HC Deb 14 February 1850 vol 108 cc775-808

rose to move for leave to bring in a Bill to repeal part of the Act 5 George IV., relative to transportation of felons. He was not now about to raise the general question of transportation, or to propose anything which should lead to an abandonment of that mode of punishment. The object of his Motion was simply this, that when for the future it should be necessary to make choice of a new penal settlement (and by that he did not mean the revival of an old settlement, but the breaking of new ground), that choice should be made not by the Colonial Secretary, but by Act of Parliament. He desired to state at once to the House that his present proposal had been suggested by the recommendation of those great petitions from the Cape, which he had lately had the honour to present in this House, and which Lord Stanley had presented in the other House of Parliament, and supported with so much eloquence. Those large petitions, emanating from public meetings and municipalities in South Africa, not only prayed to be taken out of the category of penal settlements—they not only asked the revocation of the Order in Council making them so, but they prayed the repeal altogether of the Act of the 5th Geo. IV., enabling the Colonial Office to make any fresh penal settlements, and prayed further that the question should thereafter be left to the discretion of Parliament. The noble Earl at the head of the Colonial Department had, in the most frank and manly; manner, acknowledged his error, and revoked the Order in Council, and he (Mr. Adderley) would be the last man to revive anything tending to resuscitate those feelings of irritation which had arisen in consequence of that Order in Council. He knew it might be said that, the inhabitants of the Cape having defended themselves from the danger of being made a penal settlement, they ought now to rest satisfied; but he was not of that opinion. At the same time, he had no doubt they were quite safe from the future infliction of any such wrong. Their conduct was so manly and spirited that they need not fear any future danger of that character; but other colonies were not so secure; and if that had been the first time, the inhabitants of the Cape might fairly hope it would be the last, on which they would be exposed to the hazard of being made a penal settlement. But it was not the first, nor the second, nor the third. When the noble Lord at the head of the Government, Lord Stanley, and the right hon. Gentleman the Member for the University of Oxford, were respectively at the head of the Colonial Office, attempts were made to convert the Cape into a penal settlement; and the occasion to which he now referred was the fourth time that a similar attempt had been made. True it was that attempt had been unsuccessful, but that very circumstance only rendered the situation of other colonies more unsafe. France might protect Guernsey and Jersey, and perhaps Canada could protect itself; but what should protect Jamaica, Ceylon, and the Mauritius, without some further guarantee with respect to the question of transportation? Now, only part of the Order in Council had been revoked. That part of the order with respect to the transportation of felons had been abolished, but the part bearing reference to the reception of military convicts had been retained. When it was proposed to send out military convicts to the Cape, it was known that Sir Harry Smith had spoken of the suggestion in terms sufficiently strong to bring down a sharp reprimand from the noble Lord at the head of the colonial department, who contended that a distinction should be drawn between military and other convicts. Now he (Mr. Adderley) could hardly understand this distinction; for although the Mutiny Act exposed military convicts to only certain punishments, and provided that they should be sent to fortresses and other places of confinement, they might not be so sent, or at all events on their release they were as likely to become scattered throughout the colonies as other convicts. Nothing could have been worse than the hasty and ill-considered changes made by the Colonial Office, or the mode of classifying convicts sentenced to transportation to the Cape; but he did not desire to cast the slightest reflection upon the noble Lord, who was to blame rather for the manner of carrying out the system than for originating it. The truth was, that it was from the department of the right hon. Gentleman the Home Secretary that the pressure came; for when an accumulation of convicts arose, the Colonial Secretary was expected to make provision for them. In an important correspondence which took place between Lord Stanley and Sir James Graham in 1842, the former had complained of the mixed and invidious duties thus thrust upon him, leading to a complication both of accounts and functions. Believing, therefore, that the Colonial Secretary was to blame rather for the process of the system than for its origin, far be it from him to intend this Motion as one of censure on the noble Earl. He had heard it said by Gentlemen out of doors, that this Motion trenched on the prerogative of Her Majesty; and therefore he was anxious to show that it would in no way have that effect. In the first place, transportation was no matter of prerogative whatever. It was unknown to the common law; it was simply a matter of statute; and the 39th Elizabeth was the first statute on the subject which empowered Her Majesty, with the advice of Her Privy Council—two Members of which were named, the Lord Chancellor and the Lord Treasurer—to name places within Her dominions to which rogues and vagabonds might be sent. But that Act, so far from recognising any prerogative of the Queen, showed that Parliament gave very limited and restricted powers to Her Majesty, naming what the Crown should not do as well as what it should do, and preventing any advantage from being taken under another Act, to bring Irish rogues into England on pretence of transportation. Therefore that Act of Elizabeth could not be considered a precedent for prerogative, but, on the contrary, was the strict limitation of a power conferred by Parliament. The next Act on the subject, excepting the Habeas Corpus Act (which merely incidentally alluded to transportation), was the 4th of George I This Act was perhaps the strongest case he had in point, because it took the power entirely out of the hands of the Crown, leaving to Parliament the choice of the places to which convicts should be sent, for it stated that they should no longer be sent to the West Indies, but to America. And so strongly was that Act supposed to abolish the power of the Crown, that the next Act, an Act of the greatest importance on this subject, namely, the 19th of George III., revived the power, previously entirely abrogated, of the Crown, but only in a very limited manner. It gave the Crown the power, with the advice of the Privy Council, and also with the advice and co-operation of three sympathisers, to name and appoint the places beyond the seas to which felons should be sent. The next point elucidating this subject, was the question which arose in a debate in that House with regard to the independence of America, when America being closed against England as a field for transportation, it became a serious difficulty to know where this country should send her dangerous accumulation of felons. Very many places were suggested, the chief place proposed, however, being Sierra Leone; and Mr. Burke, in a famous speech, remonstrated against such an unhealthy climate, as there was no Act of Parliament allowing convicts, whatever their degree of criminality, to be sent to an unhealthy climate like that of Sierra Leone. This showed that Parliament had the power to discuss and decide on what places should be adopted to send criminals to. And it appeared that the 19th George III. was repealed; for the next Act, the 24th George III., c. 56, ran in nearly the same language as the present Transportation Act, although with a very material difference, because the 24th George III., c. 56, only gave the Crown, with the advice of the Privy Council, the power of naming the place to which prisoners should be sent who were included in lists made out by the Judges of persons sentenced by them to transportation; but only to name the place for the prisoners specified in the Judges' lists, and no others. Three years afterwards the 27th George III. was passed, reciting the former Act, stating that under it New South Wales and Botany Bay had been selected for the transportation of two lists given in by the Judges. And it was important to observe, that Parliament found it necessary to pass a special Act to authorise a court of jurisdiction in New South Wales, that should carry on judicial proceedings in a more summary manner than the law had ever recogised before, doing away with trial by jury, and making a perpetual martial law hang over the colony, which it did for thirty years, until a brilliant debate in the House put an end to it, but not before the greatest damage had been done to our colonial system. The next Act was the present Transportation Act, under which the recent Order in Council had been made to constitute the Cape of Good Hope, amongst other colonies, a penal station. The 5th George IV., c. 84, only differed from the 24th George III., c. 56, in the fact, that it gave the Crown the power not only to name particular places to which criminals should be sent, but to name any places within our dominions, at any time, to which any felons or other criminals under sentence of transportation should be sent—in fact, to name any particular places within our dominions, and designate them permanently penal stations. To that Act it was he greatly objected, as most obnoxious in its operation to the colonists, and also injurious to the penal system of the country. If anybody thought he proposed an interference with the prerogative of the Crown, and held that there was an analogy between this power and the power of appointing places for gaols, he thought it might soon be seen that there was no such analogy. In the first place, Earl Grey, in his last despatch to the Cape, drew a distinction, and admitted the difference between the power to select particular places of confinement and the power to select places in which to distribute felons throughout a country at large, on tickets of leave. But further, when any place, such as Reigate or Portland, was to be selected for a place of confinement, to be supported either from the county rate or the Consolidated Fund, it must be established by special or general Act of Parliament; at all events, an Act of Parliament was always necessary to raise the funds and give the Crown the means of carrying the plan into effect. Therefore, the protection which he now wished to obtain for the colonies was enjoyed by the people at home—namely, that the power could not be exercised at a moment's notice, but must come regularly before Parliament, and allow time for the expression of public opinion before entering upon the exercise of such a power. He thought there could be no difficulty in proving to all those acquainted with the history of transportation for the last twelve years that there were good reasons for effecting a change in the present system. Experience too abundantly proved that the worst evil of the existing system was the disastrous uncertainty which it occasioned; and he really believed that it would be better to make a colony for a penal station, than to expose it to the uncertain chance of being suddenly fixed upon at any time for such a purpose. He would refer to the case of the Cape, as the best illustration of the evils of this uncertainty. In 1848, what with having transportation discontinued in New South Wales, and closed for two years in Van Diemen's Land, and having the establishment broken up at Norfolk Island, the perplexity of finding an outlet for our convicts became almost as great as at the independence of America; and the Home Secretary had to insist on the Colonial Secretary providing some means for relieving the gaols at home of their overcrowded inmates. A new system was consequently adopted, reflecting very great honour on those who advised it; and he thought the letter and the despatch written on the subject by the right hon. Baronet the Home Secretary, and by Earl Grey, showed the greatest statesmanship, ability, and goodness of heart. He would not now discuss the system, but merely point to the mode in which the Colonial Secretary had been compelled to act under the emergency. New South Wales, which had been recently abandoned, was again revived as the place most accustomed to transportation; Van Die-men's Land was again opened. But this was not enough; and the noble Lord, thinking the Cape a very quiet settlement, not well able to take care of itself, and with nobody else seeming to care for it, pitched upon it rather than select a larger colony, and one better adapted for his purpose, but which might be capable of resisting the experiment. An order was sent by Earl Grey to the Governor of the Cape to ascertain the feeling of the colony on the project; but before an answer could be received, intelligence reached this country that Bermuda was in such a condition that the Governor found it no longer possible to preserve discipline on his station. The emergency being so great, and there being no time for reflection, unfortunately for this country, Earl Grey, without waiting for an answer to the despatch he had sent to the Cape, immediately ordered a batch of 300 convicts from Bermuda to the Cape. It was certainly most unfortunate that the worst period—namely, between asking the consent of the colony and the arrival of its answer—was selected for taking this step. He would not go through the history of the rapid succession of events that followed—the unanimous opposition of the colonists at the Cape, and a resistance on their part which he thought redounded greatly to their honour—he need not mention how the unfortunate Governor, Sir Harry Smith, was made to pledge himself to the colonists that no convicts would be landed at the Cape without their consent, and in a few short weeks afterwards he found himself, as a military man, compelled to obey orders, and was made to appear to break his solemn pledge. He need not recount all the disastrous irritation that ensued, and the formation of a league among the colonists to resist the Government, all originating under the feeling that their confidence had been violated. He need not recount the disastrous shifting and changing of the Government in consequence—namely, that the Cape was first made a penal colony; afterwards, that such an intention was retracted; then it was said that this first batch of 300 convicts were all that would be sent; then it was attempted to be shown that they were a very innocent batch, and only Irish—only peasants—only of that description whose offence could hardly be called an offence; in fact, their offences were so diluted and so softened down, that at last one could hardly tell why on earth such persons should be transported at all, or what difference there was between them and free emigrants. At last, after all these miserable shifts and petty excuses, came what he thought most disastrous of all, namely, that flags of passive resistance were hoisted on mastheads, and ensigns displayed, teaching other colonies that when they had any grievance to complain of, they had only to resist the Home Government, and redress would be conceded. And look at the strong temptation to acts of tyranny which the position of the Colonial Secretary created. At this moment, what had Earl Grey done? He had not withdrawn the military convicts—they were at the Cape still. And why did he wait till November before ordering the convict ship off from the Cape? Because he actually had it in his mind up till that moment that it was possible the colonists, after being goaded and irritated for twelve months, might yield at last, and allow him to carry his point. The state of the Colonial Secretary's mind could be conceived by certain little incidental episodes. In the middle of all this discontent and agitation at the Cape, Earl Grey thought it right—or his officers thought it right, and he must answer for them—to enter into a correspondence with the Philanthropic Society, discussing the propriety of attempting to send juvenile convicts to South Africa, where the spawn of an older class of criminals might be stealthily deposited, and allowed to breed without observation. The fact of entertaining such a proposition while the Cape was in such an excited state as he had described, showed how the despotic and anomalous power of the Colonial Minister warped his mind, and rendered him utterly incapable of seeing what must be the natural consequence of such conduct. He would not trespass on the time of the House any longer; but he thought he had made out a case for an immediate alteration in the system of transportation to the colonies, and shown that it could easily be effected without trenching upon the prerogative of the Crown; and he therefore concluded by asking the House to repeal that portion of the existing Act which gave Her Majesty in Council the discretion of naming any colony to which convicts sentenced to transportation should be sent.

