Sitting of 5 May 1840

MINUTES.
Petitions presented. By Mr. D. Brown, from several places, in favour of the Irish Corporations Bill, for the Extension of the Franchise, the Repeal of the Corn-laws, and against the Irish Registration Bill.—By Messrs. Christopher, Round, Lowther, Byng, Lascelles, and Wynn, and Sir R, H. Inglis, from many places, for, and by Messrs. Scholefleld, Strutt, Baines, B. Smith, Morrison, Byng, Ward, C. Buller, Colonel Salwey, and Sir G. Grey, from a very great number of places, against, Church Extension.—By Captain Bryan, Lord Clements, Sir C. Style, Messrs. A. Yates, Redington, and M. J. O'Connell, from a number of places, against, and by Sergeant Jackson, and Sir C. Coote, from several places, for, the Irish Registration Bill.—By Sir G. Grey, from North Shields, and Mr. Easthope, from Leicester, for the Abolition of Church Rates, and the Release of John Thorogood.—By Messrs. Villiers, Grote, Pattison, Baines, Elliot, and Ward, from a number of places, for the Total and Immediate Repeal of the Corn-laws.—By Sergeant Jackson, from several places, against the Repeal of the Corn-laws.—By Sir E. Knatchbull, from Richmond, against Rating Stock in Trade.—By Mr. G. Wood, from one place, in favour of the Factory Bill.—By Sir E. Knatchbull, from places in Kent, against the Clergy Reserves, and the Constabulary Bills.—By Lord Clements, and Mr. Elliot, from several places, for a Settlement of the Scotch Church Question.

TRANSPORTATION OF CONVICTS.
Sir W. Molesworthspoke to the following effect:*—Sir, In submitting to the consideration of the House the motion of which I have given notice, the task which I have to perform is both difficult and painful; difficult on account of the extent of the subject; painful on account of the nature of many of the facts to which it will be my duty to refer. I assure the House however, that I do not approach this subject without having long and carefully studied it, or without having carefully examined and weighed every opinion and every fact connected with it. I, therefore, presume to solicit a patient and attentive hearing. The report of the committee to which this motion relates, was laid on the Table at the end of the Session of 1838.
*From a corrected Report published by Hooper.

1237
Two reasons prevented me last year from bringing the topics contained in that report before Parliament. First, I entertained the hope that the executive government would have come forward with some general measure founded upon that report, which would have rendered any motion unnecessary. I was unwilling, therefore, to embarrass the Government in a matter which is one of great difficulty, by any premature steps. Secondly, as that report contained many facts reflecting on the moral character of the penal colonies, I was earnestly entreated, by several persons connected with those colonies, not to call upon Parliament for an opinion, before an opportunity could be afforded to the colonists to peruse those statements, and to contradict them if incorrect. Now that full time has been given both to the government to mature their plans, and to the colonists to reply to any mis-statements, there can be no objection to asking Parliament to consider the subject of this motion. The committee in question, and of which I had the honour to be chairman, was appointed for the threefold purpose, first, of inquiring into the efficacy of transportation as a punishment; secondly, of ascertaining its moral effect on the penal colonies; and lastly, the committee were directed to consider of what improvements the existing system was susceptible. A very few words would be sufficient to state the result of those inquiries, if I could suppose that hon. Members had read any considerable portion of that report; but, as it cannot be supposed that such has been the case, I must endeavour, as briefly as I can, to state the grounds upon which the committee came to their conclusions. The materials from which the committee formed their opinions, were of the best possible description. They were chiefly official documents, furnished by the Colonial Office, consisting of despatches, reports to and from the governors of the penal colonies, and criminal returns. Numerous witnesses were examined; but in order to avoid any cavil as to the credibility of those witnesses, not one fact of any importance has been stated by the committee in their own report, which is not corroborated by official documents. And for the same reason, in the observations which I shall make to-night I shall confine myself almost entirely to those documents, The first subject of which I
1238
shall speak, is the nature of transportation, and the condition of the convict under that punishment. Transportation is a compound punishment, consisting of three distinct elements: banishment from this country; compulsory labour in a penal colony: and the various punishments by which that compulsory labour is enforced. It is not necessary at present to say anything of the effects of mere banishment: I will proceed at once to describe the condition of the convict in the penal colonies. The penal colonies in Great Britain are, first, and largest, New South Wales, founded in 1787. To this place 75,200 criminals have been transported; and in the year 1836, the number of of-tenders under punishment there were, men 25,254; women 2,577. The next in magnitude is Van Diemen's Land, founded in 1804; to which, since 1817, 27,759 convicts have been sent; and of which the criminal population, in 1835, consisted of 14,914 men, and 2,054 women. The third is Norfolk Island, a dependency of New South Wales, which contains about 1,200 convicts. The last which must be mentioned is Bermuda, containing about 900 convicts. Bermuda need not again be referred to, as the condition of the convicts there is nearly the same as that of convicts in the hulks; my observations will therefore, be confined to the Australian colonies. The greater portion of the punishment of the convicts in these colonies, consists in compulsory labour: that labour is either enforced by officers of the Government, or by private individuals, to whom the convicts are assigned as servants. I will first speak of the latter class; which is by far the most numerous one, as it contained in 1836, about 29,000 convicts. A convict is said to be assigned, when the right of the Government to the labour of the convict is made over to some private individual, who becomes his master. The master determines, according to his will and pleasure, the nature and amount of labour to be exacted from his convict servant; therefore, as the House must at once perceive, the condition of an assigned convict depends entirely upon the character, temper, position in society, and occupation of his master; and is, consequently, as uncertain, as those circumstances are uncertain. For instance, some convicts become domestic servants, and frequently receive wages; others, if pos-

1239
sessing mechanical skill, are employed in various trades, and are highly prized; the greater portion, however, are occupied either in agriculture, or in tending flocks and herds. In the families of some settlers, convicts are as well treated, as servants ordinarily are in this country. In other families, their fate is far different; they may be considered to be slaves; for the power of the master to cause punishment to be inflicted on his convict servant is very great, and the punishments, even for trifling offences, are very severe. In proof of this, the words of the law may be cited, by which it will appear, that a convict may be summarily punished for "drunkenness, disobedience of orders, neglect of work, absconding, abusive language to his master or overseer, or any other disorderly or dishonest conduct, by imprisonment, solitary confinement, labour in irons, or fifty lashes." And this law is by no means inoperative. In 1835, the convict population of New South Wales did not exceed 23,000; the summary convictions, chiefly for the offences just mentioned, amounted to 22,000; and the number of lashes inflicted, exceeded 100,000. In Van Diemen's Land, in 1834, the convict population was about 15,000; the summary convictions were nearly 15,000; and the number of lashes inflicted there exceeded 50,000. On the other hand it should be remarked, that a convict, if ill-treated by his master, may apply to a bench of magistrates for redress; but then the majority of those magistrates are generally owners of convict labour. Instead of troubling the House with any observations of my own on the general effects of the assignment system, I will read a few short extracts from the written opinions of the persons who must necessarily have been best acquainted with this subject, and whose authority will have the greatest weight with the House. Sir George Arthur, late Lieutenant-governor of Van Dieman's Land, has given a most graphic description of the assignment system, in a despatch which is inserted in the report of the committee. He says,
"You cannot have an idea of the vexations which accompany the employment of convicts, or of the vicissitudes attendant on their assignment. Their crimes and misconduct involve the settlers in daily trouble, expense and disappointment. There is so much peculation, so much insubordination, insolence,
1240
disobedience of lawful orders, and so much drunkenness, that reference to the magisterial authority is constant. There can be no doubt things appear better in the colony than they really are."
Such are the statements of the Lieutenant-governor of the one penal colony, as to the general conduct of assigned convicts. I will now quote the opinion of the Lieutenant-governor of the other colony, as to the great inequality of this punishment. Sir Richard Bourke states, as the result of his own experience, that
"it is one of the most apparent and necessary results of the system of assignment, to render the condition of convicts, so placed, extremely unequal, depending, as it must, on a variety of circumstances over which the Government cannot possibly exercise any control. It would be quite impracticable to lay down regulations sufficient to remedy this inequality."
The only other authority, which it is necessary to quote, is that of Captain Maconochie, secretary to Sir J. Franklin, the present Lieutenant-governor of Van Dieman's Land. Captain Maconochie describes, from his own careful observation, the moral effects of assignment, in the following terms:—
"The practice of assigning convicts to masters is cruel, uncertain, prodigal; ineffectual either for reform or example, and can only be maintained in some degree of vigour by extreme severity. Some of its most important enactments are systematically broken by the Government itself; they are, of course, disregarded by the community. The severe coercive discipline, which is its principal element, is carried so far as to be at issue with every natural, and in many cases even every laudable, impulse of the human mind. It defeats, in consequence, its own most important objects; instead of reforming, it degrades humanity."
And, in confirmation of these statements, Sir F. Forbes, the late Chief Justice of Australia, declared, that under the assignment system,
"it frequently happens, that lesser offenders against the law come to be punished with disproportionate severity, while greater criminals escape with comparative impunity."
It would be useless for me to attempt to add anything to these emphatic condemnations of the assignment system, coming, as they do, from persons of the highest authority on these matters, and which remain unimpugned and uncontradicted. It is stated, that the government

1241
intend to put a stop to the assignment of convicts: I trust they will persevere in that intention; and will discontinue a system, which confides one of the most important and difficult functions of an executive government, namely, the task of punishing offenders, to the uncertain interests and capricious feelings of private and irresponsible individuals. I said there are two classes of convicts; one composed of convicts in assigned service; the other of convicts under the superintendence of officers of the government. I will now speak of the latter class; which will be the only one, if the assignment system be abolished. The government convicts are employed on various public works, in the gaols, on the roads, in the marine and survey departments; and, as the House will be surprised to hear, in Van Diemen's Land they are appointed constables in the police. I think I may, without exaggeration, describe the government convicts as the most profligate and desperate portion of the criminal population of the penal colonies. They are generally collected together in a narrow space, without any attempt at classification or separation. They have full opportunities of communicating with each other; they perform very little labour, and are subject to a very lax superintendence. Gangs of these convicts, called "road parties," were Once scattered over the colony of New South Wales, for the purpose of making roads, and were little better than so many bands of robbers. I do not reproach either the general or the colonial government for the management of these convicts; for it was utterly impossible to obtain in those colonies the requisite amount of efficient superintendence; and without efficient superintendence penal discipline is impossible, even in the best constructed prisons. How much more must this have been the case, when the greater portion of the government convicts can hardly be said to have been confined in a prison at all. The utter impossibility of obtaining efficient superintendence, is proved by the fact, to which I have referred, that it was found necessary to establish a police composed of convicts; and Sir George Arthur declared that that convict police was better than any police of free men he could obtain in the colony of Van Diemen's Land. I wish to call the especial attention of the House to these facts; because it has been
1242
proposed to continue transportation, and to place all convicts under the superintendence of the colonial government. If this be done, transportation will become, in some respects, similar to the punishment in the hulks and gaols at home; but, with this important difference, that on acount of the cost of transport and of proper superintendence, it would be more expensive than the most perfect system of prison discipline in this country. This is the opinion which the committee have recorded in their report, after a most careful examination of all the facts. I shall return again to this subject, when I speak of the expense of transportation. From the want of efficient superintendence, from the nature of the assignment system, and from other causes, hardly any of the means, which have been devised to prevent misconduct amongst offenders during the period of their punishment, were applicable to transportation. In order to preserve some degree of discipline amongst the convicts, a vain attempt has been made to terrify them into good behaviour: for this purpose, minor offences have been converted into crimes, and severely punished; and the convict code of the penal colonies has not its equal in severity, at least in the civilised world. Captain Maconochie, speaking of these punishments in Van Diemen's Land, says,
"They are severe, even to excessive cruelty. Besides corporal punishment, to the extent of fifty to seventy-five lashes, and even, in some rare instances, a hundred lashes, solitary confinement, and months, or even years of hard labour in chains (on the roads, or at a penal settlement), are lightly ordered for crimes in themselves of no deep dye: petty thefts (chiefly in order to obtain liquor), drunkenness, indolence, disobedience, desertion, quarrelling among themselves, and so forth."
It is necessary to make a few observations with regard to these punishments. I have already referred to the great amount of flogging in the penal colonies. There is ample proof, in the documents laid before the committee, of the severity with which it is inflicted. It is the favourite punishment with the masters of convicts; for it does not deprive them of the services of their servants, as is the case when they are sent to the chain gangs. The punishment of the chain gangs, according to Sir George Arthur, "is as severe as can be inflicted upon man. The number of convicts suffering

1243
this punishment was about 1,700 in the two colonies. They are described by competent witnesses as being "locked up, from sunset to sunrise, in caravans or boxes, which hold from twenty to twenty-eight men; but in which the whole number can neither stand upright nor sit down at the same time (except with their legs at right angles to their bodies), and which in some instances do not allow more than eighteen inches in width for each individual to lie down upon the bare boards; they are kept to work under a strict military guard during the day, and liable to suffer flagellation for trifling offences, such as an exhibition of obstinacy, insolence, and the like." This description fully bears out the statement of Sir R. Bourke, that the condition of these convicts is one of great privation and unhappiness. Connected with the subject of the chain gangs, I would direct the attention of the House to the evil effects upon the discipline of soldiers which ensue from employing them in guarding convicts. Colonel Breton, an officer in command of a regiment in New South Wales, told the committee that his regiment was greatly demoralised by this description of duty, and likewise by association with the convicts, amongst whom the soldiers not unfrequently found near relations. I observed last year in a Sydney newspaper, that at one time, the 14th December, 1838, a lieutenant and twenty-one soldiers were confined in the gaol at Sydney on criminal charges. The last and greatest in the scale of these punishments is the penal settlements. In speaking of them, I must intreat the indulgence of the House; for it will be my painful duty to state horrible and appalling facts, which I could not have credited, which I could not have believed that a Christian country would have permitted, were they not proved beyond doubt by the concurrent testimony of governors, judges, and ministers of religion. The penal settlements to which, as I have already remarked, convicts are frequently sent for offences of no very great magnitude, are two in number; the one Norfolk Island, a dependency on New South Wales; the other Port Arthur, in Van Diemen's Land. In these places there are about 2,000 convicts, who, with their guards and keepers, constitute the sole inhabitants. According to the authority of the superintendant of convicts Van Diemen's Land, "the
1244
work appointed for these offenders is of the most incessant and galling description the settlement can produce, and any disobedience of orders, turbulence, or other misconduct, is instantaneously punished by the lash." Sir Francis Forbes, chief justice of Australia, the most unquestionable authority on such a subject, declared in a letter to the law reform commissioners, that
"The experience furnished by these penal settlements has proved that transportation is capable of being carried to an extent of suffering such as to render death desirable, and to induce many prisoners to seek it under its most appalling aspects."
The same learned judge, in his examination before the committee, gave the following remarkable evidence. He said,
"I have known cases in which it appeared that men had committed crimes at Norfolk Island for the mere purpose of their being sent up to Sydney to be tried, and the cause of their desiring to be sent, was to avoid the state of endurance under which they were placed in Norfolk Island. I think they contemplated the certainty of execution, from the expressions used by them. I believe they did deliberately prefer death, because there was no chance of escape, and they stated they were weary of life, and would rather go to Sydney and be hanged."
And, in reply to a question from my hon. Friend, the Member for Liskeard (Mr. Charles Buller), Sir F. Forbes said,
"If it were put to myself, I should not hesitate a moment in preferring death, under any form that you could present it to me, to such a state of endurance as Norfolk Island."
In confirmation of these statements, the authority of Sir R. Bourke may be quoted. That gentleman, during the period of his government in New South Wales, was obliged to apply for an Act of Parliament to establish a criminal court in Norfolk Island; and he did so on the express grounds, that if criminals were tried and executed on the spot, it might tend to prevent the commission of the crimes to which I have alluded. The statute required was passed in 1834. It is not to be wondered at that, driven to desperation, as these convicts are, they have not unfrequently attempted to mutiny. In 1834 an attempt of this description was nearly successful. Nine convicts were killed in the struggle which took place; twenty-nine were condemned to death, and eleven executed. Mr. Justice Barton

1245
was sent to Norfolk Island to try them on his return he told the jury of Sydney that
"It was painful in the extreme to see the convicts in this place, herding together, without any chance of improvement."
A Catholic priest, of the name of Ullathorne, went to Norfolk Island to afford religious consolation to the convicts, who, I said, were condemned to death for mutiny. He was examined before the committee; and in his examination he gave the following account of the strange scene he witnessed, when he first made known to the condemned the names of those amongst them who were to be executed, and of those who were to be reprieved. The following are his own expressions:
"I said a few words to induce them to resignation; and I then stated the names of those who were to die; and it is a remarkable fact, that, as I mentioned the names of those men who were to die, they one after the other dropped on their knees, and thanked God that they were to be delivered from that terrible place, whilst the others remained standing mute. It was the most horrible scene I ever witnessed. Those who were condemned to death appeared to be rejoiced."
Sir! a human being cannot be made unutterably wretched, without becoming in an equal degree depraved. The extremes of misery and of immorality are generally found existing together. In both respects Norfolk Island has not its parallel in the world, except perhaps at the kindred settlement of Port Arthur. In proof of this I will refer to the official report on the state of Norfolk Island, which was drawn up by officers resident there, at the order of Lord Glenelg. The rev. R. Stiles, the resident chaplain stated,
"That blasphemy, rage, mutual hatred, and the unrestrained indulgence of unnatural lust, are the things with which a short residence in the prison wards of Norfolk Island must necessarily familiarise the convict."
Mr. Arnold, the deputy assistant commissary general, stated in his report,
"That it is much to be feared that that horrible crime which brought down fire from heaven on those devoted cities of Scripture, exists, and is practised here to a great, extent; indeed, I have been informed by one who has the best opportunity of judging of the truth of the information (the colonial surgeon), that actually, incredible as it may appear, feelings of jealousy are exhibited by those depraved wretches, if they tee the boy or young man with whom
1246
they carry on this abominable intercourse, speak to another person. Crimes, too, of a bestial nature, it is also to be feared, are too frequent. The dying confession of an unfortunate being, who was executed some time ago, proves the truth of this."
These are statements from official documents in which the most implicit reliance can be placed. Similar statements were made by Sir F. Forbes and Dr. Ullathorne. The latter gentleman considered that two-thirds of the convicts in Norfolk Island were guilty of unnatural offences. And, lastly, Messrs. Backhouse and Walker, two members of the Society of Friends, who had been for five years in the penal colonies investigating the effects of transportation, have declared in their report, that "by the acknowledgement of the persons themselves, those crimes were extremely prevalent among them." With reference to Port Arthur, the penal settlement of Van Diemen's Land, Sir George Arthur stated that he had known instances of prisoners at that place actually committing murder "in order to enjoy the excitement of being sent up to Hobart Town for trial, though aware that in the ordinary course they must be executed within a fortnight after arrival." I will not, however, revolt the House by repeating with regard to Port Arthur, horrid details similar to those which I have stated with respect to Norfolk Island. The only other class of convicts, which must be mentioned, includes those who have obtained indulgencies, consisting in a remission of penal labour. A convict generally at the end of four, six, or eight years, according to the length of his punishment, obtains what is termed a ticket of leave, unless he has committed in the colony some considerable offence. A ticket of leave enables the convict who holds it, to work on his own account; and, as there is a great demand for labour in the penal colonies, the holder of a ticket of leave can easily obtain good wages. As this indulgence is liable to be taken away in case of misconduct, it is on the whole a considerable inducement to good behaviour; and appears to me to be by far the least objectionable portion of the transportation system. At the same time it cannot be denied that the greatest abuses have existed in the granting of tickets of leave. But it is not my intention, indeed it would be impossible within the limits of a speech, to mention the various and complicated

1247
abuses which have existed in connexion with transportation. My object is to describe that system as a whole, supposing it to be administered in the best possible manner, and omitting from my consideration those defects in the existing system to which it is asserted that remedies can be applied. And upon this description I call upon the House to pronounce an opinion in favour of the discontinuance of that punishment. With this object in view, I now ask, does transportation fulfil the conditions of a good punishment? I answer it does not, for reasons I will immediately state. The object of punishment is to prevent crime. For this purpose the Legislature threatens to inflict certain punishment for certain offences. When an offence is committed, then the Legislature is bound to punish the offender, not for the sake of revenge, but in order to fulfil its promise, and to prove that its threats are not vain and empty menaces. By this means it endeavours to supply an additional motive from without, which may restrain the evil disposed, and inspire them with apprehension. At the same time, it gives to the community the best security in its power against the commission of acts noxious to its well-being; and allays that general alarm, which would be the consequence of the impunity of crime. The chief aim of punishment, therefore, is to produce terror by the example made of offenders. "Pœna in paucos ut metus in omnes," is the basis of all good penal legislation; and to this consideration every other is subordinate. It is equally evident, however, that the great object of punishment, namely, terror, should, as far as possible, be attained with the least amount of human suffering. For it cannot be too often repeated, that the end of punishment is not to make an offender suffer, but to warn others from imitating his example. Therefore, if more than the amount of suffering requisite for this purpose be inflicted, the punishment becomes a cruelty. Indeed, the ideal but impossible perfection of punishment would be found in such an one as would appear to mankind clothed with all the horrors of Tartarus, yet could conduct the offender to Elysium. At all events, however, a punishment is bad when it causes much more pain than is either threatened in the law, or generally believed to be inflicted. For then superfluous pain, that is, pain
1248
not producing terror, not accomplishing the object of the law, is inflicted. If transportation be tested by these principles, its defects, as a punishment, are at once apparent. For what is the amount of apprehension it produces? What are its effects on the minds of the criminal population in inspiring terror? The sentence of a judge, in condemning an offender to be transported, may be summed up in the following words. He says to the culprit, "You shall be removed from the land of your birth to a country with which you are unacquainted." "You shall be separated for many years, perhaps for ever, from your friends and relations." And lastly, "You shall be compelled, in your new dwelling-place, to toil for the benefit of others." The two first threats, of banishment and separation from friends (whatever might have been their effect in former times), have gradually lost the greater portion of their penal terror. Because convicts are no longer transported to an unknown and strange land, but to countries inhabited by thousands of their companions in guilt, and to which tens of thousands of voluntary emigrants have been hastening, as to a land of promise. It not unfrequently happens, that whilst a judge is expatiating on the miseries of exile, at the same time, and perhaps in the same place, some active argent of emigration may be found magnifying the advantages of the new country; lauding the fertility of its soil, and the beauties of its climate; telling of the high wages to be obtained, the enormous fortunes that have been made; and offering to eager and willing listeners, as a boon and especial favour, the means of conveyance to that very place to which the convict in the dock has been sentenced by the judge for his crimes. During the last and preceding year, 10,000 free emigrants and 5,000 criminals were landed on the shores of the penal colonies; many of them became servants in the same families, labourers in the same fields; innocent and guilty were thus confounded together, to the subversion of all notions of punishment, and to the destruction of all morality. Can anything be said in defence of such an anomaly in legislation as this? To return to the subject of the apprehension produced by transportation. It must be borne in mind, that punishment is meant to operate chiefly upon those persons who are inclined to commit crimes. It is comparatively

