to see the law as a passive, responsive part of a larger ideology, rather than an active driver of human actions within the global penal system. As such there has been limited use of legislation to develop interpretations of archaeological data. While it is impossible to divorce ideologies of punishment and reform from examinations of convictism, the addition of a legal framework adds interpretative possibilities for archaeological data. Repositioning transportation as a legal system that incorporates ideological change allows a range of new questions to be asked. These include (among others): whether law and ideology were in step with one another; whether convict administrators worked to the letter of the law or actively undermined it; how people within the system used the law to their advantage; and what impact legislation (as distinct from ideology) had on the physical form of the system. Legislation and penal theory The interpretation of archaeological data within a legal framework requires an understanding of the legislation that defined the system. British convict transportation was enshrined within a complex system of laws that were enacted and repealed over time. This review breaks this legislation into two types: laws governing the process of transportation and laws governing the running of prisons. The distinction is important because it reflects ideological shifts towards reformative practice over time. Time and space preclude a complete discussion of all relevant penal law, but there were overarching Acts of Parliament, which applied to the whole global penal system, and local laws specific to each of the twenty-two British penal colonies and to Britain itself. During the seventeenth century, transportation to North America was made possible within a range of legislation (Shaw 1966, 24–5), before the Transportation Act (1718) enshrined it as a specific process within British law and allowed for its use on a much wider scale (Kercher 2003, 529–32; Shaw 1966, 33). Under this law the transportation process operated within the wider system of indentured labour migration (Grubb 2000). The 1776 American Revolution caused the end of transportation to the Americas and required Britain to develop new convict colonies. Prison reformers argued for the end of transportation in favour of reformative punishment in British prisons, and this led to the passing of the Penitentiary Act (1779). However, this was quickly replaced by a new Transportation Act (1784) and it was this law that legalized convict transportation to Australia (Shaw 1966, 49). While reformative penitentiaries were possible under this new Act, they were generally ignored (Shaw 1966, 45) and it was not until the 1830s–40s that ideology caught up with law and they came into widespread use. A new law, A Bill for the Transportation of Offenders from Great Britain (1824), allowed the Privy Council to convert any new or existing colony within the Empire to penal status and gave the British government greater control over those colonies. The first half of the nineteenth century saw a change in emphasis away from transportation to incarceration and this required new legislation. Although the Penitentiary Act (1779) had been an early attempt to engender this change, it was not until the Gaols Act (1823) and two new Prisons Acts (1835 and 1839) that the prison option became a legislative reality. These Acts applied only to England and Wales, but similar legislation was enacted for Scotland and Ireland. Downloaded by [University of Western Australia] at 21:09 31 March 2014 Legislation, ideology and personal agency 801 Importantly, the 1835 Act legislated for the appointment of Prison Inspectors who had power over any prison in Great Britain. This was followed by the Prisons Discipline Act (1843), which empowered a Surveyor General to oversee all prisons within the UK, although this power ostensibly spread throughout the entire Empire. The Prisons Act (1865) consolidated central control of all prisons throughout the Empire under the Surveyor General in London. The implementation of these Acts mirrored the general acceptance of the efficacy of the new reformative penal theory (Foucault [1977] 1995). The British government, however, saw the strategic benefit of the use of convict labour in certain circumstances (Winter 2013, 137) and consequently continued the practice until 1875 for British criminals and until the 1920s for Indian convicts (Pearson 1999, 7). In general however, the British government moved away from the use of transportation, replacing it with incarceration within penitentiary-style prisons. From the 1830s, transportation, which until this point had been essentially non-reformative, began to incorporate the new theory, with convicts incarcerated in British penitentiaries prior to transportation and in colonial penitentiaries upon their arrival in the colonies. Ideologically, transportation was based in the idea of the permanent removal of convicted criminals. Legally, the system enforced this through laws that enabled the transportation