§ SIR GEORGE GREY
The Bill which I am now about to ask leave to introduce is founded on certain recommendations of the Commissioners who were appointed a little more than a year ago to inquire into the operation of the Acts under which sentences of penal servitude may be passed, and into the mode in which those sentences have been carried into effect. The Commissioners' Report is dated the 20th of June, but that Report, with the evidence and appendices, which are long, was not in the hands of hon. Members until just before the close of last Session. It was, therefore, impossible to bring the subject in a satisfactory manner under the consideration of the House during the remainder of that Session, but I determined to take the earliest opportunity of doing so in the present Session. The Commissioners, towards the close of their Report, after adverting to the difficulty of the subject, with which they have had to deal, assure Her Majesty that they have devoted the most careful study and anxious attention to the important inquiry with which they were intrusted. I feel that they were perfectly justified in giving that assurance, and that the country is indebted to them for the time and for the anxious care and 724 attention which they bestowed upon the investigation. The position, experience, and judgment of the gentlemen comprising the commission entitle their recommendations to the greatest possible respect, and the Government have weighed their recommendations and considered their opinions with that attention which is due to them.
Before I advert to the recommendations of the Commissioners, and to the Bill which I propose to bring in founded on certain of those recommendations, there are two or three points of a general character adverted to in the report to which I wish to refer. One satisfactory fact is established by the Report—namely, that, notwithstanding the actual increase of crime which took place in the two years preceding the appointment of the Commission in England and Ireland, but which did not extend to Scotland in any appreciable degree, and the prevalence of a certain class of crime—robbery with violence—in the metropolis towards the close of 1862, which gave rise to great and not altogether unfounded alarm, there has been during the last twenty years a considerable decrease of crime, although during the latter portion of that period transportation was almost discontinued, and as it respects England a vast increase in the population has taken place. The Commissioners on this subject justly observe that—No safe conclusion as to the causes of crime can be drawn from a sudden increase of certain offences in one or two years, and so far as such increase can be attributed to the present system of punishment, they express an opinion that the want of sufficient efficacy in that system does not seem to arise from any error in its principles, or from its general arrangements being injudicious, but mainly from the shortness of the punishment generally inflicted on convicts, and in a minor degree to defects in the discipline to which they are subject.With respect to the increase of crime, so far as concerns the metropolis, it will be satisfactory to the House to learn the result of a comparison of the last six months of 1862, with the last six months of 1863, in reference to robberies with violence. In the last six months of 1862 there were eighty-two cases of that nature, while in the last six months of 1863 there were only twenty-six cases. Taking the last three months of each of those years, the result is that in 1862 there were fifty-eight cases, whilst in 1863 there were only eleven. [Mr. ADDERLEY: Hear, hear!] The right hon. Gentleman the Member for North Staffordshire cheers that statement, probably attributing the decrease to the 725 Bill he introduced on the subject. I recommend the right hon. Gentleman to move for a Return of the number of cases in which corporal punishment has been inflicted under that Act, and the House will then be in a better position than at present to estimate the effect of that measure in diminishing the crimes to which it was intended to apply. My own belief is, that the crimes which caused so much alarm, were committed by a comparatively small gang of persons, who, through the vigilance and activity of the police, were almost all apprehended and brought to justice, and who are now undergoing the penalty of their misdeeds.
There is another part of the Report to which I would refer. Before the inquiry by the Commission an erroneous impression existed, as to the character of the punishment to which convicts were subjected in this country. A great deal was said, with a very imperfect knowledge of the real facts of the case, about the punishment, after the period of separate confinement was over, and the prisoner was sent to public works, being very light, and accompanied by such good clothing, food, and moderate exercise, that persons were even tempted to commit crimes in order to enjoy the luxuries of a prison life. The Commissioners, an impartial body, who had facts and figures before them, gave special attention to this question, and I beg leave to bring under the notice of the House the following passage in their Report:—A very general impression appears to prevail that the system pursued in these prisons is not of a sufficiently penal character. It has been said that but little work is done by the convicts, that their diet is excessive, that they receive unnecessary indulgences, that their material condition is in many respects better than that of free labourers, and that consequently the punishment cannot be severely felt. We consider that upon the whole this impression is erroneous. The life of the prisoners is extremely monotonous. Having been used in most cases to constant change and excitement, they are debarred from all pleasures and amusements, they are compelled to pass their time in a dull, unvarying routine of distasteful labour, and at the close of each day's work they return to the cheerless solitude of their cells. The work which they get through is no doubt less than what a regard for their own interest induces free workmen to perform, but the labour is by no means light, as we shall show more fully presently; and, considering the previous habits and character of the convicts, and that they are working under compulsion, there can be no doubt that it is much disliked by them.Further on the Commissioners said—We doubt whether any great augmentation of severity in the treatment of convicts during their 726 punishment is practicable, especially when we consider that the imprisonment lasts in many cases for several years. The prolongation of sentences must, we think, be chiefly trusted to for increasing the fears entertained of penal servitude by the criminal classes.Now, the Commissioners were at great pains to investigate this part of the subject. They did not trust merely to the statements of convict directors, or of the officials charged with the administration of the system. They employed Mr. Evans, a gentleman who was not connected with any Department of Government, but who had had great experience in regard to public works executed by contractors and the class of labourers engaged on them, to examine the convict establishments at Chatham and Portsmouth. After having considered Mr. Evans's evidence, the Commissioners reported as follows:—His evidence shows that, making due allowance for the want on the part of many of them of any previous practice in similar labour, the work obtained from the convicts confined in these prisons is as much as could be reasonably expected. He stated to us that, in his opinion, two convicts employed in quarrying at Portland, or in making excavations at Chatham, did the work of one free labourer, and this difference, great as it is, does not appear to be more than is accounted for by the previous training of the latter, and the different circumstances under which he works.The greater part of the convicts sent to the works are, it should be remembered, men wholly unused to that or any other kind of hard labour, and it is out of the question to expect that such men, without training and practice, without the stimulus afforded by the prospect of remunerative wages, can get through as much work as a body of labourers specially selected for the purpose and accustomed to labour of this description. The Report continued—Mr. Evans also informed us that he considered a fair valuation was put on the work done in the accounts contained in the reports of the directors of convict prisons. A paper in the appendix, taken from these reports, will show that, according to this valuation, the public has received a very considerable return in the work done by convicts, for the expense which they have occasioned. Upon the whole, the result of the inquiry may be considered satisfactory; more especially as we believe the industry of the prisoners to afford a sure indication that the discipline maintained among them is efficient, and that the establishments are generally in good order. This conclusion is confirmed by the evidence we have obtained, and we think that the directors of convict prisons, by whom the present system of associated labour has been organized, and also the officers under whose immediate superintendence it has been carried on, are entitled to great credit for their successful exertions in the discharge of their arduous duties,727 That passage contains the deliberate opinion of the Commissioners after a most full and impartial investigation of the subject. I feel that this reference to it is due to the officers who have been charged with the immediate superintendence of the convict prisons, and especially to the memory of one whose services were last year lost to the country through his sudden death, just before the Report was made, the late Sir Joshua Jebb, and of whom I can say from personal knowledge and constant intercourse during many years, that, whatever difference of opinion might exist as to some of his theories, no one could have devoted all his energies more entirely to the public service. To Sir Joshua Jebb's exertions, aided by able and efficient colleagues, were mainly due those improvements, not only in the structure and arrangements of the penal servitude prisons, but in the general convict system, which have been effected of late years.
I now come to the recommendations of the Commission. These may be divided into two classes:—First, those relating to matters of mere administrative detail, which are of importance, but which involve no alteration of the law and are capable of being carried out by the Government without the interference of Parliament; secondly, those to which effect can be given only by an alteration of the law. In regard to the former class, as soon as I had received and considered the Report, I addressed a letter, on the 15th of July, to the Directors of Prisons, calling their attention to the different recommendations of the Commissioners, in order that no time might be lost in adopting as many of them as it was possible and expedient to adopt, without application to Parliament. The correspondence on the table will show the points to which I called the attention of the convict directors, and it not only states their opinions, but shows what has been done—what changes have been made, and what are now in progress. Some of the recommendations were found to be capable of immediate adoption, and were at once carried out. Others involved alterations in the structure of the prisons, and a considerable outlay of money, which necessarily involves some delay. Steps, however, are now being taken to give effect to most of the suggestions in this class at the earliest possible period. The recommendations in question included the dietary and classification of the prisoners, the gratuities to warders, and to convicts, the 728 increase in the staff, which has been sanctioned, the construction of cells for separate confinement, in order to obviate the necessity of transferring convicts to Mill-bank, which was said to be a temptation to men to commit offences in order that the monotony of their life might be diversified by removal to another gaol; the question of a remission of a portion of sentences, the mode of recording the industry of convicts, the identification of licence holders, with a view to their apprehension in the event of their committing fresh offences, and some other matters of minor consequence. The recommendation that a fourth director should be added to the Prison Board has been carried out, by the appointment of an engineer officer of great experience in public works, who will now be charged, as one of the directors, with the supervision of the prisons in which such works are carried on.
We now come to the next class of recommendations requiring a change in the law. The first of these, which will be found in the enumeration at the close of the Report, is, "that sentences of penal servitude should not in future be passed for a shorter term than seven years." The Act of 1857, founded on the Report of a Committee, authorized sentences of no less than three years, but these short sentences, in the opinion of the Commissioners, and also of those most conversant with the subject, have altogether failed in their effect, and have been found to have an injurious tendency. It was, I believe, the intention of the Committee, as it was of the Government and of the Legislature, that such sentences should not be passed in any great number, but should be applied only to certain crimes which might not require so severe punishment as seven years' penal servitude, and yet might not be adequately dealt with by a mere sentence of imprisonment. The fact is, however, that the Judges have availed themselves of the power granted by the Act of 1857, as if it had been intended that the term of punishment should be materially diminished, and sentences of three or four years have largely superseded sentences of seven years for crimes which were not too severely punished before. I find in the appendix to the Report of the Commissioners, that since the Act of 1857 was passed—up to the end of 1862—there have been passed in England 13,331 sentences of penal servitude. Of these, 3,824 were for three years, and 4,402 for four 729 years, making a total of 8,226, or nearly two-thirds of the whole number of sentences of penal servitude. In Scotland, during the same period, 1,292 sentences of penal servitude were passed. Of these, 148 were for three years, and 529 for four years, or together more than one-half of the whole, not so large a proportion as in England, but still very considerable. In Ireland there were 2,157 sentences of penal servitude. Of these, 711 were for three years, and 751 for four years, making a total of 1,462, or more than two-thirds of the whole. Her Majesty's Government concur with the Commissioners in thinking that these short sentences ought not to be continued, becauseExperience shows that the discipline to which convicts are subject does not produce its proper effect in short periods; and for this reason, as well as on account of the dangerous encouragement given to their associates by their return to their former abodes after going through short periods of punishment, it is desirable that the minimum term of penal servitude should be increased.That opinion is in accordance with that of the directors of convict prisons, both in England and in Ireland, and with the experience of every person conversant with the effect of short sentences upon convicts. Nor can there be any doubt that a long term of imprisonment in a county or borough gaol is a severer punishment than a very short term of penal servitude, in which there is not the same monotony, as it admits of various stages of punishment. For the more heinous crimes I think the Commissioners are right in recommending that short sentences of penal servitude should be abolished, and that longer sentences should be substituted. But that recommendation of the Commissioners is intimately connected with another.
The fourth recommendation, in the summary before referred to, is to the effectThat all male convicts who are not disqualified for removal to a colony should be sent to Western Australia during the latter part of their punishment.That is a recommendation which is entitled, in the circumstances under which it was given, to the greatest weight. Although the Government have not felt themselves able to act upon it, I am bound to say that I think the Commissioners were fully justified in making it upon the evidence before them. As I understand, with the exception of the hon. Member for Pontefract (Mr. Childers) it is a recommendation in which the Commis- 730 sioners, though differing upon other points, were unanimous. I find that the right hon. Member for Oxfordshire (Mr. Henley) in his reasons for not signing the Report of the Commissioners, expresses an opinion favourable to the removal from this country to Western Australia of "as many of the male convicts as may be fit, and as the colony may be able and willing to receive." So, also, the Lord Chief Justice Cockburn, though differing in principle from the rest of the Commissioners, says, in an able and elaborate paper which is entitled to great consideration, thatHappily the urgent demand for labour in Western Australia renders that colony willing to take from us a very large proportion of our convicts for employment on public works in that country;" and that "there can be no doubt of the wisdom of profiting by this opportunity of relieving ourselves from the embarrassment occasioned by the accumulation of convicts in this country." "Not only," he adds, "will the mother country be benefited, but a new field is hereby opened to the convict, if disposed to profit by the lesson he has received and to enter on a new life.I agree with every word of that passage, and I must say that the Commissioners, with the evidence before them, had every reason to suppose not only that the inhabitants of Western Australia were willing, and even anxious, to receive a larger number of convicts than has recently been sent there, but that the means of employment in that colony for convicts were considerable. To what extent those means may exist is, perhaps, open to discussion; but I believe that the evidence before the Commissioners jutsified them in thinking that a larger number of convicts might be absorbed in Western Australia than have recently been sent to that colony. I am bound also to say, that I do not think they could have anticipated the extreme apprehension and alarm which has since been expressed by numbers of the colonists in the eastern settlements of the vast continent of Australia in consequence of their recommendation. But the fact is, that their recommendation did excite the greatest alarm and apprehension—unfounded, as I believe, to a great extent—as to the effects which might be produced if that recommendation were carried out. On the other hand, I must say that there has been an exaggerated view taken in this country of the benefit likely to accrue from the adoption of that recommendation. I have carefully calculated what would be the probable result if the recommendation of the Commissioners were carried out. The 731 average number of convicts annually sentenced in the United Kingdom to penal servitude during the five years ending 1862, is rather more than 2,900. Prom this number may be deducted at least 1,400 for women, juveniles, the class sent to invalid prisons as unfit for hard labour, and others for various causes unfit for removal to a colony. This leaves a residue of about 1,500, who, if their sentences had not been for short terms, and if employment could have been found for them in the colony, might have been annually sent to Western Australia. But if the minimum term of penal servitude should be raised from three to seven years, the number of convicts sentenced to penal servitude would probably be reduced. On the whole, it may be assumed that the recommendation of the Commission would ultimately apply to 1,300 or 1,400 convicts annually; but several years must elapse before this number would be reached, as time must be given for the operation of the longer sentences to he hereafter passed. A considerable portion of the sentences must be undergone in this country—first, in separate imprisonment, and then on public works, so that any advantage to be derived from the proposed change could only be gained after sentences of no less than seven years have been generally passed, and after a portion of them has been undergone here. The consequence is, that a considerable time must elapse before the system could come into practical operation, and I believe the result, as far as this country is concerned, would be less beneficial than many persons have anticipated. But, as I have said, the recommendation of the Commissioners excited great alarm and apprehension in the Eastern Australian colonies. Representations were addressed to the Government, and memorials were presented to Her Majesty from persons in this country interested in the eastern settlements, and from the colonists themselves, speaking in the strongest terms of the evils which they apprehended would arise from this influx of convicts into Western Australia, and from the facilities afforded for the passage of those convicts from Western Australia to the eastern colonies. The papers laid on the table will show the nature of those representations, and every one who has had an opportunity of reading them must be aware of the strength of the feeling which exists on the subject. The Government, taking the whole matter into consi- 732 deration, while they distinctly deny the right, and have thought it to be their duty to protest against any supposed admission of the right of the inhabitants of these settled eastern colonies to dictate to Her Majesty, on the one hand, and to the inhabitants of another colony thousands of miles removed from themselves on the other, as to what shall be done in any other portion of the territories of the Crown with the free consent of its inhabitants, have still thought it undesirable, for the sake of the advantage—a remote one, as I have pointed out, and probably not so great as has been supposed—which might be derived from the removal from this country to Western Australia of a larger number of convicts than has recently been sent there, to place our interests, or our supposed interests, in antagonism to the interests, or the supposed interests, of these large and flourishing colonies: they have wished that there should be no contest between these colonies and this country, founded on a mistaken impression that we are actuated by selfish and interested motives, without a due regard to their interests and we have come to the conclusion that it will be better, while distinctly asserting the right of the Crown to deal as it has been proposed to deal with Western Australia, with the free consent of its inhabitants, not to enter into a controversy with the eastern colonists, or to lead thorn to suppose that we are regardless of their interests—in which, indeed, we are as much concerned as they themselves—but rather to abandon a design which, though calculated, as the Commissioners say, and as I believe, to relieve us to some extent from an embarrassment, is yet undoubtedly distasteful to them, and which has excited among them feelings of alarm and apprehension. We do not propose, therefore, to adopt the recommendation of the Commissioners, but we shall continue to send to Western Australia the same number of convicts which has been sent there during the last few years, or rather less than 600 a year. It would, in fact, be most unjust to Western Australia—it would be turning a deaf ear to the strong remonstrances and earnest representations of the inhabitants of that colony if we were to discontinue the present practice. We, therefore, propose to send there not the full number of convicts recommended to be sent by the Commissioners, but the limited number which has been annually 733 sent there of late years, selecting those whose sentences are the longest, and who will, therefore, for the greatest portion of their terms, be under the supervision and the code of law applicable to such persons.
