14

Toward Abolition

i

THE MAN SENT to replace Arthur in Van Diemen’s Land was an early Victorian hero, Sir John Franklin (1786–1847), fresh from the howling wastes of ultima Thule. As a boy in 1801, he had sailed to Australia with his uncle by marriage, Matthew Flinders, in the Investigator, a three-year voyage of discovery, charting the unknown south coast from the Great Australian Bight to the present border of Victoria. In these virgin waters, where the thick red plate of the Australian desert snaps off into the sea and only Antarctica lies to the south, young John Franklin’s passion for geography, hydrography and exploration was born; it would pursue him to his death.

By the end of 1804, he was back in the Royal Navy, serving under Nelson at Trafalgar on the Bellerophon. After the peace, routine duties followed; but in 1818 he had his first stab at Arctic discovery when he volunteered as second-in-command on the Admiralty’s expedition to find the “North-West Passage,” linking the polar seas to the North Pacific. Blocked by ice, his ship had to turn back; but the north had laid its frozen word on Franklin, and he was to lead two more Arctic expeditions—the first across Canada to Arctic America between 1819 and 1822, a 5,000-mile journey of almost inconceivable hardship, and the second, to Arctic America again, between 1824 and 1828. He published narratives of both, which were avidly consumed by the public. Thus, by his early forties, this gallant English explorer found himself dubbed a knight, promoted to captain and pursued as a social celebrity; he was the muffled figure in W. M. Praed’s delicious satire on the foibles of London society, “Goodnight to the Season”: “the Lion his mother imported / In bearskins and grease, from the Pole.”

He had also found a second wife (his first having died while he was in the Arctic). Lady Jane Franklin (1791–1875) was a restless, indefatigably curious, highly intelligent and slightly neurasthenic woman, a silk-weaver’s daughter given to consuming projects—mainly, advancing her husband’s career as hero. After 1833, no imperial sea wars were being fought, but Franklin still had to find a post worthy of his talents. Lord Glenelg, Melbourne’s secretary for war and the colonies, was persuaded that there could be no better man for Van Diemen’s Land. Accompanied by Lady Jane and his private secretary, Captain Alexander Maconochie, Sir John Franklin stepped ashore in Hobart from the Fairlie in February 1837.

His fame had preceded him. He was greeted with relief and good will: illuminations, balls, teas, eulogies, each more florid than the last. Every bottle-nosed, favor-grubbing colonist who could stand up at table seemed to have a toast in him. When Sir John Franklin entered Launceston at the northernmost point of his first official progress across the island, three hundred horsemen and seventy carriages turned out to escort him. After reeling off the speeches Alexander Maconochie wrote for him and receiving tumultuous applause each time, he felt “both oppressed and delighted with the signs of popular joy.”

For although Franklin was guileless and did not (at first) question the motives of the colonists he had been sent to rule, he was not blind. He soon saw that these outpourings from the middle class of Van Diemen’s Land had something behind them. Many free Vandemonians had assumed, on no authority but their own wishful thinking, that the “polar knight” had come to give them representative government. They were sick of Arthur and his placemen. They expected Franklin to cancel the axioms of Arthur’s rule and somehow convert the island into a democracy without taking away the pleasures of assigned labor. There was no ground for this, and Franklin told them so. He might have liked to make Van Diemen’s Land self-governing, but the Crown had given him no power to change its constitution.¹

Besides, he had to work with the officials he had inherited—the “Arthur Faction,” a much-detested but certainly able administrative team who knew Van Diemen’s Land far better than he did. These included Matthew Forster, Arthur’s chief police magistrate and head of the convict establishment, a brutal man and a cunning political survivor (“When I stick my harpoon into a man,” Lady Franklin heard him remark, “I don’t take it out again”)²; John Montagu, the colonial secretary; John Gregory, the colonial treasurer; and Sir John Pedder, the chief justice. All four had got their money and power from assigned labor and Arthur’s nepotism; none had any time for the airy-fairy liberalism of a new lieutenant-governor who, however intrepid he may have been in the Arctic, seemed in the antipodes not only soft on convicts but governed by the petticoats of his interfering wife. While Arthur’s lady had never uttered a peep about the running of the colony, Lady Franklin never ceased to share her views on the matter with guests at Government House and grill them on theirs. She displayed an unwonted interest in the experiences, and even the welfare, of convicts. She corresponded at length with the great English humanitarian and penal missionary Elizabeth Fry, sending her regular (and by no means flattering) reports on Van Diemen’s Land. Jane Franklin was particularly concerned about women convicts, who were shamefully treated at the Female Factory in Hobart and often reduced to government-subsidized whoredom in assignment. In 1841 she formed a “Tasmanian Ladies’ Society for the Reformation of Female Prisoners,” which was mercilessly ridiculed by the Hobart papers, lapsed for two years and was revived—though never very effectively—in 1843.

She asked a great many questions about the System (too many, people thought) and, when accompanying her husband on his first visit to Port Arthur in March 1837, she startled the officers there by asking to try on a set of convict irons. Commissary Lemprière obligingly produced a pair of light handcuffs and snapped them on her wrists. Lady Franklin bore this for a short while but then had a mild attack of anxiety and asked to be released.³

What was more, she wished to intervene in the culture and even the ecology of Van Diemen’s Land. On learning that the island was infested with snakes, she offered convicts a shilling a head for them, hoping to de-herpetize Van Diemen’s Land altogether. This is said to have cost the government £600—and won her great popularity among the prisoners—before it was stopped, for Van Diemen’s Land had more snakes than shillings. Her efforts on behalf of intellectual life were more successful. She sponsored lectures and encouraged the faltering steps of the visual arts in Hobart (although its best artist, the unhappy convict Thomas Griffiths Wainewright, quondam exhibitor at the Royal Academy, received no patronage from Government House). She instituted a yearly regatta on the Derwent to honor the sailors on whom the colony depended. She persuaded her husband to sponsor a learned society which, in 1848, became the first colonial Royal Society for scientific studies. Devoted to the study of natural history, she set up a botanical garden outside Hobart; it boasted a natural history museum in the form of a Doric temple, which, for want of support after the Franklins were recalled to England, was turned into a storehouse for apples. As a friend of the great Dr. Arnold of Rugby, she was committed to the advance of education in the fledgling colony, and founded its state college (although its actual opening was delayed for years by the bitter religious factionalism endemic to Van Diemen’s Land). As a traveller, she might have been the Lady Wortley Montagu of the antipodes: She was the first woman to travel overland from Melbourne to Sydney, to ascend Mount Wellington and to make the appallingly difficult journey from the “settled districts” overland to Macquarie Harbor (borne, however, for much of the way on the shoulders of convicts in a palanquin or litter). Her letters reveal an eager, tough-minded, nosy, idealistic and intensely loyal person, just the lioness her sometimes naïve and administratively timid lion of a husband needed. It was foreordained that the more conservative colonists would dislike Jane Franklin for being a bluestocking and resent her influence on Sir John.

Perhaps the Arthur Faction would have accorded Franklin a certain grudging respect (followed, as day by night, by undying enmity: that was the Vandemonian way) if he had purged them as Arthur had their predecessors. But Franklin did not have the stomach for that. He vacillated; as Montagu remarked in a letter to his old boss Arthur, now the lieutenant-governor of Upper Canada, “the high qualities which were so conspicuous in Sir John . . . at the North Pole, have not accompanied him to the South.”⁴

Instead, he decided he had no choice but to work with the existing officials. So the Arthur Faction began to despise him as a vain, good-natured weakling, while the anti-Arthur colonists came to feel they had been sold down the Derwent. Lady Franklin was right when she wrote, in a letter to a friend, that in Van Diemen’s Land “people should have hearts of stone and frames of steel.” For Sir John Franklin, who as a midshipman had been unable to witness a naval flogging without trembling, this convict colony was a taxing place. Its colonists, as the English treasury official George Boyes remarked after nearly thirty years’ experience,

very much resemble the Americans in their presumption, arrogance, impudence, and conceit. They believe they are the most powerful men on the Globe, and that their little Island “whips all Creation.” They are radicals of the worst kind and their children are brought up in the belief that all Governments are bad—that they are deprived of their rights, and that they are ground and oppressed by the Mother Country, and mocked by the Officers sent out from England to rule them. Their views are of the narrowest and most selfish kind. They are incapable of any generous sentiment, and ever ready to impute the basest motives to their fellow colonists.⁵

An avalanche of administrative problems was teetering behind Government House. And by a peculiar irony, the man whose voice started its descent was the best ally Franklin had in the colony apart from his wife: his private secretary, the incorruptible Captain Alexander Maconochie (1787–1860), who would emerge as the one and only inspired penal reformer to work in Australia throughout the whole history of transportation.

ii

ALEXANDER MACONOCHIE was a lawyer’s son, born in Edinburgh. His father died when he was nine, and he had the good luck to be raised by a kinsman, Allan Maconochie, later Lord Meadowbank, who assured him a better-than-average education. He was expected to become a lawyer. But young Maconochie wanted to go to sea, not to the bar, and by 1804 he was a midshipman in the Royal Navy, serving for several years under Admiral Cochrane in the Caribbean. In 1810, as a lieutenant on the brig Grasshopper, he underwent perhaps the most significant experience of his career. The Grasshopper, on convoy duty in the Baltic, was wrecked on Christmas Eve 1811 off the Dutch coast, and Maconochie, with everyone else on board, was taken prisoner and handed over to the French. There ensued a forced march in the bitter cold of winter from Holland to Verdun, and more than two years’ misery as a prisoner of war —at a time when, half a century before the signing of the Geneva Convention, a POW’s lot was even less enviable than it is today. This was Maconochie’s one traumatic taste of life in prison, and he never forgot it. Indeed, he was the only major official of the transportation system who had ever spent time behind bars.

