HL Deb 31 May 1864 vol 175 cc882-910

Order of the Day for the Second Reading read.


My Lords, I do not know whether, in considering the second reading of this Bill, your Lordships will be disposed to discuss the general principles which ought to guide us in legislating on the subject of secondary punishments; but it will probably be convenient that in moving the second reading I should, in the first instance, explain shortly what are its provisions. They are not complicated, but are, on the contrary, of a very simple character. Except with regard to two of its clauses, I believe the Bill to be founded exclusively upon the recommendations of the Commission which, as your Lordships are aware, was composed of very eminent men, and who devoted so much time and consideration to this subject last year. Although I am quite sure your Lordships will exercise your independent judgment as to the provisions of this measure, yet at the same time I cannot help feeling that you will view with considerable favour recommendations which emanate from the Commissioners, and which have also received the sanction of the House of Commons. I will refer in the first place to those recommendations of the Commissioners which have not been carried out. The first clause contains only the short title of the Bill. The second clause makes it impossible for the Judges to sentence a prisoner to less than five years of penal servitude. This was not a recommendation of the Commissioners. They were of opinion that the system of transportation to Western Australia which is now in existence should not only be continued, but be augmented; and, although their recommendation was accompanied by many restrictions and limitations, which he believed were not well understood either in this country or in the colonies, its practical effect would have been to about double the number of convicts sent out to Western Australia. Subsequently to the Report of the Commission, the Government received from the Australian colonies an expression of opinion which they thought it impossible to resist. The Commissioners themselves were not aware of the strong feeling which existed in the colonies on this subject.


On the contrary, we had the fullest information.


I do not think it is possible that the Commission could have been fully aware of the feeling which exists in the colonies; and I am confirmed in my view by the change of opinion which took place in one of the noble Earl's Colleagues upon the Question, for I cannot but believe that this change was brought about by the strong feeling afterwards expressed in the colonies with respect to transportation. It was impossible not to deny the existence of this feeling. From each of the Australian Colonies, except Western Australia, there came the strongest remonstrances. One Governor after another wrote home. There were meetings of intercolonial delegates, representing the Legislatures of New South Wales, Victoria, South Australia, and Tasmania, all unanimously praying that the stain of convictism should be removed from them. The Governors all bore testimony that this was the feeling not of one class only, but of all classes on the community; and that there existed the utmost anxiety and alarm on the subject. I do not say that a good deal of that feeling was not unfounded; but I do say that it is an unwise thing for Governments, in dealing with large communities, to disregard a strong and a universal feeling, founded upon what all must acknowledge to be a very honourable and creditable sentiment. As regards transportation itself, no doubt your Lordships would desire to get rid by its means of our criminal classes if we could do so; and there was a time when transportation was very effectual, because it was regarded with greater dread than any other punishment; but when we remember our own extreme anxiety to get rid of our convicts, we must, I think, admit that it is not unnatural that the colonists should feel excited by even the remote danger of being inundated again by these men, either before they had finished their time, or after they had served their full sentence. These are the considerations which induced the Government, with the approbation of some of the most eminent members of the Commission, to give up the proposed extension of transportation to Western Australia. At the same time, they did not yield to that which they thought unreasonable on the part of the colonists, for they believed it to be only fair and just towards Western Australia, which had been saved from ruin as a colony by convict labour, to continue the supply of that labour which the colony now receives. Having determined on this alteration, it became absolutely necessary to reduce the minimum of sentences of penal servitude from seven years, as recommended by the Commission, to five years. Except this clause and the fourth clause, the principal object of which is to insist upon a monthly report of the ticket-of-leave man to the police, I believe all the rest of the Bill strictly accords with the recommendations of the Commission. The fourth clause was not originally in the Government Bill, but was inserted owing to the strong feeling-which existed in the other House of Parliament. The third clause relates to offences committed in convict prisons, and for the better maintenance of discipline empowers two justices, acting upon the warrant of the Secretary of State, to deal with those offences on the spot, and to order the infliction of corporal punishment. A very important recommendation of the Commissioners is adopted in the fifth clause, relating to offences committed by the holder of a ticket-of-leave; and it is provided that if he fails to produce his license when required, or breaks any of the other conditions of his license by an act which is not of itself punishable either upon indictment or upon summary conviction, in that case he shall be subject to summary punishment for not more than three months. There is also a clause providing that the police shall be able to apprehend without a warrant the holder of a license reasonably suspected of having committed any offence, or broken the conditions of his license. The next clause describes the procedure by which a summary punishment shall be inflicted; and the eighth clause provides that a certificate of this summary conviction shall he forwarded to the Secretary of State, The ninth clause is one of considerable importance, and relates to the revocation of tickets-of-leave. It provides that where any forfeiture or revocation takes place in consequence of a re-conviction, the holder shall, after undergoing the punishment to which he may have been sentenced for the new offence, be condemned further to undergo the term of penal servitude which remained unexpired when his license was granted. The last clause is an unimportant one. Having gone through the provisions of the Bill, it will probably be convenient that I should reserve further observations until I see what turn the discussion takes, and can afford what further information the House may require.

