§ EARL GREY
said, that in submitting the Motion of which he had given notice, 2 he wished at the outset to assure their Lordships that he was, not actuated by any spirit of hostility to. Her Majesty's Government. The difficult and important subject of secondary punishments never had been, and he trusted never would be, considered as having any connexion whatever with party politics. It was a subject upon which he had long felt a deep interest, and the consideration of which had occupied a large share of his attention, both in and out of office, for upwards of twenty years. He hoped, therefore, he might be at liberty, without reserve, to state the opinions which, in that long period, he had been led to form, and that there was no inconsistency in entertaining a sincere and earnest desire to afford to Her Majesty's Government a general and independent support, and in stating the reasons which induced him to believe that on this subject they had fallen into an error calculated to lead to very serious public evils. He should, perhaps, however, not have troubled their Lordships with this Motion, had it not been for a conversation which lately took place, in which the noble 3 Duke the Secretary of State for the Colonial Department intimated that it was not the intention of the Government, as he confessed he fully expected it must have been, to bring in a Bill on the subject themselves; and while he intimated they had no such intention, he at the same time expressed an opinion, in which he (Earl Grey) entirely concurred, that a regular discussion on this most momentous question was highly desirable; and, as it appeared to him that no other noble Lord was likely to bring the subject under their notice, he had himself undertaken the task, however unequal he might be to it, and he should now submit a Motion which would enable their Lordships to pronounce a judgment on one particular part of the question, which urgently required their immediate consideration. It was not the object of the Motion he was about to make to call upon them to express an opinion in favour of that system of secondary punishment which was adopted by the Government with which he was connected; it was not even his object to say that transportation should be continued at all; but it was his object to ask them to address Her Majesty for the purpose of praying Her Majesty to be graciously pleased to issue Her commands, that a vital change in our system of criminal jurisprudence, and our penal policy as established for two centuries—that that vital change should not be made until their Lordships and the other House of Parliament should have been made acquainted with the measures proposed to be adopted, and should have had an opportunity of pronouncing an opinion upon them. That, and that only, was what he proposed to ask their Lordships; and he trusted that in the course of his observations he should be able to show ample grounds for this Motion in circumstances which had taken place in the last few months.
He need scarcely remind their Lordships that in the Speech from the Throne by which the present Parliament was opened, Her Majesty was advised by the noble Earl opposite and his friends, who were then in office, to call attention to the subject of secondary punishments. Her Majesty informed them "that the system of secondary punishments had usefully occupied the labours of successive Parliaments, and that She should rejoice if it were found possible to devise means by which, without giving encouragement to crime, transportation to Van Diemen's Land might at no distant pe- 4 riod be altogether discontinued." Such was the recommendation addressed to Parliaon the opening of the present Session. In strict conformity with that Speech, the late Secretary of State for the Colonies, on the 14th of December last, addressed a despatch to the Lieutenant Governor of Van Diemen's Land, in which he informed the Lieutenant Governor that it was the intention of Her Majesty's then Government to discontinue transportation to Van Diemen's Land; but he proceeded to add, that it was not in his power to fix any date for that discontinuance; that before it took place it would be necessary that certain alterations should be made in the law, and that Parliament should consider what arrangement should be substituted for that to which it was proposed to put an end. Very shortly after that despatch was written, a change of Government took place; and when Parliament reassembled after the recess which followed that event, it was very speedily announced in both Houses of Parliament that Her Majesty's present Ministers did not concur with their predecessors as to the course which ought to be adopted, but had come to the determination that transportation to Van Diemen's Land should forthwith be discontinued—that not even another ship should be despatched to that colony—and that even to Western Australia very few convicts should be sent. He had not the advantage of being present when that announcement was made; but it appeared to him, as it appeared to his noble Friend who sat on the bench before him, an announcement of a very alarming character, and he anticipated very considerable difficulty as likely to arise from it. When he came to London, he confessed he did expect Her Majesty's Government would have brought forward themselves some measure on the subject; but having waited a considerable time, and having heard nothing of such a measure, about ten days or a fortnight ago he asked the noble Earl at the head of Her Majesty's Government a question, with the view of ascertaining what the intentions of the Government were. In reply to that question he was informed that precisely the difficulty he had anticipated had arisen—that there were upwards of 1,000 convicts already in the penal establishments who under the former arrangement ought to have been removed to the colony, but who were still kept in custody in those establishments: and it was further stated that it was still under the consideration of Her Majesty's 5 Government, what was to be done with these convicts. It did appear to him that answer proved that a very considerable mistake had been made. Her Majesty's Government, in deciding that transportation; should forthwith be discontinued to Van Diemen's Land, and greatly diminished' to Western Australia, seemed to have overlooked this fact—that they could not make a pause in the constant stream of convictions; that convictions were taking place session after session, and assizes after assizes; and. that those convicted at former assizes and sessions in, bygone years were, month after month, becoming entitled, under the regulations in force when their punishment commenced, to expect a release from the strict discipline to which they were subjected. It seemed to, him a natural observation, that before the Government discontinued one mode of disposing of these people, they ought to have settled what to do with them; and it was not a little remarkable that, not less, than three months after Parliament had been told that transportation to Van Diemen's Land was to be discontinued, the head of the Government, on being asked what was to be done with the people who were thus thrown on their hands, could only answer that the mode of disposing of them was still under consideration. That difficulty, he was afraid, was likely to increase. On a former evening, in the conversation to which he had already referred, he had expressed his fear that, before the expiration of the year, convicts entitled to expect their liberty, of whom the disposal would in like manner be embarrassing to Her Majesty's Government, would amount, as far as he could judge, to between three and four thousand. The noble Duke the Secretary of State for the Colonies corrected him, and said he had made a mistake, and the number would be much nearer half that which he had stated, and they were given to understand it would not exceed 2,000. The noble Duke possessed the official information which he had not, and he had no doubt his correction was right. At the same time, although he spoke merely from conjecture, formed at the moment, he did not do so altogether without grounds. The noble Earl at the head of the Government had told them that in little more than three months rather more than 1,000 bad accumulated, who ought to be removed. He naturally concluded they would come forward in equal numbers in equal time, and that in the 6 course of a year it might be assumed there would be somewhere about from 3,000 to 4,000. He thought, also, he remembered in the Miscellaneous Estimates submitted in the last Session of Parliament, provision was made for the expense of removing a good deal above 3,000 convicts to Australia. On turning to those Estimates he found: he was right, and that provision wag made for the expense of removing to Australia 3,900 convicts, and to Bermuda and Gibraltar 800 more—those going to Bermuda and Gibraltar, in the ordinary course of things proceeding to Australia. Therefore, although no doubt, the noble Duke could not make a mistake, and the number in a year would be somewhere about 2,000, he hoped he had satisfied their Lordships he had not made a statement altogether at random and without reasonable grounds. Assuming, however, that the estimate of the noble Duke was correct, as no doubt it was, and that the whole number of convicts to be removed in the course of the present year would only be 2,000, still under the operation of measures taken by Her Majesty's Government in arresting at once transportation to Van Diemen's Land and reducing very much transportation to Western Australia, it was obvious only a very small percentage of these convicts could possibly be removed from this country. They must therefore, under some circumstances or other, be discharged at home. He took it that was the undeniable and necessary consequence of the statement which had been made. Now, to determine that transportation should no longer imply ultimate removal from this country, yet to continue in the courts of law solemnly to sentence convicts to be transported beyond the seas for seven or fifteen years, or for the term of their natural lives—to allow those sentences to be considered as utterly unmeaning, and that transportation should not in future imply deportation at all—was matter for grave consideration. To come to that decision, upsetting the policy which for two centuries had been acted upon by the Government and Parliament of this country—to take that step without the authority, or the sanction, or the concurrence in any way of Parliament—was, he was bound to say, in his opinion, to go beyond the legitimate powers and duties of those who held for the time being the executive powers of the country. He did not at all attempt to deny that, under the literal. construction of Acts of Parliament, looking to the very 7 wide powers vested in the Crown by the Transportation Acts, and considering also the prerogative of mercy—he had no doubt that, technically and strictly, Her Majesty's Government had the power of doing what they proposed without any distinct infraction of technical law. But he could not admit that it was consistent with the spirit of the law, if, while transportation remained according to the statutes our principal punishment, it was in point of fact and practice to be repealed. He contended that such would have been the case under any circumstances; but he begged to call their Lordships' attention to what had taken place within a very few years, which he thought had a very material bearing on this subject, and made this setting aside of the authority of Parliament even more disrespectful to Parliament than it otherwise would be. A good many years ago a measure was adopted by the then Government, by which at once transportation to New South Wales was put an end to by an Order in Council. He knew the difficulty to which the noble Earl (the Earl of Derby), who succeeded soon after to the office of Secretary of State, was exposed by that measure, and he thought at the time, and had always thought, it was a very grievous and very unfortunate error. It was intended when that measure was adopted that the proportion of convicts punished in this country, instead of being transported, should be considerably increased. What happened? An Address was moved in the House of Commons, praying Her Majesty not so to increase the number of convicts kept in this country; and this Motion was carried in Parliament against Lord Melbourne's Government. The House of Commons thus declared in the strongest manner that it was then of opinion that it would be inexpedient to discontinue sending convicts abroad. From that day to this that House had never expressed a different opinion. During the Administration of Lord John Russell, more than one attempt was made to induce the House of Commons to alter that opinion; but those attempts were either treated with so little consideration as to have the House counted out, or were defeated by large majorities. No decision reversing that of 1840 had ever been adopted by the House of Commons; therefore, so far as the Journals of the House of Commons were concerned, it was the recorded opinion of that House that the ultimate removal of convicts sentenced to transportation 8 from this country ought not to be discontinued. How was it also with regard to their Lordships' House? In the year 1846, it became absolutely necessary that a very considerable change should be made in the arrangements for carrying into effect the sentence of transportation. After much consideration, the Government of which he had the honour of being a member, decided upon certain measures which it was proposed to adopt to improve the mode of inflicting this punishment. So soon as those measures had been decided upon, papers containing a full explanation of the views of Her Majesty's then Ministers were laid before Parliament. Although those measures did not imply any discontinuance of the ultimate removal of convicts from this country, and although, upon the contrary, it was an essential part of the plan that convicts sentenced to transportation should, as heretofore, be removed to a distance before they were discharged from custody, still very considerable alarm was excited in both Houses of Parliament upon the subject. His noble and learned Friend (Lord Brougham) moved for a Committee. Her Majesty's Government cheerfully, and readily, and gladly assented to the appointment of the Committee, and the Committee investigated the subject with very great care. They examined all the Judges concerned in the administration of the criminal law except one (who had only recently been appointed), of England, Scotland, and Ireland; they examined the visiting magistrates and governors of prisons, who had had the greatest practical experience; and after such an examination, the Committee reported—"That nearly all the witnesses who had been examined were agreed that the punishment of transportation cannot safely be abandoned;" for it had terrors for offenders generally, such as no other punishment death only excepted—possessed. The Committee further reported—That the evidence, both from France and elsewhere, of the evil effects produced by the liberation of many convicts yearly, as their terms of imprisonment expire, would seem strongly to inculcate the necessity of obviating the great inconvenience of setting at liberty in this country, at the expiration of their sentences, those who had once been convicted of serious offences.The Report of the Committee went on to state as the result of their Lordships' inquiries—That the punishment of transportation should be retained for serious offences; that such punishment should in some cases be carried into effect 9 immediately, in others at a later period; that the first stage of punishment, whether carried into effect in this country or in the colonies, should be of a reformatory as well as of a penal character; that the later stages, at all events, should be carried into effect in the colonies, the convict being for that purpose retained under the qualified restraint to which he is liable under the existing system of transportation, of holding tickets of leave or conditional pardons.Such was the Report of their Lordships' Committee. It was true, the question was not submitted to the House itself, but only for the reason that it was understood and agreed that Her Majesty's Government should forthwith apply themselves to carry into effect the views of the Committee. They did so apply themselves. Much valuable information was obtained from the colonies, and upon that information, as well as on that which' the Committee had collected, after very careful consideration, a scheme for the future management of convicts was matured and carried into effect. A full account of that scheme was embodied in various despatches, which, almost as soon as they were written, were laid upon the table of both Houses of Parliament whenever Parliament happened to be sitting, and when Parliament was not sitting, at the earliest possible period after it had met. Only two years ago, in moving the Convicts Prisons Bill, be took occasion fully to explain to their Lordships the principles and objects of the measures which had then been decided upon. He would not weary the House by again going over the ground he had so lately traversed; he would content himself with merely reminding their Lordships that the plan was, with one important modification, precisely the same as that which had been determined upon at the close of 1846. The principle of both plans was, that the more severe part of the punishment consequent upon the sentence of transportation should usually be inflicted upon the convicts in this country; that they should be subject to different kinds of imprisonment, under the best plan that could be contrived; and that after having undergone a period of severe punishment of this sort they should be removed to the colonies, there to be placed for some period in a state of qualified freedom. It was at first intended that they should have conditional pardons, the effect of which would be, that they would be free on arriving at the colony, except that they were restrained from returning to this country. The change made was, that, instead of sending them out with 10 conditional pardons, they were to have tickets of leave, by means of which, in case of misconduct, they might again be brought under restraint. Such was the course adopted; and this measure, he would take upon himself to say—and the papers on the table would bear out the assertion—had since been in successful operation. It had answered both as a deterring and as a reformatory punishment. Now, he ventured to submit to their Lordships, that, considering the circumstances under which this scheme of punishment had been adopted, and that it was in successful operation, they ought not to have abandoned it lightly, or without knowing very well what they were to substitute for it. The ultimate removal of convicts from their native country was an essential part of the plan—it was essential as a deterring, but still more essential as a reformatory punishment. It was essential as a deterring punishment, because the evidence obtained with so much pains by their Lordships' Committee clearly proved the fact. Nothing could be stronger or more unanimous than the evidence of all the persons who were qualified to give an opinion, that ultimate removal from this country was one of the parts of the sentence of transportation which most contributed to render it formidable in the eyes of the criminal. He knew he should be told, as the House had been told a few evenings ago, that any such necessary results had been entirely changed by the discovery of gold in Australia. He confessed that he heard that argument with complete astonishment from persons who had taken the trouble to study the question. In the first place, he begged to deny the fact that the recent discoveries of gold had in any way impaired the efficacy of transportation. He would appeal to his noble and learned Friend (Lord Campbell) on this subject, for he had told the House that upon recent circuits he found the punishment of transportation as effectual in deterring from crime as it ever had been. But he had further evidence. Since he had given notice of this Motion, it had been communicated to him, on the part of the chaplain of a county prison, that according to his experience there was no part of the sentence of transportation which created so much alarm as the ultimate exile which it imposed. This rev. gentleman found that convicts in prison, after sentence had been passed upon them, were almost always eagerly desirous of having that part of the sentence commuted; and he stated, that within 11 the last few weeks he had had three instances of this kind. They ail knew it was the most ordinary thing in the world to have most urgent applications addressed to the Secretary of State, that the sentence upon convicts might be gone through at home; and that the conditional pardon might be converted into a free pardon, in order that those still in exile might be enabled to return. But he was speaking more particularly with reference to the effect of the discovery of gold. Could it really be supposed by rational men that the discovery of gold in Australia could have any possible effect of the kind supposed, or that persons would be found to commit offences for the purpose of being removed to Australia, in the hope of being there able to search for gold? Under the regulations lately in force, a convict sentenced to transportation must in general have served a period varying from five to ten or twelve years—or even longer where the offence was serious, and the man did not behave well—before he could expect to be at liberty to go to the diggings. Even a convict sentenced to seven years' transportation, whose conduct had been exemplary from his conviction, and who obtained a conditional pardon at the earliest practicable moment, must have waited three years and a half before he could be at liberty to go to the gold fields. Let it further be considered that of those three years and a half, one year must have been spent in gloomy seclusion at Pentonville, or in some similar prison, and another year of very hard labour and severe discipline at Portland, or some similar place. Two out of the three, or