But there is another alteration which has been made with regard to Western Australia, calculated in great measure to remove the apprehensions entertained by the other colonies. That alteration relates to the grant of conditional pardon. This grant was formerly obtained sometimes at so early a period of the sentence that the convict was soon removed from all restraint, and might, if he wished it, and had the money for the purpose, return to Europe, or go to any part of the world except to this country. There was thus an inducement given to convicts to go to other colonies where attractions existed for them, although those other colonies might be distant, and the means of intercourse with them might not be easy. That point was considered by the Commission, and, in accordance with their recommendation, the former system of conditional pardons will be abolished; and convicts sent out to Western Australia, and there obtaining a ticket-of-leave, if disposed to live honestly and conduct themselves well, may remain in that colony free from all undue interference, but at the same time they will be prohibited from going away from that colony to any other during the term of their sentence. I have said that the recommendation of the commission is that the minimum sentence of penal servitude for the future should be seven years. If we had been able to act on the recommendation that all male convicts fit for labour should be sent to a colony, it would have been right to adopt this term, as it would be injurious to the interests of the colony and prejudicial also to the convicts themselves, that they should be, at a very early period, released from all restraint and exposed to all the temptations which would surround them. But the case is different if they are to be retained at home; and, on the whole, the Government have come to the conclusion that, under the actual circumstances, it is expedient that five years should be the minimum term of penal servitude; that sentences of three and four years—the most numerous which are now passed—should be abolished, the minimum of five years being an intermediate sentence between the original minimum term of seven years' penal servitude and 734 two years, which is practically the maximum term of imprisonment. We believe that this will allow time for the successive stages of punishment applicable to penal servitude as distinguished from imprisonment in a county or borough gaol. We, therefore, propose by the Bill to fix five years as the minimum term for sentences of penal servitude.
The next recommendation of the Commissioners is this—That convicts sentenced to penal servitude should be subjected, in the first place, to nine months' separate imprisonment, and then to labour on public works for the remainder of the term for which they are sentenced, but with the power of earning, by industry and good conduct, an abridgment of this part of their punishment.This is a most important point, and one on which a difference of opinion existed between the greater part of the Commissioners and the Lord Chief Justice. Now, I entirely agree with the principle which the Lord Chief Justice lays down—namely, that the subsidiary purpose of penal discipline, the reformation of the criminal—ought to be kept in due subordination to its primary and principal purpose, the repression of and deterring from crime; and also that the punishment should be made as rigorous as is compatible with a clue regard to humanity, and consistent with the health of body and mind of those subjected to it. But the question we have to consider is, whether that principle would necessarily be invaded or impairred by the adoption of the recommendation of the Commissioners, that we should continue to hold out to the convict the prospect of the remission of a portion of his sentence as a stimulus to good conduct and a reward for his industry. Let me advert for a moment to the opinion expressed on this subject by the Commissioners. In the 38th paragraph of their Report they say—We have remarked that the length of sentences that ought to be passed upon convicts much depends upon whether the power of earning a remission of part of their punishment by industry is to be granted to them. We have no hesitation in expressing our opinion that it ought. An aversion to regular labour is one of the chief sources of crime; it is, therefore, of the utmost importance that the system of punishment to which convicts are subjected should be one calculated to teach them habits of steady labour, and to associate industry in their minds with the advantages to be obtained by it. But the experience, both of this and of other countries, has demonstrated that it is impossible to compel convicts to work hard by mere coercion, the attempt to do so having invariably failed, while it has produced a brutalizing effect on their minds, and increased their previous aversion to labour.735 In a subsequent part of the same paragraph they add —That principle of remission has been adopted to a greater or less extent in all the various schemes of penal discipline which have been tried in the last twenty-five years. The result has been to establish the conclusion that the hope of earning some remission of their punishment is the most powerful incentive to good conduct and industry which can be brought to act upon the minds of prisoners. Such is the opinion unanimously expressed by all who have had the opportunity of Observing its effect, while employed in the management of convicts, whether at home or in the colonies.I do not want to trouble the House by multiplying extracts from a document in the hands of hon. Members. I hope that all those who desire to form a sound and correct opinion on this important subject will read the Report for themselves. But I must say that I think that the Commissioners are fully borne out in their conclusions on this matter by the evidence of persons whose opinions as to this principle of remission are entitled to the greatest weight. Certainly, the opinions of Directors of Convict Prisons, both in England and Ireland, are entirely in accordance with the view stated by the Commissioners, and there is such a preponderance of evidence in favour of that view, that I think the House would act wisely in adopting the recommendation of the Commissioners; and in adhering, subject to certain modifications, to a principle which I believe is essential to promote good conduct and industry in all our convict establishments. The Lord Chief Justice says, that if this principle is good it should be applied universally, to short as well as to long terms of imprisonment, and not to sentences of penal servitude alone. But, with all respect for that distinguished Judge, I think there is a great practical distinction between the two cases. If a criminal is sentenced to one or two years' imprisonment, the end of his punishment is not a remote thing to look forward to; whereas, with a sentence of seven or ten years, if he can hope for no partial remission of it, he can only be coerced by fear, and there is no motive to operate on his mind for good. This difference between long and short sentences justifies, I think, the difference of practice. As to the argument based on the alleged uncertainty and vagueness which this principle introduces into our punishments, let me illustrate the point in this way. Take the case of a sentence of penal servitude for twelve years. Assuming that one-fourth of that 736 term may be remitted for good conduct, in accordance with the suggestion of the Directors of Convict Prisons, surely the Judge in pronouncing a sentence of twelve years' penal servitude has the power of explaining, and making the public understand what the effect of such a sentence would be. Its obvious and unquestionable effect would be, that one-fourth of the term only would be capable of being abridged by the industry and good conduct of the convict, but that the remainder could not be abridged or remitted. Thus, with a sentence of twelve years' penal servitude you have the certain infliction of nine years, with a margin beyond that of three years, which would be an addition to the certain part of the punishment, unless the good conduct and industry of the criminal procured for him its remission. I think, therefore, that the objection as to uncertainty cannot be fairly urged by those who know how the system works. It has been thought, indeed, by some that the mere report of a chaplain, that a particular prisoner is apparently a well-disposed man, suffices to open the doors of the prison for him during any period of his sentence. That is entirely a popular delusion. No such capricious remission can take place. There is only a certain and fixed portion of the term which can be abridged on the positive conditions of industry and good conduct. With all deference, then, for the opinion of the Lord Chief Justice, agreeing with him in theory, and thinking his argument would be sound if this were merely an abstract question, but taking a practical view of the matter, and considering the necessity of making punishment deterrent as its primary object, but of supplying of a motive for good conduct, and of encouraging reformation as its secondary object, I believe we shall do well to hold out the hope of the remission of a part of these sentences; and the portion we propose is one-fourth.
But if this is conceded, there is another point in which the right hon. Member for Oxfordshire differs from his Colleagues. He does not differ from them on the principle of remission, but only on the question whether the remission should be given absolutely or conditionally. [An hon. MEMBER: In this country.] Both the Lord Chief Justice and the right hon. Gentleman agree to the principle of remission as applicable to convicts to be removed to Western Australia. With re- 737 gard to the Lord Chief Justice's view, I must say that if the principle is to be admitted in Western Australia—to which he thinks the great body of these convicts should go—then the objection as to the alleged uncertainty of the punishment will apply just as much whether the convicts are sent to another hemisphere, or whether they are kept in this country. But the right hon. Gentleman has a doubt whether in this country, if there is to be a remission, it ought to be absolute or only conditional. For myself, I was originally rather inclined to adopt the view of the right hon. Gentleman. I think the reasons in favour of that view are entitled to great weight. No doubt, a conditional licence very much impedes the free action of the convict, not in the direction in which it is most desirable that it should be impeded—namely, in the course of crime, but it stands in the way of his obtaining an honest living after he comes out of prison. There is, and I hope there always will be, a disinclination in this country among honest labourers to associate with persons who have been convicted of crime. In the labour market it is often difficult for an honest man to find employment, and the difficulty must naturally be greater for a man coming out of prison; and there is an especial feeling against the holder of a licence. On this account, I believe a longer term of imprisonment would, by many convicts, be preferred, with absolute freedom at the end of it, to a revocable licence at an earlier period subject to restrictions, and a liability, on a breach of the conditions of the licence, to be sent back to prison. An unconditional licence would remove all objections to the convicts going abroad to any part of the world; and it was no doubt with this view that the Commissioners thought it desirable that a licence should be made general in its terms, instead of being restricted to the United Kingdom. But how can a revocable licence be made applicable beyond the limits within which it is granted? You directly encourage the licence holder to go abroad if you tell him it is not confined to the United Kingdom; and in America or Australia, or in any foreign country, he would be beyond the reach of the authority that could revoke his licence. I am very much afraid we should in such a case have other remonstrances from the colonies as urgent as those we have recently received. They would say you mean, by absolutely discharging your con- 738 victs, to enable them to come at once to the colonies; and that this is only a concealed system of transportation. But, on the other hand, there are reasons to prevent the adoption of absolute in preference to conditional remission. Great alarm would exist throughout the country if, with reference to the large number of convicts now in prison undergoing sentence, to whom expectations have been held out of a remission of a certain definite portion of their sentences, they should be at liberty to go back to their old haunts in London, Birmingham, Manchester, or Liverpool, and to mix with their old companions, free from all restraint, and only subject to the ordinary law of the land. The effect of that would be to create great alarm in the country. Looking, therefore, to the recommendations of the Commission, and the advantage derived from the check placed on convicts during the earlier period of their freedom, the Government have thought that for the present, without prejudging this question for the future, it would be better to recognize and continue the existing practice; and, unless Parliament should otherwise decide, to make no alteration in it with regard to conditional licences.
There is one important recommendation which is not contained in the five enumerated at the end of the Report, but one which I think probably the House will consider must have great effect upon these licence holders in deterring them from the commission of crime, and that recommendation is to be found in the 42nd paragraph of the Report. The Commissioners say—Above all, it ought to be provided that if a licence holder is convicted of any serious offence, this shall be considered such a breach of the conditions of his licence as to cancel it, making him liable to be remanded to a convict prison for the whole portion of his original sentence that remained unexpired when he was discharged, to which should be added the term of any new sentence he might have incurred. This last provision would remove one of the causes which has most tended to render nugatory the conditions endorsed upon licences. Under the law as it stands, these licences have generally not more than six or nine months to run when first granted; hence, if the holders are committed to prison for some new offence, it generally happens that by the time they come out so little, if any, of their original sentence remains unexpired that it is not worth while sending them back to a convict prison, where, perhaps, they would only be detained for a few days. They thus practically escape incurring any punishment whatever for the breach of the conditions on which they were released.It is therefore proposed, that where a 739 licence is revoked, the convict, as the effect of that revocation, shall be sent back to a convict prison, not merely to undergo the probably short remaining period of his original sentence, but to begin, as it were, where he left off, and to undergo the whole term of the original sentence which remained unexpired when he was discharged on licence. There is another recommendation, also an important one, connected with the restraints put on the holders of licences in the commission of crime. I stated last year, in the discussion which then took place, the difficulty of enforcing the conditions of licence—that is, in revoking a licence for alleged breach of its conditions, without involving a violation of the ordinary principles of law, on the mere report of a policeman, without evidence on oath, and without giving the convict an opportunity of defending himself. I have long felt it impossible, consistently with a just administration of the law, to have an effectual mode of enforcing the conditions of licence, unless the law was altered so as to make a certain class of offences connected with breach of licence cognizable by magistrates, and to subject the licence holder to a judicial proceeding. The Commissioners recommend a change in the law with that view. They say—Some changes in the law would be necessary in order to enable the Government to exercise a proper authority over this class of convicts. In the first place, in order that a licence holder may be compelled to preserve his licence, it ought to be made an offence for him not to produce it when duly required; and there ought to be a power given to apprehend licence holders believed to have been guilty of misconduct, before the actual revocation of their licences. Provision should also be made for enabling magistrates to hear evidence upon oath as to any breach of the conditions endorsed upon the licence imputed to a licence holder, and to adjudicate upon the fact, with a view to the revocation, or, in trivial cases, the suspension, for a longer or shorter time, of the convict's licence.This is intimately connected with the difficult question of the supervision of convicts. Upon this point, I must say I do not think the recommendations of the Commissioners so explicit as it is with regard to other points. In this country—it might be different in Ireland, where the police are under the management of the central government—but in England it would be almost impossible for a man to have the chance of obtaining an honest living if he were called on once a month or once a quarter to give an account of himself to the police. But what is required is 740 this, that in order to facilitate identification of licence holders, they shall be photographed; copies of their photograph being sent to the police of the place to which they go on their discharge. The licence holder will be required, within seven days of his discharge, to report himself to the police, and he will not be allowed to receive the second instalment of gratuity unless there be endorsed on the gratuity ticket that he has so reported himself, With regard to the form of licence also, some alteration has been made.
