The system of assignment was first established in America (1718), and
continued for fifty-six years: the rigid discipline permitted by the
colonial law, the kind of labor usually performed by the servants, and
their diffusion over an extensive surface, tended alike to restrain, to
reform, and ultimately to merge them undistinguished. Many, endowed with
good natural abilities, such as an accomplished thief usually possesses,
succeeded in their pursuits, and became masters themselves, _by the
purchase_ of the servitude of those afterwards sent out for sale.[160]
Thus, whatever complaints were raised against transportation itself,
none objected to assignment; and the long period of its duration, proves
that the home government cared little for the state of prisoners, while
there was no local press to vindicate their _rights_, and few readers of
books to encourage romantic delineations of their _felicity_.
On the arrival of a vessel, the chief officers of the government
examined the prisoners, and the Governor himself addressed them. He
pointed out their future position, their duties, and their dangers; the
tone of promise usual in times past was considerably abated, but the
awful rigours of their servitude were explained, often to their
astonishment and horror.[161] Often the private examination of the
prisoner confounded him with amazement: a gentleman, whom he had never
seen before, unravelled with facility the mystery of his life. If he had
been often in prison; if his brother had been transported; if his
sweetheart had been deserted; whether he had been a pest to the lords of
the manor, or to the parish, by poaching or bastardy: his whole life was
read by his inquisitor, with supernatural clearness. The raw countryman
did not know how far his course had been subject to the gaze of the
stranger: denial gave way rapidly; he assented, and explained, and
enlarged--and thus the office of the superintendent answered the purpose
of a confessional. It was the practice to furnish all possible
information to the local government, and to keep its details a secret
from the prisoners: such had been the advice of the Commissioner. Thus
the wonder of the country transport, to find that the picture of his
life had preceded him--that all was known at the world's end.
Though no persons could have greater cause to confuse their identity,
the prisoners often stamped on their persons indelible distinctions; a
custom, perhaps, introduced by the sailors, and encouraged by the
officers, but which prevailed among London thieves. Those who suffered
these figures to be pierced, were usually the most simple minded, or the
most depraved. The figures themselves were sometimes obscene, but not
commonly: often mermaids, still more frequently hearts and darts;
sometimes the name, or the initials of the prisoner. Thus, in the
runaway notices (1825), one had a hope and anchor; another, a castle,
flower pots, hearts and darts; another, a man and woman, a heart and a
laurel; another, a masonic arch, and moon and stars, and initials in
abundance. An Irishman had a crucifix on the arm, a cross on the right
hand, and the figure of a woman on the breast! Such were the ingenious
methods which, induced by indolence and vanity, these men permitted, to
lessen the chances of escape. The initials generally differed from those
of the known name, and indicated that the wearer, some time or other,
had occasion for disguise: others were obviously memorials of past
affection, and of names perhaps associated with blighted hopes and better
days. Besides these marks, were others; scars, usually the result of
a life of mingled intemperance and violence: thus, almost in succession,
the list of absconders gives the following--"a scar on the forehead;"
"scar on the right eye;" "his arm has been broken;" "his nose inclines
to the left cheek;" "a broken nose."[162]
All that might assist the police was registered: their native place,
their age, their crime, and sentence. They were then detached to their
masters; marched, sometimes, in considerable bodies, from Kangaroo Point
to Launceston, 120 miles. The mechanics were reserved for government
employ, and the concealment of a trade, was visited as a crime; yet
convicts did conceal their trade, instructed by former experience, or a
hint from a veteran predecessor. They knew that mechanical knowledge
might prolong their detention, and deprive them of many present
advantages. They knew that, though rated as laborers, they might obtain
a master who would pay them. This was effected, sometimes, at once, or
by the agency of a friend; or oftener by the prisoner, who, on his first
opportunity, would hint to a builder or carpenter, that he knew
something of a trade. An order was obtained for a _laborer_, which would
not have been spared for a mechanic: a fee to the clerk, secured the
intended selection; and the man assigned to carry the materials of a
building, was taught, in a time which seemed incredibly short, all the
mysteries of line and rule. It is thus that weakness ever arms itself
against might.
