The Fatal Shore

by Robert Hughes

  Gipps, a gallant veteran of the Peninsular War and a strikingly prudent and humane governor, did all he could to ease the transition of the labor supply from convicts to immigrants. The “bounty system,” approved by the Colonial Office in 1837, helped considerably: It gave £30 to every able-bodied migrant couple under the age of thirty, and £5 to each of their children; single men, sponsored by settlers, were underwritten to the tune of £10 each, and respectable spinsters between the ages of fifteen and thirty (if they came out under the protection of a married couple) got £15. Before long, eighteen thousand free immigrants had arrived in New South Wales on the bounty system, and over forty thousand on their own initiative. This was more than enough to fill the gap in the labor supply. The Eden I, the last convict transport to arrive in New South Wales under the Old System, dropped her 269 male passengers at Sydney Cove on November 18, 1840.

  But what could England now do with her criminals? Molesworth and Russell were impressed with American penitentiaries. But in 1838, England did not have any; therefore, they would have to be built—at a cost of millions. Spread over the years, that would probably be cheaper than transportation, which was costing the Crown between £400,000 and £500,000 a year. The committee urged the government not to be put off by the cost. Short sentences could be served in penitentiaries in England, longer ones in others built on suitable islands—places as diverse as Malta, Corfu and the Falklands were mentioned—but not in the far antipodes.

  Meanwhile, convicts must still go abroad. But not to New South Wales or the settled parts of Van Diemen’s Land, if assignment were abandoned—“which it ought to be at once.” The committee felt short sentences ought to be served in Bermuda for the time being, but the only receptacles for long-sentence convicts, until the penitentiaries rose, were still those sites of ill-fame on the outer edges of Australia—Norfolk Island and the Tasman Peninsula, each a natural prison isolated from free settlement.

  And there, the committee urged, Alexander Maconochie’s guidelines for a new prison discipline based on incentives and clear future goals “might in part at least be attempted with advantage.” Maconochie had not been idle; he never was. While seeking another post in Australia, he had bombarded Russell from Hobart with his theories of reformatory punishment, set forth in densely argued, prolix memos. And the committee was swayed. “It would be advisable,” the report noted,

  to ascertain, by experiment, the effect of establishing a system of reward and punishment not founded merely upon the prospect of immediate pain or immediate gratification, but [on] … the hope of obtaining or the fear of losing future and distant advantages.… The great object of a good system for the government of convicts should be that of teaching them to look forward to the future and remote effects of their own conduct, and to be guided in their actions by their reason, instead of merely by their animal instincts and desires.24

  Here, the committee was simply echoing Maconochie, whose ideas—so far in advance of their time, when they came to be tested on Norfolk Island between 1840 and 1844, containing so many of the principles of modern penology—we may now consider.

  iv

  ALEXANDER MACONOCHIE wanted to shift the focus of penology from punishment to reform. Of course, the State could and must punish crime, but punishment on its own, he argued, was a socially empty act without checks built into it: “Our penal science is … without precise rule, a mere balancing between conflicting impulses, severity for the supposed good of society on one hand, and leniency for the supposed good of the criminal on the other, in both frequently running into error.” He saw no sense in punishing a criminal for his past while not training him with incentives for his future.

  Because it was fixated on punishment alone, the Old System had produced mainly crushed, resentful and embittered men and women, in whom the spark of enterprise and hope was dead. So Maconochie argued. Exemplary punishment was only vindictive; it ran wild, degrading both convict and jailer. Terms like “mercy” and “remission of punishment” were to be dropped. “Let us offer our prisoners, not favors, but rights, on fixed and unalterable conditions.”25

  But how was this to be done? How to stop the corrosion of despair, the leakage of human possibility? Maconochie never claimed to be an original penal thinker, but he had what more “original” men like Jeremy Bentham lacked—firsthand experience of prison and humane understanding of its inmates. The basic idea for his system had first been raised by the Cambridge theologian William Paley in his Moral and Political Philosophy (1785). In this early Utilitarian text, Paley suggested that the punishment of criminals should be measured, not by raw time, but by work, “in order both to excite industry, and to render it more voluntary.”