probably more years, which the convict roust spend in this country, must be spent in this manner before he could have the expectation, even with the best conduct, of getting to the diggings. But let it be remembered what convicts were; were they men who acted upon sober and deliberate views of their own interest? Were they men who went out to pick a pocket, because, after due consideration, they had come to the conclusion that it would ultimately be advantageous to them to do so? They all knew that if a man calculated his own interest and his real happiness, he would never be guilty of any offence; but offences were committed, and crimes of the deepest dye were perpetrated, because, unhappily, human nature was so weak, that though the consequences, both here and hereafter, were well known, they had not strength of mind to resist tempta- 12 tion, This was the reason that offences were perpetrated. The man yielded to immediate temptation. Now, did their Lordships really believe that men of this kind, who were singularly unable to look forward to the future, would commit crimes in order that they might be transported? In other words, that after undergoing three years and a half, or ten years, or twelve years, as the case might be, of punishment of awful seventy, they might be at liberty to take their chance with other scramblers for gold at the diggings? The notion was so utterly irrational, that he was convinced not one noble Lord would venture to assail the view he had expressed. But did he say there might not be criminals who had given as a reason for their crimes that they wanted to go to the diggings? Far from it. Twenty years ago, in 1830, when he had first the honour of serving as Under Secretary in the Colonial Office, he saw many letters from convicts, saying they had committed offences for the purpose of being transported. Among the infinite varieties of human character, there were to be found cases of men who had a morbid desire for punishment. This had been found to be the case with regard to the punishment of death; there were not wanting in our criminal records most frightful cases of men who, under the influence of morbid feelings, had committed great crimes in order that they might be hanged: but taking men as we found them, he believed that the punishment of transportation, as lately inflicted, contained within it more that was alarming to ninety-nine men out of every hundred, than any other punishment that could be devised. One reason for this was that it comprehended many different penal elements. There were men who had no connexions or associations with home, and who were not afraid of the banishment which constituted one part of the punishment of transportation. But that was exactly the class of characters on whom the punishment of Portland or Pentonville told with the most effect. There were, on the other hand, among the convicts educated men who had resources of enjoyment in their own minds, and these were able to bear the trying punishment of separate imprisonment; but it was most rare to find any man who could regard without intense terror and apprehension a combination of the stern seclusion of which he was the subject at Pentonville, and the ignominious and hard labour, accompanied by severe discipline, which he must go 13 through at Portland, and the whole followed by exile. This last element of exile, he found, told particularly upon that class of men who it was most important should be impressed with terror. It had been proved by experience that there was no man who shrunk so much from exile, and from the solitary life he must lead in the wilds of Australia, as the professed criminal, who had been accustomed to live a life of excitement, and whose only notion of pleasure and joy was connected with the vicious habits of a great town, in companionship with his associates in vice. To this man especially the punishment of exile to the remoter parts of Australia was full of terror; and the Report of their Lordships' Committee stated that of all classes, those who most dreaded it were the receivers of stolen goods. He contended, then, that he had made out the case, that removal from this country had been and still was an essential part of the punishment of transportation, as lately administered, to deter men from crime. But its importance in this respect was small compared with its importance in the reformation of criminals, and the removal from this country of a class who by remaining at home became a source of infinite embarrassment and danger. It was quite notorious that men convicted of serious crimes and discharged in this country were with great difficulty, and very rarely, absorbed in society as useful members of it. On the other hand, in the colonies they frequently became useful members of society. So much was this the case, that two years ago he was able to inform their Lordships, whilst discussing this subject, that, according to the best information he had been able to obtain, it was estimated that there were then 48,000 persons living in the different Australian colonies who at one time or other had been convicted and sentenced to transportation, who, either with tickets of leave, or some higher privilege, were at large in those colonies; and that the great majority of these men were maintaining themselves honestly. That statement, he believed, had never been impugned in any of the various discussions which had taken place on this subject. Whether as men of humanity or religion, they must consider it of vast importance to bring back into society those who had once been driven from its pale; whilst, looking at the interests of this country, it was equally important that this large number of men, who, had they re- 14 mained at home, would probably have continued in a course of crime, should be removed to the colonies, where they might be enabled to regain their place in society. Did their Lordships remember how great were the evils which resulted from the presence of this class of persons in large and populous countries, where there were not the means of watching or controlling them, as might be done in smaller communities? Were they not aware that in every other country in Europe, without exception, it had been found a source of extreme danger and inconvenience that such a number of convicts should remain? They knew that in France they had what had been described as an army of forçats liberés, who were ready to mix in every civil disturbance, to whom the great majority of crimes were traced, and who were the instructors of the young in every species of offence. In country neighbourhoods this was particularly dangerous. Had any of their Lordships ever lived in a country parish whither a man sentenced to transportation had gone back after completing his sentence? There were not many such cases at present, for a great majority of those who served out their whole time remained in the colonies; still a small percentage came home. Now he appealed to any man who knew anything of the internal administration of the law in this country, whether he was not right in saying that in a country district the return of a convict was a cause of infinite mischief and danger; that he seduced the young into crime, and, with that spirit of bravado which was universal among convicts, he taught youth that the punishment to which they were exposed by committing offences was not terrible; showed them the best and newest modes of committing crime; and, in short, his presence was a sort of moral pollution. It was not difficult to account for the difference between the probabilities of convicts becoming reformed in the colonies and in this country upon their discharge. When they were discharged at home, there was no security that they would be able to resort to labour, for it was notorious that in this country a discharged convict had extreme difficulty in obtaining employment. Often from the mere difficulty of obtaining work, he was driven back into the commission of crime; while his former associates were also too apt to make use of him. On a former occasion the noble Earl opposite (the Earl of Derby) had related to their Lordships, in the course of debate, a very affect- 15 ing and remarkable story of a discharged convict, who had gone to a distant part of the country, where he had endeavoured, under a feigned name, honestly to earn his livelihood. But it happened that one of his former associates in crime discovered him, and threatened that if he did not give him money, he would expose him. The man complied, gave him money; the demand was repeated from time to time, and he was compelled to resort to dishonest practices to obtain the funds. The result was that he was detected in the commission of a fresh offence, and again came under the lash of the law. This statement, which had been made on good authority, showed the difficulty that such men had in gaining an honest livelihood, if discharged in this country. But it was not only the difficulty of obtaining employment that prevented reformation:—the change from the strict coercion of Portland or Dartmoor to a state of entire freedom, was found to be too much for men generally to stand. This was the case even in the colonies. Under the first measure of 1846, the practice was to set the convicts at liberty on what were called conditional pardons instead of tickets of leave. While this plan was adopted, it was found that though the majority behaved well upon the whole, too many of the men thus discharged, and placed entirely at liberty, were induced to linger about the towns, where they procured drink on easy terms, got among their old associates, and very soon becoming as bad as ever, were again convicted of crime. If this not unfrequently happened in the colonies, how much more likely was it to do so in this country? The convict would be under the temptation of going to his old flash house and drinking with his former companions, and, in course of time, he would fall into his old practices, and again come under the restraint of the law. In the colonies it was notorious that, under the system of assignments, a very large portion of assigned persons ultimately became very good and respectable labourers. That was the unanimous opinion of all the colonies. In the examination before the committee of the Legislative Council of New South Wales, it was stated to have been the greatest error to do away with assignments, and assemble men together in probation gangs. Whatever faults the system of assignment had, it certainly did lead a large proportion of the convicts to become good steady labourers; and this seemed, in a great degree, owing to the 16 fact that the relaxation of discipline was gradually extended. When they were relieved from direct coercion, they were assigned to a master in a remote part of the country, where they could not easily get intoxicating liquors, and had few bad associates to mix with; also they were subject to severe punishment, not only for crimes they might commit, but for any irregularity; while, on the other hand, the greatest encouragement was given to industry and good conduct. The regulations under which ticket-of-leave men had since 1847 been sent to the colonies, had been drawn up with anxious and studious care to retain all that was advantageous in the old system of assignment, whilst avoiding the abuses to which assignment was liable, and which led to the system being condemned by the Committee of the House of Commons in 1838, and to its subsequent abandonment. He ventured to say that these regulations had been to a great extent successful. On this subject he confidently appealed to the papers upon the table. The convicts who had lately been sent out under those regulations, had behaved in the most exemplary manner. The percentage of those who had committed fresh offences was remarkably small, and the reports of their good conduct from all parties and all quarters were unanimous. He had reports not only from Government officers but from settlers; and he lately saw a colonial newspaper which contained an account of a public meeting held at Moreton Bay, attended by the most respectable inhabitants of that district of New South Wales, wherein it was stated that the conduct of the men sent out with tickets of leave had been unexceptionable, and that they were preferred as servants to free emigrants. In the last report of the director of prisons there was an extract from a letter from Western Australia exactly to the same effect. There was another very material point to be considered, in adverting to the value of ultimate removal as a means of reforming convicts. Need he point out the great difference between the condition of the convicts in the hulks, such as they formerly were, and that of the men now under punishment in such well regulated prisons as Portland and Dartmoor? Did their Lordships remember what the hulks were? At one time every possible abuse existed in the hulks; and in spite of the rigorous and hardening punishments there habitually inflicted—in spite of the unsparing use of the whip, which was the main instru- 17 ment of government, it was notorious that, though unpaid, the labour of the convicts was, in the opinion of every First Lord of the Admiralty, the most expensive that was employed in the dockyards? What was the state of things now? In the improved discipline of these prisons, the use of the whip was almost dispensed with; whilst the actual amount of labour done by convicts, and ascertained by strict measurement, would do no discredit to the same number of free labourers. He himself had seen in the prison at Dartmoor the work done in one week by a pair of convict sawyers compared with the work done by a pair of free sawyers; and on a measurement, the work done by the convicts was found to be the most. For many years successive Governments had been endeavouring to do all that could be done for the religious improvement of the convicts; but that which had contributed more than anything else to the gratifying reform which had taken place, had been that, instead of trusting almost entirely to "fear" as the instrument of government, they now looked to "hope" as the principal means of exercising an influence on the minds of the convicts. It is true that even formerly convicts were told that they would be more early released if they behaved well; but at that time no arrangement had been made by which their daily conduct and industry could be made to have a certain and obvious effect in determining the period of their release, and by which the expectation of this boon might be brought to bear upon their minds. But within the last few years, by regulations carefully drawn and skilfully adapted to this purpose, not adopted at once, but worked out little by little, as experience suggested improvement after improvement, they had accomplished the great object of making every convict feel that his daily conduct and industry had a direct and perceptible effect in improving his position, and that by behaving well, and by exerting himself, he might expect greatly to benefit himself. It was by thus producing hope, and making it so powerful, that they had mainly accomplished so great and valuable a reform. But on what did this hope depend? Mainly on removal to the colony, within a limited time, with a ticket of leave. This was looked forward to with intense desire. To obtain this reward was the great motive of every convict. It might be said, if removal to the colonies was so great a reward, it was surely not proper to 18 retain it as part of the punishment, and that the argument which represented exile as necessary for deterring from crime fell to the ground. But it was not removal to the colonies which was the great motive; it was relief from the severe discipline to which the convicts were subjected in this country. If their Lordships had not visited the great establishments where this system was carried on, they ought to do so, in order to form a judgment on the subject; and when they saw what that discipline really was, and what a convict underwent, they would not wonder at his intense desire to be relieved from it. At Dartmoor or Portland, the whole life of a convict was one monotonous round of dreary labour or seclusion. Severe labour occupied many hours of the day; he was confined in a small cell by himself, with no recreation but books, generally of a serious character, with none of those sources of excitement which his previous life had made almost a necessity. He had no means of indulging in drink, or tobacco, or obscene conversation, or any of those things to which convicts had been accustomed. When he was not absolutely engaged in labour, or in recruiting his strength for that labour by sleep, his life was passed without any other relaxation or amusement than that which he could derive from solitary reading, or from receiving instruction from the schoolmaster. To be in one of those great halls, with a range of iron cells on each side, to know that you had four hundred convicts only separated from you by a slight partition, and that among that multitude of men, utterly unconscious of your presence, there was not a whisper to be heard—it was a thing which made the flesh almost to creep to consider how severe that discipline must be. Knowing that human nature required some relief from constant occupation, and seeing what that discipline was, it was not to be wondered at that there should exist an intense desire to be relieved from it. It would no doubt be a great increase of the boon to be told that they would be relieved at home; but they were most anxious to be relieved from it even by exile, which was formidable to most men. That desire was the keystone of the whole reformatory system which had been established. In the case of a convict who had committed a very serious offence—one who had barely escaped capital punishment, through the Secretary of State commuting it to transportation for life—it might be quite safe to release him at the 19 end of four or five years, if he were removed to a distant colony, and there placed under restrictions still tolerably severe, though a great improvement on his former condition, and with the obligation of paying a considerable sum of money, and doing a considerable amount of work before he could obtain a conditional pardon. Such a man, who had committed a crime which was only distinguished by a nice shade from murder, might, under such conditions, be safely released, after four or five years, from Portland; but what would be the effect if, after those four or five years of seclusion, he were allowed to go back to his old comrades, and say, "See what I have done; I knocked out the brains of the keeper of the prison;" or, "I have been a notorious housebreaker for ten years; and, after four or five years, which I don't much care about (for that was always the language they held), here I am back again. Don't be afraid of the sentence of the law; that is the worst it can do. Join with me, and let us form another gang for breaking open houses." To allow men of this kind to return to their old haunts, would destroy all reformatory discipline. No one who knew anything at all of the criminal law would believe that this would be safe. But what was the alternative? To prolong the period of punishment. But precisely as they prolonged that period, precisely as they made very distant the period when good conduct would procure a release—precisely in the same degree did they diminish the influence of that hope which was now the main instrument of governing convicts, and which led them to behave so well in our prisons at home. If the criminal were told that, let him behave ever so well, he must continue in that gloomy retreat for ten or twelve years, it was greatly to be feared that the hope of accelerating the period of his discharge would lose its effect, and that he would not think it worth while to exert himself in the hope of knocking off one or two days at the end of that period; and that he might as well be guilty of some breach of discipline, and enjoy himself as he could while in prison. To prolong the period of prison discipline would cut off the main source whence its excellence was derived, and would render the hope now excited in the minds of the convicts comparatively null. He need not, however, press this branch of the argument any further, for he assumed that it would be contended, by those who opposed his Motion, not that transportation 20 was otherwise than useful in itself and beneficial, but that it must of necessity be given up—that it was impracticable to remove from this country the thousands of convicts in our prisons who were now looking forward to transportation. He dissented, however, entirely from this view of the case; because if they were to abandon transportation, not because it was thought a bad punishment, or because it was thought to have failed, but because Van Diemen's Land could not be required any longer to receive convicts; and there was no other place to which they could be sent; then in such case the Government ought to have taken the course which had been adopted by their predecessors. He was not aware of any sufficient grounds for abandoning the system of transportation, but was willing, for the sake of argument, to concede that further removal of convicts to Van Diemen's Land should be abandoned. But granting this, what was the proper course to be adopted? He had no fault whatever to find with the despatch of the right hon. Baronet the late Secretary of State for the Colonies (Sir J. Pakington), in which he stated that he thought transportation to Van Diemen's Land ought to stop; but that Government were unable to fix the precise period at which that system should be given up, because Her Majesty's then Government proposed to submit to Parliament certain changes in the law which they thought necessary in order to effect this alteration in the criminal practice of the country, and to take time to make certain arrangements, by which this alteration might be carried out without injury to the country. This was a perfectly legitimate course, and if had been adhered to, and if the Government had come down to the House, and said that they thought that the continuance of transportation to Van Diemen's Land was unnecessary, he had no hesitation in expressing his conviction that it would have been perfectly practicable, by