THE PENAL SYSTEM or AUSTRALASIA.

CAPTAIN MACONOCHIE'S volume contains a number of papers by himself and others, relating to New South Wales and Van Die- men's Land; which are 'resolvable into two divisions, one principal, one subordinate. The principal division contains an account of society in the Penal Colonies, such as the present mode of trans- portation makes it, together with suggestions for the improvement of convict management. The subordinate part involves a disqui- sition on the introduction of representative governments into New South Wales and Van Diemen's Land, and a plan for the preserva- tion and civilization of the aborigines by forming them into a corps of rural police. In merit the work varies with its subjects, and shows in a very remarkable manner the difference between describing and creating. In painting the social state of the Penal Colonies, and the moral evils flowing from the present system of transportation, Captain MACONOCHIE is definite, clear, and condensed : his general prin- ciples for improving the system and reforming the convict, are spe- cious, and not without some powers of statement : but in unfolding the details of his scheme, as well as in his speculations for civilizing the aborigines, and giving to the " Emancipists," amongst other things, a class analogous to lords, he is theoretical, visionary, and verbose.

The sketch drawn by our author of the evils of the penal system, is less coarse and less strongly coloured than that of other writers ; but it presents altogether a darker and more fearful view. He does not talk so much of profligacy and vice.; of criminal habits or in- dulgences, practised from old custom, temptation, and the example of others—any or all of which, however odious, may perhaps leave

the mind in some sense capable of better things, and which would die away with the circumstances that produced them : but he re- presents that the inevitable tendency of the present system is to sour the soul, inducing a hard selfishness, degrading the convict, cor- rupting the settler, and infecting society. The system of assigning convicts to settlers, he says, is a state of slavery nearly as bad as that which existed in our West India islands, without any counter- acting benefits. The slave-owner, having a life possession of his slaves, and being compelled to maintain them, had a larger interest in their wellbeing, which would generally induce him to consider the future as well as the present : the master of an assigned convict, knowing that the term of his service will soon expire, has only one object in view—to extract as much labour as pos- sible during the term. The Negroes were a different race, were ignorant, and born-slaves: the convicts are freemen, with the ideas of freemen, and in some cases with as much education, ability, and feeling, as the settlers to whom they are assigned. Be- tween the Negroes and their masters there often grew up a vassal-like feeling of attachment : between the convict and the master there is none. The master, even when not cruel or severe, looks down upon the convict as a degraded being : the convict re- turns contempt with hatred, and a rankling feeling of the injustice of his sentence grows up in his mind ; for he argues, I have done this man to whom I am enslaved no injury—why should I have to labour for him without pay ? The system also works unjustly by working unequally. The oily and practised rogue, as Lord BROUGHAM observed in the debate upon Lord NORMANDY'S pardons, hypocritically accommodates himself to circumstances, renders eye-service, and out of sight pursues his propensities at every op- portunity : time first offender, or the rustic banished for scarcely a moral offence at all, pulls against his chain—turns against con- temptuous treatment—is called obstinate and insolent—taken be- fore a Magistrate, himself a convict-master—flogged, and ruined. Injustice is also done in another way, by masters giving a bad re- port of men to prevent their obtaining a ticket of leave, so as to retain them in their service ; * whilst others will give a bad man a character to get rid of him. These, however, are individual ill- doings, which may more or less obtain everywhere : the effect of the system, apart from the grosser vices, is to produce a society of low tyrants, low hypocrites, or self-debased men. The evils directly proceeding from the White slave system have a further operation upon the public or political mind, which our author shall state for himself.

WORKINGS OF TilE PENAL SYSTEM.

The servants being made slaves, the masters arc made slave-holders ; and the modification of slavery thus introduced is of the worst character. The

servants have not always held the same degraded position ; they have been

born, and have for the most part grown to maturity in better circumstances. Many have education, more ability ; and the passions of all arc easily excited.

