The Express.
London, England, 1847-06-11 00:00:00

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to wbt wee te he the period of separate confine-
▪ Ile,7eal labour which ho would think a just nee-
▪ „ousted with the sentence of transportation.
aN was short, they. would be in this dilemma—
If would be so. light, that it would be inopeeu-
tM le whilst, fit was long, public opinion
risen" ' it, and it would bo napes.
fa welt WM°
rtlff it into execution. They might =l-
e* ttk.-- ana of imprisonment with regard to
• convErie whom their reformatory discipline had
but what could they do with the incorrigible ?
YiMee";_;:.; on imprisoning them for the term of their
tsuoa-f4l yeas or for life—public opinion, he
would " revolt at the idea. (Hear, hear.) lie was
orn."11•10,,s would be no opportunity at present of taking
of the house with regard to the plan of the go-
ne wmild gladly go into committee with them
t bills with a view to cenridering their delails,
YsWe the hands of the government until another
eat esideration of the great question of secondary
t.°Q.ie they would take all the difficulties of the
wor•"'----wee-sideration' , and then co_ me forw. ard with a sHtetute
• their scheme of secondary punishment. ( ear.)
We C. BT:LLER mould at any time feel it difficult to
tentthe ~tenon of the house after the right hon. gentle-
nitrite bad lost addressed it, but that difficulty was in-
;neat an that occasion from the eminent skill with which
band nested tbe rubject. No gentleman who had cr
i•iebe plan of the government had condescended to tell
tows what better course could have been taken; that,
wog., sight have been expected from a gentleman who
▪ oblymprenoted the government during whom adminis-
Im am all - the difficulties had arisen. (fleet, hear.) The
bee avernment suspended all transportation to Van
mm's Land.
tad MAHON—Not Norfolk Island.
M. C. BULLER would give the noble lord the benefit of
kt he eve thoughteverybody acknowledged that Norfolk
ma ha suspended itself. (Hear, and a laugh.) The
••ateeW ointment decided that the old system of transportation
et continue, and the present administration had
• wide what should take its place. The ques-
ta was regueed to a 'ay simple point. Trans-
consisted in exile from this country, and
pelimerit to the country to which the convict was
igm, The change, as regarded the old system which the
ponment emposed to make, was to inflict coercive punish-
ant in this country, and exile afterwards, the only differ-
anes of opinion being, that the punishment should be in-
teed in die future seat of the convict's exile. Now, he Ap-
r/let M4l taps teens to show that all modes of inflicting
wain punishment in the colonies had entirely foiled.
(goo, boa.) The most plausible method in the old plan
is• tee assignment system, which had the plea of its being
Nesaamoey to recommend it, and the chance which it held
set to the convict of being again restored to society.
net astern had been tried for several years io New South
Wm, and it broke down because it was found impossible
ads it to inflict anything like coercive punishment. Gen-
fl talked now-a-days of the horrors of transportation ;
Ist is the days of the assignment system there were no
Inces attending it. The labour of the convicts was valu-
able. They were placed under masters who had every in-
imement to pay and maintain them well, in order that
they might get from them the greater amount of labour.
It ass declared at that time, and with truth, that convicts
h New South Wales were better off than labourers at home,
sod, that a temptation was absolutely offered to the honest
sea in England to commit crimes, in order to get tran-
sported! In emsequence of the exposure of this evil the
saimant system was ahandoned ; and he would
sak, before he went further, was there any one
in that house who would venture to argue
Clithat system ought to be restored? (Hear, hear.)
Vd, it was then determined to punish convicts by the
011100 system. The judges on their circuits warned the
=al transportation was not what it was, and that the
ts inflicted, instead of being mild, were of the
meat character. The public, no doubt, became impressed
witti the idea that transportation was a severe punish-
ment. But then there came last year all the
midden revelations respecting the horrible evils &t-
-ending that system. They were told from Van Diemen's
Led, that the moral character of the colony was
tiated—that life, property, and character there were alike
exposed to the ravages of the convicts. All those who could
have the colony quitted it : those who could not earnestly
petitioned the government for a change. The revelations
boa Norfolk Island he would not dwell upon: they were
diegraceful to the English name, and horrible to think of.
This coercive system, therefore, was a failure. In the face
ef that failure, was there a single practical sugges.
lion offered in that house as to any mode of punish-
ment by transportation without a recurrence of these
abominations? Not one. Former ministers of the crown who
had watched the system attentively were present, but they
lid no single suggestion to propound. Could there be any
doubt, then, that they believed with him that it was impos.
Ale any longer to retain the system ? There were two all-
nfficient reasons why it must be abandoned : —fleet, it was
Impossible to carry out such a system in countries 16,000
miles away, and where no single resident was interested in
the convict's punishment ; second, it was impossible to
find among the small population of these colonies
'efficient persons willing and competent to carry out
each a system as they required it to be worked. Let them
starve the great practical difficulty thus occasioned. They
amt out their officers from England. A vacancy, occurred.
Who did they find to fill it ? They could not wait to send
WOO miles home for a new officer to come out to there, se
tin place was tilled by tome colonist, probably utterly in.
mmerienced in, and unacquainted with, the duties he was
smiled upon to perform. The system, therefore, was an
im-
wa
dable one; and it was best that, seeing its impractica-
bility, they should meet the task baldly and take the matter
an their own hands as responsible officers of the state.
(Cheers.) But there was another point of view in which
as question had to be considered, namely, as it affected the
Wanes themselves. It was no exaggeration to say that it
Inched the very elements of the society of those countries.
It was an absolute sin towards them and a positive scandal
le this country, that we should pnsist in a system calculated
Is do them so much wrong. It had been said that the pros-
perity of New South Wales was owing to the importation of
convicts, but he believed the fact to be the reverse. He be-
lieved that it had been on the whole detrimental to that
whey, and that, with all its advantages, it had on that ac-
cent made les progress than any of their other colonies,
ant Western Australia. The main ground on which be
Mended the present pin was, that the old system had been
pnjadiciel to the colonies, that it filled them with a bad
visa of slave labour, and, above all, that it filled them
with a bad class of settlers who destroyed the in.
bat society in its very foundation. (Hear, hear.)
BIM now generally admitted that the state of society in I
as colonies ought to reflect the society of the mother
reentry, but it wee impossible that it could do so, or that
the colonies could possess the free institutions of the parent
sentry if one-half the population was to consist of convicts.
It should be recollected that they were not dealing with a
Pine like Siberia, or Labrador, or the Portuguese settle-
mints on the coast of Africa, or the French settlement in
Guinn, but with a place the most available for colonisa-
tion in the whole circle of the British empire. It was •
Mies in which it would be most foolish and wicked to
wake the convicts form part of the society, and rather then
do so the mother country ought to submit to great
inconvenience in keeping them at home. But those per-
Nen would not he let loose on the society of the mother
emery. They would be retained here for a time and sent
lota colonies after they had gone through a reformatory
rem the best that could be devised, which was a very
diffrent system from that which would send them out as
convicts, subject them the degrading influenceselnot to
Norfolk Island, and then turn them loose on society.
(Rea, bear.) He was not inclined to treat with disrespect
the opinions of the judges, but he was not disposed
is place an undoubting reliance on them. It
mu not the custom of that house to refer to
them on all matters of jurisprudence ; and if the
opinions of the judge. had been always followed, their
criminal code would not have been so much improved es it
now. But the opinions of the judges had not been
n on the plan of the government, but on a certain lead-
Eterittittolneywirhioellidhaad been artfhullybpLittioton them,o .namely,
ports-
tiom (Hear, hear.) clurtoleheo goveernament plan retained all
that was really repressive of crime in the pitniehmient of
transportation. The efficacy of transportation consisted in
the terror to the criminal of being separated from all his old
manta •' but, under the plan of the government, that
Baling would remain in the mind of the convict, the only dif.
hence being that he won't' be subjected to a previous imprison-
nest. Hot if it was said that the prisoner's terror of transport*.
tionerose from his knowledge of the kind of society to which he
was to be transferred, end that he was to be placed in • hot-
bol of riot where, bad es he was before, it wee not in human
nature to remistlbeing made worse—where, to use the ex-
C 650 of a convict, ' the heart of a man was taken out of
• and the heart of a beast put into him "—if that was
the kind of tenor and punishment held out to the prisoner,
it wu of a sort that no legislatute had a right to avail them-
selves of it. (Hear, hear.) The system of liberating per-
son from the galleys in France had been, he admitted, most
injurious; but the circumstances of the two countries were
different, and it should be recollected that France
rimmed the worst system of police in the world
toe detecting ordinary crimes, however efficient it may
be for discovering conspiracies and other political
A comparison had been drawn between New
ruPtMales and their North American colonies in the last
century, bat there could be no analogy between sending
6,000 convicts at one time amongst a population of 150,000,
min the case of New South Wales, and sending 1,500
*monists population of between 1,000,000 and 3,000,000, as
era the cue with their North American colonies in the last
century, He begged the house to recollect that the govern-
ment were forced to immediate action, and that they were
mile on at once to decide what they would do with their
criminals. It was said that they were making the sentence
Mrftaneportation uncertain, but it was uncertain for the last
twenty yearn and ten years ego, when a person was sentenced
ttrateliertation for seven years, he was never transported at
all,
the punishment being undergone in the hulks min prison.
He thought the government had pursued the wisest course
*Pen to them. It would have been a greet evil at thdriod
to enter on a discussion of the general statute law regulating
mmdate punishments, and it was far better that e cape-
riment should he tried under the authority of the old law,
than that a bill should be brought in which would require
amendment next year. The right hon. gentleman had asked
tore Pledge as to the next lemon. In substance, a pledge
had been given, and it had been stated throughout that the
government would consider itself bound to bring the whole
mevenom of secondary punishments before the house in
et 'mien. The government plan removed many of the
mils n
or the old system. It was neither a return
to the assignment astern, nor to the execrable system which
had been put an emits, in Norfolk Island and Van Diemen's
'And and, whatever might be its merits or demerits, it
would be minimd into effect under the vigilant superinten-
delse of the ministry and of parliament. Of this, at least,

he felt confident, that the plan of founding • new penal
colony would never again be resorted to in this country.
Sir F. KELLY said he felt such insurmountable objec-
tions to the measure, that anima he received • pledge far
more
eatedis,tiact and specific than that given by the Judge-
Advtiate, he should oppose it in every way that the forms of
the house would permit. (Hear, hear.) It was a proposal
to set aside transportation, substituting for it a system of
punishment whirls was not at ell defined; and the plan
would be carried into operation without the contest of par
Lament. Before the change was made it would be well to
consider whether or not it wee legal. (Hear, hear.) At
that moment there existed Many acts of parliament re-
quiring the infliction of the punishment of transportation.
The measure was proposed under the authority of the 5
Geo. IV., c. 54. He contended that that act was
passed for an entirely different purpose ; and be would
ask whether any one legal authority, in or out of the cabinet,
had pledged his reputation to the legality of the scheme ?
(Hear, hear.) Why, singularly enough, the act which he
had mentioned was entitled, "An Act for the trans-
portation of offenders from Great Britain." (Laughter.)
It was on a single line in the 10th section of
that act that the proposers of the measure relied.
Now, at the time this act passed, nobody dreamed of •
scheme like the present. It was then intended merely that
prisoners under sentence should remain in the hulks until
they could conveniently be transported to their ultimate des-
tination. The expressions of his right hon. friend the mem-
bee for Tansworth used at the time the act was passed,
showed that nothing was farther from the intentions of the
legislature than that any system of imprisonment should be
substituted for transportation. And yet it was under that
act that the ministers of the crown, without the semblance of
legal authority, sought to establish a system opposed to the
tenor of • hundred acts of parliament. Ile would warn
ministers against adopting this extensive change, feeling
as he did, thatit was not sanctioned by the highest legal au-
thorities inthe country. They might find themselves in this
predicament—that if they sought to substitute a term of im-
prisonment for transportation, they might have every cri-
minal applying for his writ of habeas corpus, and
obtaining his liberty under it, in consequence of the ille-
rdity of the government plans. The act to which he had
before alluded, had been referred to as sanctioning the abo-
lition of transportation. He did not mean to deny that trans-
portntion was accompanied by, many evils ; but they were not
evils entirely without remedy. They had the evidence of I
Sir G. Arthur and other persons high in colonial authority,
to the effect that an increased number of superintendents,
and separate apartments for the criminals, under rigorous
surrnsion, would remedy most of the evils at present ex-
isting. The right hon. member for Tamworth, in intro-
, ducing the 5 Geo. 4, expressly stated that the object of that
act was to make transportation a more severe punishment
than it had hitherto been, and Mr. Wilmot Horton added
that it was intended that it should be a real and severe
punishment. His opinion was, that to sabititute at the will of
the government any system of punishment for transportation,
was to act in direct violation of the spirit of the constitution.
