Lords Sitting of 11 July 1853

MINUTES.
Took the Oaths.—The Lord Stuart de Decics.
PUBLIC BILLS.—2a Transportation.
Reported.—Savings Banks Annuities.

NAVAL PROMOTIONS AND RETIREMENT.
THE EARL of HARDWICKErose, according to notice, to draw their Lordships' attention to the Order in Council of the 25th of June, 1851, bearing on the promotion and retirement of Officers of the Navy. The noble Earl said his Motion had no reference to the present Government, who had nothing to do with the Order in Council in question. Their Lordships would remember that at the time when the order in question was brought under the notice of the public, he had taken great objection to it in this House; and his present purpose was to try and induce Her Majesty's present Government to look again generally into the order, either for the purpose of rescinding it, or amending it in such a way as that justice might be
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done to the officers in Her Majesty's service. In order, however, to obviate the objection that nothing had been done to revise the order when he himself was a Member of Her Majesty's late Government, he would at once say that his noble Friend had laid it down as a rule that matters requiring the most urgent attention should be first attended to; and until the decision of the country had been received, and it was ascertained clearly that Lord Derby would or would not continue to hold the reins, no details on Government would be interfered with. But if the late Government had continued in office he should have done in the Cabinet what he now proposed to do in their Lordships' House, namely, to call attention to what he considered the importance of that order, and also to its inefficacy for its proposed object. The order had reference, in the first place, to the instruction of midshipmen; secondly, to lieutenants and commanders; and, thirdly, as to post captains. Now, there could be no doubt that, in the early stages of the service, it was right that officers should receive such instruction as should enable

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them hereafter usefully to serve their country, and he, therefore, had no intention to direct any attention to the first branches of the order. But to what he wished particularly to point was the order regulating the service of post captains to enable them to receive the rank of admirals upon the active list. The result of the order was this, that they must serve six years in time of peace, four years in time of war, and five years in the time of war and peace combined, in command of a rated ship. That was the sole and entire test of the ability of an officer, and, therefore, they had simply to serve that period of time to enable them to become active admirals. Now, there could be no doubt that the intention of the order was perfectly just, as well as its object perfectly clear, and that was to endeavour to place upon the list of admirals for active service young, active, and intelligent men, who were practised in their profession; and if that effect had been completely produced, he (the Earl of Hardwicke) could have no objection to its continuance; but he had always felt that it would be both productive of injustice, and inefficacious for its end. The injustice of it lay in this—that while it was desired that an office should serve in a rated ship, no rated ship was provided for him. An officer having entered the service, might expend the best part of his life in it; he might serve the best apprenticeship possible—he might distinguish himself in the procession by his zeal and activity—he might see service and might rise rapidly; but having attained a certain rank, he might not succeed in getting, a rated ship for six years, so that when at the top of the list, time door was shut in his face, and he was in fact dismissed from active service. On the other hand, although another party might not have very much distinguished himself, as in all professions there were were men of various abilities, if he happened to be possessed of powerful interest, from the simple fact of having commanded a rated ship for the requisite number of years, he would receive the appointment of admiral on the active list—and perhaps it was well for him to explain to their Lordships that the term rated ship implied all vessels from the smallest frigate up to the highest class line-of-battle ships. Well, since that was the case, he was prepared to maintain that the Order in Council had failed to carry out its own object, for it permitted a captain who had never commanded a line-of battle ship, and who consequently could
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never have fitted himself for those duties of the profession which the order contemplated, to obtain the rank of admiral on the active list—namely, that of sailing in the line of battle, and being practised in the manœuvres of a fleet. Thus, for instance, if, many years ago, an officer had commanded a frigate for some five or six years in time of peace, he was to this fact indebted for his promotion to the rank of an active admiral; while, on the other hand, one who had served for two years in a line-of-battle ship, and two or three in Frigates, and who had been constantly practised in all naval evolutions, was removed to the reserved list. Now, he contended that alone was sufficient evidence of the failure of the Order in Council. But he wished to call their Lordships' attention to another point, which bore upon the civil portion of the service. By one of these Orders in Council any officer having been at the head of a dockyard, a hospital, or any civil establishment of the Crown relating to the Navy, was thereby entitled to take his place upon the active list, and was competent to receive the command of a fleet. The order directed that the time passed in that service might be reckoned as so much sea-time passed afloat. That rule was, he believed, intended to apply immediately to the dockyards and victualling yards, and not to hospitals; and yet he knew of three distinguished officers who had served their time as superintendents of hospitals, who had been placed on the active list, which appeared to him to be a flagrant injustice. He wished, then, to know what had been the result of the order of 1851, and what had been the practice following on it? Whether had that practice produced on the list a body of young and active officers, who might be supposed from their youth to be more energetic and more able to command fleets; and whether the result of it had been to place upon the retired list the names of the old officers whose years justified and rendered necessary their retirement? He himself was able to testify, however, the effect of the order on the last sixteen admirals on the active list, and to compare them with the last sixteen on the reserved list. He found that the sum of ages reached 1,027 years on the retired list; and sixteen upon the active list. whose united ages were not less than 1,038 years, so that there was a small balance against the activity of the active List, and there had been placed upon the

