Lords Sitting of 8 March 1847

MINUTES.
Reported.—Custody of Offenders.
3a Labouring Poor (Ireland.)
PETITIONS PRESENTED. By Lord Brougham, from Glasgow, for the Establishment of a Comprehensive and Effectual System of Assessment for the Maintenance of the Poor in Ireland, and for the Relief of Great Britain from the present unprecedented influx of Paupers from Ireland; and from Kingston-upon-Hull, for Amendment of the Law respecting Juvenile Offenders.—From Bridport, for the Abolition of the Punishment of Death in all cases.

POOR LAW (IRELAND).
LORD BROUGHAMpresented a petition

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from the Lord Provost, the Magistrates, and the Town Council—the corporation in fact—of Glasgow, complaining of the distressing effects produced by the great influx of Irish poor into that city, and praying the enactment of a Poor Law for Ireland. He (Lord Brougham) held in his hand a communication from the magistrates of Liverpool on a similar subject, in which it was stated that the influx of these miserable persons from Ireland on three following days was as follows:—Wednesday, 1778; Thursday, 1681; Friday, 1636. That was to say, an average of from 1,600 to 1,700 daily. The consequence of this influx of distress was disease; many cases of typhus fever had broken out in the borough, and among others who died of it was the relieving officer, after an illness of only forty-eight hours. He had also received communications from respectable persons in Ireland, whose names he thought it prudent to conceal at that moment, in which complaint was made of the great misery suffered by the poor in that country, and the utterly inadequate assistance which they had received from those who ought to be the first to afford it. While England was under the pressure of the Queen's Letter—the operation of Her Majesty's Missive—and under the instigation of those eloquent men who preached charity sermons in every place—also acting, he was bound to say, on the impulse of the benevolent feelings of her inhabitants, many of whom gave much more than they were able, perhaps, to afford—he was very sorry to say that the same feelings did not prevail in all parts of the empire. In some districts of one part of the empire—he did not say in all—they did not seem to prevail. In one district, for instance, where the non-resident proprietors had a rental of 25,587 l., upon the most pressing appeals that could be made to them, they only contributed 208 l., or 2d. in the pound on the rental. There was another case, in the union in the county of Cork, where the population was 7,000 Catholics, and five Protestant families with four Protestant rectors. A dignitary of the Church in this union, and drawing 450 l. a year from it, was applied to, and he sent a donation of 1l. The committee, no doubt "thankful for small mercies," were very much obliged to him; and, small as it was, it was something better than 2d. in the pound; but still, thinking that it might be a mistake, the secretary wrote to that rev. gentleman on the subject. It was, however, no mis-
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take—he would give no more; although the district from which he derived his annual 450 l. was one that abounded in paupers. There was another parish with a population of 3,000 inhabitants, of which three-fourths were paupers employed on the public works, where all the landlords were absentees, with the exception of one who farmed his own land, and who had evicted from his estates, not two years ago, nearly 400 persons. From none of these landlords were the committee able to extract anything but 20 l. from one who owned land in the parish of the value of 1,200 l. a year. Another of these same landlords, a wealthy barrister of Dublin, drawing 500 l. a year from the parish, gave no answer whatever to an application made to him by the relief committee, although a great number of paupers from his property were supported on the public works. In an adjoining parish, a landlord with a rental of 2,000 l. a year gave nothing, though a great many paupers had been very lately made by the eviction of 400 persons, in the process of what was called clearing his estate. In a third parish, a barrister who had purchased an estate for 7,000 l., gave nothing. Not alone that, but he would not grant a site for a school-house, for the erection of which 130 l. had been bequeathed some eight years since, until very lately he had leased them a quarter of an acre of land at 6l. per annum. Very charitable that! His wife, who was the daughter of a general officer, not satisfied with the price her husband had obtained for the quarter of an acre of land, insisted upon it, as one of the conditions of granting that site, that 20 l. of the 130 l. should be paid as a sort of fine to herself, that she might therewith establish a school for the education of the children of her own tenants, in her own manner. Every one had, he admitted, a clear and undoubted right to subscribe to the relief of the poor or not, as they chose; and no person had a right to complain of them if they did not. One exception there was, however—namely, when ten millions were given by this country for the support of the Irish poor, and large sums besides sent to Ireland in private charity, the people of England had a right to expect that those who assisted to create the pauperism of their own country should aid in its support. He had another statement to make relating to a place called Ballina, in respect to which what he said the other night had so excited the indignation of his noble Friend. He had endeavoured, on

