HC Deb 15 May 1857 vol 145 cc338-79

Order for Committee read.

Motion made and Question proposed, "That the Speaker do now leave the chair."


rose to move, that the Bill be referred to a Select Committee. He said he was not sanguine enough to expect that his proposition would receive the sanction of the House, but he brought it forward in no spirit of hostility to the Bill of the right hon. Baronet. He admitted that the measure was an advance in the right direction; but he thought that it would be very desirable to refer it to a Select Committee, in order to examine Mr. C. Pearson, Mr. Hill (the Recorder of Birmingham), and Colonel Jebb. Criminal labour, he contended, might be made self-paying, and prisoners, who were now clothed and fed better than soldiers and farm labourers, ought to be made to perform forced labour which should be remunerative. In the last report of the inspectors of prisons in Great Britain it was stated that— It would be gratifying to be able to add, that the discipline pursued in those prisons was always consistent with the principle on which they were designed; but that although much time was devoted to teaching abstract morality, sufficient care was not always taken to introduce productive labour. He believed this to be a correct statement. The noble Lord at the head of the Government was reported to have once said, that "a nuisance was but a matter in the wrong place." That remark might justly be applied to the criminals in this country. So mistaken was the leniency adopted, that ten prisoners were allotted to work one wheel where one would suffice. Only one case of refusal to work at the wheel was recorded, and that was in the case of a scientific pickpocket, who declined because he thought it was an occupation which would tend to destroy the delicate touch of hand, requisite when he resumed his former occupation. Surely, a portion of the £3,192,000, which in the course of the last year had been spent on the administration of justice, in the police, and the conviction of prisoners, might be got back again in the shape of remunerative labour. Statistics came strongly in aid on this point. The total expense of county prisons in England and Wales in 1854 was £508,964. The average cost for prisoners per annum amounted to £28 per head, while their average earnings were but £2 7s. On the other hand, take the case of Portland, where the system, he (Lord Vane-Tempest) advocated, had been tried. In 1854 there were 1,977 prisoners. The cost of maintenance was £48,833; received by their labour, £42,831; balance of expense, £6,002. In 1849–50 and '51, the value derived from prisoners' labour had been as follows—

1849 £7,214 6s. 11d.
1850 £14,067 16s. 7d.
1851 £20,541 15s. 5d.
In 1851 the excess of earnings over expenses by the prisoners at Portland prison was £3,800, and in the same year at the hulks, though the average annual cost was, for each prisoner, £23 1s. 7d., it was reduced by prisoners' labour to £6 10s. See Colonel Jebb's Report, who further states, that when public works are to be constructed, it would justify the erection of removeable prisons, and the formation of a convict establishment to execute them. Now, compare this principle with that of transportation. Why the expense for maintaining convicts in Van Diemen's Land was £35 a year per head, and in Western Australia £40 per head. He regretted that the right hon. Baronet the Secretary for the Home Department had not carried his Bill further. He would not weary the House with statistics, but punishments, he believed, might be made self-supporting, and that if the question were referred to a Select Committee, evidence could be adduced to show that the view which he contended for was not merely theoretical but practical. He had no hesitation in saying, that a system of secondary punishment might be introduced which would be more deterring than the present, and yet be such as to make a man, after his term of imprisonment, both better and wiser. He was not disposed to press his Motion to a division, if opposed; but he thought that his proposal for referring the Bill to a Select Committee of Gentlemen who had devoted their time and energies to the subject of secondary punishments was not unworthy the attention of the House.


seconded the Motion.

Amendment proposed, to leave out from the word "That," to the end of the Question, in order to add the words "the Bill be committed to a Select Committee," instead thereof.


said, that he hoped the House would not agree to the Amendment which had just been proposed, the only effect of which would be to involve them again in a long and protracted inquiry. The noble Lord stated that his object was to examine Mr. Pearson, Colonel Jebb, and Mr. Hill, in order that they might lay their views before a Committee of the House with regard to the best means of making prison labour remunerative; but probably, the noble Lord was not aware that Mr. Pearson's views had been very fully laid before a Committee of that House a few years ago, and that Mr. Hill and Colonel Jebb had been fully examined by a Committee last Session, Colonel Jebb being also examined before a Committee of the House of Lords. Under these circumstances, he thought that they would be losing all the advantage arising out of the inquiries by the Committee last year if now, instead of founding any practical measure upon them, they were again to refer the matter to a Select Committee. He must remind the noble Lord, too, that there was nothing whatever in the Bill opposed to the principle of making prison labour remunerative. Convicts were at present employed at Portland, Portsmouth, and Chatham, upon public works of great utility. The labour which they performed there at a comparatively trifling cost would have to be paid for if executed by free workmen, so that, regarded in that light, their labour was remunerative. The Bill referred exclusively to prisoners under sentence of penal servitude. They were placed, in the first instance, in prisons, under the immediate control of the Government, where they were subjected to solitary confinement—the punishment most of all dreaded by them—for a period not exceeding nine months; and after that they were placed in associated labour at Portland, Chatham, or Portsmouth, where their labour was valuable. In Bermuda convict labour was made available for the benefit of the public; but, on the other hand, the convicts at Dartmoor, owing to physical causes, did not perform remunerative labour. Those convicts, however, underwent the same discipline as the others. The main object of this Bill was to enable the Government to send prisoners, in the later stages of their punishment, out of the country, to enable them to avail themselves as much as possible of facilities for removing prisoners from this country, and to meet the demand for the removal of a class of convicts, who, after their discharge, found themselves in a disadvantageous situation with respect to future employment. He quite agreed with the hon. Member for West Norfolk (Mr. Bentinck) and with the noble Lord, that labour of this kind ought to be remunerative; but he thought that that result had been as nearly attained as it could be. Under these circumstances, he thought that it would be an unnecessary postponement of an important measure to refer the Bill to a Select Committee.


said, he would not pretend to take either a legal or a judicial view of this subject, which he regarded as of immense importance, but he should endeavour to express some of the ideas which were prevalent upon it among that portion of the middle classes who, without having made it a special study, took a deep interest in any measure which affected the social well-being of the community. Without impugning the motives of those who built model palaces for the reception of our thieves and vagabonds, and making all allowance for the claims of health and humanity, he believed that the taxpayers of this country had long ago arrived at the conclusion that our benevolent and philanthropic endeavours to ameliorate the condition of our prisoners had been carried much too far, and that it was high time that the gaols of England were rendered somewhat more of a terror to evildoers than they were at present. The noble Lord opposite had talked of the superior condition of criminal prisoners to that of our soldiers; but the fact was, that in the majority of the gaols the prisoners were better fed, better clothed, had more educational advantages, and enjoyed more physical comforts than a very large portion of the industrial classes in this country. At Reading the temperature was more equable than in a gentleman's drawing-room, and in other matters the pampering of criminals was carried to a ridiculous extent. We had gone all at once from the cruel to the lazy system, and he felt most strongly that the effect of much of our modern legislation had been to send oar criminals back to society less able and less willing to earn their bread by the sweat of their brow than they were before entering the palaces in which they had been confined. He did not wish to underrate the benefit of religious instruction, but he contended that every prisoner should, as far as possible, be compelled to work for his subsistence, and that the system of idleness which now obtained in too many of our gaols far counterbalanced the advantages derivable from mental tuition. While of opinion, however, that the labour of our criminals might be much more profitably employed, he did not at all concur in the remark made by the hon. Member opposite that the people of this country were tired of transportation altogether. On the contrary, he believed that they agreed with a noble and learned Lord in another place (Lord Campbell), than whom, of course, there could be no higher authority, that the recent increase of crime had not been caused so much by the ticket-of-leave system as by our departure from the system of transportation. He, therefore, most cordially supported the proposition of the right hon. Gentleman, so far as it went, for sending a portion of our convicts to Western Australia, but he wished to impress upon the right hon. Gentleman that this was a mere temporary expedient, that it was only an adjournment of the difficulty, and that in a very few years it was probable there would be a surfeit of convict labour in that colony also. Besides this, they had yet to learn the effect which this proposition would have in the other Australian colonies. In the last Parliament the Government had stated that they had not the remotest intention of reintroducing transportation into those colonies which had expressed a disinclination to receive our convicts, or even of sending them into the immediate neighbourhood of such colonies. This remark referred to the Gulf of Carpentaria; but, on looking at the map, hon. Members would find that Western Australia was not very much further from Southern Australia than the Gulf of Carpentaria from our settlements in Moreton Bay. The Melbourne correspondent of The Times, in a letter dated October 29, wrote— The view we of Victoria take of this matter is, that even if Western Australia on the one side, and Moreton Bay on the other, should desire the cheap labour of convict slaves, we, the 800,000 people of the other colonies, ought not to be called upon to submit to have any part of this continent polluted by the presence of a fresh batch of Gipsy Smiths, Rocky Whelans, and Melvilles.… If England had intended to force convicts on any one of these colonies, Parliament should have withheld representative constitutions and responsible Ministries. He referred to these facts, not with a view to discourage the present proposal, but to show the House of Commons that they could not look forward to Western Australia as a permanent place of banishment, and that, therefore, it behoved the Government to look out in some other direction for what the people of this country so much required. On this point he might observe that he had not been convinced by what had fallen from the right hon. Gentleman (Sir J. Pakington), and the noble Lord the Member for Lynn (Lord Stanley), as to the disadvantages of the Falkland Islands as a penal settlement. It had been said that there were not sufficient free settlers there to employ our convicts, but why should not the latter be allowed to take land and farm it them selves? Neither did he think it so great a disadvantage that the convicts when liberated might, perhaps, find their way to Patagonia or to the countries bordering on the River Plate. If he remembered rightly the area of these islands was something like 13,000 square miles; the climate was healthy; they were removed from any settled Government likely to object to the neighbourhood of a penal settlement; possessed an immense number of most admirable harbours, and were in the high road of every vessel which came from our Australian colonies round Cape Horn. Altogether, he had heard no conclusive objection to the establishment of a penal settlement in those islands. He entirely concurred with an observation made by an hon. Member in the last Parliament, who said that the Government of this country had been more backward than those on the Continent in availing themselves of private institutions for the reformation of offenders. There was a strong feeling in this country in favour of such societies as the Discharged Prisoners' Aid Society of Birmingham, and there was a kindred institution in Westminster for the reformation of criminals between twenty and thirty-five years of age, the results attained by which were surprising. Since its commencement 600 criminals had been received into it, and of these 300 had adopted a new course of life, and were believed to be doing well, 170 of them being in the British colonies and the remaining 130 in situations at home. He would conclude by expressing a hope that no unnecessary obstacle would be thrown in the way of the present measure.


