Reform in system of secondary punishment—Convicts still to be sent to the antipodes but after passing through various stages of improvement—Van Diemen's Land, or Tasmania, chosen as sole future receptacle of convicts who are to pass through probationary treatment—Real imprisonment—Removal to Government gangs—Conditionally at large—Ticket-of-leave—Absolute pardon—Development of Norfolk Island—Its degeneration—Domination of the "Ring"—Port Arthur—Convicts in excess of the resources of the colony—Ominous prospect.

We now arrive at a new stage in the history of penal legislation. The time had come when transportation was to be distinctly discountenanced and its approaching abolition openly discussed. Many concurrent causes contributed to this. Sir William Molesworth's committee, in 1837, had spoken against transportation in the plainest terms. It was condemned because it was unequal yet without terrors to offenders. It was extravagantly expensive, and most corrupting to convict, colonist, and all concerned. Last, but not least, the protest of the colonists themselves, now for the first time formulated and put forward with all the insistance that accompanies the display of a virtuous determination, could not be entirely ignored. Important changes therefore were inevitable, nor could they be much longer delayed.

In point of fact, in the matter of secondary punishments it was a return to the position of fifty years before. At one and the same moment the three latest devised outlets through which the graver criminals had been disposed of were practically closed: the antipodes, by agitation and the strident voice of public opinion; the hulks, by the faultiness of their internal management; and the great reforming penitentiary, by the absolute barrenness of results. If deportation beyond the seas were to come to an end, then the convicts must remain in the mother country. But where? Not in the hulks; that was out of the question. Sir William Molesworth had recommended more penitentiaries, as the Nabob ordered more curricles. But the country grudged another half million: there had been little or no return for that spent years before on Millbank. Then it was suggested that large prisons should be constructed on the principle of Pentonville, for ordinary offenders, while the more desperate characters were to be drafted to Lundy Island and other rocks that might hold them. A third scheme was to construct convict barracks in the neighbourhood of the dockyards, to replace the hulks; but this, which contained in itself the germ of the present British prison system, was far too radical a change to be tolerated at that time or for many years to come. All action being thus impeded and beset with difficulty, the British Government steered a middle course. It was thought that by grafting certain important so-called improvements upon the old system it might be retained. Doubtless, judged by later experience, the plan appears shifty and incomplete; but in theory and as seen at the time it was excellent. It was deduced by sound logical arguments from given premises, and had those premises remained unchanged the system might perhaps have existed longer without collapse. But reasoning on paper is not the same as in real life: one small accident will upset the profoundest calculations. The plan of "probation" which I am about to describe was admirably devised; but it failed because the conditions of the colonies varied, and because small obstacles, that were at the time of conception overlooked or ignored, grew in course of time sufficiently powerful to upset the whole scheme as originally devised.

Beyond question the task was not a light one. The Government did not shirk its duty, but it was fully alive to the difficulties that lay in the way. Speaking some years later, a member of that administration thus deprecates adverse criticism. "We could hardly hope," says Earl Grey, "to succeed at once in devising a system of secondary punishments effectual for its purpose and free from objections, thereby solving a problem which has for many years engaged the attention of legislators and statesmen of most civilised countries, and has hitherto proved most difficult for them all." But they met the question manfully, and this is what they devised.

Transportation was to continue in force, but it was to be governed by certain checks and safeguards which had been altogether absent before, through all the long years that convicts had been sent out to the antipodes. And now the whole stream was to be directed on Van Diemen's Land alone. This Van Diemen's Land, which was thenceforth to be only a colonial prison, had been settled some years later than Botany Bay, by a party under Colonel Collins from the parent settlement. It had struggled for life amid the same vicissitudes of famine and privation as New South Wales, and similarly some years had elapsed before its home products were sufficient for its own support. Up to the year 1821 it was solely a penal settlement for the transportation of convicts from Sydney; but after that date a few free settlers planted themselves in it, and by-and-by ships landed their living cargoes at Hobart Town direct from England, just as they did at Sydney in New South Wales. The system of assignment was practised precisely as in the senior settlement, with this difference, that the discipline was more perfect, and the machine worked with greater ease. Two thirds of the whole number there were thus in assigned service, the balance being employed as in New South Wales in chain-gangs, at penal settlements, or on the roads.