Moved, "That the Bill be now read 2*"


My Lords, I rise, with your Lordships' permission, to make a few remarks upon this Bill, and I feel I shall require additional indulgence from your Lordships, because, though I am inclined to view with disfavour certain provisions of the Bill, I do not intend to oppose it in its integrity. The Bill has come from the Lower House, and carries with it not only the authority of that House, but also the high authority of the Commission of eminent persons who were appointed to consider this subject. I agree that in the main the measure may be treated as carrying out the recommendations of the Commission. There is one point to which, no doubt, your Lordships will be inclined to give much attention — namely, with regard to the propriety of continuing or discontinuing transportation; but upon this point I shall not think it necessary to trouble your Lordships with any remarks. I believe the abandonment of the system of transportation to be one of the greatest social misfortunes which have ever fallen upon this nation, and I am bound to say that, having given my best attention to this subject, I cannot but feel that the policy of this country with reference to this question has been guided in a very false direction. I am afraid, however, that the question has now become one of sheer necessity, and that it is of no use to irritate our great colonies any further, for the mere chance of keeping on a few convicts for a year or two longer. You have placed yourselves in a difficulty from which you will find it impossible to extricate yourselves, and must take the consequences. But there is another question of very great importance involved in the Bill, and to this I desire to call your Lordships' attention — the manner in which we are to treat those unhappy persons who are furnished with what are called tickets-of-leave. The ticket-of-leave system is a sort of imitation of the licenses which were formerly given to the convicts in the colonies, who were furnished with them as a means of establishing themselves in service in different parts of the colony. This system has to some extent been applied to the convicts in this country; but the circumstances are entirely different, for the convicts had the means of obtaining employment in the colonies which they did not possess in this country, I remember that Chief Justice Earle before a Committee of the House of Commons expressed his concurrence in the ticket-of-leave system, because he regarded it as a means of encouraging hope in the mind of the convict; and he added that if the convict were deprived of hope he would be reft of the very foundation of all moral improvement. If, then, one of the grounds for granting tickets-of-leave be a desire to assist the convict to an honest livelihood, surely it is very unreasonable to place so many difficulties in the way of his procuring employment as are contemplated by this Bill. The provisions of this Act will really place him in a much worse position than he was before. If the ticket-of-leave were contemplated as a means of furnishing a convict with the opportunity of earning an honest livelihood, it is surely unfair to place him in a position fraught with such constant mental anxiety, and such unceasing trouble in procuring employment, that it would have been far better both for him and the country if he had never had a ticket granted him at all. There is one provision of the Bill which appears to me so utterly objectionable that, if my views find the least favour with your Lordships, I shall take the liberty of dividing upon it in Committee. I refer to the police supervision contemplated by the Act. Up to this time, I believe, there has existed no real provision of the law by which any man can be ordered to place himself under the supervision of the police. The police have hitherto represented the vigilance of the law, their duty has been to act as the preventors or detectors of crime. But it will be an entirely novel system to enact that a man shall voluntarily present himself to the police and declare that be is a criminal. I trust that your Lordships will agree with me in thinking that this is a principle which in many respects runs counter to the tenour of the institutions of this country. It must be remembered, too, that the police are empowered to arrest any ticket-of-leave man without a warrant. This is a provision to which I cannot but object. The law in this respect appears to me to be defective. What provision is there against mistaken identity? I think that the position in which the ticket-of-leave men will be placed by this Act is a very grave one. The power which the Act proposes to place in the hands of the police is one which will not in every instance be wielded by men equal in character and discretion to those employed in the metropolis, who have besides vigilant and intelligent officers at their head. The power will also be committed to the police of the manufacturing towns and the rural police who cannot be expected to have the same intelligence, or to be amenable to the same discipline. The result must be very disastrous to the liberated convict. After he has surmounted the difficulty of obtaining some honest employment, and had got a chance of regaining his social position, he will have to ask a periodical holiday for the purpose of presenting himself to the police; and he will thus be compelled to declare himself unfit for the new social sphere in which he is moving. It is true that a somewhat similar system has been successfully adopted in Ireland. But there is a great difference between the circumstances in which it is applied in the two countries. There is not in England, as there is in Ireland, an intermediate prison, where the convict finds temporary employment; and, above all, we must remember that in Ireland the law is not regarded as it is in this country. The law is there looked upon as the enemy of the honest man. There is an entire absence of that superstitious reverence with which the law is regarded in England; and, though the crimes against property in Ireland are fewer in proportion to the population than they are in England, the fact of a man's being a criminal is not received with so much disfavour; he is not placed under the same social ban, and there is much less objection to afford him employment after the term of his imprisonment has expired. I have gone over the Commissioners' Report, and I certainly can see no ground for the assertion that the reformatory system has failed. We are told in that Report that in proportion to the increased population crime has decreased. We are also told there that no evils have followed the adoption of the milder system. A more deterrent system has been tried and has not succeded, and it became necessary to adopt some other plan. Therefore, it was that the reformatory system has been established in this country. I believe the principle of reformation, moderately and judiciously applied, not in a spirit of false and sentimental extravagance, will be found the most suitable for the treatment of prisoners.


said, he regretted that the Government had found it necessary to abandon that part of the Commissioners' Report which related to transportation. At the same time, he could not agree that the Commissioners had before them all the information which the Government afterwards obtained. One great element of transportation, which made it formerly a valuable mode of punishment, was now wanting—its deterring quality. There could be no doubt transportation had been the best system for this country, for the convict himself and also for the colonies, as it offered the greatest opportunity to the convict to reform his habits; but, on the other hand, he agreed that the feeling of dislike with which it was regarded by the colonists of many colonies rendered its continuance difficult if not impossible. In this country, where there was almost a glut of labour, it must be in a high degree difficult for a man once tainted with the mark of a convict to re-establish himself; but there had been no such difficulty in the colonies, where, owing to the vast extent of territory over which the population was scattered, labour was so much in demand. Transportation, however, being now impossible, the Commissioners had to consider the best substitute. The Lord Chief Justice had taken a view which the other Commissioners had very carefully considered, but had not been able to adopt. Objections had been made to the element of uncertainty involved in a system of remissions of portions of sentences; but by the law as it stood, upon certain conditions being fulfilled, a convict was entitled to certain remissions of his sentence. The question was whether that was a right principle to act upon, and he could not but think that it had been found useful. All the evidence went to show that a criminal suffering a long period of punishment could not be kept to habits of industry if he was deprived of hope, and he could have no hope to influence him but the expectation of a diminution of the term of his punishment. That fact, too, was important, because it showed that those who complained that penal servitude had no terrors were mistaken. If the punishment in itself had no terrors, there would be no strong desire to shorten the period of its duration. It was true that one or two cases were mentioned in which persons had committed offences expressly for the purpose of being sentenced to penal servitude; but those were idiosyncrasies with which it was impossible to deal. The great bulk of the criminal classes had a strong distaste for penal servitude, and therefore to that extent it had a deter rent influence. Then came the question, What should be the position of a man sentenced to a long period of punishment? The Commissioners proposed that, for the first nine or twelve months, the convict should be kept almost entirely in a state of solitary confinement, and that afterwards he should be sent to Chatham, or Portland, or other places where he could be set to hard work. The recommendation of the Commissioners was not at all to diminish the period of punishment on account of good behaviour in prison. Bad conduct in prison could be punished. Their recommendation was that a certain number of marks should be allotted to each convict for every day of his punishment, so that if he continued to work industriously he might, upon obtaining a certain number of marks, also obtain a remission of part of his period of punishment. He believed that the practice of working hard and perseveringly for two or three years, with the hope of remission in view, was the most likely means of engendering industrious habits, and of giving to the convict a chance of setting himself right with the world after his release. Then came the question, whether a man ought to be allowed to leave the prison free or upon what was called a ticket-of-leave? He could not see that with proper management there would be any difficulty in retaining a hold upon a man during the remainder of his term of punishment which had been remitted. He quite agreed that if the ticket-of-leave holder was required to report himself every month to the police, injurious consequences might follow. A man could not long comply with that regulation without his position becoming known. In Ireland, the ticket-of- leave holders in the metropolitan district reported themselves, not to the police, but to an officer connected with the convict establishment. That establishment possessed a remarkably intelligent officer, Mr. Organ, who had applied himself with great energy to improving the habits and position of the discharged prisoners. The Commissioners recommended that to an officer of the convict establishment some kind of control over released prisoners should be given. With the objection taken by his noble Friend (Lord Houghton) to the power given to a policeman to arrest, without warrant, a ticket-of-leave holder who violated any of the restrictions imposed by his licence, he could not concur, His noble Friend said that such a power was un-English; but that really was not so. At present, a policeman could arrest, without a warrant, any person whom he might see committing a breach of the law. Upon the whole, he hoped the Bill would be found useful, and he should give his support to the second reading.


