We are forcibly reminded of a passage in Lord Coke:—"If a man could see all the Christians, that in one year come to that untimely and ignominious death—if there were any spark or grain of charity in him, it would make his heart bleed!" The extreme pains taken to reconcile the unfortunate beings to their lot; the assiduity of the clergy to make up, by the assurance of divine mercy, the inexorable fate which awaited them; proved that these awful slaughters were onerous to the colonial conscience, and vindicable only as the last resort of the last necessity. The Governor must be acquitted of great blame. A discussion, of considerable warmth, arose (1825-6) on an address being presented from fifty persons, who complained of the delays of justice on bushrangers already condemned. The gaol was crowded, and the prisoners seemed not unlikely to escape: several did actually break out of prison. This memorial was transmitted by the government to the chief justice, who, while he disdained giving reasons to the colony, vindicated his court: the magistrates neglected the depositions; the attorney-general the indictments, and the jury their summons. He had sat in a silent court until ashamed, while prisoners awaited deliverance. He had often felt disposed to discharge them; some of whom were detained longer for trial than for punishment. He could not perceive how the delay of execution could facilitate the evasion of capture by those at large. In transmitting this reply, Arthur took occasion to refer to the colonial press, supported by several of the memorialists, as largely implicated with the crimes of the bushrangers. He traced, with some artifice, the violence of the robbers to political dissensions, as inspiriting men who easily confounded "the liberty of writing and the liberty of acting." To be satisfied that the Governor did not seize an occasion of rebuke, rather than account for a public misfortune, is difficult; and not less, to sympathise with the petitioners. It is common for private individuals to deprecate the severities of public justice, but the awful state of the colony must be admitted, when fifty persons, among its most opulent and even humane inhabitants, were anxious to hasten the offices of the executioner.

The ignorant and brutal among the prisoners rushed into violence and crime, with a recklessness of life scarcely credible. Not less than one hundred were in arms at that time:[172] most of them were absconders from the various penal stations, and had exhausted all those forms of severity which stopped short of the scaffold. Of seventy-three sentenced together, nine were for sheep-stealing, four for forgery, five for murder, and twelve for robbery; besides four for the offence known in gaols under the name of blanketing, who were ordered for execution—a punishment which was commuted, being even then thought too severe for a theft committed in gaol. They threw over the man whom they robbed a blanket, and raised loud outcries; and in this form effected their design.

A few of the cases tried on this occasion, will better illustrate the condition of the colony than any general description. The murderers of Alexander Simpson, a settler at Pittwater, pillaged his shop, where he was accustomed to sleep for the protection of his property: his body was found in the river, decapitated, and his flesh torn from his bones; in many places literally bare. On closer examination, the mark of a cord was observed round his neck, which probably occasioned his death. The mangling of his body was intended to destroy the proof of identity: no marks or signs of struggling were visible, nor was the head discovered. One of the murderers dropped an expression, from which guilt was inferred. Suspicion was directed to several of the neighbours: articles, such as the deceased possessed, were found in their dwelling, wet; others were discovered in a house adjoining the deceased's, also wet; the accused were seen together, on the night of the murder. Twenty-two witnesses gave evidence to facts, all of a circumstantial nature; but sufficient to secure a verdict against them. This crime was considered but a type of many, committed in a neighbourhood, the traditions of which furnish many a tale of blood.

Among those who suffered death, were several whose captors acquired considerable reputation for their courage. Three were taken by Lucas, the pilot, assisted by a man and a boy, to whom they surrendered with arms in their hands: they had just before committed a robbery at the house of Mr. Holdship. On his defence, one of their number told the judge, that whatever might be law, he himself could not consider that to hold a pistol at the head was to offer violence! Several others belonged to a party which had escaped from Maria Island, a new penal settlement. On their landing, they advanced to the house of Mr. Gatenby, and were seen approaching by his son, who took up his gun and went out to meet them: he called upon their leader to lay down his arms, which he answered by a discharge. Mr. Gatenby returned the shot, which proved mortal. The companions of the robber endeavoured to carry him off; but finding this useless, they retreated, and re-appeared at the premises of Mr. James Robertson, on the South Esk, whose lands, and those of his assigned servants, they tied, excepting one who was lame. Mr. W. Gray coming up on horseback, they made prisoner, and bound him in a similar manner. The leader of the robbers mounted his horse, while the rest guarded the gentlemen and servants, and marched them on towards the river. Mr. Gray disengaged his arm, and by a signal seized one bushranger, while the lame man assailed another. Mr. Robertson also released himself, and got possession of the guns. The robbers were overpowered: one only escaped, but was captured the following day.

The Governor was not slow to acknowledge these instances of gallantry. The courage of the masters, and the fidelity of their men, were held up to the colony as brilliant examples, and to the robbers as a proof that persons of the same civil condition had no sympathy with their crimes; that their career would be short, and their capture certain. Tickets-of-leave were granted to the men, with a promise of full freedom, as a reward of one year's service in the field police. The Government Gazette observed, that such presence of mind and personal bravery, in another age would have entitled the captors to armorial bearings; they, however, received donations of land, perhaps not less valuable in this meridian.

Amongst others who received a reprieve, was William Kerr, convicted of forging, in the name of the chief justice, an ingenious device, which, if it did not preserve him from conviction, perhaps rescued him from a severer fate. He was advanced in years, and said to be a near relative of the Earl of Roxborough, and a brother to Lord Kerr. In gaol, he was conspicuous for his zeal in attempting the instruction of his fellow prisoners, performing the office of chaplain in the absence of a better! These unfortunate beings were placed together in cells, too narrow to allow retirement or freedom from interruption: their attempts at escape, once or twice nearly successful, rendered it necessary to load them with irons. The time of execution was fixed, ere they wholly despaired of liberty. There was not, however, deficiency of clerical attention: Mr. Corvosso, the wesleyan minister, joined with Messrs. Bedford and Knopwood, in this awful task.

Large crowds assembled to witness the first execution; but when the novelty was over, the interest subsided. The last assembly was more select: in the description given by Dr. Ross, we seem rather to read of a martyrdom than an expiation. They came forth, he observed, with countenances unappalled: the light of truth rendered that ignominious morning the happiest of their lives. They prayed in succession, in a devout and collected manner: one in particular, with a countenance serene and placid, expressing his thanks to the chief justice for his impartial trial; and to the Governor for rejecting his petition for life. In this tranquil frame they submitted to the executioner. The spectators were affected to tears: the officers and clergymen, overpowered, hurried from the scene: the criminals died, as they were singing—

"The hour of my departure's come, I hear the voice that calls me home; Oh, now my God, let troubles cease, And let thy servant die in peace."

About this time Dunne, the bushranger, was executed: he attained a considerable distinction by his crimes; more, by his protracted evasion of pursuit, and his sanguinary resistance of capture; and still more, by the ceremonies of his execution and the honors of his funeral. He came forth to the scaffold, arrayed in a robe of white, adorned, both before and behind, with a large black cross. He wore a cap with a similar token, and carried a rosary in his hand. He was presented with a coffin of cedar, ornamented with the devices of innocence and sorrow; and bearing a plate, which told his name and the time of his death! As he advanced, with several youthful fellow sufferers (of whom it is only said, that they seemed much terrified), he continued to exclaim, smiting his breast with theatrical expression of grief—"O, Lord, deliver us!" He was followed by forty couples to the grave. Such were the honors paid to a murderer. It is not astonishing, that witnesses were insulted, and had to appeal for protection. A proposition was made by the government newspaper, to render penal the taunts which prisoners were accustomed to use against such as assisted in the suppression of outrage.

The public effect of these exhibitions will be extremely questionable by sober-minded and pious men. To see a criminal depart from this life in a hardened and contemptuous spirit is, indeed, appalling; but the serenity, and even rapture, thus common when terminating a career of guilt and cruelty, often entered into the calculation of transgressors. Among the miserable forms of vanity, is the triumph of boasting penitence; and even when nothing else remains, the eclat of a public execution. Some were anxious to commit to writing their own last confessions of guilt, to secure a posthumous interest in the terror or pity of mankind.[173] The fullest appreciation of that system of mercy, which never separates religious hope from the living, would scarcely justify confidence, founded on such demeanour and language between the cell and the scaffold.

Scarcely had this scene closed, when the prisoners in the penitentiary, allured by the prospect of escape, broke through the gaol, and seized a boat: as they approached the Emma Kemp, a premature display of muskets convinced them that their plan was discovered. It was, indeed, known by the officers of the gaol prior to their departure; who, calculating on their arrest, permitted the consummation of their plans. This cost them their lives: they retreated to the shore, robbed Mr. Mortimer of eight stand of arms, and commenced their career as bushrangers. They were evidently unwilling adventurers, and soon taken. The Governor, at their execution, compelled the attendance of the prisoners, in the fallacious belief that the sight would prove admonitory as well as terrible.

Several were mere youths: their obituary, furnished by the indefatigable chronicler of executions, Dr. Ross, is not without interest. There was Dunhill, six feet three inches high and handsome, a frequent attendant at criminal courts; whose father was a prisoner for life, and whose family, once the terror of Yorkshire, were mostly transported or executed. There was Child, the son of a Bristol merchant, who, as the rope was adjusting, said, "I know I shall go to heaven!" There was a Scotch boy, who sang as he went; but said he was ruined in the penitentiary. Another had driven his mother to self destruction.