The provisions of the Bill, then, are shortly these:—That all sentences to penal servitude less than five years shall be abolished; that five years shall henceforth be the minimum; that conviction for any indictable offence ipso facto shall revoke a licence; that where a licence is revoked, the whole of the original sentence shall be undergone by the convict; that licence holders shall be bound to produce their licence when called upon to do so; and that a breach of the conditions of the licence shall be cognizable by two magistrates, who may sentence a convict for a breach of his licence to an imprisonment of three months A summary conviction will not necessarily revoke the licence, as in the case of a conviction of an indictable offence, as it may be that the breach of any of its conditions may be of a nature to he sufficiently punished by imprisonment, without entailing the infliction of the unexpired term of punishment under the original sentence. In such cases the conviction is to be reported to the Secretary of State, and it will be in his discretion, upon a review of the circumstances, to revoke or suspend the licence.
There is another recommendation of the Commissioners to which effect is given by a clause in this Bill. The Commissioners express the opinion, that where insubordination occurs in a convict prison, or where a serious assault is committed upon any of the officers, the immediate infliction of corporal punishment is desirable; and, as there were but three Directors of Prisons, and they have to travel long distances to some of the prisons, a considerable time may sometimes occur between the commission of the offence and its punishment, thus lessening its effects upon the other prisoners. The Commissioners, therefore, recommend that in such cases local magistrates may be empowered to inquire into the circumstances, and to award the punishment. The directors are of opinion 741 that, with the addition of a fourth director, a director can always attend to order the infliction of punishment in such cases as I have referred to. As, however, only a permissive power is recommended to enable certain magistrates to exercise those powers if necessary, I have thought it desirable to adopt the recommendation of the Commissioners, and to empower two magistrates to attend at the prison and to adjudicate on the case on any emergency after taking evidence on oath, as is required of a director. Those are the provisions of the Bill which I now ask leave to introduce. I believe it will carry into effect all the main recommendations of the Commissioners which require the intervention of Parliament. For reasons which I have explained, and which my hon. Friend the Under Secretary for the Colonies will afterwards more fully point out, our plan of transportation to Western Australia is more limited than they have recommended, but with that exception we have endeavoured to give effect to their recommendations; and I think, if Parliament should adopt this Bill, the result of the labours of that Commission will be most beneficial to the country, both in effecting improvements in our system of punishment, and placing the law upon a more satisfactory footing than at present. The right hon. Baronet concluded by formally moving for leave to introduce the Bill.
§ Moved, "That leave be given to bring in a Bill to amend the Penal Servitude Acts."
§ MR. ADDERLEY
said, he could not resist the conviction that the measure proposed to be introduced was founded upon an unsound principle, and although it was unusual to oppose the introduction of a Bill, especially one proposed by the Government, and relating to a subject upon which it was admitted on all hands that some legislation was required, he felt bound, although with considerable diffidence, to point out what he believed to be solid objections to the measure. In the remarks he should make he spoke only his own opinion, and, of course, upon such a subject there could be nothing like party feeling. He should discuss the question upon the text of the Report of the Royal Commission. There were two principles which might be embodied in a law affecting penal servitude, and both these principles, contradictory as they were, could be found—one embodied in the Report of the Commissioners, and the other in the memorandum of the Lord Chief Justice which was appended to it. 742 One principle tended to increase the sentences and to lengthen imprisonment to an inordinate degree, for the purpose of making what might be called psychological experiments in the reformation of prisoners, and for that purpose the principle required an intricate system of gradations of punishment, and conditional remissions as moral incentives and stimulants to hope and energy. The other principle would distinguish punishment from education, and would make such punishment definite, certain, bitter, and uniform. It was upon the first-mentioned principle that their present practice was based, and therefore they had had experience of its working. The system had been tried and found wanting, and yet the proposed measure was based upon the same principle, and sought to remedy the inefficiencies of the present law by extending the principle upon which it was based. The other principle was enunciated in the memorandum of the Lord Chief Justice, and wag, he ventured to say, the sounder of the two. He would at present only mention two or three objections out of numerous others, which he took to the measure as sketched out by the right hon. Gentleman. First, while it pretended to embody the recommendations of the Commissioners, it omitted that which was a most important feature in their Report. Lord Grey had stated that he would not have proposed those very lengthened sentences but with a view to give a scope for transportation at the end of them. The Bill adopted the recommendation of lengthened sentences, but the Home Secretary declared that there was no possibility of realizing the desired end of transportation, and he had, therefore, adopted half a principle without its specific adjuncts. There was no greater difficulty experienced at the Home Office, or by the Administrators of our prisons, at this moment, than the accumulation of convicts. By the system now in force, so long were the terms of punishment that it became impossible to carry out the precise terms of the sentences. Public works were insufficient to supply the second stage of employment, and transportation was closed against us; the consequence of which was that many prisoners were detained in the convict prisons beyond the first period of their sentence. The prisons were consequently overcrowded, and the convicts were reduced to a state of sullen discontent by finding that the hopes which had been held out to them were not realized, but that they were defrauded of a 743 portion of the time allotted to the second and more agreeable stage of their punishment. A Governor of a Government prison had stated in his hearing, that in consequence of that feeling the discipline of his establishment was in a great measure paralyzed. If still longer sentences were awarded, of course, the state of our gaols would be even worse than at present. He was not inclined to dispute the impossibility of recurring to transportation. He did not think it would be desirable, even were it possible, but that question was disposed of by the declaration of the Government, who must be best acquainted with the facts of the case, that it had become impossible. It might be carried out to a limited extent, as a few convicts might be sent to Western Australia, and those few were to be under life sentences. It was clear that at the outside only 600 prisoners would be sent away every year to Western Australia, so that the great majority of those with whom we had to deal would have to undergo the whole of their punishment, whatever it might be, in this country. That being so, it was a question which it was very material to consider, whether it should be laid down as a principle that, whenever a man was undergoing the penalty of any crime, we were to undertake his education during a period of which the minimum extent would be five years. To him he must confess that long diluted punishments under the hopeless pretext of education, under those circumstances, seemed to be preposterous.
He next came to his second objection, which was to the ticket-of-leave. That which was essentially part of what might be called the moral suasive system of punishment, was, in his opinion, the most dangerous of all, and would always be so unless it were connected with a valid supervision of the police. Such a supervision, although the plan had been tried for eleven years, had been found to be impossible in this country, and yet it was proposed to continue the system, notwithstanding the results of experience, and in spite of such evidence as that of Sir Richard Mayne, who stated that the principal effect of a ticket-of-leave in England was to give a man greater opportunities of committing crimes. The case of Ireland, he might add, did not at all appear to him to prove that a system which had been so successful there was equally applicable to England. The success of the system in Ireland was mainly due to the great facilities for emi- 744 gration which existed in that part of the kingdom, and the more we were able to facilitate the emigration of prisoners at the conclusion of their sentences, the safer, no doubt, it would be for ourselves. Twenty-five per cent only, it should be borne in mind, of the prisoners in Ireland did not go abroad, and this small number were kept under supervision, and the success of their treatment had been mainly owing to the most judicious arrangements of a single person—Mr. Organ—whose equal in efficiency we could scarcely hope to find in the numbers which we should require in this country, and who himself admitted that he could not deal with a larger number of prisoners than he had already under his charge. There was no good ground, therefore, he maintained, for holding out the example of Ireland as an argument for the possibility of having an effective supervision by police in this country of those who held tickets-of-leave. The impossibility of such a supervision being admitted, we must look forward to an increase of crime under the ticket-of-leave system as the result to be expected from our observation of the past. But it appeared from the papers which had been placed in the hands of hon. Members that morning, that the system was to receive a new name; and, for his own part, he thought such a change, as well as all frequent changes, made in our penal code, very mischievous. Indeed, the inefficiency which was confessed to attach to that code might, in great measure, be attributed to the constant changes which had been introduced into it within the last fifty years. Be that as it might, however, the ticket-of-leave system, under its new name of "conditional release," was proposed to be made more stringent by making it compulsory on a convict to report himself to the police whenever he changed his residence. [Sir GEORGE GREY: I merely said that he should report himself in the first instance, in order to be identified.] If that were so, what hold, he should like to know, would the police have upon the man? None at all, and they would find it impossible to exercise any control over the holder of a ticket-of-leave, unless he were obliged to report himself from time to time, it being their duty in the event of his not doing so to ask for a warrant for his apprehension, with a view to his being sent back to prison. Anything short of that could scarcely be said to be entitled to the name of supervision.
The right hon. Gentleman said, that if 745 one part of a man's punishment were fixed and the other uncertain, the whole would have the character of a fixed punishment. He (Mr. Adderley) held the contrary opinion, and believed that a punishment which had any part of it uncertain would wholly bear a character of uncertainty in the estimation and speculations of criminals. It took away all the terror of punishment if no man knew for certain how long even any portion of it would last. The great charm of crime was its lottery, and in this country the best part of that lottery was the punishment. The consequence of the existing system was, that neither the prisoner nor the Judge could know what was the period for which any sentence of penal servitude would practically operate. He objected also to any system of educationary punishment, that it was necessarily extremely complicated. In the ninth paragraph, for instance, of the Report of the Commission, which professed to be an explanation of the second stage of penal servitude, the period passed in the public works, occurred the following passage:—On the reception of a convict on public works the remaining term of his sentence is divided into three portions or stages of discipline, in the lowest of which there are three classes. Convicts are first placed in the first, second, or third class, according to the report received of their conduct while in separate confinement. Those in the second or third class are advanced to the next class if their conduct has been good for a period of three months. No convict is advanced beyond the lowest stage unless he is in the first class; and if, having attained to a subsequent stage; he is degraded for misconduct to a lower class than the first, he is removed back into the lowest stage, until by good conduct for three or six months, as the case may he, he has regained the first class.That was a very good puzzle, the solution of which would require a good deal of ingenuity; but it was a bad penal sentence, the explanation of which was a riddle. The use of badges and marks, both as already existing, and as it was proposed to be modified, was equally indistinct and fallacious. The whole system was, from its complication, most injurious. It was, moreover, impossible to obtain inferior officers who, without exception, should have sufficient judgment, integrity, or even courage, to carry out such a system rigidly and fairly, and, if it were not so administered, it worked harm instead of good. The right hon. Baronet asked by what other system you could gain the submission and stimulate the industry of prisoners; so that it appeared that that whole system of marks, badges, remissions of sen- 746 tence, and gratuities, was intended as a means of bribing prisoners to submit to the authority of those who were placed over them, and to the necessary discipline of legal punishment. It reminded him of what used to take place in the Royal Yacht Squadron, when the Earl of Yarborough, then Commodore, was said to have carried his regard for sham discipline so far as to have occasionally given a man £5 to induce him to submit to be flogged. The fact was, that the alternative for which the right hon. Baronet had asked was to be found in a sound system of classification, which would hold out quite a sufficient inducement to good conduct, without remitting, or abridging, or rendering uncertain the sentences of prisoners. The present system had completely disturbed, in fact, almost reversed, the gradation of punishment. We had first the terrible punishment of death, which instilled real terror. Then came that most indistinct and hazy punishment of penal servitude, which, according to the Royal Commissioners, was, in consequence of its uncertainty, regarded by offenders with little terror; for, although in the forty-ninth paragraph of their Report, which was read by the right hon. Baronet, they said that it was more severely felt than was generally supposed, in the thirty-first they admitted that it was not sufficiently dreaded by those who had undergone it, and who constantly returned, or by the criminal classes generally, and stated that crimes were sometimes committed for the sake of obtaining the advantages it was supposed to bring with it. Next in order to that so called punishment, respecting which it was difficult to decide whether it was a prize or a penalty, we nominally descended, but really ascended again to sentences of imprisonment for minor offences, which were carried out in many ordinary gaols so rigidly as to be very terrible to the criminal class. It was essential to correct that disturbed order by rendering that highest secondary punishment which was the alternative of death, and the penalty of the worst class of crimes, much more severe than it was, and something more dreaded than mere imprisonment. In his opinion there ought also to be no difference between the punishment of imprisonment in a convict prison and that in an ordinary gaol; but that in the former case the prisoner, after undergoing all the severities which were inflicted in the latter, should have to be employed for a certain 747 time upon public works. Then penal servitude would take its place between death and mere imprisonment.
The legislation which he should desire to see would be based upon the principles opposite to those on which the Bill was founded. He would make punishment to be punishment. Reformation should be concurrent with it as far as possible, but he would make punishment, that is, the suffering something disagreeable in consequence of crime, the sole object of the penal law. He would have it precise and understood by all—definite, uniform, and bitter. He would abolish tickets-of-leave. He would repeal the sections of the Act of 1853 which introduced them. He would make sentences literally coincide with the punishments to follow them, and would have every sentence rigidly carried out. There should be no alleviation of a man's punishment in prison except by his promotion, in consequence of his industry and good conduct, from one of the classes which had been most wisely introduced into prison discipline to another. The length of the sentence should never be abridged except by the Royal clemency; its meaning should be made clear by Act of Parliament; and not only should the treatment of prisoners in all gaols be uniform, but the labour to be performed in all, and upon public works, should be so defined by the Legislature that every one in the country might understand it. The advantages of such a system would be that punishments would be simple, and therefore intelligible to all; that discipline would be improved and facilitated, because prisoners, instead of being, as they were then, continually irritated by new hopes and fresh disappointments, would know what they had to bear, and would make up their minds to bear it; that we should have fewer prisoners to deal with, because, as the imprisonment would be more severe, the terms, of course, would be shorter than they then were; and that, for the first time for a long period, the criminal class would entertain some fear of punishment. The right hon. Gentleman had considered the question of transportation, and what he called a concealed kind of transportation, but he had found difficulties in the way, because he treated it as part of punishment proposed, and retaining Government control over persons going out. But, if the term of punishment was completed first, could there be the same objection on the part of foreign countries to the emigra- 748 tion of free men? Discharged prisoners, ho thought, at the expiration of their sentence, might advantageously be left to the treatment and assistance of some voluntary agency in the nature of the intermediate system of Sir W. Crofton in Ireland, or of the Discharged Prisoners' Aid Society, which had found, in the majority of cases with which it was brought in contact, that persons were willing and thankful to be sent abroad, owing to the difficulty of finding work in England. He would suggest that increased aid should be given to voluntary societies, not from the Treasury, for that would connect the Government with the scheme, but from local rates, as by the Discharged Prisoners' Aid Act, to enable them to send away discharged convicts who were willing to go abroad, a discretion being in all cases reposed with the visiting justices of the district. Transportation would be then put in its true light, as an opportunity of new life after punishment passed. There would be no concealment under such a system, and any objections which might be urged to it would be quite as applicable to the existing practice. So strongly did he entertain these views that, if no one more competent undertook the task, he would, himself, submit a Bill to the House, based on the contrary principle to that embodied in the Bill of the Government, and allow Parliament to decide between the two.
