PUNISHMENT BY TRANSPORTATION. (Hansard, 20 April 1847)

§ EARL GREY
moved that the Mutiny Bill be read a third time.

§ The EARL of ELLENBOROUGH
was desirous of asking the noble Earl a question. Transportation was the punishment for certain offences under this Bill. Now, I the noble Earl by an Order in Council had suspended the punishment of transportation; but by this Bill no provision was made for substituting imprisonment in the case of soldier convicts in India. In Europe such a provision existed; but if it were intended to make the same alteration with regard to soldier convicts in India, it would be necessary to take into consideration the greater degree of severity which imprisonment in that country would inflict beyond what was endured by imprisonment in Europe, and therefore to shorten the term.

§ EARL GREY
said, that the answer he had to make to the noble Earl was very simple. No change whatever was made, or intended to be made, in the law of transportation with regard to soldiers in India. The only difference even in regard to England was this:—Under the existing law, persons convicted of certain offences would be subject to the sentence of transportation. That sentence would still be passed; but the convicts would not at present, at all events, be sent to the convict colonies, but would be kept at home. With respect, however, to the punishment of transportation in India, no Order in Council had been issued to interfere with the existing practice of removing the convicts from that country to Van Diemen's Land. It was intended, no doubt, that the system of sending convicts from this country to Van Diemen's Land should in future be suspended; but with respect to convicts in India no order had been issued, nor was it 1034 in contemplation by the Government to make any interference with the existing practice of removing those convicts to Van Diemen's Land.

LORD BROUGHAM
said, that he wished to take the earliest opportunity of entering his protest against the new doctrine which had for the first time been promulgated by the present Government, that it was in the power of any Secretary of State, or of the Crown, or of an Order in Council, to alter the criminal law of this land. The law of this country declared, that for certain offences the Judge should inflict the punishment of imprisonment or of transportation. The punishment of transportation was by law intrusted to the Judge; and if the Judge sentenced the convict to transportation, that was the sentence to be carried into execution by the Crown. Such was the law; if, however, any doubt existed upon the subject, their Lordships had the power to apply to the learned Judges and consult them upon it; and if they did so, he (Lord Brougham) happened to have very good reason to conclude what their answer would be. The Judge had the option in certain offences, either to sentence the convict to imprisonment for a period not exceeding two years, or of transportation for a term not exceeding fourteen years; and he should like to know whether, if the Judge should exceed the period of imprisonment by one day, or by one hour, any of their Lordships would tell him that that would not be an illegal sentence; and that upon a writ of error being brought upon that sentence, whether, as a matter of course, the sentence of imprisonment would not go for nothing? That was clear and undoubted. Was it then to be endured that, when the law prohibited the Judge from committing a convict for any period beyond two years, although he might transport the convict for fourteen, years, the Crown should, without the consent of Parliament, convert the period of transportation into a period of imprisonment, and thus imprison for fourteen years a party whom the Judge had not the power to imprison for more than two years? It was monstrous; too monstrous for argument. But, if there should be any doubt entertained upon that subject, for God's sake let them set it at rest by appealing at once to the Judges. His noble and learned Friend on the Woolsack, had no doubt considered the matter; and if he had the slightest doubt upon the subject, let 1035 them at once appeal to the proper quarter. He, however, was none of those who held that the law of the land was to be altered by the Crown without the assent of the other two estates of Parliament. He had objected to the same assumption of power in the case of the Education Committee of the Privy Council; and his experience confirmed him in the belief that he had good cause to lament that the more constitutional course was not taken with respect to the education question; but here they were dealing with a far more important subject. The liege subjects of the Crown—the people of this kingdom—were to look to know what their duties were, what their rights were, and what the penalties were to which they were liable, not to Orders in Council, not to Secretaries of State, not to speeches in Parliament—no, they were to look at the statute law of the land; and the Judges were to look at the statute law of the land, and to pass the sentence which the law required. Were the people of this country to be told, when the law said one thing, and the Judges said the same thing, that the Crown had the power to say another and quite a contrary thing?—that the Crown should say that a sentence of transportation by Act of Parliament, and a sentence of transportation by a criminal court of record, meant not transportation, but a totally different thing, because it had pleased the Crown, upon some theory of some persons, to determine that transportation should be suspended? But transportation could not be suspended except by Act of Parliament. He (Lord Brougham) should very soon have to present to their Lordships the report of a Committee on one of the most important inquiries which, within his Parliamentary experience, had ever been undertaken—he meant the report of the Criminal Law Committee. Their Lordships would by that report see that the thirty-four Judges of England, Scotland, and Ireland were unanimous upon the subject of transportation. They would there see the opinion of all the recorders who had been examined—of all the governors of gaols who had been examined—of all the chaplains who had been examined—and of all persons who were most qualified by their talents, their office, their experience, and their profession to cast light upon this important subject. And, after presenting that report, and the evidence upon which it was founded, it would be his duty to bring the whole subject 1036 before their Lordships; and a more important subject, and one that more seriously concerned both the law and the policy of the country, or more nearly affected the constitutional privileges of the two Houses of Parliament, was never mooted before their Lordships.