1249
useless to persuade the well-disposed that a punishment is a severe one. It is upon the minds of the criminal population that such a conviction ought to be impressed. Now, except in a few cases, all that the latter class can apprehend from such a punishment as transportation, must consist in the penal labour and privations, to which they may be subjected in the colonies. But who can tell, beforehand, what will be the amount of that labour, or the nature of those privations? It has been shown, that the condition of a convict is the merest chance; that it ranges between the two extremes, of a servant subject to trifling restraint, and of a slave enduring long and tedious misery. My conviction is, that much more suffering is inflicted in the penal colonies than is credited in this country; suffering, therefore, unknown; unproductive of good; pure, gratuitous, evil. Nor, from the remoteness of those places of punishment, is it possible to make the criminal population understand the actual condition of a convict. The accounts which they receive, are generally from convicts who have been fortunate in this lottery of punishment, and are therefore too favourable. On the other hand, in the very few cases in which the unfortunate communicate with their acquaintances in this country, it is proved that they generally deny their sufferings; prompted thereto partly by a desire to bring the laws into discredit, and thus to revenge themselves upon the lawmakers and their punishers; partly by the wish, common to such degraded beings, to have companions in misery. In the despatches of Sir George Arthur, many instances of this kind are stated; and that gentleman proposed (with a view to obviate the misapprehensions arising from these sources) that statements of the actual condition of convicts should be published and circulated by the Government. It is evident that this means would prove ineffectual; for the criminal population would place but little reliance in official statements as compared to their own sources of information. If, however, they were better acquainted with the nature of transportation, than in my humble judgment they are or can be, still, all they would learn is, that transportation is a most unequal and uncertain punishment; that it is (as I have already said) a mere lottery, in which there are both many prizes and many blanks. And, judging from all experience with
1250
regard to such persons, the hope of obtaining the prizes would with them, as with gamblers, more than counterbalance the fear of the blanks. For these reasons, and supported by the testimony of most persons acquainted with the feelings of the criminal population, I do not hesitate to assert, that transportation produces very little apprehension, far less than that which should correspond to the actual suffering inflicted. Independent of the production of terror amongst the evil-disposed generally, which is the main object of punishment, there are other, but subordinate objects, which a good punishment should effect with regard to the offender himself. I will merely enumerate them. It should make it difficult, if not impossible, for a criminal to commit crime during the period of his punishment. It should so improve his moral character as to render crime distasteful to him; or, if it does not improve him, it should at least, by the experience of the suffering endured, deter him from fresh crimes after the termination of his punishment. And, lastly, it should, if possible, ultimately place him in a position in which he would not be exposed to strong temptations to relapse into vicious habits. In every one of these respects transportation is inefficient. The immense number of summary convictions of which I have already spoken, and the other criminal returns, to which I shall presently refer, prove that crime is very common amongst convicts, both during their period of punishment and subsequently. Even the tortures of Norfolk Island and Port Arthur do not deter them from committing crimes which cause them to be sent to those places a second and a third time. And this is not extraordinary; because such punishments degrade the human being into a brute, destroy his reflecting faculties, and leave him no other thought or wish but the immediate gratification of his appetites. With regard to the reformation of the offender by transportation, Mr. Stephens, the late Attorney-general of Van Diemen's Land, has declared—
"At all events, if that be one of the objects of punishment, it is on the present plan of transportation hopeless, in the existing state of things nearly all the tendencies of the plan are the other way."
And Captain Maconochie asserts—
"By transportation the prisoners are all made bad men instead of good; it is shown

1251
by the official reports transmitted with his papers, that scarcely any are reformed, and human nature does not stand still, if not improved it gets worse."
Every witness examined, every document laid before the committee, confirmed these positions. My examination of the effects of transportation, as a punishment, may be concluded with the observation, that the offender at the expiration of his sentence is left in a community, where I may say, without exaggeration, that vice is the rule, and virtue the exception. This brings me to the next question; what has been the moral influence of transportation on the state of society in the penal colonies? An answer is afforded by their criminal returns; which demonstrate that an enormous amount of crime is committed in those colonies; the greater portion of which may be attributed to transportation. For it is evident that in communities like those of Australia, where there is a great demand for labour, where wages are high, where every man who is willing to work can easily obtain a comfortable subsistence, a large amount of crime can only be ascribed to the depraved character of the population, and not to those economical causes which produce misery, want, and immorality, in old and densely-peopled countries. In order that the House may form a notion of the amount of crime in those colonies, I will first refer to the summary convictions in Van Diemen's Land, in the year 1834. I select that year, because there are materials in the despatches of Sir George Arthur, from which a more accurate estimate can be formed of the convictions in that year than in any other. The House should bear in mind that the community of Van Diemen's Land was then a very small one. Its population in 1834 did not exceed 40,000; of whom 16,000 were convicts, 1,000 soldiers, and 23,000 free inhabitants; what proportion of the latter had been convicts it is impossible to say. In this small community the summary convictions amounted to about 15,000 in the year in question; amongst which there were about 2,000 for felony, 1,200 for misdemeanour, 700 for assaults, and 3,000 for drunkenness. 11,000 of these convictions were of convicts, who are summarily punished for all offences to which the penalty of death is not attached. Some of their punishments were very severe, as about 260 convicts received
1252
extension of sentence, about 100 were condemned to the penal settlements, 1,000 to the chain gangs, 900 to the road parties, 900 to solitary confinement or the tread wheel, and 1,500 were flogged and received about 51,000 lashes. Amongst the 23,000 free inhabitants, the summary convictions were between 3,000 and 4,000. About 2,200 (that is, nearly one-tenth of the free population) were in one year fined for drunkenness; 200 were fined for assaults; and 800 for offences under colonial acts. In New South Wales the summary convictions were nearly the same in proportion to population as in Van Diemen's Land. In order to complete the account of the state of crime in these colonies, I must next refer to the criminal trials before the supreme court and quarter sessions. It should be remembered that convicts are not tried before these courts, except for offences to which the punishment of death is attached. Therefore a great portion of the following convictions must have been of free persons. On the average of the seven years from 1829 to 1835, both inclusive, these convictions amounted every year to about one in a hundred of the whole population; an enormous proportion; as convictions in England are about one in a thousand, and in Scotland about one in thirteen hundred of the' population. A large portion of these convictions were for offences of the greatest magnitude. This appears from the fact that, during the period of which I have spoken, whilst the average population of the penal colonies did not exceed 90,000, the annual number of convictions for murder and attempt at murder were about 34; for rape, 7; for highway robbery and bushranging, 66; for burglary, 50; for forgery, 13; for sheep and cattle-stealing, 53; for larceny and receiving stolen goods, 367. The average number of sentences of death were 132 a-year; of executions, 52; and of sentences of transportation, 369. Thus in seven years, in these communities, whose population did not exceed one-half of that of Westminster, 923 persons were condemned to death, 362 executed, and 2,586 transported; without including the convicts who were summarily transported or had their sentences extended, and who probably amounted to twice as many more. And it may be stated, on the authority of Captain Maconochie, Mr. Justice Burton, and of the criminal re-

1253
turns, that crime has gradually increased in those colonies in a greater proportion than population. In order to give the House a more accurate notion of the state of crime in the penal colonies, than these figures will of themselves convey, I will read a short extract from the report of the committee, in which they calculate what would be the amount of crime in this country, if our criminal statistics were similar to those of the penal colonies. They state:—
"That in proportion to the respective population of the two countries, the number of convictions for highway robbery (including bushranging) in New South Wales exceeds the total number of convictions for all offences in England; that rapes, murders, and attempts at murders, are as common in the former, as petty larcenies in the latter, country. In short, in order to give an idea of the amount of crime in New South Wales, let it be supposed that the 17,000 offenders who were last year tried and convicted in this country for various offences, before the several courts of assize and quarter sessions, had all of them been condemned for capital crimes; that 7,000 of them had been executed, and the remainder transported for life: that, in addition, 120,000 other offenders had been convicted of the minor offences of forgery, sheep-stealing, and the like; then, in proportion to their respective populations, the state of crime and punishment in England and her Australian colonies would have been precisely the same."
In addition, it should be observed that the committee have omitted entirely from these calculations any reference to the immense number of summary convictions, (some of them for very grave offences), to which I have already referred. That these statements are not in the slightest degree exaggerated, may be proved by the testimony of Judge Burton who, in the charge already mentioned, gave the following fearful picture of New South Wales. He said:—
"It would appear to one who could look down upon that community, as if the main business of them all were the commission of crime and the punishment of it; as if the whole colony were in motion towards the several courts of justice; and the most painful reflection of all must be, that so many capital sentences and the execution of them had not had the effect of preventing crime by the way of example."
It may likewise be stated, upon the same incontrovertible authority, that there are a great number of crimes committed in New South Wales, the authors of which are never discovered. That much crime
1254
should escape detection, is a fact not to be wondered at, when it is known, that the limits of location in New South Wales, embrace an area greater than the whole of England; and that over this vast territory, some thousands of convict shepherds and stockmen roam at large, generally with arms in their hands. I hardly ever take up a newspaper from New South Wales, in which there is not some account of bushranging. For instance, it not unfrequently happens, that a runaway convict, mounted and armed to the teeth, will ride up to the residence of a remote settler, and commit a robbery in the middle of the day; the convict servants generally standing by as idle spectators, and refusing to assist their master in any attempt to resist or arrest the robber. The most atrocious and wanton cruelties are frequently perpetrated by the convict shepherds on the natives. I will mention, as an example, one case which occurred the year before last. In the vicinity of one of the remote cattle stations of New South Wales, a body of natives, amounting to about fifty in number, had been residing for a considerable period of time in perfect tranquillity, molesting no one. On a sudden there arrived at this place some eleven convicts. They seized thirty of the unoffending natives, tied them together with a rope, led them away a short distance from the station, and then put every one of them, men, women, and children, to death, with the exception of one woman, whom, on account of her good looks, they kept as a concubine for one of their comrades. The murderers were subsequently apprehended and tried. The first jury refused to convict, though the evidence against them was conclusive. They were tried a second time for the same, though technically a different offence, and on the same evidence; they were convicted, contemned to death, and seven of them were executed. It may be remarked, as illustrative of the state of feeling in the penal colonies with regard to the natives, that not only did the first jury refuse to convict but the second jury signed a petition in behalf of the murderers. Petitions likewise were presented in their favour from a considerable body of colonists. Some of the colonial newspapers loudly condemned the governor (to use their own words) "for putting white men to death for having killed a few black cannibals."

1255
And the condemned themselves, in their last moments, declared that they were not aware at the time that they were committing any offence in destroying the blacks, as similar acts had been frequent in the colony; and of the truth of this assertion there can be no doubt. In Van Diemen's Land, likewise, similar atrocities have been committed by the convicts. It is recorded that in many instances they killed or castrated the native men, in order to obtain possession of their women. These outrages led to repeated attacks from the natives on the persons and property of the colonists, which at one time threatened the existence of that colony. The settlers, found it necessary, in self defence, to hunt down the natives as if they had been so many wolves. And as the House is probably aware, the aborigines of Van Diemen's Land are now exterminated, with the exception of a few who have been removed to perish in Flinder's Island. Throughout the whole of the Southern Ocean, New Zealand, and the islands of the Polynesian Archipelago, traces are to be found of the cruelties practised by escaped convicts on the aborigines, which have produced amongst them the greatest antipathy to our race, and have been most injurious to our commerce. Sir: though the amount of crime of which I have been speaking appears enormous, yet a moment's reflection on the nature of the materials of which these communities are composed, must dispel all astonishment at its extent. Fifty years ago, when New South Wales was founded, one of the greatest and most original thinkers that this country ever produced, I mean Bentham, foretold the consequences of planting a colony with criminals, subject to a punishment which had no tendency to improve their character; and the result is in strict conformity with his anticipations. Up to the year 1836, 100,000 convicts had been transported, whilst the number of free emigrants to the penal colonies could not have exceeded 60,000. It is evident, even without the confirmation of the facts just stated, that this almost equal admixture of innocent and guilty, could conduce but little to the improvement of the latter, whilst it must have tended greatly to the deterioration of the character of the former. Independent, however, of the pernicious consequences of assembling so many criminals in the same place, where they can form a
1256
criminal class, and keep each other in countenance, transportation has operated injuriously to the moral well-being of those communities in another manner. It has caused a great disproportion of sexes. Of the 100,000 convicts of whom I have spoken, not 13,000 were women. According to the last census, the proportion of men to women in the whole population of the penal colonies was as five to two; amongst the convicts in the towns as seven to two; and in the agricultural districts, where the convicts chiefly reside, it was seventeen to one. The question may be asked, why have so few women been transported, when the deplorable consequences of such a disproportion of the sexes are self-evident? The answer puts in the strongest light the great imperfection of transportation as a punishment. The answer is this; that the colonial authorities were generally opposed to the transportation of any considerable number of women, because they found it impossible to devise any means of punishing them which were not liable to the most serious objections. The conduct of female convicts was so invariably bad, that respectable settlers were generally unwilling to receive them as assigned servants in their families; and preferred the services of men in those domestic occupations which are usually performed by women. In some families in which they were received, the most lamentable results ensued, from the corruption of young children entrusted to their charge. And it is needless for me to describe what were the consequences of their being assigned to the lower description of settlers; they were such as the colonial authorities could neither sanction nor overlook. Lastly, the women who were assigned, were constantly returned to the government to be punished for misconduct; and the government was, as I have already observed, utterly at a loss what to do with them. Sir, penitentiaries are the only modes of punishment suitable for women. But in the penal colonies there were no means of establishing a good penitentiary system. Indeed, for a considerable period, the penitentiary in New South Wales was little better than a brothel, and a lying-in hospital. As the only means of disposing of female convicts, marriages were encouraged between them and the free and convict populations; and numerous marriages did take place. Though this plan of dealing with

1257
female offenders is at variance with every notion and object of punishment, yet I do not hesitate to declare my opinion, that it was the best and wisest under existing circumstances. In support of this position, the high authority of Captain Maconochie may be quoted, who has had the best means of ascertaining the moral effects of transportation. That gentleman thought it would be desirable to give the greatest possible extension to the marrying of female convicts; and for this purpose he even proposed that
"Convict married women, whose husbands refused after a given time to join them, should become free to form fresh connections."
And Captain Maconochie asserted, that he could
"Prove the expediency of this plan, by statements of the consequences of the want both of husbands and wives in the penal colonies, as would make the blood curdle."
It is not necessary to make any observations as to the propriety or impropriety of such a plan; but I ask the House to consider what must have been the impression made upon the mind of a highly intelligent gentleman, by the disproportion of sexes in the penal colonies, which could induce him to recommend a scheme so utterly inconsistent with the ordinary notions with regard to marriage. The difficulties which beset the question of female transportation appear to me to constitute most grave and valid objections to the whole system of transportation; but, in my humble judgment, they are not sufficient to justify the discontinuance alone of female transportation. For if this country continue to send thousands of its worst offenders to become first slaves, then citizens in Australia, they must be accompanied by women; otherwise those disgusting vices, which there is every reason to believe prevail among the convict population, will fearfully increase, and spread their contamination throughout the whole community. A short time ago an attempt was made to render the proportion of sexes in the penal colonies more equal, by means of free female emigration. This attempt completely failed; partly from mismanagement. It was undertaken by some benevolent individuals, who were very ill qualified for the task. They formed a committee for the purpose, and obtained a grant of money from the government, Their secretary
1258
was one Mr. John Marshall, who al the same time undertook the incongruous functions of chief agent for the selection of emigrants, and contractor for their conveyance to the colonies. In short, he became the committee itself. The result was, that the streets of Sydney and Hobart Town were crowded for a time with female prostitutes; and vice became, perhaps less disgusting, but more apparent. In this manner some forty or fifty thousand pounds of public money were expended. It is vain to think of altering the proportion of sexes in the penal colonies by means of good female emigration, as long as transportation continues; because respectable women will not consent to go alone to dwell among convicts. Attempts have been made in the penal colonies to deny the demoralizing effects of transportation on the state of their societies; and resolutions to that effect have been passed at meetings composed of persons who considered that they had a deep pecuniary interest in the continuance of convict slavery. Such resolutions, unsupported by facts, and in direct opposition to the undoubted facts which I have stated, are of little value; unless they may be considered as evincing the moral insensibility of those who agreed to them, and thereby proving the contrary of what was intended to be proved. There are, undoubtedly, amongst the officers of the government and the higher class of settlers many very respectable individuals; nevertheless, it appears to me that the pernicious moral influence of transportation must be felt by all persons resident in those colonies. Let hon. Gentlemen picture to themselves the life of a settler in a community where three-fifths of the population have been convicted of transportable offences; where, to use the words of Mr. Justice Burton, the main business of all seems to be the commission of crime and the punishment of it; where some of the wealthiest inhabitants, the greater portion, of the tradesmen, publicans, and innkeepers; where almost all the servants in private families, the labourers in the fields, and the workmen on the roads; where the police (as in Van Diemen's Land), the superintendents of the convicts, the gaolers, witnesses in the courts of justice, members of the jury on the trial, and even at one time magistrates on the bench, and instructors of youth in the schools, were or had been convicts. Thus, at every

1259
moment, and in every occupation of life, the settler is brought into contact with criminals. He is surrounded by crime, and haunted by the spectacle of cruel and degrading punishment. On the roads and in every public place he constantly meets gangs of wretched beings in chains, displaying all the outward tokens of misery. The shopkeeper with whom he deals has probably been convicted of swindling. The servants who attend upon him are all convicts; the women, at best, drunken prostitutes; the men hardened ruffians; in order to make them work, he must either connive at their vicious conduct, disobey the regulations of the government, and pay them wages, or he must have constant recourse to a magistrate and to the infliction of the lash. Let hon. Members reflect upon what may be the consequences of all the servants in a family being criminals, sometimes of the worst description. A gentleman, long resident in one of those colonies, informed me that he had on his establishment four convict servants; that on inquiry, he found that one had been transported for forgery, another for burglary, the third for an attempt at murder, and the fourth for some bestial offence. He was obliged to retain them in his service, because he could get no others; and his friends were no better off than himself. It is easy to imagine what may be the consequences of such an establishment of servants; and that crimes, unparalleled in this country, are sometimes perpetrated in the interior of the most respectable families. I will mention a horrid case, which occurred in the family of a wealthy and respectable settler in Van Diemen's Land. It was discovered that his two daughters, one an infant of five years old, the other a girl of thirteen, had had repeated connexion, not with one, nor with two, but with all the convicts in their father's establishment, which was a large one. Three of the offenders were hung for rape on the infant, and all of them would have been executed had their master brought them to trial. Such was the statement made to the committee by a gentleman who was on the jury. He gave the details of the case, over which the decencies of the House compel me to cast a veil. To conclude the description of the life of a settler in the penal colonies. In Van Diemen's Land the convict police may break into his residence at any hour of the night, on
1260
pretence of searching for a runaway convict; and may even arrest him on the public road, on suspicion of his being a prisoner of the crown. In New South Wales, if he be summoned to attend on a jury, he frequently finds that some of his fellow-jurymen have been convicts; that they sympathise with the criminal in the dock, and are determined at all events to acquit him. If he be a magistrate, his constant occupation is to order the infliction of the lash for trifling offences, and, in some instances, by personal inspection to ascertain that the convict scourger does his duty with sufficient severity. In short, he dwells in a vast and ill regulated gaol. He is himself, to all intents and purposes, a gaoler, and of the worst description; because, induced to undertake that revolting task, not by any peculiar mental or moral fitness for its due performance, but by the insatiate desire of wealth. His object is not to execute the threats of the law, or to improve the offender entrusted to his care, but to extract the greatest amount of labour from a slave. This description of the position of a free settler in a convict colony is as true as it is disgusting. What must be its effect upon his character? All experience proves that slavery of every kind has a bad effect on the character of the master; that it tends to make him harsh, cruel, and tyrannical; yet in ordinary slavery, as, for instance, in the United States, there are many causes which tend to mitigate its evil effects; such as the permanent interest of the master in the slave; the circumstance that master and slave are frequently brought up together in childhood, and the kindly feelings which thence ensue. None of these causes, however, can operate when the slave is a criminal, and the master has no permanent interest in him. The feelings, on one side, must be those of distrust and apprehension, on the other of hatred and fear. Hence it may reasonably be inferred that convict slavery must be the most injurious of all to the character and temper of the master. It can hardly be doubted that it must be equally injurious to his children. Yet, strange to say, the contrary opinion has been held. It has been maintained that transportation encourages the virtuous sensibilities of the rising generation of the penal colonies; that, as of old the Spartans were wont to intoxicate their Helot slaves in order to

