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The following extract is taken from an article, entitled ‘Secondary Punishments’, published in The Law Magazine; or or Quarterly Review of Jurisprudence, for January, 1832; and April, 1832. Vol VII, Saunders and Benning, London, 1832. The author was simply attributed as ‘L’. It deals with The Report From Select Committee on Secondary Punishments, House of Commons, 1832, and, although long, gives a good insight into the system at the time and attitudes towards it.
pp. 7-44.
“In all cases where death is not inflicted in consequence of the sentence of a court of justice, the punishment is either - 1. Transportation to the colonies for life, or for a term of years: 2. Imprisonment with or without hard labour; or 3. Fine. The last of these punishments, whether inflicted singly or in conjunction with imprisonment, is only applicable to inferior offences committed by persons of property, a class of so little extent and importance, that we shall take no further notice of it, and proceed to consider the two great weapons of our penal armoury, transportation and imprisonment.
“The system of transportation appears to have arisen from two sources: 1. The difficulty of disposing of condemned criminals in the mother country; and 2ndly, a notion that criminals of a certain class who ought to be eradicated from the community, and that banishment removes them from the country. A trace of the latter opinion may be found in the words which are sometimes addressed by the court to the prisoner, that ‘he is not fit to remain in the country:’ as if some advantage accrued to the public from his exile rather than his imprisonment.* [Footnote - * See the Evidence of Mr. Chesterton, governor of the House of Correction in Coldbath Fields, Q. 517-20, who thinks that all confirmed thieves should be sent out of the country, as there is no hope of their amendment, in order that they may be got rid of. He does not perceive that by this means the evil exists, and in a very aggravated form; only that the colony suffers, and not the mother country. Also Captain Hall’s remarks, Travels in America, vol i. p. 62.] In Justice, however, to the first introducers of this system, it must be said that at the beginning transportation was probably a very different thing from the punishment which now bears that name.* [Footnote - * See Wakefield, Ev. 1443, and Major M’Arthur’s remarks, Rep. p. 145.] As at present constituted, its nature appears to be as follows : -
“When it is finally determined that a criminal is to be transported to New South Wales, he moved in a caravan, under a proper guard, to the coast, in order to be embarked in a convict ship. This necessity of moving prisoners to long distances from the place of their confinement is, of itself, an evil and an expense, and, in times of disturbance, might become a matter of serious difficulty. However, among the evils of the entire system, this holds a very subordinate place. From the evidence of Dr. Rutherford, who has sailed seven times to New South Wales as surgeon of convict ships, it appears that about 200 convicts go out together;* [Footnote - * Mr. Wakefield states, in his evidence, that ‘during the first four or five years of the existence of the colony of New South Wales, the contracts for the transportation of prisoners were made for so many embarked in England, not for so many disembarked in the colony; the consequence was, that the captain of the transport had a direct interest in killing his prisoners, and the fact was that, as to a great number of ships, one-third - as to a considerable number, a half - and as to some, two-thirds of the prisoners died on the passage.’ - Q. 1573.] that mutinies are not infrequent; that the convicts enjoy generally good health, are well fed, are not ironed, do little work, have free intercourse with each other, and (as may easily be expected) their conduct is reckless and careless; they amuse themselves with stories of their past life, and glory in the remembrance of their misdeeds: the natural consequence of which is, that any stray remnants of virtue and good feeling which some of the crew may possess at starting, are effectively eradicated before the ship reaches its destination.* [Footnote - * Evid. Q 1052-9. 1095-6. His answers, 1045-9, do not agree with the evidence of most of the other witnesses: but it is very probable that the state of suspence [sic] in which the prisoners are kept before they land in New South Wales, from an ignorance of the precise lot which will befal [sic] them, may make them anxious and uneasy.] When so large a body of criminals are crowded indiscriminately into so small a space for so many months, without being forced to work, and having no diversion except conversation with each other, a much less proportion of depraved and reprobate persons than is commonly to be found in such a number of convicts, would be sufficient to leaven the whole mass with one uniform taint of depravity.
“When the convicts arrive in New South Wales, the term of their regular punishment commences,* [Footnote - * It is suggested by the committee that the voyage itself is considered a punishment (Q. 1068.); but we cannot see in what the condition of the convicts differs from that of soldiers on board a transport. They are put under no restraint, they associate together, and none, except tailors, carpenters or joiners, do any work.] and they are severally disposed of in different manners, according as they belong to one of the classes of 1. Gentlemen convicts; 2. Mechanics; 3. Common male convicts and 4. Women.* [Footnote - * See Mr. Busby’s Observations, Report, p. 125.] Now the punishment which all convicts suffer in New South Wales for crimes committed in the United Kingdom, may be described in a word, as domestic slavery. They are placed in precisely the same situation as the working classes in the ancient states, and in the West Indies; that is, they have not their personal liberty, and they are maintained by those who profit from their labour, to which they are forced by the dread of punishment, not induced by the prospect of a reward. The local government of New South Wales, is, therefore, in the situation of a large slave-merchant: with this difference, however, that it gives away slaves for nothing, on condition that the master will defray the cost of their maintenance. This being, of course, a very advantageous bargain for the settler, on the arrival of every convict ship, the government finds itself possessed of the patronage of giving away the services of several hundred slaves. There are, as might have been expected, complaints of abuse and favouritism in the disposal of this patronage,* [Footnote - * Major M’Arthur, 1624. Mr. Scott, p. 146.] which, whether well or ill founded, are in themselves an evil, and an evil necessarily attendant on a system of transportation. The convict-women are allotted to private individuals as domestic servants: and with them there is no difficulty, as, on account of the great disproportion between the sexes, caused by the unnatural manner in which the society has been formed, females are at a great premium in New South Wales. But the class of gentlemen convicts (as they are called), i.e. persons who in England belonged to the upper or middle ranks, being devoid of mechanical skill, and unfit for common agricultural labour, occasion a greater perplexity. At one time, a penal settlement named Wellington Valley was made in the interior at a distance of about 250 miles from the coast, where the gentlemen convicts were employed in light agricultural work, such as tending sheep, and were thus removed from the society and luxuries of the towns. This measure being the means of inflicting a much severer punishment than that usually endured by the upper classes of convicts, had the effect of spreading great alarm among criminals of the same rank in London who were lying in prison under sentence of transportation,* [Footnote - * ‘Some returned convicts brought an account of their having been sent to Wellington Valley, and speaking of it, they called it the “Swells” settlement, the gentlemen-convicts: and it created a great deal of apprehension in the minds of this class of persons, clerks, and others convicted of forgery and embezzlement.’ - Wakefield, Ev. 1453.] and we may reasonably suppose, among other persons, meditating crimes which would entail the same consequences. The establishment at Wellington Valley, however, having proved expensive, was discontinued,* [Footnote - * On Wellington Valley, see Busby, 1181-87. 1203-8. Rep. 135.] and gentlemen-convicts have now returned to their former state of comfort and enjoyment; that is to say, they are employed as clerks in the government offices, or given as tutors to private families:* [Footnote - * Dr. O’Halloran, a convict, kept an academy at Sydney, (Walker, 996) Thus these persons corrupt, not only the grown, but also the growing generation.] their whole time, except when occupied with business, being at their own disposal. Of those who are employed as tutors, Mr. Busby, who held an official situation at New South Wales, states that ‘as far as regards the necessaries and many of the comforts of life, they are exceedingly well off.’ (Ev. 1198.) Any annoyance to which these persons are exposed who have the command of money, is probably removed by means of an amicable arrangement either with the subordinate officers of the government, or with the master to whom the convict is assigned, for Mr. Wakefield states that, ‘he knows that what are called “respectable convicts” under sentence of transportation, and really expecting to be transported, make the greatest exertions to have money remitted, on their account, to merchants in the colony, and for the express purpose of paying for indulgence.’* [Footnote - * On the Punishment of Death, 192.] Speaking of the same class of persons, Mr. Potter Macqueen says : -
“ ‘In order to keep down the expenses of the colony to as low an ebb as possible, the different governors have preferred employing men of this description as clerks in government offices, to having regularly salaried persons of free character; of course they knew that persons so placed were amenable to any punishment they might have inflicted. But the evil it has produced in the system has been, that those persons being able to live much in the same kind of manner as formerly (for they all had tickets of leave the moment they were placed in this position), they assumed a formidable rank in society; they acted together; they found the freemen and officers in different regiments would not associate with them, looking on them as convicts, and they were in a different situation from agricultural labourers; those have been the disaffected persons who have been continually at variance with the government, and who have caused very considerable impediments to the general operations of that government.’ Q. 1760.* [Footnote - * We recommend the following passage in Mr. Macqueen’s Evidence to the study of all persons interested in the amendment of the law of real property, either in England or the colonies. Having mentioned the frequency of concubinage in New South Wales, he proceeds to declare that ‘he has no hesitation in saying that, in a very few years, this country will be compelled to pass some law of indemnity to enable a transfer of property from persons of this discription, who, having natural children to leave it to, can make no form of conveyance.’ Q. 1361. A bill of indemnity to enable persons having illegitimate children to make a conveyance by will, must certainly be considered as rare, if not altogether unheard-of phenomenon in the annuls of legislation.]