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that occasion, to connect the poverty which inundated the ports of England with the legal processes now carried on in that country; and he was told he knew nothing about it. A gentleman who was engaged in the matter, and who knew everything about it, informed him that in the quarter-sessions held at Ballina, in the barony of Tyrawley and the county of Mayo, on the 11th January last, there were set down for trial from 1,500 to 2,000 civil-bill processes, at the suit of from 16 to 18 landlords, for rent ending and due on the 1st of the November preceding, for the use and occupation of tenants to the same period, and for the recovery of conacre agreements. In Ireland the landlords had the power of levying a distress upon the goods and chattels of the tenant for rent; and such processes as those before the barrister, which involved personal attachment, were perfectly novel in that country. In ordinary years, the landlords did not collect their rents through the medium of barristers' courts; neither did they demand the November rent until the following March. This year the tenants had no goods or chattels—the moment was therefore favourable to the landlords for frightening the poor people, and effecting the clearance of their estates; therefore they insisted on proceeding in the assistant barristers' courts against them, and obtaining a decree for attaching their persons. Who could doubt that these processes had connexion with the mass of pauperism from Ireland, thrown upon the shores of England, and incumbering Liverpool and other seaport towns? His informant went on to say—
"The people, already distracted and panic-struck by the loss of their potato crop, and fearing the land would not in future produce a similar crop, seeing also the impossibility of settling peaceably with landlords, who were determined to have the pound of flesh, yielded to their fates amidst the wailings and weepings of their starving and wretched families. If they even held out, they had neither money nor seed to till the land, and they feared that holding out, the landlords might endeavour to prevent their getting on the public works, now become their last refuge for a lingering existence. Many of the people fled before the processes were entered for trial, and more of them subsequently gave up their holdings. Thus the calculations of the landlords that these processes would have all the efficacy of ejectments were realised, and their object of clearing their lands of what they term a surplus population is, with cruel ingenuity, being accomplished; and to what extent may be judged by the statement of the Rev. Mr. Nary, parish priest of Lucken, in the barony of Tyrawley, and county of Mayo. He says, that in the month of September last he
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had in his parish 1,000 families; that from the combined causes of flight, starvation, and pestilence, he has now but 500 families: that of the latter number not more than 30 families have sufficient means to enable them to make a sowing; and that from the operation of the same causes—namely, starvation, pestilence, and flight, he is confident that of the 1,000 families, or 5,500 souls, in his parish last September, there won't remain on the 1st of August next more than 200 souls. I have already stated that there were from 1,500 to 2,000 of these processes entered for trial. There must, however, be double that number issued against the people; for such of them that fled or surrendered to their landlords' wishes previous to the first day of the sessions—that is, the 11th of January—against all these no processes were entered for trial. So that the total number of processes issued must be 4,000, which number involved the fate of 22,000 human beings. The people, thus frightened and hunted from their holdings like beasts from the field, will, for the most part, be shortly in eternity. It rarely happens that more than one of a family gets on the public works, and the work done by one half-starved man will not produce more than 8d. or 10 d. per day. At the present price of provisions, this would be little enough, and too little, for one man; yet he must divide it with his perishing family. I leave you to judge whether this state of things will not further the work of death fast enough. Even the soup-kitchens, which give some temporary relief to several persons, hurry others to their coffinless graves, dysentery prevailing to a great extent here; and those having it, taking soup and glad to get it, go off faster than others."
