PRISONS—CONVICT DISCIPLINE—ADJOURNED DEBATE (THIRD NIGHT).

HC Deb 10 June 1847 vol 93 cc305-66

On the Order of the Day for the House going into Committee on this Bill,

MR. NEWDEGATE

said, he would not have felt himself justified in speaking upon this great question had it not been that his attention had for some months been turned to one part of the proposal of Her Majesty's Government connected with the abolition of transportation—he meant the subject of prison discipline which had been agitated in his county; and he rejoiced to say that one step towards the hasty adoption of the separate system had been rejected by that House in the Warwick Prisons Bill. He participated in the feeling which was very general in this country, that the abolition of transportation was likely to prove a very great misfortune; and, although the Government might, by proceeding through the power of the Prerogative, avoid the difficulties of a discussion in that House, the impression in the country was that the scheme was an unhappy consummation of the course adopted in 1839, which, by excluding New South Wales, had rendered the sphere of the penal colonies inadequate for the number of convicts annually transported. The sad state of things in Van Diemen's Land and Norfolk Island was mainly attributable to a too large congregating of convicts there, making it impossible to carry out the graduated system, since the means of absorption of the men from the probation gangs into employment afforded them by the colonists were completely overborne; but that was not a failure of the system established by Lord Stanley in 1842. On the contrary, it was a clear proof that the difficulties with which the probation system had to contend were almost insuperable, so long as the penal colonies were thus unwisely limited. They found, even on the admission of Lord Grey himself, in a letter to Sir W. Denison, that such was the overcrowded state of Van Diemen's Land that the means of absorption were totally overborne. The fact was, that there was neither capital nor means of employment adequate to employ the men emerging from the probation gangs. He believed that the plan adopted in 1839 was a preliminary to the introduction of this Bill; and we were now reaping all the miserable effects of that policy; and who but the present Ministers, who in 1839 promised that New South Wales should cease to be used for the purpose of transportation, were responsible for this? He concurred with the general belief out of doors that this Bill was likely to prove a great misfortune to this country. It seemed that nature had pointed out the means to this country of relieving herself from her superabundant population, viz., by sending a portion of her population to the colonies. Surely, if we were to have colonisation, the most rational plan would be to send out the least worthy members of society—those who were the least industrious—those who had no occupation—those who impeded the industry and endangered the property of the rest of the community. Her Majesty's Ministers seemed perfectly aware of all this; and it could not be set forth more plainly than in a letter from the Home Secretary to Lord Grey, which had been laid upon the Table of the House, and which conveyed the determination of the Government to render transportation still more difficult, if not impossible, by breaking up the new colony in North Australia, which had been commenced by Lord Stanley and the late Government. What did the right hon. Baronet say?—

Extract from a Copy of a, Letter from the Right Hon. Sir George Grey, Bart., to Earl Grey.

"Whitehall, January 20, 1847.

"It is of importance, in considering this question, to bear in mind the distinction between the fitness of the Australian Colonies as places for the reception of criminals after having undergone their punishment, and as places in which the punishment itself is to be inflicted. The favour with which the system of transportation was long regarded, appears to be attributable to this distinction having been in great measure overlooked. There can be no doubt that new and thinly peopled settlements in which there is a large demand for labour, possess great advantages over a densely populated country, such as Great Britain and Ireland, for the reception of convicts after they have undergone their punishment. In this country, men regaining their liberty on the expiration of a penal sentence, often find great difficulty in obtaining an honest livelihood. In the general competition for employment, character naturally and properly secures a preference to men untainted with crime; and the discharged convict is liable to be thrown back upon a criminal course of life, from the inability to procure employment by which he can honestly maintain himself. In the colonies, on the other hand, where labour is in great demand, this difficulty is not experienced, and the opportunity is afforded to the convict, on the termination of his sentence, of entering on a new career with advantages which he could not possess in this country, and of thus becoming an useful member of society. Such was the case formerly, to a considerable extent, both in New South Wales [why was it abandoned?] and in Van Dieman's Land, though of late, in the last mentioned colony, it has ceased to be so, owing to the large number of convicts annually sent there, and the consequent deficiency of profitable employment for those who, either on the expiration of their sentences, or as holders of tickets of leave, have been thrown upon their own resources, in the midst of a population of which a large proportion has been criminal."

And yet they were now called upon to abandon the natural advantages possessed by this country in the transportation of the unworthy portion of her population; and for what purpose? To adopt two systems, both of which had been tried, and both of which had failed, in different countries; to adopt in the first place, the system of separate imprisonment, which he was prepared to show had failed in America; and, in the next place, to adopt the system of bagnes, which had been adopted in France, and which had likewise failed. One of the most vehement opponents of the transportation system, in a letter published in the Launceston newspaper, and presented to that House in the correspondence on the Table, admitted that the probation system of Lord Stanley had not had a fair trial; and the papers teemed with evidence of that sort. This fact was over and over again repeated by Sir Eardley Wilmot, even to the discredit of his own administration of Van Die-men's Land. How was it in Norfolk Island? Why, the Rev. Mr. Nailor (whose letter appeared to have had great influence with the Government, and was quoted by the Home Secretary), had headed one whole section of his letter with the expressive words—"There is no system of discipline pursued in Norfolk Island;" and this was supported by the evidence of the Norfolk Island Commission, by Captain Maconochie, and by the Comptroller General. How could it be reasonable to cite the case of Norfolk Island as a proof that the probation system had failed there, when they knew it had never been enforced? And could any one be surprised that Norfolk Island should be in its present condition, when it was ruled under a jumbled system, consisting of some of the orders drawn up by Captain Maconochie, confused with the orders of Lord Stanley? The orders of that noble Lord were not fully carried out, and the consequence was the present accumulation of evils under which the penal colonies laboured. After all, it appeared that the right hon. Gentleman the Home Secretary had faltered in his determination. It appeared now that he did not moan to abolish transportation altogether, but merely to mutilate it. The right hon. Gentleman had propounded his scheme without providing accommodation for the convicts who would henceforth have to be kept in England. And how did he endeavour to amend it? Why, proposing to export a certain number of convicts to the colonies without providing accommodation for or control over them when they landed in the colonies. This was the boon they intended to confer upon the colonies. He (Mr. Newdegate) was surprised that such a system had brought forward by the Government, when the Judges of England, Ireland, and Scotland, to a man, deprecated the abolition of the system of transportation, and declared it to be a rash and unsafe measure.

MR. HAWES

The Judges are not unanimous.

MR. BULLER

We have Baron Rolfe, Baron Parke, Baron Alderson, and Mr. Justice Perrin, in favour of this measure.

MR. NEWDEGATE

The opinions of those of the Judges who were opposed to the present system did not amount to an assent to this measure. It was not likely that the Judges should all have presented the same answers in the same words, in reply to the inquiries of the Government as to the expediency of the present system of transportation, because they happened to be on circuit at the time that they were asked for their opinions. But it was almost impossible to conceive greater una- nimity on so wide a question than was evinced by the Judges against the scheme of the Government. He would take the opinions of the three senior Judges of England, the three senior Judges of Ireland, and the three senior Judges of Scotland, as they stood on the list, and read them with the permission of the House. That must he considered a fair test of their opinions.

ENGLAND—Lord, Denman's Answers.
9. Does your Lordship regard the punishment of transportation as effectual to the repression of offences?	9. I believe the terror of transportation to operate very powerfully in the prevention of crime.
10. Does your Lordship consider its benefits as sufficient to counterbalance the obvious evil of its inequality when applied to persons of different habits, character, and circumstances, especially station in life and property?	10. I know of no punishment which is not open to the same objections, though not perhaps in the same degree. For this reason, and others, I think that considerable discretion must be lodged in the Court, and still more ought to be left with the Executive Government.
11. Does your Lordship consider that it would be safe or expedient to dispense altogether with this punishment; or would it be more advisable to retain it for certain offences?	11 and 12. My opinion, strengthened by that of all my brethren with whom I have had the opportunity of conferring, is, that it would be unsafe and highly inexpedient to dispense altogether with transportation. By the present law I am not aware that there is any offence punishable by transportation which ought not to be so punishable.
12. If advisable to retain it for some offences, what are these? and do you conceive it could be retained so as to visit only such offenders as regard it with peculiar dread, leaving the discretion in the Judge with that view?
24. Do you think any system of imprisonment would be a sufficient substitute for transportation?	24. I do not.

[Mr. NEWDEGATE did not repeat the questions, because they were put to each Judge.]

Mr. Justice Wightman's Answers.

9, 10, 11. My opinion is strongly in favour of transportation as a punishment, and mainly upon the ground that it removes the offender from his old habits' and associates, and, if properly dealt with abroad, introduces new habits and new ideas, under the influence of which reformation may take place. There is, besides, little reason to expect or hope that a person who has committed such a crime as is usually punished by transportation would ever obtain such honest employment in this country as would prevent the inducement of want for his relapsing into crime. As far as my expe- rience goes, transportation is generally much dreaded as a punishment, and chiefly, I believe, for the reason that induces me to approve it—the removal of the offender from all his old associates and habits. As long as he remains in England, under whatever circumstances he may be placed, he feels within reach of his old associates, and is not without hope of rejoining them. Cases no doubt may and do occur where the separation may be felt with more than usual severity; but, as far as I am able to judge, few families are the better for retaining in this country, after a period of imprisonment, a father, husband, or son, who has been guilty of such a crime as subjects him to transportation. It is also possible that cases may occur when from the station in life of the offender, or some peculiar circumstances, the punishment of transportation may appear more than ordinarily severe; but it is impossible to legislate for individual cases, and they who condescend to commit crimes punishable by law with transportation, must not be heard to complain that in their cases the punishment is more severe than in ordinary cases, even if it is so, which, except in some very rare instances, may well be doubted.

Mr. Justice Erle's Answers.

9 to 12. I think transportation has a strong effect in repressing crime, and is more penal than imprisonment hero is ever likely to be. I think such penal consequences required in respect of crimes approaching to murder, and in respect of criminals persevering in deep crimes, past the middle of life. The objection of inequality applies to all inflictions on classes of persons varying in bodily or mental sensibility, and not more to transportation than imprisonment. The power to transport should be left with the tribunal that tries the prisoner, as the measure of a sentence is more often found in the facts around a crime than in those of the crime itself, and the trial affords the best opportunity for ascertaining them."

24. I think not.

SCOTLAND.—Answers by the Lord Justice General.

9, 10, and 11. That a sentence of transportation is viewed by many as a very severe punishment I cannot doubt, and therefore that the dread of it must tend in a certain degree to repress crime I think is equally clear; but as I cannot persuade myself that it would be at all safe or expedient to abolish that mode of punishment in the administration of the criminal law of Scotland, I certainly think that its benefit as a mode of punishment is not counterbalanced by the circumstances stated in the 10th question. I am further very decidedly of opinion that it is expedient to retain the punishment of transportation for many sorts of offences. For example, in regard to the heavy offences of rape (though still capital in Scotland, but seldom punished now by a sentence of death), aggravated cases of culpable homicide (manslaughter in England), robberies, housebreakings, and many others, the punishment of transportation appears to mo to be indispensably necessary to be retained, subject, however, in point of duration, to the discretion of the Judges, in reference to the magnitude and circumstances of each particular case.

24. I consider that no species of imprisonment would be a sufficient substitute for the total abolition of transportation.

Answers by the Lord Justice Clerk.

9. I regard the punishment of transportation as most valuable, and as a restraint of the greatest possible weight on the great bulk of mankind. "As effectual to the repression of offences"—I cannot of course say it is, if that expression imports complete success. But my experience and observation lead me, without any doubt, to the conclusion, that transportation is a very great and most useful restraint on the commission of crime, and that its infliction has the most salutary effect in deterring others from committing similar crimes.

10. The punishment of transportation was adopted without a plan, and has been conducted and carried on, until a recent period, without any arrangements intended to secure its objects in the places to which the convicts were transported, and the mismanagement has in consequence been very great: but such evils may be without difficulty guarded against; and to one plan I will afterwards advert. But believing the benefits of the punishment, as a great means of deterring others from committing the like crimes, to be so important that nothing could compensate for its abolition, I regard as very trifling the inequality of the punishment here referred to, as regards the station of life and property of persons who may subject themselves to that punishment.

11. It is my decided opinion that it would be most unsafe and inexpedient to dispense with the punishment of transportation, or to restrict it to any more limited class of cases.

Answers by Lord Mackenzie.

9. I have no doubt the punishment of transportation is powerfully effectual in the repression of crimes, both by deterring, and, in so far at least as this country is concerned, disabling; completely effectual neither that, nor any punishment has ever been found to be, so far as I know.

24. I greatly doubt it. Transportation, as far as I can see, especially if for life, or a very long term, is generally regarded as a substitute for death, a kind of legal death, which makes an end of the person as a citizen of this country, and delivers him over into a species of slavery, in hopeless separation from all he loves or likes. Unless the imprisonment was very severe, and for life, or very long periods, it could not, I fear, answer in place of transportation. It would not affect the imagination to deter, so as to control the temptation of anger, hatred, lust, cupidity of gain, and of the indulgences money bestows, when these are strong. Nor would it remove the offender from the society of which he forms a pernicious member.

IRELAND.—Answers of the Lord Chief Justice Blackburn.

Answer to 9th Question.—I think the punishment of transportation has to a considerable degree the effect of repressing offences; but it is obvious, from the vast number of crimes so punishable, that it is not as extensively effectual as from its nature it might be expected to be. It is quite certain that, either from the uncertainty of the execution of the sentence, from an opinion that it is not attended with any severe degree of suffering, from the hope of escape, and various other causes, it does not operate on the minds of those disposed to commit crimes as an effectual security for obedience to the laws. I am persuaded that at this time, in consequence of the vast number of sentences the execution of which is suspended, the terror of transportation is vastly diminished in influence in Ireland.

Answer to 24th Question.—I think not, for there must always be cases in which, from a due regard to the public safety, the perpetual banishment of the convict must continue to be requisite.

Answers of Mr. Justice Crampton.

9. I think that the apprehension of transportation docs operate powerfully upon the minds of our people towards the repression of crime. In general, I should say that there are none who more deeply feel or dread a separation from their country and kindred than the Irish peasantry do.