1261
impress upon their offspring the hideous-ness of drunkenness, so, it is said, the perpetual spectacle of crime and punishment stimulates the moral energies of the youth of Australia, and renders them peculiarly averse to dishonourable and disgraceful conduct. This absurd doctrine, according to which a gaol would be the fittest place for the education of children, has been propounded in sober seriousness by some of the interested advocates of transportation. I need not stay to refute it. But let me now ask hon. Members what benefit of any kind, sort, or description, is derived from such a system as transportation? Does it prevent crime? Certainly not; for it produces very little apprehension. Does it improve the character of the culprit? On the contrary; it leads to his utter demoralisation. Does it diminish the number of offenders? No; the abode of some of them is changed at an enormous expense, and a small portion of our burden of crime is transferred from England to be increased a hundred-fold in Australia. Is it then a punishment of which a civilised nation may boast? Sir, it is unequal, uncertain, productive of more pain than terror, cruel, tyrannical, and disgraceful. Bad as it is as a punishment, it is still worse as a means of colonisation, for it has given birth to the most depraved communities in the universe. I may, therefore, without presumption, assume that some change, at least, must be made in the existing system. The question still remains, can any such alterations be made in transportation as shall render it a good punishment; or should some other punishment be substituted in its stead? In my humble judgment, the latter alternative ought to be adopted, and transportation should forthwith be abolished. In holding this opinion, I am sorry to be obliged to disagree with the noble Lord, the Secretary of State for the Colonies (Lord John Russell), who has suggested the continuance of a portion of transportation. I say he has merely suggested it, because he has not pronounced a decided opinion on the subject; and I cannot help hoping that he may be induced to reconsider that opinion. The plan of the noble Lord is contained in a letter from him to the late Secretary of State for the Colonies; which was laid, at the end of last Session, on the table of the House. In that document the noble Lord states, with great force and
1262
ability, all the arguments against transportation; and concludes with recommending; first, the immediate discontinuance of the assignment system; secondly, that convicts sentenced to seven years' punishment shall cease to be transported. So far I entirely agree with him. But, lastly, he proposes that convicts sentenced to more than seven years' punishment shall be transported to Norfolk Island, where they are to undergo the severer portion of their punishment; subsequently they are to be removed to the public works in New South Wales. This plan is liable to the same objections which have been urged against the existing system of transportation; and of this the noble Lord is well aware. For in the paper to which I have referred he has stated one of the most serious of those objections in the most explicit terms. In the twenty-first paragraph he says, besides other objections to the sending of convicts to Norfolk Island, there is this defect in the proposal.
"That it would leave the main evil of transportation in full vigour. No one would advise the transport of criminals to the distance of Norfolk Island with the intention of bringing them back at the expense of the public to England. The consequence must be, that at the expiration of their sentences they will flock to the Australian colonies, and render that noxious atmosphere more foul by the addition."
And in the next paragraph he calls this a "fatal objection." It does, indeed, seem a fatal one; and I, therefore, presume to beseech the noble Lord to reconsider this portion of his plan. But there are other, and equally fatal objections to it. I ask, what description of punishment is to be inflicted upon convicts in Norfolk Island? Is the existing system to be continued, there? I hope not, after the description I have given of it, and after the emphatic condemnation of it by the noble Lord, himself. But what other system can be established, which will preserve discipline among the convicts in these settlements? Herein consists the difficulty. The cruel system of the penal settlements did not result from any love of cruelty on the part of the officers who managed those settlements, but from the attempt to enforce discipline by means of coercion alone; hence frequent and severe punishments for the most trifling offences, and a state of things worse than death. But if severe coercion be not employed, all experience shows that the only other means of pre-

1263
serving discipline among large numbers of offenders, is by well-constructed gaols or penitentiaries. Will you build gaols and penitentiaries in Norfolk Island? Who are to build them? The convicts? But how is discipline to be preserved amongst those convicts while the gaols are building? You cannot even have a hulk at Norfolk Island, for there is no harbour there except for boats. Discipline must, therefore, still be preserved by the lash. Then the horrors of Norfolk Island will have to continue for an indefinite period of time. And this I cannot believe that either the noble Lord intends, or that the House will sanction. But I will suppose that it is your intention to build gaols and penitentiaries in Norfolk Island. Have you calculated the expense of building them in a small island, without timber, without harbours, in the midst of the Southern Ocean, one thousand miles from the abode of civilized man? The history of convict labour in New South Wales and Van Diemen's Land proves that it is only the commonest description of labour, and a very small quantity of that, which can be extracted from a criminal by punishment. In order to build, you must therefore have free, skilled labourers of various descriptions, superintendents acquainted with building, and artificers of every sort. How will you get them, except at an enormous expense? And when you have got them, how will you persuade them to remain in your convict island, with the labour market of New South Wales, South Australia, and New Zealand open to them, offering to them the highest wages, and temptations which you cannot permit in your penal settlement, without a subversion of penal discipline? In short, what inducements can you offer which shall tempt them to reside in a place, where life is so miserable, that even your own soldiers have lately risen in revolt? For these reasons, I feel persuaded that the cost of building penitentiaries in Norfolk Island, with the assistance of convict labour, would far exceed the cost of building better penitentiaries in this country, and of maintaining, at the same time, the convicts, if necessary, in idleness. Again, how are the home authorities to exercise the requisite degree of vigilant superintendence over these remote places of punishment? Why, I ask, have you lately appointed inspectors of prisons in this country, and directed them annually to report to Parliament? Because you
1264
have become aware that without constant inspection, you cannot enforce proper penal discipline, even at home, that you cannot trust to unobserved authority even at your own doors. Have you any reason for placing greater confidence in gaolers at Norfolk Island, or will you send inspectors yearly to the antipodes? And even then a year must elapse before a remedy can be applied to the best proved abuse. Again, will you send women to Norfolk Island, or is it to be inhabited only by men? Have you well considered this matter? Is it necessary to repeat the statements of the highest authorities, that wherever large numbers of male offenders are collected together in the penal colonies, there unnatural crimes are fearfully prevalent? The only means of preventing those crimes is, by the complete separation of prisoners; and this cannot be effected till gaols are built. What can be said in reply to these objections? The only argument I have ever heard in favour of the Norfolk Island plan is, that that island is said to possess the average degree of fertility common to places in the vicinity of the tropics; hence it is supposed that convicts might there raise the greater portion of their own subsistence, and that their punishment would be an economical one. Passing by the fatal objection to this plan, that it would require the employment of large bodies of convicts together in the fields, and consequently a system of coercion analogous to the present one; I utterly disbelieve that the attempt, if made, would be successful. First, because all similar attempts have hitherto failed; secondly, because the island in question is a very small one, not containing above 17,000 acres, most of which is dense jungle, and unfit for the growth of corn. But if this attempt do fail, or only partially succeed, reflect what will be the cost of conveying supplies of food from Sydney to this place, which by nature is almost inaccessible. Remember, likewise, that the cost of subsistence, and of every necessary in Sydney, is always much higher than in England. Judging from experience, a notion may be formed of what the expense of such a settlement is likely to be. In 1836, when the number of convicts did not exceeed 1,000, the rations of salt meat alone in Norfolk Island cost 12,500 l.; and, according to the commissariat officer resident there, the expence of that settlement to this country has been 30,000 l. a-year, or about 30 l.

1265
a-head for each convict. Now, estimating the average duration of each convict's punishment there to be four years, and the cost of transport to and from Norfolk Island not to exceed 25 l., the whole expense of the punishment of each convict would be 145 l., which is one-half more than the sum for which the noble Lord estimates that convicts could be kept in the most expensive penitentiaries, like that of Millbank. I, therefore, again presume to ask the noble Lord to reconsider this portion of his plan: for I feel convinced that if it be adopted, it must ere long be abandoned, after a worse than useless expenditure of public money; because, after an exhibition on a larger scale of that portion of the existing; system which all authorities concur in condemning as most foul and disgraceful. It is necessary to say one word with regard to a totally new mode of punishment, which is suggested in the noble Lord's letter to the late Colonial Minister. I mean what is called the social system of Captain Maconochie. According to that system, criminals are to be associated together in small parties of seven or eight individuals, each of whom is to be held responsible, not for his own conduct, but for that of all the others with whom he may be associated. And thus it is expected, that with the usual opportunities for crime which attend on being at large under the transportation system, offenders would be induced to abstain from crime by their mutual regard for one another. This curious proposal outrages every law of human motives; it is in direct opposition to every principle of punishment, as a check to crime; it would almost seem to have been intended for a purpose of mockery. It is like bestowing riches on the profuse, at the expense of the thrifty; like rewarding the reckless with the deserts of the careful. It is, in fact, to all intents and purposes, punishment of the innocent for the crimes of the guilty. Sir, in recommending the immediate abolition of transportation, the House will expect that I should offer some substitute in its stead. This I will now endeavour to do, entreating the House, however, to make allowance for the imperfect manner in which I am afraid I shall execute this attempt. I propose that convicts, instead of being transported, shall be punished in hulks, gaols, or penitentiaries to be built for that purpose. I is true, that the hulks are not the
1266
best description of punishment, but they would afford an immediate substitute for transportation till penitentiaries can be built. They are, however, positively preferable to transportation; because they produce much more apprehension; because convicts in the hulks can be subjected to much more efficient superintendence and inspection than in the penal colonies; and lastly, because they are somewhat less demoralizing, and, as I will presently show, a less expensive punishment than transportation. The ultimate and permanent substitute for transportation should be one or more forms of the penitentiary system. Experience has shewn, that the best form is that which was first suggested by Mr. Bentham, and recommended by him, in preference to the formation of the penal colony of New South Wales. I mean the separate system. According to that system, offenders are kept entirely apart, and never allowed to associate together, or to become acquainted; they are visited by persons appointed for the purpose, whose duty it is to afford them religious and moral instruction; and they are permitted, not compelled, to work. This description of punishment has most of the qualities of a good punishment. It produces a great degree of terror. It is certain and equal. It is easily apportioned to various degrees of crime. It renders the commission of crime during the period of punishment almost impossible. It prevents the formation of those acquaintances amongst criminals during punishment, which are found to be one of the greatest sources of crime, and which generally lead to the permanent demoralization of the culprit. It entirely severs for the period of punishment, all connexion between the offender and the rest of the criminal population, and thus breaks through his vicious habits. It tends, by the opportunity afforded for reflection, and by intercourse with properly chosen instructors, to improve, as far as possible, the moral character of the offender. And, lastly, arbitrary punishments are not required in order to preserve discipline, or enforce labour: labour, therefore, becomes a source of enjoyment instead of pain, and the culprit is thus best fitted for a subsequent life of honest industry. The ordinary objection to the separate system is its expense. Though when a great moral advantage is to be obtained, the question of expense is one of minor importance, yet

1267
it cannot be entirely overlooked. With regard, however, to the separate system, it can be proved that it would cost less than any of the proposed substitutes for the assignment system; which I assume it is the intention of the Government to persevere in discontinuing. It may even be shown, that it would not be more expensive than transportation has been. In proof of these positions, it will be necessary to state what appears, from the best authorities, to be the expense of various kinds of punishment. First, of transportation as it has existed. From the foundation of the penal colonies to the year 1836, the total expenditure of this country on account of these colonies, has exceeded eight millions. During that period 98,000 convicts have been transported. Their punishment has, therefore, cost at least 81 l. a-piece up to 1836. At that time there were still 46,000 of these convicts under punishment; the subsequent expenditure on their account, which there are no data for ascertaining, must be added to the sum just mentioned, in order to make up the total cost of their punishment. This proves at once that transportation has been of the most costly description of punishment, equal, at least, to the system of the penitentiary at Millbank. This fact may astonish hon. Members. It has escaped attention, owing to the circumstance that the expenditure on account of transportation is scattered over a variety of estimates. For instance, one portion of it is to be found in the navy estimates, another portion amongst the army estimates, the third amongst the ordnance estimates, and the remainder in the miscellaneous estimates. It has never been presented as a whole to the House previous to the labours of the transportation committee. It may, however, be said, that great unnecessary expense was incurred in the earlier periods of transportation, and that it has how become much less costly. I am by no means persuaded of the froth of this position. In the year 1836–7 the public expenditure on account of the penal colonies amounted to nearly half a million. It consisted of three items:

Transport of convicts to the penal colonies

£73,000

Expenditure on account of convicts in those colonies

241,000

Military expenditure

174,000

Total

£488,000

1268
In addition to this sum, the colonial expenditure on account of the administration of justice, gaols, and police, was 90,000 l. a year; an enormous amount, as it is nine times as great in proportion to population, as that of the United Kingdom for similar purposes. The greater portion of this expenditure evidently belongs to transportation. And it should be mentioned, that the legislative council of Van Diemen's Land refused the estimates for two thirds of their portion of this expenditure, on the plea that it ought to be defrayed by this country. Supposing, however, that only one half of the military and judicial expenditure ought to be attributed to transportation, the average cost of each convict's punishment would be 8l. a year, exclusive of transport. If the average duration of a convict's punishment be taken at only seven years (the shortest period of transportation), and the cost of transport be reckoned at 15 l. a piece, then the whole cost of a convict's punishment would be 71 l. under the existing system of transportation and assignment. If assignment be abolished, and the convicts be placed under the immediate superintendance of the colonial Government, it appears from Sir G. Arthur's estimates that an additional expenditure would be required of at least 10 l. a year for each convict; the whole expense of a convict's punishment would therefore be 141 l. It should likewise be remarked, that at present the masters perform the duties of gaolers and guards to their convict servants; therefore, if those convicts be placed under the immediate care of Government, according to Sir Richard Bourke a large increase of military force would become necessary. If the Norfolk Island plan be adopted, and even if, on account of the greater severity of that punishment, only four years be taken as the average duration of a convict's punishment, then, for reasons which I have already stated, the cost of this punishment would be 145 l. for each convict without including the cost of the subsequent portion of his punishment on the public works of New South Wales. I have thus endeavoured to state what appears to me to be a fair estimate of the expense of the existing system of transportation, and of the two proposed modifications of that system; namely, the employment of convicts on the public works of the penal colonies, and the Nor-

1269
folk Island plan. I ask the House to compare these estimates with those furnished by the noble Lord with regard to hulks, gaols, and penitentiaries. The noble Lord reckons four years to be the average duration of punishment in gaols and penitentiaries. This, it should be remarked, is generally considered to be a punishment equivalent to fourteen years transportation. Therefore my estimates, founded upon the supposition that seven years are the average duration of transportation, will be considerably too low as compared with those of the noble Lord, which I will now read:
"The average expense of each convict kept in the convict hulks in England for a period of four years would not be less than 30 l.; if kept in a house of correction, such as those of Wakefield or Coldbath Fields, would not be less than 55 l. or 56 l.; and if kept in a penitentiary, similar to that of Millbank, would not be less than 90 l."
From these estimates it appears that if the punishments, of which I have been speaking, be arranged according to their expensiveness, the first and most expensive of all would be the Norfolk Island plan, which would cost at least 145 l. for each convict. The next in the scale of expense would be the employment of convicts on the public works of the penal colonies; the cost of which would amount to more than 141 l. a convict. The third would be penitentiaries similar to that of Milbank, estimated by the noble Lord at 96 l. a convict. The fourth would be the existing system of transportation and assignment which costs at least 71 l. a convict. The fifth would be houses of correction like those of Wakefield and Cold-bath-fields, amounting to between 55 l. and 56 l. for each convict. And the last and cheapest would be the hulks, the expense of which is much under estimated by the noble Lord at 30 l. a convict, None of these descriptions of punishment precisely include the separate system, which I have proposed as the substitute for transportation. In the Glasgow Penitentiary, the only one in Great Britain on the separate system, the average cost of each convict's punishment has not exceeded 5l. a year, or 20 l. for the four years. I may, however, suppose on the authority of the prison inspectors, that the average cost of a convict's punishment in the best penitentiaries on that system, would be about 18 l. a year, or 72 l. for the four years. Thus it
1270
appears, that whatever description of penitentiaries be adopted, they would cost less than either of die proposed modifications of transportation. These estimates only refer to the maintenance and superintendence of convicts; they do not include the cost of building the requisite gaols or penitentiaries. With regard to this subject, it should be borne in mind, that at present all the assigned servants, who constitute the greater portion of the convicts, are lodged, clothed, and guarded by their masters. If the assignment system be abolished (and there is no one, I presume, who will propose the continuance of that system, condemned as it is by the Government and all competent authorities,) then, whatever system be adopted, buildings must be erected to contain the convicts. What would be the cost of such buildings? From the high price of labour, and of every material, they would be much more expensive in the penal colonies than in this country. I think it may be asserted, without exaggeration, that they would cost one half more in New South Wales than in England, and twice as much in Norfolk Island. From the best information which I have been able to obtain upon this subject, namely, from the prison inspectors, it appears that the most perfect description of penitentiaries might be built for about 120 l. a cell. How many cells would be required? The noble Lord estimates that if transportation were abolished, the number of convicts to be disposed of would be about four thousand a year. If the average duration of their punishment be four years, then ultimately sixteen thousand cells must be built. Sixteen thousand cells, at 120 l. a piece, would cost 1,920,000 l. This sum, at four per cent., would be equivalent to an annual expenditure of 76,800 l. From these data it is easy to reckon the cost of the system proposed. The maintenance, superintendence, &c, of 16,000 convicts on the separate system, at 18 l. a piece a-year, would amount to 288,000 l. a-year. The interest of the money expended in building penitentiaries would be 76,800 l. a-year. Total cost of the separate system, 364,800 l. a year. If hon. Gentlemen would take the trouble of making similar calculations with regard to the Norfolk Island plan or that of employing convicts on the public works of the colonies, they would find that, exclusive of the cost of building the requisite gaols, the annual expense of these

1271
punishments would be from 500,000 l. to 560,000 l. a-year; or from 140,000 l. to 200,000 l. a-year more than the separate system for the same number of convicts. It appears to me, however, that a system of punishment is incomplete, which does not make some provision for the future career of the culprit at the termination of his punishment. The questions, "What is to be done with offenders at the expiration of their sentence?" "How are they to be prevented from returning to criminal pursuits?" are undoubtedly questions of considerable difficulty. Some persons consider that transportation solves these questions. This I deny. The effect of transportation is merely to remove offenders from England, and ultimately to turn them loose, unreformed in Australia; where they find a large class of criminals to associate with, and where, as has already been shown, they commit innumerable offences. What benefit, then, from such a system? No one would consider that any advantage would be obtained, if the means employed in diminishing crime in Cornwall, for instance, augmented in a greater degree the number of offences in Yorkshire. This is, however, precisely the effect of transportation with respect to England and Australia. By this proceeding the sum total of offences in the British dominions is certainly not lessened but considerably augmented; and the Legislature fails in obtaining the great object of punishment, which is to prevent crime, not merely to change the place where it is committed. In order to prevent a criminal from perpetrating fresh offences, when the period of his punishment is over, his moral character ought to be improved by it, and he should be placed in a position in which he would not be exposed to strong temptations to relapse into criminal habits. In both these respects, the inefficiency of transportation has been demonstrated. On the other hand, it is acknowledged by every person conversant with the subject of penal discipline, that the separate system tends, more than any other punishment, to improve the moral character of an offender. It cannot, however, be denied, that if at the expiration of his sentence, a prisoner were turned loose in this country, with a character blasted by punishment, he would have great difficulty in finding employment, and might in many cases, be compelled to maintain
1272
himself by crime. To meet this difficulty, a plan has been proposed by the Archbishop of Dublin. The House is aware, that the Archbishop of Dublin has been of late years the great opponent of transportation; in his steps I have endeavoured humbly to follow; and to him I feel most deeply indebted for the advice which he has kindly and graciously afforded me with regard to this subject. The plan of the Archbishop of Dublin is contained in a letter inserted in the report of the committee. It is simply this: that liberated offenders, who would consent to emigrate should be furnished with the means of conveyance to portions of the globe where they would easily find employment, and where their previous career would be unknown. They should on no account be all sent to the same place; because they would there form a criminal class, and thus reproduce many of the worst effects of transportation; and for this reason, they should not be permitted to go to the penal colonies for the next fifty years. By being dispersed amongst the moral and industrious, far removed from the scene of their transgressions, and without any known taint on their character, the good feelings and habits acquired in confinement would be strengthened, and a new career would be opened to them; which cannot be the case under the existing system of transportation, or any of its proposed modifications. This plan, or some analogous one, seems to me to be a necessary accompaniment to a good system of punishment. It would entail an additional expense of about 15 l. a head, at the utmost, for every prisoner who would consent to emigrate. How many would consent so to do it is impossible to estimate; but supposing all the 4,000, who it may be considered would annually become free, were to consent, their emigration would cost the country about 60,000 l. a-year. This sum added to my previous estimate for the building of penitentiaries and the maintenance of 16,000 convicts in them, would make a total amount of 424,800 l. a-year for the system proposed. The House will remember that I stated the cost of transportation to be at present 488,000 l. a-year Therefore, the expense of the separate system, including the plan of the Archbishop of Dublin for providing for the subsequent career of the prisoner, would be 63,200 l. a-year less than that of transportation.

