Transportation and colonization/Chapter 2



There have recently been writers of considerable eminence in Great Britain opposed to the continuance of the transportation system, as a species of punishment, altogether; holding that it must necessarily fail of accomplishing either of the two grand objects of punishment,—the prevention of crime and the reformation of criminals. Among writers of this class, Archbishop Whately has taken the lead; advancing a series of arguments, of an a priori aspect, against the whole system of transportation, which however are all evidently founded on admitted facts and statements of an a posteriori character, illustrative merely of the manner in which that system has hitherto been administered, or, to speak the plain truth, in which its administration has been grossly mismanaged, in the Australian penal colonies. Having been led, after a residence of upwards of thirteen years in these colonies, to view the subject in a somewhat different light from that in which it has thus been viewed by the Archbishop of Dublin; and having been enabled to ascertain, from long experience and careful observation, the real character and tendency of transportation, as a species of punishment, apart from those accidents, arising solely from the grossest mismanagement, which have, unfortunately for the empire, made it assume for the time a totally different character, and exhibit quite an opposite tendency; I propose in the sequel of this treatise to state the result of my experience and observation, and the grounds of the opinion I have formed.

The efficacy of transportation, whether as a means of preventing crime or of reforming criminals, must evidently depend entirely on the manner in which the transported criminals are managed; that is, on the character and efficiency of the penal discipline to which they are subjected, and on the circumstances in which they are placed, both before and after the termination of their period of bondage, or penal servitude, in the place of their transportation: in other words, transportation must either be efficacious for the accomplishment of its object, or the reverse, in proportion as it comes up to the proper idea of a punishment, or falls short of it. "The points which most persons would look to," observes Archbishop Whately, in his letter to Earl Grey, "as important requisites in any kind of punishment that is to be awarded, are,—first, and above all considerations, that it should be formidable; i. e. that the apprehension of it should operate as much as possible to deter men from crime, and thus to prevent the necessity of its actual infliction: secondly, that it should be humane; i. e. that it should occasion as little as possible of useless suffering,—of pain or inconvenience that does not conduce to the object proposed: thirdly, that it should be corrective, or, at least, not corrupting; tending to produce in the criminal himself, if his life be spared, and in others, either a moral improvement, or, at least, as little as possible of moral debasement: and, lastly, that it should be cheap; such as to make the punishment of the criminal either absolutely profitable to the community, or, at least, not exceedingly costly."

Let transportation then be dispassionately examined by these tests, and I am confident the result will not be unfavourable to its adoption as a species of punishment.

1. In regard then to the first requisite in a punishment, viz. that it should be formidable, Archbishop Whately proposes to substitute for transportation solitary confinement in penitentiaries, and hard labour under efficient superintendence in England. But there is surely nothing more formidable in solitary confinement and hard labour in England, than there is in solitary confinement and hard labour at a penal settlement on the coast of New Holland. Solitary confinement by night may be impracticable in the case of convicts employed at hard labour of certain descriptions at a penal settlement; as, for instance, in road-making, the place of encampment in such cases requiring to be frequently changed: but even in these cases, the difficulty, I conceive, might be easily got over in a country abounding in forest-timber. That there should be any difficulty, however, in subjecting a convict under sentence of transportation to as hard and incessant labour at a penal settlement in New Holland as it is possible to subject him to in England, I cannot conceive: on the contrary, the facilities of apportioning the comparative severity of the labour to the comparative criminality of the convict, are much greater in a new country than in one in a high state of improvement. The labour, for instance, required in the various operations implied in road-making, in a country of broken surface and hot climate—the felling of hard timber, the blasting of immense rocks, the filling up of deep cavities with stones and earth, to be carried often from a considerable distance—such labour is unquestionably hard, irksome, and formidable in the extreme. That transportation should imply such labour in every instance, without exception, is, I apprehend, the intention of the legislature. That it has not implied any thing of the kind, however, in the past practice of the Australian colonies, is to be imputed entirely to the Executive, both at home and abroad. And, if under such practice transportation has ceased in a great measure to be formidable in England, and consequently to be efficient as a means of preventing crime, the fault is not to be ascribed to the transportation system, but to a system of colonial mismanagement, which no person but the inmate of a lunatic asylum would attempt to defend. Let that system, therefore, be immediately discontinued, and a system of management pursued for the future, in accordance with the principles of right reason, and transportation will, I am confident, become as formidable as Archbishop Whately could desire.