Motion made, and Question put— That leave be given to bring in a Bill to repeal that part of the Act 5 Geo. IV. which empowers Her Majesty, with the advice of Her Privy Council, to appoint any places in Her Majesty's Dominions for the Transportation of Felons and others under sentence of punishment.


seconded the Motion.


said, the hon. Member for North Staffordshire had very truly stated his Motion to be a matter which concerned the Secretary of State for the Home Department rather than the Colonial Secretary; but he did not understand how the course he had taken, or the measures which he had proposed, could do other than increase their embarrassments in dealing with convicts under sentence of transportation. The hon. Member proposed to repeal the power given by statute to the Crown to fix places, under Orders in Council, to which convicts might be conveyed; but he did not propose any substitute for those places, except such substitutes as Parliament might hereafter name. The hon. Member proposed to repeal the clause in the Transportation Act, 5th of Geo. IV., cap. 84, which gave the Queen in Council the power of which he complained; but there were statutes imposing sentences of transportation, and which gave the judges as to some offences no discretion respecting the passing sentence of transportation beyond the seas. He would ask the hon. Member how it would be possible to carry these sentences into effect if the power now existing in the Crown to carry them out were taken away? This power of fixing the places of transportation had existed in the Crown under the powers conferred by Parliament ever since transportation had been known to the statute law of this country. And since the period when by the changes in the criminal code the punishment of transportation became the main secondary punishment of criminals in this country, it had been the more necessary that this power should exist to enable the Government to find the means of carrying into effect sentences of transportation. The hon. Member had rested his whole case upon the recent occurrences at the Cape of Good Hope, and had referred to them as the ground for complaining of what he had represented as the despotic use of the power vested in the Queen in Council. Now, he would not advert at any length to what had happened at the Cape, because last year he had stated the grounds upon which the Government had acted. But he would repeat, that the Government had never intended to enter into a contest with the inhabitants of that colony on the question, and had always proposed that if the opinion of the colonists were adverse to the reception of the convicts, their reception should not be insisted on. The hon. Gentleman stated that Sir H. Smith, in the course of these transactions, had violated his word. He (Sir G. Grey) did not know to what pledge the hon. Member referred. He stated that Sir Harry Smith had given the assurance that the convicts should not be landed; but he must be in possession of more information than himself (Sir G. Grey) if he said that Sir Harry Smith had violated any such promise. All who knew that distinguished officer would feel that he was utterly incapable of doing so. He believed the convicts had not been landed. The hon. Member might possibly refer to the military convicts; but military convicts, in fact, were not sent there under the Order in Council, but in virtue of the Mutiny Act.


had said that Sir Harry Smith had been made to "appear" to have broken his word.