said, he was unwilling generally to refer to a Select Committee a duty which belonged strictly to the Executive, but he thought this was an exceptional case, and he was therefore disposed to support the Motion of his noble Friend. On a former occasion he had submitted to the House a Motion on this question which fell through for want of a seconder, owing to the accidental absence of his hon. Friend the Member for Antrim, and the merits of it were not therefore discussed. He wished now to say that he was not hostile to the principle of this measure; his objection was that, though a step in the right direction, it did not go far enough. The measure was a practical measure, but not sufficiently practical. The Secretary of State for the Home Department had told the House that convict labour was at present as remunerative as possible, but that he (Mr. Bentinck) denied. It was only so far remunerative as to demonstrate that it could easily be made much more so. He believed that not only could convict labour be made so remunerative as to exonerate the country from all the expense at present entailed in respect of our convict establishments, but even so as to yield a surplus which would enable the country to undertake measures of the greatest national utility, which never could be attempted without the assistance of convict labour. He did not altogether agree with the views which had been ably supported by Mr. Pearson, in his pamphlet on the mode of dealing with convicts, for he (Mr. Bentinck) held that the best plan was to send them to a penal settlement the access to which, and the possibility of escape from which, should be as difficult as possible. On a former occasion the hon. Member for West Surrey scouted the idea of convict labour being made remunerative. Now, if that hon. Gentleman would take the trouble to look into the documentary evidence upon the point, he would find that not only might such labour be made available, so as to cover the expenses of penal establishments, but to such a degree as to produce a large surplus to the State. That had been proved, not only in this country, but much more in America. Under the present system, every shilling laid out upon our convict establishments and the system of transporting convicts was a mere waste of money. Even financially regarded, therefore, it was worth while to investigate the subject more closely; but he contended that the plan which he recommended would work more beneficially than the present system as regarded the convicts themselves.


said, he thought the measure decidedly a step in the right direction; at the same time he trusted the question as to where this convict labour was to be employed would engage the earnest attention of the Government. Undoubtedly, in many parts of the country, the employment of convicts had been found to interfere with the free-labour market; at all events, he could safely affirm that, in the district with which he was connected, the rate of wages had been most seriously affected by the influx of convict labour which had taken place of late years. The right hon. Gentleman at the head of the Admiralty had declared that 12s. a week, which he acknowledged to be too small a rate of payment, was all that he had to pay to secure labourers for the public. Now, the simple explanation of that was to be found in the large accession of convict labour available in the districts where Government works were being carried on. The effect of the system around Rochester was, not only to render the rate of wages lower than in any other part of Kent, but even below what it was in the Midland counties. But, besides that practical disadvantage to the locality, there was a certain amount of unpleasantness to the honest labourer being brought into such close contact with the very scum of the nation. It had been stated that the whole of the embankments of the Thames below Gravesend were falling in to an alarming extent. The danger increased every year, yet it was not probable that any remedy would be applied; and the remedy was not obvious, as it was difficult to procure free labour to engage in such a task. He had heard a suggestion which he thought worth consideration, that the convicts should be employed in this work. This would be a considerable service, and by the amount of land that would be reclaimed for agricultural purposes, would not only make the labour of the convict self-supporting, but leave a considerable surplus. Such a work, if entered upon, would of course be carried out by contractors, who would find it to their interest to employ the convicts at wages after the expiration of their sentences, and thus enable them, if they chose, to regain, in some degree, a character for honest industry.


appealed to the hon. Gentlemen whether they would promote the progress of the Bill before the House by continuing a desultory discussion upon the large and general question of secondary punishments? The point they had to consider was whether they should go into Committee upon a Bill for removing an obstruction to the practical working of the existing Penal Servitude Act, and it was sheer waste of time to debate the question of transportation. He had been struck by the circumstance that all the opponents of the present measure had expressed their entire approval of it, only slating their wish that something further might be done. Believing with them that imprisonment had become too mild a punishment, and that a severer and more remunerative system ought to be adopted, he saw no reason why that question should be mixed up with the object contemplated in the Bill before the House. No man could take a greater interest than he did in the subject of transportation, and secondary punishments generally; but it had been investigated by Select Committees over and over again, and if the noble Lord who wished for further inquiry would take the trouble to read the half-dozen blue books which he would find in the library, he would there find more than all the information which a new Select Committee could possibly elicit. It was all very well to talk of the desirability of reviving transportation. Was it practicable to do so? He was afraid not; and, at all events, no hon. Gentleman had established the possibility of selecting any place to which our convicts could be sent. All the desert spots which existed a century ago were now inhabited, chiefly by men of our own race, and those who pointed to North Australia for the establishment of penal settlements were ignorant of the great changes which the last few years had witnessed. Previous to the passing of the Penal Servitude Act, the sentence of transportation had become so uncertain as to be a positive evil. The element of uncertainty, however, attached to the ultimate disposal of criminals out of England. The sentence of Penal Servitude was not liable to the same objection; for it would have no uncertainty in itself and would confine the dangerous element of uncertainty to the mere sequel of punishment. There was a serious obstruction to the working of the existing Act, and it was because it fully and effectually removed that obstruction that he would give his support to the present Bill, especially as it exactly adopted his own suggestion which he moved as an Amendment to the Committee's Report.


thought that means ought to be adopted to make the labour of our prisoners remunerative. In other countries, particularly Holland and America, that important object had been accomplished, as he could testify having visited very many penal establishments there. In New York the labour of convicts was made so profitable that, as he was informed by the governor of that State, in a few years it would pay off the cost of the prison in which they were confined. At Kingston, in Canada, the prisoners quarried the stone for the convict prison, and did all the masons' and carpenters' work under the superintendence of master masons and carpenters. In Holland, the labour of prisoners paid for their entire cost. He had no objection to the present Bill, but it was most important that the Secretary of State should so employ the convicts, that the cost of maintaining them should be less excessive. He believed that there would be plenty of room for employing them without displacing the labours of honest and industrious men.


said, that having been a Member of the Select Committee which sat last year upon this question, and as one of those who were usually opposed to his hon. Friend (Mr. Adderley), he could not refrain from offering a few remarks to the House. He was one of those who held that the notion of the impossibility of recurring to transportation was quite inadmissible. He believed that not only was it possible, but even easy to devise the means of returning to the system of trans- portation. No doubt the arrangement would be an expensive one—much more so than keeping the convicts at home; but at the same time, it was equally true that a well-organised system of transportation was the fittest punishment ever devised by the ingenuity of man for the worst classes of criminals. Her Majesty was said to rule over dominions on which the sun never set; if so, it was absurd to maintain the impossibility of discovering a location for a convict settlement in such an empire. It was only that morning he had been reading the evidence given before the Lords' Committee upon the subject, and he was particularly struck by the testimony of a gentleman who had himself surveyed the territory on the Gulf of Carpentaria, which he described as being admirably adapted for sheep farming and every purpose suitable to the wants of a labouring population. Indeed, the only objection urged against that district for a penal settlement was, that it might be said to be too near some portion of the settlements of New South Wales. But Moreton Bay was at least 100 miles from the Gulf of Carpentaria, whilst the nearest points of the two territories were from 500 to 600 miles asunder. Could it be admitted as an argument against sending a few of our convicts to this point, that a few of them after liberation might find their way into one of these colonies? He thought they ought to respect as much as possible the feelings of the colonists, and there ought to be no attempt to force convicts upon a colony that objected to receive them; but it was a mere piece of sentimentality to say that convicts ought not to be sent to within 1000 miles of a colony that objected to receive them. Again, with respect to Vancouver's Island, here was a territory with great mineral wealth and a most fertile soil, and the only two objections to availing ourselves of it for a penal settlement were, first, that it was too far off, which resolved itself into a question of expense; and, secondly, that some of the convicts might get down to California, and thereby the displeasure of the United States Government might be incurred. But, surely, if they were to be influenced by such reasoning as that they might as well at once surrender their judgment altogether. He could not help thinking, that if the right hon. Gentleman the Secretary for the Colonies would devote his great experience to the consideration of the question, all those difficulties would soon disappear. He was well aware that the Colonial Office was opposed to the system of transportation; but that was no reason why, by a slight exercise of their ingenuity, they might not be able to devise a means of relief for a great evil. At all events, he believed that the people of this country were heartily sick of the present mode of treating convicts; and, though they might pass Bill after Bill, they must all end in failures unless they reverted to transportation. Upon that the people of England would yet insist, and if necessary, that a large proportion of our colonial dominions should be apportioned for the purpose. He certainly did not mean to oppose the Bill of the right hon. Gentleman, at the same time that he thought it left the main difficulties of the question untouched.