If it were not so, what was there to prevent the government,
in the same manner, abolishing capital punishment in all
@sass ? The great object of all laws for punishing crime was,
dad their operation should be immediate, direct, and certain,
Ned however much legal authorities might differ as to capital'
t, all agreed that, for certain crimes, transports.
laimtte best mode of punishing. What more unjust or
=fair position would there be to place the judges in, then
that, when they were called upon to pass sentence an era
offender, they should not know what the punishment would
be, or how to admonish him? (Hear, hear.) No
doubt there were cane now punishable by transportation
which it would be better to punish by imprisonment, with
or without herd labour, but there were other crimes in
which but in the punishment of transportation there was
so security against their frequent commission. In cams of
anon and attempts to murder, crimes which perhaps d►
served the punishment of death, and were by the law es
but which from some mitigating circumstances
It be per not to carry out that sentence, but in
whiVtihe infliction of the next severest sentence was still
muired—how, he asked, were these to be dealt with ?
Were the criminals in such eases to have held
ant to them that, if they escaped death, their penhh-
mit should be not transportation for life but same-
I thing unknown—something undefined ? He called epos
the house to pause before they affirmed a change abolishing
transportation, which, in effect, it did, a change unconstitu-
tional in the whole, and in all its parts. He should not feel
justified in voting against going into committee ; but, melees
he should obtain a distinct pledge that this was • mere tempo-
nary experiment, and that the measure would be
forward in some distinct form as • bill for
consideration of the legislature at a future time, be should
feel it his duty to oppose these bills, in whatever form and
at whatever stage they might present themselves. (Hear.)
Lord J. RUSSELL mid : No one can doubt the great
professional ability of the hon. end learned gentleman ; and,
was this a question in which we hail to deal merely with the
legal interpretation of words, I should feel altogether unequal
to address the house after him ; but, sir, I can only ex-
press my astonishment that an hon. and learned gentleman so
well acquainted with the profession of the law, and of such
eminence in its practice, should have shown himself so totally
ignorant in respect to the administration of the criminal
law. (Hear, hear.) Any one would have supposed from
the statement of the hon. and learned member, that the
judges of the lend pronounced certain sentences on offenders
and that shoe, sentences were exactly and literally, c
into effect, and that whether the sentence was death or
transportation, the execution of it immediately followed ;
and the hon. and learned member has told the house that
such is the dreadful consequence of our unconstitu-
tional course, that capital punishment may be done
away with by the act of the executive government.
The hon. and learned gentleman ought to have been aware
that capital offences, one after another, had been done away
with by the recommendation of the judges, or by acts of the
executive government, long before any act of parliament had
passed for their repeal. There is hardly an offence I can
name in which that has not been the ease. There are many
offences for which,when I was Secretary of State for the Home
Department, and since, the judges had no sooner pronounced
emeence, than they expressed a desire that it should not be
seeded into effect; and yet the hon. and learned gentleman
tells us that the criminal law of the country will be turned
into ridicule if the sentences so pronounced be not carried
into effect; and that in the case of transportation, such a
MEM will be unconstitutional. V hy, sir, it his
menantly been the practice within the last 25 or
30 rats to set aside sentences of transportation. When
the right hon. gentleman the member for Dorchester was
secretary of state, he ordered certain prisoners so sentenced
to be sent to Peetonville, and there confined for 18 months,
and I, as one of the commissioners of that prison, asked the
right hon. gentleman to allow a great number of the pri-
a ,ners to receive conditional pardons on arriving at the
colony—the very thing that is now protested against, the
seventy of the punishment being carried into effect here,
' and the mitigation taking place at the colony. In the course
of last year, the hon. and learned gentlemen, being Solicitor-
General at the time, the right hon. gentleman took upon
himself to advise the Crown to suspend transportation for
two years, to suspend altogether the law which ordered
transportation for some hundreds of offences. The law
was then turned into ridicule, and the venerable judges were
made a laughing stock of, for pronouncing sentences which
were not to be carried into effect ; and yet the hon. and
learned solicitm-general never whispered kt the Home Gill Ise
that the right hon. gentleman was tilting ea nassaatitatimsrl '
and illegal course. (Cheers and kwatifieS4
Si, J. GRAHAM aid that before's@ bit alba
ton bad not been sueraded, and no opportasagiVri-
oren
afforded to the law of of the crown to give ea opinion
on it. He had certainly ememinended such a coarse to his
8110001110 r.