said, he entirely concurred in the adoption by the Government of the recommendation of the Commission, not to extend the present system of transportation to Western Australia. He had always felt great anxiety on the subject of transportation, and its effect upon the relations of the colonies with the mother country. When connected with the colonies some years ago, he became aware how universal was the feeling in the colonies against the system, and he knew that the extent of that feeling was very much underrated by many public men in this country. He always dreaded that the system might become a source of collision, and produce the most unhappy results. It was not at all surprising to him that, when the appointment of the Commission became known, the colonists not only of Australia but of the Cape of Good Hope made the most solemn and urgent representations against any extension of the system of transportation. It was useless to say that this was an unreasonable feeling. In his opinion it was not an unreasonable feeling, but one founded on the most honourable principles of human nature. It was a feeling in which every one of their Lordships would have participated if they had been placed in Australia or at the Cape instead of in Eng- land. No one who had looked into the subject could doubt that society in Australia had been deeply tainted by the employment of convict labour, to which it was the fashion to ascribe their prosperity. He had recently received a letter from an eminent man, formerly the Governor of one of our colonies, in which he expressed the deepest anxiety as to the course which Parliament might pursue on the subject. It was looked upon by the colonists as a point of honour as well as a point of interest to prevent any extension of the system of transportation. They said it did not matter whether the number of convicts proposed to be sent out amounted 10 or 10,000—they would have none of them. It was the same principle as that which formerly actuated the American colonists, when they denied the right of this country to tax them without their consent. Unfortunately the Government of that day persisted in their policy, and thus gave rise to the War of Independence, and to the separation of the colonies from this country. The people of Australia were loyal and attached to this country, but only on this condition—that we should not attempt to put upon them the great insult, as well as great injury of making them convict settlements. It would be a great injustice to these colonies to attempt to extend the principle over so vast a continent as that of Australia. It was a question of feeling with the colonies, for if convicts were sent there they would find their way all over Western Australia. In order to prevent that, they had passed Bills which were most unconstitutional in their provisions, and in those Bills we had acquiesced rather than enter into a quarrel with them on a matter of that kind. What occurred at the Cape of Good Hope should be a warning to us. His noble Friend on the crossbenches (Earl Grey) must remember what took place at the Cape when he was Secretary for the Colonies. Nothing could be more violent than the conduct of the people. They would not allow any communication with the ship, or any provisions to be supplied, because she had a few convicts on board; and their refusal was supported by the principal of the colonists. This was a sufficient proof how strong was the feeling of the colonists on this subject. He had received communications from which it appeared that the system of bush-ranging was breaking out again in Australia, and this was ascribed to the old convict blood. The colonies were a valuable possession of the British Crown, and it would be madness to adopt any system which would lessen the affection they entertained towards this country. Therefore, he held that so far from yielding to an unreasonable clamour, the Government would have been inexcusable if they had not respected the universal, deep, honest, well reasoned feeling of the colonies on the only point in which we could have a quarrel with them—the extension of the convict system. He entertained very strong feelings on the subject, and he considered himself bound in duty to the colonists to express it on this occasion.


