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), 1013 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- 1014 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, 1015 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 1016 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 1017 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 CAMPBELLIt 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 1018 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 1019 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- 1020 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 1021 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- 1022 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.