1273
It is true that if transportation were abolished, the whole of the expenditure on account of the penal colonies would not at once be saved. There would, however, be a considerable immediate diminution of expense; first, of at least 73,000 l. a-year for the transport of convicts; secondly, it is probable that by the end of four years, when the new system would come into full operation, the convict and military expenditure might be diminished to one half its present amount. Now, making these allowances, and the proper calculation, the result would be, that the additional expense to this counrry from adopting the system I propose, would not exceed 144,000 l. a-year, and be ultimately much less. The additional expense which would ensue from adopting the Norfolk Island plan, or that of employing convicts on the public works of the penal colonies, would, for reasons already slated, be much greater; though how much greater there are no means of calculating. In making these estimates, I have been most anxious not to mislead the House by putting down the expense of the separate system too low. I do not deny that penitentiaries might be expensive, but only assert that they would be less expensive than any of the proposed alterations in the existing system of transportation. I do not recommend them merely as being cheap punishments. I entreat the House not to be led away by any notion of an economical punishment; for, by its nature, punishment must be an expensive thing. All our attempts at economical punishments have hitherto signally failed; and the result has been bad and expensive punishment. It is a matter for sorrowful reflection, that if at the end of last century we had listened to the voice of that great philosopher, Bentham, we might ere this, for a less expense than transportation has cost us, have had the best system of prison discipline in the world; and our secondary punishments would have been a model for mankind, instead of being, as now, a deep reproach to the empire. As a great change must immediately be made in our system of punishment; I implore the House to take warning from our predecessors, and not to commit errors similar to theirs, which would entail disgrace upon us with posterity. The only other objection to the punishment of criminals at home, to which I need to allude, is an official one; and is frequently urged by
1274
persons connected with the administration of punishment. It is said, that if offenders were punished in penitentiaries, the Home Office would be beset with memorials for the mitigation of punishment; that those memorials, supported as they frequently would be by political partisans and other influential persons, could with difficulty be rejected; that a check is now put to inconvenient solicitations on behalf of convicts, by removing them to a distance; and that at present a considerable portion of an offender's punishment is inflicted before a remission of sentence can reach the penal colony. To this I answer, either the application for the mitigation of a particular convict's punishment is, or is not, well founded. If it be well founded, then a grievous injustice is done to the convict by removing him to such a distance, that he cannot at once obtain that remission of punishment to which he is entitled. On the other hand, if the application for mercy is unfounded, then the conduct of a minister of the Crown, who consents to a remission of the sentence, is highly reprehensible. He is guilty of a great offence against society, by rendering punishment uncertain, and diminishing the force of the motives to abstain from crime. If it be said that such abuses will exist as long as the Secretary of State for Home Affairs possesses his present power of pardoning; then I reply that power ought to be limited, or placed in other hands; for so exercised, it is evidently inconsistent with the public good. And I cannot help thinking that the power of pardoning should be transferred to some judicial tribunal, which would act according to rule, and which should clearly and distinctly explain its reasons in each particular case for remitting or mitigating punishment. At present, the remission of a sentence is an arbitrary act of a Minister of the Crown, for which he assigns no reasons, and which every person interprets according to his own fancy. This tends to produce uncertainty as to the execution of the laws; and causes many an offender, who has powerful protectors, to hope (justly or unjustly it matters not) for impunity. This subject well deserves the serious attention of Parliament; but it is one which I cannot enter upon at present. I will only observe again, that the plea that the Home Secretary would be compelled to abuse his power of pardoning with regard to

1275
prisoners in penitentiaries, is not a valid argument in favour of transportation, but furnishes good reasons for depriving him of that power. The question may still be asked, what is to be done with the convicts in the penal colonies? This is a mere question of time. So much of the present penal system must be retained, as is necessary for the punishment of the offenders now in the colonies. By the termination of four years after the abolition of transportation, a very considerable portion of the convicts would either have become free, or half free, by obtaining tickets of leave. The remainder should be withdrawn from assigned service; the worst characters should be punished in the gaols or public works; and the well-conducted might be permitted to be at large under certain restrictions. These are questions, however, of mere administrative detail, which a person on the spot could easily solve. Send out a governor well acquainted with the subject; arm him with sufficient powers; make him responsible for bringing the existing system to a satisfactory termination; and four or five years would enable him to accomplish the greater portion of his task. Amongst the great evils of having once adopted any bad system, is the difficulty which attends the getting rid of it, the length of time which must elapse before all its pernicious consequences can be rooted out, and the excuse which is thus afforded for hesitation and delay. Remember, however, that in this case delay will only increase the difficulties of those who will have ultimately to abolish transportation; and every ship-load of convicts which you send to those colonies will render (to use the noble Lord's own expression) "their noxious atmospheres more foul;" and consequently, their period of purification more remote. I will conclude with a few observations on the effects of the abolition of transportation on the wealth of the penal colonies. The House is, without a doubt, aware of the extraordinary and unparalleled rapidity with which those colonies have advanced in wealth; and that that progress is mainly to be attributed to the fact, that the settlers have been abundantly supplied with convict slaves, who have enabled them to pursue various profitable branches of industry. Now that the Government has determined to abolish the assignment system, the sealers will, in a short period, be deprived of convict ser-
1276
vants; and the prosperity of those communities will terminate, unless they be supplied with labour from other sources. The only source from which they can be beneficially supplied with labour, is by free emigration from this country. There are, however, several difficulties which beset the question of free emigration. Persons who are inclined to emigrate, have of late become acquainted with the unfortunate moral state of the penal colonies: many of them are, in consequence, unwilling to confound themselves with convicts by going to a convict settlement. I am not surprised at it. I cannot conceive how any respectable or virtuous man, how any person who is or intends to become the father of a family, in short how any individual in whom the thirst of gain does not outweigh every other and better consideration, can consent to become an inmate of one of these communities of felons, as long as there is any doubt as to the total discontinuance of transportation. To the honour, be it said, of the poorer classes of this country, there is a great and growing disinclination amongst them to emigrate to these colonies. This feeling prevails especially in Scotland. It exists in England, and has been excited in Ireland through the exertions of the Archbishop of Dublin, who has felt it to be his religious duty to discountenance emigration to New South Wales. Therefore, with the discontinuance of the assignment system, the industry of the penal colonies will be materially injured, if not subverted, unless transportation to them be entirely abolished. And even this will not be sufficient, if the Norfolk Island system be adopted, and convicts be ultimately turned loose in New South Wales: a project to which, I may assert, the colonists are unanimously opposed, as perpetuating all the moral evils of the existing system, without any of the economical advantages of convict slavery. Abolish transportation, and there will be no difficulty in procuring emigrants for those colonies. But still it may, and not unjustly, be objected to me by some persons who might ask, "Would you promote emigration to communities which you have described as so demoralized? Would you send innocent persons to places where they would be almost certain to be contaminated by intercourse with the guilty?" I answer, that the amount of emigration should be such as would, within a very

1277
short period, entirely swamp the convict population, and completely alter the moral character of those communities. If only a few thousand emigrants were sent out every year, a considerable portion would, in all probability, be demoralized. If, however, their numbers were to be reckoned by tens of thousands, the convict portion of the population would soon become an inconsiderable minority. As this subject was discussed last year in a debate on the motion of my hon. Friend, the Member for Sheffield, I will not repeat the calculations, from which I inferred that if (supposing transportation abolished) 100,000 persons were to emigrate during the next four years to the penal colonies, those communities would be completely purified and amply provided with labour. They would then take their proper station amongst the colonies of England. They would be qualified to receive those free institutions without which they can never be well governed, but which it would be absurd to bestow upon them as long as they are gaols, or one-half of their population is composed of offenders. The expense of such an amount of emigration would probably be 1,500,000 l.; estimating, in accordance with the returns of the emigration commissioner, that 15 l. a-head is the average expense of emigration to New South Wales. I will, however, suppose that 2,000,000 l. would cover all possible expenses. This sum could easily be raised at four per cent, on the security of the sales of waste lands, provided there were the guarantee of an act of Parliament that it should all be expended in emigration. There would be ample security for the payment of the interest (which would amount to 80,000 l. a-year) out of the yearly sales of land; for during the last three years the land fund of New South Wales has exceeded 130,000 l. a-year; and no one can for a moment doubt that it would greatly increase if emigration were carried on to the extent proposed. In support of this plan I refer hon. Members to last year's report of the emigration commissioner, in which they will find that a similar plan of borrowing 2,000,000 l. for the purposes of emigration, has been proposed and approved of by a large body of the most intelligent and extensive proprietors in New South Wales. It is necessary that there should be the guarantee of an Act of Parliament, that the whole of the loan should be applied to
1278
the purposes of emigration. First, because the perpetual changing of the Colonial Minister (we generally have a new one, unacquainted with his business, every nine months) renders it impossible to place any reliance in promises which his successor is not bound to keep. Secondly, because the land fund, which it was always supposed in this colony, and generally believed in this country, to be intended for emigration, has been appropriated by the Government to other purposes. And the colonists most loudly and, in my opinion, most justly, complain of this act as a most grievous abuse, as a sort of robbery. From the commencement of the sale of lands in 1832, to the end of 1838, 571,000 l. has been paid into the land fund. Of this sum not above 171,000 l. have been employed in emigration. Of the remainder, 138,000 l. may have been expended in the sale, management, &c, of the land. The residue, amounting to 262,000 l. has been alienated from the purposes originally intended, and applied by the Government to the support of the enormous police and gaol establishments, which transportation has rendered necessary; and which the colonists, with no small show of justice, contend ought to be defrayed by this country. Such was the state of the land fund in the beginning of 1839. Since that period the same system has been pursued; and I am credibly informed that the land fund has been completely exhausted by the drains upon it by the Government. Indeed, in the middle of last year, the noble Lord, the Secretary of State for the Colonies, was obliged to order the discontinuance of emigration to New South Wales. Therefore, unless a loan be raised, emigration to New South Wales must stop, to the most serious injury of that colony, as every person well acquainted with this subject will readily acknowledge. I now thank the House for the patient manner in which it has listened to me. I have been obliged, for fear of wearying the House, to pass over many points of considerable importance. I hope, however, that I have succeeded in proving the following positions. That transportations is a very bad punishment. That it is not susceptible of any improvement. That it ought, therefore, to be abolished. That the best substitute for it is penitentiaries. That the penitentiary system should be less expensive than any of the proposed modifications of transportation. That a

1279
large additional outlay of public money would not be required in order to establish penitentiaries, and to bestow upon this country the best system of secondary punishments in the world. And, lastly, for the sake of the moral well-being and economical prosperity of the penal colonies, that systematic emigration should be carried on in the manner I have proposed. I will conclude by moving,
"That the punishment of transportation should be abolished, and the penitentiary system of punishment be adopted in its stead as soon as practicable;" and "That the funds to be derived from the sales of waste lands in Kew South Wales and Van Diemen's Land ought to be anticipated by means of loans on that security, for the purpose of promoting extensive emigration to those colonies."
Lord J. Russellsaid, the House would agree with him that they were indebted to the hon. Baronet who had just sat down, not only for the able exposition of his views on this important subject which he had given on this occasion, but also for the attention he had so long paid to the details of the question, and the labour which he had bestowed upon it. He must also add, that while he could not concur with the whole of the views propounded by the hon. Baronet, nor adopt the general conclusion to which he had come, that the hon. Baronet was not the less entitled to praise for the enlightened principles which he had brought to the examination of the subject. But in awarding these attributes to the hon. Baronet, and lamenting as he did, that a question of such importance should not have attracted in a greater degree the attention of the House, for the benches opposite, and, those on that side of the House were nearly empty, he still thought it his duty, without following the hon. Member through all the details of his very able statement, to state to the House the general views which he had been led to adopt on the subject. As regarded that part of the hon. Member's address which related to the immediate practical measures to be adopted, he need not enter much into explanation, having in his minute of last year already stated what he conceived were the particular measures that ought to be adopted in consequence of the report of the transportation committee. The first great point to be considered was, what ought to be the general policy as regarded crime? Seeing the various abstract views, as regarded the punishment of crime that had been an all sides expressed, and
1280
looking at the various alterations that had been made both in this and in other countries in criminal jurisprudence, it was the more imperatively necessary to consider that branch of the subject. The first great principle to be borne in mind undoubtedly was, to deter from the commission of the offence; the next in importance was the reformation of the offender. But either of these principles, though true, if well applied, did, if carried to excess, lead to a defeat of the objects which were sought to be attained by them. Many persons, notwithstanding that they had well considered the subject, had, by taking a somewhat enthusiastic view of the subject, with a view to the adoption of one or other of those principles, ensured the defeat of their objects. The first principle, that of deterring from crime, was one, the adoption of which was obviously called for, and in the first attempts at criminal legislation it had been pursued. It was assumed, that in order the better to deter from the commission of crime, the most severe and unrelenting punishments, even to the most cruel exercise of torture, should follow offences; and that, to even the most trifling offences that were injurious to the interests of the community, the extreme punishment of death should apply. Now, certainly, if the rigid adoption of that rule had been, and were proved to be, followed by the suppression of crime—if it could be shown that offences (even the most trifling one of picking a pocket) were prevented by the punishment of death being held out as a consequence, and that crime would thereby be extirpated—however great the severity might be, however it might appear that the policy of the law was cruel, yet it might fairly be argued, whether such extreme punishment was not in principle justifiable and necessary. But the very contrary had been the result. Experience had proved, that when it was attempted to inflict these very severe penalties, which the sense of mankind looked upon as disproportioned to the offences, the effect was, to engage the sympathies of mankind, not against the offence, but in favour of the offender. Thus the very object of legislation was defeated—the acquittal of the prisoner was ensured—and the inefficacy of the law which it was desired to enforce was previously made certain. Extreme severity of punishment, then, was not the principle which he conceived ought to form the basis of criminal jurisprudence. There was another view

1281
which was likewise apt to be carried to the extreme, and so also to defeat the object which it sought to attain—that was the desire to adopt such a plan as would lead to the ultimate reformation of the offender. Undoubtedly, if you looked to reformation of the offender only, and more, if you confined your views to the reformation of the individual offender only, that result might be very well secured by the adoption of the course recommended by those who were disposed to push the principle to extremes. For instance, the course by which the disposition of the criminal to crime was most confirmed was, by inflicting degradation upon him and forcing him into the company of others degraded like himself, by which a mark and a stigma was fixed on him, that for ever shut to him those roads to wealth and affluence which was open to others. To obviate this, it was recommended to place the criminal in a different situation. It was suggested, for instance, by the hon. Baronet, on the authority of the Archbishop of Dublin, "Take the person who has committed a crime—give him the means to go to the colonies, (not to penal settlements,)—afford him some sort of capital by way of outfit—give him a free passage, and allow him to make his way to some colony as a free settler, without stain or stigma upon his character." Now, no one would deny, that the individual man would be more likely to become reformed upon this system, than if he were subjected to punishment in a prison, and sent forth to the world with a stigma attached to him. But then the question arose, whether, in pursuing this sole object of reforming the offender, the general object would not be defeated, and whether, by this extreme leniency, you would not be holding out inducements that would lead to the increase of crime. Undoubtedly the most likely way to reform offenders and to prevent them from again committing the offence, was to remove them from temptation, and place them at once in a state of affluence. Many of them having no means of livelihood, were, in the wretchedness of their condition, tempted by the wealth of others, to steal, to break open houses, and to commit other crimes, which they never would have attempted if it had not been for their poverty. If each criminal were to be provided with the means of setting up a shop, and of obtaining a livelihood, undoubtedly the temptation to crime would be decreased, but by thus pushing that principle to the extreme (and many of the measures which
1282
had been proposed went to that extent), the law would tell the virtuous and industrious part of the community that there was no difference between them and criminals, so that though the individual offender would be reformed, the temptations to crime would be increased, and in the end severity would have to be again resorted to. He (Lord J. Russell) remembered being once at Liverpool, when some benevolent persons connected with the management of the gaol, lamenting the number of young offenders, remarked upon the advantage that would arise if, instead of sending them over and over again to gaol, they could be apprenticed on board the many merchants ships that thronged the port. He turned to a gentleman present, who was much connected with the shipping of that port, and asked him whether there was not already a greater supply of young men and boys for the shipping at Liverpool than could well be employed. The answer was, that every day applications were made by the sons of most respectable families who were in a state of poverty, who had committed no crime, and on whom there rested no stigma, but to whom it was impossible to give employment. If employment were to be given to the criminals, and the poor, but honest and industrious, were unable to procure any, a great injustice would be committed, and the Legislature would certainly promote the crime which it wished and intended to diminish. It was upon a consideration of this view of the question that he had ventured to make these observations upon the danger of pushing to the extreme any theory for the prevention of crime, convinced, as he was, that if either the one or the other were pushed to too great an extent—if either the punishments were too severe, or too much indulgence was afforded in the hope of effecting reformation, the object would be defeated, and that it was only by a prudent, temperate, and moderate course, considering from time to time the means in the power of the Legislature, not using too much severity on the one hand, and on the other not sacrificing more important considerations in the desire to effect the reformation of the offender—combining such plans with moderation and wisdom, and executing them with vigilance and care, that they could hope to succeed in attaining their object. He thought the hon. Baronet had rather an inclination to go too far in favour of the latter of the two systems, and certainly it appeared to

1283
him that the Archbishop of Dublin, whom the hon. Baronet professed to follow, was inclined too much towards a system which was incompatible with the diminution of crime. He thought, he could show that the system so advocated would lead to very great expense, and that in the end it was very doubtful whether crime would be thereby prevented. He now came to the question of transportation. He regarded assignment as nothing less than slavery—as consigning a man who had committed a crime in this country to slavery in a penal colony. In the words of Colonel Arthur, it was to abandon such a man to the mere caprice of a master. There was no equality of punishment under such a system. The convict might be as much favoured as any steward was in this country, by a master who valued his services; or, on the other hand, he might meet with a tyrannical and harsh master, who would subject him to punishment, coercion, and all the miseries of slavery. He need not say that where there was slavery, there also were the evils of slavery. On the one side there was the man existing in a mere state of dependence, actuated by fear, the desire of revenge and every motive that debases human nature. On the other hand, there was the master exposed to motives equally debasing, though of another kind—to excitements and temptations to tyranny, caprice, arrogance, and the indulgence of all the degrading passions. The assignment system ought not, therefore, he thought, to exist any longer. This was not a new opinion with him. On the 15th of April, 1837, in a letter written under his direction by Mr. Phillips, he expressed his opinion that assignment should continue no longer; the evils attending upon it being so serious and so notorious. That was his opinion in 1837, before the transportation committee sat, it was not altered now; and all he had done in connexion with the subject since, had been for the purpose of carrying out that opinion, and of doing away with assignment altogether. Differing as he did from the hon. Baronet on so many other points, he quite agreed with him on this; that the system of assignment was the very worst part of the system of transportation, that it had produced worse consequences, and tended more to degrade the character both of master and slave than all the rest of the evils attendant on the system of transportation. A period would be fixed upon in the course of the present year, after which he fresh assignments could be made.
1284
The question, however, on the present occasion related to the practice of transportation—whether the greater part of the persons who were convicted of serious offences, being no longer liable for the most part to capital punishment, should be punished by imprisonment in the Penitentiary at home, or conveyed to distant settlements, and there punished by imprisonment, or by labour in public works; and on being liberated, whether or not, they should be conveyed to colonies near the place of their previous punishment? On this point he had followed the opinions of the transportation committee. The first resolution of the committee recommended that transportation to New South Wales, and to the settled districts of Van Dieman's Land, be discontinued as soon as practicable. There had been, during the last year, a great diminution in the number of persons transported to New South Wales, in consequence of orders that were sent out by the Secretaries of State for the Home and Colonial Departments, orders which were still in force; and an order in council was now in preparation, by which, from the 1st of August, transportation to New South Wales would be discontinued altogether. Nor was it intended to continue transportation to the settled districts of Van Dieman's Land, but to send the convicts to parts not settled—to Tasman's Peninsula and Norfolk Island. Orders had been given, which proceeded upon the spirit of the resolutions of the committee; and the intention was, that persons confined abroad, whether in Van Dieman's Land, Norfolk Island, or Bermuda, should be so confined in places separate from those parts where settlers were fixed. In Bermuda, the inhabitants had long been most anxious that this separation should take place. In Van Dieman's Land, it could easily be carried into effect, owing to the circumstances connected with Tasman's Peninsula; and in Norfolk Island, there existed no difficulty. The question, then, between him and the hon. Baronet was, whether they should act upon this plan, or adopt that of the hon. Baronet, which was quite at variance with the recommendations of the committee, of which he was chairman. [Sir W. Molesworth: I did not agree to those recommendations.] Certainly not; but the utmost attention was paid to the subject. There were present during the inquiry, Sir R. Peel, Lord Howick, Sir Charles Grey, Mr. Charles Buller, and others, as well qualified

1285
as any Members of that House to consider the question. What was the difference between the plan of the hon. Baronet and that of the committee? The plan proposed by the hon. Baronet was—in the first place, that penitentiaries should be erected in this country, and that they should be erected on the best plan on which penitentiaries could be constructed, namely, on the separate system, with separate cells, in which each convict could be confined separately, thus affording him a prospect, after a certain period of time, of again becoming a member of society. The plan of the Government, adopted with some alterations from the plan of the committee, was, that the number of convicts sent abroad for punishment should in future be diminished, that persons convicted of lighter offences should undergo their punishment at home, that a larger number of the persons convicted of the heavier offences should be sent to the Bermudas, and should be allowed to return home at the expiration of their sentences; but that, nevertheless, a certain number of convicts should still be sent out to certain places in New South Wales and Van Dieman's Land, where they might settle, and where certain temptations could be held out to them to induce them to settle. Referring back to what he had observed at the commencement of his speech, he must remark, that it was necessary, in the first place, that you should inflict punishment sufficiently severe to deter offenders from crime. But transportation, as hitherto conducted, had been deficient in this respect. It was stated over and over again, in the despatches of Sir G. Arthur, and also in the pamphlets of Mr. Potter M'Queen, who had become an extensive settler in New South Wales, that when a convict went out, no matter what was the offence of which he was guilty, if he possessed skill and talent, he became, almost immediately on landing, a confidential servant or clerk, his crime disappeared, and nothing but his skill and talent, and the use to which they could be converted, were considered. Now, this was not as it ought to be, and her. Majesty's Government now proposed to adopt a plan of confining all convicts for a certain period in penitentiaries, or of consigning them for the same period to hard labour on public works—in other words, that every convict, whoever he was, should undergo a stated portion of hard labour. This would be the case with all convicts, no matter what their skill, their talent, or their previous respectability.
1286
When such individuals fell under the sentence of the law, they always attracted greater sympathy in England than those who were ignorant and uneducated. From his own experience in the Home-office, he had learned that there was always a greater interest excited about an educated individual, in a respectable sphere of life, who had committed crime than about an individual of less intelligence and in a lower sphere, from whom, perhaps, nothing better could be expected than what had happened to him. Now, if crime were to be punished at all, men who had been well educated and respectably brought up, when they became criminals, were the very per. sons to be most severely punished, for they took advantage first of their skill and talent, and next of their character and respectability, to commit crime. This made them the most fit objects for punishment; and it was not right, that for such persons all the rewards should be reserved, and for the ignorant and uneducated all the severity. He, therefore, proposed that with respect to all offenders a certain proportion of severe punishment should be at all events inflicted. But after that punishment was suffered, we ought to consider the situation which the criminal was left. You should temper your punishment with mercy, carrying neither principle to excess, but keeping both of them in view. All persons who had stood at the bar of a court of justice, and there received sentence front a judge, should receive a certain amount of punishment; but that having been inflicted, you ought to consider how you can save the offender from a recurrence of guilt. It is your duty, if you can, without parting with any of the securities of society, to give the convict an opportunity of reforming himself, and of attending to those religious and moral obligations of which in his previous life he had been forgetful. If you discharge him on the completion of his sentence from a penitentiary in England, he goes into a society which is already full of persons seeking for employment, and which is so full of them that even those who bear a good character, and have no stain upon them, cannot always obtain employment for their labour. If you pour into this society a number of men with the stain of three or four years' imprisonment upon their characters—if you place them in the midst of the same temptations which originally led them to crime, there is a great probability that they will again either be driven to a course of crime by the want