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active list a larger number of aged officers than on the retired list. And looking over the promotions of the last two years, be found on one side of the retired list that an officer of 60 years of age was placed against one of 68 on the active list. Again, one of 63 against one of 67, one of 59 against 60, and one of 59 against 70. It was quite plain, therefore, that the Order in Council could not be tested by the superior ability or activity of the class of officers whom it had promoted. The service of six years in a rated ship could not be any sufficient test of the ability of an officer, because officers might have served within a week or month of that time; while, on the other hand, you might have an officer pushed on in the service by interest, who might have served the required period afloat, and still might not be so efficient a man as the other, who had not served quite so long a period. If their Lordships took into consideration the mode in which the Navy was governed, it was the very last profession in this country which ought to be regulated by Orders in Council of this description. The theory, indeed, was, that the administration of the promotions and appointments was ordered by a Board of Admiralty, who had sworn to execute the office of Lord High Admiral; the practice, however, was totally different; or, at all events, so far as the promotion of officers was concerned, it was not directed by a Board, for it was wholly in the bands of one individual exercising the office of the First Lord of the Admiralty. Now, under the Order in Council of 1851 it must follow that the First Lord was very frequently placed in a very painful position, as his conduct would often be open to most unjust imputation, let him do whatever he might, and be as just as he could. And to take an instance that was very likely to occur: suppose the First Lord was to take the list of post-captains in his hand, and that he found some relative of his placed eighth or tenth on it, of course it was open to him, if he were so disposed, in case any of those preceding that name on the list had not served the requisite number of years under the order of 1851, to take care that they were not permitted to serve, that his relative might be an admiral as soon as soon as possible. Such a state of things placed the profession in a very anomalous position—a to which no other profession had to submit, for everywhere else men could rise to the top of the tree by
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the exercise of talent and ability. And he would remind their Lordships that the recent Order in Council was only a repetition of an Order issued in 1827, but which vas repealed on account of its being considered unjust to the service, and there was substituted for it that order which was repealed by the order now under consideration. What he would ask the Government to do was, to examine the bearings of that, Order in Council, and to restore to the service the arrangements then effected, instead of those existing at present, which produced no financial advantage to the nation. The order substituted for that of 1827 would effectually meet the case which he had described, and would prevent any governing power being placed under circumstances of great difficulty, and from having its motives represented in a spirit totally foreign to its feelings and intentions.
The EARL of ABERDEENsaid, the noble Earl had rightly stated that Her Majesty's present Government had not originated the Order in Council to which he had alluded, and had also given a reason for not bringing the subject under the attention of the Government of which he himself was a Member. He thought he recollected that at the time this Order in council was issued, the noble Earl, with some of his friends, had made some observations on the subject. He believed the matter had been considered by the Government at the tune, and had also been fully considered by Parliament. Now, he (the Earl of Aberdeen) knew the subject was one upon which much difference of opinion prevailed in the naval profession, and he confessed that he himself was not very competent to offer an opinion upon any practical view which the noble Earl had taken upon the working of the Order in council As, therefore, the noble Earl had done nothing more than call the attention of Her Majesty's Government to the subject, he would, without offering any opinion, or coming to any conclusion himself, simply engage that his right hon. Friend at the head of the Admiralty should give the subject his full consideration, and to had no doubt that ultimately a decision would be arrived at which would give some satisfaction to the noble Earl.
The EARL of HADDINGTONhad long been of opinion that the matter was one which needed consideration; but it was subject of very considerable difficulty indeed, and it was more easy to point out

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defects in the existing system, than to devise a remedy for those defects. He doubted whether under any general orders or regulations whatever, cases of hardship might not occur. He knew an instance in which an officer who had served five years and a certain number of months in a rated ship, was then put upon the retired list. He had previously, at the desire of the Government of the day, continued for a considerable time to serve in a sloop, and, if he had been allowed to count that service in the sloop, he would not have been put upon the retired list. That, he thought, was a case of great hardship.
LORD COLCHESTERhoped the whole subject would receive the careful consideration of the right hon. Baronet at the head of the Admiralty.
EARL TALBOTwas very glad the subject was about to receive the attention of the Government. It was a very important question, deeply affecting the efficiency of the Navy, and he believed the Order in Council alluded to had given rise to great dissatisfaction in the service generally.

TRANSPORTATION BILL.
Order of the Day for the Second Reading read.
The LORD CHANCELLOR: My Lords, I can state with very great sincerity that it is a matter of deep regret on my part that it should be necessary at the present day to introduce a Bill of this description. I am not one of those who are inclined to think lightly of the advantages of transportation as a secondary punishment for crime of a serious kind; on the contrary, the experience I have obtained while presiding in criminal courts has impressed most strongly on my mind the conviction that transportation answers more effectively the ends of secondary punishment than any other that can be devised. It appeared to me to possess all the main ingredients of what was desirable in punishment; it created the maximum of apprehension, and the minimum of endurance; it excited great terror, without, perhaps, eventually inflicting great pain; and I do not know bow we can expect to obtain so desirable a secondary punishment. If this country, therefore—meaning by this country the United Kingdom—were alone concerned, I would deprecate any project that was to remove transportation, in any material degree, from the Statute-book as a punishment for crime. Those who were likely to
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commit crime, and were liable to temptations, were terrified, so far as considerations connected with punishment can operate in the way of terror, by the idea of transportation, and were, to some extent, deterred by it from the commission of crime; and to those who had actually committed crimes, and were subject to punishment, it afforded at the same time the best chances of reformation and amendment. Having thus stated the case against myself, in proposing to your Lordships a material alteration in the law, I must be permitted to observe that the views I have hitherto put forward are those in which the interests only of the United Kingdom are considered; but it must not be forgotten that the Crown is at the head, not only of Great Britain and Ireland, but also of numerous colonies dispersed over the globe, realising the observation much more truly than in the case to which it was first applied, that our Sovereign is at the head of an empire on which the sun never sets; and the question is, whether in order to facilitate our own social happiness—whether for our own social advantage—we shall persevere in a system of getting rid of the criminal population of the United Kingdom at the expense of those colonies to which we have hitherto been in the habit of sending them. On this question considerable discussion took place in your Lordships' House a few weeks since. I do not wish to revive that discussion; it seemed to me to be established to the satisfaction, if not of all, of the great majority of your Lordships, that sooner or later—there might have been some difference as to time—the opinion of the important colonies to which we have been in the habit of sending our convicts having been in an unmistakable manner manifested to us, that they would not, so far as their voice could be heard, consent to receive them—it appeared to be the opinion of all sides of the House that the punishment of transportation must be abolished—at least to the extent that we should not send any convicts to colonies unwilling to receive them. It is perfectly well known at the present moment that the population of that colony which has hitherto been the great depôt for convicts, Van Diemen's Land, have signified most decidedly their extreme reluctance to receive any more; and it was stated on the part of the Government, during the last debate, why it was we acceded to the representations coming from that colony. That being