Nine men were executed towards the close of the following year, for the murder of a constable, named George Rex, at Macquarie Harbour: their leader, James Lacy, a person of considerable talent, was saved on a former occasion by the mediation of the Rev. W. Bedford, who represented that to Lacy's influence a settler owed his life. Having planned an escape, they seized the constable; and having bound and gagged some fellow prisoners, whom they rejected as accomplices, they took Rex and pushed him into the water, and held down his head until life was extinct. They then formed a raft, but it was insufficient to convey them: three only landed on the main, and were pursued and retaken. The sole witnesses summoned against them were prisoners, who prevaricated in their testimony; but the presence of surgeon Barnes supplied the evidence they thought proper to conceal, and insured the conviction. At the close of the trial, Lacy leaned over the bar and said, "had it not been for you, doctor, we should have pulled through."

Lacy was conspicuous in the press-yard for his fervour, and delivered an animated warning to the multitude, who were drawn together to witness an unusual sacrifice of life at one drop! Dr. Ross, who still endeavoured to rally round the scaffold some special interest, gave an artistic description of their end; but he was astonished to observe how the sufferers themselves were but little affected, and the spectators less. He mourned over the unmeaning countenances of the mob, who felt little but curiosity when they saw them step from the full bloom of life to the grave! Nor was it perceived by that zealous defender of lenity, when the government was lenient, and of the severity, when the government was severe, that the execution of nine persons for an act, in which three only actually participated, or perhaps contemplated, could only be possible among such a people. It is rather a matter of exultation, that there is a limit, beyond which executions become the dullest of all entertainments. At that time no one would have thought a single sufferer worth a glance of the eye.

It is remarked, that the most notorious of these offenders were rather prepossessing, except that their looks, by long residence in the bush, had acquired an air of wildness. The indicative theories of Lavater were negatived by the usual aspect of these crowds of victims; but the most impatient of penal restraint, have been not only violent and corrupt, but often of resolute and generous dispositions; often possessing the elements of a mental character, which, had it not been perverted by crime, might have been distinguished for the energy of virtue. On the primary treatment of such men, everything depends; and their first master determined whether they were to become active and intelligent agriculturists, or by pernicious indulgence, and not less ill-judged severity, to pass rapidly, by a reckless and resentful temper, from the triangle to the scaffold.

Such severe exhibitions of penal vengeance were intended to crush the insurgent spirit; to prove to the prisoners that any forms of combination or resistance would be followed by severer suffering. The re-action of that excitement assisted the future success of discipline. It convinced the masters that a neglected or careless management was equally pernicious. But the natives, also became objects of terror: the outlaw could not wander far without risk from their spears, or hover near the settled districts without encountering the roving parties employed in their pursuit. Thus the ravages of white men almost wholly ceased, during the conflict with the aboriginal tribes: the constables and the blacks together beat up the quarters of absconders.

But the precautions of the government were more effectual than its severity. Hitherto many had lived at large. At night their own masters; when not seduced by more serious temptations, their drunkenness exposed them to the lash; and dread or resentment precipitated them into open crime. In 1827, the enlargement of the penitentiary, and its better order, enabled the government to recall from private dwellings those least worthy of trust; and to make the indulgence of a home a reward for orderly and industrious habits. The prisoners employed by the crown were divided into seven classes. Some were permitted to labor one day weekly for their own advantage: these were the mechanics, who were detained only because they were artisans; others, on the roads, were allowed half that time, and by great exertions often obtained very considerable sums. The rest were in irons, or sent to the penal settlement under a magisterial sentence.

The fate of many who had suffered death was traced by the Governor to the imprudence and guilty connivance of the masters, or to the irregular methods of payment long interdicted by the crown; such as cattle, allotments, or a portion of time. The executive council professed to follow up these evils through every stage of their growth, until they were finally consummated on the scaffold.[174] During twenty years they had been often condemned; but they were not extinguished until the market was enlarged, and labor became scarce—so much do moral questions depend on material revolutions.

The distribution of servants was made with more prudence, and some reference to their previous habits and mode of life; and a stand was opposed to the sole superintendence of prisoner overseers, who were often the occasion of unjust punishments and criminal laxity. The impounding laws gradually cut off another occasion of mischief. Heretofore, large herds of cattle were under the charge of prisoner herdsmen, who were armed with guns. The wild and exciting employment exposed the men to many temptations: their daring spirit and fearless riding, rendered them objects of admiration; and created discontent in the minds of prisoners who were tied down to the more quiet labor of a farm. Of eight men employed by Mr. Lord, a wealthy colonist, five suffered death for various crimes.[175] Such persons lived remote from the civilised community and the inspection of their employers: often the channel of communication between the town receivers and country thieves; nor this alone. The large herds wandering far beyond the limits of the settled country, and without a recognised owner, suggested to the discontented servant a resource, and led him to abscond where he could subsist on the flesh of slaughtered spoil.

FOOTNOTES:

[Footnote 167: From Barnes' and Lempriere's account: compared, they differ in statistics; but Barnes copied his statements from the official records at the Harbour.]

[Footnote 168: Par. Pap.

Of 182 prisoners, 169 were sentenced in 1822 to 7,000 lashes; that is, all were punished, except 13: and received each, upon an average, 400 lashes—inflicted with the severity unknown elsewhere.]

[Footnote 169: It has been suggested to the author, since the above was in type, that the disclosures of this unfortunate being are not without a moral, which may compensate for the disgust their perusal may occasion. They are therefore given in a note, which the reader may pass over:—

"The Rev. Mr. Connoly, who attended this unfortunate man, administering to him the consolations of religion, addressed the crowd assembled around the scaffold, a few minutes before the fatal drop was let to fall, in words to the following effect: He commenced by stating that Pearce, standing on the awful entrance into eternity on which he was placed, was desirous to make the most public acknowledgment of his guilt, in order to humble himself, as much as possible, in the sight of God and man; that to prevent any embarrassment which might attend Pearce in personally expressing himself, he had requested and directed him to say, that he committed the murder of Cox, under the following circumstances:—Having been arrested here, after his escape from Macquarie Harbour, Pearce was sent back to that settlement, where the deceased (Cox) and he were worked together in the same gang. Cox constantly entreated him to run away with him from that settlement, which he refused to do for a length of time. Cox having procured fishhooks, a knife, and some burnt rag for tinder, he at last agreed to go with him, to which he was powerfully induced by the apprehension of corporal punishment, for the loss of a shirt that had been stolen from him. For the first and second day they strayed through the forest; on the third made the beach, and travelled towards Port Dalrymple, until the fifth, when they arrived at King's River. They remained three or four days in an adjoining wood, to avoid soldiers who were in pursuit of them, and were all the time, from the period they started, without a morsel to eat. Overcome by famine, Pearce determined to take Cox's life, which he effected by the stroke of an axe while Cox was sleeping. Soon after the soldiers had departed, Pearce occupied the place they had been in, where he remained part of a day and a night, living on the mutilated remains of Cox; he returned to the settlement, made signal, and was taken up by the pilot, who conveyed him to Macquarie Harbour, where he disclosed to the commandant the deed he had done, being weary of life, and willing to die for the misfortunes and atrocities into which he had fallen.

The reverend gentlemen then proceeded to state, that he believed it was in the recollection of every one present, that eight men had made their escape, last year, from Macquarie Harbour. All these, except Pearce, who was of the party, soon perished, or were destroyed by the hands of their companions. To set the public right respecting their fate, Pearce is desirous to state that this party, which consisted of himself, Matthew Travers, Bob Greenhill, Bill Cornelius, Alexander Dalton, John Mathers, and two more, named Bodnam and Brown, escaped from Macquarie Harbour in two boats, taking with them what provision the coal-miners had, which afforded each man about two ounces of food per day, for a week. Afterwards they lived eight or nine days on the tops of tea tree and peppermint, which they boiled in tin-pots to extract the juice. Having ascended a hill, in sight of Macquarie Harbour, they struck a light and made two fires. Cornelius, Brown, and Dalton, placed themselves at one fire, the rest of the party at the other; those three separated, privately, from the party, on account of Greenhill having already said, that lots must be cast for some one to be put to death, to save the whole from perishing. Pearce does not know, personally, what became of Cornelius, Brown, and Dalton: he heard that Cornelius and Brown reached Macquarie Harbour, where they soon died, and that Dalton perished on his return to that settlement. After their departure, the party, then consisting of five men, lived two or three days on wild berries and their kangaroo jackets, which they roasted; at length they arrived at Gordon's River, where it was agreed, that while Mathers and Pearce collected fire-wood, Greenhill and Travers should kill Bodnam, which they did. It was insisted upon, that every one should partake of Bodnam's remains, lest, in the event of their ultimate success to obtain their liberty, any of them might consider himself innocent of his death, and give evidence against the rest. After a day or two, they all swam across the river, except Travers, whom they dragged across by means of a pole, to which he tied himself. Having spent some days in distress and famine, it was proposed to Pearce, by Greenhill and Travers, that Mathers be killed, to which he agreed. Travers and Pearce held him, while Greenhill killed him with an axe. Living on the remains of the deceased, which they were hardly able to taste, they spent three or four days, through weakness, without advancing beyond five of six miles; Travers being scarcely able to move from lameness and swelling in his foot. Greenhill and Pearce agreed to kill Travers, which Greenhill did while Pearce collected fire-wood. Having lived some time on the remains of Travers, they were for some days without any thing to eat; their wants were dreadful: each strove to catch the other off his guard, and kill him. Pearce succeeded to find Greenhill asleep; took his life—and lived upon him for four days. He was afterwards for three days without any sustenance; fell in, at last with the Derwent River, and found some small pieces of opossum, &c., at a place where the natives had lately made fires. More desirous to die than to live, he called out as loudly as he could, expecting the natives would hear him, and come to put an end to his existence! Having fallen in with some bushrangers, with whom he was taken, Pearce was sent back to Macquarie Harbour, from whence he escaped with Cox, as has been already stated, for whose death he is now about to suffer."—Hobart Town Gazette, 1824.]

