Lords Sitting of 12 June 1857

MINUTE.
PUBLIC BILL.—3a Cinque Ports Act Amendment.
THE IRISH GOVERNMENT—MR. STUART.

  QUESTION.
  THE EARL OF LEITRIM THE EARL OF LEITRIM rose, pursuant to notice, to ask Her Majesty's Ministers why the protection of the police was to be removed from David Stuart in the county of Leitrim, and why the Government should require him to emigrate or otherwise provide for his personal safety, and

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  to what extent the persecution of Protestants was to be permitted? The noble Earl (who was very indistinctly heard) suggested that the police had been withdrawn from watching this Gentleman's house because he had given a vote adverse to the candidate of the Irish Government in the late election; and expressed his opinion that no Lord Lieutenant had ever taken so strong a part in politics as the Earl of Carlisle.
  EARL GRANVILLEsaid, the best answer to the charge of partisanship against his noble Friend the Lord Lieutenant was, the universal respect in which the noble Earl was held by men of all classes and denominations of religion and by all political parties in Ireland. As to the particular case in question, he was not aware that any protection had been withdrawn from Mr. Stuart's house. It appeared that that gentleman had made himself obnoxious to his neighbours in some way or other, and at his own request two police constables were appointed to watch his house. Subsequently he gave notice of his intention to emigrate, and requested that the policemen might be withdrawn. He changed his mind, however, and did not emigrate, and the police constables were kept on duty there at a considerable expense to the country.
  VISCOUNT DUNGANNONsaid, he had no hesitation in saying that even justice was not dealt out to Protestants and Roman Catholics in Ireland, and that if this had been an attack made upon any body of Roman Catholics in Ireland the country would have been roused from one end to the other, and no effort would have been spared by the Government to bring the guilty parties to punishment. But such was not the case when Protestants were attacked, though it was notorious that such attacks took place daily. He could point to cases where Protestant ladies in Dublin were hooted and pelted on their way to give instruction in Protestant schools, and where the Roman Catholic police not only gave them no assistance but cheered on the assailants. The Roman Catholics of Ireland seemed alone to be regarded as valuable subjects, while everything like honesty of purpose, ability, and talent was denied to the Protestant population. His noble Friend had asked how long this state of things was to go on and he thought he was entitled to a fair and satisfactory answer. He felt assured that, sooner or later, the indignation of the
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  Protestants in Ireland would compel the Government to give due attention to the grievances under which they laboured, and to apply a correction to such a partial system. Some of the scenes that had taken place of late were absolutely disgraceful. He contended that Roman Catholics and Protestants ought to share alike the favours of the Government. The Protestants were not the most numerous body in Ireland, but they comprised, to a great extent, the intellect and usefulness of the country, and they had a right to claim protection. Their Lordships might depend upon it that the case referred to by his noble Friend (the Earl of Leitrim) was but one of many which indicated a state of circumstances calling loudly for the interference of Parliament, and his noble Friend deserved the thanks of the Protestants of Ireland for calling attention to it.
  EARL GRANVILLEsaid, the noble Earl at the head of the Government in Ireland conducted his administration on the principle of perfect fairness and equality towards all classes of Her Majesty's subjects in that country. If the noble Earl opposite could bring against the Government a particular charge of partiality, either one way or other, he would have no objection to such case or cases being submitted to a Committee in order to their being considered on their merits. Charges had been made against the Lord Lieutenant of having acted unfairly towards Roman Catholics; charges had also been made against him of having acted unfairly to Protestants; and such recrimination would always take place when belligerent denominations were pitted against each other. The trumping up such cases as these was calculated to throw discredit on the principle which actuated the Irish Viceroy, that of dispensing equal justice to every creed and class in Ireland. He entirely denied that the Government had pressed the man to whom the noble Earl had referred to emigrate. Indeed, nobody could believe that the Government had had recourse to any such policy. Two policemen were at this moment in his house at considerable expense to the public, and in such circumstances it was idle to say that the Government was not giving protection to Protestants.
  THE EARL OF LEITRIMsaid, if the noble Earl would give him a Committee, he would show the House and the country how sixpenny penalties were imposed by the magistrates. In Kilkenny—
  EARL GRANVILLE EARL GRANVILLE rose to order. It would be very inconvenient to go on with this discussion in the way the noble Earl was now doing. If the noble Earl chose to give notice of a Motion for referring to a Select Committee any particular cases, the House, when that Motion came before them, would be able to judge whether sufficient grounds were made out for such a Committee; but he thought it was trifling; with the time of their Lordships to discuss such petty charges as had been made in a wav so irregular.
  THE EARL OF LEITRIMsaid, all he wished to say was, that the answer given by the noble Earl to his question was most unsatisfactory and most incorrect.

