By Michaela Ann Cameron

A small patch of earth in Eccleston, Cheshire: the final resting place of eight-month-old Elizabeth Ellam. No familial tears fall upon and nourish the tiny grave as her mortal remains are lowered into it on 10 April 1787. For when Elizabeth’s burial is subsequently recorded in the bishop’s register for the parish of Eccleston, no father is recorded next to her name.[1] Indeed, the only person in this world to whom the apparently ‘base-born babe’ is bound is a woman named ‘Deborah Ellam.’[2] And, if this woman and the ‘Deborah Ellam’ lately incarcerated at nearby Chester Gaol are one in the same, then the infant’s mother is a convicted ‘prigger of toggery’—and she is already gone.[3]

Three Years Earlier

High ‘on a rocky hill’ on ‘the south side of the city’ of Chester, a very ancient looking castle ‘built of soft reddish stone’ towered over the fisherman’s daughter, eighteen-year-old Debby Ellam.[4] Formerly, it had no doubt been ‘the pallace [sic] of many worthy princes.’[5] But the castle was now ‘much out of repair, several pieces of the walls having…fallen down,’ and its once ‘stately,’ ‘diverse sweet and dainty orchards and gardens’ had likewise ‘fallen to ruine [sic] and decay…for want of use.’[6] The degraded ‘magnificence of this venerable pile,’ then, made a rather fitting judgement place and notoriously wretched prison for equally ruined people.[7] As one of those unhappy ruined ones, Debby entered the castle’s gate-house; the twin towers of which harboured the ‘divers [sic] rooms and lodgings’ that comprised the county prison.[8]

The ‘common folk’ did not yet call her alleged crime ‘prigging toggery,’ but the crime itself was neither new nor rare.[9] Indeed, ‘prigging toggery’—better known as ‘stealing clothes’ or, to put it more generously, the art of resourcefully acquiring and repurposing clothing and cloth—was ‘the crime for which most’ of the First Fleet convicts would come to be ‘in their…disgraceful situation’ on the transport ships in a few years’ time.[10] In fact, as the Lady Penrhyn’s surgeon Arthur Bowes Smyth later noted, not even a lengthy journey across the seas could induce the convict women to abandon the practice: ‘thieving Cloaths [sic] from each other, nay almost from their backs’ and ‘plundering the Sailors’ on board ‘of their necessary cloaths [sic] & cutting them up for some purpose of their own’ was as natural to those women as breathing, whether at sea or on dry land.[11]

Tempting as it may be to cast the toggery-prigging class of pilferer among those who stole to ‘alleviate suffering’ by meeting a ‘basic need’ for warmth and covering,[12] though, in this period the theft of textile goods was not automatically evidence of a shivering, naked victim.[13] Cloth and clothing, however ‘foul,’ ‘old, worn or unfashionable,’ was a valuable commodity with ‘instant cash value’ since the second-hand clothes market became an ‘established…feature of British working-class life’ in the early eighteenth century.[14] Purloining clothing and cloth was, therefore, a step working men and women often habitually took for the purpose of actively participating in a thriving rag trade.[15]

For working women employed as house servants in particular, the temptation to steal clothing and cloth for resale in the rag trade was that much greater. For one thing, their domestic work of cleaning, washing, and sewing provided them with ample opportunity to encounter and carry off such items.[16] Daily exposure to the quality clothing of those they served, too, gave female house servants in this period a taste for finer things. Many frequently paid for almost equally fine clothing with the profits of their honest labour, however much it depleted their savings, prompting their so-called ‘betters’ to complain that ‘dressing above their station’ in this way made it ‘a hard matter to know the mistress from the maid.’[17] More concerning to these disapproving elites was the thought that it was merely a matter of time before their servants’ ‘sartorial extravagance’ led to ‘dishonesty and vice’; namely the theft of their employers’ textile items or that of their fellow servants when their ‘deeply infected…consumerism’ finally proved greater than their wages.[18]

Debby and her co-accused, Elizabeth Hewitt and Alice Halton, certainly seem to fit the profile of house servants turned cross-dressing fashion victims. For example, the indictment against the three did not include ‘breaking and entering,’ which implies that—guilty or otherwise—they appeared to their accusers to have had sufficient opportunity to steal two gowns and six yards of cotton cloth from the dwelling house of one Henry Byrom; the kind of access to personal belongings that house servants enjoyed.[19] The value of the dresses stolen from Byrom’s dwelling also points to Debby and company being house servants with luxurious tastes. For example, the ‘Cotton Gown of the value of ten shillings’ stolen from Mary Byrom and the second gown, ‘made of silk and worsted of the value of twenty shillings,’ stolen from one Elizabeth Jackson in Byrom’s dwelling, were comparable in value to ‘showier’ dresses some fashionable servants of the period spent as much as ‘a third of their average annual money wages’ to obtain.[20] Such gowns belonged to a category of dress that ‘wealthy provincial women’ deemed worthy of their status, albeit gowns that were positioned ‘at the lower end’ of their price range.[21] If Debby or one of her alleged accomplices had the opportunity to wear the dresses stolen from the Byrom residence, especially the one worth twenty shillings, the wearer definitely could have passed for a far wealthier and more refined woman, like a respectable clergyman’s daughter—which gets to the real heart of upper-class concerns over working people cross-dressing across class lines.

When thieves risked identification by donning quality clothing they had stolen instead of converting it to cash, prigging toggery was much more than a property crime: it was identity theft. It undermined the very hierarchical structure of class-conscious English society by significantly blurring the hitherto deeply wrought and highly visible lines between socio-economic groups.[22] Priggers of toggery took that risk, of course, because they had so much to gain. Accumulating a wardrobe of nice clothes could tide them over in predictably lean periods when there would be little money for such items, such as in the early years of marriage and parenthood.[23] Decently attired, a person could improve their lot in life by securing a position as servant with a more illustrious family or attracting a desirable husband.[24] They could ‘pass’ as higher-ranking members of society—perhaps for very sinister purposes rather than mere social-climbing reasons, which of course would have required considerably greater skill and other forms of cultural capital to succeed. To an unsuspecting pedestrian, for example, an eighteen-year-old English rose, like Debby Ellam, dolled up in a fine dress could appear to be a gentlewoman and, thus, not be perceived as a threat—a potentially dangerous or at least costly mistake if she were in fact a pickpocket.

All in all, then, when Debby, Eizabeth and Alice entered Chester Castle’s ‘large shire hall…where all matters of law, touching the county palatine, [were] heard and judiciously determined’ on 30 August 1784, the court would have viewed the three young working-class ‘singlewomen’ as the likeliest of culprits.[25]Though prejudice was most certainly piled against them and, less certainly, reinforced by hard evidence of their guilt, the three young women ‘[s]everally pleaded’ their innocence.[26] Nevertheless, rightly or wrongly, they were pronounced by the Jurors to be ‘[s]everally Guilty.’[27] Their punishments, however, were not delivered or summarised quite so sweepingly.

Chief Justice Richard Pepper Arden and Second Justice Daines Barrington dealt first with Elizabeth Hewitt, whom they ordered to be committed to the house of correction at Middlewich ‘and there confined to hard labor for the term of twelve months’; a punishment which entailed ‘picking Oakum’ and drying it on ‘broad stones in the [bridewell] Yard.[28] Reportedly, some rooms at the bridewell still had ‘only perforations in the doors,’ but, on the whole, it was ‘airy and healthy’ compared to most other places of confinement, having ‘been lately much improved’ by additions of rooms and windows.[29] At the expiration of her sentence at Middlewich, however, the judges also ordered that Elizabeth Hewitt ‘be publicly whipped at the town of Macclesfield.’[30]

Next, Alice Halton was sentenced to ‘be confined in the Castle of Chester for the term of six months, unless, in the mean time, she enter into a recognizance of £50 with one surety of £25 conditioned for her good behaviour for 12 months.’[31]

Debby’s sentence was the harshest of all three. She was ‘to be transported beyond the seas for the term of 7 years.’[32] In reality, this did not mean immediate expulsion from England for Debby because, in 1784, no one was entirely sure where on earth transportees were to be transported. The American colonies had been lost in the War of Independence, which meant the British had also lost their convenient dumping ground for all their undesirables—a relief, no doubt, to the countless ‘sailors and families in America’ who were frequently ‘infected by transports’ from England carrying and spreading the dreaded ‘gaol distemper’ or ‘gaol fever.’[33] Thus, while the British authorities considered and even experimented with alternative locations for an offshore penal settlement to which they could deport their ever-increasing felonry, Debby returned to the seven-and-a-half by three-and-a-half foot Chester Gaol cell with which she was already well acquainted.

‘Hell in miniature!’

