The gradual relaxation of penal discipline, and the absolute want of every thing like a regular system of reform, may be regarded as the third cause of the comparative failure of the transportation system in the Australian colonies.
For some time after the original establishment of the colony of New South Wales, the situation of a convict in that colony, whether in the service of government or in that of private individuals^ was one of real hardship and privation: subsequently, however, when provisions became plentiful, and when many of the settlers, to whom convicts were assigned as farm-servants, began to acquire wealth, the situation of a convict gradually became much more tolerable. In the year 1810, Major-General Macquarie succeeded to the government of the colony; and having adopted the principle that all recollection of a convict's history and doings in England should be obliterated in "New South Wales, and that his situation as a convict in that settlement should be ascribed rather to misfortune than to misconduct, the idea of classifying the convicts according to their previous criminality was thenceforth entirely out of the question. To those employed in government labour, unrestrained intercourse was allowed with one another, and generally also with the free population; while no attempt was made to try the experiment of solitary labour or solitary confinement, either by night or by day. Nay, a pernicious system of rewards and indulgences was established by authority, in virtue of which a convict of any ability could devote a large proportion, both of his time and labour, to his own personal benefit; and the direct tendency of which was to obliterate from his mind all sense of criminality. On the other hand, as it was not the interest of the private settler, to whom convict labourers were assigned, to subject them to any degree of restraint or punishment beyond what his own pecuniary interests or personal convenience might dictate, misdemeanours, which under a proper system of penal discipline would have been visited with speedy and condign punishment, were generally overlooked, and a variety of indulgences afforded, utterly inconsistent with a state of penal discipline.
This has been especially the case all along, with convicts assigned either as domestic servants, or in any capacity whatever in the colonial towns. To consider transportation as a punishment, in the case of a large majority of such convicts, is pre-eminently absurd. Those of them that are employed as domestic servants have generally much lighter labour to perform, and much better fare, than free servants in the mother country; and after a few years' service, they obtain tickets of leave, or certificates of freedom; when they begin the world for themselves with prospects of success in business, or with means of dissipation, utterly beyond the reach of the industrious classes in England. Those, on the other hand, who are employed as clerks or shopmen, have probably a much better situation, and more money to spend in profligate courses, than they ever had at home; a state of things which naturally induces intolerable impudence and assumption. In the case of convicts assigned to settlers in the country, their condition depends in great measure on the character of the master, and in particular instances, they are subject to enormous tyranny; many masters being utterly unfit to be entrusted with convict servants. But in proportion as the convicts have been dispersed over a wide extent of territory, and large numbers accumulated on particular estates, and assignments made to persons of questionable character, there has been a general and progressive relaxation of penal discipline towards the convicts in the service of settlers. Indeed, it must be acknowledged, that so long as convicts are disposed of in this manner, nothing like uniformity in the mode of treatment can possibly be enforced, while rewards and punishments will necessarily be meted out with comparatively little regard to the claims of justice or to individual desert. So unequal, indeed, is the system at present in operation, that transportation, like a lottery-ticket, may prove to the individual who draws it, and with equally little desert on his part, either a prize or a blank.
As to any direct means of attempting the reformation of criminals, it is no want of charity to assert, that they have scarcely ever been had recourse to in any form under the colonial system of New South Wales. Even religious instruction, that most powerful means of reformation, was for a long period either withheld from the convicts altogether, or subjected to some counteracting and polluting influence, which served either entirely to neutralize its efficacy, or to convert it into a system of downright mockery and insult. The great majority of the convicts, on the one hand, being scattered all over the territory, were beyond the reach of pastoral instruction and pastoral visitation; and the clergy of the territory, on the other, who were always stationed in the immediate vicinity of those more concentrated masses of population, that were formed under Governor Macquarie's management, were generally created justices of the peace; the consequence of which was, that the same functionary, who on Saturday had been seated on the magisterial bench, and employed chiefly in sentencing to hard labour on the roads, double irons, and a hundred lashes, was on Sunday transformed into a minister of the gospel of peace, a messenger of mercy, and a herald of salvation! Nay, so blind have the authorities in New South Wales uniformly been, till very recently, to the absolute necessity of encouraging religious instruction, from whatever quarter it might be offered or procured, that during the whole course of General Darling's government, attempts were seriously and successfully made to prevent the arrow of conviction from ever reaching the heart of a convict, unless it had been duly shot from an episcopalian bow.
The manner in which penal discipline has hitherto been administered in New South Wales has depended in great measure on the dispositions and views of each successive governor; being either mild and lenient, or rigorous and severe, according to the constitutional temperament of each representative of majesty. To talk of a system of penal discipline under such circumstances is manifestly preposterous; to expect success from such a chance-medley would evidently be absurd. As compared with his predecessor, General Darling, the present governor is undoubtedly of a mild and lenient disposition towards the convicts. In the exercise of this disposition, he deemed it expedient, shortly after his arrival in the colony, to curtail the power of the colonial magistrates in inflicting summary punishments, in the case of convicts charged with minor offences, by causing an Act of Council to be passed, limiting the magistrates to the infliction of fifty lashes in each case of ascertained delinquency. This naturally gave offence to the adherents of General Darling's policy,—the colonial tories;—and a mighty outcry was accordingly raised against the whig governor for so unheard-of and intolerable an innovation; insomuch, that individuals v^ho had accumulated hundreds and even thousands a year through the labour of their convict servants, without having ever deemed it necessary to expend a single farthing for their spiritual welfare, have had the modest assurance to ascribe the accumulated moral evils that have resulted from the original constitution of the colony, and from the manner in which it had been suffered to grow up to comparative maturity during a period of forty years and upwards of tory neglect and mismanagement, to the relaxed system of penal discipline recently introduced by Sir Richard Bourke!
For my own part, conceiving that under a proper system of penal discipline the brutalizing punishment of flogging might in great measure be dispensed with, and that the Governor was therefore in the right in limiting the colonial magistrates to fifty lashes, I cannot but regard the increase of crime, which these gentlemen deplore in their petitions to parliament, and of which I am sorry to say there can be no question, as an evidence of the utter impracticability of carrying on the government of New South Wales, under the system of management hitherto pursued in regard to the convicts, any longer, and of the absolute necessity of an immediate and fundamental change of system. The relaxation of penal discipline, which the real friends of the colony have to complain of and to deplore, has been of forty, and not merely of four years' continuance; and it must be evident to every candid person, whether in New South Wales or in England, that in proportion as the colony increases in wealth and population, and especially in convict population, the effects of that relaxation must only become more evident and more intolerable. But Sir Richard Bourke is a whig, and the late governor was a tory; and as the whigs have abolished the tory practice of paying for sound political principle in eligible grants of land, in the assignment of valuable convict servants, and in other indulgences in the Australian colonies; it is natural for those who find themselves reduced by these reforming measures to the level of other men, to be much more sensitive to crime on the part of their convict servants, and to political delinquency on the part of their rulers, than they ever were before.