  TRANSPORTATION AND PENAL SERVI TUDE BILL—COMMITTEE.
  Order of the Day for the House to be put into Committee, read.
  THE EARL OF HARROWBY THE EARL OF HARROWBY rose to move that the House go into Committee on the Transportation and Penal Servitude Bill, and said, that their Lordships would recollect that considerable interest had been felt throughout the country on the subject of transportation and what, was called the ticket of-leave system, and that no small excitement and perhaps prejudice existed in the community with regard to the number of persons convicted of offences who were supposed to be at large in possession of those tickets of leave. The real ground of apprehension, however, was not the existence of the ticket-of-leave system as such, but the cessation of the system of transportation, by which, instead of sending annually great numbers of the worst criminals to different portions of our colonial empire, we were obliged to retain them at home. No doubt it was a very simple process to shuffle off our criminal population to the Colonies, and for a while it seemed to work well; but in course of time it became an evil which the colonists were unable to bear, and they became so excited on the subject as to render transportation in a great measure impossible. The Committee which sat last year expressed its approbation of transportation if it could be carried out with the consent of the Colonies, but they also laid down as principles to guide the selection of colonies whither convicts should be sent that there should be a demand for their labour, and a sufficient amount of free population to prevent
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  inequality of the sexes and too great a proportion of criminal inhabitants. Those principles excluded nearly every colony in Australia, and convicts could not be transported to the Cape of Good Hope, to Moreton Bay, to the Red River settlement, nor to the Falkland Islands. With respect to Vancouver's Island the Committee had not sufficient information to enable them to pronounce a definite opinion, and further inquiry had not convinced the Government that convicts could be sent there. The obstacles were—first, the great distance; and next, the contiguity of the American territories. Under these circumstances the only place which the Committee could point out as fitted at present for the reception of convicts was Western Australia; but, even in regard to that colony, he (the Earl of Harrowby) could not hold out the hope that that resource would be available for any very extended period. The free population was only about 7,000: and there were few very strong inducements for any rapid increase in that population. However, that colony was desirous of having convicts sent to them, and the Government would endeavour by all means in its power to comply with that wish in the manner most advantageous to this country and to the colonists. During the inquiries of the Committee one obstacle to carrying out any system of transportation even to colonies desirous of receiving convicts was ascertained which it was in the power of the Legislature to remove. It would be remembered that when in 1853 it became obvious that a limit must be placed upon the number of convicts to be transported, the principle was laid down that only persons sentenced for periods of fourteen years and upwards should be transported. By that measure it was intended that transportation should be carried out only in the cases of the worst kind of offenders; but it was not quite clear that criminals regarded transportation to a foreign country as a more severe punishment than confinement at home. The number of convicts annually sentenced to those longer periods of punishment averaged 400, from which women and persons physically or otherwise unfit for transportation being deducted, there were left only about 250 convicts who could be sent away every year to Western Australia. In order to enable the Government to meet the wishes of the colonists, and to remove from this country a number of persons

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  whose reformation was more probable in a distant land than at home, the Bill which he now proposed had been prepared. Its object was, whenever a sentence of penal servitude was pronounced, it should be in the discretion of the Secretary of State to decide, according to the demands of the colonies and the fitness of the convicts for transportation, whether the sentences should be carried out at home or abroad. An objection had been raised against that proposition, upon the ground of the uncertainty it would create as to the effect of the sentence; but the same objection would apply to the present system. No Judge could say, when he was passing sentence of transportation, whether it would be carried into effect or not. Of 12,621 persons sentenced to transportation in the years immediately preceding the introduction of the new system, only 4,710 were actually sent out of the country. In the ten years from 1842 to 1852, taking England, Wales, and Scotland together, thirty-six per cent of all the persons sentenced to transportation were kept at home. Under these circumstances a discretion must be left somewhere, and he did not know to whom it could be given if not to the Secretary of State for the Home Department, who was responsible to Parliament and the public for all his acts. The Bill, besides giving that discretion to the Home Secretary, nominally abolished the sentence of transportation, which had become a perfect mockery; but under the sentence of penal servitude, power was taken to send out of the country, at the discretion of the Secretary of State, a larger number of convicts than it had recently been possible to dispose of in our colonies. He would not trouble the House with many observations upon the ticket-of-leave system. The apprehensions upon that score had very much subsided; and when their Lordships bore in mind that up to the present moment only about fifteen per cent of the ticket-of-leave men had been recommitted, they would see that the system had incurred a good deal of undeserved odium, and that the Government would not have been justified in proposing to abolish it.
  Moved, That the House no now resolve itself into a Committee on the said Bill.
  LORD CAMPBELLdid not rise to oppose the Motion for going into Committee, but to express his deep disappointment at the provisions of the Bill. Both Parliament and the country had expressed a decided
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  opinion in favour of transportation, and he certainly had expected that the Government would make some attempt to comply with the wishes of those who bad studied the subject and were competent to give advice upon it. He now saw, however, that transportation was to be permanently abandoned, or rather, instead of being a punishment for the worst offenders, it was to be a reward for the most meritorious. A new "order of merit" was to be established, and the token was to be a ticket of transportation. He viewed with alarm the situation in which the country had now the prospect of being placed. It was a new situation. Before the time of Henry VIII. offenders were dealt with in an extremely summary manner, and there were no accumulations of convicts. The system of transportation was coeval with the settlement of America; and from the time of Charles the Second to the declaration of independence, our convicts were sent thither. After that came the Australian colonies, and they, until very recently received annually a considerable portion of our worst criminals. Now, however, that system was to be done away with, and our convicts were to be accumulated at home from year to year, and there was no prospect of their being placed in a situation where they would be prevented from recurring to their criminal practices, or where the public would be saved from their depredations and acts of violence. Such a result might be necessary, but it was most deplorable. Our penal colonies had been the envy of all those foreigners who had considered the subject of secondary punishments, and he deeply regretted that, like France and other continental States, we were no longer to have the means of giving our convicts a chance of reformation or of relieving the public from a repetition of their crimes. There were, no doubt, some difficulties to be encountered; but an attempt ought to have been made to overcome them, and it was wrong at once to abandon transportation. That which was formerly a punishment was now to be a reward for good conduct. There was to be a selection of those who were most innocent and to whom the least objection would be made in the colonies, and they were to be rewarded by being sentenced to transportation, carrying their wives and families with them. They were to be favoured emigrants, and sent abroad at the