I am not about to enter on the subject of transportation, although the observations of almost every speaker have been chiefly directed to that question. I certainly do not agree with all that has fallen from the noble Lord opposite, and am very much disposed to dispute the analogy which has been drawn between the state of feeling in America in regard to taxation, and that which is stated to exist in Australia in relation to transportation. So far from there being a universal concurrence of opinion in opposition to it, I must remind the noble Lord that at the time he was Colonial Secretary the district of Moreton Bay (now the colony of Queensland) petitioned for an increase of convicts. But putting aside the subject of transportation, the questions raised by this Bill, and the principles embodied in it are so large and important, that they ought to be discussed by themselves. There are, indeed, several modes in which the discharge of a prisoner can be effected, but the chief rival and antagonist theory to the principle embodied in the Bill may be briefly expressed thus — short, sharp, and certain sentences—the system, in fact, advocated by the Lord Chief Justice in his memorandum. If, indeed, this were the only alternative I should not shrink from giving my voice in favour of that principle; justice must be done, and society must be protected, and I have certainly no sympathy with that sentimentalism which shrinks from inflicting a due measure of punishment upon a criminal who may have inflicted great injury on society. But at the same time I feel very loth, without good and clear reason, to strike off from the system of penal administration that most important branch of it which looks, not merely to correction and punishment, but also to the reformation of criminals. I agree in many of the remarks that hare fallen from the noble and learned Lord (Lord Cranworth). There have been, no doubt, three causes which led to the failure of our penal system. First, there were certain elements wanting which ought to be there, and these, I believe, are embodied in this Bill, In the second place there were certain conditions essential to its success, and these conditions will he enforced by this Bill. The third and last cause was the unfortunate course of action taken on the one side by many of the Judges, and by the Home Secretary on the other. The Judges availed themselves too frequently of their power of passing short sentences, and showed a leniency towards criminals hardly compatible with the protection of society. Coupled with that there was so much uncertainty, so much vacillation, and so much misplaced tenderness evinced towards great and notorious criminals on the part of the Home Secretary, that crime received a fresh impulse in this country. These three causes led to the breaking down of the present system. Now, this Bill comes before your Lordships in a very different state from that in which it was originally presented to Parliament; and it is not so much to find fault with what has been done by the Government as for the right understanding of the question that I wish to advert briefly to the form of the Bill when first introduced into the other House. In the first place there was then altogether wanting from the measure the clause alluded to by my noble Friend opposite, providing for a regular police supervision of ticket-of-leave holders. The omission of that provision would, in its effects, have been very injurious to society, and most cruel towards the convict himself. There was, indeed, when the Bill was brought into the other House by Sir George Grey, a proposal that the convict on his discharge from prison should report himself within seven days to the police station of his district, but after that time all supervision over him should cease. Therefore the Government had no right to condemn the principle of supervision in toto. Their proposal, however, was founded on an impossible compromise between a system of supervision and no supervision, and on the assumption that the police, from this single visit of the convict, would be able to know and identify him in case he relapsed into crime; although, at the same time, there was no sort of machinery provided for carrying that supervision into practical effect. Under those circumstances one of two things was certain. Such a limited amount of supervision as that would either have been nominal or real. If only nominal it would have provided nothing better than the existing system which has broken down, and would have held out more and more hope of impunity to the convict by discharging him without any actual check or restraint hanging over him. But another and a still more serious result would be, that the police, conscious of the indirect responsibility you were placing upon them, by making the convict report himself to them once, would very soon have turned the nominal supervision into a real one; and it would then have become not a direct, legitimate, and authorized supervision exercised by responsible persons, but would have degenerated into the most mischievous and pernicious of all forms of espionage The policeman having seen the convict once immediately after his discharge, and knowing that he would be held responsible for identifying him if he should relapse into crime, would have dogged his steps, set about making inquiries as to his residence, his habits, and his occupation, and raised every sort of suspicion against him in his neighbourhood in a way that would have debarred him from honest employment. This has been remedied by the Amendment which has been introduced in the House of Commons. But this is not all. In the schedule of this Bill, as originally drawn, the ticket-of-leave holder was strictly prohibited from emigrating. I have nothing now to say against that proposal in itself; but I may observe that in the papers laid on our table relating to penal servitude there is to be found an expression of Sir G. Grey's willingness to give a bonus of £3 for every prisoner dealt with by the Discharged Convicts' Aid Societies. Now, those societies are, I believe, among the most valuable institutions in the country; but they represent themselves and quite truly in all their annual reports as being dependent upon emigration for the success of their operations. Here, then, you have the Government placing them selves in a very anomalous position. By the Bill, as originally drawn, they were seeking to prohibit by legislation the emigration of ticket-of-leave holders, and, at the same time, they were ready to supply money to a society the avowed object of which is to provide such persons with the means of emigrating. There is another point in regard to which the Bill, as first introduced, was not only powerless to do good, but most powerful to do mischief. If there be any part of our penal system which is more free from defects than any other, it is the Irish system. But so inconsiderately and imperfectly was this measure constructed, that one of its first results, if passed into law, would have been to destroy a most valuable portion of the Irish system. The license proposed to be enacted was of such a nature that all those female refuges which have been carried on in Ireland with such success would have absolutely been closed, and it was only by introducing another clause into the Bill that that difficulty was overcome. Such was the position of the Bill as originally proposed. Since then it has undergone material changes, some of which are great improvements. I was sorry to hear the noble Lord (Lord Honghton) express an opinion so hostile to police supervision. There has been so much misapprehension on that subject that I desire to make it as clear to your Lordships as I think it is to myself. The noble Lord said one effect of this police supervision would be that it would oblige the ticket-of-leave holder to get a holy day from his employer in order to go and report himself. Let any one look carefully at the words of the clause, and I defy him to put such a construction on them as has been done this evening. The words are that the prisoner is Subsequently to report himself once in each month, at such time and place, in such manner, and to such person as the chief officer of such station shall require. This language gives the widest possible latitude for the exercise of this power. I admit that it is a great and delicate power to in trust to the chief constable; but it may be so exercised as in no possible case to entail any hardship. The police authorities would obtain their knowledge of a man's residence, habits, and employment in fifty different ways—through the instrumentality of the Discharged Prisoners Aid Society, through the agency of the clergyman of the parish, by means of communication with his master. I do not, indeed, see why the communication should, in most cases, be a personal one; and I should hope the result would be in many instances, that the chief constable would feel himself justified in requesting the Home Secretary to advise the Crown to issue a free pardon. That practice has been followed with the best results in Ireland, and it is obvious that a free pardon so obtained would be a great reward to the man himself, and a great inducement to others. But I am not defending police supervision on abstract grounds, or with merely theoretical arguments; on the contrary, I can appeal to facts and precedents which are within the cognizance of the whole country. Every one admits that the Irish branch of the system works well. Now, the Irish plan is based upon police supervision, and, so far as it has gone, the employers of labour in Ireland, as a general rule, not only prefer to have police supervision, but would decline to accept the services of ticket-of-leave men if that supervision were not to exist. Let me mention another remarkable fact bearing on this point. A few years ago there was an application made by some large contractors in England to the Irish Department for a supply of ticket-of-leave labour; but the application was accompanied with the stipulation that the holders of the tickets-of-leave while in England should be subjected to the supervision of the police. In consequence of that stipulation the application broke down, for the Home Secretary was not disposed to make any concession in that direction. But what I have stated shows, first of all, the ready disposition of large employers of labour in England to accept the services of ticket-of-leave men; and, next, the common sense view which men of business entertain that such men would work better and more safely if they were subjected to the supervision of the police. It has been said, in the course of the debate, that the police are not the proper persons to execute this duty, and a suggestion has been thrown out with respect to the formation of a department something analogous to that which exists in Ireland. I have little objection to the formation of such a department in England except on the score of expense; but, on a further opportunity, I should be prepared to maintain and to show again by facts and precedents, that the police are not only the best persons to discharge the duty, but are absolutely the only persons competent to perform it, always, of course, under proper control and subject to proper regulations. Substantially, therefore, I approve the Bill as it now stands, and I trust it will pass through the remaining stages unimpaired on any material point. There are, no doubt, certain amendments which I think might be inserted with advantage in Committee; but as to the main principle of the Bill, I believe it is correct. As it stands, the Bill constitutes a great, important, and beneficial alteration of our system of penal administration, especially when joined with those extensive changes which the Home Secretary has sanctioned within the walls of prisons. But I deeply regret that while the Home Secretary was initiating important changes in the penal administration of the country, he should have done so with almost expressions of hostility on his part—that the Bill, in fact, appeared to have been wrung out and extorted from the right hon. Gentleman. No doubt objections may be stated to any measure of the kind; but I venture respectfully to tell the Government that, in carrying through this Bill, and in giving practical effect to it afterwards, the country will hold them responsible for seeing that it has had fair play and justice done to it.