The hon. Gentleman said the Cape had been made a penal settlement; but it did not follow because these convicts had been sent there that the colony had been made a penal settlement. Convicts were sent to Gibraltar, but that was not a penal settlement. Convicts were also sent to Bermuda. The hon. Member, however, might say, they were not sent there under the powers of the clause he wished to repeal. This was the fact, and if the clause in question should be repealed, there would still remain a power under the 13th section of the Act to keep convicts at hard labour in any colony as at present at Gibraltar and Bermuda. Convicts under sentence of transportation might be sent to those or any other colonies just as they might be sent to Woolwich or Portland, or any other place within the united kingdom, until they were otherwise disposed of. He did not wish to refer to the opposition made by the colonists at the Cape to the reception of the convicts further than to say, that although he could respect the feelings which made them opposed to the reception of convicts, he must not be understood to concur in the eulogy of the hon. Member with regard to the mode in which they had expressed their dissent. But when the bon. Member said that what had occurred at the Cape showed the absolute necessity for a change in the power now possessed by the Queen in Council, he (Sir G. Grey) thought a contrary inference might be drawn there-from. If it were the fact, as stated by the hon. Gentleman, that a disposition existed on the part of the Government to exercise their power hastily and despotically, it was clear that there was a mode whereby that disposition might be counteracted. With the present rapid transmission of intelligence, whereby the complaints of a colony were heard in that House in almost as short a time as news could formerly be received from some portions of Her Majesty's dominions at home, no other precautions appeared to be necessary than those which now existed to secure attention in that House to the complaints of the colonies, and deference on the part of the Government to the feelings and wishes of the colonists. The change now proposed would take away from the Government the means of enforcing sentences of transportation; every one would concede that it was essential, if you had transportation at all, that the convicts when sent from this country should be dispersed as widely as possible. The evils principally complained of by the inhabitants of penal settlements had arisen from the excessive aggregation of convicts, which had produced the accumulation of vice and iniquity that the hon. Member had deprecated. If transportation were to be limited to one or two colonies, the convicts must necessarily be sent in masses, and when their sentences had expired, without the opportunity of applying reformatory discipline in the meantime, they would be dispersed as emancipists through these colonies, which the hon. Member was desirous of preserving from contamination. But, under the plan of the Government, when these convicts did go out, it would be after strict penal discipline at home, and under some restrictions, which would not prevent, but facilitate, their dispersion in the colonies. The hon. Gentleman himself admitted the difficulty in Which the Colonial Office was placed in endeavouring to dispose of convicts; and he (Sir G. Grey) felt it of importance to warn the House against trifling with this subject, by requiring the judges and the courts of quarter-sessions to pass sentences of transportation, and then to take away the means of carrying out such sentences. Let the House look at what had taken place in Ireland. There was a popular delusion in that country that the crowded state of its gaols arose from the suspension of transportation as a punishment; and it was generally supposed that fewer convicts than usual had been removed during the last three years. That was not the fact. Transportation to Van Diemen 's Land had been necessarily suspended for a time in 1846, and the best results had followed from checking the stream of transportation to that colony; at the same time increased numbers had been sent to Bermuda and Gibraltar, with a view to relieve the pressure here, and nearly the same number had been sent from Ireland as in former years, although they had not been sent to the Australian colonies; but a very great increase had taken place in the numbers sentenced in Ireland. In England the number of persons sentenced to transportation had not increased of late years. In 1844 the sentences of transportation upon male and female convicts were 3,357; in 1848 they were 3,296; and in 1849 they were reduced about 500 below the number in 1848, partly owing to the operation of the Act of last Session, which abolished the punishment of transportation in cases of a first conviction for simple larceny, and partly owing to the increased comforts of the people, which had much decreased the number of offences in populous parts of the country. But, while in England sentences of transportation had been reduced by about 500, as compared with last year, in Ireland a very great increase had been going on. The hon. Member had said, that from the accounts given of the convicts who had left Bermuda for the Cape, he hardly knew why they should have been transported. He (Sir G. Grey) was almost ashamed to say, also, that he hardly knew why sentence of transportation had been passed upon some of these persons. The very large number of persons sentenced to transportation in Ireland for larceny, was one of the strongest justifications of the Act which had taken away the punishment of transportation for simple larceny. In Ireland, in the year 1844, sentence of transportation was passed upon 709 persons; in 1845 the number was 627; in 1846, 708; in 1847, during which and the next year transportation to Van Diemen's Land was suspended, the number had increased to 2,208: in 1848 it was 2,729; in 1849, 3,039. This great increase in the number of Irish convicts occasioned much embarrassment as to their disposal. Offences in Ireland had increased very much during the three latter years, owing to the famine, and the Government felt it necessary for the protection of property, that many of the persons convicted of these offences and sentenced to transportation should be removed from the country. They were sent to Bermuda, and, although the convicts in the Neptune were not composed exclusively of the class to which he had just referred, they were so chiefly. There were other convicts in the ship, but they were all carefully selected as men whose good conduct had entitled them to indulgence. And this opinion was justified by their subsequent good conduct. They might not be acceptable to a colony that did not wish to have any convicts; but in Van Diemen's Land, and the other Australian colonies, he believed they would prove as valuable a class of colonists as many free emigrants who had gone from this country. They had, undoubtedly, been guilty of crimes against property, but they appeared to have been urged to them by the want and misery which large classes of the population endured during the famine. It was satisfactory to hear that crimes of this character had, within the last three or four months, very sensibly diminished. It might be necessary that a further reduction should be made in the offences for which sentence of transportation was now passed; but so long as Parliament maintained this punishment, he trusted they would not deprive the Government of the power of carrying these sentences into effect. The hon. Gentleman spoke of the power of fixing the place of transportation as having been exercised despotically by a Member of the Government, the Colonial Secretary; whereas it was the act of the Government collectively, being resolved upon in Council, and was never exercised by the Colonial Secretary upon his own responsibility. If the Motion of the hon. Gentleman was carried, it would increase tenfold the embarrassments already felt in connexion with transportation, and therefore, unless some stronger grounds than had been urged by the hon. Gentleman could be stated, he thought it would be highly impolitic that his Motion should receive the sanction of the House. In the case of the Cape of Good Hope, the Government had yielded, as they said they would yield, to the wishes of the colonists; and that being the only case on which the hon. Gentleman rested his Motion, he trusted that Parliament would not hastily adopt the suggestion which he had made.


said, the question was whether the Colonial Office ought or ought not to possess the power of appointing places for the transportation of convicts? The hon. Gentleman the Member for North Staffordshire proposed to deprive it of that power; and he agreed in the Motion, thinking that the Colonial Office had proved itself not well qualified to exercise that power, and could not be safely entrusted with it. In proof of that proposition, it was only necessary to refer to the conduct of the present Colonial Secretary with regard to the Cape of Good Hope, and to read one of two despatches—either the despatch of Earl Grey, of the 30th of November, 1849, or that of Sir Harry Smith, of the 5th of September, 1849. From the latter, it appeared that on the 7th of August, 1848, the present Secretary of State for the Colonies sent a circular to certain colonies, offering them a certain description of convicts—ticket-of-leave men—as a boon, and stating that none should be sent unless the colony in question, especially the Cape, approved of their being so sent. And Sir Harry Smith was directed to take immediately the best means of ascertaining the feeling and opinion of the colony on the subject. Sir Harry Smith immediately brought the matter under the attention of the Legislative Council of the colony, and therefore made it known to all the colonists. In so doing, he pledged his word that no convicts should be sent to the Cape of Good Hope, unless their being so sent should be approved of by the majority of the colonists. Nevertheless, Earl Grey, without waiting for an answer to his despatch, informing him of the feeling of the people on the subject, determined on sending certain convicts to the colony. The hon. Gentleman opposite (the Member for North Staffordshire) said that Sir Harry Smith had broken his word; but the right hon. Baronet the Home Secretary denied that such had been the case.