of convicts from Britain, but none that assisted their return, and contained legal provisions that forbade them to return to Britain before the complete expiration of their sentence. Convicts who attempted to return early from the North American colonies faced execution (Morgan 1985), and after 1784 the system of conditional pardons gave convicts the freedom of the entire British Empire, except Britain itself. Convicts attempting to return while conditionally pardoned were arrested and re-entered the system for further transportation (Winter 2013, 139). Initially the range of local colonial laws meant that transportation in the seventeenth and eighteenth centuries was largely ad hoc, with colonial governments having significant control over the local operation of the penal system. However, over time the system became standardized under the central control of the Colonial Office in London, and the passing of the 1824 Transportation Act consolidated that control. Shortly following, in 1828, British law was extended into the eastern Australian colonies under the Australian Courts Act (Kercher 2003. 539). Ostensibly this meant that British common law would also be applicable in the New South Wales and Van Diemen’s Land penal colonies, unless different local legislation overrode it. Kercher (2003) shows convincingly that within colonial courts British law was often interpreted and applied in ways different from those used in Britain. Nevertheless the basis of colonial law was British legislation. Legislation was applied in two ways in British penal colonies. Imperial law, passed through the British parliament, applied to all colonies equally. However, at the same time, colonial administrations had power to pass local laws, and additionally, the British parliament often passed laws specific to individual colonies. Where a conflict between imperial and local law occurred imperial law was considered to take precedence (Kercher 2003, 562). Problematically, all colonial administrations passed local laws specific to that colony, and so it is necessary to understand both universal imperial law and specific local law in order to understand the operation of individual penal colonies. Despite this, some law was clearly implemented equally across all colonies. After 1858 the various British penal colonies were all required to report to London using the same format (Stanley 1859, 165–7) and centralized control was extended by the 1865 Prisons Act, which applied equally to all prisons throughout the Empire. The law that regulated convict transportation throughout its 300-year history was clearly complex, regularly changing and operated on a scale from intercontinental to local. This law 802 Sean Winter provided a framework for what should have happened in the past. However, as with ideology, law is clearly subject to the whims of human agency. The very need for British penal colonies would suggest that humans do not always follow the laws set down to regulate their behaviour. Evidence of people within the penal system (whether convicts, free settlers, military or civilian administrators or others) following, subverting or manipulating these specific laws allows the understanding of human reaction to legal structures imposed by the ruling British government of the time. Downloaded by [University of Western Australia] at 21:09 31 March 2014 The Western Australian penal colony The Western Australian penal colony is used as a case study to assess the utility of legal frameworks for interpreting archaeological data. The Western Australian penal system has tended to be positioned as the end product of the wider Australian process of convict transportation (e.g. Hughes 1987), and there has been limited archaeological or historical investigation of Western Australian convictism (Millett 2003, 10). However, the Western Australian penal colony was enacted sixty years after New South Wales, under entirely different circumstances, informed by different ideologies and supported by very different legislation. As such, ongoing research is demonstrating significant differences from the penal experience in the eastern Australian colonies. Western Australia was settled in 1829 as the first free (i.e. without convicts) British colony in Australia. After initial successes it was beset by a number of problems and struggled to survive through the 1840s. It was the most isolated colony within the Empire and suffered severe shortages of capital and labour. Through the 1840s contact with the rest of Empire was irregular, maintained through only one shipping firm (Broeze and Henderson 1986; Statham 1981b) and emigration to the colony was almost non-existent. By 1848 the colony’s population was only 4622 people (Vanden Driesen 1986, 3), scattered in small settlements throughout the southwestern corner of Australia (Fig. 2) and the colonial economy was stagnant. This led to some of the leading citizens of the colony requesting conversion to penal status in 1849 (Statham 1981a). The Western Australian penal colony was enacted on 1 May 1849, upon a