11. I think it would not be safe at present in this country to dispense altogether with the punishment of transportation. Unless you revert to the punishment of death for many of the crimes now generally punishable by transportation (a step against which public opinion and public feeling would revolt), I do not see how transportation can be dispensed with, until an equivalent secondary punishment be substituted for it.

24. A kindly treatment under confinement, with work in gardens or factories, would, in my opinion, be salutary to the prisoner, and tend much to his moral reformation; but I fear that such punishment would operate little in producing that wholesome terror of the law which tends so much to the repression of crime.

Answer of Mr. Justice Perrin.

9. Since the disuse of capital punishment (now so happily and generally established) the punishment of transportation seems to he extremely dreaded in every part of the country.

The hon. Gentleman said, he would add one more opinion of an eminent Judge—that of Baron Pennefather, as particularly succinct and able. And here he must say that he totally disagreed, as he believed the House and the country disagreed, with the hon. Member for Dumfries, who had said that the minds of the Judges had become of such a microscopic nature, from the habit of analysing details, that they were incapable of a comprehensive view of any great question. His (Mr. Newdegate's) opinion was, that by analysis of facts only could correct results be obtained. Mr. Pennefather said— The law as to transportation has been of late years, by several statutes, greatly modified. In various offences a power is given to the judge to substitute imprisonment, with or without labour. Whether this power should be extended to all cases now punishable by transportation, I do not at present mean to suggest. But with such a power in the judge, and bearing in mind further the existence of the Royal prerogative, I do not think that the sentence of transportation ought to be abolished. I am aware how much more heavily it may press on one class of persons than on another; but (not now adverting to what may have unfortunately taken place in our penal settlements), notwithstanding this objection, and others which may perhaps be pointed out to it, I con- sider its existence as essential to the peace and good order, and to the preservation of life and property in Ireland. It is, in fact, now that capital punishment is in most cases abolished, the only thing the generality of the people dread; and I am convinced that imprisonment under any form, and even with all the horrors of solitude—and these are really horrors—would not be, at least for a length of time, a sufficient or adequate restraint. Transportation is dreaded, especially by those who have the ties of family; and when removal follows shortly after sentence, the effect has been found to be most salutary. What effect, in the course of time, imprisonment on the silent system, in groups or in solitude, or with labour in gangs exposed to public view, may produce, I have no experience of, and therefore do not venture to give an opinion; but I have always shrunk from inflicting the sentence of solitary confinement in the few cases in which the law now sanctions it, as, in my mind, having no tendency, but the contrary, to the moral improvement of the criminal; no public example to deter others from crime; and bringing with it such undue mental suffering on the individual, as, if continued for any length of time, to destroy the powers of the intellect, and end oftentimes in complete fatuity; and the exposure of prisoners working in gangs, at hard labour, and to public view, has, I confess, always appeared to me as but little consonant to the free institutions or the feelings which ought to belong to the people of these countries; but whatever others may, perhaps with more propriety and experience, think of these matters, I am fully persuaded that imprisonment, even with these aggravations, would not, at least for a great length of time, have the effect of restraining from the commission of crime in Ireland, and that transportation could not, at the present time, be with safety abandoned. That opinion was not only against the abolition of the punishment of transportation, but strongly against the adoption of the system of solitary imprisonment. He might adduce to an endless amount the opinions of those learned men best competent to form an opinion upon this subject to the same effect; and, whenever they did recommend the adoption of the solitary system, it was only for a very short period, and at long intervals—a week or so in two or three months. He felt very strongly upon this point, because, happening to be in the United States just when this experiment having run a certain course had failed, his interest was awakened, and he took particular pains to make inquiry into the subject. He had seen the prison at Philadelphia, which was the model of that in Pentonville, and nothing could exceed the fashionable fervour with which the solitary system was adopted in the United States; but such were not the feelings towards it there at present. In England it had been tried under auspices which would make anything succeed. The Commission included the Speaker of the House of Com- mons, the Duke of Richmond, the late Lord Wharncliffe, and Drs. Brodie and Ferguson. He could conceive no more competent Commission, and yet there were some most melancholy details connected with the failure of that system at Pentonville. The utmost watchfulness and care had been used in the Pentonville prison, yet there were some painful eases of insanity; and Drs. Brodie and Ferguson declared they found it extremely difficult to guard against the approaches of this most dreadful of all afflictions. Those gentlemen said, the prisoners were subject to hallucinations of various kinds. Some thought persons were continually calling them, and others believed they had been pardoned. The mind, in some instances, broke down under the system, and terminated in insanity. They must remember that this system was tried in Millbank, and that it failed; that it failed in America also; and under such circumstances he thought they ought not to urge it upon this country: first, because it was distasteful to the people of this country; and, secondly, because it was impossible to obtain such supervision and care as had been used in Pentonville. What was the fact with regard to Pentonville and Millbank, he found on the authority of the President of Bethlehem; and nobody could be a better judge of the amount of insanity, produced by this system, being in charge of that establishment in which those wretched people wore confined. In a published letter to Lord Westminster, he says— My attention has been forced to the results of the system of separate imprisonment. As President of Bethlehem Hospital, I have been compelled to hear the warrants of the Secretary of State read for the admission to that lunatic hospital of the victims of the separate system sent from the two Government prisons, the Mill-bank Penitentiary and the Pentonville prison. The noble Marquess is doubtless unaware that during the last ten years no fewer than forty lunatics have been sent from the Penitentiary to Bethlehem, while in the preceding ten years only fourteen were so sent; and are the public expected to believe that this fearful increase is not the direct result of the separate system? Such was the result of their own experience, and he would now call to mind what happened in America—a country in which prisoners were not regarded with tender feelings:— The great majority of the States have adopted the Auburn plan, in preference to the separate system; and prisons on the silent system have been erected in New Hampshire, Vermont, Massachusetts, Connecticut, New York (at Auburn and Sing Sing), Maryland, the District of Colum- bia, Virginia, Georgia, Tenessee, Illinois, Ohio, and Upper Canada; and since 1838, Louisiana, Mississippi, Alabama, Kentucky, Indiana, Michigan, and Maine, have adopted this humane system; while only one prison has been erected on the separate system since 1838, viz., a small state prison, for the State of Rhode Ireland. This prison had been in operation only four years, when the inspectors, in January, 1843, recommended to the Legislature that a Committee should be appointed to examine into its injurious effects upon the mind of the prisoners, with a view to its abandonment, six out of thirty-seven prisoners having become insane since its establishment. The only state prisons in America on the separate system are, in addition to that just referred to, one in Philadelphia (the Eastern Ponitentiary), one at Pittsburgh and one in Now Jersey. He thought there was a sufficient mass of evidence at least to make the Government pause before they generalised the solitary system. The solitary system of imprisonment was, in fact, an aggravation of the separate system, and was in his opinion the most frightful infliction that could he imposed upon a human being. It was, in fact, only to be described by saying that it was the iron which enters into a man's soul. No one could bear it beyond a certain duration, and its infliction depended upon the strength of his intellect and the power of his frame. It would seem from the evidence of Doctors Ferguson and Brodie, that the mind, in many cases, had begun to break down before they were aware of it, although the convicts were watched almost incessantly, and no pains or expense were spared in order to render the supervision effective. He must say he could not contemplate, without dread alarm, the extension of the present system, not merely to criminals at present confined in our gaols, but to 4,000 or 5,000 who would he annually condemned to transportation. Were the Government really determined to inflict upon this mass the horrors of the solitary system? He, for one, held they had no right to impose a punishment of which they could not ascertain the extent; and he trusted that the right hon. Baronet the Secretary of State for the Home Department would, upon reflection, see that he was borne out neither by justice, far less by humanity, when he declared that the Government was determined to inflict the solitary system upon the great mass of offenders in this country. Look at what had taken place in Bethlehem Hospital. Pentonville had contributed its share of insanity; and could they hope that the same skill, caution, supervision, and care which had been used in Pentonville would be generally pursued? It was not reasonable to expect such, for he defied any country in the world to expect such medical supervision. Then why, in the name of Heaven, should we adopt a system cruel in itself, and which experience negatived? Why did they not try the silent system? That was successful in two prisons in the county of Middlesex, of which he was a magistrate, and it was a most singular fact that in all the reports of the inspectors there was no report whatever against those two prisons, and the inspectors were strong advocates for the other system. The chairman of the Middlesex sessions expressed his surprise at this strange fact. Thirty-one Judges had been consulted, and twenty-three said they had no means of forming an opinion upon the silent system; four of those Judges—Cresswell, Alderson, Lord J. Clerk, and Perrin—were adverse to the system; and four—Coltman, Crampton, Burton, and Richards—expressed themselves strongly in favour of it. Did not this prove that information with respect to the silent system was wanting among the best informed in this country? And why, he asked, if you will be guided by the experience of America, do you begin at the wrong end of that experience? Why do you not begin by testing the result of American experience, which is the adoption of the silent in preference to the separate system, instead of adopting the separate system, which has failed in America? Will you disregard all this, and persevere, on the plea that the separate system reforms the criminals subjected to it? What is the evidence with respect to the 345 convicts whom you have picked for their health, sanity, and tendency to reform, and sent out from Pentonville in the Sir George Seymour transport? Why, that they had not been on board many hours before many of them fell into convulsions, and that on their arrival at Hobart Town, after a long voyage, Sir E. Wilmot and Mr. Forster report that their faculties still suffered from the effects of the separate discipline they had undergone. What do you hear of the rest? That many immediately returned to their old habits of vice and crime, and were subjected to renewed punishment at Hobart Town. But what do you hear of the most favoured, who were sent to Geelong, in Australia, under conditional pardons? Why, that no sooner had they discovered the extent of their liberty, than they became insubordinate on the voyage from Hobart Town to Geelong, and on their arrival there were such scenes of drunkenness, fighting, vice, and crime, as were, according to the admission of your own officers, highly discreditable to Pentonville Prison. And what is the evidence of the exiles themselves, as published for the House? Why, that the greatest saints at Pentonville proved the worst characters in the colonies; and that it was quite condemnatory to any man if it were known that he came out in the Sir George Seymour. Such is the evidence of the reformatory effect of the separate system. With such evidence of failure of the vaunted reformatory tendency of the separate system; knowing that the expense of that system was 50 per cent more than that of the silent system, and seeing how the silent system had succeeded where it had been fairly tried; taking into account that twenty-three Judges were not able to give any opinion, and of those who were able to form an opinion, at least an equal number were in favour of it—he trusted the Government would pause before they took the extreme step mentioned by the right hon. Baronet the Secretary of State for the Home Department, and imposed the solitary system upon the great mass of offenders sentenced to transportation in this country. He must say, that he thought those who pressed this system wore doing so in ignorance of man's nature. They had it upon the authority of Him who created man, that he no sooner placed him in lordship over the beasts of the field, and gave him dominion over every creature, than he said, "It is not good for man to be alone." he saw that some hon. Members seemed inclined to laugh. He should not have thought that the authority he quoted would excite laughter; but if there were any Members who did laugh at that, he understood the reluctance of others to quote from that authority, which had often before surprised him. He thought the Government had acted very rashly in this matter; they did not seem to have given it much consideration, for Lord Grey determined upon it one month after he came into office, and without having consulted the Judges or other competent persons. He thought this mode of acting upon the prerogative of the Crown the most extraordinary ever known; and that a liberal Government, professing beyond all others a regard for liberal principles and a deference to the popular voice, should thus attempt to use the prerogatives of the Crown, was, indeed, a strange ano- maly. Was this a course to secure respect for the sentences of the courts? Why, it would nullify every sentence of transportation. The Home Secretary declared that the sentence of transportation was hereafter to mean simply that the prisoner was placed at the disposal of the Government. Let them think how absurd it would be that a judge, after enumerating the repeated offences of a criminal, should solemnly sentence him, to what?—oh, vain and impotent conclusion!—to be placed at the disposal of Her Majesty's Government. Why, if the prisoner were an Irishman, he would say to himself, "What of that? Are not the 5,000 check-clerks of the relief committees placed at the disposal of the Government?" And then what a boon, forsooth, they were conferring on the colonies!—the unreformed and impenitent, whom they could not retain in England, they sent to the colonies, without provision and without control. The Government professed a rigid adherence to the principles of political economy; but it seemed a strange practice of them to retain this mass of convict labour in this country at so large an increase of expenditure to displace so much honest labour. But that any men charged with the government of this country should disregard her insular position, and the means of exit which her large colonies afforded, seemed the most strange omission of all. He would oppose the measure; and thought the Government had forfeited the confidence of the people of this country by the mode in which they had introduced it.