There was ‘no window’ in her ‘subterraneous dungeon.’[34] ‘[N]ot a breath of fresh air: only an aperture with a grate in the ceiling of the Passage’ into the Debtors’ free ward above, also known as the Pope’s Kitchen.[35] Yet as many as three other prisoners were crammed in this cell with Debby at any given time rendering it nothing short of ‘Hell in miniature.’[36] Nor was a bed a certainty. With no allowance of straw to sleep on, one had to ‘lie upon rags [or] the bare floors,’ bring one’s own bed to the prison, or pay the Keeper a shilling at the end of every week for a bed supplied by the gaol.[37] Failure to pay led the Gaoler to confiscate the bed and ‘put the Prisoner to lie’ in the King’s Kitchen; the ‘so very small’ thirty-five by twenty-two-foot day-room where felons spent the majority of their waking hours and were further ‘deprive[d]…of the benefit of fresh air.’[38] The rest of the time, inmates were occupied with the obligatory daily clean and sweep of the shire hall.[39] Only if there was no Assize Session were the prisoners permitted to ‘go into the Castle-yard an hour morning and afternoon’ for that ‘genuine cordial of life,’ the fresh air that eluded them for the other twenty-two hours of the day.[40]

There was also a general ‘want of food’ at Chester Gaol, since the weekly allowance for each prisoner was a twelve-penny loaf.[41] Friends and relations could visit prisoners ‘to bring necessaries’ and provide company but could not stay long, without leave, except in sickness.’[42] The gaol had no infirmary, so the diseased were mixed in with the healthy inmates. Those who did take advantage of visitation rights therefore made themselves, their families, and wider community vulnerable to the highly contagious and often lethal gaol fever.[43]

Debby’s physical health and, indeed, her very life were not the only things endangered by her prolonged imprisonment. There was much that was equally ‘pernicious to [Debby’s] morals’; namely, ‘the confining [of] all sorts of prisoners together’—‘the young beginner and the old offender,’ the petty criminal and ‘the most profligate,’ mentally ill inmates who ‘disturb[ed] and terrif[ied]’ the sane ones, and ‘men and women.’[44] The base-born babe who would soon be called ‘Elizabeth Ellam’ was, therefore, a rather inevitable product of Chester Gaol’s wholly inadequate and indecent conditions.[45] With no surgeon to tend to prisoners in times of medical crisis unless by special application to a Justice, the birth of a child in those squalid conditions would have been fraught with dangers. Nevertheless, baby Elizabeth arrived in August 1786—two whole years since Debby’s sentence of transportation had been delivered.[46]

After so much time in the tiny, cramped world of her cell, Debby surely would have struggled to imagine serving the remainder of her sentence anyplace other than the dingy bowels of Chester Castle. All the same, a violent jolt out of her monotonous existence in her utterly reduced world did come on 28 February 1787. It was an order to transfer Debby, fellow prisoner Ann Daly, and eleven men under sentence of transportation.[47]

For the now twenty-one-year-old Debby, the 10^th of April 1787 may well have been just one of many days that fell between the night of the 14^th of March, when the Chester Gaol turnkey delivered her and Ann Daly on board the Prince of Wales, and the morning of the 13^th of May, when the said ship would carry them ‘to parts beyond the seas.’[48] Debby likely passed the time that day performing some convict-worthy drudgery on board, little knowing what was transpiring in a tiny patch of earth in an Eccleston graveyard, at most a forty-five-minute walk (and perhaps much less) from the castle in which she had lately been incarcerated for almost three long years.[49] Being oblivious to the particulars, however, would not have rendered her immune to grief. Living or dead, Debby would have known she would never hold her baby Elizabeth or see any of her other relations again. To make matters worse, on the Prince of Wales there was now a constant reminder of her loss.

Baby on Board

Eleven days after Debby’s own arrival on board the vessel, she would have been confronted with a heart-wrenching sight: a new female convict with an eleven-month-old babe in arms. Like baby Elizabeth Ellam, Rebecca Boulton’s child, a girl, had been conceived and born in captivity, namely Lincoln Gaol; yet here Rebecca stood with her baby while Debby was without. ‘Whence such an unequal division of happiness and misfortune?’[50] After all, they were both convict women, and on the same ship no less.

But, however much ‘the laws of England,…distinguished by the spirit of humanity which framed them, forbid so cruel an act as that of separating an infant from its mother’s breast,’ it was not a given that transportees could bring their babies with them.[51] The Spilsby, Lincolnshire gaoler had been obliged in December 1786 to seek special permission for Boulton’s baby to ‘go with the Mother, she being very desirous to take it’ and the application was not granted until 22 March 1787—just three days before Boulton embarked, baby and all, on the Prince of Wales.[52]

The Lincolnshire gaoler’s actions on Boulton’s behalf were undoubtedly informed by a highly publicised story that appeared only a month earlier in multiple newspapers: a ‘Narrative relating to a Convict ordered to be transported to Botany Bay.’ The article concerned yet another baby boy, conceived and born in Norwich Gaol to convicts Susan Holmes and Henry Kable. The five-month-old boy was, against nature and ‘the laws of England,’ very nearly taken from his mother permanently and without warning when the Captain of a hulk holding convicts bound for the First Fleet transport ship Charlotte noticed the infant and ‘peremptorily refused to take it on board,’ simply because ‘he had no orders to take children.’[53] As The Scots Magazine noted:

neither the intreaties of [the Norwich Gaol turnkey] Mr. Simpson, nor the agonies of the poor wretch [Susan Holmes], could prevail upon the Captain even to permit the babe to remain till instructions could be received from the minister. Simpson was therefore obliged to take the child; and the frantic mother was led to her cell, execrating the cruelty of the man under whose care she was now placed, and vowing to put an end to her life as soon as she could obtain the means.[54]

The baby boy was restored to that particular First Fleet convict, but only by virtue of the sheer dedication of the turnkey Mr. John Simpson. ‘Shocked at the unparalleled brutality of the Captain…and…affected by the agonies of the poor woman, and the situation of the helpless babe,’ Simpson had travelled with the baby on his knee on a round trip of some 700 miles to make an ‘immediate personal application to Lord Sydney in London.’[55] Lord Sydney, convinced of the ‘exquisite misery’ caused by the terrible circumstances, agreed to all.[56] Dedicated as Simpson was, the crisis had occurred because he had not been fully apprised of the special permissions that needed to be obtained for convicts with children prior to embarkation. Perhaps the turnkey of Chester Gaol was equally unaware of these requirements or not as equally dedicated as Simpson or Boulton’s Lincoln gaoler to find a remedy for the ‘exquisite misery’ caused by the separation of Debby and child. Whatever the specific circumstances of their parting, the cold, hard fact is that baby Elizabeth Ellam failed to thrive in Debby’s absence, living less than a month after Debby’s transfer to the Prince of Wales.

New Life

Days before the first anniversary of baby Elizabeth’s burial, Debby stood before Reverend Richard Johnson in a new colony, about to embark on a new life with fellow First Fleet convict John Herbert.

Did she dare to nurture ideals about the family they would build together as they exchanged their wedding vows in the presence of convicts Mary Gamble and Thomas Acres on 2 April 1788?[57] Though Debby was still merely twenty-two years old, after all she had seen and experienced in gaol, after all that she had lost, and knowing what she presumably knew of the violent nature of John Herbert’s transportable crime of highway robbery, she probably entered matrimony resigned to the notion that it, too, would bring her more hardship than domestic bliss.[58]

While life had taught Debby to expect adversity, however, her survival thus far in very trying conditions doubtless had much to do with the fact that she was apparently not one to meekly accept it when it did come. Debby held her own against all that life, the courts, and her husband threw at her.

‘I will go and blow my man up!’

Before four o’clock in the morning on 4 December 1788, just eight months into their marriage, John Herbert rose from his slumber and left the home he shared with Debby at Warrane (Sydney Cove) in Cadigal Country. Upon his return later that morning he found their home deserted and what remained of their garden after ‘[s]ome pigs had got in…and destroyed some [of his] plants.’[59]

To an incensed John, Debby alone was blameable. Seeing her at a neighbour’s abode, he swiftly concluded she had left the garden unattended to visit the neighbour before the rogue pigs’ sudden rampage. Perhaps it was so, perhaps it was not. By John’s own account of the incident, Debby refused to come when he called her home, which suggests she may have already known what scene awaited her in their garden. It is just as feasible, then, that she had been at home but was unable to prevent the pigs’ destruction and took refuge with her neighbour, knowing exactly what was in store for her when her husband returned.

When Debby did summon the courage to emerge from her neighbour’s home, John ‘heard her say that she would go and blow her Gentleman up’ — she was preparing herself for battle, coming out with all guns blazing, and probably not for the first time.[60] John threatened that if she did try to ‘blow him up…he would beat her.’[61] But, according to his version of events, Debby refused to back down; she continued to ‘provoke him very much with her Tongue.’[62] What exactly qualified as ‘provocation’ to a violent highwayman is not known; a verbal defence that she was not to blame for the destroyed plants may have been sufficient. Whatever she said, the blows soon rained down upon her and she responded in kind. The pair continued to strike each other ‘for some time’ until finally ‘she went away and left him…[and] was absent all Night.’[63]

It was John who went in search of Debby the next morning. He found her ‘in a Hut in the other Camp [and]…drove her Home.’[64] Obviously their relationship had already deteriorated significantly prior to the great pig invasion so, in the wake of what was probably only the latest in a long line of ugly domestic disputes, both agreed to separate.