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so, all that remains is to consider what quantity of convicts we can send to those colonies—or I shall limit it to the singular number, and say, to that colony—that is not reluctant to receive them; for we have come to the conclusion that we must abstain from sending convicts to become part of any colony that, on moral or social grounds, is unwilling to receive them:—the only remaining question is, how we are to continue to send convicts to that part of our dominions that have not the same reluctance to receive convicts as a part of their population. At the present moment there is no colony but Western Australia willing to receive convicts; and the question is, what is the quantity of convicts which that colony can receive? That point being once established, the course we have to take is to ascertain what is the number of convicts we can send to that colony, and which of the classes of convicts that we have been hitherto in the habit of sending to all the colonies, we shall now continue to send to that colony. On that subject it must be assumed that if we are to have transportation as a secondary punishment, and the next in point of severity to capital punishment, all we can do is to take from the bottom of the list of those that you were in the habit of transporting such a number as will leave no more than the colony is able to receive. With a view to ascertain that, the first point to be made is, what is the number of convicts that can, without inconvenience, be sent to Western Australia. It is impossible to ascertain that with absolute accuracy; but from the best information it may be assumed that from 800 to 1,000 is the largest number that colony will be able to receive annually. We must next, therefore, remove from the list of those sentenced to transportation so many as will remove trout that punishment all but 800 or 1,000; and, that being so, the next question is, what class of convicts shall be transported thither, and what is to be done with the remainder, who must be, in the eye of the law, the least culpable? For the purpose of ascertaining how we shall deal with them, I beg to call your Lordships' attention to a return of the number of persons who were sentenced to transportation in England and Wales in the year 1851. In the year 1851 there were sentenced to transportation in England and Wales 2,892, including 56 persons who were capitally convicted, but whose punishment was commuted to transportation.
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Out of that number 1,562 persons were sentenced to seven years' transportation only, and who therefore might be taken as the lowest class of criminals sentenced to this punishment; and, deducting those 1,562 persons from 2,892, there remain 1,330 persons who were sentenced to transportation for terms exceeding seven years, that is to say, who were sentenced to transportation for ten years and upwards; for though, according to law, there are some cases in which a person might be sentenced to transportation for eight or nine years, that practice is never adopted, and it may be assumed that the sentences that were for more than seven years were sentences for ten years and upwards. But Scotland and Ireland produced nearly the same quantity of criminals sentenced to transportation as England and Wales, but not quite so many. If they produced as many as England and Wales, the entire amount of persons sentenced to ten years and upwards would be 2,660, from which, if the same deduction were made as before, there would remain 2,400 or 2,500 to dispose of. Now, how are we to deal with them? Assuming that they can only receive in Western Australia 800 or 900, if we continue the punishment of transportation in those cases only where the sentence is transportation for ten years and upwards, the colony of Western Australia will only receive about one-third of the persons who are sentenced to that extent of punishment. And here, I beg leave to say, that it would, in my opinion, be a most unwholesome state of the criminal law that there should be a large number of persons sentenced in a court of justice to a punishment which every person knows, in two cases out of three, would not be carried into execution. In case, therefore, you can transport only 800 or 900 persons annually, it is obvious you must go one step further, and remove the punishment of transportation from such a number as will bring the number sentenced to transportation within the number that can be received in the colony. The question is, how that object is to be effected. You may take it that there are scarcely any sentences of transportation between ten and fourteen years. I remember that I myself, for some reasons which I cannot now recollect, once sentenced a man to be transported for twelve years; but I believe there are not half a dozen of such sentences in the course of a year, and therefore it may be taken that, practically, they do not exist. By a modern

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Act, the punishment for a particular offence is fixed at fifteen years; but by the old Acts, for some of the more serious offences, such as that of receiving stolen goods, the offender is liable to fourteen years' transportation:—so that you may take the next class as being convicts sentenced to fourteen years and upwards. Looking to the table, and deducting from those sentenced in England and Wales to ten years and upwards, those sentenced to be transported for more than ten, and not less than fourteen years—namely, 895—there were left for England and Wales 426 persons sentenced to be transported for more than fourteen years: and on making the same calculation with respect to Scotland and Ireland, and adding the product to 435, it will appear that the entire number amounts to between 800 and 900 persons. This leaves a little margin when compared with the number which Western Australia can receive; but I do not think that we could extend the number that are to be sent out to the colony below those cases where the term of transportation to which the convict is sentenced is fourteen years and upwards, because the practice generally is to go in a jump from ten to fourteen years. Moreover, this must not be lost sight of, that a great number of the persons who are sentenced to ten years' transportation are liable to be transported for fourteen years, Dr perhaps for life; but it being discretionary with the Judges whether they should transport them for ten or fifteen years, there often occurred cases in which though the Judge thought the criminal should be transported, he should be transported for the shortest period of time the law would allow. I cannot but look forward to the extreme probability that the Judges will no longer allow themselves this discretion in passing sentence, and that some persons who are now transported for ten years will, in the altered state of the law, be transported for fourteen years. I think it necessary, therefore, to have a considerable margin, and that being so, that we should not leave subject to transportation any person who is not now liable to transportation for fourteen years and upwards. That will include the more grievous offences, such as eases of receiving stolen goods, violent outrages, assaults causing grievous bodily harm, housebreaking, burglary, and will also include an offence that I was inclined to exclude—namely, cattle stealing; but inasmuch as this measure must, to a cer-
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tain extent, be experimental. I think it better simply to draw the line at the point it which the number enables us to deal with the cases included in it; and that which I propose will certainly include all the more grievous crimes. The usage has men that a great portion of the persons sentenced to transportation have not been, n fact, transported. The circumstances of age, health, and a variety of other maters, render it expedient that the Crown should occasionally interpose its prerogative in commuting sentences, and that has been done under circumstances which it has been said were not originally founded in right; but subsequently by an Act of the Legislature it was provided that persons sentenced to transportation might, instead of being transported, be imprisoned for a certain time, and be subject to a variety of regulations that still remain in Force; they may be made to work on the public works, and then after a certain period they may be transported. A person who is now sentenced to transportation for fifteen years, may be kept on the public works for the fifteen years if the Executive think fit, though in practice that has never been done. Carrying out this practice, and sanctioning by legislative enactment what has been practically done, I have thought, in conjunction with my Colleagues, that a reasonable course would be to impose on persons who might now he transported, a sentence as nearly as possible conformable to what would have been done by the Secretary of State in cases where the sentence of transportation has been pronounced, but has not been carried into effect. The ordinary course has been this—that where a party has been sentenced to transportation for seven years, he has been ordered to be imprisoned for two years, being kept during a part of the time in separate confinement according to certain reformatory principles; then he has been sent for a year, a year and a half, or two years, to public works, at the hulks, or to Dartmoor, Portland, Pembroke, or other places; and then he has been transported for three or four years with a ticket of leave. This last part of the sentence we cannot unfortunately execute any longer; but what we may endeavour to do is, to adopt as nearly as possible what has actually been done in the case of those prisoners who though sentenced to transportation were not transported. We propose that in those cases where a convict is now sentenced to be transported for