“In his report too, Mr. Busby states that, ‘as from an unwillingness to force the upper class of convicts into an association with the lowest class by confining them in the common barrack, it has been usual to allow them to provide themselves with lodgings, their situation has in most cases been so comfortable as to be divested of almost every appearance of punishment.’ Report, p. 125.
“The knowledge and talents of these persons enable them to accumulate wealth, after the expiration of their term, and to form a political party opposed to the government and the free settlers. From all these circumstances Mr. Busby very justly infers that ‘The transportation of this class of offenders, while it inflicts a great evil upon the colony, affords no means of effectually punishing their crimes during the period of their bondage: and so great are the means of bettering their circumstances by enterprize [sic] and industry after its expiring, or after a prescribed period of good conduct, that the dread of incurring the sentence certainly proves, in the majority of cases, no check upon the commission of crime.’ Report, p. 126.
“The two other classes of convicts do not create any difficulty in a colony where manual labour is more valuable than intellectual labour. The mechanics are usually taken by the government to be employed in public works, and are distributed in Sydney and the other towns. Most convict mechanics are at first landing induced to conceal their skill, either by a belief that if they are taken into the service of government, they will not so soon get their ticket of leave, (i.e. a pardon conditional on their good conduct,) or by a hope that they be assigned as common labourers to a person who will share with them the profits of their mechanical skill. So great is the demand for skilled labour in New South Wales, that mechanics in the employ of government frequently neglect their regular work that they may be able to labour on their own account after the government hours, by obtaining permission to sleep out of barracks as a reward for good conduct; and the wages which they thus procure enable them again to bribe the overseers for fresh indulgences. Mr. Busby states that ‘he had heard of a case, of the truth of which he had no doubt, of a mechanic in the service of the government at Sydney, who contrived to work for an individual as many hours during one week as entitled him to the wages of eight days labour,’ by which means (as the same person adds) the convict mechanic is able to procure a reward for his labour and the means of indulgence, to a greater extent than the most industrious mechanic in England can procure. (Rep. p. 126.)* [Footnote - * Mr. Walker likewise states that he has known instances in which convicts in the service of government ‘have been able to bribe their overseers, and get away for hours together from their work; and in fact the general manner in which they work in the town of Sydney is quite proverbial; they do very little,’ - Ev. 962.] The other convicts, not skilled in mechanical arts, are allotted to persons living in the country; by whom they are lodged, fed and clothed, and for whom they work as slaves: Being (as has been already remarked) in precisely the same situation as the gangs of slaves on the estates of an ancient Roman landlord, or a modern West Indian sugar planter: except that their treatment is milder and their condition altogether more agreeable, partly from their former position as freemen, and partly from the difficulty of inflicting punishment, and the distance of magistrates, whose sanction is necessary for this purpose.* [Footnote - * Walker, 803.]
“Now with regard to this class of convicts who form the great mass of the criminal population of New South Wales, there is a very important regulation which is not, as we believe sufficiently known in this country, even to those who are familiar with the administration of criminal law; we mean the practice of granting tickets of leave, i.e. a conditional suspension of slavery, by which a convict is permitted to work for his own profit, provided he lives in a certain prescribed district, and commits no fresh crime.* [Footnote - * See Walker, Q. 870.]
“ ‘A convict for seven years is allowed the privilege of a ticket of leave at the end of four years’ service; a convict for fourteen years, after six years: and a convict for life after eight years’ service; provided that they have continued during these respective periods in the service of one master. But it is in general taken for granted, that if a change of masters has occurred, the convict has not exerted himself to give satisfaction, and the period of probation, before he can obtain a ticket of leave, is lengthened accordingly.’ Busby, Report, p. 126.* [Footnote - * We conclude that if the change of masters takes place from any other reason than the misbehaviour of the convict, for instance, if the master dies, changes his occupation, becomes insolvent, leaves the country, &c. the convict is not prejudiced. Substantially, therefore, the condition of the ticket of leave, in other words, of the remission of the rest of the sentence, is the good conduct of the convict.]
“Hence it appears that the sentence of a common prisoner to transportation for life in fact amounts to no more than this: if he conducts himself with sufficient propriety to avoid the commission of fresh crime, he becomes an agricultural labourer for eight years, during which time he is guaranteed against all contingencies, and is fed, lodged and clothed by his master: and after the expiration of this term he is allowed to work on his account within a certain district, where labour commands high wages, and common industry ensures to every one a tolerable livelihood. This is the worst lot that can befal [sic] a convict who is not guilty of fresh misconduct in his place of punishment, as it is called. And by such prospects as these it is hoped to terrify into an observance of the law a population who, if they are not maintained by an allowance from the poor rates scarcely sufficient to support life, can by the hardest and most unintermitted labour only earn a bare subsistence. It is a mere mockery to call such a system as this a system of punishment. As a matter of prudence, it would be advisable to many thousand persons in Ireland and the south of England to commit a crime which would ensure them seven years’ transportation to New South Wales: The expences [sic] of their voyage would be paid even the short probationary period of four years of servitude would be a vast improvement on their former state: and then would come the reward in the shape of a ticket of leave, and free labour for the rest of their lives; besides which, government would, after a certain period, send out their families to join them, at the public cost.* [Footnote - * See Evid. Q. 1261. 1317.] If it were not for the danger of being sent to the hulks which a criminal would incur, this would be the most advisable course of defraying the expences [sic] of emigration, which a pauper could adopt.
“On the insufficiency of transportation as an engine of punishment, there seems to be but one opinion: all the witnesses examined by the committee vie with one another in condemning it; not a solitary voice is raised in its defence. As, however, we do not wish our assertion to be taken on trust, we will subjoin extracts of the most important testimonies.
“Mr. Wontner, 394. ‘I think the evil is this, that persons who are sentenced to transportation, know that their friends are exerting themselves to get good situations for them, and they are receiving information from New South Wales that this person and that person, whom they had known here, are in situations where they are getting money; this makes transportation no terror to them. I have known men who have gone there, to whom it has been as severe a punishment as it could be; others who have been fortunate enough to curry favour with the persons with whom they were going out, such as the captain of the ship, and they have situations upon going there.’ ‘Generally speaking, has transportation sufficient terror ? It has not sufficient terror, because the spirit of the sentence is not carried into effect. I mean that when they are transported, they are not sent into the country to perform labour; they are not secluded, but they mix with the bodies that they have gone out with.’
“Mr. Chesterton, 494. ‘They dread transportation, but many of them say they would rather be transported than be for a twelvemonth in the house of correction at hard labour. I was told by an intelligent prisoner, who inquired among the thieves, that he believed there was not a man of that class in the yard that would not prefer seven years of transportation to two years’ imprisonment and hard labour.’
“544. ‘Are there many instances of prisoners not dreading transportation ? Not many : we had an instance on receiving the prisoners after the last Old Bailey sessions, of a man, sentenced to imprisonment for one month, endeavouring to be transported for seven years, by exchanging clothes with a man who was sentenced to be transported : they exchanged clothes, the man who was sentenced to be transported answered to the name of the man that was to be imprisoned; but he had hardly come in our prison before it was discovered at Newgate. I questioned this man as to his motive for wishing to be transported, and his answer was this, that he had not been in prison before for nine years, that he had endeavoured to support himself by labour as a bricklayer, that his work had altogether failed him, and that he wished to have a chance in another country which he had not in this.’* [Footnote - * It is clear that this person considered transportation merely in the light of emigration if he was willing to forego the advantages of living in his native country, among his friends and relations, there was no further punishment worthy of notice.]
“545. ‘Do you think the class of persons sentenced to transportation in London have correspondence with persons in New South Wales ? I always endeavoured to impress upon them that transportation over the seas is absolute slavery; but they seemed to listen to the statements with that sort of distrust, that I think they do not believe it to be the case.’
“Mr. Busby, 1257. ‘Do you mean then to say that you think the present system of punishment is not efficient, and is not dreaded by criminals in this country ? I am probably not qualified to speak as regards this country; but from what has come to my knowledge of the feelings of persons transported from this country, I should say not. I have known individuals who have committed crimes to get to New South Wales; and I think I have known of people who have endeavoured to induce their relatives or connexions to commit crimes in order to get sent out. I have no doubt that communications relative to the desirableness of transportation have been made by persons in England, whose friend has been previously transported.’