[Footnote 170: Ross's Almanack.]

[Footnote 171: "The fact was also corroborated by Brady, when examined by the gentleman from whom I got the account; and, strange as it may appear, it is perfectly correct."—Breton's New South Wales, p. 340.]

[Footnote 172: Gazette, 1825.]

[Footnote 173: The author is assured by a clergyman, that he has been dismissed his attendance upon a prisoner, within a few days of his execution, for refusing to write down the particulars of his life.]

[Footnote 174: "The flagitious proceedings of several of these men were clearly traced to have had their source in the weakness or improper treatment of their employers, whose ill-judged neglect of discipline, or corrupt toleration of irregularity, had contributed to entail consequences so awful to those victims to offended justice. If it shall be ascertained, any settler makes payment to convict servants in stock, or apportions to them land for their exclusive benefit, or suffers them to be employed in any other than his immediate service, every support and indulgence of the crown will be withdrawn."—Gazette Notice, Sept. 1826.]

[Footnote 175: Ross's Almanack.]



SECTION XIII.

To preserve the continuity of this narrative, it may be advisable to give throughout the incidents which relate to Macquarie Harbour. The short but severe government (1824) of Lieutenant Wright was superseded by Captain Butler (1825), of whom the common testimony is favorable. Its economical results will be comprehended in that general view of prison labor, reserved for the close of this volume. He extended cultivation, and thus mitigated the sufferings of the prisoners; and by building ships, varied the industry of the men—many of whom went down for punishment, but returned skilful mechanics.

Of all the thousands professing to bring back its consolation to the wretched, not one minister had been found—perhaps not sought for—to try there the remedies of the gospel. That a Wesleyan missionary ventured, entitles him to the esteem of mankind. Governor Arthur suggested, and even entreated this direction of missionary labours: he wrote to Joseph Butterworth, M.P., and to the Colonial-office, and the Rev. Mr. Schofield was appointed to enter this moral desert. On his arrival in 1829, he heard terrific accounts of the perils of that place: he was told, that his labors would be useless, and his life sacrificed. He hesitated for a time; but Arthur declared that such a post of danger, he, as a soldier, should consider one of honor.

Mr. Schofield proved that he was neither deficient in zeal nor prudence. The place prepared for his ministry was, indeed, comfortless: the wind overpowered his voice, and his congregation shivered with cold; but to the men it was a new era. Having discoursed on the advantages of knowledge, forty-seven prisoners requested instruction; and, assisted by Mr. Commissary Lempriere, and countenanced by the commandant, he taught many to read. Capt. Butler marked a change in the temper of the men: punishments fell off one half; several were united with the wesleyan society; and on the missionary's recommendation, their stay was shortened.

They only should ask the reality of such repentance, who have endeavoured to reform the wicked. One man was specially pointed out to Messrs. Backhouse and Walker: the change in his conduct was great, and its effects visible: his demeanour, his countenance, and, said the commandant, "his very voice was changed." He had lost his arm by an accident, which nearly deprived him of life. He had formed a cave at the base of the island, reached by a steep slippery descent. It was here Mr. Backhouse joined him, as he knelt down on the rough floor of his cold cavern to adore the Almighty, for granting the privilege of solitude! Strange meeting, and strange subject of thanksgiving!

Messrs. Backhouse and Walker, of the Society of Friends, travelled these colonies (1831 to 1836), chiefly engaged in religious labors, and principally to admonish the prisoners. The volume, of which Backhouse was the author, attests their industry and accurate observation, while performing a mission, which the moral weight of their connections rendered of great moment. To understand this record of their labors, some acquaintance with science is requisite, and not less a knowledge of quaker modes of thought. The adventurous and buoyant spirit of the writer, which carried him into odd situations, is sometimes irresistibly droll, in contrast with formal phrases. He was a gentleman of prudence and sagacity: "he lifted up his heart to God; took his pocket compass," and thus escaped some perils, both by sea and land; and carried to England a reputation, from which detraction has taken nothing, and which friendship would scarcely desire to improve.

The capture of the Cyprus in Recherche Bay, on the voyage to Macquarie Habour, was a stirring episode in the history of transportation. It excited vast interest in Great Britain, and was dramatised at a London theatre. The prisoners, who wage war with society, regarded the event with exultation; and long after, a song, composed by a sympathising poet, was propagated by oral tradition, and sung in chorus around the fires in the interior. This version of the story made the capture a triumph of the oppressed over their oppressors. The stanzas set forth the sufferings of the prisoners by the cruelty of their masters, who they vainly attempted to please. It related their flight from torture to the woods, and drew but a dreary picture of the life of an outlaw. It passed through the details of conviction and embarkation, and then described the dashing seamanship of the pirates in managing the bark, once destined to carry them to that place of suffering; but which bore "bold Captain Swallow" to the wide ocean and liberty. Such was the song; but the facts were different. In August, 1829, thirty-one prisoners embarked on board the Cyprus; among them was Swallow, a seaman, who eighteen years before had cut out a schooner at Port Jackson, and was afterwards transported to Van Diemen's Land in the Deveron, Captain Wilson.

This man, before he landed, exemplified remarkable courage. A dreadful storm disabled the vessel; the rigging was in fragments: it became necessary to cut away a portion of the wreck, which would probably cost the adventurer his life. The captain called for a volunteer, and all being silent was himself about to ascend, when Swallow remarking that his own life was of little moment, accomplished the perilous task. Perhaps presuming on this service, he was found secreted on board the Deveron on its homeward voyage, and was delivered to the British admiral at Rio; he, however escaped, got to London, was retaken and returned to this colony. Several others were capital respites, who had been guilty of atrocious crimes.

These men were entrusted to the charge of Lieut. Carew, and a guard of ten soldiers. On board they had provision for four hundred men for six months, with a scanty supply of water. When he received the prisoners, Lieut. Carew was warned of their desperate character by the gaoler, though not of the precise nature of their crimes. The ammunition supplied was, however, insufficient—ten rounds each man: to spare the powder, the muskets were not often charged. The berths of the soldiers were below, and the opening only sufficient to emerge unarmed: that of the prisoners was too small to permit their lying down: one opening admitted air, without bars or fastenings, and could not be closed day or night. It was necessary to exercise on deck, and at the time of the capture the number allowed was exceeded, it is said by the connivance of the convict sailors. Several of the prisoners had before been relieved of their irons: among the rest, Swallow, the pirate captain; and when the assault commenced, there were nine, and soon after sixteen engaged in the fray. There were only two sentinels, and one other soldier unarmed on deck. Lieut. Carew had left the vessel to fish, accompanied by the surgeon, the mate, a soldier, and the prisoner Popjoy. A few minutes after, he heard the firing of a musket, and hastened towards the vessel; but when he reached her side she was taken. The struggle with the sentinels seems to have been severe; and one of the soldiers below fired a shot, which passed between the arm of Swallow and his side. The mutineers compelled them to surrender by pouring down water into the hold, and threatening to stifle them if resistance were prolonged: they were also in danger of suffocation from their own gunpowder. Carew implored the pirates to give up the vessel, and promised oblivion: when attempting to board, they pointed several muskets at his breast. At length he consented to go ashore, with the soldiers and thirteen prisoners, who refused to share in the adventure; and, in all, forty-five were landed at different points of the bay. The pirates gave them one sheep, a few pieces of beef, thirty pounds of flour, and half a bag of biscuit, with a small quantity of spirit and sugar; and at dawn sailed from the coast. The refusal of a boat, cut off all immediate communication with the port, and gave time for considerable progress. The Cyprus was without charts, but several of the mutineers were well acquainted with navigation.

The sufferings of the party on shore were inexpressible: they distributed one quarter of biscuit daily, and subsisted chiefly on muscles, found for some time, until a spring-tide covered them. Morgan and Popjoy set out the next day for Hobart, and attempted to cross a river, with their garments tied on their backs: they were driven back by the natives, and were obliged to return, having lost their clothes. Five men started to head the Huon, and thus reach Hobart; and were saved from starvation, only by the party sent down to meet them. Morgan and Popjoy, under the direction of Carew, and encouraged by his lady, who displayed extraordinary fortitude, constructed a coracle of wicker work, about twelve feet long, formed of the wattle: they covered it with hammock cloth, and overlaid it with boiled soap and resin mingled, which they happened to possess. In this frail bark they boldly ventured to sea; and, notwithstanding a strong south breeze, happily found the Orelia at Partridge Island, twenty miles distant. Contrary winds had compelled that vessel to put back to the island, and boats were instantly forwarded to the relief of the sufferers, who for two days had been without sustenance. Though several had received severe contusions in the capture, and experienced much privation during the thirteen days detention, no life was lost.