Released by Napoleon’s abdication in 1814, Maconochie rejoined the English Navy in its war against America, captaining the gunboat Calliope; he was promoted to commander just before peace was signed in 1815. For the next thirteen years he lived in Edinburgh, studying geography and geopolitics and writing lengthy tracts on Pacific colonization and steam navigation. (His interest in the Pacific, at this point, was somewhat abstract, as he had never been there.) He married in 1822, moved to London in 1828, and in 1830 became the first Professor of Geography at University College, London, and the first secretary of the newly formed Royal Geographical Society. From these chairbound labors he was plucked in 1837 by Sir John Franklin, who offered him the chance to see the Pacific, and England’s remotest colony, at first hand. Maconochie’s acquaintances in the Society for the Improvement of Prison Discipline asked him, since there was such a dearth of first-hand observers with no vested interest in the System, to complete for them a 67-point questionnaire on the treatment of prisoners in Van Diemen’s Land. The Scot had no theories about the System and no prior acquaintance with it; he seemed quite unprejudiced. He agreed to make the report, a task to which neither Franklin nor Sir Henry George Grey, under secretary for the colonies, had any objection so long as he sent it through Franklin to Grey, not directly to the Society.

Maconochie’s troubles began almost as soon as he arrived in Hobart. He saw that the wily colonials “read [Franklin] in a moment,” while Franklin the new-chum was far too vulnerable to their flattery:

I was a looker-on all the while, neither sharing in the applause nor . . . very likely to be imposed on by it—I read it thus at its just value, and tried to expose it equally to him, but that was hopeless—it was like trying to force a piece of barley-sugar out of a child’s mouth.⁶

Montagu, Forster and the rest of the Arthur Faction quickly sized Maconochie up as a potential enemy whose influence on the new lieutenant-governor had to be neutralized quickly. They blew a cloud of innuendo at Franklin, calling his private secretary an ideologue—who but a man with unrealistic pro-felon prejudices would do a report for an English reform society?—a “perfect Radical” who “encouraged all the disaffected, and promised what he could not perform.” Soon, Franklin and Maconochie began to draw apart—partly because Franklin wanted the Arthur Faction on his side, partly due to Maconochie’s own bluntness, but mainly because Franklin’s sworn duty was to run a system that horrified Maconochie. For Maconochie liked neither the harshness of Arthur’s police state nor the cant of those who profited from it. The System, he roundly declared in the report that Franklin transmitted to the Colonial Office in October 1837,

is cruel, uncertain, prodigal; ineffectual either for reform or example; can only be maintained in some degree of vigour by extreme severity: some of its most important enactments are systematically broken by the Government itself . .   [T]hey are of course disregarded by the community.⁷

The System, Maconochie thought, debased free and bond alike, producing “the fretfulness of temper . . . which so peculiarly characterises the intercourse of society in our penal colonies.”

Much of his report consisted of social impressions and moral lucubrations, but it had a hard core of fact. There, he was helped by several others. The Quaker missionaries James Backhouse and George Washington Walker, who had travelled throughout Van Diemen’s Land between 1832 and 1834 and reported on the chain gangs for Arthur, opened their files to him. He was advised by the Scottish surveyor Alexander Cheyne (1785–1858), who had been Arthur’s director-general of roads and bridges since 1835 and whom Franklin, in 1838, put in charge of the newly formed Department of Public Works. One sees the hand of Cheyne in Maconochie’s criticism of convict labor on government works, which entailed so much waste and graft that “1s. 9d. is lost out of every 3s. worth of labour.” Maconochie found little to commend in Arthur’s graded assignment system. It did not reform convicts; it bred social malaise and blunted the moral sense. “It destroys both soul and body—both master and man—both colonial character and, I may almost say, national reputation.”⁸ The convicts, he movingly argued,

have their claims on us also, claims only the more sacred because they are helpless in our hands. . . . [W]e condemn them for our own advantage. We have no right to cast them away altogether. Even their physical suffering should be in moderation, and the moral pain we must and ought to inflict with it should be carefully framed so as if possible to reform, and not necessarily to pervert them. The iron should enter both soul and body, but not so as utterly to sear and harden them.⁹

Manconochie gave his report to Franklin, who asked him to tone down some of the sharper criticisms, and he did so. Then Franklin sent the edited version to the main officials of the colony. Cheyne supported it, the others vehemently disagreed, and Franklin sent their minutes, one of his own, and Maconochie’s rebuttal along with the report itself to Lord Glenelg. For fear that this mass of paper, now running to several hundred pages, should “perish in the Colonial office from [its] own intrinsic gravity,” Maconochie wrote a separate summary of his case, and sent it to Lord Grey, as he had promised to do, but with a covering note asking him, if he thought fit, to show it to Lord John Russell. Russell was the home secretary, in charge of the British penal system. Franklin did not read this abstract from Maconochie, but he thought he knew what was in it. He hesitated to pass it on but gave in to Maconochie’s pleas. He wrote a covering note to Grey urging him not to send any material to the Society for the Improvement of Prison Discipline before it was thoroughly vetted by the Colonial Office, lest it “give pain to many respectable inhabitants here.”

Thus two reports on Van Diemen’s Land—the long revised one Franklin had read, and the more pungent précis he had not—reached London by the same ship in February 1838. Grey read the précis and, on March 5, 1838, passed it on to Lord Russell. If any moment can be said to mark the peak and incipient decline of transportation to Australia, this innocuous act marked it.

For what Maconochie did not know—and could not have known, due to the long delays in official communication between England and Australia—was that Russell, an ardent critic of transportation, had already been appointed a member of a Parliamentary Select Committee, under the chairmanship of the even more dogmatically anti-transportationist Sir William Molesworth, to inquire into the workings of the System. The Molesworth Committee had been convened in April 1837, when the dispatches were on the water. At that point, its members knew no more about Maconochie’s criticisms than Maconochie knew about the committee.

Russell wanted ammunition. He sent Maconochie’s précis straight to the government printer, for publication. Thus a private memo entered the public, official record. To back it up, Russell had the whole text and minutes of the longer report, as approved by Franklin, published a month later.

Both documents caused a sensation in the English press. But it was nothing compared to the hullaballoo the English papers touched off in Van Diemen’s Land six months later, in September 1838, when they reached Hobart.

All of a sudden, the good citizens of Van Diemen’s Land found themselves vilified in official parliamentary print as callous slave-owners, rulers of a petty kingdom raised on the exploited bodies of convicts. This was enough to bury—for a time—all differences between the Arthur Faction and the anti-Arthurians. Everyone who had ever had a convict assigned to him could now hate Maconochie, who (so the Hobart version went) had gone behind Franklin’s back and smuggled his foul canards to England under the guise of official correspondence. Montagu and his friends lost no time persuading Franklin that Maconochie had betrayed him.

Franklin was not quite sure that he had. The opinions in the report were, after all, Maconochie’s own, and not presented as official. But in the end he had no choice. He dismissed Maconochie, although he allowed him (with his wife and six children) to stay on at Government House until they found other lodgings. Lady Franklin was sorry. Maconochie, she wrote to her sister, had “such a freedom from colonial suspicion and narrowness of views and personal spite and hostility . . . and so much less apparent self-interest that I could not but value his union with us and deplore his separation.”¹⁰

The Maconochies were ostracized. “We see few and go nowhere,” Mrs. Maconochie wrote.