decision from the Privy Council under the 1824 Transportation Act (Grey 1849, 250–1). Additionally, some provisions of the Prisons Act (1835) and Prisons Discipline Act (1843) also applied in Western Australia. Between 1850 and 1868 approximately 10,000 male convicts were transported to the colony and, while the penal system was largely dismantled during the 1870s, Western Australia retained its status as a penal colony until 1886 when Fremantle Prison was handed over to the colonial authorities (Gibbs 2001, 62). Legislation was used in Western Australia to attempt to address problems encountered in other British penal colonies. The needs of the colony for a labour force that could be used across a wide area with a dispersed population meant that a new way of organizing convict labour was required. However, legislation defined that any solution must fit within the existing scale of convict treatment. Over the duration of transportation the British government had used a range of different legislative strategies to organize convicts within the penal network. Systems that worked were retained and ones that failed were abandoned. By 1850 the scale used by Kerr (1984) (Fig. 1) had been significantly refined. Assigning bond convicts to free settlers (assignment) had been considered a failure in the colonies of New South Wales and Van Diemen’s Downloaded by [University of Western Australia] at 21:09 31 March 2014 Legislation, ideology and personal agency 803 Figure 2 Map of the Western Australian colony, early 1850s, showing population centres. Land (Grey 1849, 250–1) and was abandoned in the 1830s. Likewise penal settlements had been replaced by the penitentiary system. The Van Diemen’s Land probation system, which attempted to build a network of small penitentiaries throughout the colony, had also failed (Brand 1990) and was not considered in Western Australia. In the colonies of Gibraltar and Bermuda, where labour requirements were confined to a small geographical area, probation labour gangs were Downloaded by [University of Western Australia] at 21:09 31 March 2014 804 Sean Winter used (Hollis-Hallett 1999; Sawchuck, Tripp and Mohan 2010), but these had limited utility for the wider areas of Western Australia. The Australian colony of Victoria had similar labour needs to Western Australia in the late 1840s and the British government had attempted to use legal processes to frame the convict system there. Convicts arriving in Victoria immediately received their conditional pardon with the intention that they would form a free labouring class that would not need the financial support of the government. However, this failed, as it left the government with no way to control the pardoned convicts and no way of regulating their labour (Erskine 1849, 58–9). Western Australia needed a system that fitted within existing law, but which avoided the problems encountered in other colonies. The solution was to use the ticket-of-leave system to regulate convict labour in Western Australia. Ticket-of-leave was a form of parole in place within the convict system since 1801 (Kercher 2003, 548), but used sparingly in other colonies. The colony also needed the capacity to enact reformative processes and punish recalcitrant convicts, and hence a central penitentiary was also required. Physically the system was designed around a central administrative centre comprising a large penitentiary at Fremantle and a series of eight regional convict-hiring depots (Gibbs 2001) to house ticket-of-leave men in areas where convict labour was most needed. Penitentiaries were built throughout the British Empire in the 1840s and ’50s, and the construction of Fremantle prison can be understood as part of a larger ideological shift to the punishment and reform of convicts, replacing the earlier process of exiling criminals through transportation. As soon as the construction of Fremantle Prison was proposed, it was immediately regulated by existing legislation. Under the Prisons Discipline Act (1843) the Surveyor General of Prisons in Britain, Joshua Jebb, was responsible for the form and construction of the prison. Considerable correspondence between Jebb and the Western Australian Comptroller General of Convicts, Edmund Henderson, over the construction of the prison ensued, with Jebb having the final say on the design (Kerr 1984, 165–6). Henderson, overseen by Jebb, designed a prison that was informed by contemporary design, the needs of the colony and both ideological and legislative necessity. The form of Fremantle Prison was that of a standard British penitentiary, which incorporated the capacity to run the separate system operated at Pentonville Prison with the public works system operated at Portland Prison, both of which were legislated for. Its operation was overseen legislatively by the Surveyor General in Britain and, as such, Fremantle Prison, while existing on the opposite side of the planet from Great Britain, was essentially legally part of the British prison system. Archaeological survey by Bavin (1994) demonstrated the general conformity