arrangements which might have been made, by changes in the law which might have been proposed, to put an end, at no distant period, to transportation to Van Diemen's Land, and at the same time to maintain that punishment to an extent sufficient to answer the most important purposes. He believed that they might have continued that punishment, restricting the number of offences to which transportation was applicable, and adopting the measures which were in their power of increasing the number of convicts who might 21 be sent elsewhere than to Van Diemen's Land. In saying this, he did not mean to recommend the formation of new penal settlements in the Falkland Islands, or in any of the still unsettled dominions of the Crown, as had been proposed. Those who had given that advice could not have sufficiently considered what was the real object to be accomplished. If the object were merely to keep convicts in the safe custody and under the eye of the Government, there was no place where this could be done so well and so cheaply as at home. At Portland or Dartmoor, they could be separated from the population at large as effectually as at Norfolk Island; and they were immediately under the eye of the Government; and when abuses arose they were much more sure to be detected, and a remedy might be applied much more promptly, than at a distance. Therefore, for convicts actually under the custody of the Government, he would say "there was no place like home." But what was wanted was a place where they might be discharged with safety, when they were qualified for freedom, with tickets of leave. New settlements did not answer that purpose; and had it been proposed to discontinue transportation to New South Wales, when the population was altogether criminal, he should have concurred in the proposition. But when Lord Bathurst most wisely held out inducements to settlers to go to New South Wales, by the employment of the convicts; and when the convicts ceased to be the majority of the population, the real evils of the system were at an end. It was possible that the Falkland Islands might absorb a few dozen convicts with tickets of leave; and perhaps some arrangement might be made with the company that had undertaken the improvement of those islands, to afford employment there even to one or two hundred convicts. But this could not be carried far: what was wanted was a place to send convicts to where they might form only a small proportion of the population. The more widely they were dispersed, and the more numerous the population of the place they were sent to, the better; and he believed it was still perfectly competent for the Government to make arrangements with the colonies to take a limited number of convicts yearly. Hence the infinite mischief of the language held by some persons in this country, who, in the prosecution of their wild theories, had created a feeling in the colonies that 22 did not before exist, that to receive convicts was a disgrace. Were it not that this was done in sheer ignorance or folly, rather than in mischief, those who created this feeling would be chargeable with a great crime against society. But he trusted that the inhabitants of some, at least, of our colonies would learn before long how absurd was the notion that either disgrace or injury could be brought upon them by receiving convicts under proper regulations, and that on the contrary this might be the greatest advantage to a rising settlement. He had heard that there had been a public meeting at Natal, to ask for convicts to be sent there. He hoped it was true. He was persuaded that if they did ask for convicts, after undergoing the improved system now established in this country, and if this country treated the colonists generously, and made it no source of expense to them, it would be an infinite advantage both to the colony and the mother country. That colony wanted an increased number of European labourers, and that increased number, with the superior attractions of the gold fields, they would not obtain, unless such means were taken of supplying the demand for labour as transportation afforded. Assuming, then, that the Government were right in determining to put an end to the transportation of convicts to Van Diemen's Land, he should have advised them to adopt the plan proposed by the right hon. Baronet the Secretary of State under the Government of the noble Earl opposite. Would it be said that the colonies were too pressing, that they would not wait, that it was necessary to act without delay, and that the requisite time could not be afforded? Such an argument was not only unfounded in itself, but pregnant with mischief to our whole colonial empire. No man held higher than himself the doctrine, that if we would retain our vast colonial empire, and keep its different parts knit together by mutual "affection and loyalty to the Crown, it was necessary that the Imperial Government and Parliament should deal with justice—nay, with indulgence and consideration—towards the colonies. But he utterly denied that Government or Parliament was bound to yield to every demand of the colonists, whether just or not, and to listen to every clamour, reasonable or unreasonable. Important as he thought it that we should retain our colonies, he said deliberately that it would be far better to part with them at once, than to retain them on 23 those terms, by which we were to have the onerous duty of defending and protecting them, but to exercise no substantial authority. He hoped that an argument so derogatory to the dignity of Parliament and to the Crown, would not be used in that House. The right rule to act upon was this: the Legislature must listen to the desires of the colonists; they must hear their prayers with every disposition to accede to them; and whatever was consistent with the common good of all we were bound to grant; while those demands which were not based on justice, and were inconsistent with the general welfare of the whole empire, we were bound to oppose. The true test of statesmanship—that which made the difference between a statesman and a mere shallow politician—was to be able to discriminate between one case and the other, to know when justice required concession, and when their duty to the Crown and the empire prescribed firmness. Let them apply that rule to Van Diemen's Land. How far was the demand just, how far was it supported, not by popular clamour, but by reason, that they should not merely put an end to transportation to Van Diemen's Land, but that they should do it so precipitately as not to leave themselves time to consider and discuss any other mode of punishing convicts, nor time to take Parliament into their counsels, as by the constitution they were bound to do. How far was it just that Van Diemen's Land should demand from us, not only concessions, but concession so hasty and precipitate as that? In order to arrive at a correct decision on the subject, they were bound to look at the origin of this colony. The whole population of Australia had been created by the transportation system—even New Zealand, distant as it was, for it would not have been available for settlers but for the wealth and resources created in that part of the world by the system of transportation. Some three-fourths of a century ago the Government of this country found that part of the world utterly uninhabited and untrodden by civilised man, and expressly with the view of sending convicts there had fitted it for receiving thousands and thousands—the numbers would soon be millions—of their fellow countrymen; and this had been done at an enormous outlay, incurred expressly for convict purposes. How had the free population arrived there? Some as convicts, some as voluntary exiles, and even among the persons who were making the loudest clamour on the subject, there were 24 some who had voluntarily emigrated to avoid being brought before tribunals of justice. They were the descendants of convicts, or they were persons who went out, under the inducements held out by Lord Bathurst, to avail themselves of cheaper and better labour, which the system of sending convicts to that colony supplied. They had succeeded, and he rejoiced at it. Look at the present condition of Van Diemen's Land. It was in possession of wealth far beyond that of any other colony ever founded in the world, and he believed, in proportion to the number of its inhabitants, it possessed many of the advantages of an old country—neat farm-houses, fields divided by hedges, good roads, all the means of civilised life, an efficient police, the most perfect safety—greater than we enjoyed in this country—from offences. All this comfort and wealth, all this fortunate and prosperous state of things, had been created exclusively by the enormous expenditure of this country in sending out convicts and maintaining the convict establishment. Was it, then, just or reasonable, that, precisely at the moment when Van Diemen's Land could receive convicts with the most advantage to itself as well as to the mother country—when the colonists had derived so much benefit from convict labour and convict expenditure—they should turn round on the mother country and say—"We will not only not tolerate receiving convicts, but we will not even give you time, in making the change, to consult Parliament, or to adopt any other plan to relieve you from the great inconvenience which the change must occasion?" Was this a case in which the demands of the colonists—supposing them to make these demands—were based upon justice? He believed, however, that they were greatly wronging the colonists in supposing them to be so unreasonable as to make such a demand as this. The colonists of Van Diemen's Land would, he was convinced, have been quite satisfied with the promise given by the late Government; and if the present Government had adhered to that promise they would have done all that was asked, and at the same time have been spared the embarrassment in which they were now placed. It should be borne in mind, that it did not follow, because the clamour was loud, that therefore it was reasonable, or was joined in by the more sensible part of the community, or was of a nature likely to continue. As far as we had the means of judging, 25 there was every indication that this opinion against convicts was not adopted on sound reason and adequate grounds. In the first place, the cry was quite new, and it was no long time since the cry was all the other way. Any objection on the part of the colonists had never oven been heard of when he began to attend to the subject; and he might be permitted, in passing, to observe that he was one of those who had many years ago assisted in pressing the subject on the attention of the other House of Parliament, and who had been most anxious to put an end to transportation as it was then conducted, for the purpose of arriving at the very plan which had been lately in operation; because, without giving himself credit for superior discernment, he might state that nearly twenty years ago he had expressed an opinion in favour of a plan founded on the very principles which had been adopted in 1847. But when the change was then proposed, the colonists and newspapers were as rabid in their opposition to it, and in denouncing all who objected to the system of transportation, as they were now on the other side. They were as ready then to denounce as enemies of their country any one that should venture to suggest the possibility of there being any abuses in the existing system of transportation. Nor had this feeling changed up to a very recent period. He held in his hand an extract from the Report of a Committee of the Legislative Council of New South Wales, which sat on the subject in 1846; and it seemed to be the theory of that Committee, that people at home ought to commit crimes in order that there might be plenty of labour in the colonies; for they came to a resolution to the effect that not fewer than 5,000 male convicts should be annually transported to New South Wales. Nor was the Committee at all apprehensive that any moral evil of any sort or kind would follow the importation into the colony of so large a number of convicts; because they argued that the free population had obtained so great a head and mastery over the convict population, that if the proposal was carried out, the vast absorbing and dispersing powers of the colony would prevent the convicts from ever swamping the free population, as they had done in Van Diemen's Land. Thus they would see that the Committee agreed with him in thinking that the fitness of a colony to receive convicts, increased with the increase of its free population. It was perfectly true that the 26 Council did not concur in the report in 1847; but it was remarkable to observe of whom this Committee was composed. Its Chairman was Mr. Wentworth, now the oracle of the other side; and another of its leading members was Mr. Lowe, who was also now a determined opponent of transportation. Yet Sir Charles Fitzroy stated that up to the end of the Session of 1848, since which time the system had certainly not become worse, but better, these gentlemen professed their unreserved concurrence in the report of the Committee. In that year, too, the Legislative Council deliberately came to a resolution, requesting that convicts should again be sent to them. But more than this. The present Chairman of the Anti-Convict League was one Mr. Cooper; and he found from the colonial newspapers that this same gentleman was a member of an association which was formed in 1846 by the settlers in Port Philip, for the purpose of raising money to defray the expense of importing"expirees"—that was, not persons who had undergone the improved system of convict discipline, but those who had composed the probation gangs in Van Diemen's Land, at a time when their discipline was notoriously bad. Again, he found that at the present time a very large number of the most respectable and intelligent settlers in Van Diemen's Land had signed a petition, praying that the system might be continued. He believed it was not upon the table of the House, but he had seen it in a colonial newspaper, and he had no doubt as to its authenticity. At the same time, he was far from denying that there were many persons in the colonies who entertained a very sincere opinion against transportation; but he thought the circumstances he had mentioned showed that the opinion had not been very deliberately or very soberly formed. On the contrary, he believed that it might be mainly traced to the language which had been held in this country. People here talked about "the disgrace that attached to penal colonies;" and had asserted that it was the objection entertained to a penal colony which had prevented emigration to Van Diemen's Land, until the colonists had begun to feel it. The colonists were very sensitive about what was said and thought of them in the mother country; and, though there was perhaps a little vanity in this, the feeling was on the whole praiseworthy, and did them credit. He only wished they would estimate a little more correctly what the opinion of this 27 country really was—what was really thought with regard to this question by reasonable men—and what really was the effect of preventing settlers going to those colonies. If they supposed it was the penal character of the colonies that prevented people going, there never was a greater mistake. He had told their Lordships already that the first free settlers that went to New South Wales were induced to go there by the wise regulations of Lord Bathurst, and that they went there for the sake of the cheap labour they obtained. It was only three years since the first convicts were sent to Western Australia. At that time the difficulties of the colony had become so great, and its prospects were so apparently hopeless, that many of the inhabitants were on the point of abandoning the settlement. But already the effect of sending convicts there had been to produce great prosperity; and now he actually found the population there congratulating themselves on the fact that in the short time that had elapsed since the sending of convicts to Western Australia, a most useful accession had been made to the better classes of their society. Did noble Lords really believe that if the numerous persons in this country who were desirous of emigrating, and who had a little money to invest, were offered land in Van Diemen's Land at a moderate price, with a gratuitous passage there, and at the same time a plentiful supply of cheap convict labour, as well as a market for their produce at the high prices which they must command since the discovery of gold—did they really believe that persons contemplating emigration would not soon find out that Van Diemen's Land was the place to go to in order to get rich—especially if they saw that there was such an admirable police that they might enjoy perfect safety? They might talk till they were tired about the moral disadvantages of a convict population, but with such prospects they would never prevent persons from going there. Certainly if he were contemplating emigration, Van Diemen's Land would have been the colony he would have chosen while convicts continued to be sent there. But if transportation ceased, any man that expected to make his livelihood otherwise than by the labour of his own hands, would be insane to go there; because it was obvious that no produce he could raise by the means of labourers, to whom he must pay such wages as would deter them from going to the diggings, would have any chance of competing in the market with that brought 28 from America, or even England. However, as the Legislative Council had spoken, he must assume that it expressed the opinions of the community; and, right or wrong, that opinion was, that transportation should cease. But when he was told that the inhabitants of Van Diemen's Land and Western Australia would rebel, and that the example of the American colonies would be followed, he could hardly forbear from smiling at the perfectly ludicrous contrast between the two cases. What similarity was there between the strong feeling which had led to the throwing of tea into Boston harbour, and the feeling which did not prevent the scenes which took place at the arrival of the convict ships? Why, in a recent paper there was a most graphic account of the tumult which such an event occasioned. Even the assistance of the military had to be invoked, to restrain the crowds of rich and poor who assembled—not to drive away the convicts from their shores—but to secure their services. What a contrast between the persons who had indulged in this foolish talk in the colonies, and the great men of the American revolution—men not less distinguished for their moderation than their firmness; men whose moderation was such, that had there been the smallest infusion of political wisdom in the councils of this country, the calamitous struggle, and the secession of those colonies, would never have taken place. He said again the Government were not bound to adopt the precipitous step which appeared to be contemplated. No grounds had been shown why Her Majesty's Government should not have waited to consult Parliament on this important subject, nor did it appear that any efficient arrangements had been made for the disposal of the convicts in the event of the regulations which were in force in 1852 being abandoned. He must now refer for a moment to the Amendment which had been placed upon their Lordships' paper by the noble Earl near him (the Earl of Chichester). If that noble Earl really wanted to take the sense of the House upon the propositions embodied in that Amendment, he (Earl Grey) would appeal to him to bring them forward at a fitting time in the shape of a substantive Motion, and to let the House decide upon them in that form. The Amendment of the noble Earl was utterly beside the question which he (Earl Grey) had now brought under the consideration of their Lordships. If he was prepared—which he was not—to agree, without reserve, in all the opinions expres- 29 sed by the noble Earl in that Amendment, he (Earl Grey) would say, instead of that being a reason against adopting the Address to the Crown which he proposed, it was a still stronger reason than any that he had alleged in favour of that Address. What did the noble Earl contend? The language of that Amendment was utterly incomprehensible. It talked about sending convicts to colonies which were "incapable" of receiving them. Surely that must be a mistake, for it was not common sense. The noble Earl wished the Government to devise a system of secondary punishments which should be as much dreaded and as reformatory as transportation. Why, that was a problem which every civilised nation had been attempting to solve for the last century. Yet the noble Earl demanded an immediate solution. Was that rational? Again, the noble Earl distinctly recommended additional means of secondary punishment in this country, and admitted that new buildings would be necessary. Was it then reasonable to put an end to transportation before these further arrangements had been provided? Surely this alone was sufficient to prove his (Earl Grey's) case. If, however, the noble Earl did press his Amendment, he (Earl Grey) trusted the House would deal with it as merely an indirect way of evading a question which for the honour of their Lordships' House, and for the good of the country, they were bound one way or the other to decide. Surely the course the Government had taken was an erroneous one; but it was still not too late for Parliament to interfere, and he asked them therefore to agree to the Resolution of the terms of which he had given notice, namely—That an humble Address be presented to Her Majesty, praying that Her Majesty will be graciously pleased to give directions that the arrangements with respect to the punishment of Criminals sentenced to transportation, which were in force in the year 1852, may not be changed in such a manner as to prevent the ultimate removal of such offenders from this country until a full account of any contemplated alteration in the above arrangements shall have been laid before Parliament, and till Parliament shall have had an opportunity of considering the measures it may be intended to adopt previously to their being carried into execution.
