From the report of a board appointed by Arthur, it appeared that sixty-six were employed in the various departments. The evidence is valuable, from the statements it contains respecting the condition and influence of this class. They were represented to be quick, intelligent men, and were preferred because more easily commanded—if not controlled. Their office hours usually terminating at 4 o'clock, they obtained considerable sums as book-keepers. All correspondence, except despatches to the British government, and communications with the judges, passed under their eye. They were employed in taking depositions, and received bribes for expediting indulgences. Their acquaintance with the probable demands of the commissariat, was a source of emolument: they sold information to the shopkeepers, and thus enhanced the price. Arthur professed to deplore the necessity of their employment; a practice which long survived his government.

It was, indeed, a mournful sight, to behold men of better hopes sink into habits of intemperance; and for a long series of years pass through a succession of punishments, often for trifling infractions of the penal code—to see them display the utmost facility in penmanship, and to hear at every movement the rattle of chains. Yet these prodigal sons of many a desolated house, were not so much objects of compassion, as those whose peace they had blighted with an incurable affliction. No one could imagine how many families, distinguished for rank, benevolence, and piety—known at home as the fortunate and happy—had in these regions unhappy relations, whose fate must have cast dark shadows on their own. Many, however, protected their kindred from public dishonor by the change of their names: they not unfrequently were overtaken by crime and punishment, having long left the dwellings of their fathers, whose reputation they spared by artifice and silence.

The wives of prisoners, who once moved in the higher circles, often exhibited an example of complicated virtue. What they took from the misery of their husbands they added to their own; and even by their participation rendered more intense the mental anguish they came to remove. Delicately reared, familiar with the comforts of affluence, they resolutely abandoned all. No entreaty, maternal tears, or offers of support, could change the purpose of conscience and affection. They gathered up the fragments of their shivered fortunes to venture on a lonely voyage, and encounter a rough courtesy—generous, when not brutal; to solicit commiseration from the harsh delegates of a nation's vengeance, or the hucksters of its mercy. Sad lot! fraught with anguish, with terror, and trembling: every moment passed in fear of some new fetter—of some fresh official caprice, or sudden separation! Such scenes of mental and physical martyrdom have been often known to professional men, who enter the interior of life, and watch the operations of secret sorrow. The mould of Tasmania covers many a true-hearted woman, whose constancy and self devotion are registered on high; and which, in another sphere, might command the admiration of the world!

The colonial government interdicted the connection of prisoners with the press, which, however, was not prevented or punished, when loyal to the authorities. Their writings were commonly laudatory of the officials, even when most offensive to the colonists. They were not always the most trucculent and unprincipled; although the censorship of public morals and political measures was unsuited to their civil condition.

Among those thus employed was Savary, once an opulent sugar baker at Bristol, who in 1824 was convicted of forgery, and his life spared by an exercise of mercy then novel. Happier far, had he died! He wrote for the press—on the right side. On the accusation of a colonist, his ticket-of-leave was withdrawn; but he was spared the usual penalty of banishment by the kindness of his patrons, who granted him another form of liberty. This man was followed by his wife; but on her arrival, her affection was seduced, or exhausted, and she returned to England. Savary attempted suicide, recovered, and again fell into crime: he was tried by Judge Montague, convicted of a colonial forgery, and afterwards died at Port Arthur—an awful instance of the effects of transgression; and of the proneness of men to repeat a crime they have once committed.[203]

It having been resolved to abandon Macquarie Harbour (1832), the government fixed on Port Arthur, on the east coast, as the site of a settlement where the rigour of discipline might be preserved. This district is situated on a peninsula within a peninsula, and contains about 100,000 acres of woodland—barren, but not repulsive. A neck of 450 yards broad, divides Tasman's and Forrestier's Peninsulas: there lamps are set on posts, to which fierce dogs are chained; and to close the passage by the shore, when opened by the recession of the tide, others are kennelled on a floating platform. Sentinels, guard-boats, and telegraphs, are the precautions employed to prevent escape; which few have attempted, and fewer still accomplished.

The first commandant was Surgeon John Russell; an office subsequently confided to Captain O'Hara Booth, a gentleman whose administration has been the subject of great eulogy. A minute code of government regulations defined the duties of all on the station. Hither all convicted of colonial crimes, or of more serious misconduct as assigned servants or in the road gangs, or who were separated to more than ordinary punishment by the secretary of state, or of the educated class, were sent. The degrees of punishment were, however, varied; and the more severe was exhausting and dangerous. The carrying gang, with a massive balk on the shoulders, resembled a huge centipede. The laborers, sometimes thirty together, groaning beneath a weight of many tons, obtained no respite from toil. The slippery and inclining ground exposed them to terrific perils: when they complained of inability to bear their burden, they were flogged, taken back, and compelled, by supernatural effort, to raise the load they had laid down. The numerous orders were enforced without momentary relaxation, and the scourge was the chief agent of control.

When the settlement was new, the men suffered from scurvy; they were not, subsequently, unhealthy: diseases of the heart formed a large proportion of their maladies. Many instances of great hardship have been authenticated; and several committed murder to be removed from misery by a public execution. The possession of a piece of tobacco was penal, and for this offence alone multitudes were flogged; but its use was only limited by the supply: many men would have risked the rack, rather than rejected this valued indulgence. A wesleyan missionary was accustomed to reward his servant with the luxury, until he found that being distributed, others were involved in punishment. Visitors usually carried tobacco, which they dropped on the tramway by which they were conveyed; and even when the prohibitions were most severely enforced, money would procure a supply.

The effect of Capt. Booth's administration was soon visible: the stoutest hearted gave way. Inexorably just, according to the system he represented, the accused might plead, but were never pardoned. The gentlemen convicts, clad in a prison dress, were employed in lighter labor and worked together; but were transferred to more penal gangs, for the least disorder. It is said that the terrors of Port Arthur were preventive of crime; that its rigour controlled and reformed, for the time, such as were sent there; but, both by those who vindicated, and those who condemned its severity, it is admitted that relapses were usual;[204] that it operated on the will by mechanical force, but debased the soul.

However heavy the hand of authority, it was not capricious. The overseers and constables were less brutal than at the road parties and previous penal stations. Compared with every other settlement of its class, Port Arthur, during Booth's management, was more humane because more equal and impartial. Constantly exhibited as a place of profound misery, it carried the vengeance of the law to the utmost limits of human endurance.

It would be improper to withhold the common testimony in favor of this officer, of whom the writer never heard a prisoner speak with reproach: he was detested only as the personification of unimpassioned severity. He gave all the weight of his example to promote the success of the missionary, and paid him respect in the sight of the prisoners. Time softens all things, and Captain Booth, on calm reflection, deserves to be remembered with respect, as an officer who took no pleasure in the sufferings he inflicted—who was as prompt to reward as to punish. A further detail is needless, and would add no new illustration of transportation.

The interest which Arthur took in the settlement which bears his name, may be inferred from his frequent visits, and the large promises which he offered in reference to its future prosperity. He thought seven thousand men might be sent there, to be detained six months on an average; and that the large consumption and expenditure would be repaid by the produce of their labor. From an early date, Port Arthur possessed the advantage of schools and ministerial attendance. A church, of handsome exterior, was erected.[205]

As the settlement improved, a tramway formed of hard wood, crossed a space of five miles, and thus connected the opposite bays. On this road, travellers were conveyed by human labor, a large proportion of the distance being, however, overcome by spontaneous locomotion.

The denizens of Port Arthur would furnish a curious collection of biography: the muster would be a living calendar. Among the more celebrated were, Ikey Solomon, the receiver, whom they made constable: the chartists—men, in whose fate millions have publicly expressed an interest. There was Collins, the mad sailor, who threw a stone at the last king; May, who murdered the Italian boy; and Cohen, a jew, who resigned himself to despair, and refusing sustenance, died: they now rest in the "Isle de Mort."

The establishment at Point Puer was intended to reclaim and control, rather than to punish, the unfortunate youth submitted to its discipline. Until a very late period, boys had been transmitted to the colonies in company with the men, and were treated without much discrimination: some at an age to understand crime only as a trick, or to deserve aught except pity and correction. Thus at Preston, a child, only seven years old, was transported for life. A boy, three years older, perhaps the same, called by his fellow prisoners, "King John," after three years imprisonment, arrived in this colony (1829) with sixty other lads; of whom, on their embarkation, not one in twenty could repeat the Lord's prayer.[206] It was stated by a Lord Mayor of London, that nothing could be kinder than to transport juvenile offenders to a country where their labor would be useful and their prosperity sure. It may be presumed, that in this spirit a girl and two boys were committed to take their trial for stealing some wood, valued at twopence, the property of the crown.[207] These acts of severity forcibly contrast with the happier fortunes of other classes. It is said of George III, that he arrested two Eton boys in the act of poaching: they took him for a keeper, and offered their pocket-money as a bribe. He threatened to inform their master; but next day sent them a present, requesting them to cease their depredations. They were peers when the monarch told the story, and he observed that they were most rigorous preservers of their game—"according to the old proverb, set a thief to catch a thief," said the king! A better authenticated anecdote was given by Lord Eldon, of his juvenile adventures; such as a rigorous magistrate might have turned to a very different account.[208] By what construction of equity the poor man's son, or the orphan, could deserve to be branded with an indelible stigma for no heavier crimes, it would be in vain to ask. Infractions of the law cannot be tolerated in any age, yet its administration has been often both partial and unmerciful.