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seven years, he shall be kept in "penal servitude" for a term of four years. Of course the Crown will be able to remit a portion of the time on account of good behaviour or other circumstances. We propose that in those cases where a party is now sentenced to transportation for ten years, he shall be kept in penal servitude For six years; that where the sentence would be fifteen years' transportation, the period of penal servitude shall be eight years; and that where the sentence of transportation would be above fifteen years, the period of penal servitude shall be ten years. In proposing to effect this great change, it may seem that the statement I make is very short, but the truth is that the question lies in a very narrow compass. I have received communications urging me to do nothing, and suggesting that there are still statutes enabling the Crown to do all that I propose to do—that these statutes enable the Crown not to transport persons liable to transportation, but to deal with them as I now propose to do by this statute. I have considered that, and admit that there is a good deal in it, because it would enable the Crown to make a selection of those convicts who are to be sent to the colonies, which would be a considerable advantage; but weighing the advantages and disadvantages together, the course which we propose to adopt appears to me by far the best. It is very inexpedient that, at the assizes throughout the United Kingdom, sentences should be passed whereby 5,000 persons might be ordered for transportation, while it was well known that not 1,000 of them could ever really be transported. That would be a great inconvenience, and outweigh any advantage which we could derive from the adoption of the suggestion to which I have referred. I think it infinitely more becoming that in such a vital matter as the penal enactments of the country, nothing like mystery shall prevail—that the general normal state of those who are sentenced to transportation shall be that they will be transported—and that those who are not to be transported shall exactly know the nature of their punishment. The noble and learned Lord concluded by moving the Second Reading of the Bill.
EARL GREYconcurred with his noble and learned Friend in thinking that transportation was one of the most effectual secondary punishments, whether for the prevention of crime, or for the punishment of crime. Still, as the measures
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already adopted by the Government, and practically approved by Parliament, had rendered it necessary that the use of that punishment should to a great extent be discontinued, as he did not wish to renew the discussion on the course which had been pursued, he would not oppose the second reading of the Bill. He concurred with his noble and learned Friend in thinking that a great scandal was inflicted on the administration of justice by allowing the sentence of transportation to be pronounced upon a large proportion of criminals, regarding whom that sentence was never intended to be carried into effect. The punishment actually inflicted on criminals should be as nearly as possible in conformity with the sentence passed. But while, for this reason, he concurred in the second reading of the Bill, he could not help expressing his disappointment at not having heard from his noble and learned Friend a statement of the manner in which the Government proposed to deal with this most difficult subject. He certainly had anticipated that his noble and learned Friend would give some explanation of the mode by which it was intended to carry into effect their plan of secondary punishment, in lieu of that of transportation. He should like to have known to what extent the prisons at Portland and at Dartmoor were to be affected, and whether the Government had satisfied themselves as to the practicability of the change, and had provided the necessary measures for such change, so that no danger should intervene between the operation of one system and the other. He had hoped to hear what measures were actually in progress in order to provide for those convicts who were now at Portland and Dartmoor. Above all, he did anticipate that his noble and learned Friend would have satisfied their Lordship; an one point, concerning which considerable anxiety was expressed when this subject was last under discussion—he meant as to what was to be done with those convicts who, under the existing state of the law and the practice which till lately had been followed, had been led to expect that if they behaved well they would be relieved From the severe discipline of the establishments at Portland, Dartmoor, and Bermuda, by obtaining tickets of leave in the penal colonies after completing a comparatively short portion of their original sentences In the course of a conversation on that subject in the early part of the present Session he (Earl Grey) asked what was to be done