§ The EARL of ABERDEEN
My Lords, perhaps it may be convenient that I should thus early state in general terms, although very shortly, the view which Her Majesty's Government take of this most important subject. And I do so, I confess, the more readily, because, notwithstanding the speech 30 that your Lordships have just heard, I cannot help entertaining some hope that the noble Earl will not himself be disposed to press his Motion upon the House. In the first place, I must observe that this Motion is one of a very unusual character. It is, I think, an intervention of a description rarely attempted towards the legitimate exercise of the prerogative of the Crown, and the discretion of the Executive Government. The noble Earl seems to think that we have taken a step in this matter without having the sanction of Parliament to authorise it. We have done no such thing. Had we been disposed to take any step at variance with the law, or requiring the sanction of Parliament, of course we should most readily have come down and requested your Lordships to authorise such a proceeding. But we have done nothing of the kind. All we have done has been that which, whether right or wrong, wise or unwise, it was perfectly competent, in the exercise of the prerogative of the Crown, for the Executive Government to do. Now, my Lords, I agree with the noble Earl in thinking that hitherto this subject has always been treated as not belonging to any party consideration in this House. The subject is one which interests our social condition so nearly, and is so important to the welfare and happiness of such vast numbers of our fellow subjects, that it has been put aside from all considerations of a party nature; and certainly I have no reason to imagine that the noble Earl would attempt to meet this question in any different spirit. That the noble Earl himself, and the right hon. Gentleman who was his Colleague at the Home Office, have made great improvements in the nature of convict discipline, both at home and abroad—to that I can boar the fullest testimony that is possible. At the same time I must be permitted to observe, that the difficulties under which we labour at this moment, however unintentionally on his part, have been mainly created by the noble Earl himself. The question, the practical question, after all—not withstanding what the noble Earl has said about the abolition of transportation, of which nothing of the kind has taken place—the practical question is, whether we should continue transportation to Van Diemen's Land or not. Now, I say that the noble Earl has made it impossible, for this reason—I do not say intentionally, but such is the fact, and your Lordships will see, by the merest statement of the facts as they occurred, that such is the 31 case. In 1846, when my right hon. Friend Mr. Gladstone was Secretary for the Colonies, he found that the system introduced by the noble Earl, however well devised—and I am not about to find fault with that system as established by him—but, from the association of these men in numerous gangs, the abuses attending the system were so great, and the country had arrived at such a state of horror and abomination, that Mr. Gladstone found himself under the necessity of suspending all transportation for two years. Shortly after that declaration on his part, a change of Government took place, and the noble Earl succeeded him. The noble Earl, on the 5th of February, 1847, wrote to Sir William Denison in Van Diemen's Land, and said, "I have to inform you that it is not the intention of Her Majesty's Government that transportation to Van Diemen's Land should be resumed at the expiration of the two years, for which it has already been decided that it should be discontinued." [Earl GREY: Read the previous sentence.] I am quite ready to admit that the noble Earl intended something different from that which he has said. [Earl GREY: Hear, hear!] If the noble Earl will hear, I will add this, that whatever interpretation he may put upon this despatch now, and whatever he may have intended by it (for I don't wish to quarrel with the interpretation he gives of this passage), Sir W. Denison, to whom he addressed it, understood it in its plain meaning. And what did he do? He announced to the Legislative Assembly—and this is the noble Earl's own statement of the matter in a production of his which I read recently with great satisfaction—Sir W. Denison declared to the Legislative Council that it was the determination of the Government not to send any more convicts to Van Diemen's Land. Very well. Now, there is the understanding of the Governor of the colony announced to the legislative body of the colony. The question, then, becomes one of good faith, because at least the inhabitants of that colony attached credit to the declaration of their own Governor, founded as it was upon the despatch of the noble Earl. Now, I know very well the noble Earl intended that transportation should not be resumed in the same manner in which it was carried on before. I know that was his intention; but at the same time the Governor to whom he wrote did not understand it so, and the colony to whom the Governor explained the noble Earl's intention did not understand it so. 32 They, therefore, undoubtedly, received the fixed impression that the Government had intended to abolish transportation to Van Diemen's Land. Well, after that conviction, I say again it was very difficult to disabuse them, if it was an error, from that belief. As it is now confirmed over and over again by the declaration, the emphatic declaration, of their Legislature, I submit that it is very difficult, and indeed impossible, to contend with such an exposition of the policy of the Government. But who is it that tells us we are not to respect this declaration on the part of the Colonial Legislature? Is it the noble Earl, who, as we perfectly recollect, in one instance at least, laid it down that the Government of this country has no right to send out convicts to any colony against the consent of its inhabitants?
§ The EARL of ABERDEEN
Very well. The noble Earl, of all men, was surely the one who ought to pay some respect to the declarations of the Legislatures of those colonies. Is it only, then, against the Church of England that the noble Earl supports the declarations of Legislative Assemblies? Is it only in Canada that the Legislative Assembly is to be supported in the wishes it expresses; and are colonies which protest against convict settlements being forced on them—are they alone not to be listened to, and not to receive any attention from your Lordships? I say, my Lords, that the noble Earl ought at least to be consistent, and give its proper weight to the voice of the Assemblies he has himself helped to constitute in those colonies. My Lords, the noble Earl has throughout treated the whole of this subject as if we had taken a decision to abolish transportation. Now, we have not only done no such thing, but we are anxious to preserve the system of transportation. Undoubtedly, the field in which it can be exercised is diminished. We have a difficulty to contend with; and, as I have already said, whether designedly or not, that difficulty has been mainly created by the noble Earl himself. But there are settlements which still remain; and I think that, by good administration at home, the number of convicts transported may be so diminished, that it may be possible to find means for the accommodation of them in those restricted territories to which I refer. They may be sent, for example, to Western Australia. I do not deny—on the contrary, I 33 quite agree with the noble Earl—that the project of other penal settlements being founded would not answer the purpose for which transportation is now intended, and for which it ought to be supported. The noble and learned Lord at the table said the other night that we might send convicts to the Falkland Islands or Greenland. What sort of discipline he meant to enforce there, I don't know; but it shows, when the noble and learned Lord, whose words were entitled to so much weight and respect, spoke in that way, how little people really feel what is the nature of the transportation to which we are now alluding. Because it is not such a settlement as could be formed in the Falkland Islands or Greenland that we are speaking of. That might, indeed, be a very good prison. But what is required is a gradual absorption of the convicts into the population of the settlement to which they are sent. That, I must say, for many years must be impossible in any new settlements we can form. However, I am not one of those who think it impossible that some use might be made of the Falkland Islands for this purpose. It is, at all events, a subject which deserves inquiry; and in the deficiency of the means we have for disposing of these persons, I do think it possible that some facility might be afforded by those islands. It is our opinion, my Lords, that transportation, as far as it can possibly be exercised, is a most valuable portion of the system of secondary punishments in this country. But whether it be valuable or not, and however anxious we may be to exercise and carry it into effect as extensively as the means we have will allow, still I do think the time is come when it is absolutely necessary to make large provision in this country for the treatment of our criminals, whether sentenced to transportation or not. That much is certain; for however much we may wish to maintain transportation, the exercise of it must necessarily diminish; and therefore we must endeavour to find some other mode of treating a vast proportion of those persons who are sentenced to punishment. I think we have had great encouragement in the attempt. I think that the institutions that have been already established—the reformatory system which has been introduced, joined with labour on public works—have been attended with the very best effect, and may be said to have been greatly successful. I think it is possible some change may be made in that very indiscriminate 34 mode of sentencing to transportation which has taken place for many years past. A man is sentenced to seven years' transportation. What does that mean? or, rather, what did it mean formerly? Why, two or three years in the hulks, and then to be turned out loose, without any education, teaching, or discipline, but the whip, upon the country. And that took place year after year, without any of the great alarm which some noble Lords now profess at the possibility of persons being discharged and let loose upon the country after undergoing an imprisonment and discipline from which there is every reason to hope that material reformation may have taken place in a great proportion of them. For, my Lords, the great majority of these persons sentenced to seven years' transpor-portation are not persons of any very determined guilt, and in whom there is a great amount of moral turpitude. No doubt there is a great variety in these cases; and that, I think, is one of the great objections to this sentence—that it presses so unequally on the persons sentenced. Transportation may be a very valuable punishment, as I have said before; but at least it must be admitted to be the most unequal in its effects of all punishments. To many persons—to the sensitive and feeble—it is worse than death; to the adventurous, the bold, and reckless, it is no punishment at all—quite the contrary. Many of your Lordships have heard of a noble Lord—a Member of this House—who was so determined to go to Botany Bay that he declared to his family that if they did not send him there he would take good care to be sent. That is a fact, I believe. It is undoubtedly the case that transportion presses most unequally on the persons sentenced to it. The noble Earl throughout his speech has, I think, in effect, though maintaining the necessity of transportation to Van Diemen's Land in the strongest manner, nevertheless very much confined his eulogy to the treatment of prisoners at home. He has described—and most justly described—the effect produced by the discipline pursued in those establishments in this country to which he referred. I say, my Lords, nothing can be more just or true than that description; and the necessity of extending that system becomes more apparent every day; and without our giving up transportation, but—quite the; reverse—maintaining it especially for those cases of a serious description—I think that, for all minor offences generally, the 35 system of reformatory imprisonment, combined with labour on the public works, would be preferable, and would be best suited for a large proportion of those persons who are now sentenced to transportation. The noble Earl has tried to alarm us by referring to the example of France. He says that the persons discharged from the galleys—the forçats of Prance—are the terror of the country. No doubt they are; but why? Because they have not undergone that discipline and reformation which, according to the noble Earl, we have here, and which we are endeavouring to apply to those persons in our own country. It is too soon yet to speak with certainty on the subject; but I do think that in the few years which have elapsed since the institution of Portland and Dartmoor, nothing can augur better for the full success of the experiment; and the noble Earl deserves great praise for that experiment, and for founding those great establishments. The noble Earl has made light of the notion that transportation has no longer the same terrors it had formerly, in consequence of the discovery of gold in the colony, and the notion that may be entertained of reaching the diggings; and considers it quite absurd to suppose that that can operate on the minds of persons like those who are subject to this punishment. Now, I think that reckless minds are not incapable of being moved by some vague notions of this kind; but whether that be so or not, there is one thing which I think important in reference to this question, and that is, that owing to the extent to which voluntary emigration has taken place within the last few years, the prospect of crossing the sea no longer possesses the terrors it formerly did, and that alone would be sufficient to diminish greatly the terrors belonging to transportation, and its efficiency in deterring from the commission of crime. I bow with great respect to the opinion of the noble and learned Lord near me (Lord Campbell), and to the opinion he has given with respect to transportation possessing the same terrors as formerly; it may do so in many instances, but I repeat that the inequality of the punishment is a radical defect which must belong to it, and whatever you do you cannot make it equal. It was only this very day I took up at random the report of a most intelligent gentleman—the chaplain of one of the principal gaols in England, that of Preston—in which I found it stated that the persons lying sentenced to transportation in 36 that establishment were guilty of a variety of offences, from the most serious crimes to almost venial offences—in short, it appeared that a large proportion of them would be much better dealt with under entirely different treatment, and that you ought not to go on sentencing men to transportation whom you never meant to transport. I think it would be a great misfortune if there were not the means of disposing of the more serious cases of crime out of the country, and where transportation was for a very long period—say for fifteen years and over—then it would be desirable to carry it into effect in all cases. The noble Earl has also said that those persons who were the very worst in these establishments would be turned loose on the country. Why should they be the worst? That is quite a gratuitous supposition. We should, probably, not turn out the worst, and we should, probably, turn out the best; and if the system is good for anything, it is this, that it enables a proper discrimination to be exercised towards those persons according to their various dipositions.
was understood to inquire if the noble Lord meant to have a system of perpetual imprisonment instead of transportation?
§ The EARL of ABERDEEN
No. I have already said that for serious offences transportation should on every account be preserved, and that it should, in every case where it was pronounced, be enforced and executed. It is a farce to sentence to transportation when it is not intended to be carried out. I said distinctly also, that for a very large proportion of offenders, there might be, not only a more fit punishment, but that they might be reformed by their punishment; and the experience we have, though but short hitherto, fully justifies us to expect that such will be case, except in criminals guilty of serious offences. In taking this step, which the noble Earl thinks so hasty and so rash, we have made provision for the reception of those persons in the number which is likely to be sent in the course of the year to those establishments, and there will be no chance of any inconvenience arising from any multitude of persons sentenced in the course of the ensuing year. I hope that long before this period has elapsed, a well devised plan will be ready in its details. I say in its details, because the noble Earl must not suppose that this abolition of transportation, as he calls it, has 37 been decided on without any view to a substitute. Far from it. I have already intimated what is the substitute for a large proportion of those persons, and accommodation has been provided for any probable number of persons who may be sentenced. But the precise amount and nature of the punishment—the due regulation and treatment—which will be substituted for that portion of the punishment which consisted in sending them with tickets of leave to the colonies, have not been fully concluded upon. These are matters which will receive full consideration, but they are only details, and, with the assistance and experience of the very able and most efficient persons administering those establishments, I do not doubt we shall have such a scheme as shall prove fully satisfactory. My Lords, I do not think it necessary to say more, except to protest against the notion which throughout the speech of the noble Earl he has endeavoured to establish—that we have come to a decision to abolish transportation because we find it impossible to send convicts to Van Diemen's Land—for that is the whole amount of the charge; and, although it might not have been the intention of the noble Earl to make that charge, I must say it has no existence in fact.
§ The EARL of CHICHESTER
said, it was with considerable pain he felt himself obliged to oppose the noble Earl who had moved the Address, not merely from personal feeling, but because he was one of those who had long observed with great interest, and also with great admiration, the very able manner in which he had conducted the very important duties which devolved on him as Secretary of State for the Colonies—an ability and zeal which he could not but feel had not been sufficiently appreciated by the country. But on a question like this, it was additional matter of regret to be opposed to his noble Friend, because while he was in office, more had been done by him, in conjunction with Sir George Grey, for the improvement of our secondary punishments, than had been accomplished by any previous Administration; and among those improvements, for which he felt they were deeply indebted to that Administration, he knew of no single act more conducive to their success than the appointment of his gallant friend Colonel Jebb to the office then created by Government. He objected to the Motion of his noble Friend, because the form of it seemed to him to imply a greater approval than he 38 was willing to bestow on the arrangements to which his Motion referred, for he believed them in some respects imperfect and defective. He objected to it still more since he had heard the noble Earl's speech, because he was in favour of a continuance of the system of transportation to a much greater extent than he believed to be desirable, or, in the present circumstances of the colonies, to be either politic or just. He had not much to say with respect to the very able speech of the noble Earl (the Earl of Aberdeen) below him, because in many points of it he agreed, and he had embodied in his Resolutions the principles on which he agreed with him and his noble Friend on the cross benches. He also was of opinion that for the graver offences, and to a limited extent, the punishment of transportation ought to be retained. He agreed, also, that many of the evils which formerly attended transportation had been much mitigated by the reformatory process of punishment which convicts underwent previous to their being sent out of the country. He also agreed with his noble Friend as to the necessity of the interference of Parliament upon this question; it was quite necessary there should be some alteration of the law, because transportation could not be carried out to the extent the law authorised; and that was an additional reason for his not concurring in the Motion of his noble Friend, because it seemed to him to point to an inconvenience which was not the real cause of the difficulty, and laid the blame not where he thought it was chiefly due. He believed the chief blame that attached to the present and to former Governments consisted in their not having duly availed themselves of the great mass of information which had resulted from a variety of successful experiments that had been made, and which might have enabled them to establish a system of secondary punishment equally applicable to the wants and requirements of our criminal law, and whether the convicts submitted to it were to be discharged in this country or in the colonies. His noble Friend seemed to think there was something unfair in his proposing these Resolutions as an amendment upon his Motion. He was aware that these Resolutions would have the effect, if adopted, of putting aside the Motion of his noble Friend; but that was the purpose for which he proposed them, and, as he had already stated, his object seemed to him to be one of greater importance than that contem- 39 plated in the address of his noble Friend; for he felt that if he should persuade the House and the Government to vote for his Resolutions, they would by that vote incur an obligation of immediately devoting their attention and inviting the attention of Parliament to some large and comprehensive measure for extending the means of secondary punishment in this country. There were one or two observations of his noble Friend which were partly answered by the noble Earl who had just sat down; and he did not know that he need further refer to them except to say, that if there was so great a danger as was supposed in discharging convicts who were, by his noble Friend's argument, so far reformed as to be fit and useful members of society in the colonies, what did his noble Friend say to that much larger number of convicts, equally criminal, who were discharged every day in this country after three or six months, or perhaps two years' imprisonment? He would now state the reasons why he thought it would be wise of the House to adopt some such Resolutions as he had proposed. What had been all along the great objections to transportation? His noble Friend had never once alluded to them. He seemed to take for granted that there were no authorities worth attending to, no opinions of any weight in that House, or in the country, that were opposed to transportation as a system. But the principal objection to it was one that he had often heard most ably urged in that House—namely, the