Professor Barry Godfrey

Director of Research, School of Law and Social Justice University of Liverpool


It is truly an honour and a privilege to be here today to address you about one of Admiral Phillip’s most enduring successes – his stewardship of a penal colony, where he laid the foundations not just for a new settlement which would eventually grow into a vibrant city, but also helped people thrown away by their mother country to become subjects, and later citizens, of a new country. In doing this he helped to solve an enduring problem which bothers us today as much as it did over two hundred years ago: What to do with people who break the law? For Georgian Britain in the 1780s this problem was immediate and pressing. The Bloody Code stipulated the death penalty for anyone who committed any one of the 200 capital crimes. In practice, however, very few people were actually hanged and most were transported to the American colonies, many sent directly from the Old Bailey not far away from this church. American independence forced a change of policy, and after casting around for another suitable place, Australia seemed to offer a number of advantages. It was far away, and it was possible that a new military outpost in the Pacific would dissuade the French from further expansion. As is well known, Captain Phillip was asked to steer the fleet of eleven ships southwards to establish this new penal colony.
The 1,400 people, more than half of whom were convicts landed at Botany Bay on 18 January 1788. The shipment included John Hudson, an orphan sentenced to transportation at the age of nine, the youngest person ever transported out of the 168,000 who were sent to Australia. The flag (and no doubt a toast) were raised in Sydney Cove 227 years ago today. However the original site proved unsuitable and Phillip faced considerable difficulties in establishing a viable settlement, the land was poor and they did not have farmers to tend it with any knowledge, the territory was hostile, and they were, of course, thousands of miles away from home, help, and supplies. The colony was on the verge of outright starvation for an extended period and the people who Phillip needed to farm the land and increase the food-stocks were weak, sick, and generally unsuitable. The Second Fleet arrived in June 1790, having lost more than a quarter of its convict 'passengers' en route through sickness; and the Third Fleet arrived bearing convicts whose physical condition appalled him once again. Matters were made even worse by continuing privation within the settlement itself, resulting from the shortcomings of local agriculture and the failure of supplies to arrive on time from overseas.

So Phillip was faced with a subsistence crisis, as well as controlling the criminal classes. The marines, poorly disciplined themselves in many cases, were not interested in convict discipline. The convict residences – huts really – were only patrolled by marines at night and Phillip relied on the fact that the penal colony was a prison without walls with nowhere for convicts to escape to. Characteristically Phillip used what was at hand to his best advantage. He replaced the Marines with a Night Watch made up of trusted convicts. Not entirely trustworthy, you understand, but fairly reliable, or at least reliably dishonest. This became a pattern with convicts being appointed overseers for the work parties, and, indeed, many convicts became police officers in later years. Previously, in the American colonies, settlers had bought convicts, but in the absence of private employers in New South Wales most convicts remained in government hands throughout the first five years, a considerable advantage to Phillip who was able to build up the colony with convict labour. He was in sole charge of a considerable labour force and was able to put the colony on a sound footing. The threat of both hunger and disorder receded.

Phillip's discipline was firm, but by the standards of his time would not be considered unduly harsh or severe. Moreover he recognized the need to encourage good behaviour as well as to punish bad conduct. He rewarded signs of industry by personal commendation and sometimes by appointment to positions of trust, which carried various privileges. He granted twenty-six pardons to exemplary characters, including fourteen prisoners who had behaved well when the ship Guardian was wrecked. In a further effort to encourage the convicts Phillip made it clear that grants of farmland would only be given to those who proved their worth while under sentence.