Alexander is like a lion at bay, deafened by the barking and yelping of the curs about him, but in no other ways stirred from his steady honesty of purpose. . . . Alas, alas! I always looked forward to trials and difficulties, mystifications of every description, but no imagination could have realized the continued tissue of falsehood, suspicion and unworthy accusation continually poured forth.¹¹

All this only stiffened Maconochie’s fiber. He had at last found his mission in life: “The cause has got me complete,” he wrote to London. “I will go the whole hog on it. . . . I will neither acquiesce in the moral destruction of so many of my fellow beings nor in misrepresentation made of myself, without doing everything that may be necessary or possible to assist both.”¹²

He felt the deck lifting under his feet. The Molesworth Committee had brought in its verdict of guilty on transportation; public opinion in England was changing. Despite his isolation in Hobart, Maconochie had found the allies he needed 14,000 miles away, at the head of the System, among English Whigs whose slanting of the evidence had made the findings of the Molesworth Committee a foregone conclusion.

iii

THE MOLESWORTH COMMITTEE was convened “to inquire into the System of Transportation, its Efficacy as a Punishment, its Influence on the Moral State of Society in the Penal Colonies, and how far it is susceptible of improvement.” It began its hearings in 1837 and laid its final report before the Commons in August 1838.¹³

The Molesworth Committee claimed to be an objective tribunal. It was in fact a heavily biased show trial designed to present a catalog of antipodean horrors, conducted by Whigs against a system they were already planning to jettison. Its real movers were the home secretary, Lord John Russell, and the under secretary for the colonies, Lord Grey, in consultation with the Colonial Office. Grey, then thirty-six years old, was later to run the Colonial Office under Lord Russell; he never made any secret of his disdain for the assignment system. Australian affairs were not a large issue for either of these men or for the British Government; they came some distance behind those of Canada, Malta, Gibraltar and the colony at the Cape of Good Hope.¹⁴ But in 1836, Russell had already announced his intent to liberalize the criminal law, reduce the hanging statutes and abolish transportation as a punishment for simple larceny—which would have cut the number of transportees by half.¹⁵ He thought transportation archaic and, like other “progressive” Parliamentarians, favored punishment (at least for routine crimes) in model prisons and penitentiaries on English soil. Between them, Russell and Lord Glenelg had decided to abolish assignment and step up free emigration to Australia before the Molesworth Committee had heard a single witness.

So the Molesworth Committee was formed to dramatize the need for a decision which had already been taken. Russell chose a chairman of suitably flamboyant idealism, an eager young show-pony: the member for Cornwall, the twenty-six-year-old Sir William Molesworth. He was a “Philosophic Radical,” a follower of Bentham and Hobbes (whose collected works he would turn to editing in 1839), and a staunch Abolitionist.

The committee heard twenty-three witnesses, most of whom, like the Scottish clergyman and politician John Dunmore Lang, an untiring promoter of free Protestant emigration to Australia, were already wellknown foes of transportation. Others, like James Mudie, were so fiercely bigoted against convicts that their views on colonial morality were untrustworthy. Even Bishop Ullathorne had an ulterior motive in expounding on the horrors of atheism and sodomy Down Under, as he wanted to expand the power of the Catholic mission in Australia. James Macarthur, fourth son of fierce old John, who gave extensive evidence to the committee, thought the convict labor that had raised his family to immense wealth at Camden would no longer be needed if the Crown permitted the colony to get coolie labor from Asia and Crown-subsidized free emigrants from Britain.

Some of their evidence remains useful to the historian, for most of the witnesses were telling the truth as they saw it; but the effect was still tendentious, because it was not the whole truth. The committee was out to portray Australia as a colony plagued by a rising crime rate and crippled by its dependence on criminal slavery. It wanted to set the stage for the policy of controlled emigration set forth by Molesworth’s intellectual mentor, Edward Gibbon Wakefield, whereby Crown lands in Australia would be sold to well-screened young emigrants at a “sufficient” or high price so that mere ex-convict laborers could not easily acquire land they could not use. “It is difficult,” Molesworth noted,

to conceive how any man . . . merely having the common feelings of morality, with the ordinary dislike of crime, could be tempted, by any prospect of pecuniary gain, to emigrate, with his wife and family, to one of these colonies, after a picture has been presented to his mind of what would be his probable lot. To dwell in Sydney . . . would be much the same as inhabiting the lowest purlieus of St. Giles’s, where drunkenness and shameless profligacy are not more apparent than in the capital of Australia . . . [E]very kind and gentle feeling of human nature is constantly outraged by the perpetual spectacle of punishment and misery—by the frequent infliction of the lash—by the gangs of slaves in irons—by the horrid details of the penal settlements; till the heart of the immigrant is gradually deadened to the sufferings of others, and he becomes at last as cruel as the other gaolers of these vast prisons . . . [T]he whole system of transportation violates the feelings of the adult, barbarizes the habits, and demoralizes the principles of the rising generation; and the result is, to use the expression of a public newspaper, “Sodom and Gomorrah.”¹⁶

Stirring stuff, and meant to be; but it ignored the facts that scores of thousands of emancipated convicts had gone on to build happy, productive and law-abiding lives for themselves and their children in Australia, that by no means all the “respectables” were opportunistic slave drivers, and that the place was not entirely a sink of atheism and inherited propensities to crime. Bishop Ullathorne summed up the committee’s bias—without perhaps realizing the implications of his story—when he described a private call he made on the young chairman at home in London. “I went to his house, and was amused to find him in a dandy silk dressing-gown, covered with flowers like a garden, and tied with a silk cord with flowing tassels. He had my pamphlet before him, and tried to coach me as to the best way of giving evidence.” [Italics added.]¹⁷

The committee’s basic charge against the assignment system was its randomness as a “strange lottery,” ranging between “extremes of comfort [sic] and misery,” in which a swarm of unpredictable variants—the character, temper and security of the master, the kind of work, the site—had, as Governor Bourke put it, “an unmeasurable influence over [the convict’s] condition, both physical and mental, which no regulations whatever can anticipate.”¹⁸ What deterred crime, the committee argued, was not the fate of the convict in Australia but the perception of his fate among English criminals:

Most persons in this country . . . are ignorant of the real amount of suffering inflicted on a transported felon, and underrate [its] severity. . . . On their arrival at the antipodes, they discover that they have been grievously deceived by the accounts transmitted to them, and that their condition is a far more painful one than they expected. For those convicts who write to their friends . . . are generally persons who have been fortunate in the lottery of punishment, and truly describe their lot in flattering terms; those . . . who really experience the evils of Transportation, and are haunted with “a continual sense of degradation,” are seldom inclined to narrate their sufferings except when they have powerful friends from whom they may expect assistance.¹⁹

The main characteristics of transportation, the committee acerbically put it, were “inefficiency in deterring from crime, and remarkable efficiency . . . in still further corrupting those who undergo the punishment.” Efficiency for evil and futility for good “are inherent in the system,” which could never be improved. What of its economic benefits to the colony? The committee took a pessimistic view of these, too. Due to free convict labor, it noted, “a larger amount of wealth has been accumulated in a shorter space of time than perhaps in any other community of the same size in the world.” But it was an artificial prosperity, not likely to continue. “New South Wales is suffering excessively from a dearth of labourers. The flocks of sheep are double the size they ought to be; a vast number perish for want of care; the complaints of the colonists on this subject are loud and universal.” Ten thousand laborers were needed in New South Wales but only three thousand convicts were likely to arrive there in 1838, barely enough to replace those lost to the labor force by death, illness or tickets-of-leave. Hence, there had to be another source of labor. The committee rejected Macarthur’s idea of importing Asian coolies; that smacked of American slavery.