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  public expense. Formerly, when he passed a sentence of transportation for fifteen years or for life, he thought it would be carried into effect. The convict, the convict's family, the bystanders, and the Judge believed it. But now all that they knew was, that it would not be carried into effect unless the convict earned the reward of transportation by extraordinary good conduct. It was contrary to the first principles of criminal jurisprudence to substitute the discretion of the Secretary of State, who had not heard the evidence and knew nothing of the circumstances attendant upon the commission of the crime, for that of the Judge by whom the prisoner was tried. In future, if he were to tell the truth, he would have to sentence the convict for fifteen years at the discretion of the Secretary of State. He would have to say, "During that term the Secretary of State for the time being may allow you to remain in prison, or you may be sent to the public works at Bermuda; or, if you show repentance, you may have the good fortune to be transported to Western Australia." Such a system aggravated all the evils which had been deplored, and held out no prospect of any equivalent advantage.
  EARL GREYsaid, he had heard with the greatest sorrow the speech of his noble and learned Friend, because it showed that his noble and learned Friend had entirely forgotten the arrangements of 1847 and 1848, and now condemned a system to which he was not only an assenting; party but the chief adviser upon whose authority it was established. The object of this Bill was to enable the Government to revert to that system. Previous to the establishment of that system it had been found from experience that the strictly penal part of the sentence of transportation could be much better carried into effect at home than abroad. The sentence of transportation implied two things—removal from the country and forced labour in the custody of Government officers. Long experience had shown that the effective part of the punishment, forced labour, could only be safely and properly carried out at home. When it was attempted to carry it out at a distance, abuses had invariably been developed. In Norfolk Island, in Van Diemen's Land, in New South Wales—in every instance where convicts had been subjected to severe penal labour out of sight of the home Government, and removed from the influence
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  which secured trustworthy officers, the system had failed. But although the Colonies had not answered for carrying into effect the strictly penal part of the sentence, they had answered the purpose of disposing of convicts when they could no longer be kept under severe punishment. Common humanity rendered it impossible that even the worst offenders could be kept under punishment for life. Every attempt of that kind practically failed. Sooner or later they must be relieved from punishment. But when that was done in this country, in spite of the utmost care, it was almost impossible to prevent convicts from returning to a course of crime. In this country they had the disadvantage of meeting their own associates, added to the difficulty of obtaining employment whereby to support themselves. But in the Colonies it was not so, and the consequence was, that when they passed out of the hands of the Government a large majority became useful members of society. The system, therefore, which was established in 1847 and 1848 was this:—that every convict upon whom sentence of transportation was passed went, in the first instance, to, solitary or separate imprisonment at Pentonville, or an establishment of that kind; thence, after a longer or shorter term, according to his conduct and original sentence, he went to a penal establishment like that at Portland; and thence, according as his conduct was better or worse, he was sent at an earlier or later period to one of the colonies, the Secretary of State sending them abroad or detaining them at home at his discretion. By that system they obtained two advantages. The strictly penal part of the sentence was inflicted in this country, where, if abuses sprung up, they were at once checked, and a discipline was applied which fitted the man to be useful in the colony to which he was ultimately sent. But the greatest advantage of all was, that the system gave a motive to the convict to conduct himself well. Captain Maconochie, a gentleman of great benevolence and ability, projected the plan of substituting moral influence for brute force, and making punishment to cease when the convict, by industry and good conduct, had earned a certain number of marks. He thought Captain Maconochie had attempted to carry the principle too far, although undoubtedly it was a sound principle, because prior to that the only mode

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  of compelling convicts to behave well was to punish them. It was mere brute force and mere coercion. The lash was the only thing upon which they depended for enforcing industry and preventing misconduct. The lash was an instrument of which the power was speedily lost; the men became hardened, and it was impossible to prevent the most horrible state of things prevailing in convict establishments. But the moment they changed the plan, and, retaining severity and strict punishment for those who deserved them, held out the prospect of earlier relief, they brought into play the strongest motive which could act upon the human mind. The system had been successful, and at Dartmoor and Portland the work performed under such a stimulus by convict labour, even compared with free labour, had been in the highest degree satisfactory. Records showed that the convicts were industrious, and he was persuaded where there was real industry there could be no great misconduct. When men had been made really industrious, and maintained the outward decencies of good conduct, if nothing more, he was persuaded a great deal had been done towards promoting their real improvement. He knew that the plan of giving rewards to convicts for good conduct had been held up as highly objectionable. It was said that it encouraged hypocrisy, and that the worst men very often behaved best in a penal establishment. He was well aware of that, and he was afraid that, do what they would, where the heart was corrupted it was only in a few instances, and that under the Divine influence rather than by any other means, that it was thoroughly reclaimed. But he said, where they could not change the heart they did a great deal if they could teach habits of industry, and that they conferred an incalculable benefit on society by increasing outward decency of conduct among this class, for at all events they prevented those outrageous breaches of all decorum which used to prevail under former systems of punishment. When the subject was under the consideration of the Committee of their Lordships' House, it became manifest that a very strong feeling had sprung up in Van Diemen's Land against transportation to that colony. In 1852 it was believed to be impossible to continue to apply that system, and the Government of the day came to the conclusion that it was necessary to close the colony of Van Diemen's
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  Land against the reception of convicts sentenced to transportation. When that was the case it was obvious that some change of the system must be adopted, and in 1853 a Bill was brought in for substituting penal servitude for transportation. He thought at the time, and still was of opinion, that that was a very unadvised measure, and was therefore strongly opposed to it. The result, in his opinion, had fully borne out his views upon that subject. However, the Government, conceiving that they could no longer send convicts abroad, thought it necessary to make that substitution, but in doing so, committed what he conceived to be a very grave error; because they shortened the period of punishment by making four years of penal servitude equal to seven years' transportation. By doing this they destroyed the discipline which formerly existed, because they were unable to make remissions in consequence of good conduct without remitting the punishment altogether. In framing the law they had provided that no persons should be sent abroad who were under a sentence of less than fourteen years' transportation. But by taking that course they, in effect, were prevented from sending the very persons who, if convicts at all were admitted, would be the most useful and the least objectionable in the colony. It should be borne in mind that the colonies were not the proper places to which the incorrigible class of convicts should be sent. If they acted on any other rule than that they would not be able to continue the system of transportation at all. For the incorrigible there ought to be places properly selected within the British islands, and there they ought to be retained permanently under the Government surveillance. Those should be places where persons utterly incorrigible should be separated from society and prevented doing the mischief which they would otherwise occasion. The persons that ought to be sent to the colonies, and whom the colonies would be ready to receive for the sake of their labour, were those who had been betrayed into crime, who were not thoroughly hardened, who had gone through a course of discipline such as he had described, and who on being placed in circumstances favourable to their moral improvement, would be in a position to retrieve a lost character. Of those persons a very large proportion used to be sentenced to seven years' transportation, but that class of men were entirely