of Fremantle Prison to standard British models and, along with ideology, legislation can be used to explain the operation and form of the structure. While a standard British prison was easily accommodated within existing legislation, the needs of the colony for a dispersed labour force required a combination of existing and new law. Henderson consequently, in 1850, drew up new law in the form of relatively simple Ticket-of-leave Regulations (Henderson 1851b, 126–8), which were subsequently rewritten in 1851 (Henderson 1852, 198–200) to address developing conditions within the colony. These regulations provided a legal framework that governed ticket-of-leave behaviour. Upon receiving their ticket-of-leave, convicts were confined to a geographical area (usually a district) and had to make regular reports to the local resident magistrate, but otherwise had freedom of movement, the right to negotiate with employers for fair wages and the right to own property (Henderson 1851b, 126–8; Henderson 1852, 198–200). Henderson was instructed to develop: Legislation, ideology and personal agency 805 regulations affecting these men [that] should be as simple as possible and should avoid any unnecessary interference with the holder of the ticket-of-leave, the object being that he should enjoy all the essential privileges of a free labourer, and all the moral training which that condition implies, subject only to the wholesome power of bringing him under strict control in case of serious misconduct. Downloaded by [University of Western Australia] at 21:09 31 March 2014 (Grey 1849, 250–1) Within British law there was also no existing legal framework for country depots. Instead, the authorities developed these as places for free settlers to meet and hire available ticket-of-leave men. However, they were also a way to control ticket-of-leave movement within a district (Henderson 1851a, 105) and were in part intended as ‘places of coercion’ (Fitzgerald 1852, 165). As such, the depots served as a disciplinary and administrative network (Gibbs 2001, 63; Trinca 1993, 50) that extended the reach of the convict establishment into regional parts of the colony. The depots were a new system and their construction required governing regulations to be written and passed into law (Henderson 1855, 136–42). These instituted a hierarchy of control at the depots and governed the relationships between the civilian Senior Assistant Superintendent (hereafter referred to as the Superintendent), responsible for running each depot, and the military Royal Engineers, responsible for their construction and maintenance. Each depot was thus governed by two legal documents: Regulations for Officers and Regulations for Ticket-of-leave Men. These documents were used to interpret data derived from archaeological investigation of three convict depots at Guildford, Toodyay and York (Fig. 3). The application of the law as an interpretative framework, however, could not fully explain data recovered during these Figure 3 Map showing location of Eastern District convict depot sites. Downloaded by [University of Western Australia] at 21:09 31 March 2014 806 Sean Winter investigations. Instead, results suggest that these regulations were only one of a number of forces that defined the way the depot system developed. As well as legislation, the construction and day-to-day running of these depots was also the result of the convict establishment’s ideological need for control and the individual agency of depot inhabitants. Archaeological data, derived from excavation, spatial analysis and building recording, were used in combination with documentary evidence to answer questions about convict life-ways and the development of the Western Australian penal system. At each of the three depots, archaeological and documentary evidence suggests that the Royal Engineers manipulated specific aspects of the Regulations to their own advantage and to undermine the position of the civilian Superintendent. Legally, and in the view of the colonial government, the Superintendent was the most important individual at each depot (Henderson 1855, 136–42). Under the Regulations, Superintendents had total control of all aspects of depot operation, with one exception. Clause Three stated that: At those stations where the erection and repair of public works generally are placed in the immediate charge of the Royal Engineer Department, the superintendent must be strictly governed by the instructions of the Engineer Department in respect to the erection of all works on the station, placing at the disposal of the officer (a non-commissioned officer of the Royal Sappers and Miners) in charge of the works all the labour at his disposal. (Henderson 1855, 137) This clause gave the Royal Engineers autonomy over the construction of depots, and the Superintendent had no legal power to direct their labour or to influence the depot layout. Each depot had the same range of structures (Table 1) based on standard designs. However issues with building supplies meant that construction was slow (DuCane 