The circumstances attending the capture were subject to the investigation of a court martial. Lieutenant Carew was charged with neglecting the proper precautions, though warned of the extreme peril which demanded his vigilance; that he proceeded on a fishing excursion; that during his absence the vessel was surprised and seized; that he exhibited professional incapacity, and had been guilty of a breach of the articles of war. This trial lasted five days, and was fully reported. The evidence is conflicting, and especially respecting those incidents which were supposed to suggest the capture to the prisoners: such as the neglect of the fire-arms, and the indulgence of the prisoners by a removal of their irons, and their access to the deck. On the other hand, the testimony was positive and multiplied, that Carew had guarded the prisoners with great steadiness and rigour. That he apprehended no danger was certain—his wife and children were aboard; but he forgot that the desire of liberty makes men quick and desperate, and that they who had the miseries of Macquarie Harbour before them, made light of life.

The arrangements of the vessel did not, however, admit of proper precautions. When two of these men, in company with sixteen other prisoners, were sent down three years after to the penal settlement, there were ten soldiers to guard them: two only were on deck at once. Their prison was railed in, and closed down with triple bolts: the sentinels were doubled, and some sat continually in sight of the prisoners.[176]

The pirates proceeded to the Friendly Islands, and thence to the Islands of the Japannese, where seven deserted, and the rest passed towards China. Four seamen presented themselves in a boat, having Edward on the stern, to a vessel at Whampoa, and stated that they had belonged to a lost ship of that name. Swallow was one of them: he was examined by the committee of supercargoes at Canton, and produced a sextant on which was the name of Waldron, of the Edward. This name Swallow assumed, and said that he was captain of the Edward, of Durham; related his voyages to various ports of South America, the Sandwich Islands, and Japan. Compelled to abandon his vessel, injured by the fire of the Japannese, the crew had divided into parties, of which himself and companions were one. This deposition was forwarded to the company's secretary, and passages were given free to Swallow and three others. A few days after he had sailed, four more appeared: Davis, who gave his name as Stanley, was examined; but he had forgotten the assumed name of the captain, and called him Wilson—this led to minuter inquiries, and he was sent home a prisoner. Information was instantly forwarded, and reached England before Swallow arrived with his companions, and a warrant was issued for their detention: the three were taken, but Swallow had left the ship at Margate, and for a time escaped.

Watts, Davis, and Swallow, were ultimately tried for this offence by the Admiralty Court, in London: the two first were executed, and Swallow was acquitted. It is said that the proof of his participation, except by compulsion, was incomplete. The events which led to their conviction were curiously coincident. The Thames police magistrate was unable to proceed, and they might have been discharged; but the police clerk had studied the Hue and Cry, and was struck with their resemblance to the description. Popjoy, now in England,[177] pardoned for his good conduct at the capture, had been recently before the magistrate for some trifling offence, and to interest his worship had given the story of the capture, the coracle, and all incidents of his intrepidity. He was thus soon found out by the police, and gave full proof of identity. He stated their crimes, their names, and secret marks which were discovered on their persons: one of them, the very day of the capture, had the figure of a mermaid punctured on his arm. Mr. Capon, the gaoler of Hobart Town, was in London,[178] and thus was able to supply important particulars.

Several were forwarded to Van Diemen's Land, and tried by Judge Pedder: they pleaded that their concurrence was involuntary. The chief question was the actual position of the vessel; whether or not on the high seas. The military jury were not disposed to hesitate on this point, and when asked repeatedly, whether they found a place shut in between two heads the high seas, they answered, without hesitation, "we do." Only John Cam suffered death in Van Diemen's Land. Robert M'Guire was tried last for this offence: in the scuffle, he wounded a soldier, who had attempted to strike him, and whose testimony was decisive: he stood sentry, with a military cross-belt and bayonet fixed; and was recollected by his refusal of liquor, which he warned his comrades would prove their destruction.

The chief advantage of Macquarie Harbour was its total isolation; but the opening of the country from the Derwent to the Gordon, destroyed this seclusion. The bar gradually rising, became more dangerous: the place was too distant for supervision or supply; its barren soil allowed no variety of labour or produce. The decaying buildings were of little worth: there was nothing removable, except the doors and windows. These were shipped on board the Frederick, of one hundred tons; and all being ready for sea, on the 11th January, 1834, Mr. Taw, the pilot, as captain, embarked with the master shipwright, Mr. Hoy, the mate, ten prisoners of the crown, and a corporal's guard. They were detained by adverse winds, and the pilot allowed the prisoners to land to wash their clothing, all except one; they returned with great apparent cheerfulness. Two of the soldiers were permitted to fish near a neighbouring rock, and thus only two remained on board: while one of these, allured into the forecastle, listened to the singing of a convict, the prisoners on deck handed out the arms. Messrs. Hoy and Taw endeavoured to recover possession, both by persuasion and force: there was a short scuffle, and shots were fired: the balls passed near the gentlemen in the cabin, though they were not injured. Remonstrance being useless, they surrendered, and with the soldiers now recalled from the rock, were sent on shore: thus, although the military and civil officers were nearly equal in number, the mutineers accomplished their purpose without loss of life. They sent next day a quantity of provisions, small in amount, but, considering the voyage before them, more than such men could have been expected to spare. The soldiers, gratified by their fairness, forgot their own position in sympathy for the liberated men, and gave them cheers and good wishes. On the morning after, the wind became fair, and a light breeze carried them beyond danger.

When the mutineers had gained possession of the ship, John Barker, a mariner, was chosen captain: he could take an observation, and direct a ship's course; his mate was John Fair, and several others were sailors. By carrying too much canvas they strained the vessel, which required their constant efforts at the pump. They proposed to run to Valdavia, South America: they suffered from a gale of wind of nine days duration, which they weathered with great difficulty, and saw land on the 26th of February, having been six weeks on their passage. They resolved to abandon the brig: they had three carpenters on board, by whom the launch was decked and rigged, and they left the Frederick with her channel plates under water. Having landed, they discovered an Indian ploughing with a wooden share: from him they could not obtain supplies; they, however, found that they were in the neighbourhood of Valdavia, and soon approached the battery of that port, and were humanely received by the inhabitants. On examination they declared the entire facts of their escape, and were allowed to reside under promises of protection. They appealed to the officials as patriots, and implored them to take their lives rather than to restore them to the British. A few months after, H. M. S. Blond, Commodore Mason, excited their alarm; it however passed over: several married, and the governor and his lady honored the nuptials of the pirate captain with their presence. Shortly after, they were put under friendly arrest, Commodore Mason having applied for them, and made some preparations to seize them by force; sending an armed boat, which the Americans repelled. The second "governor" was not equally favorable, but was conciliated by the promise of Barker and three others to build him a boat: this accomplished, they seized her and absconded. The governor exasperated at the loss, and their perfidy—probably excited by his harsh treatment, and their constant apprehension of capture—arrested and delivered up their companions to the Blond; who were sent first to England, and then to Van Diemen's Land.

They were tried in 1837: one of their number raised an objection, which was referred to the English judges, and decided in their favor. The defence was very ingenious: admitting the vessel was taken, it had never been finished; it belonged to no port; it had received no name: it was canvas, rope, boarding, and trenails, put together shipwise—yet it was not a legal ship: the seizure might be theft, but not piracy! Upon the whole, the prisoners conducted themselves well: however criminal the escape, their kindness to the people they overpowered; their unusual unanimity, and prudent acknowledgment of their real circumstances; their appeal to the patriots for sympathy, and the ingenuity of their defence,—must be admitted as exhibiting qualities by no means despicable.

But never was the government more culpable, or the prisoners less so, than in the instance of the Badger, a vessel of twenty-five tons, freighted with provisions for the East Bay Neck military station (1833). She was a fast sailer, and well found, and in charge of a master mariner, a convict, and convict seamen. The escape was joined, and probably planned, by Darby, late a lieutenant in the royal navy, and present at the battle of Navarino: a man of small stature but great daring. On his passage to the colony he had been implicated in a plot to take the vessel, which was partly known to a notorious receiver on board,[179] who expected some favor by informing. The plotters intended to shut down the soldiers and officer, to run for the American coast, and there allow those who thought proper to land, or to attend the vessel to her destination. Darby declared that, buried on the shores of America, he had considerable treasure. On his arrival in Van Diemen's Land the affair on board was made known to the Governor, by whom Darby was told, that if ever he attempted to abscond, or to enlist others in the enterprise, he should suffer all the law could inflict. He was, however, placed at the signal station, and afterwards appointed to assist the water bailiff, and thus had always in view the means of escape! A convict clergyman, employed as tutor by a member of council, was the companion of his flight. The loss of this vessel exemplified the laxity of official oversight, where most required. No one could be surprised at the escape, which good men suffering in a good cause would have naturally ascribed to the favor of Providence.

FOOTNOTES:

[Footnote 176: Backhouse's Narrative.]

[Footnote 177: This man had been transported, when eleven years of age, for horse-stealing. He was lost off the coast of Boulogne. Swallow died at Port Arthur.]

[Footnote 178: On the affair of Ikey Solomon.]



SECTION XIV.