I understood the hon. Gentleman opposite that he was mistaken in that imputation.


What was the fact? It was literally true that Sir Harry Smith himself said he had been obliged to break his word. At page 4 of his despatch he used these words:— This (the sending of convicts to the Cape of Good Hope) places me in a most delicate and painful position; having pledged myself in the Legislative Council to the colonists, upon the faith of your Lordship's despatch of the 7th of August, they naturally look up to me to fulfil that pledge, which it is now out of my power to do. Therefore, he was compelled to violate this pledge; and what was the consequence? The colonists virtually rebelled, and then the convicts were sent away. The right hon. Baronet opposed the Motion, because it was easy to appeal to that House. But when did the House turn to these questions, and give redress to the colonists? Only when the question was between the rebellion of the colony and the withdrawal of the Government from their original intention. He regarded what had happened in the Cape as a great blow and cause of danger to our colonial empire; for it had told all the colonies, especially the southern colonies—" If you want to save yourselves from the tyranny and the power of the Colonial Office, your only means of be doing is to use threats and menaces." He was sorry to find that feeling extending in the southern colonies. Only a few days ago he had presented a petition signed by 6,000 persons in New South Wales, threatening to use every means to resist the revival of transportation, and stating in plain and distinct terms, that to persevere in sending convicts to that colony, would tend to sever their connexion with this country. And this was before they heard of the successful issue of the struggle at the Cape of Good Hope. He deplored anything which tended to produce a conviction in the colonists that their only means of obtaining redress from us was by proceeding to these extremities. But were they justified in averting or resisting transportation? Having paid much attention to the subject, and having sat two years on the Transportation Committee, he must say, that he could not conceive that any man of upright feeling, and father of a family, could ever consent to become a governor of a colony which was made a convict settlement. The consequences of transportation as evinced in the amount of crimes in New South Wales, were thus described in the report of the Committee on Transportation—a report which had been unanimously agreed to by some of our most distinguished statesmen, and which had gone out to all the colonies, telling them in plain terms what were the consequences of our system of transportation. That Committee, which sat in 1839, consisted of Lord J. Russell, Sir G. Grey, Mr. Hawes, Lord Howick, Sir R. Peel, Mr. C. Buller, and Viscount Ebrington. They said in their report— It is difficult to form an adequate conception of the frightful degree of crime which the above tables express in New South Wales and Van Die-men's Land. Suffice it to say, that in proportion to the population of New South Wales, as compared with that of England, the number of convictions for highway robbery, including bushranging, exceeds, in proportion to the population, the total number of convictions for all offences in England; that rapes, murders, and attempts to murder, are as common in New South Wales as petty larcenies in England. In short, in order to give an idea of the amount of crime, let it be supposed that the 17,000 offenders who were last year (this was in 1839) tried and convicted in this country for various offences, before the several courts of assize and sessions, had all been condemned for capital crime—that, in addition, 7,000 had been executed, and the remainder transported for life—that, in addition, 120,000 other offenders had been convicted of the minor offences of forgery, sheep-stealing, and the like—then, in proportion to their respective populations, the state of crime and punishment in England and in the Australian colonies would have been precisely the same. These statements having gone out on such authority, would any colony that had the means of resisting transportation abstain from doing so? The right hon. Baronet said, the Motion, if carried, would make transportation more difficult. If there were no other reason than that, he would gladly vote for it. Ever since he first brought this subject under the consideration of the House, he had been most anxious to abolish transportation. It was impossible to keep the colonies if the system of transportation continued. We had no right whatever to make the colonies our cesspools—to disburthen and cast away our crime upon them. Those which were strong enough to resist, and of English race, would never allow us to do so. Therefore, both because he thought the Colonial Office ought not to possess this power, and, as a step towards the abolition of transportation, he should most cheerfully vote for this Motion.


said, the hon. Baronet the Member for Southwark had not spoken to the question immediately before the House, which was, not the propriety of abolishing transportation altogether, not the expediency of the conduct of the Government in reference to the Cape, but whether the House should take from the Crown the power now vested in it of defining the places of transportation by Order in Council, and make no provision for such places, but wait till the assent of the different colonies could be obtained, to know whether they could safely legislate to make them such places. The hon. Baronet was perfectly consistent in his course, for he had uniformly been an advocate of the total abolition of transportation; and, without considering what might be the insuperable difficulties which this Motion, if carried, would place in the way of the Government, or caring how they might be embarrassed, or what might be the result, he sought to achieve his favourite object of abolishing transportation altogether. Though he was perfectly consistent, yet this was not quite the opportunity for considering whether transportation should be abolished altogether, for they were discussing a Motion which admitted the necessity of transportation, but took away the power of the Government to fix the place. There was no Motion before the House, to discuss the principle of transportation generally, but merely to direct the power of the Crown; and the hon. Baronet sought to avail himself of this as a means of abolishing transportation altogether. If there was no better ground for adopting the Motion, the House, he apprehended, would pause before indirectly achieving an object of that description by a side-wind, and upon a collateral Motion. The hon. Mover had no such object. He sought to preserve transportation, and to give Parliament the power of fixing the places.


Only to name the place, providing it was a new one, leaving to the Government the responsibility of carrying out the arrangements, as at present.