MR. M. MILNES

would not long trespass upon the attention of the House. Who that heard his hon. Friend's speech would have supposed that the only modification proposed in the system was, that a certain portion of the punishment should be undergone in this country, and that the condition of the convict, on being banished from his native land, and the relation in which he stood to the Government, would be exactly what it had been before? It was true that there might not be quite so much terror in the proposed as in the present system—it was true that the system, especially to the prisoner who conducted himself creditably, would be very different from that established at Norfolk Island; but it did not follow from that, that the punishment which the prisoner must undergo would not be as real and effective; and the only difference would be, that in this country, instead of abroad, he would suffer a punishment as severe though under better regulations than in Norfolk Island; and when this came to be understood, all the terror inspired by transportation would be retained, while the evils that now infested the system would be removed. No one could say that former schemes, whether that of the assignment or the penal system, had worked satisfactorily. But his hon. Friend said that a penal system was good in itself, except that the system which was actually adopted happened to be a bad one. If he understood the system adopted at Norfolk Island, it was intended by its framers to be a system of prison discipline of the severest and most painful character—as severe, in fact, as it possibly could be without having recourse to those refinements of cruelty against which the moral sense of the present age revolted. That system had been tried under the most favourable circumstances. It had been tried under severe governors and under lax governors, and it failed in all. It failed under the stern rule of severe military discipline; and it failed under the mild sway of that remarkable and amiable man Captain Maconochie. And it did not require much philosophy to discover the cause of this failure. It was too far off to obtain that care and superintendence which was necessary to insure the success of any system. With regard to the assignment system again, it was neither more nor less than slavery, in its worst aspect; and its evils were fast tainting the life-blood of our infant colonies. The indulgence granted to the convicts, too, after they had been for a certain time in the colony—to have the contemplation of men moving about among the most respectable ranks of society in Sydney—men worth 10,000l. a year, and yet men of the basest minds, tainting the whole colony with their low and grovelling feelings—that was, to his mind, more painful than even the atrocities of Norfolk Island itself. It appeared to him, then, that the two systems had resulted in so little good that the Government were fully authorized to make an experimental change; and he did not understand the present measure to be more than that. All that the Government were doing was to feel their way, according to the lights of observation and experience, and to reform abuses as far as reform was possible. In this character of their measure he saw a good excuse for that part of their conduct which had been blamed by the hon. Member opposite, that they did not proceed by a direct legislative measure. And now the whole question rested upon this, were they to reform their prisons or not? The old system of transportation was no doubt exceedingly convenient, and he had no doubt that foreign nations often envied this country such a convenient method of disposing of their criminals. But a better form of thought had produced a better state of things; and now he, for one, cordially tendered his thanks to Her Majesty's Government for the present earnest attempt at reformation. He would not call it more than an attempt, and he was sure they would not think the worse of him for calling it so. He was sure that it had been deeply considered and long matured; and though it was quite possible that Earl Grey might not have been a month in office before he determined to abolish the present system, yet it did not follow from that but that his attention had long been directed to the subject. But there was a subject to which he wished to call the attention of the right hon. Baronet the Home Secretary, and that was what they were to do with prisoners who had received their discharge after the expiration of their punishment. The amount of free labour, as it might be called, in this country was already so great that it was most difficult to provide employment for a discharged convict; and the consequence too often was, that before a year was over the man was found within the walls of the prison again; yet the only institution in the metropolis to provide for such cases was the Philanthropic Institution; and he would earnestly invite every gentleman who took an interest in these subjects to visit that institution, and see how Mr. Turner, the chaplain, devoted his attention to the training of the boys there, rescuing them from otherwise inevitable infamy, and restoring them to all the chances of a happy and prosperous state. With regard to the objections made to the separate system, he thought that, under proper care, it was a most effective system of punishment; but he admitted that the system of prison discipline was in its infancy, not in this country alone, but in France, Germany, and America; and now that they proceeded upon the sound and Christian basis, that it was the duty of the State not only to punish but also to reform criminals, they might now, under God's blessing, expect to arrive at an efficient system, and to work it by just and legitimate means.

MR. W. MILES

had listened with great pleasure to the speech of his hon. Friend; hut he felt at the same time that those parts of the system which his hon. Friend eulogised, he most strongly objected to. He thought if Government had made up their minds to make such an important change as this in the system of secondary punishments, they ought not to do it, as it were, by a sidewind; but they ought to come forward with a well-considered measure, which they could submit to the House. The hon. Member read the opinions of the Judges who were averse to the entire abolition of transportation—particularly adverting to the opinions of Justices Park and Alderson—that it ought to be retained in cases of aggravated offences, such as rape, manslaughter, forgery, &c. He had some experience himself in the courts of law, as he had acted as chairman of the quarter-sessions in Somersetshire, and in that capacity persons were often brought before him two or three times in succession. He determined, in conjunction with his brother magistrates, to endeavour to put a stop to this; and accordingly, having first given them all fair warning, that if they appeared before the court again, they would be sentenced to transportation, he proceeded to carry out his determination, and the effect was, that crime in Somersetshire diminished considerably till it fell below that of Gloucester, though it was the more populous county of the two. The system of transportation at Norfolk Island had certainly been conducted in such a manner that its failure was by no means surprising. But then it was said that they must have recourse to the old system of assignment; and many hon. Members could not see any evidence of benefits resulting from that system. He did not say that there had not been many abuses in that system; but there was also abundant evidence that many of the servants assigned had turned out valuable members of society. If transportation were to be abolished, he wished that it had been done openly and directly, for he thought it most mischievous that the judges of their courts should be called upon to pronounce sentences which they knew would not be carried out. When they compelled a judge to pronounce a sentence of transportation, which he knew would not be carried out, they put a falsehood into his mouth; they lowered the character of their courts of justice, and generally affected the moral character of the people. As to the effect of transportation, Lieutenant Tracy said that London thieves had a great horror of transportation, and that they were greatly elated at the contemplated change. Mr. Cope gave evidence to the same effect. He did not uphold the present system of penal colonies; but by improving that system he had no doubt the most beneficial effect would follow; and he trusted that at all events the Government would not displace the vast amount of labour done on the roads by the honest labourers by employing convicts in that way. For these reasons, he was opposed to the abolition of transportation, and would give his cordial support to the Amendment of his hon. Friend, if he should press it to a division.

SIR R. H. INGLIS

could fully concur in one observation of the hon. Member for Pontefract, which was, that great credit was due to the Government for having brought this matter forward; but he felt strongly the inconvenience of discussing one subject, when the Bill before them related to another. Neither of the Bills now before the House would warrant the discussion of this large question; and throughout, therefore, they had been discussing most irregularly a subject of the deepest importance, when no question could be put from the chair, by which the opinion of the House could be fairly ascertained upon it. According to the two Bills which were before them, transportation would not be abolished; but, according to the intentions of the Government, the present system of transportation would undergo so great a change that in effect it was to be abolished; and this was to be done against the deliberate opinion of thirteen of the Judges of England, and of all the Judges of Scotland with one exception, and the opinion of that Judge was doubtful. Her Majesty's Government had not been able to bring one single Judge, except Mr. Justice Perrin, as being favourable to their plan. He had indeed heard it whispered that Mr. Baron Alderson had expressed an opinion favourable to the abolition of transportation; but he ventured to maintain that no opinion was much less in favour of that plan than that of Baron Alderson, for that learned Baron had said, in answer to Questions 13, 14, and 15, that the evil of transportation fell upon the colony rather than the mother country, for that the mother country had much benefit from it. And in answer to the question, whether he thought that any system of imprisonment could be a suffi- cient substitute for transportation, the learned Baron said he thought not. [Mr. HAWES had not quoted the opinion of Baron Alderson on these Bills, because that opinion had never been asked; but he had stated that Mr. Baron Alderson's was a qualified opinion.] He thought that it was not a very qualified opinion; and certainly, if there was any truth in the saying that credit should be given to every man in his art, the opinions of the Judges of the land was entitled to the greatest weight. Even Mr. Justice Perrin had said that he did not think transportation could be safely abolished altogether, although he had also said that he did think that a system of imprisonment might be a sufficient substitute for transportation. He admitted the great difficulty of the subject; so many objections were made to different kinds of punishment that if every one was attended to, there must be complete impunity for crime. As to transportation, he admitted that the interests of the colonies had not been hitherto sufficiently regarded; but because there were evils in the present system, it did not follow that those atrocious and nameless evils which had been described, should be the result of every system of transportation. No one could have read what had been stated in reports, and speeches, and pamphlets, without seeing that the existing system had led to the greatest mass of evil that the penal legislation of a Christian country had ever been known to exhibit; but he believed that it was in the power of the Legislature to continue the penal character of transportation, but at the same time to free it from its noxious effects on the character and habits of the convicts. He was sorry that the hon. Member for Warwickshire had left his seat, because the hon. Member had quoted Scripture, and had said that his quotation met with ridicule; but he had paid great attention to that speech, and he was sure that there had been no intention to ridicule Scripture, or the Author of Scripture. The ridicule was at an inconsequent application of Scripture to a purpose which the Scripture did not warrant. He would ask his noble Friend at the head of the Foreign department, as well as the Under Secretary for the Colonies, whether they had not the concurrent opinion of all Colonial Governors, as well as of the Judges, not against these particular Bills, but against that practical abolition, so far as the intention of Her Majesty's advisers went? As to the conduct and prac- tice of the Judges, his hon. Friend had adverted to the difficulty of passing a sentence never to be executed; but he asked whether legally they could pass a sentence of imprisonment for a length of time corresponding to that of transportation? He believed not; and then what were they prepared to do in respect to cases varying from two years' imprisonment to seven years' transportation? They were treating this change as capable of being made by the prerogative of the Crown; but in his opinion it would have been much better to have brought in a Bill for the purpose. All his feelings and prejudices were in favour of prerogative; but a Bill would have afforded Parliament a much better and more convenient opportunity of discussing the question. This debate was different from a discussion in which different degrees of transportation as apportioned to different crimes might have been considered; so that now they were deciding a question without the same opportunity of full discussion as they might have had, and without that authority to which the greatest weight ought to be attached. Reference had been made to the assignment system; and he thought that transportation with assignment was better than transportation in gangs, and transportation in gangs was better than none at all, if under proper regulations and effectual Christian superintendence. The hon. Member for Pontefract had praised the good intentions of Captain Maconochie as he deserved; but how far his system could be carried out remained to be proved, as it had never yet been fairly tried; but it was due to Captain Maconochie to pay a tribute to his great exertions on this subject. He (Sir R. H. Inglis) had not long ago presented to that House a petition from a gentleman who had experienced the evils of the system which now existed in Van Diemen's Land—who had been encouraged, by the expectations held out by the Government, that that colony would not be made the depositary of all the criminals of England, to invest capital there to the amount of 10,000l., and who stated that every respectable person was now leaving Van Diemen's Land; that his own property was greatly deteriorated, and, indeed, that he was almost ruined. He (Sir R. Inglis) thought this statement afforded a strong argument against the continuance of that particular form of transportation which had existed for the last five years. For his own part, he would maintain a sys- tem of transportation, purified so far as it could be, and as he believed it easily might be, from the measureless evils which had existed in the course of the last five years, but which did not exist under the assignment system. If the Government were prepared to raise the question of transportation or no transportation in form, as they had raised it in substance, he would be as ready as any Member of the House to vote against the abolition of that punishment; but he apprehended that the technical question put to the House would be that the Bill now before them be committed, and upon that question he was not prepared to divide.

