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introduced this Bill, but he begged to suggest to that right hon. Gentleman, that inasmuch as there were only six clauses in it, and three of them were highly objectionable, while other three of them would not be pressed, it would be better to withdraw the Bill, with the view of re-proposing the remainder of it in conjunction with what was unobjectionable in the existing Act, in order that there might be one clear and uniform enactment upon the subject of penal servitude.

to place him in society again? If his re- | liberty of the subject. The Home Secreturn to society was to take place in this tary, no doubt, deserved thanks for having country, he thought, at all events, they ought not to place in their way every species of obstruction, every artificial difficulty, to crush their spirits, cause them to be dogged by the police, and make them feel at every turn that they were not free citizens, and had but little chance of obtaining employment. By discharging a man under surveillance, you destroyed his power of acting for himself, giving him the impression that he was watched by the police wherever he went, and that he bore about with him in his pocket the sign of his degradation in the shape of a ticket of leave. What, then, could be the object of retaining this system? He did not wish to see the criminal deprived of all hope should his conduct be such as to merit favourable consideration; but was the ticket of leave the only means by which this hope could be kept alive?

SIR G. GREY wished it to be understood that the omission or retention of these clauses would not affect in the least the prerogative of the Crown in the remission of sentences. The only question was whether that remission should be absolute and complete, or whether power should be taken in certain cases to make it subject to certain conditions.

MR. BRISCOE said this was no question of political bias; it was one in which all parties must feel an interest; he hoped, therefore, that the right hon. Gentleman would yield to the opinion so generally expressed on all sides of the House, and expunge these clauses from the Bill. Surely the Secretary of State would rarely act on these clauses if carried. People had not been influenced by " panic" or "prejudice " on the subject, but had just ground of complaint. He knew several cases of hardship, having originated from its being known that men had tickets of leave.

MR. COLLIER said the question had been put upon a false issue. It was not whether the ticket-of-leave system should be retained, but whether the Crown, having already the power of granting an absolute pardon, should have the power of granting a conditional pardon. That was the whole question. The ticket-of-leave system only applied to persons committed before 1853, and would soon expire by efflux of time, nor was it to be continued. But, as sentences were to be longer, the question was as to conditional pardon. He was quite certain the system was not likely to be carried to any great extent, and under proper judicial management, and with certain checks, it might be an efficient instrument for good in the hands of the Secretary of State. Under these circumstances, he thought it would not be desirable to affirm the proposition of the hon. and learned Gentleman, that the Crown should not have the power of granting conditional pardons.

MR. ADDERLEY asked whether Her Majesty's prerogative would not be more freely and usefully exercised without these clauses? Was not the whole merit of the pardon lost as regarded the Crown, while, at the same time, it was granted in a manner least to the advantage of the prisoner and of the country at large? The Secretary of State had at present, according to his own showing, the power of remitting a sentence, and he had better not fetter his power by the retention of these clauses. There was no doubt that, whether with or without reason, the ticket-of-leave system had occasioned the greatest panic throughout the country, and he thought this furnished sufficient ground for condemning it. The most objectionable and unconstitutional part of this Bill was that which would enable the Home Secretary, upon mere suspicion, on his bare ipse dixit, to MR. NEWDEGATE said, the Governrevoke any of these licences to convicts, ment asked a wide extent of discretionary and order the re-apprehension of the sus-power-a power to transport prisoners or pected man without any inquiry into the not, as it might appear proper to them. truth of the information given to him. An arbitrary system of that nature would be a heavy blow to the administration of justice in this country, and dangerous to the

That was a great power to trust in their hands, of saying whether "penal servitude” should mean transportation or not. As the country was naturally jealous of this

extension of arbitrary power, he did not think that, in requiring the relinquishment of the power of granting revocable licences a power which had been already used most mischievously to create a servile class, hon. Members at all attempted to trench upon the Royal prerogative.

and his friends in court who were listening to the trial. In confirmation of this opinion, the hon. Member quoted the evidence given to the Committee by Mr. Justice Erle and Mr. Justice Cresswell, and the same fact, he said, was testified to by Sir Matthew Barrington and Mr. Justice Maule. Yet the Bill proposed that, for the future, it should not be in the power of the Judges to pass that sentence which they regarded as the most effectual. He objected to the clause on another ground. It transferred to the Executive Government a power which, in his opinion, ought to belong to the judicial officers only; namely, that of selecting the proper subject of transportation and deciding which should remain at home; and, although we had every reason to expect that the power of transporting criminals would be exercised with impar