Hence, the only course was free emigration, underwritten by the sale of Crown land in Australia as proposed by Wakefield. That, too, demanded the end of the System, for “Transportation has a tendency to counteract the moral benefits of emigration, while . . . emigration tends to deprive Transportation of its terrors.” But with labor short, land cheap and wages high in New South Wales, it was too easy for free laborers to become small independent farmers—which they wanted to do for more than ordinary reasons, since “the employment of convicts as slaves has . . . a tendency to bring labour into disrepute.” So when transportation was abolished, the price of Crown land, then as low as 5s. an acre, had to go up to at least £1, so that laborers would keep laboring.²⁰

It was not these reflections, however, that maddened the colonists, but the report’s strictures on their morals. Even before the full text reached Australia, word had leaked back of what some of the witnesses, especially Ullathorne, had said; it provoked much unease, and in May 1838 more than five hundred respectable citizens petitioned the Legislative Council of New South Wales to do something to counteract the talk about Sodom, Gomorrah and the rising crime rate. In July the council issued a lengthy resolution pointing out that “the character of this Colony . . . has unjustly suffered by the misrepresentations” of Molesworth, Russell and their parliamentary colleagues; that the free emigrants and the rising generation of native-born Australians “constitute a body of Colonists who, in the exercise of the social and moral relations of life . . . impress a character of respectability on the colony at large”; that many convicts were in fact reformed by assignment amid the “solitude and privations” of the outback; and that assignment generated the wealth that enabled settlers to buy Crown lands and so produce the government income to underwrite immigration, so that “the continuance of Immigration . . . must necessarily depend on the continuance of the Assignment of Convicts.”²¹

The colonists feared, with reason, that by the time the Whigs had finished libelling their morals, nobody would want to come to Australia anyway and the colony would have neither convict nor free labor. To them, the report was a stunning parental rejection. They had posited their social self-esteem on a rigid class barrier between themselves and the convicts. Even the Currency had done this, burying their convict origins within a generation or two. Now, the report claimed that crime was increasing faster than population and referred to a “progressive demoralization both of the bond and of the free inhabitants”; clearly, in English eyes, there was little to choose between them. No wonder that the Exclusives—who had always insisted that the offspring of convicts bore a hereditary stain which had not touched their own lineage—reproached Mother England in bewildered denials and Oedipal tantrums and that they resolved to tighten the class line between convicts and “respectables” in New South Wales. Meanwhile, the Sydney press, which until 1838 had kept up a drumfire of scare stories about a growing crime wave in New South Wales, suddenly changed its tune; the very idea of a crime wave became, in local Tory eyes, a “monstrous caricature” sketched by English Whigs.²²

The report had placed the colonists in exactly the double bind that defines a colonial mentality. Many of them wanted to be more English than the English; they needed the approval of the implacable parent. Instead, Molesworth gave them pages of condescending Whiggery-and-priggery about their ineradicable stain.

Once the fuss over the Molesworth Report had died down, however, the end of transportation and assignment in New South Wales came smoothly, without much political or economic strain. Even before the report hit the colony, the instructions from Downing Street were to wind down assignment and “coerce” convicts in government labor gangs instead. In October 1838, Bourke’s successor, Governor Sir George Gipps, who had taken over a few months before, proscribed the assignments of convicts “for domestic service, or for the purposes of Luxury and in Towns,” although they still did essential work on pastoral stations.²³

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:

My conscience hath a thousand several tongues,

And every tongue brings in a several tale,

And every tale condemns me for a villain.

Perjury, perjury in the highest degree,

Murder, stern murder, in the dir’st degree—

All several sins, all us’d in each degree,

Throng to the bar, crying all, “Guilty! Guilty!”

I shall despair. There is no creature loves me,

And if I die, no soul will pity me:

Nay, wherefore should they, since that I myself

Find in my heart no pity to myself?

In the afternoon the show was moved up the hill to Longridge and repeated for the New Hands (who were kept segregated from the old, in strict deference to orders). Down at Kingston there were more amusements and sports, lasting into the evening. When night fell, fireworks—paid for, like the rum, by Maconochie himself—banged and glittered over the prison compounds; and by the time the last spark had trailed away in the blackness, Maconochie noted that “not a single irregularity, or even anything approaching an irregularity, took place. . . . [E]very man quietly returned to his ward; some even anticipated the hour.”

When the good colonists of Sydney heard news of this extraordinary day, so utterly unlike any other in the past fifty years of the colony’s history, a wave of execration broke on Maconochie’s head. The scum of the System were parading free, with rum, dances and fireworks, on the Isle of the Damned. What further revolutions might this not presage? What would the mainland convicts do when they heard about the felon’s picnic? How soon could this rosewater liberal of a Scot be recalled? Not soon enough, was the answer. Gipps was embarrassed by Maconochie’s disregard of orders, but he was a principled man and had given his word to the reformer. “My desire to see Capt. Maconochie’s system tried in a fair and proper manner remains undiminished,” he wrote to Lord Russell in June 1840, enclosing copies of his protege’s “rather voluminous” reports, but Gipps expressed his “surprise”

that [he] had, within a week after his arrival in Norfolk Island, abolished all distinctions between the two classes; that he had extended equally to all a system of extreme indulgence, and held out hopes, almost indiscriminately, to them of being speedily restored to freedom. . . . [T]hough my disapproval of Capt. Maconochie’s proceedings . . . was received by him on the 20th May, no attention whatever was paid by him to my communications. . . . [O]n the contrary, within a few days after the receipt of them the whole Convict population of the Island was regaled with Punch, and entertained with the performance of a Play.³²

In the meantime, Russell had written to Gipps, having second thoughts about Maconochie and giving the governor authority to recall the reformer if he thought proper:

Notwithstanding the Objections which I entertain . . . to the Theory of Captain Maconochie, that Reformation is to be the sole Object of the Convict System, I still wish the Experiment to be tried under his immediate Supervision; but with the clear understanding that you shall remove him, if you should find Mischief ensue . . . from his Management.³³

But when Gipps’s account of the Queen’s Birthday celebrations on Norfolk Island reached him, Russell’s next letter took on a sharper note of alarm:

I see no Alternative but to direct that Captain Maconochie should not be intrusted with the management of any Convicts who have more than three years’ time to serve before . . . they may obtain a Ticket of Leave. The rest of the Convicts at Norfolk Island should be gradually removed from under his Control. . . . Make the necessary arrangements with Sir John Franklin for the Reception of such Convicts in Tasman’s Peninsula.

I have already authorised you to remove Captain Maconochie from Norfolk Island. . . . [I am convinced of] the necessity of leaving you full Discretion to supersede that Officer.³⁴

Maconochie, however, cared not a fig for the colonists’ prejudices. He pressed ahead with his plans for cultural and moral reform. The first are summed up in a shopping list he forwarded to Gipps.³⁵ By past penal standards, it was outlandish. He wanted books, for instance—an encyclopedia, magazines on engineering, craft and farming, cookbooks for brewers and bakers; these would help teach the men trades they had never learned, or else forgotten. He asked for a copy of Robinson Crusoe, to instill “energy, hopefulness in difficulty, regard & affection for our brethren in savage life, &c.” He wanted the convicts to read travel and exploration books, starting with Cook’s Voyages, because “the whole white race in this hemisphere wants softening towards its aboriginal inhabitants.” Hoping “to invest country and home with agreeable images and recollections [which] are too much wanting in the individual experience of our lower and criminal classes,” he sent for books on English history and popular national poetry—Robert Burns, George Crabbe, the sentimental sketches of English village life by Mary Mitford, a set of Walter Scott’s Waverley Novels to encourage national pride in Scottish convicts, and the works of the Rousseau-tinged woman novelist Maria Edgeworth, such as the satirical Castle Rackrent (1800), to do the same for Irish ones. He also stocked this prisoners’ library with moral and religious works, some, as he put it himself, of “controversial divinity,” for he wanted the prisoners to think and argue together, not rot in their cells:

Polemical discussions are sometimes inconvenient; but I do not dread them, for they are nearly always, I think, improving. Wherever a taste for them prevails, as in Scotland, Switzerland &c^a, it is always found accompanied by other good qualities; while on the contrary, where they are despised, as in France, or crushed, as in Spain, the national character seems to suffer. . . . I would have no fear [of controversies], even in a prison.

He included the works of Shakespeare in his island library, for their nobility; had his doubts about the reformative power of theater (“the English drama is often licentious, but substantially its tendency is moral”); and felt that theatrical training could help convicts overcome their passions. Such had been his purpose on the Queen’s Birthday.

Music would be the main therapy; the Orphean lyre, once heard on Norfolk Island, would charm and soothe the savage beasts of the Old System. Music was an “eminently social occupation.” It taught collaboration and disciplined obedience. It rested on strict order and subordination, and, if “national and plaintive” in character, kept its hearers affable and patriotic. “It is sometimes thought to lead to drinking,” wrote this earnest Scot, anticipating objections from on high, “but this, when true at all, applies to rude rather than scientific music. . . . The most musical people, as the Italians or Germans, are thus sober rather than drunken.” (Maconochie had never visited either country.) He put in a request for trumpet, fifes, horns, drums, cymbals and two “seraphines” (reed accordions with keyboard and bellows, invented in the 1830s and popular in small parishes that could not afford full organs). He spent £46 of the government’s money on a large stock of music-paper: old, infirm and crippled prisoners would be set to copy the scores out.