For a considerable period after the penal colony of New South Wales was originally established, the idea prevalent among all classes in England was, that transportation was a measure of great severity to the convict, a condition of incessant labour and extreme privation. I have reason to believe that this idea was well-founded; and accordingly so great was the terror with which the very idea of transportation inspired criminals in the mother country, that in Mr. Montagu's work on the 'Punishment of Death,' there are well-authenticated instances adduced of female convicts, under sentence of death, actually refusing their lives on the condition of being transported to Botany Bay. So long therefore as this idea prevailed, transportation was really formidable as a punishment, and the prospect of such a punishment must consequently have operated in the way of prevention as strongly as that of any other punishment whatever. Why it afterwards ceased in great measure to be operative in this way, will appear sufficiently obvious in the sequel.

2. In regard to the corrective or reformatory character and tendency of transportation; this also must depend in great measure, if not entirely, on the treatment to which the criminal is subjected, and the sort of penal discipline through which he has to pass in the place of his transportation. Antecedently to all experience on the subject, "reason itself would teach us," to use the language of Filangieri already quoted, that it is possible to transform a bad man into a good one, by removing him from the theatre of his crimes, of his infamy, and of his condemnation:" and, unfavourable as the circumstances of the Australian penal colonies have generally been for ensuring the reformation of criminals, I am enabled to state, from my own experience and observation, that this second object of punishment has actually been attained in these colonies in many instances; and that such instances would, in all probability, have been tenfold more numerous, but for the circumstances and events, connected with the administration of penal discipline in the Australian colonies, hereinafter to be detailed. Indeed, I am confident, from all I have seen and heard in these colonies, that the rigorous enforcement of a proper system of penal discipline in New South Wales and Van Dieman's Land would have proved corrective or reformatory in the highest degree.

It is well observed by Archbishop Whately, that the criminal population of England is not a fixed quantity, which will be permanently diminished by the abstraction of a certain portion of its gross amount, but a constantly increasing quantity; the abstraction effected by transportation necessarily accelerating, as he imagines, the rate of increase. I observe, however, in reply, that if transportation is so managed as to prove both formidable and corrective, or preventive and reformatory, which I conceive it must necessarily be under a proper system of management, it will no longer have the effect of accelerating the rate of increase of crime in England, even taking it for granted that it actually produces that effect at present. Besides, there is a large proportion of the criminal population in England which there is no prospect nor probability of reforming under any process of penal discipline that can be had recourse to in the mother country; and it is chiefly the influence and example of that class of criminals,—those that have been already punished but are still unreclaimed,—that tend in the highest degree to the increase of crime, by drawing innocence and inexperience within the vortex of criminality. The steady increase of this class of criminals, constituting what Captain Basil Hall, in his evidence before the committee of the House of Commons on secondary punishments, styles "the culprit population" of the country,—criminals who form the regular inmates of its gaols and penitentiaries, and who are no sooner dismissed from one place of confinement than they find their way to another,—has been observed and deplored even in the United States of America. The gradual abstraction of this class of criminals, under a properly organized system of transportation, could have no tendency to increase the sum total of crime in England; on the contrary, it would tend directly to diminish it. And if these criminals were transported to a far distant settlement, in which, after their period of punishment had expired, new scenes and new circumstances would open up to them new prospects, (while their hopeless removal from the theatre of their former crimes would also shield them from the influence of their former temptations,) I am confident that, in the greater number of instances, they would also manifest new dispositions, by pursuing a new course of life.

3. And surely such a mode of treating a criminal, (I mean, a criminal who has already undergone punishment in England,) is unspeakably more humane than the one recommended by Archbishop Whately, and pursued in the United States of America,—that of sentencing him again and again to imprisonment and hard labour in gaols and penitentiaries, till at last, in perfect recklessness, he comes to regard a prison as his home and his country;—and the hopeless condition of his existence, that of enmity towards the whole human race.