Most of these young convicts had been first imprisoned a short period, and then turned on the world to obtain, by greater crimes, more lasting protection; or sometimes accused, but not convicted, they waited amidst moral pestilence the long delays of justice. A lad, fourteen years of age, was charged with stealing a hat: twelve months after, he was acquitted. What wonder that, dismissed a hardened criminal, he returned to be transported for life.[209] Such was the education of many, who might fairly adopt the language of Howard to the German emperor—"It is not in the power of your majesty to make reparation for the injury they have suffered." No subsequent care could atone for the long slumber of protective justice.

It is refreshing to find that kindness and coercion were united in the discipline of Point Puer: an oasis in the desert of penal government—unless viewed from the woolsack. Captain Booth was prompt in subduing rebellion and enforcing industry: the meals were regular, and habits of devotion and cleanliness were promoted. But when the boys were submissive and diligent, they were not forbidden to be happy: they were made tailors, shoemakers, carpenters, boat-builders, masons, and gardeners. Some became acceptable apprentices, were lost sight of as prisoners, and are now known only as respectable men. Such boys, however, were protected from contamination, from the moment of conviction. Those who mingled indiscriminately with the prisoners, surpassed them in mischief and wickedness. When landed they were placed in the barracks: some, not more than ten years old, blended the trickery of boyhood with the villainy of age, and had scarcely arrived a week, before they were tied up to the triangles and punished with the cat. Lord John Russell, yielding to humane suggestions, collected a cargo of juveniles from the various prisons, and appointed a surgeon-superintendent, who never lost sight of their moral welfare. The care was not unavailing: Captain Booth reported that a large proportion passed through his hands without incurring even magisterial correction, notwithstanding the most trivial disorders were punished. The reformation of adults may admit of scepticism, and be tolerated as a topic of ridicule: but children, taught to steal earlier than to speak; who received the first lessons of crime on the lap of a mother; who never heard of God, but from the lips of blasphemers—or of right, but as the fair distribution of spoil, were surely entitled to compassion. The sympathies of man cast penal science to the winds, and scorn to preserve the inexorable temper of legal vengeance, to save the rich from peculation, by the moral immolation of infant robbers. They are orphans cast upon a nation's mercy; for though nature gave them the claims of children, she did not secure them an interest in a parent's heart.

FOOTNOTES:

[Footnote 201: Collins.]

[Footnote 202: Mudie's Felonry of New South Wales, p. 27.]

[Footnote 203: Savary wrote a novel, called Quintus Servington, 3 vols. It professes to detail his life: it sets out with a gypsy prophecy, delivered at his birth, which gave warning to his father that his son would be in danger between his thirtieth and fortieth year; but, passing that period, safely reach a happy old age!]

[Footnote 204: Arthur's evidence: Murdoch's ditto.]

[Footnote 205: While its foundation was digging, a murder was committed in the trench, and when its roof was covered, the plumber moulded dollars from lead, the property of government.]

[Footnote 206: This child, when asked his age by the superintendent, answered, "I was so young when I was born, that I cannot tell."]

[Footnote 207: Spectator, Sept. 21, 1833.]

[Footnote 208: "I do not know how it was, but we always considered robbing an orchard an honorable exploit. I remember once being carried before a magistrate: there were three of us. The magistrate acted upon what, I think, was rather curious law: he fined our fathers each 30s. for our offence. We were very good boys, indeed. I believe, we never did anything worse than a robbery."—Lord Eldon; Life, by Horace Twiss.]

[Footnote 209: Prison Discipline Society's Report, 1827.]



SECTION XVII.

The views of the ministers respecting the severity of punishment, rendered the discipline more stern.[210] The subordinate agents of government received instructions to enforce an amount of labor from the prisoners employed upon the roads, which was measured without much regard to their previous habits, dexterity, or strength.

Nottman, to whose management several gangs were committed, was a person of unflinching temper—rigorous and fearless. Once, when assailed upon the road, he clenched the robber by the throat, until he expired. He found a pleasure in hastening the operations entrusted to his oversight, and neglect of work was an offence which was never pardoned. It did not unfrequently happen, that a tailor, or other sedentary craftsman, was sentenced to the roads; but in breaking stones, there is an art, and while the dexterous could make every blow effective, the utmost toil of the novice left a deficiency in the task. To admit excuse, would have disturbed the calculations of labor, and the defaulter was delivered at once to the flogger; often, too, the implements, injured by use, rendered the fracture of stones more difficult: the issue of rations weekly, tempted the improvident to consume their food, so that the last days of the week were spent in exhaustion and hunger.[211] The slightest symptoms of insubordination were promptly visited; and in one party, 3,300 lashes were administered in one morning.

The overseers copied the rigour of their superiors, without their discrimination or sense of justice. It was not uncommon, though forbidden, for these men to strike down the prisoners who displeased them. Such violations of rule were punished when discovered: but men of weak minds bore in silence miseries they were afraid to resent. The government compelled to accept such agents as transportation yielded, employed persons of the vilest character, of which the following may be taken as a specimen: W. A——, a prisoner for life, forfeited his ticket-of-leave for keeping a house of ill-fame, and harbouring assigned servants. He applied for its restoration: this was opposed by the police magistrate, who recommended that he should serve as an overseer for three months on probation, as he had been notorious for keeping a bad house![212] The incongruity of this employment with his character must have suggested itself to all except those familiar with similar appointments. Such as could command a bribe ameliorated their condition, while those who possessed no such resources, were selected to illustrate the vigilance and fidelity of the overseers. It requires no extensive acquaintance with mankind to perceive, that in such hands public justice was desecrated, and the weight of a sentence determined by causes which had no relation to the character or the crime.

The orders of Stanley were constantly criticised by the press, and from various motives were disliked by every section of the public. All who had been prisoners, naturally sympathised with the sufferers: those who were employers, reprobated a form of punishment which, without diminishing the application of the lash, abstracted from their farms a proportion of labour. A spirit of resistance was extensively propagated, and during the year following many sad instances occurred, in which an insurgent spirit was fatal. A young man, when employed on the public works, struck at Mr. Franks with his hammer: fortunately, the blow fell lightly; but he was tried and executed. A considerable number threw down their tools and retired to the bush, whither they were pursued and retaken. One instance made a powerful impression on the public mind: a convict, named Greenwood, took from a fellow prisoner his shovel, which was better than his own. He was sent at once by the superintendent to the cells in charge of a fellow workman. In the spirit of reckless daring, he told his conductor that he could run away if he thought proper; the other replied—"no doubt of it." Thus, by a sudden impulse, in bravado or in terror of the lash, he sprang across the boundary, and threw up his hat as a signal of his flight. He appeared on the race ground, and was there discovered by the constables committing some act of petty robbery: he was pursued, drew a knife from his pocket, and wounded his captor. Being taken before a magistrate, both his absconding and his resistance were stated—the last a capital offence. To punish this man was, of course, the duty of those whose authority he had defied. As an absconder, he was sentenced to one hundred lashes, and told—in words the import of which has not been disputed, although the taunting tone attributed to the justice may possibly admit a question—that after his flogging he would be hanged! Ten days after, he was condemned to death: his execution was delayed a few more by a respite; but he went to the scaffold with his wounds unhealed! The treatment of this man called forth, and justified the strongest expressions of public indignation. True, it was within the letter of the law: either of the penalties inflicted, might have been vindicated or excused both by necessity and custom; but to torture a fellow creature shortly to make his defence against a charge affecting his life, and to send him to his last account whilst suffering the pangs of laceration, was inexpressibly revolting. Those who desired to disgrace the government, embraced the opportunity—perhaps with the eagerness of faction: pictures were exhibited of the unfortunate man, illustrative of his melancholy fate. Surely no argument can be found, in the calmest exercise of the understanding to extenuate an administration of the law, which distorted justice into cruelty.

Under circumstances far more consonant with reason, but scarcely less affecting when considered at large, was the execution of Samuel, a black man: he was transported for theft, from the Cape of Good Hope, and was remarkable for the quiet easiness of his disposition. For some violation of penal discipline he was ordered to be flogged: when approaching the triangle, he attacked one of the officers in attendance, who was slightly wounded; for this he forfeited his life—justly, had England been just; but what was his story? With his mother and sister he was stolen from Mozambique, and thus became a slave: he robbed his masters, and thus became a criminal. His fate turns justice into mockery, and might make the Briton blush for his country. His execution, however, was not without utility: Dr. Ross, who for years had attended such scenes, then adopted the conviction that no resources of language, or varieties of incident, could invest them with interest, and he resolved to attend them no more. Here, too, the reader will be willing to abandon them. Since, they have often been repeated; but happily society has adopted from reflection, what that gentle-hearted man, so powerful is habit, required years to learn—that the executioner is an officer far less useful, and the agent of a spirit far less just, than past ages have deemed.[213]

At parting, it is proper to pay the tribute of history to the memory of Dogherty, the hangman—a functionary who surpassed greatly the common character of his order; and who, while he lived, contrived to evade the detestation of his calling. There was no amateur gaiety in his manner—no harshness in his speech. He accepted office when a prisoner, to enjoy the quiet quarters of the gaol and liberation from ordinary toil: he intended to resign it with his bondage, but the number of candidates for his place, it is said, reconciled his mind to its retention. Not in the spirit of menace, but defensive retort, he would promise those by whom he was jeered, his most delicate attentions in their last emergency. He was always willing to part with his provisions: to divide his sugar and tea with the necessitous, and to perform errands of kindness in their favor. No one could wield the lash with more mercy; and it is said that once, an offender, sentenced to a public flogging, received one stroke at starting, and the cart being driven by an associate, a second at stopping. His predecessor was a different character; and overcome with the misery of his condition, he committed murder, that he might escape from life! Dogherty passed through the town without fear of vengeance; although once, certain soldiers, his countrymen, injured him, and left scars which he carried to the grave. But what character is perfect? He was addicted to intemperance, and commonly spent the day succeeding an execution in drunkenness. The incredulous are assured, that this is not the language of fiction, but the character commonly ascribed in sober earnest to this unfortunate being.