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  excluded from the advantages of being sent to a colony by the measure of 1853. And now, what was the measure before the House? It simply enabled the Legislature to retrace its steps, and it gave back to the Government that discretionary power over convicts which from the time that transportation was introduced they had always possessed, and which they ought by right to exercise. The early Acts on transportation, in the time of George III. and George IV., carefully provided that convicts might either be punished in this country, in the hulks, or be sent abroad. His noble and learned Friend said that by the provisions of this Bill convicts would be immured hopelessly in the hulks unless means were found from time to time of sending them abroad, and expressed his fear of the result which would ensue when the colony of Western Australia was closed against them. He (Earl Grey) must say that he did not participate in the fear that that event would soon take place. On the contrary, he believed that, if it were properly managed, there would be no desire on the part of the colonists there to put an end to the employment of convicts in that colony. What would happen? Precisely what happened in the case of New South Wales, where convicts, being usefully employed, in process of time acquired habits of industry, and became reformed characters; and he believed that up to the period of 1840, when that colony was unwisely, as he thought, closed against their admission, it had received benefits so substantial from convict labour that it ought not to have been done away with. His opinion was, that it was the duty of the Government to send out convicts to the colonies as long as there was a necessity for their labour; and, therefore, it was somewhat foreign to discuss the question as to what colony would retain the system longest. He supported this Bill on the simple ground that in the circumstances in which the country was placed it was for them to retrace an erroneous course, and to reintroduce transportation, for the purpose of relieving England of a mass of persons who, while they remained here were dangerous to the peaceable and well-disposed, but who might be usefully employed, and have the chance afforded them of leading a new and useful life in the colonies.
  THE EARL OF CARNARVONsaid, he wished to trouble their Lordships with a few remarks, because his noble Friend
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  who had introduced this Bill seemed to assume that the revival of transportation upon a large scale was altogether impracticable. He agreed with the noble Earl that the real difficulty was not in finding a place where convicts might be securely confined, but a country possessing a fertile soil and natural resources, which would afford an almost inexhaustible demand for labour. If such a spot could not be found, they would save both time and trouble by imprisoning their convicts in England. He (the Earl of Carnarvon) thought, however, that they jumped at a too hasty conclusion if they assumed that no place could be found within the limits of the English empire for the reception of our convicts. Undoubtedly weighty objections existed to the selection of the Hudson's Bay district as a penal colony, for during several months of the year that settlement was entirely inaccessible. Vancouver's Island had been suggested as adapted for the purpose, but its vicinity to the United States, and the facilities afforded by the chain of islands which connected it with the mainland for the escape of convicts, rendered it unsuited for the reception of a large criminal population. The soil of the Falkland Islands was not adapted to agricultural operations, and the limited extent of those islands, as well as the scanty employment which could be afforded upon public works, unfitted them for a large convict settlement. It appeared, however, from the evidence before the Committee of l843, that Western Australia was a country rich in vegetable and mineral productions, where the great necessity was the creation of harbours and roads, which would afford ample employment for convict labour. The Committee had spared no pains or labour in obtaining the best information on the subject, and they found that both Western and Northern Australia were admirably adapted for the establishment of a penal settlement. They had there the wide range of country which was watered by the rivers of the Gulf of Carpentaria, which had been surveyed by a most efficient officer, whose report showed that it was rich in productions, and that it comprised extensive tracts of well-timbered and open country, and highly suitable for the reception of Europeans. There was, however, another district—the valley of the Victoria—which had recently been explored by Mr. Gregory, a very able surveyor and traveller, and which seemed to present great advantages as a penal settle-

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  ment. This district was generally bare of timber, but the pastures were described as of extraordinary richness. He (the Earl of Carnarvon) would not venture to put his opinion in opposition to that of his noble Friend (the Earl of Harrowby), who had access to official documents; but he might quote the testimony of Sir Roderick Murchison, who was a high authority on the subject, and who, in his address to the Geographical Society the other night, said,—
  "The real opinion of such an experienced colonist and geographer, whose merits have been already dwelt upon in conferring upon him our founder's gold medal, is of infinitely greater value than those speculations which would describe the whole of that region, on account of its latitude, as unfit for the settlement of the Anglo-Saxon race! The plain answer to this view is, that on the banks of its navigable river, Victoria, the party of Wickham and Stokes were perfectly healthy in 1839, and that recently our countrymen were stationed there for nine months without the loss of a man…… A region which so many experienced naval officers and other authorities have eulogized as offering capacious harbours and a climate not unsuited to Europeans—lands in which the pastures are magnificent, while the sea swarms with the finest fishes."
  Mr. Gregory said,—
  "This portion of Australia far surpasses the western coast both in its fertility and extent, and its capabilities for settlement. Good harbours are numerous along the coast, and there is abundance of fine country for stock and cultivation."
  Again he said,—
  "The valley of the Victoria far exceeds the best parts of Western Australia."
  Dr. Ferdinand Müller said,—
  "North Australia, with the exception of the east coast, possesses essentially a dry Australian and not a moist Indian climate. Fevers do not therefore exist, and we escaped such jungles and swamps as those in which Kennedy's party exhausted their strength. There is abundance of good country in North Australia, and, with access for vessels to the lower part of the Victoria, full scope for the formation of a new colony."
  A despatch of the Colonial Secretary (Mr. Labouchere) contained this passage:—
  "You have called attention to the description which Mr. Gregory gives of the soil and climate on the banks of the Victoria river, and indeed it is of such a nature that it is no extravagant supposition that some of us may live to hear of that hitherto unknown region becoming the home of a prosperous English settlement."
  With this mass of evidence before them, he (the Earl of Carnarvon) thought it was not unreasonable to assert that there was an opening for a penal settlement in the northern districts of Australia. He knew that one objection to the formation of new convict settlements was that, however well situated those settlements might be, it would be impossible to prevent the escape
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  of convicts to other settlements. He believed, however, that there would be no possibility of escape from a convict establishment in North Australia, either on its northern, western, or southern sides, which were bounded by the sea, and by an impenetrable desert. He admitted that there was a possibility of escape on the eastern side, but it could not be effected without horses or mules, and then vast sandy deserts and tracts of barren country must be traversed, and he believed that the district would be utterly impassable to solitary convicts. He thought, therefore, that the colonists in the southern districts could not with any reason or justice complain of the establishment of a penal settlement in the north. Considering also that Western Australia would eventually form a link in the chain of communication between Borneo, China, and the Eastern Archipelago generally, he was of opinion that it must sooner or later be extensively colonized, and he thought, therefore, that it would for a very long period offer facilities for the reception of convicts. He was no advocate for sending out hardened and impracticable criminals only; some principles must necessarily be observed in order to the well working of any system of transportation. It would be always advantageous to send out persons who had a considerable portion of their penal servitude to work out, during which time a system of strict discipline should be enforced; they ought never to lose sight of the question of free colonization, and that there should always be a large preponderance of free emigration; they must also take care that there should be some proportion between the sexes. The noble Earl concluded by saying that he would gladly have made some observations upon the working of the ticket-of-leave system, but that to do so he must trespass unduly upon their Lordships' attention.
  VISCOUNT DUNGANNONexpressed the great disappointment he felt at the introduction of such a Bill as the present, which retained a system so full of evil, and so much objected to, as the ticket-of-leave system, He recalled the attention of the House to the many cases of heinous crime which had been traced to ticket-of-leave men in this country, and expressed his opinion that a Bill which retained the principle could be satisfactory to nobody. It might be, and indeed had been argued that the re-convictions of ticket-of-leave men were few in comparison to the num-