demoralising effect of sending any great number of criminals, and turning them loose in a young colony; and when they considered the great and growing importance of our Australian Colonies, and the great political influence they were very likely to exercise over a large portion of the human race, it became doubly important to raise, instead of degrading the moral and social tone of that portion of the Empire. But it had also been held that transportation had no reformatory effect on the prisoners themselves. Under the old system there was certainly no reformatory influence exercised over them before they left home; and during the voyage nothing could exceed the disgraceful and painful state of intercourse between the convicts. On their arrival they were employed on the roads or public works, or taken into private service, unreformed and hardened criminals; and, whatever might be the truth of the statement quoted by the noble Earl, he was 40 satisfied it must apply to a very limited number, who had been placed under most favourable circumstances, and who were remarkable exceptions. Certainly the evil was less when the number of convicts sent out bore a small proportion to the population; and he might say that he was by no means prepared to recommend the entire abolition of transportation; and he admitted that the system of sending out convicts with tickets of leave after imprisonment and penal labour in this country, was an excellent system. But he thought there should also be provided in the colonies prisons of a similar character to those which he thought there ought to be in this country, where a corrective influence should be applied to the prisoners, with the opportunity of relaxing the severity of the punishment, and combining with it labour that would be beneficial to their health, bodily and mental, and enabling them to undergo a long period of punishment. The next subject of his Resolution related to additional means of secondary punishment. This subject had absorbed a large measure of attention in this and other countries. If they went back to the time of Howard, and observed what he recommended, and what his disciples attempted to carry out at the end of the last and beginning of this century, they would see that his idea of secondary punishment very much accorded with the best modern notions of it. There were two great principles which he thought were laid down more or less clearly by all who had paid much attention to this subject. One was, that, in order to render punishment in any way reformatory or useful, there should be a separation of prisoner from prisoner; the other, that they should receive moral and religious instruction. It had been said that the legitimate object of punishment was to deter from crime; but he would rather say that its true object was the prevention of crime; and presently he would endeavour to prove that by a happy coincidence and by a discovery of one of those wise laws by which our Almighty Father governed mankind, the system which was most calculated to deter from crime was found to be also that which afforded the most favourable opportunity for the moral and religious improvement of the criminal. He knew it was difficult to make some persons believe, not the probability, but even the possibility, of effectually reforming convicts. Many statesmen, reformers of our institutions, and men who had had great experience in the treatment of criminals, were extremely 41 slow to believe it: but that was not the opinion of the great and good man to whom he had already alluded. There were also other excellent and benevolent individuals, such as Mrs. Pry, Sarah Martin, and others, in our own times, who were of a contrary opinion, and who visited prisoners in some of the worst and least regulated prisons in this country, and whose visits had been received with feelings of gratitude, and with eminent success. It was in 1821 that the attention of Parliament was first called to this subject by Sir Robert Peel, who introduced an Act which long regulated our prison system. This enactment, though sound and good in some respects, nevertheless contained many faulty provisions. At a subsequent period public attention had been a great deal turned to those most important and interesting experiments which had been made in prison discipline in the United States, and a great mass of information had been collected, throwing a great deal of light upon the subject. In the Report of the Committee of their Lordships' House which was made in 1835, two important points were recommended—one was the abolition of the hulks, and the other was some special provision for that which did not then exist, and which now only existed to a very small extent—the establishment of some provision for the punishment and reformation of juvenile offenders. Another great improvement that had been recommended and adopted was the appointment of inspectors of prisons; and another the passing of an Act of Parliament to secure uniformity of prison discipline. In the same year, he believed, a very great accession of information was derived from the report of his late friend Mr. Crawford, who had been sent over expressly by the Government to inspect and report upon the prisons of North America, particularly with reference to the relative merits of the separate and the silent system. Mr. Crawford made a most able report upon the effects of the silent and separate systems; and that report entirely convinced him of the advantage of a strict system of separate confinement, of which he had ever since been the advocate. The result of the report was the establishment of the model prison at Pentonville, which was conducted on the separate system. What was the result of that experiment? It appeared from the reports of the Pentoriville Commissioners, after a careful consideration of all the facts recorded by the different officers, that the operation of the 42 system had been eminently conducive to the moral and religious improvement of the prisoners, while, at the same time, it exercised a most decidedly deterring effect on the population out of doors. The last report of the Commissioners stated that a joint consideration of the favourable and unfavourable circumstances seemed to demonstrate a most beneficial general result. He would read to the House an extract from the last report of the Commissioners, which was signed by the Earl of Devon, himself (the Earl of Chichester), Sir William Molesworth, and others. They said—We conclude these general observations by a remark suggested by the joint consideration of the favourable and the unfavourable circumstances mentioned in these reports. These appear to us to demonstrate that while the discipline and instruction of Pentonville are not in all cases effectual in preventing the exiles from relapsing into crime when exposed to severe trials and demoralising influences, by far the greater portion of these persons have become useful and valuable servants, superior, as we are told, to the average of free labourers. We regard this view of the subject as highly encouraging; for it seems to prove that if this system were generally introduced, a large proportion of our convicts would be qualified, on their discharge, to occupy an honest position in their own or in any other country. And, if so, we believe that under ordinary circumstances there would seldom be wanting motives of self-interest and benevolence which would induce persons to afford them that employment which will enable them to become useful and exemplary members of society.The great difficulty with respect to the convicts sent out to the colonies was the means of conveying to them adequate religious instruction and influence. When a prisoner, on the other hand, was discharged at home, the governor and chaplain of the gaol knew where he was going to—he was watched by those who knew him—and whether he went to his own village, or to some other, he was almost sure to be kindly treated by the clergyman of the parish, and to be brought under the continued operation of those religious influences to which he was subjected while in prison, and which were the great safeguard against his relapsing into crime. The Commissioners, in their report, add—It seemed the most difficult thing in the world to convince persons that the reformation of convicts was possible; but the reports which were made upon the conduct of the prisoners sent out from Pentonville to the colonies were almost uniformly satisfactory, except in the case where the men had been mixed with other convicts. The same system was pursued in other prisons; and the chap- 43 lains of Wakefield and Portland prisoners, and the surgeon superintendents who had charge of the prisoners on their voyages out to the colonies, agreed in reporting that the greater part of the convicts who had undergone the discipline of separate confinement, accompanied by religious instruction, were far better than the ordinary class of emigrants, and were in fact examples of good conduct. He had seen a letter from a surgeon in the East India Company's service, who, having had occasion to visit Van Diemen's Land for his health, had, at the request of his friend, the chaplain of one of our prisons, inquired into the conduct of a certain number of convicts who, having passed through that prison, and the public works at Portland, and having been transported to that colony, now held tickets of leave there. Out of a list of more than ninety prisoners, this gentleman found upon inquiry that only six had turned out positively ill; some of the others were only "middling;" but the rest were going on exceedingly well, and some of them behaved in a most exemplary manner. He (the Earl of Chichester) could mention numerous instances of equally complete reformation in this country. The noble Earl (Earl Grey) who had brought forward this Motion had referred to the demoralising influence exercised by returned convicts in the neighbourhoods in which they settled. But these were men who had been under the old system, and had never been subjected to the reformatory influences which were at present employed. With regard to the reformation of offenders, he might also refer their Lordships to the success which had attended the institutions established for their treatment at Mettray, and other establishments, one of them in the neighbourhood of Rouen. He had himself visited, and had been exceedingly pleased with the conduct and demeanour of the inmates; and upon inquiring of the persons in the neighbourhood what became of them after they left the establishment, he learned that they had no difficulty in finding employment, as they were considered to be bettor behaved than the rest of the population. To return, however; again to the case of the transported convicts, he might refer to a letter which he had recently seen, from a gentleman in Van Diemen's Land, who had a good deal to do with the ticket-of-leave men, who were sent out after passing through Pentonville or other similar prisons, and subsequently through Portland; he wrote most favour- 44 ably with respect to them, and stated, indeed, that their conduct would stand comparison with that of any of the working classes. These things proved not only that these men were capable of reformation, but that the particular system under which reformatory means were now applied, first in our separate prisons, and subsequently at the public works at Portland, was eminently calculated to produce the desired effect. With such evidence before us, he contended that the problem of secondary punishments was no longer a difficult one. We had clearly only to extend those institutions, and the operation of that system which already existed. We might, indeed, be called upon to furnish large funds for the erection of additional prisons; but the system on which they should be conducted had, he believed, been settled by the eminently successful experiments to which he had referred. In further evidence of the satisfactory effect of the separate system as carried out in England, he might refer to the opinion in its favour of a distinguished medical gentleman from Boston. This gentleman told him (the Earl of Chichester) that he had been all his life writing and speaking against the separate system as it was then carried out in America, believing it to be inconsistent with physical and mental health; but he added that the regulations of Pentonville met every one of his objections. In fact, the separate system had been modified in America, and was now in accordance with that pursued in our prisons. What was wanted was, he repeated, such an extension of our present prison system as would enable us to meet the difficulties which were attendant upon carrying out transportation to the extent which had hitherto been the case. That extension was desirable not only in order to meet these difficulties, but because the system itself had been found effective as a secondary punishment both in deterring from crime, and in reforming offenders, and whether followed or not by transportation. He quite admitted, however, that it was desirable that there should be some alteration in the law; for it was most undesirable that there should be any doubt as to whether the sentence which was passed upon a criminal would be carried out. He, however, mainly desired that the attention of the Government and of the Parliament should be directed to the necessity of immediately extending the means of secondary punishments, and thus relieving the public anx- 45 iety upon the subject. The noble Earl concluded by moving an Amendment as follows:—To leave out from 'That' to the end of the Motion, for the purpose of inserting, Whilst in the opinion of this House it is expedient to retain the punishment of transportation for some of the graver offences against the law, it has become necessary to restrict such transportation to a few only of the Colonies, and to places which, from their limited extent or population, are at present incapable, without prejudice to their own social condition, of affording employment to any considerable number of discharged convicts.'That it has, therefore, become the duty of Parliament to adopt immediate measures for providing increased means of secondary punishment in this country.'That such secondary punishment ought to be both in kind and duration sufficiently penal to exercise as deterring an influence as the punishment of transportation, and at the same time of so reformatory a character as to afford a reasonable hope that the convicts who undergo it will, on their discharge, become useful members of society, and qualified to obtain employment either in this country or in the Colonies.'
§ The EARL of DERBY
said, the noble Earl who had just moved the Amendment had entered into a very clear and detailed statement of the course which Parliament had pursued during the last few years with regard to the subject of secondary punishments. He had also favoured the House with a statement of his own views on that important subject, and he was sure every one would admit that no person was better qualified than the noble Earl to speak on the question of transportation, and on the whole subject of secondary punishments generally. But he hoped the noble Earl would forgive him if he said, that in the greater portion of his speech he had completely given the go-by to the subject under discussion, for the Amendment he had proposed gave the go-by to the Motion of the noble Earl on the cross-benches (Earl Grey). He could not, for his own part, see that the Motion of the noble Earl on the cross-benches, and the Amendment of the noble Earl (the Earl of Chichester), had more than a very slight relation to each other, insomuch that he could see no reason why any one who agreed with the Amendment should not agree also to support the Motion. He was anxious, therefore, to say a few words, not presuming to enter upon the large and general question of secondary punishments, upon which he was incompetent to speak with authority, but to state the reasons why, if the noble Earl (Earl Grey) pressed his Motion to a division, he would see it his duty to give 46 that Motion his support, without giving an opinion either for or against the merits of the Amendment. The noble Earl at the head of the Government had told them that up to the present moment this question of transportation had always been considered by their Lordships entirely without reference to party and political considerations. In that statement he most readily concurred, and he was happy to say that he saw no appearance of a departure from that general and salutary rule on the present occasion. He thought that if the noble Earl looked at the state of the House, he would not see any indication of a great political or party movement, and still less would he see any great probability of one of those sudden and unexpected combinations which sometimes took place, as there was not much likelihood of a very effective or permanent combination between the noble Earl (Earl Grey) and his friends, and those who sat on the Opposition side of the House. Much as he respected the abilities and eloquence of the noble Earl, he and the noble Earl had had a rather long course of political opposition to each other, and there were so many subjects on which their views were altogether at variance—and even with regard to this question of transportation, that he did not think the mere fact of his agreeing with him as to the substance of his present Motion should lead to the inference that upon this question he was about to act in variance from the principle which the noble Earl at the head of the Government said had always hitherto been adhered to—of separating it from party feeling. In truth, there was no political or party interest involved, except any interest in the opinion the noble Earl on the cross-benches had intimated, that the course pursued by the Government with which he (the Earl of Derby) was connected, was more prudent and discriminating than the course pursued by the present Government; and he trusted the noble Earl at the head of the Government would think that there was nothing unnatural or unreasonable in his concurring in that opinion with the noble Earl, and in their noting their mutual approbation of the course which the Government with which he (the Earl of Derby) was connected pursued. He had heard with great satisfaction one statement that was made by the noble Earl at the head of the Government—that it was by no means the intention of the Government to discontinue or abolish altogether the system of transportation. 47 He heard that announcement with great pleasure, for it relieved his mind from much anxiety caused by something of a different tendency that was uttered by the noble Duke the Secretary for the Colonies, because that noble Duke went so far as to say, that not only was transportation to Van Diemen's Land to be brought to an absolute stop, but that it was impossible not to see that the portions of the colonies that would consent to receive convicts would be few in number, and that with regard to Western Australia—the only colony in that quarter now willing to take convicts—it would be only available for a short time, and to a limited extent. The impression produced on his mind, and he was sure on that of their Lordships, by these statements was, that the Government had come to the conviction that, as a portion of our system of criminal punishments, transportation was at no distant period to be discontinued, not only with regard to Van Diemen's Land, but that altogether it was to cease to form a portion of our penal system. He had heard, therefore, with satisfaction the explicit declaration of the noble Earl that that was not the intention of the Government, and that they still intended to retain as a portion—and an effectual portion—of our criminal code the punishment of transportation. He had also heard with much satisfaction two other declarations on the part of the noble Earl at the head of the Government: first, that it would be necessary, in his opinion, while we continued the punishment of transportation, to limit it within narrower bounds than hitherto, or than it now theoretically presented itself; and, in the second place, that he was of opinion that changes in the law were imperatively called for, by which the punishment of transportation should be nominally, as it was really, confined to a smaller number of offences; and that in the case of all persons sentenced to transportation, it should be distinctly understood that the sentence of transportation would really and truly be carried into effect. He had felt for many years of how great importance it was that persons in the position of criminals, whether they had been convicted or not, should be well assured of the certainty of the punishment that awaited them, and that the penalty attached to their crimes was not announced as mere brutum fulmen, but that when pronounced against them it would really be carried into effect. He agreed with the noble Earl, that there was a con- 48 siderable number of offences to which transportation was now applied by law, but in which in very rare instances it was carried out; and he believed that a diminution of the number of offences to which it was thus nominally applied would materially diminish the difficulties which surrounded the question, and give greater certainty to the administration of the law. The speech of the noble Earl who had just sat down went much further than his Amendment would have induced him to suppose he desired to go in discountenancing and disparaging the practical advantages which were derived from the system of transportation in comparison with other systems of secondary punishment, to which he attached exclusive importance. The noble Earl seemed to be of opinion that transportation was a punishment which ought to be confined to those who were absolutely irreclaimable, and that the reformatory system should be applied as an instrument of secondary punishment in this country. But he (the Earl of Derby) would humbly express his opinion that, with regard to a considerable number of convicts, after a system of reformatory discipline had been applied here, there was much greater chance of their permanent amendment in life through the medium of transportation than from the best effects of the reformatory system in this country, to be followed by a return to their former associates, their former habits, and their former mode of life. It was not because he doubted the efficiency of the reformatory discipline, but because physical circumstances in the one case were much more favourable than in the other, and better adapted to the development of any good that might be in a man, and to the repression of evil habits that otherwise might be repressed for a time, but which would be in danger of breaking out again, on the return to former scenes. So far, therefore, from wishing to restrict transportation solely to those with regard to whom no hope of reform could be entertained—still less to the most aggravated cases—he thought there was a class of persons to whom, after the reformatory system had been pursued in this country, transportation to the colonies might be of signal advantage—not to themselves only, but—what was by no means a secondary question—with advantage to the community to whom they were sent. He was desirous to limit the amount of transportation by withdrawing from it some of those offences to which he had already alluded; 49 but, at the same time, he was not persuaded that transportation to a very considerable extent might not be available as a most useful penal sequence to a reformatory system of punishment, and that it might