§ EARL GREY
said, that the noble and learned Lord had raised a most visionary and fantastical chimera, and had presented to their Lorships a picture of a very alarming character of something which the Government were about to do contrary to their sworn duty. Unfortunately for the credit of the noble and learned Lord, the alarm which he had sought to create was the mere effect of his imagination; for it so happened that there was not any foundation in fact for a single word that the noble and learned Lord had uttered. The noble and learned Lord had told them that he would not sit in their Lordships' House for one moment without protesting against the notion that the criminal law of this country could be altered by an Order in Council. Why, who ever proposed it? He (Earl Grey), for one, never made such a statement. What he (Earl Grey) stated was this, that by virtue of a power conferred by a certain Act of Parliament, Her Majesty's Government had appointed the Cape of Good Hope as the colony in which the punishment of transportation imposed by court-martial should be inflicted on soldier convicts coming from the Island of Mauritius, instead of their being sent to Van Diemen's Land. The Act was framed for the express purpose of giving to the Crown the power of appointing places for the reception of convicts. That power had been exercised, the Cape of Good Hope being considered a proper place to which to send soldier convicts from the Mauritius. So much for creating an Act of Parliament, and repealing the criminal law by an Order in Council. But the noble and learned Lord went on beyond the subject of transportation connected with military convicts, and opened to their Lordships his own very peculiar views upon the general subject of transportation. Now, he (Earl Grey) could not help thinking, since the noble and learned Lord had himself told their Lordships that he had been intrusted with the report of the Committee on the Criminal Law, and that such report was founded upon a great mass of important evidence which the noble and learned Lord was in possession of, but of which 1037 their Lordships were not, that it would have been advisable if the noble and learned Lord had abtained from all remark until that report and evidence were brought before them. He (Earl Grey) must beg leave to decline forming his own judgment and opinion respecting that report from the mere statement of the noble and learned Lord, of the nature of which, at the present moment, all their Lordships must necessarily be ignorant; and yet, although the noble and learned Lord knew this, he nevertheless thought it competent, when the question before their Lordships had not the remotest connexion with the subject of that report, but regarded only the Mutiny Act, for him to originate a general discussion upon transportation, not applicable merely to military convicts, but to convicts generally. The noble and learned Lord's remarks upon the general question, it must be obvious to every one, had no reference whatever to the Bill before their Lordships; and he (Earl Grey) could account for the noble and learned Lord's speech from no other reason but from the extreme anxiety of the noble and learned Lord, in season and out of season, with reason or without reason, whether worth their Lordships' attention or not worth it, under all circumstances and on all occasions, to hear his own voice in that House. He (Earl Grey) could conceive no other motive for such a discussion at this time. Though he (Earl Grey) thought he was furnished with a good answer to the noble and learned Lord upon the general subject of transportation, yet he would prefer submitting to any prejudice which his silence might create, rather than anticipate the discussion until the question came regularly before their Lordships. When the noble and learned Lord should redeem the pledge he had given, and should bring the subject forward, he (Earl Grey) should be prepared to maintain and justify the course which the Government had taken, but for the present he should decline entering upon the subject.

LORD BROUGHAM
said, that if he had any very vain desire to do that which the noble Earl had, with his peculiar felicity of manner, and with such extraordinary good taste, alleged he was desirous of doing—that of hearing his own voice, he certainly should labour under one great mortification, namely, that he was now speaking in a place where it was not very easy to hear either his own or any one else's voice.

The EARL of SUFFOLK
rose to order. 1038 The noble and learned Lord had already made one speech.

LORD BROUGHAM
observed, that if the noble Earl attended more to the course of their Lordships' proceedings he would have found that there was no one thing which was so little attended to as that of order in their Lordships' House. He (Lord Brougham) would teach the noble Earl a short lesson, which would be of use to him, and save him the trouble of calling any noble Lord to order again. He would tell the noble Earl, that, according to the Orders of the House, nothing was more clear than this, that no Peer should speak when there was no question before the House; but there was no one thing more certain than this, that the constant course pursued by all noble Lords was that of speaking, not only once, but half a dozen times, when there was no question before the House — he himself, of course, not excepted. He begged to inform the noble Earl who spoke last (Earl Grey), that he would discharge his duty as long as he had the faculty of making himself heard, and that when their Lordships should cease to lend him their attention, he should then know that it was time for him to cease to address himself to them upon any subject. He had sat in their Lordships' House for fifteen or sixteen years and upwards, and he had never yet learned, he had never till that moment been told, and that by a sneer—no, he would not term it a sneer—a sneer implied something pointed, something clever, something that sank deep, and embalmed itself in the memory, by having an epigrammatic sting attached to it; but he had been told by the noble Earl, and that in a manner which he should treat with the most perfect complacency, that, he (Lord Brougham) had totally misunderstood the object and intention of the Government on the subject of transportation—a subject which, early and late, had engaged his attention for more years than he had been a Member of their Lordships' House. He (Lord Brougham) had never said that the law of transportation was altered by an Order in Council. What he did say was, that the execution of the law was altered; that the law continued as it was before, but that the Government had said that they would not put it in force. He did not mean to argue this point at present, because their Lordships were now upon the Mutiny Bill; but he protested against the expression which had been used in his presence—namely, that 1039 the Government had suspended transportation, or that Government could suspend it, without the authority of an Act of Parliament.