The day will come, when the sacrifice of life, made with more hesitation, will cease to be a public spectacle; when, if it is deemed requisite to cut off from the earth the shedder of blood, the dreadful doom will cease to amuse the brutal, or to offer a momentary excitement to the unreflecting. Women will be no longer seen raising their children above the crowd, to enjoy the most humiliating sight that can meet the eyes of mortals. Let no one imagine, that men are effectually intimidated by attending public executions: as the fatal moment draws nigh, crowds are indeed seen rushing towards the spot; but they wear the lineaments of insensibility, intemperance, or habitual crime. It is not the guilt of the sufferer which extinguishes their pity: they would run to witness the murder of a saint. The utility of executions is left to the judgment of statesmen, but it cannot be wrong to detest them.

Thus far having delineated the broad features of the system known as the "certain and severe," it will be proper to explain the changes which it ultimately produced in the practical working of transportation. Simultaneously, a new theory of colonisation was promulgated. Land ceased to be granted: the funds accumulated by its sale were available for emigration,—and thus to decrease the rate of wages, and to enable the government to dispense with the services of convicts as writers, overseers, and mechanics. To assist this project, it had been determined to levy a tax on prison labor; but the protest of the colonists and the remonstrance of Arthur, led to its abandonment. The despatch which explained his views, dwelt on the inconvenience, vexation, and loss, to which the settlers were subject. He informed the Secretary of State, that his lordship could not understand, except by experience, how much and how often the colonists were fretted by the misconduct of their servants, and despoiled by their peculation: however perfect the discipline established; although the roads were safe, and violence infrequent; though many prisoners were reformed and useful, still the existing social state was charged with every form of domestic annoyance and mortification. Trivial thefts were constantly passed over, because punishment was attended with greater loss. Thus, two hundred men arrive—they are distributed: their masters pay down money for their clothing; but before they reach their home, their clothes are destroyed or sold—or, perhaps, they are committed for felony to gaol. At first the settler repines, but his difficulties are inevitable: he is silent, because his trials have long lost the interest of novelty, and all around him are fellow-sufferers. The settlers who submitted to the impertinence and unwillingness of pickpockets, he thought certainly entitled to the benefit of their services without any other tax than might be levied by their fingers. This earnest protest was not without success; but it became, afterwards, a potent weapon in the hands of those who pronounced transportation a failure.[214]

The arrival of many hundreds, whose previous habits were far from respectable, increased the difficulties of penal government. The former marked division of classes was confounded: the emigrant laborer was the companion of the prisoner of the crown; but, in law, the equal of the prisoner's master. This addition was greatly deplored, both by the Governor and the press. It was perceived that great organic changes must follow the influx of free men, whose interest would run in a direction entirely opposite to penal institutions. Thus, almost instantly, a change became perceptible: the high value of prison labor was reduced, and employers hostile to the government could afford to defy its power. The emigrant laborers formed an intermediate class, which detested the espionage and insolence of a convict constabulary, and was disposed to resent the haughty spirit which slavery has ever generated in the ruling classes.

In 1835, the feeling in opposition to transportation was strongly expressed by certain portions of the people. A meeting was called, under the auspices of Messrs. Kemp, Gellibrand, Hackett, Thomas Horne, and others, which complained that the hope entertained, that the colony might ultimately be freed from its penal character, had been disappointed, and that the colonists "were made materials for the punishment of British offenders;" were considered only as the "occupants of a large prison;"—phrases of Arthur—and that "this penal character had recently increased; thus violating the feelings of the adult, and barbarising the habits and demoralising the principles of the rising generation." This meeting, at which the sheriff presided, called by public advertisement, was perhaps de jure a meeting of the colony; but the sheriff refused to attach his signature, lest the petition should be taken as that of the settlers in general, whose opinions it certainly did not then represent.

Arthur, in his despatch, endeavoured to neutralise its possible influence, at the same time intimating that he had "long foreseen that abolition would become a popular question." He, however, maintained that the emigrant, knowing the object of the settlement, had no right to complain; and that for the quarter of a century succeeding it would become increasingly adapted for the enforcement of penal discipline. He advised the ministers to stop the current of emigration, which, if continued, would render "convicts less valuable to the settlers," or to confine it to female emigrants, or such artificers as carpenters and masons.[215] Two hundred and sixty persons, in the Launceston district, repudiated the following passage of the petition:—"Your Majesty's humble petitioners most respectfully pray your Majesty to be pleased in your paternal goodness to remove from the colony of Van Diemen's Land the degradation and unspeakable evils to which it is subject on account of its penal character."

It would be amusing to contrast the sentiments expressed by various persons during the first formal agitation of this subject, with those that have latterly prevailed. It must, however, be remembered, that there were two political parties. Some opposed transportation as the last indignity which could be offered to Arthur, its zealous patron; while others desired its continuance only because no other labor was at hand. The paupers sent from the parishes did not create a strong feeling of preference for free servants, many of whom were profligate, intemperate, and otherwise worthless. Nor is it honest to conceal the disastrous influence of power on the moral perceptions of the mind. It is justly observed by Franklin, the philosopher, that "it is one of the worst features of human nature, yet one with which it is too generally impressed—the love of power; whereby all men prefer to be served by slaves, over whom they have absolute dominion, than by free men, who have rights as well as their masters." These motives, mingled and corroborated by the practice of many years, contributed to strengthen the views of the local government, and to reduce to a small minority the advocates of abolition. Yet such are the singular conjunctions of affairs: though derided and rejected on the spot, they were afterwards quoted with respect by a committee of British legislators, when the subject of transportation again engaged the attention of parliament.

FOOTNOTES:

[Footnote 210:

"Colonial Secretary's Office, 14th February, 1833.

"His Majesty's government having been pleased to enjoin the strictest fulfilment of the law upon all convicts sent to this colony, and that their punishment should be certain and severe, the Lieutenant-Governor directs the renewed attention of all public officers connected with the convict department, to the instructions which have from time to time been issued on the subject.

"His Excellency is desirous especially to impress upon them the necessity of invariably exacting the due portion of daily labor from each convict, and of not permitting any remission or indulgence but such as have been previously and especially authorised.

"The orders prohibiting convicts employed on the roads and in the public works (including clerks, messengers, and persons of that description) from laboring, under any pretence, for private individuals, or to the advantage of those in charge of them, are at all times to be most perseveringly and carefully enforced, and to avoid any misconception in a matter deemed so important by his Majesty's government, the instructions are to be understood most peremptorily to forbid every species of indulgence beyond the food, clothing, bedding, and lodging authorised by regulations to every convict.

"A proportionate degree of restraint and watchfulness over all assigned convicts is equally essential. The object of their reform, as well as punishment, must never be lost sight of.

"His Excellency is sensible that this end could never have been so successfully attained as it has been, without the zealous co-operation of the colonists at large, who in conjunction with a due exaction of labor, have very generally insisted upon the observance of orderly and regular conduct.

"As it is through this good feeling on the part of the colonists generally, that the police has proved so efficient an auxiliary in the general control of the convict population, and as it would be unjust to allow the exceptions which may yet exist to affect the reputation of the colony at large, the government will still more firmly pursue the course of withdrawing assigned servants from all masters who neglect to regard cleanly, decent, and sober habits in and out of their huts, and a seasonable attention to moral and religious duties, as part of the compact under which the labor is placed at their disposal.

"The Lieutenant-Governor on this occasion feels it due to the general body of the settlers, to acknowledge his obligation to them for the cordial support he has received at their hands in the control and management of the convict population, with which no political differences have been permitted to interfere, and his Excellency does so with the more satisfaction, at this particular time, when the attention of the Imperial Parliament is so especially drawn to the consideration of the important subject of prison discipline, and when the state of things in the colony has placed the local government in a situation to contradict the unjust imputations which have been raised against transportation as a punishment.

"By his Excellency's command,

"J. BURNETT."]

[Footnote 211: Backhouse and Walker's observations. This evil was corrected on their representation.]

[Footnote 212: Par. Papers.]

