Plater and Crofts on Pardoning Australian Bushrangers

David Plater, University of Tasmania, Faculty of Law, and Penny Crofts, University of Technology Sydney, Faculty of Law, have posted Bushrangers, the Exercise of Mercy and the ‘Last Penalty of the Law’ in New South Wales and Tasmania 1824-1856, which appeared in the University of Tasmania Law Review 32 (2013): 295-343:

The death penalty in the 19th century in both colonial Australia and Great Britain was widely seen as necessary for punishment and deterrence. However, the prerogative of mercy served a vital role during this period in mitigating the effects of capital punishment. This article examines the exercise of the death penalty and the prerogative of mercy in colonial Australia during the period from 1824 to the grant of responsible government in 1856 with respect to bushrangers. Bushrangers despite their often celebrated and even sympathetic status in ‘popular culture’ were perceived (in official and ‘respectable’ circles at least) as more than mere colonial criminals and as posing a particular threat to the often tenuous stability and even existence of early colonial society. However, even offenders ‘beyond the pale’ such as bushrangers were not exempted from the benefit of mercy. It is argued that the prerogative was taken seriously in colonial Australia by the public, the press and notably the authorities to even the worst of capital offenders such as bushrangers. Different conceptions were expressed during the time, ranging from ideas of mercy as based on desert and equity, as something that was predictable and consistent, to ideas of mercy as an undeserved gift. These debates about the prerogative of mercy articulated different conceptions of law and order, community and justice in an embryonic, self-governing society.

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