Such has been always the result of capricious severity; and not only to the prisoners--to the ministers of vengeance might often be extended, without injustice, the appalling description.

The administration of law at Norfolk Island was but a choice of difficulties. Special commissions were of late sent down, when cases were urgent or numerous. The temptation to risk life for a release from toil, or the excitement of a voyage, was thus removed. But at this settlement the formalities of justice were but a slight security for its fair distribution. The value of an oath was less than the least favour of the authorities; the prisoners without counsel; the jury taken from the garrison. A convict attorney was occasionally permitted to advise the accused; but in the case of the July rioters such aid was denied, and several who were convicted, died protesting their innocence. During the a.s.size, one judge sat with the military as an a.s.sessor, under the old law of New South Wales; a second, under the law of Van Diemen's Land, which appoints a jury. Capital convictions were thus obtained by a process, one or the other, totally illegal. These would be deemed slight considerations, taken separately; but it is difficult to be satisfied with a trial, in which all, except the judge, may be interested in the prisoner's condemnation. Substantial justice will not be long secure, when its usual conditions are either evaded, or are impracticable. A civilized nation would release the culprit rather than condemn him in haste, and the judge is criminal who smites contrary to the law, though he smites only the guilty.

FOOTNOTES:

[Footnote 247: Despatch of Lord Stanley, 1842.]

[Footnote 248: _Par. Pap._ 1847.]

[Footnote 249: The following was addressed by Westwood, on the eve of his execution:--"Sir,--The strong ties of earth will be soon terminated, and the burning fever will soon be quenched. My grave will be a heaven--a resting place for me, Wm. Westwood. Sir, out of the bitter cup of misery I have drunk from my sixteenth year--ten long years, and the sweetest thought is that which takes away my living death. It is the friend which deceives no man: all will then be quiet; no tyrant will disturb my repose, I hope--WM. WESTWOOD."--_Letter to Rev. Thomas Rogers._]

[Footnote 250: _Correspondence relative to the dismissal of the Rev. T.

Rogers._]

[Footnote 251: "That I may not be supposed to speak heedlessly when I say that the gaol treatment, at the period spoken of, was of itself sufficient to derange men's intellects, I subjoin a few facts in proof of my a.s.sertion, taken from written communications made to me by several respectable officers with whom I am acquainted. The original letters are in my possession:--

EXTRACTS.

_August 6._--Visited the general hospital; found a man named Lemon dreadfully beaten, and having his arm broken. It appears that constable Baldock was taking a man to gaol, charged with either having or using a towel irregularly. He threw his shirt to Lemon, and asked him to get it washed. Baldock would not allow him (Lemon) to have it. Upon this the man Lemon gave Baldock either a blow or, as he says, a push, when a number of constables fell upon him and beat him with their clubs. It was just as divine service was commencing yesterday evening. All the officers and constables left the church, except Mr. Duncan, and the "old hands" made a general rush towards the windows to see what was going on.

Mr. Bott told me he interfered to cause the constables to desist after the man was down, but Baldock said "lay it into him--lay it into him."

While down he was handcuffed with his hands behind him; after this he was taken to gaol and gagged two hours, with his hands chained behind him to the lamp post, having all this time his arm broken! He was then taken to the new gaol, and Stephens sent for the doctor who received him into hospital.

_April 16 (Friday)._--Had a long chat with Dytton. He was chained down to the floor by Mr. ---- order, and had been gagged. I asked the reason: he said for getting up to the window to get some air in the hospital cell, as the doctor had ordered him to have air and he was refused out.

He has been ill at the general hospital--had six or seven weeks'

sickness--has never been well since a beating he received while I was absent from the island. He was then in the chain-gang. Some pegs had been removed upon which he hung his clothes and rations. He abused the gaoler for removing the pegs; was gagged and taken to the new gaol, and chained down; was then dreadfully beaten by six or seven constables. He lay in a puddle of blood. The next day a constable came in and jumped upon him, and severely hurt his chest: he pierced his body with a piece of sharp iron or steel. He showed me a scar on his arm he had received on that occasion. He said Mr. Elliot came to the cell and found him in that mutilated condition, and asked ---- when it was done. ---- replied, "he received a portion yesterday and a portion to-day."