My Lords, it is my intention to support the second reading of this Bill, inasmuch as, with all its defects, it will, undoubtedly, be an improvement on the existing laws. But I am bound to say that I cannot regard it as so satisfactory as it ought to have been. Among the minor objections to it one of the chief is, that it contains no provision for subjecting those, who may be called professional thieves, to a more lengthened punishment than persons of a different character convicted of like offences. No fact has been more clearly established by evidence and experience than that persons who betake themselves early in life to thieving as a profession are never withdrawn from it except by some prolonged and very severe punishment. It was upon that account the Commissioners recommended that some arrangement should be made to insure a longer punishment for these persons; and I think it a great defect of the present Bill that it proposes nothing of the kind. Again, I concur with the noble Lord (Lord Houghton) who objected to the terms of the clause with respect to the supervision of released criminals. I am strongly of opinion that a criminal discharged on a ticket-of-leave ought to be kept under strict control; but still I entertain serious objections to the clause in its present shape, and I trust it will be amended in Committee. My only other minor objection is that it seems to me the Bill ought to have cleared up the question, on which there is now a great deal of doubt, as the legality of the emigra- tion of ticket-of-leave men. Some persona of great knowledge and authority are of opinion that under the law, as it stands, ticket-of-leave holders cannot legally leave this country. Whether they are entitled to do so or not is a question of great importance, and one which ought to be decided one way or another. But the main objection I take to the Bill is, that it substitutes a period of five for seven years as the minimum term of penal servitude. If there was one point more clearly established by the evidence taken before the Commission than another, it was that the early return of convicts to the places where they have committed their crimes is one of the greatest sources of evil, and has contributed, probably more than any other single cause, to the increase of crimes. As far as I remember there was not a single witness examined before the Commission who expressed the slightest doubt upon that subject. In the first place, the early return of criminals who have been sentenced to penal servitude to their usual haunts, has the effect of throwing upon the public a class of men who have practically no other resource to obtain a living but stealing; who are, no doubt, taught caution by the punishment they have undergone, but who are compelled to resume their old habit of preying upon society. But worse than that, the early return to their former haunts of men known to have been sentenced to penal servitude has done more than anything else to break down the fear of punishment among the unconvicted criminal class. The latter do not know the severe hardships which the convicted criminal has undergone in the penal establishment, but they see a man who had been convicted of a serious offence return in three or four years to his old place of abode, and they are apt to say to themselves, "Well, if the worst comes to the worst, it is not so very bad after all; we shall soon return home, as many have done before us." More than that, it has been clearly shown by evidence, that returned convicts are often the corruptors of the young and their instructors in crime. Shut out in a great degree from honest employment, the chief resource of the old criminals is to seduce the young into crime, in order that they may live on the produce of their misdeeds. For these reasons it appeared to the Commission that one of the main evils of the present system was that it enabled convicts so speedily to return to their former haunts. The Bill in its present form will effect a comparatively slight change in that respect. As the law stands, the great majority of convicts are sentenced to three or four years' penal servitude, which it is in their power, by industry and good conduct, to reduce, in the one case by six, in the other by nine months remission. On the average they are actually in confinement for about three years. It is now proposed that the minimum sentence should be five years, of which nine months are to be passed in separate confinement, and the remainder in penal labour on public works, the convict having the opportunity of gaining a remission of a quarter of the time he is liable to serve on public works by industry and good conduct. A convict, therefore, who is sentenced to five years' penal servitude, after passing nine months in separate confinement, will be sent to labour on public works for four years and three months, with the power of earning by industry a remission of one-fourth (or rather more than a year) of this time. Hence the evil to which I have referred will remain much as it is now, since the only difference will be that the convict will be able to return to his former place of abode in rather less than four years after his conviction, instead of three years after it, as at present. The Commissioners proposed instead of this that seven years should be the minimum term, with a further recommendation, the effect of which would practically have been to withdraw the majority of convicts permanently from this country. They proposed that all convicts, if not disqualified, should be ultimately removed to Western Australia, and there receive their discharge on ticket-of-leave. Experience proves that of those sent in this manner to the colonies a very small percentage ever return to this country. It is difficult to overrate the advantage of thus permanently removing criminals from this country; and there is, in my opinion, little doubt that the present increase of crimes is in a great degree to be attributed to the fact, that so many more convicts are now discharged at home than formerly. In the last two or three years there has been a marked increase in the prevalence of crime. I do not mean to say that there has been an increase of crimes in the present time as compared to a somewhat distant period. On the contrary, if we look back twenty or thirty years, there had doubtless been a perceptible and gratifying diminution of crime. It would, indeed, have been very extraordinary if this had not been the case, considering how many causes of improvement are now in operation. In the first place, there has been the establishment of a well organized police throughout the country. Then there has been the general establishment of reformatories. Besides this there has been a much wider diffusion of education than formerly, and that, too, of a superior quality. And, above all, there has been a marked improvement in the general welfare and condition of the people, arising mainly from the increased demand for labour. These were changes tending greatly to the diminution of crime. But it does not appear to me that the improvement has been nearly so great as it ought to have been, and the Returns before us clearly prove that in the last two or three years there has been a marked increase of crimes of a serious character. And it is not a little significant that this late increase of crime is coincident, in point of time, with the discharge from penal servitude of the earliest prisoners subjected to the short sentences authorized by the Act of 1857. That is a confirmation of the opinion that the early release of convicts and their speedy return to their former places of abode constitute a great evil. The Commissioners, in recommending that the minimum sentence of penal servitude should be seven years, contemplated, as I have said, the transportation of the great majority of convicts to West Australia, where they would receive tickets-of-leave. The Government have, as it appears, been induced to adopt the five years' limit, instead of that of seven which was recommended, because they have resolved not to follow the other recommendation as to the general removal of convicts from this country. And if the latter proposal is to be abandoned, there is, I own, much to be said in favour of rejecting the other also, and making the minimum sentence five instead of seven years, because there would, no doubt, be a serious objection to retaining convicts for that longer period under punishment, or with tickets-of-leave, at home. The question as to what ought to be the length of the sentence depends on whether convicts are or are not to be sent to Western Australia. As far as this country is concerned, it is not, I believe, denied that the advantage to be gained by their removal is obvious