confessed to joining in the regret expressed by several hon. Gentlemen, that instead of allowing them to go into Committee on a Bill which dealt with a very small, though, nevertheless, a very important part of the subject, the House should show a disposition to embark upon the much larger question. At the same time, some observations had been made, and especially by the noble Lord who had just sat down, that were of a character necessarily to call for some remark at his hand. He could assure the noble Lord (Lord Naas) that he had endeavoured to bring a mind quite unprejudiced to the investigation of the important question how far the extent of the Colonies could be made available for a great national object—the reception of at least a portion of those criminals whom it might be desirable to transport; and he must admit that the results of that consideration were identical with those arrived at by every one who had examined the question—namely, that there was no subject which the House of Commons ought more carefully to investigate, if they were not prepared to risk an alternative which he was sure they would witness with the deepest regret, namely, the discontent and alienation of a great portion of the Colonies. Be it right, or be it wrong, and for his part he could not help seeing that at the bottom of such a feeling there was an honourable sentiment well worthy of Englishmen—but be that as it might, wherever Englishmen were found scattered, all over the world, there would be an objection to submitting to the contamination of association with convicts. They might rely upon it this was a question of passion and feeling quite as much as interest. He believed that the Australian colonists were in these days as sensitive upon the question of transportation as were in days gone by the people of America upon that of taxation.

The noble Lord the Member for Cocker-mouth seemed to think it was a mere piece of sentimentality in the inhabitants of Sydney and Moreton Bay to object to our sending our convicts to the Gulf of Carpentaria, and had recommended us to establish a convict settlement there. Now, what would be the result of such a step? At the present moment the sheep farms and feeding-grounds of Moreton Bay had extended to within about 500 miles of the Gulf of Carpentaria. It was a well known fact in Australia that wherever sheep-farms extended men were in the habit of travelling from one part of the country over the space that intervened between it and another settlement. There would then be, in the event of the Gulf of Carpentaria being made a convict settlement, a constant succession of convicts passing over into the other parts of the colony, and the Government would, of course, be charged with breaking the pledge they had given not to place convicts in a spot from which they could easily escape. A short time ago he received an address from the Legislature of Tasmania, which was to the extreme south of Australia, directly asking the Home Government not to establish a penal settlement in the northern portion of Australia, by which they must have meant the Gulf of Carpentaria, inasmuch as the district lying to the west of it on the north coast was unfit, from the nature of the climate, to be made the residence of Europeans, and was suited only to the occupation of a semi-Asiatic colony. His belief was that they would be acting most unwisely if they attempted to disturb the present state of things. As regarded the penal settlement established on the shores of Western Australia, that place was singularly well formed for such a settlement. It was insulated from the other parts of Australia by a great desert which lay between it and them. Although, geographically speaking, it was a part of Australia, it was in reality almost as much separated from the other parts of that great continent as if it were in another quarter of the world, and its communication by sea with them was even less than with India and other parts of Asia. Above all, it was a place that had been accepted as a convict settlement by the other colonies; and they could not hereafter with justice complain of it. He, however, hoped and expected that it would not be deluged by our convict population, but that care would be taken to classify them, and that they would only send out such of our criminals as were likely to be reformed and to become useful members of society. Many hon. Members appeared to think that they could select any spot in the world for a convict settlement. That, however, was a great mistake. It was not a mere question of looking for a vacant space, and sending convicts to it; they had to consult the feelings of other nations, or of communities, who would be affected by the operation of the system. In Bermuda, for instance, they had pardoned a few men who had full liberty of action accorded to them. Those men had found their way to the United States of America. The United States then passed a law that any vessel coming from Bermuda with a single pardoned convict on board should not be allowed to break bulk, but be at once sent back to her place of departure. That being the case, was it safe to legislate in disregard of the feelings of other nations? If our convicts found their way to other countries, all our attempts would be frustrated by the feelings of resentment which would be excited. We were bound to consider the feelings of the Colonies in deciding on this question. If we did so, we might still carry out the system in Western Australia, in so far as we were justified by professed declarations and announcements made to the Colonies, but even that must be done with caution. If caution were not used, and if our noble colonial possessions were used for purposes for which they ought not to be used, a spirit of hostility would be aroused which it would be found anything but easy to allay.


concurred with the right hon. Gentleman in thinking that the utmost regard ought to be paid to the feelings of our colonists, and that on that account that this was, as he said, a subject that should be approached with great delicacy and caution; but he must at the same time observe that the colonists themselves had not displayed upon the subject of transportation that degree of forbearance which they ought to exhibit. It had been more than once or twice asserted by persons connected with the colonies, in a tone almost of menace, that they would not permit the soil of Australia to be polluted by the presence of convicts. This was, in fact, not only prescribing to the Imperial Parliament the principles of colonization and of government that should be adopted throughout the whole of that vast continent, in regions far beyond their own limits, and wholly within the Imperial dominion; but thus, those who represented the older and more flourishing colonies of New South Wales and Victoria ignore, in the case of other colonies, the privileges of domestic self-government which they claim for themselves, and which we willingly accorded to them. If this feeling were to be acquiesced in, it would be impossible to send any of our criminal population even to the independent colony of Western Australia, which was anxious to receive them; but, passing to the consideration of the Bill before the House, he wished to state, as a Member of the Select Committee which had, some short time ago, sat upon the subject of transportation, that his views were very much in accordance with those which the noble Lord the Member for Cockermouth entertained. He believed that we might easily find some locality to which we might with safety send our convicts, and that while approaching the subject with great delicacy and caution, they might again resort to a system of transportation. It had been said that the Bill merely proposed to remedy some defects in the Penal Servitude Act, and if that had been its sole object he, for one, should not oppose it. But it went much further, inasmuch as the very first sentence of the second clause, while it retained, to a certain extent the reality of transportation, struck at the root of a most essential matter—the passing of the sentence—in a manner totally at variance with the evidence which had been given by the Judges before the Select Committee. The Bill, indeed, had been well described as taking away the power of passing sentence from the Judges, and vesting it in the hands of the Secretary of State for the Home Department—a course which was, in his opinion, highly inexpedient, because he could not help thinking it was very desirable that the Judges should be able, in particular cases, to pass sentence of transportation in open court. He did not care what it might be called—whether transportation or penal servitude beyond the seas—but let the Judges of the land be empowered to pass a sentence having that deterring effect which those engaged in the adminis- tration of justice unanimously attributed to the sentence of transportation. He thought that in another point of view, also, the giving this power to the executive was most objectionable. Even granting that it would be always impartially and carefully exercised, yet they should remember that while the Judge had, at the trial, not only the proof of the prisoner's guilt, but all the other circumstances of the case before him; this knowledge could only be obtained by the Secretary of State by the, perusal of documents and papers which would, after all, give him but an imperfect knowledge of the facts which would have guided the Judge in passing sentence. He would say further, that a personal perusal of the papers, in the case of all prisoners who might be sentenced to long periods of penal servitude was beyond the powers and strength of any Home Secretary, and thus practically the determining of each prisoner's sentence would rest not with the Secretary of State, but some subordinate in his department. The Home Secretary said, that one of the objections to the present system was that, when a man was sentenced to transportation, there was an uncertainty whether that sentence would be carried out; but the system now proposed to be substituted would be just as uncertain; for a man sentenced to penal servitude would be left in the dark as to whether that sentence involved expatriation or not. He believed that the sentence of expatriation was a very deterring sentence, and when the second clause came to be discussed he hoped the Home Secretary would not object to the omission of the words which declared that no sentence of transportation should be pronounced. He believed that the learned persons who administered the law would not make the sentence of transportation common, but would reserve it for great and important cases, where it was necessary to make an example.