“1259. ‘Do you not think the number of agricultural labourers sent out during last winter will communicate with their friends here, and spread the notion that it is not a severe punishment ? I think it is indubitable. These are precisely the people who will do so men who are willing and have been accustomed to work, and who have experienced the effects of an insufficiency of food.’
“Mr. Macqueen, (qu. 1354) furnishes an extract from a letter written by a private soldier quartered in New South Wales : he says ‘Norman Hughes (a convict transported for stealing wheat, a most notorious character in Bedfordshire) has taken a large farm in Macquarie’s Harbour [Port Macquarie], and is doing extremely well. Phillip Hibbs (a boy about 18, transported for picking pockets) receives 50l. a year wages as tapster of the commercial tavern.’ This letter (continues Mr. Macqueen) was read over among the agricultural labourers of Bedfordshire the effect of it was only this, they were anxious to know what they could commit to entitle them to be transported.’ The same witness also states that he considered the condition of the convict labourer in New South Wales as infinitely superior to that of the agricultural labourer in this country, and that from his own experience as a magistrate, he has found that many persons have asked what extent of crime would ensure their transportation (1353) :* [Footnote - * In Appendix, No. 2. to the Report, is a curious extract from a dispatch of Governor Darling, containing the names of thirty female convicts arrived from Ireland, whose husbands or other relations were either suffering their sentence in New South Wales and Van Dieman’s Land, or were expected to arrive in a short time. It is quite clear that most of these women committed crimes for the express purpose of being transported, and that they viewed transportation as an improvement in their condition. We fear, however, that as the wife may chance to be quartered in New South Wales, while the husband is in Van Dieman’s Land, or the converse, these Irish women may sometimes find themselves not less mistaken in their calculation, than their countrymen who bought a commission in the 71st regiment, in order to be near his brother in the 70th.] that ‘the situation of the convict is far superior to that of the labourer in this country, and that the terror of the punishment is lost sight of.’ (1382.)* [Footnote - * Mr. Estcourt states that in Wiltshire transportation is more dreaded than imprisonment in the hulks, although letters often pass between convicts in New South Wales and their relations in that country. (Ev. 570-5.) This statement disagrees with all the other accounts and at any rate the prejudice against transportation in Wiltshire is completely unfounded, and must be soon dissipated by the publication of the evidence taken by the late committee.]
“Mr. Wakefied, being asked to describe the state of mind of persons under sentence of transportation, begins by stating the manner in which he had particular opportunities in Newgate of gaining correct knowledge on this point, and proceeds as follows :
“ ‘I took very great pains during the course of three years, to observe the state of mind of those persons, and I do not remember a single instance in which a prisoner appeared to me to be deeply affected by the prospect of being transported to the colonies. On most occasions when I examined any prisoner, I found his mind bent on the colonies, when he expected to go there, and bent on attaining a degree of wealth and happiness, such as he had no prospect of attaining in this country. Amongst a number of persons sentenced to transportation, and living together, I have generally found one, and sometimes two or three, who had already been in the colonies,....consequently the convicts associate with those men who have the best opportunities of hearing reports as to the state of the convicts in New South Wales and Van Dieman’s Land : these reports are always exceedingly favourable; in many cases no doubt they are much exaggerated in favour of the convict, because a man who returns from transportation takes pleasure in making people believe that he has cheated the law, and that he has enjoyed himself notwithstanding the sentence passed upon him. But whilst some allowance must be made for this exaggeration of the returned convict, the story he has to tell is, when true, a very favourable one in the estimation of these people : he states such facts, as that a great number of the persons who keep carriages in Sydney were once convicts, and he gives the names of those persons and describes how they, in the course of a very few years, have raised themselves from the situation of convicts into that of the most important persons, in point of wealth perhaps, in the colony. All these representations are received with great delight by the convicts, and those who think upon the subject at all go out with the prospect of benefiting themselves and doing well. A great number never think on the subject at all; they are of reckless habits, perfectly careless of the future; but they have no impression on their minds of the probability of receiving any pain, they have no dread of any; they are going to be removed, they would be glad to remain if they could, and they make great efforts to remain even in the hulks in a great many cases; but it is always to be discovered that their object is not to avoid any to be inflicted upon them during the passage or in the colonies, but to remain in this country, and be able in a short period to resume their old habits, and to lead that life of riotous enjoyment which belongs to the habits of criminals.’ (1395.) In answer to another question, the same witness expresses his opinion that the punishment of transportation ‘makes no impression at all upon the great mass of criminals, certainly not upon boys; he has known boys endeavour to be transported rather than be whipped.’ (1429, and see 1465.)
“If all these circumstances are taken together, it may be confidently affirmed, that transportation cannot properly be considered as a punishment the cases in which it has that operation are so rare as to be scarce worthy of notice. To most persons of the higher and middle ranks, the disgrace of detection and conviction, and a perpetual banishment from England, would be a sufficient preventive against crime : but with the lower class, from which the great mass of criminals proceed, a more powerful motive is needed; and this the punishment of transportation does not supply. To many poor convicts the change is neither for the better nor the worse, to the greater number it is an unquestionable improvement. Even to the upper class of convicts the slight punishment which they endure at New South Wales is much less than it would be if inflicted in this country, as the disgrace is little felt when a person is removed from those whose opinion he cares for, and is moreover countenanced by the large number of other persons in the same situation as himself. It is impossible to consider the life of a transported convict as a life of pain, unless we adopt the fancy of Montesquieu, that ‘everything which the law calls a punishment is in fact a punishment.’* [Footnote - * Esprit des Lois, 1.6. c.9.]
“The utter inadequacy of transportation to compass the object expected of it, viz. to be the most severe secondary punishment inflicted by our law, becomes more evident, when it is considered what lot befalls a criminal who just escapes the most formidable of all punishments, death. We will take an example which is probably fresh in the memory of most of our readers, in the person of [James] May [a London Burker], who was duly convicted as a principal in the murder of an Italian boy, killed for the sake of selling his body; a case in which we need not say there was no extenuating circumstance whatever. For reasons not made known to the public, but doubtless satisfactory to those in whom the determination of such matters is lodged, this man was reprieved between his sentence and the time appointed for his execution, and will doubtless suffer transportation for life. Now, what a vast difference there is between this man’s original and commuted sentence ! Instead of being ignominiously put to death, in two days after his trial, amidst the yells and execrations of a savage populace, he is detained for some weeks, in the society of his friends, at Newgate; he then sets sail, in company with two hundred criminals, among whom there is every variety of vice, adapted to every taste, whether finished and refined villany, coarse brutality, or wanton profligacy and recklessness, should be most agreeable to his disposition; till after some months passed in a state of total idleness, the ship lands its cargo at New South Wales. He will then probably, not being a mechanic, find himself assigned to a farmer in the interior, where the lightness of the labour, the abundance of food and clothing, the excellence of the lodging, and the fineness of the climate, will soon reconcile him to his change from the life of a resurrection-man and out of mere prudence, he may perhaps avoid misconduct towards his employer, and the commission of fresh crime during the next eight years, at the end of which period he will receive his ticket of leave, become his own master, and by industry at one time, and at another perchance by less regular means, may contrive to keep the evening of his life in a state of tolerable comfort and physical enjoyment.
“At the last summer assizes for Lancashire two persons, of the middle rank of life, were convicted of forgery, and left for execution, who had been for many years engaged in most extensive transactions of that nature, and had converted the forgery of bills and notes into a regular trade, by advancing the capital requisite for the undertaking, and employing various subordinate persons to execute the mechanical parts of the process. These men have since been reprieved, and for aught we know, are now on their voyage to New South Wales; where, on their first arrival, the one will probably become a clerk in a government office, the other will become a tutor in the family of a private person, himself perhaps an ancient convict, or at least of convict blood. Both, of course, will immediately receive their ticket of leave and have the entire command of their time, except during the hours of business. And this, according to our system, is the alternative for death : this is the severest infliction which the law can devise for those who just escape capital punishment. To a merchant’s or banker’s clerk, in distressed circumstances, who is not deterred by moral principle from the commission of crime, the question therefore naturally presents itself in this shape.
“Forgery or embezzlement will, if successfully practised, extricate me from my difficulties; if I am detected, I have no wife and family, and few friends to regret; I am so embarrassed with debts as to have scarce any enjoyment of life in England; in New South Wales, I shall have little feeling of disgrace when I am separated from all who know me, and when I have taught arithmetic at Sydney for a certain period, I shall begin the world afresh, with new views, and under more favourable circumstances.
