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.