While it is true that women of earlier periods ‘anticipated some degree of physical force in marriage’ and, thus, would not have necessarily conceived of themselves as victims of abuse (though their modern counterparts would in the same situation), it is clear that, even by the standards of her own day, Debby positioned her husband’s actions towards her as being beyond the pale.[65] And so, still fuming, Debby attempted to strike again, this time with the full arm of the law. What she soon discovered, however, was that in the colony her husband did not need the full arm of the law to beat her—all he needed was a thumb.

The Rule of Thumb

Convinced she had been ill-treated for events beyond her control, Debby went to the Judge Advocate David Collins to ‘accuse her husband of beating her without just Cause.’[66] Implicit in Debby’s action was her awareness that she had a legal right to do so. After all, as William Heale had argued as early as 1609, despite there being ‘interpreters of the laws’ who allowed wife-beating in ‘moderation,’ there was nothing ‘in the whole body of either Law, Canon or Civil…set down in these or equivalent terms, or otherwise passed by any positive sentence or verdict, That it is lawful for a husband to beat his wife.’[67] Moreover, the law stated that ‘If a husband beats his wife, she can bind him to his good conduct before a Justice of the Peace.’[68]

Still, as Heale’s note about ‘interpreters of the law’ makes clear, there was also a lingering belief in society that men naturally occupied the position of authority in marriage and, as such, were entitled—duty-bound even—to use ‘moderate’ or ‘reasonable’ force if necessary to ‘chastise’ and ‘correct’ their wives, just as the master corrected his servants or the teacher corrected his pupils.[69] This, however, was based on a decidedly loose interpretation of the word ‘chastise’ in Gratian’s twelfth-century Decretum Gratiani.[70] Even in such an old text, ‘moderate chastisement’ did not denote physical violence, for the Decretum explicitly stated wife-beating was illegal.[71] It was merely ‘folk law’[72] rather than an actual law, then, that led such ‘interpreters’ to deem marital violence legal and ‘necessary to control disruption in the family and to restrain a wife who threatened the marriage by irrational behaviour or by attempting to leave the home.’[73]

Indeed, the notion that wife-beating was in any way legal was even a subject of ridicule in the British popular press just a few short years before the First Fleet set sail. Throughout 1782 and early 1783, political satirists depicted Justice Sir Francis Buller in a number of cartoons as ‘Judge Thumb,’ a character who models and encourages other husbands to use a stick to ‘thrash’ their wives ‘with impunity provided that the stick was no bigger than his thumb.’[74]

As it happens, Buller was personally responsible for sending many of the First Fleet convicts to their destination in the new colony making the subject matter of the satirical “Judge Thumb” cartoons all the more interesting. For what was clearly laughable in the metropole soon proved to be quite another matter on the colonial periphery.[75]

‘A Well-Thrashed Individual’

In the fledgling penal colony, the unstable limits of British ‘civilisation,’ there was a dearth of trained legal professionals.[76] It was not that there was no law at all, but Judge Advocate Collins, who had only ‘small knowledge of the law,’[77] and others in positions of power were not precisely adhering to English law either: ‘They [were] making up law on the spot. They probably did [not] have the power but they did it anyway.’[78]

With but a few free persons to control a large convict population, too, the colonial authorities came up with some unlikely solutions to alleviate pressure on their limited human resources. Just as law enforcers in the form of hangmen, floggers, and eventually constables were, by necessity, drawn from the population of lawbreakers, it seems the authorities delegated what would legally, if not socially, be considered ‘extraordinary powers’ to the husbands of convict wives, even when those husbands were often convicts themselves. People in this period believed that keeping women under control was essential for public morality, even in the best of social environments. As they laid a shaky foundation for a new western society consisting mostly of ‘lowly,’ recalcitrant convicts in a non-western land, therefore, controlling the female element gained greater importance still.

So, when Debby admitted to striking her husband in the course of proceedings in 1788, and vowed, ‘[I] would strike him again were he as big as the Side of a House if he struck [me],’ to her dismay, she did not find the colonial court sympathetic.

[A] woman’s aggression…was almost impossible to justify and, in most discourses, evoked disapproval and sanctions,’ because it ‘challenged the capacity of men to enforce their superior position…In marriage a violent woman was unnatural and a problematic conception because it weakened the patriarchy and contaminated the regime of male control.[79]

In Herbert v. Herbert, the first case of ‘domestic violence’ brought before the court in the colony, therefore, Judge Advocate David Collins essentially reverted to the folk law. Rather than find John Herbert at fault, Collins ordered that Debby receive twenty-five lashes and return to her ‘lawful rib.’[80] At the time of her thrashing, she was approximately two months pregnant with the unhappily wedded couple’s first child, Benjamin, although it is unclear if she or any of the other players in this drama were aware of her condition.[81]

*          *          *

Deborah Ellam Herbert was merely one of many ‘priggers of toggery’ transported on the First Fleet and, indeed, throughout the entire era of convict transportation.[82] Nevertheless, Debby’s life story is so much more than a means by which we can illuminate the experiences of the great multitudes of convicts sentenced for the same offence. Because, ultimately, what emerges from her story most powerfully is not an image of a young fashion victim but a decidedly bleak picture of eighteenth-century domesticity; a child conceived and born in gaol, likely improperly weaned, and buried in a lonely grave; familial bonds forever broken by the forced migration of convicts beyond the seas; the first case of what we now call ‘domestic violence’ brought before the colonial judiciary; and corporal punishment endured whilst pregnant. And, while Debby’s experience is in many ways particular to the earliest time of convict transportation to the land now known as ‘Australia,’ there is also much about her story that remained relevant long after.

We know, for example, that things were very slow to improve for Chester Gaol’s female transportees and their infants. In 1831, nearly fifty years after Debby’s own transportation, William Worth, a baby born in Chester Gaol to transportee Mary Worth, ‘had not been allowed to be suckled from its birth’ as it was ‘contrary to the regulations of the Service to receive on board Infants at the breast.’[83] When the two-month-old arrived on board the transport ship Mary, he was ‘in a most miserable state of Atrophy and emaciation from…want of its natural nourishment. The unfortunate mother having only the Common Prison allowance – scarcely sufficient…to sustain the life of the individual in health.’[84] The baby suffered ‘constant vomiting from indigestion of its food, Colic pains, Diarrhoa [sic], and Convulsions, constant thirst and…fever…’ and perished just a few days later.[85] Even when the managers of Debby’s former prison seemingly attempted to come up with a solution to the heartbreaking separation of convict mothers and babies, then, they ended up enacting an equally inhumane policy. Yet, in baby Elizabeth Ellam’s fate we find evidence that the alternative of being left behind to become a ward of the parish had been a death sentence, too.

There were also those who continued to invoke the ‘rule of thumb’ regarding the measurement of the stick of chastisement in England and in the colony, in the courts and in the popular press.[86] This included twentieth-century Australian journalists who waxed lyrical about and cited the rule of thumb as a genuine ‘good old law.’[87] Indeed, ‘[u]ntil the 1970s, the Australian man had a legal duty to control his wife as much as a wife had a duty to obey her husband,’ asserts historian Colin James. And, while ‘a husband offered a [convict] woman some protection from rape and assault by other men’ in the penal colony where women were grossly outnumbered, ‘women were commonly abused by their husbands. Many contemporary journals and letters mention violence towards women suggesting it was more prolific than official records or court cases show.’[88]

On the other hand, there is also plenty of evidence that in the decades after Judge Advocate David Collins’s ruling more learned members of the colonial justice system recognised that the notion a man could ‘mildly…chastise the wife of his bosom’ with a stick the width of his thumb was merely folk law.[89] For example, female victims of domestic violence, like Mary Williams in 1831, found themselves before judges who explicitly asserted husbands were ‘not allowed to beat their wives, whether bond or free,…with a big stick.’[90] The year before, too, The Sydney Gazette made a very tongue-in-cheek reference to the rule of thumb and its pseudolegal connection to ‘Moderate Chastisement’ in an article so named which recounted the actions of an outraged husband who ‘covered…the hall…with blood’ whilst ‘beating his wife with a broomstick which he broke in the course of the operation, and then, considering this an insufficient weapon, took up a stone of the moderate weight of 2lbs. to complete the dose with.’[91] It took six constables to subdue him and a number of them ‘lost part of their trowsers [sic] in the attempt’ leading the bench to order the wife-beater ‘to find bail, himself in £50, and two securities in £25, to keep the peace to all his Majesty’s loving subjects, but especially towards his wife.’[92]

Even when the courts ruled in favour of the wife, however, legal resolutions sometimes left much to be desired. When things got out of hand between convicted spouses Sarah Coan (née Wheeler) and her husband James Coan (aka James Cowen), for example, the court-ordered solution was only marginally better than the continual ‘assault’ and ‘cruel…ill-treatment’ Sarah experienced at the hands of her husband. James was ordered ‘to be returned into the Barracks’ and, in his absence, ‘the female, as a matter of course, to become an inmate of the [Parramatta Female] Factory.’[93]