_August 6, 1847._--Visited the gaol. Found Waters strapped down on suspicion of having prevented his eye from recovering. His back was bad, having been flogged, and the cord which laced the straitwaistcoat which they put on him pained him much. His eye was very bad. He was laid on his back, bound unable to stir hand or foot, and in agony of pain from the pressure of his lacerated back on the lacing cord. Having asked to see Major Harrold as a magistrate, he said to the turnkey, "If I am guilty of injuring myself let me be punished; but if not, why am I strapped down?" For saying this he was flogged! He told me that Dr.

Everett said he did not think he had done anything to his eye. I saw him again soon after: he said his back had stunk most offensively, and through the intercession of the turnkey Mr. Price had allowed the cord to be removed; but his hands were chained to the foot of the bed. He had received a sentence of eighteen months on the reef in chains. [Note: Some of these chains were 36lbs. weight; and on the reef the men had mostly to work up to the middle in water.--T.R.]"

"In one of the turnkeys' rooms in the new gaol is to be seen an article of _harness_, that at first sight creates surprise in the mind of the beholder, when considering what animal of the brute creation exists of so diminutive a size as to admit of its use; but on enquiry it will be found to be a bridle, perfect in head band, throat lash, &c., for a fellow creature. There is attached to it a round piece of ironwood of almost 4 inches in length, and 1-1/2 in diameter; this again is secured in a broad strap of leather to cross the mouth. In the wood there is a small hole, and, when used, the wood is inserted in the mouth, the small hole being the only breathing s.p.a.ce; and when the whole is secured with the various straps and buckles, a more complete bridle in resemblance could not well be witnessed. This is one of Mr. ---- instruments for torturing the unhappy and fallen men, and on one occasion I was compelled to witness its application on a poor blind wretch, named Edward Mooney. My duty required my attendance at the gaol occasionally.

I came in one evening after eight o'clock. I was conversing with one of the turnkeys; the notorious ----, who robbed Mr. Waterhouse of 700, was present; he also at that time being a turnkey, holding a third cla.s.s pa.s.s, and in receipt of 2_s._ per diem. Everything was quite still. I could not help remarking how quiet the gaol was, when the said ---- exclaimed, 'there's some one speaking; I know what b---- it is;' and forthwith took from its pegs one of the bridles just described and a pair of handcuffs. I followed him to one of the cells which he opened, and therein was a man lying on his straw mat undressed, and to all appearance asleep. ---- desired him to get up, calling him by his name, and to dress himself. He did so, and came out into the yard, where ---- inserted the ironwood gag into his mouth, and the sound produced by his breathing through it (which appeared to be done with great difficulty) resembled a low indistinct whistle. He then led him to the lamp post in the yard, placing him with his back to it, and his arms being taken round were secured by the handcuffs round the post. As the night was very chilly, I b.u.t.toned his jacket up to the throat, speaking at the same time a few words to cheer him, that brought tears from his sightless eyes, to think that some one felt for his miserable and forlorn condition; and this convinced me still further, that even the most hardened villain can be melted by kindness, however trifling.

Having enquired how long he was to remain in the condition described, I was told three hours!"

"Perkins had another drubbing some time since coming out of church. ---- a prisoner constable, was the first to fall on him, and after him a host who soon covered him with blood and wounds, for not walking in a proper manner out of church. And the commandant allowed this drubbing to stand as a sort of instalment of punishment when the man was brought up for trial. On account of the beating he received a lighter magisterial sentence. Mr. ---- told me one day that the commandant censured the conduct of the constables who complained of some man not opening his mouth to have the inside of it searched for tobacco. It seems they were deemed blameworthy for having in this instance neglected to use violence. 'Why didn't you knock him down like a bullock?' was the interrogatory at Norfolk Island!"--_Correspondence_, pp. 41, 42.