The increased demand for assigned servants, enabled Governor Arthur to
enforce the regulations which had been often promulgated in vain. It
ceased to be necessary to pay wages, and the master was bound to provide
sufficient food and clothing for his men: the scale was determined. The
practice of lending out servants was restricted, and finally abolished.
All those means of stimulating labor, which had tended to suggest the
rights of property, were forbidden. It had been the custom to permit
assigned servants to receive a share in the increase of stock;
allotments of land had been separated to their exclusive use; they had
been suffered to trade upon their own account. These arrangements were
calculated to stimulate industry, but they also generated disputes, and
led to petty theft. Thus reduced to an absolute dependance upon the
liberality of their masters, they had no reward but as a boon: many of
whom, however, evaded the regulations, and paid their servants the
ordinary wages of free men.
No rule can be devised, that is not liable to objection. The men were
discontented with a service, in which money was refused them: it was
illegally possessed, and therefore rapidly spent in debauchery and
drunkenness. The settlers usually allowed some luxuries; but these,
discretionally given, were a tax to the liberal, often more onerous than
reasonable wages. Domestic servants, and those entrusted with important
concerns, were paid by all, from the Governor downwards, and that while
regulations were promulgated against such violations of order.[163] It
was doubtless not at his direction, but at his cost!
A decision at Sydney, explained the nature of the claim for wages
granted by former regulations of government. A female, at the close
of a long servitude, sued her master for arrears: the judge advocate
declared "his court one of equity and right," not of law; that
the spirit of public orders, not their letter, was the rule of judgment;
that the allowance of money required by the crown, was intended to
secure the plaintiff certain comforts: those comforts she had already
enjoyed, and thus her claim in equity had been already satisfied (1823).
The wages of a man servant were stopped by the magistrates, because he
had been accused of stealing from his master (1821)!
The right of a master in the services of his assigned servant, was
incidentally raised in the celebrated case of Jane New. She arrived in
Van Diemen's Land under a sentence of transportation, and, according to
the prevailing custom, was assigned to her husband; who was allowed, by
Governor Arthur, to remove her to New South Wales: she was charged there
with a capital felony, and death was recorded against her. The
prosecutrix, Madle. Senns, a French mantua-maker, gave her evidence by
an interpreter: afterwards, it was discovered, that the conviction was
erroneous, both _in substance_ and _in law_: released on the
recommendation of the judges, by order of the sheriff she was committed
to the female factory at Parramatta. Her husband then sued out a writ of
_habeas corpus_, to which the return, as amended by the direction of the
court, alleged under the hand of the colonial secretary, that her
detention was by authority of Governor Darling, she being a prisoner of
the crown. The question seemed to depend on the nature of the rights
conveyed by assignment; but a second arose: whether those rights could
be exercised beyond the limits of the territory appointed for the
transportation; or whether Governor Arthur was authorised to permit the
removal. The judges, Forbes, Stephen, and Dowling, decided that the
prisoner having been transported to Van Diemen's Land, was, by removal
to Port Jackson, no longer under the provisions of the act of
parliament; that neither the magistrates nor Governor of New South
Wales, could make her the subject of summary treatment; but as a
prisoner illegally at large, must remand her to the place of her
original and unsatisfied term of transportation.
In giving this decision, the judges announced their opinion upon the
rights of assignment in general, as regulated by the 9th Geo. iv. cap.
83. The Act required the consent of the governor in the assignment of a
prisoner, and authorised the revocation of that assignment: this power
to revoke, was however, to enable the governor to grant remission--to
change the civil condition of the servant; and thus, by his restoration
to liberty, to extinguish the rights of the assignee. The law officers,
on the part of government, alleged that the discretion was absolute, and
authorised a summary disposal of the services of the prisoner; whether
under, or independent of, a magisterial decision.