  Within a few years, this idea of punishment by task and not by time was mooted in America. It found another advocate in Richard Whately, soon to be appointed Archbishop of Dublin. In the London Review in 1829, Whately urged that convicts be sentenced to give the state a measurable amount of labor in expiation of their sins, so that the quicker and better they worked the sooner they would be free: “With each additional step they took on the treadmill they would be walking out of prison—by each additional cut of the spade they would be cutting a way to return to society.”

  Such ideas reached the Quaker missionaries James Backhouse and George Walker and went from them to Maconochie. They, too, advocated task rather than time punishment, and argued that, as most convicts were morally childish, the penal reformer might take a cue from the discipline of “enlightened” schools, which offered rewards for good conduct rather than punishment for bad. At each monthly muster, the diligent convict would get a “ticket” and the lazy would lose one or more; getting three tickets would shorten one’s sentence by a month.

  Such ideas of discipline by the carrot, not the stick, were the germ of Alexander Maconochie’s “Mark System.” Maconochie argued that sentences should be indefinite—no more stretches of seven, ten, fourteen years or life. Instead, the convicts would have to earn a certain number of “marks,” or credits for good behavior and hard work, before they got free. Six thousand marks would be the equivalent of a seven-year sentence, seven thousand would correspond to ten years, ten thousand to life. They would buy their way out of prison with these marks. To buy, they must save.

  Hence the length of his sentence was, within limits, up to the convict himself. Marks could be exchanged for either goods or time. The prisoner could buy “luxuries” with his marks from the jail administration—extra food, tobacco, clothing and the like. They were “just wages, and will equally stimulate to care, exertion, economy and fidelity.” Maconochie hoped to abolish rations, “whose moral effect is always bad, by taking the care of a man’s maintenance out of his own hands.” Ideally, the convict would pay for everything beyond a bare subsistence diet of bread and water with the marks he earned.26

  Maconochie believed his Mark System would be objective. As things stood, prisoners were at the mercy of their overseers for “indulgences,” which “corrupt and debilitate the mind.” Official freedom to remit sentences led the convicts to lie and curry favor. It made them servile or evasive, and usually both. Only measurable actions could measure reform:

  The term “remission of sentence” should be banished.… There should, in truth, be none whatever; but the duration of the sentences being made measurable by conduct under them, and not by time at all … no power should anywhere even exist in a subordinate authority to remit a fraction of it; but on the other hand, there should not be less certainty in the result of good conduct. The fate of every man should be placed unreservedly in his own hands.… There should be no favour anywhere.27

  As soon as a convict entered the system, then, he would begin his Pilgrim’s Progress with a short harsh stretch of confinement with hard labor and religious instruction. This was a moral aperient, punishment for the past.

  The next phase, rehabilitation for the future, would begin with his advance through the stages of the Mark System, where everything
he had was bought with his labor and obedience, translated into marks and entered in the commandant’s incorruptible ledgers. As the convict’s behavior improved and the moral lesson of the Mark System—nothing for nothing—sank in, so his environment altered by stages: first, solitary or separate imprisonment; then, “social labor” through the day and separate confinement at night; next, “social treatment both day and night”; and so on. He rose from one grade to the next automatically, with no interference from commandant or magistrates, depending on his total credit of marks. Some, of course, would slide back, losing marks or wasting them, which only reinforced the metaphor of real life. However, just as there would be no favors under Maconochie’s system, so the only punishment would be the loss of marks—the mild, inescapable, all-seeing accountancy that drew its attentive parallels between time and money, units of labor and moral worth.

  Once the prisoner was trained to see the relation between morality and self-interest, he stood ready for the third stage of the Mark System: group therapy. Maconochie wanted to put “developed” prisoners in groups of six. They would work” together and mess together. Each man in the group would be responsible for the marks of others as well as his own. If one backslid and lost marks, all would. In this way the prisoners would learn mutual dependence and social responsibility.

