plified it in the simplest form of taking the life, or sequestering the person of the malefactor; dealing with him bodily, instead of with the bad passions and dense ignorance which for the time characterised him; aiming, in short, to expel him from society, rather than to assist him in getting rid of his criminal tendencies. We, perhaps, have rushed into an opposite extreme, and rely too exclusively on reformatory agencies; losing ourselves in the "wildering mazes" and no-thoroughfares of a spurious philanthropy, instead of striking into the straight and open path of justice. To hang as many as they could, and, where practicable, to transport the rest, was the "wisdom of our ancestors." To scruple at the introduction of any penal element into punishment at all is our more amiable weakness; a weakness, however, which shows itself as yet more in theory than in conduct.

We have spoken of the state of the prisons in Howard's days. He saw the beginning of our penal colonisation of Australia. Transportation, as a modern English institution, dates, indeed, from a much earlier period, from the reign of James I., who, by a questionable extension of the Act 39 Eliz. cap. 4, ordered the treasurer and council of the colony of Virginia "to send a hundred dissolute persons to Virginia, whom the knight-marshal would deliver to them for that purpose." This, however, was simply exile, without the additional infliction of servitude. By a statute of Charles II.'s reign, the judges are empowered to "execute, or transport to America for life, the moss-troopers of Cumberland and Northumberland." Readers of Mr. Macaulay know the fate which awaited the unhappy Monmouth's unhappier adherents,— sold as slaves to the plantations. In the reign of George I. acts were passed permitting the transportation of felons with benefit of clergy to the American colonies, and giving "to the person who contracted to transport them, to his heirs, successors, and assigns, a property and interest in the services of such offenders for the period of their sentences.' On their arrival they were sold by auction. With the outbreak of the American war, in 1775, this resource ceased to be available. Government was left with a number of criminals on its hands, whom it was at a loss to dispose of. Humane recommendations were made. "It was suggested by some to ship the convicts of England off to the western coast of Africa, there to be turned loose among the negroes." But the main controversy lay between the advocates of a penal and corrective discipline at home, and of transportation to Australia. There were symptoms at first of a desire really to sift the comparative merits of these two schemes. In the mean

*Report of Sir W. Molesworth's Committee (1838), p. iii. See also Political Dictionary, article “Transportation." † Chapters on Prisons, p. 130.

time the hulks were established,-at first as prisons for hard labour, afterwards as places of provisional detention for persons under sentence of transportation. Howard's inspection was the means of correcting many abuses, which we cannot say had crept into them, for they were coeval with their origin, but which at any rate he found there; and he seems to have looked on the system with some degree of favour. His continental travels, more especially his experience of the penal institutions of Holland, had convinced him that it was practicable for a nation to deal even with its worst criminals at home; and he regarded the establishment of the hulks as a step in the right direction. A further step, soon, unfortunately, to be retraced, was the passing of the Act, 19 Geo. III. cap. 74, for building two penitentiaries in England. At the urgent entreaties of Sir William Blackstone and others, Howard consented to become supervisor of the proposed prisons, in conjunction with two colleagues; but the death of one of them, and the querulous opposition of the other, led to his retirement, and the abandonment of the whole project. The advocates of transportation henceforth had it all their own way. The necessary orders in council were issued; and in 1788, more than seven hundred convicts, male and female, were disembarked near the spot where the city of Sydney now stands. In 1803, criminals were first received into Van Diemen's Land. In 1826, the free settlers of Norfolk Island, with their assigned servants, were removed thence, and the place converted into a penal settlement for convicts reconvicted.