The escapes of prisoners might be called romantic, could romance enter the province of crime. While the first fleet were at anchor off Teneriffe, John Powers slipped down into a boat attached to the Alexander transport. He boarded a foreign ship: his offer to enter as seaman was refused. He then landed beneath some insuperable rocks: assisted by the governor of the island, his retreat was soon found.

Such was the first absconder. The determination to escape from New South Wales, induced the prisoners to listen to every project, and to commit their lives to boats of the most imperfect structure, in which they were usually lost. But Bryant, an expiree, his wife and two children, and seven convicts, escaped in a small fishing boat (1790). He had purchased a compass and quadrant, and obtained a chart of his intended course. They provided food for the voyage, and the boat was in excellent trim; they were met at Timor by the crew of the Pandora, sent to the southern seas to arrest the mutineers of the Bounty. Bryant professed to have suffered shipwreck: he was kindly received by the Dutch. He died at Batavia; also one of his children and two of his companions: the rest were afterwards seized, and conveyed to England, where the story of their sufferings excited the public compassion, and they were merely detained in Newgate for the unexpired term of their sentence.[180]

Their nautical intrepidity and their comparative success, inspirited future attempts. But the most celebrated project was concocted by Irish convicts, who proposed an overland passage to China! Of forty-four men and nine women absent, the greater part perished on this curious enterprise.[181] Some, after the absence of several weeks, re-appeared, exhausted with fatigue and hunger. The Governor, finding it impossible to prevent elopement by punishment, attempted to convince them by experience. He furnished some of the strongest with provisions, and appointed them conductors, that they might proceed as far as possible towards the desired land: they returned, only partially convinced that flight in that direction was hopeless.

The imagination of the prisoners pictured an elysium beyond the mountains. A seductive rumour long prevailed, that in the interior a community of white persons were living in primitive innocence; but many years elapsed, ere the notion obtained the consistence of a story. In 1833, an account was circulated in England, that white people were found several days journey from the north coast of New Holland, in a village enclosed by a wall to defend them from the natives. They spoke in Dutch, and stated that their ancestors, among whom were twelve females, came from a distant land; that their vessel was broken; that they travelled far towards the rising sun; that many died by fatigue, and the rest settled on that spot—a beautiful valley, on the borders of a lake. A full description of their habits and customs was given in the Leeds Mercury, but which can have no interest to such as disbelieve their existence.[182]

The Young Lachlan, a vessel the property of Capt. Howard, was seized at the Derwent, by sixteen prisoners (1819). The sails were bent; the rudder was on board: she was freighted and provisioned for a voyage to Port Jackson. She lay outside the cove, and was to drop down the river on the morrow. The four seamen were surprised, and shut down below: the darkness of the night and a strong wind favored their escape; passing the battery, unseen by the guard. At daybreak the pilot boat, with, a party of the 48th regiment, gave chase: a sloop, the property of Mr. Birch, with another detachment, followed. The boat found the seamen on Brune Island, but both vessels returned without any other success.

Arrived on the coast of Java, the robbers destroyed the vessel by fire. They then presented themselves to the authorities as shipwrecked mariners: their story was believed; but at length they were suspected of piracy, and imprisoned. Some of them confessed: all, except five, died at Batavia, to which place they were transmitted, and the survivors were conveyed to this colony by the St. Michael. The Young Lachlan not being on the high seas their offence was not piracy: they were therefore charged with stealing only. Their punishment was necessary, but who could forget their temptation?

One of the more common methods of elopement was to hide in the hold of a ship, often with the connivance of the sailors, until the vessel had cleared. Scarcely did a ship quit the coast during the first years of the colony, without discovering, mostly too soon for the culprits, their concealment. Sometimes, to stir them from their stowage, the vessel was fumigated. Ships calling at Van Diemen's Land often delivered up absconders, found after they had weighed anchor.

When secreted runaways were enabled to avoid detection until the ship had advanced far on her voyage, they were conveyed to England, and usually surrendered to the authorities. A soldier, on looking down the hatchway of the Dromedary, when returning to England (1820), saw a spectre walking the deck below, who requested a glass of water: the soldier alarmed, made known the vision; and after a search, a stranger was pulled out from among the planks with which the vessel was laden. Having said "we," repeatedly, in speaking of his condition, the presence of another was suspected, and further search discovered his companion.[183]

Morgan, a Welshman, who concealed himself, was more fortunate: having made a considerable sum by his labor, which he was desirous of carrying home unbroken, he concealed himself in the hold of a vessel, and after a few days appeared on deck. He was carried to London, and handed to the police, when he coolly thanked the captain for his passage! He had satisfied the law before he ventured on his voyage.[184]

The penalties on merchantmen conveying prisoners in a clandestine manner, were sufficiently severe. The most remarkable was the instance of the General Gates, an American vessel, which carried off ten prisoner mechanics, and one free man;—a double violation of the local laws. The Dromedary, store ship, was instantly sent in pursuit, and captured the vessel at New Zealand. An action for twelve thousand pounds was instituted by the Governor, and awarded by the court (1820). The judge, in his address, dwelt chiefly on the ingratitude of the defendant, who, "being permitted to partake in a valuable fishery, had abused the hospitality of the country, and had gone into low public-houses to entice away their best workmen!" This, indeed, was the chief grievance, and occasioned the rigour of the pursuit and capture—a stretch of power, it was deemed proper to compromise.

It was made lawful to arrest any persons suspected of being illegally at large, and to detain them until they "proved otherwise;" the onus of proof resting with the person apprehended: indemnity was provided for those who did anything in furtherance of the act. In defence of these powers it was alleged, that tenacity of the forms of British freedom was unsuited to a state of society, where of the adults more than one half were prisoners; and to distinguish them was impossible. The government maintained that free persons, arrested in bona fide error, were bound to regard their consequent sufferings as a tribute to the welfare of the country; but considering the ungentle spirit and ruthless instruments of convict government, it was necessary to check these prerogatives with a considerable responsibility.

The arrest of Mackay, a free man, at Swan River, indicated the danger of undefined powers, and the boundless arrogance of office. He was seized by the commander of a vessel and delivered to the Phoenix hulk, New South Wales, where, loaded with irons of unusual weight, his clothing branded, he was confined with prisoners destined for a penal settlement. Having been brought up by a writ from the judges, he was discharged, and retaken: again the court interfered, and the man—never known as a prisoner, against whom nothing but a general suspicion existed; who had been torn away from a distant colony, and exposed to the contemptuous treatment of those through whose hands he passed—owed his final liberation to the interference of an advocate, and the firmness of the judges. He obtained L200 damages, against which the government appealed, unsuccessfully, as excessive!

Absconding has been punished with various degrees of severity. By the first governors it was held a venial offence: before the law provided any specific penalty, it was usually flogging or a penal settlement. A capital respite was, however, sent to Port Macquarie: within three months he absconded, with several companions, and started to reach Timor: on his re-capture, he was executed without further trial (1823).[185]

A colonial law, of 1827, made it capital to escape from a penal settlement. It was intended to prevent a recurrence of those evils which resulted from the Macquarie Harbour elopements. That it intimidated a single person, to whom the chance of escape was presented, is extremely doubtful: that it rendered their efforts more desperate, and their course more sanguinary, is far more probable. No one will contend for the right of a prisoner to burst the bonds imposed by a sentence, yet will it never appear to justify the sacrifice of life. Such laws are useless: they outrage the common sentiments of mankind—more criminal than the offences they intend to prevent: they belong to what Lord Bacon stigmatised as "the rubrics of blood."

Their extreme diffidence of each other, has rendered the combined opposition of prisoners impossible. A guard of two or three soldiers is sufficient to intimidate hundreds, and to prevent an open effort to escape. The sentinels have, generally, displayed forbearance and consideration—the honorable characteristics of the British soldier.

Governor Arthur recommended a declaratory statute, to subdue any doubts respecting their right to shoot absconders, which seemed common among the military. That right had never been called in question; and in two instances only, during fourteen years, was it exercised in this country. The sense of responsibility is a healthy emotion: promptitude in taking the life of a runaway, however tolerated or authorised by law, could never be remembered by a soldier but as an odious execution.[186]

The piratical seizure of vessels lately, has not been common: escape is easy in other forms. The elopement of individuals has been attended with no great perils, since the establishment of the surrounding colonies. Craft of small burden have been sometimes taken, and at the close of the voyage dismissed. Prisoners have passed as merchandise, or boldly submitting to examination, have been lost in the crowd of emigrants. A contrivance was recently discovered, by the fatal consequences which followed it: a woman was enclosed by her husband in a case, and on arriving at Port Phillip was found dead.

These instances comprehend most of those forms of escape which are found in the colonial annals. They prove how powerful the passion for liberty, with which, when united to common intelligence, the threats of legal vengeance, or the vigilance of official guards, cannot cope. The same instinct, however, which induces men to break their bonds, restrains many more from transgression, and is a powerful auxiliary to the laws.

FOOTNOTES:

[Footnote 179: Ikey Solomon.]

[Footnote 180: Collins's New South Wales.]

[Footnote 181: Ibid.]