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  ber of tickets issued. They had been placed at 15 per cent. That was a great deal too many, and their Lordships must bear in mind the large number of cases in which it must be assumed the perpetrators of offences were undetected, He implored the Government, in mercy to the convicts themselves, who, when they returned to their old haunts, without a character and without employment, were driven as it were again to crime—to give them a chance, by removing them to a new country, of amending their lives and becoming honest and useful members of society. It was mistaken mercy to shorten imprisonment by tickets of leave, because it left the holder so completely under the surveillance of the police, and with such a stigma upon him, that he was fit for nothing but his old courses. The present measure would leave utterly untouched the source of the evil, and he must therefore give it his most uncompromising opposition.
  THE EARL OF DERBYsaid, he did not propose to offer any objection at the present stage of the Bill, nor did he intend to move any Amendment in Committee, because he thought that it was not properly the subject of Amendment at that stage, but that all matters of this kind must be left entirely in the hands of the Government, He could not, however, feel satisfied without saying that, in his opinion, the present measure was most imperfect and unsatisfactory, and did not appear to proceed on any definite principle whatever. The only alteration which would be effected in the existing state of things by the Bill was that, whereas formerly transportation was a sentence which might have been commuted into penal servitude or imprisonment at home, penal servitude was now a sentence which might henceforward be commuted into transportation at the discretion of the Secretary of State. But he would ask his noble Friend on what principle the Secretary of State was to be guided in substituting transportation for penal servitude? Was transportation to be regarded as an aggravation or a mitigation of the sentence? His noble Friend did not seem to approve of the inference drawn by the noble and learned Lord Chief Justice, that the sending of a person to a colony was to be considered as a reward for good conduct. But it seemed to him (the Earl of Derby) that the language of the Bill bore out that view of the case: and his noble Friend himself said, on the part of the Government, that
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  great complaints had been made of their sending out incorrigible offenders, and that they would henceforward only send out the best-conducted men, and those whose physical capacity fitted them for discharging the duties of colonists. His noble Friend had further stated that those men would receive a boon which was not granted to voluntary emigrants, inasmuch as their wives and families would be sent out with them. Again, it did not appear in the Bill what portion of the sentence was to be carried out at home, and what other portion in a colony. That was left entirely to the discretion of the Secretary of State. Now, he could understand the principle adopted in the measure of 1848, that the strictly penal part of the sentence should be carried out in this country, and that after a certain time, regulated by his conduct, the convict might be sent out to a colony. But, in that case, there was a minimum of penal servitude to be undergone in this country before the Secretary of State could have the power of effecting any change in the sentence of the convict. According to the present Bill, however, it would be competent to the Secretary of State, the moment after the sentence had been passed, to say that the penal servitude should not be enforced, but that the individual should at once be sent to Bermuda, or Gibraltar, or Australia, or any other settlement. The measure seemed to substitute the will, or the caprice, or at best the discretion, of the Secretary of State for any positive enactment with respect to the period at which the different stages of the punishment were to take place. He believed the Bill failed in two very important particulars. It did nothing to remedy the two great difficulties under which this country laboured—namely, the difficulty of disposing of the better affected portion of its convicts, and the difficulty of disposing of the incorrigible offenders. For neither the one nor the other of those cases did the measure make any provision whatever. The noble Earl opposite (Earl Grey) had alluded to a proposal for finding some place to which incorrigible offenders might be removed, and kept under surveillance, and in seclusion from the rest of the community, although not in actual imprisonment. Such a proposal formed no unimportant portion of the scheme which the Government of 1852 contemplated, and steps were taken for securing such a place, He himself mentioned the name of that place to the noble Duke (the

