Читать книгу The Felonry of New South Wales - James Mudie - Страница 5

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IT is notorious, that, during the administration of several successive governors of New South Wales, transportation to that colony was so far from being regarded as a severe punishment by the major part of the criminals in England, that numerous avowals have been made by convicts of their having actually committed the crimes for which they were tried, for the express purpose of being sent out to a land of promise, in which the transported felon is assured of abundant subsistence for the exertion, and even without the exertion, of easy toil, and in which it is no uncommon thing for him rapidly to acquire even great wealth, or to find himself in easy and independent circumstances, long before the expiry of the time prescribed by sentence of the law for the duration of his punishment.

Nothing, certainly, can be more subversive of the original design of the British government in founding the penal settlement of New South Wales, than the prevalence of such an idea as that which has just been stated.

During the wise and vigorous, though temperate as well as just government of General Sir Ralph Darling, and also during a portion of the regenerating government of General Sir Thomas Brisbane, it is true that so mischievous a notion of the state of penal discipline in the colony, was in some degree eradicated from the minds of the criminals of Great Britain.

From the new measures and principles of government, however, which are acted upon by the present Governor, Major General Bourke, and which are advocated and maintained, and legally enforced, by the chief justice of the colony, by a portion of the Governor's council, and by a servile police magistracy, there is, more than ever, reason to dread that the penalty of transportation to New South Wales will altogether cease to operate as a preventive of crime in the mother country, as the same principles and measures have already loosened the bonds of subordination within the colony itself, and have inflamed the malignant feelings of the convicts against the laws and the peaceful settlers who are their immediate employers, and against all that is praiseworthy, independent, and virtuous, in the land which is doomed to be the scene of the difficult and dangerous experiment of their mingled punishment and reformation.

The writer of these pages emigrated with his family to New South Wales in 1822, and remained in the colony till March, 1836. It is after a residence of fourteen years, therefore, in a colony established within the last half century, that he presumes himself competent to throw some light upon its internal polity and management. It is after having established and successfully conducted one of the largest agricultural concerns in the country, under all the trying difficulties and incalculable disadvantages of the first settlers on the river Hunter, at a distance of one hundred and forty miles from, and with more than one hundred miles of the trackless bush or forest wild interposed between his allotted dwelling-place and the seat of the colonial government, that he thinks he is capable of advising the measures best calculated to insure the security and promote the prosperity of the free settlers, and consequently to facilitate the accomplishment of all the objects and purposes for which the colony was founded. It is after having been one of the most extensive employers of convict labourers in the colony, and after having been in the commission of the peace during several years as a magistrate for the territory, that he considers he is bound to state his knowledge of the nature and character of the convict population, and fearlessly to express his opinions as to the treatment to which they should be subjected, with the view of accomplishing the threefold object of their transportation, namely: a sufficient degree of strictness of discipline (if severity be too harsh a word) to render the sentence of transportation rather a punishment than a reward for the perpetration of the crimes of which they have been convicted; a sufficient degree of subjection to the will and power of their immediate masters, and of the laws, to enable them to be coerced to the performance of an amount of labour adquate to their own maintenance, and to a reasonable profit upon their employment, for the benefit of their employers and of the colony at large; and, a sufficient amount of moral restraint and religious impression to afford a prospect of reclaiming them from the depraved appetites and vicious courses, the indulgence and pursuit of which are the sole causes of their being subjected to the extraordinary circumstances in which they are placed. It is after having suffered most seriously in his own pecuniary interests, and after having been deeply wounded as an employer of convicts, as a magistrate for the colony, and as a gentleman, through the mistaken views and fatal acts and measures of the present colonial government as affecting the convict population, and its oppression of the independent magistrates who dared to differ from its ruinous and anarchical policy, that the author has returned to England not alone to complain at the bar of public opinion of his own wrongs and grievances, but to denounce to the British people, the parliament, and the king, with a warning and prophetic voice, the anti-penal, anti-social, and anti-political system now practised in New South Wales, and which, if persisted in, must inevitably reduce that valuable and important colony to the wretchedness of unbridled crime and lawless anarchy, and result, sooner or later, in its violent and sanguinary separation from the empire.

While the author is fully convinced of the certainty of the grounds on which these opinions are formed, and feels assured that he is able to establish them by the statement of facts and the production of documentary and other evidence in his possession, he nevertheless approaches his subject with a full sense of the delicacy and caution necessary to be observed in commencing its discussion.

