‘So Much Recklessness’: Abduction in the Colony of New South Wales

Abstract

By contrasting a selection of abduction cases that occurred in the penal era with those that captured the attention of the newspapers during the 1840s and 1850s, this article considers the role of abduction trials during a period in New South Wales when the colony recognised that the procurement of greater political and economic autonomy was dependent upon transforming its reputation from a degraded penal outpost to a respectable British society. Between 1848 and 1851, at the very moment when the political climate reached a definitive tipping point in favour of self-government, three abduction cases came before Sydney's criminal court that attracted unprecedented newspaper coverage and helped to define gender roles in a way that complemented these broader colonial ambitions.

Notes

¹‘A Case of Abduction’, Sydney Morning Herald, 31 December 1832, 3.

²‘Quarter Session Sentences—William and Thomas Richards’, Sydney Herald, 7 February 1833, 3.

³‘Sydney Quarter Sessions: Abduction, William and Thomas Richards’, Sydney Gazette and New South Wales Advertiser, 5 February 1833, 2.

⁴The first English abduction legislation was created in 1487; 3 Henry 7, Chapter II, The Penalty for Carrying a woman away against her Will that hath Lands or Goods. These quotes are from the second Act, which was created in 1557: 4 & 5 Phillip and Mary, c. 8, An Act for the punishment of such as shall take away Maydens that be inheritors, being within the Age of sixteen years, or marry them without the consent of their parents.

⁵William Blackstone, Commentaries on the Laws of England (1765–1769) (Portland: Thomas B. Wait & Co., 1807): Book One, Chapter Fifteen, ‘Of Husband and Wife’, 22. ‘By marriage, the husband and wife are one person in law, that is, the very being or legal existence of the woman is suspended during the marriage …’

⁶Joan Perkin, Women and Marriage in Nineteenth Century England (London: Routledge, 1989), 18; Mary Lydon Shanley, Feminism, Marriage and the Law in Victorian England (Princeton: Princeton University Press, 1989), 22.

⁷Abduction became a capital felony in Ireland in 1707: 6 Anne 16, An Act for the more effectual preventing the Taking away and Marrying Children against the Wills of their Parents and Guardians.

⁸The statutes associated with marriage and abduction are complicated by the fact that different legislation was frequently applied within England and its territories. For a discussion of the evolution of the marriage statutes see Lawrence Stone, Road to Divorce: England (1530–1987) (Oxford: Oxford University Press, 1990), ch. V: ‘From the Marriage Act of 1753–1868’, 121–38. For the abduction statutes see Kiera Lindsey, ‘Taken: A History of Bride Theft in Nineteenth-Century Ireland and Australia’ (PhD thesis, University of Melbourne, 2011), 1–38. In R. v. Kinchela (1848), the Crown Prosecutor referred to the 1557 Act, which was the basis of 9 Geo IV c. 31, s. 20.

⁹9 Geo IV c. 31, sections 19 and 20, Offences against the Persons of Individuals, 1828. See also Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field's Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes (Philadelphia: J. B. Lippincott Co., 1893), ch. XV: ‘Of Offences against the Persons of Individuals’.

¹⁰4 & 5 Phillip and Mary, 1557.

¹¹9 Geo IV c. 31, s. 19, 1828.

¹²4 & 5 Phillip and Mary, 1557.

¹³Richard Burn, Joseph Chitty and Thomas Chitty, The Justice of the Peace and Parish Office: In Six Volumes (London: Steven & Sons, 1837), vol. 1, 6–9, discusses 9 Geo IV c. 31, ss. 19 and 20 in detail.

¹⁴See Lindsey, 7–30.

¹⁵Archival research includes the National Archives of Ireland, Trinity College Dublin, the National Archives, Kew, UK, and a selection of nineteenth-century newspapers.

¹⁶Alan Atkinson, ‘The Moral Basis of Marriage’, The Push: A Journal of Early Australian Social History 2 (1978): 105; Alan Atkinson, ‘Marriage and Distance in the Convict Colony, 1838’, The Push: A Journal of Early Australian Social History 16 (1983): 64–6.

¹⁷See Viscount Castlereagh, Colonial Office to Governor Bligh of New South Wales, 31 December 1807, Historical Records of Australia, resumed series III, ed. Frederick Watson (Sydney: Library Committee of the Commonwealth Parliament, 1914–25), 202. On Governors Brisbane and Darling, see Patricia Grimshaw, Marilyn Lake, Ann McGrath and Marian Quartly, Creating a Nation 1788–2007 (Perth: Network Press, 2006), 58. Re. Governors Gipps and LaTrobe, see ibid., 86.