SIR J. GRAHAM

I was anxious, Sir, on a former occasion to have addressed the House, and it was only by accident that I was prevented, on the last evening this question was under discussion, from taking part in the debate. Considering the official connexion which for some years I have had with the administration of justice, perhaps the House will not think it unnatural that I should be desirous to give my opinion upon the important matter which is now the subject of its deliberations; and I am rejoiced to think that, though considerable difference of opinion may exist in the House with reference to this most difficult question, it is impossible that it should be tinctured with the slightest colouring of party feeling, and that—although differing in opinion from the Government as to the course they intend to pursue—it is possible for me freely to express my views without giving offence to any one. I may be permitted to state, that I agree with the hon. Member for the University of Oxford (Sir R. Inglis), that the course which this debate must naturally take is somewhat inconvenient, because no direct opportunity is afforded to the House of expressing an opinion on the policy of the system about to be introduced by the Government. I do not mean to deny, that to the Bills which we are now discussing I entertain very considerable objection, though I am not prepared to vote against either of them going into Committee; but there are alterations with respect to both, which, in Committee, I should be disposed to support. I will first glance at the Custody of Offenders Bill. That Bill seeks to obtain a power new in the history of this country, and, as I think, not altogether politic. I allude to the first clause of the Bill, which proposes to give to the Crown the power of bring- ing to England persons convicted in Ireland and sentenced to transportation. Now, in itself that is a novelty, in my opinion, of very doubtful policy; but when I connect it with the system which the Government intend to introduce—namely, that transportation shall not invariably follow either separate confinement or hard labour in this country, then I think the gravest possible objection exists to this clause. Some hon. Members have referred to the opinions of the Judges upon certain questions propounded to them by the other House of Parliament. If any hon. Gentleman will only turn to the opinion of the Lord Chief Justice of Ireland, he will there see the strongest possible opinion in favour of transportation, which that learned Judge considers indispensable; and he contemplates with some alarm the possibility, after a period of hard labour, of Irish convicts being thrown back upon society in Ireland. Now, it is surely somewhat impolitic that we should incur the least risk (instead of throwing back these convicts upon society in Ireland, where they have been guilty of such great crimes as those to which the Chief Justice particularly refers) of persons convicted of crimes most dangerous to the safety of life and property, being cast upon society in England at the termination of their allotted period of labour. To that clause, therefore, when we go into Committee, I shall think it necessary to give particular attention. I believe that as the law now stands, it is not possible for the Crown to bring Irish convicts sentenced to transportation to this country. It is a new power, as I think, of a dangerous aspect, and to be examined with great care. I will now turn to the Bill with respect to prisons; and I am bound to say that to many of the provisions of that Bill I have serious objections. I will not cavil at the new designation of the Board of Commissioners to be constituted under this Bill "the Commissioners of National Prisons." That is an anomalous name—a name unknown to the law of this country. We have heard of county gaols, of corporate gaols, and of borough prisons; but this is a new name. We have had a Commission for the management of one prison—the Pentonville prison—and I must say that my experience with respect to boards of commissioners, and even with respect to that particular Board of Commissioners, consisting of very able and most exemplary men, has not led me to believe that, in a Commission composed of from seven to eleven members, it is easy to maintain that harmony and unanimity which are necessary to the advantageous working of any system. We have lately had a very important subject under consideration with respect to another Commission—I allude to the Poor Law Commission; and we have learned from experience that direct responsibility in this House is of great importance. It is with that view we have been legislating with reference to the poor. Now, at present we have the immediate, direct, undivided responsibility of the Secretary of State in this House with respect to all gaols, except only Pentonville prison. [The ATTORNEY GENERAL: And Millbank.] No; there are certain visitors appointed for that prison; but, under an alteration I myself introduced, the Secretary of State has the power of framing the rules. [Sir G. GREY: The inspectors have the same powers as the visiting justices, subject to the revision of their proceedings by the Secretary of State.] With respect to the county gaols of this country, the Secretary of State for the Home Department has the power, annually reverting to him, of making new rules or altering existing regulations; and I cannot see why that general rule, applicable to all gaols in this country, should be departed from with regard to those national prisons about to be constituted. As I read the Bill, the Commissioners are, in the first place, to frame rules, and a veto only is reserved for the Secretary of State. Upon another point there can be no mistake—that at this moment the patronage, the appointment of governors, chaplains, and of all those important officers upon whose conduct the discipline of the gaols depends, is placed in the hands, and subject to the responsibility, of the Secretary of State. Under this Bill it is sought to transfer that power, with respect to all prisons brought under the control of this Commission, from the Secretary of State to the Commissioners. You will have, therefore, the responsibility of the Secretary of State with respect to the rules impaired, and his responsibility with respect to the appointment of officers entirely destroyed. There are other minor objections to which I will not now refer; but I think that these are grave objections, well deserving the attention of the House when we go into Committee, and involving principles of great importance. At the same time, I must say, that although I think the objections I have mentioned to both these Bills are not unimportant, I am not prepared to vote against going into Committee. I agree with my hon. Friend the Member for the University of Oxford (Sir R. Inglis), that though, strictly speaking, the questions to which I have adverted are the only questions brought by these Bills directly under our consideration, far greater and more important questions have been raised in the course of this discussion—questions so important that I should neglect my duty if I failed to express my opinions upon them. I do not for one moment seek to conceal from the House, that when I resigned office during the summer of last year, the state of the penal colonies was so unsatisfactory, that prisoners convicted of offences, even of the gravest character, could not be sent out to them without the certainty of contracting a deeper taint; and, in my humble judgment, the time had arrived when it was indispensably necessary to suspend transportation, or to limit the extent to which it had been carried for the five years during which I presided at the Home Office. I may here observe, in passing, that the great evils which have arisen in Van Diemen's Land appear to me, in no inconsiderable degree, to be rightly ascribed to a pledge given, I must say somewhat hastily, if not imprudently, by our predecessors in office to the colonists of New South Wales, that after the time when that pledge was given, no convicts should be sent to those extensive colonies. The consequence was, that the whole stream of transportation flowed undivided to Van Diemen's Land alone; and to the accumulation of convicts there I believe that many of the evils which have arisen are principally to be attributed. As I have stated, I considered, when I quitted office, that transportation, to the extent to which it had been carried during the preceding five years, must necessarily be suspended; and I think I stated to my successor in the Home Office (Sir G. Grey), that that was the view taken by my Colleagues and myself. To the suspension of transportation, then, for a year or two, until a better plan of secondary punishments could be maturely devised, I not only had no objection, but to such suspension I was ready to give my willing assent. But it is not a question of suspension that we are now debating; for I think I did not misunderstand the statement of the right hon. Home Secretary. I took down his words, and he said that "It is not ne- cessary to drop the system for two years only; but it is necessary, in my opinion, never to resume it." The question we are now debating, therefore, according to the authority of the Secretary of State, is whether transportation, as a secondary punishment, shall cease or not. It is unfortunate, I think, that we cannot take the sense of the House upon that question; for that really is the point upon which issue is now joined. I cannot help referring, in passing, to a most important topic to which my hon. Friend the Member for the University of Oxford alluded. What is at this moment the state of the criminal law, upon the due and successful administration of which really depends the security of life and property in this country? It has been the policy of modern times—a policy which I highly approve, and in which I have partaken—to temper the rigour of our criminal code, to administer justice with greater mercy, and to mitigate that sanguinary character which jurists have ascribed to the laws of this country, and which, as I think, disgraced them without adding to their efficacy. Except only for the crime of murder, or in the case of violence endangering human life, capital punishment has not, for many years, been inflicted in this country. With regard to the policy of this mitigation of the rigour of our laws, I cannot dissemble to the House, or conceal from the public, that with regard to crimes of the deepest dye, to which capital punishment was formerly annexed, the remission of that punishment has been concomitant with a rapid and alarming increase of those crimes. I will illustrate this statement by three instances; and, in order to do so, I must call the attention of the House to a table of the number of criminal offences committed in this country, prepared by a gentleman in the Home Office, whose merits I have no doubt my successor has ascertained, as by experience I ascertained them—I allude to Mr. Redgrave. In 1829 capital punishment was remitted with respect to forgery. In the year 1836 the number of commitments for forgery was 321, in 1841 it was 514, and in 1846 it was 706; showing an increase in the last year of more than double the number as compared with 1836. I will now take the crime of arson, which ceased to be a capital offence in 1837. The number of commitments in 1836 was 366, and the number rose in 1846 to 581; showing an increase of about 60 per cent. The next case I will take is the atrocious crime of rape, which ceased to be capitally punished in 1841. The commitments for rape in 1841 were 319; in 1846 they amounted to 597; showing an increase of 90 per cent. Now, observe that capital punishment in most cases, except in the case of murder, has been remitted. The secondary punishment next in gravity to capital punishment is transportation for life. It is now proposed that transportation for life—at all events in the rigorous sense in which that term has hitherto been viewed both by Judges and by convicts—shall from henceforth cease. The punishment next in severity to transportation for life has hitherto been punishment on board the hulks; but I think that, by an Address of this House, that punishment has been unequivocally condemned. An Address to Her Majesty was voted, I believe, by this House, praying that that punishment may no longer be put in force. If transportation, then, is to cease; if punishment on board the hulks is condemned; if capital punishment is generally remitted; what remains but punishment by separate confinement, or with some severity? I am an advocate, as far as experience has given me the means of judging, of separate confinement; but I admit that it is a powerful instrument, requiring in its application great care and close inspection; it is a punishment which is certainly to be viewed with some jealousy by all friends of humanity, and with the caution due to the weakness of the human mind as well as to human suffering. From the separate system you fall back upon the silent system. That is generally condemned; and at last you will be brought to the punishment of the gravest offences by terms of imprisonment only. If you attempt long terms of imprisonment in this country, public opinion will be revolted; the pressure upon the Executive Government will be excessive—almost intolerable, for the remission of the punishment; and at last, if we do not take care, in our sympathy for the sufferings of criminals, we shall so mitigate our code, and we shall, practically, so break down the severity of all our punishments for the gravest offences, that crime will be committed with impunity, and rogues and villains will suffer little, while honest men will be exposed to danger and to injuries without redress. Now, I would wish to ask the House, shall a change so great as this, in reference to transportation, be effected except by sta- tute? I am speaking, I know, in the presence of those who will follow me, and who are great legal authorities; hut, I must say, as to the 5th George IV., which organized the punishment of transportation from this country, the letter of it may allow that exercise of the prerogative which is now contemplated by Her Majesty's Government; but I contend that the spirit of that Act is entirely at variance with the spirit in which we are now about to legislate. It is a misrepresentation of that Act to say that it recognises the extension of the prerogative of the Crown in all cases of transportation, by sanctioning imprisonment as its substitute. So far from a substitution being intended by that Act, it was, in fact, to superadd imprisonment prior to transportation, and to regulate transportation. Far be it from me to deny the prerogative of the Crown in mitigating punishment; but I contend that if your administration of the law is to be safe, the general rule of punishment should prevail, and the exercise of the prerogative of mercy should be the exception to the rule, and not the rule itself. If you intend to convert the exception into the general rule, at once you open the door to all the caprices of the adviser of the Crown, who, himself, has not been present at the trial—who does not know the exact circumstances of the case—who is only incidentally made acquainted with the opinion of the Judge—and who is really not responsible for the due administration and infliction of the severity of the law. And having asked why should we even admit this difficulty to prevail with respect to dealing with this question by prerogative unaided by statute, I would ask another question—what is the precise nature of that secondary punishment on which you mean henceforth to rely, transportation being changed, if not entirely abolished? What is that punishment on which you rely for the purpose of deterring criminals from the commission of crime after that large remission of capital punishment which has taken place? There is another question on which I should have said something had I not been anticipated by gentlemen who have spoken before me, and who dwelt at length on the subject. What is the opinion of the Judges with respect to the proposed change, so far as they have had an opportunity of understanding what is intended by Her Majesty's Government? With regard to Lord Denman, his opinion has already been read to the House; and, if I mistake not, he speaks not only for himself, but he says expressly that he has consulted his brethren, and, so far as he has been able to collect their opinions on behalf of his brethren, he deprecates the abolition of transportation in the strongest terms. Allow me also just to ask what is the opinion of the chief criminal Judges of Scotland? I will not weary you with going over the opinions of the English Judges, or again stating the opinion of Lord Denman; but I will quote to the House the testimony furnished by the chief criminal Judge of Scotland, the Lord Justice Clerk, who has had extensive experience in the trials of prisoners, who is a most careful criminal Judge, and whose opinion is entitled to be received with the greatest respect. He says— I regard the punishment of transportation as most valuable, and as a restraint of the greatest possible weight upon the great bulk of mankind. My experience and observation lead me, without any doubt, to the conclusion that transportation is a very great and most useful restraint upon the commission of crime, and that its infliction has the most salutary effects in deterring others from committing similar crimes. He says also— Believing the benefits of the punishment as a great means of deterring others from committing the like crimes to be so important that nothing could compensate for its abolition, I regard as very trifling the inequality of the punishment here referred to, as regards the station of life and property of persons who may subject themselves to that punishment.….It is my most decided opinion," he further declares, "that it would be most unsafe and inexpedient to dispense with the punishment of transportation, or to restrict it to any more limited class of cases. In answer to the question— Have you the means of stating what class of persons tried before you appeared chiefly to dread it, and what class to care less for it?"— He says— I should say that, generally speaking, all classes of offenders have a great horror of transportation, and I noticed universally the effect produced when, after the change in 1843,I mentioned to those sentenced to short periods of transportation that the sentence would certainly be carried into effect. Even the horrors and labour of the hulks had not half the terror as that of removal from the country. That is the opinion of the chief criminal Judge in Scotland. You have heard the statement of Lord Denman on behalf of his brethren in England; and I will now read to you the opinion of the Lord Chief Justice of Ireland. As it is important that I should refer to the point to which I have already adverted, with respect to the danger of employing in Ireland convicts sentenced to transportation, and there remitting their sentences, and that I should also call attention to the impolicy of the system of such remissions, perhaps the House will permit me to quote the whole of the opinion of the Chief Justice. He says— The employment of those convicts in public works might be resorted to as a temporary expedient, but I believe that the trials that have been made of this measure have not tended to recommend its adoption; and certainly the employment of Irish convicts on any public work in Ireland would be in the highest degree inexpedient, and, in my opinion, he most mischievous. The cases in which I would retain the power of transportation (not being able to devise any substitute for it) would be those in which, from the nature of the crimes, and the hardened guilt of the offenders, it would probably be unsafe, with a due regard to the general safety and interests of society, that the convict should be allowed to be at large in this country. Generally speaking, persons who are now sentenced to transportation for life would be included in this class of convicts. It would seem to be absolutely necessary to invest the Judges with a discretionary power, to be exercised according to the nature of the crime, the previous habits and character of the convict, as far as they might be disclosed by the evidence at the trial, and other authentic sources of information." He is asked, "Have you the means of stating what class of persons tried before you appeared chiefly to dread it, and what class to care less for it?" and the reply is, "Habitual thieves, persons who are without friends and connexions, and reduced to destitution by idleness and misfortune, feel it but little, if at all; but offenders of the better classes, and the persons who, in various parts of Ireland, have been associated for unlawful purposes, and become habituated to deeds of violence and plunder, do, I believe, feel transportation as a heavy punishment. Amongst the latter class, I believe, it frequently happens that convicts sentenced to transportation consider themselves fortunate in having escaped the punishment of death. But, with such exceptions, lam persuaded that they themselves, their families and friends, and, it is possible, their associates in guilt, regard separation, if for life, as a great calamity. I will not trouble the House with the opinions of other Judges of the land; but I must, in passing, make the observation that, since this measure was first introduced to our notice, it has undergone a very material change. When the right hon. Gentleman addressed his able letter to the Secretary for the Colonies, I think, at that time exile, under a conditional pardon, was contemplated as the general rule on the expiration of imprisonment. The right hon. Gentleman the other night combated with some severity the observations made by Lord Brougham on that plan as it originally stood. I quite agree with Lord Brougham that, as it was first developed, it was open to a very serious objection. It did not appear to me, on the face of that plan, that