said, he trusted he should receive that consideration and forbearance which were never refused to a young Member who for the first time in his life addressed the House of Commons. He thought it desirable to define what penal servitude really meant. His view of penal servitude was, that it ought to be remunerating to the State, and reformatory to the individuals subjected to it. He believed that they could not venture now, except upon a limited scale, to revive the old system of transportation, and they could not throw off their own shoulders the responsibility of dealing with their criminal population at home in the first instance. If a judicious system were established, he was sure that, so far from the colonists making objection to it, they would, on the contrary, be very glad to receive our adult criminals; but before sending them abroad, they should be compelled to undergo a certain period of probationary labour at home, during which they might test the desire to recover that character which they had previously forfeited. He would not send abroad to our distant Colonies convicts with the brand of criminals, until they had been tried by hard labour and severe tests, with a view to their reformation. They were now attempting to reform our young criminals, and he was not one of those who looked upon a man as altogether irreclaimable, because he was twenty years of age. They had neglected the education of the young, and they were now impatient at their suffering from the adult offenders. Hitherto their only remedy had been to get rid of our moral pollutions, much in the same way as we were in the habit of ridding ourselves of the physical pollution of this great city—namely, by throwing it into the river Thames. He, however, believed there was that in every man which, if only brought out, would tend to reform him, and make him a useful member of society. He hoped, therefore, that their system of penal servitude would be made something like a remunerative and reformatory treatment of criminals.


said, that if he thought this measure were intended to abrogate the system of transportation he certainly should not support it; for he was disposed to agree to a great extent with those who believed that outraged society at all times had done right in getting rid, as fast as possible, of any moral sore which was injurious to its social condition. It had been argued from the example of Norfolk Island that transportation was an unsuitable punishment, and it had been set down as a type of the system; but it was unfair to use that instance for such a purpose, because it should be recollected that the people sent to Norfolk Island were not fit associates even for criminals. The advocates of the abolition of transportation seemed to forget the advantages derived from that system in ancient times, and even down to a modem period. The germ of the magnificent empire in the West was formed by transported criminals, and Australia, the great empire of the south, likely to rival, in no long time the great empire of the West, also had its origin in the same class. Therefore, there were ample proofs that transportation had been attended with advantageous results to society and the world. But if they determined on abolishing transportation, and keeping all their criminals at home, what would be the result? It appeared from a pamphlet transmitted to him by the City Solicitor, that in the third quarter of the last century, according to Howard, the criminals in gaols in Great Britain amounted to 1,200, and the cost of keeping them to £5,000 per annum, the population being about 7,500,000. Since then the practice of transportation was greatly relaxed, and had altogether ceased within the last few years; and it appeared there were now 20,000 criminals in Great Britain, costing £400,000, the expense for gaols, hulks, and other matters in addition, being £200,000, the population being about 18,000,000. Thus, the number of criminals had increased more than 1,600 per cent, and the cost of keeping them nearly 5,000 per cent, while the population had not increased 250 per cent. He looked upon the present Bill as not taking away the power of transportation, but as giving the Home Secretary a double authority, one part of which consisted in the right to confine criminals in gaols in this country, in which the criminals were often better clothed and fed, through mistaken philanthropy, than the honest and industrious operative. The Bill permitted any amount of penal confinement from five to ten or fifteen years, and the Home Secretary was also allowed, after thoroughly knowing the character of the criminals, to send them out to Gibraltar, to Bermuda, the western parts of Australia, or to other parts of the world, according to his judgment. This would, at all events, give the Home Secretary the power of transportation without the name of transportation. He could not doubt that that was a wise and prudent provision. The Bill would still continue, and it could not be avoided, a great evil, which must always be felt in reference to criminals confined and released in this country. They unfortunately went back to society with the mark of Cain upon them, and were regarded with jealousy, dislike, and suspicion, so that they found it difficult to procure occupation. In all such cases it would be only an act of humanity to assist such persons to leave the country and to prevent their reverting to their former habits of life. He hoped and trusted, therefore, that it would always be kept in view that a criminal released from gaol should receive assistance to enable him to leave this country and establish himself in a place where, removed from his former associates and from the stigma attaching to him, he might be afforded an opportunity of becoming a useful member of society.


wished to make a few observations upon the question, as he had been unable to attend on the former occasion, when his hon. Friend the Member for West Norfolk (Mr. Bentinck) moved his Amendment. He did not think that the Bill went as far as it ought, in order to satisfy the country and to relieve it from that feeling of danger arising from the ticket-of-leave system. For a number of years in Ireland he had taken an active part in the management of the gaols. He had also visited the principal gaols in England to ascertain the nature of the system that was established in them. The great fault of the English establishments, in his opinion, was, that they never persevered far or long enough in the experiment. The gaols in Ireland and England had altogether a different system. The one had established a system of remunerative labour; the other one of punitive labour. If, however, we had one uniform system carried out, he thought we should have a large amount of remuneration from this labour, and that we should be reforming our criminals and making them better subjects. He wished to impress upon the right hon. Gentleman the Home Secretary the propriety of testing the system of convict labour to the utmost. He (Mr. Macartney) had spent two or three days examining into the system adopted at Portland. One portion of the labour there worked admirably, but when he came to the portion of the works where free labour was employed, he found that the men employed at the latter were discontented with their condition, and complained that the convict labourer was better fed and better cared for. Now, he contended, that if a proper uniform system were established, the criminal classes would be able, at the end of four or five years, by the remuneration which they received, to assist themselves in going to another country. What was the system adopted, with respect to the ticket-of-leave men? After they had been working in an establishment for a few years they were turned out of our gaols. Those parties could not go to their former places of residence because they would be too well known there. They went into public-houses, and some of them before the expiration of forty-eight hours were again committed to prison. They ought to carry out the system of convict labour as exclusively convict labour. The managers of Portland prison said, that the convicts could do the whole of the labour except the driving of the mill. The civil engineer and contractor expressed the opinion that convict and free labour should never be permitted to go on together. He (Mr. Macartney) fully concurred in that opinion, and did not see why that experiment should not be tried. He only hoped that the country, which was calling upon Government for harbours of refuge to protect its trade, and which was so heavily taxed for the late war, would insist upon this convict labour being applied to such useful works—works that would prove remunerative to the convicts themselves, and would enable them at the end of five or six years to go to other countries with their little capitals, and to establish themselves as respectable members of society. He held in his hand a letter which he had lately received from a friend of his who had settled in Western Australia, and who occupied a high position in that colony. He arrived there in 1855, and he would read a paragraph from his letter expressing his opinion of the place in connection with the subject they were discussing— The climate here is delightful, parts of the country are most fertile; it is an admirable penal settlement here, and an ample field for honest industry within it. There is little possibility of convicts getting away from it. They must either reform or starve. There are few persons or none to rob. In a subsequent letter he stated that he could take treble the number the Government could send out there, and the most industrious ticket-of-leave men there was the Irish, because they were generally agriculturists, and those were the people the colony required. The inhabitants, one and all, were anxious to have a good supply, of convict labour to improve the colony and to increase its resources. He would not trespass further on the attention of the House, but he wished to impress upon the Government the necessity of fully testing the system of convict labour.


said, that it was impossible to maintain the convict population of this country within its own limits, and he had no doubt that, under a judicious system of management, some colonies would be glad to receive convict labour. The reason that I receiving convicts in New South Wales and Van Diemen's Land had become obnoxious to the colonists was, that through, the defective system which prevailed, those colonies had been saturated with convicts. No doubt, in certain places there might be an objection to convict labour, because the majority of the colonists being squatters would not wish to see the land reclaimed; but that objection could have no force. It was said that North Australia was not a fitting place for convicts, but the failure of Port Essington as a convict settlement, arose not so much from its climate or position, as from bad management. He did not think that New South Wales—the boundaries of which colony had been accurately defined—had a right to complain of the settling of convicts in North Australia, and that colony had no more to do with the settlement of the Gulf of Carpentaria than any other country. He contended that Carpentaria afforded much encouragement for thousands of our convict population, and it was only one degree warmer than Bermuda. Western Australia, too, and a large portion of the coast, which was yet unexplored, could be made available for the reception of our convicts to any extent. But even if the colonists were unwilling to receive that population, why not try home labour? There were persons in this country who would be glad to receive convict labour, and one gentleman, a friend of his own, had told him by letter, that if he were allowed 1,200 convicts, he would maintain and guard them on the northern coast of Cornwall. There was a gigantic scheme on foot for the drainage of London and for the embankment of the Thames, and these were works upon which convict labour might well be employed without interfering with free labour, and at the same time at a great saving to the State. He was satisfied that if the Government would turn their attention to the subject, they would see many ways of turning convict labour to advantage, without doing anything detrimental to the interest of the honest working man.


wished to suggest that transportation to Australia or North America, or any of our Colonies, had ceased to have a deterring influence on our criminal population. Criminals ought, in the first instance, to be subjected to punishment at home, where the effect would be known to their associates. Our criminals were not reformed in the gaols; but he believed that those who passed through our gaols and were then sent to reformatories might undergo a process very salutary to their character. He trusted, however, that the Government would send abroad those only who, instead of being injurious to the Colonies, would be beneficial, and he felt confident that many of our colonial possessions would be glad of such convicts. In his opinion the convicts were not the worst part of our population, for some of the greatest criminals were fortunate enough to escape conviction and punishment. It had been said that the criminal population was increasing so much in the country that they could not be allowed to remain at home. He would not detain the House longer than to express the hope that more attention would be paid to the prevention of crime than its punishment.


having been employed for many years in conducting works under the Crown, in which convict labour was employed to a great extent, wished to state that he had always found the work well performed by the convicts, the employment of whose labour was decidedly economical; and he asserted that the work performed by them (taking into consideration their maintenance, and the cost of constructing the buildings that contained them) was performed cheaper than by free labour; and that therefore their punishment need cost nothing to the country. The convicts generally expressed an opinion that transportation is the most deterring kind of punishment. He thought the Bill would give the Home Secretary the power of imposing a punishment adapted for the crime committed, and he would therefore give it his cordial support.


was very glad to see the manner and spirit in which this Bill had been drawn; and, as he thought it would tide over a difficult period, he should support the Bill.


said he thought the discussion which he had originated would have been the means of extending the operations of the right hon. Gentleman's Bill. He regretted, however, to find that the sense of the House was against him; and that being the case, he would not press his Amendment.