Colonel Arthur, who was for many years governor of the colony, and who was well known as a strenuous supporter of transportation, claimed, and with some show of right, that the management and treatment of convicts had been attended with a greater measure of success in Van Diemen's Land than elsewhere. This may have had some weight with the government; for the existence of a good system of administration was essential to the execution of the new project: but it is probable that Van Diemen's Land was chosen as the sole future receptacle of convicts because as yet it had had no thought of refusing to receive them. New South Wales had rebelled, but Van Diemen's Land was still obedient; and no time was lost in turning its willingness to good account.

Although for years it had been more or less a penal settlement, as now constituted it became essentially a colonial prison. Vast masses of convicts were to be congregated in its chief towns; its out-stations were to be overrun with convicts in various stages of emancipation; free convicts were to be the pioneers and settlers of its back lands: in a word, the whole colony was to be permeated, inundated, swamped with the criminal class. That I am using no figure of speech, and to give some idea of the amount of evil with which the small colony had now to deal, I will mention here that in four years no less than sixteen thousand convicts were sent out to Van Diemen's Land, and that the average annual number of transported convicts in the colony was nearly thirty thousand.

The new method came into force on the 20th May, 1840. It was christened the "Probation" system, because the progressive improvement of the convicts was intended to depend on their progress through certain periods of "probation." Every convict was to be subjected to certain punishments and restrictions peculiar to the stage in which he found himself; but these rigours were to diminish, step by step, till he had passed by many gradations from actual imprisonment to the delights of unshackled, unconditional freedom. The plan of procedure is fully detailed in a despatch addressed by Lord Stanley, on the 15th of November, 1842, to Sir John Franklin, then lieutenant-governor of Van Diemen's Land. All convicts, with certain exceptions, were to be subjected to the new process. By it, as I have said, the convict was compelled to pass through certain stages, five in number; and his progress was to be regulated altogether by his good conduct in each stage. The rules were the same for boys and females, but their stations were, of course, different.

Stated briefly these five stages were: 1. Detention at a purely penal station in a state of real imprisonment; 2. Removal to gangs working in various parts of the colony for government, but still under restraint; 3. The first step towards freedom, in which the convict was granted a pass to be at large under certain conditions, and to seek work for himself; 4. The second step to freedom, when the convict gained his ticket-of-leave, and was free to come and go much as he pleased; 5. Absolute pardon.

Only the worst criminals entered the first stage, and for them (a) Norfolk Island and (b) Tasman's Peninsula were set apart. These were the colonial convicts, and men who had been sentenced at home to "life," or fifteen years for heinous offences. The term at Norfolk Island was to be not less than two years, and not more than four; but misconduct consigned an offender to an indefinite term within his sentence.

(a) First as to Norfolk Island.

Situated in semi-tropical latitudes, richly gifted by nature, picturesque, fertile, of fairly equable climate, this small spot seemed to contain within itself all the elements of a terrestrial paradise. It was finely timbered, chiefly with the graceful tree known as the Norfolk Island pine; limes, lemons, and guavas were indigenous; all manner of fruits—oranges, grapes, figs, loquats, bananas, peaches, pomegranates, pineapples, and melons—grew there in rare profusion. Flowers, wild or cultivated, throve everywhere. On all sides the eye rested on long fields of oats, or barley, or Indian maize. And yet the social condition of the island, as compared with its external aspect, was as the inner diseased core of an apple to its smooth and rosy skin. From the earliest days of the Australian colonies this bountifully gifted island had been made the sink of all the lees and dregs of mankind. Occupied in the first instance on account of its fertile aspect, it was soon afterwards abandoned for no sound or substantial reasons. By and by it was again re-occupied, but then only as a penal settlement. And as such it served New South Wales during all the years that transportation was in full swing. It was a prison, and nothing more; convicts and their keepers were its only population. The former at times varied in numbers: one year there were five hundred, another seven; but their lot and condition was always much the same. The worst wore chains. All worked, but not enough to hurt themselves; and the well-conducted were allowed, as their time dragged along, certain immunities from labour and a modicum of tobacco. Occasionally the gaol-gangs, the most depraved of this gathering of wickedness, broke loose, and attacked their guards with brutal desperation. Numbers were always shot down then and there, and of the balance, when overpowered, a fair proportion were forthwith hanged. Stated broadly, life in Norfolk Island was so bitter to the convict that many for choice sought death.