He was not at liberty to mention the name of his informant; but a connexion of his had called upon him with that letter, and said that he knew the writer perfectly. He ought to mention that he had received another account of a most grievous nature from Skibbereen, also containing a statement of great abuses in that district. He was informed that great sums of money had been poured into Sikbbereen, and persons had flocked there from other localities to benefit from it, and that not merely poor persons, but persons who had no claim whatever to relief on the ground of destitution. All this made good the alarm he had expressed from the first, and his assertion that they could not carry on a system of this kind without great abuses, unless they were not only omniscient, but omnipresent and omnipotent also. It thus appeared that some persons were thriving, while others were distressed, which perhaps accounted for the contradictory statements they heard on these subjects. It reminded him of Home Tooke's reply to Mr. Canning, when he said, "He did not perceive that the vessel of the State was sinking." "Very likely not," said Mr. Tooke, "for you are rising all the time, and,

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therefore, you do not perceive it." A correspondent from Sligo had written to him to say that in his previous statements to their Lordships he had much understated the facts (which of course he had wished to do), respecting the relatives of magistrates and clergymen being employed at the public works. His correspondent mentioned a clergyman, two of whose sons were paid clerks. He stated also that four sons of Mr. J. Ormsby, a magistrate, and grand juror of the district, had seven paid situations amongst them. The eldest son was a barony constable, an officer whose duty it was to collect the county cess.
The EARL of DEVON: That appointment is under the Grand Jury Cess Act.
LORD BROUGHAM: He is also a paid clerk under the Board of Works. The second son is stated to be a contractor, and also a county constable; the third son, to be private secretary to Captain Gilbert, of the Board of Works; and the fourth son, to hold some subordinate situation in the same department. It is stated, also, that the eldest son of a gentleman of great wealth, and the heir to his property, is a paid clerk under the Board of Works; and, in fact, that there is scarcely a person employed in a lucrative situation who is unconnected with the landowners of the district. He admitted these statements were more showy than substantial; but they were useful, and he mentioned them to show that his previous statements were not without foundation.
The EARL of DEVON: Securities being required, they must take responsible persons.
LORD BROUGHAM: Yes, yes. But these things must come to an end; and his fear was that they would not come to an end this year or the next; and that if they did not look closely after the distribution of the public money, and prevent its being turned into wrong channels, they would never come to an end at all. The ten millions sent this year would only make them more anxious for ten millions more; and thus it would go on until it could go no further. He must say also that there appeared to be an extraordinary degree of supineness in the districts from which these accounts proceeded, and that the inhabitants did not appear to exert themselves in the way in which they would exert themselves under similar circumstances in any part of England or Scotland. His fear, therefore, was, that if we went on showing these people that while they did nothing
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we would do something, and that if they neglected their duty we would do it for them—we should only be encouraging them to do nothing, while we were doing, perhaps, more than we ought to do.
The EARL of MOUNTCASHELsaid, he thought the noble and learned Lord was not justified in making such statements upon anonymous authority, since it must be manifest the degree of credit to be attached to them depended solely upon the credibility of the noble and learned Lord's correspondents. As to the statement that one individual in the county of Cork had turned 400 persons off his states, he must say he was not satisfied that such an occurrence had taken place; for he was convinced, unless it occurred very recently, that he must have heard of it. With respect to the statement of the small sum of money subscribed by the Irish landlords, all he knew was, that in those parts of the county of Cork he was acquainted with, the landlords had come forward most generously, and, though much impoverished themselves for want of their rents, had done all in their power to relieve their suffering dependants. He thought also that where it was otherwise, it was mainly occasioned by the landlords being deeply indebted, and obliged to pay the little money they did receive from their lands to satisfy the bonds and mortgages of their creditors.
LORD BROUGHAMsaid, he could not satisfy the noble Lord. When he gave neither the names of persons, parish, nor correspondent, the noble Lord complained that he suppressed the names; but the noble Lord only complained the more when he gave the names of persons and parish. Now in the latter case, where he had given the names of persons and parish, he would give the name of his correspondent. The gentleman from whom he had received his information respecting the parties whose sons were employed upon the public works, was Mr. Edward Howe Verdon, proprietor of the Sligo Champion, who had made similar statements publicly in his paper, and who now had privately given to him more detailed information. In the other cases, however, as he had not given the name of a single person, he should withhold the name of the rev. gentleman who was his correspondent.