Gipps worried that there was little he could do, short of recalling Maconochie altogether, to stop him running Norfolk Island as he pleased. The island was too far from the mainland. But he had his colonial secretary, E. Deas Thomson, write a blistering rebuke:

[Your] Errors . . . appear to have been the consequence of Your own too sanguine temperament. . . . Deeply impressed with the Truth of your own Principles, and elated, it is not unreasonable to suppose with the Notice which your Writings had attracted in England, you appear to his Excellency to have set to work with the Idea that everything was to give way before you.³⁶

He also reported to Russell, a week later, that although he could not yet

be justified in declaring Captain Maconochie’s System of Management has failed, I doubt whether he will be ever able himself to work it out, as the Nonfulfilment of the Expectations which he has encouraged the Prisoners to entertain must . .  diminish his Influence over them.³⁷

Maconochie replied, with annoying airiness, that he had ignored his orders to submit all new convicts to a time of punishment labor before putting them under the Mark System because “it can scarcely be doubted that this Act [2 & 3 William IV, c. 62] will be repealed. . . . I never thought of these rules as a guide; I thought them a dead letter.”³⁸

But Gipps’s reply, through Thomson, put the politics of the matter quite flatly. The issue was not how well Maconochie’s measures were working on Norfolk Island, but their effects on the mainland:

Whether [the Old System] was good or bad is not the question; it was a system which caused transportation to that settlement to be held in great and salutary dread by the convict population of New South Wales, and to destroy that dread before even any substitute for transportation to Norfolk Island had been devised, would be to expose this colony to risks for which [Gipps] cannot make himself responsible. I am therefore to inform you that the instructions . . . are now repeated.³⁹

Gipps was pincered between his hope that Maconochie’s system would succeed and his fear of the majority of influential colonists—irascible, bigoted men, haunted by the threat of a “slave rebellion,” who believed that convicts should be kept in iron constraint and not given an inch. Pressed to make a public statement, he reluctantly criticized Maconochie in a speech to the New South Wales Legislative Council. This whipped the criticisms of the conservative press into a firestorm. Before long, as Gipps himself recounted it,

every man was against him, every man derided his System. . . . The feeling in fact against him, though not so intense, and far more justifiable, was analogous to that which, a dozen years ago, manifested itself in the West Indies against any attempt to ameliorate the condition of slavery.⁴⁰

But Maconochie, a thousand miles away, pressed indefatigably on. He argued vehemently against Russell’s wish, as transmitted to him by Gipps, that “my Men” who had won their tickets-of-leave should be sent down to Van Diemen’s Land to complete their sentences:

Nothing would, I think, be more unfair to them, or more certainly tend to their second Fall. Dropping, as it were, from the Clouds, without Friends or Experience, or the Habits of Evasion and Suspicion which in existing Circumstances must and do characterize the mass of the Convict Population there,—likely to be regarded with dislike by the inferior Authorities as having been trained on with different Maxims from their own, —indifferently supported thus by their Superiors when they do get into difficulty,—and jeered and tempted, if but for the Fun of it, by their Equals,—I can see but one fate for them, and that is too melancholy to be further dwelt on.⁴¹

Maconochie continued to lobby Gipps for more money, more power, an absolute scope for his Mark System. His long-winded, theory-stuffed dispatches soon palled in Sydney. Gipps’s patience frayed. “His Excellency cannot lay the public Purse open to your Hands,” snapped Thomson in July 1842.

He cannot make you what, in one of your own Letters, you expressed a Desire to be,—a Dictator. . . . After a Correspondence of more than Two Years his Excellency feels he is sufficiently acquainted with your System to render unnecessary any Discussion on the first Principles of it; and he cannot help remarking, although he does it with great Reluctance, that your frequent Practice of introducing Theoretical Reasoning into your Despatches causes the Public Correspondence to be both tedious and unsatisfactory.⁴²

Maconochie obviously had grave problems. He could not promise the convicts freedom under his system and be sure that the government would honor his word; his powers were ill-defined; money was short; and to keep two separate systems for two groups of prisoners on a small island was an administrative nightmare. But he kept at it, and he described his general relations with the prisoners in optimistic terms. “I deliberately claim the Merit of almost complete Success,” he exulted in a lengthy dispatch to Gipps in June 1842. “I have almost made black white.” He expatiated on his day-to-day relations with the convicts:

I showed the greatest Confidence in all; walking familiarly among them; taking my Wife and Family with me to every Corner of the Island, without Protection; removing the iron bars from my House Windows . . .

I bade them stand up like Men, whomsoever they addressed . . . [A]t one time, if a Prisoner contradicted a Free Witness against him, he was punished for Insolence. . . .

I even frequently tried Offenders in the open Barrack Yard, and engaged the [prisoners] to act as Jurors, Pleaders, Accusers, or otherwise, as the Case might be; I derived extraordinary Advantage from this, in at once suppressing false Testimony . . . and in interesting the Body of the Men in the Administration of Justice. Their sole Object on all occasions had been to defeat it, but now they began to sympathise with it. . . .

I told them repeatedly that I could work no miracles with them, that I had not come to be their Gaoler, but if possible their Reformer; that I could do much in this if they would assist me, but nothing without. . . . I thus omitted nothing which I thought could touch their Hearts and Feelings, and thus give them an elevated direction.⁴³

Maconochie dismantled the gallows, which had stood as a permanent emblem of dread outside the gate of the prisoners’ barracks. He threw away the special double-loaded cats used by the floggers. The island had never had a church, but now Maconochie built two, one for the Catholics and the other for Protestants, each accommodating 450 men. For the dozen or so Jewish prisoners, who suffered badly from the anti-Semitism of other convicts and the lack of any means to conduct their own religious ceremonies, he set aside a room in the barracks as a makeshift synagogue. He gave every man a plot of the rich soil, set up classes in vegetable and fruit gardening—“a boon to the industrious, none at all to the idle”—and encouraged them to sell their surplus produce to the officers. “I thus sought to distribute property among them, and from its possession inculcate a sense and value for its rights.” It greatly reduced petty theft. He let them grow and use their own tobacco “to legalize an indulgence which it was impossible to prevent, and in which, unless forbidden, there was no moral evil.”⁴⁴

He even instituted a new policy on death and commemoration. Few convicts had ever been given headstones. The exceptions were usually rebels, such as the men executed in the 1834 rising; some of their tablets can still be read in the Norfolk Island cemetery, their inscriptions a pointed reminder to other convicts of what disobedience deserved. But to be commemorated after death, however simply, was of great importance to ordinary men; and so Maconochie authorized the placing of “headstones, or rather painted boards” on the graves of convicts.

a privilege previously confined exclusively to the free; and our buryingground being a somewhat romantic spot . .  near the sea, it was eventually seldom without one or more visitors reading and meditating on its stern and touching lessons and recollections.

These wooden markers are gone. But some convict headstones from Maconochie’s years do remain, testifying in their elaboration to Maconochie’s scrupulous refusal to deny the dead their dignity—even when they were killed in a mutiny. The gravestones of men shot in the abortive piracy of the brig Governor Phillip in 1842, the work of skilled but anonymous convict hands, are among the finest in the cemetery. That of James Saye bears a severe reminder:

Stop Christian stop and meditate

On this man’s sad & awfull fate

On Earth no more he breathes again

He lied [lived?] in hope but died in pain.

But the stone of Bartholomew Kelly (an Irish convict from Kilmurray in Cork who had been transported as a mere child of twelve in 1831 and had suffered on the island since March 1834 before turning pirate at twenty-six in 1842) is adorned with emblems of mercy, two turtledoves bearing olive twigs in their beaks, between the cherub’s head on top and the skull and crossbones below. And Samuel Jones, transported as a boy from Warwick for stealing rabbits eleven years before he was shot on the Governor Phillip, has a stone of strict and simple beauty, with an angel blowing the trumpet of resurrection while stony, leafing tendrils—shoots that promise renewal of life beyond the grave—twine upward from the ground. No convict since 1788 had been granted such exequies. Even a simple stone meant a lot. Thus Laurence Frayne, who had suffered so terribly under Morisset’s regime, was allowed to set up a monument to his fellow Dubliner William Storey, officially listed as “a troublesome mutinous character,” who had been shot in 1838, a year before Maconochie’s arrival, after escaping into the bush. “This stone was erected by Lau[ren]ce Frayne to comemmorate his memory,” the plain worn inscription reads, testifying to the solidarity between the Irish convict and his mate, a bond whose public expression only Maconochie would permit.⁴⁵

Trusted at last, reprieved from the incessant torment of the cat-o’-nine-tails, treated like human beings instead of caged beasts, some convicts poured forth their gratitude to the man they saw as their savior. The last hundred pages of Cook’s Exile’s Lamentations are given over to describing and praising Maconochie’s Mark System. Other prisoners were briefer but no less intense in their feelings. “We were relieved by an Angell and Family,” wrote James Lawrence, “the well known and respected Captain Maconochie, Humane, Kind, religious and now Justice stares us in the Face, the Almighty has now sent us a deliverance—no gaol, no Flogging. . . .”⁴⁶