[Footnote 182: Clarke, executed at Hobart Town (1835), and who for five years wandered among the natives of New South Wales, asserted he had seen an isolated colony of Malays, or some other nation, the remnant of a shipwreck, which had existed for ages on the borders of a lake in the far interior to the north of Sydney. This he affirmed to the last moment of his life. If reliance can be placed upon his testimony, the village he described is doubtless the same, and is yet to be discovered. "Clarke addressed the people from the scaffold, acknowledging his crimes, and imploring all who heard him to avoid the dissipated course, which had led him to so wretched and ignominious an end." Upon this execution Dr. Ross adds—"It is a matter of consolation that we have a pastor, possessed of the very peculiar—we had almost said tact—but we should rather say endowments, with which Mr. Bedford is gifted, for leading to repentance, and affording all possible consolation to the miserable beings in their last extremity."—Courier, August, 1835.]

[Footnote 183: Cunningham's New South Wales.]

[Footnote 184: Gazette, 1824.]

[Footnote 185: James Hawkins, a celebrated pugilist and pickpocket, was not less remarkable for his escapes. He was transported to Hobart Town, where he found several persons who invited him to become a bushranger: he refused, and devoted all his efforts to escape. In this he succeeded: soon re-transported for life, again he stowed himself on board a vessel, and returned to Weyhill, and was again transported. On his way to the hulks he once more got off his irons, but was secured (1820). In gaol he was orderly and quiet, and refused all enterprises which might have compromised his life.]

[Footnote 186: Par. Papers.]



SECTION XV.

The principles of penal government recognised in the times of Governor Arthur, may be best ascertained from his despatches and orders, and from the writings of Dr. Ross, who, if not directly assisted by Arthur, was inspired by his opinions. Whether those principles were practically applied, will be known by reference to other testimony. The deviations must not, however, be ascribed exclusively, either to the Governor's connivance, or to the intrinsic defect of his system. He could not act alone, and the agents he employed were sometimes incapable, and sometimes corrupt. In his own writings, he repeatedly alludes to the gradual approximation to what he deemed perfection of detail: it cost him the labor of years.

The estimate he formed, philanthropists are slow to entertain: one-third of those who arrived in these colonies, he rated incorrigible; the rest, chiefly affected by the prospect of reward or the dread of punishment, and indifferent to abstract good. In tracing crimes to their causes he largely ascribes them to poverty, and the pressure of classes on each other. He enunciated a novel view of the mental character of criminals—that they were subjects of delirium; that they saw every object through a false medium; and that no treatment could be successful which did not restrain them by an enlightened rigour. This view, given in a code of rules[187] for the management of road parties, was attributed to the reasonings of a medical member of his government: the notion it embodies, he himself ascribed to long experience in the management of prisoners. His observation supplied the facts; his councillor, perhaps, constructed the system.

He believed that to remove the opportunities of crime, was the only successful method of general prevention; that to keep the convicts quiet, to withdraw all external excitement was essential to successful treatment of their mental malady. He compared the ordinary offender to a steed untrained: very impatient of the curb and rein. The discipline of the government, either by its own officers or the master, he likened to a breaking in. Under the first application of the bridle, more facile tempers became at once submissive and docile; or if not—if the man threw the master—then came the government with heavier burdens and more painful restraint: he was caught, and resistance was borne down. The milder servitude being unsuccessful, then came magisterial admonition; then the lash; then sequestration on the roads; then irons; then the penal settlement—with its stern aspect, its ponderous labor, and prompt torture; in which mercy wrought through terror and pain, and hope itself was attired in lighter chains.

Arthur alleged that his system was inductive: reared upon a foundation of facts, its classification was self-constituted: every step in the several gradations of a prisoner's punishment was the result of his own will; the first, by his crime against English society, the residue by his misconduct in servitude. It was in his power, when delivered to his master, to work out his own liberty, without knowing again the frown of a magistrate, or the darkness of a dungeon: it was in his choice to delay deliverance until death. Thus the distribution and separation vainly attempted by a direct management of government, was better done by the prisoners themselves: they determined their own merit by their actual position, where they awaited pardon and liberty, or gradual descent to despair.

Arthur watched with great diligence the operation of his system. The character of most masters was known: they were bound to make annual returns of the number and conduct of their men. Their recommendation was required to procure the prisoner's indulgence: his police character was drawn out in form—the parliamentary papers shew into what minute particulars those documents entered; even an admonition of the magistrates was noted, and made part of the case. Black and white books were kept, in which meritorious actions and the reverse were recorded. The term of preparatory servitude was four, six, or eight years—as the sentence was for seven, fourteen years, or life; then a ticket-of-leave allowed the prisoner to find his own employ, to enjoy his own earnings; subject to the surveillance of the police, and to a forfeiture for breach of its regulations.

Arthur described the police as the pivot of his system: it comprehended surveillance and detection. The establishment of district courts, in which a paid magistrate resided, was an essential element of its success. The masters had a correctional authority at hand: a few miles, often a few minutes, brought them within the police court, and the punishment ordered followed the offence by a very short interval. The police constables, mostly prisoners of the crown, were selected from each ship to assist the recognition of their fellow prisoners, and they were rewarded for every runaway they arrested. They often shortened their own sentence by procuring the conviction of others; often, too, they obtained considerable sums, and even instant liberty, by the discovery of an outlaw. They were acute, expert, and, we are told by Arthur, vigilant beyond all men he ever knew. They were objects of fear and detestation.

The strong will of the prisoners thus encountered opposition on every hand. They were hedged round with restrictions; they were at the mercy of the magistrate, and subject to the lash, for offences which language is not sufficiently copious to distinguish with nicety.[188] Their unsupported accusations recoiled on themselves. They were entitled to complain, but the evidence they could generally command, was heard with natural suspicion. So well did they understand the hopelessness of contest, that they rarely replied, where a defence sometimes aggravated their punishment.

The convict was subject to the caprice of all his master's household: he was liable every moment to be accused, and punished.[189] Unknown, without money, he had no protector or advocate: one magistrate could authorise fifty lashes; one hundred could be inflicted by the concurrence of a second. It was asserted by Arthur, that the statement of their liabilities produced an expression of dismay in the countenances of convicts newly arrived. The indefinite character of these offences; the boundless discretion of the magistrate; the influence of the master; the presumption always against the accused; the dreadful nature of several of the punishments—doubtless created in many the recklessness of defiance and despair. A prisoner's sentence might be extended one or three years; he might be doomed to a penal settlement and chains. Nor could he liberate himself from his servitude: he came back from the triangles or road party, and stood at his master's door.

The determined resistance of change, except for punishment; the indissoluble tie of men to masters—was one part of Arthur's plan. The knowledge that submission was the only chance of happiness, caused many to yield to their destiny without a struggle; and where masters were humane, the connection lasted, without murmuring or oppression, until the close; but with many more, it was a period of misery, mental and bodily—the fierce passions breaking into open war, and seeking nothing but revenge or freedom. The rolls of the muster-master exhibit curious instances of this long struggle: there are several now before the writer, in which punishments succeed each other with a frequency so terrible, that the mind is only relieved by the belief that sensibility is destroyed by incurable misery.

Governor Arthur addressed a despatch, on "secondary punishments," to Viscount Goderich, intended to answer the report of the select committee of 1832. He thought the witnesses were not conversant with the state of the prisoners—a fact not surprising, since even the effect of English penitentiaries was debated under their very walls. The gentle system of Governor Macquarie was a tradition among the criminal population of Great Britain; but in this country, colonised at a later date, and by settlers of a higher class, the advantages of the convict were small, and his control more complete. Arthur thus delineated the condition of the assigned servant: deprived of indulgence, living in the interior, employed in clearing and cultivating forest land, allowed no wages; idleness, even looks betraying an insurgent spirit, exposing him to the chain gang or the triangle; deprived of liberty, subject to the caprice of a family, and to the most summary laws. He was a slave, except that his master was not trusted with the lash, and his claim for service terminable. True, he was well fed, while many in England labored hard, and yet were hungry and poor; but nothing reconciled the prisoner to bondage: he compared his condition not with the British pauper, but theirs who, though working in the same field, were masters of their own labor. He asserted that the bravado of persons, who affected indifference when ordered for Macquarie Harbour, was fully answered by the murderers who, to enjoy a momentary escape, ventured their lives; by the desperate efforts of many to conceal themselves in vessels, deprived of food for days, and tortured until their limbs mortified; by the despair of many rioters who arrived in the Eliza, who, dejected and stupified by grief, soon drooped and died. He maintained that transportation, though not absolutely successful, was to be preferred, as frequently most dreaded, reformatory, and final.

He maintained, that the current reports respecting transportation deserved no credence, and were unsafe as foundations of public policy. Often, from the most selfish motives, the most delusive statements had been forwarded by prisoners. He instanced a woman from Liverpool, who arrived with her four children, allured by the representation of her husband, and sent out by the charity of his prosecutors; and who had informed her that, beside L60 per annum, he was lodged and fed for his labor. In this case, however, the man wrote falsely; but at that moment there were many who might have made the statement with truth.

In the despatches of Governor Arthur there is much acute observation and just inference. He had actually lessened abuses, until they became not very common or very flagrant: by collecting men in the employ of government under a more rigid system of superintendence, he had curtailed their indulgence, and made their condition more irksome. But it is well known to every colonist, that throughout his administration some prisoners were favored with greater liberty than others; that they accumulated property, and had at command whatever money could buy. He often, with a discretion both wise and humane, mitigated the severity of a sentence and alleviated the domestic desolation of a wife, by granting some indulgence to her husband. It is told to his credit as a man, although it does not add to the weight of his despatches.