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  Duke of Newcastle) who succeeded to the seals of the Colonial Department; but he did not state the name publicly, lest he might by that means have added to the difficulty of carrying out such a project. Certainly, with regard to incorrigible offenders, he was strongly of opinion that great evils had resulted from the practice of granting tickets of leave to the extent to which that practice had been carried, and that great advantages might be derived from the possession of some place within the limits of the British empire, and not too far removed from the surveillance of the Government, to which incorrigible offenders might be removed, so that they might be prevented from again entering into society in this country. Again, he agreed that it was not advisable to send all the most incorrigible offenders to the colonies, for that would give the colonists great cause to complain; but he thought the Government might have done much more than they had done to secure a provision for the settlement of those who did not belong to the incorrigible class. It appeared to him that the Government had too hastily abandoned the idea of establishing new penal colonies. He did not think that all parts of the world were closed for such a purpose. In the first place, he agreed with the noble Earl, that Western Australia might gradually find room for an increased number of convicts. He also believed that the northern coast of Australia was perfectly eligible, not in the first instance, for the reception of convicts properly so called, but for the establishment of colonies to which persons who had been under penal sentence in this country might be sent as freemen, and pioneers of civilization. In this manner, by sending out persons who could not be regarded as incorrigible, but whom it would not be safe to throw on society here, we might lay the foundation of useful and valuable colonies, which, for a considerable time, might afford a means of gradually absorbing our convict population. But the Bill before the House proceeded on no principle whatever; it would leave everything in a state of uncertainty far greater than that which at present prevailed; it would place a most mischievous and dangerous discretion in the hands of the Secretary of State. He did not mean to say that that discretion would be abused; but the measure would cast such a degree of uncertainty on the whole operation of the law, that neither prisoners, nor judges, nor jury would
  1656
  know the principle which was to regulate the punishment of offences. These were the principal objections he entertained to the Bill—he meant rather to its imperfections and its shortcomings than to its absolute demerits. In conclusion, he had only to repeat that he did not mean to propose any Amendments in the measure, as he felt that the subject was one which must be left in the hands of the Government.
  THE EARL OF HARROWBYsaid, that the noble Earl admitted that they would not continue to send out incorrigible offenders, but that those should be sent who afforded hope of reformation. It was impossible to do that unless the decision was left to the discretion of those who had an opportunity of judging of the conduct and character of the criminals. As to tickets of leave, it was not intended to retain them as a system, but to grant them only in exceptionable cases.
  THE MARQUESS OF SALISBURYsaid, that the insecurity of life and property after the establishment of the ticket-of-leave system was so great, that Committees of both Houses of Parliament were appointed to investigate the matter, and they agreed in the necessity of the reinstatement of transportation. The Bill carried out that recommendation in rather a singular way, as it commenced by enacting that thence-forward no person should be transported. The Bill entirely lost sight of the object for which the subject had been brought under the consideration of Parliament, as it did not contain a word about the ticket-of-leave system. Instead of leaving the nature of punishment to the dictum of the Secretary of State, it should be for the Judge to decide, as he had the best opportunity of becoming acquainted with the character of the man. He hoped, that as far as possible the system of transportation would be restored.
  LORD DENMANconsidered that the term of punishment imposed by the Judge ought invariably to be inflicted. He believed that many of the colonies would be still willing to receive convicts, if they were allowed to make their own arrangements for their disposal. The feeling of the country decidedly was that the system of transportation should be re-established. The ticket of leave was a total failure: 13 per cent might be a small thing as a matter of calculation, but any one of those who relapsed might commit a crime which would shock them all.
  LORD WENSLEYDALEthought it very desirable that the sentences of the Judges should be fully carried out, as he was quite satisfied that it was necessary for the suppression of crime that offenders should know that their sentences were certain.
  Motion agreed to. House in Committee accordingly.
  THE MARQUESS OF SALISBURYproposed a clause to enable the Secretary of State to direct the removal of any person sentenced to hard labour to any person in England or Wales, where public works were carried on. The object of this clause was to enable the Government to employ prisoners on reproductive works. The labour on which prisoners were now generally employed was such as to interfere with the trade of the honest industrious classes.
  THE EARL OF HARROWBYsaid, that the managers of the large convict prisons believed that the influx of a number of criminals, such as the clause proposed, would interfere with the success of the system.
  Motion (by leave of the House) withdrawn. An Amendment made; the Report thereof to be received on Monday next.

  DIVORCE AND MATRIMONIAL CAUSES BILL—REPORT.
  Amendments reported (according to order).
  LORD REDESDALEsaid, that he had given notice of certain Amendments, the object of which was to enable those of Her Majesty's subjects who, from religious convictions, did not think themselves justified in asking for a divorce to obtain a judicial separation in cases of adultery, and to authorize the Court in such cases to punish the guilty parties. As the Bill now stood, the Court had not the power, unless a divorce was prayed for. He should not, however, press the Amendments on that occasion.
  THE LORD CHANCELLORsaid, the discussion which had taken place had suggested various Amendments which he now asked the House to agree to. The first was, that the term "judicial separation" should be substituted for a divorce à mensâ et thoro, and that the same power be given to a sentence of judicial separation as now belonged to a divorce à mensâ et thoro. In reference to the 17th clause, he proposed to insert a clause, giving to a husband or
  1658
  wife against whom a decree of judicial separation had been pronounced on the ground of desertion, the power of applying to the Court for a reversal of the sentence, if it could be proved that the absence has been involuntary or unavoidable. Another Amendment which he proposed was that in cases, which might happen, where persons who had been judicially separated, chose to come together again, in order that it might be known that the woman had ceased to be a femme sole, the parties should enter a notice to that effect in some book to be kept by the Court. He also proposed to add a clause exempting Jewish marriages from the operation of the Act.
  The several verbal Amendments were agreed to.
  On the Motion of the noble and learned Lord the three following clauses were inserted in the Bill.
  To follow Clause XVII.
  Clause (A.) "Any Husband or Wife, upon the Application of whose Wife or Husband, as the Case may be, a Decree of Judicial Separation has been pronounced, may, at any Time thereafter, present a Petition to the Court praying for a Reversal of such Decree on the Ground that it was obtained in his or her Absence, and that there was reasonable Ground for the alleged Desertion; and the Court may, on being satisfied of the Truth of the Allegations of such Petition, reverse the Decree accordingly; but the Reversal thereof shall not prejudice or affect the Rights or Remedies which any other Person would have had in case such Reversal had not been decreed, in respect of any Debts, Contracts, or Acts of the Wife incurred, entered into, or done between the Times of the Sentence of Separation and of the Reversal thereof."
  To follow Clause XX.
  Clause (B.) "Where after a Divorce à Mensâ et Thoro or a Judicial Separation the Husband and Wife again cohabit, they may cause to be lodged with the Registrar of the Court a Declaration that their Separation has ceased, and the Registrar shall cause all such Declarations to be forthwith entered in a Book to be kept by him for that Purpose, and which all Persons shall be at liberty to search on Payment of a Fee of One Shilling; and until such Declaration has been so lodged with the Registrar, every Creditor or other Person shall in respect of the Debts, Contracts, and Acts of the Wife have the same Rights and Remedies as against the Wife and her Property as if such Separation had continued."
  To follow Clause LVIII.
  "Nothing herein contained shall give the Court hereby established Jurisdiction in relation to any Marriage of Persons both professing the Jewish Religion contracted or solemnized according to their own Usages."
  On Clause 54,
  EARL NELSONproposed an Amendment, the effect of which was to confine the marriages of divorced persons to civil