“The distance of the place of punishment from those for whose warning the punishment is inflicted, has an ill effect in two ways. 1. It diminishes the disgrace of a criminal’s lot, both by removing him from the eyes of all whose good opinion he values, and whose censure he dreads, and by putting him in the midst of many other persons who are in the same case as himself so that, at any rate, there is nothing singular or remarkable in his condition, his fate is shared by so many, that it seems to be rather his misfortune than his fault. There are some criminals so utterly abandoned, so lost to all sense of shame, that no punishment can reach them but the infliction of physical privation and pain. But there are others of a higher class, by whom the disgrace of being branded a felon, would in England be acutely felt, while in New South Wales, the standard of moral estimation being one degree lower, they are favourably judged, in comparison with those more guilty, as having only committed one crime.
“ ‘Here (says Mr. Wakefield) as to the class in question, detection by itself is a severe punishment; there, they know, the state of society places settlers who have committed crimes in England, but none in the colony, on a line of equality with those who have not committed crimes anywhere. Here, the punishment of disgrace is unbearable; by being sent thither, they wholly escape that punishment. Here they are without hope by being sent thither, they are filled with hope.’* [Footnote - * On the Punishment of Death, 193.] In the second place, the distance favours suppression of the truth, and the dissemination of false reports, with respect to the condition of the convicts. For although, on the principle of omne ignotum pro magnifico [every unknown thing is taken for great], the name of punishment may sometimes lead persons who know nothing on the subject, to believe that transportation really is a punishment, yet those who are personally interested in the matter, and being led by their inclination to crime, naturally seek to ascertain the good rather than the bad parts of their probable destiny, are sure to receive from the convicts an exaggerated account of its pleasures, to hear from them little of its pains, and to apply to themselves the best parts of the description, and whatever is most agreeable to their own tastes. To convicts they naturally apply for information, as being the best authorities on the advantages and disadvantages of a transported convict’s life : ‘They best can paint them who have felt the most:’ and criminals always have a pleasure and pride in seeming to cheat the law, and to outwit the officers of justice,* [Footnote - * It was from this feeling that Bishop the murderer made his confession a mere tissue of improbable falsehoods, by which many persons, unacquainted with the ways of criminals, were induced to believe that he was improperly convicted. The object in such cases is to throw a general discredit and doubt on the administration of justice.] [Bishop was one of those tried with James May] ‘The distance of the colony (says Mr. Wakefield) prevents criminals from receiving intelligence that is disagreeable, while, at the same time, it allows them to receive that which is agreeable.’ [I’m not sure of the reasoning behind this statement] ‘It is to be observed, in all cases, that the mind dwells upon what is pleasant rather than what is unpleasant, and it would be found, upon examining a number of convicts here, who are acquainted with the advantages of a convict’s life in New South Wales, that they know little or nothing of its disadvantages.’ (Ev. 1438. 1481.) Hence much pain is really suffered which never comes to light : nor even if it were known, would it be more than an exception, and an example is useless which no one will apply to himself. Mr. Wontner, the gaoler at Newgate, mentions that he had received a letter from a convict, for whom great interest had been made to get him comfortably settled, stating his disappointment at having been sent into the country as an agricultural labourer, his constant work, and his hardships; and recommending Mr. Wontner to communicate to persons in his situation what transportation sometimes is, and entreating that exertions might be made to ameliorate his condition. (Ev. 396.) It will be observed, that even this person entertained hopes of improvement, which should be altogether excluded from a good penal system : but what would be the effect on the minds of criminals if it were known that in a single instance transportation was really a punishment ? They would merely set it down as an exception by which their calculations ought not to be influenced. If transportation to the colonies is not the means of inflicting pain, then all must admit that the system ought either to be amended or abolished. If, on the other hand, New South Wales is not an agreeable retirement, or a new field of enterprize [sic] for unsuccessful rogues, if it is not the paradise of felons which it has been called,* [Footnote - * See Report, p. 130.] then our system is worse than if these notions were correct for it is almost universally believed to be so, and it would thus seem to be contrived in order to obscure the pains, and to throw a false glare of light round the pleasures of transportation. In the arrangement of punishment, pain inflicted, and not publicly known, is pain thrown away. It is an infliction of pain, only justifiable because beneficial to society, by which society gains nothing. It is not sufficient that a punishment should be painful, it should seem to be so. The object of real punishment is to produce apparent punishment. Still more objectionable is a system which encourages not only the concealment of truth as to the pain really endured, but the fabrication of falsehood as to the pleasures never enjoyed. The secrets of the prison-house should be known in all their worst features, that human suffering may not be in vain. If opportunities are to be given to the colouring and misconception of facts, it would be better that the public should deem too lowly than too highly of the state of a condemned criminal. Above all things, in penal jurisprudence, we should avoid whitening our sepulchres.
“Many regulations with regard to convicts have been established at New South Wales, the sole object of which has been either the good of the colony, or the convenience of its government. ‘The convicts,’ says Mr. Busby, ‘have been distributed to the service of the settlers, or retained in that of government, with a view to the demands for their labour, and to the saving of expence [sic] in their maintenance, rather than to an uniform or discriminate system of discipline.’ (Rep. p. 127.) At the arrival of every convict-ship, the local authorities have had to provide for so many hundred convicts : and as their principal object was to govern the society, to increase its wealth, and to raise its moral condition, the convicts were disposed so as best to effect these purposes. Thus the object of their transportation, viz. to deter others from crime by their example, has too often been forgotten.* [Footnote - * ‘In the management and discipline of convicts in New South Wales, the local government has seldom, if ever, adverted to the punishment of transportation, with reference to its operation as a preventative from crime in the mother country.’ - Busby Rep. p. 127.]
“Similar relaxations in the discipline of the convicts have been introduced from a view to economy. It is of course cheaper to quarter a convict on a free settler, who is willing to maintain him for the value of his labour, than to keep him in a place of punishment at the public expence [sic]. But all the vulgar opinions on this subject are founded in error; for neither is economy the end of punishment, not even an important element in the problem, nor is the system pursued truly economical. It is a common objection to the science of political economy, that it looks only to wealth, and not to the morality or happiness of a nation. Yet if it is proposed to adopt a measure which goes directly to diminish crime, and so to increase and strengthen national virtue, an objection is raised, probably in the very same quarters, that the plan is so expensive that it cannot be adopted; evidently implying that morality is less important than wealth, or that vice is a less evil than taxation. Even if the suppression of crime could only be purchased at a dear rate, the sacrifice of public revenue would be repaid at an usurious interest by the increase in public morality. But the truth is, that a cheap punishment which encourages crime and multiple criminals, is in the end less economical than a system which represses crime, and greatly reduces the number of criminals. It is cheaper to punish a hundred men at 10l. a head, than a thousand men at 5l. a head. The expence [sic] of each individual may be less, but the aggregate expence [sic] of the whole number is greater. It is not our intention to enter into any calculations on the comparative expences [sic] of our different modes of secondary punishment; but when the cost of transports, of regiments stationed at New South Wales for the purpose of guarding the convicts, of the colonial police, and other sources of expenditure are taken into the account, we are satisfied that the expences [sic] even of transporting a single convict have been greatly underrated; and if any person will agree to put the question of transportation or no transportation on the issue of economy, we will undertake to prove that the revenue would gain by its entire abolition, and the adoption of a new system. Those persons who estimate the merits of a punishment by its cheapness, ought, if they were consistent, to re-enact the code of Draco, and punish every offence with death; for no punishment, it is to be remembered, is so cheap as that which requires only a rope and scaffold.