LORD NAAS said, that in the Committee on this subject last year, he had proposed the abolition of the ticket-of-leave system, which probably would have been carried but for the absence of some Members. The Committee proposed that all sentences of penal servitude should mention a minimum and maximum period, so as to give the prisoner the stimulus of hope and an inducement to good conduct. The ticketof-leave system was impracticable, and could only be enforced by most obnoxious means, and an objectionable system of espionage on the part of the police tiality and a strict regard to the interests because, in nine cases out of ten, the holders of tickets of leave destroyed their tickets, because they were badges of disgrace, and facilitated their re-apprehension. You might as well tie a mill-stone round a convict's neck as discharge him with a ticket of leave. It was proved that in only two cases had the licences been revoked, except on re-conviction. It could not, then, be necessary to retain the power, which "stank in the nostrils" of the people of this country.

MR. BERESFORD HOPE denounced the arbitrary discretion of the Home Secretary, and contended that legislation was wanted for a grave subject, and that it was unwise to keep up the unpopular system of ticket-of-leave in exceptional cases, which had proved to be a great failure.

inserted."

Question put, "That those words be there

The Comittee divided:-Ayes 83; Noes

173 Majority 90.

Clause agreed to.

On Clause 2, (sentence of transportation abolished, and sentence of penal servitude substituted).

MR. S. FITZGERALD said, that he rose to move an Amendment. It was contemplated by the Bill that transportation should still exist, but that it should form no part of the judicial sentence. It appeared to him (Mr. S. FitzGerald) that the actual passing of the sentence of transportation was of the greatest importance, and all the evidence given before the Committee last year bore testimony to the deterring influence which that sentence, judiciously delivered, had upon the criminal

of the public by the Minister of the Crown, yet it was a dangerous power to leave in his hands. If a selective discretion were to exist at all, it ought to rest with the Judge who tried the case, and who was acquainted with all the circumstances. It might be said that the Judges, if the power were left in their hands, would pass sentence of transportation upon such a large number of persons that the executive would be unable, for lack of penal settlements, to send all the convicts out of the country. He did not think, however, that there was much in that objection, because, if it were well understood by the learned persons who administered the law that the power of sentencing to transportation was retained in their hands solely in order that it might be exercised in great and important cases, he felt quite certain that they would not abuse the discretion thus given to them, or pass the sentence upon a greater number of criminals than the Government would be able to transport. Under these circumstances, believing as he did that the discretion to be given to the Government to be too extensive, he should conclude by moving the omission of the words, "no person shall be sentenced to transportation."

SIR GEORGE GREY said, that in opposing the Amendment, he wished to remind the Committee of the present state of the law. By the Act of 1853, all sentences of transportation for less than fourteen years were abolished. Above fourteen years and up to sentences for life diseretion was left to the Judges. Many of the Judges, no doubt, were of opinion that

the sentence of transportation had a very would be liable to be destroyed at the dis1 deterring effect, provided there was a per- cretion to be thereby vested in the Execufect conviction in the minds of those who tive. He thought, therefore, that it would heard it pronounced, that it would be car- be wise in the Committee to adopt the ried into execution. But the fact was Amendment of his hon. Friend. that a Judge, when he sentenced a man to transportation, was utterly at a loss to know whether the sentence would be carried into effect or not. Even before the passing of the Act of 1853, as he had stated the other night, a large proportion of the sentences of transportation were not carried into effect-in fact, not more than a third were executed, and there was a conviction, founded upon experience, growing up in the minds of the people, that it was a mere chance whether a sentence of transportation would be carried out or not. Now, what he proposed was, to render every person sentenced to penal servitude liable to the same consequences as he formerly would have been under a sentence of transportation. According to the present Bill a Judge would not be able to distinguish between two criminals, by sentencing one to penal servitude and the other to transportation; he would be obliged to sentence both to penal servitude, telling both that the sentence involved their liability, at the discretion of the advisers of the Crown, to all those consequences which the sentence of transportation formerly carried with it. He admitted that the discretion sought for by this Bill was a large one to ask for, but it was not larger than that which had been exercised of late years owing to the pressure of circumstances, and he believed that, as the sentence of penal servitude could be always literally carried into effect at home or abroad, it would produce a greater certainty of punishment and might be advantageously substituted for a sentence which had nothing certain about it, which could not in all cases be executed, and which, therefore, had lost more than half its ter

rors.