On the whole, the colony—either in 1788 or in the 1830s—really was no place for a woman who resisted male control. Just as Debby had experienced, if a husband or a master could not put a wayward woman in her place for the sake of public morality, higher authorities were ever ready to step in.[94] As the story from convict oral tradition goes, one husband at a farm on the Deerubbin (Hawkesbury River) could not control his Factory wife, so when Reverend Samuel Marsden paid them a visit he ‘took his gig whip and laid it about her shoulders, and told her that, if she did not behave better, when he next came that way he would have her returned to the factory. Months after, when he called again, the man told him that his wife had turned over a new leaf, and that there could not be a better wife ever since the day Mr. Marsden gave her a thrashing.’[95]

Perhaps Debby had been similarly ‘transformed’ by her own officially sanctioned thrashing, for she did indeed return to her husband, as ordered, and their tumultuous union produced eight children in total and thousands of descendants. In light of all this, it would be so easy to focus on Debby’s victimhood; the fashion victim, the victim of domestic violence, and finally the victim of a colonial court steadfastly resolved to assert male domination for what they believed to be the greater good of public morality and order. But to do so would detract from Debby’s great achievement; namely that, in spite of the adversity she and other convict women had to contend with in the harsh penal colony, in spite of her immense loss, Debby clearly managed to live some semblance of a full life here. Of this, at least, we can be certain; because, unlike the poor infant in that lonely grave in Eccleston, the prigger of toggery who died in 1819 at the age of fifty-two ‘[u]niversally respected by her numerous friends and acquaintances,’ now rests eternally, in a small patch of earth in Parramatta, surrounded by family.[96]

CITE THIS

Michaela Ann Cameron, “Deborah Herbert: A Prigger of Toggery,” St. John’s Online, (2018), https://stjohnsonline.org/bio/deborah-herbert/, accessed [insert current date]

Further Reading

Penny Edwell, “John Herbert: From Felon to Farmer,” St. John’s Online, (2016).

References

• Arthur Chapman, First Fleeters John Herbert and Deborah Ellam: Their Lives and the Descent of the Bamford, Bates and Kay Families, (Ainslie, A.C.T.: Privately printed by Arthur Chapman, 1987).
• John Cobley, The Crimes of the First Fleet Convicts, (Sydney, Angus & Robertson, 1970).
• Penny Edwell, “John Herbert: From Felon to Farmer,” St. John’s Online, (2016).
• Mollie Gillen, The Founders of Australia: A Biographical Dictionary of the First Fleet, (Sydney: Library of Australian History, 1989).
• Diane Hall, “Domestic violence has a history: Early modern family violence,” Australian Women’s History Network, (3 December 2016), http://www.auswhn.org.au/blog/domestic-violence-history/, accessed 16 September 2018.
• Rob Herbert with Bruce Sumner, “First Fleeter Deborah Ellam (1765–1819) Arrived on the Prince of Wales. Part One of Her Story,” Fellowship of First Fleeters Southern Highlands Chapter, (2004–2018), http://fffsouthernhighlands.org.au/?page_id=1520 accessed online 16 September 2018.
• Robert Holden, Orphans of History: The Forgotten Children of the First Fleet, (Melbourne: Text Publishing, 2000).
• John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777).
• Colin James, “A History of Cruelty in Australian Divorce,”  Australia & New Zealand Law & History E-Journal, (2006): 1–30, http://classic.austlii.edu.au/au/journals/ANZLawHisteJl/2006/7.pdf, accessed 16 September 2018.
• Henry Ansgar Kelly, ““Rule of Thumb” and the Folklaw of the Husband’s Stick,” Journal of Legal Education, Vol. 44, No. 3, (September 1994): 341–365.
• David Kent, Norma Townsend and Deborah Oxley, “Deborah Oxley’s ‘Female Convict’: An Accurate View of Working-Class Women? [with Reply],” Labour History, No. 65 (Nov., 1993): 179–199.
• Beverly Lemire, “The Theft of Clothes and Popular Consumerism in Early Modern England,” Journal of Social History, Vol. 24, No. 2 (Winter, 1990): 255–276.
• John Styles, ““Involuntary Consumers?” Servants and Their Clothes in Eighteenth-Century, England,” Textile History, Vol. 33, No. 1 (2002): 9–21.
• Trove (https://trove.nla.gov.au/)

Notes

[1] “Elizabeth Ellam, 10 April 1787,” Diocese of Chester Bishop’s Transcripts of Burials c1600–1910, (Eccleston, Cheshire, England: Cheshire Record Office); “England, Cheshire Parish Registers, 1538–2000,” database, FamilySearch (https://familysearch.org/ark:/61903/3:1:S3HY-DTD7-W9D?cc=1614792&wc=MJ4X-7M9%3A1042828801: 20 May 2014), 004018854 > image 821 of 922; Record Office, Chester.

[2] “Elizabeth Ellam, 10 April 1787,” Diocese of Chester Bishop’s Transcripts of Burials c1600–1910, (Eccleston, Cheshire, England: Cheshire Record Office); “England, Cheshire Parish Registers, 1538–2000,” database, FamilySearch (https://familysearch.org/ark:/61903/3:1:S3HY-DTD7-W9D?cc=1614792&wc=MJ4X-7M9%3A1042828801: 20 May 2014), 004018854 > image 821 of 922; Record Office, Chester.

[3] Chester Gaol was a mere 45-minute walk from the cemetery in which baby Elizabeth Ellam was buried.

[4] Deborah’s name was recorded on her St. Elphin’s Church, Warrington baptism record as “Debby Ellom” along with her parents’ names and father’s occupation. See ”Debby Ellom,” baptism 18 October 1765, Bishop’s Transcripts, Warrington, 1760–1769 in Lancashire Anglican Parish Registers, (Preston, England: Lancashire Archives). See also “Baptisms at St. Elphin in the Parish of Warrington. Baptisms recorded in the Register for the years 1760–1781. Baptisms for the Years 1764–1765,” Online Parish Clerks for the County of Lancashire, http://www.lan-opc.org.uk/Warrington/stelphin/index.html, accessed 16 September 2018. For original sources of the quotations describing Chester Castle, see Daniel King, The History of Cheshire: Containing King’s Vale-Royal entire, together with considerable extracts from Sir Peter Leycester’s Antinquities of Cheshire; and the Observations of later writers, particularly, PENNANT, GROSE, &c. &c., The whole forming a complete description of that county; with all its hundreds; seats of the nobility, gentry, and freeholders; rivers, towns, castles, and buildings, ancient and modern, Vol. I, (Chester: John Poole, 1778), pp. 66–67, 126–28, accessed online via Hathi Trust Digital Library, https://hdl.handle.net/2027/nyp.33433067365290, 16 September 2018; Francis Grose, The Antiquities of England and Wales, Vol. 1 (London: S. Hooper, 1785), p. 36 accessed online via Internet Archive https://archive.org/details/antiquitiesofen01gros, 16 September 2018. For more on Deborah Ellam’s early life and family, see Rob Herbert with Bruce Sumner, “First Fleeter Deborah Ellam (1765–1819) Arrived on the Prince of Wales. Part One of Her Story,” Fellowship of First Fleeters Southern Highlands Chapter, (2004–2018), http://fffsouthernhighlands.org.au/?page_id=1520 accessed online 16 September 2018.

[5] Francis Grose, The Antiquities of England and Wales, Vol. I, (London: S. Hooper, 1785), p. 36 accessed online via Internet Archive, 16 September 2018.

[6] Francis Grose, The Antiquities of England and Wales, Vol. I, (London: S. Hooper, 1785), p. 36 accessed online via Internet Archive, 16 September 2018.

[7] Francis Grose, The Antiquities of England and Wales, Vol. I, (London: S. Hooper, 1785), p. 36 accessed online via Internet Archive, 16 September 2018.

[8] Though Chester Castle still stands on that rocky hill, the gate-house entry to the castle, which served as the county gaol in mid-1784 when Deborah and company were arrested and, indeed, for centuries before that, is no longer extant. The castle underwent some remodelling in 1790, just a few years after Deborah’s departure. Daniel King, The History of Cheshire: Containing King’s Vale-Royal entire, together with considerable extracts from Sir Peter Leycester’s Antinquities of Cheshire; and the Observations of later writers, particularly, PENNANT, GROSE, &c. &c., The whole forming a complete description of that county; with all its hundreds; seats of the nobility, gentry, and freeholders; rivers, towns, castles, and buildings, ancient and modern, Vol. I, (Chester: John Poole, 1778), p. 67, accessed online via Hathi Trust Digital Library, https://hdl.handle.net/2027/nyp.33433067365290, 16 September 2018.