"Before Mr. Price's arrival I resided for twelve months on the Cascade station. Its strength was between three and four hundred men. I have known this station to continue twenty days without a single case requiring the intervention of a magistrate. Within three months after Mr. Price's arrival, I have known forty cases for the police-office on one single morning! Many of the men thus brought up were sentenced to solitary confinement, and sent to the Longridge cells--our own not being sufficient to contain a quarter of them. The Longridge station had a strength of five hundred men, and the united solitary sentences of both stations often trebly filled the Longridge cells. I have frequently found in my daily visits as chaplain from twenty to forty men confined by threes and fours in the Longridge cells, doing what was called 'solitary;'--three men sleeping together on the floor of a cell four and a half feet wide by seven feet long. For pulling a lemon or guava--for laughing in the presence of a convict policeman--for having a pipe--for wearing a belt or b.u.t.ton not issued by government--for mustering in dirty trousers on Sunday, although to wash them the owner would have to go naked all the Sat.u.r.day afternoon--for having half or a quarter of a pipeful of tobacco--for offences the most trivial, and sometimes on false charges--the most inoffensive and best behaved men of Cascade and Longridge were often to be found filling up the cells which might otherwise have been set apart for the custody of some of the grosser criminals who were tried at the a.s.sizes.... The convicts selected as constables were like a ruthless band of predatory a.s.sailants, seizing their fellow-prisoners under any and every pretence, in order to have 'cases for the police-office!' A first-cla.s.s officer overheard the following speech uttered by a convict policeman:--'I have no case for court this morning--what will Mr. ---- say to me? But a case I must have--and a case I will have--and here goes!' This policeman proceeded with another into the bush, and in an hour returned bringing in two men on a capital charge. On the evidence of their captors alone these two men were committed to gaol, tried at the a.s.sizes, and sentenced to death. By whom were the police compelled to such activity? By Mr. Price.

His opinion, publicly expressed, was, that a policeman could not be doing his duty unless he had 'cases for court.'"--Ibid, pp. 88, 89.

"A short a.n.a.lysis of the abstract would quickly strip the favored '25'

of some rays of their infamous glory, and do more to expose the blunders, follies, and ferocious inhumanities of convict discipline than volumes of concocted reports and oracular despatches. From his position, Dr. Hampton must know that under the name of _discipline_, deeds have been done sufficiently atrocious to glut the soul of a Caligula. He knows that the perjuries and punishments about tobacco were sins that cried to heaven for abolition. He knows that in every seven cases out of ten the convicts at a penal station are more sinned against than sinning. Nothing is required to prove this but a critical inspection of their 'police sheets.' In the court-house at Hobart Town, a youth, E---- G----, aged 19, was on his trial for a capital offence. The crown prosecutor referred to the prisoner's _bad character_ as exhibited by the unusual number of offences on his police sheet. The judge asked to see the parchment. While looking at it, G---- said, 'Your honor, the whole of them wouldn't make one ---- good one!' For a few moments the judge continued to examine the record, and then flung it on the floor of the court-house with an expression of disgust at the childish nature of the 'trifling offences' set down as serious crimes."--_Review of Dr.

Hampton's First Report on Norfolk Island: By Rev. T. Rogers._ p. 21.]

[Footnote 252: Despatches, 30th September and 7th November, 1846.]

SECTION XXIV.

But Van Diemen's Land was the chief sphere of the probation system. The colonists, at first, were not indisposed towards the experiment: the promise of an unlimited expenditure and a boundless supply of labor reconciled them to its gigantic proportions. It a.s.sumed the air of philanthropy: Sir John Franklin, when he announced the first outline of the scheme, referred to the redemption of the negro slave, and said--"that England was about to incur a large expenditure in the attempt to emanc.i.p.ate her erring children from the infinitely more degrading slavery of crime."[253] This picture was fully borne out by Sir James Graham, who observed, in reference to the probationer--"New scenes will open to his view, where skilled labor is in great demand; where the earnings of industry rapidly acc.u.mulate. The prisoner should be made to know that he enters on a new career. The cla.s.sification of the convicts in the colony (of Van Diemen's Land), as set forth in Lord Stanley's despatch, should be made intelligible to him. He should be told that he will be sent to Van Diemen's Land: there, if he behave well, at once to receive a ticket-of-leave, which is equivalent to freedom, with the certainty of abundant maintenance, the fruits of industry."[254]

In describing the probation system it is not necessary to do more than state its general aspects and acknowledged results. The publications in the colonies and the official doc.u.ments substantially concur, and with minute controversy history has no concern. To view the subject with the prejudices of a party would be treason to those important interests affected by the question. Crime will still be committed--and its treatment, the great problem of the age, is the business of all men.