1287
of honest employment, or be subjected to their former temptations without any additional means of resisting them. Now, this was a state of things which a wise Government should endeavour to alter. He, therefore, wished to call the consideration of the House to the present state of our colonies in Australia. In those colonies, there was always a great demand for labour. The colonists were perpetually saying to the authorities at home—"If you send us 12,000 convicts a-year, you will not fill up the void of labour among us." If, then, they could persuade the discharged convict to locate himself in a remote part of the colony, either as a builder or as an agricultural labourer or as an attendant on sheep, he would be able to procure an ample reward for his labour, and to secure a good and honest maintenance for himself. He said, then, that if after removing the convict from his country, and from his guilty companions and relations, they left him in a situation in which, by his industry, he could get an ample reward for his labour, there was reason to believe that he would not again fall into crime, but that he would be recovered from his vicious way of life. He thought, then, that whilst there was reason for not abolishing entirely the plan of imprisoning convicts in distant colonies, whilst, there was reason for saying that you will not form your colonies entirely of those who have suffered the penal sentence of the law, whilst there was reason for not assigning the convict as a slave to a capricious or tyrannical master, he thought, he said, that there was also reason for saying that it was one of the arms of criminal law, and that it was one of the means of effecting the reformation of criminals, to send to your penal colonies persons who had been sentenced by a judge. The report of the committee went on to say, in the words of their fourth resolution,
"That rules should be established by which the existing practice of abridging the periods of punishment of convicts, in consequence of their good behaviour, may be brought under stricter regulation, and rendered less vague and arbitrary."
Now, that resolution referred to a plan which had been adopted in the colony with respect to the funds transmitted to the convicts by their friends in this country, and to the indulgences extended to them from time to time in consequence of their conduct. But the hon. Baronet had scarcely treated that part of the question fairly,
1288
when he referred to various instances of abuse which had occurred, in order to show that the system adopted was altogether vicious. For when you said that these criminals were sentenced to a certain punishment, and that there had since been a relaxation of their punishment, it no more followed that the system of mitigating punishment in New South Wales and in Van Diemen's Land was defective, because abuses had occurred under it, than that the administration of justice in England, Scotland, and Ireland was defective, because abuses had occasionally taken place in it in each of those three countries. The system of imprisonment pursued in this country twenty or thirty years ago was disgraceful to any country which called itself civilized; and yet, that no more formed a decisive argument against imprisonment altogether than these abuses under our late system of transportation, formed a decisive argument against the propriety of transportation. But the hon. Baronet had laid considerable stress on the system adopted at Norfolk Island some time ago. No doubt that system was one of great severity, which had led many of those who had been exposed to it to wish for death as a happy exchange for their sufferings. But that system had been changed, and changed for one which gave too great an advantage to the criminal. He would read one passage to the House, which was just the reverse of that which had been read to it by the hon. Baronet. It was as follows:—
"Those who are employed in agriculture, in the charge of stock, and in cutting and sawing timber in the bush, may be seen every evening returning to their barracks laden with the fruits with which the island abounds. That its terrors do not operate to prevent crime, may be inferred from the fact that many of the prisoners are here for the second and third times; and it has been confessed by several of them, that after having returned to the colony from a first conviction, they have actually committed crimes to get back again."
[Sir W. Molesworth: Where is that passage to be found?] In the report of Mr. Arnold, deputy assistant commissary-general, given in one of the appendices to the report of the transportation committee. Another evil complained of by the hon. Baronet was the inequality of the sexes in our penal settlements. Undoubtedly it was a very serious evil, and had been productive of dreadful crimes. He did not know how, except by separate confinement, you could get rid of this dreadful evil. The same inequality of sexes prevailed in

1289
the number of prisoners in this country, and if he were to enter into a description of the details which had come to him from some of the prisons of this country, he should have to mention circumstances which would make them shudder for the depravity of human nature. There was one subject on which he agreed with the hon. Baronet, that great neglect had too long prevailed on the part of the various administrations which had had the government of this country—that subject was, the religious instruction provided for the inhabitants of our penal colonies. It appeared from a statement of the Bishop of Australia, that from the year 1788 to the year 1808, there had only been two ministers of religion sent out from this country with the convicts to Australia. It certainly did appear to him that the best chance of producing an impression upon the convicts during their imprisonment, and of making them less liable to return to a life of crime, after their discharge from the execution of their sentence, was by taking care that they received proper religious instruction. There had been great neglect of that mode of producing reformation, but at present the case was altered for the better. Both in this country, and in South Australia, the Secretary of State for the Home Department had taken care that this neglect should exist no longer. On the whole, then, he must say, that he rather concurred with the report of the committee of which the hon. Baronet was the able chairman, than with the proposal which the hon. Baronet had that evening made. He thought that the proposal of the committee contemplated a great alteration in the mode in which transportation was to be effected in future, although it did not go the length of recommending its total abolition at once. He thought that, without saying that it might be advantageous to abolish transportation altogether, the system which it would be most advisable to adopt was a great diminution of the present system, by taking care that those who received sentence from our criminal courts, should undergo, in all cases, a certain degree of punishment, and by giving them at the same time a prospect and means of employment when their sentence was performed. The plan proposed by the hon. Baronet, beginning as it did with an expenditure of nearly 2,000,000 l., and that for buildings only, and leaving a still greater expense to be incurred for the maintenance of the prisoners to be confined in the penitentiaries he proposed, to build—
1290
the plan proposed by the hon. Baronet would leave us exposed to the danger of having all these convicted criminals sent back to us, and to all the dangers and demoralization which had been suffered for so many years in France, by throwing back upon society the villains who had served out their time in the gallies. For his own part, he did not think it advisable to incur so large an expenditure for so uncertain a consummation. The hon. Baronet also thought it advisable, that by means of a loan, free settlers should be encouraged to emigrate to Australia. He would not enter into that question at present; but he had long entertained an opinion, that the best mode of reforming society in Australia was, by giving great facility to the emigration of free settlers to it from this country. For it was a very different question, whether our colonies shall be solely recruited by convicts, always the objects of severe police regulation, and therefore forming a foul political atmosphere, or whether those convicts should form but a small portion of the colonial population. He thought that it was only fair to the colonies, that their population should be recruited from other sources. The hon. Baronet had said, that there was a growing disinclination on the part of our emigrating population to emigrate to New South Wales. Now, he was of a contrary opinion. He thought that there was a growing disposition among our population to emigrate, and to emigrate to New South Wales rather than to any other of our colonies. The hon. Baronet had stated, that a most rev. Prelate, the Archbishop of Dublin, had done much to dissuade the people of Ireland from emigrating to New South Wales. He should be sorry if that were the case. He confessed that he thought that that most rev. Prelate carried his ideas on that subject much too far. He thought that most rev. Prelate had depicted the society of that colony in colours far worse than the reality, and he expected that the effects of the most rev. Prelate's representations would neither be so great, nor so general as the hon. Baronet supposed. He had no doubt that the people of Ireland would see the advantage of emigrating to a country where labour was dear, and subsistence cheap, and that his grace would find that his exhortations to prevent them, from emigrating, would not produce the same effect upon them as had been produced by the exhortations of Father Mathew, to to adopt a system of temperance and sobriety. Upon the whole, in his opinion,

1291
the House ought, at all events, to pause before it agreed to abstract resolutions, especially when, according to the hon. Baronet, it would be necessary to expend 2,000,000 l. for prisons, and to raise a loan of 2,000,000 l. more for emigration, and not only to introduce a change in our criminal system, but lay a burthen upon our finances. Not wishing to negative the resolutions, he should beg to move the previous question.
Viscount Mahonsaid, in questions of this nature the Government had sometimes successfully pleaded, that while one class of adversaries reproached them with not going far enough, another class was quite as ready to inveigh against them for going too far. He did not admit the validity of this mode of defence, but if there was any satisfaction in it, he should afford it to the Government on the present occasion. The hon. Baronet had represented the conduct of the Government as blameable or defective, in not following up the recommendations of the transportation committee. He, on the contrary, had read with very great regret, that the noble Lord, the Secretary for the Colonies, had to a limited extent adopted the views of the committee; he had read, with great regret, two minutes, one by the noble Lord, and the other by the noble Lord, the Member for Northumberland, by which it appeared that the Government had determined upon a change of the punishment of transportation for seven years, to imprisonment in the hulks. Lord Howick, then Secretary at War, in his note dated November 23, 1838, thus begins:—
"I assume that the object in view is gradually to substitute the punishment of well-regulated imprisonment at home or abroad for that of transportation as now conducted."
In the subsequent note of January 2, 1839, the then Home Secretary (Lord John Russell) follows this up by declaring the preparatory steps to this great and momentous change; and first, that
"convicts sentenced to seven years' transportation be, so far as practicable, employed in the hulks and dockyards at home and at Bermuda;"
A resolution to which he admits that he has not come without "much diffidence and hesitation."
He (Lord Mahon) believed, on the contrary, that transportation, though attended with some evils, was fraught with maniold benefits far outweighing the evils. He believed that, as a system, transportation
1292
was a better mode of punishment than any other system that could be devised in place of it—better for all parties concerned, better for the parent country, better for the penal colony, and better for the improvement of the convicts themselves. On each of these grounds he should be prepared to take his stand and to uphold the system which the hon. Baronet sought to trample down. But while he opposed the opinions of the noble Lord, he did justice to his motives, which could be only praiseworthy and pure, for he only sought to diminish crime, and to reform the criminal. "At the same time he thought the noble Lord acted upon imperfect information, and erroneous views. At what moment was it that the noble Lord sought to discontinue the practice of transportation? At the very time when the system attracted the envy and imitation of the surrounding states. Was the noble Lord aware of the fact, that in France petitions had been presented for the establishment of penal colonies similar to those of England, and that it was in the contemplation of the French Government to establish penal colonies in New Zealand? It cannot be denied that the French convict establishments at Brest and Toulon comprised all the evils which a penal establishment could combine. Not only those towns, but the departments in which they are placed, Finisterre and Var, were exposed in consequence to almost every rigour of military law, merely that the escape of the galley slaves might be effectually prevented. Every writer who treated of the state of crime in France deeply deplored the evils inflicted upon that country by pouring out upon it at regular intervals a great number of convicts, mostly unreformed, from those two penal establishments. The noble Lord had admitted the enormous expense which the country would incur by any other system of penal discipline. Taking an average of five years, according to the "penitentiary system, the cost would be not less than 96 l. per man, instead of 17 l. paid for transportation; and this disproportion was probably underrated; for in the colonies we had the profitable labour of the convict, whereas here his work was of less value, and given him merely to find him employment. The noble Lord had painted the evils of a redundant population, and the difficulty of finding employment, in strong but not unfaithful colours. He (Lord Mahon) believed that he might even have gone further. It was no exaggeration to say that almost every profession, every de-

1293
partment, every walk in life, was over-Stocked with candidates, that the intellectual supply was greater than the intellectual demand, and that the same amount of talent which some fifty years ago was sufficient to obtain distinction, was now barely sufficient to acquire bread. Thus, then, if even we could insure that every single convict discharged from the hulks should be reformed and restored to habits of industry, it would be difficult to find him employment. But it was not to be expected trial any considerable number of convicts could be reformed; and it was most likely, when discharged, that they would return to the haunts of their former associates, and to their habits of plunder. Would it be denied therefore that the parent country derived great advantage from the transportation system? It could not be denied. There was only one ground upon which the noble Lord could lay much stress as an argument against the system of transportation, as applying to the parent country, and that was that it was not sufficient to deter from the commission of crime. This argument applied to an earlier period of the transportation system more than to the present. He believed the accounts from Norfolk Island and other quarters had tended, in no small degree, to increase the terror of transportation, and to add, not only to the punishment, but to the prevention of crime. Of this he could state to the House several instances. There was one, for example, that had come to his knowledge, having been communicated by an hon. Friend who was largely connected with the county of Somerset, but represented the University of Oxford, which he would mention to the House. A petition had been, within these last few days, presented to the Marquess of Normanby from the relations and friends of a person under sentence of transportation, praying for a mitigation of that sentence, and declaring that he was anxious and ready to endure any number of years' imprisonment at home instead of transportation abroad. But it had been said that we had no right, for our purposes at home, to pour into our colonies torrents of vice and wickedness, and to contaminate them for our own advantage. The hon. Baronet in his speech, and in the report of the transportation committee, had drawn a frightful picture of the evils which the transportation system inflicted upon the respectable settlers in the colony; of the crimes that were committed in the families of respectable set-
1294
tlers in the interior, whose lives were exposed to danger, and their property to plunder. He would ask whether, if the respectable settlers were so exposed, they would not be the first to cry out against the system? Who would be the sufferers, if they are not? and what must be the inference of the House as to the reality of the complaints against the system, if we find the alleged sufferers themselves most eager and anxious that the system might still be maintained amongst them? Now he would, on this point, call the attention of the House to a report of the proceedings at a meeting of the Legislative Council at Sydney on the 10th of July, 1838, with reference to this subject, which stated the opinions of practical and eminent men, entitled to the greatest respect. Sir James Jamison said,
"It would be a great hardship if the colony should be thrown back by transportation being stopped, and if the experience of fifty years should be lost."
The Chief Justice said,
"As a great moral and political question, it must be met on broad and general grounds, and not with a microscopic discrimination of its defects. This colony has now been established fifty years. Has it, or has it not, as a broad and general question, failed as a systematic experiment for the reformation of those human beings who had forfeited the rights of society? Will it or can it be denied, that thousands of profligate criminals have been converted into useful and meritorious citizens by transportation to our shores—men who, but for the adoption of such a system, must have been cut off from society in the spirit of vindictive justice, or have remained at home to form a moral cancer in the bosom of their native land? That the machinery of the system has been defective no man can deny. Looking, however, to general results, looking to the system with all its shades and defects, the advantages proposed by the parent state in constituting this in place of secondary punishment must have been miraculously fortunate."
The Chief Justice was followed by the Lord Bishop, who observed, that in his opinion,
"The representations that have been made respecting the colony are altogether on one side. He recollected, when in England, seeing a figure in which all the rules of perspective and proportion had been disregarded, but which, when he looked upon it through a particular kind of glass was restored to proper harmony. Now, it seemed to him, that the inquiry into the state of this colony had been conducted on similar principles, but that a

1295
glass, the reverse of the one he had been describing, one which distorted everything, had been used. It will not satisfy the people of England to show them that we want the convicts, but we must show them that we are in a condition to reform the convicts, and to make the punishment of transportation an object of dread. Truth is the first object. The real refutation of the aspersions against us is to be found in the actions of the colonists. From the nature of his employment he was enabled to form an opinion of the character of the inhabitants of this colony better than, or at any rate as well as, any Gentleman in the Council, and he had no hesitation in saying, that he knew no district in this colony in which he could not find a number of men of as correct a principle and high honour as he had found in any country in which it had been his lot to be, and that, too, in sufficient numbers to give a general feature to the colony."
The Attorney-General, who spoke next, expressed his entire concurrence in the remarks of the bishop, and added, on the part of the Administrative authorities, that,
"Government will do all that can be done; churches and chapels are building in all directions, and clergymen of all denominations are daily coming out to assist in the moral reformation of the convicts."
It was not denied that labour was of most essential value in Australia. By the last accounts, that very morning, it appeared that great injury had been suffered from want of labourers, that flocks had remained untended, and harvests unreaped, that, in short, difficulties of a serious kind had been experienced from want of labour. It had been said that free emigration might supply the want of labour created by the absence of convicts. He did not undervalue the advantage of such emigration; but he did not admit, with the hon. Baronet, that the two were incompatible, and he would quote the evidence of one of the hon. Baronet's own witnesses, an unwilling witness, Mr. J. M'Arthur. In the evidence before the committee on transportation, in 1838, Mr. J. M'Arthur was asked (question 290):—"Do you think the application of those colonies to penal purposes prevents respectable free emigration?" and he answered, "I think that it cannot but have that effect;" but at the same time he was obliged to add, "I do not know any particular instance of that kind:" his experience being therefore on one side, and only his theory on the other. But in another part of his evidence (question 59), he gives a still more distinct testimony to the fact, though against his own opinion. He said,
1296
"I was requested by a clergyman in the Vale of Stroud to see some of the families who were going out as emigrants, and to give them information generally as to the nature of the country they were going to. They asked me a variety of questions, but none exactly of the kind that I expected; that is, they seemed to be perfectly satisfied in their own minds as to the nature of the country. I was so struck by their making no inquiry on that head, that I asked their reason for not doing so, and they said they were perfectly satisfied it was a good country, from letters which they had seen from convicts in the colony speaking very highly of it, and that, of course, if the colony was good for them as convicts, it must be still better for emigrants; that was the impression upon their minds."
If the abuses in the assignment system continued, he could understand that free emigration might be checked; but if the convicts were employed in rough work in the colony, this would enable the free emigrants in the colony to turn their attention to lighter labour. The convicts were the pioneers that cleared the way for the free emigrants. Though he admitted that abuses had taken place, which he was by no means disposed to palliate, yet he could not consent to do away with the system altogether. Great stress had been laid on the inequality with which the assignment of the convicts operated. The defect of inequality, however, it should be remembered, was one that must attach to every system of human punishment. It was impossible to prevent punishment from pressing unequally. Pecuniary penalties pressed unequally on the different classes of society; imprisonment would be a punishment more or less severe to different men; even the punishment of death itself would be more or less heavy according to the temperament and disposition of the individual. He could not recognize in any substitute that could be provided for transportation, the means by which this inequality could be avoided. He believed that a system of transportation not clogged with those abuses which had hitherto deformed it, but combined with moral and religious instruction, and a strict discipline, might produce great benefit both to the mother country and the colony; but he would not, even for that consideration, be induced to consent to it, if he did not think it might also be made the means of improving and reforming the convict himself. The disgrace which was indelibly attached to imprisonment in this country debarred the convict, when released at the expiration of his term of punish-

1297
ment, from having recourse to honest industry to gain a livelihood. He was afraid that there were too many instances of convicts discharged from prison, being driven in despair to their former vicious courses from inability to obtain employment. He would refer, in confirmation of this view, to the report of the Inspectors of Prisons for 1839, in which instances were detailed of efforts having been made unsuccessfully by discharged convicts to obtain honest employment.
"Nothing," they said, "is more opposed to the reformation of a prisoner and to his entering upon an honest and useful course of life, than the difficulty which he finds in obtaining employment on his liberation from prison. Many a sincere resolution of amendment has been overcome by the pressure of necessity."
So strongly is this hardship felt, that a benevolent association had been formed
"For assisting destitute and deserving prisoners to obtain an honest livelihood on their discharge from the General Penitentiary at Milbank;"
But it was evident that the operations of any such society must be extremely limited, and must serve rather to attest the evil than to betoken the remedy. The committee of the society stated in their prospectus—
"When the prisoner, repentant and reformed, detesting his former ways, and resolved on an amended life, goes forth into the world, at the termination of his sentence, it often happens that his situation, however enlivened by the first gleam of liberty, is surrounded with difficulties and perils. Destitute of any character, except what he may obtain from a prison (a source which creates suspicion instead of confidence), a stranger in society, pressed by want, and attracted by the well-known facilities for a dishonest livelihood, what is to be expected from him but a return to fraud and plunder, unless means be provided for his rescue? Facts have frequently come to the knowledge of the committee showing the struggles which are sometimes made by reformed convicts to live by honest means."
Comparing the condition of a discharged convict in this country to that of the convict in New South Wales, it was impossible not to see that in the colony where the hand of help was not withheld, he had a far better chance of gaining an honest sustenance and retrieving his character, than in England, where he was surrounded by temptations of every kind. There were many instances in Australia, of convicts, so thoroughly reformed, and so usefully active
1298
in their subsequent career, as to have risen to a station, not only of comfort but of wealth. It might be urged, that this fact was inconsistent with another part of his argument; namely, that a salutary dread of transportation prevailed in England. But he did not think so, for it must be obvious, even to the least reflecting minds, that those brilliant prospects depended, not on any return to a course of rapine, but, on the contrary, on a moral reformation, and on a long continued course of industry. On these grounds he conceived that the system of transportation ought not to be hastily or lightly abandoned. He felt this the more strongly, that he had an intimate conviction that the general adoption of imprisonment would infinitely increase the sufferings of the convict, without inspiring any commensurate dread of punishment in the public mind, and without effecting any commensurate diminution in the number of criminals, but, on the contrary, producing all those evils which might be expected to arise from letting loose on society at periodical seasons some of the worst and most dangerous offenders. The noble Lord was pressed to abandon the system of transportation; but he must express his regret that the noble Lord had been induced to go even so far as he had gone. He was convinced that if the noble Lord persevered, the success of his measures would not be proportioned to the goodness of his motives. Let the House remember that these penal colonies were first founded, and long fostered, by the administation of Mr. Pitt: and let them beware bow they lightly fling away any part of the heritage that great man had bequeathed to us. Under the existing system, the Australian colonies had for many years thriven, and extended to a degree which he would venture to say was altogether unparalleled. He trusted he should not be charged with wishing to perpetuate any of the abuses existing which were not essential to the system, but mere excrescences upon it. He desired not to see its foundation destroyed, but rather that we should continue to build upon it, bringing to its improvement the lessons of later experience and the zeal of extended religion.
Mr. Wardsaid, when the noble Lord, who had just set down affirmed that no complaint had been received from the free community of New South Wales against the introduction of convicted criminals into the colony, he (Mr. Ward) must remark that the noble Lord was only bearing testi-