"That a punishment," observes Beccaria, "may not be an act of violence of one or of many against a private member of society, it should be public, immediate, and necessary; the least possible in the case given, proportioned to the crime, and determined by the laws." Now all these conditions may be realized in transportation; or, in other words, the period and the degree of severity may be duly apportioned beforehand for each particular case of criminality, by a wise and humane legislature, and the legal award duly enforced thereafter by a firm and unflinching executive: for it is another principle, advanced by that high authority, that "the legislators should be merciful, but the executors of the law inexorable." Indeed, it is inattention to these two great principles of penal jurisprudence, that has rendered the punishments inflicted under the law of England so generally inoperative as they have hitherto proved. The acknowledged sanguinary character of certain of the awards of that law gradually and insensibly relaxed the hands of the executive, and caused the sword of justice to fall powerless from their grasp; and this principle of relaxation having been once admitted into practice, it extended, in process of time, to cases in which the awards of the legislature were originally neither sanguinary nor severe. This has been especially the case in regard to the punishment of transportation, as it has hitherto been administered in the Australian colonies. That punishment was originally a humane award of the executive towards individuals who had forfeited their lives to the community: but, by a system of pardons and indulgences the most injudicious and unwarrantable, it has been rendered in many instances a complete mockery of all law and justice. It has been well remarked by Rousseau, that, "under the Roman republic, neither the senate nor the consuls ever attempted to grant pardons," and that "the frequency of pardons indicates that in a short time crimes will not stand in need of them." I am sorry to add, that while the Roman practice has been but little followed, we have had abundant evidence of the natural result and the necessary consequence of neglecting it in the Australian colonies.

4. In regard to the cost of transportation, as compared with other modes of punishment, Archbishop Whately observes, "That this point is of far less consequence than the others; and of less than it is, I think, usually considered; but still is one which must not be entirely overlooked, since a failure in this point, inasmuch as it admits of infinite degrees, might conceivably be such as to amount to a very serious evil." I am disposed to concur with His Grace in considering the comparative cost of any description of punishment as by no means a point of primary importance; as it is possible that the cheapness of a particular species of punishment might affect its efficiency, and prove an encouragement to crime. At the same time, in a country, of whose population there are uniformly 50,000 souls and upwards in the state of convicts, either at penal settlements beyond seas, or in hulks, gaols, and penitentiaries at home, the subject of expense is not to be disregarded, especially in the present age of political economy. I maintain, therefore, that transportation, if at all rightly managed, is, of all possible modes of maintaining a convict during the period of his penal servitude, the most economical; besides presenting the additional advantage of permanently ridding the country of the irreclaimable portion of its culprit population.

In regard to the comparative expense of the penitentiary system, which Archbishop Whately proposes to substitute for transportation, the Report of the Parliamentary Committee on secondary punishments for the year 1832 contains the following information:—The great expense of maintaining the convicts has been urged against the penitentiary system: it appears, that since the opening of the prison in 1824, the cost per head has varied from £30. 3s. per annum to £57. 12s. 2d. The expense, however, incurred since 1824 does not give a fair view of the necessary cost. The greatest number of prisoners confined at one time since 1824 has not exceeded 551 males and 143 females; but the prison is capable of containing, by the conversion of the workshops (which, by the abolition of the second class, are no longer wanted,) into separate cells, 796 males and 380 females: but as no proportionate increase of establishment would be required, the expense per head would be materially diminished."

The expense of the maintenance of convicts in New South Wales will appear from the following colonial

Return of the number of prisoners maintained by government in road and chain gangs, gaols and penal settlements, and the average yearly cost of each: 13th of July, 1836.
Maintained in Number of Prisoners Average yearly cost of each, including every charge
£. s. d.
Road-gangs  982  9  9 10½
Chain-gangs 1191 10  3  6½
Gaols  646 13  4  6¼
Penal settlements 1250 10 16  6½
Total 4069