The population of New South Wales, in its constituent parts, forms a community essentially differing, morally, legally, and politically, from any other community in the world. The principles, therefore, which are applicable to the government of any other civilized community, are not applicable to the government of this colony. Although the population is entirely British in its numerical and physical construction, yet is more than one moiety of it un-British in social and civilized spirit, and in moral feeling and character. A very large proportion of the population, indeed, consists of branches lopped for their rottenness from the tree of British freedom, venerable for its grandeur and its antiquity, whom the outraged soil of England, shuddering at their crimes, has expelled, and whom she has with just abhorrence cast forth from her shores, to expiate, upon the waste of waters, and in the toils of creating a new world for their posterity, those offences which placed the very lives of the majority of them at her mercy, and which they are only permitted to enjoy through her indulgence.

The question, therefore, of the principles upon which the government of New South Wales should be conducted, is not one of ordinary polity. It cannot be investigated or determined by any admitted rules or established laws. The community of England, though composed of persons of different degrees of rank, constitutes, nevertheless, but one society,—one community,—in which all the members, with the exception of a few privileges conferred upon the highest order, enjoy equal rights and advantages, none of which can be wrested from them but as forfeitures for the commission of crime. The peculiar privileges of the aristocracy are accurately defined by the law. They are of such a nature, too, that, though they give authority and consideration in the state, they confer upon them no power or advantages over the persons or the property of their compatriotes, as individuals and as their fellow subjects. The law exerts itself equally for the protection, and for the punishment, of all. The meanest individual is as secure in his possessions as is the monarch of his crown. That which is a crime in the poorest and most humble subject, is also a crime in the proudest and most powerful peer of the realm. The law knows no distinctions, and is equally dealt out to all ranks. The enlargement of civil rights in such a community is, therefore, an enlargement of the civil rights of the entire people,—in which all the people are entitled to expect and to demand equal participation, because of their unity as a people, and of their equality in the eye of the law.

Another and very different state of society, it is true, arose in the West India colonies of England, in each of which there existed two castes, viz. a caste of English freemen, and a caste of negro slaves,—the latter being entirely dependent upon, and their very persons the property of the former. But this condition of things, so incongruous with the genius of British liberty, was avowedly founded in injustice, and maintained only by oppression and force. It was the authority of the strong over the weak. The rights assumed and exercised by the whites were the rights of conquest and of the sword,—or, still worse, the rights of secret and treacherous, or of open and undisguised robbery and rapine. The negroes had forfeited no allegiance to the crown of England,—had violated no British law to which they were amenable,—had given no provocation which could afford even the pretext of just vengeance in palliation of their enthralment.

In their violated persons the common rights of human nature and the plainest principles and most manifest dictates of justice, had been lawlessly trampled under foot. These facts formed the rock upon which the advocates for the abolition of negro slavery founded their arguments and claim,—the rock which assured them of and obtained for their their ultimate triumph. To the unfortunate negroes nothing was granted but strict justice,—nothing but the restoration of rights of which they had been unjustly deprived. Their condition had been an anomaly in the phenomena of the British empire. Their emancipation renders the society of the West India colonies, as far as it is now possible, or at least practicable, analogous to the society of England,—an analogous condition which ought always to have existed, and which could continue to be withheld only by the continuance of injustice.

In the colony of New South Wales, there are also two castes:—

First, a caste of free emigrant settlers, voluntarily seeking therein the advancement of their own views and interests,—by the exertion of their enterprise and capital promoting the interests of the colony at large,—and entitled, as free and untainted British subjects, to all the rights, privileges, and immunities which can be conferred upon them consistently with the accomplishment of the peculiar purposes for which this colony was founded and is maintained, and consistently with its well-being and its security as a dependency of Great Britain. As voluntary exiles to the country of their adoption, to which they have not been compulsorily sent, but to which they have freely gone, even they are bound to modify their expectations, and their rights are necessarily restrained and limited, by the considerations which have just been stated.

It is incumbent upon both the governors and the governed continually to remember and take into account the peculiarities of the social constitution of the colony. If there be any thing inherent in that constitution which necessarily involves a state of things repugnant to their preconceived notions of government, on the one hand, or of the rights of British subjects, on the other, they should remember that things which would be unconstitutional in England, are strictly, essentially, and inevitably constitutional in the colony. They ought not, therefore, either to undertake the government of such a colony, or to become subject to its regulations and laws, without first adapting their inclinations, principles, and maxims, to its constitutional and unalterable peculiarities. If those peculiarities give birth to political combinations that jar with their own preconceived opinions and habitual feelings, they must be told that it is a maxim of law, that he who seeks the nuisance is not entitled to require its abatement.