1853, 215, 1855, 147) and it took five years, from 1852 to 1856, to construct the buildings at each site. Instructions from the colonial Governor were that certain structures, namely the Superintendent’s quarters, the convict barracks and administrative buildings should be given preference in the order of construction (Fitzgerald 1853, 196). At each depot, however, the first buildings finished were a gaol and quarters to house the Royal Engineers, while the Table 1 Structures initially built to standard designs at each convict hiring depot Standard structures Convict barracks Lock-up or gaol Superintendent’s quarters Warder’s quarters Sapper’s quarters Commissariat Infirmary Stables Cookhouse Smith’s or carpenters’ store Privies Used for Accommodation for ticket-of-leave men and, later, bond convicts Holding recalcitrant convicts for transport to Fremantle Prison Accommodation for the Superintendent and his servant Accommodation for convict warders Accommodation for soldiers of the Royal Engineers Offices and stores for the running of the depot Field hospital for sick and injured convicts Accommodation for horses Kitchen for feeding convicts Workshop for sappers of the Royal Engineers Self-explanatory Legislation, ideology and personal agency 807 Downloaded by [University of Western Australia] at 21:09 31 March 2014 Superintendent’s quarters was the last building constructed. At Toodyay the sappers’ quarters were finished a full three years before the Superintendent’s quarters were even begun, while at York the difference was two years and at Guildford a year. Spatial site and building recording and analysis reinforce this use of law by the Royal Engineers for their own advantage. At the Toodyay depot (Fig. 4) the Royal Engineers laid out the site choosing the best location for themselves, separating themselves spatially from convicts and civilian staff and actively undermining the power of the Superintendent. This 18ha site is on a hillside with a northerly aspect and it was clearly broken into three distinct areas. The Royal Engineers’ area took precedence at the top of the hill, overlooking and separated from the rest of the depot by the natural feature of a small gully and creek and by the placement of an imposed garden. Additionally they provided themselves with personal ablutions in the form of Figure 4 Plan of the Toodyay convict depot c. 1856, based on a plan by Manning (1856a). Downloaded by [University of Western Australia] at 21:09 31 March 2014 808 Sean Winter privies and a well, all completed before the Superintendent’s quarters were commenced. When finally constructed, the Superintendent’s quarters were built downhill from the convict area, overlooked by the convict barracks. Spatially, the Superintendent was accommodated in a position that suggested he was inferior to his convict charges. Furthermore the Superintendent’s quarters was placed in a position where it would be regularly inundated by smoke from the depot forge and smith’s store, pushed by the prevailing easterly winds that are standard between September and April each year. A similar situation occurred at the Guildford depot (Fig. 5). Here the Royal Engineers were constrained by a much smaller area and the depot was laid out on a flat elongated lot, comprising only 1.8ha. However, once again they organized the space to their own advantage. Buildings and an existing road were used to separate the Royal Engineers from the rest of the site. Lieutenant Edmund DuCane of the Royal Engineers was the ranking officer in charge of all three depots, and he used this power to allocate himself 13.2 per cent of the depot land for his own house, finished in July 1852 (DuCane 1853, 215) before any other structure. However, the day-to-day running of the depot was left to the civilian Superintendent, whose quarters were not finished until August 1855 (DuCane 1857, 42). The sappers’ quarters and commissariat took up another 16.4 per cent of the site and in total 29.6 per cent of the site was occupied by six Royal Engineers (the Lieutenant, his servant and four sappers). The sappers’ quarters faced south, away from the convict precinct, were symbolically separated from it by a road and in late 1853 a ten-foot high wall was built around the convict area (DuCane 1855, 197) to increase the separation. When it was finally built, the Superintendent’s quarters were positioned next to the existing colonial gaol and his privy was located against the wall of the gaol. In total, the Superintendent, supposedly the most important person at the depot, was allocated only 7.9 per cent of the site. Building recording also supports the interpretation of the Royal Engineers using Clause Three to their own advantage. While most of the structures at all three depots were demolished by the early twentieth century, one building (the Superintendent’s quarters) is extant at York and two (DuCane’s house and the commissariat) are extant at Guildford. DuCane’s house is significantly altered from its original form (Allia 2005, 50), but archaeological recording and interpretation