Amendment, by leave withdrawn.

Main Question put, and agreed to.

Bill considered in Committee.

On Clause 1—(16 & 17 Vict. c. 99, ss. 1, 2, 3, and 4, repealed).


said, that he rose to move an Amendment, which would render the Bill more acceptable to the country, and more serviceable to the administration of justice. He proposed to add to the repealing clause, which was the first, the three sections of the 16 & 17 Vict, which created for the first time the ticket-of-leave system. The effect of repealing these clauses—namely, the 9th, 10th, and 11th, would be entirely to abolish the ticket-of-leave system—a system which had not realized the anticipations of those who advocated its adoption, and which had interfered most injuriously with the administration of criminal justice. There could be no doubt that the experiment of tickets of leave had created considerable alarm in the country. It must be admitted that in this, as in all panics, there had been exaggeration, but still there had been so large an amount of apprehension that it would be impolitic to allow the cause of it to continue. All who had spoken upon the subject had dwelt upon the necessity, as far as possible, of certainty as to the execution of sentences pronounced. If that were true generally it was still more true in the present case, because the Bill contained necessarily within itself the principle of uncertainty, justified, indeed, by the existing state of things. When a Judge sentenced a prisoner to a term of penal servitude there was uncertainty whether the sentence would be carried out in this country or abroad. That uncertainty, however, was matter of necessity, and he, therefore, concurred with the great majority who were in favour of the Government Bill (as being the best course which could be pursued under the circumstances). But if the ticket-of-leave system were allowed to continue in existence, together with that which would be established by this measure, the further element of uncertainty as to the duration of the sentence would be very unnecessarily introduced. If the object of those who originally introduced that system was merely the improvement of the conduct of the convict whilst under punishment, the system might perhaps be considered as not having failed. But there were higher objects to be considered, namely, the reformation and permanent improvement of the convicts. And so far as the system had been tried, it had not only proved a failure in this respect, but had been a serious injury to the country in a variety of ways. Indeed, it had only been prevented from doing more mischief by the wise and judicious manner in which it had been administered by the Home Department. Not only was it the opinion of the country that the system had been a failure, but such also was the result of the evidence which had been given before the Committee which had sat to inquire into the subject. Of that evidence it might be observed that, with a few exceptions, those persons who were concerned in the conduct of the convicts whilst under detention, gave the strongest testimony in favour of the system, whilst those who had to deal with liberated convicts—whether English or Scotch; whether the police, from Sir Richard Mayne to the lowest constable, or the sheriffs and sheriffs' substitute—were decidedly adverse to it, and unanimous as to its failure. The facts which their evidence contained had been endeavoured to be overthrown by Colonel Jebb, the Inspector General of Prisons, and his assistant, Captain O'Brien, who tried by statistics to overthrow these facts. But the inferences drawn from these figures were evidently deduced by persons far too sanguine as to the success of the experiment. Captain O'Brien jumped, for instance, to the conclusion that because only twenty per cent of the ticket-of-leave men were known to be recommitted, eighty per cent were reformed. This was a forced conclusion to arrive at even if the figures were correct. This, however, they were not, for it appeared clearly both that the returns, on which he founded his conclusions, embraced less than half of the time during which the system had been in operation, and that there was no means of ascertaining what really became of the ticket-of-leave men. The Committee had, indeed, no data before them from which they could come to a decided conclusion as to the success of the system; but so far as the evidence went it amounted to this, that it had failed in effect in its object beyond securing the good conduct of the men while in gaol. It had not secured the reformation of offenders. But the advocates of the system maintained that the reason the system had failed was because—one essential impediment of the system—that of surveillance upon the ticket-of-leave men had not been enforced, as was originally intended by those on whose plans the system had been originally founded. The evidence certainly showed that the Home Secretary had wisely abstained from that surveillance over the ticket-of-leave men which had been proposed, and which, if enforced, would, he believed, have thrown the country into a state of terror much worse than that which had existed. Besides, if surveillance had been enforced, the whole system would have broken down, for the only effect would have been to augment the difficulty of the men finding employment, and thus to drive them into crime. He was not for excluding the element of hope from the treatment of the prisoners; but, at the same time, nothing was clearer than that in nine cases out of ten the criminal's good conduct in gaol was no proof of his reformation. In fact, the evidence went to show that the worst characters were often the best conducted in prison. The element of hope ought to be secured in such a manner as not to import the element of uncertainty as to the absolute duration of the criminal's period of punishment, which, of all things, was the most mischievous. He would allow their good conduct, therefore, to improve their status in gaol, but would not permit it to affect their term of imprisonment. No uncertainty would thus be introduced into the execution of the sentence pronounced at their trial; and he believed that the men were more likely to be sent home wiser and better men than if they had obtained a ticket of leave by an apparent reformation, which facts satisfactorily showed did not often in reality take place. The whole system was an evil unless it could be shown that it ensured some advantage which counterbalanced the great evil of uncertainty.

Now, what, in the fact, was the benefit supposed to have been derived from the system? The best commentary on the system or rather upon the opinion entertained of it by the Home Office, appeared from the statistics furnished by the Home Secretary on introducing the present Bill in February last, which showed that at the passing of the Act which established the ticket-of-leave system, there were 10,000 convicts under sentence of transportation: 7,000 of these had received tickets of leave; 2,000 were transported, and the remaining 1,000 were disposed of otherwise. But from the passing of the Act, which came into operation in September, 1853, up to February last, the Home Secretary had only granted tickets of leave to fifty-three other and additional convicts. Therefore, it was evident that the Home Office had confined the employment of the system to clearing off the convicts existing at the time it came into operation, but had not materially extended its operation to those who were subsequently convicted. No case, therefore, was made out for the system. Unless its advocates could show that it produced good with reference to the objects contemplated by them, and that that good quite counterbalanced the admitted evil, these clauses ought not to be retained in the Bill. They could be struck out without in any degree affecting the operation of the rest of the Bill, and he must urge upon the Government that their omission would materially improve what was admitted to be an extremely good measure. The clauses were very unpopular, and the only reason which the right hon. Baronet had given for their retention was, that it might sometimes be useful to give a man a ticket of leave. He (Mr. Keating) believed that there was no case in which a pardon would not operate more beneficially than a ticket of leave. The evils that this ticket-of-leave system produced were greater than could be accurately computed. The law ought to be paramount; but this system put the executive above the law. Moved, after "four," to insert the words "nine, ten, eleven.


seconded the Amendment, for the retention of the clauses would only increase the difficulty which had arisen as to the disposal of convicts since the refusal of the colonies to receive them. The great difficulty lay in the solution of the question what was to become of convicts when released. He would not repeat the arguments of the hon. and learned Gentleman, but he must express his hope that the Government would not be induced to give assistance to the prisoners on their discharge such as he had heard proposed, for he must view with apprehension the association of a great body of men, to say the least, of doubtful character, on public works, over whom the Government had no legal control. He would, however, express a sanguine hope that employers and workmen would not object to receive these persons among them. Emigration, however, best supplied all the conditions necessary for completing the reformation of the convict. A new country, a great demand for labour, high wages, old associates and haunts left behind, and his past life a sealed book—these offered the brightest prospect to the released convict, and afforded the greatest relief to the country; and, in his opinion, no colony would refuse convicts who had shown such a disposition for industry as a voluntary emigration would betoken. These tickets, however, only licensed a man to be at large in the United Kingdom and the Channel Islands, and would therefore prevent his emigrating. It might be said that this prohibition would not really be enforced; but, was it consistent with the dignity of Parliament that laws should remain upon the statute book, the provisions of which the Executive were prepared to see broken without raising a finger to stop it? If the convict, from want of money, or owing to family ties, could not emigrate, the ticket of leave had a most injurious effect upon his prospects. His best chance was to be freed from any police espionage, however slight. This system had excited much opposition, and he believed that, except a return to the system of transportation, nothing would be more acceptable to the public than its abolition.