said, it was the usual practice in that House, upon questions of great importance, to postpone discussion till the second reading of the Bill. But the subject which the right hon. Gentleman had brought under their notice, was one with which the House generally was so familiar, that they were in a position to discuss at once the main provisions of the Bill. In fact, there had been so many proposals made from time to time with respect to convict treatment, that hardly any measure could be introduced which could lay claim to novelty. Besides, the principles advocated by his right hon. Friend were so erroneous, and so totally opposed to the experience of past years, that he should hardly be doing his duty if he did not oppose them. To a great extent he agreed with the proposals of the Government, but he could not help expressing his regret that they had determined not to carry out the recommendations of the Royal Commission on the important branch of transportation. He regretted that the more, as he thought Her Majesty's Go- 749 vernment had arrived at rather a hasty conclusion on that important branch of the subject. It was true, remonstrances had been sent home from the colonies. Meetings had been held, petitions had been framed, and communications had been sent to the Home Government; but it seemed that the Government seemingly had not taken time to point out to the leading inhabitants of the two Australian colonies, gentlemen for whom he had every respect, the futility and weakness of their arguments. Of the three parties primarily concerned—the mother country, the colony which was to receive the convicts, and the colonies adjacent—two were strongly in favour of transportation. It had never been denied that it was the best form of secondary punishment which the wit of man had ever been able to devise; it was at once deterrent to the guilty and humane towards the convict, for it held out a chance to him of regaining his place in society. Every gentleman who had studied the subject, and was officially or otherwise connected with Western Australia—the only place in a position to receive our convicts—admitted, that to the colony transportation would be a very great boon, The only condition they imposed was, that the convicts should be healthy and able to work; and no one would dream of sending out any others. The only quarter from which objections proceeded was from the adjacent colonies. Now, he held in his hand a map of the continent of Australia, from which it appeared that the distance from Fremantle to Adelaide was, by sea, 1,900 miles, and by land 1,800, the distance to Melbourne 2,400, to Sydney 3,100, and to Launceston 2,600. To say that the colonists of Eastern and Southern Australia had a right to complain of the establishment of a convict settlement in Western Australia would be as reasonable as if we were to protest against a proposal on the part of the Portuguese Government to send colonists to Madeira, or as if the residents in Newfoundland disputed our right to found a convict settlement somewhere on the west coast of Ireland. In practice, it would be found that there were greater facilities for intercourse between this country and Madeira, than there either were or could be for a very long period between Eastern and Western Australia. He believed there were hardly any instances worth mentioning in which convicts had succeeded in making their escape to the other Australian colonies. 750 By land, there existed between Western Australia and the nearest point of South Australia an impenetrable and waterless desert. Many exploring expeditions had failed there, and he did not think there was a single authentic instance on record of a convict starting overland from Western Australia and succeeding in getting to the other colonies. By sea the passage might be easier, but it was scarcely possible that any man, entirely destitute of means, could succeed in making his way for such enormous distances. Great pains were taken to prevent the conditional pardon and ticket-of-Ieave men from embarking from the colony. If, however, they succeeded in embarking, what reception did they meet with on their arrival in another colony? The other colonies prohibited the landing of persons not provided by passports to show that they were untainted by crime. Could the House believe that, in the face of these precautions, any great influx of convicts would take place into the other Australian colonies? It was proved that, in point of fact, no such influx of convicts occurred. The Peninsular and Oriental Company's vessel, which called at King George's Sound every month, had not carried more than four persons of the class to which convicts would naturally belong. With regard to the class of inhabitants of Western Australia, whose sentences had expired, and who had ceased to be convicts, it was clear that they did not go to other colonies in any numbers. By the last census of 1859, there were 2,839 men in the colony whose sentences had expired, or had tickets-of-leave; and in that year only 119 persons left the colony of Western Australia for all parts of the world. It appeared to him that the Government had come to rather a hasty conclusion on the matter, and that if the Colonial Office had endeavoured to show to Her Majesty's loyal and well-affected subjects in the colonies, that their fears were groundless, public opinion in the colonies might have undergone a change, and some reasonable understanding might have been come to. The inhabitants of New South Wales, Victoria, and South Australia, ought to be told that there was no person of any authority and no party in this country who wished to restore transportation to any other colony than Western Australia. The argument employed by some of the Colonial newspapers, with regard to the thin end of the wedge, was entirely out of the question in the 751 face of the facts he had mentioned. He trusted that this discussion would convince the Australian colonists that they had been actuated by sentiment, and the recollection of old sores and ancient evils, and that they had much better reconcile themselves to a limited transportation to Western Australia.
Before he sat down, he wished to mate a few remarks about the treatment of prisoners at home. He was glad to find that the Government intended to adhere to the principle of a remission of sentence in cases of good conduct. He believed that that principle was at the root of all good convict management. If there were one thing proved by the evidence taken before the Royal Commission, it was the necessity of holding out the hope of a remission of his sentence if they wished the convict to be well conducted in gaol, and to be ultimately reformed. The deprivation of small indulgences in prison weighed but little in comparison with the hope held out of a remission of the period of imprisonment. His right hon. Friend says that the remission of sentence imparted an element of uncertainty. He felt the highest respect for the character and ability of the learned Judges who had reported on this question, but he could not understand why it should be difficult, as these learned Judges seemed to think it was, to explain to prisoners the grounds on which they might expect a remission of sentence. If those learned gentlemen would study the appendix to the Report of the Commissioners, they would have no difficulty in explaining the condition to the most obtuse intellects that could be brought before them. The convicts were under no such uncertainty; for in all prisons the most minute rules were at every convict's finger's ends. Another objection had more force—namely, that the remission of imprisonment robbed the sentence of that severity which was necessary to deter prisoners from crime. The principle now adopted to a great extent was, that in the earlier period of detention prisoners were sentenced to severe punishment, and placed under as much restraint as was compatible with their health. When he had the honour to hold an office which brought him in contact with those engaged in the custody of prisoners, he had opportunities of learning that so severe was the discipline, and so terrible the punishment of the separate imprisonment during the earlier period of the sentence, that it was impossible to keep the prisoners in health 752 for more than ten months. The remission of sentence was, therefore, quite compatible with the severity of punishment. He thought that a mistake had been committed in imagining that marks for good conduct, or for educational progress, ought to effect a remission of the sentence. Bad conduct ought to prevent it, but the good marks ought to depend on actual work performed, as he believed that industry was the only quality which could be accurately tested. He rejoiced that the Government had adhered strictly to the recommendation of the Commission, because to abolish the principle of remission would be to deprive the convict of all hope. He quite agreed that deterring from crime should be the primary object of all punishment, but the addition of the reformatory principle was perfectly possible, and the endeavour to make the men better should be tried by every possible means. It had been tried to a considerable extent in Ireland and to a limited extent in England, and every one who had had anything to do with criminals concurred in the conviction that it ought to be an element in their treatment. But strongly as he was in favour of continuing the principle of remission, he was disappointed with the proposal of the Government as to the management and surveillance of men released on tickets-of-leave. He knew that the very name of a ticket-of-leave created vague alarm. A succession of outrages by men who were called ticket-of-leave men, but who had no right to the name, had induced a belief that the system created a class the most to be dreaded of all the dangerous classes. The House would be surprised to hear, that in the proper acceptation of the term, there was not a single ticket-of-leave man in England. Tickets-of-leave, properly so called, implied the performance of certain conditions, but in this country, as distinguished from Ireland, there had been no attempt to make those conditions operative. Not only was it the fact that the police did not interfere with discharged convicts in England, but they had been ordered by the authorities not to do so, for fear of preventing their getting employment; and the men who were ticket-of-leave men only in name were more free to commit crime without the interference of the police than any other of the dangerous classes. Sir Richard Mayne in his evidence stated, that not only were they not under the inspection of the police, but the police were directed not to interfere with them; and 753 although in some instances, from the previous circumstances of the man's life and the nature of his crime, he had deemed it his duty to let the employer know what had been his previous character, that power had been rarely exercised, believing, as he did, that non-interference was the wish of the Legislature and the authorities. The alarm, therefore, which had been created in this country, was the result not of the ticket-of-leave system, but of the system of releasing prisoners without any surveillance, and without any attempt, on the part of the Government, to prevent their relapsing into crime. The system of supervision had been exercised to a considerable extent in Ireland with very great success, and he owned he was disappointed to learn from the statement of the right hon. Gentleman, that the Government seemed inclined to put aside the question of surveillance altogether. There were great difficulties in the way, no doubt, but they were not insurmountable. In the papers which had been laid on the table, he found the head of the convict department, Colonel Henderson, stating, that for the system of supervision to be of any use, the whereabouts of every convict must be known, and that in such immense cities as those in England, it was practically impossible. He inferred, from such an expression of opinion by so high an authority, that it was not intended to attempt a plan which had been found highly successful in Ireland. With regard to the objection that, from the great number of convicts in England, it was impossible to exercise supervision over them, it seemed to him as easy to exercise it over a great number as over a few, because the whole number must be divided into groups not too large for one officer of police to overlook and be responsible for one particular group. With regard to the objection that it prevented the men getting employment, he admitted, that if the supervision were indiscreetly and conspicuously conducted, without any attention to the feelings of the men, it might have that effect; but Mr. Organ had found that in Ireland the very knowledge that the men would be occasionally communicated with by an officer, and would be under his control and subject to his advice, was a great incentive and stimulant to employers offering them work. Another objection was a very curious one. It was said that the system must fail in England, because English criminals were so much worse and more desperate than Irish criminals. As an Irish- 754 man, he felt very much flattered by the distinction, but he conceived that they might find among Irish criminals men as desperate and as bad as any they could find in this country. He quite agreed that there was a class of Irish criminals more easily managed than any class of English criminals, but that was a small class, and the difficulty of dealing with a Cork or Dublin thief, and the difficulty of dealing with a London thief, though the latter might be the more skilled, was about equal. Another objection was made by the right hon. Gentleman that night, that the Irish system depended for its efficacy entirely upon a few able and enthusiastic men like Mr. Organ, and other gentlemen connected with the convict department in Ireland. He had the greatest possible admiration for Mr. Organ, but he still believed that it only required energy and attention on the part of the Government to find plenty of gentlemen able and willing to perform the same duties in England which had been performed with such success by Mr. Organ in Ireland. If they adhered to the principle so well laid down by the Secretary of State, that in all cases there was to be remission of sentence, they must attach to it the principle of a ticket-of-leave and supervision. He did not think the people of this country would tolerate the release of a large number of criminals without some check, and experience in Ireland had shown what that check was, and how, with a few energetic men to carry it out, it must be successful. He believed, that by issuing a ticket-of-leave, and enforcing its conditions, they would in a short time gain a certain hold over the criminal classes. Habitual criminals would then have but three courses open to them—to leave the country, to lead honest lives, or to make up their minds to spend the rest of their days in prison. The Government, by their proposal that night, had taken one step in that direction, and he hoped they would go on and make the system complete. As to the seven and five years' sentences, undoubtedly every witness who had come before the Committee had stated, that short sentences were among the greatest difficulties they had to contend with. Sentences of penal servitude ought to be reserved for grave crimes, or for the frequent repetition of small offences. No man ought to be sentenced to penal servitude who was not a grave criminal, and his sentence ought, therefore, to be of sufficient length to give him every chance of reformation. He was afraid that could hardly 755 be done in a five years' sentence, and he regretted that the Government had chosen the shorter period. However, by this Bill, they had taken a great step in advance, which would be a great benefit to the country, and he congratulated those able men who had been so long endeavouring to impress their views on the public, on what seemed likely to lead to the triumph of their principles. He believed they were then in the right track, and if they continued to go on, they would succeed in establishing a system which, like that existing in Ireland, would be attended not only with the punishment, but with the reformation, of prisoners.
§ MR. WHITBREAD
said, that he wished to make a few observations on what had fallen from his right hon. Friend and the noble Lord. His right hon. Friend the Member for North Staffordshire (Mr. Adderley), had complained very much of the Government Bill, but it was not easy to gather what he would suggest in lieu of it. His right hon. Friend was opposed to all remissions of sentence. But he (Mr. Whit-bread) should be very unwilling to undertake the management of convicts on this principle. Without some prospect of mitigation by way of reward, it would be impossible to coerce some 1,300 or 1,400 convicts into submission or good behaviour. His right hon. Friend had argued against the system of dealing with convicts at present in force; but it could not be contended that the system had broken down, for after full inquiry a Royal Commission had reported favourably upon it. For many years the system had worked well, and for many years, he thought, there had been a decrease of crime in the country. It was quite true for the last two years there had been an increase in the graver crimes, but that was no wonder, seeing that we had ceased transportation and had got back a large number of old, hardened offenders. Men who had been convicted of burglary, or robbery with violence, were not likely to turn their hands to crimes of a lighter nature. He (Mr. Whitbread) must say he did not think due weight had been given to the fact of an enormous number of hardened offenders having been discharged upon the country during the last seven years instead of being transported. His right hon. Friend had objected to the system of registry by marks or letters, and he was an advocate of the introduction of classes among prisoners. But what substantial difference was there 756 between these two proposals? It was a distinction without a practical difference. He should like to know by whose authority the right hon. Gentleman proposed to conduct the discipline of a prison without either rewards in the shape of increased diet, or increased hours of rest, or indulgences of that kind, or, on the other hand, without hope of some remission of sentence? He was quite confident his right hon. Friend would be told it would be quite impossible to keep a prison in order without some remissions of that kind. He concurred with the noble Lord who had last spoken, that it would be very desirable, if we could do so, to continue the transportation of convicts to our colonies. But seeing the serious remonstrances which had been made against that course, he quite concurred with the Government that it was not worth while to run counter to the feelings of the colonists themselves. He did not, however, think their reasons against receiving the convicts were very valid. By their opposition the colonists were sacrificing a large amount of valuable labour through fear of incurring a risk which was very small, but he did not think it would be worth while to oppose their feeling. Transportation, inasmuch as it would relieve the country from the possibility of the convict committing crime within it, would be a direct boon, but it was not the deterring punishment now that it was fifteen years ago, when people knew less about the colonies, about the opportunity they afforded of making a livelihood, and how easily convicts might return home. He had no doubt—and he had had ample means of becoming acquainted with the feelings of the criminal class upon the subject—that, if convicts got the choice, a large majority would prefer transportation to penal servitude at home. But there was one question to which he wished to draw the attention of Government. It was the question of remission. He believed that the country at large was perfectly satisfied with the Report of the Royal Commissioners, and was convinced that some remission was desirable and even necessary, for the proper conduct of prison discipline. The real question was, what form the remission should take. When the Act they were about to amend was passed, seven years ago, he (Mr. Whitbread) seconded an Amendment, moved by Sir H. Keating, the then Member for Reading, the object of which was to enact that the remission should not be conditional, but should be 757 absolute. Let them examine what would be the gain, and what the loss, of maintaining the present ticket-of-leave system. The gain was that they were able to hold over the head of the convict on his discharge, for a limited period, a threat that if he misconducted himself he would he taken back to prison for the unexpired portion of his sentence. Now that threat was every day diminished, and by-and-bye it disappeared altogether; and they had no more hold over the convict after that time. He thought they could arrive at the object in a different way. He would suggest that a man should be discharged free, and then if he committed a crime, that he should first of all be identified, and when identified his sentence should be seriously increased, and increased on the ground that he had been previously convicted. He was glad to find that those who were charged with the duty of looking after our convicts acknowledged that it was a delusion to think that what was understood by police surveillance could be exercised over ticket-of-leave men in this country. In order to exercise that surveillance they must have a passport system. Unless the convict were prevented from travelling and moving about, it would be utterly impossible to exercise any effective supervision over him; and if a policeman could at any time call on him, while at work or at his lodging, it would be impossible for the man to earn an honest living. He must go either to prison or to the workhouse. It was a very bad system to start a man from prison with a paper containing a number of conditions which they did not mean to observe, and which the convict knew they did not mean to observe. Nor could they easily remove the impression from the public mind, that a ticket-of-leave-man was not rightly at liberty and was discharged before his due time. It was still believed by too many that a ticket-of-leave might be obtained by civility to the governor, and by deceiving the chaplain. The House knew that was not the case; but the idea was too prevalent out of doors. A solution of the difficulty was thrown out in the very interesting papers placed in the hands of hon. Members that morning. A great deal had been said about the benefit of maintaining certainty of punishment. But that was an ambiguous term; it might mean certainty that punishment should follow the offence, or it might apply simply to the duration of punishment. As to the first, the question of remission had nothing to 758 do with it; and as to the second, the following suggestion had been made. If an offence might be considered by a Judge to be expiated by nine years of penal servitude, by all means let the man serve out that period, but let another period of three years be added to it, making twelve years in all, the remaining portion of which might be remitted. Nobody could say there was any uncertainty in that punishment, and it had this advantage, that after a man had served nine years he would have earned a title to an absolute and free release. That proposal seemed to meet all the requirements of certainty, and furnished a simple means of stimulating the man to honesty and good conduct. He must add one word as to the nature of the punishment his right hon. Friend proposed to inflict in convict prisons. His right hon. Friend must be aware that it was impossible to carry out a long sentence upon the same diet and mode of punishment which would be inflicted in the case of a sentence for six months. The question was, What was the nature of the punishment proposed? Let a man be put upon as hard a bed and as scanty a board, and let him work as hard as was consistent with health, but beyond that no system of severity could be maintained. The right hon. Gentleman had alluded to countries where severe sentences were inflicted; but it would be found that the severity of these sentences was relaxed in a way which the people of this country would not approve of. He (Mr. Whitbread) remembered seeing written over the door of a dormitory at Toulon, that it was strictly forbidden to smoke or play at any game of chance within that room. In conclusion, he must say he hoped ample time would be given for the discussion of this question, and that they would be able to arrive at a system that would be permanent. It was not to their credit that every five years they should be overhauling their penal system, and making perpetual changes. He hoped the right hon. Gentleman the Member for Oxfordshire (Mr. Henley) would take up the question of absolute remission, and if not, he (Mr. Whitbread) would be glad himself to move a Resolution on the subject.