“The committee lay it down, in a question put to a witness, that ‘there are two modes of preventing crime, one by reformation of prisoners, the other by deterring bad characters from the commission of crime.’ (Ev. 201.) We cannot admit that the reformation of the convict is an essential part of punishment [my emphasis]; it may be joined incidentally, but cannot necessarily belong, to a penal system. Undoubtedly it is desirable to reform all vicious persons in the community, but the government cannot effect this purpose by any direct means. All the praiseworthy endeavours of rulers to make men good by the law have utterly failed. The object of punishment is to deter men from crime by a dread of suffering pain. If the punishment is really painful, and such that if a person thought it a sure consequence of detection, he would not commit crime, then the convict, having experienced it in his own person, is of all men least likely to place himself again in the same situation. If the punishment to be dreaded, needs but to be known, the convict has the best means of knowing, and therefore the strongest motive for avoiding it. But a punishment which reforms criminals without inflicting pain on them, is useless, because others will not be deterred from crime by the prospect of that from which nothing is to be feared. The error of supposing that crime is to be prevented by the reformation of convicts arises from a notion that criminals form a class of a certain definite number, that they are a peculiar order in the state, to be dealt with like a band of conspirators, or a foreign army; whence it follows, that if these persons can be either exterminated, or sent out of the country, or turned from their evil courses, the community will be free from crime. But criminals are an uncertain and fluctuating body, liable at any moment to be diminished or increased to an indefinite amount, according to the motives working on the community, as any man at any time be tempted to commit crime by the prospect either of great gain, or of complete impunity, or of slight punishment. As well, therefore, might we attempt to drain a river by carrying away the water without cutting off the source whence the stream is replenished, as to endeavour to suppress crime by banishing or reforming criminals without attacking the fountain-head from which a new flood of offenders will continually pour in. As well might it be proposed to put a stop to disease and old age, by expelling or destroying the aged and sickly, without devising any means of preventing the young and healthy from filling up their places.* [Footnote - * ‘The prevention of crime being the primary object of all punishments, a regard to the effects produced upon the minds of those who are liable to the temptation of violating the laws, ought to be the first object regarded in determining the nature of the penalty. The reformation of the convict himself is secondary to this, inasmuch as it is of more importance to the community that the many should be kept from falling, than the few who have fallen should be reclaimed.’ - Busby, Rep. p. 130.]
“But if by reforming convicts, is meant, the bringing their minds into such a state that they will avoid crime from principle, and not from fear of detection and punishment, we believe that such reformation, though so much stress is laid on this subject both in the Penitentiary and New South Wales, is an event of very rare occurrence. And we suspect that in the best modes of punishment devised by the wit of man, in which the infliction of severe pain is combined with moral discipline, the effect of the mental training is as nothing in comparison with the fear of the punishment, in the prevention of second offences. We fear greatly that to reform a hardened, or reckless criminal, is a little less difficult than to change the colour of his skin. People sometimes think that an unlettered reprobate can be taught virtue as he can be taught to read : but they forget that in the one case they have to contend with ignorance, in the other with fixed habits. If a man cannot read, he merely labourers under a defect of knowledge; but a man who does not practise virtue, practises vice. This view of the subject is unhappily supported by the strongest evidence.
“ ‘I am perfectly satisfied (says Mr. Wakefield) that the number of cases in which man, woman, or child once a thief is not always a thief, are so few as to be undeserving of notice. But few persons who indulge in the excitement of gambling ever conquer that propensity; but thieving is a species far more agreeable than any other game of hazard, for two reasons; first, because the persons who follow it are generally of a class, who could not live honestly otherwise than by hard and constant labour, than which nothing is more irksome to all who have once indulged in idleness : and secondly, because in the game of robbery, the player always wins until he loses all. Whatever the cause, however, the fact is certain, that a thief is hardly ever - I am tempted to say, never - reformed.’ - On the punishment of death, 75.
“Mr. Chesterton, the governor of the House of Correction at Coldbath-fields, likewise expresses his conviction that the London thieves are irreclaimable from their vicious habits; and he even thinks that no punishment which can be devised will deter them from the commission of crime (Ev. 513. 517.) : nut it must be remembered that thieves are nevertheless men, liable to be swayed by human motives; and if a punishment can be made painful, speedy, and certain, they will unquestionably avoid crime, on the balance of inconvenience. Mr. Chesterton doubtless meant to say that it is hopeless to attempt the reformation of a professional thief : and that as our punishments are not sufficiently painful to deter by fear, the only advisable course is to send such a person out of the country (518) : proceeding on the notion to which we have already adverted, that the criminals form a limited class, and that every deduction from their number is so much gain.* [Footnote - * We might apply to this subject the question of Pontanus, so wittily answered by Scriverius - Dic mihi quid majus fiat, quo pluria demas ? For every one subtracted from the number of regular thieves, and sent to a state of enjoyment in New South Wales, two, perhaps, are added to the same class, attracted by the prospect of gain, and in the uncertainty or mildness of the punishment. It must be remembered that the body of thieves, or persons living on the property of others, is capable of very rapid expansion : it is not like the body of lawyers, or physicians, among whom there is only a certain limited quantity of business to be divided : the quantity of plunderable matter in this country is immense, and would probably support in ease and luxury a much larger number of persons than even now subsist by dishonesty.] Whereas the removal of a few criminals, while the same temptations which led them astray are left to work on the rest of the community, has no more effect in preventing crime, than the deaths of a few persons in arresting the course of a pestilential disease, while the contagion is flying over the whole country.
“It may therefore be confidently asserted that the moral impressions made on a convict’s mind during his state of punishment are in almost all cases feeble and evanescent; that when, on his liberation, he rejoins his former companions, he may be expected to yield to the temptation of recurring to his old habits of idleness and enjoyment, and their necessary consequence, crime. Unless he abstains from fear, no reliance is to be placed on his principle.
“Ad mores Natura recurrit
Damnatos, fixa et mutari nescia.
“Such is the attainable object which forms so prominent a feature in our penal system, and especially in that of transportation, where the true end of punishment is entirely lost out of sight, for the sake of improving the moral condition of the convicts. Here accordingly the question arises, whether by this system the reformation of the criminals, to which so much has been sacrificed, is really attained : and whether the policy of forming a colony of the criminal population of the mother-country, and reforming these abandoned persons in their new abode, has been successful, considered merely as a colonial measure, and without reference to its connexion [sic] with our penal system.
“If it were proposed to select all the worst characters from the thickly peopled gaols of a large nation, to send them in transports to a distant quarter of the globe, enjoying unrestrained intercourse and entire idleness during a voyage of several months, on their arrival to distribute them for a few years as bond-slaves to various task-masters throughout the towns and country, under an imperfect system of inspection, and with different degrees of liberty and comfort, their number to be perpetually increased by fresh supplies from the ,other country, so as to enable them soon to form the most numerous order in the new colony, and to establish a public opinion and a separate opinion of their own : could even the most sanguine person expect that a society so formed would, according to the ordinary course of nature, exhibit any other spectacle than that of the most frightful licentiousness and immorality ? If these transported criminals are so depraved, that separately they are dangerous to a large state, how will a small state resist them when they are collected together ? If the matured strength of the mother-country cannot endure the evil, how is it to be borne by the feeble infancy of the colony ? Why should we expect that the dwarf will bear up against a weight which the shoulders of the giant are declared to be incapable of supporting ? Indeed when it is considered of what elements the population of New South Wales is composed, the wonder is, not that all the accounts should represent its moral state as being at the lowest ebb, but that it should have been possible to maintain a system of regular government and administration of justice in a society formed of persons who have lived by the habitual infraction of the law. Certainly New South Wales, as far as we are aware, is the only instance of a commonwealth of thieves, recorded in history.
“The testimony of the different witnesses, particularly of the Rev. Mr. Scott and Major M’Arthur, is very strong and explicit on this point : but although it is a subject which does not admit of precise definition, some notion of the moral condition of this convict colony may be derived from the following statements.
“The population of New South Wales in 1828 was 35,598, omitting the runaway convicts who are criminals that set the law at defiance, and live by outrage and depredation. In the year 1830, 134 persons were capitally convicted, and 49 were executed (11 for murders) in that colony. (Rep. p, 141. 139.) In the year 1830, 1397 persons were capitally sentenced, and 46 executed in England and Wales. Taking the population of New South Wales at 40,000, and that of England and Wales at 13,000,000 in 1830, the executions would be about one to every 280,000 persons in the mother country, and one to every 900 in the colony. In the year in question, notwithstanding the immense difference in the population, the whole number of executions in New South Wales exceeded the whole number of executions in England and Wales. This large amount of crime is satisfactorily explained by the manner in which the convicts are treated.
“ ‘The history of a convict may thus be traced : on his arrival, if he be not retained for the use of government (which most of the mechanics and useful sort were) he is assigned to some applicant, without regard to his crime, sentence, or behaviour, and far too often without regard to the character of the applicant. If the latter be one of the freed men, the convict most likely eats and drinks with him, and shares in all the familiarity of his domestic life (if it can be so called) of drunkenness and debauchery. Under little controul [sic], and often through bad and harsh treatment, he runs away, or is seduced away, and gets drunk, commits some theft, and is taken up and punished by being returned on the hands of the government, or sentenced to some imprisonment. Of these, in the year 1829, there were upwards of 4000 at the different stations, where the overseers of the different gangs are convicts themselves; and if they are near places where work is to be had, especially near Sydney, nothing was more common than for the overseer to wink at the absence of a convict for many hours from his employ, and share with him his gains, which, if he were a good mechanic, would be four or five shillings. As they were fed, clothed and housed by government, the surplus generally was spent in spirits.’