The MARQUESS of LONDONDERRYsaid, he thought the noble and learned Lord was not justified in making such attacks upon the Irish landlords, especially since all the inquiries that had been made re-

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specting former statements of a similar character, proved that the landlords were not so much to blame as had been represented. As to the statement that their subscriptions were unworthy of their large possessions, the noble and learned Lord did not seem to know the situation in which these persons were. In addition to the arrangements they had to make for the well-being of their estates, every charge upon the estates had to be paid first out of their rents. They must be just before they were generous. He had no objection to state how the case stood respecting himself, and he knew that many landlords were in a similar predicament. He and the landowners in the county of Down had determined not to hold presentment sessions, or to apply to the Government for loans of money, but to employ the poor of the district on their own property, and thus save them from destitution. They had thus saved that part from the calamities that were afflicting other parts of the country; and he therefore thought it unjustifiable that the noble Lord should run them down with other Irish landlords without distinction. Then, again, there was a great influx of population into the county of Down from other parts, especially into the towns, which he admitted they had endeavoured to discourage, for he thought, while they were doing all they could to save their own poor from starvation, they ought not to be burdened with the poor of other districts, which were equally able to support them. It was all very well for the noble and learned Lord to make his eloquent statements in their Lordships' House; but the noble and learned Lord should rather move for a Select Committee to inquire into the conduct of the Irish landlords, if he believed the various rumours prevalent respecting it. The noble and learned Lord, perhaps, had been reading The Times newspaper; but the statements on the subject which had appeared in The Times were most fallacious. The most monstrous statements that had ever been made, had appeared in that journal, having reference to the county Antrim, in which it had been said that the tenants generally had actually stated to their landlords, that unless their rents were immediately reduced, they were determined not to pay any rents. He had been in Ireland at the time that statement had appeared, and, in order to ascertain if it were true, he had applied to Lord O'Neil, who was a constant resident in Ireland; and that noble Lord,
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as well as other resident gentlemen, had informed him—had all of them informed him—that they had never heard one word of the kind from the tenants. He then wrote to The Times, to know on what grounds they had made that declaration; but they did not state the grounds to him. He must say now, that the noble and learned Lord was going upon the very same principle, and was running down the Irish landlords in a manner which did little good to the country, and very little credit to himself.
LORD BROUGHAMsaid, that a more extraordinary charge than that which the noble and gallant Marquess had just preferred against him, he had never heard, even in these times of exaggerated charges. He denied that he had made a general attack upon the Irish landlords, or that he was running them down. He had begun the statement he had made, by saying that what it referred to was an exception to the conduct of the landlords; and he had also said, that his observations did not apply at all to the noble and gallant Marquess; for he know that he had contributed to the relief of the distress of his fellow-countrymen.

JUVENILE OFFENDERS.
LORD BROUGHAMpresented a petition from the mayor, aldermen, and burgesses of Kingston-upon-Hull, in common council assembled, confirming the statement made from Liverpool, respecting the administration of the criminal law, particularly as regarded juvenile offenders. The noble and learned Lord went on to say, that he was about to move the appointment of a Select Committee to examine into (which was the prayer of the petition) the subject of the criminal law, particularly as regarded young offenders. The members of the profession to which he had the honour to belong, viewed the proposed changes of the Government with alarm, in consequence of its being proposed that those changes would be effected without the intervention of Parliament. But however lengthened an experiment the Government might make on the matter, they must ultimately apply to Parliament, if they would carry their proposed system permanently into effect.