The chief justice, however, maintained that such a right in the
executive might be ruin to the people. He asserted, that the duty and
right of the governor was limited to the execution of a public trust, as
between the crown on one side and the prisoner on the other; to minister
to a covenant, subject only to those stipulations, the neglect of which
might, by the common rights of humanity, dissolve the engagement. "If,"
he remarked, "the governor, at discretion, may revoke the assignment of
prisoners, as a consequence he may render the estates of landholders of
no value; nor does it appear that this power of revocation is
sustainable under any circumstances in the large and discretionary form
claimed by the law officers of the crown."[164]
The government endeavoured to contest this right (1829), in the instance
of Mr. Hall, publisher of the _Monitor_, whose strictures had provoked
official hostility. His men were recalled by the superintendent; he,
however, paid no attention to the notice, and continued to employ them:
for this he was summoned before the bench of magistrates, who,
influenced by the known opinions of the government, fined him, under the
act against harbouring. Mr. Wentworth moved for a criminal information
against Messrs. Berry, Wollstoncraft, and others, for contempt: a rule
was granted, but afterwards dismissed; the judges expressing the
strongest indignation that the magistrates had dared to set aside the
solemn decision of the court on a point of law, and in reference to the
most important rights of the colonists; and to mark their displeasure,
they saddled them with all the costs. Mr. Hayes, of the _Australian_,
was involved in a similar contest; but to break the bond, the governor
granted a ticket-of-leave--thus releasing the prisoner from his
assignment. The printer, notwithstanding, brought his action against the
superintendent for abduction, and gained damages; the judges holding,
that the sudden deprivation of the master, by an arbitrary and unusual
indulgence--granted only to deprive him of his rights as assignee--was
not contemplated in the law, which modified those rights by the
prerogative of mercy.
The following are the chief provisions of the Parliamentary Acts on the
subject of assignment:--
The 4th Geo. i. (1717) conveyed an absolute property to the shipper, who
again assigned to the master.
An opinion was obtained from the law officers of the crown (about 1818),
that the state of convict servitude was created by the 4th Geo. i. and
subsequent statutes, under which a property in the servant was reserved
to the master, whether captain or colonist: the power to punish was
assumed as a necessary consequence.[165]
The 5th Geo. iv. gave a right to the governors to release the convict
from assignment, by a pardon, &c. A subsequent Act, for abolishing the
punishment of death in certain cases, limited the exercise of mercy.
The 9th Geo. iv. gave the governor power to revoke assignment; and made
the master entirely dependant on the government.
The local government rarely interfered with the prescriptive rights of
the masters, nor did it often object to the transfer of servants when
the value of an estate depended on the possession of bond labor. The
most remarkable deviation from this policy was in the instance of Mr.
William Bryan, a gentleman of considerable wealth, who was dismissed
from the magistracy, and deprived of all his servants in one day (1833).
Relying on the decision of the judges of New South Wales, he threatened
an action, but the law of assignment being changed,[166] it was quite
within the province of the Governor to recall a servant at any hour. The
discretion of the executive was never brought into legal question; but
the deprivation of a colonist in the midst of harvest, without public
inquiry into any alleged malversation, taught the settlers that their
fortunes were in the hands of the Governor. A London pickpocket required
a long course of instruction; but his services were no longer secure to
his master--a serious drawback from their worth.
The transfer of servants, once convenient to the government, lasted
until 1838, when it was finally abolished. It had been agreed by a
settler, named Silcock, to transfer a servant to Mr. Theodore Bartley:
on the application an endorsement was written--"the consent of the
servant is, in all cases, necessary." This led to a long correspondence,
in which several colonists took part. The settlers contended that, to
require the servant's consent, was inconsistent with his civil
condition; "tended to weaken the sense of submission and control," and
raise him into a dispenser of favors. A large amount of polite
recrimination enlivened this dispute, which perhaps ended as was
best--the last bond was broken.
FOOTNOTES:
[Footnote 159: _Courier_, 1829.]
[Footnote 160: Colquhoun.]
[Footnote 161: Arthur's evidence: _Par. Pap._]
[Footnote 162: _Gazette_, 1825.]
[Footnote 163: Murdoch's evidence: _Par. Pap._]
[Footnote 164: _Sydney Gazette_, 1829.]
[Footnote 165: _Bigge's Report._]
[Footnote 166: The 9th Geo. iv. enacted (omitting superfluous words),
"That any offender assigned _under_ 5th Geo. iv. shall not be assigned
by the master to any other person without the consent of the Governor,
who may as shall seem meet revoke such assignment and grant remissions,
as may be best adapted to the reformation of offenders, and revoke and
renew them as occasion may require, any act of parliament
notwithstanding."]