The comptroller-general, Captain Forster, who obtained his appointment by the influence of Captain Montagu, entered on his office when Sir Eardley Wilmot arrived (1843), and re-modelled the practical measures of Dr. Milligan, who for a time, under the auspices of Sir John Franklin, had possessed the chief command. Captain Forster was too well acquainted with discipline to entertain the smallest expectation of ultimate success. Among his friends he expressed his distrust without reserve: but believing the home government irrevocably pledged, he concluded that penal philosophy was not his affair; and, not without reason, that he was better qualified than a stranger to mitigate the natural tendencies of the system. He had not been consulted in its structure: he did not hold himself responsible for its errors or results.

During four years, ending in 1844, more than 15,000 prisoners arrived: in 1847, there were, in all, 30,000. Free emigration was stopped. In 1842, 2,446 emigrants landed; in 1843, 26; in 1844, only 1.[255] The greater number of transports under short sentences became almost immediately eligible for hire, who were at first preferred by the farmers to free men. The free laborers rapidly retreated to the other colonies. Gangs of probationers were formed throughout the country.

Their locations were chiefly selected with reference rather to their easy accommodation than their useful employment. A few large gangs were established beyond the settled country, but the greater part were lodged in the old buildings erected for the use of road parties, and ill-adapted for either moral or industrial operations.

Van Diemen's Land was supposed by the crown to be peculiarly fitted for the experiment: an area nearly equal to Ireland, occupied by little more than 50,000 inhabitants, appeared to offer ample room for the stations.

It was not considered that the free population was condensed chiefly within a line of country between the Derwent and Tamar, or on the borders of those rivers; and that however a temporary location might be chosen, the settled districts must ultimately absorb the pa.s.s and ticket holders. Most were within a few hours, nearly all within a day's journey of the free population. The ample supply of food; a system of moral training, which devoted considerable time to books and pencils; a decided discouragement of strictness in discipline and severity in punishment, removed the temptation to rebel. The chief grievance of the prisoners was the prohibition of smoking, often indeed evaded by the connivance and a.s.sistance of the overseers; yet, while at some stations indolence and plenty prevailed, at others, remote from the public eye, misery and vice existed to an extent too awful for more than mere reference. At the coal mines the men were robbed of their provisions by their fellow-prisoners; new clothing was not issued until they were in tatters; hundreds were without shirts, scores without shoes, and some only wrapped round with rugs (1843). These evils were certainly not lasting; but they have been by no means unfrequent at stations remote from the capital, and from the notice of the press.

The colony did not afford a sufficient corps of able and conscientious superintendents: many were military and naval officers, qualified to control, but utterly unable to instruct. The quiet movement of the vast system was earnestly desired by the local government: its effects would, of course, be inferred from the absence of punishments; and it was understood by the lower officers, that the shorter their black lists, the more agreeable their periodical reports. It was stated by the comptroller that they were engaged to carry out the system, not to condemn it; and disaffection ended in dismissal.[256]

The rapid increase of numbers disconcerted the comptroller. The new arrivals were sent to crowd the stations of their predecessors: order, and even decency, were impracticable. The accommodation of the officers was often miserable: too distant for proper inspection.

As the men removed from Norfolk Island were added to the gangs, their tendencies became more alarming and apparent: they were of the worst possible description, and defied all remedy.[257] No artifices of language will enable the moralist to describe them.

The mean pay of the officers, their uncertain tenure of office, and the nature of their duties, would only attract candidates for employment as a temporary expedient. The control of considerable bodies of men, under favorable circ.u.mstances, demands both vigilance and firmness. The prisoners perceive, almost at a glance, the character of their superiors: their history and habits are the theme of constant inquiry and discussion. An equal temper and unwearied attention are required in this arduous occupation. But the persons engaged were often wholly disqualified by their past pursuits and personal character, to inspire either awe or respect. The practical oversight was often committed to the least responsible.