The second caste of the society of New South Wales consists of convicts who have been sent thither from England, by sentence of the law, for crimes committed,—sent thither, not as colonists,—not as retaining the attributes of British subjects,—not for the purpose of bettering their social condition,—but as felons,—as men whom the violated law has divested of their natural and legal rights,—sent thither, in short, as to a place of punishment,—where they are not only to remain divested of the protection of the ordinary laws of the realm, but where they are to be subjected to new laws, having for their object both their punishment and their reformation, but regarding their punishment as a means of deterring other persons in England from the commission of similar crimes, and therefore justifying the prolongation of the punishment, even in cases in which the reformation may already have been accomplished.

It is quite evident that there is nothing in the condition of this society which is analogous to that of society in England, or in any other civilized community, or even to that condition of society which existed or now exists in the West India colonies.

The inequalities in the society of New South Wales are so far from being founded in injustice, or from being maintained in violation of law, that the inequalities have been constituted by the administration of justice, and can only be altered by defeating the very object and spirit of that British law, by which they have been created.

Besides the original inequality,—the just and legal inequality, between the transported convicts and the free and untainted emigrants, another inequality, incidental to the existence of the former caste, has arisen, and that inequality consists of those convicts, who, having undergone their periods of punishment, have thereby become entitled,—not, certainly, to the rights of colonists—of voluntary emigrants to New South Wales, but simply to the privilege, if they think fit to exercise it, of quitting the country to a residence more or less protracted in which they were doomed by their sentences. They are so far from being placed, by the mere expiry of their sentences, on a footing with the voluntary emigrants, that the law, if it had seen fit, or the legislature even yet if it shall think fit, might direct their forcible removal from the colony after the expiry of the sentences, and either that they should be brought back to the mother country, or turned loose in any other part of the globe.

Conviction of felony renders a man for ever infamous in England,—infamous in law,—and attaches to him for life certain disabilities, which incapacitate him for exercising some of the rights and duties of citizenship.

It is not enough that the felon pay the immediate penalty which the law awards to his crime. Other consequences, both legal and moral, flow from the fact of the conviction. So accordant is all this with the spirit and feeling of the British people, as well as with the genius of British institutions, that there is not, perhaps, in all England, a public body of any description,—not even a single benefit society,—or even a convivial club,—in which the conviction of a member for felony is not instantly followed by the expulsion of the member so convicted from the society to which he belongs, and that by an express regulation, or law, of all such societies,—thereby declaring the universal feeling of the entire British people, that a convicted felon is unworthy both of future trust and of mingling with and participating in the provident arrangements or the social enjoyments of his former associates and fellow subjects.

No absurdity, then, can be greater,—nothing can be more anti-British, either as to the spirit of British law, or as to the tone of British feeling and morals, than to suppose that the emancipated convicts of New South Wales are entitled to claim the same consideration in society, or the same rights and immunities, as those claimed by or granted to the free and respectable settlers.

As even those settlers are bound to modify their expectations and to limit their demands, by the peculiar circumstances of the colony, how much more are the emancipated convicts, the entire felonry of the colony, both by the peculiar circumstances of the colony, and by the infamy attaching to themselves, bound to rest satisfied with being allowed to become settlers in the colony, and to waive all those high pretensions which at one time certainly became them as Englishmen, but for which, according to the universal judgment of the English nation, they have rendered themselves unfit.

Enough, perhaps, has been said, to shew that the internal polity of New South Wales is not a question of ordinary or party politics. That country, in short, is not merely a colony of British freemen, but a penal settlement or place of punishment,—a huge penitentiary, or house of correction,—in which the laws and regulations must be framed expressly for the nature and quality of the inhabitants, and also for the purpose of operating as a prevention of crime in the parent state.

How desirable soever it may be, therefore, that the present disposition to the enlargement of popular rights and privileges should be allowed to manifest itself under ordinary circumstances, no high-minded and honourable man, whatever may be his political party, will maintain that he should view a criminal prison population with the same feelings as those with which he regards the inhabitants at large of a free country.