1299
mony to one of the vices of the system, which, giving to one man an irresponsible power over another, tended to deaden the feelings of the human heart to the sufferings or its fellows. He must observe, too, that well entitled to respect as were the authorities from whose testimony the noble Lord had made quotations in support of his view of the advantages of the present system of transportation, there were still other authorities, not less entitled to respect, whose opinions were directly the reverse. Among these was Dr. Laing, who described the penal settlement in New South Wales as the "gaol and dunghill of England." Mr. Mudie also described the sense which almost every one in the colony entertained, that the system was radically wrong, and that it was wholly incompatible with free emigration. When the injurious effect of the contact of criminals upon the vast population of this country was spoken of—when the baneful results to society of an association with felons was alluded to as an argument in favour of transportation—let it be remembered how infinitely more injurious, how infinitely more baneful, the contact and the association must be in a country where the population was more limited where in fact it did not exceed 10,000 souls. In point of fact, there was not, in New South Wales a sufficient infusion of that which was good and virtuous to give a tone to society. These sentiments were most strongly expressed in a petition which had been presented in the course of the present Session, by the Undersecretary for the Colonial Department and which was signed by sis members of the legislative council, 67 justices of the peace, four clergymen, and 355 landed proprietors. As long as this country continued to pour into a community, so strangely constituted as that of New South Wales was, so large a proportion of that which was vicious and immoral, so long would it be necessary to continue in that settlement our overgrown and most expensive establishment of troops, a large and expensive judicial establishment, and a not less large—not less expensive—establishment of police; these being the only means by which anything like order, security, or peace could be maintained. As to the assignment system, much as it abounded in evil, he believed it to be inseparable from the system of transportation. At all events, if the noble Lord (Lord John Russell) intended to put an end to the assignment system, it would be absolutely
1300
indispensable that he should provide some immediate substitute, that should give to the free colonists the means of procuring labourers, otherwise the whole trade, and the whole agriculture of the colony would at once go to ruin. Even now complaints were daily coming over to this country of the inadequacy of the supply of labour. It appeared that in those colonies the competition for labour was absolutely frightful, and that wages were higher than the profits of any trade could cover. It unfortunately happened that at the very moment, and in the very year that the noble Lord told them that the assignment system was to cease, it was declared that the exchequer of the Colonial Office was so extremely reduced, as to leave it without one single shilling to expend for the purposes of emigration. On this account colonization at present was almost exclusively confined to South Australia, to which colony the means of emigration depended, not upon the wealth or poverty of the Colonial Office, but were fixed and determined by Act of Parliament. Last year, the noble Lord spoke of the great increase of emigration. What had become of it now? What had become of the fund that was to enable the Colonial Office to send out 10,000 emigrants? The whole of that fund bad been diverted from its legitimate purpose, and applied to other purposes—to defraying the expenses of gaols and of police forces. For these purposes, no less a sum than 103,000 l. had been expended—a sum which, applied to emigration, would have been sufficient to carry to New South Wales, 7,000 or 8,000 labourers. Thus would have been prevented that terrible dearth of labour which was most complained of, and which, unless some active steps were immediately taken, would again paralyse the whole of the industry of the colonists. If his hon. Friend (Sir W. Molesworth) chose to press this question to a vote, he would give his hon. Friend his most cordial support. He thought that his hon. Friend had already performed a very great service in arranging all the facts relating to the subject, and placing them in so clear and bright a light before the public. They would not fail of producing their effect; and, he believed, whatever the result of the decision of that night might be, a death-blow had been struck at this system, and that it would be the commencement of a new and better epoch, both to ourselves and to our colonies.
Mr. C. Bullerwished to make a few observations upon the present question,

1301
because he had been instrusted with a petition from many proprietors of land in New South Wales against the motion of his hon. Friend. The petition was entirely in favour of the continuance of the system of assignment, and he must say, that it did seem to him that the system of assignment was the only rational way of keeping up the system of transportation. He thought that his hon. Friend, the Member for Leeds, was inclined to take two sweeping a view of the evils attendant upon transportation. No one could deny that it kept up a supply of contamination; but he thought that his hon. Friend did not sufficiently attend to the fact, that this very circumstance caused a kind of reaction among the free population, and created a more than ordinary degree of horror in their minds at the vice which they witnessed. The operation of the one must, therefore, be set against the operation, of the other. While upon this part of the subject, he must remark, that the remonstrances made against the sweeping charges of immorality brought against New South Wales, did not proceed from persons only who were interested in the continuance of the transportation system. The mind of Sir R. Bourke, of Sir G. Gipps, or of Sir John Franklin, could not have been warped by considerations of this nature. As to the question, however, which was practically before the House, he must confess, that he concurred with his hon. Friend, the Member for Leeds. In fact, there was no longer a question for argument. The Government had already abolished that part of the system of transportation which was of any value to the colony. But, whatever the merits of the transportation system might be, it was clear that there was a certain point in the condition of a colony, when it was no longer practicable to make it a penal colony, and it seemed to him that the colony of New South Wales had arrived at that point. The great object to be kept in view was to promote free emigration. Although the colony had at first owed everything to convict labour, yet the time had now come, and indeed had arrived for the last five or ten years, when the supply of convict labour was inadequate for the purposes of the colony, and the colony relied on free labour. There were but 3,000 convicts transported in each year, while the number of free emigrants amounted to 10,000 for the last two years, so that in fact, New South Wales must look to free emigration for its supply of labour, and even this sup-
1302
ply was not sufficient. All kinds of schemes were devised in order to supply the deficiency which was felt, and he saw in one paper, that it been proposed to import Hill Coolies from India, while another had suggested the introduction of Chinese labourers into the colony. The fact was, that the circumstance of New South Wales being a penal colony, shocked respectable persons who were going out, and the colonists must, in order to obtain an adequate supply of labour, give up convict labour, and have recourse to free emigration. He now came to another point, which he considered a serious argument in favour of the abolition of transportation. He had presented a petition from New South Wales, praying for free institutions and a representative government. The time had arrived, then, when it would be necessary to give free institutions to these colonies, in which the people might have some voice in the management of their own affairs. Now, if they formed the same idea in New South Wales as was entertained in England with respect to misgovernment, there never was a people who more required a reform in their government than the people of that colony, for no people were so heavily taxed as the inhabitants of New South Wales. In order to render these colonies of New South Wales and Van Dieman's Land even tolerable to free settlers, under the present system of transportation, it was absolutely necessary to invest the governor with the powers of a despot, the exercise of which would never be endured in this country. It was useless, therefore, for the colonists to hope for free institutions until they gave up the slave system of transportation. He knew, from those who made communications to him from those colonies, that great anxiety was felt by them as to their obtaining free institutions; and he believed that if they came to choose between the two, no institutions, or the abandonment of the system of transportation altogether, the choice would be to give up the latter. This choice must also be made by the Legislature, for the time had come when I they must give these colonies free institutions. They ought, therefore, at once to make up their minds to look this question of abolishing transportation boldly in the face. The House was certainly indebted to the noble Lord for the very enlightened and candid spirit in which he had met this question. But at the same time he could not concur with the noble Lord in the limited extent to which

1303
he had confined his views on this question. If the noble Lord agreed to give up the assignment system he must give up more. The assignment system was not the most important point to which the colonists looked. It was one mode of modifying the punishment of transportation, but if the noble Lord consented to give that system up, he could not conceive upon what ground the noble Lord preferred building gaols in Norfolk Island instead of in England. When the noble Lord said that he would abolish the assignment system, there was one thing more which he ought to have done, and that was, he should have taken care that there should be a supply of emigrants for the colonies. The Government had, by a long course of gradually enlarging spoliations, robbed the treasury of New South Wales of every farthing that was made applicable to the importation of emigrants. If ever there was an assurance given by a Government, it was that the fund to be raised from the sale of lands should be applied to the purposes of emigration. The most remarkable exposition of the views of the Government on this subject was contained in a despatch of Lord Goderich to Sir Richard Bourke in September, 1831, tben governor of New South Wales. In that despatch it was distinctly stated that the revenue arising from the sale of lands in the colony should not be considered as forming part of the ordinary revenue of the State, but that it should be invested so as to produce a profitable return. It would seem that this assurance was given merely to induce persons to emigrate, and embark their property in the colony, in order that they might be trampled upon with a recklessness quite unexampled. The Government had for the last year or two taken the whole emigration fund, in order to pay all sorts of expenses connected with the government of the colony; and this, after having taxed the people of New South Wales to double the amount the people of England were taxed. From January, 1831, to the present year, the sum raised from the sale of lands amounted to 800,000 l.; and out of this no less than 370,000 l. had been applied to purposes quite foreign to those to which the Government had originally consecrated it. This was a violation of an express determination of the Government, which at any time would merit great reprobation; but when it was considered that this had been done at the very moment they had withdrawn the supply of convict labour, it must be ad-
1304
mitted that the Government had with singular ingenuity combined their measures with a view apparently to do the utmost harm and injustice to the colony.
Mr. Hawesthought the House was much indebted to the hon. Baronet, the Member for Leeds, for the mariner in which he had brought the question before it. There was a collateral subject connected with the one immediately before the House, which he thought deserving of the attention of the Government. He meant the large convict establishments at the hulks, which were out of the control of the Inspectors of Prisons, and presented an anomaly in the general system of discipline which prevailed in the prison establishments of the country. He would suggest to the noble Lord (J. Russell) the propriety of having some large buildings erected in the neighbourhood of the hulks, where more accommodation, and a better system of discipline could be provided for the convicts.
Mr. Vernon Smithconsidered, that the House was very much indebted to the hon. Baronet, the Member for Leeds, (although he was opposed to the hon. Baronet's views), for having brought this subject forward. The immense importance of the subject might tempt him to enter fully upon it, but it was his intention to confine himself to a few points that had been adverted to in the course of the debate. The noble Lord opposite (Lord Mahon) was the only person who appeared to advocate the existing system of transportation, but he thought that the noble Lord had spoken of the improved system, and not of the old system, to which all the other speakers had alluded. The noble Lord had stated that there was great prosperity amongst the emancipated convicts, and that the population generally did not object to having the emancipated convicts living amongst them, and that they would rather have them than have to pay for free labour. The noble Lord had also contended for sending out emigrants, as they tended to produce a better class of men than were produced from the prisoners of this country or of France. The most prominent case of prosperity of a convict was stated in page 18 of the report, but it gave no favourable impression of the morality of the colony which could give rise to it. It appeared that one individual, who was an emancipist, was said to be in the possession of 40,000 l. a-year. But the mode in which he became possessed of this, said little for

1305
the morality of the country. It was said that, at the period of his emancipation, there was no regular market at Sydney, and the farmers brought their produce and sold it to him, and spent their money drinking at his house for days, and became quite unconscious of what money they had spent, and generally found themselves charged with large amounts, and more than they could pay. Credit was always given to them on condition of their signing a warrant of attorney, which instruments he had always ready drawn up. The farmers, then, when once under the control of this individual, were obliged to attend at his house, till the amount of their debts far exceeded the amount of their property, and he then dispossessed them of their farms, till at last he became the owner of the greater portion of the cultivated lands of New South Wales. The hon. Member for Sheffield had introduced into this debate the question of emigration as connected with transportation. That question was about to be discussed by itself. It was a very fit question for discussion; he did not at all deprecate the discussion of it, but he should be sorry to see a question involving so many other great principles discussed in a cursory and desultory manner. The hon. Member had spoken of the suspension of emigration to New South Wales, That that would be an evil no man could doubt. At the same time he thought the hon. Gentleman was not justified in anticipating as certain such suspension. It was true no account had yet arrived of the amount of the land fund, but he was not aware what ground the hon. Gentleman had for saying that there were no funds applicable for the purpose of promoting emigration. A great many ships were now going out upon that very plan. Both the hon. Member for Sheffield and the hon. Member for Liskeard had dealt out some very hard words as to the mis-application of the land fund. The latter hon. Member had even spoken of spoliation and robbery, and had used other hard epithets about the appropriation of that fund; and had referred to a dispatch by Lord Goderich, in which he said the Government had given a pledge that they would devote the whole land fund to the purpose of emigration. If the hon. Gentleman had read the next sentence in the despatch, he would have seen, that it referred to the increasing of female emigrants. Now, the land fund at that period mounted to 6,594 l. 12 s. 4½d., whereas
1306
last year it amounted to 130,000 l. Could the hon. Gentleman, for a moment, suppose that any government could pledge itself to appropriate the whole of that sum for promoting female emigration? He did not, therefore, think, that the Government could be justly charged with a violation of a pledge in reference to the application of that fund. Some hon. Gentlemen seem to have argued this question as if advocating the part of the colonies, and some as regarding more especially the mother state, but they did not appear to him to have considered sufficiently the interests of both united.
Mr. Huttconsidered, that in 1836, and even so recently as last year, a distinct pledge had been given by the Government that all the funds arising from the sale of land should be applied for the purposes of emigration. But since that time the Colonial-office had extracted from the emigration fund not less than 300,000 l., and applied it to many other purposes. In the course of last year they had built prisons, paid the police, and given an outfit and built a house for Captain Hobson, the recently appointed governor of New Zealand. Could it then, be matter of astonishment that a great degree of disappointment and acerbity had been expressed by Gentlemen in that House, considering the strong feelings that were entertained upon this subject out of doors? The Government had no more right to apply this money in keeping up establishments in New South Wales, than they had to build with it a new palace in St. James's Park, or to give a new pension to Mr. Spring Rice.
Mr. Laboucherehad no intention to take any part in this debate, and he now only did so in consequence of the allusion which had been made to what he had said last year. The hon. Gentleman had stated that the conduct of the Government had been inconsistent with the pledge given when he had the honour of representing the Colonial-office in that House, with respect to the application of the funds derived from the sale of lands in Australia. He begged to remind the hon. Gentleman what were the opinions he then expressed on the part of the Government upon that subject. He did not say—on the contrary, he carefully guarded himself from saying—that under all circumstances and contingencies, the entire proceeds of this fund should be applied to the purposes of emigration. He stated, what he understood his noble Friend to have stated again to-night,

1307
that it was a measure undoubtedly most desirable for promoting the prosperity of the colony; and that, consistently with justice, and, as far as possible, the proceeds of that fund should be appropriated to the purposes of emigration. At the same time he stated, that after all, it was essential that the social system should be kept up in the colony, that the ordinary functions of government should be maintained, and the necessary establishments supported, and that if the inhabitants generally were not willing to tax themselves for those purposes, then it was the duty of the Government to avail themselves of the only fund they could resort to, without imposing a tax on the people of this country for the maintenance of establishments in that colony—a tax which he thought the people of this country would very justly protest against being called upon to pay. That was the doctrine he stated last year on the part of the Government, and which he was still prepared to maintain. He thought, there were objects even more important and sacred than those which consisted in supplying free labour to the colony which demanded the attention of the Government. To afford protection to the aborigines against the evil passions of the settlers, by maintaining courts of justice, was a charge upon the fund which ought to take precedence of every other, and a charge which the Government were bound to take care to see was in the first place defrayed.
Mr. Huttsaid, that the right hon. Gentleman had mis-stated the case of South Australia last year, and had done so also this. The right hon. Gentleman had even made the case worse by his present statement.
Sir W. Molesworth, in reply, said, that as the noble Lord had not decidedly said that a time might not come when transportation should be abolished, he (Sir W. Molesworth) trusted the time was not far off. He would not divide the House, but would be contented with having his motion recorded on the votes.
Previous question agreed to.

CINQUE PORTS—PILOTAGE.
On the motion of Mr. Labouchere, the House went into a committee on the Pilotage Act. In committee the right hon. Gentleman stated, that by the ancient privileges of the Cinque Ports, confirmed by several Acts of Parliament, and lastly by the Pilotage Act, vessels entering the Thames, having on board an owner or pilot who was
1308
an inhabitant of the Cinque Ports, was exempted from river dues. This privilege had lately been brought into question under circumstances of legal difficulty arising out of claims on the part of a French steam company under the Reciprocity Act, which it was most desirable should be fulfilled in spirit as well as to the letter. It appeared that a British steam company engaged in the carriage of passengers to Havre had engaged an individual or householder of one of the Cinque Ports to take part as owner in their vessels, and by his presence to free them from the payment of the dues on the River Thames. The rival French company had, in retaliation, adopted a similar expedient; but it appeared that our laws stood in the way of Englishmen possessing French property of this description. As it was most desirable to place both parties on an equal footing, he had consulted his Grace the Duke of Wellington, and had obtained his sanction to bringing in a bill which abolished the objectionable privilege, and so get rid of the difficulty of fairly fulfilling the spirit of the Act of Reciprocity. The right hon. Gentleman moved a resolution that leave be asked to bring in a bill, to repeal so much of an act passed in the sixth year of the reign of King George the Fourth, intituled "An Act for the amendment of the law respecting pilots and pilotage, and also for the better preservation of floating lights, buoys, and beacons," as exempts from penalty the master or mate of any ship or vessel, being the owner or part owner of such ship or vessel, and residing at Dover, Deal, or the Isle of Thanet, for piloting or conducting such his own ship or vessel, in certain cases in the said act mentioned.
Resolution agreed to.
House resumed, and bill ordered to be brought in.

IMPORT DUTIES.
Mr. Humesaid, that as there was no objection to the motion of which he had given notice, he would not trouble the House with any statement, further than to say that his object was to ascertain how far the duties levied on imports were protective, or were levied for the purpose of revenue alone. He hoped that the result would be to induce the House to make some alteration in the state of our tariff. The hon. Member concluded by moving for a select committee to inquire into the several duties levied on imports into the United Kingdom; and whether those duties are for protection to similar

1309
articles, the produce or manufacture of this country or of the British possessions abroad; or whether the duties are for the purposes of revenue.
Lord Granville Somersetwished to know whether it was intended that this committee should take the subject of the Corn-laws into its consideration?
Mr. Laboucheresaid, that he had objected to the motion in its original form, as making the inquiry too extensive; but he imagined, upon reading the words of this motion, that the object of the committee would be to classify the information it obtained with regard to duties on commodities into this country, whether protective or levied for purposes of revenue; and in that way he thought the committee might be usefully employed; but if they were to pronounce opinions on the expediency of protecting this or that article, he should despair of deriving from their labours any useful result.
Mr. Humewas too well aware of the inutility of submitting the recommendation of committees to that House upon so great a question to think of proposing such a committee; but when he told the House that there were 1,150 different entries in our tariff' book, which every man importing goods must be acquainted with, whilst the tariff book of the German states of Holland or Belgium, did not contain half that number, it must be admitted that an inquiry was necessary, as it might be the means of simplifying that tariff book..
Lord Granville Somersetsaid, that of course, after the explanation which had been given, the great question of the Corn-laws would not come before the committee, and he was inclined to think that their labours might be productive of good.
Motion agreed to.

MINUTES.
Bill. Read a first time:—Non-Intrusion.
Petitions presented. By Earl Fitzwilliam, from Greenwich, for the Bettor Observance of the Lord's Day; from Sheffield, for the Release of John Thorogood, and the Abolition of Church Rates; from Wakefield, against the War with China.—By the Bishop of London, from several Metropolitan Parishes, against Sunday Trading.—By the Bishop of Lincoln, and the Earl of Winchilsea, from several places, against the Grant to Maynooth College.—By the Earl of Radnor, from the City of London, for, and by the Earl of Winchilsea, and Lord Rayleigh, against, the Repeal of the Corn-laws.—By the Bishops of Exeter, and Llandaff, from several places, for Church Extension.—By the Duke of Richmond, from Brentford, against Rating Stock in Trade; from several places, in favour of Non-Intrusion; and from Eastbourne, against the Poor-law Commissioners.—By the Earl of Galloway, from Montrose, in favour of Non-Intrusion.

WAR WITH CHINA.
Lord Ashburtonsaid, that the public having been left more in the dark respecting the expedition to China than had ever been the case respecting any expedition of equal importance and strength, he wished, therefore, to know under whose guidance and command it was intended to place the ships and men. The armament being a joint naval and military-one, he thought it important that the public should know who was to have the conduct of it.
Viscount Melbournesaid, that the general conduct of the expedition would undoubtedly be under the Governor-general of India.
The Earl of Riponasked whether the Governor-general would act on his own discretion, or from instructions sent out from England.
Viscount Melbournesaid of course in-

1209
structions would be sent, but still the Governor-general would act as circumstances might require.
Lord Ashburton.—Will he accompany the expedition?
Viscount Melbourne.—No, no.
Lord Ashburtonsaid, that the objects of this expedition being to obtain reparation, to establish courts of judicature, and to conduct negotiations, he wished to know who was to have the conduct of these negotiations.
Viscount Melbourne.—The naval officer, I apprehend.
Lord Ashburtonasked if the noble viscount meant Captain Elliot?
Viscount Melbourne.—No.