§ MR. CAVE
observed, that when he heard the first part of the speech of his right hon. Friend the Member for North Staffordshire (Mr. Adderley), there arose before his mind that terrible building, over the gloomy portal of which was written—Whoever enters here leaves hope behind.759 But as he went on he found that what his right hon. Friend meant was only a punishment rather more severe than that of a county prison, and then an unconditional release. This being so, he (Mr. Cave) believed that most of the unhappy individuals who rendered themselves obnoxious to punishment, would rather be punished in his right hon. Friend's way than in that of the Government. He had been for many years an advocate of reformatory treatment of criminals; but he fully admitted that legislators had no business to look to the advantage of the criminal rather than that of society. If, however, it appeared that the advantage of society and that of the criminal were identical, then it was their bounden duty to follow the course that would secure both those results. When they saw that in one country the system which had been pursued for many years was more or less a failure, whilst in another country the system was more or less a success, he thought that it was the province of wise statesmen not to be ashamed to accept the system that had answered rather than their own. He was, therefore, glad to see that the Government had determined to revert to what appeared to him a rational and common-sense view of the matter. If the only object was to get rid of criminals, then the punishment of death would, of course, be the best means, but considerations of humanity prevented the adoption of that plan. Then the right hon. Gentleman the Member for North Staffordshire proposed his secondary punishment of short and sharp treatment. The experience of ages proved that that did not operate as a deterrer from crime, its only result being that the criminal was turned out of confinement a greater enemy to society than before, and probably also a greater criminal; and it mattered very little as to the expense whether he was imprisoned at intervals from time to time, instead of for a long period of years at once; but if he had remained in prison during the whole time his moral principles might have been complete, and he might have been turned out reformed. He confessed that he did not much believe in the reformation of criminals; far be it from him to say that a criminal was never influenced by religious impressions, but practically the case was too often otherwise. At the same time, if disciplinarians could not inculcate good principles, they could certainly inculcate good habits. It was the remark of an ancient 760 philosopher, that facts constantly repeated became habits; and if they could get these criminals to adopt a course of good habits, they might in time become fixed principles. There was a striking illustration of the force of habit in one of Fielding's novels. Jonathan Wild and the Count were playing cards together in the prison. The habits of robbery were strong upon both of them, although neither of them had a farthing. The Count could not help slipping a card up his sleeve whenever he had an opportunity, and Wild could not help putting his hand into the Count's pocket, though there was nothing in it that he could take away. In the case of the criminal under sentence for a long period, bad habits could be eradicated and good ones made to take their place; but, under the old system, the good conduct by which the sentence had been shortened was merely negative good conduct. He did not acquiesce in the absurd ideas which were entertained in some quarters with respect to chaplains' reports; but there could be no doubt that the good conduct spoken of in many of the prison reports was negative good conduct, consisting in an observance of prison rules which there was little temptation to break. A man might obtain credit for such good conduct, and yet come out of prison as little prepared to cope with the temptations of the world from which he had been removed altogether as a nun escaped from a convent. For that reason there was much to be said for the system under which a criminal was brought gradually back to the outside world. Under that system, the first punishment to which he was subjected was sharp and severe. He was subjected to a shorter or longer term of solitary confinement—the most severe punishment which could be inflicted upon a man. Afterwards he went through successive stages; and was put to work with other prisoners with more and more freedom of action. Ultimately he was discharged on a conditional licence. His gradual restoration to society was best for society itself; and when released under his conditional licence, it seemed to him (Mr. Cave) that he had arrived at the finishing point at which he might become a good member of society. With regard to the certainty of punishment, he agreed with the hon. Member opposite (Mr. Whitbread), that there need be no uncertain punishment if the matter were clearly explained by the Judge on conviction. There might be uncertain- 761 ty of time, but there was a certainty with regard to the amount of work necessary to qualify a convict to be again a free man; and he did not think that that would militate against the certainty of the punishment. He differed, however, from the hon. Member as to conditional licences, for he (Mr. Cave) looked upon such licences as a valuable protection to society. The right hon. Baronet, in introducing the Bill, had stated that the supervision of the police was impossible. It might be presumptuous in him to differ from the right hon. Baronet on such a point, but when he looked to the example of Ireland, he could not find any reason why it should not be applied to this country. He should have thought that the Irish police, being a military body, were less qualified than the English police to be able to exercise supervision; but they did, and did it effectively.
§ MR. CAVE
said, it was true, that it was not tried there. But there were other large towns in Ireland in which the supervision of the police had been tried successfully; and he could not see why it should not have been tried in Dublin. It was argued that if it was tried in England the effect would be to subject the licence-holders to considerable annoyance and restraint in their endeavours to procure employment. He did not think it would have that effect; but, as a matter of fact, most ticket-of-leave men were now well known to the police, and there were frequent complaints at present that, the police did interfere in an irregular manner with returned convicts, and were an obstacle in the way of their getting employment. The police looked upon a returned convict in somewhat the same light that a hound looked upon a fox—as his natural enemy; but if the police generally had instructions to keep their eye upon licence-holders, to give them assistance and advice in their endeavours to earn an honest livelihood, a different feeling would spring up between them, and the police would be found the greatest friends and most valuable assistants of the licence-holders. Both Colonel Henderson and General Cartwright, whose reports had been presented to the House, corroborated his opinion, that the police would be efficient in carrying out the system. The hon. Member opposite (Mr. Whit- 762 bread) had made but a slight allusion to the Discharged Prisoners' Aid Society, of which he was one of the most active and influential members. This was one of the best institutions of the country, but he did not think it was the duty of such societies to give information to the Government respecting the forfeiture of licences; such a practice would tend to destroy the confidence which prisoners had in them. At the same time, he thought that such societies might prove valuable assistants to the Government in finding means for the employment of discharged prisoners. It was not the province of such a society as the Discharged Prisoners' Aid Society, he contended, to exercise supervision over prisoners, and to bring them to justice when they violated the conditions of their licences. It had a different province, so had also the Female Refuges of Ireland, and it would, in his opinion, retard their useful efforts in another direction if they were employed in such a manner. He agreed with those who said that the public had no confidence in ticket-of-leave men, but the experiment had never been properly tried; the conditions of the licence had never been enforced. It had been a mockery all through. It was got up at first for the purpose of making room in overcrowded gaols, and it had never been acted on in the manner it should have been. He was glad the Government had resolved to change the name from "ticket-of-leave" to licence.
§ MR. CAVE
said, it was true that it was not the official name of the licence; that it was one given to it by the public, and the new name would have its effect upon the public. He trusted they would now take up the new name and forget the old system. As to transportation, while he thought the cry raised in Australia was a wild and unreasonable one, still he admitted that the Government were right in yielding to some extent, while, at the same time, they asserted their right by sending out a limited number yearly. The colonies seemed to forget that New Caledonia, to which the French sent convicts, was nearer to Sydney than Western Australia was, and he should like to know how the Australians would deal with this difficulty. But, looking at it with an English eye, he confessed he felt that transportation was not of much, advantage. It was an expensive 763 system, and the management and supervision of convicts was not the best manner in which to employ troops; and it was difficult to convince convicts that transportation was a punishment. If the system now shadowed forth by the Government were followed out, and if it were patiently pursued, without unnecessary change (for we were too apt to be continually pecking at our institutions and digging up the seed every now and then to see whether it was growing), we should perhaps find that the hoped for success had been attained. It was said thieves were nowhere more expensive then when they were discharged, yet the force of this remark depended upon the supposition that they continued thieves. Let the sentence be sharp and severe, and without regard for the pain of the individual; but let prison discipline be mixed with moral discipline and suasion; and then, he thought, there would be turned out of our prisons, from time to time, men who really wished to lead a new life; and in this way an impression might really, after some time, be made on the immense mass of crime which was the curse, the terror, and the disgrace of the country.
§ MR. CHICHESTER FORTESCUE
said, it was his duly to explain to the House one branch, and that not the least important, of the subject—namely, the colonial view of the decision at which the Government had arrived upon the Report of the Royal Commission of last year. Owing to conflicting interests and opinions, the Government had found themselves exposed to a cross-fire upon this question; but the House would probably think that the middle line which had been taken was the most consistent with the opposing views and interests, and would commend itself to the judgment of the country. They declined, on the one hand, to undertake that every male convict, of suitable bodily strength, and under a certain sentence, should be transported to Western Australia, so far departing from the recommendation of the Royal Commission, and complying with the petitions addressed to them from the other great colonies of Australia. On the other hand, the Government declined to comply with some of those requests, that transportation to any portion of the great island continent should at once and for ever cease. They thought that, in fairness towards the colony of Western Australia, they were bound to continue the limited supply of convict labour which was 764 begun ten or twelve years ago; and they specially declined to discontinue that supply at a moment when our convict system was avowedly an experimental one, and when we were not agreed as to the best way of disposing of our convicts at home. The recommendation of the Royal Commission was more moderate and more guarded than had been supposed by those who had so warmly opposed it, both at home and in the colonies. On the other hand, there could be no doubt that it had excited the greatest feelings of anxiety and dismay in the colonies, and had been received with an opposition there which could hardly have been anticipated by the eminent members of the Commission, and which the Government could not make light of or disregard. He was anxious to put clearly before the House the extent of that spirit of alarm and opposition which had been excited in those colonies, and to show how clearly those feelings had been expressed by them and brought to the knowledge of Her Majesty's Government, and how eminently it was the case, in the words of the Duke of Newcastle's despatch, that those addressee, from their origin, from their earnestness, and from their loyalty, represented not only the numbers, but also the property, the intelligence, and the character of those communities; and expressed not merely the popular prejudices, but the deep feelings and moral convictions of the people. Acting on that persuasion, Her Majesty's Government had felt it their duty to decline to accede to the recommendation of the Royal Commissioners. So long ago as that time last year the colonies took alarm. Queensland was believed here to be favourable to the introduction of convict labour. But when it was known in Queensland, through the newspapers, that Mr. Justice Byles had stated that the colony was prepared to receive a certain number of convicts, the Executive Council met, and recorded their opinions in opposition to that view, declaring that Mr. Justice Byles was completely mistaken, and that they were entirely of one mind with the other colonies on the subject. Sir G. F. Bowen, referring to that feeling, stated, in one of his despatches, that he was bound to report—A growing feeling among Australians of all classes against the resumption or continuance of transportation to any part of this continent.And that occurred last spring, before the Royal Commission had reported. It was 765 followed by addresses from the Legislative Assemblies of Victoria, Tasmania, and Southern and Eastern Australia, and also Queensland. Besides that, it happened, when the rumour reached Australia, there was a very important body holding meetings in Melbourne for purposes entirely unconnected with the question of transportation, but for the purpose of considering certain intercolonial subjects. That body, which was composed of the chief secretaries and the leading members of the Legislatures of all the colonies, except Western Australia, immediately on hearing the news, took the opportunity of at once recording and sending home their unanimous protest against the idea of the resumption of transportation on a large scale to the Australian colonies. These expressions of opinion were quite enough in themselves to secure the attention of the Government. But since the Report of the Royal Commission still more energetic remonstrances had been made. A great public meeting, presided over by the Mayor, was held in Melbourne, and was attended by nearly everybody of influence and respectability there; and afterwards a deputation waited upon the Governor, Sir C. Darling, who wrote of it in these terms—The deputation which waited on me was made to consist of not less than a hundred gentlemen, members of the Legislature, leading representatives of the commercial, banking, mining, and agricultural interests of the colony, and was accompanied by the President of the Council and the Speaker of the Assembly. I was requested by the Mayor to assure Her Majesty that her people in this colony, while continuing to maintain the deepest feelings of devotion to her throne and person, earnestly rely upon her taking such a course as would prevent so foul a blot as the taint of convictism again falling upon them.The Governor added—The expression of his earnest hope that it may be found possible to devise some plan by which the necessities of the mother country may be met, without casting over the loyal and affectionate feeling which prevails in this colony so destructive a blight as a contest of this nature, which the Imperial Parliament and Government must, whether successful or not, unfailingly create.The Government had also received addresses from both Houses of the Legislature of South Australia, from the clergy of the Anglican Church in Victoria, and from all the principal persons now in England connected with trade and property in that part of the world, entreating them not to carry into effect a large measure of transportation. These communications repre- 766 sented thoroughly the views of all the classes most entitled to respect and consideration in the great colonies of Australia, and were of such a nature that the Government could not possibly be indifferent to them. If he were asked what foundation there was in fact for the alarm and apprehension which prevailed in regard to the mischievous results of the transportation system, he was bound to say frankly that he believed the popular ideas on that subject were very highly coloured. It was difficult, of course, to arrive at the exact truth in such a case; but many stories had certainly found credence for a time in Adelaide, Melbourne, Sydney, and elsewhere, which had subsequently been proved to be false, or at least grossly exaggerated. There was, for example, a statement that forty convicts had been landed at Sydney from Western Australia. On investigation, it turned out that among 200 and odd passengers who reached that port in a ship, only fourteen, and not forty, were men who had originally been convicts, most of them having conditional pardons. No doubt a certain number of released convicts found their way even to a colony so distant as New South Wales; but the figures had been greatly exaggerated. The strongest fact on the side of the alarmists which he had been able to discover was that, comparing the number of persons returned as being, or having been, convicts in the Western Australian Census of 1859, with the number of such persons known to have arrived in the Colony from England, there was a deficiency of some 1,600. After making due allowance for deaths, the figures, if correct, left a very considerable, margin, which tended, no doubt, to show that a considerable body of convicts had quitted the colony for some other country. It was said, however, with perhaps a good deal of truth, that the calculation could not be relied upon, because those who had been convicts were naturally anxious to conceal their former condition, and thus many belonging to that class were returned in the census papers as free men. Still, there must have been a certain amount of convict emigration from Western Australia to the Eastern Colonies, India, Singapore, and probably this country. The truth, he believed, to be this:—That when the gold discoveries were at their height there was a considerable flow of convicts from the West to the other parts of Australia; but since the severe, exceptional, and, he might say, anomalous legislation of South Australia, the movement 767 had in a great degree ceased. Yet, although the allegations concerning the injury recently inflicted on Western Australia by the transportation of convicts would not altogether bear examination, it must be borne in mind that the colonists had painful recollections on this subject. They remembered the days, not very long ago, when the most frightful atrocities were daily perpetrated within their borders by criminals sent out from England to the penal settlement of Tasmania, and who had been released either as holders of licences or as having accomplished their sentence. Victoria had been very heavily burdened on this account, having had to maintain a large number of criminals who had come out as convicts, and having had in her gaols in one year—and that so late as 1858;—as many as 600 of the convict class out of a total of 1,100 prisoners. He knew very well that there was reason to believe that such calamities as those which had occurred in Australia, and to which we had no right to expose any of our colonies for the sake of any other colony, or for our own supposed advantage, were not likely to occur again; but then the alarmed and excited populations of Adelaide and Melbourne could not be expected to look at the matter as coolly and clearly as we did at home, and to see that the system under which so many evils befell them was very different from that in operation in Western Australia, that that settlement was more distant than Van Diemen's Land, and that the selected convicts were a much superior class to the promiscuous cargoes of criminals formerly shipped to that quarter of the globe. The convict system of Western Australia was, in his opinion, the most complete one that had ever been devised; and was well calculated to reclaim the convicts and induce them to settle as honest labourers in their new home. But although these circumstances were plain to us, the colonists of Eastern Australia did not appreciate them, and their opinions ought, as far as possible, to be respected. It was also necessary for the Government to take care that they did not meet the demand for convicts in Western Australia by an over supply.
