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.]