the exile contemplated would necessarily be confined to our own colonies. I consider it quite possible that the colonies of other countries, and that even the States of Europe might be chosen for the residence of the exiles. It is now useless arguing this point, for the Bill has been changed; but a graver objection could not have been urged; civilized Europe would have been revolted by any such attempt. Now it is changed; transportation is still to be abolished; but when the right hon. Gentleman last addressed the House, exile was no longer the plan—deportation was the term. Now, what is the meaning of deportation? Deportation in the altered plan, which is no longer exile under conditional pardon, but deportation with tickets of leave, is, after all, neither more nor less than transportation. I know not what the hon. Baronet the Member for Southwark (Sir W. Molesworth) may say to that. He has addressed the House with his accustomed ability in explanation of his views as regards this scheme; but I can hardly believe that he will be satisfied with deportation under tickets of leave. What does that really mean? My recollection of the practice of the Home Office may be imperfect; but if you keep up tickets of leave, and deport under tickets of leave, you must have convict establishments, you must have penal colonies, you must, in point of fact, retain all the machinery of transportation. You change the name, but in reality it is only a modification, and a very slight modification, of transportation. I think the right hon. Gentleman said some change, at all events, was necessary, and that the fruits of the new, whatever they might be, could not be worse than the fruits of the old system. The new system, as I understand it, is, that you are to commence generally with separate confinement; that after separate confinement you are to have forced labour; and that after forced labour you are to have deportation, which, as the House will have observed, is deportation with convict ships under tickets of leave, to a convict colony, with convict establishments, the ultimate conditional pardon being dependent on the conduct of the prisoner in the penal colony. Now, my first objection, if well founded, is fatal to the plan. I contend that the preliminary punishment, viz., punishment by separate confinement, is not possible at this moment. You have not the means of applying it. There are not that number of separate cells in the prisons of the country which would enable you so to confine it during the next twelve months. What is the number of the convicts? In 1846, 2,195 convicts were sentenced to seven years, and 1,724 sentences to a longer period than seven years, making altogether, in 1846, 3,919 convicts sentenced to transportation. The right hon. Gentleman, in his estimate, has made provision for 860. According to his own plan, there are then upwards of 3,000 for whom he must provide separate cells. All the establishments he can bring to his aid will not therefore furnish him with the means of carrying out a system of separate confinement. Even if this difficulty be overcome after the first year, he contemplates under the separate system extending imprisonment beyond twelve months for grave offenders; and consequently provision will have to be made for more than 3,000 convicts. It will be necessary, I think, to have 4,500 separate cells, and certainly it may be possible after the lapse of some time to make such provision. The cost will be great, the difficulty not inconsiderable; but to bring that system at once into operation before the cells have been provided, seems to me a hasty, if not an improvident step. Even if I doubt that it is not physically possible, still there is another great question remaining open for discussion. I admit that the reformation of the criminal is a matter of the highest importance; I cannot, however, consider it of primary, though of immense importance. It is secondary: the object which is of vital and paramount importance is that your punishment should be effectual for the purpose of example, and as a means of deterring from crime. Granting that your system be the best for the reformation of the criminal, it is necessary for you, before you establish the policy, to show that it is the one most certain in practice to deter from crime, and to operate as an example. Now, this plan, purporting to be new, presents itself in a double aspect—first, separate confinement; and, in case of reformation being effected by separate confinement, the exercise of the prerogative by pardon; or, after the separate confinement, if not effectual, or if the gravity of the crime requires further punishment, additional punishment, and forced labour, before deportation under tickets of leave. Well, I will endeavour to show that this plan is not new—that it has been tried—that it has failed—that it has been condemned by this House—and that it neither deters from crime, nor succeeds in reforming the criminal. First, in reference to separate confinement, ending in a pardon, without any of the ulterior stages of punishment. I know not whether the Lord Advocate is here, but I see the right hon. Gentleman the Member for Perth in his seat; and he is aware that this system of separate confinement, ending in separate confinement—the punishment carried no further, has been tried to a great extent in Scotland, in the prison of Perth. I will read to the House the opinion expressed by the Lord Justice Clerk on this point, as the result of his experience. He says— We constantly see in the Court of Justiciary persons who have suffered imprisonment in the general prison for eighteen months or two years, on whom the discipline and instruction of the prison have been wholly thrown away, and who return to crime immediately or soon after liberation. To sentence more to imprisonment, or to try the punishment of imprisonment on more (under a nominal sentence of transportation), would only be time and expense thrown away. Even on the separate system, and for a long period, imprisonment has really no terror for the bulk of offenders; and the better the system, it is an undoubted result that the dread of imprisonment must and will be diminished. After these offenders are all taught to read, and get books to read at extra hours, if reformation is not produced, at least the oppression of imprisonment is over to persons of low minds and living a life of wretchedness out of prison. And hence, I am sorry to say, that with those who are not reclaimed in one prison, the dread of imprisonment seems to have entirely vanished. And I understand that among the community at large in Scotland, and with magistrates and police officers, the feeling is very general that owing to the comforts necessarily attending a good gaol, the separate system, looked on at first with alarm, has now no effect in deterring from crime those who are not reformed. So much with respect to the experiment of the separate system, which has here resulted in throwing individuals, who have been convicted, back upon society unreformed by this species of punishment. We have had the example of Perth, and the testimony of the Lord Justice Clerk, in reference to the effect of that experiment throughout Scotland; and I now turn to the system which has been propounded to us as a new one, viz., that we should deal with convicts, first, by separate confinement, and then proceed to forced labour in this country. I have already stated to the House that this plan is anything but new—that it is an old experiment—that it has been tried and signally failed, and has been condemned by a Committee of this House in a report which was made in 1832. In a matter of so much importance, I am anxious to go through the entire case, and shall therefore draw upon the patience of the House while I read another extract or two. I will refer to the result of an inquiry before a Committee of this House on the subject of secondary punishments, when this plan was tried at Millbank Penitentiary—viz., a plan commencing with separate confinement, and ending with forced labour. At Millbank, the first-class punishment was separate confinement, and after a certain period a second class was formed, in which intercourse was allowed between the prisoners, and labour was enforced. The Committee, in their report, say— The Governor of the Penitentiary states, that many prisoners confined there, after removal from the first class, a state of seclusion, to the second class, in which they are associated with other convicts during the day, have, at their own request, been replaced in the first class, finding it impossible to resist the influence of the bad example of their fellow-prisoners, although those prisoners, having gone through the ordeal of the first class, might be considered as partially reformed. During the first period separation was always strictly enforced (except when the prisoners were at work in the crank mills and water machines for a short time each day); and it appears that, generally speaking, a decided improvement in their deportment and conduct took place. But, on being removed to the second class, and being allowed to associate with their fellow-prisoners during the day, the consequences, as described by the governor and chaplain, were such as might have been expected; any progress towards reformation effected by the discipline of the first class being frequently followed by a relapse when removed to the second. Your Committee, however, are given to understand that new regulations have lately been adopted, and there is no longer a distinction between the classes, and that it is intended to subject the convicts in future to the discipline of the first class during the whole period of their sentence, from which it is expected that hopes of permanent amendment may be entertained, and that a shorter period of punishment will be found sufficient. The Committee sum up the whole case by saying— Your Committee are of opinion that still further improvement may be made. More effectual means should be adopted to prevent conversation between prisoners while in their cells; as unless measures are taken to prevent all communication, the object of the institution will not be obtained. The indulgence hitherto allowed to prisoners of receiving letters from their friends should in future be withheld altogether; and during the whole period of their confinement all communication from without, except in special cases, should be strictly prohibited. Something has been said in the course of this debate of the United States of America. That subject was not overlooked by this Committee; and I ask the House to look at the experience of the United States with reference to a plan almost analogous to that now proposed. On this point the Committee say— This evil is strongly felt in the United States, and the want of some place to which irreclaimable offenders may be sent is a source of anxiety to the statesmen of that country; in the words of a competent witness, 'It is the cause of the gradually increasing culprit population in America, of which the Legislature cannot rid the country.' The hon. Gentleman the Member for Warwickshire has spoken of the evils prevalent in France; and it is instructive to remember that this very system of secondary punishments prevails in that country—criminals, after a period of separate confinement and hard labour, being liberated and allowed to go back to their native homes. The evil of this state of things in France is one of the greatest and most demoralising curses in that country—admitted to be so by their statesmen, and rendering society there vastly inferior in point of morality to any other civilized country in Europe. We must, therefore, take great care in any change we propose that we do not throw away the benefits of the experience we have derived from America and France; and at the same time be on our guard not to neglect the facilities which our penal colonies afford us of placing there, at the expense of the mother country, those unhappy persons who are sent forth as criminals—of having them closely watched under a system of reformatory discipline—and at the end of their respective periods of punishment holding out to the reformed the certain prospect of being admitted into a condition of society where they may expect to find a sufficient demand for their labour. I must say that I think it would be preferable to place the forced labour first in order. I am quite sure it would be the most politic course. The noble Lord the Member for Hertford has stated that the Bishop of Tasmania thinks this would be wiser both in theory and in practice; and, arguing à priori as well as from experience, I should say, that all the good effect of your separate system is sure to be destroyed by a system of mixed forced labour, whereas the evils of the forced labour system might be mitigated, or removed, if followed by the separate system. Looking at the letter of the Home Secretary, to which I have already referred, it appears plain from one passage in it that he does contemplate exercising the prerogative of the Crown to throw back on society here certain classes of convicts, though he does not mean it to be the rule that at the end of the period of forced labour they shall be allowed to return to their homes. He says— In addition to the general plan thus contemplated, there will probably be cases in which the mercy of the Crown may safely be exercised in favour of prisoners without enforcing the condition of exile, where their friends, or other persons of character and respectability may undertake on their liberation to receive and provide employment for them, or become answerable for their future conduct. Now, considering the great amount of labour compared with the means of employment in this country, the cases are rare, indeed, where parties who have been confined as convicts, and afterwards liberated with their characters blasted and tainted, will be able, however honest their intentions, to get that kind of employment by which an honest livelihood can be obtained. Let me direct the attention of the House to the views of the right hon. Gentleman the Secretary for the Home Department, on this subject. He says— In this country men regaining their liberty on the expiration of a penal sentence often find great difficulty in obtaining an honest livelihood. In the general competition for employment, character naturally and properly secures a preference to men untainted with crime; and the discharged convict is liable to be thrown back upon a criminal course of life, from the inability to procure employment by which he can honestly maintain himself. In the colonies, on the other hand, where labour is in great demand, this difficulty is not experienced, and the opportunity is afforded to the convict, on the termination of his sentence, of entering on a new career with advantages which he could not possess in this country, and of thus becoming an useful member of society. Such was the case, formerly, to a considerable extent, both in New South Wales and Van Diemen's Land, though of late, in the last mentioned colony, it has ceased to be so, owing to the large number of convicts annually sent there, and the consequent deficiency of profitable employment for those who, cither on the expiration of their sentences, or as holders of tickets of leave, have been thrown upon their own resources in the midst of a population of which a large proportion has been criminal. At the time this letter was written, and when I left office and gave the right hon. Gentleman the view I had of the necessity of suspending transportation, it is true, that from particular circumstances there was a redundancy of labour in Van Diemen's Land; but mark the dangers of legislating with precipitancy in such matter as this, and with regard to interests so far distant. I have in my hand, from au- thority which is indisputable, an important statement of facts which bears closely on this question. I am not at liberty publicly to mention the name of the individual; but to the right hon. Gentleman or any of his Colleagues I shall willingly give the name if it is desired. It is the substance of a letter, dated from Hobart Town, on the 28th of January last. The difficulty, you will observe, is one arising from a supposed aggregation of convicts in that colony so as to disturb the demand for labour. The writer says— The difficulties of legislating for a colony at such a distance, are forcibly shown by the state of things here at present. The latest information when I left England [I think he left in August] represented a state of things exactly the reverse of what I find to be the case. The country was supposed to be full of unemployed convicts, and it was thought desirable to find different kinds of employment for them. I find, on the contrary, that every convict able to work has been hired; and that there is a deficiency of hands to carry on the Government works. The people who complained of convicts being sent here, will in a short time be clamouring for labour. Upwards of 5,000 men have gone over to Port Philip and other parts of Australia, and the instant any man receives his conditional pardon away he goes. That is the condition of the colony at present, and it strikingly points out the propriety of not legislating in haste with regard to the interests of colonies so distant. I say, that under proper regulations, there are none of the evils of the system of transportation that are not capable of being redressed. And the real question, after all, is a question of place. I contend that a reformatory discipline, by separate confinement coupled with transportation, is the best secondary punishment that can be devised. And just as well will the reformatory discipline be inflicted in a penal colony as here. I say it is not safe to inflict it here; but in your penal colonies, under good regulations, and with an able governor to enforce them, such a discipline is safe, and even salutary. There is nothing that can be effected here that cannot be equally well done in the colonies; and I believe the expense will be willingly borne by the people of this country, whose condition will be all the safer from society being annually purged of swarms of malefactors. As to the mother country, there can, I think, be no doubt regarding the wisdom of this policy; and as to the penal colonies, if you only apply rules such as the right hon. Gentleman himself proposes, I believe the evils that have hitherto existed may be repaired without any hasty change of our system. Not only may evils be redressed, but the benefits which it is desirable this country should possess from an efficient system, will be maintained and upheld. I will now only glance at other parts of the plan of the right hon. Gentleman. And here I should like to know what will be the period of separate confinement and of forced labour which he thinks will be a just measure of punishment, as commensurate with transportation? Because there will be this difficulty, if the period is short, the punishment will be so light as to be inoperative as an example to deter others; if it is long, public opinion will revolt against it, and it will be impossible to carry it into execution; and although it may be your desire to make the punishment long and fully commensurate to transportation, yet you will he unable to effect that object. Then, again, you may shorten the period as to those prisoners upon whom your punishment has been effectual; but what will you do with those upon whom it has failed—with incorrigible offenders? When it is clear that your convicts are not reformed, and that the consequence of liberating them will be that they will return to their former practices, are you to go on holding them in confinement in pursuance of the sentence of transportation for life, or until their full term of twenty-one years has expired? I think you will have the greatest possible difficulty in cases of this description. It appears to me, however, in conclusion, to be a question of degree and of time, rather than a question of principle. I have read evidence which I hope will satisfy the House, that, as to Van Diemen's Land, the representations of the difficulty of finding labour for the convicts is greatly overrated. The Motion at present before the House gives us no opportunity of taking the opinion of the House upon the plan of Her Majesty's Government. I am not sorry for this, but I have thought it desirable to point out the difficulties and obstacles which I see to carrying the plan into effect. If, however, the Government think it right to persevere in their plan, I shall be satisfied if I can obtain from some Member of the Government who may follow me, the assurance that they will leave this great question of secondary punishments open until the next Session. I shall be willing to go into Committee if, during the recess, the Government will take an extended view, a calm and deliberate view, of the whole subject, and come forward at the commencement of another Session with a Statute—for I hold that to be a matter of primary importance—graduating the period of separate confinement, of forced labour, of deportation with tickets of leave, or, what I should much prefer, adhering to the system of transportation with reformatory discipline in the penal colonies. If they will do this, I will gladly give them every assistance in support of the present Motion; and I shall be perfectly satisfied to leave in their hands, until another Session, the great question of secondary punishments, which should be so determined that judges and criminals may know exactly what the law is on the subject, and that no doubt may be entertained that the exercise of the prerogative of the Crown in remitting the term of fixed punishment will be comparatively rare. If they will do this, and by no means leave the question of secondary punishments vague and unsettled, I shall be ready to co-operate in framing a statute which shall define the limits of this great portion of our criminal law, and which shall place our scheme of punishment on a fixed and intelligible basis.