[9] Green’s dictionary records its earliest use as early 19thc. Jonathan Green, Green’s Dictionary of Slang, (2017) accessed online 16 September 2018. Regarding Deborah Ellam’s crime and trial, see Mollie Gillen, The Founders of Australia: A Biographical Dictionary of the First Fleet, (Sydney: Library of Australian History, 1989), pp. 117–18 and John Cobley, The Crimes of the First Fleet Convicts, (Sydney, Angus & Robertson, 1970), pp. 86–87.

[10] For a list of crimes committed by the convict women transported per Lady Penrhyn (1788) see Arthur Bowes Smyth, A Journal of a Voyage from Portsmouth to New South Wales and China in the Lady Penrhyn, 1787-1789, [manuscript], National Library of Australia, MS 4568, transcript and c.1790 copy accessed 16 September 2018. For more on the rag trade see Janice Turner, “‘Ill-Favoured sluts’? — The Disorderly Women of Rosemary Lane and Rag Fair,” The London Journal, Vol. 38, No. 2 (July, 2013): 95–109.

[11] Arthur Bowes Smyth, A Journal of a Voyage from Portsmouth to New South Wales and China in the Lady Penrhyn, 1787-1789, [manuscript], National Library of Australia, MS 4568, transcript and c.1790 copy accessed 16 September 2018.

[12] Deborah Oxley, “Women Transported: Gendered Images and Realities,” Australian New Zealand Journal of Criminology, Vol. 24, No. 2 (1991), pp. 83–88 cited in David Kent, Norma Townsend and Deborah Oxley, “Deborah Oxley’s ‘Female Convict’: An Accurate View of Working-Class Women? [with Reply],” Labour History, No. 65 (Nov., 1993): 181. See also Lynn MacKay, “Why They Stole: Women in the Old Bailey, 1779–1789,” Journal of Social History, Vol. 32, No. 3, (Spring, 1999): 623–639.

[13] David Kent, Norma Townsend and Deborah Oxley, “Deborah Oxley’s ‘Female Convict’: An Accurate View of Working-Class Women? [with Reply],” Labour History, No. 65 (Nov., 1993): 181.

[14] David Kent, Norma Townsend, and Deborah Oxley, “Deborah Oxley’s “Female Convicts”: An accurate View of Working-Class Women? [with Reply],” Labour History, No. 65 (Nov., 1993): 182–83. Bundles of dirty clothing and linen were often stolen from wash-houses, writes Beverly Lemire, “The Theft of Clothes and Popular Consumerism in Early Modern England,” Journal of Social History, Vol. 24, No. 2 (Winter, 1990): 262.

[15] As historian Beverly Lemire notes, “All too often habitués of a lodging house used their familiarity with the setting to help themselves to clothing owned by the residents” and “Neither ties of blood nor friendship could guarantee security of personal clothing against the depredations of friends and acquaintances.” Beverly Lemire, “The Theft of Clothes and Popular Consumerism in Early Modern England,” Journal of Social History, Vol. 24, No. 2 (Winter, 1990): 263.

[16] David Kent, Norma Townsend and Deborah Oxley, “Deborah Oxley’s ‘Female Convict’: An Accurate View of Working-Class Women? [with Reply],” Labour History, No. 65 (Nov., 1993): 182.

[17] Daniel Defoe, Everybody’s Business, Nobody’s Business, (London: 5^th edn., 1725), p. 4 and The London Chronicle, 69 (1791), p. 165 both cited in John Styles, ““Involuntary Consumers?” Servants and Their Clothes in Eighteenth-Century, England,” Textile History, Vol. 33, No. 1 (2002): 10, 18; Alice Marie Lea, MA thesis, “Domestic Service, Theft and Infanticide in Greater London, 1837–1901,”(Kansas City, Missouri: University of Missouri-Kansas City, 2002), p. 89.

[18] Historian John Styles asserts, “Experienced ladies’ maids in the houses of the nobility could enjoy annual wages of £10 early in the [eighteenth] century and over £15 at its close, but their numbers were small. Maids-of-all-work in less exalted households, who comprised the majority of domestic servants, earned considerably less. In the provinces many of them could expect well under £4 per annum for much of the century, although the wages of lesser female servants appears to have risen, at least in the households of the wealthy, by its end.” John Styles, ““Involuntary Consumers?” Servants and their Clothes in Eighteenth-Century England,” Textile History, Vol. 33, No. 1 (2002): 9–11. See also Beverly Lemire, “The Theft of Clothes and Popular Consumerism in Early Modern England,” Journal of Social History, Vol. 24, No. 2 (Winter, 1990): 270–71.

[19] Beverly Lemire, “The Theft of Clothes and Popular Consumerism in Early Modern England,” Journal of Social History, Vol. 24, No. 2 (Winter, 1990): 263.

[20] PRO: County Palatine of Chester Crown Books 1758–94, CHES 21/7, cited in “ELLAM, Deborah,” in John Cobley, The Crimes of the First Fleet Convicts, (Sydney, Angus & Robertson, 1970), pp.86–87; John Styles, “Involuntary Consumers? Servants and Their Clothes in Eighteenth-Century England,” Textile History, Vol. 33, No. 1 (2002): 14. Even a skilled tradesman in 1780s England would have to spend as much as six days’ wages to afford the dress worth twenty shillings. The monetary value is £86.10 in today’s currency. The National Archives, Currency Converter: 1270–2017, (The National Archives, Kew, Richmond, Surrey, England), https://www.nationalarchives.gov.uk/currency-converter/, accessed 16 September 2018.

[21] John Styles, “Involuntary Consumers? Servants and Their Clothes in Eighteenth-Century England,” Textile History, Vol. 33, No. 1 (2002): 14.

[22] Working people’s growing tendency to cross-dress across class lines in this way was a source of anxiety for the upper classes because items of clothing were deeply invested with identity; a means by which race, class, and gender were constructed and powerfully communicated. In colonial contexts, like the American colonies, for example, the most alarming cross-dressing occurred across cultural lines when First Peoples wore the dress of European newcomers, destabilising the latter’s identity right when they felt furthest from what they considered ‘civilisation’ and, thus, most vulnerable to losing their own civility in the ‘wilderness.’ At home, cross-dressing across gender lines was morally dangerous and largely relegated to the corrupt spaces of the theatre and illicit ‘molly houses.’ Cross-class dressing, meanwhile, undermined the very hierarchical structure of class-conscious English society by significantly blurring the hitherto deeply wrought and highly visible lines between socio-economic groups. For more on cultural cross-dressing see Ann M. Little, ““Shoot That Rogue, for He Hath an Englishman’s Coat On!”: Cultural Cross-Dressing on the New England Frontier,  1620–1760,” The New England Quarterly, Vol. 74, No. 2 (Jun., 2001):  238–273. Little writes, “Before race and sex were understood in terms of organs, chromosomes, genes, ethnicity and gender identity were constituted in large part by clothing and adornment. In such a world, loss of clothing could challenge one’s fundamental sense of self. English men and women on the frontier feared that Indians might claim the privileges of Englishness if they but dressed and performed the part.” Regarding cross-dressing across gender lines, ‘molly’ is a male, effeminate, homosexual prostitute, hence the associated early 18th-century to late 19th-century term ‘Molly Houses.’ See ‘molly‘ in Jonathan Green, Green’s Dictionary of Slang, (2017) accessed online 16 September 2018. For further discussion of cross-dressing in ‘corrupt’ spaces like the theatre and molly houses as well as a detailed study of cross-class dressing in England, see Christine M. Varholy, “Rich like a Lady: Cross-Class Dressing in the Brothels and Theaters of Early Modern London,” Journal for Early Modern Cultural Studies, Vol. 8, No. 1 (Spring – Summer, 2008): 4–34. Direct quotations are from John Styles, “Involuntary Consumers? Servants and Their Clothes in Eighteenth-Century England,” Textile History, Vol. 33, No. 1 (2002): 9, 14.

[23] John Styles, “Involuntary Consumers? Servants and Their Clothes in Eighteenth-Century England,” Textile History, Vol. 33, No. 1 (2002): 18.

[24] John Styles, “Involuntary Consumers? Servants and Their Clothes in Eighteenth-Century England,” Textile History, Vol. 33, No. 1 (2002): 18.

[25] It is not entirely clear who Henry Byrom was. However, some brief research reveals that Byroms had been in the area for some 700 years and were quite well-to-do.

[26] This is “less certain” because the hard evidence of their guilt, if it ever existed at all, is no longer extant.

[27] PRO: County Palatine of Chester Crown Books 1758–94, CHES 21/7, cited in “ELLAM, Deborah,” in John Cobley, The Crimes of the First Fleet Convicts, (Sydney, Angus & Robertson, 1970), pp.86–87; “No title,” Leeds Intelligencer, Tuesday 14 September 1784, via The British Newspaper Archive (https://www.britishnewspaperarchive.co.uk/), accessed 16 September 2018 p. 3.