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with those prisoners, and he at the same time stated that there would not be less than 3,000 or 4,000 to be disposed of in the course of the current year. The noble Duke at the head of the Colonial Department contradicted that statement, and said that he (Earl Grey) was entirely in error, and that the number of prisoners would not be much more than half he (Earl Grey) had stated. He at that time bowed to the noble Duke's superior information. But he afterwards moved for a return showing the number of convicts in the different prisons of this country entitled to enjoy the regulations which were in force when they were sent to those prisons, and showing also the number that had been removed in each of the last five or six years to the Australian colonies under the former system. The return showed that he (Earl Grey) had not been far wrong in his calculations; indeed he found from that return that his calculation that 3,000 or 4,000 convicts would have to be disposed of in the present year, was rather below than above the truth. It appeared that the total number removed to the Australian colonies in the last year was 3,735, the number removed the year before being 3,182. He was not aware of anything likely to occur to reduce the number persons of this description in the forth coming year; on the contrary, from a time at which the system now superseded was introduced, he should infer that the number had not yet reached its maximum. If there was that large number to be disposed of, he was anxious to know what was to be done with them. He was particularly anxious on this point, because he found from that return that at the present moment there were considerably above 1,234 convicts at Portland Dartmoor, Bermuda, Gibraltar, and Malta, who were entitled, under the regulations which were in force when they were sent to those establishments, to expect to be relieved before this time from the extreme severity of the punishment to which they were there subjected. Those who knew what that severity of punishment was—the continuance of labour, the strict discipline, the monotonous life—and recollected that it was the hope of being relieved from it which had in past years been the stimulus to good conduct on the part of the convicts would agree with him that it was extremely proper that their Lordships should know what was to be done with those persons. He was the more anxious to know this,
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because when he called for the return, he at the same time asked for the number of convicts who were removable, but who, it was natural to suppose, would not be sent abroad as heretofore; and he also asked what were the regulations which would be made with respect to them. The system of transportation was practically discontinued in the month of January last; therefore three months had elapsed at the time his Motion was made, and when he expressed his anxiety to know how these convicts were to be dealt with. [The noble Earl here referred to the return made to his Motion for the papers, which stated that Colonel Jebb having written on the 10th February to the Home Secretary to be informed whether the printed notice hung up in the prisons, holding out expectations of being relieved from the prison discipline, at the expiration of certain periods, should be withdrawn on the 29th of April, Lord Palmerston, in a communication, stated that many important considerations were involved in this question; and as Government had not then had an opportunity of deciding whether or not they would submit a Bill to Parliament for altering the present law of transportation, his Lordship could not at present come to any conclusion on the subject.] Now, as Lord Palmerston could not then come to any conclusion on the subject, he (Ear Grey) could not help thinking that it was quite natural to ask, when such a Bill as this was introduced, what was to be done with these convicts? He hoped some explanation would be given upon this point before the debate closed. Those were the main points on which he thought further explanation might have been expected from his noble and learned Friend on moving the second reading of this Bill. He would now proceed to make a few remarks upon some of the clauses of the Bill. He had already stated his general concurrence it substituting penal servitude instead of transportation; but he would point out what he thought a great defect in the system proposed by the Bill. Under the law as it now stood, a convict sentenced to transportation might be, at the pleasure of the Crown, kept under penal servitude during the whole time of his sentence. Practically, however, that was a system that was never acted upon. It had always been the practice that the convict should be released, either in this country or in the colony, at a period considerably earlier than the term of the sentence. The usual practice was,

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that if a convict were sentenced for seven years, and he behaved well, he would be discharged at the end of four years, the Crown, however, having the power to detain him till the end of the seven years. It was necessary that the Crown should possess that power, because he believed that the whole improvement which had taken place of late years in the system of punishment was founded upon that right of the Crown. The principle adopted by the noble Earl opposite (the Earl of Derby) in 1842, and the principle adopted by the Government of which he had himself (Earl Grey) been a Member in 1847 and 1848 was, to make the release of convicts from the more severe part of their sentence depend upon their good conduct and industry Upon a daily record of the conduct of the convict, depended his final release. It was to the stimulus thus applied, and to a knowledge on the part of the convict that he was earning his freedom by his good conduct, that their Lordships were mainly indebted to the striking and happy contrast between the conduct that prevailed in our modern prisons, and that which formerly existed in the hulks. But, by shortening the period during which the convicts were to be at the disposal of the Crown, they would greatly diminish the efficiency of the power of the existing system. By the Bill of his noble and learned Friend, it was proposed that the convicts, instead of being sentenced to transportation, should be sentenced for a considerably shorter period to penal servitude; that a man who, under the present law, would be sentenced to seven years' transportation, should be here after sentenced to four years' penal servitude. That man, let him behave as ill as he pleased, at the end of the four years was to be discharged. The motive to good conduct was thus materially diminished What was the present practice? The man, practically, was enlarged at the end of four years; but it was known from the moment he was sentenced that he might be kept for the full period—namely, seven years; and he might be either confined banished, and his only hope of abridging that period was in his behaving well. It appeared to him (Earl Grey) that when the Legislature took away the punishment of transportation, it ought, in order to make up for that remission, rather to increase than diminish the period of penal servitude—at all events with respect convicts sentenced for short terms; for with respect to convicts sentenced to transpor-
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tation for life, he thought it was different. But the Bill was framed upon the very opposite principle, for while it still further abridged the term of punishment for minor offences, it provided that instead of convicts being transported for life, they might be sentenced to penal servitude for life. With respect to this provision he entertained great doubts. He did not think they could keep a man in penal servitude for life. He could understand a man being transported for life, but he did not believe, practically, that the country would endure seeing a man sentenced to penal servitude for life without any hope of mitigation. This appeared to be a deficiency in the Bill. There was also another defect. Under the present system of transportation it had been found of the greatest advantage that convicts should not be discharged at once from a state of punishment to a state of unrestricted liberty. The system, therefore, was to place them under a modified state of freedom by means of what were called "tickets of leave." For bad conduct those tickets of leave could be at once withdrawn. That system had been found to work well, and to have a very beneficial effect. Men with sudden and unrestricted freedom were much more likely to relapse into crime than men who enjoyed a restricted degree of freedom by means of tickets of leave. He thought, then, that when we were doing away with the system of transportation, it might not have been impossible to establish something of the same kind in this country. He was quite aware that in a country so thickly inhabited as England was, it would be utterly impossible to enforce precisely the same regulations which were now adopted in the colonies as regarded tickets of leave: but he did not think it at all impossible to devise means by which persons might be discharged from prison under condition which would enable the Crown to remand them into custody if those conditions were broken. They might be required to live in some extreme part of the country, and to give an account to the police of the means by which they got their livelihood. An arrangement of that kind would be the means of holding such persons to good bail, and during the present great demand for labour in the country he did not think ii would be impracticable to obviate some the difficulties connected with the change from a system of transportation to one of imprisonment. He would the more earnest press this upon the Government, because,