and substantial. We relieve ourselves by it from a class of persona who are dan- gerous in themselves and demoralizing to others. The advantages to the criminals themselves appears to me to be equally clear. The condition of a discharged convict in England is cruel and painful in the extreme. While debarred from nearly every means of earning an honest livelihood, he is surrounded by temptations almost irresistible. He is most probably a person of strong passions, and has been deprived of all indulgence for several years, He finds himself on his release among his old associates in vice, ready to seduce him into his old practices, with public-houses inviting him with open doors, and with opportunities for plunder on every side, It is almost too much to expect that in such a position they can resist the temptations to which they are exposed, and it is too well known what is the, usual result. On the other hand, in West Australia, the convicts are in a great degree removed from temptation, and have every encouragement to good conduct since they find an ample demand for their labour, and if they behave well they can not fail to rise to a comfortable station in life—often to own houses and lands, and to become in their turn the employers of labour. Already a considerable number of the convicts who were sent out there thirteen or fourteen years ago have reached this satisfactory position. Many have become prosperous men, living in their own houses, cultivating their own land, and employing the labour of convicts subsequently sent out. They are also removed from most of the temptations to which discharged convicts are exposed at home. In the colony they are dispersed over wide districts of country, with few opportunities of getting into bad company, and often not having a public-house within many miles. They are subject to close supervision by the police; and there is a moral certainty that, if they commit even the smallest offence, they cannot escape detection, and will at once incur a sharp and severe punishment. The result of this twofold advantage is that, whereas in England experience proves that a very small minority of discharged convicts fail to fall back sooner or later into the penal ranks, in Western Australia experience is equally decisive that it is only a small minority who so relapse, and that, whether they are at heart reformed or not, the great majority live outwardly lives of honest industry. Such are the advantages of transportation to this country and to the convicts themselves. To Western Austra- lia the advantages are hardly less striking. That colony possesses great resources, but they can only be turned to account by labour, and labour is wanting. Owing to the great attractions of the other colonies, and especially of the goldfields, few free emigrants of the labouring class ever go to Western Australia. And it is well that this should be so, for I think it highly desirable that the free emigrant should go to colonies where he will have greater advantages than are enjoyed by men sent out as convicts. Your Lordships will observe that I do not dwell upon the effect of removal to the colony as a punishment; because, though formerly, in a different state of society, when Australia was less known, removal to that part of the world was in itself a severe punishment, this has ceased to be the case, and you must look for the efficiency of the punishment to the penal labour which precedes the discharge of the convict. The advantage of sending a convict to Western Australia is, that with a ticket-of-leave he can be discharged under circumstances which enable him to do well, and which prevent the country from suffering, as it would suffer, if he were discharged at home. The fact that transportation is productive of great advantages to Western Australia, to the mother country, and to the convicts themselves, was riot denied by my noble friend the Lord President, nor, as far as one may judge by the papers on the table, has it been denied by the Government. But I believe they hold that these advantages should be sacrificed in deference to the objections entertained by the other Australian colonies. Now, in my opinion, in deciding that those objections should be deferred to, Her Majesty's Government have not fulfilled the duty belonging to the high station which they occupy. What is the duty of the servants of the Crown in a matter of this kind? Is it not their duty to take a general view of what they think for the welfare of the empire at large and to recommend to Parliament, or adopt, as far as the executive authority of the Crown extends, such measures as, upon a careful consideration, they think best adapted to promote the welfare of the empire as a whole? Their first duty is to prevent any one portion of the Queen's subjects from suffering from undue pretensions on the part of any other. How is this duty fulfilled by deferring to the objections to transportation raised by the other Australian colonies? In order to form a judgment upon this point it is necessary to consider what these objections are; and here may remark that, though my noble Friend (Lord Granville) contradicted the assertion, the sentiments of the colonists were well known to the Commission. For, though it is true we could not be in possession of the despatches more recently received, memorials containing in substance the whole of what the colonists have since urged against transportation to Western Australia were transmitted to the Government, and, after being laid before Parliament, were referred to the Commission. I can only say for myself that the fact was as well known to me when I began that inquiry as it is at this moment. Many additional memorials hare been transmitted since, but in all the sum and substance of the objections is, that sooner or later the convicts will pass from Western Australia to the other colonies, and inflict great injury upon their inhabitants. The whole case rests upon this assumption. Now, I venture to say that any one of your Lordships who looks carefully and impartially into this matter will come to the conclusion that, sending convicts to Western Australia, as proposed by the Commission, would have no tendency whatever to increase the number of those persons who will go to the other Australian colonies. In the first place, Fremantle, which is the convict depôt (and the greater number of convicts are farther from the other colonies than they are at Fremantle) is distant by sea from the capital of the nearest colony—namely, Adelaide—rather more than 1,800 miles. By land it is somewhere about 1,600 miles. But to getaway from Western Australia by land is quite impossible. It has been tried over and over again. Some time ago a well equipped expedition endeavoured to penetrate from Western Australia, into the interior of the continent from that colony, but utterly failed in accomplishing its object, and was obliged to return after enduring great hardships. By sea it is hardly more easy to get away from the colony, for the ports are few and they are strictly watched. The Commissioners were informed by the Governor of Western Australia that in twelve years only forty-two convicts were unaccounted for, and one-half of these got off together in an American whaler which was short of hands, while of the others there was no moral doubt that the majority perished in the wilderness in endeavouring to escape. Thus the number of convicts who escape is so insignificant as to be hardly worth considering. I am aware that this only applies to convicts who are still under legal restraint, and that holders of conditional pardons and expirees could not be prevented from going to the other colonies. But Her Majesty, on the advice of the Commission, has put an end to the granting of conditional pardons, and in my opinion it was a mistake ever to grant them; and as to expirees, the Legislature cannot prevent them from going to any part of the world they please. But it is far more probable that men of this class will reach Melbourne or Sydney from England than by Western Australia. There is comparatively little communication between Western Australia and the other colonies, and the expirees who have strong motives for leaving this country have, on the contrary, much to induce them to remain in Western Australia. Convicts in that colony while holding tickets-of-leave generally have got into some occupation, and very often would have acquired land or money, and have embarked the latter in some business requiring their presence in the colony, so that when they become free to leave it by their sentences having expired they would seldom be inclined to do so. Experience shows that those only return from the colony, as a rule, who have some attachment at home, or have relations