FOOTNOTES:
[216] Mudie's Felonry.
[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.
[218] Par. Pap.
[219] Sydney Gazette, April 1835.
[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 £15 and £20, 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.