[Footnote 213: "The Rev. Dr. Bedford, in the course of his remarks, stated that his duty had imposed upon him the painful task of attending between three and four hundred executions, and that more than nineteen-twentieths of the unhappy men who had thus miserably perished, had been brought to this end by the effects of drunkenness."—Courier; Speech at a meeting of the first Temperance Society at Hobart Town, 1832.

"It has fallen to our lot to be present at the executions of a large proportion of the malefactors who have suffered the extremity of the law in Hobart Town, and the apparent apathy with which the unhappy men met their fate, was always to us the most humiliating part of the spectacle. Their lips would utter with apparent sincerity the invocations prompted by the clergyman, but the heart, that should have given them expression, was too plainly wanting. They were empty sounds—the soul was gone. The main part of the executioner's duty was performed to his hand; the kernel was already consumed.... They sung psalms, ate a hearty meal: they heard the summons of the sheriff; their arms were pinioned; the halter was put about their neck; the cap was brought over their eyes, and they dropped into eternity with more indifference than the ox goes to the slaughter."—V. D. Land Annual; edited by Dr. Ross, 1833.]

[Footnote 214: 28th June, 1832.]

[Footnote 215: Despatch to Spring Rice.]



SECTION XVIII.

Governor Arthur held the reins of authority while considerable changes transpired in the elder colony. Sir Thomas Brisbane, who succeeded Macquarie, had chiefly attempted to diminish the expenditure, and in the management of convicts had sought in the results of their labor, rather than its detail, the success of transportation. Formed into gangs, they were employed in clearing farms under the inspection of government superintendents, for which the settlers paid a moderate price; but on the arrival of General Darling, the government assumed an aspect of increasing rigour, and the reins of authority were tightened until they were in danger of breaking. It does not belong to this work to examine minutely the general policy of that ruler; it was, however, held in earnest detestation by those who were, or had been prisoners. The magistrates were empowered to inflict corporal punishment to a very questionable extent, and it was customary for one settler to judge and sentence the servant of another, who in his turn performed a similar office. It is surely not necessary to prove, that the moderate exercise of such extensive powers depended rather on the equitable temper of British gentlemen than the practical limitation of their power.

On the arrival of Sir Richard Bourke, the successor of Darling, the spirit of convict discipline underwent a change. By a new law he lessened the power of the magistrates to inflict corporal punishment, and particularly terminated the system of distributing through successive days the sentence awarded. The magistrates complained that the convict servants treated the penalties to which they were liable with derision, and petitions from various districts of the colony claimed the restoration of the abolished laws. This led to the issue of an order to the various district magistrates, requesting their personal attendance at the triangles, and a special report upon the extent of suffering which resulted from the application of the lash. Superintendent Ernest Augustus Slade, son of General Slade, prepared a scourge, which was called the "regulation cat." Every flagellator through the colony was supplied with this instrument, and the effects it produced are described with scientific minuteness. The last victim was much more fortunate than the first: the lash loosened, or softened, and became more merciful at every stroke.

The description of several hundred cases in the course of one month, prove how useless, how unequal, and unavailing this form of torture. Such as these: "a fair skinned young man, he bore his punishment well;" "he resolved to bear his punishment like a man;" "he begged for some water;" "he seemed much exhausted, and cried like a child;" "this man never moved or spoke;" "he seemed to suffer much mental pain;" "he bit his lip, he had had former punishments;" "he neither cried nor spoke;" "he cried out domino." Of fifty, one half had never been flogged before. Then there follows in each case a description of the writhings of the sufferers: the discoloration of the skin, the time at which the blood appeared, and whatever might illustrate the power of the lash to degrade and torture. These returns were obtained to vindicate Governor Bourke from the charge of unseasonable lenity, and to prove that no just discontent was authorised by the mitigations he had enforced.

A great portion of these punishments were inflicted by the order of Mr. Slade. Dismissed for immoralities he was authorised to avenge, he excused them by alleging his youth. Though capricious, he was not cruel; but it is due to mankind, to protest against depositing power in the hands of young persons, who have to cover their own passions by the plea of juvenility, and who, in every part of the penal colonies, have exhibited an example of those habits which lead to crime—and too often administered public vengeance in the spirit of tyranny.

Corporal punishment, long tenaciously vindicated, by those who ruled masses of men, was held indispensible, and no severe reproach can be due to the government which authorised, or the magistrates who ordered, its infliction. It seems, indeed, to be essential to every social system that denies the ordinary rewards of labor. The rebel slave, to deprive his master, will dare any suffering which suspends or terminates his service. But beside those who employed the lash from conviction, there were others of a different stamp: it is quietly observed by Messrs. Backhouse and Walker, that they found its greatest advocates "among persons given to profane swearing." The violent temper, prone to break out in imprecations, would find another and congenial relief in scenes of torture and debasement. There were modes of punishment which no prejudice could extenuate: among these, the infliction of the lash in a form which degraded society more than it debased the sufferer. Thus, at Hobart Town, men, for mere faults, have been sentenced to exposure and the scourge, in the view of hundreds: the flagellator extinguished the last feeling of the man, and roused the temper of the demon. An old compositor, within a month of his freedom, was charged with some trifling breach of convict discipline, and though the father of grown up children, was ordered by a chief police magistrate, this cruel disgrace. He is dead—and his oppressor is dead! Such cases were not uncommon, but they are past, and they may be left to oblivion.

Whether it is possible, in the present state of penal discipline, to withdraw the scourge from the hands of authority, it might be difficult to decide: it should not, however, be forgotten, that its present comparative disuse, was once pronounced impossible; and that when flogging decreased, crimes of savage violence became unusual.

The partisans of General Darling, many of whom were eminent, both for their opulence and social worth, resented the constructive censure of his policy. They asserted that discipline was relaxed; that, under the title of the "prisoners' friend," Bourke was an incendiary, stirring up the laborers to rebellion.[216] They predicted that the diminished severity of transportation as a penalty, would suggest new arguments against it in parliament, ultimately lead to its abolition, and thus inflict a fatal injury on the colony. The press, supported by emancipists, lauded the lenient temper of the governor, and exasperated the advocates of the past system by allusions to their tyrannical rule, and exultation at their defeat. The old quarrel revived: the dissatisfied magistrates and settlers dwelt on the characteristic depravity of the emancipists; and the necessity for their permanent disqualification as jurors and electors. While they asserted the lasting civil and moral distinctions between the voluntary and expiree settlers, the patrons of the latter avenged them by maintaining that the convict was only less fortunate than his free employer, and that the moral disparity assumed and vaunted, was rather fanciful than real.

The treatment of assigned servants in New South Wales had always been more open to objection than Van Diemen's Land.[217] The transportation of 30,000, during ten years ending in 1836, produced the moral evils inseparable from such vast accumulations. Several of the settlers employed from one to two hundred men, and it was a capital object to reduce them to the feeling, while they were subject to the economy of penal slavery. There were, indeed, many mitigations and many exceptions; but the settlers at large realised less the healthy sympathy between the master and servant than was common in this country.

A class of settlers, whose management was not less exceptionable, chiefly expirees, surrounded the large estates; thus, while some convicts were considered both as criminals and slaves, others sat at the table and enjoyed the company of their masters. The results of these extremes have been already described, and are always uniform.

Among those who resented the policy of Bourke, Major Mudie was the most bitter and persevering. In his "Felonry of New South Wales," he employed every epithet of horror and contempt in condemning the conduct of this governor. The character of Mudie, as delineated by his friends, is not repulsive: they have described him as a good master and a just magistrate; but the style of his work awakens a suspicion that his temper was not fitted for the control of his fallen countrymen. They were sent to New South Wales to be punished: such was his theory. Macarthur, who participated in many of his sentiments, yet describes his own plan as the reverse. He knew that a severe gaoler could not be esteemed as a good master: "he endeavoured to make his farm servants forget that they were convicts."[218] Mudie spoke of those he employed in the tone of an executioner—nothing could wash away their guilt, or obliterate its brand. His descriptions of the "felonry"—a cutting term devised by himself, are grotesque and amusing. He deserves the fame of a satirist, but on historical questions his vehement language impairs the force of his testimony, and lessens the weight of his opinions.

This gentleman was the proprietor of Castle Forbes, an estate of large extent, where many convicts were employed. Their immediate superintendence he intrusted to his nephew, of whom their complaints were bitter and mutinous. Their remonstrances were punished: one man set out for Sydney, and carried a petition to Governor Bourke; he was sent back with a note to his master, written by the private secretary, who interceded in his behalf; but his application was irregular, and his absence unauthorised, and Mudie delivered him to the magistrate, by whom he was flogged and condemned to chains. On this, several men rose in rebellion: they attacked the house of their master, robbed him of some race horses, and attempted the life of the overseer. At their trial, and just before their death, they implored the governor to stop the cruelties which had driven them to desperation and the scaffold.

Deferring to the strong feeling excited by their appeal, Bourke appointed an enquiry. The evidence collected did not sustain the charges of the men, who probably mistook their position, and exaggerated their grievances; but their accusations made a deep impression on a certain class, and the tyranny of the settler magistrates, of whom thirty were dismissed from the commission, was denounced with increasing boldness and asperity.