living to whom they desire to return. But those who have lived respectably as holders of tickets-of-leave, and have no such reason for coming home, almost invariably settled in Western Australia. I ask your Lordships to consider from this statement (to which I defy contradiction) what real grievance would be inflicted on the other Australian colonies by our sending convicts to Western Australia. I believe that the more the subject is inquired into the more clearly it will appear that the grievance is a purely imaginary one. My noble Friend who formerly held the position of Secretary of State for the Colonies (Lord Taunton) has argued that we are bound to yield to the feelings of the colonists, even (as I understood him) though no real injury would be done to them. My Lords, that appears to me to be an extraordinary proposition. I can understand why the feelings of the inhabitants of New South Wales and Victoria should be consulted in all measures affecting themselves; and, as regards transportation, even if it were just or expedient to send convicts to those colonies against the wish of the inhabitants, it would be impossible to do so. When transportation to Van Diemen's Land was abandoned, as I thought very unwisely, I never denied that if the feeling against it had been really as strong as was supposed, if the objection to receive the convicts had been as real as it was loud, it would have been impracticable for this country to go on with this system which would not work without the cu operation of the colonists. But I doubted the existence of such a strong feeling. I believed that these objections arose from the clamour of a few interested men, and did not represent the feelings of the colonists at large. So far from there being any reluctance to receive and employ convicts when sent out to that colony, the very last ship that was despatched was so besieged by colonists eager to secure the services of convicts, that it was found necessary to have a military guard to preserve order among the competitors who sought to hire them. I would also remind your Lordships that many of those who have signed the strong memorial from Victoria are the very persons who in 1849 joined in a subscription in what was then the district of Port Philip for importing expirees from Van Dieman's Land, because they wanted their labour. I do not, there fore, believe that the feeling against transportation is in any part of Australia so earnest or so sincere as it is supposed; but granting that it were so, I cannot see that these other Australian colonies have any right to interfere with our proceedings in Western Australia. They may fairly ask to determine what shall be done within their own boundaries, but they have no title to control another and independent colony. They claim that the British Government should not interfere in the management of their own internal affairs; and though I think they push this point somewhat beyond the mark, I am willing to admit the principle to some extent; but I think that while this country takes upon herself the burden of protecting these colonies she has, within certain limits, the right to exercise authority in those colonies for the common benefit of the empire at large. If, however, the principle be granted, that each colony is to manage its own affairs—that there is to be non-interference so far as regards Great Britain in Australia — what right have New South Wales and Victoria to seek to dictate to Western Australia? The example of America has been cited in support of the statement that it would be madness to resist the feeling of the colonists. The cases, however, are entirely different. The Americans objected, and most justly, to the levying of taxes from themselves; but the people of Boston or Massachusetts would never have dreamt of rising against the English Government on account of our mode of governing Jamaica. It is perfectly childish to imagine that Victoria or New South Wales would feel itself so far aggrieved by measures adopted in Western Australia as to take up arms to resist them. What possible means would they have of doing so; could they fit out expeditions to invade a colony two or three thousand miles distant, or to intercept the convict ships on their passage. But we are told that if we persist in our plan we shall lose their affection, and that the colonists will cast off their allegiance. I would remind your Lordships, if this is held out to you as a threat, that yielding to clamour is the surest way to incur contempt, and contempt was never yet the parent of affection. The greatest service that the Imperial Government can render to our colonies is to prevent any one of them from adopting measures injurious to the others. I am persuaded that if the moderating influence and the authority of Her Majesty's Government are not firmly used to restrain these rising communities from wronging each other, many years will not elapse before those strong feelings of inter colonial jealousy, which already exist in that part of the world, will occasion serious disputes and even worse perhaps than disputes between the Australian colonies. By giving way to clamour we encourage the colonists to rely upon similar behaviour for success on all occasions. Our true policy is to consider calmly and temperately what is urged by our colonists, and then to act as reason and justice may prescribe. We should do them no wrong; but, on the other hand, when their complaints have no foundation in justice, and when the inhabitants of one colony make demands which cannot be granted without injury to another, we are bound to assert an Imperial authority, and refuse what is so improperly asked. And as to what is said of the colonists throwing off their allegiance, it is mere idle talk. The whole gain of the connection between England and her colonies is on the side of the latter. We do not even retain sufficient authority to prevent them from levying injudicious taxes upon our trade, and there is at this moment a discussion whether protective duties shall not be established against our manufactured goods. I for one think, that if they desire to cast off their allegiance to the British Crown for a quarrel of this kind, they should be allowed to do so. It would be madness to attempt to retain the connection by force, and it would be better to allow them to sever the connection rather than to permit them to insist upon conditions which are unjust to another colony. It is a remarkable fact that these claims are set up only against us. France has established a penal colony in New Caledonia, which is not half the distance from New South Wales that Western Australia is, and the communication is very easy; but, of course, the colonists can make no complaint against France—yet they do object to our doing what is for the benefit of Western Australia. There is only one other point which I must notice. Those who have read the papers which are on the table will observe that the Australian colonies require the entire discontinuance of transportation to Western Australia. But the proposition now is quite another thing: transportation is only to be continued on the present scale. The effect of that will be that you will destroy all the efficiency of the scheme of punishment recommended by the Commissioners; you will lose the advantages arising from a lengthened removal of the convict from the scene of his crimes, which was the object of the whole arrangement; you will also introduce the element of uncertainty, while at the same time you will fail to meet the views of the other colonies. I believe that if there had been a calm and a courteous explanation given to show how little ground there was for the apprehensions of the colonists, the opposition would have been of a very mild character. I am confirmed in the opinion by having seen some extracts of newspapers published in Victoria, in which is pointed out how untenable are the objections taken by the colonists to the policy of the mother country. In short, this is just one of those measures, halting between two opinions, which marks infirmity of purpose and makes failure almost certain. That is a feature which seems to distinguish the acts of the present Government in every department—colonial, domestic, and foreign— infirmity of purpose. Hesitation in their views is the besetting sin of the Government, and is very strongly marked in the course they are pursuing upon this subject. I shall not in Committee move any Amend- ment; but should any other noble Lord move to substitute seven years for five years as the minimum term of sentences of penal servitude, with a distinct understanding that seven years is meant with a view of removing those convicts to become free in Western Australia, I will support it.


