The change proposed by Stanley was greatly disliked by Arthur. It was the reverse of his system. Whatever influences were brought into action by agricultural service, would be lost in a gang. He foresaw the despondency, the oppression of the prisoners, and the gradual alienation of the colonists. Arthur referred Stanley's despatch to the executive council, with his own rejoinder. His system of twelve years bondage and chains was unanimously reprobated: the council concurred in the opinion of the Governor, that it would break up the gradations of punishment; and unless sustained by a large reinforcement of military, endanger the public safety and produce habits of outrage and revenge.[198] Whatever influence these representations possessed, the plan was abandoned of necessity. The chief justice of New South Wales advised the Governor that the law had not authorised the arbitrary addition of chains to a sentence of transportation--to increase the misery, not to add to the safe keeping of the prisoners. Such, on reference, was the opinion of the English legal authorities, and the men in irons were released.[199]
Whatever the motives of Lord Stanley, the transmission of such an order, without ascertaining the authority under which it was issued, was a serious official error. It is probable, that the persons injured had no means of appeal, and deserved no redress; but when it is remembered, that the law does not profess to determine the moral enormity of an offence by the extent of punishment, to aggravate a penalty which the legislators deemed equal to the crime--avowedly to make it more terrible than death itself--was a stretch of official power, which can scarcely be explained.
St. Paul denounced the judge who smote contrary to the law. Mr. Stanley's encroachment on the functions of legislation was only more defensible because less corrupt. To repress colonial disorders, the local government had, indeed, grafted the penalties he prescribed on the colonial statute book; but the despotic interference of a secretary of state was specially objectionable. Persons sentenced to transportation for political or agrarian crimes, were not unlikely to provoke the personal hatred of ministers, and therefore to suffer a vengeance beyond the intention of the judges, or the spirit of the laws.