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

to The opinion of the judges on this que: tien was
• "3 be taken into consideration, for he d:d not agree with
What
es -, was said of these learned functionaries,
-"ule'Y, that their opinion was not to be valued,
because they were men cf such microscopic we
that
they could not comprehend any !treat subject. Ail
the Judges, se eV(
d, 1 seith
ir-c Perr '
Perris, were favonr c t
dared that
re no description r,
of impei-,,ohi,
9wcient substitute for transportation. The :len. Member
jthusenticqe vvrig
quoted the expressed opinion of Lord Denman, Mr.
Inman, Mr. Justice Erle,and the Scotch Judges
Who deprecated the abolition of transportatieti. Le
Ireland to which he would now come, there was no part
o' the United Kingdom where the operation of this
IDeacleasure would be so injurious, se'eere the punish-
ofMee transportation was so tench dreaded. The
Irish Judges had expressed their opini en very
strop,
in favour of transportation In short,
to his mind, no opinion could be so censlusive
against imprisonment as the opinion of Chief Justice
ennefather. He is not merely opposed to imprisen-
theut, but equally agaiust the system of solitary. impri-
a°lllnelit. Solitary imprisonment was, above all, hideous
Bud odious to human nature. He had seen the model
Prison
of Philadelphia, and it disgusted him. The
system
was tried in England with every effort to make it
succeed, and yet what had been the consequences ? 1)r.
°-93' and his colleague report, as the consequences of
the
system, most evident symptoms of incipient insanity,
the first appearance of the mind yielding beneath the'
treatment. In many instances these synaptomi had been
matured into confirmed insanity. This system had been
established in almost every state in America ; it was
popular upon its introduction ; but after having been
!Lied, it was almost universally abolished in favour of the
st'lteennt system. He regretted to hear the Secretary of
.5...""' Say that the Government had determined to adopt
a mode Of punishment the most horrible to
itch, and such as human nature could not
Ou Pport, Why, he asked, if they were to
;VOW the example of America, should they begin at the
e rlang end? Why should this country not pi ofit by the
thloP!rience of America? He had quoted the opinions of
Judges upon the other system, how did they speak in
reference to the silent system? Thirty-one judges had
• ifirteu consulted; twenty-three said they had no means 01
rging of the system; four were adverse, and four spoke
t.cjavour. He was surprised that they could hesitate.
bites facts before them were such as Pentonville exhi- 1
e"'"o, and as had been witnessed among the convict,
-unt out from that prison. Often the physical nature was
Lrostrated--often the mind was debased and brutal-.
blied, if it was not bereft of reason entirely.
t.itust say, that when such evidence lay upon th.
ute, end when he had known of his own knowledge
hatthe separate system had failed in America., he hopee
h
her Majesty's Government would pause before they
eeeosed this silent system upon the whole country ; it
7,941 done in ignorance of the insure of man. When
if3d had placed man in the world, and had tested his
aperiority, he said, " it is not good for man to be
es:le•"•--(Laughter.) He saw some Members inclined
laugh,( he did not think that that was a proper way
treat the authority which he had quoted. He consi-
kvalr that the present proposition was a false step which
to bees made; for a Liberal Government who beasted
thilegard the popular voice, for that Government to
arbilge
trary
a system against the popular wish was a most
"al proceeding. The Right Hen. Baronet had
et th ne,d transportation to be only placing the criminal
etd e disposal of her Majesty's Government. Let them
snit); itulagine a clergyman passing sentence upon a cri-
to at; let him say, you John Thomas have been con-
ottuticted of a heinous crime, and it is my duty to pass
)°u at
the severest penalty of the law, namely, to place
at the disposal of her Majesty's Government. Would
Would
that be a most lame and lamentable conclusion ; ie
Ztlld unsettle the public mind. And if an Irishman
tithe person sentenced, he would say, why such a pa-
ter illleat is not worse than being made a chalk clerk,
ge e is at the disposal of her Majesty's Government.