The masters, on the other hand, have no permanent property in their labour,

nor any strong selfish motive, consequently, to endeavour to improve them. They arc perfectly aware of their character and feelings. They do not fear

them, because they are Englishmen—are used to them, and. because the vicissitudes of a bush life form, at all events, rather an antidote to fear; hub they dislike them proportionally, and are ready to believe the worst of them,

and on slight provocation violently to coerce, punish, and inveigh against thein. The analysis need not on this head be carried further. It is plain that the elements of domestic life are thus full of discord; and that of moral ill. fluenee there can be here little or no exercise, But the results go much further. The disuse of moral influence in domestic life gives a harsh, peremptory; She overbearing character to the whole inter- course of society. Every difference of opinion makes a quarrel ; and every act or decision of the Govc:rnment or courts of judicature, constitutes a ground of vehement con,mlaint or political invective. The severe regulations of the prisoner discipline also foster these feelings. They are so strict that they are not, and cannot be, universally put in force; yet every now and then even the most minute of them is acted on, to the loss and inconvenience of individual flimilies, by interfering with their domestic ser- vants; and this is constantly thought to be caused by personal feeling, rather than by right or principle. The disunion of society in the Penal Colonies is thus complete, and manifests itself in a depth of suspicion and recklessness of assertion beyond all precedent in civilized life ; but which can, I think, be traced directly to the pervading and demoralizing influence of the existing penal institutions,—for the habit of suspicion and violent invective in private life speedily extends to every other relation.

Further—no official record being kept of the good conduct of prisoners, (though their characters are frequent matter of inquiry when considering their applications I'm indulgence,) the standard of moral worth is lowered generally; this being considered proved, by mere escape from detection in crime, and consequent punishment. And the severity with which minute conventional offences against discipline are currently visited, further tends to warp the judg- ment in (brining estimates of moral character; a breach of regulation being considered criminal, and carrying the pains, aspect, associations, and other consequences of criminality, almost as a felony. Whatever one man can leyally take from his neighbour, little matter how wrongfully, he will too often endeavour to take. Whatever he can hope to wring from the Government by importunity, however unreasonable in itself, he will never cease applying for. What one by any favour or accident obtains, others immediately claim. The kindness or indulgence shown to one is repined at unless extended to all; the selfish feelings everywhere predominate ; their expression everywhere runs riot ; and as every one, from the highest to the lowest, appeals direct to the Governor, the turmoil in which he lives is in- cessant.

The personal treatment of convicts varies, of course, with the individual master—sometimes lenient, sometimes severe. Here is an instance of severity, from a correspondent of the author

"At the house at which I lodged for a month after my arrival in Hobart Town, and where I had greater opportunities of observing colonial domestic economy, than 1 have since en)joyed, the prisoner servants were treated as badly as I can conceive any slaves to be out of the West Indies. They were invariably addressed in the most imperious manner, frequently with op- probrious epithets, and for the slightest tangible offence taken to the police- office."

* This is now remedied in Sydney. , =sums, OP. '.TRANSPORTATION ON THE CRIMINALS. In My opinion, the effect is what ought to have been expected. I firmly *lien almost every prisoner who is submitted to its operation is deteriorated leyit. Every one of them may not be a bad man, but every cne was a better one in England. I have directed considerable attention to this subject, and tonght information from every available source. I have conversed with ministers of religion of various denominations, with Magistrates and settlers; and my opinion has been everywhere confirmed. I hear one say that the prisoners in- variably have money which they cannot honestly obtain. Petty thefts are so common that all appear to make up their mind to them. Drunkenness seems ap most cases to be only limited by opportunity ; and lying and perjury are so Tearfully prevalent, that I believe we have the authority of a Judge and Attorney-General attached to the assertion, that evidence may readily be oh- Seined sufficient to convict any man of any crime laid to his charge for half-e- at-nen. • • • • I cannot discover either that the emancipated of Van Dieman's Land evince shy moral excellence. They work harder than assigned prisoners, it is true, because they have superior inducements; and on that account they perform almost all the more laborious work, as fencing, &c. it being found keaper to pay them for doing it than to employ assigned prisoners whose wages are only food and clothing. But the Magistrates with whom I have con-

versed generally complain that these two classes, especially the former, arc the most mischievous and troublesome of any in the communitia because they have gaiter oport unities for depredation. One of the formerclass ately tried at Hobart Town, having been caught in the act of slaughtering a stolen sheep, and who was supposed to have stolen within the last three years, four hundred from one settler, had brought this maxim from the school of prison discipline—" Au old thief must keep his hand in," which he said was his only motive. And of those who have been convicted of murder since my arrival, four I think in number, all I believe have been of these classes who have been let loose upon society as penitent and reformed men.

EFFECTS UPON TUE MASTER.