Leaving these great and flourishing colonies, which had grown so populous as to acquire a dangerous class of their own, domestic and not imported, he turned to the small and struggling settlement of Western Australia. That colony told us that it was saved from ruin a few years ago by a timely 768 supply of convict labour, and that the continuance of the supply was essential to its existence. It entreated us not to sacrifice its interests to those of the more important colonies; and reminded us that we had held out expectations which we were bound in honour to fulfil, as far as we could. Government had not been deaf to those representations. A few days ago he had the honour, in the lamented absence of his noble Friend, to receive a most respectable and influential deputation from Western Australia, who claimed, he was glad to find, no more than the Government were ready to grant—a supply of convict labour not exceeding that which they had of late been receiving. But the result of his conversation with the deputation was to confirm the opinion he had hitherto held, that Western Australia was able to receive but a limited number of convicts, that her capacity in this respect was limited. The main reason of her desiring our convicts was to execute her public works, and they wished to obtain the use of the convicts as soon as possible after they received their sentences. The desire of the Government, on the other hand, was that transportation should not begin at so early a date. Transportation had entirely changed its character as a punishment, and it was thought essential that convicts should pass at least one-half of their sentences in confinement and penal labour at home, only eventually finding their way to Western Australia, as a reward given for good behaviour. Such, however, were not the views of the Western Australians. Among them there was a certain limited demand for labour in private establishments. The main credit of devising that mode of disposing of ticket-of-leave men was, he believed, due to Earl Grey; and, as far as it went, it combined all the advantages of the old system, without any of its evils. But he was satisfied that the extent to which Western Australia was able to absorb ticket-of-leave men in private establishments was not so great as had been represented. The Governor stated in his latest Report that there were upwards of 200 men entitled to tickets-of-leave in the convict establishment, and that for them he could obtain no employment from private persons. Although, therefore, the Government were making a proper sacrifice to the feelings of the inhabitants of the Eastern colonies, the colonists of Western Australia might well be contented with the decision which had been arrived at. That decision, he believed, would give sa- 769 tisfaction to all reasonable men in every part of Australia, for even the able representative of the eastern colonists on the Commission (Mr. Childers) had expressed his unwillingness that the transportation of offenders sentenced to long periods of penal servitude should be at once discontinued. The Government, in a despatch from the noble Duke at the head of the Colonial Department (the Duke of Newcastle), entirely denied any general right on the part of a colony to dictate what should be the general policy of the Empire in other provinces of their great island, particularly when the people in the particular colony agreed and went along with Her Majesty's Government; but at the same time avowed their wish to consider the opinions and feelings of the Australian Colonies as far as their duty permitted. They were proud of the great Australian colonies, they rejoiced in their present prosperity and their future promise, and they would be glad if the consideration in dealing with them, expressed in that despatch, should have the effect of strengthening the bonds of loyalty and affection which ever bound them to the Mother Country.
§ SIR JOHN PAKINGTON
Sir, I am desirous, as one of the Members of the Royal Commission, and as one of the many who are deeply impressed with, the importance and at the same time the extreme difficulty of this subject, to make a few remarks on the plan which has been submitted to us by the Government, and on the very interesting statement which we have heard to-night from the Secretary of State. I am bound to admit that the tone of the right hon. Gentleman was worthy of the subject which he introduced, and he treated it with the greatest calmness and moderation; and although I know in one very important particular he has decided to depart from the recommendation of the Royal Commission, I am bound to admit that in the whole case he has made he has evinced a desire to carry out those recommendations as closely as he could do consistently with the views of the Government. The right hon. Gentleman in the commencement of his observations referred in terms in which I quite concur, to the great loss we have sustained at the moment the Commissioners were making their Report, in the death of Sir Joshua Jebb. He alluded in just and feeling terms to this subject, and whilst I quite concur in that part of the right hon. Gentleman's obser- 770 vations, I wish to take this opportunity of expressing my entire approbation of the selection which the Government has made in the appointment of a successor to Sir Joshua Jebb. No one could, perhaps, have been found more fit for the post than Colonel Henderson, and the Government may congratulate themselves upon the fact, that his opportune return from the scene of his labours in Western Australia placed his services at their disposal. In confirmation of the opinion I have expressed, I may refer to the documents laid on the table of the House this morning, in which we have a striking proof of the ability and skill of Colonel Henderson, in the shape of papers that do him and his colleagues credit. The first topic which the right hon. Gentleman touched upon was the subject of short sentences. He referred to the Act of 1857, and stated correctly, so far as my recollection goes, the causes which led to the changes which then took place. I had the honour to be a Member of the Committee, and was one of those who then supported, and pressed on the Government in the House, the necessity of devising some intermediate sentence between what was practically two years' imprisonment and seven years' transportation. The right hon. Gentleman has said the Royal Commission reported unfavourably of that experiment, and as one of those Commissioners, and at the same time one who was in favour of the experiment, I must avow that I agree in this. I think the short sentences have not answered well, but I think also that the right hon. Gentleman was correct in attributing the bad success of these short sentences to the unforeseen extent to which they had been resorted to in our criminal courts. I had no intention, nor was it ever expected, that the criminal courts should have acted on them to the extent they have done; and I will take leave to say that if hereafter the courts of criminal justice in this country—and in this I include the courts of assize—will pronounce their sentences in the spirit, as I think, of injudicious leniency, that has distinguished the administration of the criminal law in the last few years, it will become a matter of minor importance what system of punishment we adopt. I think the Government is quite right in adopting the principle recommended on this point by the Royal Commissioners, that the minimum period of sentences of penal servitude should be longer than it has been. I cannot take exception to the course that 771 is proposed—to adopt five years instead of seven, because I found it my duty to move an Amendment to that effect. Although I was in a minority on that Amendment I had the satisfaction of receiving the support of the Lord Chief Justice, and I entirely approve of the decision of the Government on this point. I think they are right in abandoning the short sentences of three or four years, which are practically sentences for two years, the prisoner generally getting released in that time, and avoiding the great jump from two to seven years. The next and most important topic touched by the right hon. Gentleman the Home Secretary, was the decision of the Government not to act upon the recommendation of the Commissioners with respect to transportation to Western Australia on a greatly extended scale. I have always thought—and, notwithstanding the arguments we have heard to-night, I retain the opinion—that transportation is one of the most valuable and the best secondary punishments we can possibly adopt. But, on the other hand, although I have been a party to this Report, I am not sanguine that either in point of extent, or still less in point of duration, we can look to Western Australia as the quarter to which we can carry out permanently any extensive system of transportation that would meet the requirements of this country. Entertaining this view, I have watched with very great interest the agitation which has sprung up since the Report of this Commission was known in the older and Eastern colonies of Australia, respecting our recommendation of a greatly extended transportation to Western Australia, and I have been desirous to know from official sources what has been the real character of that agitation. I think the policy and the decision of the Government entirely turn on that question. Has it been a mere popular clamour—an idle passing cry, or a deep-rooted feeling among all classes of the Australian people? If it has been the latter, I must frankly say, I do not think that we can expect to derive from transportation to Western Australia any advantage which can make it worth our while to pay the price of anything like a serious difference with these great and flourishing colonies. It has been said, and said, I think, with a great deal of reason, that this cry on the part of the older colonies has been an exaggerated one—that they have taken an exaggerated view of the evils that might arise from extending 772 transportation to Western Australia. I am disposed to concur in that view. But, on the other hand, in arriving at a judgment on this question, we are bound to consider, not only what may be our English objects and desires, but fairly to place ourselves in the position of the colonists. Well, the colonists contend that, great as is the distance between Western Australia and these colonies, still, looking to the recent exploring expeditions and to the increasing nature of intercolonial commerce, the difficulties of transit between them—the eastern and western colonies—will rapidly diminish. That, however, is a point of which I am not in possession of information enabling me to judge. But there is one consideration of which we can all judge, and to which we are bound to give due weight. I have seen it urged, as a reason why the Australian colonists ought not to take this strong view, that they date their own prosperity from convict labour. I think that is an incorrect representation. It is perfectly true that these colonies were founded upon convict labour; but from what epoch do they really date the unprecedented growth of their wealth and prosperity? Why, from the period of the gold discoveries, and the wonderful events which have distinguished the last twelve years. Their population has immensely increased during those twelve years from the influx of adventurers from all parts of the world, attracted thither by these gold discoveries. In that fact we may find a fair reason why the Australian colonies may at this moment view with a greater degree of jealousy than they could have shown at any former time any change of policy on our part tending to increase that convict element of which they have an undue proportion within their body. Although, therefore, I think that the colonial view of the subject is exaggerated, although I think that they entertain apprehensions which, though not altogether groundless, are indulged to an undue extent, I must say, I think Her Majesty's Government have exercised a wise discretion in not risking—for an object not commensurate with the evil it might entail—a quarrel with these dependencies, whose loyal spirit has been evinced to so remarkable an extent on recent occasions.
The hon. Gentleman the Under Secretary for the Colonies has stated to us grounds which we cannot dispute, indicating that the feeling in Australia is really deep-rooted and pervades all classes. And 773 here I think we have some reason to complain of the manner in which the Government have supplied us with information on this important subject. I hold in my hand a correspondence (about which I had given notice of a question to-night) between the Colonial Office at home and the Governors of our Australian colonies. Upon these papers really turns the question whether the policy of Her Majesty's Government is right or wrong; and yet, up to this moment, I have never had any of them delivered to me, and I am entirely indebted to the courtesy of the hon. Under Secretary for being able to look at any one of them. It would have been better, also, if that very interesting document, Colonel Henderson's Report, had been furnished to us several days ago, instead of only this morning. Although this information must be the basis of our judgment, in the one case it is given to us at the eleventh hour, and in the other not at all.
The next point referred to in the right hon. Gentleman's speech was the great question whether or not we should adhere to the principle of remitting a portion of these sentences. I need not tell the House with what anxiety the Royal Commission considered this subject. It was a matter of deep regret to the Commissioners that the Lord Chief Justice and my right hon. Friend the Member for Oxfordshire (Mr. Henley), whose opinions are always entitled to so much weight, should have dissented from the majority on this point, and been unable to join in the Report. But, as one of the majority, I must say, that after the most careful consideration, I could not arrive at the conclusion that we ought to have no remission at all. In his memorandum the Lord Chief Justice says, "My persuasion is that punishment should be made as rigorous as is consistent with the health of body and mind." In that sentiment I entirely concur. The primary object of punishment is to deter from crime. The Lord Chief Justice further says—The primary object of our criminal law is salutary punishment, such as may deter the criminal from offending again, and may exercise a deterring effect to prevent others from the commission of like offences.There, again, I concur with the Lord Chief Justice. But if with that you can combine the scarcely less important object of reforming the criminal, to that extent I believe you will improve your criminal law. It is my conviction that a judicious system of remission, allowing to a prisoner a period of comparative liberty, during which 774 the power of the law still hangs over him, but during which he may have every inducement and every opportunity of returning to honest courses, is the best method of attaining at once the punitive and the reformatory ends of a good criminal code. The Government, I think, have done wisely, therefore, in retaining the principle of remission; but I desire to express my opinion in favour of that principle, solely on one condition—namely, that the prisoner so permitted to be at large, while the sentence of the law is hanging over him, shall be subject to a just, wholesome, and proper supervision. The right hon. Gentleman rather complained that the language of the Royal Commissioners' Report was not so distinct as he would have liked on that point. Well, I beg to return the compliment to the right hon. Gentleman, for his own language upon the subject to-night was not so distinct as I could have liked, and to this moment I have not clearly collected what his intentions are. I hope, at all events, that we shall hereafter be safe from any return to that system of tickets-of-leave, which has excited so much well-founded alarm and dissatisfaction in this country. I beg leave to refer to the evidence given before the Commissioners by Sir Richard Mayne, the head of the metropolitan police. His answers to two of the questions put to him are worthy of notice. They were as follows:—I think you say that, under the existing system, it is what may be called the reverse of supervision; that not only are persons holding those licences not under the inspection of the police, but the police are actually directed not to interfere with them?—That is so, except in some cases; they are distinctly forbidden to interfere with them except without my directions. I have given such directions, but in very few cases, when the previous circumstances, and the nature of the crime of which he had been convicted, and the employment he was then in, made me consider it my duty to let the party who was employing him know the previous character; but that has been very rarely acted upon.Again, he is asked—I think you stated that that principle is carried out so far that even in the case of the ticket-of-leave men frequenting suspected houses haunted by thieves, when the police see them and also thieves in the house they may warn the keeper of the house against the thieves, but they are not allowed to point out the ticket-of-leave men?—There is a distinct order given to the police to that effect.
