SECTION XI.

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."]

The History of Tasmania , Volume II · 第 11 / 28 章