0711eved that if her Majesty's Ministers persevered.
the " Measure that they would forfeit the confidence of
1/People.
ther. ite •
sus • MILNES supported the Bill; they had tried
%eel. Ystatil of penal punishment in the colonies under.
it seYasP°'6ible phase and they had failed, and th• ref. n
ailitei; Wise in the Government to introducea 1 ee
quell believed that they had tailed in course.
hoitee a the distance of the colony, and not from ans
the
those in office. e he system of assignment would.
wue life-blood of the colony to its very fountain,
edoas the very worst possible regulation that could he
tatired--it was fraught with evil and ruin. mode might might, and did appear to be, a very admirable
tatieccfsgetting rid of offenders in the eyes of toreige
atuteise'uut they soon began to discover thet it let traps!
hut eiSsregard of theinterests not only of the colony itself
the future welfare of the unfortunates themselves
szprweould not detain the House longer, hut conclude to
tlsing his thanks to her Majesty's Government for
tion.attemptThere
to change the present system of transporta
',tatte e Was one subject, however, to which he
d mut to direct the attention of the Right Hon. Gentle-
lihattos Secretary for the Home Depertment, namely,
41141 Waa to be done with those prisoners who ha,
rem gone the full term of imprisonment, and were
Y to be discharged. The number of recommittals
141'4211°st erroneous—many of the prisoners having been
dote? to be recommitted four, five, six, ten, and a
tett,' times, and there had been some cases when
10441olittals had occurred to the incredible number et
°Cetteltites. Surely this was an immense evil, and should
devierY a considerable share of attention, with a view to
atatee 9°llse measure for the prevention of such a
One_ of things. He knew the objections which might
rOught against him with regard to the subject, and
oolthat seemed to have some weight, was, that if they
tlll"oured to improve the condition of the criminal,
,„7,7_Y.Would make his condition better than that of those
FlitlEci% theal drignsugmmaoelunl
et t
„sat
however, premium
(emu
u?ols_St.l committed no crime, and would, in consequence,
it
particle of truth, he thought should
treat those unfortunate creatures nEnamission of crime.
buthteeyveaif
were treated in the other world, whet
ninetyone who
and had
n changed a
wn d from repentant
joyf o r theforthere was _
gh
had his evil courses that,
(Hear, hear,)never gone astray.—
thiswould support the Government in
*measure, and he hoped to see the day when some
furtherc reforms of a more extensive nature would be in-
troduced on the subject of criminal punishment.
irOution of
eial. • P. MILES said that it was net a question of the
transportation, but of the amelioration of
at Punishment, which was involved in the present
Plt auk's, lie considered that the change, at present
i(s),Fosed, Was a hazardous experiment. It became tie-
es ;917, therefore, tor them to consider how the system
hey!ahoy had one system carried out there in 1840. Cap
Ili Macconochie had changed that system for one of
fteZtless and mercy, and that again had been changed
the; "other superintendence by Major Child, so that
htufe Continual changes prevented any plan from having
estha fair trial. In some of these plans the effect was
holder to exclude hope from the criminal, than te
by h,,(31.1t a prospect of his bettering his condition.
old conduct. The Hon. Member for Warwick
tr, an that the judges were against the abolition of
s
thPortation, but he was of a different opinion, and
held n
°tight he could show from the evidence which he
)4his hands that this was not the case. The Hon.
tuber then read the opinions of Baron Alderson.
anon
all of Rolfe, Baron Parke, and Mr. Justice Patterson.