not be advantageous both to the person himself and to the society that received him. On the other hand, he must say, with regard to Van Diemen's Land, that he thought the feeling in the colony had been so great, and was so rapidly increasing upon this question, that the time had arrived when they should be looking to the total discontinuance of transportation to that colony. He could not agree with the noble Earl (Earl Grey) in what he said as to the causes of that feeling. It might have been encouraged by the countenance given in this country to the notion that a convict colony must necessarily be a depraved colony. He thought that was an erroneous supposition; but, from whatever cause the feeling had arisen, it was so strongly fixed in the minds of the people of Van Diemen's Land, that, while he would not say they had not the right—while he would not say they had not the power—he would question the policy of continuing for any long period to send convicts to that colony. He thought, therefore, that the time was not far distant when transportation to that colony must cease. They had given to Van Diemen's Land a Legislative Council—an independent organ of its own—and from the period you granted them that Legislative Council you must regard it as a legislative body which represented the interests of the colony, and as the organ for expressing the feelings and sentiments of the colonists. Though he did not place so high as the noble Earl had in some cases done in practice the right of the mother country by her own authority to overbear the feelings and even the strong determination on the part of the colonists, he still did not question the right; but yet, when so strong a feeling pervaded the whole colony on such a subject as that of the admission of convicts, he thought it would be most unwise to incur the risk of repeating in Van Diemen's Land the scenes they had witnessed with great regret in other colonies on this very subject. Therefore, he thought they were bound to look to a discontinuance of transportation to Van Diemen's Land as absolutely necessary. Consequently, the field of their operations, and the field that would still be available for the exercise of the punishment of transportation, would be 50 limited to an extent that would be matter of inconvenience; and he regretted also that it would greatly diminish a large portion of the exercise of the reformatory principle that had been applied to convicts. Being of that opinion, and seeing that the field available for transportation would be subsequently narrowed, and thinking it necessary and incumbent on them to make immediate preparation for the contingencies that were likely to occur, he did not the less concur with the noble Earl on the cross benches (Earl Grey) in expressing regret at the precipitate manner in which the Government had given effect to their intentions in a matter which required much gravity and deliberation, and which he thought would have been much more safely, if more gradually carried into effect—intentions which, undoubtedly, he and his Colleagues entertained, and fully intended to carry out, but the full execution of which they were disposed to postpone till they had made those arrangements that were necessary to carry them with judgment into effect. He was far from denying to the Government that which the noble Earl opposite claimed for them, that in what they had done they by no means intended to pass over the legal and constitutional rights of the Legislature—that they had taken no steps which infringed on the rights of Parliament, or which went beyond the limits of that discretion that was vested in them as the advisers of the Crown; but, on the other hand, if they had taken no actual step—if they had not overthrown a state of things that had been sanctioned by Parliament after much deliberation—they had at least taken a step that rendered the alteration of that system inevitable, without at the same time giving Parliament the opportunity to examine, or themselves very clearly having before them, the full details of the plan by which they intended to supersede the great machinery now in use. It would be on every account undesirable to enter into any detail of what were the views or intentions of the late Government on this subject; but they would, undoubtedly, not have desired to carry out their views upon this question unless they had seen before them a mode which would have enabled them to come to a satisfactory conclusion regarding it. They did not undervalue the importance of the subject. They did not think it was possible that a change could be immediately carried into effect, and they advised the paragraph in the Queen's Speech 51 to intimate to the people of Van Diemen's Land their willingness to meet their desires, and at the same time to indicate that the views of the Government must receive the sanction of Parliament before they took upon themselves to effect so great a change as to stop transportation to Van Diemen's Land. What had been stated by the noble Earl on this and former occasions as to the readiness of individuals to receive the convicts that were sent out, led him to think that a desire to meet the circumstances of the colonies, by making an alteration in the laws applicable to our own criminal code, would have been met by the colonists in a friendly spirit—that that assurance would have conciliated the colonies on the ground of principle, and to the continuance to a limited extent of the transportation of a description of convicts whose removal would have been a relief to this country; while their disposal in Van Diemen's Land would have been satisfactory to the colonists. There was no subject on which it was more important that Parliament and the Government should avoid hasty and ill-considered changes than on this very system; and there was no question in which, acting on the impulse of the moment and the information of the moment, Parliament and the Government had sanctioned more sudden changes than on this question, and with more disastrous results. He could not but think, going back to a very considerable period, that chiefly through the instrumentality of a Committee of the House of Commons, Parliament took a very hasty step in deciding definitively and absolutely against the system of assignment of convicts. The arguments against that system were, no doubt, very strong; the prejudices against it were still stronger; and men whose opinions were of great weight gave the influence of their names and authority, not to an amendment of a vicious system, which was yet capable of being amended, but to the absolute condemnation of a system which, with all its theoretical faults, all the inequality of sentences, as between one individual and another, yet really did more, and, if properly managed, was capable of doing more, in the way of reclaiming convicts and restoring them to the habits and decencies of social life, than any other system which deprived the convicts of all social intercourse with those who were uncontaminated with crime. He thought that was the first error committed on this subject. The next step was one which bore an ominous analogy to the step 52 now unfortunately taken by Government. He alluded to the declaration of Lord John Russell in 1840, that from that time transportation to the greatest of the Australian colonies should cease. The result of that sudden change, unaccompanied by any preparation for meeting the vast increase that would be thrown on a single spot, was to throw the whole transportation into the single island of Van Diemen's Land, which then possessed but a small amount of free population. The noble Earl at the head of the Government was in error in supposing that the system called the "gang" system was introduced by him (the Earl of Derby). When he took office in the Colonial Department he found it had been introduced by his predecessor, Lord John Russell—or rather he had laid down some general regulations for the purpose of carrying out his declaration of 1840, though no machinery for carrying it into effect had been framed. It was his (the Earl of Derby's) duty, in conjunction with the right hon. Gentleman who was now at the head of the Admiralty, (Sir James Graham), to bring into shape, with great pains and labour, and with the assistance of a valuable officer in the Colonial Office, Mr. Montague, the system of gangs of which the outline had been left by his predecessor. He did not think, notwithstanding the difficulties which this sudden influx of convicts into Van Diemen's Land caused, but that the system would have worked beneficially and advantageously if it had not been for two other events which concurred with this sudden influx of convicts, with the worst of all preparation to meet it. The first of these was the resolution of the House of Commons, taken precisely at the same time that Parliament stopped transportation to New South Wales, which deprived them of the other source of disposing of convicts by imprisoning them in the hulks the resolution that persons sentenced to transportation should be actually transported. The other circumstance was the great commercial distress which, in 1844, fell upon the Australian colonies, and especially upon Van Diemen's Land. The system, however, had not been established—it had not been brought to bear, when at once transportation ceased to New South Wales, and the consequence was, that an enormous influx of convicts was thrown into Van Diemen's Land. The result of these combined causes was, that persons who went from this country to the colony could no longer find the means of employment there; and the 53 men entitled to conditional pardon were thrown back upon the Government works, and were placed in a worse condition than those who were not so much entitled to favour. It was then thought desirable to establish a new penal colony in the northern parts of Australia; and it was proposed to establish there a system of transportation on a moderate scale—not to make it so much a place for transportation as to make it a place of refuge, where convicts who had gone through their period of punishment might remain under Government surveillance, but being otherwise free men. This system was taken up and adhered to by his right hon. Friend the present Chancellor of the Exchequer during the short period that he held the seals of the Colonial Office. But, again, he was sure the noble Earl on the cross benches (Earl Grey) would forgive him for saying again he thought there was a perceptible change. The noble Earl had not been in office many weeks—he believed not many days—when he put a sudden and immediate stop to the formation of this new colony, and signified his intention not only to suspend transportation, but to discontinue, according to the view which he entertained—and with regard to which he must do the noble Earl the justice to say there had been much and great misrepresentation—to discontinue transportation altogether. He thought now, however, that the noble Earl was fully justified as to the principle of his plan, by the results which had taken place. The noble Earl went on the principle that the reformatory system, combined with transportation, could be better carried on in this country, and under the eye of the Government, than it could be in a distant colony. The working of that system did credit to the noble Earl's sagacity and prudence. It had worked, upon the whole, very well; it might be capable of amendment, but he knew that, in many cases, it had produced striking and remarkable reforms. Now, after pointing out to their Lordships these three or four instances of important and sudden changes that had been made, and all of them carried out at great inconvenience, caused by their suddenness, he could not but regret that Her Majesty's Government should now have added one more instance of sudden change and alteration, producing an impression upon the public mind that the alteration would be greater than was actually contemplated. He contended that they ought not to abandon one 54 system till they had a substitute provided. He would not dwell on the individual injustice that might have been done, for he was sure the Government would do all in their power to diminish the amount of that injustice in the case of those whose time of conditional pardon had already arrived. He must remind their Lordships that when the present system was introduced by the noble Earl, he pointed out to him that he was only postponing the evil day, and delaying the period when a pressure would come upon them—when the convicts, having gone through the preliminary trial, would be entitled to be sent to the colonies. He asked the noble Earl if that period had not arrived? It would be necessary for the Government to apply the utmost diligence to mature a plan for the discontinuance of transportation to Van Diemen's Land. With respect to the general views enunciated by the noble Earl at the head of the Government, he had little fault to find with them; indeed, he concurred in much that had fallen from him. In preparing the details of their plan, the Government would have an opportunity of consulting the same able and intelligent officers as were consulted by the late Government; and from some expressions which fell from the noble Earl, he inferred that there would not be much difference ultimately between the views of the present and the late Government as to the objects to be attained—namely, limiting the amount of transportation, and defining more minutely the offences to which, not only by law, but by practice, the punishment of transportation was to be applied. It would also be necessary to provide out of this country, and at some distance from it, some locality in the nature of a prison for those persons, with respect to whom there was little or no hope of amendment. Persons of this description should not be turned loose in a colony to contaminate society, but should rather be sentenced to imprisonment, oven for life, not imprisonment within the walls of a prison, but within a narrow space, and under the close surveillance of the Government. This punishment would, practically, be a substitute for transportation. Seeing that the difference between himself and the present Government on this question appeared to be narrowed to almost a single point, he must confess it was with regret he had seen the Government take a course which was inexpedient and inconvenient, and was likely to involve themselves and the coun- 55 try in difficulties and embarrassments, and which, besides, had the appearance of being adopted in deference to the popular clamour raised against transportation in Van Diemen's Land. It was to be regretted that this course had been taken before the Government had matured and laid before Parliament a plan, by which they intended to work out this large alteration in the system of secondary punishment. He complained that Parliament should have taken this irrevocable step before Parliament had had an opportunity of consulting with and advising the Government with respect to the system to be substituted for transportation, which ultimately they must be called upon to do. The question would be more likely to be satisfactorily settled by a measure adopted after due consideration and with the acquiescence of Parliament. He concurred with the noble Earl (Earl Grey) in thinking that the Government had acted imprudently and hastily; and he was willing to signify that opinion; but he was not desirous of serving any party purpose or casting any slur or censure on the Government. Having given this explanation of his motives, he should feel compelled to vote for the Motion.
§ The DUKE of NEWCASTLE
said, the speech of the noble Earl, distinguished as it was by great moderation of tone, must have removed the impression, if any such impression prevailed, that party motives influenced the discussion of the important subject of transportation. The noble Earl had expressed his intention of voting with the noble Earl who had brought forward this Motion, principally because of the approbation the noble Earl (Earl Grey) had expressed of the course which it was the intention of his (the Earl of Derby's) Government to pursue. The noble Earl, at the same time, said he would abstain from stating what that course was, because he thought it was unnecessary to do so; but he could assure the noble Earl he had only been able to obtain a knowledge of his intention from the not very definite words in the Queen's Speech, and the certainly not more definite words in the speech of his noble predecessor in office. Passing from the reason why he voted for the Motion, the noble Earl proceeded to express a mitigated disapproval of the course which Her Majesty's Government had taken in this matter. He said mitigated disapproval, because the noble Earl had abstained from the indignant tone which characterised the 56 speech of the noble Earl who brought forward this Motion, who told them it was distinctly in violation of an Act of Parliament.
§ The DUKE of NEWCASTLE
utterly denied that the present Government had done anything violating either the letter or spirit of the law. They had acted on the power which the Crown had invariably exercised, of deciding, by Orders in Council, to which of our colonies transportation should take place, and if in any instance it should be discontinued; and the noble Earl (Earl Grey) must be cognisant that on more than one occasion an Order of Council making a colony a convict colony had been repealed—had been reissued, and again repealed. It was not unimportant to consider for a moment how transportation had been carried out by former Governments. For a great many years sentences of seven years' transportation had never been carried out at all. Convicts sentenced to seven years' transportation were sent to the hulks, and at the expiration of two or three years released and sent to their homes. That was the way the responsible Ministers of the Crown had acted. But, more than that, they had not only taken upon themselves to mitigate punishments inflicted by the Judges, but to increase them. Since the judicious alteration introduced by the noble Earl abolishing the system of the hulks, persons sentenced to seven years' transportation were kept one year in separate confinement, a year and a half on public works, and afterwards transported to the colonies. The effect of the alteration, for which the noble Earl was mainly responsible, was, that persons sentenced to seven years' transportation had practically been transported for life. The noble Earl stared, but that had been the practical effect; for during the time the noble Earl was Colonial Secretary, he made no arrangement for bringing back those sent to the colonies for the completion of their sentence of seven years' transportation. But what had the present Government done? The only step they had taken was in strict accordance with all preceding practice; they had added one more to those colonies which had been emancipated from the convict system; they had done, with respect to Van Diemen's Land, what their predecessors had done in the cases of New South Wales and the other Australian Colonies. 57 The noble Earl had reverted to those observations which he made on a previous occasion, when he said he believed the cry of anti-transportation in Van Diemen's Land was a weak one, and the character of the opposition to it a sham. He felt it due to the colonists of Van Diemen's Land, who had appealed to Parliament and the country to relieve them from what they felt to be an intolerable grievance, to state he held in his hand a catalogue of a number of petitions which came over by the last mail, and which either had been, or were about to be, presented to the other House. It appeared that these petitions, whatever might be the case with others, were not signed by persons likely to be actuated solely by selfish motives. They were forty-two in number, and came from the religious congregations throughout that island; not from one religious congregation, but he might say from all. There were nineteen from Episcopal bodies, eight from Presbyterians, seven from Wesleyans, two from Baptists, two from Congregational, one from a Free Church, one from an Independent, one from a Roman Catholic, and one from a Jewish body; and they were signed by each individual clergyman or minister, by the churchwardens and others, testifying to the fullest extent to the influence and respectability of those whose names were appended. He could not but think that if this were a sham, parties like these would not be participators in it. The same views were expressed in the petition presented by the most rev. Prelate a few evenings ago; and he would not trouble their Lordships by reading any extracts from another petition from 2,340 gentlemen, agreed to at a public meeting, to the same effect. The noble Earl had on a previous, if not on this, occasion, referred to the agitation being different from the agitation ill our North American colonies, when they threw the tea proposed to be taxed into the harbour; whereas in Van Diemen's Land they gladly received the convicts sent to them. In the first place, to carry out his theory, the noble Earl must prove that the majority of the people of Van Diemen's Land, who had protested against the practice, were insincere, and that it was not a comparatively small minority who were anxious to have convicts sent out. The colonists objected to these convicts being sent to them, not merely upon moral but upon financial grounds—that whilst it was continued they were prevented providing 58 for themselves that amount of free labour which was necessary for their future welfare. There was a time when 2,000 or 3,000 convicts would be waiting for a whole year at Hobart Town; but now, however, they were hired as soon as they arrived. The scarcity of free labour, which, whether rightly or wrongly, the colonists assigned to the continuance of transportation, offered the greatest temptation to the minority to adopt a course which many might not believe to be morally wrong, but ultimately prejudicial to the colony. With the present high prices there of wheat and flour, it was natural they should supply the demand for labour without asking where it came from; but that was no reason why the noble Earl should draw a conclusion unfavourable to the sincerity of the colonists who opposed transportation. The noble Earl, it seemed to him, had cut away from under him the ground on which he would continue transportation to Van Diemen's Land; for he could quote to him two pages in his own book, giving a history of the colonial policy under Lord John Russell's Administration, in which, in the broadest and clearest terms, the noble Earl himself laid down the maxim, "that the voice of the representatives alone ought to be the guide as regarded convict establishments." He entirely concurred with him; and the Legislative Assembly of Van Diemen's Land had unanimously, as regarded the elective members, pronounced against the present system, and called on the Government to do by Van Diemen's Land what they had previously done by New South Wales. Whilst on this subject, he might refer also to the general principle laid down by the noble Earl (the Earl of Derby) in his despatch in 1842, when he objected to give a representative constitution to Van Diemen's Land, on the express ground that if it were given, it would be impossible to maintain the system of transportation. That was the sound and statesmanlike view taken by the noble Earl in 1842, and he believed it was borne out by all experience since. He (the Duke of Newcastle) believed that if you intended to continue transportation for any time to a colony, you