Thus was Norfolk Island constituted, and such the condition of its residents, when the home government, in working out its new penal scheme, resolved to increase the numbers on the island, by drafting to it the most flagrant offenders from home. We have come by this time to accept it as an axiom in prison affairs, that it is unwise to concentrate in one spot the pith and essence of rascality; preferring rather to subdivide and distribute the most dangerous elements at several points. But the statesmen who were then legislating on penal matters ignored this principle; they forgot that they were about to recruit the old gangs at Norfolk Island by the very men most predisposed to become as bad as those they found there. If the administration had been really anxious to perpetuate the leaven of wickedness already existent in the penal settlement, they could not have devised a plan more likely to attain that result.

Under the new rules Norfolk Island was intended to contain—and thereafter usually did contain—some 2,000 convicts. Of these about two-thirds came from England direct. The rest were sentenced in the colonies. There were three stations: the headquarters settlement or "King's Town," Longridge, and Cascades. The first, situated on the south side of the island and facing the sea, was the most important. Here was the principal landing-place; but a coral reef prevented the near approach of shipping, and the anchorage outside it was insecure. Hence all loading and unloading was done by boats; and this, in itself a tedious operation, was rendered more difficult and dangerous by the heavy surf that rolled perpetually across the bar. But except those that came on the public service no vessels visited the island. There was another landing-place at Cascade station, on the north side of the island, which was used when the state of the bar at King's Town rendered it absolutely impracticable for boats. At King's Town the bulk of the convicts were retained. Here were their barracks, in which some 800 convicts slept; here the lumber-yard, where the same numbers messed; here too the hospitals, and the gaols for the retention of those again about to be tried for fresh offences in the island. The barracks, built of substantial limestone and surrounded by a high wall, stood some eighty yards from the beach; the lumber-yard close at hand was simply a high enclosure, two sides of which were roofed in and provided with rough chairs and tables, the whole area within no more than half an acre. Next to the lumber-yard, through which was the only entrance, stood the slaughter-houses and cooks' houses, all filthy in the extreme. There was no supervision over the issue of rations: meat was sold openly at a penny per pound, and the convicts went to and fro from this and the bakehouse just as they pleased. The gaol was close to the landing-place, and right in front of its chief entrance stood the gallows—so placed that to pass the doorway one came almost in contact with the gruesome engine of death. The hospital accommodation for the whole settlement was here at "King's Town," and it amounted to twenty beds, with a detached convalescent ward, cold and cheerless; and this for a population of 2,000, in an island where epidemic dysentery of a malignant type, especially during the summer, was by no means uncommon. In matters of supply the settlement was equal to its own requirements, except after seasons unusually bad. There was an abundance of water in the neighbouring creeks, and, although this was rendered impure by flowing past gardens and stock-yards, it was easily filtered: and there were springs too in abundance. Stock was raised and grain grown chiefly at Longridge, a mile and a half from headquarters. The soil was fertile but light, and required good management.

The day's work began at the several settlements at daylight, when all the men were roused by a bell. Any, and they were not few, who felt idle and indisposed to work, remained behind in bed. But presently—let us stand and look on—six or seven hundred men have collected in the barrack yard, and are to be seen walking leisurely about, waiting for the chaplain to say morning prayers, or if he failed to appear—and this was not unusual—waiting for the commencement of muster. Should the chaplain show himself, some ten or twenty prisoners go with him to the chapel which is close at hand; the rest remain outside, and no effort is made by the overseers to compel their attendance. The overseers are indeed powerless then, as at other times, and exercise no authority whatever.