¹⁸For an overview of these demographic changes, see F. K Crowley, ed., A Documentary History of Australia, vol. 1 (Melbourne: Nelson, 1980), 294 and 451. For insight into the changing nature of marriage practices, see Sandra Wilson, ‘Language and Ritual in Marriage’, The Push: A Journal of Early Australian Social History 2 (1978): 92–3. As late as 1836, the colonial secretary found it necessary to inform a clergyman that the government ‘did not interfere in the marriage of free persons’: see Paula Byrne, Criminal Law and Colonial Subject: New South Wales 1810–1830 (Cambridge: Cambridge University Press, 1993), 45.

¹⁹ Sydney Morning Herald, 30 April 1841, 2.

²⁰Kirsten McKenzie, Scandal in the Colonies: Sydney and Cape Town, 1820–1850 (Melbourne: Melbourne University Press, 2004).

²¹Kirsten McKenzie, Scandal in the Colonies: Sydney and Cape Town, 1820–1850 (Melbourne: Melbourne University Press, 2004), 10.

²²Kirsten McKenzie, Scandal in the Colonies: Sydney and Cape Town, 1820–1850 (Melbourne: Melbourne University Press, 2004), 5.

²³Kirsty Reid, Gender, Crime and Empire: Convicts, Settlers and the State (Manchester: Manchester University Press, 2007), 12.

²⁴Australian newspapers: Argus, Atlas, Australian, Colonial Times, Courier, Hobart Courier, Hobart Mercury, Hobart Town Mercury, Maitland Mercury, Moreton Bay Courier, Perth Gazette, The Sentinel, Sydney Gazette, Sydney Morning Herald and West Australian Times.

²⁵In the House of Commons Parliamentary Papers (HCPP) I found reference to 1,919 committals for abduction in Ireland between 1800 and 1850, where the population ranged from 5.2 million in 1801 to 6.5 million in 1851. During the same period in England, the population more than doubled, from 8.3 million in 1801, to almost 17 million in 1851. There are, however, records for fewer than sixty abduction cases in England during this period.

²⁶‘Timothy Corbett abduction of Alice Spencer £5 reward by father’, in Police Reports of Crime for Police Information 1858–1862, Binalong, 22 March 1858, New South Wales State Records, NRS 10957/Reel 3608.

²⁷‘Red Tom abducts an Aboriginal Woman’, in Police Reports of Crimes for Police Information 1854–62, Parramatta, 7 June 1854, New South Wales State Records, NRS 1–957/Reel 3607.

²⁸‘John Townsend abduction of Mary Ann Anlezark’, in Police Reports of Crime for Police Information 1854–57, Cabramatta, 30 April 1856, New South Wales State Records, MRS 10957/Reel 3607.

²⁹The daughters of publicans were particularly exposed to the often-volatile world of commercial hospitality, and are the most represented among Australian abductees. Five out of the forty-seven recorded cases involved young girls whose fathers or stepfathers were publicans. These are Mary Ann Gill (1848), Emmaline Emma Blake (1851), Elizabeth Cardwell (1853), Mary Anne Anlezark (1856), and Martha Beggs (1880).

³⁰ Regina v Kinchela. New South Wales State Records DEP: 9/6345.

³¹‘Abduction, Thomas Kingsmill Abbott and Miss Challenger’, Sydney Morning Herald, 25 May 1848, 2.

³²‘Abduction—Mrs Sarah Edgar against Thomas Kingsmill Abbott’, Sydney Morning Herald, 19 June 1848, 2.

³³Angus Mackay, ‘Recent Case of Abduction’, The Atlas, Sydney Weekly Journal of Politics, Commerce and Literature, 24 June 1848, 1.

³⁴James Anthony Froude, The English in Ireland, vol. 3 (Dublin: Longmans Green and Co., 1872), 422.

³⁵England's first Married Women's Property Act 1870, 33 & 34 Vict., c. 93, was amended in 1882 (45 & 46 Vict., c. 75). These statuses enabled married women to hold property of their own, sue and be sued, enter into contracts, be subject to bankruptcy laws, and be liable for the debts contracted before their marriage, and for the maintenance of their children. South Australia and Victoria passed legislation in 1884, New South Wales in 1879, and the remaining states passed similar legislation between 1890 and 1897.

³⁶‘The Alleged Abduction of a Syrian Girl’, The Argus, 22 September 1892, 3.