  1659
  contracts entered into before the registrar, thereby relieving clergymen from performing the ceremony, to which they might have conscientious objections. The noble Earl said that the divorce à vinculo was forbidden by the common law, which was based on the canon law, and that on the Scriptures. The advocates of the measure had shrunk from the Scriptural argument. Now, as this was an Act to repeal the ecclesiastical by the power of the civil law, the advocates of the measure had no right to avail themselves of the ecclesiastical power to carry out their objects. Those who in this House took the same view with himself were but twenty-six, but they represented hundreds out of doors who felt this law to be opposed to the Scriptures. How could a clergyman, when he put the question to persons presenting themselves to be married, whether they knew of any impediment to their marriage, how could he accept their reply that they did not? How could he conscientiously perform the ceremony under such circumstances? And if a clergyman, from conscientious motives, gave up his office rather than perform the ceremony, he was disqualified by the very fact of his holding holy orders from any civil office. They were thus forced either to violate their consciences or lose their means of living. There was an understood contract with the clergy, who were not represented in Parliament, not even in this House by the Bench of Bishops, for they had no voice in electing them. They ought to be consulted in this matter. The change ought to apply only to civil marriages.
  Moved—"To insert after the Words ('to marry again') the following Words ('in the Office of the Registrar, or in any Building registered under the Marriage and Registration Acts.')
  THE LORD CHANCELLORtrusted their Lordships would not accede to this Amendment. In order to get rid of a supposed difficulty on the part of the clergy, they were asked to deprive persons of a religious ceremony which, in their eyes, might render their marriage more sacred. The law having said that certain parties were no longer married, and that it was lawful for them to marry, he could not see why any clergyman should refuse to give credit to the law and be justified in declining to perform the marriage service. The clergy would, no doubt, act in regard to any civil rights in the same way as any other of Her Majesty's subjects, and the law having said that these persons being no longer husband or wife, he did not
  1660
  think a clergyman would refuse to marry them.
  THE BISHOP OF ST. DAVID'Ssaid, the Amendment rested upon two distinct grounds, upon one of which he should be ready to assent to it, and upon the other to reject it. The scruples of the clergy were represented as resting partly on the law of the Church, and partly on the law of God. If it were simply a question of the law of the Church, he should feel great difficulty in saying that there ought, or could be any law repugnant to the law of the land, or that any law of the Church could be pleaded for refusing obedience to the law of the State. But, with regard to the law of God, it was impossible for any Act of Parliament to overrule, or change, or affect in the slightest degree any conscientious scruples on that ground. Without feeling those scruples, he sympathized with those who did, and as the measure would probably multiply cases in which divorce would be pronounced, he would assent to the Amendment.
  THE DUKE OF ARGYLLtrusted their Lordships would remember that they were discussing in a very thin and empty House a question which, in a very full House, had been decided by a large majority. This was the Amendment of the right rev. Prelate (the Bishop of Oxford) in an aggravated form, because, whereas the right rev. Prelate proposed only to give individual clergymen room to exercise their own scruples, this Amendment absolutely prohibited any clergyman of the Church of England, whether he had scruples or not, from celebrating marriages between persons, one of whom had been divorced. In another point of view he thought the right rev. Prelates should oppose it. What a step it would be towards the separation of Church and State if, by an Act of Parliament providing that parties under certain conditions might marry again, they enacted that they might be married by registrars or ministers of dissenting congregations, but not by clergymen of the Church of England? He contended that the legal effect of this Amendment would be that the marriage could not be celebrated in any church of the Church of England or by any clergyman of the Church of England.
  THE BISHOP OF OXFORDsaid, he must call the attention of the House to a clause inserted at his own instance into an Act of last Session, by which clergymen were empowered to superadd the religious ceremony

  1661
  to any marriage which had been previously solemnized at the registrar's office in cases where the parties wished to avail themselves of the religious rite. He contended that the argument of the noble Duke fell to the ground, because the Amendment, together with the provision in the Act of last Session, would enable persons who wished to be married before the registrar, and yet to superadd the religious ceremony, to apply to a clergyman for that purpose, only taking care to obtain the services of one whose conscience would not be violated by the performance of the ceremony. The Amendment would therefore relieve clergymen who had a scruple in reference to such marriages, and at the same time enable parties to add the religious ceremony to a marriage solemnized before the registrar, if they wished to do so. He trusted, therefore, the House would grant this redress, for it was precisely in the track of the law that was passed last year, and so prevent the great evil of a collision between Church and State.
  LORD REDESDALEsupported the Amendment, contending that what was asked by it was strictly in accordance with the course of legislation in existing Acts of Parliament, and citing the case of the Quakers, whose conscientious scruples had been respected by the legislative permission accorded to them to substitute an affirmation for an oath. He added, that if he himself were a clergyman he should refuse to marry persons who had been divorced, believing as he did in the indissolubility of the marriage tie.
  EARL GRANVILLEsaid, it had been admitted with perfect fairness that the effect of the Amendment would be to reverse a decision which had been arrived at in a very full House, and he did not believe that if the House were now equally full, there would be any disposition to adopt such a course. He could hold out no expectation on the part of the Government that, as at present advised, they would be inclined to acquiesce in the Amendment. He did not think the reference of the noble Lord to the case of Quakers was at all in point, for Quakers were persons who were not in a position which required them to discharge public duties. If, as a right rev. Prelate had said, these marriages were forbidden by the law of God, why should a registrar be compelled to solemnize a marriage which he might consider contrary to the Divine
  1662
  law, while a clergyman was relieved from such an obligation.
  THE BISHOP OF ST. DAVID'Sexplained that his argument was, that a clergyman might have scruples, believing marriage under these circumstances to be contrary to the law of God. But he could not understand what kind of conscience that must be in a civil registrar, that could object to register a civil contract.
  THE BISHOP OF LLANDAFFsaid, although he did not think that the dissolution of marriage was in every case forbidden by the law of God, he believed that remarriage was contrary to that law. He would, therefore, support the Amendment.
  THE BISHOP OF SALISBURYsaid, he was convinced in his own mind that the marriages against which the Amendment was directed were contrary to the Divine law, and if he were called upon to solemnize such a marriage he could not hesitate as to which law he should follow—the law of his God or the law of the State. He, therefore, besought their Lordships, by adopting the Amendment of the noble Earl, to give clergymen a means of escape from the difficulty in which they might otherwise be placed.
  EARL GREYsaid, that when this question was previously before the House he had not supported the Amendment of the right rev. Prelate, who wished, as it appeared to him, to claim for individual clergymen the right to refuse to perform certain marriages which they thought contrary to the law of God. In his opinion it would be most objectionable thus to lay down the principle that the ecclesiastical law was to supersede the law of the land, and that individual clergymen might determine which law they would obey. As he understood, a practical and legal marriage could be contracted before a registrar, and therefore the inconvenience which might have arisen under the right rev. Prelate's Amendment would be in a great measure obviated. The statements made to-night as to the existence of scruples of conscience on the part of clergymen were much stronger than those made on the previous occasion, and he thought that, even as a matter of policy, such scruples ought to be treated with every possible indulgence. He trusted that Her Majesty's Government would adopt this Amendment; but, feeling the inexpediency of reversing in a comparatively small House, and