The system which was in operation in the Australian colonies until 1812 may be briefly described. Immediately on the arrival of a convict-ship, the majority of its human cargo were allotted as servants to private individuals, without regard to the nature of the offences for which they had been sentenced, their term of punishment, or their general character,—with an eye solely to their probable capabilities as workmen. Their future fate depended entirely on the disposition of the masters into whose hands they fell, who, with certain nominal restrictions, were virtually absolute. Many of the worst men speedily attained a position of comfort not inferior to that of free labourers in the corresponding employments at home. Others, who were assigned to harsh and tyrannical masters, the Legrees and Tom Gordons of the colony,-were subjected to a worse than American bondage. Thus the great essentials of penal discipline,-certainty of punishment, and proportion of punishments to deserts,-were utterly set at naught. The custom of employing assigned convicts, male and female, as domestic servants, was prevalent; but it was so fearfully depraving to the families, especially to the young children, of the settlers, that, in 1838, Lord Glenelg was compelled wholly to

prohibit it. The minority of convicts, for whom private service could not be obtained, were employed upon the public works. They were distributed into six classes, and subjected to varying degrees of hardship and privation, according to conduct. To complete this imperfect outline of the system, we must add, that "a convict, transported for seven years, obtained at the end of four years; for 14 years, at the end of six years; and for life, at the end of eight years, as a matter of course, unless his conduct had been very bad, a ticket-of-leave, enabling him, under certain regulations, to work on his own account."+ These men, worthy or unworthy of them, often rose to positions of trust and influ But they were obliged to report themselves annually to the authorities of their district; and, being still under sentence, could not sue for wages withheld, or other debts,-a disability which was occasionally taken advantage of. After a further period a free pardon was granted, and the ticket-of-leave man became an "emancipist." Those who gained their liberty by the expiration of their whole term were named "expirees."

ence.

We maintain that this system of punishment has failed as regards all the purposes at which punishment should aim. Colonel Collins's work on New South Wales gives the experience of the first fourteen years of its operation. He was a government employé, and his testimony is unwilling where he saw it to be adverse; though its real bearing was often unperceived by himself. The facts brought to light by Sir William Molesworth's Committee in 1838 carry the history down to the time of their inquiries, and assuredly do not present matters in a more favourable light. They reveal results which it was needful should be made known; but that they have been given once is enough. It is desirable that they should be recorded in an accessible form, and then that there should be as little access to the record as possible. The Mysteries of Paris are healthier and more cheerful reading than some parts of this evidence. We confine ourselves to the following extracts from the report of the committee:

"In old communities, where there is a comparative want of employment, and profits are low, the amount of crime is not a perfectly sure test of the moral state of society, as the general uneasiness of the population gives birth to innumerable offences against property; but in those new communities, where there is a pressing demand for labour, and great facilities for acquiring wealth, crimes so numerous and so atrocious as those, perpetrated in New South Wales and Van Diemen's Land, truly indicate the depth of their moral depravity. It is difficult,

* See the evidence of Dr. Ullathorne, Mr. Barnes, and Mr. Russell, before Sir W. Molesworth's Committee, qu. 225, 226, 403-407, 527-545.

Report of Sir W. Molesworth's Committee, p. xvii.

See the extracts in Bentham's Panopticon versus New South Wales.

indeed, to form an adequate conception of the frightful degree of crime which the above tables* express; suffice it to say, that they show that, in proportion to the respective population of the two countries, the number of convictions for highway-robbery (including bush-ranging) in New South Wales, exceeds the total number of convictions for all offences in England; that rapes, murders, and attempts at murders, are as common in the former, as petty larcenies in the latter country. In short, in order to give an idea of the amount of crime in New South Wales, let it be supposed that the 17,000 offenders who last year (1837) were tried and convicted in this country for various offences, before the several courts of assize and quarter-sessions, had all of them been condemned for capital crimes; that 7,000 of them had been executed, and the remainder transported for life; that in addition, 120,000 other offenders had been convicted of the minor offences of forgery, sheepstealing and the like, then in proportion to their respective populations, the state of crime and punishment in England and her Australian colonies would have been precisely the same.