The enunciation of principles was not common in the writings of Governor Arthur; he, however, states his view of the objects contemplated by punishment. He held that the severity of a penalty was to be measured by the operation of the crime on society,—or the views taken by legislators of its effect. Unhappily, this theory overlooks the fact, that penalties are usually for the protection of classes, rather than communities. The severe laws against poaching have never been vindicated on the principles of equity or national right: they are the laws of an aristocracy, for the protection of its pleasures. The unlimited power over life and liberty claimed by this doctrine, would excuse the Spartan method of anticipating crime. It is the old code of the opulent and powerful; but it is essentially unjust, fallacious, and therefore useless and wicked.[190] It is probable, however, that abstract opinions maintained but a slight influence on his actual policy, and that by his strong perception of the interest of society in the reform of the offender, he adopted many practical lessons of philanthropy.

Governor Arthur was directed by the Secretary of State to assign the prisoners employed on public works: such as were unfit for the service of settlers to form into gangs, and employ on stations distant from the towns. Lord Goderich had come to the conclusion that the service of government was rather courted than dreaded by the prisoners. This plan was skilfully resisted by Arthur: he admitted that constables and messengers were favorably situated. So great, however, were the hardships of those employed in public works, that his conscience was troubled, and only relieved by remembering that they were the worst of offenders; or, if better conducted, passed at length into the loan-gang—a condition as preferable to assignment, as was assignment to the service of the crown: thus balancing the advantages of their last against the severity of the first stage. He stated their assignment, so far from increasing the severity of punishment, their faults, and even crimes, would be covered by their masters, to preserve their labor; their earnings would place them beyond the condition of their class in Great Britain; and when their fortune should be known, they would never want for successors. But he appealed to a still more cogent argument. The expense of a convict mechanic to the crown, was one shilling per day; of a free artizan, seven to ten shillings: the difference would go to the workmen, to bribe their industry and gratify their vices. It was not, perhaps, known fully to Arthur, that at the moment he sealed his despatch, forty mechanics lodged in one ward, who earned not much less than L50 per week, by the leisure hours they enjoyed.[191] It was, however, true, that the inducement to pay large sums for occasional labor, arose from the difficulty of obtaining it: few mechanics were transported; so few, as to excite astonishment.[192]

But however exact and successful transportation, in Governor Arthur's opinion, a variety of causes contributed to excite in England a powerful prejudice against it, and to lead the ministers to interfere with some of its details of great practical consequence. The gradual amelioration of the criminal code—a restriction of capital punishments, demanded by the humanity of the British public—was allowed by the ruling classes with doubt and grudging. Some conspicuous cases confirmed their predilection in favor of the scaffold. What punishment, they asked, would transportation have proved to Fontleroy, who from the spoil of his extensive forgeries, might have reserved an ample fortune? It was reported, and not untruly, that many had carried to the penal colonies the profit of their crime; that the wife had been assigned to the nominal service of her husband; or, still more preposterous, the husband committed to the control of the wife—and were enabled at once to invest their capital in whatever form might promise success.

Several volumes issued in succession from the British press, full of highly colored sketches of colonial life; in which the advantages possessed by many emancipists, the splendour of their equipage, and the luxurious profligacy of their lives, were exhibited as the larger prizes of a fruitful lottery. Among these works, the most popular, that of Cunningham, professed to delineate the sentiments of the prisoners, from which it might be inferred that few conditions of human life offered so many chances of gaiety and prosperity.[193]

About the same period, Edward Gibbon Wakefield, of a talented family, and afterwards distinguished by his connection with colonisation, was imprisoned in Newgate for the abduction of Miss Turner. During three years' residence he professes to have devoted great attention to the subject of transportation. Few sessions passed but some prisoner, formerly transported, appeared under a second charge. In conversing upon their prospects, they described the country of their former exile in terms of high eulogy. It was the opinion of Wakefield that, as a punishment, it had no influence in preventing crime. The evidence of several settlers from New South Wales was of the same character; and M'Queen, a member of parliament, long resident in that country, stated that he had been often asked what offence would be sufficient to ensure transportation.[194] The letters received from the prisoners, recorded their good fortune, and were read by their former acquaintances. They were filled with exaggerations, dictated by vanity or affection; and seemed to convey an impression that, of their families, they only were fortunate.

A colonist is certainly not entitled to deny, that many strong cases of perversion occurred; but, except the superiority of diet, and the high value of labor common to new countries when they prosper at all, the descriptions given were mostly illusive and mistaken. The extreme misery and degradation endured by many, and to which all were liable, rendered the ordinary condition of prisoners one which could not have been desired, except by the most wretched of the people.

New South Wales was regarded, by the laughing portion of the British public, as a perpetual beggar's opera. One eminent writer said, that the people of these colonies attracted attention only from the curiosity they excited: mankind were amused to know what form would be assumed by a community, composed of men who narrowly escaped the executioner. By another they were compared to an old fashioned infant, which had all the vices and deformity of a corrupt constitution and precocious passions. The exhibition of a panorama of Sydney in the metropolis of England, attracted large crowds. It was hardly possible to exaggerate the charms of its scenery, when clothed in the radiant verdure of the spring; but the dwellings were drawn, not only in their just proportions, but with all the grace of the pencil—cabins looked like bowers. The poet, Campbell, struck with the glowing harmony, exclaimed, how delightful to the London thief—beneath the clear sky and amidst the magnificent forests of Australia,

"Where Sydney Cove its lucid bosom swells"—

to shake the hand he once encountered in the same pocket at Covent Garden theatre! It is thus, too often, that substantial interests are sacrificed to humour. No one, acquainted with the minds of prisoners, can imagine that the purest atmosphere, or most exhilarating prospect, would be half so attractive to a veteran robber, as the murky cellars of the "London Shades."

The writings of Archbishop Whately tended to the same result. Against the principles of transportation he entered an earnest protest, not only as defeating the primary objects of a penalty, but as constituting a community charged with the elements of future mischief. He reasoned in his closet, and formed his conclusions from a process of investigation which was not complete: he overlooked some facts which tended largely to neutralise the evil, and that suppress or defeat propensities which thrive in Europe. He made many senatorial converts, and those he did not convince, in reference to his main proposition, were anxious to obviate his objections.

To meet, however, the views which prevailed, and which were strongly recommended by the parliamentary committee of 1832, the government determined to increase the rigour of transportation. The effects of the French revolution, and the pressure of commercial distress, had produced a strong tendency to crime. In the agricultural districts of England riot and arson were prevalent: the utmost exertion of the laborer did not preserve his family from want. Depredations upon game, and other species of rural property, exasperated the legislative class. The hulks were crowded: it was proposed to establish a penitentiary at Dartmoor, long the site of a French prison, and employ the convicts in cutting granite for sale; but the discussions in parliament manifested the strong preference of the agricultural interests for a system of absolute banishment. It was observed by Peel, that the detention of prisoners exposed the government to endless annoyance, and before half their time was expired the solicitation of their friends often procured a remission.

Pending these enquiries, a rumour reached the colony that transportation was abolished. The papers broke out in the language of wailing and woe: the Courier, especially, gave utterance to the most passionate grief. The editor described the melancholy visage of the settlers, and the different expressions of vexation and disappointment which he heard around him. One declaiming against the perfidy of government, and another delineating the ruin involved in the fatal resolution. Some threatening to leave the country ruled by covenant breakers, who, in the spirit of reckless experiment, were not only demolishing the finest imaginable system of penal discipline, but sacrificing the fortunes of colonists, who had emigrated in the confidence that convicts would follow them in an uninterrupted stream.[195] These apprehensions were but temporary. The strong representations of Governor Arthur, and the extreme difficulty of change, secured a further trial under new conditions.

Lord Melbourne held a consultation with Mr. Stanley. He suggested that the increase of crime had arisen partly from ignorance of the actual consequences of transportation. He requested him to reflect upon this topic, and to determine whether it might not be proper to send transgressors through a more rigorous discipline on their landing, and to stop the comparative ease and comfort it was customary to enjoy.[196] Mr. Stanley undertook to contrive a scheme, which should terminate the indifference with which banishment was regarded. He had said that he would render the punishment of transportation more dreaded than death itself. At his suggestion Lord Melbourne addressed a letter to the judges, and requested them, when on their circuits, to explain the extent of torment which banishment included; to select such as they might deem it proper to separate to a more terrific form of punishment; and to declare, in a public manner, the degree of severity which would follow a particular sentence.

It was determined that the more hardened should be confined at Norfolk Island or Macquarie Harbour; and that no prisoner for life should be withdrawn from a penal settlement, until seven years of his sentence was passed, or until one-third of a shorter period was completed. Then drafted to the roads: after wearing chains a further five years, he might be assigned to a master, and commence his probation. The less guilty were to join the road party at once, and in seven years be liberated from their chains. Mr. Stanley forwarded sixteen persons in the Southwell, whom he directed should be kept in chains for the first seven years of their bondage. He thus established the system, distinguished as the "certain and severe" in the orders of government; and for several years described by the journals, as the "worse than death" system of Mr. Secretary Stanley.[197]

The object of Stanley was to invest transportation with novel terrors, and to give a more tragic aspect to the law. He did not, however, reflect, that he who has destroyed hope has also made the despairing worthless; that the victim will have recourse to violence or insensibility—that when he cannot rupture he will hug his bonds. He did not perceive that no Englishman would accept the service of a felon, who for twelve years had experienced the misery of chains—that it was not as prisoners, but as husbandmen, that the poachers and rioters of England were acceptable to the Australian farmer; who was reconciled to penal slavery, only when disguised under semi-patriarchal forms.