ought not to give it representative institutions, because he was convinced that representative institutions and the convict system were totally and entirely incompatible with one another. That was not all with regard to the colonial aspect of this question. Even if they had the moral right to continue transportation 59 to Van Diemen's Land, were not other colonies affected by the continuance of that system? His noble Friend the President of the Council had on a former occasion referred to two colonial Acts of a very stringent and very extraordinary character, and he thought those Acts showed what Australia and New South Wales felt as to the influx of convicts into those colonies. There was no vain imagining on their part. Since the discoveries of gold, the temptation had been so great that the number of convicts absconding had much increased. He held in his hand a return, which did not include any men having tickets of leave, nor a considerable number who were absent from the half-yearly muster, and were supposed to have left the colonies, nor the still greater number who went to the diggings and returned to the muster: but, nevertheless, for the first nine months of 1852, no less than 1,413 convicts had absconded from their employment in order to go to the gold diggings, and of that number 738 had been brought back, leaving the rest to be mixed with the uncontaminated free population, to say nothing of the additional demoralisation of the 738 by the further punishment they would have to undergo. He would not dwell any longer on that part of the subject, but he thought it right to state the reasons which had influenced Her Majesty's Government in coming to the determination at once to put a stop to transportation to Van Diemen's Land; and he could not better explain it than by reading a portion of the despatch he addressed to the Lieutenant Governor as soon as the decision of Her Majesty's present Ministers had been come to. After stating general concurrence in the views taken by Her Majesty's late Government as to the necessity of abandoning transportation to Van Diemen's Land, and after stating that Her Majesty's present Government had carefully considered the subject in all its bearings, the despatch proceeded—Considering that there will be much inconvenience in continuing to Van Diemen's Land, for a short but indefinite term, a system avowedly condemned for the future, by which course all social arrangements must be kept in an unsettled state; knowing also that a majority of the inhabitants of Van Diemen's Land, and almost the whole population of Australia, whose interests are deeply involved, are in favour of its discontinuance, and that the altered circumstances of Australia have wholly changed its penal character, Her Majesty's Government have come to the resolution at once to put an end to transportation to Van Diemen's Land.60 When it was once decided by the late Government, and naturally acquiesced in by the present Government, that transportation to Van Diemen's Land ought to cease, Her Majesty's Ministers felt that unless they were justified by great necessity at home, it was incumbent on them not to keep the colony in suspense; and there was the more reason for this, because the promise was of that indefinite character, that while some supposed it was intended to continue transportation for perhaps five years to come, others believed the colony would be immediately relieved from the grievance against which they had for years been struggling. The despatch of his right hon. predecessor (Sir John Pakington) stated that transportation would be brought to a close as soon as arrangements could be made; and the noble Earl opposite, and the noble Earl who had brought forward this Motion, had accused them of making this change before arrangements were made. If it were meant that they had not introduced Bills into this House for the purpose of making those alterations in the criminal law, and those changes in secondary punishments, in which it seemed the noble Earl pretty much concurred with Her Majesty's Ministers, undoubtedly those arrangements had not been made; but if it were meant that no accommodation had been provided for any extra number of convicts which might be expected in this country, in consequence of the impossibility of sending out the whole that were transported to Western Australia, which had hitherto been divided between Western Australia and Van Diemen's Land, then he would tell the noble Earl such was not the case, and that before this step was taken—before the despatch, a portion of which he had read, was written—Her Majesty's Ministers instituted careful inquiries, and came to the conclusion that it was not only practical and feasible, but that it could be done without any inconvenience whatever, and without any crowding of prisoners, or any alteration of that system of prison discipline which bad hitherto worked so well. If the noble Earl wished to know where this additional accommodation was to be found, he would state that it was proposed to remove 200 of the female convicts now in Millbank to the prison at Brixton, which would accommodate 700 persons. The removal of those 200, and other alterations in the prison at Millbank, would give accommodation for 400 additional prisoners. Besides that, 61 500 additional prisoners could be accommodated at Portland, which would be the full amount likely to be required; but in addition to which, accommodation could be procured for 1,000 more, by an arrangement in contemplation. He could see neither justice nor reason in the argument of the noble Earl, that because the Australian Colonies were originally founded by convicts, the mother country had an indefeasible right to send convicts there as long as it suited her convenience. Surely, as soon as a colony obtained a position which convict labour was no longer useful, but absolutely prejudicial, they had no right to force upon them a continuance of the system. To the other argument, that they had acquired the right, because they had spent so many hundreds of thousands of pounds in sending and maintaining convicts in Australia—it was a low view to make this a more ledger account; but even if we took this low view, his answer was that he believed they were amply compensated already, and would be still more so in the future, by the prosperity of those colonies, even though Government should cease to have the advantage of sending convicts to them; and he said, if that were the case, it was to their own interest to study the comfort and well being of that part of the Empire, by putting an end to the system of transportation to which such grave objections were made. It was hardly right to argue, as the noble Earl had done, as to what their Lordships desired for the colonies, and to suppose that they were the best judges of the interest of the colonies. How could their Lordships, sitting in that House, so far distant from the colonies in question, suppose that they were so well able to judge as those who had the opportunity of forming their opinions from personal experience of the effects of the system against which they protested? His noble and learned Friend near him (Lord Campbell) had on more than one occasion expressed his opinion as a Judge, of the importance of continuing the system of transportation, from having seen the effect produced on criminals when sentenced to that punishment—an effect far greater than by any other punishment. But with great respect for the noble and learned Lord, he attached more importance to the testimony of the governors and chaplains of gaols, who necessarily saw more of the prison effects produced upon criminals by the sentence of transportation. His noble and 62 learned Friend, when passing sentence of transportation, must know that in reality he was not sentencing the man to be sent out of the country; and assuming that culprits really did know the exact period and meaning of their sentence, how did, his noble and learned Friend know that the effect he had noticed was not produced by the prospect of the two years and a half probation before transportation? But supposing that were not so, he would ask his noble and learned Friend whether he did not think that in all probability, if Australia, with its gold fields, made such an impression on the minds of criminals, Pentonville, Portland, and Dartmoor would produce the same effect with the seclusion of the one, and the forced labour of the others? It had been stated, that the whole of the evidence before the Committee, presided over by his noble and learned Friend (Lord Brougham), was in favour of a continuance of transportation; but, on careful examination, he did not find that any general and sweeping opinion in favour of a continuance of transportation had been declared. The evidence rather seemed to show its applicability to particular crimes and particular criminals—such as the receivers of stolen goods. Although it was not the intention of Her Majesty's Government to abandon transportation altogether, as had been represented, but simply to abandon all except Western Australia, to forbear sending to Moreton Bay, or other colonies, and to abandon Van Diemen's Land, yet inasmuch as the abandonment of transportation to Van Diemen's Land must entail an alteration of the law, and a reduction of the number of crimes for which henceforward sentences of transportation would be passed, he thought it desirable to disabuse the minds of their Lordships as to the effects of transportation, and as to the effects which this limited abandonment of it was likely to produce on the criminal population, and the security of life and property. Upon analysing the evidence taken before the Committee to which he had referred, he found the late Recorder of London, Mr. Law, expressed an opinion in favour of transportation, solely in relation to the receivers of stolen goods. Mr. Davenport Hill, the Recorder of Birmingham, than whom no man was better able to form an opinion on such a subject, held exactly the same view. The Rev. John Clay, the chaplain of Preston house of correction, who had supplied 63 many valuable statistics as regarded crime and criminals in this country, said that transportation was dreaded chiefly by old men and women, and not by other classes. The Rev. J. Peile, chaplain of Reading gaol, said the dread of transportation was not great among the lower class of criminals; and the Rev. Mr. Osborn, chaplain of the house of correction at Bath, was of the same opinion. Here he had given from their Lordships' own blue book, which contained much most valuable information, the general tendency of which he admitted was in favour of the continuance of transportation—opinions which proved that it was suited to a certain class, and not for the general bulk of criminals. It was, in fact, mainly applicable to that class which was described in the evidence before the Committee by the rather strange and anomalous title of "respectable criminals." He was, of course, ready to pay every kind of deference to the opinions of a Committee of their Lordships' House on such a subject; but he certainly felt justified in remarking that six years had now passed away since this investigation was made. That, it was true, might be but a short time; nevertheless, in the course of it, great and important changes had been effected of considerable weight in the consideration of this question. It was impossible to read the ten conclusions of the Committee without being impressed with the fact that great changes had taken place—changes so material as to render them, under present circumstances, almost inapplicable. Among these changes he included the effect of emigration upon the rural population. Was there one of their Lordships who did not know that not six, but only three years ago, there was not a labouring family in any parish who would listen to the suggestion of emigration? or who, if he did, would think of going further than Canada? The greatest possible objection, especially on the side of females, was manifested against emigration; and even where the population was most redundant, it required all the exertions of the landlord and the clergyman to persuade the people of its benefits. But was that the case now? So far from its being the case now, there was actually a difficulty in retaining the labouring population in many country parishes. Salt water was no longer dreaded as it used to be; and so far from emigration being a terror to them, the labouring population now looked upon it as 64 an advantage to which they aspired, and to attain which they were constantly asking for assistance. Had not this change operated most materially to affect the question of transportation? Besides, since the Report of their Lordships' Committee, the evils which at that time attached to imprisonment had, to a great extent, been mitigated. Prison discipline had been greatly improved; new methods of dealing with juvenile offenders had been adopted; Parkhurst had been put into operation; industrial schools had been established; the education of those classes which usually swelled the numbers of the criminal population had been improved; and he hoped the improvement would go on increasing. But what were they afraid of, as regarded the increase of a convict population, in consequence of the abandonment of transportation? The noble Earl (Earl Grey) had upon a former occasion, stated that the result would be to let loose between 4,000 and 5,000 convicts upon the innocent better classes of this country before the close of the year. This calculation, he said, was founded upon the answer he then received from his noble Friend at the head of the Government; but he gave him (the Duke of Newcastle) credit for the correction that the whole number, supposing transportation to be entirely abandoned, which it was not about to be, would not amount to more than 2,000—
§ The DUKE of NEWCASTLE
said, it had never been intended, and there was no such idea, to abandon transportation to! Gibraltar and Bermuda.
§ EARL GREY
wanted to know whether the difference was made up by the number who would have gone to Australia from those places? For that purpose, there must be added to those transported from Great Britain and Ireland those who would be sent on from Gibraltar and Bermuda—not those sent to Gibraltar and Bermuda, but those sent from Gibraltar and Bermuda to Australia.
§ The DUKE of NEWCASTLE
could readily answer the question. He had already stated that, even admitting transportation to cease to the whole of Australia, the number left in this country among our own population would not exceed 2,000. In order to prove that, he would state the average of the convicts sent out in the 65 last five years. The average number of convicts sent from Great Britain and Ireland in the last five years was 1,945. That was all. Then the noble Earl asked that there should be added those who had been sent from Bermuda and Gibraltar. The noble Earl would probably be surprised to hear that in the course of the last five years there had only been an average of 100 convicts sent from Bermuda, and 100 from Gibraltar, to the Australian colonies. There was an annual number of vacancies in Bermuda of 400, and in Gibraltar of 200; yet the numbers which had gone from each of those prisons, for they were not strictly convict colonies, had only averaged 100 during the last five years. [Earl GREY: Hear!] He did not know from that cheer what point the noble Earl thought he had made. He could only say that, even if transportation were to cease at this moment to the whole of the Australian colonies, the total increase of criminal population poured upon this country, in addition to that afforded by the opening of the gaols on the expiration of sentences, would be 1,945 from the United Kingdom, and 200 from Bermuda and Gibraltar. But while arguing upon the supposed fearful consequences of this outpouring of convicts, let the House consider what was the case only six years ago, under the hulk system. The whole of the convicts then sentenced to seven years' transportation were sent to the hulks—a system universally admitted this evening to be one which demoralised instead of reformed the convicts, and trained them to vice instead of to virtue. At that time the whole number so trained to vice were thrown upon the free population of this country; but they never professed to suffer from it. But now, when they were threatened with a far less number, who were reformed by the improved system of prison discipline, combined with labour and separate confinement, introduced in 1846, they professed to believe the country would be demoralised. With the view, however, of disabusing the minds of some of their Lordships as to the fearful consequences that were to arise from any course likely to be taken by Her Majesty's Government on this subject, he would call attention to what was taking place at this moment with our convicts. He held in his hand an abstract of an official return, prepared by that indefatigable public servant, Mr. Redmond. Assuming that Western Australia would still take 1,000 convicts, looking to 66 the probable passing of measures by the Government for altering the law as regarded the punishment of crimes, and reducing the number at present sentenced to transportation and imposing imprisonment instead, what would be the proportion of criminal offenders to those who were now percolating through the population under the system at present prevailing? The total number of persons tried in 1851 was 27,560. Of these the total number sentenced to transportation was 2,895. The total number not disposed of by transportation was 25,058; but to this amount must be added one-third sentenced to transportation but never sent out of the country. So that not more than 2,000 were sent abroad in 1851. The whole of the remainder received punishment in this country, to be released at the expiration of their periods of punishment. Of the various classes of offences against the person, including murder, attempted murder, manslaughter, aggravated assaults, and so on, the total number of offenders was 2,318; of these, the total number sentenced to transportation was 174; but out of that number of 174, the whole number actually transported was 120. He should not follow the return further, because he thought this quotation would suffice to show how greatly exaggerated these apprehensions were; and that if they were prepared to continue to allow such an annual release in this country of this number of offenders, there could be but little to apprehend from so small an additional number remaining at home. What was the proportion of the number of convicts in Van Diemen's land at this moment? It was about one to three of the population; but in the course of the present year the greatest number here by any alteration in the law would be, compared with our own population, as one to 30,000. He could not help thinking that we had arrived at a period when the change contemplated by the Government might usefully be made—when we might with safety dispense to a great degree with the punishment of transportation, and take the care of our criminals upon ourselves, who had long reflected upon our ability to reform them, and whom we had hitherto shovelled out of the country. It was of the greatest importance that we should give our convicts useful employment, and not the miserable abortive system formerly adopted, of picking oakum and turning useless wheels, by which, he believed, not only no good was 67 effected, but that direct evil was produced. Instead of this, convicts would be set working for wages, which should be devoted, a part to their maintenance and a part to their support when released; so that they might be able to start themselves in life, and reform their ways, instead of being sent out from prison without resources. They might be employed in useful works, upon the system of Colonel Jebb—in making harbours of refuge, in works of fortification, in the dockyards, and in other ways. At the present moment the Channel dockyards might employ 1,000 men beneficially as regarded themselves, and economically as regarded the country. And he apprehended that if they persevered in this course, they would before long be in a situation to discuss calmly and deliberately whether they would continue a system which it had now become absolutely necessary to curtail, as it had been heretofore curtailed upon more than one head. Altered circumstances, he believed, rendered this very easy; for what was a great difficulty before as regarded the employment of convicts upon public works? It was the objection that forced labour displaced free labour to an amount that was most unfair to the half-starved workman. There was then a great redundance of free labour. We were not now absolutely in want of labour, but we had arrived at this point—that free labourers found a ready market for their labour, that the ablebodied no longer wanted work, and that every man who wished for it found ready employment. The objection to which he alluded was, therefore, completely obviated. Let their Lordships not forget that other countries, like the United States, for example, had no system of transportation. He was well aware that considerable mischief was declared to have resulted from the system existing in France, and other countries of Europe; but it was no argument at all to say, because the system of travaux forcées was considered to have failed in that country, that therefore it should in England be attended with similar results. On the contrary, he believed the attempt to introduce that system would very possibly succeed in the form in which it had been introduced by Colonel Jebb. He had had an opportunity that morning of looking over a small work by the governor of a gaol at Munich, detailing the extraordinary effects of a more humane and rational system of prison treatment recently introduced into that prison, and which would make even Colonel 68 Jebb jealous of the success; and there could be no doubt but that an improved system of prison treatment would be attended with equally good results in this country. He trusted their Lordships would now consider he had shown that Her Majesty's Government had done nothing in this matter at variance with the spirit or the letter of Acts of Parliament; but he felt strongly that when concession was made, it should be made with a good grace, and in such a manner as that it might be accepted as a boon, and not considered as something wrung by clamour from the Government of the day. Such a course as this was absolutely necessary if they were desirous of seeing harmony and good feeling prevail between the mother country and the colonies. In conclusion, he sincerely hoped that Her Majesty's Government would have it in their power to carry out, with the sanction of Parliament, such measures as might enable them to meet the fair wishes of the colonies, and at the same time to consult the interests of this great country, without throwing upon it such an influx of culprits and convicts as might destroy that security of life and property without which all its great advantages would be but as dust in the balance.
said, he would ask the noble Earl who moved the Amendment whether he meant it to be added to the Address, or whether he intended it as a substitute for it, the Address being rejected? If the noble Earl left it to be added to the Address, he was quite ready to concur in such a step, for the two were quite harmonious, and the Address might even be amended by that which was proposed to be added to it.
§ The EARL of CHICHESTER
stated, that the Resolution he had moved was not an addition to the Address, but an amendment upon it.