³⁷Some of the most damaging material developed in regard to colonial society was produced by colonial ‘witnesses’ such as John Macarthur and ‘Major Mudie’ whose evidence to the Select Committees commissioned by the Colonial Office was clearly distorted by self-interest. See Michael Sturma, ‘Eye of the Beholder: The Stereotype of Women Convicts, 1788–1852’, Labour History 34 (May 1978): 3–10. Also J. T. Bigge and Great Britain. Parliament. House of Commons Report of the Commissioner of Inquiry on the state of agriculture and trade in the colony of New South Wales. Ordered by the House of Commons, to be printed, 13 March 1823, [London?], 1823; —, and Great Britain. Parliament. House of Commons Report of the Commissioner of Inquiry on the Judicial Establishments of New South Wales. Ordered by the House of Commons, to be printed, [London?], 1823; John Ritchie, The Evidence to the Bigge Reports: New South Wales under Governor Macquarie, 2 vols (Melbourne: Heinemann, 1971); Great Britain. Parliament. House of Commons. Select Committee on Transportation, Whately, Richard, 1787–1863, and Molesworth, William, Sir, 1810–55, Report from the Select Committee of the House of Commons on Transportation: together with a letter from the Archbishop of Dublin on the same subject: and notes by Sir William Molesworth (London: H. Hooper, 1838).

³⁸In July 1848, in the midst of the Kinchela trial, both lawyers for the Crown, Robert Lowe and native-born Robert Nicholls, were elected to the partially elected Legislative Council. Since his arrival in the colony in 1842 Lowe had engaged in highly adversarial politics, first with his one-time friend Governor Gipps and then with wealthy squatters, whom he attacked through his newspaper The Atlas and in alliance with the Pastoral Association of New South Wales. When Lowe was elected to one of two seats in the 1848 Legislative Council elections, on the same day that Kinchela was sentenced to nine months’ imprisonment for abduction, Henry Parkes declared it the ‘birthday of Australian democracy’. In 1849 Lowe stood on the roof of an omnibus on Circular Quay inspiring the crowds to resist the mooring of the convict ship, Hashmeny. While Lowe returned to England in 1850, Nicholls remained in colonial politics, winning his seat in 1856 for the first responsible government elections.

³⁹In 1851, William Montagu Manning was nominated to the Legislative Council, and was appointed Solicitor General after the 1856 elections. Therry was recognised as a colonial reformer in both New South Wales and Victoria. He was elected to the part-elective Legislative Council in 1843, and nominated to the first Legislative Council for responsible government in 1856. For details on the contributions of Governors Richard Bourke and Attorney-General John Hubert Plunkett, see Australian Dictionary of Biography, http://adb.anu.edu.au/biography/bourke-sir-richard-1806, and http://adb.anu.edu.au/biography/plunkett-john-hubert-2556 (first accessed 10 June 2008). Also J. S. Ridden, ‘Making Good Citizens: National Identity, Religion and Liberalism among the Irish Elite, c. 1800–1850’ (PhD thesis, King's College London, 1998).

⁴⁰Among the Acts enacted by the New South Wales parliament which encouraged social reform were the Female Transportation Abolished Act 1848 No. 161, National Education Board Act 1848 No. 9a., and 1852 No. 16a., Police Act 1848 No. 5a, Marriages Confirmation Act 1850 No. 28a., Sydney Benevolent Society Act 1850 No. 29a., Sydney University Act 1850 No. 42a., The Electoral Act of 1851 No. 4a, and the Victoria Electoral Act of 1851, No. 3a., Masters and Servants Act 1852, No. 10a., Australian Library and Literary Institution Act 1853.

⁴¹Portia Robinson, Hatch and Brood of Time: Study of the First Generation of Native-Born White Australians 1788–1828 (Melbourne: Oxford University Press, 1985), 16.

⁴²Joy Damousi, Depraved and Disorderly: Female Convicts, Sexuality and Gender in Colonial Australia (Cambridge: Cambridge University Press, 1997), 158–63.

⁴³Alan Atkinson and Marian Aveling, eds, Australians 1838 (Broadway, NSW: Fairfax, Syme & Weldon Associates, 1987); Marian Aveling, ‘Gender in Early New South Wales Society’, The Push: A Journal of Early Australian Social History 24 (1987): 37–8; Marian Aveling, ‘She Only Married to Be Free; or, Cleopatra Vindicated’, The Push: A Journal of Early Australian Social History 2 (1978): 116–18.

⁴⁴‘State of Morals in Botany Bay’, Sydney Morning Herald, 16 March 1835, 3.

⁴⁵‘State of Morals in Botany Bay’, Sydney Morning Herald, 16 March 1835, 3.

⁴⁶‘State of Morals in Botany Bay’, Sydney Morning Herald, 16 March 1835, 3.

⁴⁷‘State of Morals in Botany Bay’, Sydney Morning Herald, 16 March 1835, 3.

⁴⁸Upon his marriage to Ann Mary Rudd in 1805, Windeyer became the father of ten children. These new responsibilities encouraged Windeyer to immigrate to New South Wales in 1828. J. B. Windeyer, ‘Windeyer, Charles (1780–1855)’, Australian Dictionary of Biography, vol. 2 (Melbourne: Melbourne University Press, 1967), http://adb.anu.edu.au/biography/windeyer-charles-1057 (first accessed 15 April 2011).