The religious instructors selected by the government, though chiefly of the episcopal or catholic professions, were of miscellaneous origin. The clergy of all persuasions were formerly admitted to the road parties; their discourses were welcome, for they gave an interval from toil: some performed service on the sabbath at their own charge. The new instructors were strictly official: some, indeed, highly educated men, of long standing in their respective churches; others were the off-shoots of various sects, without education or personal dignity. Of their qualifications, several high officers have spoken with contempt.[258] These opinions were, however, partly the indirect result of disputes, in which the instructors were very generally involved.

Several were known to convey accounts of evils within the stockades, which it was the desire of the department both to conceal and to suppress: notwithstanding, many were deficient in zeal and ability.

Their labors were strictly formal, and were soon considered hopeless.

Several exceptions must be understood; but to select them would be invidious. The exclusive occupation of clergymen as teachers of convicts, is generally unfavorable to their usefulness: the recognised pastor of a congregation brings to the prison the reputation and sanct.i.ty of his character among the free; the instructor of a gang is soon considered but as the agent of penal government.

The basis of Lord Stanley's system was an imaginary demand for labor in Van Diemen's Land. The home government was so confident in this resource, that placards were suspended on the English prisons, holding forth the prospect of high wages as the final stage of transportation.

The execution of public works in the colonies, except at an equivalent price, was strictly prohibited. By improving the settled parts of the colony, the crown might have increased its attraction to capitalists, and by diverting an excess of laborers excited the compet.i.tion of masters. The governor was desirous of allaying colonial irritation by some substantial boon: the orders of Lord Stanley were, however, rigid.

The comptroller-general was forbidden to adopt any detailed regulation at variance with the scheme prescribed by the crown, or to alter or depart from its provisions, without express authority.[259]

The demands of the settlers for laborers soon fell far short of the supply. The written contracts for the pa.s.sholders in the first stages of service bound the master to pay over a portion of their wages to the crown: this course was troublesome. Thus few, except in the last stage of their service, were able to obtain employment at all; and the graduated scale of payment fell to the ground. The acc.u.mulation at the hiring depots, sometimes to the number of 4,000, who could obtain no engagement, induced the governor to urge their useful employment in public works. He stated that neither private individuals nor the colonial treasury could afford to employ them in improvements of prospective utility, and recommended that a fixed moderate payment should be accepted, in return for the service they might perform. The reply of his lordship was decided:--"If," he observed, "the free inhabitants cannot purchase the labor we have to sell, at a price which it is worth our while to accept, it remains for us to consider whether other advantageous employment cannot be found." "The necessaries of life may be produced to such an extent, as to render the convicts independent of the free colonists, who are not ent.i.tled to claim any compensation for the inconvenience with which their presence may be attended." His lordship proposed that new lands should be surveyed, cultivated, and sold for the advantage of the imperial treasury; and thus the government might a.s.sert "its independence of the settlers," and teach them to "appreciate correctly the value of convict labor."[260]

The defiant tone of this despatch, and its contemptuous reference to the settlers, determined the question of transportation.[261] The partizans of abolition could a.s.sail the system at its foundation. Thenceforth the interests of the colonists, moral and material, were obviously one. The crown was to compete in the market with the farmer and the landowner; and the labor market to be overruled by official contrivance, for the benefit of the imperial treasury.

The colonial newspapers were filled with notices of robberies, and the complaints of employers. A rapid emigration took place: free laborers and mechanics sold their properties, acquired by years of toil, often for a trifling sum; and the immigrants, brought to the colony at great public and private cost, almost universally pa.s.sed over to the adjacent communities.

The comptroller-general attempted to carry out the supplementary plan ordered by Lord Stanley. Agricultural establishments were formed; but this only provided for the probationers. The pa.s.sholders were ent.i.tled to enter the service of the settlers. To detain them twenty miles from the nearest farm-house, was to extend indefinitely the first stage of punishment; but when drafted to the settled districts, they could not be employed,[262] except for the benefit of the colony, and against this resource the decision of Lord Stanley was imperative.[263]

The hiring depots were placed in settled districts or chief towns. The stage of rigid discipline being past, the convicts were not required to labour with diligence, or suffer much restraint. They were now deemed fit for society, and it was merely the fault of their numbers that many were unemployed. They were permitted to roam about in search of casual employment--to spread themselves over the country. They were allowed to expend the money they acquired in temporary service, and while any remained they were unwilling to accept an engagement. Thus they were fed and clothed, and lightly worked: they were free from care, their time was running out, and they were objects rather of envy than commiseration.