“ ‘The instances of well-conducted convicts who are now proprietors of land, settled on it at enormous expence [sic] to the crown, are very few indeed. If the progress and character of all those who have received these boons were thoroughly investigated, such details of fraud and vice would be unfolded, a stranger would scarcely believe.’ Rev. T.H. Scott’s Letter to Lord Howick, Rep. p. 146.
“ ,No real advantage (says Mr. M’Arthur) can be expected from the crowd of helpless outcasts who arrive in the settlements under the various classes of forgers, utterers of forged instruments, clerks and apprentices guilty of embezzlement, swindlers, pickpockets, and some description of thieves, from cities and large manufacturing towns. No industrious settler with foreknowledge of their corrupting influence will, excepting by the direst necessity, receive them into his establishment. He fears the insubordination which they talents to excite. He dreads the example of their vices, and calculates that their services will not repay him the cost of providing them with food and clothing; unable therefore to distribute them through the country, the colonial government is reluctantly compelled to permit their residence in the towns, where some obtain tickets of leave, and others employment as clerks and servants. They become shopkeepers, and as part of their trade, receivers of stolen goods. Supplies of money from confederates in England, from friends and relatives, or the produce of their robberies and frauds in the colony, are alike wasted in drunkenness and debauchery. Nor is it less painful to know that those whose sentences have expired, or to whom pardons have been granted, seldom or never incline to reform, even when they have acquired property. Intoxication and fraud are habitual to them, and hardly six persons can be named throughout the colony, who being educated men, and having been transported for felonies, have afterwards become sober, moral, and industrious members of the community. Crime is of constant occurrence, and so completely organized, that cattle are carried off from the settlers in large numbers, and slaughtered for the supply of the traders in Sydney, who contract with the commissariat. It is not, therefore, the vicious habits alone of the towns which are to be dreaded, but the effects that are communicated and felt throughout the country. The agricultural labourer is encouraged to plunder his master by finding a ready sale for the property he steals, and whenever his occupations call him to the towns, he sees and yields himself to the vicious habits around him. He returns intoxicated and unsettled to his employer’s farm, and excites his comrades to the same sensual indulgences, with equal disregard of the risk and of the consequences. To these causes the present vicious and disorganized state of the convicts in New South Wales is chiefly attributable; and the extent of the evil may be in some degree estimated, when it is stated that the expence [sic] of the police establishment amounts to more than 20,000l. per annum.’ Rep. p. 142. [This tirade is all a bit rich coming from such an unprincipled and self serving man as Macarthur]
“These general statements are confirmed by the other witnesses, who add some particulars to complete this melancholy picture of crime and immorality, created in the wilderness by act of parliament. When the convicts are assigned to settlers in the country, each person is furnished with a full allowance of clothes, blankets, &c.; but these are almost always stolen from them, or sold by them before they reach their destination. (Ev. 827.) When the new-comer arrives among his brother convicts, he takes a fresh lesson of roguery for (as Mr. Walker says, qu. 913) ‘the colony has a curious effect upon the most practised thieves in this country; one of the most experienced thieves in London has something to learn when he comes out here; probably he would be robbed the first night he came into his hut.’ It is needless to repeat the statements of those persons who merely describe the generally low state of morality, and the frequency of atrocious crime; but we may remark that on account of the degraded class to which the female convicts have belonged, and the great disproportion of the women to the men, prostitution prevails to a great extent.* [Footnote - * According to the census of 1828, New South Wales contained 27,611 males, and 8987 females, i.e. something less than one woman to three men. In all countries there are more males born than females but wherever the population is in a natural state, and has not been disturbed by an injudicious system of compulsory emigration, the numbers of adult males and females are nearly equal, or that of females a little preponderates.] It is only to be hoped that such a state of things does not produce effects far more demoralizing than even prostitution.
“If all the criminals annually convicted in England, were punished in the country, neither during their punishment nor after their liberation, could they become an important class in the state. They would bear so small a proportion to the whole population, and would be spread over so wide a surface, that they could produce no sensible effect on the rest of the community. But when all the convicts of a large nation are collected into one place, and that place a new settlement in an uninhabited country, in which the number of free settlers is inconsiderable, they assume a different aspect; they herd together, not only do they form a class, but the most numerous* [Footnote - * Much the larger half of the population are or have been convicts. In 1828 the free settlers and those born in the colony were 14,390 : leaving 22, 208 for the convicts out of a population of 36,598.] and powerful class in the society, they support one another in vice by their mutual countenance and good offices and at length when a sufficient number of convict have served their term and been emancipated, they form a political party, having its own opinions and organs of communication with the public. Political parties have been at different times formed in a great variety of manners : there have been political parties of the rich, of the middle ranks, and of the poor of freemen and slaves; of the inhabitants of the heights and plain; of the court and the country; but probably this is the first instance of a political party of emancipated malefactors which has been known in the history of the world.
“ ‘The existing vices and evils (says Major M’Arthur) are now frightful in a moral, but they will soon become alarming and dangerous in a political point of view. The towns are filled with the most useless and depraved men. Instead of adopting the habits of others, they communicate their own. With numbers they have acquired confidence, and already give a tone and character to the society. Nor are the political consequences unworthy of notice. Republican sentiments are in active operation. It is made a merit among the lower orders to treat their superiors with disrespect, and there appears already the germs of a wild democracy. Without contemplating therefore any immediate danger, it is surely necessary to provide against the increase of evils which may in some time of war, hazard the safety of the colony.’ Rep. p. 143.
“Mr. Busby states that the influence of this party, in consequence of a change in the policy of the government, has diminished of late years : he mentions, however, that ‘all the opposition press is of their party, for as its conductors are under the influence of those who purchase the greater number of their newspapers, the prejudices of this class are flattered by the editors of the papers merely to procure a sale for their papers.’ (Ev. 1281-4.)
“Another evil consequence of scattering convicts upon the face, and along the outskirts of a thinly populated settlement, is, that if they become dissatisfied with the hardships of their condition, they escape from their masters, unite together, and form roving bands, whose only subsistence is derived from plunder. The number of these bush-rangers (as they are called) had much increased in New South Wales during the last few years, and highway robbery and other outrages were so frequent, that it became necessary for the government to take very strong measures to repress the evil. This evil could only be counteracted by other evils, viz. the enactment of tyrannical laws, and the establishment of a large mounted police,* [Footnote - * See Walker, 818-21. Busby, 1296-1303.] A dispatch from General Darling, describes a conflict between the police and a troop of nearly fifteen bushrangers, well mounted and armed, in which the police were beaten off, and obliged to retire with the loss of two men and five horses, after a smart engagement of a quarter of an hour. (Rep. p. 137.) In a colony founded by voluntary settlers, who would only be induced to emigrate by prospects of personal advantage, such a state of things could never occur.
“The deplorable enmity between the settlers and aboriginal inhabitants of the neighbouring colony of Van Dieman’s Land, and the savage cruelties of which it has been the occasion, appear in great measure to have arisen from the barbarities originally practised by the convicts on the natives. The following illustration of the benefits derived from convict settlements is furnished by a dispatch of Lieutenant-Governor Arthur to Sir George Murray.
“ “Soon after the colony was settled, in the year 1805, a scarcity of provisions was felt, amounting almost to a famine; in this extremity the convicts were permitted to go into the bush in order to find food, and as the country abounded with game, they readily discovered it, and were afterwards indisposed to return and submit to the authority of the government. This state of things continued until the year 1809 or 1810, and laid the foundations for that system of plunder which was denominated “bush-ranging.” The convicts leading this predatory course of life, continually associated with the aboriginal natives, whom, it is questionable, they treated with the most unnatural cruelty, taking away their women, and often murdering their men.’* [Footnote - * Correspondence between Lieutenant-Governor Arthur and the Secretary of State for the colonies, on the military operations lately carried out against the aboriginal inhabitants of Van Dieman’s Land. Printed for the House of Commons, 23rd September, 1831, p. 60.]
“An instance of the conduct of these convicts to the natives, ‘which (as the committee at Van Dieman’s Land may well say) from its atrocity would have appeared to them perfectly incredible, had it not been confirmed by testimony which they cannot doubt,’ appears in the examination of a witness to the following effect :
“ ‘Lemon and Brown, the bush-rangers, committed every species of cruelty upon the natives; they used to stick them, and fire at them as marks whilst alive; knew Carrotts, who had been a convict; he told them he had cut off a native man’s head at Oyster Bay, and made his wife hang it round her neck, and carry it as a plaything; from Carrott’s manner, he credited the story.’ Correspondence, p. 36. 49.