CHURCH OF SCOTLAND.
The Earl of Aberdeenrose to present to their Lordships a bill for removing doubts respecting the presentation of ministers of the Church of Scotland; and in doing so, if he appeared less anxious than might seem natural to apologise to their Lordships for submitting to their consideration a subject of so much importance, he could assure them it was not from any newly-acquired confidence on his part, or from any notion that he did not stand in need of their indulgence, but from a conviction that this subject did now indispensably demand the interference of the Legislature, and also from circumstances connected with it, which in some degree compelled him personally to follow the course he now took. After all that had passed on this subject, after the declaration made by the noble Viscount at the head of the Government at the end of last session, again at the opening of the present, and since at repeated intervals, it had been his (the Earl of Aberdeen's) belief and persuasion that the Ministers would have found it incumbent on them to attempt to apply a remedy to those evils, of which they had fully admitted the existence and magnitude. The noble Lords opposite, however, had thought it consistent with their duty, and of that they were probably the best judges, to abstain from making any proposition on the subject. At the same time he must be permitted to say, that this was a case which involved the peace and tranquillity of an important portion of the empire, in which the authority of the law was at stake, and in which was placed in jeopardy the welfare, perhaps the existence, of the best interests and institutions of the country, and therefore it might have been expected that the executive Government would have
1210
found it proper and necessary to interfere. The noble Viscount opposite knew that he had never looked at this subject as a matter of party contest; and that any measure which might have been proposed by the Government, and possessed the least probability of attaining the desired object, would have met with his most cordial assent. He did not think he was taxing the noble Viscount's candour too far when he asked him to give a like reception to a measure proposed under similar circumstances by him. He was not unaware of the inconvenience or even danger of attempting to legislate on such a subject. Many difficult and delicate questions might be raised, which had better be left at rest. He felt his own personal position in dealing with the subject sufficiently irksome; for, notwithstanding the vital importance of the subject, and the manner in which it had agitated, and continued to agitate a great portion of the country, affecting the feelings, passions, and prejudices of thousands, yet he almost despaired of bringing the conviction of this truth home to their Lordships' minds, or of penetrating the House thoroughly with a sense of the essential importance of a due settlement of the question. When he recollected that this was the cause of Presbytery—that on the settlement of the question depended the welfare and prosperity of Presbyterian church government, which he was anxious to uphold and confirm, though he could not expect to encounter feelings of hostility, it was impossible for him to look for any warm sympathy, support, or concurrence, from a large portion of their Lordships. However, he thought it right to declare at once, that he approached this subject with feelings of the most profound reverence for the national church as established by law—the church of Scotland. With respect to that church, he adopted the emphatic language of a committee of the House of Commons, who in a report presented to that House not many years ago, declared their conviction that "there never was an institution which at so little cost accomplished so much good as the established church of Scotland." It was a church composed exclusively of active labourers in the service of God, in which pluralities and non-residence were absolutely unknown, and such of their Lordships as had not the means of a personal and local knowledge of the blessed effects of its ministration were little competent to form a judgment of the manner in which it

1211
ought to be regarded. It might be true, that the church of Scotland had, at periods of its history, shown indications of a spirit of intolerance and fanaticism. They had heard of the saying that "New Presbyter was Old Priest, writ large," and unquestionably the old spirit had occasionally prevailed; but in saying this, all that was meant was, that such portions of the institutions as were of human origin partook of the failings and imperfections of humanity. It might have been expected that those who had suffered so long from the scourge of persecution would not themselves have manifested a feeling of intolerance; but in the history of the human mind this peculiarity was discovered, that men often felt little reluctance to inflict on their fellow-creatures those very evils from which they had suffered most severely themselves. However this might be, he felt assured that they were not likely to see a revival of this spirit; and although the members of the church of Scotland would continue to act with zeal and activity in the cause of their Great Master, he feared not a repetition of those acts to which he had alluded as disfiguring the church in former times. Having expressed the feeling which he entertained towards the Church of Scotland in bringing forward this subject, he must also add that he approached it with feelings of the most sincere love and respec towards the great mass of the people of Scotland. The people of that country were well worthy of their Lordships' consideration. He remembered many years ago that the late Lord Liverpool, using an expression somewhat colloquial, but very significant, declared his conviction that "Scotland was the best conditioned country on the face of the earth." He was afraid, that since that time they had done nothing to increase, or perhaps retain, their claim to that description; but still there was an intelligence and moral worth among the people of that country which entitled them to their Lordships' consideration. Noble Lords opposite boasted annually, and perhaps properly, of a diminution in the military force of Ireland; and adduced that circumstance as a proof of the tranquillity and good order which prevailed there. They counted their reductions by regiments and thousands of men. Then let him remind their Lordships that they had trusted the peace and tranquillity of Scotland for many years, in the worst of times, to a few hundred men, and had done so with success. This spoke volumes for
1212
the love of order which prevailed among the population of Scotland. It also spoke volumes for the efficiency of that moral and religious education which they received at the hands of the ministers of their church. If there was anything on earth to which the people of Scotland were attached with passionate devotion, it was to their national church, and with good reason. The reformation in Scotland was mainly accomplished by the people, and their church was emphatically the Church of the People. Little assisted by the great and powerful, they, after long struggling and great difficulty succeeded in establishing their church. Unlike the Church of England, which, subsequent to the first fiery struggles met with little difficulty in after times, the Church of Scotland was for a century after the period of its first existence, exposed to repeated difficulties and persecutions. It, in fact, never enjoyed the countenance of princes or of courts. From 1660 down to the period of the Revolution, it was perpetually struggling, with more or less success, and during these contentions, the people were never supported by the Government in their endeavours to establish a national church. It was, therefore, but natural that, recollecting the difficulties they had overcome, and how dearly purchased the establishment which they at last obtained was, they should cling to it with a feeling of affection and devotion, of which their Lordships were perhaps not aware. There was another class of persons immediately connected with this subject, with respect to whom he wished to say a few words—he meant the body of patrons in Scotland. He was not disposed to deny that perhaps for the latter portion of the last century, the rights of patronage might have been more strictly asserted, and the just claims of the people more neglected than was consistent with the welfare of the church, and the prosperity of religion, and during that period there had prevailed some diminution of the religious sentiment of the country. He believed the same might be observed with regard to England also, but fortunately, the zeal of the people of both countries had revived, and it was impossible to conceive a distribution of patronage more calculated to increase the welfare of the church than that which had taken place of late years in Scotland. In the course of the interviews he had had with patrons connected with the present state of the church in Scotland, and the measure he was about to propose, he had

1213
met from all, without a single exception, the expression of the greatest willingness to assent to the imposition of any necessary or reasonable restriction on the exercise of patronage, provided the welfare of the church and the interests of the people were consulted. It was now time for him to state to their lordships what was the actual condition of the church in Scotland, which made him say that legislative interference was absolutely indispensable. He needed not detail at length the proceedings which had led to the present state of things, but he might mention, that a few years ago there was, as there always had been, more or less, a degree of hostility shown to the exercise of patronage, which hostility appeared from the petitions to Parliament, and the propositions made to the General Assembly, to have acquired great strength and consistency. In 1834 an act was passed by the General Assembly, commonly called the Veto Act, by which it was provided, that on a presentation to a benefice, if a majority of the heads of families in the parish being in communion with the church expressed dissent to the nomination of the individual, the Presbytery should be prohibited by that circumstance alone from examining him for holy orders, and should at once be compelled to reject him. There was no reason to suppose that the General Assembly in passing this law had done anything which they believed to be beyond their legitimate authority. That body acted on the best legal advice, and he believed that the law officers of the Crown at the time pronounced an opinion that the passing of the Veto Act was within the legal competency of the Assembly. At all events it was supposed by a learned judge, not more distinguished for his legal attainments than for his high character and love for the church of his fathers, that the General Assembly was at the time warranted by its existing powers in enacting the law he had alluded to. However, shortly afterwards a case occurred in which the authority of the Assembly to pass this act was questioned. A patron having presented a gentleman to a benefice, the Presbytery refused to take him on trial for holy orders. The case was carried to the Court of Session, by whom the Veto Act was found to be contrary to statute and illegal. The Church appealed to the House of Lords, and, the question being heard at great length, the judgment of the Court of Session was affirmed by that House. The Veto Act was consequently pronounced to
1214
be a violation of statute and illegal. It was not for him to find fault with the coure which the General Assembly had thought fit to adopt; but if, after the judgment of that House had been pronounced, the Assembly had taken steps for rescinding the act which had been declared to be illegal, and had expressed their intention of effecting the purpose for which it was enacted, namely, that of preventing the intrusion of improper persons, contrary to the will of the congregations, he thought that the question would not have been in a state of such difficulty as it was at present. The General Assembly, however, adopted another course. They retained the law on their journals, but suspended its operation for one year, and appointed a committee to communicate with the Government in order to obtain its sanction of this law or some other, which would effect their purpose in a similar way. Other proceedings took place shortly afterwards which had led to very serious consequences. In a parish of a district not very remote from his own residence, but more immediately connected with the property of his noble Friend and relative on the cross benches (the Duke of Richmond), a gentleman was presented to a benefice, but the Presbytery were prohibited from examining him on trial for holy orders by the commission of the general assembly. This commission was not the committee appointed to communicate with the Government of which he had before spoken, but consisted of members of the general assembly, who chose to meet during the adjournment of that body. This commission prohibited the Presbytery of the district from taking the gentleman presented to the benefice on trial for ordination. The Presbytery being aware of the judgment of the House of Lords, and consequently of the law of the land, were placed in this difficulty—they were prohibited by their ecclesiastical superiors from proceeding with the trial of this gentleman, and on the other hand they exposed themselves to an action for damages, if they did not take him on trial, conformably with the judgment of that House. Under these circumstances, the Presbytery respectfully declined to obey the injunction of the commission of the assembly, and proceeded to take the gentleman on trial for holy orders. The commission thereupon suspended the majority of the Presbytery who had come to this resolution. Seven ministers were so suspended, and they appealed

1215
to the Court of Session for protection. The Court of Session issued an interdict prohibiting any person giving notice of the suspension of these ministers in their respective parishes, and also prohibiting any-other persons from performing the ministerial duties in those places. This interdict was in both respects set at nought. Intimation was given of the suspension of the ministers, and it was publicly notified, that the seven ministers were incapable of performing any holy functions, that marriages and baptisms celebrated by them would be invalid, and that other persons were appointed to preach in their parishes. Accordingly, not only on Sunday, but on several days of the week, these parishes had been frequented by other ministers, sent there for the purpose of supplying the places of the suspended incumbents. The feelings of the people were enlisted on one side or the other, and the greatest excitement and alarm had been produced in those parishes, which had hitherto been tranquil and peaceable. He knew nothing of the seven gentlemen suspended by the commission; but he believed them all to be highly respectable men. Many of them had long been the ministers of their respective parishes, and been regarded with universal respect. They were now, however, engaged in controversy with their brethren, and, though they had not been deprived of their churches, religious service was performed in other parts of the parishes, by other men totally unconnected with the places, who intimated to the congregations that the gospel had not been preached before as it ought to have been. He had on a former occasion stated, that the excitement created was so great, that the execution of the law would be attended with danger, and might lead to bloodshed. The extent of the danger might probably have been exaggerated to a certain degree, but there was no doubt that the fanatical zeal of some parties might have induced them to resist the law; and in this opinion he was confirmed by information he had received from a gentleman connected with the district the day before yesterday. This was a state of things which was extending itself, but which ought not to be allowed to exist; and when the noble Viscount gave, before the holydays, as a reason for the Government not interfering in the matter, that great excitement prevailed, that neither party was willing to concede, and that it was better to leave them to themselves, the
1216
noble Viscount only showed that he was ignorant of the real nature of the case. This was a case in which the law had been pronounced, and ought to be executed. The law had no passions, violence, nor prejudices. It was the right of the subject to demand from courts of justice protection and redress. The judge was bound by his oath, and by his duty to the Queen, whom he represented on the seat of judgment, to administer justice without delay to every person who demanded it. In this case the court had no option. The court did not mate the law, hut only administered it. Neither did their Lordships make the law; they only interpreted it, declaring, that the Court of Session had put a right construction on the statute. There existed, then, a state of things which manifestly nothing could regulate but the interference of Parliament. When the noble Viscount talked of parties conceding, let him ask what could the Court of Session or the Parliament concede? After pronouncing that the Veto Act was illegal, could the Parliament go back and acknowledge themselves to be mistaken? This was impossible; and they must, by a legislative enactment either legalize the Veto Act, or apply some other suitable remedy to the existing state of things. After all that had been said on the Veto in that House, and in the multitude of publications to which it had given rise, he did not know that he should have called their attention to it, but that he found the non-intrusion committee, which was appointed to confer with her Majesty's Government for the purpose of obtaining the sanction of Parliament to this law or some other equivalent, had, instead of waiting to report their proceedings to the general assembly, by whom they were constituted, published to the world in their own vindication, the Veto Act with some modification which they proposed should be legalized, and to which, having no other suggestions to make, they still adhered. That made it necessary for him to state briefly why he, for one, could never agree to that act, and why he thought Government were perfectly right in refusing their assent to it. What, then, was the Veto?—It was not election; on the contrary, those by whom it was supported declared that it was to prevent the necessity of the popular election of ministers that the veto had been proposed. He could only say, that although he did not mean to support the popular election of ministers, that system had never-

1217
theless its advantages; and, if he were compelled to choose, he should without hesitation prefer it to the establishment of the veto. It was decidedly, it was infinitely, better. For what was the veto? It was a dissent without reasons assigned, a capricious dissent—perhaps for unworthy, possibly unscriptural, reasons—but reasons which must prevail even against the deliberate judgment of the church itself, to prevent the ordination of any one whom such persons might think fit to proscribe. When, therefore, the church asked the Parliament to legalise the veto, it appeared to strike a blow at its own independence, nay, at its own existence as an establishment, compatible with the jurisdiction which must be inherent in every church. It parted with all power and jurisdiction when the dissent was pronounced by the third party, who would virtually be entitled to declare who should receive holy orders and who not. This really seemed to be departing from the jurisdiction which must absolutely be inherent in every church. Suppose a lay tyrant had proposed such a provision as to any third party who should be a bar to the ordination of any minister, what an universal outcry would have been raised against such a measure, as something monstrous and wholly incompatible with the very notion of a church possessing any jurisdiction whatever; yet such an act the majority of the Assembly had desired their Lordships to legalize. It was important to consider, when they were called on to legalize this veto, that there could be no qualification or restriction on it. It was an absolute right, for if they imposed any restriction on it, they would alter its nature entirely. The veto which had been passed by the Assembly, and which was still the law of the church, although it had been suspended for one year, concluded with declaring
"That no person should be held to be entitled to disapprove, as aforesaid, who shall refuse, if required, to declare, in presence of the Presbytery, that he is actuated by no factious or malicious motives, but solely by conscientious regard to the spiritual interests of himself and the congregation."
This was a sort of protection against improper motives on the part of those dissenting; but no more was required than the declaration of the parties themselves. He thought that a very insufficient protection, and objectionable in many other respects. It was insufficient, because par ties when excited, either by objecting to one individual or by preference for another,
1218
were naturally in such a state of feeling as that they might safely declare they were not actuated by factious or malicious motives; but this provision must also operate as a snare to the conscience, and, by opening the door to a species of perjury, must lead, to many immoral and mischievous consequences. The law proposed for the sanction of the Government, and which, in his opinion, they had very properly rejected, contained this modification:—
"Provided always, and be it enacted, that it is and shall be competent to and incumbent on the patron, presentee, or heads of families, who may allege that the dissents as aforesaid proceed from factious and malicious motives, and not from conscientious regard to the spiritual interests of the congregation, to establish the same to the satisfaction of the Presbytery, by evidence competent to the law of the church."
He would ask, how difficult and objectionable such a course must be? How difficult would it be to prove that motives were factious and malicious in such a case? And then to what a state must the parish be reduced, where it was necessary that such a course of proof should be proceeded with against a majority of the persons dissenting? Nothing he could conceive would be so fruitful of bitterness, hostility, heart burnings, and endless mischief, as any attempt to establish such a case. He therefore thought that the alteration on the part of the committee was rather for the worse than for the better, and the Government had nothing in the altered plan to recommend it compared with the simple and absolute veto. But it was said, the veto was essential to establish and secure what was called the principle of non-intrusion, to prevent the forcible intrusion of improper ministers on the parish and congregation. He had already said, that non-intrusion was a phrase of very wide signification, and, like many nicknames, gave an erroneous impression of the thing it proposed to describe. He was one of those who agreed in the principle of non-intrusion; he was very unwilling that any minister should be forcibly intruded upon a reluctant congregation; but then he did not interpret non-intrusion as those who advocated the veto interpreted it. He understood it as Knox and Melville understood it, and as it had been explained and enforced by Calvin and Beza; not the exercise of an arbitrary, capricious, and groundless will of a congregation without any assigned reason. So explained, it was an absolute innovation. Without troubling their Lordships with

1219
any lengthened proof upon this part, he would refer to such authorities as had satisfied his own mind that his interpretation was the authoritative one of the church in its best days. At the very commencement of the Presbyterian church in Scotland, by the first book of discipline, framed by Knox himself and his companions in 1560, it was laid down specifically thus;—
"Altogether this is to be avoided, that any man be violently intruded or pressed in upon any congregation; the council of the church shall not be forced to admit before just examination."
The opinion of Calvin was to the same effect, tolerating no opposition on the part of the congregation, unsupported by the reasons assigned for it. The next authority was that on which the advocates of the veto principally relied, the second book of discipline, dated 1578;—
"It is to be eschewed that no person be intruded into any of the offices of the kirk, contrary to the will of the congregation to whom they are appointed, or without the voice of the eldership,"
meaning the Presbytery, which was so called in those days. The interpretation of these words was sufficiently obvious. There were two parties—the congregation and eldership; the minister was not to be intruded into the parish contrary to the will of the congregation, or without the voice of the eldership. There could be no doubt which was to decide. The second book of discipline was principally framed by the celebrated Andrew Melville, the friend of Theodore Beza, the great reformer of Geneva and successor of Calvin. He was sent from Geneva, having been ten or twelve years a member of that church, to Scotland for the purpose, and he brought with him all his notions of that discipline to which the Church of Scotland owed so much. A letter of Beza was still extant in which he described clearly and explicitly the proceedings at the examination and ordination of ministers. He was to preach in the church of the parish to which he was to be presented, "and if, after so doing the people have anything to urge against him, they shall prefer those objections with all modesty and humility, and the Presbytery shall judge accordingly; and Beza made use of this expression, "ut nemo invitœ ecclesiœ obtruderetur."—i. e., without the Presbytery hearing and judging of the objections of the congregation; but rejected in the strongest terms the right of the people any further to interfere in the
1220
appointment of the minister. Afterwards one of the rescinded acts in 1649 abolished patronage, and gave the Synod full power to deal with the subject as they thought fit, and settle the whole ordination of ministers. The Assembly accordingly prepared a directory for the purpose, in which, after prescribing various forms, this regulation was added,
"But if it happens that the major part of the congregation dissent from the person agreed on by the Session, which stood in the room of patrons, in that case the matter shall be brought to the Presbytery, which shall judge of the same, and if they do not find their dissent to be grounded on causeless prejudice they are to appoint a new election in manner above specified."
Here, then, the Church being completely master, having the making of the law, reserved in their directory the power to the Presbytery to judge the matter when brought before them. How then could the Presbytery act judicially without knowing the reasons on which it was called on to judge? So that in what had lately been called the golden age of the Church, it had clearly by its own enactment precluded the notion of any thing like the absolute veto which was now sought to be established. The noble Earl read an extract from Sir Henry Moncrief's Life of Erskine to the same effect. The statute of 1609, when patronage was again abolished, provided for the settlement of ministers, and declared that
"The heritors and elders are to name and propose the person to the whole congregation to be approven or disapproven by them, and if they disapprove, the disapprovers are to give in their reasons, to the effect the affair may be cognosced upon and determined by the Presbytery, &c."
i. e., that the merits might be examined judicially, and determined by the Presbytery. For all these reasons he maintained there was no authority in the history of the Church, for the enactment which had lately taken place, and that the veto must be considered an absolute innovation. But his great objection to the veto was, that by it the Church abandoned its chief right and duty. Before any act recognizing the Presbyterian Church of Scotland, the first thing the assembly claimed from the State was, the right of collation, which comprised the act of objection on the part of the people, the trial, examination, ordination, and induction of the presentee to the parish. The Church, having then received the right

1221
of collation, had by the act passed by the Assembly abandoned its right, and had abandoned its duty by giving up what the law had conferred upon the Church as it existed at that time. There were various statutes in which the right of collation was recognized as belonging exclusively to the Church, but in one statute in particular the scrupulous cure with which this right was recognized was very remarkable. It was a recent statute—that was to say, one passed since the Union; he meant the 5th of George 1st, which provided that certain oaths should be taken by the ministers of the Church for the security of the Government. So great was the anxiety shown by the Legislature in this statute not to interfere with the right of collation possessed by the Church, that one provision was, that nothing contained in the act should in any manner prejudice or diminish the right of the Church as the same was by law established, to judge the qualifications of any presentee for ordination or trial. This provision, too, was contained in an act which contained no enactments whatever relating to ordination and trial; and it was, therefore, a more conclusive proof of the intention of the Legislature to maintain this right of the Church. He could not but think that the Church, by availing itself of the benefits conferred upon it by law, had undertaken to do its duty by exercising this right, and that it could not preserve any jurisdiction over its own members, if it put into the hands of third parties the right of opposing an absolute bar to the collation of ministers. He thought that to reject a worthy person without any cause assigned, and for a cause perfectly unknown, was almost as great a breach of duty on the part of the Church as it would be to ordain, an improper person. The interests of religion and the welfare of the Church were nearly as much injured by excluding a deserving person from the ministry for an arbitrary and unjustifiable cause as by an improper ordination. He knew that the veto itself had been represented merely as a sort of disqualification, as it was urged, that those who were entitled to judge of a presentee's qualification ought to take into account his acceptability to a certain proportion of the congregation, and that therefore it was the church itself that in truth judged of a presentee's qualifications, when it found him disqualified on account of a certain number of persons dissenting without any reason from the nomination. This was called judging
1222
of a minister's qualification. But surely the argument was so sophistical as to be scarcely worth alluding to, since the circumstance of a certain number of persons liking a presentee or not could not be considered as a qualification inherent in the individual. He would take an instance of what was really a qualification. Lately, a certain knowledge of Hebrew was required of a candidate for ordination; that was a qualification inherent in the individual, and also one of which the church reserved to itself the means and power of judging. It did not, as in the case of that which was now set up as a qualification, defer to a third party the right of judging what was the knowledge possessed by the candidate of the Hebrew language, but decided the question in its own courts. So with respect to every other qualification required by the church. But a rejection of a presentee, without any cause being assigned, could not be considered, in any fair meaning of the word, as the want of any qualification inherent in the individual himself. According to this proposition, arbitrary, capricious, and unknown objections to an individual were absolutely to prevail; they were not merely to be reviewed and judged of and taken for what they were worth, if objections for unknown causes, and perhaps mere unfriendly feeling, could be considered as worth any attention. The church was to be precluded from all power of judging of the value of such objections, and of counteracting their effect, and this was the system which Parliament was now called upon to legalize. It was a suicidal attempt of the church, which would destroy its own jurisdiction. Therefore he repeated that her Majesty's Government had acted wisely in, refusing to sanction this proposal. But the non-intrusion committee, who had published this proposal, had accompanied it with another, which, he presumed, they also proposed to her Majesty's Government for adoption, and which had been the fruit of long deliberation. He had only recently seen the tract containing this proposition, it having been published about a fortnight ago. It contained a proposed act for giving efficiency to what was termed in Scotland the call; it was proposed by this act, that if a majority of the male communicants assembling in the church on the occasion of the presentation did not agree in signing the call, the presentation should be null and void, and the Presbytery should thereupon reject the presentee. Of the two plans, he considered this rather the worse