said, that a very important question had been raised by the Amendment, or rather by the speech of his hon. and learned Friend the Member for Reading (Mr. Keating). The effect of the Amendment would be to repeal those three clauses of the Bill which gave power to the Crown to attach conditions to the discharge of a prisoner by means of a ticket of leave; and his hon. and learned Friend wished to raise the question which was raised before the Committee last year—namely, whether sentences of penal servitude were to be carried out to their full extent, or whether a system was to be adopted by which prisoners might indulge the hope that by good conduct in prison a portion of their sentences might be remitted. The only effect of repealing the clauses alluded to, however, would be, that that portion of the sentence remitted would be remitted unconditionally, instead of being subject to the conditions imposed by the ticket of leave; but it appeared to him that it was very important to consider on what terms and subject to what conditions the remission of a portion of a sentence, if it took place at all, should be permitted. Upon this subject he was anxious to repeat what he stated in February last, when he first introduced the Bill. He stated, then, that he thought the test of good conduct in prison was necessarily a very imperfect one; the prisoner was then in an unnatural state, he was removed from the ordinary temptations of life, he was expected to conform to certain prison rules, and no doubt he had very strong motives for placing his passions under restraint and observing the prison regulations. There were therefore many men who, without the slightest change of character, might honestly obtain a certificate for good conduct in prison which would afford no guarantee that on discharge from confinement their conduct would continue to be exemplary. At the same time he (Sir G. Grey) qualified to some degree that statement, because he was of opinion that compelling persons to conform to regulations tended to induce habits of order and good conduct, and he was not without hopes that those habits of regularity formed in prison might sometimes be continued after a restoration to freedom. He also stated that a good deal of the prejudice against tickets of leave arose from the large period of the sentence remitted to convicts under sentence of transportation when that punishment was abolished. And, further, that having looked carefully at the evidence, he found that the Judges and almost all the witnesses, who had paid much attention to the subject, thought that it was expedient to give to prisoners, under sentence of a long term of imprisonment, the stimulus of hope, that hope being that the remission of a portion of their sentences might follow as the result of good conduct in prison. He therefore, in deference to that opinion, said that if this Bill passed, and sentences of penal servitude were substituted for transportation, the Judges, knowing the nature of the sentence, should be in a position to explain to the prisoner that a certain portion of his sentence must be endured as a matter of course, but that beyond that there was a margin, if he might so call it, which might be remitted, but would certainly be inflicted if the prisoner did not conduct himself satisfactorily whilst undergoing the first portion. He thought that this was desirable, because all the evidence with regard to the conduct of prisoners in gaol led to the belief that they might be much more easily managed by the holding out of that stimulus than by any other means. Adverting to the second question—namely, on what terms and subject to what, if any, conditions the remission of a portion of the sentence should take place, he (Sir G. Grey) was further of opinion, that a lesser portion of the sentence should be remitted than formerly, and that the remission should in general be unconditional. A ticket of leave did not carry restriction upon the holder into a foreign country; but a ticket-of-leave man was, as regards the colonies, under a restraint which nothing but a colonial Act could relieve him of. He would be illegally at large in a colony unless such an Act as colonists would not be likely to favour were passed to meet his case. Under those circumstances he (Sir G. Grey) had arrived at the conclusion that it was better that the portion of the sentence remitted should be shorter, but unconditional. Nevertheless, he did not think it would be judicious to deprive the executive of the power of putting released prisoners under the restraint of a ticket of leave, where such a restraint was thought advisable. He agreed with his hon. Friend the Member for Bedford that it was undesirable that the Government should hold out advantages to discharged prisoners, and thought that that should be left to the agency either of private individuals or of associations formed for that purpose. On the former occasion he had alluded also to the numerous class of cases which were constantly occurring, in which magistrates and other authorities recommended, on the certificate of the surgeon, the remission of a portion of a prisoner's sentence on the ground of ill-health, which would make further imprisonment dangerous to life. It was astonishing how large a number there were of these cases, and in how large a proportion of them the prisoners relapsed into crime after their release. He had no doubt that these certificates were honestly granted; but remissions of this character ought, he thought, to be subject to tickets of leave, making them revocable in case of a relapse into crime. There must be other cases also in which this power would be useful, and therefore he did not think it would be advisable to repeal the clauses objected to by the Amendment of his hon. and learned Friend the Member for Reading, though he should not be disposed to act on that power in general cases. It was a mistake to suppose that the only novelty about tickets of leave consisted in issuing them in this country, the ordinary system having been for years to grant them in the colony. The real difficulty which was experienced here was, what to do with convicts when they were ultimately discharged, whether upon tickets of leave or upon the expiration of their sentence, and he referred to a charge of Baron Bramwell's, in which that learned Judge said that the complaint which was directed against the ticket-of-leave system, really arose from the circumstance that all our prisoners were now discharged at home, instead of being discharged abroad, and that many of the crimes which were supposed to be committed by ticket-of-leave men were committed, not by them, but by persons who were at large after having completed the entire period of their sentence. There could be no doubt that a large portion of the crime which was committed in this country was by persons who had been formerly convicted, by persons who had been trained to crime from their infancy, who had been convicted over and over again, and who formed, in fact, the criminal population of the country. The great problem which Parliament had to solve was, first, how to deter those persons from crime by making the punishment which followed a real object of terror; next, how to reform prisoners when in confinement; and, lastly, and most difficult of all, how to deal with prisoners upon the expiration of their sentence, so as to prevent them relapsing into crime, and place them in a position to redeem their character, and by industrious pursuits to become useful members of society. It was with the view of, in some degree, meeting these difficulties that the present Bill had been proposed, and he trusted that the Committee would not consent to repeal those clauses authorizing in certain cases the granting of tickets of leave, and would not declare it to be inexpedient to remit, under any circumstances, a portion of a prisoner's sentence.


said, that in his opinion the statement made by the right hon. Gentleman, with respect to the intended practice of the Government in that case was of a very satisfactory character. He quite agreed with the right hon. Gentleman that it would be a great misfortune if criminals were altogether deprived of the hope that they might, by good conduct in prison, gain some remission of their sentences. But at the same time, he should say that he very much regretted that the right hon. Gentleman had come to the conclusion that he ought to retain the power of granting tickets of leave, especially as he himself had made observations which tended to confine the arguments of the hon. and learned Member for Reading. The great difficulty was to know what to do with convicts after they had been let loose from gaol, from the flux of time or the mercy of the Crown. He believed that if that difficulty could be aggravated by any human means, it must be by the employment of the expression "ticket of leave." That expression had created considerable alarm throughout the country, and any person to whom it was applied was looked upon by people generally as much worse than a criminal who had undergone the full amount of punishment to which he had been sentenced. Convicts used to return from transportation, having served out their time, or having served ten years for fourteen years, and nobody seemed to take any notice of them; but since the use of the term "ticket of leave," every discharged convict seemed to be thought something worse than a criminal—a person whom the Government was afraid to set at liberty without keeping some hold upon him. Under those circumstances every one was jealous and watchful of his actions, instead of helping to make him a good citizen. It was said that men whose terms of imprisonment were shortened upon medical certificates often humbugged the prison authorities. No doubt, many of them recovered their health and spirits in a very short time, but there were many others who, broken down by the confinement, never recovered. The right hon. Gentleman was aware of the feeling created in the public mind by the system, but had given no good reason for its continuance. He (Mr. Henley) would, therefore, earnestly entreat him not to perpetuate by that means the great difficulty of disposing advantageously of prisoners after they had been liberated from confinement.


said, that the Committee of which he had been a Member had abstained from giving any decided opinion on the ticket-of-leave system, because it had not, in their opinion, received any fair trial whatever. Towards the close of last year there had arisen in this country, in reference to that system, one of the most absurd and injudicious fancies that had ever seized on the minds of any people, and this had rendered it difficult to deal with the question calmly and deliberately. Every discharged prisoner was regarded as a ticket-of-leave man, and the whole country was supposed to have been overrun by refugees from the gaols, let loose on society by the right hon. Baronet the Secretary of State for the Home Department. The question they had then to consider was, whether they should so far yield to that panic as to get rid of the means which the system afforded of remitting a portion of the sentence pronounced on convicts. The Committee on the subject found that the causes which had rendered the working of the ticket-of-leave system in some respects unsatisfactory were of a temporary character. Of the conduct of discharged convicts they knew nothing; but it should be remembered that the ticket of leave, as far as it went, furnished a presumption that the person who had received it was a better man than a prisoner who had undergone the whole amount of the punishment awarded him, because it showed, at all events, that he had obtained a partial remission of his sentence by exercising some self-control and exhibiting some species of good conduct. The enormous amount of money and trouble they expended in improving the condition of prisons would be thrown away if they established no medium between the prison door and the world. When a convict was turned out of prison with money in his pocket, he felt a strong desire to gratify his passions; but, if on his discharge he was received in some intermediate position, where a certain control was kept over him, until it was ascertained that he could exercise his free will judiciously, he would have a much better chance of entering society as a good citizen than under any other circumstances. He was, therefore, very anxious to see attached to every prison some kind of institution in which convicts could find a temporary shelter after their release from confinement; and he hoped the Government might yet be induced to afford public aid for the maintenance of such establishments. An institution of that description was attached to the gaol of which he was a visiting magistrate; and he could undertake to say that it had been found to work most beneficially. As to the remission of sentences in certain cases on account of the health of prisoners, he did not see why, on any ground of humanity, they were fairly called upon to dismiss a man from prison because his health was seriously affected. The chances of life and death must be submitted to in prison as well as out of it, and he must say he thought that the system under which at present a great criminal was discharged on account of ill health, who, as soon as he got well again, did something worse even than his original offence, required a much more careful supervision than it seemed to receive at present. He hoped his right hon. Friend (Sir G. Grey) would change his mind with respect to the suggestion that the Government should contribute towards the maintenance of discharged prisoners. He believed the Committee would do well to retain the clauses in question in the Bill; and he was sure that the right hon. Baronet the Secretary for the Home Department would take care, after the many warnings he had received in the course of that discussion, to use with the utmost discretion the powers which they would confer upon him.