said, he entirely concurred with the noble Earl (Earl Grey) in thinking that great advantages would be obtained by a system of transportation, but he also felt that the Government had, at this time, acted wisely in yielding to the strongly-expressed wishes of the South Australian colonies. There were two points to which he wished to address a few remarks. One was the question of police supervision, and the other was the question of re-convictions of habitual offenders. With respect to supervision, it appeared to him that the only argument in favour of the system was its alleged success in Ireland. It was right, therefore, that they should inquire closely into the grounds upon which that success was founded. He was by no means satisfied with the statistics which had been put forward to show the success of supervision and of the intermediate system in Ireland, and he thought that great difficulties would arise from the clause on that subject introduced into the Bill. One objection was, that it would interfere with the operations of that most useful society—the Discharged Prisoners' Aid Society. The fact of a man reporting himself monthly to the police would have a very different effect to the wholesome supervision exercised by the society he had mentioned. At the proper time he would be prepared to support the Amendment of which his noble Friend had given notice. He also objected to the clause in this Bill, because it had been introduced with the avowed object of adopting the Irish system as part of our penal legislation. He held that the circumstances of the two countries were very different, and the class of men to whom the system would apply were also very different. But, even allowing that the statistics which had been put forth to show the success of the Irish system were correct, and that they bore out the results claimed for them, he maintained that the success was not owing to the system, but to the efforts of one of the most extraordinary men who ever had to deal with the criminal classes—the lecturer employed at the convict establishment in Ireland. The supervision proposed was not the same supervision that was adopted in Dublin. The success of the system in Ireland was largely owing to the personal efforts and extraordinary influence of Mr. Organ, who was regarded by the convicts more as a guardian than an inspector. He would certainly rejoice to see an Amendment carried, by which the clause requiring monthly reporting to the police should be excluded from the Bill. He regretted the; absence of any provision for more effectually dealing with habitual offenders. The number of re-convictions was continually on the increase in our prisons. Of the 2,628 convicts received into convict prisons in 1863, 1,683 had been previously convicted, 1,124 had been before sentenced to imprisonment, and 559 had been in convict prisons. That state of things was far more owing to the uncertainty which had attended the sentences passed heretofore than to any inefficiency in their prison discipline. On the 7th of April of this year there were 536 prisoners in the county gaol of Staffordshire, 196 of whom had been previously convicted. Of thirty-six prisoners received during the year who had been previously sentenced to penal servitude, eleven were sent to prison for terms varying from fourteen days to nine months. Their previous sentences to penal servitude varied from three to ten years. If they took those eleven cases, they found the total amount of imprisonment awarded to them came to three years and six months, whereas the total amount of the former punishment awarded to them came to sixty-three years. That was very much due to the operation of the Criminal Justice Act of 1855; and although he should be sorry to see that Act repealed, it was impossible to examine too closely the evils that had arisen from so many prisoners being dealt with summarily under that measure who had been previously sentenced to penal servitude. No magistrate ought to dispose summarily of any case of felony under that Act unless he knew the circumstances and antecedents of the man he was punishing. He should be glad to see some clause introduced into this Bill which would, to a certain extent at least, deal with the class of cases to which he had referred. Although the minimum of five years' penal servitude might be adapted for ordinary cases, he thought that seven years should be the minimum in all eases of previous convictions. It might advantageously be even made compulsory to pass a sentence of seven years where the previous punishment had been one of penal servitude. Thus they would gain two objects—first, they would keep old offenders longer in prison, and longer, therefore, out of the way of doing mischief; and next, they would enable those who had charge of the convict department to make a better selection of prisoners who should be transported. The Report of the Royal Commissioners showed that there would under any circumstances be considerable difficulty in the present state of thing in obtaining even the limited number of convicts which it had been agreed to send to Western Australia. His suggestion, if adopted, would lessen that difficulty. It had been discussed at quarter sessions by his brother magistrates and generally supported by them, the only ground of objection he had heard offered to it being that it might entail some additional expense, In Committee he would move an Amendment making seven years the minimum sentence of penal servitude in all cases where there had been a previous conviction.


said, he trusted the noble Lord would persevere with his intention. He would support his Amendment, for he thought such a provision would be a valuable improvement.

Motion agreed to: Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday next.

House adjourned at a quarter before Ten o'clock, to Thursday next, half past Ten o'clock.