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if he bad not been misinformed, something of this kind, which he (Earl Grey) himself had suggested, had been done in some o our colonies. When he held the office o Secretary of State for the Colonial Department, difficulties arose as to the punishment of offenders in various colonies owing to its having been found necessary to prohibit the practice which formerly prevailed of sending convicts sentenced to transportation from the other colonies t the penal ones. Among the measure which he recommended to meet this difficulty, one was that laws should be passed authorising the discharge of convicts with tickets of leave in the colonies where they had committed offences. He understood that in Barbadoes this suggestion had been acted upon, and that under a lax passed by the Legislature of that island convicts were now discharged there with tickets of leave. The system, he was told had answered extremely well. He saw no reason why such a system should not be tried in this country also; and though he knew the difficulties to be encountered would be greater, he did not think it impossible that it might answer. As it was possible that it would not be in his power to be present when their Lordships went into Committee, there was one point more to which he would call their Lordships' attention, and that was the 12th clause of the Bill. He could not find any noble Lord who understood that clause. That clause, enacted that "transportation should in elude banishment beyond the seas." He did not see how it could admit of doubt that transportation must usually include banishment beyond the seas; but it seemed to him it might be dangerous to enact the in the manner proposed, since the word might possibly be construed as depriving the Crown of the power it had hitherto exercised of detaining persons sentenced to transportation in the hulks or convict prisons at home, in eases when, owing to the, health of the individuals or from other reasons, their actual removal from the country was considered to be inexpedient.
The LORD CHANCELLORwas un derstood to say that the words "banished beyond the seas" were used to adapt the Act to the law of Scotland, where those words were well understood.
LORD BROUGHAMentirely agreed with both his noble Friends who had last addressed the House, and with his noble and learned Friend on the woolsack, in thinking that, from circumstances over which
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we had no control it was now impossible to carry out transportation as a punishment to any great degree. With all the objections to which that punishment was liable, he thought it could not be denied that it had some advantages which were possessed by no other secondary punishment. In the first place, it was easily apportioned as a secondary punishment; in the second place, it had a decidedly reformatory effect; in the third place, it had terrors which he feared any other secondary punishment would fail to inspire; and, lastly, it had the effect of taking away from the community those offenders whose being turned loose amongst us after undergoing a sentence of imprisonment, he (Lord Brougham) regarded with considerable alarm. However, though fully alive to its value, he confessed he saw the impossibility of continuing the system of transportation which had hitherto been resorted to. There was a calculation made in a very useful and valuable work lately published by Ids noble Friend (Earl Grey), entitled the History of the Colonial Policy of Lord Johns Russell's Administration; that calculation he had repeatedly consulted, in reading the work, and it had led him with greater regret than ever to the conclusion that it was quite impossible longer to have recourse, to any extent, to the system of transportation. It appeared from that calculation, the materials from which his noble Friend (Earl Grey) had drawn from his own extended information on colonial matters, and from documents in the possession of Parliament and of the country, that no less a number than 48,000 persons were now in existence in the different penal colonies who had originally been sent out under sentences of transportation. That was a startling statement, and certainly fully established the necessity of putting a stop to the present system of transportation. The question then arose as to what should be substituted for it. He owned that it was a difficult question; but there was an old saying applicable here—it was, "When you cannot have what you would, you ought to endeavour to like what you have." That ought to lead us to cherish, with the view to improve, the system of secondary punishment which we still had. On this point he would say he thought there was much good sense in the statement of the noble Earl (Earl Grey) as to how much might be done for improving the system of secondary punishments by penal servitude in this country, coupled with something like the ticket-of-leave system. Without some

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modification of this kind, he feared that many very serious, if not fatal objections, would be taken to the present measure. There existed, at this moment, in the administration of criminal justice, a great and scandalous anomaly, which it was absolutely necessary to put an end to. He alluded to the general practice which prevailed of sentencing an offender to a description of an amount of punishment which it was known at the time would not be inflicted, The practice prevailed to such an extent that the chances were as ten to one in favour of the punishment inflicted being different from that pronounced in the sentence. When persons were sentenced to transportation for seven years, it was well known that it meant imprisonment for that period, and that if the prisoner behaved well he would be allowed to escape a year or two of the punishment. Nothing could be more anomalous or more calculated to bring the criminal jurisprudence of the country inn contempt. It ought at once to be abandoned, and in every case the punishment made to correspond exactly with the sentence pronounced by the Judge. But what was to be done by the present Bill? Why, in the case he had mentioned, namely that of seven years' transportation, the punishment was to be reduced to four years penal servitude. In his opinion it would be much better to continue the period a seven years, and call it seven years' penal servitude, it being distinctly understood at the same time that the duration of that penal servitude was to depend on the behaviour of the convict undergoing the sentence. He could see no difficulty whatever in giving to time Crown the power of remitting one, two, or even three years of the period, according to the behaviour of the convict. The secondary system had of late years received very considerable improvements, and there was every reason to believe that those improvements would be very much extended—so much so, indeed as to lessen, if not entirely to remove, the regrets of all reasonable men in the abolition of the punishment of transportation. From all the observations he had been able to make during the course of his legal experience as to the effect of our penal enactmeets—from all the information he hat been able to obtain from the Judges and from the Executive Administration—new as Compelled to draw the melancholy conclusion that the effect of punishment in deterring by example from the commission of crime was far less important, far less effective,
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than was generally hoped and believed. In his opinion, prevention was that to which wise lawgivers ought mainly to direct their attention; and if he stated that the first preventive of crime was education—moral and religious instruction—imparted to the people, he felt he was only utterance to what now-a-days must, be regarded as an unfruitful truism. But he would go a step Further, and would assert that there was me species of education which went more directly than all the rest to produce the best preventive to crime. He alluded to infant education—infant training. It was an acknowledged fact, patent to all whose duty or inclination brought them into contact with the lower classes of the people, that there was one peculiar section among them from which the greater proportion of the criminals brought to justice were supplied. A better, more complete, and more radical preventive of crime could not be imagined than the institution of infant schools for that portion of the community. Indeed, if that were done, they would have accomplished all that was in the power of human agency to lessen the supply of criminals. But there was another means of prevention to which it was necessary that attention should be directed; be meant the police system. He could not conceive that any pains of a wise and good Government could be better bestowed, or that any sums of money could be grudged, even by an economical Government, for improving and greatly extending our police establishments. He would not say that the object of time police was to detect for the purpose of inflicting punishment, but it was the existence of a good and efficient police which really and effectually deterred persons from the commission of offences. An efficient police sowed distrust and fear among the criminal classes of the community. A secret police, consisting of intelligent, active men, so dressed as not to put intending criminals on their guard, having the whole body of offenders continually under their eyes, and well acquainted with all their persons and habits, would always prove the best possible preventive. Such a force would completely destroy all confidence and trust among criminals, and prevent the adoption and execution of any criminal plan calling for the exertions of more than one person. It might be said that there would be two objections to the establishment of a perfect secret criminal police such as he meant. The first would, no doubt, be the point of expense. In his opinion that would be cheerfully