The catalogue of convictions in New South Wales, by no means, however, exhausts the catalogue of crimes committed; for Judge Burton, in his charge to the grand jury of Sydney (to which document your Committee have already referred), after giving a vivid description of the crimes of violence, the murders, the manslaughters and drunken revels, the perjuries, the false witnesses from motives of revenge or reward, which in the proceedings before him had been brought to light,' after mentioning several cases of atrocious crimes, as characteristic of the general want of principle in the colony; after referring to the mass of offences, which were summarily disposed of by the magistrates, and the several police-offices throughout the colony,' spoke of the numerous undiscovered crimes, which every man, who heard him, or to whom the report of his words should come, would at once admit to have occurred within his own circle of knowledge; and then he said, 'the picture presented to men's minds would be one of the most painful reflection; it would appear to one, who could look down upon that community, as if the main business of them all were the commission of crime, and the punishment of it; as if the whole colony were in motion towards the several courts of justice; and the most painful reflection of all must be, that so many capital sentences, and the execution of them, had not had the effect of preventing crime by way of example." (pp. xxvii. xxviii.)

This last remark was not a mere rhetorical exaggeration of the judge's. Sir Francis Forbes, then chief-justice of Australia, mentioned "the case of several men at Norfolk Island cutting the heads of their fellow-prisoners with a hoe while at work, with a certainty of being detected, and with a certainty of being executed; and, according to him, they acted in this manner apparently without malice, and with very slight excitement, stating they knew they should be hanged, but it was better than being

*Given at pp. xxv. xxvi. of the Report.

where they were" (p. xv.). Dr. Ullathorne, the Catholic vicargeneral of New South Wales and Van Diemen's Land, thus relates his interview with the prisoners under sentence of death for mutiny and murder in Norfolk Island in 1834:

"On my arrival at Norfolk Island I immediately proceeded, although it was late at night, to the gaol; the commandant having intimated to me that only five days could be allowed for preparation, and he furnished me with a list of the 13 who were to die, the rest having been reprieved; I proceeded therefore to the gaol, and upon entering the gaol I witnessed such a scene as I never witnessed in my life before. The men were originally confined in three cells; they were subsequently assembled together; they were not aware that any of them were reprieved. I found so little had they expected the assistance of a clergyman, that when they saw me they at once gave up a plot for escape, which they had very ingeniously planned; and which might, I think, have succeeded, so far as their getting into the bush. I said a few words to induce them to resignation; and I then stated the names of those who were to die; and it is a remarkable fact, that as I mentioned the names of those men who were to die, they one after the other, as their names were pronounced, dropped upon their knees and thanked God that they were to be delivered from that horrible place, whilst the others remained standing mute; it was the most horrible scene I ever witnessed. Those who were condemned to death appeared to be rejoiced.” (p. xvi.)

The same witness mentions another circumstance, at which, sad as it is, it is almost impossible to repress a smile. In mercantile parlance, "a good man" is one to whom a tradesman may safely give credit; one who is solvent, in short.* The public opinion of the convicts had its own abusive employment of the same phrase. "When a prisoner," says Dr. Ullathorne, "has been conversing with me respecting another individual, he has designated him as a good man. I suspected that he did not mean what he said; and on asking an explanation, he has apologised, and said, that it was the habitual language of the place, and that a bad man was called a good man; and that a man who was ready to perform his duty was generally called a bad man. There is quite a vocabulary of terms of that kind, which seems to have been invented to adapt themselves to the complete subversion of the human heart which I found subsisting." (p. xvi.)

In the penal settlements of Van Diemen's Land things were even worse than in Norfolk Island. The men of whom this is said were, it is true, the incorrigible among the convicts, those under punishment for aggravated crimes perpetrated after trans

Shylock. Antonio is a good man. . . . My meaning in saying that he is a good man, is to have you understand me that he is sufficient. Yet his means are in supposition. The man is notwithstanding sufficient. Three thousand ducats: I think I may take his bond." Merchant of Venice, act i. sc. 2.