Among the most effective writers of the time, was William Angus Watt, who held up the angry magistrates to derision, and their partisans, "as a faction dwindled to a shadow—

A mumping phantom of incarnate spite; Loathed, but not feared, for rage that cannot bite."[219]

The career of this man is a curiosity of Australasian literature. Both Dr. Lang and Major Mudie have spread his fame by their works and their parliamentary evidence. He committed a crime in Scotland, for which he was outlawed; for a second, in London, he was transported. At Wellington Valley he won the favor of his superintendent employed in an office at Sydney, he conciliated the good-will of Bishop Broughton and several other clergymen, who interceded for his pardon. This was refused, but he obtained a ticket-of-leave, and engaged in the service of the editor of the Gazette, the reputed organ of the government. The profligacy of his habits, and the insolence of his writings, exposed him to observation. He lived with a female illegally at large, whose child, born in the factory, was baptised in his name. To involve the editors of the Herald in a prosecution for libel, Watt procured, by the agency of a printer in their office, a slip proof of a letter they had resolved to suppress. This he transmitted through the post to the person calumniated, to give him the necessary evidence of publication. For his share in this scandalous trick he was tried, but the paper stolen was of so little value that he was acquitted. In addressing the jury, he pointed out Major Mudie as his unrelenting persecutor, and as an oppressor of unfortunate prisoners. Mudie, to punish the alleged insolence of his defence, accused him of immorality and habitual lying, and demanded the revocation of his ticket-of-leave. The investigation lasted several weeks, and ended in the dismissal of the charge, which was not unfairly attributed to the animosities kindled by newspaper warfare, in which Mudie was more than a spectator. Judge Burton represented that the residence of Watt in Sydney was pernicious, and Governor Bourke ordered him to the district of Port Macquarie; whither he was followed by the proprietress of the Gazette, with whom he married, by the governor's permission. There he was again concerned in an official dispute: his ticket was withdrawn; he absconded, was retaken and flogged—and thus dropped down to the degraded condition which his enemies desired, and which was certainly not undeserved.

The attempt to identify Bourke with this man was an artifice of faction. The license he received was not unusual, and his previous character had been free from colonial offence. His influence resulted from his ability: his principles were the current notions of the emancipists; nor is it easy to discern how talents, such as he was supposed to possess, could be prevented from finding their level.

About this time Dr. Lang established the Observer. Its object was to write down the emancipist partisans, and the journals subject to their power. The good service performed by this earnest censor was not without alloy: and in his attacks on their moral reputation, he seemed sometimes to write what they themselves might have written. The emancipists were drawn together by common sympathies: they charged the free settlers with attempting to exact from the sufferings and failings of their brethren, a consideration in the colony, to which they were entitled neither by their rank nor their reputation. Nor was this reflection always without reason: in strange forgetfulness of the natural operation of self-love, the upper classes of New South Wales expected multitudes, often of greater wealth than themselves, to walk humbly in their presence. Such claims the emancipists met with defiance. The false morality of their journals will be largely ascribed by a calm enquirer to retaliation and hatred, rather than to a judgment corrupted—in reference to the real nature of crime.[220]

Nothing so powerfully contributed to rouse the attention of the empire, as the charge of Judge Burton, delivered to the petty jurors, at the close of the criminal court, 1835. Perhaps a more awful picture was never drawn, or a more serious impeachment pronounced against a people. This celebrated speech furnished the text of examination, when parliament once more enquired on the subject. Judge Burton asserted that the whole community seemed engaged in the commission or the punishment of crimes. Crimes, including 442 capital convictions in three years: crimes of violence, murders, manslaughters in drunken revels—deliberate perjuries, from motives of revenge or reward, were brought to light. He complained of the deficiency of religious principle: of the neglect and profanation of the sabbath: on which day the worst actions were planned and perpetrated. The convict stations he compared to "bee-hives, diligently pouring in and out; but with this difference—the one worked by day, the other by night: the one goes forth to industry, the other to plunder." These evils he traced to "squatting;" the congregation of prisoner servants in Sydney; the license of improper persons to public houses; and, more than all, the total neglect of superintendence by employers of convicts, who, armed for marauding expeditions, sometimes left their masters' premises by night, and even by day. He closed, by declaring his love to free institutions—the pride, indeed, and boast of England; but which, if conferred on such a populace, he believed would end in the corruption of all.

That this address gave a true description of a part of the population, cannot be doubted; but inferences were liable to error, even on the spot, much more when drawn at a distance. A mass of thieves under any system, if in contact with property, must produce a mass of crime; yet even in the worst days of transportation, the relapses were proportionately less than under any other system of prison discipline. In England, 30,000 such persons at large, would yield annually at least an equal number of felonies.

The abuses which were brought to light, were certainly flagrant: the most memorable was the instance of Nash, who took to Sydney the rich spoil of a robbery, and set up a large drapery warehouse; and of Gough, an assigned servant of the chief justice, who lived at large, and carried on a quiet business as a receiver of stolen goods. Cases so conspicuous strongly illustrated the evils of assignment. The miserable fate of Mudie's men, compared with the condition of such persons, naturally suggested the idea, that some new change was essential, to protect from reproach or derision the public justice of the nation.

The appointment of a committee to promote emigration from Ireland, of which Archbishop Whately was chairman, called attention to the subject of transportation. It was the opinion of the committee (1836), that to send the peasantry of Ireland to a community so polluted, was base, cruel, and impolitic. The right reverend prelate asserted that statesmen were tolerating a social organisation, destined one day to involve the empire in deep disgrace, and exhibit the awful spectacle of a nation of criminals!

The desire to possess free institutions, brought the question of transportation to a crisis. The patriotic association advocated an unrestricted concession of political rights; the anti-emancipists a limitation of the franchise to such as were always free. This division of opinion was characterised by the usual warmth of political faction, aggravated by personal anger. The petition of the exclusionists called the attention of parliament to the state of the convict question, and solicited enquiry.[221] Macarthur, whose work is a commentary on the petition, full of valuable information, suggested the abolition of assignment, the separation of the convict department and colonial government, and the establishment of large gangs, in which labor might be exacted, without partiality.

Such was the state of this important question during the last years of Arthur's administration. When he deemed the details of his penal system nearest perfection, the main principles on which it rested were undermined. The severity enjoined by Lord Stanley, and the lenity exercised by General Bourke, raised an outcry against transportation; and once more propagated the idea that in its lenity it was corrupt, and its severity cruel. A running fire was kept up by the press, which returned to the question of secondary punishments with new vigour, and repeated all the problems on this perplexing subject—perhaps, destined to confound the wise, and furnish a theme for dogmatism through all time.

In 1837, the House of Commons appointed the committee, of which Sir William Molesworth was chairman.

FOOTNOTES:

[Footnote 216: Mudie's Felonry.]

[Footnote 217: "I thought them a villanous shabby set, compared with convicts in Van Diemen's Land." "There appeared a great deal of flogging." "My men did twice as much work." "I told my brother, if he used his men as we did, he would get more work: he said it would be ill-received through the country. They had very inferior clothing, and got very little meat. These remarks were applicable to the estates in general."—Mr. P. Murdoch's Evidence—questions 1397 to 1403.]

[Footnote 218: Par. Pap.]

[Footnote 219: Sydney Gazette, April 1835.]

[Footnote 220: "It was the uniform tendency or design of the writings of these individuals, as it has been also that of all other public writers of convict origin in the Australian colonies, to reduce the reputable portion of the community to the same level as themselves; to abolish all the salutary distinctions which the laws of God and man have erected between right and wrong; and if possible to dispossess the whole convict population of all sense of criminality and degradation."—Lang's Transportation and Colonisation, 1837. p. 109. And yet the disappearance of emancipist disqualifications has almost banished a class of writers who were accepted as champions, but who could not seriously affect the ultimate views of public and private morality—they were mere actors.]



SECTION XIX.

While these questions were agitated in England, Sir John Franklin received the government of Tasmania. Captain Maconochie, already known to scientific men, and who had enjoyed long the friendship of the Governor, accepted the office of private secretary—a situation of not much emolument, but highly confidential. When his destination became public, the society for the improvement of prison discipline requested him to examine closely the results of transportation, as exhibited in Van Diemen's Land. To assist his inquiries, they prepared sixty-seven questions, comprehending the details of convict management, on which they desired a minute exposition of his views; and added, "make such general remarks as occur on the whole convict system of the colony, and its effects on the moral and social state of the community: also remark on the effect of the latter, and enter on the subject largely, making any observation which may be useful in regard thereto."

Captain Maconochie referred the application to Sir George Grey, who consented, conditionally:—that all papers on the subject should pass through the usual channel to the colonial-office, and be first placed at his absolute disposal. The effects of this commission were momentous. Maconochie, when he left Great Britain, professed a freedom from decided bias, and to favor the general system of Arthur, rather than that propounded by Archbishop Whately. The opinions he ultimately adopted, he ascribed to his own observation, and disclaimed all prejudice against those forms of prison discipline he was destined to subvert.