[28] PRO: County Palatine of Chester Crown Books 1758–94, CHES 21/7, cited in “ELLAM, Deborah,” in John Cobley, The Crimes of the First Fleet Convicts, (Sydney, Angus & Robertson, 1970), pp.86–87; “No title,” Leeds Intelligencer, Tuesday 14 September 1784, via The British Newspaper Archive (https://www.britishnewspaperarchive.co.uk/), accessed 16 September 2018 p. 3. “County Bridewell at Middlewich,” in John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), p. 447 via Internet Archive, accessed online 16 September 2018

[29] “County Bridewell at Middlewich,” in John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), p. 447 via Internet Archive accessed online 16 September 2018

[30] PRO: County Palatine of Chester Crown Books 1758–94, CHES 21/7, cited in “ELLAM, Deborah,” in John Cobley, The Crimes of the First Fleet Convicts, (Sydney, Angus & Robertson, 1970), pp.86–87; “No title,” Leeds Intelligencer, Tuesday 14 September 1784, via The British Newspaper Archive (https://www.britishnewspaperarchive.co.uk/), accessed 16 September 2018 p. 3; and the primary source cited in full in Rob Herbert with Bruce Sumner, “First Fleeter Deborah Ellam (1765–1819) Arrived on the Prince of wales. Part One of Her Story,” Fellowship of First Fleeters Southern Highlands Chapter, (2004–2018), http://fffsouthernhighlands.org.au/?page_id=1520 accessed online 16 September 2018.

[31] PRO: County Palatine of Chester Crown Books 1758–94, CHES 21/7, cited in “ELLAM, Deborah,” in John Cobley, The Crimes of the First Fleet Convicts, (Sydney, Angus & Robertson, 1970), pp.86–87; “No title,” Leeds Intelligencer, Tuesday 14 September 1784, via The British Newspaper Archive (https://www.britishnewspaperarchive.co.uk/), accessed 16 September 2018 p. 3; and the primary source cited in full in Rob Herbert with Bruce Sumner, “First Fleeter Deborah Ellam (1765–1819) Arrived on the Prince of wales. Part One of Her Story,” Fellowship of First Fleeters Southern Highlands Chapter, (2004–2018), http://fffsouthernhighlands.org.au/?page_id=1520 accessed online 16 September 2018.

[32] PRO: County Palatine of Chester Crown Books 1758–94, CHES 21/7, cited in “ELLAM, Deborah,” in John Cobley, The Crimes of the First Fleet Convicts, (Sydney, Angus & Robertson, 1970), pp.86–87; “No title,” Leeds Intelligencer, Tuesday 14 September 1784, via The British Newspaper Archive (https://www.britishnewspaperarchive.co.uk/), accessed 16 September 2018 p. 3; and the primary source cited in full in Rob Herbert with Bruce Sumner, “First Fleeter Deborah Ellam (1765–1819) Arrived on the Prince of wales. Part One of Her Story,” Fellowship of First Fleeters Southern Highlands Chapter, (2004–2018), http://fffsouthernhighlands.org.au/?page_id=1520 accessed online 16 September 2018.

[33] John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), p. 17 via Internet Archive, accessed online 16 September 2018.

[34] John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), pp. 14, 443 via Internet Archive, accessed online 16 September 2018.

[35] John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), p. 443 via Internet Archive, accessed online 16 September 2018.

[36] When John Howard visited prisons in England and Wales in the mid 1770s, including Chester Castle, he gave his reader some shocking examples of the malignity of the air in prisons. “Air which has been breathed, is made poisonous to a more intense degree by the effluvia from the sick; and what else in prisons is offensive. My reader will judge of its malignity, when I assure him, that my cloaths were in my first journeys so offensive, that in a post-chaise I could not bear the windows drawn up: and was therefore often obliged to travel on horseback. The leaves of my memorandum-book were often so tainted, that I could not use it till after spreading it an hour or two before the fire: and even my antidote, a vial of vinegar, has after using it in a few prisons, become intolerably disagreeable. I did not wonder that in those journies many gaolers made excuses; and did not go with me into the felons wards.’ At Chester Castle, writes Howard, ‘when I was in one of [the subterraneous cells], I ordered the door to be shut; and my situation brought to mind what I had heard of the Black Hole at Calcutta…In 1756, at Calcutta in Bengal, out of 170 persons who were confined in a hole there one night, 154 were taken out dead. The few survivors ascribed the mortality to their want of fresh air, and called the place, from what they suffered there, Hell in miniature!’ ” John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777),  pp. 13, 443 via Internet Archive, accessed online 16 September 2018.

[37] Upon finding a gaol or bridewell with no allowance of straw for prisoners to sleep on, as was the case at Chester Castle, John Howard ‘complained of this to the keepers, their justification,’ he writes, was “The county allows no straw; the prisoners have none but at my cost.” John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), pp. 15, 446 via Internet Archive, accessed online 16 September 2018.

[38] John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), p. 443 via Internet Archive, accessed online 16 September 2018.

[39] John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), p. 446 via Internet Archive, accessed online 16 September 2018.

[40] John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), p. 446 via Internet Archive, accessed online 16 September 2018.

[41] John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), pp. 9–12, 442 via Internet Archive, accessed online 16 September 2018.

[42] John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), p. 446 via Internet Archive, accessed online 16 September 2018.

[43] John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), p. 17 via Internet Archive, accessed online 16 September 2018.

[44] Howard was speaking generally here of the mixing of the prison population, so it is not clear from his statement alone whether any mentally ill or dangerous inmates were confined with other prisoners at Chester Castle specifically. What we do know for sure is that the mixing of felons and debtors did not occur at Chester Castle, as these classes of inmates had their separate designated night cells and day-rooms. However, until further evidence comes to light to suggest otherwise, I infer that Howard confirms the mixing of the sexes and ages at Chester Gaol simply by omission, especially in light of the fact that it seems Deborah conceived a child in the prison. Of course, with visitors free to enter the gaol in the day time the father could have been a free person known to Deborah but, given the squalid conditions, it may have been more likely to have been a fellow inmate or turnkey. John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), pp. 15–16 via Internet Archive, accessed online 16 September 2018.

[45] Elizabeth Ellam was born in August 1786, so she was conceived around November 1785, fourteen months after Deborah’s conviction. “Elizabeth Ellam, 10 April 1787,” Diocese of Chester Bishop’s Transcripts of Burials c1600–1910, (Eccleston, Cheshire, England: Cheshire Record Office); “England, Cheshire Parish Registers, 1538–2000,” database, FamilySearch (https://familysearch.org/ark:/61903/3:1:S3HY-DTD7-W9D?cc=1614792&wc=MJ4X-7M9%3A1042828801: 20 May 2014), 004018854 > image 821 of 922; Record Office, Chester.

[46] John Howard, The State of the Prisons in England and Wales: with preliminary observations, and an account of some foreign prisons, (Warrington: William Eyres, 1777), p. 442 via Internet Archive, accessed online 16 September 2018.

[47] Mollie Gillen, The Founders of Australia: A Biographical Dictionary of the First Fleet, (Sydney: Library of Australian History, 1989), pp. 117–18.

[48] Deborah Ellam and Ann Daly were the first two convicts to board the Prince of Wales. Judges’ Reports On Criminals 1784–1830 – Correspondence, Series: HO47, Piece: 6, England & Wales, Crime, Prisons & Punishment, 1770–1935 (The National Archives, London, England).

[49] Ironically, Eccleston, where Deborah and baby Elizabeth parted forever, is derived from the Latin for “meeting place.”

[50] Reuben Gold Thwaites (ed.), The Jesuit Relations and Allied Documents: Travels and Explorations of the Jesuit Missionaries in New France, 1610-1791, 73 vols. (Cleveland: Burrows, 1896-1901), Vol. 3, pp. 33–35.

[51] “Narrative relating to a Convict ordered to be transported to Botany Bay,” The Scots Magazine, 1 November 1786, pp. 525–26, accessed online The British Newspaper Archive, 16 September 2018.

[52] Robert Holden, Orphans of History: The Forgotten Children of the First Fleet, (Melbourne: Text Publishing, 2000).

[53] “Narrative relating to a Convict ordered to be transported to Botany Bay,” The Scots Magazine, 1 November 1786, p. 525, accessed online The British Newspaper Archive, 16 September 2018.

[54] “Narrative relating to a Convict ordered to be transported to Botany Bay,” The Scots Magazine, 1 November 1786, p. 525, accessed online The British Newspaper Archive, 16 September 2018.

[55] “Narrative relating to a Convict ordered to be transported to Botany Bay,” The Scots Magazine, 1 November 1786, p. 525, accessed online The British Newspaper Archive, 16 September 2018.

[56] “Narrative relating to a Convict ordered to be transported to Botany Bay,” The Scots Magazine, 1 November 1786, p. 526, accessed online The British Newspaper Archive, 16 September 2018.

[57] Mollie Gillen, The Founders of Australia: A Biographical Dictionary of the First Fleet, (Sydney: Library of Australian History, 1989), pp. 117–18; Arthur Chapman, First Fleeters, John Herbert and Deborah Ellam: Their Lives and the Descent of the Bamford, Bates and Kay Families, (Ainslie, ACT: A. Chapman, 1987), p. 3.