Maconochie’s humanity also showed in his treatment of men so broken by cruelty and neurosis that they were thought beyond help. Perhaps the most striking case was that of Charles Anderson, a mentally impaired convict who had undergone years of misery in Sydney as the butt of every colonial sadist.⁴⁷ An orphan, Anderson had passed from the workhouse into the navy at the age of nine. On active service, he was wounded in the head and suffered irreversible brain damage; after a drink or two, especially when under stress, he turned violent and hostile. During such a bout on shore leave, Anderson smashed some shop windows and was arrested for burglary. Tried and convicted, he was sentenced to seven years in Australia; he was then eighteen. Anderson was so crazed with resentment when he landed in Sydney that the penal authorities isolated him on Goat Island, a rock in Sydney Harbor. Over the next few years he escaped and swam for shore three times, and received a total of some 1,500 lashes for such “offenses” as “looking round from his work, or at a steamer in the river, etc.” He spent two years tethered to a chain on the rock, naked and sun-blackened. His only shelter was a coffin-shaped cavity hewn out of the sandstone; at night he would lie down in it and the warders would bolt a wooden lid, pierced with air holes, over him till morning. His food was put on the rock and pushed at him with a pole, like a wild beast’s rations. Prisoners were forbidden to speak to him, on pain of flogging. The welts and gouges torn in his back by the cat never healed and were infested with maggots. He stank of putrefaction and Sydney colonists found it amusing to row up to his rock, pitch crusts and offal at him, and watch him eat. Eventually Governor Bourke, ashamed by the light this public spectacle cast on the people of Sydney, had Anderson removed to the lime-kilns of Port Macquarie. He escaped again and joined a black tribe; was recaptured and savagely flogged; and killed an overseer, hoping to be hanged. The authorities sent him to Norfolk Island instead, and he was still there—a man of twenty-four, looking twenty years older, relentlessly persecuted by the Old Hands—when Maconochie took command.

His therapy for Anderson was simple: he gave the poor, crazed man some responsibilities by putting him in charge of some half-wild bullocks, and freed him from the taunts of the Old Hands by letting him stay with them out of range of the barracks every day. He hoped, rather fancifully, that “bovine” characteristics would rub off on Anderson, making him more tractable. But the man did tame the bullocks, and found himself—for the first time since leaving England—congratulated and spoken kindly to. Then Maconochie moved him up to a new job, managing the signal station on top of Mount Pitt, which he did “with scrupulous care.” Anderson could never be fully rehabilitated—his earlier brain damage was too severe for that—but when Governor Gipps visited Norfolk Island in 1843, he recorded his amazement on seeing the former wild beast of Goat Island bustling about in a sailor’s uniform, open and frank in demeanor, returned to his human condition. This was the most striking success, but not the only one, of Maconochie’s occupational therapy, an idea unheard-of in the English penal system until then.

A man of such radical views was bound to make enemies wherever went, and his system was sure to be attacked.^* The first complaint from a minor official on Norfolk Island was, of all things, that he had become a tyrant, applying his system in the teeth of regulations. In August 1842, Governor Gipps forwarded to London a letter from a “demiofficial,” Maconochie’s commissariat officer, J. W. Smith. It claimed that

Captain Maconochie fancies himself supreme. . . . He has contended for absolute Power . . . [A] most radical Change is wanted here immediately. The Place bears no more Resemblance to what a Penal settlement should be than a Playhouse does to a Church. The Public works are neglected for want of mere Labour; the Roads which were made with so much Pains [sic] are falling into Decay; . . . the Crops are wholly insufficient to supply the Establishment. Idleness and Insubordination prevail to a shameful extent.⁴⁸

Both the shortage of food and decline of labor came from events beyond Maconochie’s control. In 1841 blight struck the staple crops on Norfolk Island. They failed, and hunger lowered the prisoners’ resistance to disease. Dysentery swept the island, and killed off a number of the “New Hands” from England. Smith mentioned none of this.

There were also rumors, impossible to quash from Norfolk Island, of escapes and near-rebellions facilitated by the lenient new system. All were untrue, but they became arguments against Maconochie. Once in 1842, a group of twelve convicts (all twice-convicted Old Hands) seized the brig Governor Phillip at sea off Norfolk Island and held her for half an hour before the military guard rallied, killing five of them and capturing the rest. But since this piracy happened several miles offshore, it could only be blamed—as Gipps was prompt to recognize—on the negligence of the vessel’s captain and guards, not on Maconochie’s Mark System.

It was hard for Governor Gipps to formulate a policy for Norfolk Island and make it stick. Lord Russell had told him to stop sending twic-econvicted criminals there from New South Wales and to keep the island solely as a prison for new offenders, fresh from England, subject to Maconochie’s system. All very well, but where was he to put the 250 or so recidivists who, each year, were condemned to second sentences and would normally have been sent to Norfolk Island? Russell had airily suggested putting them on Goat Island in Sydney Harbor. Gipps had to point out that Goat Island was less than a mile from Sydney Cove and now held the military magazine; putting twice-sentenced convicts on this (literal) powder-keg “excited much apprehension among the colonists.” Gipps devised a new holding-pen for them, on Cockatoo Island in Sydney Harbor north of Balmain, “surrounded by deep water and under the very eye of Authority.” It was solid rock, and could supply Sydney with building stones as the Sing Sing quarries did New York. Among the structures Gipps had the “hard cases” build there were twenty bottle-shaped wheat silos, hewn into the living sandstone.⁴⁹

But Cockatoo Island could not hold more than four-fifths of the recidivists. Where to put the rest? Russell had told Gipps to send no more second offenders to Norfolk, but the law (3 William IV, c.3) forbade him to send them anywhere else. Only an act of the New South Wales Legislative Council could change that. But the Legislative Council, Gipps well knew, would not allow any Old Hands back to contaminate New South Wales. It would only send them to Van Diemen’s Land—where Lieutenant-Governor Franklin did not want them either and would not permit them to land. And unless the twelve hundred Old Hands could be removed from Norfolk Island and put somewhere, there was little prospect that Maconochie’s new system would get its fair trial. But was it working at all? Or should it simply be abandoned? On this point, Gipps felt torn between the pressures of the colonists and his own sympathies for Maconochie.⁵⁰

Dutifully, Gipps kept the Colonial Office posted on all the main criticisms of Maconochie and his system. In 1840 Russell had empowered him to cancel Maconochie’s appointment “whenever the public good might . . . require such an exertion of authority.” By mid-1842, he felt fairly secure he ought to do so. He confessed the difficulty of getting at the truth, between the rancor of Maconochie’s critics and the commandant’s own lofty and long-winded certainties. Some good, Gipps agreed, had come out of the new system. There was less murder and violence among the prisoners, and Maconochie’s acts of leniency did awaken “the good feeling implanted in them by nature.” Punishment was rare, task work light, the New Hands “idle and listless,” the Old Hands “uneasy and scheming.” Maconochie had given out too many tickets-of-leave, so that the amount of work done for the government had fallen—convicts were always scurrying off to tend their vegetable-gardens. The validity of these tickets-of-leave was restricted to Norfolk Island, which raised another problem: If and when their holders were transferred to Van Diemen’s Land, they could not keep their tickets. Gipps doubted if the currencies of punishment could be exchanged between Van Diemen’s Land and Norfolk Island. So he advised the secretary of state for the colonies, Lord Stanley, that unless he received orders to the contrary by March 1843, he would move all the Norfolk Island New Hands down to Van Diemen’s Land and declare Maconochie’s experiment cancelled. “The best thing to do with Norfolk Island,” Gipps concluded, encompassing the end of the Mark System with a gloomy stroke of the nib, “will be to let it revert to what it was, prior to the year 1840.”⁵¹

But Gipps was a fair-minded man, and the idea of erasing Maconochie’s project on the mere word of the man’s enemies gnawed at his conscience. Thus, just before the deadline of March 1843, he decided to visit Norfolk Island—without warning its commandant. He arrived there on the Hazard in the Pacific autumn of that year, and on landing he was agreeably surprised. Far from being an anarchic holiday-camp for criminal loafers, as the critics had suggested, the place semed perfectly in order, the convicts “respectful and quiet.” Digging deeper, he privately interrogated “every person having any charge or authority, however small” in the absence of Maconochie, taking notes and keeping the answers from the commandant. During his six-day visit, he “minutely inspected” every building of any significance on the island and spoke to many convicts.⁵²