  Nobody in England or America, let alone penal Australia, had tried such therapies on convicts before. This idea of prison as a moral hospital would not win full acceptance until well into the twentieth century. The details of Maconochie’s system—that prisoners should have direct access to the commandant, through an ombudsman, for instance, or that officials should take a personal interest in individual convicts—were a century ahead of their time.

  The Mark System would have stayed in Cloud-Cuckoo Land but for the Molesworth Committee, which endorsed most of Maconochie’s plan except the group therapy. Recommendations passed; things moved slowly, but they did move. In May 1840, the Colonial Office suggested Maconochie’s appointment to Norfolk Island. Gipps passed the matter to Franklin in Van Diemen’s Land.

  Sending him there struck the lieutenant-governor as a double solution. It would rid Van Diemen’s Land of its intractable, idealistic gadfly and would appease the Arthur Faction, on whom Franklin relied more and more passively. Meanwhile, Maconochie’s visionary penal scheme would get a fair trial. If it failed, he would sink; if not, it would hardly change things in Van Diemen’s Land—not, at least, during Franklin’s term of office. He offered Maconochie the post.

  In fact, the Scot did not think the place at all ideal for his experiment, and he told Governor Gipps so at length. He pointed out that there were already twelve hundred twice-convicted prisoners there, hard beaten-down men who would furiously resent a second and milder system of convict discipline for new convicts; the practical difficulties of running two systems for two different groups of prisoners on such a small place would be insoluble, and it would be “extreme cruelty to mix up newcomers” with the old Norfolkers. The old lags would corrupt the new “by contagion.” Besides, Norfolk Island was too remote for his purposes and (a very Caledonian thought) its soil was so fertile that “the rewards of industry may be obtained without its exertion.” So Maconochie begged Gipps to let him set up a new experimental station on the Tasman Peninsula, or Maria Island, or even on King Island in the Bass Strait, rather than Norfolk. But Gipps would not hear of it.

  He was not hostile to Maconochie or cynical about his plans. He knew the defects of the Old System, and its horrors plagued him. But he had to be realistic. There was nowhere to put the twelve hundred twice-convicted Norfolkers. They could not go back to New South Wales, because transportation there was ending; to have so much of the doubly damned scum of the System siphoned back to the mainland would be interpreted as a gesture of contempt for the aspirations of its free citizens and would set off a wild public outcry. At the same time, its old lags could not go to Van Diemen’s Land, because Franklin would not take them and Gipps could not force him to.

  So Maconochie was ordered, quite unrealistically, to keep the old Norfolkers and the new subjects of his experiment separate as best he could. By the time he took ship for Norfolk Island, with his wife and family and three hundred new convicts (all fresh from England and not even disembarked in Sydney), Maconochie was so fired with enthusiasm that he saw all difficulties melting before him like wax. He was certain that his experiment would work; he could not wait.

  A few days after landing, he had the Old Hands mustered in the jailyard at Kingston and strode in to confront the collective stare of twelve hundred men, nameless to him, masks of criminality and evasion, burnt by sun and seamed by misery, the twice-convicted and doubly damned, Scottish bank clerks and aboriginal rapists, Spanish legionnaires and Malay pearlers, English killers and Irish rapparees. “A more demoniacal-looking assemblage could not be imagined,” he later wrote, “and nearly the most formidable sight I ever beheld was the sea of faces upheld to me.” They looked at their new commandant with utter skepticism as, exalted by the thought of laying his balm on such scars, he announced the end of the Old System and described his system of marks.28

  He had not come as their torturer, one of the prisoners reported him as saying; but he did not have the authority to extend the Mark System to them as Old Hands. He could only try it with the new arrivals. Nevertheless,

  he felt no hesitation in saying that he should find little difficulty in obtaining such an authority, and that he would venture therefore to place us under that System with the English prisoners.… The cheers which emanated from the Prisoners were most deafening. From that instant all crime disappeared. The Old Hands from that moment were a different race of beings. The notion, the erroneous notion that had been engendered in their minds by a course of harsh and cruel treatment under which they had for many years been compelled to groan, was almost entirely eradicated when they found themselves received as men by their Philanthropic Ruler.