Prayers over, muster follows; but the performance is as unlike the strict parade it should be as anything it is possible to conceive. There is no attempt at formation by classes, messes, or wards; no silence, no order. The convicts lounge to and fro, hands in pockets, and talking to one another while their names are read out by convict clerks from the superintendent's office—the assistant superintendent, whose duty this would be, being generally unable to read or write. As each convict hears his name he answers or not, as it suits him, and then saunters over to join the working gang for which he has been detailed. As soon as the muster is concluded the men disperse, leaving the yard in groups or one by one, and proceed to breakfast. Here the whole force breakfast on hominy—or paste made from maize meal—seated under cover or in the open areas, preserving no appearance of order, talking and laughing just as they please among themselves. Breakfast over, some go to work, but a great many do not. They have their bread to bake; and this each man does for himself, spending half the day in sifting meal, kneading dough, and loitering leisurely to the bakehouse and back. The only men told off to regular labour are the two gangs who work the crank-mill, and the labour there was so regulated that half usually were idle half the day; while those at work were riotous and disorderly, shrieking, yelling, hooting and assailing every passer-by, whether subordinate official, magistrate, or the commandant himself, with the vilest personal abuse. The great mass of the convicts were engaged in quarrying or in agricultural pursuits. They were superintended by convict sub-overseers, and not by free persons; and the work done was naturally not large, more particularly as these convict overseers went in daily terror of their lives. Indeed, at the time of which I am writing—after the introduction of "probation," that is to say, and probably before it too—there was practically little or no discipline whatever maintained among the convicts. But for the bayonets and bullets of the military guard by which they were more or less awed—though even against them they rose at times, to their own disadvantage—they would have become the real masters of the island; and if they were thus restrained by fear from overt rebellion, they did not hesitate to display as much sullen disobedience and active insubordination as they dared without bringing on themselves retaliatory and coercive measures.

Flagrant outrages, like the seizure of boats which carried stores, were not uncommon, on which occasions the men of the military escort were usually thrown overboard. But perhaps the following occurrence, which took place before the eyes of Mr. R. P. Stewart, a special commissioner sent from Hobart Town, will prove most forcibly the anarchy that prevailed. I cannot do better than use his own words.

"On the first of my morning visits to the lumber-yard," says he, "accompanied by the superintendent of English convicts, I observed, on our entry, a man very deliberately smoking, standing among a crowd round the fire, inside the cook-house." An officer advanced to make the man give up his pipe; but he was received with a look of the most ineffable disdain, and the smoker, getting up with his hands in his pockets, moved to a part of the mess known as the "Ring," where all the worst characters collected. On this an order was issued to have the man taken to gaol; but no one stepped forward to execute it, until at length the acting chief constable, "who had been standing in the rear, advanced with admirable coolness and determination to the spot. The whole yard was now like a disturbed hive, and the superintendent expressed his conviction that there would be a riot, as the men would never suffer the culprit to be taken into custody. However, after a short time had elapsed, the culprit was seen emerging from the dense crowd by which he had been surrounded, with hands in pocket, attended by, rather than in custody of, the chief constable of the island. He (the convict) deliberately advanced to the superintendent, who was standing by my side, and in the most insolent manner said, 'What have you ordered me to gaol for?' The superintendent very coolly expostulated with him and advised him to go quietly, when he deliberately struck him two blows in the face, and using some very opprobrious expressions, fiercely rushed upon and nearly threw him upon the ground." He was seized by a constable, who asked if he should shoot him. But both convict and constable were borne away to another part of the shed by a dense crowd. The men got out their knives, and matters looked desperate, when the acting chief constable again went forward and persuaded the offender to give himself up. Had it not been for the presence of Mr. Stewart, an officer accredited from His Excellency the governor of Van Diemen's Land, a very serious disturbance might have been expected. As it was, the most foul and abusive language was used by the convicts to all the officials present.