denied the accuracy of the statement of the hon. Gentleman who had just addressed the Committee, that the panic of last winter in reference to the ticket-of-leave men was "absurd and injudicious." That panic was justified by facts, and he believed that every reasonable means ought to be taken to prevent a return of the feeling. He agreed with the hon. and learned Gentleman, that nothing contributed more to the prevention of crime than the certainty of the punishment by which it was to be followed. He did not wish to destroy in the mind of the convict the hope that he might, by good conduct, obtain a remission of his sentence; but he felt convinced that the most injurious consequences would be produced if prisoners were led to believe that they might, by acting the hypocrite before the chaplain and without any difficulty, obtain a ticket of leave, which would ensure the termination of their confinement and a remission of their punishment by the Crown. If the hon. and learned Member pressed his Motion to a division, he would give him his support with the greatest cordiality.


said, the Secretary of State for the Home Department had stated that he intended to apply regulations of his own to the ticket-of-leave system, so as to get rid of the surveillance over liberated prisoners, and that there would be only remissions of sentence for good conduct—a very different system from that which had caused such alarm in the country, and given rise to the Amendment of the hon. and learned Member for Reading. But if the right hon. Baronet wished to retain the remission of sentences after conviction, for good conduct, the question was, how could that best be carried out? The penal treatment of prisoners was easy enough, in whatever part of the world they were, but the difficulty was—what were they to do with a prisoner after penal treatment ceased, and it became necessary to place him in society again? If his return to society was to take place in this country, he thought, at all events, they ought not to place in their way every species of obstruction, every artificial difficulty, to crush their spirits, cause them to be dogged by the police, and make them feel at every turn that they were not free citizens, and had but little chance of obtaining employment. By discharging a man under surveillance, you destroyed his power of acting for himself, giving him the impression that he was watched by the police wherever he went, and that he bore about with him in his pocket the sign of his degradation in the shape of a ticket of leave. What, then, could be the object of retaining this system? He did not wish to see the criminal deprived of all hope should his conduct be such as to merit favourable consideration; but was the ticket of leave the only means by which this hope could be kept alive?


wished it to be understood that the omission or retention of these clauses would not affect in the least the prerogative of the Crown in the remission of sentences. The only question was whether that remission should be absolute and complete, or whether power should be taken in certain cases to make it subject to certain conditions.


asked whether Her Majesty's prerogative would not be more freely and usefully exercised without these clauses? Was not the whole merit of the pardon lost as regarded the Crown, while, at the same time, it was granted in a manner least to the advantage of the prisoner and of the country at large? The Secretary of State had at present, according to his own showing, the power of remitting a sentence, and he had better not fetter his power by the retention of these clauses. There was no doubt that, whether with or without reason, the ticket-of-leave system had occasioned the greatest panic throughout the country, and he thought this furnished sufficient ground for condemning it. The most objectionable and unconstitutional part of this Bill was that which would enable the Home Secretary, upon mere suspicion, on his bare ipse dixit, to revoke any of these licences to convicts, and order the re-apprehension of the suspected man without any inquiry into the truth of the information given to him. An arbitrary system of that nature would be a heavy blow to the administration of justice in this country, and dangerous to the liberty of the subject. The Home Secretary, no doubt, deserved thanks for having introduced this Bill, but he begged to suggest to that right hon. Gentleman, that inasmuch as there were only six clauses in it, and three of them were highly objectionable, while other three of them would not be pressed, it would be better to withdraw the Bill, with the view of re-proposing the remainder of it in conjunction with what was unobjectionable in the existing Act, in order that there might be one clear and uniform enactment upon the subject of penal servitude.


said this was no question of political bias; it was one in which all parties must feel an interest; he hoped, therefore, that the right hon. Gentleman would yield to the opinion so generally expressed on all sides of the House, and expunge these clauses from the Bill. Surely the Secretary of State would rarely act on these clauses if carried. People had not been influenced by "panic" or "prejudice" on the subject, but had just ground of complaint. He knew several cases of hardship, having originated from its being known that men had tickets of leave.


said the question had been put upon a false issue. It was not whether the ticket-of-leave system should be retained, but whether the Crown, having already the power of granting an absolute pardon, should have the power of granting a conditional pardon. That was the whole question. The ticket-of-leave system only applied to persons committed before 1853, and would soon expire by efflux of time, nor was it to be continued. But, as sentences were to be longer, the question was as to conditional pardon. He was quite certain the system was not likely to be carried to any great extent, and under proper judicial management, and with certain checks, it might be an efficient instrument for good in the hands of the Secretary of State. Under these circumstances, he thought it would not be desirable to affirm the proposition of the hon. and learned Gentleman, that the Crown should not have the power of granting conditional pardons.


said, the Government asked a wide extent of discretionary power—a power to transport prisoners or not, as it might appear proper to them. That was a great power to trust in their hands, of saying whether "penal servitude" should mean transportation or not. As the country was naturally jealous of this extension of arbitrary power, He did not think that, in requiring the relinquishment of the power of granting revocable licences—a power which had been already used most mischievously to create a servile class, hon. Members at all attempted to trench upon the Royal prerogative.


said, that in the Committee on this subject last year, he had proposed the abolition of the ticket-of-leave system, which probably would have been carried but for the absence of some Members. The Committee proposed that all sentences of penal servitude should mention a minimum and maximum period, so as to give the prisoner the stimulus of hope and an inducement to good conduct. The ticket-of-leave system was impracticable, and could only be enforced by most obnoxious means, and an objectionable system of espionage on the part of the police—because, in nine cases out of ten, the holders of tickets of leave destroyed their tickets, because they were badges of disgrace, and facilitated their re-apprehension. You might as well tie a mill-stone round a convict's neck as discharge him with a ticket of leave. It was proved that in only two cases had the licences been revoked, except on re-conviction. It could not, then, be necessary to retain the power, which "stank in the nostrils" of the people of this country.


denounced the arbitrary discretion of the Home Secretary, and contended that legislation was wanted for a grave subject, and that it was unwise to keep up the unpopular system of ticket-of-leave in exceptional cases, which had proved to be a great failure.

Question put, "That those words be there inserted."

The Comittee divided:—Ayes 83; Noes 173: Majority 90.

Clause agreed to.

On Clause 2, (sentence of transportation abolished, and sentence of penal servitude substituted).


said, that he rose to move an Amendment. It was contemplated by the Bill that transportation should still exist, but that it should form no part of the judicial sentence. It appeared to him (Mr. S. FitzGerald) that the actual passing of the sentence of transportation was of the greatest importance, and all the evidence given before the Committee last year bore testimony to the deterring influence which that sentence, judiciously delivered, had upon the criminal and his friends in court who were listening to the trial. In confirmation of this opinion, the hon. Member quoted the evidence given to the Committee by Mr. Justice Erle and Mr. Justice Cresswell, and the same fact, he said, was testified to by Sir Matthew Barrington and Mr. Justice Maule. Yet the Bill proposed that, for the future, it should not be in the power of the Judges to pass that sentence which they regarded as the most effectual. He objected to the clause on another ground. It transferred to the Executive Government a power which, in his opinion, ought to belong to the judicial officers only; namely, that of selecting the proper subject of transportation and deciding which should remain at home; and, although we had every reason to expect that the power of transporting criminals would be exercised with impartiality and a strict regard to the interests of the public by the Minister of the Crown, yet it was a dangerous power to leave in his hands. If a selective discretion were to exist at all, it ought to rest with the Judge who tried the case, and who was acquainted with all the circumstances. It might be said that the Judges, if the power were left in their hands, would pass sentence of transportation upon such a large number of persons that the executive would be unable, for lack of penal settlements, to send all the convicts out of the country. He did not think, however, that there was much in that objection, because, if it were well understood by the learned persons who administered the law that the power of sentencing to transportation was retained in their hands solely in order that it might be exercised in great and important cases, he felt quite certain that they would not abuse the discretion thus given to them, or pass the sentence upon a greater number of criminals than the Government would be able to transport. Under these circumstances, believing as he did that the discretion to be given to the Government to be too extensive, he should conclude by moving the omission of the words, "no person shall be sentenced to transportation."