The change proposed by Stanley was greatly disliked by Arthur. It was the reverse of his system. Whatever influences were brought into action by agricultural service, would be lost in a gang. He foresaw the despondency, the oppression of the prisoners, and the gradual alienation of the colonists. Arthur referred Stanley's despatch to the executive council, with his own rejoinder. His system of twelve years bondage and chains was unanimously reprobated: the council concurred in the opinion of the Governor, that it would break up the gradations of punishment; and unless sustained by a large reinforcement of military, endanger the public safety and produce habits of outrage and revenge.[198] Whatever influence these representations possessed, the plan was abandoned of necessity. The chief justice of New South Wales advised the Governor that the law had not authorised the arbitrary addition of chains to a sentence of transportation—to increase the misery, not to add to the safe keeping of the prisoners. Such, on reference, was the opinion of the English legal authorities, and the men in irons were released.[199]

Whatever the motives of Lord Stanley, the transmission of such an order, without ascertaining the authority under which it was issued, was a serious official error. It is probable, that the persons injured had no means of appeal, and deserved no redress; but when it is remembered, that the law does not profess to determine the moral enormity of an offence by the extent of punishment, to aggravate a penalty which the legislators deemed equal to the crime—avowedly to make it more terrible than death itself—was a stretch of official power, which can scarcely be explained.

St. Paul denounced the judge who smote contrary to the law. Mr. Stanley's encroachment on the functions of legislation was only more defensible because less corrupt. To repress colonial disorders, the local government had, indeed, grafted the penalties he prescribed on the colonial statute book; but the despotic interference of a secretary of state was specially objectionable. Persons sentenced to transportation for political or agrarian crimes, were not unlikely to provoke the personal hatred of ministers, and therefore to suffer a vengeance beyond the intention of the judges, or the spirit of the laws.

To render corruption more difficult, the power of the governors was limited by statute. They had granted tickets-of-leave for the discovery of outlaws, the detection of serious crimes, and any service of great public utility. They had been often swayed by feelings of humanity in hastening the liberation of men, whose families required their care; but an Act "for abolishing the punishment of death in certain cases,"[200] not only fixed the time when prisoners should be capable of tickets-of-leave, but abstracted the chief advantages a ticket conferred. They were excluded from the protection of civil laws, and thus thrown on the mercy of any who might employ them. These clauses were introduced by Lord Wynford (Sergeant Best), and were intended to equalise the punishment of offenders, and to prevent an early enjoyment of plunder. This restriction was, however, practically unjust. The grant of a ticket-of-leave was to enable a man to procure a livelihood: to deprive him of legal resource, was to invite the swindler and the cheat to make his earnings and acquisitions their prey. The local courts had hitherto resisted the injustice by evasion: a record of conviction being required to stay a civil action; although in the criminal courts it was sufficient to prove that the person accused had been dealt with as a transported offender.

Lord Wynford's Act made no such distinction. Its provision, probably the result of inadvertence, was so palpably a contradiction, that it was never acted upon in Van Diemen's Land, and was earnestly deprecated by all classes. To grant a prisoner liberty to seek subsistence, and yet suffer any fraudulent person to deprive him of his just wages, could arise only from that confusion of ideas, too common in legislation on the subject.

FOOTNOTES:

[Footnote 187: "It can scarcely be doubted, that the main body of convicts are under mental delirium—they see and appreciate every thing through a false medium; and as, from long experience and close observation, the Lieutenant-Governor is confident that a firm and determined, but mild and consistent supervision, is the very best to be followed, in order to remove the infirmity under which they labor, it is the treatment he enjoins shall be uniformly observed!"—Regulations issued to the Roads' Department.]

[Footnote 188: "Absconding, insubordination, drunkenness, indecent conduct, neglect or wilful mismanagement of work, neglect of duty, indecent or abusive language, swearing, insolence, or other disorderly conduct."]

[Footnote 189: Arthur.]

[Footnote 190: Arthur's despatch to Lord Goderich.]

[Footnote 191: It was not uncommon for four in their number to consume one gallon of rum at a sitting. Incredible as this may appear, it stands upon indubitable testimony; and one of the witnesses, had he been classical, might have said—Pars magna fui.]

[Footnote 192: Arthur's despatch to Lord Howick, 1832.]

[Footnote 193: "Several went out with me on these very terms: and among them one merry youth of two-and-twenty, whose father had been transported when he was a child. His elder brother followed the fortunes of his father by special invitation. On our arrival the elder brother came alongside, and introduced the younger brother and father (who, of course, were strangers to each other). 'When may we expect Jem?' was the question put shortly after the preliminary congratulations."—Two Years, &c., vol. ii. p. 259.

"I shall conclude this subject with a short anecdote, which fully illustrates how little a convict cares for transportation, or rather how much he prefers it. A gentleman, who came home passenger in the same vessel with myself, brought with him a convict as a domestic. I asked him what were his future plans? He replied, that he meant to go and see his mother, if she was alive; but if she was dead, he, to use his own words, would 'frisk a crib,' (Anglice—rob a shop) or do something to lag him for seven years again, as he was perfectly aware that he could not work hard enough to get his living in England."—Widowson's present state of V. D. Land, 1829. p. 65.

"In order to show the opinions entertained by some of the convicts, as regards the colony, I will give an extract from one of the sundry letters which I have read, written by them to their friends in England, using the writer's own language and punctuation, but altering the spelling. He requests that his wife will come out, and bring their children with her, and then proceeds as follows: 'I am perfectly well satisfied with my situation thanks be to God that has placed me under those that does not despise a prisoner. No, my love, I am (not?) treated as a prisoner but as a free man, there is no one to say a wrong word to me. I have good usage, plenty of good meat, and clothes with easy work. I have 362 sheep to mind, either of our lads could do it with ease. The best of men was shepherds. Jacob served for his wife, yea and for a wife did he keep sheep and so will I, and my love we shall be more happy here than ever we should be at home if happiness is to be found on the earth. Don't fail to come out I never thought this country what I have found it. I did expect to be in servile bondage and to be badly used but I am better off this day than half the people in England, and I would not go back to England if any one would pay my passage. England has the name of a free country and this is a bond country, but shame my friends and countrymen where is your boasted freedom. Look round you, on every side there is distress, rags, want, and all are in one sorrowful state of want. Happiness and prosperity has long taken their flight from Albion's once happy isle.' He then alludes to the low price of provisions, and adds—'Except you live in a town you have no rent to pay, for each builds his own house, no tithes, no poor-rates, and no taxes of any kind. And this is bondage is it?' There are some other amusing remarks in this original composition, but the above will suffice to show that convicts lead not always the unhappy life they are supposed to do, unless through their own bad conduct. The writer of the above letter bears such an excellent character that his master has sent to England for his wife and family, with the intention of trying to be of some use to them."—Breton's New South Wales, p. 281.]

[Footnote 194: Potter M'Queen's evidence before the Commons, 1831.]

[Footnote 195: Courier, 1831.]

[Footnote 196: May 20th, 1833.]

[Footnote 197: Stanley's despatch, August, 1833.]

[Footnote 198: February 3rd, 1834.]

[Footnote 199: Par. Pap.: Forbes's evidence.]

[Footnote 200: 2 & 3 9th Will. iv. cap. 42.]



SECTION XVI.

The treatment and disposal of mechanics, craftsmen, and the educated, or "specials," disturbed the equal operation of the laws.

The artizan, when not adapted for public works, was placed in the loan gang, and lent from time to time, chiefly to the officers of government, or to such settlers as were deemed worthy official patronage. They were not authorised to claim wages, but their employers prompted their industry by its usual recompense. Their value as workmen often secured them an appearance which surpassed the common means of English artificers, or they expended their earnings during paroxysms of intemperance. The power to grant the assistance of skilled workmen, and the custom of the officers to borrow them for their own service, excited unceasing murmurs. Master tradesmen complained, that their callings were followed by captains and lieutenants, whose journeymen were the prisoners of the crown, and who, beside the emoluments of office, engrossed the profits of smiths and carpenters—of tailors and shoemakers. Those settlers, excluded from participation in the loan labor, denounced the venal partiality of its distribution. Long lists were published of workmen allotted to the relatives and confidants of the Governor, to display his unwearied nepotism.

The educated prisoners occasioned still greater complaint. At an early period, many of the higher functionaries were utterly ignorant of accounts, and were glad to employ the abilities which transportation placed at their disposal. Curious anecdotes are told of the profits derived by this class of scribes, by the distribution of royal clemency: thus the indents were altered by a clerk, who charged L10 for reducing considerably the duration of a sentence.[201] At a later date, a prisoner offered by letter L15 for his conditional pardon. The bearer gave information of its contents to another convict in office, who offered to obtain the "royal mercy" for L10, and he did so.[202] The reliance frequently placed in the fidelity of their penmanship, sometimes modified the details of punishment.