Phillip knew that the colony could not be run simply as a prison camp, even if that had been the original intention. In addition to utilising convict labour, and raising some trusted convicts to positions of power and autonomy, he also established the rule of law almost immediately, with convicts and Marines receiving equal rations of food, and everyone who committed a crime in the colony being subject to proper judicial proceedings. He was never a soft touch. In the second month of the colony Phillip had establish a court of law which ordered the flogging of many men, and in its first year of operation, had sentenced twelve men to hang including a seventeen-year old lad for theft of bread. Phillip was opposed to the death penalty aside for the crime of murder, but perceived theft of food as unacceptable in times of scarcity. The establishment of institutional order was a pattern repeated throughout Australia, with the oldest colonial buildings in most towns and cities often comprising of a police station, a courthouse, a church, and often slightly later, of course, a pub.
Phillip’s philosophy of treating people equally was put to the test almost immediately upon arrival in Sydney. Two convicts sought to sue the captain of the First Fleet ship Alexander, for stealing their possessions during the voyage. Convicts in Britain had no right to sue, and Sinclair, somewhat presumptuously as it turned out, boasted that he could not be taken to court by mere convicts. In Britain that would have been true, transported convicts were saved from execution but were considered by law to be civilly dead. Neither slaves nor dead people had the ability to sue. By this time Phillip had already stated his intention that the laws of England would be applied in New South Wales. Nevertheless, he was in charge in the colony, and the law courts there were firmly moulded in his image. He declared that ‘there can be no slavery in a free land, and consequently no slaves.’ If the captain of the Alexander wanted to prove that these people had no right to sue, then he had to prove that they were still serving convicts. Since the documents that showed this were still back in England, he could not. The captain returned the stolen goods. A salutary lesson for the captain, and probably also for Phillip, who ensured that the convict records were fully updated and held in New South Wales from then on.
Those records revealed when convicted people should be made free, and by 1792, when Phillip returned home, some 350 convicts had been restored to freedom. Some emancipated convicts secured passages home but most were unable to do so and were obliged, with diminishing reluctance, to stay in New South Wales. There they found employment mainly on government works, but a minority struck out on their own and took up farming on the land that Phillip had granted to them, introducing a new element into an economy dominated by public enterprise. Phillip deplored the loss of valuable, and now-skilled, labour from New South Wales when former-convicts chose to return back to Britain on commercial ships. He had found them, indeed made them, useful.
When he sailed home, Philip left behind a colony that not only was stocked with convicts, but one reliant on convicts. The convicts had built the roads, the bridges, the stores, the farms, and the government buildings. They built themselves a stake in society, and it should never be forgotten nor underestimated just how extraordinary that was. Offenders were never forgiven back in Britain, nor was there any help or support for reform – indeed there was never any idea that criminals could reform. In New South Wales, and then Tasmania and Western Australia, the criminals founded the State. They were given a chance, and that was largely down to the guiding philosophy of Governor Phillip. He had the wisdom to understand that the colony could only survive if the convicts were brought into respectable society, if they could be brought into repute. Philips’ colony provided the possibility of reform as well as discipline and there were a number of people – now famous Australians celebrated in their own land - who grabbed their opportunity.
For example, Mary Haydock, a young girl from Bury, Lancashire, ran away from her life as a domestic servant in the late eighteenth-century. Dressed as a boy she stole a horse, but was quickly caught and indicted for trial in August 1791. She was sentenced to seven years' transportation, and was carried to Australia on the Royal Admiral in October 1792. She married Thomas Reibey, a free settler to Sydney; and the couple were granted farmland on the Hawkesbury River, where he and Mary lived and farmed following their marriage. The Reibeys established a business on the river, which was so successful that it allowed them to buy up several farms on the Hawkesbury River, where they traded in coal, cedar, furs and skins. Indeed, as the company expanded, and they took on partners, the business traded internationally. When Thomas died in 1811, Mary became sole-carer for the children and manager of various business enterprises. Her businesses thrived, and she acquired considerable wealth, which she was happy to spend on philanthropic works, investing in charities and supporting religious enterprises. Mary recovered her name to such an extent that she became a well-known Sydney resident and is now celebrated as an early Australian citizen on the twenty-dollar bill. She remains an example of a life which could easily have been ruined by her court-imposed sentence. So too does Thomas Greenway, an architect sentenced to transportation for fraud who later designed many of Sydney’s iconic early buildings, and he was also featured on an Australian ten-dollar bill – possibly the only forger who has ever appeared on a banknote. It was Phillip who had recommended his services as an architect to the colonial authorities.

Biographies like Mary’s and Thomas’s are vital to criminologists who investigate why people stop offending which is possibly one of the most important social policy questions of today. They provide evidence to support theories of desistence which emphasise the importance of forming a meaningful relationship, gaining some financial capital (usually through employment), and finding a purpose in life. Since Mary’s life featured all of those factors, and since, unlike many other ex-convicts, she managed not to commit any further criminal offences, stories like hers lend some credence to these theories. The reverse is also true, those convicts who did not take advantage of the conditions that Governor Phillip and others created, and who did not find employment, marriage and children, often fared badly. A convict who shared the same name as the Governor, “Arthur Phillip”, born in Bargeworth, Somerset and convicted of felony, was sentenced to seven years transportation to Australia, sailing out on the Juliana. The son of a shoemaker, he was serving on convict assignment when he stole some sheep and was tried for theft in the colonial court and sentenced to life in the penal colony.  So, of course not everybody reformed, many practised their old criminal skills in a new land, and some clearly never planned to start an honest life.

However, the foundations laid by Phillip at least gave everyone a chance of reform, more chance than they would have had back in England where all that remained for them there was the shadow of the gallows. Many of these early Australians made respectable livings, some made their fortunes. When Charles Darwin passed through Sydney in 1836 he commented (not entirely with generosity of spirit it must be said) that convicts were now earning thousands of pounds a year. Strangely, for a man who believed in evolution, he never quite trusted convicts to have changed their criminal spots. Nevertheless, Darwin could see that the convict experiment in the southern seas had turned many offenders into decent useful members of society. The grandchildren of some of those convicts struggled on the beaches of Gallipoli nearly a hundred years ago, and their children fought at Kokoda and other battlegrounds in World War Two.

I am not suggesting that Captain Phillip arrived in a wilderness and that Governor Phillip left it a land of milk and honey, in fact it was still a pretty rudimentary place to live when he sailed away in 1792. Nevertheless his philosophies in developing the colony had provided a platform for future growth. His enlightened and essentially pragmatic views about developing the human potential at his disposal had determined the future growth of a penal colony into a thriving port and commercial centre, a military outpost, and the beginnings of a city which would later come to be regarded as a jewel in the Australian crown. In my view he should be remembered as much for the work he did in helping to develop the human capacity in early Australia as he is for his military exploits, or seafaring expertise. He was surely a Governor as much as a Captain or an Admiral. But the last word should go to some modern-day Australians. When English cricket fans sang, “You all live in a penal colony” during the Ashes, the Aussies sang back, “You sent us to a sunny Paradise”. They should remember to thank Governor Phillip for his role in creating that Paradise.