said, that in opposing the Amendment, he wished to remind the Committee of the present state of the law. By the Act of 1853, all sentences of transportation for less than fourteen years were abolished. Above fourteen years and up to sentences for life discretion was left to the Judges. Many of the Judges, no doubt, were of opinion that the sentence of transportation had a very deterring effect, provided there was a perfect conviction in the minds of those who heard it pronounced, that it would be carried into execution. But the fact was that a Judge, when he sentenced a man to transportation, was utterly at a loss to know whether the sentence would be carried into effect or not. Even before the passing of the Act of 1853, as he had stated the other night, a large proportion of the sentences of transportation were not carried into effect—in fact, not more than a third were executed, and there was a conviction, founded upon experience, growing up in the minds of the people, that it was a mere chance whether a sentence of transportation would be carried out or not. Now, what he proposed was, to render every person sentenced to penal servitude liable to the same consequences as he formerly would have been under a sentence of transportation. According to the present Bill a Judge would not be able to distinguish between two criminals, by sentencing one to penal servitude and the other to transportation; he would be obliged to sentence both to penal servitude, telling both that the sentence involved their liability, at the discretion of the advisers of the Crown, to all those consequences which the sentence of transportation formerly carried with it. He admitted that the discretion sought for by this Bill was a large one to ask for, but it was not larger than that which had been exercised of late years owing to the pressure of circumstances, and he believed that, as the sentence of penal servitude could be always literally carried into effect at home or abroad, it would produce a greater certainty of punishment and might be advantageously substituted for a sentence which had nothing certain about it, which could not in all cases be executed, and which, therefore, had lost more than half its terrors.


said that, remembering the deterring effect of transportation, it was a serious thing to do away with the sentence of transportation. He rejoiced that capital punishments had been so much diminished of late years; but was there not some danger of increasing the inducements to crime by doing away with the punishment next in severity? He should wish to see the sentence of transportation for life allowed to remain in many grave cases. He feared too, that, if the clause were agreed to, sentences passed by Judges would be liable to be destroyed at the discretion to be thereby vested in the Executive. He thought, therefore, that it would be wise in the Committee to adopt the Amendment of his hon. Friend.


said, that the explanation of the right hon. Gentleman had not quite removed the feeling of apprehension with which he regarded this portion of the Bill. He did not wish to impede the passing of the Bill, and he would admit that some of its provisions were essential to the administration of justice. It might be necessary, and he was perfectly willing to entrust the Executive with considerable power and discretion, but the present Bill gave them so much that he was afraid the effect would be to embarrass courts of justice in passing sentence. As he understood the Bill, it was proposed to restrict the Courts to passing sentences of penal servitude only; but in passing such sentences, Judges would not have the least knowledge whether the person sentenced would be kept in England or sent to Bermuda, Gibraltar, or Western Australia. Might not this uncertainty create some difficulty in the mind of the Judge? Suppose he thought a sentence of six years' penal servitude a proper punishment for a particular offence. A sentence of imprisonment, however, in England was one thing, and a sentence of transportation to Western Australia was another. In the one case, a man would be released in England and would return to his friends; in the other, the probability was, that the man would pass the remainder of his days in that country. Even in the case of transportation to Gibraltar or Bermuda, the punishment would not be the same as imprisonment in England. He doubted whether the House were not about to transfer to the Executive the functions of the Judge. The right hon. Gentleman stated on a former occasion that it was his intention to issue instructions to guide courts of justice in passing sentence. Would he have any objection to state what the nature of these instructions would be, as he should like to hear their nature and to know the plan by which the right hon. Gentleman proposed to relieve the embarrassments which Judges would feel in carrying the Bill into effect.


said, he had intimated that if the present Bill passed, it would be quite right that regulations should be drawn up, which should be communicated to the Judges and those filling judi- cial offices, detailing the nature and consequences of the changes made in the law, and enabling them to explain to the prisoner the nature of his sentence. They would explain, for example, that a certain portion of the punishment would in all cases be undergone, and that the prisoner would also be liable to removal to a penal colony at the discretion of the Home Office. It would be impossible, however, to state what would be done in each case, because this would depend on circumstances that would be brought to the knowledge of the Executive Government after the sentence was passed, with reference to the physical capacity of the prisoner and other circumstances. Every approximation to certainty would be made, but he was afraid that it would be impossible, by any fixed rules, to enable the Judges to know what the sentence in each case would actually be.


said, he could not but protest against the language of the clause. Public opinion had strongly declared itself against the system of tickets of leave—against the system of throwing upon the country a number of felons and convicts after a limited period of imprisonment, who must necessarily betake themselves to their old haunts and associates. He was aware of the hopelessness of continuing the discussion after the division that had taken place, and would therefore confine himself to expressing his belief that we had plenty of places to which convicts might be sent.


said, that they had now abolished the system of transportation. [Sir GEORGE GREY: No, the sentence.] Well, then, the sentence of transportation. Still he could not understand how—when there were 20,000 criminals sentenced every year by the Judges, and 70,000 others sentenced upon summary convictions—a simple proposal to send out of the country 400 or 500 of the best behaved of our convicts could settle the question of how we were to dispose of a criminal population which amounted annually to nearly 100,000 persons. Sentence of transportation had been spoken of as calculated to produce an extremely deterrent effect upon the offender, but to show that such was not always the case, he might mention a circumstance which took place at the assizes in Durham, at which one of the most eminent of our Judges—Justice Cresswell—presided. A criminal had been convicted before the learned Judge, and had been sentenced by him to a certain period of penal servitude, whereupon the prisoner threw a boot at his Lordship, crying out, "Here goes for over the water !" The whole court was, of course, in a state of the utmost excitement. The learned Judge himself fell back in his seat in a fainting condition, but had immediately, with a degree of courage which was only equalled by his ability, roused himself up and doubled the sentence, so that the gentleman did not obtain his wish to go over the water. So much for the deterrent effect of the sentence of transportation. He thought that there had been undue haste in passing this Bill into a law. The true principle was, that a prisoner's labour ought to be remunerative. It only remained for him to say, that if the hon. Member for Horsham went to a division, he should vote against the Amendment.


was understood to say that he would support the clause, believing that it mattered little in what shape sentence might be passed, whether of penal servitude or transportation. He thought that the chief element to be considered was the certainty of the punishment, and that it was of little consequence whether the hard labour imposed should be required to be done in this country or abroad. A considerable discretion as to that might be safely left in the hands of the executive.


said, he was reminded of a letter of King Charles II. to Lord Chancellor Clarendon, in these terms:— ''As for Sir Harry Vane, if there be any honest way of getting rid of him, he is too dangerous a man to let live. So he would say—If there were any honest way of getting rid of criminals, they were too dangerous a set of men to let remain in this country. But it must be an honest way—honest towards the criminal, and honest towards the colonists, for in dealing with this question of transportation there were two classes whose interests were entitled to particular consideration—namely, the convicts themselves and the people among whom they were to be located. We ought to endeavour to reform our criminals, but he must, at the same time admit, that he had no great faith in any system of reform, so far as related to our adult population. He felt it, however, to be the imperative duty of the Legisla- ture to provide that criminals should not, after the expiration of their period of sentence, be placed in a position in which it would be difficult for them to abandon their evil course of life. The means of effecting their return to the paths of virtue by enabling them to enter into a population of which they constituted the great minority, as under the old system of transportation, was nevertheless evidently at present impossible, except to a limited extent, while, as far as the Colonies were concerned, it could not be denied that it was unjust to them to force a great number of criminals upon them. It was stated that the proposed law would create uncertainty as to what sentence was passed, but certainly not in a greater degree than the existing law; and it would be understood that the sentence of Penal Servitude exposed the criminal to be transported to any place beyond the seas to which the Crown might be advised to send him.

The Amendment was then negatived without a division.


said, he was ready to adopt the suggestion which had been made, and fix the minimum period of the sentence of penal servitude, in lieu of seven years' transportation, at three years instead of four years.


thought it would be as well that the sentence passed should be pronounced in the alternative either in England or the Colonies as Her Majesty should direct.


said, that the alternative was expressed in the Act, but that it might be desirable when the sentence was passed to point out clearly the alternative punishment to which the criminal was liable. He would, however, consider the suggestion.


observed, that under the previous Act penal servitude did not extend to the whole period for which a prisoner was sentenced to be transported, but under this Bill the two terms were made equal. Consequently, unless the penal servitude meant by this Bill were something different from the former, the present measure would indirectly aggravate the severity of the penal code.

Clause agreed to. Remaining clauses agreed to.

House resumed.

Bill reported; as amended, to be considered on Monday next.

House adjourned at a quarter after Twelve o'clock till Monday next.