The effect of the system of assignment on the masters and mistresses is pre- cisely what might have been expected from it, and is precisely similar to what is said to be the effect of slave-holding,. When I first heard masters and mis- tresses of houses and prisoners talking coolly of fifty lashes, I was disgusted with the individuals. I am now convinced it is the fault of the system. -What I saw in Hobart Town gave me such a distaste for prisoner servants, that I came up the 'country with an establishment of free emigrants. In three months I was -obliged to part with the man who was the only bad one out of my four ; and as I could not readily supply his place with a free man at such a instance from Hobart Town, I took a prisoner for an out-door servant. I have had eight months, experience, and that has been enough. I began to feel the effects of slave-holding, and•I have given it up.

Thanks to the exertions of a few enlightened individuals, the pre- sent system has received its death-blow the eyes of the Colonists are opened to its manifold evils, and the Legislature and the Go- vernment have to a certain extent admitted them. What to do with criminals, now hanging is gone out of fashion, is, however, a question much easier asked than answered. The plan of Captain MAcoxocitIE was noticed in the Spectatur* shortly after its appear- ance as a Parliamentary Paper ; but the following outline presents his views in a more methodical shape. The evil of' the present system, he conceives, is caused by its operation being mechanical, and physically coercive instead of morally. As soon as the convict arrives, he is made a slave ot; under a bad system of slavery, in order to punish and reform him ; and, to say nothing of the feelings with which he is regarded, the means of influencing him are bribery or coercion. When his time of assignment expires, and he gets a ticket of leave, be is still subject to many annoyances, though permitted to work for wages ; be is under the strict surveillance of the police, is obliged to attend stated musters, and to reside within certain limits. The plan by which moral influences shall be substituted for the coercive, our author divides into three stages-1. Punishment ; 2. Proba- tion ; 3. Permitted freedom.

1. Captain MACONOCHIE conceives that the punishment of the convict should be the business of the state ; and that on his ar- rival, instead of being assigned to individuals, he should be re- tained by the Government for a certain period at stations. This period should be one of seclusion, of hard labour, and of' moral, religious, and mechanical instruction, enforced if needful by phy- sical coercion. At the expiration of the appointed time, those who have conducted themselves well should be allowed to become probationers. 2. The probationary state should be undergone in companies of six or any other number. The bodies should be self-elected ; that is, the members of each party must voluntarily agree to associate, and they will be held answerable for one another's conduct. Though not actually secluded, they will not be allowed any kind of freedom, but will be employed in public works, and in draining and clearing land. They will reside in " barracks," be under the control of superintendents, and paid for their labour after fixed rates. The wages of the gang, however, will be subject to draw- backs for any misconduct of its members • and they will only be permitted to expend them in a certain mode. In cases of great or frequent misconduct, the whole party should be returned to the penal station, and dissolved, each man starting de novo. 3. Having thus undergone punishment for his crimes, and a sort of social training, the third and last state of the convict would be one of permitted freedom. It would resemble the present ticket- of-leave system; in which a man might work for wages and choose his own master, but would be liable to forfeit the permission. Our author, however, would lessen the present powers of the police over ticket-of-leave men, and remove the annoyances to which they are now subject.

All this looks tolerably well in outline, but the fillings-up are characterized by weakness and a project-like air; and of the various remarks upon the plan, from Colonial friends of the author, we notice that those who speak under public responsibility, as it were, withhold their judgments. The possibility of doing good by some

Spectator, 12th May 1838, No.515; Article, " Transportation or Penitentiaries." such a systeM, under favourable circumstances, we do not doubt' but in the common run of human affairs, we think the success of the scheme would be questionable. The agents to work it would require more zeal, attention, and skill, than could be found in (call them what you will) mere colonial gaolers : and then, look at the persons you have to operate upon. It appears to us, that any thing like a successful attempt at reforming the criminal, must be begun at home, in the tribunals of first resort ; and not after the contamination of' a gaol, a sea-voyage, and a penal station. The peasant banished for outrage in Ireland, or poaching in Eng. land—the person who has yielded to the pressure of want, or been seduced to crime by artful temptation—is not so much within the verge of reform, as not within the limit of criminality. The moral sense is neither corrupted nor depraved. Remove them from the circumstances which drove them to crime, and you insure them against its committal. But the born or trained thief, whether his crimes have resulted from circumstances, or disposition, or both conjoined, is probably incorrigible. Transportation has failed to a dreadful extent ; the American prison discipline has not suc- ceeded. '['he reformation of professional criminals, not here and there, but in a general way, is one of the most difficult problems for philanthropy to solve ; for, in the words of a quaint old writer, " every thing may be changed save nature."