MR. C. BULLER

At any time, and on any question, I should feel the disadvantage I have to contend against in attempting to arrest the attention of the House after it has been addressed by the right hon. Baronet who has just sat down; but I feel that disadvantage more peculiarly and more painfully when called upon to speak on a question which he has treated with such eminent skill and clearness, and on which he has brought to bear the whole amount of his great information, and all his largo and valuable official experience. That question is one which I confess I have been inclined to regard rather from one point of view; but it is the point which I trust I shall succeed in demonstrating to the House to be the best and most important from which it can be possibly considered. Before proceeding, however, to the question itself, I must be permitted to observe that there is one point in which the speech of the right hon. Baronet, which I had hoped would have satisfied me in every particular, has disappointed me more grievously than the speeches of all the hon. Members who have impugned the scheme of Her Majesty's Government. That scheme has been most minutely criticised, all its defects have been brought to light, all its demerits carefully held up to view; but no hon. Member who has made it the object of his censure, and least of all the right hon. Baronet, has condescended to tell the House in intelligible terms what other course the Government ought to have adopted. It may, perhaps, be pleaded in favour of the ordinary Members of the Opposition, that they merely exercise the common privilege of their situation, by finding fault without suggesting any other remedy for an evil the existence of which is admitted upon all hands; but surely that is a course of proceeding not to be expected from a Gentleman who most ably represents the Government with whom, or at least in whose time, originated all the difficulties which now embarrass us. Let us see in what state that Government left the question we are now considering. They had suspended, and very properly (as it appears to me) suspended the system of transportation to Norfolk Island and Van Diemen's Land. [Sir JAMES GRAHAM: Not to Norfolk Island.] The right hon. Baronet is of course at perfect liberty to keep up Norfolk Island still, if he think proper, but I certainly was under the impression that it was renounced on all hands. I really had thought that we were all pretty nearly unanimous with respect to Norfolk Island. I had thought that it was very generally admitted that Norfolk Island had suspended itself but I will not dwell upon the point. It is at all events certain that they suspended transportation to Van Diemen's Land. By a distinct pledge given by a previous Government, transportation was never again to be resumed in New South Wales By a direct pledge of a preceding Government it was undertaken that it should never be established in South Australia, and under that pledge a colony has been founded there. Under a pledge equally solemn and emphatic, given by the Marquess of Normanby when he was Secretary for the Colonies, the colony of New Zealand was peopled. English emigrants took up their abode there on the distinct understanding that no convicts were to be conveyed thither. At the time, therefore, when the present Government came into office, there remained no place within the British empire to which convicts could be transported. Under those circumstances it became the duty of the Government to consider what was the best system of secondary punishment that could be devised as a substitute for transportation. The plan they have submitted is that which appears to them, under all the circum- stances, the most eligible. The right hon. Baronet has expatiated on the peculiar difficulty which will attend the efforts to carry it into operation, and asks where cells can be found in which to confine all the convicts who will have to be treated on the separate system? I will take leave to ask the right hon. Baronet where he had himself proposed to confine the convicts who were sure to accumulate on him in consequence of his having suspended for two years the practice of transportation? I do think that I am fairly entitled to claim for the present Government the same measure of indulgence that was accorded to the late. The description of the dreadful state of things existing in the penal colonies came upon this country with some degree of surprise. The late Government were dismayed at the contemplation of such a picture. They saw the necessity of discontinuing the system of transportation, at least for a period; and it was for their successors in office to undertake the difficult and perplexing task of determining what system should be introduced in place of that which had been superseded. The punishment of transportation consisted in carrying a man to a penal colony, and there subjecting him to coercive punishment. That was transportation. It was exile from this country, and punishment in the country to which the banished man was taken. One change that the Government propose is that the coercive punishment shall be inflicted in this country, and that the simple penalty of exile shall afterwards be imposed. The right hon. Baronet opposite contends that the coercive punishment ought to be inflicted in the future seat of the convict's exile; and that, after all, appears to be the only material difference between us. The punishment of exile and removal from the mother country being inflicted in both cases, and it being determined that the prisoner shall in addition be punished by a coercive process of some kind, the question is whether you will inflict that punishment here or in the colonies. I confidently appeal to all experience to demonstrate that every plan that has been attempted of inflicting the punishment in the colonies has utterly and entirely failed. Certainly the most plausible feature in the old system was the assignment practice. It had more of the reformatory plan about it than any other portion of the system, and seemed to promise some little chance that the convict on whom it was tried in New South Wales might, perhaps, in the course of time, become respectable and regain his position. The working of the system has been very fully described. The labourer was placed in the hands of his master: his labour was extremely valuable; every motive existed to induce the master to treat him well, in the hope of getting the best work out of him. The consequence was, that it was found, as a general rule, that the condition of the assigned convict, who was liberally treated with regard to meat and clothing, was far better than that of the honest labourer in this country. Some hon. Gentlemen may forget what occurred a long time ago. My years may probably give me an advantage over other hon. Members in this respect; but I admit, that some fifteen years ago there were complaints on the subject in this country—complaints stated in various publications. Gentlemen will probably remember the paper of Mr. Sydney Smith, in which he observed that the evil of the transportation system, as it was then carried on, was this—that the condition of the convict in New South Wales was such, that it presented a temptation to honest men in England to commit crime in order to better their condition by being transported. And I am sure that the annals of the courts of justice on that point will show that transportation to a great extent had lost its terrors, and that the system that was practised was actually an inducement to crime. This state of things had gone on for some time, when a Committee was appointed to inquire into the subject, which was presided over by my hon. Friend the Member for Southwark. Hon. Gentlemen may endeavour to diminish the weight of their report by stating that the right hon. Baronet the Member for Tamworth, and the noble Lord at the head of the Government, were not constant attendants on that Committee. But the noble Lord and the right hon. Baronet lent their sanction to the report of that Committee. But I do not alone rest my eulogy of that report on the concurrence in it of those two right hon. Members, distinguished as they are; but I say, that all those who read that report, and see the information which has been collected through the exertions of my hon. Friend, must do justice to the labour with which he sifted every species of evidence, and arrived at the conclusions in that report. On that report the system of assignment was abandoned by the Government. It is necessary that we should understand this matter distinctly; and I now ask, is there any Gentleman who, in the face of the evidence contained in that report, can say that the assignment system should be restored? I have heard no one say so. I think he would be a bold man who would say so. At all events, those who say so must not be content with merely saying that such is their opinion; but they must explain to us some mode by which the system of assignment could be revived without causing all those enormous evils that had been exhibited in its former state. The assignment system was carried out by successive Governments of New South Wales: one or two of the Governors under whom it was carried out were amongst the best Governors the colony ever had; but yet the system broke down through its inherent vice. It was determined that the assignment of prisoners was no punishment at all; and it was then given up on the full determination to make the punishment in New South Wales a strictly coercive punishment. The Judges used to state, after the system was abolished, that the punishment now inflicted was one of a nature different from that which was laughed at before: it was said that the punishment was the most terrible to which human nature could be subjected; and various plans were tried to increase the efficiency of the punishment: there were the road gangs, the probation system, Port Arthur and Norfolk Island; and the public got impressed with the idea that the punishment was most severe. I give the hon. Gentleman opposite full credit for believing that the system of transportation was one that created great terror; but now listen for one moment to the revelations that have been made respecting the real working of that system. It has been an almost universal cry from Van Diemen's Land—from persons who complain that the moral character of that colony has been tainted—that its material prosperity has been destroyed—that the life and property of every individual are exposed to the attacks of lawless convicts, whom nothing could restrain. It is no exaggeration to state, that all those who could quit the colony have quitted it—that all those who were obliged to remain there, having their property embarked in it, lived there in constant dread. A gentleman visited me in the course of last year, who was compelled to come home and leave his family there; and he described to me the terror with which he received intelligence from the colony, dreading what might be the fate of his family; and it was rovolting to his feelings to have to return there, and to have the prospect before him of bringing up his family in such a scene of infamy. What have been the revelations as to Norfolk Island? I need not dwell upon them—they are horrible and disgraceful to the English nation. And in the face of this dreadful working of your coercive system, after the failure of every system tried in every part of the world for inflicting a coercive punishment on the convict at a distance from the mother country, what suggestion have we now made to us as to any mode of inflicting this punishment without those horrors? This was a point on which I expected to be enlightened by the right hon. Baronet. The right hon. Baronet, who blames our course—having himself discontinued transportation to Van Die-men's Land, without telling us to what other quarter of the world it was to be directed, or where the prisoners should be lodged—does not tell us what single improvement he would introduce into the system. He tells us in the vaguest manner it might be better administered under able government and superintendence; but I defy him to get in the colonial service abler men than you had in New South Wales and Van Die-men's Land. I will allude particularly to the Governor who devoted his attention to that system, and carried it on with unwearied energy. I refer to Sir George Arthur; and a more devoted Governor never directed his attention to a subject of this kind, and yet this is the system that has grown up. But when I said there was no practical suggestion made, I forgot there was one practical suggestion made by the noble Lord the Member for Hertford, and it certainly was a gentlemanly mode of settling the matter. "Oh," said the noble Lord, "you pay your officers too little; increase all their salaries." Why now, Sir, I tell those Gentlemen at once that there are two inherent evils which render it utterly impossible to have a good system of punishment carried on in Van Diemen's Land, or any of the Australian colonies. The first is, that they are 16,000 miles from us. The convicts are punished in a colony which has no interest whatever in perfecting a penal system for this country. You want to solve one of the very greatest of social problems, namely, the best system of deterring from crime, but at the same time of inflicting a reformatory punishment. You send them to he punished in a country in which no human being has an interest whether they are well punished or not. You trust them altogether to the Governor you send out. Observe, secondly, the evil that results from that system. You trust the whole of the carrying on of this complicated and difficult system to the mere inhabitants, and to the civil staff of the small community to whom you entrust it. Observe the practical difficulty of this. You have sent out every person from the Government downward; but if a vacancy occurs in any of the offices, how is it to be filled up? Are you to wait until you send 16,000 miles back and forwards to have a man sent out? The result is, that you must carry out this difficult system of punishment, for the infliction of which you find it difficult to select competent persons in this country, with the assistance of persons selected out of a small community, consisting only of a population perhaps of 30,000. Take a town containing that number of inhabitants that is nearer to you, and see whether you will find in that town intelligent agents who are fit to superintend the management of some 20,000 or 30,000 convicts. The thing is impossible. The right hon. Gentleman may talk as vaguely as he likes, and use as high terms as he chooses; but the power of punishing convicts, and regulating a good system of reformatory and deterring punishment, at a distance of 16,000 miles from the mother country, is an impossibility for which he has suggested no remedy, and for which it is not in human nature to suggest a remedy. But, then, before you condemn the plan the Government has brought forward, and before you say it is wise to inflict the punishment in the colony, and not to inflict it here, point out to me how you can inflict the punishment in the colony in a way to satisfy yourself. I am sure there is no gentleman on either side of the House who does not regret the horrible results that have taken place in Van Diemen's Land and in Norfolk Island; and I feel assured they are as repugnant to their feelings as to the feelings of the Government. But, before you say to us that the system ought to be continued, you ought to point out to us precisely the measures you would have taken to prevent this evil from recurring. I speak in the presence of those who were connected with the Home and Colonial Departments of the late Government; they are practical men, thoroughly acquainted with the working of the system, and they ought to he able to say what should be the remedy. But although they have all said there ought to be a remedy, yet none of them has told us what that remedy ought to be. It would, I think, be far better for us to take the punishment of the convict upon ourselves, when he will be punished under the eyes of that community which is interested in the objects of that punishment being carried out, and under the eyes of the great officers of State, who will be responsible for the result of that experiment. But there is one point of view I think far more important even than the important one to which I have called the attention of the House now. My hon. Friend the Member for the University of Oxford (Sir Robert Inglis), has said that in a colonial point of view the working of this system in the colonies is of great importance in its bearing on the mother country. I say, and I appeal to his judgment and to the judgment of the House, is it not of infinitely more importance as regards the colony? No doubt the question may be thought to affect the larger number at home; but in what intensity does it affect the colony? It is only one of the great social questions which you have to deal with in this country; one of the ends of the administration of justice—the disposal of a small portion of your population—4,000 or 5,000 criminals. But how stands the question as regards the colony to which you send those criminals? It is a question that affects the elements of society, and the moral character and future destiny of those colonies. And our own experience of transportation shows they may make the colony a scene revolting to the nation; and it would be scandalous to the national character that we should, for any convenience to ourselves, persist in such a system as that by which the penal colonies have been conducted in former times. Gentlemen seem to think that the horrors revealed with respect to Van Diemen's Land and Norfolk Island are something new; but I ask, have those Gentlemen read the evidence given before, and the report of the Transportation Committee of 1838, from which it appeared that not a single evil prevailed in Norfolk Island and Van Die-men's Land that had not exhibited itself to a formal extent in the colony of New South Wales? I do not think it at all necessary that I should go into detail to show here that the liberating 4,000 or 5,000 convicts from a system of imprisonment, or gang labour, or assignment, that prevailed in this colony, is a system calcu- lated to be exceedingly prejudicial to the character of the colony. I am bound to say that, considering all the circumstances of their unhappy case, the conduct of the emancipists was better than people could expect it to be, and the results more satisfactory than might be anticipated; but every person cognizant of what their state was, must say that state was to be lamented, and that it was a matter of regret that so important a colony as that ever should be formed out of such elements. I know it has been said the prosperity of New South Wales was owing to the importation of convict labour into the colony; but I believe the fact to be the reverse. I think convict labour in that country has on the whole been detrimental; for what was the result? It was calculated to prevent free immigration to that colony, where every man would possibly have to associate with convicts; and thus it made colonisation difficult to that part of the world. The hon. Gentleman has said that the prosperity of New South Wales is unexampled; but I say that with all its advantages it is the colony that has made least progress, save West Australia; and Southern Australia, within the same period, has progressed three times as rapidly. This is the main ground on which I rest my objection to continuing the system of transportation on the same footing as heretofore. It filled the country with a bad class of slave labour: the system had all the disadvantages of slave labour, and not one of its benefits; it, moreover, sent in a bad class of settlers, calculated to deteriorate the population in the infancy of society. Every one acknowledged that the founders of a new colony should endeavour to make it as much as possible a reflection of the mother country. But by the transportation system there is a half-and-half sort of society introduced, partly free and partly enslaved, in which it will be utterly impossible to establish the institutions of the mother country. And in what description of country did they continue the system? Was it in such a place as Siberia, to which the Russians sent their convicts; or the Portuguese colonies on the coast of Africa; or the French colonies? No, Sir, but in the most valuable field of colonisation in the whole circle of the British empire; and rather than perpetuate the evil in that part of the world, any inconvenience should be borne by the mother country. Even if it were less expensive, and even if they saved money by it, they should not pur- chase this end by devoting this part of the world to such purposes. I am not supporting a system that proposes to leave all those people in the society of the mother country. But it is a different thing for a colonial society to take the convict after he has gone through a reformatory process, the best that can be devised here, and to take him out under the old system. I would not treat with disrespect the opinion of the Judges; but I think there has been undue deference paid to them. It is not the practice to defer to them in all questions of penal jurisprudence. This is a matter for the Legislature, in which they have not always been guided by the opinion of the Judges; and our criminal code would not, I think, have been so improved if we had been altogether guided by them. I still maintain, in spite of my hon. Friend the Member for Somersetshire, that on looking to this opinion it does not militate at all against my view. The opinion was taken on certain leading questions very artfully put; and the main question, without mentioning any substitute, was, would they approve of doing away with transportation? That was, the whole horror of transportation; and to that was to be superadded separation from his friends, and absence from his native country. All the difference in the two systems was, that the punishment came first, and the exile afterwards. If there were any other terrors in transportation—if the convict, while confined in prison, knew he was to be carried to Norfolk Island and New South Wales, and plunged into that hotbed of vice, where, to use the expression of a convict to one of the Judges, "the heart of a man is taken out of him, and the heart of a beast put into him"—I declare that this is a punishment, a terror which no Legislature has a right to exercise. In fact, those parts of the system of punishment which there has been most anxiety to get rid of, are those which the House should be anxious to retain. The House has been alarmed with accounts of the terrible state of things in France, resulting from the liberation of convicts from the galleys; but let it remember, the state of England is very different from that of France. The system of punishment in the galleys is the most detestable ever practised in any civilized nation. That is acknowledged in the reports, and by many Members of the Legislature. Again, the police of France is most imperfect for the purpose of detecting ordinary crimes. It may be very efficient for political purposes, to which it has been always devoted; but it is the worst for the prevention of ordinary crimes that ever was seen in the civilized world. I cannot sit down without adverting to the situation in which Her Majesty's Government find themselves in dealing with this question. One would suppose, from the tone of hon. Gentlemen opposite, that this plan is a rash intermeddling with a satisfactory state of things, rather than one imposed on them by necessity, and to which they are compelled by the obvious failure of the previously prevailing system. A discussion on secondary punishments, a very hasty deliberation on the subject, would have been extremely unwise, if not impossible—and it is far better to try an experiment under the old law than to introduce a new one, which may require amendment in another year. It certainly is a great experiment on a very momentous subject. The pledge that has been asked for, the Government has given; and it has admitted it would not be right to alter the nature of secondary punishments without the sanction of Parliament. All Government asks is time to prepare a measure in reference to the subject to which it will ask the House to accede; and, under the circumstances, Government has acted rightly with respect to this great experiment, which has been forced on it by necessity. I do not pretend to claim for its decision a character of excessive wisdom; but I believe it is the best to which it could come, under the circumstances.