Whom were of opinion that the punishment should
ea carried into effect for aggravated offences and
hid been more
a more serious nature. He wished the question
inteue ea More carefully considered, and that it it wa-
ed to abolish the punishment of transportation, a
thgte d been introduced for that purpose. He thought
to 1:11:oposed plan was adding the premium of cru.
eeee 9„ common offences, and from his own experi-
rapr of the salutary effects of the punishment in
litioneesing crime be could not vote for its abo-
Wh4";*_ prayed the Government to consider
" they were doing, and as long as they had free in-
to?_e,adent labourers, not to employ on the public works
thuneted criminals. The Hon. Gentleman then quoted
the ons of the governors of several prisons, to show
lee 'fleet of transportation as a secondary punishment
0, deterring crime. He did not, however, approve
the entire mode at present adopted, of carrying out
uc Punishment of transportation in the penal colonies ;
but notwithstanding the evils of the system, he thought
the punishment should not be abolished altogether.
Sir R. INGLIS gave the Government credit for the
best intentions in the proposed plan, but he regretted
that this step should be taken without more careful
consideration and somewhat stronger authority to sup-
Port it than had been brought forward. There were
thirteen of the judges voting against the abolition of the
punishment, and he believed Mr. Justice Perrin was
nie,?clY judge who had expressed an opinion in favour
'a abolition of the punishment. The Hen. Gentle
Zan, the Under Secretary for the Colonies had (rioted
oseDPinion of Baron Alderson in favour of the abelition
ansTe Punishment, but he thought that he (Sir R. 11.
th") could show trom his evidence that this was not
saeler' a HAWES said that be had not quoted Baron
rson to that effect.
'att. R
mas INGLIS understood that he had quoted him
enu authority, in favour of the abolition of the punish-
jues,t: At any rate they had the opinions of all the
wit of England and Scotland aeainst the abolition,
thue the exception of Mr. Justice Perrin, and even he
ter:gUt there were tome crimes of an aggravated na-
Rtheir_ulini,yregard to which it should not be abolished.
agreed with the Hon. Member for Somerset-
wilts": that they should not, in consequence of the evils
tie_!uar at present accompanied the system of transporta-
ot`l,ebolish it altogether. The Hon. Member for Man-
de
ueeetSr had stated that his quotation from Scripture had
thug treated with ridicule, but he (Sir R. Inglis) thought
govt tip Could undertake to say, that it was not at the
quoin
an the ridicule was directed, but at the subse-
revert 9PPication of it.—(Hear, bear.) He would now
• again
Judges, an to the opinions and the practices of the
pronounced he would ask could the kites legally
terms ev a sentence of imprisonment for the same
This II":
hue
as they did for transportation ?
!t would Ittyclught was the great practical difficulty.
.atroeueeeu e been far better had this subject been
havevu through the medium of a Bill. He would
beenn the prerogative of the Crown, but it would
Changes More satisfaetery to this country had these
Wit they'll?, Proposed been embodied in a Bill. As it
the dot
h ,re now discussing the subject inferentially
detailaving any opportunity or power of altering
tha of the proposal. There could be no doubt
vice ki.aPtain Macconochie had rendered great ser-
.t.,bee
p.‘tir)ni3thhole ou(n)ftry,train.7,vhrtiastioenfforts to render
enet effective, and
la failure of thecould not
'Jo late st his s existing system
41teen:a9 Land hauri The free inhabitants of Van Die-
tsgo, Inn again
thaet—,against that ciinF and again, pro-,
tee ertminals
.s and being made the depository of
anstrators of
ue adult: of this ceuntry, and the consequence was,
abl the law had experienced consider
truetsdlip_udty in carrying out the prevailing system of
"4"911' R 9 wa* hardly aware how there could

be a division upon this question, hut should it be decided
that there could be a division, he should certainly vote
against the measure.