LORD STANLEYwas not quite certain that the noble and learned Lord had interpreted aright the declaration of the noble Lord opposite. He (Lord Stanley) had understood from the noble Earl (Earl Grey),

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that it was the intention of Her Majesty's Government at once to carry into effect the altered views they entertained with respect to transportation or non-transportation for a period of two years; and that it was not until the end of that period of experiment they had any intention of introducing an Act of Parliament on the subject. Whatever opinions he might have respecting the punishment of transportation in the abstract, he certainly entertained a more favourable opinion respecting that punishment than his noble and learned Friend. But there was another point not to be lost sight of by their Lordships, and that was, the mode of making the proposed alteration. It was very well to say it was only an experiment; but it was an experiment of very great magnitude; and he thought it ought not to be sanctioned without having the opinion and advice of that and the other House of Parliament taken upon it. What was it that the noble Lord proposed to do? It was, by the exercise of the prerogative of the Crown prospectively, without reference to any particular or individual case, to commute every sentence of transportation which in any of the courts of law should be passed during the next two years. That was a very large and important change; but it was not only that. It was also an abuse of one of the most valuable of the prerogatives of the Crown—the prerogative of mercy. It was of the utmost importance that the Crown should continue to exercise that prerogative without its being in anywise endangered or impaired. But in his opinion, the proposed alterations would seriously endanger that prerogative; for it was not proposed that it should be applied under the advice of the Secretary of State in mitigation of punishment, and with reference to the particular merits of each individual case, and upon a specific examination of its details; but it was proposed that for two years the judges should continue to pass sentences of transportation, which they were bound to pass in all cases of a certain description, and that the judges, juries, witnesses, and prisoners—in a word, all the parties concerned—were to know beforehand that the Crown intended to interfere by a wholesale exercise of the prerogative, to prevent the sentence being carried into effect. This wholesale application of the prerogative appeared to him calculated to injure the prerogative. He did not intend to give notice of any Motion, but hoped Her Majesty's Govern-
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ment would reconsider their opinion, and if only for two years they intended to discontinue the punishment of transportation, introduce into Parliament a Bill which would enable both Houses to discuss the merits of the scheme, so that the law should bear upon it the sanction of the suspension of that punishment, and embody a declaration of the sentence which judges should have power to pronounce in lieu of transportation. That course of proceeding would enable Parliament to pronounce a deliberate opinion on the subject; it would maintain the exercise of the prerogative of mercy on a consideration of the individual circumstances of each case; and would not involve a prospective and wholesale alteration of the law, under the plea and pretext of applying the prerogative of the Crown. He hoped to hear that Her Majesty's Government would not be indisposed to proceed by introducing a Bill.
EARL GREY,in answer to the noble Lord, begged to remind him that the law as it now stood, and had stood for a considerable number of years, gave the Crown the power of deciding how, not merely certain individuals, but certain classes of offenders sentenced to transportation, should be disposed of. That power had continued unchanged up to the year 1843, when his noble Friend (Lord Stanley) himself had, without any appeal to Parliament, entirely altered the practice, according to which, in the ordinary course, no criminal sentenced to seven years' transportation had ever been actually transported. That regulation had been habitually practised under all successive Administrations, except where there were some particular circumstances, whether of aggravation or otherwise, connected with a case. The criminals were not transported to Australia, but, on the contrary, were punished by confinement on board the hulks at home or at Bermuda. His noble Friend, when he became Secretary of State for the Colonics, had, in conjunction with Sir J. Graham, then Secretary of State for the Home Department, altered that practice, as he (Earl Grey) had already mentioned; and it had been in consequence determined, that a very large number of convicts should be sent to Van Diemen's Land and Norfolk Island, the influx of whom had been attended with the fearful and dreadful consequences they had seen. He had stated it had been the practice that the Crown should define, not merely what individuals, but what classes of individuals, sentenced to transportation,