would come to that immediately. He would not now discuss the propriety of the conduct of the Government with respect to the Cape of Good Hope. There was no allegation that could he supported by any breach of faith on the part of either Sir Harry Smith or the Government. Government sent the convicts; they were never landed, for immediately the dissent of the colonists was properly intimated, orders were given to send them on. He would not enter on that subject; there were difficulties enough in the question itself. The hon. Member sought by his Motion to repeal part of the Acts of 5 & 6 Geo. IV., which empowered Her Majesty, with the advice of Her Privy Council, to appoint any places in Her Majesty's dominions for the transportation of felons and others under sentence of punishment. This would repeal all the orders so made under this Act, there being no provision for the continuance of those places which had been already appointed as places of transportation. The simple object of the Motion was to take away from the Crown the power of appointing these places by Order in Council. The hon. Member did not profess to touch the third section of the Act. [Mr. ADDERLEY: Yes, I do.] If the hon. Member does not, this state of things would occur. The Crown would no longer have the power of transporting to places where salutary control and means of reformation were offered, but would retain the power of confining convicts in ships, or buildings, or other places, where they were without the means of control or reformation, by employment on public works or otherwise. The consequence would be, as their terms of transportation expired, they would be set at large, and become free men, but more contaminated than before. But if the hon. Gentleman proposed to repeal the section he had referred to, what became of the reformatory processes at Woolwich, Parkhurst, and other places? This power was given by the same section which enabled the Crown to appoint places either at home or abroad for the reformation or control of prisoners under sentence of transportation. By repealing those statutes, and making no provision in lieu thereof, he would repeal the whole of those rules, and prevent the Government from employing prisoners at Woolwich or elsewhere. If it were pro- posed to take away the powers given both by the Act of 5 Geo. IV., and that of 24 Geo. III., he should object to it on several grounds. First, it was a direct violation of the prerogative of the Crown. On looking into the history of the matter, there could be no question that it was originally the prerogative of the Crown to define the place of transportation. Transportation, when first introduced, was not a punishment imposed by Act of Parliament, but a commutation of a higher sentence—that of death. The Crown had then the power of selling the labour of the prisoners to planters or others; and, accordingly, they were then sent to the West Indies. It was only in consequence of collusion on the part of those to whom the services of the prisoners were assigned, whereby the transportation was not actually carried into effect, that a statute was passed directing that transportation should not be to the West Indies, as formerly, but peremptorily to America. But to say that therefore the Crown had not the prerogative, and did not exercise it, was to deny the undoubted law of the country, and to aim a direct blow at the unquestionable prerogative of the Crown. When the system was abused, and when it was impossible for the Crown to carry its power into effect, it might have called in the aid of the Legislature to appoint permanent places of transportation; but that did not show that the prerogative was given up: on the other hand, it was recognised. When America ceased to be the place positively defined, the 24th George III. enabled the Crown to fix places; and, following the same principle, the 5th George IV. as positively and clearly vested in the prerogative the exercise of this power. To carry a measure of this sort, would be to infringe upon the prerogative. But what would be its effect? As soon as the Bill was introduced to Parliament, what was to happen until Parliament had settled the places of penal transportation? Did the hon. Member propose, by the same Bill, to ask Parliament to select some places? Certainly not. Did he suppose that, having repealed this power, it was the duty of the Government to collect from the different colonies their assent or disapprobation as to becoming penal settlements? Was it the duty of the Government to bring in a Bill for that purpose, to create public investigation and inquiry, and to excite what might not otherwise have arisen in the colony, general discontent? Did the hon. Member wish thus to prepare the colonies to dispute the authority of the Government when the Act was passed? Certain persons, from political or other motives, would be sure to object to the selection of particular places; and the intention of Parliament being circulated by the press, the colonists would thus be aroused. In enforcing a difficult power like this, the object was to conciliate as much as possible, not to excite discontent, by bringing a Bill into Parliament, getting up a discussion, and having a public report of it. The necessary consequence would be, the colonists would be informed of what was intended; and there was no place that would be content under any circumstances to be so selected. Suppose that either by the force of Government, or from imperfect information in the House, a statute had passed last Session making the Cape of Good Hope a penal settlement, and that Parliament had risen, as it did rise, just before the convicts were sent there. There would have been no power to retain the transports in the vessel, no power to repeal the order which the statute had pronounced—that the Cape should be a penal settlement; and the passive resistance which the hon. Gentleman so much commended, would no doubt have been fomented into rebellion. Thus the Government would have been prevented from calmly considering the question, and from yielding upon representation of the wishes of the colony; for if the matter was made to rest upon an Act of Parliament, all power of conciliation or of pausing was taken away. Had such an Act been passed, either from the force of Government in the House, or the want of attention and information in Parliament, declaring the Cape of Good Hope a penal settlement, the consequences would have been most serious. They could not but have sent the convicts there; more would have followed; they could not have withheld their landing; they could not have recalled the orders; the law of Parliament must have been obeyed. And what chance would the colonists have had for a calm and patient hearing of their grievances, if at the very time they made their complaints, it appeared they had been setting Parliament at defiance, by refusing to obey an order of the Imperial Legislature? It would have been impossible. To his mind these objections were insuperable. The Motion infringed the prerogative of the Crown, and repealed a statute without providing any means whatever for carrying into ef- fect sentences of transportation. Those who, like the hon. Baronet the Member for Southwark, did not like transportation, and thought it fair to get rid of it by a side-wind, might vote for the Motion; those who did not think it a subject to be so lightly treated, and who did not think that the Government should be embarrassed in such a difficult matter by the introduction of extraneous topics, would concur in the view taken of the Motion by the right hon. Baronet the Home Secretary.


agreed with the hon. and learned Gentleman the Attorney General that this was not the time to consider the system of transportation. It was too serious a question to be got rid of by a side-wind. It was a question which probably before long it would be necessary for the Government to have under consideration, and until the Government propounded their plan, it was desirable they should abstain from discussing it. With regard to what had fallen from the hon. and learned Gentleman as to the prerogative of the Crown, he (Mr. Aglionby) was not prepared to say that the prerogative of the Crown was in the slightest degree affected by this proposition; and his opinion was confirmed by high authority. Neither in Blackstone nor in Burn's Justice did he find a single remark to show that such would be the case. Transportation and exile were entirely unknown to the common law. They were statutable punishments. [An Hon. MEMBER: How in the case of a commutation of capital punishments?] No doubt, if a person were condemned to be hanged, it was the prerogative of the Crown to grant mercy, and say, "You shall not be hanged, but shall be sent to another country;" but that was not transportation, that was commutation. He (Mr. Aglionby) repeated, that the punishment of exile was unknown at common law, and begged to call the attention of the House to the various Acts passed on the subject. It was quite apparent that the hon. and learned Gentleman the Attorney General was mistaken in supposing that no places would be left for transports if this measure were agreed to—that is, so long as transportation was allowed, for the Mover of the question said that the Bill did not interfere with any bygone description of places for transportation, and to such places so named transports should be sent until they were disallowed by Parliament. He said, let them guard against certain evils in future, by declaring that no such power should in future be vested in the Queen and Council; but if the Legislature wished to have any new places it would be competent for Parliament to name such additional places, and before Parliament named any place, the matter would be made more public than it could be if the decisions were made by the Privy Council. The hon. and learned Gentleman the Attorney General had asked what would be the effect if Parliament had made the Cape of Good Hope a penal colony, and what would have occurred while Parliament was not sitting. He (Mr. Aglionby) would say a much longer controversy—a much longer insurrection—he might even say a much longer rebellion than could have taken place during the recess of Parliament. He was not sure that before very long the attention of Government would not be called by the colonists themselves to the necessity of relieving them from being penal settlements; and though no Member now proposed to make a change, it would be the duty of the Government to say, we think we are in a wrong course, and will relieve some of those colonies from being places of transportation. The question now was, would they leave things as they were, or prevent them from getting worse, except by the sanction of Parliament; and, on considering that question, he felt it his duty to give his support to the hon. Gentleman who brought forward this Motion. He did so, because he was aware of the heartburnings and schisms that arose from those persons being sent to a colony. He had seen it tried in a modified shape, by sending a number of Parkhurst boys to New Zealand, and never was there so fatal or so baneful an effect produced. Everything showed that the experiment, however well intended, had totally failed. Even that diluted class of criminals had introduced crimes unknown there previously. When going amongst the natives, they introduced new crimes and new frauds; and there was one general system of crime from one end of the settlement to the other. There were protests made in the strongest manner even against those persons being sent out; and he thought, upon the whole, the state of the law was such that it ought to be amended.