Sir J. GRAHAM said he had been anxious before
to address the House upon this important subject,
an:l he was on'y prevented from doing so by an ncei-
d-w• !-,•!. b!= fornAe posttioti.
to it;.oat i his ,iihject,
af,,l he tire, p Irnoulaly rtaxious •to
tike part in this debate. In the very outset
he must express his regret, that her Ma-
jesty's Government had not; brought forward this
mi'as,:re in such a form as to give the House an oppor-
tunity of exla-essing• .a direct. opinion upon it. Now,
with regard to the first clause of this Bill, which gave
power to the Crown to transfer the convicts of Treland to
fin, country, he most decidedly objected to it. The
Lord Chief Justice of Ireland had txpressNl himself
azain,t .t, and there could be no doubt that the clause
w:aild prove highly injurious. What effect would im-
pris.nL.not hare upon an Irish convict; but, above all,
what effect would it produce, by lettin,,r• the convict
loose upon society in Irelend after the expiration of his
time of imprisonment.—(Hear. hear.) He entertained
no less objection to the other clauses of the measure,
and particularly to that clause which transferred the pa-
tronage and control of the prisons of this country from
the Secretary of State to the Prison Commissioners. It
would transfer the responsibility from a Member of the
Government, holding a seat in that House, to these
Commissioners, who could not he present in that House
to give any explanations that might be required cf them.
But these matters of detail could be disposed of in Com-

mittee. v The real matter for -them was to
consider the question of transportation (Hear,
hear)—and here he could not bu! join in
the reeret expressed by his Honourable Friend the
Member for the University, that her Majesty's Govern-
ment had not brought this question forward in a more
formal shape. Now with regard to this question of
transportation he must admit that at the time he left
°thee he felt that the period had arrived when it was
necessary, to suspend transportation, at least he felt
that the extent to which transportation had been carried
for the previoue five year must necessarily be sus-
pended. He should, therefore, have been prepared now
to support a plan for suspending that mode of secondary
punishment, but the House was not called upon to
consider the question of suspension. They were called
upon to consider its abolition rather than its suspension,
and lie certainly was not prepared to support such a
proposal.—(Hear, hear.) Before proceeding further he
could not help adverting to a most important topic, to
which his Hon. Friend the Member for the University
nad also addressed himself. What, asked his Hon. Friend,
was the state of the administration of the penal laws
at this moment, upon the due administration of which
depended the safety of life and property in this country?
(Hear, hear.) It had been the policy of modern times
a policy which he approved of—to temper the rigour of
the criminal law—to administer justice with greater
mercy than formerly, and to mitigate the sanguinary
,pirit which once characterised the criminal code of this
country. He might say, speaking generally, that except
in the case of the crime of murder, capital punishment
had latterly been inflicted on no criminal, but he could
riot conceal from the House the fact, that in
proportion to the mitigation of the punishment there
had been a corresponding increase in crime. The
entries which had been prepared by the Home-office,
proved this. In 1829, capital punishment was remitted
with regard to the crime of forgery. In that year the
number of commitments for forgery was 321. In the
year 1841, the commitments were 514, and in the year
1846 they were 706, showing an increase of nearly
double. Tne crime of arson ceased to be capital in the
year 1827. In diet year the number of commitments
ere 31 In 1836 they were 366, and in 1846 they
rose to 581, being an increase of somewhere about 60
per cent. Again, with regard to that remarkably at-
trocieus crime of rape, which ceased to be capital in 1841.
Iu that year the commitments were 319, but in 1846
-hey amounted to 597, being an increase of 99 per cent.
Now did not these figures conviece them that they ought
ro be cautions in their dealings with this question of
transportation ? The only secondary punishment that
emild he sule,tituted for capital punishment was
transportation ter life, and yet the House
was called upon to iiholish even that. What could they
substitute for it ? Nothing but imprisonment and seh-
tary confinement. Bet in the application of selitary
,!,11,finetnent there was required great caution and in-
-psction ; sod even then it must he viewed with some
jealousy.—(Hear, hear.) lie had, therefhre, arrived
et the ceneei-to r that life and property %voted be tem
dered more unsafe than they were at present, if the
punishment of transportation were altogether abolished,
and he seriously prayed the Government and the House
to exercise extreme caution in dealing with this matter
He would wish, then. to ask, should a change like this
e neide unless by Act of Parliament ?—(Hear, hear.)
The Act of the 51). of George the Fourth did not place
any prerogative in the Crown to change the punishment,
but rather left it in its power to superadd imprisonment.
What was the punishment that they intended to adopt
if they abolished transportation ? Lord Denman, whose
opinion had been read to the House, and who also spoke
the opinions of his brethren, deprecated the abolition of
transportation. The Justice Clerk, the Chiet Common
Judge in Scotland, said, that he regarded the punish-
ment as most valuable; that nothing could compensate
col- its loss ; and that it would be most prejudicial to
contract the class of elf -flees to which it was
at present circumscribed. He would not weary the
House by reading the opinion of the Chief Justice of
Ireland. ['he Right lion. Baronet thtn read the opinion,
which stated that he had no obj, ction to employ ing the
criminal upon public works as a temporary expedient.
He considered that convicts of the better class, and those
engaged in unlawful associations, appeared most to dread
it. The plan, since its first introduction, had undergone
a considerable change, for it eves contemplated at the
end of the imprisonment, the criminal should be exiled
under Act of Parliament, but since that part of the sys-
tem had been abandoned, it was useless to argue it far-
her. But very severe observations had been
passed upon Lord Brougham for his speech upon
the measure, but he agreed with Lord Brougham'
and he considered that originally the plan was open
to all the objections which he had urged. Such a
system would have shocked all civilised Europe. Now,
what was the change proposed? "Deportation," why
that would involve all the expenses of a penal colony.
They should have convict establishments, convict ships,
and -convict superintendents. It they adopted the sepa-
rate system, they would not have separate cells to
confine the criminals, for the convictions of even one
twelve months four thousand five hundred separate cells
would hardly be sufficient. But he would go on to
prove that this plan was not new, it had been
tried, had been found to have failed, and did
not prevent crime by inspiring dread.—(Hear, hear.)
and had also been condemned by that House, he would
read to them the opinion of the Justice Clerk, who
reported upon its experiment as made in Perth. The
Right Hon. Baronet then read the words of the Learned
.Judge to whom he referred:—" The separate system
which was at first looked upon with alarm, has now
utterly failed to prevent offenders from again committing
crime." Ile had stated that the plan was not new, that
it had failed, and that it was condemned by that House.
He would, therefore, read the able report of the Com-
mittee appointed in 1832, to report upon secondary
punishment, which condemned the system in very strong
languace. What was the great evil of society in
France ? W hy, this very system of secondary punish
ment, which threw back the criminals upon society after
the short term of their vuhishment. This was admitted
by all her stet, smen and politicians, and they should
take care how they adopted a plan which had
been teund in other countries so prejudicial.

lewould also show the House the danger of precipitate

legislation. It was supposed that the great difficultV
was the want of labour in Van Diemen's Land. He had
received a letter from a person of the highest authority.
who assured him that the want of labour was not at pre-
sent felt, and that in a short time the colony would be
clamouring for more convicts. They might mitigate
the sentence on those who had behaved themselves
well; but what was to be done with those who had
not? Would they imprison them, or transport them for
life? It was a qitestion fraught with the greatest diffi-
culties. He had thought it his duty frankly to point out
the difficulties; and he was perfectly ready to go iuto
Committee with the Bill, and to sugzest amendments
whilst it was in that state, if the Government
would state that during the recess they
would take the whole subject of secondary
punishment into consideration, and bring
formed a measure next session, with the view of pertna-
nentlr settling the nature of that punishment. He was
desirous that the Crown should retain the prerogative
it had liituerto exercised ; but, at the same
time, he was
most unwilling that the law should remain in an uncer-
tain and undefined state ; and, therefore, on this
understanding he should support
importance.
tbe Bill,
though he considered it of minord
compared with the great question involved in this is•
cussion. In bringing forward such a measure he would
gladly give them every facility and aid in his power to
meet the difficulties of the present moment.
Mr. C. BULLER felt at any time and on every suli-
ject great difficulty in arresting the attention of_
f the
House in rising after the Right Honourable Gen-
tlema.n, who, on this occasion, bad brought or-
ward his great experience to bear upon the question
before the House. The measure had been fully criti-
cised, but no lion. Member had suggested a better plan.
But surely no one was so able to deal with the _
sub-
ject so well as the Hon. Gentleman who was connected
ed
with the Government during the administration of
which, all the difficulties with which they were now deal-
ing arose.—(Hear, hear.) The late
.Government sus-
pended transportation altogether, as it was expressly
stipulated that it should be discontinued to New South
Wales, Van Diemen's Land, South Australia—
Lord MAHON—Norfolk Island ?
Mr. C. BULLER—Yes, it was also suspended to Nor-
folk Island. He gave the Noble Lord the full benefit of
that, as he believed no one, after the accounts which had
been received from the island, would wish to see trans-
portation to that quarter continued.—(Hear, hear.) It
was also discontinued to New Zealand, as an express
stipulation was made by the English settlers that no
convicts should be sent there. Well, transportation
being suspended to those places, he was at a loss to know
to what place they could continue to send transports.
The Right Honourable Baronet asked where they
would find cells ? but, in reply, he would also
ask where the Right Honourable Baronet expected
to find cells for criminals during the suspension of
transportation f or two years,as proposed by the late Go-
vernment ? He (Mr. Buller) did not blame the late Go-
vernment for the course they had adopted, but he asked
the House to extend the same indulgence to the present
Government as they did to the Government which pre-
ceded them. When:ho present Government came into
office, they were compelled, without delay, to decide on
the course which they would adopt, and he thought they
acted wisely in acting as they had done. The Right
Hon. Baronet said that secondary punishment should be
brought to > n intelligible point, The present discipline

slisided itself into two branches—imprisonment in this
country, and coercive pueishment in the country to which
the prisoner was taken ; and the Government must prove
that the coercive punishment must be inflicted in ,this
country, and that exile must take place afterwards. The
difference between the Right Hon. Baronet and the GO-
vernrnent was this, that the coercive punishment should
h 2 secondary ; but he (Mr. Buller) appealed to , au•
thorities, to show that the mode of punishment inflicted
in the colonies had utterly and completely failed.' It
was true the old assignment system in New South
Wales possessed much of the reformatory principle inas-
much as it induced habits of industry and self reliance.
The assignment system broke down because it was
found impossible to inflict any punishment on the
labourer so assigned, the employers being naturally
anxious to meet their will in order to obtain as much
work as possible from them, and in consequence of this
the convict became much better off, and more comfort-
able than the labourer in this country, Persons were
induced to commit crime in order to get themselves
transported, fully aware that in that colony their
wants would be much better provided for than
in this country. He would be a bold man
who would now say that the assignment system should
be revived. After the failure of that mode of punish-
ment, a system of coersive punishment was introduced—
Port Arthur, Norfolk Island, the road-gangs, and other
modes. Then, again, there came a universal cry from
this country, and from the colony, praying the House to
put an end to this system of things, and describing the
horrible state of things which existed there. The
revelations from Norfolk Island were horrible
and disgraceful to the British name. Some
of the Honourable Members who had addressed
the House had stated in what mode this system of
punishment could be carried out, so as to avoid these
evils. The Right Hon. Baronet (Sir J. Graham) had
said that the system could be better carried out under
more efficient control and management. Now he (Mr.
Buller) contended that no better class of governors could
be found to perform those duties than had had the
management of this concern. The really great
difficulty of the case was the enormous distance at
which the colony was situated from this country.
It could not be denied that it was an impcssibility to
carry out a system of reformatory punishment in a co-
lony 16,000 miles distant from the mother country. He
said that until the remedy was vouchsafed to them, the
convicts would be better attended at home, under the
eye of the Ministry. They were to remember
that this question affected only a very few individuals
at home, white the arrangement of society was such,
that the colonies of New South Wales, and their other
penal colonies would suffer dreadfully from the infliction
of so great an evil. This was the main ground on which
he rested his objections to the old system; that it filled
the colony with a degraded system of slave labour, and
that at a disproportioned rate. He was perfectly ready
to admit that transportation was a severe punish-
ment ; the real tenor of it was, that the pri-
soner must spend his life, perhaps, in some distant
and unknown country, and if the terror of exile was
the real terror of transportation, then under the present
system that terror would be equally forcible as at pre-
sent. A trightful state of things had been spoken of in
France, as resulting from the liberation of the prisoners
from the galleys, and letting them loose again on society.
But it must also be taken into account that the punish-
ment at the galleys was, with the exception of Norfolk
Island, perhaps the most detestable upon the face of the
earth. When her Majesty's Government had to deal
with this state of things, they were compelled to adopt
immediate measures, and it was necessary to decide at
once what course should be adopted, and he thought
that the course which the Government had taken was a
wise one. The necessity for that due deliberation had
been imposed upon the present Government by the
course taken by the last Government. The proposed
system, if' not a perfect one, at all events went far to
remove some of the evils of the present system.
Mr. FITZROY KELLY said, while the Hon. Gen-
tle/ea', (Mr. Butler) had pointed out many of the evils
of the present system, he had altogether, and
ha regretted to say it, omitted to deal with
the question in its legal and constitutional
character, and he (Sir F. Kelly) felt bound to oppose
the measure in its every stage. The object of this mea-
sure was to substitute for transportation, imprisonment
rf loth terminate period, and then emigration. They
ware at present quite ignorant of the extent of punish-
ment which they were to substitute for the well-known
Punishment of transportation, which was to be exercised
iv the Government, without even the authority
of Parliament. And yet this very power was
to be exercised under an Act of Parliament, the
sth of George IV., but that Aet was passed for quite a
different purpose. and he was satisfied that no lawyer
would stake his legal repute in asserting that Govern-
ment could carry out this measure under this Act.
Had any high legal authority stated that this measure
was legal. There was a clause in the Act of Par-
liament to l•ogalise transportation, and so far from
its being intended that imprisonment or anything
else should be substituted for transportation, he would
show that quite the contrary was the case. Her Ma-
jesty's Government claimed a right, which he contended
was not legal. He would appeal to the House whether
the House should give its sanction to an Act of Parlia-
ment which was in its very nature opposed to all the
previous Acts of the Legislature. The sth of George
IV. was passed with the view of increasing the severity
of transportation, and yet under this very Act Govern
ment claimed the right of abolishing that mode of secon-
dary punishment. A good deal had been said about the
history of transportation, but he would not follow
lion. Members into that branch of the subject. It was
enough for him to know that grave doubts were enter-
tained as to the legality of this measure without going
into the merits or demerits of the punishment with
which it proposed to deal. It was enough for him to
know that the measure was disapproved of by all the
judges of England, Ireland, and Scotland, to induce
him to call upon the House to pause before
they adopted it. But there was another
difficulty in the way of the passing of this
measure. It did not define the nature of the punish-
ment to be substituted for transportation ; and until an
Act declaring what it should be were passed, no judge
of this realm would have power to pass sentence upon
any criminal whatever, who might have subjected
himself to the punishment of transportation.—(Hear.)
He was not prepared to deny that there were at present
many cases punishable by transportation which might
be punished by something less severe. There
were also many cases punishable by death, such
as murder and arson, in which the next severest
punishment to that of death was necessary for
the safety of society. Did they wish to hold
out insto,Kl of the punishment of transportation, an inde-
finite punishment. He called on them to pause before
they gave a sanction to such a measure as this, which
was unconstitutional in all its parts. He should
not feel himself justified in going into Committee
on this Bill, but unless he heard a distinct
pledge from her Majesty's Government that this should
be but a temporary measure; he would oppose -it in its
every stage.