“Nevertheless, some of the convicts have forgotten their ancient divisions, and have preferred assisting the natives in the bloody and revengeful war carried on by them against the lives and properties of the whites; for the Lieutenant-Governor states, that ‘although the idea seems too monstrous to be credited, it is his duty to report, that there are very strong reasons for apprehending that some miserable convicts have incorporated themselves with the savages.’ p. 60.
“Such is the picture, as drawn by eye witnesses, of the moral and political condition of a convict colony : such the results of our novel experiment of forming a society of thieves. For let it not be said that this method of punishing criminals, by employing them as materials for the foundation of a new commonwealth, can be defended on the plea of prescription and ancient usage. It was a mere experiment both in politics and jurisprudence, and it has so signally, and in all its parts failed, that we devoutly trust that it may deter this and every other state from ever giving it a second trial. There is no convict in New South Wales, who, by his crimes, has worked a tenth part of the mischief, of by his example and instruction been half so instrumental in the diffusion of vice, as the person, whoever he may have been, and however unconscious of the evil which he was about to originate, who devised the plan of transporting convicts to New South Wales. He set in motion a machine for the production of evil, which has for years been working with a continually increasing power, and a constantly accelerated velocity. When Cicero said, that in no respect does the virtue of man approach so near the attributes of the Divinity, as in founding new states, or in preserving states already founded, little could he think that this high office would ever be so abused as to found a commonwealth of condemned criminals; or that a large and civilized nation, in establishing a new colony, instead. like the ancients. of carrying the sacred fire from the hearth of the state, would empty the polluted scum of its gaols on the virgin shores of an unpeopled continent.
“However, even if it were admitted that transportation is the means of inflicting little pain, that is an expensive method of punishment, that it does not reform the convicts, and that it occasions great evil, moral and political, to the colony itself, still if that little pain was certain in its amount and infliction, the punishment might, by preventing crime, be beneficial to the mother country. In this respect, however, the system of transportation is perhaps more defective than any other; a defect which arises from the variety of our secondary punishments, and can only be explained in connection with them.
“An original or commuted sentence of transportation, either for life or a term of years, may mean any one of three things, viz. transportation to the colonies, imprisonment in the hulks, or imprisonment in the Penitentiary. Of these, the Penitentiary, as appears from the full account contained in the Evidence taken by the Committee, seems to be far, the most painful, and is accordingly, most dreaded by convicts under sentence of transportation. (Wakefield, 1399, 1401, 1446, 1488.) It may be described in general terms, as an imperfect attempt to carry into effect the system of solitude and silence which has been brought to perfection in the United States: the average period of imprisonment is three years, and the number of prisoners is about five hundred. The chief object of this institution is stated to be the reformation of the prisoners (Chapman, 130, 134, 181.); nevertheless, although it is managed on this mistaken principle, its regulations are so contrived as to inflict considerable pain on the convicts, and thus to attain the true end of punishment. Imprisonment in the hulks is, as well as the Penitentiary, for the most part limited to convicts sentenced to seven years’ transportation, (Capper, 649-665.) and the punishment actually inflicted is forced labour in the dockyards during the day, and confinement, without separation, in a floating prison during the night, for a term of about four years. The discipline is described as lax, and the convicts are able to procure many indulgences incompatible with severe privation; and on the whole, they consider it as a ‘pretty jolly life.’ (Wakefield, 1408-14.) The opinions on the comparative advantages of the hulks and transportation are not uniform for London thieves, married persons, and others who wish to remain in their native country, prefer the severer, but shorter discipline of the hulks, to the idleness and liberty of a long or perpetual exile : others, again, who have not been so successful in crime as to lead a life of dissolute enjoyment, look forward to New South Wales as a land of promise, where they will become rich and great, after the short probationary period of servitude inflicted by the law. There can be no doubt that three years’ confinement in the hulks is a severer punishment than three years’ bondage in Australia (see Capper, 748.) : but the sentences of transported convicts are usually either for fourteen years or life; and therefore, upon the whole, confinement in the hulks is perhaps preferable : though for equal times, actual transportation is evidently a much easier lot.
“It might be thought that a variety of secondary punishments is desirable, for this reason : that a person in meditating a crime would naturally be prepared for the worst; and if, among all his expectancies, there was one which appeared painful to him under his peculiar circumstances, he would reckon upon the chance of undergoing that punishment, and therefore abstain from crime. But unhappily for the effectiveness of our penal system, this view of the matter in not only not true, but is the very reverse of the truth. A person meditating a crime, always anticipates the best, and not the worst lot which may befal [sic] him : on the principle stated by Adam Smith, that every one over-rates his own good fortune, and because the mind is more disposed to hope than despair, and dwells more willingly on a pleasing, than on a painful object.* [Footnote - * The effects of the uncertainty of punishment have been explained with great ability and judgment by Mr. Wakefield, both in his book, p. 74-8, 134-6, and his Evidence 1379, 1402, 1426-7, 1434-5-7-, 1482, 1565.] The mere exposure to a chance suffering has little or no effect, if the chances of not suffering are equal or superior. How small is the number of persons smitten with a mortal disease, who expect it to prove mortal ? When was there ever a want of volunteers for a forlorn hope ? In cases such as these, every man thinks that he himself will, in some way or other, be an exception to the general rule, and hopes for the best, however unlikely that best may be. Hence it is that a man meditating forgery, does not expect death to be a consequence of detection : for though he knows that many forgers have been hanged, he likewise knows that many more have been transported. For this reason, a variety of punishments is eminently favourable to the prevention of crime; for every person chooses out of the whole number that one, and the modification of that one, which is most agreeable to his peculiar taste : whence it happens that those punishments which are severe, have no effect in deterring from crime, because nobody expects to suffer them, and that a criminal may often endure a punishment which would have deterred him if he could have known beforehand that he would endure it. There is perhaps many a man in the Penitentiary, who would never have committed crime if he had known that he would be imprisoned in the Penitentiary : but he reckoned on being sent to the hulks. There is perhaps many a man in the hulks who would not have committed crime if he had known that he would be imprisoned in the hulks; but he reckoned on transportation. And on the other hand, some persons have perhaps been transported who committed crime on the speculation of remaining in England, and passing a short time in the hulks. So long as a rule has exceptions, the mind fastens on the exceptions, and not on the rule. A rule with many exceptions is, in penal jurisprudence, little better than no rule at all. If therefore our secondary punishments were in most cases severe, the advantage of the severe punishments would be in great measure lost, because every body would be inclined to reckon even on the exception. But what can be expected when the severe punishments are the exception, and the slight punishments the rule ? If a severe punishment has little effect as the rule, it can have no effect as the exception. When 200 convicts are sent annually to the Penitentiary, 1000 to the hulks, and 4000 to the colonies*, [Footnote - * We have not been able to procure any account of the precise numbers of the convicts annually sent to the Penitentiary, the hulks, and the colonies : but the numbers in the text probably approximate to the truth. The Penitentiary usually holds about 500 (Russel, 314-15), which, if about a third part is changed every year, would give something less than the number stated. The total number in the hulks, in July, 1831, was 3897 (Capper, 579), which would give about 1000, a-year, if the average imprisonment is somewhat less than four years. In 1829, 3664 convicts were transported to New South Wales; the number in the following year appears to have been greater : and as this is exclusive of the convicts transported to Van Dieman’s Land, probably the number in the text is too small.] what person, bent on the commission of crime, supposing even that he proceeded on the most fine calculation of chances, could reasonably expect a confinement in the Penitentiary ? On the other hand, he might, without great improbability, reckon either on the hulks or New South Wales, whichever might happen to best suit his inclination. The great object in arranging a system of punishments, is to make it as little a lottery as possible : to convict, award sentence, and inflict punishment with a kind of mechanical regularity, undisturbed by human mercy, discretion, caprice, or indolence. No opinion of power in the officers of justice, or of terror in the punishment, is sufficient, if there appears a reasonable prospect of escape. And thus Juvenal’s admirable description of the course of thought by which a man doubting whether he shall commit a crime, persuades himself that he shall elude the anger of the gods, applies with double force to the less infallible discoverers of crime, and the feebler executors of justice, who are entrusted with the administration of human laws.
“But grant the wrath of heaven be great; ‘tis slow,
And days, and months, and years precede the blow.
If then to punish all, the gods decree,
When, in their vengeance, will they come to me ?
But I, perhaps, their anger may appease,
For they are wont to pardon faults like these :
At worst, there’s hope; for every age and clime,
See different fates attend the self-same crime.
GIFFORD’S Translation, Sat. xiii.