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borne by the community. The other objection he supposed would be, that it would sow distrust among members of the community. His answer to that was, that it would only create distrust among the wicked towards their own accomplices, or even distrust which wicked men would feel of themselves in the perpetration of crime. He had deemed it his duty on this occasion, as on all others, to address a few remarks to their Lordships on a question which all would consider of the very greatest importance. He would venture to remind their Lordships that in France the system of taking and reforming juvenile criminals before they had become hardened in crime, had been in efficient operation; and that in this country—in Warwickshire—a similar institution existed, in which juvenile delinquents were subjected to a system of penal labour, advantageous and productive to the establishment, and beneficial to themselves. He would urge upon the Government the necessity of extending their proposed alterations in criminal punishments in this direction, and of aiding as much as possible the establishment and continuance of such institutions.
The DUKE of NEWCASTLEapprehended that the measure would better be discussed in detail when the House went into Committee, and he would not therefore detain their Lordships long on that occasion. This might be the last occasion they would have of singing the requiem of transportation in in its present form and to its present extent, and he begged therefore to express his concurrence in the regrets expressed by the noble and learned Lord, and by the noble Earl (Earl Grey), at the absolute necessity of reducing that punishment to the minimum quantity. He quite agreed with them as to the advantages that system of punishment hade onferred on the country, by the removal of persons who had coin-witted crimes to distant lands. It was unnecessary to pursue that question further, inasmuch as there appeared to be a thoroughly unanimous opinion that the time had conic when it was necessary from imperial considerations to reduce that punishment to the small amount to which his noble and learned Friend on the woolsack had referred. He would not weary their Lordships by discussing the question of reforms in criminal jurisprudence; he would but express the hope that out of evil good might yet come—that from the importance of the subject, and the necessity of dealing
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with it, the attention, not merely of Government and of the Legislature, but of the whole of the inhabitants of the empire would be turned more than at any former period, not only to the improvement of the penal system, but also to the still more important subject of an improved education for the younger portion of the community. He certainly did not underrate the importance or the value of the steps taken in the last few years both by the Administration of which the noble Earl (Earl Grey) was a Member, and by Colonel Jebb and others acting under the direction of successive Governments, with the view of improving our penal system; but he was, at the same time, fully convinced that much more would have been done, that still greater attention would have been paid to the subject, had the public mind been more generally convinced that we could not for ever pursue the system of transportation, and continue to transfer to other countries the crime engendered in this. He did not anticipate that the present Bill would be the last effort which would be made in this direction. The attention of the Legislature and of the Government must henceforth be sedulously directed to the subject; the progress of legislation would be watched. The effect of the Bill, then, before them would be closely scrutinised after it had passed into a law; and experience would teach them what would be the best further remedies to be applied. He might remind their Lordships that only a few evenings ago his noble Friend, Lord Shaftesbury, to whom the country had been indebted for so many valuable acts of legislation, introduced a measure which he believed he was not too sanguine in anticipating would materially reduce the nurseries of crime in great towns. When they found legislation of this kind in progress, he thought it might be folly anticipated that, though the cessation of transportation at the present moment might be looked upon as an evil so far as this country was concerned, that evil would to a great extent, and very speedily, be obviated by these remedial measures. He felt that no apology was due by his noble Friend who first spoke in this debate (Earl Grey) for introducing observations which he himself admitted might be more properly made when the House were in Committee on the Bill; and he said this not only because the noble Earl would be unable to attend on that occasion, but because he felt that on a measure such as

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this, on which no party feeling could possibly arise, it was of the highest advantage that suggestions should be made which might lead to improvements being introduced by the Government, but which possibly might not be so maturely considered if left at a later stage of the measure. He thought the suggestions made both by the noble Earl and the noble and learned Lord related to two points. They had remarked that they saw no reason why the period of transportation to which criminals had been sentenced, should be reduced to the period of penal servitude which would be established by this Bill. He admitted that this was a matter for grave consideration, and with regard to which some Amendment might possibly be made in Committee. He (the Duke of Newcastle) apprehended, however, that the reasons for the alteration proposed by the Bill were twofold. In the first place, persons who had watched punishments of tie nature of the penal servitude proposed by this measure, were of opinion that penal servitude for so long a period as that for which sentence of transportation had been passed, would be too onerous and severe for the endurance of criminals; because such servitude would, in fact, be a much heavier punishment than that for which it was substituted. As their Lordships were aware, sentence of seven years' transportation had not hitherto been carried into effect. Upon inquiry being made as to the periods of imprisonment which had been substituted, at the discretion of the Home Secretary for a long time past, for sentences of seven years' transportation, it was found that, practically, such, imprisonments had not been so great as those intended to be imposed by the present Bill. Under this measure four years penal servitude would be substituted for seven years' transportation; but the average period of imprisonment to which criminals sentenced to seven years' transportation had been subjected, was found not to have exceeded three years, while the minimum had been two years. This Bill would, therefore, establish a heavier punishment than that which had hitherto been practically inflicted. He admitted, however, that it was a matter well worthy of consideration, whether they should not impose a longer period of penal servitude, giving a recognised discretion to the Executive Government with regard to the duration of the punishment; for he readily agreed with his noble Friends that one of
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the greatest incentives to good conduct on the part of criminals, and one of the best means of carrying out the present system with advantage, was to hold out to criminals the hope that the period of their punishment might, within certain limits, be made to depend on their own behaviour. Another suggestion which had been made by the noble Earl, and in which the noble and learned Lord appeared cordially to concur, was, whether the system of tickets of leave, which had worked so well in the colonies, might not, in a modified form, be adopted in this country. The attention of Her Majesty's Government had already been turned to this point, and his noble and learned Friend on the woolsack would be prepared, before the Bill went into Committee, to submit a proposal to the House on this subject. The difficulty which had been felt was, whether, if a ticket of leave was given to a criminal in this country, he should be allowed—of course, under surveillance—to live in any part of the country he might himself select, or whether his location should be fixed in some particular county or district. That question was now under the consideration of his noble and learned Friend (the Lord Chancellor), and, as he had said, before the Bill went into Committee some proposal would be submitted to the House. He (the Duke of Newcastle) readily admitted that there were peculiar facilities for introducing such a system at the present moment, when extensive works were in progress of a defensive character, for establishing harbours of refuge, and for other important public purposes, which would enable them with great advantage to introduce the punishment provided by this Bill, and also the system of tickets of leave. He need not enter more fully into that subject on the present occasion; but two questions had been asked by the noble Earl (Earl Grey) which he was anxious to answer. The noble Earl asked what was proposed to be done with criminals who had already been sentenced to transportation, but to whom a promise had been held out that after a specified period of imprisonment they would be sent out of the country? He thought his noble Friend at the head of the Government had given a full explanation upon this subject on a previous occasion. It was true that there were in the prisons of this country a certain number of criminals who, if it had not been necessary to discontinue transportation to Van Diemen's Land, would before now have been on the high seas on their