  At once, old feelings of patriotism stirred in the convicts:

  No sooner did they rightly comprehend the purport of his message from our Most Gracious Queen,—that Sovereign who had been forgotten by them as having any dominion over the land of their Captivity—that land in which so much blood had been spilt,—than Her Majesty reigned in their hearts and they all appeared to labor cheerfully in the one large field of Reformation.29

  Maconochie was a zealot, but an acute one. He saw that in this terrible place the sense of a chain of authority leading back to England and its monarch had been ruptured; the men had given up hope because they believed themselves abandoned by their homeland. There was nobody beyond the prison to whom they could appeal. By reinstating the Queen as icon, with all her imagery of youth, femininity and maternal concern, Maconochie showed great insight into their predicament.

  His first sight of the Old Hands seems to have dispelled the last of Maconochie’s doubts. From now on, nothing but the most prompt and radical therapy could help them. Dutifully, he penned a report to Gipps announcing that he would not obey his orders to keep the old and new prisoners under separate systems. Gipps was pained. It raised his worst fears of Maconochie’s “visionary” streak. Had he appointed a loose cannon who would wreck the Old System and replace it with nothing workable? The governor sent a stern rebuke to Maconochie.

  It reached the island just five days before the birthday of the young Queen Victoria, May 24, 1840. The new commandant had set aside Monday, May 25, as a public holiday for everyone, bond and free. At first light, strings of signal pennants headed by the Union Jack fluttered gaily up the flagpoles while a 21-gun salute boomed across Kingston from a massed battery of cannon on the hill behind Quality Row. Turning out of bed, the Old Hands as well as the new convicts up at Longridge were stupefied to find the great gates of the walled prison compounds standing wide open. They could wander as they pleased on the island, swim in the sea, stretch and frolic on the sand—as long, Maconochie’s proclamation warned them, as they showed by
“retiring to their quarters at the sound of the bugle … that they might be trusted with safety.” Thus, Cook recalled, “these men who had for many years been ruled with the Rod of Iron and had received their hundreds for being a short distance from the Barracks, were on this loyal occasion permitted to range from the settlement … without the least fear of committing any depredation.”30

  They got special food, including a generous ration of fresh pork, which they cooked for themselves over festive little barbecue fires. Throughout the morning, Maconochie wandered among his prisoners, affably chatting with them. When the convicts sat down to lunch—at tables in the open air, like men, not like hogs at swill—they were further amazed to be given pannikins of rum-and-lemon, the rum paid for out of Maconochie’s own pocket, with which to toast their young Sovereign. They cheered her loudly, “three times three,” and then toasted their commandant’s health even louder.

  Then, after the meal, there was an entertainment, whose handwritten playbill survives. James Lawrence (1795–?), an educated convict—the son of a London diamond broker, who had been retransported to Norfolk Island for fraud in 1836—played the lead role of Don Caesar in the “admired Comic Opera of the Castle of Andalusia,” supported by a cast of ten other named players and “the usual Banditti” for extras. Lawrence apparently had a taste for amateur theatricals. In the past, Major Anderson had sentenced him to fifty lashes for singing a song in the barracks, as he was “a very strict man and no lover of the Drama.”31 But now he could strut and fret his hilarious hour, amid roars of amusement from the prisoners. After the opera came a “musical melange” of glees and songs—“Prithee, Brothers, Speed to the Boat,” “Paddy from Cork,” “Behold How Brightly.” James Lawrence gave a rendition of “The Old Commander”—a veiled reference, perhaps, to the detested Anderson—and James Porter (1807–?), one of the Macquarie Harbor convicts who had intrepidly seized the brig Frederick and sailed her all the way across the Pacific to Chile before being caught and sent to Norfolk Island to suffer under that “second Nero,” Captain Bunbury, sang “The Light Irishman.” Michael Burns, whose back bore the tangled scars of two thousand accumulated lashes, danced a hornpipe. Another convict gave the Tent Scene from Richard III, which Maconochie must have chosen to rebuke the indurated cynicism and despair of the Old Hands: