Sitting of 15 February 1849

Preamble
Notice taken that forty Members were not present.
House counted; and forty Members not being present,
The House was adjourned at ten minutes after o'clock.

MTUTES.
PUBLIC BILLS.—1a Protection of Women.
2a Bankrupt Law Consolidation; Criminal Law Consolidation; Larceny Acts Amendment.
PETITIONS PRESENTED. From the Bath Church of England Lay Association, against the Endowment of the Roman Catholic Priests in Ireland—From the Cuckfield Union, for certain Alterations in the Law relating to Beer Licenses.—From the Cairn Kon Shannon Poor Law Union, complaining of the Inefficiency of the Poor Law (Ireland).—From Sandhurst, for the Adoption of Measures for the Suppression of Seduction and Prostitution.

BANKRUPT LAW CONSOLIDATION BILL.—CRIMINAL LAW CONSOLIDATION BILL.
LORD BROUGHAM LORD BROUGHAM moved that these Bills be now read 2a; but the observations of the noble Lord and some remarks of the LORD CHANCELLOR were inaudible.
Bills read 2a

LARCENY ACTS AMENDMENT BILL.
LORD CAMPBELL LORD CAMPBELL moved that this Bill be read 2a.
The MARQUESS of SALISBURYopposed the Bill, as taking away a discretion which ought to be left to the bench of magistrates. He thought that the doing away with transportation would leave the penitent offender in this country in the power of his former accomplices.
The DUKE of RICHMONDconcurred in the views expressed by his noble Friend (the Marquess of Salisbury); and he called upon the noble and learned Lord opposite to state what punishments were to be substituted for simple larceny, if that of transportation were abolished. He also thought it desirable that the House should be informed what were, and what were not, the offences to which it was proposed to extend the operation of this Bill. None
744
were named in it. Whatever punishments were enacted, they should be made certain; for, at present, the Secretary of State continually exercised a power of revising or commuting any sentence for larceny which he might think either too heavy, or not expedient. He suggested that as the Bill was evidently in an imperfect state, it should be referred to a Select Committee.
LORD BROUGHAMagreed with the principle of the Bill, and observed that, whatever alteration was made in the existing law, nothing should be done to make transportation, which, under certain circumstances, was a valuable order of punishment, an infliction upon the colonies. Convicts might safely be sent to infant colonies; but as those colonies became more populous and advanced in civilisation, it should be modified or discontinued. He objected, however, to the Bill being referred to a Select Committee, on the ground that sufficient evidence had been collected upon the subject by the Select Committee on Criminal Law which sat two years ago.
LORD STANLEYdefended the local magistracy both of England and Ireland from the inference that they had evinced a disposition to sentences of transportation for larcenies unnecessarily'. The whole subject, however, in his opinion, required more consideration than appeared to have been given to it by the noble and learned Lord; and he could not avoid saying that more care ought to have been taken to point out the statutes which it was proposed to amend or repeal. He thought, also, that the Bill should not have been introduced without Her Majesty's Government, at the same time, making some distinct enunciations of their intentions with respect to the much larger question of transportation. That subject now stood in a most unsatisfactory condition. It was made to appear by the official returns that the number of persons sentenced to transportation was very great: but any one relying on this would be very greatly deceived, for not in one case out of ten, or perhaps not in one out of twenty was the sentence carried into actual effect. Now, it was a matter of great importance that all classes should know that, when once a sentence was pronounced, it would inevitably be carried into effect. But the present state of the law placed the Judges in a very unpleasant situation in this respect. They were in the habit of enlarging upon

745
the enormity of the crime committed by the offender who had been convicted, and then sentencing him to transportation for seven or fourteen years, or for life; yet it was known at that very time that the sentence would not he carried into effect, and that, by an abuse of the dispensing power of the Crown, it would be set aside for some other punishment. He could not help thinking that after the experience that had had of the mode of carrying out sentences, and of altering those sentences at the discretion of the Secretary of State, that the time had come when the law and the discretionary powers of the Home Secretary ought to be more clearly settled and defined; and ho, therefore, wished to ask whether it was the intention of Her Majesty's Government, in the course of the present Session, to make any statement to the House, or to introduce any Bill, with the view of more distinctly settling the law with respect to transportation, and of defining the powers of the Secretary of State? He also desired to ask whether the Government intended to adopt any new system with respect to female convicts, for one of the great evils arising from transportation of late years was the great accumulation of males in the penal colonies. So far from the transportation of females being productive of inconvenience or evil, their presence in the colony—subjected as they were to probationary discipline—had been productive of much good. He wished to know, therefore, whether it was intended still to submit female convicts to probationary discipline previous to transportation, and to transport them in greater numbers than males? There was another point to which he begged the attention of the noble Lord the Secretary for the Colonies. At the time when he (Lord Stanley) filled the office which the noble Earl now held, it was determined to establish a penitentiary in Van Diemen's Land, in which every female convict should pass the earlier period of her term of punishment, and who, according to her conduct in the penitentiary, should be placed in the higher or lower rank of service; and that no time might be lost in carrying out this plan, an old 74 or 80 gun ship—the Anson, he believed, was sent out, and temporarily fitted up as a floating penitentiary, to which every female convict was sent, in order to pass a certain probationary period. The period, however, which was found practicable was too short; because the accommodation the ship afforded being too small—
746
not sufficient to hold half the number of females who were transported in the course of a single year—the period of probation was consequently limited to six months, which was not long enough to create effectual reformation. He had been much misinformed if it were not the fact that striking benefits had followed from the establishment of this floating penitentiary, under all the disadvantages to which it was subjected. But he had been also informed that it was the intention of Her Majesty's Government to abandon this principle altogether, and to send out female convicts, if they were sent out, subject to no preparatory or reformatory' discipline. He hoped to hear from the noble Lord that he had been misinformed upon this subject. He understood, too, that the person who had the superintendence of this female penitentiary, and who was now in this country upon leave of absence, was under an apprehension, though she had no direct communication with the noble Earl, that her services were about to be wholly discontinued, if the establishment was to be abolished. He begged also to ask for some explanation upon this subject. The person in question had been principal matron at Hanwell Lunatic Asylum, and had proved herself both there and in Van Diemen's Land, a most meritorious public servant; and if his information was correct, it would be only just that some provision should be made for her In conclusion, he must express his belief that a great work of humanity might be combined with a great political advantage by continuing female transportation to Van Diemen's Land, subject to such reformatory discipline as was applicable to their several cases.
EARL GREYwas sorry this conversation had occurred to-night, because there were papers now in preparation on the subject of transportation, which he hoped to be able to lay on their Lordships' table to-morrow, and which, if he had held them in his hand, would have enabled him to speak with greater confidence upon this question. At the same time, he was sensible that the subject was one which was not unnaturally brought under their consideration with reference to the Bill before them; and, as it was one which justly excited the greatest interest, not only in then Lordships but in the public, he felt that, after what had been, already said, it was necessary for him briefly to state what had been the measures adopted by Her Majesty's Government. He would

747
only express his hope that, as he was about to speak from memory of the purport of a voluminous correspondence, extending over many months, of which he had not the advantage of having refreshed his recollection, as he would have done had he expected this discussion, their Lordships would pardon him if on points of detail his statement should not be free from error. The noble Lord opposite (Lord Stanley), at the commencement of his speech, had said that he did not ask him (Earl Grey), because he knew what would be the answer, whether he still held exactly the same opinions upon this subject which he had expressed before the inquiry entered into by a Committee of their Lordships' House. The noble Lord was, however, mistaken as to the answer which he (Earl Grey) would have returned to this question. With regard to the main principles of the policy which Her Majesty's Government had announced their intention of adopting with reference to transportation, his opinions certainly had undergone no alteration; but with regard to the practical measures to be adopted in carrying that policy into effect, he admitted that the result of the important inquiry which took place two years ago, and in which the noble and learned Lord opposite (Lord Brougham) had taken a very active part, had been to convince him that a very material modification of the measures originally contemplated was advisable. So far as regarded the more strictly penal part of the sentence of transportation, he meant that part of it during which convicts were subjected to forced labour, he still believed, as he always had done, that this part of the punishment could be inflicted with far better effect in this country than in colonies so remote as Australia. It was an advantage of the greatest importance that in this country the working of the system was under the immediate eye of the Government, so that any faults which might be detected in it admitted of prompt correction; and that it was far easier to secure the services of efficient officers to be placed in immediate charge of the convicts at home than abroad. It was shown by experience to be a serious practical difficulty in the management of convicts at so great a distance as the Australian colonies, that the Governor, exercising only a delegated authority, could not venture to dismiss officers who had been sent out from this country, however satisfied he might be of their inefficiency, unless that could
748
be clearly established to the satisfaction of the Home Government, to which those who are so dismissed invariably appeal; and also that when such dismissals do take place, from the very limited number of persons of the requisite qualifications to be found in the colonies, and the high rate of remuneration which the services of such persons command there, it is scarcely possible to make a satisfactory arrangement for filling the vacancies so occasioned, without sending to England, and consequently the loss of a year or little less. He also continued to think it desirable that convicts sentenced to transportation should eventually go to the colonies, in which there are far greater facilities than in this country for their regaining their former position in society. But the result of the inquiry conducted by the Committee of their Lordships' House, to which he had already adverted, and of the additional information which had been obtained from other sources within the last two years, had led him to modify very materially his views as to the manner in which convicts under sentence of transportation should ultimately be sent to the colonies. Their Lordships might probably recollect 'that when this subject had occupied their attention about two years ago, he had stated that the intention was, that convicts, after having undergone a preliminary punishment at home, should be sent abroad as exiles, subject to no restraint except that of not being permitted to return home. Instead of that, it was now proposed by Her Majesty's Government that while convicts should still undergo the earlier part of their punishment at home, or at Gibraltar and Bermuda, they should afterwards be sent to the more distant colonies, not as exiles, but as the holders of what were technically called "tickets of leave." Those of their Lordships who have attended to this subject were aware that convicts who hold tickets of leave remain entirely under the control of the Government; they can be ordered to remain in any particular part of the colony which may be appointed for their residence, and they can thus be kept at a distance from the towns, and from the temptations which they would there have to encounter from bad company, and from the easy access to public-houses; they could be required to attend periodical musters, to ascertain that they complied with the conditions thus imposed upon them; and they can be punished for violating those conditions or for any other mis-

749
conduct by being sent back to confinement and forced labour; but while they behave well and comply with the regulations, they are left in the practical enjoyment of freedom. He thought these were important advantages; and he believed, that if convicts, after undergoing a proper system of reformatory punishment at home, were then placed under these regulations in the colonies, being dispersed in the remote districts where the population is exceedingly scanty, where their labour is most useful, and where they are effectually removed from their former vicious associations, it would be found in a great majority of cases—he was sanguine enough to believe in 99 out of every 100—they would once more become useful members of the community. He thought this expectation was justified by experience as to the effects of the former system of assignment by which convicts used to be dispersed through the colony as assigned servants. Vicious as that system was in many respects, and justly as it was upon the whole condemned, still it was no doubt attended with this advantage, that when a convict was so fortunate as to be assigned to a good master, he generally turned out well, and that very many thus became eventually useful members of the society in which they were placed. With these views the manner in which Her Majesty's Government proposed to carry into effect the sentence of transportation was as follows:—It was proposed that every male convict on whom this sentence was passed, whether for seven years or for any longer period, should eventually, if his health fitted him for transportation, be removed to one of our distant colonies as the holder of a ticket of leave. It was intended that every such convict should in the first instance pass a longer or a shorter time in separate confinement either at Pentonville, Wakefield, or in some other prison conducted upon this plan. The experience which had been obtained of the results of the system of separate confinement continued to be highly satisfactory; and it was found that criminals who had undergone this discipline, when they were afterwards sent to the public works at Gibraltar or Bermuda, did not forget the impression which had thus been made upon their minds, but generally conducted themselves better than those who had not gone through a similar preparation. It is further proposed, that after having passed in prisons, conducted upon the plan of separate confinement, a certain time—which would in no case
750
exceed eighteen months, and would generally he limited to twelve months or less, because experience was believed to have proved that this system of discipline was too severe to be continued without risk for a longer period—convicts should then be sent to some establishment where they could be employed on useful public works. Such establishments now existed at Gibraltar, at Bermuda, and another had just been brought into operation at Portland. In those establishments the system of employing convicts had been greatly improved of late years; and he believed (he spoke from memory, and might very probably be mistaken as to the amount) that at Gibraltar the average value of the work actually done by each convict in the year exceeded thirty pounds, while the expense of their living and clothing, not including their lodging or superintendence, was, he thought, about half that amount. Her Majesty's Government proposed to form, if necessary, additional establishments of the same kind, whore convicts might be employed to work in association. The duration of their punishment was intended to depend upon their conduct, of which a regular record would be kept, in order that the time of their release with tickets of leave might be determined accordingly. From these establishments, convicts were to be sent to more distant colonies with tickets of leave. When they reached the colonies, they would be dispersed as much as possible through the country, the great object being so to scatter them as to render it difficult for them to renew their previous acquaintance with each other as criminals. It was farther proposed that convicts thus sent abroad with tickets of leave should not be allowed to receive conditional pardons until they had repaid from their earnings a certain portion of the cost of their conveyance to the colony. Their Lordships were no doubt aware that the expense of transporting convicts was considerable; and he would take this opportunity of remarking that the noble Marquess opposite (Lord Salisbury) had fallen into an error a few nights ago, in calculating the cost of transportation from the cost of transporting emigrants. The fact was that the expense of sending convicts was very much larger, as the ship had to be fitted up as a prison, and a guard had also to be provided. It was not, therefore, proposed that the whole cost of their removal should be required to be paid by convicts from their earnings before they could receive conditional par-

751
dons; but as a general rule it was intended that those sent to Australia or Van Die-men's Land should be required to pay 15 l. each—the Crown, of course, at all times having the discretion of remitting these payments if it should be thought proper to do so. The object of imposing upon convicts the necessity of making this payment was less any pecuniary gain than the moral advantages which were anticipated from it. Under the former system, when convicts were sent as exiles, subject to no restraint, it had been found that they were exposed to temptations from which it was desirable, if possible, to protect them. During the previous period of punishment having been accustomed to have no money at all, it was too violent a change for a convict suddenly to find himself, from the high value of labour in the colony, in possession of a much larger income than he had enjoyed in any previous period of his life. The temptations also to which he was exposed, were increased by the cheapness of spirits in these colonies. Hence he thought that it would be a great moral advantage to the convicts, that they should have a strong motive given to them to save a portion of their earnings in order to obtain conditional pardons. This farther advantage would also result from the measure, that it would probably tend to diminish the objections which would otherwise be entertained by the colonists to receiving convicts among them, for it was intended that the sums recovered from the convicts, instead of being applied towards repaying the expenses incurred by this country, should be added to the funds applicable to emigration, in order that by increasing a free and wholesome emigration the moral evils which would result from sending convicts alone might be neutralised. He had already observed, that with a view to the ultimate reformation of these unfortunate persons, the Government had considered it advisable that they should be dispersed over as wide a field as possible, and for this purpose various colonies should be opened for their reception. He had accordingly entered into correspondence with the Governments of several colonies to which convicts were not now sent, and more particularly New South Wales and the Cape of Good Hope. From the Government of New South Wales, he had received a despatch transmitting resolutions adopted by the legislative council of that colony, in favour of again receiving convicts on certain terms. The terms pro-
752
posed were such as it would not be possible to accede to; but still from the correspondence which he should to-morrow lay upon the table of the House, their Lordships would perceive that he considered himself justified in sending, for the present at least, a certain number of convicts with tickets of leave to that colony. With regard to the Cape of Good Hope, he considered that the dispersion of the population over so very extensive a territory, and the great demand which existed for labour, afforded peculiar advantages for the reception of convicts. He was, however, sorry to say that he had received from the Governor information that the announcement of the intentions of Her Majesty's Government on this subject had given very great dissatisfaction to the colonists. But he confessed that while they were only required to receive a very moderate number of convicts, who had undergone a previous course of reformatory discipline, this was a service which the colonists could render to the mother country without any real injury to themselves; and considering what this country had done for the Cape colony, he thought they had a right to expect that it should not refuse them this assistance. He could not forget that in the last Session the British Parliament had granted above a million of money for the extraordinary military expenses of the Kaffir war, in addition to the heavy charge of the ordinary pay of the large number of troops employed. He therefore thought that after this country had made such sacrifices in favour of one of the colonies, when the colony in its turn had an opportunity of rendering a great service to us without injury to itself, it should not refuse to do so. Accordingly, as very great difficulty had of late been experienced in disposing of the increased number of convicts sentenced to transportation. Her Majesty's Government had thought it right to direct that 250 convicts who had undergone a preliminary punishment at Bermuda, should be sent to the Cape; and orders to that effect had not long since been issued. Having thus explained the general nature of the measures which had been adopted, he begged to observe, with reference to the remark of the noble Lord opposite (Lord Stanley), as to the necessity of some legislative sanction for the policy which had been adopted, that these measures were strictly in conformity both with the letter and with the spirit of the existing law. The system of punishment

753
was precisely that which Parliament had originally contemplated by transportation. That punishment consisted in exile combined with forced labour. It had lately been the practice to subject convicts to forced labour in the colonies, allowing them at the expiration of a certain period to obtain tickets of leave. The only alteration proposed was, that in future the period of labour before obtaining tickets of leave would be passed in this country, or at Gibraltar, or Bermuda, instead of in Australia; but convicts would still ultimately be sent to the colonies. This was strictly in accordance with the law. Various Acts of Parliament had expressly provided that convicts might be sent to the colonies at any period, and that they might be kept at hard labour in establishments, either afloat or on shore, for the whole or any part of the time for which they had been sentenced, as the Government might think proper. Indeed, not many years ago, it was almost the invariable rule to send, not to the colonies, but to the hulks, convicts sentenced to only seven years transportation, and after four years servitude they were generally discharged. He now came to the case of female convicts. He agreed with the noble Lord (Lord Stanley) as to the distinction to be made between male and female convicts. There was much less objection to sending female than male convicts to Van Diemen's Land. It was also more necessary to do so, because there was more difficulty in making any arrangement for the preliminary punishment of females at homo. The Pentonville system was found to be one to which females could hardly be subjected; and any system of discipline which had hitherto been tried for female convicts associated together in considerable numbers had failed to produce satisfactory results. With regard to the Anson, to which the noble Lord had adverted, he was sorry to say that it had proved a complete failure. Both the lieutenant governor of Van Die-men's Land, and the comptroller of convicts in that colony, had expressed the strongest opinion to this effect; and the establishment for female convicts on board the Anson was accordingly to be broken up. He believed that the failure of this establishment was in a great measure to be traced to the disadvantages to which hulks were always exposed. Experience had proved that a floating prison was the worst of all prisons, both for discipline and economy.
754
A hulk cost much money both in fitting up and in repairs, while the space which it afforded was far too confined either for discipline or for ventilation. Hence it was the object of the Government, everywhere, by degrees, to get rid of hulks, and to transfer the establishments to buildings on shore. With regard to females, it was also the decided opinion of Sir W. Denison, in which he entirely concurred, that any period of imprisonment to which they were to be subjected, should be inflicted upon them rather at home than in the colony, in order that the system might be closely watched, and that any defects might be promptly and speedily remedied. At the same time, punishment of transportation did not require in the case of women, so much as in that of men, that it should involve anything beyond mere removal from this country. It was in general a far greater punishment to a woman than to a man to be placed in the disgraceful position of a convict, and to be sent away from her friends and relations; and he, therefore, thought that, even if female convicts were allowed to receive tickets of leave very soon after their arrival in the colony, there would be little danger that transportation would not still be regarded by them as a very severe punishment; while to male convicts transportation would be no punishment at all if they were at once sent to the colonies, and then allowed to receive tickets of leave. The case of female convicts was altogether one of very great difficulty, on which he did not feel that any final determination could yet be come to. It was a question for consideration whether Parliament ought to be asked to extend the means of subjecting them to an effective prison discipline in this country; but in the absence of proper prisons for this purpose, he believed that the best that could be done was to allow women who were transported to obtain tickets of leave on their arrival in the colonics. He had only to add, with regard to Mrs. Bowden, to whom the noble Lord had alluded, that he was fully aware of her claims upon the Government, and that when the establishment on board the Anson was broken up, some provision for her ought undoubtedly to be made.
LORD CAMPBELLreplied: He would say, that, with regard to this Bill, it had been brought in after great consideration and prepared with great care.
After a few words from the EARL of

755
MOUNTCASHELL and the DUKE of RICHMOND,
Bill read 2a.
House adjourned until To-morrow.