All his findings pointed to one conclusion: Maconochie’s critics were mostly wrong, and the new system, though imperfect, was in some respects working better than the old. The elimination of disease, the main source of administrative troubles, lay outside the reach of any commandant; among the New Hands at the Longridge settlement, those sent directly from England to Norfolk Island as Maconochie’s guinea pigs in 1840, one in nine (11 percent) had died of dysentery in the past three years. Most of the survivors seemed listless, less healthy than the Old Hands, and (understandably) obsessed with the hope of being retransported to Van Diemen’s Land—anything would be better than death by the flux. “When I explained to them,” Gipps reported,

that, owing to the Scarcity of Employment in Van Diemen’s Land, their Condition would probably not be improved by being removed from it, they replied “Perhaps not”, but that . . . they wished to get away from the Place where they had seen so many of their Comrades die; that they would rather go to New South Wales than to Van Diemen’s Land, but that they would go anywhere rather than remain on Norfolk Island.⁵³

That seemed to dispose of the charge of mollycoddling. However, Gipps could not “pronounce any decided Opinion” on the all-important question of whether the New Hands, after three years of Maconochean treatment, would be more likely to behave better when off Norfolk Island than “an equal number of men taken promiscuously from the Convict Population of New South Wales.” The convicts seemed to take a fairly opportunistic view of the Mark System; they thought accumulating marks would “be of little Avail to them” except by getting them, perhaps, off the island sooner. Most of the New Hands, 509 out of 593, had accumulated the 6,000 to 8,000 marks needed for a ticket-of-leave; many had racked up thousands of marks beyond that, theoretically redeemable on release at a penny a mark in cash, and Gipps doubted whether the government would ever foot this bill, running (in the case of one unusually virtuous convict, a millwright named Elliott) as high as £37 10s.

Their morale was fair, no more. They had not suffered from “the chance of that Severity”

which often brutalizes a Man in New South Wales, where a Convict’s life is one of extreme chances, yet they have become in Norfolk Island familiarized with one detestable Crime, before unknown to them, and addicted (especially of late) to one very demoralizing vice: the Vice is that of Gambling, —the Crime, the one most repugnant to Human Nature.⁵⁴

The New Hands, Gipps thought, gambled more than the Old (although this seems unlikely, it was “admitted by all persons on the Island”). He found sodomy to be widespread: Between 5 percent and 12 percent of the New Hands practiced it (this Maconochie denied); it was “said to prevail almost exclusively among the Prisoners of English birth. . . . [T]he Irish are (to their honour) generally acknowledged to be untainted with it.”

Gipps’s objection was that the “Social System” had not really been tried. Maconochie’s “sanguine and hasty” enthusiasm about the prisoners’ reform, the governor crushingly remarked, had distracted him from “the sterner parts of his own System, which are nevertheless the Foundation of the Whole”:

Nothing is more clearly laid down by Captain Maconochie than that Punishment should precede Probation, —that before Prisoners under his System should be distributed into social Parties on the principle of mutual responsibility, they should go through a Period of severe, though not vindictive, Punishment. But . . . he entered at once on the Second Part of his own System, overlooking altogether the first Stage of it; and this was the more remarkable, as it was no less contrary to the express Directions of Her Majesty’s Government, than contrary to his own System.⁵⁵

Gipps believed that Maconochie’s “marks” had become inflated currency through his goodwill. He had handed them out too lavishly. Some prisoners had worked “like tigers” to accumulate the number of marks that would make them free—“but when after they had acquired their full Number of Marks, and they found that they nevertheless were not removed from the Island, the Stimulus no longer existed, and Marks gradually came . . . to be considered valueless.” Disappointment and cynicism followed.⁵⁶

The “Experimental Prisoners,” then, had not done so well under the new system. But Gipps wrote with “almost unqualified Approbation” of its effects on the Old Hands: “These men had suffered, and suffered severely. . . . [T]heir minds had consequently been brought to a State in which the Manifestation of Kindness on the Part of their Ruler was likely to make the best Impression on them.” The changes had been “Great and merciful,” and had only good results. The Old Hands worked twice as hard as the new; they were cleaner, healthier, had better morale, and had responded to the religious training Maconochie offered: “I cannot speak but in commendation of them, and bear witness to the humanizing effect which [Chapel] seems to be producing.” Their morale, Gipps thought, was less due to the diminished use of irons and the lash than to many small mercies, “the importance of which can hardly be estimated by anyone who has not been on the Island.” They could rove about, fish and swim in the sea, sleep out of barracks sometimes, grow food in their own garden plots, and even carry knives.

This “mildness,” Gipps felt, was justified by the fundamental misery of being on this distant island,

so entirely cut off from Society, or even from a View or a Glimpse of Society, and more especially from the Society of Women. The yearning of their Hearts towards Society is indescribable; it constitutes their torment; it is a punishment greater than the Lash, or any other that Man can inflict on them. . . . In Assignment a Man is a Slave, but he is still a slave in Society.⁵⁷

Here, perhaps without altogether realizing it, Gipps answered his own objection to Maconochie’s way of running the island—that the prisoners were not given a taste of punishment first. Maconochie clarified this some years later:

It may be said that I . . . overlooked, or even sacrificed, the great object—that of punishment . . . [but] I carried into effect the full letter and spirit of the law, and merely did not indulge in excesses beyond it. Every man’s sentence was to imprisonment and hard labour; the island was his prison; and each was required to do his full daily Government task before bestowing time on either his garden or education. What I really did spare was the unnecessary humiliation.⁵⁸

Gipps was against the Mark System being used “indiscriminately” among the Old Hands, because even if they won enough marks to expiate their second or “colonial” conviction in Norfolk Island and went back to the mainland, they would still have to serve out their first sentence in the usual way in New South Wales. He feared the social impact on New South Wales of 876 felons coming en masse from Norfolk Island. “I cannot contemplate the Possibility of their return without alarm; by the Colonists generally I am certain it would be viewed with Terror.”

But the prison population was falling so fast that Gipps doubted whether Norfolk Island could keep supporting itself. No more twice-convicted men had been sent there from New South Wales since 1840; because Old Hands were being transferred to Van Diemen’s Land, their number on Norfolk Island had dropped from 1,278 to 876 in three years; and the “Experimental Prisoners” would also be going to Van Diemen’s Land. Thus, if a large group of new prisoners did not go to Norfolk soon, Maconochie would not have the labor force “to maintain the cultivation of it, and to keep in repair the numerous buildings.”⁵⁹

So what would Her Majesty’s Government do with Norfolk Island? “The Decision . . . is of pressing Importance.” Clearly, if it remained a penal island, there should only be one system of management on it, not the two that Maconochie had been ordered to maintain. Maconochie still thought Norfolk Island “ill-adapted” to his system and, Gipps added, “I must admit, as I ever have done, that if his System is to be tried it . . . should be tried in a Locality which he approves.” Moreover, “I feel it right to say that I should regret to see the Experience wholly thrown away . . . [H]e fully admits that in the Distribution of Marks (the great Engine of his System) he has hitherto been too lavish.”⁶⁰

So Maconochie had received at least a guarded vindication from Gipps. The cost of running the island, Gipps saw, was not—as Maconochie’s fiercest critics had put about—the result of some inherent extravagance, but simply due to the failure or success of crops. Such variations were beyond the control of any commandant.⁶¹

Gipps wrote his long report, and dispatched it to Lord Stanley on April Fool’s Day, 1843. Maconochie had every reason to hope that now, at last, the government would ignore his critics and give full backing to his system. What happened was the exact reverse. Powerful lobbying from the Arthur Faction throughout 1842 had convinced Downing Street that Franklin was a disaster and Maconochie worse. In any case, the Colonial Office had believed Gipps’s earlier criticism of Maconochie, and it was too late for the report to change Stanley’s decision: to recall Maconochie. The Colonial Office was under growing pressure from the Treasury to cut the expenses of the transportation system. Sir James Stephen, the under secretary for the colonies, felt no commitment to Maconochie’s theories of penal reform. It was all unimportant stuff, happening on the “remote, anomalous” dark side of the world. Maconochie had no defenders in the Colonial Office, and Lord Russell’s curiosity about his ideas had waned in the six years since his reports had helped the Molesworth Committee. He could be dropped to placate the Treasury, and he was. On April 29, 1843, before the ship carrying Gipps’s report had even crossed the equator, Stanley sent a dispatch ordering the end of the Mark System and the recall of Maconochie. It was carefully worded so as not to cast too black a shadow on his career. It gave Maconochie “the fullest credit” for his exertions and probity. “I gladly acknowledge,” Stanley wrote with icy unction, “that his efforts appear to have been rewarded by the decline of crimes of violence and outrage, and by the growth of humane and kindly feelings in the minds of the persons under his care.” It was the coup de grace.⁶²

The dispatch contained good news for the prisoners, Old and New hands alike. All the men to whom Maconochie had promised a discharge at the end of their sentences would get it; everyone holding an “Island ticket-of-leave” would go on probation to Van Diemen’s Land, where after a year or two of good behavior they would be issued a fully valid ticket-of-leave.