The discussions thus originated are of a deeply interesting character, and their influence will long survive the animosity they occasioned. The completion of Maconochie's report was exceedingly rapid, or it was very early commenced. He had resided but three months, when he felt authorised to pronounce the existing system of management defective, far less in application than in principle. The course ascribed to Maconochie was that of a prejudiced spy, seeking evidence for a case pre-judged: that which he claimed, was the task of a philosopher, scanning facts patent to every eye—even more striking when first seen. His conclusions he attributed to the inevitable process by which facts are generalised, and demonstrate systems. His style, when deliberate, is terse and explicit: his ideas he expressed with the utmost freedom; or, as it then seemed, audacity. The colonists he treated as an operator, who indeed pities the sufferings of his patient, but disregards a natural outcry, while expounding in the language of science both the symptoms and the cure. Without circumlocution or reserve, he spoke of the officers concerned in convict management as blinded by habit—as empirics who could patch and cauterise a wound, but were involved in the hopeless prejudices of a topical practice, and much too far gone to comprehend improvements founded on scientific principles. His deviations from the tone of philosophical discussion were not numerous, but they were marked. The chief police magistrate he compared to the lamplighter, by whom gas is detested. In praising that officer's administrative talent, he observed that he belonged to the martinet school, and that his estimate of human nature depressed it below its worth.

The representations of Maconochie, with reference to the condition of the convicts and the character of the settlers, awakened a storm of indignation. Transportation, he said, at a distance appeared a trivial penalty; but when surveyed more nearly, it was found to be inhuman. The servant was assigned to a master without his consent; his employment was alien to his habits; he labored without wages; he was met with suspicion, and ruled with insult or contempt. The servant became sullen, the settler vindictive: slight offences were visited with punishments "severe, to excessive cruelty,"—offences, often the ebullitions of wounded feeling, and the tokens of a hopeless wretchedness.

Notwithstanding, this condition—unknown to the population at home—afforded no warning. The victims were uncompensated—the great majority unreformed. Thus, employers preferred new hands to those passed through this discipline of suffering. Such as rose in society, were seldom really respectable; they neither regretted their crimes, nor offered atonement. But if the prisoner was injured, the colonist was not less so. Social virtues were discouraged; all classes were contentious and overbearing: the police, ever prying into the business of life, thus intermixed with penal systems, filled the colony with exasperation, from which not even the mildest spirits could escape. He did not propose to abolish transportation, but that the government by its own officers should both punish and reform; that the prisoners, when restored to society, should stand in the relations of free men to all except the crown, receiving wages at the current rate; and if restrained in their expenditure, not for punishment, but for safety—"the chains of paternal authority" thrown over them, "to protect them against themselves."

Maconochie sent to Sir G. Grey a Summary of his Report, containing his opinions of existing systems: at his request it was at once handed to Lord John Russell, who again, conveyed it to the committee then sitting upon the subject of transportation. Although substantially agreeing with his report, the summary condensed, and therefore rendered more flagrant, the charges against the colonists, and his description of the condition of the prisoners still more revolting.

This Summary appeared in an English newspaper. Hitherto the discussion had been confined to official circles or to select correspondence: it was now open to the world; and the colonists found, with astonishment, that the reform proposed was radical, and that the opinions of the reformer were wholly adverse to the existing systems.

In this summary, the condition of the convicts was depicted with all the coloring of misery: they were slaves, subject to coercion; strangers to moral impulses, save only the distant hope of liberty. They were lodged in huts with stable roofs, damp floors, and rude furniture.[222] They slept on truckle bedsteads, often undressed; their food was cooked in the roughest manner; without wages, they robbed; miserable, they were drunken. Their better qualities were unregistered: the artful escaped, while the "careless fellow," otherwise good, was involved in a long train of penalties. A ticket obtained, the holder could acquire no property, and was worried by police interference; and in one night his indulgence might be forfeited. Though some masters, generous or weak, softened its rigour, assignment as a punishment, generally exceeded the desert of minor offences: and its degradation, unfelt by old offenders, was agony to men of minds more sensitive. The bad were little punished, the good demoralised; self respect was destroyed; and men born to better things, sacrificed by political institutions, rather than by their personal depravity or their crimes. This state was worse than negro slavery: the interests of the masters were less permanent; who, though they did not fear their servants, disliked, coerced, and inveighed against them. This slavery tainted colonial life: the colonists were harsh and overbearing at home; they were quarrelsome neighbours, given to reckless assertion; rapacious, envious, and disaffected. Government was unpopular, and all governors so in succession. The police, if not corrupt, was irksome and intrusive. Labor was wasted, emigration discouraged. Crime and drunkenness multiplied, and what a hundred and fifty is to one thousand, or thirteen hundred, such was the crime of Van Diemen's Land to that of England and Scotland. Drunkenness had risen, in ten years, from three per cent. to fourteen per cent.: in London, such was the difference of tendencies between those meridians, it was reduced to an imperceptible fraction.

To remedy these evils, he demanded the abolition of domestic slavery: a separation, distinct as their natures, between punishment and moral training; punishment, certain and appropriate—inflicted upon system, and in seclusion; and training, not less systematic, but social and probationary—coercion being banished, moral influence alone applied. For punishment, Maconochie deemed the system of Port Arthur, administered by Booth, an admirable model. For training, he suggested stations within reach of the free community, where the convicts should be prepared for society in parties of six, joined in a common fate, by mutual agreement. They were to work out their redemption together: their vigilance would detect, their interests depress disorders in the clubs; the virtues of sobriety, diligence, decency, and industry, achieved by each, would be rewarded for the common benefit of all; but for the fault of one, the whole would pay the penalty; or should the partnership be dissolved by the intolerable injustice of any, its disbanded members would return to their starting point, and in new combinations pursue again, and perhaps again, the first steps, until all should reach abreast one common goal.

Such was the system of moral training and mutual responsibility, which he deemed only a new accommodation of established principles. In his view, it was a moral field the greatest statesman might enter with success, and thus crown himself with immortal renown. Such in substance was the summary, afterwards amplified by details and illustrated by facts. In subsequent papers the more offensive passages were explained and qualified; but at best, they appear not only an indictment of opinions and systems, but of classes and communities.

Sir John Franklin promptly referred the queries of the Society to an official board, which consisted of the chief police magistrate of the territory (Captain Forster), the director-general of public works (Captain Cheyne), and the superintendent of convicts (Mr. Spode). In reply to sixty-six of these questions they had only to refer to undisputed facts; but the last contemplated both the theory and practice of transportation. In the statement of facts they united; but the proper remedies to apply to acknowledged evils, admitted of difference—and they all differed.

The memorandum of the chief police magistrate, beside briefly describing the practice of former times, recommended important changes for the future. Instead of assignment from the ships, he suggested that all prisoners should be placed on the public works, for a period to be fixed by the judges. He proposed a new distribution of time penalties: thus instead of seven, fourteen years, and life, to recognise by law a more minute and proportionate sub-division. In assignment, he recommended wages, rateable at the discretion of government; afterwards a first class ticket-of-leave, with a permission to choose employers; and a second class, to include most of the privileges of freedom, voidable only by a court of quarter sessions for specified offences. The conditional pardon he deemed it necessary to defer a longer time than usual; since, when released from surveillance and responsibility, ticket-holders often relapsed into the vices from which they had previously emerged.

Mr. Spode concurred with the chief police magistrate, though with serious reservations: especially, he deprecated any delay of assignment—a state he deemed most conducive to reform, and highly useful to the colony. Mr. Forster had declared that female prisoners "were not available subjects for prison discipline." Mr. Spode recommended solitary confinement, or marriage. In the meantime, Maconochie having drawn up his report, submitted it to Captain Cheyne, and made a proselyte.

Captain Cheyne took the colony by surprise. Not only did he denounce assignment, but spoke of the settlers with still less tenderness: he asserted that a great proportion of those entrusted with convicts "were dissolute in their habits, and depraved in their principles." That there "existed a fearful degree of depravity, unparalleled in any age;" that assignment was the great source of crime and caste: for the convict "no man cared;" few were exempt from contemptuous and brutal treatment—few escaped punishment. Such opinions could only usher in a system radically new. Thus Captain Cheyne proposed to divide the prisoners into gangs of two hundred each, and the adoption of task work proportioned to physical strength. He proposed wages to be paid to the road parties, to be expended in the purchase of comforts, or reserved for a future day. On introducing the prisoners into society, he recommended a graduated scale of indulgence, not greatly dissimilar from the propositions stated already.

The papers of Maconochie and Cheyne were referred to the members of the executive council, and were generally condemned. Captain Montagu urged the great danger to the public peace, from the propagation of an opinion that the laws were unjust, the masters oppressive, and the government cruel. Were it intended to test Maconochie's theory, he demanded a large increase of military force. He, however, complained that gentlemen, who possessed such slight practical knowledge, should venture to assail established systems. His remarks chiefly related to the colonial influence of their ideas, and he exaggerated the danger to the public safety. The most dispassionate examination of this report was given by Archdeacon Hutchins. It was far more copious in its admissions in reference to the existing system. Little work was done; the prisoners were very slightly reformed, and the agents often unfit. But by what means labor could be exacted, or a "millennial age of righteousness" supersede the past, he declared himself uncertain. He was sceptical that it was possible to obtain men of science, prudence, and equity, to administer a system so complexed, and requiring such discretion.