[58] See Penny Edwell, “John Herbert: From Felon to Farmer,” St. John’s Online, (2016) https://stjohnsonline.org/bio/john-herbert/ accessed 16 September 2018; Joyce Cowell & Roderick Best, Where First Fleeters Lie: compiled from the records of the Fellowship of First Fleeters, (Sydney: Fellowship of First Fleeters, 1990), p.29; Mollie Gillen, The Founders of Australia: A Biographical Dictionary of the First Fleet,(Sydney: Library of Australian History, 1989), p. 172.

[59] Minutes of Proceedings, (ADNSW ref: COD 17 p. 114) Archives Authority of N.S.W., cited in Arthur Chapman, First Fleeters John Herbert and Deborah Ellam: Their Lives and the Descent of the Bamford, Bates and Kay Families, (Ainslie, A.C.T.: Privately printed by Arthur Chapman, 1987), p. 3. Regarding the use of the Aboriginal endonym “Warrane” and the European exonym “Sydney Cove” see Harold Koch and Luise Hercus (eds.), Aboriginal Placenames: Naming and Re-naming the Australian Landscape, (Canberra: ANU E Press, 2009), p. 37, https://books.google.com.au/books?id=HyHh-OrnRGoC&lpg=PR1&pg=PR1#v=onepage&q&f=false, accessed 26 August 2019. For a general discussion about adopting a dual-naming policy but giving prime position to indigenous endonyms and subordinating European imposed exonyms in both the colonial Australian and colonial American contexts as a mark of respect and to “sound” language, see “Name-Calling: Notes on Terminology,” in Michaela Ann Cameron (Ph.D. Diss.), “Stealing the Turtle’s Voice: A Dual History of Western and Algonquian-Iroquoian Soundways from Creation to Re-creation,” (Sydney: Department of History, Faculty of Arts and Social Sciences, University of Sydney, 2018), pp. 25–35, http://bit.ly/stealingturtle, accessed 28 March 2020.

[60] Minutes of Proceedings, (ADNSW ref: COD 17 p. 114) Archives Authority of N.S.W., cited in Arthur Chapman, First Fleeters John Herbert and Deborah Ellam: Their Lives and the Descent of the Bamford, Bates and Kay Families, (Ainslie, A.C.T.: Privately printed by Arthur Chapman, 1987), p. 3.

[61] Minutes of Proceedings, (ADNSW ref: COD 17 p. 114) Archives Authority of N.S.W., cited in Arthur Chapman, First Fleeters John Herbert and Deborah Ellam: Their Lives and the Descent of the Bamford, Bates and Kay Families, (Ainslie, A.C.T.: Privately printed by Arthur Chapman, 1987), p. 3.

[62] Minutes of Proceedings, (ADNSW ref: COD 17 p. 114) Archives Authority of N.S.W., cited in Arthur Chapman, First Fleeters John Herbert and Deborah Ellam: Their Lives and the Descent of the Bamford, Bates and Kay Families, (Ainslie, A.C.T.: Privately printed by Arthur Chapman, 1987), p. 3.

[63] Minutes of Proceedings, (ADNSW ref: COD 17 p. 114) Archives Authority of N.S.W., cited in Arthur Chapman, First Fleeters John Herbert and Deborah Ellam: Their Lives and the Descent of the Bamford, Bates and Kay Families, (Ainslie, A.C.T.: Privately printed by Arthur Chapman, 1987), p. 3.

[64] Minutes of Proceedings, (ADNSW ref: COD 17 p. 114) Archives Authority of N.S.W., cited in Arthur Chapman, First Fleeters John Herbert and Deborah Ellam: Their Lives and the Descent of the Bamford, Bates and Kay Families, (Ainslie, A.C.T.: Privately printed by Arthur Chapman, 1987), p. 3.

[65] Sara M. Butler, The Language of Abuse: Marital Violence in Later Medieval England, (Leiden and Boston: Brill, 2007), p. 3; Diane Hall, “Domestic violence has a history: Early modern family violence,” Australian Women’s History Network, (3 December 2016), http://www.auswhn.org.au/blog/domestic-violence-history/, accessed 16 September 2018.

[66] Minutes of Proceedings, (ADNSW ref: COD 17 p. 114) Archives Authority of N.S.W., cited in Arthur Chapman, First Fleeters John Herbert and Deborah Ellam: Their Lives and the Descent of the Bamford, Bates and Kay Families, (Ainslie, A.C.T.: Privately printed by Arthur Chapman, 1987), p. 3.

[67] An Apologie for Women 28, cited in Henry Ansgar Kelly, ““Rule of Thumb” and the Folklaw of the Husband’s Stick,” Journal of Legal Education, Vol. 44, No. 3, (September 1994): 360–61; “Conjugal right of personal chastisement,” in David Stewart, The Law of Husband and Wife as Established in England and the United States, (San Francisco: Bancroft-Whitney Co., 1887), pp. 63–64 via Internet Archive, accessed 16 September 2018; “Chastisement,” in A. Wood Renton and Max A. Robertson (eds.), Encyclopaedia of the Laws of England with Forms and Precedents by the Most Eminent Legal Authorities. Volume III, Second Edition, (London and Edinburgh: Sweet & Maxwell, Ltd., and Wm. Green & Sons, 1907), pp. 19–20 via Internet Archive, accessed 16 September 2018.

[68] Manby v. Scott, (1659) cited in Henry Ansgar Kelly, ““Rule of Thumb” and the Folklaw of the Husband’s Stick,” Journal of Legal Education, Vol. 44, No. 3, (September 1994): 354.

[69] Henry Ansgar Kelly, ““Rule of Thumb” and the Folklaw of the Husband’s Stick,” Journal of Legal Education, Vol. 44, No. 3, (September 1994): 352; Diane Hall, “Domestic violence has a history: Early modern family violence,” Australian Women’s History Network, (3 December 2016), http://www.auswhn.org.au/blog/domestic-violence-history/, accessed 16 September 2018.

[70] A volume which was a source in the body of canon law.

[71] Henry Ansgar Kelly, ““Rule of Thumb” and the Folklaw of the Husband’s Stick,” Journal of Legal Education, Vol. 44, No. 3, (September 1994): 357, 360–61. ‘The result of the Ordinary Gloss pronouncements is that moderate chastisement is allowed, but it cannot include beating, confinement, or restriction of food.” For a translation that does include reference to beating in the Decretum, see Sara M. Butler, The Language of Abuse: Marital Violence in Later Medieval England, (Leiden and Boston: Brill, 2007), p. 35.

[72] ‘Folk law’ or ‘folklaw’ is, by definition, ‘law that derives its existence and content from social acceptance’ rather than state law. See Stanley N. Katz, The Oxford International Encyclopedia of Legal History, (Oxford: Oxford University Press, 2009), via Oxford Reference, http://www.oxfordreference.com/view/10.1093/acref/9780195134056.001.0001/acref-9780195134056-e-316, accessed 16 September 2018. See also, Henry Ansgar Kelly, ““Rule of Thumb” and the Folklaw of the Husband’s Stick,” Journal of Legal Education, Vol. 44, No. 3, (September 1994): 341–365 and Stephanie Shapiro, “The misunderstood ‘rule of thumb,’ The Baltimore Sun, (17 April 1998), http://articles.baltimoresun.com/1998-04-17/news/1998107056_1_rule-of-thumb-phrase-rule-false-etymology, accessed 16 September 2018.

[73] Colin James, “A History of Cruelty in Australian Divorce,”  Australia & New Zealand Law & History E-Journal, (2006): 2, http://classic.austlii.edu.au/au/journals/ANZLawHisteJl/2006/7.pdf, accessed 16 September 2018.

[74] “Buller, Sir Francis (1746–1800),” in Leslie Stephen and Sidney Lee (eds.), The Dictionary of National Biography, (London, 1921–22) cited in Henry Ansgar Kelly, ““Rule of Thumb” and the Folklaw of the Husband’s Stick,” Journal of Legal Education, Vol. 44, No. 3, (September 1994): 349.

[75] Despite frequent assertions that these cartoons satirised an actual judgement Buller made, there is no direct evidence that Buller ever made a judgement about the acceptability of marital violence in a specific court case or that he established an accepted legal precedent regarding a suitable instrument of punishment via the ‘rule of thumb.’ The satirists may not have been so literal in their commentary and merely used this scenario’s obviously archaic notion of discipline to caricature Buller’s overall judiciary style and conduct. For all his strengths, Buller was known to be a ‘hasty and prejudiced’ judge and, the satirists seem to imply, perhaps a tad archaic in his views and interpretations of the law, which would explain the reference to a judge of more than a century earlier, ‘Lord Coke.’ Buller himself may have invoked Lord Coke on another matter entirely, prompting the satirists to take his devotion to outdated ideas to an obviously absurd conclusion. See Henry Ansgar Kelly, ““Rule of Thumb” and the Folklaw of the Husband’s Stick,” Journal of Legal Education, Vol. 44, No. 3, (September 1994): 341–365; Elizabeth Foyster, Marital Violence: An English Family History, 1660–1857, (Cambridge: Cambridge University Press, 2005), pp. 12–13. For later newspaper reports that perpetuated the myth that the rule of thumb was a law see: “BRITISH EXTRACTS: Matrimonial Discipline,” The Sydney Gazette and New South Wales Advertiser (NSW: 1803 – 1842), Thursday 1 April 1824, p. 3 ; “An Englishman’s Right,” Nambucca News (NSW: 1909 – 1911), Friday 14 October 1910, p. 2.