With it, on the same ship, came Stanley’s choice as the new commandant. He was Major Joseph Childs (1787-1870) of the Royal Marines, a harsh, blundering turkey-cock bearing orders to make the island a place of exemplary terror once more. Yet the signs were that Maconochie’s mildness had done more to reform the Norfolk Island men than any amount of terror. Throughout his administration, Maconochie had discharged 920 of the twice-convicted prisoners to a new life in Sydney. Despite the hysterical agitation against former convicts, and especially against men with the Norfolk Island taint, by 1845 only twenty of them —a mere 2 percent—had slid back and been convicted again.

But the moment of reform clanged shut. Alexander Maconochie and his family began their long trip back to England. He was fifty-six now, and his great opportunity to raise his fellow men from degradation had been taken from him, never to be handed back. The Colonial Office did not give him another post. In England, he kept campaigning for prison reform; but, although the English ardor for transportation was rapidly ebbing, the authorities were not interested in his views. “Captain Maconochie,” wrote James Stephen, “has not much that is really important to urge.” There was no point in punishment without terror.

For once again, English authorities were anxious about a crime wave. The number of males committed for trial for serious offenses at Assizes and Sessions had nearly doubled in less than two decades, from 170 per 100,000 population in 1824 to 326 per 100,000 in 1842. Over the same period there had been a steady tightening of prison discipline at home as well as in Australia. Its aim was to crush the criminal subculture, to deprive the individual convict of the support of his “family felons.” The day of the American penitentiary had come to England. It had two alternative forms, each named for its American model: The Auburn (or Silent) System, and the Philadelphia (or Separate) System. The Auburn System had prisoners working in gangs, but under a rule of absolute silence, whose least infraction was punished by summary flogging. By contrast, the Philadelphia System was based on monastic solitary confinement. It took away a prisoner’s name and past, reducing him to a number; not even the warder who brought his food knew his name or his crime. In haggard anonymity, masked in a black hood whenever he was brought from his cell for exercise, he lived out the sand grains of his sentence. He had no visitors, received no letters, and saw no human faces except those of his warders. He could never talk to a fellow prisoner; even his shoes were felted, to make his presence the more ghostlike. In old Newgate, criminals had been jammed together in social chaos, yelling, talking, weeping, wheedling, plotting, like cats in a great stone bag. But in the new penitentiary, this sense of criminal community was voided: All other prisoners were silent, invisible abstractions to the man in his solitary cell. The republic of crime was vaporized, and all social sense along with it, leaving only a disoriented, passive obedience. The young Charles Dickens was horrified by the great Eastern Penitentiary at Philadelphia, which he visited in 1842 in order to see the Benthamite machine of benevolent punishment at first hand:

I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts. . . . [T]here is a depth of terrible endurance in it which none but the sufferers can fathom. I hold this slow and daily tampering with the mysteries of the brain to be immeasurably worse than any torture of the body; and because its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh; because its wounds are not upon the surface . . . therefore the more I denounce it, as a secret punishment which slumbering humanity is not roused up to stay.⁶³

Such was the new engine of reform, begotten by Utilitarianism on Idealism, to which English authorities were turning for relief from the uncertainties of transportation. The conversion of the prisons from mere incarceration to punitive brainwashing, through solitary confinement, dumb cells, crank labor and the treadmill, proceeded throughout the 1830s. In 1834 the great Coldbath Fields House of Correction in London doubled its ratio of guards to inmates and adopted a system of perpetual silence and inspection. Other prisons followed suit. By 1842, England had its first Panopticon; the ideas of Jeremy Bentham had at last completed their long loop across the Atlantic, to Philadelphia and back, creating the 450-cell “model prison” on the Caledonian Road in north London known as Pentonville. Its orthodoxy filled the horizon of penal thought, and left no room for Maconochie’s more humane ideas.⁶⁴

Unable to get a hearing, Maconochie settled down to write a book: Crime and Punishment, The Mark System, framed to mix Persuasion with Punishment, and Make their Effect Improving, yet their Operation severe (1846). Although it would later become one of the classical reforming texts of modern penology, it was largely ignored—except by Dickens —in Maconochie’s lifetime. In 1849, through the friendship of the Recorder of Birmingham, a liberal barrister named Matthew Hill, he secured a post as governor of a new prison in Birmingham—but could not control its sadistic deputy-governor, a naval officer named William Austin. After two years of reversals and humiliation, Maconochie was dismissed. By then he was sixty-four, and in failing health: erect, prematurely aged, refined in bearing, with snow-white hair, a bitterly disappointed man too proud to bear the outward marks of self-pity. Too obscure to be given more than a brief death-notice in The Times, he died in 1860 at the age of 73.

v

THE REVERSES Maconochie had endured at the hands of the System were bad enough. But those suffered by his former chief, Sir John Franklin, were even more stinging. The former officials of Arthur’s regime through whom Franklin had decided to govern—chiefly the able and insidious John Montagu, his colonial secretary—thought him weak. Since he could not trust them (he found that out too late, as good-natured men do) and Maconochie was gone, he naturally relied more and more on the advice of the one person in the colony he could trust, his wife. Lady Jane Franklin was highly intelligent, but the thought of a Sir taking private lessons in statecraft from a woman was appalling to the Arthur Faction—and to most of the other colonists, case-armored in dogmas of masculine ascendancy. Franklin’s leanings toward pity and mildness—not only to convicts, but to the dying Aborigines as well—were proof of effeteness. He was besieged by lobbyists, but whenever he did anyone a favor he created one ingrate and ten malcontents.

Worst of all, he was blamed for events over which he had little or no control. In 1840 the economy of Van Diemen’s Land began to slide into a five-year depression. Banks and businesses failed; Hobart, Launceston and the townships between were silted up with unemployed workers. At the same time, the end of transportation to New South Wales meant that the whole yearly exodus of convicts was directed to Van Diemen’s Land. In 1839, less than 1,500 convicts had arrived there. By 1842 the figure was over 5,300. The machinery could not handle them, and the island could not absorb them. Worst of all, in the midst of the confusion, it was Franklin’s Sisyphean task to change the whole apparatus of convict management. The Colonial Office, under the new management of Lord Stanley, had decreed that from 1842 onward the assignment of convicts to private settlers in Van Diemen’s Land must cease. It would be replaced by something Lord Stanley had cooked up in his office in Whitehall: the so-called Probation System, whereby they would all be worked in government gangs distributed at outer stations around the island (see Chapter 15). Now, the settlers could not only blame John Franklin for the depression that was bankrupting them; they could also curse him for taking away the free labor on which the whole economy of the island had depended.

It would be tedious to list the innuendos against Franklin that John Montagu and his colleagues poured into the ears of Whitehall. At the start of 1842, Montagu had written Franklin an impertinent letter, suggesting in thinly veiled terms that he was getting soft in the head. At this, Franklin’s patience snapped. He suspended Montagu from his job as colonial secretary. The Iago of the Derwent took himself to England and appealed to Lord Stanley, citing Franklin’s “dependence” on his wife as the cause of the myriad harassments that had gummed up the administration of Van Diemen’s Land. He won. Franklin found himself censured; and his letter of recall came in 1843. When he reached England, he found that the whispers of petticoat domination had preceded him—a searing humiliation for a man who loved his wife but who had also been a brave sailor and an indefatigable explorer.

To clear his name, Sir John Franklin returned to his old love, the clean cold place he had known before his country had dropped him into the vile antipodes. Once again, in 1847, the Admiralty was equipping an expedition to the Arctic, in search of the Northwest Passage. At fifty-nine, Franklin was too old for exploring in the world’s high latitudes, but his daemon would not be assuaged. Reluctantly, but in a spirit of obligation, the Admiralty gave him command. This time Sir John Franklin did find the Northwest Passage, dying of starvation with the rest of his men within sight of it, on their iced-in ship the Erebus. In doing so, he not only expunged his failure in Van Diemen’s Land but entered the Victorian pantheon of explorers (despite evidence of cannibalism in the last weeks of the expedition) as one of the heroic legends of the Arctic. Which, all in all, was more than his luckless successor at the other end of the earth could claim.