of the other two structures were conducted. Both were built using convict labour, under the direct supervision of the Royal Engineers (Hasluck 1973, 43–4). The Guildford commissariat, a structure that was inhabited and used by the sappers, displays a high level of quality in its construction. The bricks were laid in Flemish bond (Fig. 6), with care and skill. Openings such as windows and doors were consistently spaced and structural elements such as lintels, architraves and vents were all uniform. In contrast, the York Superintendent’s quarters, while structurally sound, were constructed with little care. The building contained a combination of styles and there were inconsistencies across a range of building elements. The bricks were primarily laid in colonial bond (also known as English garden wall bond). However, there were occasional sections of wall within the structure laid in Flemish or English bond. In colonial bond, the number of stretcher courses between header courses is usually consistent, but, as demonstrated in Fig. 7, there were multiple coursing changes across the lengths of individual walls. Additionally, the structure displayed contradictions within other elements, with three different styles of fireplace, three different styles of lintels, two styles of architrave and other minor differences. These differences can in part be blamed on the convict workforce, comprising men with differing skills and from different regional backgrounds. In addition, this workforce probably also changed regularly, as ticket-of-leave men arrived and left Downloaded by [University of Western Australia] at 21:09 31 March 2014 Legislation, ideology and personal agency 809 Figure 5 Plan of the Guildford convict depot c.1856, based on a plan by Manning (1856b). Downloaded by [University of Western Australia] at 21:09 31 March 2014 810 Sean Winter Figure 6 Guildford depot commissariat south wall, showing Flemish bond and consistency of structural elements. Figure 7 York depot Superintendent’s quarters, east wall, showing changes in brick bond. Downloaded by [University of Western Australia] at 21:09 31 March 2014 Legislation, ideology and personal agency 811 the depot at regular intervals, providing a small amount of labour on each structure while in attendance (Winter 2011, 67). However, both buildings were constructed using the same rotating labour force, under supervision of the Royal Engineers. Yet the Guildford commissariat was a high-quality building while the York Superintendent’s quarters was not. The poor structural quality of the Superintendent’s quarters can be interpreted as a deliberate lack of care by the Royal Engineers in charge of supervising its construction. The construction of a gaol as one of the first buildings at both the Toodyay and York depot and the positioning of the Guildford depot adjacent to the existing colonial gaol seem ideologically driven rather than legally required. There was no requirement within the Regulations for a place of incarceration at the hiring depots. Instead, they stipulated that ticket-of-leave men should be treated the same as free labourers rather than as convicts. Despite this, each depot included a lock-up from the very beginning, mirroring Governor Fitzgerald’s (1852, 165) desire that the depots be also places of coercion. This ideologically motivated construction of a gaol was rapidly proved to be unneeded and, when the York and Toodyay depots both moved location in 1852, a lock-up was not built at the new sites. The good behaviour of the ticketof-leave men meant that the depots developed as open sites, with limited restrictions on their movement. While in each case there was a demarcated convict area located in the centre of the depot and symbolically separated from the outside by distance and other structures, the archaeological evidence from Toodyay and York would suggest that the convict barracks were open structures, and that there were no walls or other restrictions. Instead, both depots were surrounded by picket fences. This would suggest that the wall at Guildford was designed to separate convicts symbolically from soldiers, rather than to restrict convict movement. The hiring depots were designed to allow settlers to access convict labour, but needed to be open places to facilitate this (Trinca 1993). This reflected both the law governing ticket-of-leave movement and the needs of the colony for easily accessible convict labour. Conclusions Archaeological investigation of Western Australian convictism suggests that the legal framework that governed the system is an appropriate interpretative tool in some cases. However, some events are understandable only as ideologically driven or as the result of human agency, and these were often at odds with the law. However, it is clear that knowledge of the legislation underpinning the system allowed the interpretation of archaeological data that would not otherwise be explicable. As with ideology, law provides a specific set of rules within which human beings operate. In cultures where behaviour is heavily