“Another reprehensible part of our system is, that in the more serious offences, the criminal rarely suffers the punishment to which he is publicly sentenced. If he is sentenced to death, that generally means that he is not to suffer death, but to be transported for life; if he is sentenced to transportation for seven years, that means he is not to be transported for seven years, but to be imprisoned about half that time in hulks or the Penitentiary. Unless a felon is hanged, the sentence which he will really suffer is a matter of entire uncertainty even if he is transported for life, he may receive a full pardon at the end of eight years. In the midst of all this uncertainty, the only thing that seems absolutely certain is, that he will not suffer the punishment which the law declares that he is to suffer, viz. death.
There is, moreover, a further evil in transportation, peculiar to itself, and not shared by the other two secondary punishments. It is not certain that a convict will be imprisoned in the Penitentiary, but if he is imprisoned in the Penitentiary, there is only one punishment for all the prisoners. The same is true of the hulks; the mode of punishment is the same for all. But with transportation, not only is it not certain that a convict will be transported, but when he is transported, there is an immense variety of lots which may befal [sic] him. He may live either in the town or in the country, may serve the government or a settler, have a good or bad master; remain poor or grow rich, be well or ill treated; be a tutor or a shepherd; a government clerk or a tavern-waiter : whence it arises, that every one selects the condition which is the most agreeable to himself, and expects to meet with that particular destination : any case of hardship which may come to his ears, he sets down as a lamentable accident for the unhappy sufferer, who is much to be pitied for his misfortune; but he never thinks of applying it to his own case. The banker’s clerk, or the London thief, expects to be a tutor, or to be employed in a public office : the mechanic expects to cheat the government and work for his own profit : the agricultural labourer to have little fatigue, and be well fed, clothed and lodged. And the truth is, that they are generally right in their respective calculations, as the government is forced to employ them in the way which best suits their former habits; in other words, in the way most agreeable to themselves. Transportation may, indeed, be said to unite in itself all the attributes of bad punishment; to furnish a model for a penal system which should be imitated by contraries. Even if it were rendered certain by making it the only secondary punishment, this change would rather aggravate the evil. For its chief defect is its extreme mildness, and want of terrors : and the happy facility with which it adapts its various pleasures to the case of each individual. Hence, by persons under sentence in England, it is coveted rather than dreaded, and is an object of ambition rather than aversion. While of the convicts, some are tormented with the fear of death; some depressed with the disgrace of a conviction in their native country some with the dread of the hulks, others of the Penitentiary : and while most are intent on the prospect of wealth and importance in a new home, the tickets of the lottery are drawn, and happy they who get the prize of transportation.
“Alii panduntur inanes
Suspensi ad ventos; allis sub gurgite vasto
Infectum eluitur scelus, aut exuritur igni.
Quisque suos patimur manes : exinde per amplum
Mittimur Elysium, et pauci laeta arva tenemus.
“There is only one remedy for our system of secondary punishments, viz. to destroy every part and parcel of it, and to substitute an entirely new system in its place. The building is too crazy and rotten to be propped up by temporary supports, or to be patched by partial repairs. It has grown out of a succession of expedients and palliatives, but the time for shifts and provisional arrangements is now past, and the evil has at length become so great that it ought no longer to be endured. So far as it goes, the Penitentiary is founded on a right principle; but the numbers of the prisoners are so few, and the separation so imperfect, and the expence [sic] so considerable that even this institution calls for a radical reform. Confinement with hard labour in the hulks is a punishment which to the working man has few terrors : he enjoys the society of his companions, and is not debarred from many of the luxuries to which he has become accustomed. The hulks are considered in the light of a sacrifice of so much time; a prisoner gives up three years of pleasure, but he does not pass three years of pain. Far worse, however, than even the hulks, is the system of transportation : the pain inflicted by this punishment is insufficient in amount, irregular in its operation, often unknown on account of the distance at which it is endured, and if known, so uncertain as not to be reckoned on : its disgrace is not felt, because the sufferers are out of the sight of those whom they respect; it injures the colony by forming a society of the most worthless and abandoned wretches drafted from the prisons of a large community; by annually pouring in fresh supplies of this moral poison, by concentrating, multiplying, and perpetuating the scattered and transitory forms of vice, it has made this new and wealthy settlement a storehouse of depravity, one vast heap of moral corruption it is a system from which nothing is to be hoped, and everything to be feared; a system of elaborate mischief and consistent impolicy, originating in helplessness, continued in ignorance, and tolerated only by supine and culpable indifference.
“We have learnt, both with surprise and concern, that all proposals to discontinue the annual shipments of convicts to the Australian provinces, meet with great opposition from the free inhabitants of those colonies, who consider they have a vested right to be provided with bond-slaves at the public expense, and that the system which might have been less objectionable in the early state of the colony, is to be maintained for their benefit, however injurious it may prove to the lasting interests both of the mother country and the colony itself. Sincerely do we hope that ample ground may be given to these colonists to be loud in their complaints, by a cessation of the supplies of convicts; and that a trial may be given in this country to the American system of home imprisonment for short periods of time, of which an account may be found in the Travels of Captain Basil Hall. This system combines all the advantages which transportation has not; it begins immediately after sentence; it is painful in the extreme, by enforcing strict silence and hard work by day, and solitude by night; it is constant and uniform; in cheapness it far exceeds every other punishment except death;* [Footnote - * Captain Hall states that the manager of Sing Sing prison mentioned that in a short time he should be in a condition to offer to take upon himself the whole expense of the establishment, provided that he received the produce of the prisoners’ labour. Under these circumstances, the only expense to the public would be the interest of the prime cost of the building.] and it affords the best chance of reformation which any mode of reclaiming depraved persons can afford, inasmuch as it connects labour and instruction with their most agreeable associations, as silence is never broken except by the voice of the teacher; and where conversation and amusement are forbidden, labour itself is a relief.* [Footnote - * Mr. Wakefield states that ‘when Captain Hall’s account of the American prisons was published, he read it to many of the convicts at different times, and the effect it produced upon their imaginations was very striking : it made them shudder, and any such punishment as that they would dread beyond measure.’ - Ev. 1462. The Penitentiary at Geneva has recently attracted much of the attention of foreign writers, but we are not sufficiently acquainted with its plan and arrangements to pronounce an opinion.]
“It is, however, necessary to remark that the most perfect mode of punishment which can be devised will be ineffectual if an alternative is offered to the minds of the intended criminals, by suffering other imperfect modes of punishment to co-exist with it. If, therefore, the Penitentiary could receive all the convicts now imprisoned in the hulks, and its regulations were formed on the American model, its effect would still be inconsiderable, as all the persons would calculate on transportation. The substitution for one colony for another, of Trinidad for New South Wales, even of an unhealthy for a healthy climate,* [Footnote - * We are sorry to find in some of the questions proposed by the committee (see e,g. 1487), a trace of an opinion more worthy of the cruel spirit of an unenlightened age, than of the wisdom which ought to characterize a modern reformer of our law, viz. that convicts are to be unished by sending them to perish in an unhealthy climate. A measure of the Roman empire, by which several thousand Jews were transported to the island of Sardinia, without regard to the unhealthiness of the climate, has been properly considered as worthy of the despotism from which it emanated. ‘Actum (says Tacitus) de sacris Aegyptiis Judaicisque pellendis : factumque patrum consultum ut quattuor millia libertini generia ea superstitione infecta, queis idonea aetas, in insulam Sardiniam veherentur, coercendis illic latrociniis, et si ob gravitatem, coeli interissent, vile damnum.’ - Ann. 1.2. c. 85.] would be sufficient to nullify the effect of any improvements at home. We are firmly assured that the opinion expressed by Mr. Wakefield, as to the possibility of affecting a great and immediate diminution of crime by a certain, speedy, uniform, and painful punishment, is neither sanguine nor ill-founded;* [Footnote - * Ev. 1485-6, 1592-3.] and if the present, or any other government, should have the courage and perseverance to undertake the entire re-construction of our system of secondary punishments, they would effect an improvement in our penal law in comparison with which the reforms introduced by Sir Robert Peel would shrink into nothing; and they would confer on the community a greater benefit than perhaps any other legislative measure, except an amendment of the poor laws, is capable of effecting.
“There are many parts of our penal system, which in the narrow compass of an article we have not been able even to notice, and many others to which we have only alluded; if, however, the committee on secondary punishments should be re-appointed in this session, and collect additional evidence, especially on the subject of Van Dieman’s Land, to which their researches have not extended, and if there should appear on the part of the government any symptom of an acknowledgment of the evils of our present system, and a wish to amend it, we may perhaps find an opportunity of recurring, on a future occasion, to this most important and much misunderstood subject.”
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