[76] “ENGLISH POLICE,” The Sydney Gazette and New South Wales Advertiser (NSW: 1803 – 1842), Tuesday 10 July 1832, p. 3

[77] “Collins, David (1756–1810),” Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/collins-david-1912/text2269, published first in hardcopy 1966, accessed online 16 September 2018.

[78] Bruce Kercher quoted in Joel Gibson, “Crimes of the Colony Brought to Trial,” Sydney Morning Herald, (2 April 2010), https://www.smh.com.au/national/nsw/crimes-of-the-colony-brought-to-trial-20100401-ri4r.html accessed 16 September 2018; Bruce Kercher and Brent Salter (eds.), The Kercher Reports: Decisions of the New South Wales Superior Courts, 1788 to 1827, (Sydney: Francis Forbes Society for Australian Legal History, 2009). See also Matthew Allen, “The Myth of the Flogging Parson,” Australian Historical Studies, Vol. 48, No. 4 (2017): 497 for more on the ‘unique system of colonial discipline’ that evolved ‘with no clear analogue in English law’ because ‘corporal sentences were more frequent and more severe than those issued by English courts or benches and in some ways more closely resembled military practices, as did other elements of the colonial legal regime.’

[79] Colin James, “A History of Cruelty in Australian Divorce,”  Australia & New Zealand Law & History E-Journal, (2006): 2, http://classic.austlii.edu.au/au/journals/ANZLawHisteJl/2006/7.pdf, accessed 16 September 2018.

[80] Minutes of Proceedings, (ADNSW ref: COD 17 p. 114) Archives Authority of N.S.W., cited in Arthur Chapman, First Fleeters John Herbert and Deborah Ellam: Their Lives and the Descent of the Bamford, Bates and Kay Families, (Ainslie, A.C.T.: Privately printed by Arthur Chapman, 1987), p. 3; Bruce Kercher and Brent Salter (eds.), The Kercher Reports: Decisions of the New South Wales Superior Courts, 1788 to 1827, (Sydney: Francis Forbes Society for Australian Legal History, 2009).

[81] Arthur Chapman, First Fleeters John Herbert and Deborah Ellam: Their Lives and the Descent of the Bamford, Bates and Kay Families, (Ainslie, A.C.T.: Privately printed by Arthur Chapman, 1987), p. 4.

[82] David Kent, Norma Townsend, and Deborah Oxley, “Deborah Oxley’s “Female Convicts”: an Accurate View of Working-Class Women? [with Reply],” Labour History, No. 65 (Nov., 1993): 183.

[83] Samuel Sinclair, “Journal of the Mary Convict Ship. Samuel Sinclair, M.D. Surgeon, Between the 28^th April 1831 and 29^th October 1831,” p. 5 in Admiralty and Predecessors: Office of the Director General of the Medical Department of the Navy and predecessors: Medical Journals (ADM 101, 804 bundles and volumes). Records of Medical and Prisoner of War Departments. Records of the Admiralty, Naval Forces, Royal Marines, Coastguard, and related bodies. (The National Archives. Kew, Richmond, Surrey).

[84] Samuel Sinclair, “Journal of the Mary Convict Ship. Samuel Sinclair, M.D. Surgeon, Between the 28^th April 1831 and 29^th October 1831,” p. 5 in Admiralty and Predecessors: Office of the Director General of the Medical Department of the Navy and predecessors: Medical Journals (ADM 101, 804 bundles and volumes). Records of Medical and Prisoner of War Departments. Records of the Admiralty, Naval Forces, Royal Marines, Coastguard, and related bodies. (The National Archives. Kew, Richmond, Surrey).

[85] Samuel Sinclair, “Journal of the Mary Convict Ship. Samuel Sinclair, M.D. Surgeon, Between the 28^th April 1831 and 29^th October 1831,” pp. 5–6 in Admiralty and Predecessors: Office of the Director General of the Medical Department of the Navy and predecessors: Medical Journals (ADM 101, 804 bundles and volumes). Records of Medical and Prisoner of War Departments. Records of the Admiralty, Naval Forces, Royal Marines, Coastguard, and related bodies. (The National Archives. Kew, Richmond, Surrey).

[86] “MATRIMONIAL DISCIPLINE,” The Sydney Gazette and New South Wales Advertiser (NSW: 1803 – 1842), Thursday 1 April 1824, p. 3; “ENGLISH POLICE,” The Sydney Gazette and New South Wales Advertiser (NSW: 1803 – 1842), Tuesday 10 July 1832, p. 3; “An Englishman’s Right,” Nambucca News (NSW: 1909 – 1911), Friday 14 October 1910, p. 2.

[87] “A “WOBBLY” LAW: Spare the Rod and Spoil the Wife. Magistrate’s Shocks for Feminists,” The Express and Telegraph (Adelaide, SA: 1867 – 1922), Thursday 14 April 1921, p. 2. As late as 1937, Mr. Justice Roper said ‘referring to the law as it now stood,…that a husband could strike his wife, get drunk and subject her to harsh treatment, but unless his conduct “impaired his wife’s health” she had no redress under the marriage laws.’ See “Women Seek Review of Marriage Law. Vote as Weapon Against Harsh Treatment,” The Sun (Sydney, NSW: 1910 – 1954), Sunday 24 October 1937, p. 20.

[88] Colin James, “A History of Cruelty in Australian Divorce,”  Australia & New Zealand Law & History E-Journal, (2006): 9–10, http://classic.austlii.edu.au/au/journals/ANZLawHisteJl/2006/7.pdf, accessed 16 September 2018.

[89] See the case of “John Murray,” in “Police Incidents,” The Australian (Sydney, NSW: 1824 – 1848), Friday 24 July 1829, p. 3; “Old Matrimonial Law,” The World’s News (Sydney, NSW: 1901 – 1955), Wednesday 7 June 1933, p. 4.

[90] See the case of “John Williams” in “Police Report,” The Sydney Gazette and New South Wales Advertiser (NSW: 1803 – 1842), Saturday 19 March 1831, p. 2.

[91] “Police Incidents: MODERATE CHASTISEMENT,” The Sydney Gazette and New South Wales Advertiser (NSW: 1803 – 1842), Saturday 14 August 1930, p. 3.

[92] “Domestic Intelligence. Police Incidents, Monday, Aug. 9^th: Patrick Casey,” The Sydney Monitor (NSW: 1828 – 1838), Saturday 14 August 1830, p. 2.

[93] “POLICE INCIDENTS,” The Australian (Sydney, NSW : 1824 – 1848) Saturday 1 July 1826, p. 3.

[94] This was, after all, the raison d’être of the Female Factory system established at Parramatta as early as 1802 and which continued till early 1848: to control the convict women not yet assigned to a master or married off to a ‘proper husband’ and thereby maintain a standard of public morality in wider society.

[95] Recent research by historian Matthew Allen has challenged the validity of Marsden’s reputation as ‘the flogging parson,’ demonstrating that in his official capacity as magistrate he was actually statistically less likely to order corporal punishments than his magisterial peers in the Macquarie era and did not exceed the usual number of lashes. Nevertheless, in the case of the gig whip episode, Marsden’s own grandson and namesake James Samuel Hassall had been happy enough to recount the story about his grandfather, whom he knew well into his teens. Hassall even added for good measure that it was ‘well-known to be a fact,’ seemingly raising the possibility that at least some of Marsden’s reputation may have been due to his conduct outside the official space of the courtroom. True or not, Marsden’s alleged disciplinary action was not without precedent, as Debby’s punishment under Collins’s orders proves. Matthew Allen notes, ‘The evidence of critical convict recollections of Marsden probably reflects the…parallel development [of the flogging parson myth] within a now lost tradition of convict story-telling.’ See Matthew Allen, “The Myth of the Flogging Parson,” Australian Historical Studies, Vol. 48, No. 4 (2017): 487, 495 and James S. Hassall, In Old Australia: Records and Reminiscences from 1794, (Brisbane: R. S. Hews & Co, 1902), p.12, via Internet Archive, accessed 16 September 2018.

[96] Judith Dunn, The Parramatta Cemeteries: St. John’s, (Parramatta, NSW: Parramatta and District Historical Society, 1991), p. 163. Parish Burial Registers, Textual records, St. John’s Anglican Church Parramatta, New South Wales, Australia. Deborah’s name was recorded in the parish burial register as “Deborah Hellam Herbert.”

© Copyright 2018 Michaela Ann Cameron