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should be actually transported. Now, it would be extremely inconvenient—to use a word that understated the fact — at the present moment to propose any law altering the punishment of transportation; and for this reason, that though, as he had said, transportation, as hitherto administered, was a had punishment; yet—and so far he agreed with his noble Friend opposite—there was a real advantage connected with it; and that was, that after what was properly the most penal part of the sentence was over, the offender was not turned loose upon this country without any means of obtaining for himself an honest maintenance, but was, on the contrary, discharged from custody, in a country where, owing to the peculiar circumstances of that country, he had the means of honestly maintaining himself. Now, in order to retain that advantage, it was necessary that the sentence of transportation should continue to be pronounced; because it was under the power given by that sentence that it was contemplated that persons, after they had been punished, should be transferred to the colonies. If that sentence were not hanging over them, there would be no means of carrying into effect that which he considered a very material part of the change of system. He could not help thinking that the real magnitude of the change was greatly overrated. It was not an abolition of transportation. Transportation would continue to be the sentence pronounced; and, more than that, the punishment actually inflicted would continue to be substantially and precisely the same as before, save only that the place where one part of the sentence should be carried out would be changed. He had stated, on a former evening, that the essential change was made in consequence of the report of the House of Commons of 1838, when the old system was essentially given up, and the punishment resolved itself into this—that the person transported was subjected to penal labour for a time in the colonies, and then received a conditional pardon, whereby the person might enjoy all the privileges of a freeman, except that of returning to his native country. Under the system the Government now proposed, that state of things would continue to exist, with the difference only that the penal labour, which was now substantially the penal part of the sentence, would be inflicted in this country, and under the immediate superintendence of Government, which could observe and
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check, on the spot, any abuses that might take place; and after that penal labour was at an end the criminal would be discharged as now, not in this country, but in Australia, and would be subjected to precisely the same restraints as now, and would be discharged under conditions of pardon which would preserve precisely the same power over him that was at present enjoyed by the Executive Government. He ventured to say, then, that that was not so substantial a change of system as to make it necessary that an Act of Parliament should be applied for. No man could doubt that, by the law as it now stood, it was perfectly competent for Her Majesty to direct that a man should be transported to Van Diemen's Land at any period of his sentence. In point of fact, that had been the recommendation of the Committee of 1838; and in the majority of cases, there should be part of the penal labour performed in this country before the man was actually sent out to Australia. That power it was intended to exercise as it had hitherto been exercised; and he thought there would be this further inconvenience in proposing any immediate change in the law, besides that which he had adverted to, namely, that in making such a change it would be necessary to define in a matter which it was extremely difficult to define, what were the circumstances under which eventually the criminal should be removed to Australia. He thought that the sentence of transportation was now one to which the people were accustomed in this country; that it would be far more convenient that that sentence should be pronounced as heretofore, and should involve eventual expatriation as heretofore; but, in the first instance, they should not continue to send men for the purpose of being subjected to penal labour to a colony where experience had proved that we could not watch over that portion of the punishment with the care and effect which were so highly desirable in such cases.
LORD BROUGHAMutterly denied that the Crown had any such power as the noble Earl had stated. The law was this: Supposing an Act of Parliament denounced the punishment of transportation for an offence, the judge was bound to pass that sentence. And that sentence being pronounced—say that it was transportation for twenty-one years—then he denied the power of the Crown to imprison the convict for twenty years, and to send him out for the remaining twelve months, to endure

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the process of what was called—not transportation, but "expatriation"—a totally new phrase, which the laws of this country knew nothing about, which was not to be found in any of our books, and had never been heard of here. The same argument would apply with equal force, whether the sentence of transportation was for fourteen years or for ten. His noble and learned Friend (Lord Lyndhurst) and himself had looked into the Act 5 George IV., cap. 83, and it was clear that it was not meant to apply to a general system—that it was not intended to abolish transportation—but that it gave the Crown power, when sentence of transportation was passed, to deal with the convicts by sending them to prisons in this country. This was meant in particular cases, and applied to particular classes, and it was not meant to authorize the Crown all at once to abolish transportation and convert it into imprisonment. No man doubted the power of the Crown to pardon for capital offences, high treason, murder, and capital felonies of all descriptions. But would it or would it not be legal to abolish capital punishments, not by Act of Parliament, but by an exercise of the prerogative of mercy? Why, it would be monstrous to conceive such a thing. He had a petition in his hand, addressed to their Lordships from the borough of Bridport, for the abolition of capital punishment. But, according to this argument, they had mistaken their way. They ought not to have come to Parliament, but have petitioned the Crown to repeal these punishments. But no man dreamt of that; it was legal, perfectly legal, but highly unconstitutional.