In that case it would be his (Lord Campbell's) duty to state the reasons which induced him to believe that their Lordships ought to adopt the Address and reject the Amendment. He fully concurred in what had been said about this not being a party question; but as a Judge of the land, as having the honour of a seat in their Lordships' House, and taking a lively interest, as he did, in the criminal administration of this country, he felt called upon to support the Motion for an Address. For the last hundred and fifty years various Acts of Parliament had been introduced, 69 which enacted the punishment of transportation beyond the sea for various terms of years, and, in the case of certain criminals, for life; while other Acts of Parliament had limited the term of imprisonment to be inflicted on criminals in this country to three years. These sentences had been regularly carried into effect shortly after they were pronounced, and it was therefore the clear opinion, both of their Lordships' House and of the House of Commons, that the punishment of transportation should be continued to be enforced. What was it, then, which the present Government meditated doing? Contrary to the opinions so expressed, and contrary to the provisions of previous Acts of Parliament, they proposed substantially to abolish transportation. The speech of the noble Duke was an elaborate treatise, prepared for the purpose of showing that transportation was a punishment which ought no longer to be inflicted. Before he went on circuit he had put it pointedly to the noble Duke whether transportation was to be considered; as abolished, and whether, in pronouncing it, he was to consider that the sentence would not be carried out. The noble Duke, in his reply, intimated not only that it was no longer possible to send criminals to Van Diemen's Land, but expressed an earnest hope that transportation would soon, as he said, be brought to a close.
§ The DUKE of NEWCASTLE
I really must set the noble and learned Lord right. He has most egregiously misrepresented what I did say throughout. I never used the words "brought to a close." I never expressed a hope of the kind; but I dealt with the noble and learned Lord more candidly than he has done with me. The noble and learned Lord: asked me what were the intentions of the Government upon this subject; and my answer was that the Government had determined to give up transportation to Van Diemen's Land, but that it was their intention to continue it to West Australia; and in candour I told him further that West Australia was a country of limited capabilities, and I candidly confessed that I could not hold out a hope we should be able to continue transportation to any great extent to West Australia, or for any very long time, but, at the same time, recognising the full propriety of continuing it to West Australia as long as the interests of West Australia and of this country required it.
said, he did not pledge himself to the particular words 70 used by the noble Duke, but he left it to their Lordships if the purport of his reply was not, that we were to consider transportation was to come to a close, and whether the noble Duke did not pretty plainly intimate his own opinion that the sooner the system came to an end the better? When a question, of the same kind was put by his noble Friend to the noble Earl at the head of the Government, the noble Earl certainly did not intimate that transportation was to come to a close; but, when asked what was to become of those entitled to tickets of leave, he stated that no plan was yet devised—but he intimated that though, they could not go to Van Diemen's Land, faith should not be broken with them. He confessed he felt great alarm at the notion of 1,000 convicts, with all the discipline and teaching they might have undergone, being at once turned loose on the community, while, on the other hand, to, keep such persons in prison for the term for which they were sentenced to transportation, would be nothing less than a gross; violation of the Acts of Parliament under which they had been sentenced. He did not say an indictment would lie against the Government or the noble Duke for doing so, because the prerogative of the Crown, might justify them; and the noble Duke, if he liked, might order every prison door in England, Ireland, and Scotland to be thrown open; but he maintained that it was contrary, to the intentions of the statutes, and a violation of the wishes of Parliament. When the American war brokeout, and we could no longer send; our prisoners to these colonies, an Act was passed allowing those persons sentenced to be transported to be sent to the hulks; but the noble Duke did not consider it necessary to ask for that power which the Secretary of that day thought it fit to obtain from Parliament. The noble Earl at the head of the Government was, he told them, in favour of continuing transportation—the noble Duke was its mortal enemy; but whatever their secret sentiments might be, their conduct virtually amounted to the abolition of transportation. Could their Lordships sit by and see the Government, however much it might be respected, acting contrary to the statutes and to the repeatedly expressed opinions of both Houses of Parliament? What did his noble Friend propose? A most opportune, necessary, and very moderate Motion, for an Address to the Crown to prevent any change taking place till both Houses of Parliament had had 71 an opportunity of expressing their opinion on the subject before changes of so extensive a character were made in the system? What was the objection to it? They were told it was an insult to the Crown—an encroachment on its prerogatives; but surely they did not insult the Crown because they asked Her Majesty to give directions to Her servants with respect to the exercise of Her Royal prerogative? There was nothing disrespectful or unconstitutional in the proposal; but it was one which he considered indispensably necessary for the dignity of Parliament. He could not see any reason whatever for substituting the Amendment of the noble Lord for the Address, though he thought it might very properly be added to, and be allowed to form part of, the Resolution. What arguments had been used against transportation in the course of the debate? The noble Earl said it set a bad example to those among whom the convicts were settled; but that depended on the preliminary system of discipline and reform, and of religious teaching to which they had been subjected; and if they were reformed to any considerable degree under the system now in operation—if they were taught religion and habits of industry—when they went to a foreign land they might speedily be absorbed in the population, and become useful members of society. He begged their Lordships to bear in mind the most astonishing fact that there were now 50,000 human beings undergoing transportation for life in our penal colonies, many of whom were now in respectable positions in life, but who, if they had continued in this country, would have been pests of society. The noble Duke had given an enumeration of all those who were convicted in the course of the year, distinguishing those who had been transported, from those who were liberated without being transported. But that list included all those who had been convicted for the slightest offences, such as assaults and mere breaches of the peace, which did not indicate any moral guilt. A good deal had been said about the extent to which the abuses of the punishment of transportation had gone. He believed the noble Lords who had dwelt on that subject were not well aware of the modern practice, when they spoke of the extent of abuse of transportation, because he believed the sentence was now seldom pronounced unless for a very long period of time. Since he had had the honour of a seat on the Bench, he had never 72 sentenced any criminal to transportation for less than ten years; and if their Lordships followed his advice, they would not allow any Judge to transport for a shorter period than ten years—for that was the term within which there was hope a man might become a useful member of society. But, when there was no hope that imprisonment would work reformation, he said it was time to send a criminal out of this country, both for his own benefit and for the sake of the community. Their Lordships should be very cautious, therefore, how they laid it down that there should be no transportation except for certain crimes. The noble Earl seemed to think a man might be transported for robbing a henroost; but no such sentence could be pronounced for a simple larceny. He was fully persuaded that a secondary punishment so good as, transportation had never been, and never would be, invented. Much obloquy had been cast on him for saying so, and he had, been compared with the cruel Judges who passed the severest sentences for slight offences; but he believed transportation to be mild—for the benefit of the criminal as well as for the good of society. He was told by the Judges that the sensation when the sentence was passed now, was as great as ever, and caused as much agony to the criminal and his friends. He would give his cordial support to the Motion of his noble Friend.
The LORD CHANCELLOR
said, more than once in the course of this debate it had been said that this was a question which could not, and in the present instance did not, involve any party feeling. He confessed that up to a very late period of the debate—up to the close of the speech of the noble Earl on his left (the Earl of Derby)—he believed that had been said with perfect sincerity; but whether it was now the impression on the minds of all their Lordships, he must leave the House to decide. He confessed, that he thought that whatever might have been the spirit in which his noble and learned Friend (Lord Campbell) had addressed the House, his noble and learned Friend had somewhat altered the character and tone of the debate, and that this matter was not now looked at in the same calm and dispassionate manner as it was at an earlier period of the evening. He (the Lord Chancellor) was extremely anxious to address those noble Lords who had no party feeling on this subject, and to call their attention to that which had not been sufficiently brought 73 unter consideration in the course of the debate, namely, the precise terms of the Motion, and the precise consequences of adopting it. The noble Earl (Earl Grey) moved that "a humble Address be presented to Her Majesty, praying that Her Majesty will be graciously pleased to give directions that the arrangements with respect to the punishment of criminals sentenced to transportation, which were in force in the year 1852, may not be changed in such a manner as to prevent the ultimate removal of such offenders from this country until a full account of any contemplated alteration in the above arrangements shall have been laid before Parliament, and till Parliament shall have had an opportunity of considering the measures it may be intended to adopt previously to their being carried into execution." The existing arrangements as they were in 1852! Why, there had been no alteration of any existing arrangement of 1852, with one exception. There had been a positive and distinct engagement on the part of the Government with the colony that no more convicts should be sent to Tan Diemen's Land. If they were to pray Her Majesty to continue those arrangements, disguise it as they pleased, it meant this—to ask Her Majesty to give directions to Her servants to violate a pledge they had given, and to do that which they had entered into a distinct and positive engagement with the colony not to do. He could not believe that many of their Lordships could have taken into consideration the exact consequences of acceding to the Motion before the House. He must now make an observation on a point on which his noble and learned Friend (Lord Campbell) must, though unintentionally, have been misleading their Lordships. His noble and learned Friend inferred that the keeping prisoners in this country sentenced to transportation, instead of transporting them, was contrary to law. But he would remind his noble and learned Friend, that an Act of Parliament had been passed, ten or twelve years ago, expressly enacting that the Crown might commute sentences of transportation in certain cases to imprisonment in this country for limited periods, mentioned in the Act. Five or six years afterwards that was altered, and it became lawful for the Crown to regulate the quantum of years for which a party might be kept in prison. That was to be at the discretion of the Secretary of State—he not being bound by the sentence. That might have 74 been an inexpedient course; but let not their Lordships go to a vote under the notion that that which had been done was not sanctioned by Acts of the Legislature. With respect to the general question, he concurred with his noble and learned Friend in regretting that the altered circumstances of the Antipodes had rendered it impossible to go on with transportation as we had done. He agreed with his noble and learned Friend; and he might say this, having had for several years to discharge the duties of a criminal Judge, that in nine cases out of ten the sentence of transportation did create a very great degree of terror in the minds of those on whom it was pronounced, and a feeling scarcely less deep on those of the bystanders; he believed also, with him, that the punishment of transportation was in the highest degree salutary, and that it met the exigencies of punishment more than any other, for it united the maximum of apprehension with the minimum of endurance. It had the greatest possible effect in deterring men from the commission of crime; and where suffering was anticipated, an ordinary and much lighter punishment was in reality experienced by persons when they came to undergo the sentence of transportation. He regretted as much as any Member in that House that transportation could not be continued as heretofore; but he believed it must be the universal feeling among their Lordships that transportation could not go on as it had done, and for this reason, that we had not places to which we could send our convicts. He did not despair that some other place might not be found for that purpose. That must be a matter of experiment and trial; and if they looked to an island in the Pacific, transportation there could not, for some time at least, be the same sort of transportation as had gone on for the last twenty years to Van Diemen's Land; but it might be much the same as that which had obtained for Botany-Bay in the first instance. What was the course that was proposed on that subject? It had been assumed that about 2,000 convicts were annually sent to Australia, including Western Australia; but if Western Australia could only receive from 300 to 500, their Lordships must lay their account for carrying on that transportation only to a comparatively limited extent. It was obvious, then, that the only mode in which that could be done was by looking to the class of persons that had hitherto been transported, and seeing from what 75 class of crimes they could test and most safely take away the punishment of transportation, so that to the limited extent of which the colony was capable, transportation might be applied to those graver cases to which it was applicable. But this was no new invention on the part of the Government; they knew perfectly well on taking office that the arrangements now in contemplation must be made, and made, too, before the end of the present Session of Parliament. He should not longer detain their Lordships. He had thought it important to call their Lordships' attention pointedly to what it was they were going to do in supporting the Motion of the noble Earl, and to let them clearly see whether that was what they meant to do.
The DUKE of ARGYLL
said, that the noble Earl who had brought forward this Motion had said that the Amendment proposed by the noble Earl (the Earl of Chichester) was an evasion of the question before the House. It had also appeared to him (the Duke of Argyll,) that the Motion of the noble Earl himself (Earl Grey) was an evasion of the question; for, as it had been well put by his noble and learned Friend on the woolsack, if the Motion was carried, it pledged the House to address the Crown to restore transportation to Van Diemen's Land; and he must say, if that was the opinion and wish of the noble Earl, he thought it would have been better that he had expressed it openly. It had been said in the course of the debate that transportation was of no use except to those colonies where the convicts were spread out among a large population. But what did he find in Van Diemen's Land? The population of that colony, according to the census of 1851, was 31,000, of whom 18,000 were free settlers, and 13,000 were convicts; and since the gold discoveries in the adjacent colonies of the Australian group, so enormous had been the emigration thither from Van Diemen's Land that actually the adult population had been reduced to 9,000, and the convict population consequently proportionately increased. Under those circumstances, he would ask the House whether that was a colony into which they should continue to pour their whole convict population?
§ EARL GREY
, in reply, said, that in the course of the remarks in which he had introduced his Motion to the House, he had referred to Mr. Wentworth, a colonist in New South Wales, as having, from being a loading advocate of transportation to the 76 Australian colonies, become an orator on the other side of the question. He found that he had unintentionally done Mr. Wentworth an injustice, which he was desirous to repair at the earliest possible moment. That was a misconception on his (Earl Grey's) part; for he now found that that gentleman continued to advocate transportation until the discovery of gold in Australia made a difference. He would now say a few words in reply, and confine himself almost exclusively to what had fallen from his noble and learned Friend on the woolsack. As to what had fallen from the members of Her Majesty's Government, excepting the Lord Chancellor, during the debate, it might be very important, but was altogether beside the question. He was surprised at the observations of the noble Earl at the head of the Government, and they were scarcely worthy of his high position. It was an ad hominem argument addressed to him (Earl Grey), the object being to show that the difficulty was one of his creation, and had been caused by a despatch which he had written. He (Earl Grey) wished the noble Earl had also mentioned that the despatch contained a distinct statement that the measure was experimental, and subject to the approbation of Parliament, and that Government had reserved to itself the full right to alter it as experience might suggest. It was, also, quite new to him that any Secretary of State could pledge the faith of Government for all time to come, and of Parliament, to any particular line of policy. All those declarations of the intentions of Government were subject impliedly to the condition of being approved of by Parliament, and it would be opposed to the constitution of the country that a measure of this kind should be carried against the consent of Parliament. He must say, after the declaration of the noble Earl opposite (the Earl of Derby), and of the present Government, and when two successive Governments had announced that they thought transportation to Van Diemen's Land ought not to continue, whatever might have been his opinion previously, that declaration so altered the state of the case that he was now quite aware that transportation to Van Diemen's Land could not continue. The noble Duke (the Duke of Argyll) had said that the object of his (Earl Grey's) Motion was to express the opinion of the House that transportation to Van Diemen's Land should be continued. Now he admitted that, although when it was given up 77 by the noble Earl opposite, such a step was not necessary, yet circumstances had so altered that he knew that now transportation to Van Diemen's Land could not be continued. But then the noble and learned Lord on the woolsack asked, if that was not the object of his Motion, what was it? He (Earl Grey) admitted that transportation to Van Diemen's Land could not continue, and that it must cease at a very early period; but be did not say it was to cease to-day or to-morrow. Noble Lords had argued that they did not intend to abolish transportation; but their opinions were not very clear, because the noble Earl seemed to be all for transportation, and the noble Duke to be all against it. They had stopped the removal of convicts from this country, and it appeared there were already a thousand convicts who, according to the course of things before in existence, should have been removed to Australia; and the noble Earl and the noble Duke told them that a small portion of those might go to Western Australia, but it was impracticable to remove the rest. He (Earl Grey) did not shrink from saying openly that there was no wish on his part to evade the most explicit declaration of what he really intended. He did not scruple to say he thought that, if this Address were carried, the Government should take means to remove those convicts, and send them either to Van Diemen's Land or to Western Australia. But what he objected to was this—and it was the whole burden of his argument from first to last—that, whereas hitherto the removal from this country to a distant colony had been considered by Parliament as a necessary and proper part of the sentence of transportation, Her Majesty's Government had taken upon themselves by their own sole authority, without consulting Parliament, to make an alteration of which the practical effect was, that, from three months ago, a very large proportion of those convicts would have to be discharged at home. He thought that the course adopted was unconstitutional, and though the noble Duke might say it was not contrary to the spirit of the Act of Parliament, he (Earl Grey) remained of the opinion that it was. He was aware that the different Acts of Parliament—the Hulk Act, and others subsequently passed—had given to the Crown the power of keeping convicts at home; he admitted freely that was the technical construction of the law; he had argued that in 1847, when an objection 78 was taken to the course he had adopted, and he had not altered that opinion; but it was his opinion, also, that the spirit of the Act required that at some period or other the convicts should be removed from the country. They had acted upon that opinion in 1847, and made no change without consulting Parliament, and the same thing should be done now.
§ On Question, whether the words proposed to be left out stand part of the Motion, their Lordships divided:—Content 37; Not Content 54: Majority 17.
|List of the CONTENT.|
|Hardwicke||Say and Sele|
|List of the NOT CONTENT.|
|The Lord Chancellor||VISCOUNTS.|
|Harewood||Stanley of Alderley|
§ Resolved in the Negative.79
§ Then on Question, whether the words proposed to be inserted shall be there inserted; Resolved in the Affirmative.
§ House adjourned to Thursday next.