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  when the question was not expected to be raised, a decision previously come to, he should recommend the noble Earl who had moved the Amendment not to press it to a division at present, but to bring it forward again on the third reading of the Bill.
  THE BISHOP OF GLOUCESTERsaid, that in his own diocese there was a considerable number of clergymen who regarded this as a scriptural question. If the Bill passed without the insertion of some protection for the consciences of such clergymen, what the noble Duke (the Duke of Argyll) had said would be true in a different sense from that in which he meant it, and this would be a most important step towards the separation of Church and State.
  LORD STANLEY OF ALDERLEYsaid, that if their Lordships considered only the scruples of clergymen they might place in a very difficult position many members of the Church of England who objected to be married before a registrar. The effect of the principle involved in this Amendment would be to relieve the clergyman from the performance of any duties imposed upon him by law which he chose to say violated his conscientious scruples. He, for one, should most strongly object to the introduction of such a principle. On that ground, therefore, and because it was most unusual in a comparatively small House, consisting chiefly of friends of the Motion, to attempt to reverse a previously arrived-at decision, he hoped their Lordships would not agree to this Amendment. If they did, the question would be again brought forward, and there would be a third discussion.
  VISCOUNT DUNGANNONobjected to the statement of the House being taken by surprise. Due notice had been given by his noble Friend of the Amendment to which the noble Lord objected.
  EARL NELSONrepelled the charge of surprise, not having written to his most intimate friends respecting the clause. He regretted that he could not adopt the suggestion of the noble Earl (Earl Grey) opposite, which was a good one, if accompanied by any promse from the Government to reconsider their decision. As that promise had not been given he should feel bound to divide the House.
  THE LORD CHANCELLORsaid, that his impression of the clause was, that it would not enable the person to be married before a clergyman. Under the new Marriage
  1664
  Act it was quite clear that no marriage could take place except in the office of the registrar, or in some registered building. He trusted the House, whether taken by surprise or not, would not introduce so important an alteration as that suggested without its being materially considered. The language ought to be such as to place it beyond all possible doubt.
  EARL NELSONwould be happy to insert the words "In accordance with the Marriage and Registration Act," if the noble and learned Lord (the Lord Chancellor) would promise to support the Amendment.
  LORD DENMANbelieved that the Amendment would empower a clergyman to shut the church door in the face of any one that he believed to be a guilty person. He should therefore oppose it.
  On Question, Whether the said words shall be there inserted?
  Their Lordships divided:—Contents 17; Not-Contents 20: Majority 3.

  CONTENTS.

  Carnarvon, E.

  Llandaff, Bp.

  Grey, E.

  Oxford, Bp.

  Mayo, E.

  Salisbury, Bp.

  Nelson, E. [Teller.]

  St. Asaph, Bp.

  Powis, E.

  St. David's, Bp.

  Dungannon, V.

  Colville of Culross, L.

  Melville, V.

  Congleton, L.

  Dunsandle and Clanconal, L.

  Gloucester and Bristol, Bp.

  Redesdale, L. [Teller.]

  NOT-CONTENTS.

  Cranworth, L. (L. Chancellor.)

  Denman, L.

  Foley, L. [Teller.]

  Townshend, M.

  Meldrum, L. (M. Huntly.)

  Ponsonby, L. (E. Bessborough.) [Teller.)

  Airlie, E.

  Granville, E.

  Rivers, L.

  Harrowby, E.

  Stanley of Alderley, L.

  Minto, E.

  Sundridge, L. (D. Argyll.

  Portsmouth, E.

  Yarborough, E.

  Talbot de Malahide, L.

  Manchester, Bp.

  Truro, L.

  Ripon, Bp.

  Wrottesley, L.

  LORD REDESDALEgave notice that on the third Reading of the Bill he should move the omission from the third clause of the words "and divorce;" and in the event of the House agreeing to omit those words, to move such further Amendments as may be required to deprive the Court of the power of pronouncing decrees for the dissolution of marriages.
  THE BISHOP OF OXFORDgave notice that, in the event of this Amendment not

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  being carried, he should move that the Bill be read a third time that day six months. The Bill contained several Amendments of the law which he should be glad to see carried into effect, but he could not consent to purchase them at the cost of the very serious injury to the morals of the people which the introduction of this law of divorce would bring about.
  EARL NELSONalso gave notice that he should again move the Amendment which had just been negatived, or one to a similar effect.
  Bill to be read 3a on Monday next.
  House adjourned at half-past Nine o'clock till To-morrow, half-past One o'clock