Prisons Over Seas / Deportation and Colonization; British and American Prisons of To-day

by Arthur Griffiths

Nevertheless it must be confessed that the condition of convicts could not be irksome when soldiers envied it, and committed crimes on purpose to become felons too. This was proved in the case of certain soldiers who had turned thieves in Sydney simply that they might be sentenced to transportation. They were caught, convicted, and sentenced to seven years at Moreton Bay or Norfolk Island. Had their story ended here the bare record of it might suffice, but it so happened that very serious consequences ensued, and these I cannot refrain from recounting. As it came out quite clearly upon their trial what had been the object and design of their theft, Governor Darling resolved that they should be treated with extra rigour, "it being an intolerable and dangerous idea that the situation of a soldier was worse than that of a convict or transported felon." The seven years at a penal settlement was therefore commuted to seven years hard labour in chains on the roads of the colony. The intention of this change was doubtless that their old comrades should sometimes see them as they were marched to and fro; but besides this, it was ordered that at the end of their sentence they should return to their regiments. Therefore, after the proceedings of the trial had been promulgated, the prisoners were publicly stripped of their uniforms, iron collars with spikes projecting were placed around their necks, from which iron chains hung and were fastened to basils on their legs. Thus arrayed they were drummed out of their regiment (the 57th) to the tune of the Rogues' March. Under the horrors of this punishment one man, Sudds, immediately sank, and died the following day. The survivor then made a statement to the effect that Sudds complained bitterly of his chains. The projections on the collar prevented the prisoners from stretching at full length when lying on their backs. They could not lie at full length without contracting their legs, nor could they stand upright. The collar was too tight for Sudds' neck, and the basils too tight for the other's legs.

In reporting this whole case to the Secretary of State, Governor Darling says, "However much the event is to be regretted, it cannot be imputed to severity; none was practised or intended.... With respect to the chains which are designated instruments of torture, it will be sufficient to state that they weigh only 13 lbs. 12 ozs.; and though made with a view of producing an effect on those who were to witness the ceremony, the extreme lightness of their construction prevented them from being injurious in any respect to the individual." On the other hand, Laing says the irons usually made for the road gangs in the colony did not weigh more than from 6 to 9 lbs.; while those brought out for convicts on board prison ships from England weighed only from 3½ to 4 lbs.

Following all this came vituperative attacks in the press. Papers inspired by the government defended General Darling, and the fight was long and bitter. One result was the passing of several acts known as "Gagging Acts," intended to check the virulent abuse perpetually aimed at the government, but they failed to have the desired effect. Governor Darling grew more and more unpopular, and on leaving the colony he was threatened with impeachment. A Parliamentary commission did, eventually, inquire into his administration, and completely exonerated him from all charges.

Speaking of the trial and sentence of these soldiers, Laing observes,—"It would be unjust to consider Sir Ralph Darling's sentence by the light of public opinion in England. He was governor of a colony in which more than half the community were slaves and criminals; he had to arrest and punish the progress of a dangerous crime; but he fell into the error of exercising by ex post facto decree, as the representative of the sovereign, powers which no sovereign has exercised since the time of Henry VIII, and violated one of the cardinal principles of the British Constitution by rejudging and aggravating the punishment of men who had been already judged. At the present day it is only as an historical landmark that attention can be called to this transaction, which can never be repeated in British dominions." It is more than probable that, as a military officer of rank, he was doubly disposed to reprobate the offence recorded. All his soldierly instincts were doubtless hurt to the quick by the notion that the private men of an honourable profession preferred an ignominious sentence to service with the colours of their corps. From this came his uncompromising attitude, and the seemingly unjustifiable violence of his measures.

But except in this one instance, Sir Ralph Darling proved himself an efficient administrator. His sympathies were certainly with the "exclusionists" as against the "emancipists;" and therefore, by the latter and their organs, he was persistently misrepresented and abused. But he was distinctly useful in his generation. A most industrious public officer, he spared himself neither time nor trouble. Every matter, however unimportant, received his closest personal consideration. He may have made mistakes, but never through omission or neglect; besides which, he introduced order and regularity in the working of the state machine. Method followed disorganisation; ease and freedom, where before had been friction and clogging interference between its several parts. One of his earliest acts had been to regulate the system of granting land, which under the previous administration had fallen into some confusion. It was he who established a Land Board, and who ruled that grants were to be made to people only according to their means of improving the acres they got, and not as heretofore, simply in answer to mere application.