regulated through law understanding that law allows the understanding of past human behaviour using archaeological evidence. Knowledge of law, then, provides a framework for understanding what should have happened in the past. Evidence of deviation from, or the manipulation of specific law, allows the understanding of human reaction to legal structures imposed by ruling bodies. The archaeological potential for the use of law in interpretation is considerable and would suggest that archaeologists should arm themselves, where possible, with knowledge of the laws used by past cultures. However, as this study suggests, human behaviour is not fully understandable simply by concentrating on ideology, legislation or agency. Instead all aspects needed to be considered to develop nuanced and appropriate interpretations of the development of the convict system. 812 Sean Winter Sean Winter University of Western Australia sean.winter@uwa.edu.au References Allia, S. 2005. ‘Colonial Period (1840 to 1890) Brick Buildings in Guildford, Western Australia.’ Honours thesis, University of Western Australia. Downloaded by [University of Western Australia] at 21:09 31 March 2014 Bavin, L. 1994. ‘The Punishment Administered: Archaeology and Penal Institutions in the Swan River Colony, Western Australia.’ PhD thesis, University of Western Australia. Brand, I. 1990. The Convict Probation System: Van Diemen’s Land 1839–1854. Hobart, TAS: Blubber Head Press. Broeze, F. and G. Henderson. 1986. Western Australians and the Sea: Our Maritime Heritage. Perth, WA: Western Australian Museum. 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An Act For the Further Preventing of Robbery, Burglary and Other Felonies, and For the More Effectual Transportation of Felons, and Unlawful Exporters of Wool; and For the Declaring the Law upon Some Points Relating to Pirates. 4 Geo. I, c. XI. Great Britain. Original not seen, cited in Shaw (1966, 13). 1779. A Bill, With the Amendments, To Explain and Amend the Laws now in being, relating to the Transportation, and the Imprisonment, of certain Offenders. 3 Geo. IXX. House of Commons Sessional Papers of the Eighteenth Century 1715–1800, Great Britain. Accessed at http://gateway.proquest.com/openurl?url_ver=Z39.882004&res_dat=xri:hcpp&rft_dat=xri:hcpp:rec:hcsp-000611 1784. A Bill For The effectual Transportation of Felons and other Offenders, and to reduce the several Statutes concerning Transportation into One Act of Parliament; to authorize the Removal of Prisoners in certain Cases; and for other Purposes therein mentioned. 3 Geo. XXIV. House of Commons Sessional Papers of the Eighteenth Century 1715–1800, Great Britain. Accessed at http://gateway.proquest.com/openurl? url_ver=Z39.88-2004&res_dat=xri:hcpp&rft_dat=xri:hcpp:rec:hcsp-001071 1823. A Bill for consolidating and amending the laws relating to the building, repairing and regulating of certain Gaols, Bridewells, and Houses of Correction, in England and Wales. 4 Geo. IV. Nineteenth Century House of Commons Sessional Papers, Great Britain. Accessed at http://gateway.proquest.com/ openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp&rft_dat=xri:hcpp:rec:1823-008177 1824. A Bill for the Transportation of Offenders from Great Britain. 5 Geo. IV. Nineteenth Century House of Commons Sessional Papers, Great Britain. Accessed at http://gateway.proquest.com/openurl? url_ver=Z39.88-2004&res_dat=xri:hcpp&rft_dat=xri:hcpp:rec:1824-008849 1828. A Bill (as amended by the committee) to Provide for the Administration of Justice in New South Wales and Van Diemen's Land, and for the more effectual government thereof, and for other purposes relating thereto. 9 Geo. IV. Nineteenth Century House of Commons Sessional Papers, Great Britain. Accessed at http://gateway. proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp&rft_dat=xri:hcpp:rec:1828-010875 1835. A Bill (as amended by the committee) intituled, an Act for effecting greater Uniformity of Practice in the Government of the several Prisons in England and Wales; and for appointing Inspectors of Prisons in Great Britain. 6 Will. IV. Nineteenth Century House of Commons Sessional Papers, Great Britain. Accessed at http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri:hcpp&rft_dat=xri: hcpp:rec:1835-01551 1839. A Bill [as amended by the committee] for the Better Ordering of Prisons. 2 Vict. Nineteenth Century House of Commons Sessional Papers, Great Britain. Accessed at http://gateway.proquest.com/openurl? url_ver=Z39.88-2004&res_dat=xri:hcpp&rft_dat=xri:hcpp:rec:1839-018165 1843. A Bill for the Improvement of Prison Discipline. 7 Vict. Nineteenth Century House of Commons Sessional Papers, Great Britain. Accessed at http://gateway.proquest.com/openurl?url_ver=Z39.88-2004&res_dat=xri: hcpp&rft_dat=xri:hcpp:rec:1843-020828 1865. Prisons: A bill to consolidate and amend the law relating to prisons. Vict. III. 565. Nineteenth Century House of Commons Sessional Papers, Great Britain. Accessed at http://gateway.proquest.com/openurl? url_ver=Z39.88-2004&res_dat=xri:hcpp&rft_dat=xri:hcpp:rec:1865-041034