felt, unfortunately, that he could not support the Motion of his hon. Friend who had introduced this question to the House; but at the same time he felt that it might be a very proper course on the part of his hon. Friend, at some future time, to direct attention in a pointed manner to the question of transportation, unless the Government should by their own act bring the important question for decision before the House. If the general question of transportation were before the; House, it would be proper to consider what aid should be given by Parliament to the Crown, in carrying out sentences, or what restraint should be imposed on the discretion of the Crown; but at the present stage the only question they had to ask themselves was this—would they fetter the discretion of the Government, who were called upon by the law to carry out in innumerable instances, the sentence that stood upon their Statute-book for transportation, and which could only be obeyed by the Government doing their best to distribute the persons who were the objects of that sentence of transportation in proper places, according to their discretion and upon their responsibility. He could not, in the present stage of the question, give his support to the Motion, but at the same time he thought his hon. and learned Friend the Attorney General had put this question rather too high as a matter of prerogative. It was perfectly true that the exercise of the power of the Crown in granting mercy on certain conditions amounted, in that sense, to the exercise of its highest prerogative; but transportation for many years was understood to be established by statute, because it was a punishment imposed by Act of Parliament, and to be carried out in the manner provided by Act of Parliament. He (Mr. Law) would be the last person to trespass on the prerogative of the Crown; but he felt there was very little weight in the argument of the Attorney General, though he was not at liberty to discuss the question. The very form of the sentence which till lately had been pronounced, uniformly reposed a discretion in the Crown—the sentence being, that the prisoner should be transported to such place as Her Majesty, with the advice of her Privy Council, should direct and appoint, thus leaving the place entirely in the discretion of the Executive Government. In many modern instances the sentence was not so set forth in the statutes, it being simply that the prisoner should be transported for a certain period. While he felt it his duty to withhold his support from the present Motion, he entreated the Government to bring forward some measure which should lead to a dis- cussion in that House, in all its important bearings, of the important question of transportation. As far as his experience extended, he was satisfied that transportation was the only effective secondary punishment, and was the only remaining condition upon which the Legislature could, in its mercy, relax those severer punishments which no person called upon to administer justice could wish to see enforced. But while he was favourable to a system of transportation, he did not consider it a punishment that needed at all to involve the mischiefs which attended any peculiar administration of it, in consequence of the want of any well-digested system for its regulation. While the hon. Baronet the Member for Southwark expressed his determination to support any Motion which would be likely to put an end to the system of transportation, he (Mr. Law) would, on the contrary, not give his support to any which tended in the least degree to the abolition of a punishment which was necessary so long as they wished to preserve anything that would be a terror to the wrong-doer, and which would impose any restraint upon his conduct. If the Government would bring forward the measure in the manner he had taken the liberty to suggest, he felt assured that, instead of receiving anything like opposition, they would receive the thanks of every person who was interested in securing the safety of the public and the conviction of offenders, for their praiseworthy exertions.


said, that while he was prepared to support the Motion of the hon. Member for North Staffordshire, he certainly dissented from the opinion of the hon. Baronet the Member for Southwark, who had expressed a desire to see transportation altogether abolished. But, while he was in favour of transportation as a means of punishment, he was anxious that the present system of carrying it out should be discontinued, and that it should not be carried on in defiance of the wishes of the colonies to which the convicts were sent. The recent events which had taken place at the Cape, showed, in his opinion, in the strongest manner, the folly of giving the power at present held by the Colonial Secretary to any one individual. If the Cape had been appointed by Act of Parliament as a place for the reception of the convicts, there would have been none of those large public meetings, or of those exciting and irritating acts, which had placed the colony in a state of almost actual rebellion against the Government of this country. What was sought by the Bill which his hon. Friend had now moved for leave to introduce, was simply that, in future, all penal settlements should be distinctly appointed by Act of Parliament, instead of being left in the discretion of the Colonial Secretary. The right hon. Baronet the Secretary of State for the Home Department had stated that it was a question in which the Cabinet was concerned, and not merely a question with the Colonial Secretary. Such, however, was not the case, for it was well known that all matters of this sort originated with the Colonial Secretary, and that if his suggestions were to be objected to by his colleagues, he would, of course, retire from his position. But the Cape was not the only place which had suffered from the indiscretion of the Colonial Secretary in these matters. The Sydney Gazette, which had arrived by the last mail, gave an account of the extraordinary feeling which prevailed at Sydney in consequence of the determination of the authorities to land some convicts almost at the mouth of the cannon. The Government House was placed almost in a state of siege, and five or six thousand persons met for the purpose of remonstrating on the subject. The resolutions passed at the different meetings were, however, totally unheeded by the Governor of the colony, and the convicts landed in defiance of them. Believing that some alteration was imperatively called for, he would give his cordial support to the Motion of his hon. Friend.