1223
in many respects. In the first place, this plan was entirely new. Many disputes had taken place upon the question of what was a sufficient call; hut this had never been thought of—that the signatures of a majority were necessary to establish a call. The plan now proposed treated the call as an absolute right on the part of the people; and, although it was not put forth with the avowed intention of giving the people the right of electing the minister, yet what it professed to give did really amount to a power of joint nomination and election. It was, in fact, more objectionable than the veto, since it would practically establish a veto which would in practice be exercised by a very small number of the people. When people had a right to elect, they were eager enough to exert it; but if it were necessary for a majority to sign the call, a very small number of persons who might be disposed to object to an individual, either for good cause or no cause, or for a bad cause, might by exerting themselves obtain from their neighbours a promise to do nothing, but merely to stay away—the easiest of all favours to obtain, and there was little doubt that practically an active few would really be in possession of the veto. But the proposal was still more objectionable on another ground; for when a large body of people came forth and, right or wrong, said they disliked the presentee, and felt that they could never prosper under his ministry, and, therefore, objected to the presentation, such a course might, it was true, seem very unreasonable; but still one might presume, that in such a case there really was something against the man; whereas, according to this plan, No. 2, if on account of business, or for any other reason, some of the parishioners stayed away, so that a majority of the communicants did not sign the call, the Presbytery would be bound to consider the individual as disqualified as if he were found guilty of some grave offence: he was to be presumed to be disqualified for ordination, although no one had uttered a syllable against him; the circumstance of a majority not having come forward to sign the call, was to operate as an absolute exclusion and a bar to any further proceedings towards the ordination of the presentee. Such a proposition was so monstrous and so arbitrary, as to be decidedly worse than the plan at first proposed. He, therefore, entirely approved of the conduct of the Government in rejecting this as well as the former proposal. He was sorry to
1224
fatigue their Lordships by detailing all these projected laws, but there was one more plan which, from the station occupied by the individual who proposed it, and his connexion with the Government, was certainly entitled to respect: the plan to which he alluded was that proposed by the Lord-Advocate, who had been occupied many months in preparing it. The subject had been referred to the consideration of the learned Lord nearly a year ago, and he had been very anxious to learn the result of the learned Lord's labours. A little while ago, he had seen a report in a provincial paper containing an extract from the speech of a Gentleman who stood very high in the estimation of her Majesty's Government, and for whom he entertained very great respect—he meant the hon. Member for Aberdeen. That hon. Member had attended the non-intrusion committee, and had detailed the plan of the learned Lord, and the statement of the plan had certainly gratified his curiosity; but last night he had put into his hands an account of the plan published by the learned Lord himself, which therefore superseded the account given by the hon. Gentleman who had acted as its expositor. Now, with the greatest respect to the learned Lord, this plan appeared to him (the Earl of Aberdeen) to be decidedly the worst of all. It adopted in principle the plan No. 2 of the non-intrusion committee, for it provided, that if a majority of the persons whom it described, and to whom he would presently call the attention of their Lordships, did not upon the first presentation to a living sign the call, the presentation should fail, and the patron should have another three months to make a fresh presentation. Upon a second presentation the same thing was to take place, and the patron was to have three months more. The same proceeding was to be repeated upon a third presentation; but after that it was considered to be time to have recourse to further measures; and on a fourth presentation, if the majority did not agree to call the presentee, the principle of non-intrusion was to be given up, and the Presbytery were at last to intrude a minister. So that, after arbitrarily, unjustly, and absurdly disqualifying three men, all of whom might be perfectly unobjectionable, the learned Lord's plan proceeded to violate what was maintained to be an absolute right on the part of the people. Besides, by providing time for successive presentations, it created a device for keeping

1225
parishes vacant, it was impossible to say now long. The learned Lord was aware of this defect, for his measure provided, that after the stipend of the vacant living had been paid during a year to the widow's fund, the residue, after paying the assistant, should be applied to pious uses so long as the vacancy continued. This plan, therefore, had nothing to recommend it; it did not recognize the absolute right of the people, nor did it vindicate the rights of the church until they had been abandoned in three cases, not only without any cause being assigned, but without any objection being brought forward. Now, the learned Lord thought himself obliged to introduce something of a popular principle into his measure, and consequently, although the church had by the act of the Assembly limited the veto to the heads of families in communion with the church, the learned Lord could not be satisfied with anything less than an extension of the right to sign the call, or by absence to exclude the presentee to all the seat-holders, that was to say, to all members of the congregation who frequented the church. If he were not very much mistaken, the learned Lord would find that he had here overshot his mark, and that this part of his measure would be reprobated in every part of the country, and by every congregation. The publication of this plan appeared to be an extraordinary proceeding on the part of the learned Lord: if the learned Lord wished to propose a measure upon the subject, why had he not introduced a bill into the other House of Parliament? It had been said that the learned Lord had intended to do so, but had abandoned the design in consequence of his present motion; but that could not be a correct representation of the fact, for he had given no notice of his intention to introduce a bill upon the subject, till the noble Viscount opposite had declared that the Government had no intention of proposing a measure, and had expressly made that declaration, in order that the subject might be taken up by others. Now, the learned Lord was looked upon as the organ of the Government in Scotch affairs; what, then, were the public to understand by this plan of the learned Lord? It surely could not be considered the plan of the Government, since the Government refused to bring it forward. What was meant by publishing the learned Lord's proposed measure in the newspapers, instead of bringing it forward in the House of Commons? Was it intended to cajole the church
1226
and the Assembly with the hope of a measure which the learned Lord did not venture to propose himself, and which he knew would be rejected by her Majesty's Government? If such were the object, he should imagine they were too clear-sighted to be deceived by any such tardy advertisement as this. For his part he cordially concurred with her Majesty's Government in having declined to have anything to do with the Lord-Advocate or his bill, as he decidedly thought it the most objectionable and certainly the most inconsistent of all the plans that had yet been proposed. But it was high time he should state to their Lordships what were the provisions of the bill which he purposed to submit to their Lordships. They were very few, very short, and very simple. He had not followed the example of the Lord-Advocate, who, as was stated in the paper to which he before alluded, had submitted his bill to those Members of the House of Commons who usually supported the Government, though the learned Lord did not say whether they approved of it or not. He had not submitted his bill to any meeting of those members who usually opposed the Government. He had framed it with a sincere desire that it might answer its object and deserve the support of those who both supported and opposed the Government. He had taken such a system as he thought valuable and available for the purpose, but he had had no communication with any one. He believed that the measure he was about to propose was quite consistent with the genius and spirit of the Presbyterian church of Scotland; that it preserved the jurisdiction and independence of that church; that it gave due weight to the just claims of the people, and did not unjustly restrict the rights of the patrons. The preamble recited the various acts by which the right and duty of collation was imposed and granted to the church, and recognized in the church. It then provided, that when a presentee, after being appointed to a parish by the patron, should come to the Presbytery, it should be lawful for the latter to direct him to preach in the church of the parish in such manner as they might require, and when he should have so preached, that they should meet, and after due notice to the said church, to intimate whether any one or more persons, regular communicants of the Church, of full age, had any objection: of any kind to the individual so appointed, or any reason to state against his

1227
settlement in the parish. Now this, he would just observe, was very important, for the Church of Scotland had always taken cognizance of not only the qualifications of the individual himself, but also his peculiar qualifications for the parish to which he was presented, because, as their Lordships were aware, ordination always preceded induction to a parish. Well, after intimation had been given for the communicants to state whether they had any objection to the individual or his peculiar gifts and qualifications for the cure of the said parish, the Presbytery should be ready, either then or at their next meeting, to receive the same in writing, or otherwise, as the communicants might desire, which objections or reasons should without delay be considered and disposed of by the Presbytery. The Presbytery might, if they thought fit, then refer the matter to the Superior Court of Synod; but if they thought, regard being had to the whole condition of the parish, that on account of any of the objections or reasons which were stated, the individual ought not to be settled in the said parish, they should state forthwith the supposed grounds on which the objections were founded, and in respect of which they considered the presentee was not qualified for that Church; and it should then be competent to the patron to nominate another person. It should, however, be in the power of both the patron and the nominee to appeal to the superior ecclesiastical courts. But if, on the other hand, the Presbytery, after considering all the objections and reasons against the settlement of the individual who had been nominated in that particular parish, were satisfied in the due discharge of their functions that no good objections existed against the individual, or that no good reason against his settlement had been stated, or that the objections and reasons stated were not fairly founded on any personal objection to the presentee in regard to his ministerial gifts and qualifications, either general, or in respect of that particular parish, the Presbytery should repel the same, and, subject to the appeal aforesaid, should proceed to examine the presentee as to his other gifts and qualifications, and if they were satisfied with them, that they should induct him to the parish accordingly. On a subject respecting which so much excitement prevailed, it was impossible for him to suppose that his plan could meet with anything like universal acceptation; but he did hope for the approbation of all moderate and rational persons. The
1228
noble Viscount at the head of her Majesty's Government laughed; but the noble Viscount was aware that in Scotland the greatest stigma a churchman could labour under was being called a "Moderate." But in the English and Scotch sense of the term, he did hope that all moderate men would unite in supporting this bill. He thought it preserved the full jurisdiction of the Church, and placed the power where it ought to reside—namely, in the Church courts. It enabled persons to state every species of objections both against the individual personally, and against his qualifications for any particular parish; and it gave a power to the Church courts to decide those cases which they ought to be the only persons allowed to decide. He knew many would say he had sacrificed the independence of the Church and the rights of the people; but he had already expressed the conviction he felt, that neither was the case, in fact, quite the contrary, and that that independence and those rights could be still preserved. He was not without fear that he might meet with objections of another kind; that he might be told he had conceded too much power to the Church; and he thought it very likely that many of their Lordships were of that opinion; but if such were the case, his short answer was this, that he was quite persuaded that nothing was recommended in this bill which the Church itself could not now by its own legal authority enforce. And he was able to say, that in the opinion of those who were most deeply conversant with the Church of Scotland, and were not disposed to extend its power, such was the case. He had brought forward this measure because he considered that it would be beneficial and useful at this time, and he would in conclusion recommend to the leaders of the Church of Scotland seriously to consider the position in which they now stood. Most willingly would he for one contribute to close, if possible, those grievous rents which went so far to weaken the Church, but he would entreat the Church itself, and the leaders of that body, most respectfully, but, at the same time, most earnestly and affectionately, to consider the imminent peril in which they had involved the existence of the Establishment, and how much that course might tend to its speedy overthrow. He would now commend this measure to the favourable attention of their Lordships, and the people of Scotland, and above all, to those ministers of the Church, and they were numerous,

1229
who loved peace, and sought it with their whole heart.
The Duke of Buccleughsaid, that after the able and elaborate statement of the noble Lord who had just sat down, it was not his intention to trouble their Lordships with many observations. The present state of the church of Scotland was most lamentable—he might say, most dangerous. No one who had paid any attention to the affairs of Scotland could deny the truth of the circumstances which had been so ably detailed by the noble Lord. Of late a feeling had grown up in Scotland with regard to the church, hitherto unknown. Pastors were opposed to the people, and the people to their pastors, in many parts of the country; and agitation had been made use of in favour of the principle of what was called non-intrusion, which had produced the most disastrous effect. The measure as explained by the noble Lord was one which while it gave full independence to the church in all spiritual matters, would, he believed, give to the people all those rights which he thought it proper they should have, so as to prevent the intrusion of any minister who might be attempted to be forced upon them. That the people were the best judges of the fitness of those persons who were presented to them, he did not think was the case; they were apt to be occasionally misled by different circumstances; they might have a predilection for some other person than the one presented to be their pastor; or they might, without having any objection to the person who was presented, have a strong dislike to the patron who presented him. In those cases, according to the plan which his noble Friend proposed, it was left, as it should be, for the communicants of the parish to state their objections, and for the decision to be in the proper place, and where it alway used to be, namely, in the hands of the church. Though he was not a member of the church of Scotland himself, yet no person was more anxious than he was for the full integrity of the church, and that it should be established in firmness, and that nothing should be done to lessen its efficiency and independence. But it was impossible that that could be the ease while the veto was left in the hands of what he might say was an irresponsible body, subject to prejudice, and who might be easily excited against a particular individual, or who might make use of those harassing measures which might ultimately drive the patron to appoint a per-
1230
son whom he might consider most unfit. He would not detain their Lordships any longer, except to express his extreme satisfaction in finding that the subject had been taken up by the noble Lord below him, who had stated in so distinct a manner the present condition of the church of Scotland. That noble Lord had stated the difficulties in which the establishment was at present placed; but he trusted the plan which the noble Lord had suggested would restore it to that position in which it ought to be placed. He must, however, express his astonishment and great regret that a measure of such great public importance should not have been undertaken by those whose duty it was, in his opinion, to have done so—namely, by the Government, and that they should have thrown the responsibility on others—a responsibility which, from good feeling, the noble Lord had undertaken, and which, whether the plan he had now proposed was acceptable or not to the church, would always reflect the highest credit upon him.
The Duke of Argyllapproved of the plan which had been proposed by the noble Lord below him, and thought it was one which would place the establishment of the Scotch church in the position in which it ought to stand. He also thought it would allay the excitement which now unfortunately existed upon this subject.
The Earl of Gallowaysaid, no one could be more sensible than he was of how little importance any opinion which he might entertain on the subject must be to their Lordships or the country. Nevertheless, as he had felt it to be his duty on various occasions in the course of the session, in consequence of representations he had received from Scotland, to call on the Government of the country to effect a settlement of this question, he thought that if he were to remain quite silent when it was brought regularly before the House, that the motives of his silence might receive an unjust interpretation, and that it might be said by his countrymen in Scotland that he had been ready enough to call on her Majesty's Ministers to undertake an arduous task, but that when they had virtually confessed their in competency to its performance by abandoning it, and a noble Lord from his own side of the House had patriotically stepped forward in the praiseworthy hope of fulfilling the duty which they had relinquished in despair, it might be said that he (the Earl of Galloway) had shrunk, from the responsibility, perhaps the

1231
unpopularity, which might attend the expression of his opinions in regard to it. These were his reasons and apology for troubling their Lordships with a very few observations, while expressing his concurrence in the measure which the noble Earl had laid on the table. It appeared to him, perhaps more strongly than to the noble Earl, that those who still desired to uphold the Veto Act of the General Assembly, which their Lordships in their judicial capacity had pronounced to be illegal, and those who stoutly maintained the propriety of the election of ministers to parishes by the popular voice, founded their argument mainly on two things—namely, that such was the law of the word of God, and that such was the ancient usage of the church Now, if he could persuade himself that patronage, by which he meant the simple right of presentation of a qualified clergyman, the original licensing of the individual, the judgment on his qualifications, and the whole process of the ordination remaining with the church—if he thought that patronage so defined and limited were Inconsistent with the divine law, he would not wish for its continuance. But it appeared to him that the Scriptures had laid down no positive rule which reached such a subject, but that it was left, like many other matters, for the judgment and discretion of men, according to the variations of time and circumstance. Hence he argued that, as in civil matters the laws which obtained in an infant community might be inapplicable when that community had extended itself and had become a great nation, so in ecclesiastical matters, where doctrine was not concerned, the regulations of an infant church might be inapplicable to its future growth and circumstances; and whatever practice might or might not have prevailed in the primitive Christian church—when that church was composed alone of spiritually enlightened men—when that church was beholden to the voluntary contributions of its own members for the support of its ministers, and was an object of persecution, instead of being, as it ought to be, an object of veneration with the civil power, and whatever practice might have prevailed in the early reformed presbyterian congregations in Scotland, he held that their Lordships ought to examine and be guided by the principles which governed the compact and connexion which was subsequently formed between the Church and the State. While thus presuming to differ with great authorities beyond the Tweed,
1232
and sheltering himself under a part of the judgment delivered by the noble and learned Lord on the woolsack, he was prepared to contend, that in the Scottish statutes of 1567 and 1592, the great charters of the incorporation, there was not the shadow of an argument in favour of the Veto Law of 1834. In those statutes he marked three essentials—the recognition and establishment of the Presbyterian form of church government in Scotland, the powers of the church defined, and limits set to its jurisdiction, and indisputably the reservation and confirmation of the ancient rights of the lay patrons; and these had been frequently assented to by the General Assembly, however their opinions might have varied at different times. He knew that in troublous times, and by unconstitutional process patronage had been destroyed in 1649, and that, after an interval to which he need not allude, the regular sanction of Parliament had been given to its abolition in 1690; or rather, that the exercise of the presentation had, for the brief period of a few years, been transferred to other parties, until patronage had been restored. But even at that period there had been no interference with the duties of the church, and the presbyteries were held bound to hear the opinions of the people, dispassionately to weigh them, to judge of the qualifications of the presentee, and to receive or reject him accordingly. This was a reasonable procedure. But he could never bring himself to vote for a measure which should go to legalize the Veto Act of the General Assembly, involving, as it did, the virtual abolition of patronage, and believing conscientiously that such abolition would not conduce to the Christian education of the people, nor to their peace and happiness; but he was desirous of every proper check being put upon its exercise by competent parties: and he sincerely hoped Parliament would not, by any measure, give its sanction to the church, divesting itself of any portion or its spiritual jurisdiction in the settlement of ministers, by investing the people with an arbitrary power of rejection of a presentee, without cause assigned, which was unreasonable and unjust. It was by no means safe to trust implicitly to the impression of a majority, regardless of the opinions of a minority in a parish, which had not been of unfrequent occurrence in Scotland, and which, under the practice or the church during the last century. He thought that had not been sufficiently

1233
looked to, and that all the evils complained of were not justly chargeable on the patrons; and, with all the unfeigned respect which he felt towards the church, he thought that it had been more faithful in the discharge of its duties; according to the powers which it possessed, many of the abuses complained of might have been avoided. But the measure of the noble Earl would meet such cases, and deal fairly with all parties. The right of the patron to present was preserved, the right of objection on the part of the people was extended to the utmost limit, and the full rights of the church were recognized, who would hear all objections, and judge of the suitableness of such presentee for the particular parish. He thought this measure was consistent with the spirit of the ancient standards of the Church of Scotland, that it was based on right principles, and founded in reason, and calculated to promote the piety and peace of the parishes, and that if those who had hitherto been engaged, some in agitating, and some in enlightening the peoples' minds, on subjects both of doctrine and discipline within the church, would but be at as much pains to recommend the views entertained by this declaratory measure to their good will, he was sanguine to hope, under the blessing of God, it would be productive of the happiest effects.
Viscount Melbournesaid, that after the able and copious explanation of the present state of the question given to them by the noble Earl who had brought forward the bill, it would be unnecessary for him to trouble their Lordships at any length, neither should he then enter into a discussion of the observations made by the noble Earl, or those who followed him. His noble Friend, in language certainly of the most moderate character, had expressed his disapprobation of the conduct of her Majesty's Government in not originating some measure upon a subject which had convulsed Scotland. The noble Duke opposite had also censured the advisers of the Crown for not having taken the subject into its hands; yet he still must be permitted to say, that he thought he ought to put off the defence of the Government for some time longer; he felt persuaded that that course would be the most satisfactory in the end, the more especially, as he hoped that in a short time such defence would be altogether unnecessary, as they advanced in the consideration and discussion of the measure, that the prudence of the Government, with re-
1234
spect to this subject, would show and demonstrate itself in a manner the most clear, manifest, and undeniable. For another reason he would not go into any defence of the conduct of Government, and it was this, that he felt he could not do so without attacking the measure then before the House, and to that he did not then mean to make any objections. However, he must observe, that the occasion which had arisen was not by any means so grave and serious as the speech of the noble Earl was calculated to lead the House to suppose; the exigency was in no respect so pressing as it had been represented. At the same time, he was most anxious for the settlement of the question, and most earnestly wished that the measure should meet with the fullest and fairest consideration; no one rejoiced more than he in giving up the task to his noble Friend, and he should be sincerely glad if it led to a settlement of the existing differences.
The Earl of Haddingloncould not consent to give a silent vote on this occasion, though it was not his intention to go at length into the question beyond making one or two observations; for, indeed, he felt that his noble Friend had completely exhausted the whole subject. He concurred in almost every word that his noble Friend had spoken. He had received no provocation from the other side of the House to enter fully into the matter, and it would be inexcusable in him, after the tone and temper of his noble Friend who had just sat down, if he were to say one word more in reference to the conduct of the Government in not having brought this question to a favourable issue. It was not his wish to throw out any thing in the way of irritating matter, which might prejudice the favourable reception of the measure of his noble Friend. He need not refer to the collision which had occurred between the Church in Scotland and the law of the land,—he would say nothing of the agitation in the country, or of the cause of that agitation, or of the conduct of those who had participated in that agitation; because if he spoke honestly, he might be tempted to say something which might create feelings of irritation. He would say nothing on the subject of the Veto Act, except this, that, from the moment that Act was carried into law by the General Assembly, he had expressed the opinion he now did—an opinion which had been expressed by his noble Friend, that this was, perhaps, the most serious and important

1235
subject the Church had ever entered upon, when, by investing the people with the right to object, without cause being shown, to the presentation of an individual, they did pro tanto abdicate their own functions, and devolve them upon the people. The people were thus called upon to exercise a right on conscientious motives, and with a sense that the person would not edify them; therefore, they were called upon to judge of the qualifications of the individual, and to estop the competent court of the Church, in taking into consideration the ability of the presentee upon trial, and of judging themselves whether he was or was not competent to have the cure of souls. This was a most formidable objection to the Veto Act. He thought the Veto Act unreasonable, and it was really matter of astonishment to him that parties should be found in the General Assembly to acquiesce in it. At the same time, he would observe, that he thought there could scarcely be a greater curse to the people than a system of popular election of the clergy: yet that was a plain, intelligible principle, for the Church maintained its own position. But the Veto Act put the Church out of its own place, and put the people in a false position,—it put them in the position of exercising an arbitrary power. It appeared to him, that the measure proposed by his noble Friend was of a wise and salutary character, and he joined in earnestly recommending it to the Church of Scotland—nay, he earnestly recommended its adoption to all parties in Scotland. If his noble Friend addressed himself to what was called the dominant party, he would address himself to other parties, and would request them to give this measure a favourable and candid consideration, because it left all parties in their proper places. An eminent lay authority, Sir Henry Moncrieff laid down the principle that it was the right of the people to object, and of the Church to adjudicate. This bill had his best and sincerest wishes. He thought that no man would say, that his noble Friend had conceded too much. He hoped that this measure would bring the Church of Scotland out of her present danger and difficulty.
The Marquess of Butefelt grateful to the noble Earl for the introduction of this bill, and hoped that it would have the effect of healing all the dissensions which prevailed in Scotland on this subject. He thought that the majority of the committee of the General Assembly ought not to be
1236
censured for the course which they had taken; this was acknowledged to be a difficult question, and it was more difficult to them than it could be to her Majesty's Government, or to their Lordships, or to any one else. He trusted that the Church of Scotland would receive this measure in that respectful and affectionate manner which it merited, looking at the tone and temper with which it had been introduced. Bill read a first time.