SIR F. KELLY

said, that if the right hon. Gentleman had fully met the right hon. Baronet's arguments, he (Sir F. Kelly) would not have risen to reply to him; but whilst the right hon. Gentleman had showed, with his usual ability, some of the evils of the present system, he had left wholly untouched the great substantial, legal, and constitutional objections to the present plan; and, unless he received some more definite promise from the Government, he should feel it his duty to give the Government plan in every stage his opposition. That plan went at once to repeal the provisions in every Act which inflicted the punishment for a hundred offences, of transportation, without any enactment of the Legislature; and it went without any information to the public, and without any instruction to the Judges, to nullify every sentence of transportation, and to apply some system which was not yet decided on. What was to be the substitute for the present system? What was its precise nature and extent? As yet they did not know; it was to be left to the exercise of the discretion of the Government, possibly after Parliament was prorogued, and certainly without Parliament being able to control it, or to suggest an opinion upon it. Before the House of Commons could be called upon to assent to such an extensive, and, as he believed, unprecedented change, without an Act of Parliament, he must ask whether this change were authorized; and, whether it could be done without such an Act? While the Judges were still to be called upon by statute annually to pronounce sentence of transportation on many thousands of offences, it was proposed to abolish transportation itself without any new statute; and it was proposed to be effected under the powers supposed to be given by the Act 5 George IV., c. 54, which was enacted with an entirely different view. And here he must ask whether any one in that or the other House of Parliament, or out of Parliament, distinctly pledged his legal reputation that this could be done under that Act? The proposal had been distinctly impeached by high authorities—by one who had been Lord Chancellor, and by another who had held high judicial office; and he would venture to inquire whether the noble and learned Lord who now held the office of Lord Chancellor had pledged his high reputation as to the legality of this scheme under that Act? for, if he had, he (Sir F. Kelly) would for the present, at least, withhold his own opinions. Or, had the noble and learned Lord, who had been distinguished at the bar, and who was now a Member of the Cabinet, pledged his legal acquirements to the legality of the scheme? And it would be a great surprise to him to hear such a pledge given by his learned Friends the Attorney General and Solicitor General, who had not yet spoken in that debate. The title of the Act under which it was proposed to carry out this scheme was, "An Act for the Transportation of Offenders from Great Britain;" and it enacted that it should be lawful to detain a person in prison until the offender should be transported according to law, or should be entitled to his liberty. At the time when this enactment passed, no such scheme as the present was ever contemplated. Another object of the Act of 5 George IV. was, that in those places where it was absolutely necessary prisoners should be confined previous to their being transported, they should be placed under proper supervision and control. So far was it from being ever meditated or thought of that imprisonment should be substituted for transportation, he could show that the very object of the right hon. Baronet the Member for Tamworth, and Sir Wilmot Horton, who brought in the Bill, was to render transportation quick, if not immediate and certain, and that transportation should be considered a punishment of the highest degree. Yet it was under this Act that the Ministers of the Crown were now, without any semblance of legal authority, but merely by virtue of the words, "or shall become entitled to his liberty,"—which words evidently meant, in case the prisoner should be pardoned, or sickness should render it impossible that the party should continue in the same place of imprisonment—it was under this Act, and by the force of these words, that the Government proceeded to repeal a hundred Acts of Parliament and to nullify all the sentences of the Judges where transportation was the punishment awarded. There were many cases in which the Judges were called upon to pronounce a sentence of imprisonment for a limited period—say for two years, or transportation for seven or fourteen years. Now, what would be the effect of the alteration proposed by Her Majesty's Government? A judge tried an offender; he was convicted; the judge had the power to sentence him to two years' imprisonment and no more; but he had also had the power to sentence him to transportation for fourteen years. Was it now to be contended, that Government, without an Act of Parliament, could nullify that sentence of transportation, and change it into imprisonment for seven or fourteen years? This might well raise serious doubts—he would not say more—whether this Act of 5 George IV. would warrant the course about to be taken by the Government. He would offer no opinion upon the subject; but he must earnestly warn the Government against adopting this important and extensive change, feeling that if it should prove that it was not sanctioned by high legal authority, there were high legal authorities against this construction. He would warn them, because it might lead them to this consequence—that if they extended imprisonment in any case in which a sentence of transportation had been passed one day beyond that period necessary for carrying the sentence of transportation into effect, they might incur the peril of every prisoner in such a case appealing for a writ of habeas corpus, and there by overturn the whole criminal law of the country, by giving them the power to obtain their liberty through the very process of the law itself. He would appeal to his hon. and learned Friend the Attorney General, whether this might not be done? While such high legal authorities had thrown serious doubts upon the construction of the Act, he ventured to ask whether it were expedient for the House to give legality to a proceeding of this nature? Undoubtedly it was in vain to deny thut the present system of transportation was productive of great evils, and that it required all the wisdom of the Legisture to remedy those evils; but would his hon. and learned Friend who last addressed the House (Mr. C. Buller) contend for the assumption of a power like that which the Government were now taking to themselves, because the evils might be great and the remedy difficult to devise? They had the evidence of no less a person than Sir George Arthur, upon whom his hon. and learned Friend had bestowed a high and well-deserved eulogy—that great as were the horrors of the system pursued in Norfolk Island, yet the evils even there might be remedied at a trifling expense to the mother country. Increased superintendence, and an increased number of separate apartments, would, in the judgment of that experienced person, afford a remedy for most of the evils of the system. It was with this remedy open for adoption by the Legislature and the Government, that Her Majesty's Ministers were now rushing forward to make a perilous experiment in the face of an Act of Parliament. The 5th of George IV. was really passed to render transportation more severe than before, and yet the Government were seeking by means of that very Act to abolish transportation altogether by changing it to imprisonment. He contended that it was not in the power of the Executive Government, when the law awarded a specific sentence, to substitute for that sentence some other and a different kind of punishment. It was an act entirely contrary to the spirit of the constitution. The most effectual mode of deterring the evil-minded from the commission of crime was to enact a law fixing punishments that should be immediate and certain; and we had, in transportation, a punishment fixed by many statutes, and which all Judges in England, Scotland, and Ireland, and, in fact, every individual con- corned in the administration of criminal justice, concurred in thinking the best prevention of crime. Upon this point all concurred; yet it was now proposed to take this punishment away. There was another consequence of this change to which he begged the attention of Her Majesty's Government. Until an Act of Parliament was passed, which distinctly pointed out and defined the sentences to be passed by judges, and declared what punishments were to he affixed to felonies not punishable with transportation, the Judges of the land would be placed in a situation, not only unconstitutional, but which it was unfair to themselves to place them in. It was unjust to society to place the judge who tried an offender, according to the statute law of the land, in such a situation that, when called to pronounce sentence, he did not know what sentence to pronounce that would he carried into effect, and knew not what admonition to address to the criminal. It was exposing a judge to ridicule thus to nullify his sentence, and to say that he should pronounce with gravity one of those impressive admonitions which often had such a powerful effect, not only upon the criminal himself but upon the bystanders, when the criminal and all who heard that admonition knew that it was a mere mockery, as it was not intended to be carried into effect. Was it just to society, was it right, was it wise, was it fair to the Judges, to place them in such a situation? One consideration more. He did not deny that, with respect to many offences now punishable with transportation, it might he better to substitute some moderate amount of imprisonment with or without labour, at the discretion of the judge. But there were also many classes of offences of a far graver character, for which, unless the next severe punishment to death were inflicted, there would be no security against the commission of the most terrible crimes. There were crimes which had been punishable with death—such as murder and arson—where the disinclination of juries to find a verdict of guilty led them to convict the offender of manslaughter, or some lesser offence than he was charged with, but which deserved a punishment short only of death. How was it meant to deal with those cases? Let the Government define what they meant to do with them. Did they mean to say they would at once publish to the world, that if a person charged with murder could get an individual upon a jury who objected to the punishment of death, or his counsel could procure a mitigated sentence of transportation, some other sentence was to be passed which nobody knew? Did they mean to hold out that transportation was gone, and that the sentence was to be something undefined, something unknown, something which the Secretary of State would not or could not announce? He was far from saying that improvements might not he introduced into the system of transportation, and that extensive reforms might not be effected in the colonies; but he asked the House to pause before it consented to the total abolition of transportation, before it sanctioned a change of very doubtful utility. He had only one more observation to make with respect to form. Although, as he had said, he considered the Bill open to serious objections, they might be met and obviated in Committee; he should not, therefore, be justified in voting against its going into a Committee. But if he was to understand that this Bill was brought forward, coupled with other measures, and to be considered as part of the machinery by which the new system was to be carried into effect without an Act of Parliament, unless he heard a distinct pledge given by Her Majesty's Government that this was a temporary experiment and limited to the approaching recess, and that a measure was to be brought forward hereafter in the shape of a Bill, he should feel it to he his duty to oppose this Bill in all its forms and stages in this House.