As road and chain gangs are the usual modes in which government employ the convicts that are not assigned to private settlers in New South Wales, the average yearly cost of maintaining a convict in that colony may be stated at £10. Supposing, therefore, that each convict under sentence of transportation for fourteen years or for life is to be maintained in such gangs in New South Wales for seven years, the whole cost of the maintenance of each transported convict during that period, allowing £15 additional for the payment of his passage-out,[1] will not exceed £85, or £12. 2s. 10¼d. per annum. But even admitting that the cost of the maintenance of convicts in penitentiaries in England could be reduced generally to the lowest rate to which it had ever been actually reduced during eight years previous to the year 1832, viz, to £30. 3s.. (the average cost varying from that amount to £57. 12s. 2d.) the whole cost of the maintenance of a convict in a penitentiary for seven years would amount to £211. 1s. or £30. 3s. per annum. Besides, supposing the penitentiary system to be the only one allowed by government for the future, the probability is, that in four cases out of every five, the liberated convict, after having served out his seven years and subjected his country to this enormous expense, will very soon find his way back again to his old quarters, and subject the country to a second burden of a similar kind. If transported, however, to a penal settlement on the coast of New Holland, the probability is, that in ninety-nine cases out of every hundred, the country will be rid of him for ever. There can be no question, therefore, as to the comparative eligibility of the transportation system in the article of expense.

Connected with this branch of the subject, there is another consideration of great moment. Convict labour is a species of public property, which the state has a right, and is in duty bound, to turn to the best account for the public benefit: but there can be no question as to whether convict labour can be employed more advantageously for the public in the colonies, where labour is in requisition and proportionably valuable, than in the mother country, where it is in superabundance and proportionably cheap. Under a proper system of management the labour of a convict at a penal settlement might be made to produce on the Australian continent double, triple, or even four times the whole cost of his maintenance; whereas in England it will only produce a small portion of that cost, even under the best management. Besides, in the latter case, it comes into competition with free labour, and proves a source of grievance to the free labourer.

"Convicts should never be allowed," says Archbishop Whately, "as in New South Wales, to be employed and paid by farmers;" a sentiment in the propriety of which I entirely concur: "but the superintendents might contract for the levelling, draining, or trenching, &c. of a piece of ground," (that is, in England,) "and would thus set the convicts to work under their own inspection: and though the payment for this, and indeed any other labour of convicts, could seldom be expected to cover the cost of their maintenance and other expenses, it might still be regarded as so much clear gain, since they must be maintained at any rate."

The Archbishop, therefore, virtually proposes that the superintendents of convicts should underbid free labour in the home-market, and thereby take the bread out of the mouth of the free labourer, who is employed in England, perhaps, at a shilling a day; or in Ireland, as was lately the case near Limerick, up to his knees in water too, for not more than fourpence! But would such a measure, on the part of government, be tolerated by the labouring poor in a free country? or rather ought it to be tolerated? Would not insurrections, rick-burning, prison-breaking, martial law, and ten thousand convictions for sedition be the result?

But let the superintendents and convict labourers be only transferred to New South Wales, and there will be no fault found by any party, at whatever rate they should contract for the formation of a thousand miles of good road, for the construction of several good harbours in suitable localities, or for clearing, levelling, draining, and trenching any extent of land. Various public works of this kind are urgently required by the colony at present, but cannot be accomplished for want of labour, although the colonial government is both able and willing to pay for that labour from the colonial treasury. Nay, the greater the amount of free labour that shall be imported in future into New South Wales, and employed in agriculture and grazing, in commerce and in the mechanical arts, the greater will be the colonial demand for labour of the very kind for which the Archbishop's superintendents would be inclined to contract; and the more able will the colony be to pay for that labour. Supposing, therefore, that all other things were equal, it would be both the interest and the duty of government to employ convict labour at penal settlements beyond seas, rather than at home.

This principle, I am happy to state, is in perfect accordance with the views of the ablest continental writers on the subject of punishment. These writers, indeed, have had no previous experience of the natural tendency and operation of the transportation system; but in this particular they are not more unfavourably situated for offering a well-founded opinion on the subject than Archbishop Whately, who argues against that system, not from its natural tendency, but from its past mismanagement. "Les peuples," says Filangieri, in his work already quoted on the Science of Legislation, (French translation,) "Les peuples qui possèdent des pays dont la population ne suffit pas pour animer leur agriculture et leur commerce, et étendre ou soutenir leur iudustrie, ont un moyen de plus que les autres pour punir certains délits, et faire servir les perturbateurs de la société à Taccroissement de la richesse publique.

  1. During the year 1834, the ship Norfolk was chartered to convey convicts to New South Wales or Van Dieman's Land, at a rate which cost the government £6 for each convict: their provisions, at the rate of 9d. a day for 120 days, would cost £4. 10s. additional. Other items might, perhaps, raise the cost for each convict to about £15.