said, that before the House came to a division on the subject, he would place fairly before the House the difficulties in which the Government were at present placed, and which, he thought, would not be at all diminished by the Motion which the hon. Member for North Staffordshire had brought forward. It was proposed to repeal a particular part of an Act of Parliament, whereby Her Majesty in Council was empowered to send transported convicts to certain places, according to Her Majesty's discretion, within Her own dominions. At the same time, it was not proposed by the hon. Gentleman to repeal other parts of a former Act, which conferred the same power, nor was it proposed to repeal the Act passed a few years since, which gave power to Her Majesty to send convicts to Gibraltar, and by which, also, transported convicts might be sent to work in any places within Her Majesty's dominions. If that was so, he could not very well see what object the hon. Gentleman had in view, except to show that this power had been abused, and, therefore, it ought to be taken away. Now, if that were his intention, he would submit to hon. Members that they were about to decide a very important question upon very insufficient data. Susposing that the hon. Gentleman had proved that the noble Lord at the head of the Colonial Office had been entirely mistaken in his conduct, in the administration of that power with respect to the Cape of Good Hope, it did not follow that, therefore, the power was one which ought not to exist. Or, supposing that the conduct was altogether wrong in that particular Secretary of State, it did not follow that other Secretaries of State might not make use of the power in a manner which the hon. Gentleman, and others, might think very useful to the country. It certainly did seem a very illogical consequence, that because a power had been badly exercised in one particular instance, therefore it was to be altogether abolished. With respect to the particular instance to which the hon. Member for North Staffordshire had alluded in the early part of his speech, namely, the great difficulties to which the Secretaries of State for the Colonies were subjected, he certainly could not have stated these difficulties too highly. But while the hon. Gentleman had those difficulties fully before him, he made no allowances for them. In the first place, then, the law of this country authorised the punishment of transportation, and the Judges and chairmen of the quarter-sessions condemned some 3,000 persons altogether, and, with those whose sentences were commuted, there were about 4,000 persons sentenced to be transported every year. If the Colonial Secretary, who was desired to take charge of these persons, sent them all to one particular colony, they found the greatest evils to result from the concentration of so many persons of a criminal character—a most horrible state of society existed, and representations were sent here which no Secretaries of State, or other persons, could hear or read of without wishing to redress. Then, if he said to other colonies, "We are very much embarrassed with this large number of convicts, and we wish to know if you are willing to receive them?"—instantly complaints of tyrannical conduct were made; and the hon. Baronet the Member for Southwark indignantly exclaimed, "Was there ever such tyranny before? Here is a Secretary of State asking the colonies if they have any objections to receive convicts! What tyranny it is!" The circular sent by the noble Lord the Secretary of the Colonies to the governors of the different colonies, stated that he should be glad if they would ascertain, in any manner which might appear most expedient to them, the opinions of the colonists with respect to the reception in the colonies of persons sentenced to transportation; and that if the feelings of the people should be found opposed to it, the necessary steps would be taken by the Government at home for excluding those colonies from the list of places to which convicts might be sent. Could anything be less arbitrary and tyrannical than that? The hon. Gentleman who had brought forward the Motion had stated that there was a great objection in the Capo to the reception of transported criminals in that colony; and it was stated by his noble Friend the Secretary for the Colonies that if such was the case, there was no intention of forcing them upon the colony. But there certainly did occur a case of very great embarrassment for the Government, and in which not only the noble Lord the Secretary for the Colonies was concerned, but also the Irish Government, and his hon. Friend the Secretary of State for the Home Department. The number of persons sentenced to transportation from Ireland had increased, in a few years, from about 700 to nearly 3,000. Many of those persons who had been so sentenced, and were sent to Bermuda, were really unfit for the hard work which was to be there performed. They were principally persons who, under the pressure of famine, had committed acts of theft, but who, under ordinary circumstances, would never, probably, have been brought before a court of justice. It appeared, after consultation upon the subject, that it might very possibly be the case, that if 300 of these persons could he sent to the Cape, they would inflict no great injury upon the Cape, and would enable us to send others, who were crowding the gaols in Ireland, to Bermuda. The noble Lord the Secretary of the Colonies had stated in his despatch, then before the House, that he was mistaken in his opinions with respect to the feelings of the colonists on the subject of the reception of the convicts, and regretted his error. Was there anything in this transaction, then, of so flagrant a character as to evince any wish to commit an act of tyranny in the colonies? He did not wish to go into the history of what had occurred in the colony of the Cape, because he thought that, although they were fully justified in saying, as they were invited to do, whether they wished the convicts to be sent there or not, still he thought that the manner in which the resistance to their reception was expressed, was one which did not reflect much honour upon those who were concerned. Sir Harry Smith stated, in one of his despatches—" The introduction of these convicts has been made a pretext for oppoing the Government;" and he (Lord J. Russell) had no doubt that he was correct in that opinion, and that there were persons who wished to found some "pretext" upon the introduction of those convicts for creating agitations, and who availed themselves of the convict question for that purpose. Sir Harry Smith, he thought, went very far to endeavour to conciliate the colonists, and went very far with their own feelings on the subject. He said— Although I have been informed that this ship is to arrive, and my general instructions will be to land the convicts, still I do not propose to land them, but to keep the ships in which the convicts are sent until I receive further orders from the Government at home in what way I am to dispose of them. He (Lord J. Russell) would have thought that its being declared in the colony that the Order in Council was not to be carried into effect for sending the convicts there, and that in future it was not to be a colony to which transports should be sent—that declaration having been made in the colony in April, and more formally in the despatch of Earl Grey in the same month—that Sir Harry Smith having declared that with respect to the 300 convicts who had been sent, they should not be landed till he received further orders from home—he Would have thought that those persons who had nothing at heart but a wish to prevent the colony receiving the convicts, would have been satisfied by these declarations, one of the Government at home, and the other of the Governor of the colony. But upon the arrival of the despatches announcing the determination of the Government with respect to not forcing the convicts upon the colony, and deciding not to send any in future, the exertions became greater than ever. One gentleman even went to a public meeting, and asked was it to be borne that they were to be contaminated by seeing the Neptune in Simon's Bay, which they knew contained convicts on board? That was certainly going to an extent which he could scarcely understand. At that very moment the colonists had before them the sight of 300 convicts working on Robin's Island, and yet the sight of the ship anchored in Simon's Bay, which they knew contained convicts, was a contamination which their purity could not stand. Really, they did carry to a most extravagant length their indignation upon the subject. The hon. Gentleman opposite had chosen to raise this question, or he (Lord J. Russell) would not have been tempted to enter upon the subject. The Motion of the hon. Member was inexpedient; and even if he had proved his case with respect to the Cape, it would not have justified his Motion, which was inexpedient in itself, but, having failed to establish that, the House was doubly bound to reject the Motion.


wished, in giving his vote against the Motion of the hon. Member, to guard himself from any supposition that he was in favour of the abolition of transportation. He was only anxious, in the course which he adopted, to endeavour to bring about some beneficial alteration in the mode in which the system was at present carried out.


, in reply, said, that the numerous petitions which had been presented from the Cape, had suggested to him the propriety of bringing forward his Motion. Those petitions had emanated from the unanimous voice of the whole population of Southern Africa; and he considered that nothing could be better adapted to found his Motion upon than petitions of so weighty a character as those to which he had referred. With respect to the proceedings at the Cape, he merely used them as an illustration, and had no intention whatever of arguing from the particular to the general. If, however, more illustrations were required, they were to be found in the colonies of New South Wales, Norfolk Island, Van Diemen's Land, and every convict colony which had ever belonged to England since its first settlement in New South Wales. The noble Lord at the head of the Government had well maintained his reputation for chivalry for taking up the cudgels so manfully in favour of Earl Grey. Upon that subject he (Mr. Adderley) was well satisfied to leave it to the opinion of the country. The noble Lord had sneered at the people of the Cape for thinking that they would be contaminated by the sight of a shipful of convicts. It was not, however, the sight of the ship which they thought would contaminate them, but because they saw that ship kept there in the harbour for month after month, and could naturally only conclude that it was intended by the Government to land the cargo, despite all the promises which had been made upon the subject. That was what they were afraid of, and not the sight of the ship. It would probably be in the recollection of the noble Lord that a great debate took place upon one occasion in Massachusetts on the subject of farthings, and it was thrown in their teeth that they were making a great fuss about a few farthings. But it was not the farthings, it was the principle which was involved that gave rise to such long debates. In the same manner, the people at the Cape made a great piece of work about the Neptune in Simon's Bay, because the happiness and safety of their children and posterity were involved in the continuance of that ship in the bay. Every Member of the Government who had spoken on this subject had taken great credit to themselves for not landing the convicts, and said that they had kept their word, and had not landed them. Was there ever such a barefaced argument?—when they kept their ship with the convicts there for months together, and would have landed them if they could possibly have done so. They took advantage of the successful resistance of the Cape, and then turned round and said that they had kept their word. But it had been said by more than one hon Member of the Government, that they had no intention of forcing the convicts upon the Cape. If so, why did they keep the Neptune in the harbour till the month of November? Would any Member of the Government tell him, if there was no intention of forcing the convicts upon the Cape, why they kept them there all that time? Until that question was answered, the opinion of the country would be the very reverse of that just expressed by the noble Lord and his Colleagues. But the noble Lord also asked whether it was tyrannical to ask the colonies to receive the convicts? Certainly not. No person had said that it was; but the tyranny was in asking the colonists if they would have the convicts, and not waiting for their answer. The tyranny was to ask, and then send the convicts before an answer was given. Asking the question was no tyranny. With respect to the Motion before the House, the Government, he presumed, in- tended to refuse him permission to bring his Bill before the House, because the hon. and learned Attorney General had given sundry objections to another Bill, no more like the one which he (Mr. Adderley) proposed, than one thing could be like another. The hon and learned Gentleman had put a great many suggestions into his mouth which he (Mr. Adderley) had never made, and argued—very ably, no doubt—against his own suggestions. But it appeared to him (Mr. Adderley) that even if the hon. and learned Gentleman had completely answered his own arguments, that was barely a reason for the Government refusing him permission to lay his Bill upon the table of the House, and submit it to its judgment. Several hon. Gentlemen had expressed their intention of voting against the Motion for the introduction of the Bill, because the hon. Baronet the Member for Southwark had stated, that, in his judgment, it would lead to the abolition of transportation. Hon. Members were really meeting the subject as though it were a vote of confidence in the hon. Baronet the Member for Southwark, and because the hon. Baronet had said that such would be the effect of it, therefore they would vote against it. Why, it would be much more creditable to the House if hon. Members would allow the Bill to be brought in, so that they might have an opportunity for perusing it and deciding for themselves as to the effect it would be likely to have, without voting against its introduction in such a hand over head manner. He repudiated the idea that he was aiming a blow at transportation by a mere side-wind. He had no such intention. In his opinion the present system would very soon lead of itself to the abolition of transportation, and that too within a few months of the present time. He would risk his credit with the House if the common sense and judgment of the public would not soon lead to a total abolition of the present system. The hon. and learned Attorney General had made several suggestions with respect to the measure, which he (Mr. Adderley) had never suggested to the House. For instance, he supposed that the present proposal would narrow very much the present field of transportation. He had intended, before he brought in his Bill, to have had it very carefully submitted to the judgment of eminent members of the legal profession; but he would ask the hon. and learned Gentleman whether the repeal of those two clauses of the 5th George IV. would prevent any of the Judges from transporting felons to those places which the Queen in Council had already named as places to which felons could he sent? Would it not he equally as competent for the Judges—supposing the clauses were repealed to-day—to send to-morrow convicts to Norfolk Island, or Van Diemen's Land, as it was with these clauses unrepealed? If so, the argument of the hon. and learned Gentleman fell to the ground. The effect of his Bill would not be to narrow the ground by one solitary inch. They would have precisely the same opportunities as they now had for sending their convicts away. The sole effect of repealing those clauses would be, that when any new ground was required for transportation, it would be named by Parliament, instead of by an Order in Council; and the Government, knowing that such want existed, would bring a Bill into Parliament to authorise them to send convicts to any new place. With respect to any infringement of the prerogative by the proposed Bill, he thought, after what had already fallen from other hon. Members on both sides of the House, in answer to the statements of the hon. and learned Attorney General, it was unnecessary for him to detain the House by any remarks on the subject. The right hon. Gentleman the Secretary of State for the Home Department said, that the Secretary for the Colonies could retract what he had done, and that ought to satisfy the colonies.