§ SIR JOHN PAKINGTON
Well, I am very glad to hear it was not. But here is the answer of the chief of the London 775 police, and I hope the right hon. Baronet will forgive me for saying, if he did not know, he ought to have known it. We are discussing now how far it is possible for the police to exercise surveillance over the ticket-of-leave man; and here we find that they have been actually directed not to exercise it all. Take also the terms of the licence itself. It says if the holder associates with notoriously bad characters, or leads an idle or dissolute life, he will be at once apprehended and committed to prison. This condition has been entirely disregarded. The ticket-of-leave has been a dead letter; indeed, after reading Sir Richard Mayne's evidence, I may say worse than a dead letter. I hope we shall have no more of this in future. I hope that hereafter the action of the police will be in the proper direction, and that there will be supervision of these men. Did I understand the right hon. Gentleman to say this evening, that he thought the supervision of the police was impossible? That is the general impression, and, if it is the case, I, for one, judging partly from the experience of Ireland, and from what we all know of the duties performed by the police, cannot see any reason why their supervision is impossible. Allow me to call attention to a paper issued this very morning, and drawn up, I believe, by Colonel Henderson. The second article in this memorandum is in these words—Every prisoner conditionally released will be placed under the supervision of the Prisoners Aid Society, or some other similar institution, or under the supervision of the police of the city or county in which he resides, as the directors may determine in each case.I hope the right hon. Baronet, having to reply, will allow me to ask him to state rather more distinctly than he has yet done, what his intentions are upon this most important point of the future supervision of these men who are allowed to be at large. And here let me express my doubt, speaking cautiously, the paper having been delivered only this morning, as to the wisdom of that proposal to intrust the administration of any part of our criminal law to the action of the agents of a voluntary society. It will, I believe, be a great mistake. But I shall be glad to hear the explanations of the right hon. Gentleman. Does he or does he not concur with the recommendation of Colonel Henderson—that supervision shall be carried on by the agency of a voluntary 776 society? I will not commit myself to any premature opinion, but certainly, on the first view of the proposal, it appears not wise or discreet; and I do hope, so far as I can now form an opinion, that any supervision which may be exercised over these men—and without supervision I trust there will be no system of licence at all—will be carried on by the police. I think it was recommended that there should be officers specially appointed for this purpose, but at all events the supervision should be intrusted to recognized and responsible agents of the Government, not to unrecognized and irresponsible agents of any voluntary society. There were other points, though of less importance, on which the right hon. Baronet touched, on which I should have liked to say a few words; but having detained the House so long I will conclude, Sir, by saying that, on the whole, with the exceptions to which I have adverted, I listened to the statement of the right hon. Gentleman with great satisfaction and with great approbation; and I shall be perfectly ready in its future stages to give the Bill the best consideration in my power.
§ MR. CHILDERS,
having also been a member of the Royal Commission, said, that he trusted he might be allowed to make a few remarks, particularly on the latter part of the proposal of the Government. He was certainly not disposed to undervalue the propositions of the right hon. Gentleman, with respect to remission and supervision. Those questions were very interesting, but he thought they would be more satisfactorily discussed on the second reading, when they were in possession of all the details of the measure. As a colonist, he desired to say a few words on the policy adopted by the Government as to transportation, compared with the course recommended by the Commission. Speaking as one of a very small minority, he must say he was not convinced of the value of transportation. He did not mean to deny that it had borne a very valuable part in our criminal code, but, as far as experience went, the statements of the noble Lord opposite (Lord Naas), as to its present deterring effect in keeping down the criminal class in this country, were, to say the least, exaggerations. But under most favourable circumstances, nothing could be more unsatisfactory than the history of our legislation as to transportation. The system for 777 many years in force in New South Wales, under which that colony had flourished was the assignment system, a modified form of slavery during the sentence of the convict. This had been broken down by grievous abuses, and was finally condemned by Sir W. Molesworth's Committee. Government then partially stopped transportation, and short sentenced prisoners were kept in the hulks; but the accumulation which ensued was so dangerous, that the House of Commons passed a Resolution against it, in spite of the Government. Next followed the probation system in Van Dieman's Land, to carry out which a most excellent public servant (the late Sir Eardley Wilmot) was appointed Governor of Van Dieman's Land; but this again failed, and the crowded state of Van Dieman's Land, and the awful prevalence of crime there, brought about the system of conditional pardons, under which it was hoped that prisoners would be dispersed among the neighbouring colonies. Great difficulty arose with respect to the conditional pardon system, in consequence of the inhabitants of the neighbouring colonies protesting against the evil to which it exposed them. The Earl of Derby, then Lord Stanley, in 1845, instead of conditional pardons, under which convicts might be disseminated among all the Australian colonies, proposed to found a new colony of North Australia, to which all convicts, after they obtained their liberty, should be sent. That plan was adopted, but it only lasted for six months or a year. Another Colonial Minister came into office—the present Chancellor of the Exchequer—who condemned the establishment of North Australia, and accordingly it was determined to abandon that settlement. A new system was then tried, of sending out to all the Australian colonies freed convicts who had passed through public works at home, calling them exiles, with a hope that the colonies would receive them. It was found most objectionable that such men should be sent out freed from all control, and all the Colonial Governors condemned the plan. A new scheme was then tried of sending convicts to Van Dieman's Land, almost identical with the present system in Western Australia. That system had been justly praised, and the credit of it was due to Lord Grey. But the result was, that the convicts thus sent out spread themselves over the other colonies in search of em- 778 ployment, and an outcry arose which compelled the abandonment of transportation altogether. The small extent to which it had been possible to carry out transportation to Western Australia was not so satisfactory as to warrant them in extending the practice. What was it that was now proposed? He thanked the right hon. Baronet, on behalf of the colonies, for the concession which he had so far made, and also the Under Secretary for the Colonies for his remarks in support of this plan. It was something to stop the extension urged last year, and the abolition of conditional pardons was a right step. But surely they had evidence before them to show that that colony was not able to receive a large number of convicts, although it had expressed its willingness to receive some on certain terms. He had been struck at reading an account of the voyage of the ship Merchantman, which carried out 182 convicts to Swan River, there landed them, and then went on with cargo to Sydney. But she also took from Swan River to Sydney 240 passengers, so that she actually took away from the colony, where it was said labour was so much required, more than she brought. It was said that the outcry about that case had been exaggerated, and that instead of forty of the passengers being expirees and conditionally pardoned men, as the public journals asserted, only about thirteen or fourteen were so. The Return in the Parliamentary papers only gave thirteen. He doubted, however, whether the Government, with all the pains it took, could be sure that out of 240 persons only thirteen had been prisoners. But the departure of these convicts was not the only evidence of the state of the labour market. The arrival of a single shipload, entitled soon to their tickets-of-leave, had created a panic, and according to the last accounts there were more than one hundred men in the depôt awaiting tickets-of-leave when they could obtain employment. That was sufficient proof that labour was not required in that colony to the extent some persons thought. With respect to the efficacy of transportation as a deterring agency, they had the positive evidence of Sir Joshua Jebb before the Committee of 1861, that it was now ineffectual. Even in the papers laid before Parliament to-day, Captain O'Brien said, that if transportation were to be continued, it was necessary that convicts should be sent off as soon as they had 779 undergone their term of separate confinement; and he said, that this was the only way "to deprive transportation of the charms which it undoubtedly possessed in the eyes of the majority of the convict class." The mystery thus created would, according to Captain O'Brien's opinion, have a more deterrent effect, which was necessary "to counteract the brightness of transportation to a colony which was the El Dorado of an old convict." There was, therefore, good authority for doubting the efficacy of transportation as a deterring agency. The Under Secretary for the Colonies had quoted the Amendment moved by him (Mr. Childers) in the Report of the Commission, to the effect that transportation might be carried on to a limited extent until the changes recommended by the Commissioners had been fairly tried. That was a compromise which might have satisfied the colonists and obviated the present agitation. The question now stood upon a different footing. The colonists found that the result of the inquiry conducted by a Royal Commission, composed of several of the most distinguished men in the country—gentlemen who belonged to former and present Governments, Judges of the land and two ex-Chancellors—was an almost unanimous recommendation that transportation should be largely increased. Finding that to be the case, they wished, however gladly they might receive the announcement of the right hon. Gentleman, to get rid of the very source of danger, and would not be satisfied until they had an assurance, that within a limited time—he would not say at once—transportation should be abolished. The case of the colonists, he might add, was not based upon mere sentiment or idle panic; at bottom it rested upon a good foundation; and they not unnaturally hoped to see the whole of a free continent settled upon by a free people, with the stigma of transportation removed.
§ MR. NEWDEGATE
said, the hon. Member who had just addressed the House had expressed the Monroe doctrine of the Australian colonists, who had, during the last twenty years, been very efficiently represented in that House and in the country. He never knew an instance in which the concentration of agitation had acted more powerfully in contravening the legitimate control of the public opinion of this country. He stood there as the successor of Sir Eardley Wilmot in the representation of Warwickshire, whose name 780 and conduct had been alluded to by the hon. Member who had just sat down. He had the honour of knowing Sir Eardley Wilmot and of knowing his son—a person of great ability and an eminent lawyer. There could be no doubt that the system of transportation to Van Dieman's Land broke down during the period of Sir Eardley Wilmot's administration—and why? Because a system of colonial agitation had commenced five or six years before, and the area in the several colonies available for transportation had been thereby so contracted, that one after another these colonies were overcrowded with convicts, until the system broke down. When he heard that failure in some degree attributed to a person of such great ability, and a most excellent public officer, he trusted the House would forgive him for explaining the real cause of that failure.
§ MR. CHILDERS
begged the hon. Gentleman's pardon. He had not attributed the failure to Sir Eardley Wilmot in the smallest degree.
§ MR. NEWDEGATE
said, he begged to apologize to the hon. Member if he had misunderstood him. The House would see, in the action of this agitation, the power of organization. For years in the press, in the House, and in the Government, the objections of certain persons in the colonies had had a power upon the legislation of this country which was utterly undue to the natural feelings of the colonists; and the effects of this agitation had produced the very evils for which transportation had been condemned. The same action was at work still. What was the demand now? That of the whole of a vast continent, forming part of Her Majesty's dominions, in no one single corner should the Government dare to form a penal settlement. The people of England were kindly disposed towards those whom they looked upon as their children in the colonies. They had met every demand—they had to their own detriment abandoned the system of transportation, which, until it was cramped by undue concession to this agitation, had succeeded. But he hoped that the House, as the representative of the English people, would remember that justice and charity begin at home, and that if we were to be at the expense of defending the Australian colonies from foreign aggression, we ought to be at liberty to find in those dominions of Her Majesty on that continent, which was, he believed, somewhere about 2,600 miles 781 in breadth, and between 2,000 and 3,000 miles in length, a sphere in which we could locate those who had lapsed into crime in this country, that they might there have the means of self-recovery from a state of degradation. The House had before it the humble petition of Western Australia, in which she prayed that she might be furnished with the same means of developing her strength that had made her sister colonies prosperous from the outset. These other colonies, however, acting on the agitation which had been raised, came here and demanded that the means of carrying out public works, the means of making roads and bridges, and of establishing ports, by which they had grown up, should be denied to Western Australia. He did not deny that there had been an abuse of a good system, but that abuse had grown out of the unwise contraction of the sphere for that system. The people of the Eastern colonies, however, not content with preventing transportation from being established within their own proper territory, claimed a similar exemption for a territory which was at a great distance from them, and which was independent of them. This unreasonable request was one against which the people of England would, he believed, strongly protest. It was said that Western Australia was deficient in resources. Now, he had it from authority, which he could not doubt, that such was not really the fact. He would not trouble the House with all the details of the growth of that colony; but if ever there was a refutation of the Malthusian theory it was to be found there, for civilization and cultivation, and the means of support, and all the elements of strength, had multiplied in proportion to the additional hands sent out to develop them. He had the authority of Mr. Hargrave, a scientific officer employed by the Government, for saying, that in no part of the world could there be found more valuable timber—timber which would resist the attack of the white ant and the seaworm; that Western Australia possessed the richest copper ore in the world; that she possessed great resources in salt; that she was capable of vine and orange cultivation; that she had pastures on which cattle and horses could be produced to an enormous extent. It was, therefore, to be regretted that the prayer of the inhabitants of that colony to be furnished with the means of developing these means of material wealth, 782 those materials had been met by the Government only to the extent of saying that there was at present no intention of diminishing the supply of labour. Nor was the circumstance to be regretted less on the part of the English people. They had been gratified by the result of the labours of the Commission; they felt that they had dwelt in safety under the prospect held out by the Report of that Commission; that hereafter means for the transportation of convicts would be found; they had felt safety under the combined opinion of the men selected to judge of the necessities of the country, and of the possibility of meeting them by means of transportation, they believed the system should be continued. He could not conceal from the right hon. Gentleman that a feeling of disappointment would be experienced. The people of England desired, and the people of Western Australia hoped, that the system would be extended, as much for the benefit of the mother country as of the colony. He did not believe that, because the agitation against the modern system of convict discipline was not so rife as when hon. Members were garrotted on their way home to the West End, that therefore the opinion of the people of England had changed, or that their conviction of the necessity of transportation had diminished. The opinion of the late Duke of Richmond, who was one of the first appointed Commissioners for the experiment conducted at Pentonville, was, that transportation must be resorted to for the safety of society here, and the well being of the colonies. At one time the late Sir Joshua Jebb, with whom he had been well acquainted, was of opinion that transportation need not be restored in order to secure the safety of society in this country and the well being of the colonies; but he (Mr. New-degate) had a long conversation with him only ten days before he died, in the course of which he showed that he had changed his opinion. He then said that he was convinced that he could not continue to deal with the accumulation of convicts which he had upon his hands, and added that, although the Irish system appeared to be successful, it could only succeed in combination with a police system, such as that which existed in Ireland, to the establishment of which merely for the sake of looking after released criminals he was sure that the people of this country would never consent. He said—"You 783 may attempt to hold out the hope of freedom to the convicts, but if you are to give them in this country the freedom which you could allow them in a colony, you must abandon the supervision which you desire. He repeated—"Therefore my opinion is changed. I rejoice that a considerable number of convicts are on their way to Western Australia, and I believe it to be the opinion of the Commissioners and of the Government that that system ought to be continued."
