Lord Melbourne held a consultation with Mr. Stanley. He suggested that the increase of crime had arisen partly from ignorance of the actual consequences of transportation. He requested him to reflect upon this topic, and to determine whether it might not be proper to send transgressors through a more rigorous discipline on their landing, and to stop the comparative ease and comfort it was customary to enjoy.[196] Mr. Stanley undertook to contrive a scheme, which should terminate the indifference with which banishment was regarded. He had said that he would render the punishment of transportation more dreaded than death itself. At his suggestion Lord Melbourne addressed a letter to the judges, and requested them, when on their circuits, to explain the extent of torment which banishment included; to select such as they might deem it proper to separate to a more terrific form of punishment; and to declare, in a public manner, the degree of severity which would follow a particular sentence.

It was determined that the more hardened should be confined at Norfolk Island or Macquarie Harbour; and that no prisoner for life should be withdrawn from a penal settlement, until seven years of his sentence was passed, or until one-third of a shorter period was completed. Then drafted to the roads: after wearing chains a further five years, he might be assigned to a master, and commence his probation. The less guilty were to join the road party at once, and in seven years be liberated from their chains. Mr. Stanley forwarded sixteen persons in the Southwell, whom he directed should be kept in chains for the first seven years of their bondage. He thus established the system, distinguished as the "certain and severe" in the orders of government; and for several years described by the journals, as the "worse than death" system of Mr. Secretary Stanley.[197]

The object of Stanley was to invest transportation with novel terrors, and to give a more tragic aspect to the law. He did not, however, reflect, that he who has destroyed hope has also made the despairing worthless; that the victim will have recourse to violence or insensibility—that when he cannot rupture he will hug his bonds. He did not perceive that no Englishman would accept the service of a felon, who for twelve years had experienced the misery of chains—that it was not as prisoners, but as husbandmen, that the poachers and rioters of England were acceptable to the Australian farmer; who was reconciled to penal slavery, only when disguised under semi-patriarchal forms.

The change proposed by Stanley was greatly disliked by Arthur. It was the reverse of his system. Whatever influences were brought into action by agricultural service, would be lost in a gang. He foresaw the despondency, the oppression of the prisoners, and the gradual alienation of the colonists. Arthur referred Stanley's despatch to the executive council, with his own rejoinder. His system of twelve years bondage and chains was unanimously reprobated: the council concurred in the opinion of the Governor, that it would break up the gradations of punishment; and unless sustained by a large reinforcement of military, endanger the public safety and produce habits of outrage and revenge.[198] Whatever influence these representations possessed, the plan was abandoned of necessity. The chief justice of New South Wales advised the Governor that the law had not authorised the arbitrary addition of chains to a sentence of transportation—to increase the misery, not to add to the safe keeping of the prisoners. Such, on reference, was the opinion of the English legal authorities, and the men in irons were released.[199]

Whatever the motives of Lord Stanley, the transmission of such an order, without ascertaining the authority under which it was issued, was a serious official error. It is probable, that the persons injured had no means of appeal, and deserved no redress; but when it is remembered, that the law does not profess to determine the moral enormity of an offence by the extent of punishment, to aggravate a penalty which the legislators deemed equal to the crime—avowedly to make it more terrible than death itself—was a stretch of official power, which can scarcely be explained.

St. Paul denounced the judge who smote contrary to the law. Mr. Stanley's encroachment on the functions of legislation was only more defensible because less corrupt. To repress colonial disorders, the local government had, indeed, grafted the penalties he prescribed on the colonial statute book; but the despotic interference of a secretary of state was specially objectionable. Persons sentenced to transportation for political or agrarian crimes, were not unlikely to provoke the personal hatred of ministers, and therefore to suffer a vengeance beyond the intention of the judges, or the spirit of the laws.

To render corruption more difficult, the power of the governors was limited by statute. They had granted tickets-of-leave for the discovery of outlaws, the detection of serious crimes, and any service of great public utility. They had been often swayed by feelings of humanity in hastening the liberation of men, whose families required their care; but an Act "for abolishing the punishment of death in certain cases,"[200] not only fixed the time when prisoners should be capable of tickets-of-leave, but abstracted the chief advantages a ticket conferred. They were excluded from the protection of civil laws, and thus thrown on the mercy of any who might employ them. These clauses were introduced by Lord Wynford (Sergeant Best), and were intended to equalise the punishment of offenders, and to prevent an early enjoyment of plunder. This restriction was, however, practically unjust. The grant of a ticket-of-leave was to enable a man to procure a livelihood: to deprive him of legal resource, was to invite the swindler and the cheat to make his earnings and acquisitions their prey. The local courts had hitherto resisted the injustice by evasion: a record of conviction being required to stay a civil action; although in the criminal courts it was sufficient to prove that the person accused had been dealt with as a transported offender.

Lord Wynford's Act made no such distinction. Its provision, probably the result of inadvertence, was so palpably a contradiction, that it was never acted upon in Van Diemen's Land, and was earnestly deprecated by all classes. To grant a prisoner liberty to seek subsistence, and yet suffer any fraudulent person to deprive him of his just wages, could arise only from that confusion of ideas, too common in legislation on the subject.

FOOTNOTES:

[187] "It can scarcely be doubted, that the main body of convicts are under mental delirium—they see and appreciate every thing through a false medium; and as, from long experience and close observation, the Lieutenant-Governor is confident that a firm and determined, but mild and consistent supervision, is the very best to be followed, in order to remove the infirmity under which they labor, it is the treatment he enjoins shall be uniformly observed!"—Regulations issued to the Roads' Department.