observed, that what he had said was, that Her Majesty had power to revoke an Order in Council by another Order in Council, and he wished to know whether the hon. Gentleman meant to take that power away by the Bill which he proposed to introduce?


said, that the argument of the right hon. Gentleman was, that the colonies ought to be satisfied with being made penal colonies, because the Queen had power by an Order in Council to revoke the order which made them so. He must say he did not agree in that view of the case. He did not mean by his Bill to strike a blow at the system of transportation, but to strengthen it. His proposition referred to new penal colonies—districts which were quite uninhabited. He said most sincerely that he had no intention to make this Motion a vote of censure on the Government, and therefore he thought it unfair that he should not be allowed to lay this Bill before the House.


rose amid loud cries of "Divide!" He had but one question to put to the hon. Gentleman, which would not occupy much time, before they proceeded to a division. He wished to put this question, because upon the answer which it should receive would depend his (Mr. Anstey's) vote. Some observations, in the reply of the hon. Member who introduced the Bill, led him (Mr. Anstey) to infer that the object of the Bill would be to prevent Her Majesty's Government sending convicts to the colonies which they had already determined upon not sending them to, but, instead, to deluge the other colonies with them. Was that the intention of the Bill or not? Perhaps it might he otherwise. Did the hon. Gentleman mean to move the abolition of transportation altogether, and to provide a substitute, as in that case he (Mr. Anstey) would be prepared to support him? Or, did his Bill go to abolish transportation in some colonies to the detriment of others—say Van Diemen's Land—which altogether were certain to be ruined and demoralised?


regretted the hon. Member had not been present during the debate, as, had he been, he would clearly have perceived that his Bill intended nothing at all supposed by the hon. Gentleman.

The House divided:—Ayes 32; Noes 110: Majority 78.

List of the AYES.
Aglionby, H. A. Lewisham, Visct.
Baillie, H. J. Lushington, C.
Baring, hon. F. Molesworth, Sir W.
Best, J. Mundy, W.
Blair, S. Muntz, G. F.
Chatterton, Col. Naas, Lord
Christy, S. Napier, J.
Cobden, R. Prime, R.
Cocks, T. S. Salwey, Col.
Filmer, Sir E. Scholefield, W.
Fox, W. J. Simeon, J.
Fuller, A. E. Sullivan, M.
Gooch, E. S. Verner, Sir W.
Greene, J. Walmsley, Sir J.
Halsey, T. P.
Hervey, Lord A. TELLERS.
Hume, J. Adderley, C. B.
Keating, R. Stafford, A.
List of the NOES.
Abdy, T. N. Berkeley, Adm.
Alcock, T. Boldero, H. G.
Anstey, T. C. Bouverie, hon. E. P.
Armstrong, Sir A. Brockman, E. D.
Baines, rt. hon. M. T. Brotherton, J.
Baring, rt. hon. Sir F.T. Brown, W.
Barnard, E. G. Caulfeild, J. M.
Bass, M. T. Childers, J. W.
Bellew, R. M. Clay, J.
Clerk, rt. hon. Sir G. Melgund, Visct.
Cowan, C. Milnes, R. M.
Cowper, hon. W. F. Moffatt, G.
Craig, W. G. Monsell, W.
Crowder, R. B. Moody, C. A.
Drumlanrig, Visct. Mulgrave, Earl of
Duncan, G. Norreys, Sir D. J.
Duncuft, J. Pakington, Sir J.
Dundas, Adm. Parker, J.
Dundas, rt. hon. Sir D. Peel, rt. hon. Sir R.
Ebrington, Visct. Perfect, R.
Ellis, J. Plowden, W. H. G
Elliot, hon. J. E. Pluraptre, J. P.
Evans, Sir De L. Power, Dr.
Evans, J. Power, N.
Fagan, W. Pusey, P.
Ferguson, Sir R. A. Rawdon, Col.
Fordyce, A. D. Romilly, Sir J.
French, F. Russell, Lord J.
Frewen, C. H. Scrope, G. P.
Goulburn, rt. hon. H. Scully, F.
Greenall, G. Seymour, Lord
Grey, rt. hon. Sir G. Sidney, Ald.
Hatchell, J. Smith, rt. hon. R. V.
Hawes, B. Smith, J. A.
Hayes, Sir E. Somerville, rt. hn. Sir W.
Hayter, rt. hon. W. G. Stanford, J. F.
Heald, J. Stanton, W. H.
Heathcoat, J. Talbot, C. R. M.
Henley, J. W. Tennent, R. J.
Herbert, rt. hon. S. Thompson, Col.
Heywood, J. Thornely, T.
Hobhouse, rt. hon. Sir J. Trelawny, J. S.
Hood, Sir A. Tufnell, H.
Howard, Lord E. Vane, Lord H.
Jervis, Sir J. Verney, Sir H.
Keogh, W. Wall, C. B.
Labouchere, rt. hon. H. Wellesley, Lord C.
Lascelles, hon. E. Willcox, B. M.
Lascelles, hon. W. S. Wilson, J.
Law, hon. C. E. Wilson, M.
Lennox, Lord H. G. Wood, W. P.
Lewis, G. C. Wyvill, M.
Littleton, hon. E. R. Young, Sir J.
Lockhart, W.
M'Taggart, Sir J. TELLERS.
Matheson, Col. Grey, R. W.
Maule, rt. hon. F. Hill, Lord M.

The House adjourned at Ten o'clock.