The official reports of the probation system forwarded to Downing-street, were not unfavorable. Lord Stanley a.s.serted in his place, "that from all he could judge the system had been productive of the most beneficial results, and that the general conduct of the convicts had been most satisfactory;"[264] but in his despatch to the governor, he complained that, amidst an abundance of statistics, the notices of moral success were "slight, unimportant, and few."[265]

The operation of the system was, however, well known to his lordship.

The under-secretary, Sir J. Stephen, with extraordinary exactness, described the actual condition of the prisoner population--"living, not by a healthy compet.i.tion for employment, but by an habitual and listless dependence on the public purse." He depicted the apathy and indolence, the low tone of moral feeling, the lamentable and degrading habits which prevailed; and a.s.serted that in the hands of Lord Stanley, were proofs of an existing state of convict society, such as would be contemplated with deep solicitude. It may not be impossible to reconcile in detail these official and parliamentary declarations; but, taken alone, they would lessen our confidence in the value of ministerial explanations, not less than in official reports.

The comptroller-general stated that the system would not only prove beneficial to Great Britain, but work a great moral reformation in the convict population:[266] "that it had fully answered its object." These a.s.sertions were confirmed by the governor, who remarked, "that the men behaved as well as possible." Such views were strongly opposed by other testimony; among the most conspicuous was that of Dr. Hampton, surgeon-superintendent of the _Sir George Seymour_, who, charged with the care of a party from Pentonville prison, resided some time in the colony. He described the prisoner population as sunk in the deepest debas.e.m.e.nt; the ticket-holders in great misery; the reformed prisoners committed to the charge of felons; the better disposed taunted as "pets, psalm-singers, and Pentonvillains." Whatever had been most strongly affirmed by the enemies of the system, was amply sustained by his testimony.[267]

To the same effect was the evidence of Mr. Boyd, formerly of Pentonville, and appointed an a.s.sistant-superintendent to Darlington, Maria Island. This station was regarded by the government as superior to all. Separated entirely from the free population, it was accessible only by authority; yet close to head-quarters, it had the advantage of direct inspection and control. There were, at this time, 800 persons subject to twenty-one officers, civil and religious. Not a single soldier was on the island, and yet there were "no prisoners more orderly, or better behaved, in Van Diemen's Land."[268] This reputation it maintained, while the stations of Rocky Hills and Broad Marsh, were infamous for the abandonment of all order and decency. "Few could be favorably compared with Darlington, and none possessed its local advantages."[269] But the interior, as described by Mr. Boyd, entirely changes the scene. He declared the precautions against corrupt intercourse insufficient and unsuccessful: the most disgusting language was common; h.o.a.ry villains and boys were worked together; the school books were torn and defaced; education was mere pretence; a large proportion of offences were unpunished; lashes were received in hardened indifference; the criminal habits of the men were unbroken; conspiracies to murder were frequently denounced. On the whole he concluded, that there could exist no better school of crime than a probation station.[270]

The laxity which prevailed was everywhere confessed, except by the immediate dependents of government. The Rev. Mr. Fry, a clergyman of Hobart Town, differed, however, with the colony in general. His earnest defence of the probation system (1845) was published by command, and quoted by Lord Stanley in the House of Lords. He a.s.serted that the convict population had placed the settlers in ease and opulence; and that the bulk of the colonists were emancipists, who were bound to a.s.sist the condemned outcasts of Europe to acquire honesty and independence. "The clank of chains," said the reverend gentleman, "is now seldom heard, and the deportment of free laborers, grateful and respectful, has succeeded to the scowl of malignity, with which the a.s.signed white slaves regarded their owners." He a.s.serted that the gangs recalled the men from intemperance; that they were attentive to religious teaching; that the parties, although almost abandoned to self-discipline, yet lived tranquilly, unawed by surrounding force.