Mr. Gregory, the colonial treasurer, adopted a less grave form of criticism. He soothed, by his humour, the colonial wrath, and among the lesser gods excited unextinguishable laughter. The charges of Maconochie and Cheyne against the colonists, he described as loose and random shots, fired by inexperienced hands. In reducing the plan of clubs to practical details, he insisted they were unequal, and even impossible. The minute appraisement, both of good and evil; reckoning up the diurnal merits of the men—the balance of which was to furnish their capital stock, to discharge their fines, to find them food and clothing, and liberty—he described as a gigantic scheme of finance.[223] He amused himself by supposing the number of chances which might intervene before, of ninety-six men, the whole should be divided into clubs of six, and by the separate agreement of all combine their fortunes, and risk joint forfeitures: each man settling into partnership with five others whom he could trust, and by whom he could be trusted. He figured also the embarrassment of the protectors, who every evening, ledger in hand, must make up their debtor and creditor account for the three hundred probationers.

The summary, Capt. Maconochie had enclosed, under seal of the Governor, to Sir George Grey, without however fully explaining its contents to Sir John Franklin, or intimating its serious and formal nature. When the journal containing it was placed in his hands, he uttered an exclamation of astonishment, and instantly dismissed its author, but did not withdraw his friendship. Maconochie represented that it was a private document, intended for private use—its sudden appearance not less unexpected than embarrassing. That he had not submitted this paper to the Governor, he ascribed to the irritation caused by the difference of their opinions; and that he did not delay its transmission, he imputed to its overwhelming importance and its pressure on his mind. How the spirit of the Governor was extolled by the colonists need not be formally stated, or how his discarded secretary was accused of rashness, perfidy, and falsehood. Maconochie did not himself disdain to acknowledge, that in error of judgment he had forwarded too early, and in a manner seemingly clandestine, a report so decided. The imputation of duplicity was unjust: Franklin was not wholly ignorant of the contents of the packet. Although not, perhaps, aware that he was franking a system, yet by the same vessel he wrote to the minister that he had not read, and could not answer for the summary. It was, however, strange for the ministers of the crown to rely on a private report; and especially upon the truthfulness of an analysis, which gave opinions, but deferred the evidence on which they were said to rest.

The resemblance which may be traced between the system propounded by Maconochie, and the suggestions which have been offered at various times by writers on this subject, will not deprive him of the credit of originality. Hazarded by their authors without much reflection, the boldness of a reformer was required to adapt them. It may, however, be interesting to trace the details which he combined, or the sources of those ideas which he comprehended in his scheme.

Sidney Smith suggested "new gradations of guilt to be established by law, and new names to those gradations; a different measure of good and evil treatment attached to those denominations—as rogues, incorrigible rogues," and so forth.

Mr. Potter M'Queen recommended a division of offenders, some of whom should be punished in gangs, and others subject to a process simply reformatory.

Blanco White, a celebrated Spaniard, had suggested sentences to an amount of work rather than to an extent of years. He proposed that the tread-wheel should measure the progress of the culprit, and that every revolution should bring him nearer to liberty.

His punitive system had long been adopted by Arthur, though probably with objects somewhat distinct: it was found in every penal settlement and road gang.

Capt. Cheyne had recommended the opening of accounts and payment for probationary labor.

At Bermuda, the stimulus of present enjoyment was offered to industry: convicts were allowed 1s. 6d. per week, half of which they were at liberty to expend in fruits, vegetables, and such like comforts; the residue forming a fund, sometimes of L15 and L20, receivable at discharge. These indulgences were attended with the happiest effects, and the superintendent, Sir Thomas Usher, was so satisfied with their reformation, that he had no doubt seven-eighths were better men at the close than at the commencement of their bondage.

The idea of clubs was found in the tithings of the ancient Britons, which were enrolled by the authority of Alfred, and made liable for each other. Maconochie saw in the disjointed and licentious condition of that era, something analogous to the state of convicts, and in the result that "a bracelet might be left on the highway with security," an encouragement to hope, from a similar organisation, for the same success. Capt. Maconochie quoted Hume in describing these societies, but he omitted those sentences which seem to give another aspect to the institution; for when a member of the tithings was charged with a crime, the rest could purge themselves from responsibility, if acquitted on oath of connivance with the offender, or his escape: but, however innocent, the clubs of Maconochie were involved in the responsibility of the transgressor—a fundamental difference, the suppression of which was scarcely compatible with literary candour.

Bentham himself had proposed that convicts should remain at auxiliary establishments, in principle resembling the training stations of Maconochie, until they could be prepared for the full enjoyment of liberty. He also suggested mutual surveillance associations, in which the prisoners should watch over, instruct, and assist each other. Archbishop Whately advocated the detention of prisoners until their reformation was established.

Maconochie attributed his idea of marks to an observation of Messrs. Backhouse and Walker on their usefulness in training the rising generation: they thought they discerned a faint image of the club system at Macquarie Harbour, where devout prisoners separated themselves into a society, and were secured from the interruption of the rest. Men from bondage, were released in the hulks, when the sum total of marks in their favor covered a certain period of their sentence.

Macarthur had recommended the employment of an officer, under the immediate direction of the home secretary of state, responsible for the full execution of a sentence, to whom the entire management of the convict department might be committed. The governors would thus be less likely to change the aspect of transportation, according to their particular theories.[224]

Captain Maconochie was preceded in this branch of penal philosophy by a gentleman, not equally celebrated, but who proposed changes as radical. It is amusing to observe, with what different objects, and how diverse in spirit, similar mutations have been enforced. Dr. Henderson, the founder of the Van Diemen's Land Society, on returning to India, offered through the press at Calcutta a new scheme of colonisation, based on convict government. That which existed he deemed defective in its main principles, and futile in its results. The settlers he described, with some contempt, as an inferior class, inflated with notions of liberty and equality, and debased by convict associations; prone to quarrel and encroach, but distressed with the endless vexations of their lot. Forbidden to punish the insolence of their servants; exposed to the disgrace of meeting their accusations; or when they prosecuted a charge, liable to the strictures of the magistrate, who might penetrate the secrets of their dwellings, and censure them in the presence of their exulting slaves. Thus, though the author assumed the tone of philosophical discussion, he differed from others who professed to investigate principles: he observed—"We find the convicts in the condition of slaves placed under despotic power." "It is not necessary to enquire whether it is for their benefit;" "they are not entitled to our sympathy, should they be treated with the rigour of slaves:" "they will not often labor when they are removed from the dread of punishment." "The magistrates should be relieved from forms and precedents, and punish according to the intrinsic value of offences, and for the public good." "More injury is done by the trammels of the law, than by leaving the judges to their own discretion." Such is the essence of his system, which, however, always presumed the existence of a lofty purpose and a dispassionate administration.[225] For this large discretion, however, he pronounced the existing settlers unfit: he recommended the employment of young educated gentlemen, under a board of directors, and proposed as the primary object of discipline, neither punishment nor intimidation, but productiveness. Power being lodged in the hands of the superintendents, without regard to Burns' Justice, or written regulations, they would check offences at once, and punish according to their social and material tendency. He held, as vitally important, that all national views in reference to transportation should be subordinate to the colonial welfare. Having formed agricultural establishments, and fitted them to become the home of capitalists, the officers of government would give place to another class of employers. The house, the servants, and the cleared ground, would be disposed of by the crown; the convicts, gradually trained, exalted into a free population, and with their families would form a peasantry. The sale of these estates would repay the original outlay; and thus, without further drafts on the treasury, the process could be renewed in an endless succession. The lash, Dr. Henderson was far from rejecting as an instrument of correction—"cheap and expeditious:" in short, his was a plan of slavery, and which conveyed semi-magisterial powers to the overseers, and gave them a profit on the labor they might exact.

Henderson had become sultanised by living in India: he was attached to the spirit of its government; the legal formalities, which delight an Englishman, seemed to him the degradation of rank, and a pernicious license to inferiors. In his imaginary commonwealth, he saw but two classes, which, in the language of the East, he distinguished as the "head and the hand." He thought the judges should be required to aid the governors by their interpretations of the law; who, at the close of their administration, might be tried by their peers, and, if found wanting, handed over to everlasting shame! Thus, his plan embodied the spirit of caste, of orientalism, and of the India House. He had no simpering tenderness for the prisoner, while he attributed to the upper classes an innate rectitude and self control, such as the British records of the East will hardly sustain. His speculations are worth remembering, for the contrast of their animus with those of Maconochie, and for the analogy in their details.

FOOTNOTES:

[Footnote 221: The petition to the Commons prayed an enquiry into the efficacy of transportation to New South Wales as a secondary punishment: whether it should be continued, and under what alterations of the present system; or, if discontinued, in what manner, &c.—Petition, 1836.]

[Footnote 222: It was not much better in England: the Rev. J. Clay stated, that in Preston there were 422 dwellings, inhabited by 2,400 persons, sleeping in 852 beds; that is an average of five and a fractional part as follows:—84 cases 4 in a bed; 28 cases 5, 13 cases 6, 3 cases 7, 1 case 8; one family of 8 on bed frames, covered with a little straw.—Health of Towns Commission, 1844.]

[Footnote 223:

Dr. Cr. A. 3 marks for getting drunk. B. 1 mark for punctual at C. 2 marks for losing part of his church. Sunday clothes. D. 2 marks for general E. 5 marks for wantonly assaulting F. steadiness and obedience. F. 3 marks for self command 10 under grievous provocation. 6 6 4 loss; falling one-half on those who obtained the entire stock of credit.]