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voyage to that colony; and it was intended that, if the Bill should pass in the form in which it now was, those persons should only undergo such further imprisonment as would complete the period intended by this Bill to be imposed upon future criminals of the same class. This provision would only apply to culprits to whom those promises had been made; as, of course, such promises and engagements had been discontinued so soon as it was ascertained that the punishment of transportation would cease, so that they would only have to deal in this manner with criminals who were in prison at the moment when the cessation of transportation was decided upon. The noble Earl had expressed regret that the noble and learned Lord on the woolsack had not, in his opening statement, explained the provisions and arrangements contemplated by the Government with the view of providing for the infliction of the new punishment now proposed to be introduced. He understood the noble Earl to refer particularly to the amount of prison accommodation existing in the country at the present moment—for, of course, under this measure the number of criminals retained in the country would be very materially increased. He (the Duke of Newcastle) had stated on a former occasion the exact number of cells which were vacant in the various prisons, and the arrangements that had been made for the accommodation of prisoners, which would be amply sufficient, at any rate, up to the close of the present year. He believed he might assure the House that there was at the present time ample accommodation in the prisons for any number of prisoners at all likely to accumulate before the period when, in the ordinary course, it would be necessary to submit estimates to the House of Commons for any additional works that might be required. He had not concealed the fact that, with respect both to the amount and character of prison accommodation a considerable expenditure would be requisite; but he believed he might assure the House, on the part of the Government, that it would not be necessary to incur any expenditure for this purpose until Parliament should meet in the next Session. But though it would be necessary to apply to Parliament next Session, the Government now made no other appeal than to ask their Lordships to sanction this alteration in the law on the punishment of transportation. It was unnecessary for him to trespass further on their
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Lordships' time, except to reiterate his confident expectation, and his most carries hope that public attention would be turned on the present Government, as well as on all future Governments, as regarded this important question; and that if they slackened in their attention to the amendment of their criminal code, and of their penal system, the public would keep on them and their successors a jealous watch, and take care that these important matters be, more duly and more satisfactorily attendee to than they heretofore had been.
LORD CAMPBELLcordially supporter he second reading of the Bill, the principal of which, in his view, was to make law and practice correspond. There had been, for years past, a great discrepancy between them, which had rendered the administration of justice in many cases most painful duty. He had himself felt when he had pronounced sentence of transportation, that it was a mere mockery, be cause he well knew that the sentence pronounced and tried to make terrible cool, not to be carried out. He was glad that he would only for a short time longer—though he might have to do so on his next circuit—be under the necessity of pronouncing fictitious sentences, and that in the spring of 1854, when sentence of penal servitude was passed, the punishment would be inflicted. When he said that h approved of this Bill, it must, however, be under the well-understood protest that it was not to be the requiem of transportation. [The Duke of NEWCASTLE: On it present scale.] Well, perhaps under the present circumstances of the world, transportation on its present scale could not be continued; but he concurred with hi noble and learned Friend on the woolsack in regarding transportation as the best secondary punishment that was ever adopted; and when he assented to this Bill, it must be understood that it was without prejudice to Government using their utmost efforts still to continue that punishment. At the present moment the only colony to which we could send convicts was Western Australia; but he did not despair of the establishment of new penal settlements which might lead to most beneficial results. He had been informed by persons well acquainted with the subject the there were other parts of the great continent of Australia where penal colonic might be beneficially founded, and he did not yet despair of this being done in the Falkland Islands. He considered that the

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Bill was susceptible of considerable amendments in Committee; but after those amendments had been made, he believed that it would effect a very material improvement in the penal law of this country.
The MARQUESS of CLANRICARDEhoped that some further explanation would be given—though it might be done on the next stage of the Bill—with regard to the treatment of those convicts to whom promises were stated to have been held out. If he understood correctly what, had fallen from the noble Duke, in the course of the present year from 800 to 1,200 convicts would be let loose in this country, who, if the old system of transportation had continued, were intended to be sent beyond seas. Now, he thought this was a matter for very grave and serious consideration. Such a proceeding would be one of an entirely novel description, and with regard to which full information ought to be given to Parliament. He must say that he viewed with alarm the proposal to abandon, or so materially to diminish, the punishment o transportation; but he would not oppose the Bill in its present stage.
On Question. agreed to; Bill read 2a accordingly, and Committed to a Committee of the whole House on Monday next.
House adjourned till To-morrow.