Lord J. RUSSELL preeemissi to show that detaining
prisoners in hulks had boa a milks seastiessed by Lords
Eldon, Lyndhurst, Brougham, emillOgNembem. and directly
sanctioned by law. He could resift met in me other way.
After the American war there wee an end of transportation
to our American colonies, when it task place to New South
Wale'. In 1815, an act was pried empowering the Secre-
tary of State to send persons senteseed to transportation to
certain places of confinement within Ids country, there to be
kept until their sentence was carded lain sleet Tbs kidery
of that eat and subsequent champs eale that dun gasser
dderable difficulty in disposing of wows Issopmessi ts 1
oar colonies. Lord Bathurst had been eo =esed id* I
the difficulty, that he desired toloand anew
=
of lead to those who would take a stabs° =
In this distress aid act woe
to ad of 1824, edriallartilarsi it to be
=it, by a warrant from his Misty, to appoint
picas of confinement in Raging and Wales,
. either
on land or in versa lying in the Moms and other rivers, for
the confiniment of male offender ease seneemo of trans-
portation. What took place under that act way that nearly
all, and at some periods all, the poises seamed to only 7
Teats' transportation wen sent to the blabs god put to hard
labour according to the reinter system 3 isi at tie end of a
fixed ppesririod of four years if they hobos& well they received,
aeeoaßng to the established predbm a pardon from his
ffiejsety, signed by one of the Seaside& of State, the whole
term of transportation for seven yeenbeing thus commuted
to a sentence of confinement on board the hulks for 4 years.
Such was the • from 1824 to 1847, with the learned Per-
sonages he mentioned holding the office of Lord Chancel-
lor, many others equally learned in the law being law officers
of the crown, and ne one of them, until the hon. and learned
gentleman opposite spoke that evening, had raised a doubt
upon the subject. Thus it had been the constant practice of
theSeenWj of State to set at nought the sentences of the
judges ; any such he (Lord J. Russell) believed to have
been the intention of the legislature, for the judges
were aware of what was done, and considered
the net of parliament sufficient authority for it.
So mast esy he did not believe the judges ever content.
pilled or intended to define the system when persons were
asnimmed to be taken to the colonies. It was impossible,
lossmns the system wee often changed; at one time it was
Soo arm= of assignment, and that was not constantly
for at Bermuda they were employed in hard labour
larllt arbour, which was • different punishment, and the
Odom when they sentenced two persons, one of whom
liana mat to Australia and the ether to Bermuda,
amilemeed them to different punishments. He (Lord J. ,
ilawell whoa he was in office, put an end to the system
of
5ub.4.00
and Lord Stanley substituted for it an
sae
of probation on the public works;
but Om motemee of transportation was never
edt
the emessfew sidle judges were the fame, and the act of
pediment was set altered. Yet the hon. and lusted
gentians selidne after all these changes to have a system
whir& eassided pertly of confinement in this country, end
partly of a ticket of leave in the colonies, was wholly uncon-
stitutional if not illegal. One system might be easier and UM
efficacious than another ; but he (Lord J. Russell) was unable
to conceive that one was more unconstitutional or illegal
than another. The tickets of leave did not permit those
who held them to travel whithersoever they liked, but it was
a system of severe restriction, like that of assid
gnmitent. It
was different to oils or banishment, an might