This "Ring" which has just been mentioned was in itself a power on the island. All the worst men were leagued together in it, and exercised a species of terrorism over the rest. This was especially noticeable on the arrival and debarkation of a batch of new convicts from England, when every effort for their protection made by the proper authorities proved always ineffectual. If the new hands were lodged under lock and key, the men of the Ring contrived generally to break into the ward and rifle them of all they possessed. If they were marched under an escort of constables to bathe, the old stagers attacked them en route, or while they were in the water plundered them of their clothes. Thus banded together and utterly reckless, the more depraved exercised a power almost absolute over their fellows, so that of these even the well disposed were compelled to submit, in mortal terror of the deadly threats of this vicious, tyrannical confederacy. A convict whose conduct was good could not be protected from violence if there was even a suspicion, with or without reason, that he had borne witness against any member of the Ring, or was otherwise distasteful to it. Speaking in general terms of Norfolk Island, Mr. Stewart states that he was satisfied, from his inquiry, that a confirmed insubordinate spirit existed among the convicts, "constantly exhibiting itself in threats of personal violence towards subordinate officers, towards the constabulary if they resolutely do their duty, and towards their fellow-prisoners if they should be suspected of giving information or assistance to their officers; which threats are rendered more serious and alarming from the general practice of carrying knives, and from their having been fulfilled in instances of stabbing, of assaulting by beating to a cruel, nearly mortal extent, and of personal injury in attempted disfiguration by biting off the nose, and in other overt acts of such a character as to produce a most serious effect in deterring all holding subordinate authority from the vigorous and prompt performance of their duty."

I have lingered thus long over Norfolk Island because it was the starting-point and centre of the new scheme of penal legislation. In actual truth the picture I have drawn is painted with colours far less sombre than the subject deserves. I have shown how, beyond the absolute isolation and exile, the punishment was not severe, the work light, food plentiful, and discipline a mere farce. I have shown how the most criminal were banded together to defy authority and exercise a species of awful tyranny over the timid and weak; I have shown how these malefactors who were supposed to be expiating their crimes swaggered about, armed, and with knives in their hands, insulting their keepers with vile abuse, lording it over their weaker fellows, using violence whenever the spirit moved them to murder a constable, beat a comrade to death, or make a mouthful of his nose. I have said that when matters went too far firearms and the halter were called into play, and for a time worked a certain cure; but from this, the relapse was worse than the original disease. On other points I have not touched, because I do not care to sully my pages with reference to other atrocities perpetrated in that loathsome den—atrocities the existence of which was not and never could be denied, and for which those who inaugurated the system can hardly be held blameless. Regarding these, it must suffice that I refer to them thus vaguely and pass on.

(b) But Norfolk Island was not the only penal settlement: that at Port Arthur, on Tasman's Peninsula, was also included by the new scheme as one of the first-stage depots. Being within easy reach of Hobart Town, and not like Norfolk Island, hundreds of miles away, Port Arthur was under the more searching supervision of the supreme authority. The peninsula was separated from the mainland by a narrow isthmus, across which, as I have said, sentries and fierce dogs forever kept watch and ward, and escape thence was next to impossible. At the southern extreme of the peninsula lay Port Arthur, having an excellent harbour, of difficult entrance but wide within, and with plenty of deep water. To Port Arthur were sent all convicts in the classes little less criminal than those of Norfolk Island, their number being some 1,200, their work chiefly what is called in the Western Hemisphere "lumbering," or procuring wood for the sawyers and shipbuilders, who were also convicts. Every now and then a ship of decent tonnage was launched, and much coal and timber were also exported. There was a trade-wheel and a corn-mill, and the settlement was to a certain extent self-supporting. The convicts were lodged in hut barracks, in association with each other, but not in great numbers. On the whole, the establishment at Port Arthur was as well managed and the discipline as good as could be expected with such insufficient prison buildings. The conduct of the convicts was generally good, and punishments few and far between.