LORD CAMPBELL: It was highly proper that the Legislature should have the opportunity of discussing this most important subject; and the plan of his noble Friend (Earl Grey) was fully discussed by the two noble Lords opposite (Lords Stanley and Brougham) when on a former evening it was announced to the House. But he must avow his opinion that all his noble Friend proposed to do might be done by way of experiment without any Act of Parliament; though he admitted that it was highly proper that communication should be made to the Houses of Parliament of that which was contemplated by the Crown. Now, what was the meaning of passing a sentence of transportation? If the execution of the sentence of transportation were in all cases imperative upon the Crown, then the executive officers of the Crown
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were guilty of a violation of the law if in any case where transportation was ordered by a court of justice, the prisoner was not immediately transported. If that were the case, the noble Lord opposite (Lord Stanley) when he was at the head of the Colonial Department had frequently violated the law; and all his predecessors for the last century had violated the law, because no such construction had ever been put upon those various Acts of Parliament. The meaning of transportation must be taken to be this—that the Crown had power to transport, if it should be thought advisable that that sentence should be carried into effect; but that within the period for which transportation was ordered, the Crown might retain the prisoner in this country, in gaol, and employ him at hard labour for the period of the sentence of transportation. As to transportation for seven years, this practice was notorious, not with regard to individuals, but with regard to a class. It had been laid down by successive Secretaries of State, that they would not in any instance carry the sentence of transportation into effect. That was the general rule; subject certainly to exceptions. And what was done? They were retained in prison in this country; sent to the hulks, and kept to hard labour. But had it ever been said that there was any violation of the law in the course which had thus been adopted? There were the Parkhurst boys—they were all of the class who were sentenced to transportation for seven years; but, instead of being transported, they were sent to Parkhurst. All stood upon the same footing; and if a felon transported for seven years might be kept in the hulks, so also a person who had been ordered for transportation for fourteen or twenty-one years, or for life, might be kept in this country.
LORD ASHBURTONsaid, it was highly desirable that the Crown should have the power of mitigating punishments by the exercise of the Royal prerogative; but it appeared to him altogether absurd to be continually condemning criminals to punishment which the Crown had predetermined in no case to execute. He wished to know if a criminal sentenced to transportation had not a right to claim that the sentence passed, and no other, should be carried into execution?
LORD CAMPBELLwas of opinion that a criminal had no such right, and that if, being sentenced to seven years' transportation, he were to apply to the Court of

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Queen's Bench for a mandamus to the Secretary of State immediately to send him to a penal colony, the writ would be refused. So, if the sentence of death were passed, the criminal could not insist upon its being carried into execution. The sentence only gave the Executive Government the power in the one case to deprive the criminal of his life, and in the other to transport him if they should see fit.
LORD BROUGHAMhoped he also might be allowed to ask the noble and learned Lord a question. An option was sometimes given to courts of justice to transport or to imprison for a similar period—which, by the by, looked as if the Legislature considered that there was a radical difference between the two; an Act passed for punishing perjury with either transportation or imprisonment for any period, even for life; suppose a person sentenced under that Act to transportation for life, would the noble and learned Lord say it would be legal, or at least that it could happen, that such a person should be shut up in a prison for the term of his natural life?
LORD CAMPBELLwas always delighted if he could do anything to oblige his noble and learned Friend, and would give his opinion without fee. The question was one of legality or illegality, and he had not the slightest hesitation in saying that there would be no breach of the law whatever, if the criminal were dealt with in the way mentioned by the noble and learned Lord in his question. If an option were given to the court, either to sentence to imprisonment or transportation, and the court pronounced a sentence of transportation, then the court gave to the Executive Government the power to transport, but did not impose upon them the obligation to transport; and if they thought fit to retain the criminal in gaol, and not to transport, there would be no violation of the law.
