This forced a repeal of the 1827 regulations. Governor Bourke kept faith with convicts who had performed services prior to 12 December 1832 (the day of publication in the colony of the Imperial Act) by announcing that those convicts would be given tickets of leave as a temporary measure, until his recommendation to His Majesty for confirmation be considered. Bourke also requested confirmation of tickets promised to female convicts for two years good conduct (Note 3). This approval was given in November 1833 (Note 4).
Bourke considered himself restricted by 2 & 3 Wm IV, c.62 from any further assignment of convicts to their wives (Note 5).
By 1835, Bourke had extended the minimum waiting time for the second class of transportees. Their time ran from the time of assignment, but first they had to spend one, two or three years in the road gang depending on whether the sentence was seven or fourteen years or for life (Note 6). The minimum period of service required for this class of convict was therefore five, eight and eleven years respectively. For a seven year term, at a time when most prisoners after conviction spent about a year in the UK or in transit (Note 7), a model prisoner might expect a ticket after five or six years from conviction. Given that a large proportion of convicts received at least one flogging during their time (Note 8), it seems unlikely that many seven year convicts would get their freedom other than by servitude.
In 1837 Sir John Franklin, Lt. Governor of Van Diemen's Land, recommended, inter alia , a two-tiered system of tickets of leave. At the lower level, the ticket-holder could only work for wages, within a specified district, at a scale set by government at lower than the current value of labour. The ticket-holder could not go into business or hold property. These disabilities were to be removed with the second, upper level ticket, except that the ticket holder could not keep a public house or take assigned convict servants. The second level tickets were voidable only on sentence by a competent court (Quarter Sessions or Supreme Court)(Note 9).
Franklin's proposals for the convict system in Van Diemen's Land were adopted by Her Majesty's Government in 1838, and Governor Gipps instructed to implement them also for New South Wales (Note 10). Although anxious to comply, Gipps responded that he was unable to implement the modifications to the ticket of leave system, because while 2 & 3 Wm IV c.62 remained in place "it is quite beyond the power of any local authority to legalize the holding of property by convicts, or to give convicts the indulgence even of a minor ticket of leave, who have been in the colony less than four, six or eight years..."(Note 11).
Franklin's ticket system does not appear to have been implemented in NSW, being overtaken in the rush to end the convict system there.
The new mark system being tried by Captain Maconochie on Norfolk Island also depended on the ability to grant earlier tickets than provided for by law, and its potential failure was also put forward as a reason for the repeal of 2 & 3 Wm IV, c.62 (Note 12). Perhaps of greater import was the cessation of assignment and transportation, combined with an expectation that expenditure on the convict system in NSW would consequently quickly disappear. This was to some extent being frustrated by 2 & 3 Wm IV, c.62.
Eventually, the Imperial Parliament repealed the old law in 1843 by 6 & 7 Vict, c.7. This was effective in NSW from its proclamation by the governor (Note 13).
Gipps was then able to issue tickets of leave to men of good conduct who had served less time than earlier prescribed, but was still left with a number of incorrigibles (Note 14). These would eventually be sent to Norfolk Island. It is not clear what ticket of leave rules operated between 1843 and 1846. The ticket of exemption from public labour does not seem to have been resurrected. Sampling suggests that some lifers may have benefited, but not those with shorter sentences (Figures 10 to 12).
In 1844 the NSW Legislative Council requested that no tickets of leave be granted or exchanged for Sydney or any other large town (Note 15). However, in practice tickets were, throughout the period, generally issued for the same district in which the convict had been on assignment i.e. the bulk of the tickets were issued for the outer districts (Note 16).
With a view to "the clearing off of the convict establishment in" NSW, Gipps issued a Government Order on 1 May 1846, holding out an expectation of a ticket of leave to every convict who may have behaved well during three consecutive years, and a conditional pardon to ticket of leave holders with good conduct for a further three years (Note 17). This met with approval from the Secretary of State (Note 18). Figure 16 suggests that a large proportion of the longer serving hardened convicts may have been granted tickets at this time.
This represents a reversal of policy regarding tickets of leave, to that in place from 1800 to 1822. The nature of the convicts transported in the later period were more consistently of the habitual criminal kind than in earlier periods (Note 19), yet it became expedient to be more lenient. To speed up the process Fitz Roy proposed in 1847 that ticket of leave holders might with good conduct apply for conditional pardons after only twelve months (Note 20). The proposal was not adopted by Fitz Roy because the anticipated saving in expenditure did not eventuate (Note 21).
Note 2 Introduced by Lord Wynford (Sergeant Best) to equalise the punishment of offenders and to prevent an early enjoyment of plunder: John West, The History of Tasmania , 1852 (Angus & Robertson, Sydney, 1981) , 444.
Note 3 Bourke to Goderich, 10 May 1833, requesting tickets be granted: HRA, I, 17, 120. See HRA, I, 17, 759, for the Public Notice made 31 December 1832.
Note 4 Stanley to Bourke, 18 Nov 1833: HRA , I, 17, 266.
Note 5 Bourke to Stanley, 20 Jan 1834: HRA , I, 17, 341.
Note 6 Bourke to Earl of Aberdeen, 24 July 1835: HRA , I, 18, 47.
Note 7 In the early years the average delay was between 2 & 3 years, but after the end of the Napoleonic wars the time was down to about a year: see Appendix 3, Table 340.
Note 8 See e.g. Return of the Principal Superintendent of Convicts showing floggings in NSW for 1830-7: HRA , I, 19, 654.
Note 9 John Franklin to Lord Glenelg, 7 October 1837, "Communications relating to Convict Discipline in Van Diemen's Land with Appendix", British Parliamentary Papers, Transportation, Vol.6, 1810-41 (hereafter BPP 9), Irish University Press, Shannon, Ireland, 1970, IUP page 431, at document p.4.
Note 10 Glenelg to Gipps, 6 July 1838, acknowledged 29 March 1839: HRA , I, 19, 468.
Note 11 Gipps to Glenelg, 29 March 1839: HRA , I, 20, 74-6.
Note 12 Gipps to Russell, 6 Feb 1841: HRA , I, 21, 215; Gipps to Russell, 27 Aug 1841: HRA , I, 21, 489.
Note 13 Section 5.
Note 14 Gipps to Stanley, 1 December 1843: HRA , I, 23, 235.
Note 15 Address to Gipps by Legislative Council, 1 October 1844: HRA , I, 24, 87.
Note 16 Of 578 tickets sampled over the period, 181 (31%) were for the inner areas (defined for this purpose as Sydney, Liverpool, Parramatta, Richmond-Windsor and their vicinity). The remainder (69%) were for the outer areas (defined to include places like the Hunter Valley, Camden, Appin, Bringelly, Illawarra and Bathurst). See Figures 17 & 18.
Note 17 Gipps to Gladstone, 28 June 1846: HRA , I, 25, 119-20. The Order appeared in the Sydney Gazette 1 May 1846: ibid.
Note 18 Earl Grey to Fitz Roy, 23 March 1847: HRA , I, 25, 397-8.
Note 19 See Shaw, Convicts and the Colonies , Faber & Faber, London, 1966, 148 & 154.
Note 20 Fitz Roy to Earl Grey, 28 October 1847: HRA , I, 26, 32-3.
Note 21 Fitz Roy to Grey, 5 April 1848: HRA , I, 26, 333.