⁴⁹Karen Lystra, Searching the Heart: Women, Men and Romantic Love in Nineteenth-Century America, (Oxford: Oxford University Press, 1989), 123. Lystra describes the nineteenth-century masculine ideal, including the ‘domineering, undemonstrative Victorian patriarch’.

⁵⁰Reid, 14.

⁵¹Reid, 14.

⁵²Molesworth, 36–7. See also Sturma, 10.

⁵³Gesa Stedman, Stemming the Torrent: Expression and Control in the Victorian Discourses on Emotions, 1830–1872 (Aldershot: Ashgate, 2002), 121–70. Stedman offers an analysis of the interrelationship between the doctrine of the separation of the spheres and the emotions. She cautions against over-simplification of the two spheres, but nonetheless provides examples of how numerous ‘moral, social and religious’ mechanisms promoted a ‘local moral order’ that reinforced women's place within the ‘golden ring of the home’.

⁵⁴‘Mrs Mary Hopson’, Colonial Times, 20 September 1836, 7.

⁵⁵‘Mrs Mary Hopson’, Colonial Times, 20 September 1836, 7.

⁵⁶‘Mrs Mary Hopson’, Colonial Times, 20 September 1836, 7.

⁵⁷‘Mrs Mary Hopson’, Colonial Times, 20 September 1836, 7.

⁵⁸‘Abduction, John Irwin’, Maitland Mercury, 4 March 1850, 4.

⁵⁹‘Abduction, John Irwin’, Maitland Mercury, 4 March 1850, 4.

⁶⁰‘Abduction, John Irwin’, Maitland Mercury, 4 March 1850, 4.

⁶¹James Butler was Dr Kinchela's second son, and is not mentioned in the Australian Dictionary of Biography. He worked for a period as a clerk in the Colonial Office and pursued pastoral interests in Wellington Valley, participating in an overland expedition to South Australia before settling in Moreton Bay in the mid 1840s. See Lindsey, 10.

⁶²Mackay, 1.

⁶³ Regina v Kinchela. New South Wales State Records DEP: 9/6345.

⁶⁴‘The Queen v Kinchela’, Sydney Morning Herald, 7 July 1848, 2.

⁶⁵‘The Queen v Kinchela’, Sydney Morning Herald, 7 July 1848, 2.

⁶⁶‘Abduction - Mrs Sarah Edgar against Thomas Kingsmill Abbott’, Sydney Morning Herald, 25 May 1848, 2.

⁶⁷Mackay, 1.

⁶⁸‘Law Intelligence—Central Criminal Court’, Sydney Morning Herald, 14 July 1851, 2.

⁶⁹‘Police Office—Monday’, Sydney Morning Herald, 25 June 1851, 2; ‘Law Intelligence—Central Criminal Court’, Sydney Morning Herald, 14 July 1851, 2; ‘Sydney News: Patrick Meehan’, Maitland Mercury, 16 July 1851, 1; ‘Sydney Supreme Court—The Queen v Ryan and Oates—Abduction’, The Argus, 29 July 1851, 4.

⁷⁰‘The Queen v Ryan and Oates’, The Argus, 29 July 1851, 4.

⁷¹‘The Late Abduction Case’, Sydney Morning Herald, 30 July 1851, 3.

⁷²‘The Queen v Ryan and Oates’, The Argus, 29 July 1851, 4.

⁷³‘The Late Abduction Case’, Sydney Morning Herald, 30 July 1851, 3.

⁷⁴‘The Late Abduction Case’, Sydney Morning Herald, 30 July 1851, 3.

⁷⁵‘The Late Abduction Case’, Sydney Morning Herald, 30 July 1851, 3.

⁷⁶ Bill to annul the marriage of Patrick Meehan and Emmaline E Blake, New South Wales Legislation: 21 September 1854; Special Bundles, 1846–1856, 4/714.4. http://www.records.nsw.gov.au/state-archives/guides-and-finding-aids/colonial-secretarys-correspondence-guide/letters-received/special-bundles-1826-1982/special-bundles-1846-56 (first accessed 2 October 2009).

⁷⁷‘The Queen v Ryan and Oates’, The Argus, 29 July 1851, 4.

⁷⁸R. L. Knight, ‘Lowe, Robert, Viscount Sherbrooke (1811–1892)’, Australian Dictionary of Biography, http://adbonline.anu.edu.au/biogs/A020119b.htm (first accessed 3 January 2008); Peter Cochrane, Colonial Ambition: Foundations of Australian Democracy (Melbourne: Melbourne University Press, 2006), 96, 100; William Baker, Heads of the People: an illustrated journal of literature, whims, and oddities (Sydney: Baker, 1847).

⁷⁹‘The Late Abduction Case’, Sydney Morning Herald, 30 July 1851, 3.