Lord JOHN RUSSELL said, no one in this House
can doubt the great professional ability of the Hon. and
Learned Gentleman who had just sat down, and if this
question was one in which we had to deal with the legal
interpretation of words, I would be sorry to dispute with
thasstHon. and Learned Gentleman. But I must say that
I cannot fail to express my astonishment that the
Learned Gentleman who is so well acquainted with his
profession, in which he has attained so exalted and
deserved a position, should have shown such a
total ignorance of criminal law in this coun-
try.—(" Hear, hear." from the Ministerial benches )
He thought that not many years ago capital punish-
ments, for a considerable number of offences, had been
remitted, and yet it had been urged that such a course
was illegal. And in the case of many of the sentences of
death, although passed upon the prisoners by the Judge,
yet the same Judge immediately after wrote to the Se-
cretary of Srate, representing that it would be advisable
to extend the royal pardon to the prisoner. Again,
w
upon;sin:
uashrrp:eems
hnpsed:aeel
rdft to transportation, why, the Hon. and
Learned Gent)tlo—emrthaen, when Solicitor-General, took it
altogethercu osmm bringingefnord t twh
two
the
e.
e alar ws_ transportationin(tLoauc ni
years—(Laughter,
contempt—
(Laughter)—making poaut
and
Hear,
(Laughter)—making void the sentences of the Judges,
and not even breathing to the Government that the
course he was recommending was unconstitutional and
illegal.—(Hear, hear.)
Sir JAMES GRAHAM explained, that before he
left office transportation had not, been done away with,
and therefore the opinions of the law advisers of the
Crown had not been asked or given.

Lord J. RUSSELL had then been mistaken on the
point But remission of sentences had been practised
during many years, and bad been sanctioned by the
authority and names of the most learned judges. Now,
nothing so well resembled merely detention until they
could be transferred to a fixed place, where they could
be employed upon some public work as this, and the Act
went on to state that they should continue there as long
as one of her Majesty's principal Secretaries of State
shall direct, or until he could be transferred or become
entitled to his liberty, or until his return to prison may
be directed. There he was to remain until the time
when his sentence should expire. What was done under
this Act was this, that those sentenced by the
Judges were sent to the hulks, put to hard labour ac-
cording to a regular system which was adopted; but at
length a period of four years was fixed, at the expiration
of which, if they behaved themselves well, they would,
according to the established practice, receive pardon
from fler Majesty, signed, as usual, by one of the prin-
cipal Secretaries of State, and then the term of seven
years, supposing a person to be sentenced for that term,
was not carried into effect, but considered commuted,
by confinement in the hulks for these four years. This
,y stem had been carried on from 1824 down to 1847,
and during the time when the learned and eminent per-
sons he had mentioned held the office of Lord Chancel-
lor, and during the time many others learned in the law—
being the law officers of the Crown—it came down to 1847,
when the Hon. and Learned Gentleman spoke ; and yet
during all that time no one raised a doubt as to the
practice. And here were judges passing sentences of
seven years, thinking that every man would be sent
to New South Wales.—(Cheers and laughter.)
Well, it was the constant practice for Secretaries of
State—of Lord Sidmouth, Sir Robert Peel, and all
others who had held that office regularly—to set at
nought the sentences of the judges, and to send the pri-
soners , whom they had sentenced to the hulks. His
belief was that such was not the intention of the Legis-
lature, and that it had been carried out by the several
Secretaries of State, the judges knowing what was done;
and he (Lord J. Russell) considered that the Act was a
sufficient authority for its being done. Then the
Learned Gentleman said, " You are making a great
change in the practice, and you nowpropose that there
should be imprisonment for a certain period, labour on
thet
e H
publicoand
Learned Gentlemen called works, an d a ticket of oi
t, to 1
r'e 2,E, il , ' a s
hdistant
1 colony, instead of the ancient:system. Why, he must
say, that he did not believe that the Judge considered