He (Mr.Newdegate) thought some injustice had been done to the Judges in this matter. He remembered the time when the Judges unanimously warned the country of the evils which would result from the abandonment of transportation; but the Government and the Legislature rejected their warning. Soon after it pleased that House to contract the period of penal sentence. That placed the Judges in an inconvenient position. They did not approve of the change, but they were compelled to conform to it, though they acted in the spirit of the law. Was it then fair to turn round now upon the Judges of the land with reference to a system which was never expected to succeed? Then came the garrotting, and the agitation which was the consequence of it. Under the pressure of necessity, the Judges certainly changed the discretion under which they had acted, and enforced a system of severity which, though within the law, was a straining of the law which their judgment condemned. He could conceive nothing worse than that when a criminal was placed at the bar and convicted by a jury of a certain crime, the penalty assigned him should not have reference to his actual criminalty, but should be rendered exceptional, because the public were alarmed by a system of terrorism. That certainty, that inflexibility, that justice and security in the administration of the law, as it had descended to them from those who were the real founders of their freedom, ought not thus to be tampered with. These were grave questions, and, although he thought that Her Majesty's Government had shown a certain degree of firmness in carrying out the recommendations of the Commissioners, he lamented that in the matter of transportation those recommendations had been clipped. As the representative of no small number of Her Majesty's subjects he repudiated the idea, that at the dictation of any, however 784 influential and numerous, bodies of colonists, this country should be deterred from seeking an outlet for her criminals, when she knew that their emission was, to use an expression, once employed sarcastically, "for their country's good," no less than for their own reformation. He believed that the public opinion of this country was opposed to that of these colonists. He thought that the system of remission was very dangerous, for it entailed the exercise of arbitrary discretional power, which was beyond the perview of English law in the legitimate sense; it introduced uncertainty into punishment, of which they had recently had an instance, and formed a precedence that he trusted would never be repeated in this country.
§ MR. MARSH
said, that having been intimately connected with the colonies, especially with Queensland, he had been pleased to hear the remarks which had been made by the Under Secretary for the Colonies, and he fully bore out his assertion that it was, under the circumstances, impossible to send convicts to Australia. They could not violate public opinion beyond a certain point, and, although the fears of the colonists had been somewhat exaggerated, there were some grounds for them, and it was impossible that it should be withstood. Not only could no greater number of convicts than were now despatched be sent to Western Australia, but the time must come when the transportation of convicts to that colony must cease altogether. There were, however, many other places to which they might be sent. We do not want a Garden of Eden for our thieves, and among other places he thought that the Falkland Islands, though no doubt a windy situation, was one very suitable for them. All that was wanted was a place where a man could, by a hard day's work, earn an honest living; and, as far as his experience, which was rather extensive, went, that could be done in most parts of the world. The immense amount of our expenditure upon gaols and convicts, which had increased £600,000 within the last thirty years, called for some reform much more sweeping than was contemplated by this Bill. The fact was, that the attempt to reform criminals in gaol had been a failure. When convicts from the model prisons first went to Australia, they imposed upon the people there, but they were soon found out, and one of the bishops recorded his opinion that they were worse than those who came direct 785 from the dockyards. Prisoners learnt nothing good in gaols, and the kindest thing, both to them and to the public, was to make gaols places of punishment. A friend of his who had charge of a stockade in Australia—a place where a chain-gang worked—told him that when a man came to him with a complaint his reply was, "My good man, you did not come here to be happy," and no man ever returned to the stockade. Was not that real kindness, both to the thieves and to every one else? The real object of a gaol was punishment, and to deter persons from committing offences. To attain that object severity—not cruelty, but proper severity, was absolutely necessary.
§ MR. WALPOLE
Sir, everybody must admire the thoughtful and careful and temperate way in which this important question has been discussed to-night. Many observations were made which hon. Members will do well to carry away with them, but there were none which they will do better to bear in mind than the observation with which the hon. Member for Bedford closed his speech—namely, that this is a question which ought to be most deliberately considered and most carefully determined; and when Parliament has once decided what is best to be done, it is one which it will not be advisable constantly to be re-opening. With that end in view I have endeavoured to fix in my own mind the main points of the systems which have been advocated to-night. One was that which was embodied in the Bill of the Secretary of State. The other was that proposed, with his usual ability, by my right hon. Friend the Member for North Staffordshire (Mr. Adderley), who if he failed to convince the House upon some points of his address, failed, I believe, because he has not so carefully addressed himself to them as he usually does. The system proposed by the Secretary of State is the system we are acting upon now, with alterations to be introduced on the recommendations of the Commissioners. Bear in mind the great principle on which that system is founded. It is that there shall be a distinction between the ordinary imprisonment for minor offences and the punishment for greater crimes which is called penal servitude. Penal servitude involves three distinct stages, combining the deterring effect of punishment with the wholesome tendencies of reformatory discipline. The first stage—that of solitary confinement—is described 786 by all convicts as the most penal part of all that they have to undergo. As they describe it themselves, "it makes a man look through and through his life." You then take the convict to the public works, in order that he may be associated with labour, so that when freed from his prison he may have acquired some of those habits of industry without which he cannot afterwards succeed. Then you have the third stage of transportation, which has not, I think, been rightly described as a deterring part of the punishment. It ought never to be lost sight of, that if you can maintain this system of transportation you rid the mother country of those who would only go back to bad associates to commit further crimes; and you do this for the good of the convict himself, who after his period of punishment is over has some chance in a distant scene of righting himself—and many have righted themselves in the world, and you give to colonies who are able and willing to take the convicts the same advantages of labour which largely benefited the other portions of Australia. Such is the system embodied in the Bill before us. What is the system which my right hon. Friend the Member for North Staffordshire would substitute for that of the Secretary of State? As I understand him, he would have punishment sharp and short—no remissions and no conditional licences. My right hon. Friend will forgive me for saying that he has looked only at one of those motives by which human conduct is regulated, and he has totally forgotten the other. Man in all stages and conditions of life is operated upon quite as strongly—perhaps more strongly—by the encouragements of hope than by the deterring effect of fear. If you confine your punishments to deterring alone, to operating on the fears of the criminal, and to debarring him from hope, you will only harden, debase, and brutalize, and you will turn him out of prison a worse man than he went in. Again, I think my right hon. Friend a little lost sight of the undue number of criminals which his short and severe punishments would throw upon society, without the chance of improving or reforming them by any of those processes which are now in operation. And I own I felt more surprised at this argument coming from my right hon. Friend than if it had proceeded from almost any other person in this House, because there is no one in this House or out of it who has taken so much interest and bestowed so 787 much pains on the reformation of the juvenile criminals of the country. As at present advised, I cannot agree that the plan which my right hon. Friend would substitute for the system we are now acting upon is a plan really preferable.
What, then, can we do better than endeavour to amend the system we have got, which I believe to be founded on right principles? If I understand correctly the plan on which the Government intend to act, there are these five distinct propositions. First, that transportation shall not be extended further than it is carried at present; secondly, that penal servitude shall be increased; thirdly, that the remission of portions of sentences shall still be allowed; fourthly, that conditional licences shall be continued; and fifthly, that if these conditional licences are abused by the convict to whom they are given, he shall be remitted to the whole of his former sentence. Upon the first of these great points I agree with very much of what has fallen from my hon. Friend the Member for North Warwickshire (Mr. Newdegate); I also agree with what has fallen from my right hon. Friend the Member for Droitwitch (Sir John Pakington), and others, that it is a great misfortune that the southern and eastern colonies of Australia should, as I think, somewhat over hastily have endeavoured to deprive their sister colony in the same great continent, should also have endeavoured to deprive the mother country, and the convicts themselves, of the system which, for all these three, had been found to act so beneficially. I think the Commissioners were entirely right in their recommendation, and I believe it would have been wise to carry their recommendations into effect, if it could have been done without exciting a commotion in the colonies. In the face of the excitement which has been awakened, I quite agree that the Government could not force a system of transportation upon them at the present moment; but I hope, at some future period, when the colonies better understand the grounds on which their decision has been arrived at, some extension in that direction will be possible.
I turn now to the next point. The duration of penal servitude is to be prolonged from a minimum duration of three years to a minimum duration of five years. I think it right that the House and the country should well understand the importance of that alteration. A year ago the country 788 was alarmed with the prodigious increase of crime, especially of crimes of the graver descriptions. It was difficult to trace the causes of that increase; but the country, I think, hastily jumped at the conclusion that it was all owing to the tickets-of-leave. If the people had been cognizant of the facts brought before the Commission at the time they formed that opinion, I am sure they would have arrived at a different conclusion. For what were the facts? Transportation ceased in the year 1853, and in 1857 there was another change, when penal servitude was for the first time reduced to three years. Crime went on steadily diminishing from 1854 to 1860 and can anybody believe, when such was the case, and when some of the worst convicts were thrown upon society during that period, that tickets-of-leave were the cause of the sudden increase of crime from I860? There were only two things to which I believe you can attribute the increase of crime in the years 1861, 1862, and, I am sorry to say, I believe I must add, in 1863. There was an increase of crime in Ireland, mark you, as well as in England, so you cannot base any argument upon the difference in the two systems. First, in Ireland, there was a great deficiency in the agricultural crops, leading to great depression and great distress, always accompanied or followed by crime; and next, in England, great pressure was suddenly brought upon the trading interests of the country, the results of which were exhibited in the falling off both of exports and imports. You cannot have great pressure on the trading interest without a concomitant distress, occasioning diminution of employment, and you cannot have diminution of employment without an increase of crime. Another cause to which I believe the increase of crime is owing is the diminution of the punishment of penal servitude down to three years. The diminution of punishment was concurrent with the increase of crime, and, looking at the statistics, it is hardly possible to believe that the two are not connected together. Nothing can be wiser on the part of the Government than extending the minimum punishment from three to five years, and that I believe will have a great effect in diminishing the number of criminals.
Having disposed of two, let us now go to the third point. The third point, which will no doubt be much debated in this House, is the remission of part of the sentence, consequent, I suppose—for here I 789 hardly followed the right hon. Gentleman—on industry exhibited in the prisons or on the public works. For the same reason—the keeping up the motive of hope, as operating on the minds of men equally with the deterring effect of fear—I am in favour of the remission of a portion of the sentence if it he proved that the convict deserves it.
The next point is the conditions of discharge. I agree with the right hon. Gentleman, and with much that has been said by other Gentlemen on the subject, that there are enormous difficulties in the way of supervision. I cannot conceive anything which can have a worse effect than to put the convicts under the police of this country. But I think, at the same time, there is a mode of supervision which may be useful, and this I throw out as a suggestion for the consideration of the Government. It is a mistake to suppose that when a convict has a portion of his sentence remitted, and is let out of prison on a conditional discharge, it is not known where the man goes. I speak from experience, and I have no doubt the practice is continued in the Home Office. I believe that in almost every instance inquiry is made beforehand as to the place to which the criminal is to go, and as to the probability of his friends receiving him on his gaining employment. He is paid the money he has earned by instalments. He is paid one portion on being liberated, and other portions on application afterwards. What I wish to suggest to the Government and the House is, that they should be required, as long as they hold a conditional licence, to report themselves to the police, without being placed under supervision. If they do that without publicity there is nothing to prevent their obtaining employment, and the police would be enabled to know whether they were observing the conditions of the licence. I think it might operate beneficially, and at all events it is worthy of consideration.
The last point is most important, and the right hon. Gentleman has very properly laid great stress on it—that the convict let out on this conditional licence, if he commit a new offence, is not to go back simply for that part of his term which is then unexpired, but for the whole term of his original sentence. He ought to be regarded as having abused the Crown's mercy, as having forfeited the condition on which that mercy was awarded, and as deserving the infliction of the whole of his 790 punishment again. That was the recommendation of the Royal Commissioners. It is the recommendation adopted by the right hon. Gentleman, and no part of his observations met, I think, with more cordial approbation. Believing that the system upon which our convict system is based is really right and sound in itself, believing that it will not be improved by a different system recommended by the right hon. Gentleman the Member for North Staffordshire, and believing that it will be greatly improved by the suggestions made known by the Government, I, for one, cannot but give my cordial approval to the Bill which the right hon. Baronet is about to introduce. I may be allowed to throw out one further suggestion. It is one which I made in 1853, when transportation was abolished and penal servitude introduced. I pressed it on the Government then, and I believe the noble Lord entertained it favourably, though he found it difficult to act upon it. I ventured to recommend two rules in the strongest manner. One was that if the Crown's mercy were abused, the convict should undergo severer punishment on that account. The other was—and in it I had the concurrence of my noble Friend the Earl of Derby—that we ought to obtain some penal settlement near England in an insular position (there was one then which might have been bought for a small sum), to which we might send at once the worst criminals, to be treated more severely than on public works, and where they might be confined more severely, and know they would be treated more severely, if they ventured to abuse the mercy of the Crown. I believe that is a matter not of legislation, but of regulation, and that, superadded to these suggestions, it would make our system as good as any system which can be devised. I believe it would act in deterring criminals from crime in future, and in inducing others to pause before they committed crime. At the same time, I would not neglect what to my mind ought never to be lost sight of, though it should be in a subordinate degree to the deterring effect of punishment,—namely, something of the reformatory process, lest our convicts should be worse when they leave our gaols than when they go into them. I would have the beautiful inscription which was placed over the Roman prisons written on every gaol in England —Parum est improbos coercere pœnâ, nisi probos efficias disciplinâ. With 791 these observations I shall cordially support the measure of the right hon. Gentleman, and I hope it will answer all the expectations with which it is introduced.
§ SIR GEORGE GREY
said, he wished to express his gratification at the manner in which the subject had been discussed, and the general concurrence of hon. Members in the principles of the Bill. He regretted that pressure of business had prevented the papers being presented sooner to the House. It was only with difficulty that he had secured their circulation that day. The right "hon. Gentleman (Sir J. Pakington) who had treated the subject with so much fairness, had, no doubt, not had time to read them through, because if he had he would have found in the latter part the more deliberate opinion of Colonel Henderson with regard to supervision than the passage which he had quoted. He admitted that the question of supervision was the most difficult part of the subject. The Commissioners seem to have felt this. They did not propose police supervision. This point was distinctly raised by an Amendment moved on the paragraph relating to supervision, the object of the Amendment being to recommend police supervision. That Amendment was negatived on a division by eight to five. If a system of police supervision over ticket-of-leave men were established, it would be necessary to confine them within some restricted limit. With regard to prisoners liberated in London with conditional licences, it was proposed that they should be seen by the police before they were discharged, and that a photograph of each should be taken and sent round to the metropolitan police stations. Convicts belonging to other parts of the country were to present themselves to the head of the police in the towns in which they resided within seven days, on pain of forfeiting their licence. It was very much the habit of convicts to go back to the place from which they came. If periodical reports were insisted upon, however, the man would be prevented from obtaining employment and would be driven back into crime. During the war many ticket-of-leave men enlisted into the army, but if periodical reports were made they would be turned out of the regiment as soon as it was known. An attempt would be made by means of the Prisoners' Aid Society to do what had been effected for discharged prisoners by Mr. Organ in Ireland. If a discharged convict were will- 792 ing to place himself under the society, the government would pay the gratuity to the Society to be expended for his benefit. The society, which would then look after him for a certain period, had prevented large numbers from falling into crime, and had put them in a way of jetting an honest livelihood. As to cases of life sentences, each claim for remission would be decided on its merits, and prisoners under sentence of life would not be entitled to the benefit of the regulations as to remission applicable to other cases.
§ Motion agreed to.
§ Bill to amend the Penal Servitude Acts, ordered to be brought in by Sir GEORGE GREY and Mr. BRUCE.
§ Bill presented, and read 1°. [Bill 23.]