And now for the second stage, and the system of "Probation."

Norfolk Island and Port Arthur, the purely penal settlements, I have described. At one or other of them, subject to such restraints as they found there, the nature of which I have already detailed, the convict of the worst class remained till he earned by good conduct his removal to the second stage, or that of the probation gang. To this second stage those convicts whose crimes were less serious had been inducted on first arrival from England. They might therefore be supposed to avoid a certain amount of contamination. But if they escaped the island, they could not escape from those who had been at it; and around these seemingly purified spirits hung something of the reeking atmosphere of the foul den through which they had passed. In this way the contagion spread; for wherever there were convicts there were those who had been at Norfolk Island, and their influence, if not the most dominant, was always more or less felt. But even without the presence of this pernicious virus wherewith the whole mass might be permeated, the probation gangs as constituted were bad enough to originate wickedness of their own. Having, therefore, errors inherent, without counting the super-added vice that came from the first-stage men, they served admirably to perpetuate the grand mistake of the whole new scheme. Soon after the development of this new order of things there grew to be sixteen of these stations. Four of them were on Tasman's Peninsula, and of these, one was for invalids, and three solely for those who had misconducted themselves in other gangs. The men worked in coal mines, or raised agricultural produce. Then there were five stations on the coast, in the neighbourhood of D'Entrecasteaux Channel, placed where the land was heavily timbered, all of which, when cleared, was to be devoted to crops; others, also, more inland, and three at which the convicts laboured exclusively at making and repairing roads. In principle, then, probation stations were intended to give convicts, from the first, a certain habit of industry and subordination, and if they had come from the penal settlements, to continue the process. The probation stations were abundantly furnished with religious instructors, and a minute system of notation was introduced to record exactly the conduct of the prisoners from day to day. It was according to his attitude while thus in probation that the next step in the relaxation of his condition was to be regulated. No doubt in many places the work accomplished by these probation parties was not inconsiderable. Naturally the first aim was that they should raise crops enough to suffice for their own support; but after that, their labour was directed into many channels that brought direct advantage to the colony. So far, too, as there were means available, the administration was conducted intelligently. But the entire number poured into Van Diemen's Land was so far in excess of the resources of the colony that adequate lodgment could not be provided. From this, and the difficulty of obtaining respectable supervisors in anything like due proportion, there resulted such a state of things that in course of time the probation gangs were not less a reproach than the penal settlements.

The third stage was reached as soon as the convict had given, as it were, an earnest of his improvement. The comptroller-general of convicts was constituted the judge, and it rested with that functionary whether the convict, after a certain period, should receive the boon of a "probation pass." The holder of this was privileged to hire himself out: to enter private service, and make his own terms with his future master. But there were certain distinctions among pass-holders. Those in the lowest class had to ask the governor's sanction to the employment they chose; they had to be contented with half their wages, while the other half was paid into a savings bank. Other classes could engage themselves without sanction, and got certain larger proportions—half, two-thirds, or in the last class, all their wages. These passes were liable to forfeiture for misconduct, and the holder was then sent back to the gangs. The chief distinction between these pass-holders and the men on ticket-of-leave, to whom I shall come directly, was, that the latter were free to roam where they pleased within certain districts, while the pass-holders were retained at hiring depots till they had found employment for themselves; and even when in service they were under the direct control of a local magistrate, by whom they were inspected every month. These hiring depots were at the chief towns—Hobart Town, Launceston, and elsewhere. The numbers thus on pass came to be considerable; and, later on, when work was slack and labour scarce, they grew to be the most serious difficulty which colonial legislators were called upon to face.

The last two stages, of ticket-of-leave and pardon, were not peculiar to the new system, and differed in no respect to the same named condition of existence under other rules, except that both were to be gained less easily now, and in no case as a matter of right.

I have given now an outline of the system introduced by Lord Stanley's despatch of 1842, and, advancing a year or two where it was necessary, have shown how it was carried out. Extraordinary and deplorable results followed and will be duly set forth in a future chapter.