In these and other useful labours the lead he gave was consistently followed by his immediate successor, Sir Richard Bourke, who came to the colony in December, 1831. Although by the extension of the colony the personal character of the governor was no longer of such paramount importance as in earlier days, the arrival of an efficient administrator was a distinct benefit to the whole settlement. Sir Richard Bourke was unquestionably a man of character and vigour. The measures he introduced were all salutary. Not only did he encourage free immigration, but he made fresh laws for the distribution and coercion of the convict population. His regulations for assignment—to which I shall refer directly—were wisely planned; and the reforms he introduced in the constitution of the courts of justice were as sensible as they were necessary. He had found that the decisions of local magistrates in the cases of the misconduct of convict servants were extremely unequal: some were ludicrously lenient, others out of all proportion severe. He thought it advisable to establish some uniform system by which magistrates should be guided in the infliction of summary punishments; and he passed, therefore, an act known henceforth as the "Fifty Lashes Act." This substituted fifty lashes for the first offence cognisable in a summary way, in lieu of one hundred and fifty; and made the powers of a single magistrate somewhat less than those of a bench of two or more. At the same time it was ruled that a "cat" of uniform pattern should be used in every district. "Each bench had before superintended, or left to its inferior officers, the construction of its own scourges, which varied according to accident or caprice; nor could it ever be ascertained by the mere number of lashes ordered what degree of pain the culprit was likely to have suffered." This restriction of their power was not palatable to all the magistrates, and petitions were presented to His Excellency, protesting against his new act. They urged that now their authority was utterly derided. "Such a feeling," says Sir Richard, commenting on their petition, "is not to be considered extraordinary, as it requires much judgment and moderation to overcome the instinctive love of power.... The magistrates who felt the diminution of their power as a grievance may perhaps have been excited to expressions of complaint by the annoyance to which, in their character of settlers, they are exposed from the misconduct of their assigned servants. They do not perhaps consider that the natural dislike to compulsory labour, which is part of human nature, and has existed and ever will exist under every form or mode of government, must offer great difficulties to those who seek to carry on their business by such means. Severity carried beyond a certain point, especially towards men of violent and turbulent feelings, will only tend to inflame this indisposition to labour with more dangerous acts of desperation and revenge."

However, to give the petitioners no just cause for complaint, he instituted a formal inquiry into "those circumstances connected with the discipline of the prison population which formed the subject of the petitions." Reports were called for from the police of the several districts. From them it was clearly apparent that fifty lashes with the new cat were quite enough for any one, provided they were properly administered. "The sufficiency of the law and of the instrument of corporal punishment, in all cases where proper superintendence is exercised, being thus established on unexceptionable evidence," His Excellency considered it would be inexpedient, nay, dangerous, to add to the severity of either, "merely because, in some instances, the wholesome vigour of the existing law has been impeded by a negligent or corrupt execution. In reading the reports which have been presented, the governor could not fail to observe that where punishments have been duly inflicted, the power of the magistrates has been anything but derided. While perusing these painful details, His Excellency has indeed had abundant reason to lament that the use of the whip should of necessity form so prominent a part of convict discipline in New South Wales; but believing it to be unavoidable, the governor must rely on the activity and discretion of the magistracy for insuring its wholesome and sufficient application."

The clear-sighted policy adopted by Sir Richard Bourke in carrying out the last mentioned reform was no less observable in his treatment of the question of assignment. The system by which servants were assigned to settlers was undoubtedly not altogether free from abuses. It was alleged that successive governments worked it quite as a source of patronage to themselves. Governor Darling had however established an assignment board, which to some extent equalised the distribution of the convicts among the settlers. But it remained for Sir Richard Bourke to put the whole question on a thoroughly satisfactory footing. The rules he promulgated did not make their appearance till he had been four years in the colony; after he had gained experience, that is to say, and time to consider the subject in all its practical bearings. Excellent though they were, they were rather late in the field. From the date of their appearance to that of the final suspension of transportation there were but five years to run. The pains taken by Sir Richard Bourke are evident from his despatch to the Secretary of State for the Colonies, dated June, 1835. He observes, "My chief object in this measure has been to substitute for the invidious distinction hitherto more or less vested in the officers entrusted with the duty of assigning convicts to private service, strict rules of qualification, intelligible alike to the dispenser and receiver of penal labour, and from which no deviation shall be permitted. It is not until after much delay, and after maturely weighing the suggestions of the various parties, that I have ventured to deal with this important and difficult subject."

The main principle of the new regulations was that servants were to be assigned solely in proportion to the land the masters occupied. A carefully prepared scale was drawn up fixing this proportion, which, speaking roughly, was at the rate of one servant per 160 acres of ordinary land, and one per 20 acres under plow or hoe culture. At the same time it was ruled that, as all mechanics were more valuable than mere labourers, each of the former should be equal to two and sometimes three of the latter. Thus one blacksmith, bricklayer, carpenter, or cooper, counted as three labourers; while a plasterer, a tailor, shoemaker, or wool-sorter, counted only as two. An entirely new process of application for these servants was also laid down. A special sessions was to be held in every district in September, for the purpose of receiving and reporting on all such applications. It was the duty of the magistrates in sessions to "inquire into the correctness of the facts stated in each, requiring such evidence thereof as to them shall seem proper; and they shall in no case recommend the claim of any applicant unless perfectly satisfied of the truth of the statement on which the application is founded."

Over and above this they were also required to look into the moral qualifications of the assignee. They were not to recommend any person "who is not free, of good character, capable of maintaining the servants applied for, and to whose care and management they may not be safely entrusted." Had this regulation been enforced at an earlier date the system of "assignment" might have been worked with greater success. The applications having been duly passed at sessions were then forwarded to the assignment board at Sydney. Throughout, the greatest care was taken to prevent underhand dealing: when eventually the time for actual assignment arrived, it was done by drawing lots, or rather numbers from a box in the office of the assignment board, and it was impossible for the officials to show favour or affection even had they been so inclined. The whole spirit of these regulations was thoroughly equitable and straightforward. The only object was to be fair to every one. Thus the land qualification was not insisted upon in the case of tradesmen who wanted assistance in their own calling; and respectable householders were also allowed to obtain indoor servants, though without an acre of land in the colony. With these rules were included others requiring masters to remove their servants without delay, and establishing certain pains and penalties against contravention of the new law.