[Footnote 224: Macarthur's Present State, &c. pp. 47, 49.]

[Footnote 225: "They should have increased the barriers between him and the convict; and in those investigations they should have leaned towards him (the master), even at the expense of legal justice: his character should have been rendered sacred in the eyes of the convict."—Henderson's Observations, p. 12.]



SECTION XX.

At this era, no one will question the integrity or benevolence of Captain Maconochie, and it would be disgraceful in a historical work to adopt the language of prejudice, much more the invectives of a quarrel; but it is not less important to estimate aright both his opinions and his plans. His description of the condition of the prisoners might be easily illustrated by examples. There were settlers, not a few, to whose care the prisoners were entrusted, who were unfit to govern a kennel. Low in their origin, corrupt in their principles, and detestable in their lives—themselves differing from felons in nothing but their position.

The unhappy prisoner entrusted to their charge, was insulted, coerced, and crushed. Sufficiently cunning to avoid a palpable infraction of the orders of government, they constantly violated their spirit. Physical weakness, or mental incapacity, they treated as evasion or contempt. Prone to invoke the interposition of the magistracy, they drove unfortunate beings for slight offences to a tribunal, where the presumption was always against them. In the presence of the magistrate they were smooth and supple; but the eye of the punished prisoner marked the exultation of cruelty triumphant, and his course was rapid from failings to faults, and from faults to crimes.

In the larger establishments, except where the humanity of the master kept alive his vigilance, the men were sometimes placed in the power of an overseer, himself perhaps an expiree; who, elated with office, delighted in the advent of his turn to torture. On such farms the rigour of discipline seemed essential to order: too often, the men differed but little from slaves. Violations of rule were deemed more pernicious by their example than their immediate inconvenience: to pass by a fault, was thought to license its imitation. The indulgences afforded by a small settler, whose social happiness depended on their good humour, would have proved, where many herded together, an item of large expense. Punishments, the readiest instruments of control, were inflicted on calculation: there was, perhaps, no anger in the breast of the accuser—the defaulter he would have readily forgiven, had he stood alone; but impunity would relax the reins of authority, and the lash was invoked because most convenient. The published documents of the House of Commons illustrate the perseverance of masters, in repeating their prosecutions; and the resistance and suffering of miserable men, who for the long period of their service lived in constant warfare, and retaliated the social wretchedness they endured. An enquirer could not long reside in the colony, without learning that many had borne a succession of punishments sufficient to prostrate the strength of a giant, and which no mere animal in the creation could survive.

Yet this is not a fair estimate of the character of the settlers, or the results of assignment; and a want of discrimination in Maconochie, however unintentional, was a serious injustice. It was true, that the constant vexations of a settler's life produced, too generally, a tone and manner, striking to a stranger, because not so common under happier circumstances. The substantial benevolence of many employers is not the less unquestionable: a large number continued their liberated men in their service, whom they had taught the arts of industry, brought under the influence of moral instruction, and assisted to settle in life. Hundreds scattered throughout these colonies, who were born in the contagion of wickedness, were rescued from habits of crime by the long and patient training of their masters. That many such have become virtuous, in the highest sense, could not be affirmed without hazard; but can this be said of the majority of mankind?

The charges of Maconochie incurred severe reproach, for their rashness. It is true, that the prominence of evil fixes the attention, while humanity is retiring and noiseless—as the riot of the streets conceals rather than illustrates the sobriety and order within doors; but a philosopher should have taken into account this facility of error, while condemning with whatever severity the evils he might scan: lest he should be found to set forth the exception as the rule, and the rule as the exception.

Were persons, who have passed through assignment, to give their testimony, a very large proportion would acknowledge that their condition was not unhappy, or their masters unkind. In his estimate of prisoners, Capt. Maconochie was equally deceived by a generous confidence, or by his pity for human suffering. Some were, indeed, far superior to their degradation: they retained in bondage the principles they had derived from education, or the dispositions natural to their character: offenders by accident, not habit; and some condemned by that last calamity incident to society, the mistakes of public justice. A much larger class were victims of early neglect: parental example, or of the social evils which are incident to the refinement, corruption, and selfishness of the age; but very many, whatever the cause of their depravity, were really and recklessly depraved. The pitying eye of the philanthropist, glancing at their history, would find his compassion in the ascendant, and in surveying their misfortunes might forget their crimes; but to stand in contact with them; to struggle against their passions, to hear their profaneness, to correct their indolence, and to thwart their peculations—these were duties and trials, in the presence of which the highest benevolence became practical, and theory gave way before actual experience. Nor is it easy to discover by what plan the injustice of European society, or the misfortunes of youth, can change the colonial aspect of depravity, or supersede the penalties provoked by indisputable wickedness.

A close examination of the records in the police-office, not only proves the revolting severity of our penal administration, but by preserving the original character and colonial career of the prisoners, illustrates the depth, continuity, and recklessness of their guilt. It was in this department of his investigation Maconochie dropped into serious errors. He entertained the conviction that the far greater number were wicked, because they were unhappy: nor did he sufficiently perceive, that in a large mass of offenders the principles which debase them had become constitutional by habit; and that nothing, short of divine power, could change the current of their passions, or the course of their lives. From such a view of human nature the feeling mind revolts, and the philanthropist may justly cherish those animating hopes which instances of reformation may save from the charge of folly; but a philosopher, constructing a system, cannot disguise facts with impunity: and nothing is more certain than that he whose expectations are disappointed, feels a dangerous reaction, and passes from unlimited confidence to undiscriminating suspicion. The administration of the criminal laws, both in Great Britain and the colonies, presents a series of alternations between rigour and laxity, which have proceeded from the alternate ascendancy of conflicting ideas, that can never settle into harmony.

Maconochie delighted to trace the better qualities of prisoners: how even the most daring are moved by tenderness, and when kindly spoken to, melt into tears. Unhappily these characteristics too often exist in combination with passions which render them useless. It is, however, the duty of all to endeavour to elicit and nourish them; for though they but slightly relieve the depravity with which they are not incompatible, they afford a nucleus round which the social virtues often gather, and prevent the total despondency of those who labor for the welfare of the weak, the wicked, and the miserable.

Sir John Franklin made a last effort to save the system of assignment. He defended the colonists from the imputations of Captain Maconochie, and exhibited statistics, which proved their anxiety to promote the spiritual welfare of the population. He maintained that the surveillance of the government was active, the distribution of labor usually impartial; the protection of the prisoners from injustice secured by law, by the press, and by the constant scrutiny of the lieutenant-governor. He argued that the quiet submission of the prisoners was not ensured so much by military power as the consciousness that they were treated with justice. In his view assignment, by its near resemblance to the ordinary combinations of social life, prevented the worst consequences of penal degradation, and tended to rouse the sympathies which crime might have rendered dormant; he, however, disapproved of assignment in towns, and for domestic service.[226]

The abuses of assignment were prominently exhibited in the instance of Clapperton, a man greatly trusted by his master, Mr. Alfred Stephen. He was guilty of embezzlement to a large extent: he was tried by Captain Forster, and sentenced to fourteen years transportation; but Clapperton was famous as a clever cook, and as such was desired by the colonial secretary, who, however, judged it right first to enquire whether his services would be in demand for the kitchen of the governor. The private secretary waived the precedence, and Clapperton was accordingly sent to the residence of Captain Montagu. On the way to his destination he called at the house of his old master, to acquaint the servants with the favorable turn in his fortune: this became known to Mr. Alfred Stephen, who found that, by the prosecution he had instituted, he had conferred a favor upon an official friend. He immediately appealed to Sir John Franklin, who was evidently unconcerned in the arrangement: he recalled the man, and sent him to labor on the roads. The public discussion of this case excited a strong sensation: it illustrated the system, which sent one man to toil on the chain, and another to wear the livery of the second officer of the government.

Fifty gentlemen presented a requisition to the sheriff, to call a meeting, to discuss the abuses of transportation: this, however, he declined, and the requisitionists permitted the matter to drop, lest an exposure should endanger assignment altogether. It could only suggest to the British parliament new arguments for abolition, when it was found that a doubly convicted offender was sent a few miles, into an opulent establishment, to enjoy the dominion of the larder, to romp with the maids, traffick with the tradesmen, and command the means of vicious gratification; while a simple rustic, fresh from his first transgression, was subject to all the hardships of predial bondage.

FOOTNOTES:

[Footnote 226: Despatch lo Lord Glenelg, October, 1837.]



SECTION XXI.

But Sir W. Molesworth had roused opposition to the prevailing system. The Commons' committee examined twenty-three gentlemen, whose testimony would be without novelty to the reader of these volumes. The greater part concurred in the inexpediency of assignment, and in the usefulness and importance of transportation. These witnesses were charged by Maconochie with a general indifference to the moral welfare and personal improvement of the prisoners. A colonist would, however, easily distinguish substantial benevolence from sentimental opinions; and they knew, by the trials of experience, how toilsome are the most generous efforts to correct habits not to be softened by the tears of compassion, and which do not yield to the wand of the magician.