LORD BROUGHAMdid not mean to confine himself to instances where an option was given to the court; suppose, as in many cases, that there was no option, and that the sentence of the law and the sentence of the judge was transportation for life—would it be legal, under colour of executing that sentence, to imprison for life? Mortal man could not discover anything more absurd and ridiculous than to keep pronouncing sentences which it was known would in no case be carried into execution. But the noble Lord (Lord Ashburton), in noticing that anomaly, had un-
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derstated the inconsistency; the sentences pronounced were not to be carried into effect while the noble Earl (Earl Grey) continued Secretary of State, and the noble Marquess (the Marquess of Lansdowne) President of the Council; but they might go out of office, or they might change their opinion next year, and then the law would be at sea again. If it was true which was said, Misera est servitus ubi jus vagum aut incognitum, we were certainly in a complete state of servitude in this matter.
The MARQUESS of LANSDOWNEfelt that it was not for him to give a legal opinion as to the power of the Crown; but he was prepared to say that it would not be desirable for Her Majesty's Ministers to advise the Crown to depart indirectly, even though legally, from that which was the intention, and spirit, and scope of the former Act of Parliament; but it seemed to him that nothing could be more clear than the words of 5 George IV. It stated not merely the places of confinement, but that it should be lawful for His Majesty, from time to time, by warrant under his sign-manual, to appoint places within England and Wales, either on shore or in vessels to be provided by His Majesty, for the confinement of persons under sentence of transportation; and not merely did it provide these places of confinement, but it went on in the same clause to say, that every offender so removed should continue in the same place of confinement, or be removed to and confined in some such other place or places as one of the Principal Secretaries of State should direct, until the offender should be transported according to law, or "should become entitled to his liberty." He said, that this clause contemplated a power being given to the Crown, which was to be exercised according to its discretion, of confining a person subjected to transportation for a year, or two years, or for the whole period for which sentence of transportation had been passed upon him. It was at the period of the time for which he had been sentenced, that the person became entitled to his liberty, and not till then. But why, it was said, not now part with the name of transportation? Because, he said, they had not departed from the principle of transportation. What they proposed was a modification of transportation. It was proposed by his noble Friend as a new mode, by which it was hoped they might succeed in correcting offenders. They began, then, with a term of imprisonment; and at the end of that term there

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was to be transportation, though transportation under another form. He was ready to admit, that supposing Parliament should, from experience, approve of this new system, then it would be desirable to give it the sanction of an Act of Parliament. But, till they had seen the mode in which this system might operate, they thought it better not to change the law, but that his noble Friend should avail himself of that discretion which Parliament gave to the Crown. This, then, was not to be considered as a permanent change in the law, but a change to be subjected to the consideration of Parliament. It was merely a temporary change, as many changes had been made on the same subject by his noble Friend at the head of the Treasury when Secretary for the Colonies. No greater change, in fact, than had been made by the noble Lord opposite when Secretary for the Colonies.
LORD BROUGHAMsaid, that the form of the clause adverted to by the noble Marquess, showed that it was not meant to give the Crown the power of imprisoning a man for life who had been sentenced to transportation for life; for the object of the clause was to the effect that the offender should be imprisoned in such gaol as the Crown should direct, until he was transported, or until he should be entitled to his liberty, as, for instance, by pardon. The clause did not say "until the sentence of transportation should expire."
LORD ASHBURTONcontended that the admission made by the noble Marquess, that the proposed system, if adopted permanently, would require the sanction of an Act of Parliament, was an admission that the Government, while making the experiment without the sanction of an Act of Parliament, would be acting in contradiction to all law.
The MARQUESS of LANSDOWNEexplained, that what he meant to say was, that it would be wiser in Parliament to make a permanent change of system after, rather than before experience.
The EARL of ELLENBOROUGHinquired whether the noble Marquess believed, that he would be able to have the proper experience? It would require an experience of seven or eight years rightly to test the proposed system; and did the noble Marquess and the noble Earl (Earl Grey) anticipate that they would remain in office long enough to have that experience?
The MARQUESS of LANSDOWNEanti-
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cipated nothing of the sort; but at any rate it would be for the next Government to consider whether they would continue the experiment or not. If they disapproved of the experiment, they would take another course—if they approved of it, they would continue it.
After a few words from the Earl of CHICHESTER, Motion agreed to.
House adjourned.