LORD J. RUSSELL

No one can doubt the great professional ability of the hon. and learned Gentleman who has just sat down; and if this was a question in which we had to determine only the legal interpretation of an Act of Parliament, I should feel myself quite unequal to contend with the hon. and learned Gentleman. But I can only express my astonishment that the hon. and learned Gentleman, so well acquainted as he is with his profession, so eminent as he is in that profession, should have shown himself so totally ignorant of the administration of the criminal law of the land. Any one would suppose, who had heard the hon. and learned Gentleman, that the Judges of the land pronounced certain sentences, and that those sentences were exactly, regularly, and invariably carried into effect; that when a sentence of death, or a sentence of transportation was passed, the execution of that sentence immediately followed the pronouncing of the sentence. The hon. and learned Gentle- man says, it would he an unconstitutional course; and would cover the Judges with ridicule, if capital or other punishments were to be done away with by the Executive Government. The hon. and learned Gentleman ought to be aware that capital punishments had been done away with by the recommendation of the Judges and the acts of the Executive Government, or by the Executive Government alone, long before any Act of Parliament had been passed for the repeal of those capital punishments. There is hardly any offence that I could name with respect to which this was not the case. I cannot state the precise number now; but not many years ago, scarcely one sentence out of ten passed to inflict capital punishment, was ever carried into effect, there being many offences with respect to which no one would ever have dreamed that the strict sentences would be put into operation; and if they had been carried into effect, the whole world would have cried out against the barbarity of the Government. And what is the present state of affairs; and what has been the state of affairs for the last ten years? When I was Secretary of State for the Home Department, and since then, there have been several offences, with respect to which the Judge on the bench passes sentence, and immediately afterwards writes a letter to the Secretary of State, desiring that the sentence may not be carried into effect, but that it may be commuted into some other kind of punishment. Yet the hon. and learned Gentleman says, that the criminal law is turned into ridicule, if the sentence actually pronounced be not carried into effect. Then with respect to transportation, which is the subject now before us, according to the hon. and learned Gentleman, here is a great change proposed, and a most unconstitutional step taken by the Government. There are, he says, to be persons actually sentenced to be transported, and yet that sentence is not to be carried into effect. Why, this has been the case for the last twenty-five or thirty years. Sentences of transportation have been continually pronounced and not carried into execution; and one Act of the right hon. Gentleman (Sir J. Graham), when he was Secretary of State, was, to order that certain prisoners should be sent to Pentonville prison, there to be confined for eighteen months, and afterwards to be transported. I was one of the Commissioners of Pentonville prison—having been appointed on the advice of the right hon. Gentleman—and was one of those who, in the capacity of Commissioner, asked him to allow a great number of those prisoners to receive conditional pardons on arriving in the colony—the very thing against which the hon. Gentleman protests, namely, the severity of the punishment being undergone in this country, and not in the colony; and last year, the hon. Gentleman being-Solicitor General, the right hon. Gentleman took on himself to advise the Crown to suspend transportation for two years. This was suspending the law for some hundreds of offences; and according to the hon. and learned Gentleman the law was thereby turned into ridicule, and the venerable Judges made the laughing-stock of the country for pronouncing sentences which were not to be carried into effect. [Sir J. GRAHAM begged to correct the noble Lord. Before he left office, transportation was not suspended; but when he left office he stated to his successor that he was satisfied the time had arrived when it ought to be suspended.] The right hon. Gentleman was of opinion that transportation ought to be suspended, in which opinion Mr. Gladstone concurred; and I cannot suppose that the right hon. Gentleman would recommend a thing which he thought illegal; and if he had had any doubt on the subject, the law officers of the Crown would have been consulted. But I believe that the practice which has been pursued of detaining prisoners in the hulks—a practice pursued when Lord Eldon, Lord Lyndhurst, Lord Brougham, and Lord Cottenham were Chancellors, was a practice directly sanctioned by the law. I at least can read the Act of Parliament in no other way. The history of transportation in later days, I will endeavour shortly to state. After the American war, when there was an end to transportation to the North American colonies, an Act was passed sanctioning transportation under certain conditions, and transportation took place to New South Wales. In 1816, an Act was passed empowering the Secretary of State to send persons sentenced to transportation to certain prisons of confinement within this country, or in rivers or ports of the country, there to be kept until their sentence expired, or until they were otherwise set at liberty by pardon from the Crown or otherwise. The origin of that Act, and I believe, of some subsequent changes which were made, was, that there was a great difficulty in disposing of the number of transported felons in the colonies. Lord Bathurst was so convinced of this difficulty that he attempted to found a new settlement, and proposed to grant lands—a million of acres—to a certain company, on the condition that they should take a certain number of felons to be employed by them. Under the sense of this distress and difficulty as to employing these convicts, the Act of 1824 was passed, which contained a clause to which the hon. and learned Gentleman has very slightly referred, as if it only incidentally noticed the detention of convicts on board the hulks, but which seems to me to embrace the very practice which I believe before 1824—namely, in 1815, but certainly since 1824, under the Act of that year, has been in operation. The Act says that it shall be lawful from time to time, by warrant under sign-manual of the King, to appoint places of confinement in England and Wales, either on land or on board of vessels, or within the limits of some port or harbour in England and Wales, for the confinement of offenders under sentence of transportation; and it afterwards says, that every offender so removed should continue in the same place of confinement, or be removed to some other such place as one of Her Majesty's Principal Secretaries of State should from time to time direct, until such offender should be transported or be entitled to his liberty, or until one of the Principal Secretaries of State should direct the return of the offender to the gaol from which he had been removed. Now the words "until he shall be entitled to his liberty" may mean, I think, until the term of his sentence shall expire. What was done under this Act? Nearly all, and at some periods all, those who were sentenced by the Judges to transportation for seven years, were sent to the hulks, or put to hard labour, according to a regular system; and at the end of a fixed term of four years, if they behaved well, they did, according to the established practice, receive a pardon from the Crown, signed by one of the Principal Secretaries of State. The sentence of transportation, therefore, was not carried into effect, but was commuted into confinement on board the hulks for a period of four years. This has gone on from 1824 until 1847, under learned and eminent persons holding the office of Lord Chancellor, and while many other eminent and learned persons were the law officers of the Crown. This, I repeat, has gone on until 1847, and no one ever raised a doubt as to the legality of the practice. Yet whilst this practice was pursued, the hon. and learned Gentleman represents, though not correctly, I believe, that the learned Judges, in passing sentences of seven years' transportation, thought that every man so sentenced was sent to New South Wales, although, in fact, they were regularly sent to the hulks. My belief is that such was the intention of the Legislature; and this intention was carried into effect by the different Secretaries of State considering the Act of Parliament sufficient authority for its being done. But then the hon. and learned Gentleman says that this is a great change of the ancient system—there is to be imprisonment for a certain period, labour in public works, tickets of leave, or exile, as the hon. and learned Gentleman calls it, to a distant colony. Now, with respect to the treatment of prisoners when they reached the colonies, I do not believe that the learned Judges ever had in contemplation, or ever attempted to define, what was the system to be carried into effect when these persons were sent to the colonies. In fact, it was impossible they could do so, because it changed from time to time. At one time it was a system of assignment, which has been described as a system of slavery. But was that uniform? No; for when those persons were sent to Bermuda, they were sent to a system of hard labour. Yet the learned Judge might pronounce the sentence upon two persons during the circuit, and one of them might be sent to Bermuda, and the other to Tasmania; they underwent two different punishments, and his sentence did not affect the case one way or the other. That system of assignment was changed, I think, when I was Secretary of State. I put an end to it. Lord Stanley substituted for it an elaborate system of probation on public works, with certain gradations; hut with all that, the sentence was not changed—the Act of Parliament was not changed; whether it was assignment only in New South Wales—whether it was public works at Bermuda—whether it was the system of probation in Van Diemen's Land—whichever plan was carried out, the sentence of the Judge remained the same, and the Act of Parliament was not altered, whatever changes took place. And now the hon. and learned Gentleman says, and other Gentlemen have said so before, that, after all these changes, to have another system by which one portion of the time is to be passed in separate confinement here, and another portion upon public works in this country, and another portion in the colony with ticket of leave, is highly unconstitutional. One system may be wiser—one system may be more efficacious—than the other; but that there should be any difference between them in point of legality and constitutional principle, is what I am utterly unable to conceive. This system of transportation upon ticket of leave, the hon. and learned Gentleman represented as if it were mere banishment, and the person might go and travel where he liked. The ticket-of-leave system, like the assignment system, is a system of severe restrictions, to be carried into effect by colonial law and by means of colonial officers; it is a system entirely different from exile or banishment; it may be good or it may be bad, but it is not a system with which the sentences of the Judges have anything to do. The sentences they have passed in former years have had—the sentences they may now pass have—nothing to do with it; the question is, when the sentence of transportation is passed, what is the best mode of carrying that sentence into effect? And now, Sir, having stated thus much to vindicate the Government from the charge of introducing a system totally at variance with the law, I am content to rest the changes which have been proposed upon the speeches that have been made by my right hon. Friend near mo (Sir G. Grey), by my hon. Friend the Under Secretary for the Colonies (Mr. Hawes), and by the Judge Advocate (Mr. C. Buller). I think the system which is now proposed will be an improvement upon the present system. I think we must adopt some change or other; we are forced to it by necessity. The state of Van Diemen's Land, and the horrible accounts we have, would not allow the late Government to contemplate the continuance of transportation as it has been carried on during the last seven or eight years; they were of opinion that that system ought to he abandoned. Being abandoned, it is obvious that you must have, at least during those two years for which they proposed to abandon it, some mode of dealing with these people. The right hon. Baronet (Sir J. Graham) says—it is part of his argument—that there are not enough prisons and separate cells to confine at once the whole of those who are sentenced to transportation. Why, then, if they are not to be actually transported, and you have not cells enough to confine them in prisons, you must have some subsidiary means, such as work on the hulks, or on some public works or other, which shall be part of the system to be adopted. So far, at least, the House must see that it is a matter of necessity. With respect to the system to be adopted, I do not differ so much from the hon. and learned Gentleman who has just spoken. I think with him. I thought many years ago that it was desirable, as we have taken away the punishment of death from many offences, so likewise there were many offences to which the punishment of transportation was applied by law to which it ought no longer to be applied. I own I have seen many cases myself, in which I thought that sentence ought not to have been pronounced; and, therefore, when I was formerly in office, I had in contemplation a change in that respect in the law. But a change in the law, the hon. and learned Gentleman must see, is not to be made without great deliberation; it requires a very mature consideration of each particular act, and the nature of each particular offence, before we draw any line between those acts which shall hereafter bear the sentence of transportation, and those which shall be punished only with imprisonment. To that subject the Government will devote their most serious attention. To the subject likewise of a Bill by which the sentence should be defined more in accordance with the practice that is to be adopted, they will pay attention, with the view of bringing in such a Bill in the course of the next Session. But I must say I think it would have been unwise to attempt those two measures in the present Session, cither a measure taking away the punishment of transportation from a large number of offences, or the measure for more exactly defining the sentences that were to be passed, and making them more in accordance with the practice which Government and Parliament proposed to adopt. With these explanations I trust the House will have no objection to go into Committee on these Bills. So far from wishing to commit the House by pledging them to any plan the Government may in future bring forward, I was rather anxious that these Bills should be allowed to pass by themselves without discussion, except in Committee, and that the question of transportation should have been raised upon a different Motion, solely with a view to that subject; but the noble Lord the Member for Hertford did not choose to take that course, and according to his wish the ques- tion of transportation has been discussed upon these Bills. I think there is no subject of more importance—none more worthy of the attention of the House. But I hope that when the House does come seriously to consider any Bill having that question directly in view, it will consider the benefit of the colonies, as well as the benefit of the mother country. I own I think it has been too much the custom both to pass Acts imposing the penalty of transportation, and to pass sentences of transportation, with a view rather to the convenience of this country than the reformation of persons who were known to be of vicious habits, or the interests of the colony to which they were sent. We are bound to consider those interests likewise. We are bound, when we are planting provinces, perhaps in future times to be empires, in other parts of the globe, to endeavour that they should not be merely seats of malefactors and of convicts, but communities fitted to set an example of virtue and of happiness; and not to make plantations, as Lord Bacon says, of the mere scum of the land.

The House divided:—Ayes 124; Noes 76: Majority 48.

List of the AYES.
Acland, Sir T. D.	Duncan, G.
Acland, T. D.	Dundas, Adm.
Adderley, C. B.	Dundas, Sir D.
Aldam, W.	Ebrington, Visct.
Anson, hon. Col.	Escott, B.
Baine, W.	Esmonde, Sir T.
Baring, rt. hon. F. T.	Etwall, R.
Barron, Sir H. W.	Evans, W.
Bellew, R. M.	Ewart, W.
Berkeley, hon. Capt.	Ferguson, Sir R. A.
Berkeley, hon. H. F.	Fleetwood, Sir P. H.
Bernal, R.	Forster, M.
Bodkin, W. H.	Fox, C. R.
Bowring, Dr.	Gibson, rt. hon. T. M.
Brotherton, J.	Gladstone, Capt.
Buller, C.	Gore, hon. R.
Buller, E.	Grey, rt. hon. Sir G.
Burke, T. J.	Grosvenor, Earl
Byng, rt. hon. G. S.	Guest, Sir J.
Callaghan, D.	Hallyburton, Ld. J. F. G.
Carew, W. H. P.	Hanmer, Sir J.
Cavendish, hon. C. C.	Hawes, B.
Cavendish, hon. G. H.	Heathcoat, J.
Chapman, B.	Hobhouse, rt. hon. Sir J.
Christie, W. D.	Hollond, R.
Colebrooke, Sir T. E.	Hope, A.
Corbally, M. E.	Howard, hon. C. W. G.
Courtenay, Lord	Jervis, Sir J.
Cowper, hon. W. F.	Langston, J. H.
Craig, W. G.	Lawless, hon. C.
Dalrymple, Capt.	Layard, Major
Dashwood, G. H.	Lemon, Sir C.
Dawson, hon. T. V.	Lindsay, Col.
Dickinson, F. H.	Macaulay, rt. hn. T. B.
Drax, J. S. W.	M'Carthy, A.

Mainwaring, T.	Russell, Lord C. J. F.
Marjoribanks, S.	Rutherfurd, A.
Maule, rt. hon. F.	Sandon, Visct.
Mitchell, T. A.	Seymour, Lord
Molesworth, Sir W.	Shelburne, Earl of
Monahan, J. H.	Somers, J. P.
Morpeth, Visct.	Somerville, Sir W. M.
Morris, D.	Stansfield, W. R. C.
Morison, Gen.	Stanton, W. H.
Mostyn, hon. E. M. L.	Strickland, Sir G.
Neville, R.	Strutt, rt. hon. E.
O'Brien, J.	Talbot, C. R. M.
O'Connell, M. J.	Thornely, T.
O'Ferrall, R. M.	Towneley, J.
Owen, Sir J.	Trelawny, J. S.
Parker, J.	Villiers, hon. C.
Perfect, R.	Vivian, J. H.
Philips, M.	Ward, H. G.
Pinney, W.	Wawn, J. T.
Plumridge, Capt.	Williams, W.
Price, Sir R.	Winnington, Sir T. E.
Protheroe, E. D.	Wodehouse, E.
Pusey, P.	Wood, rt. hon. Sir C.
Ricardo, J. L.	Wyse, T.
Rice, E. R.	Yorke, H. R.
Rich, H.
Romilly, J.	TELLERS.
Ross, D. R.	Hill, Lord M.
Russell, Lord J.	Tufnell, H.

List of the NOES.
Alford, Visct.	Hildyard, T. B. T.
Archdall, Capt. M.	Hodgson, R.
Bagot, hon. W.	Hotham, Lord
Bankes, G.	Hudson, G.
Baskerville, T. B. M.	Inglis, Sir R. H.
Bennet, P.	Jolliffe, Sir W. G. H.
Bentinck, Lord G.	Lennox, Lord G. H. G.
Bentinck, Lord H.	Lowther, hon. Col.
Beresford, Major	Masterman, J.
Berkeley, H. C.	Miles, P. W. S.
Blackburne, J. I.	Miles, W.
Blackstone, W. S.	Morgan, O.
Boyd, J.	Morgan, Sir C.
Brisco, M.	Mundy, E. M.
Broadley, H.	Newdegate, C. N.
Buck, L. W.	Newport, Visct.
Buller, Sir J. Y.	Packe, C. W.
Burrell, Sir C. N.	Palmer, R.
Clive, Visct.	Prime, R.
Codrington, Sir W.	Rashleigh, W.
Cole, hon. H. A.	Reid, Col.
Colville, C. R.	Rolleston, Col.
Compton, H. C.	Round, J.
Davies, D. A. S.	Seymer, H. K.
Deedes, W.	Shaw, rt. hon. F.
Duckworth, Sir J. T. B.	Sibthorp, Col.
Du Pre, C. G.	Spooner, R.
East, Sir J. B.	Stanley, E.
Farnham, E. B.	Thompson, Mr. Ald.
Fellowes, E.	Thornhill, G.
Floyer, J.	Tollemache, J.
Forbes, W.	Trevor, hon. G. R.
Fuller, A. E.	Trollope, Sir J.
Gardner, J. D.	Verner, Sir W.
Goring, C.	Vyse, H.
Granby, Marq. of	Waddington, H. S.
Greene, T.
Grogan, E.	TELLERS.
Hamilton, G. A.	Kelly, Sir F.
Harris, hon. Capt.	Law, hon. C. E.

Bill considered in Committee. Committee to sit again.

House adjourned at half-past One o'clock.