MR. PACKE said that, remembering the deterring effect of transportation, it was a serious thing to do away with the sentence of transportation. He rejoiced that capital punishments had been so much diminished of late years; but was there not some danger of increasing the inducements to crime by doing away with the punishment next in severity? He should wish to see the sentence of transportation for life allowed to remain in many grave cases. He feared too, that, if the clause were agreed to, sentences passed by Judges

SIR JOHN PAKINGTON said, that the explanation of the right hon. Gentleman had not quite removed the feeling of apprehension with which he regarded this portion of the Bill. He did not wish to impede the passing of the Bill, and he would admit that some of its provisions were essential to the administration of justice. It might be necessary, and he was perfectly willing to entrust the Executive with considerable power and discretion, but the present Bill gave them so much that he was afraid the effect would be to embarrass courts of justice in passing sentence. As he understood the Bill, it was proposed to restrict the Courts to passing sentences of penal servitude only; but in passing such sentences, Judges would not have the least knowledge whether the person sentenced would be kept in England or sent to Bermuda, Gibraltar, or Western Australia. Might not this uncertainty create some difficulty in the mind of the Judge? Suppose he thought a sentence of six years' penal servitude a proper punishment for a particular offence. A sentence of imprisonment, however, in England was one thing, and a sentence of transportation to Western Australia was another. In the one case, a man would be released in England and would return to his friends; in the other, the probability was, that the man would pass the remainder of his days in that country. Even in the case of transportation to Gibraltar or Bermuda, the punishment would not be the same as imprisonment in England. He doubted whether the House were not about to transfer to the Executive the functions of the Judge. The right hon. Gentleman stated on a former occasion that it was his intention to issue instructions to guide courts of justice in passing sentence. Would he have any objection to state what the nature of these instructions would be, as he should like to hear their nature and to know the plan by which the right hon. Gentleman proposed to relieve the embarrassments which Judges would feel in carrying the Bill into effect.

SIR GEORGE GREY said, he had intimated that if the present Bill passed, it would be quite right that regulations should be drawn up, which should be communicated to the Judges and those filling judi

cial offices, detailing the nature and consequences of the changes made in the law, and enabling them to explain to the prisoner the nature of his sentence. They would explain, for example, that a certain portion of the punishment would in all cases be undergone, and that the prisoner would also be liable to removal to a penal colony at the discretion of the Home Office. It would be impossible, however, to state what would be done in each case, because this would depend on circumstances that would be brought to the knowledge of the Executive Government after the sentence was passed, with reference to the physical capacity of the prisoner and other circumstances. Every approximation to certainty would be made, but he was afraid that it would be impossible, by any fixed rules, to enable the Judges to know what the sentence in each case would actually be.

MR. VANSITTART said, he could not but protest against the language of the clause. Public opinion had strongly declared itself against the system of tickets of leave -against the system of throwing upon the country a number of felons and convicts after a limited period of imprisonment, who must necessarily betake themselves to their old haunts and associates. He was aware of the hopelessness of continuing the discussion after the division that had taken place, and would therefore confine himself to expressing his belief that we had plenty of places to which convicts might be sent.

LORD ADOLPHUS VANE-TEMPEST said, that they had now abolished the system of transportation. [Sir GEORGE GREY: No, the sentence.] Well, then, the sentence of transportation. Still he could not understand how-when there were 20,000 criminals sentenced every year by the Judges, and 70,000 others sentenced upon summary convictions-a simple proposal to send out of the country 400 or 500 of the best behaved of our convicts could settle the question of how we were to dispose of a criminal population which amounted annually to nearly 100,000 persons. Sentence of transportation had been spoken of as calculated to produce an extremely deterrent effect upon the offender, but to show that such was not always the case, he might mention a circumstance which took place at the assizes in Durham, at which one of the most eminent of our Judges Justice Cresswell presided. A criminal had

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been convicted before the learned Judge, and had been sentenced by him to a certain period of penal servitude, whereupon the prisoner threw a boot at his Lordship, crying out, "Here goes for over the water!" The whole court was, of course, in a state of the utmost excitement. The learned Judge himself fell back in his seat in a fainting condition, but had immediately, with a degree of courage which was only equalled by his ability, roused himself up and doubled the sentence, so that the gentleman did not obtain his wish to go over the water. So much for the deterrent effect of the sentence of transportation.

He thought that there had been undue haste in passing this Bill into a law. The true principle was, that a prisoner's labour ought to be remunerative. It only remained for him to say, that if the hon. Member for Horsham went to a division, he should vote against the Amendment.

MR. MILLS was understood to say that he would support the clause, believing that it mattered little in what shape sentence might be passed, whether of penal servitude or transportation. He thought that the chief element to be considered was the certainty of the punishment, and that it was of little consequence whether the hard labour imposed should be required to be done in this country or abroad. A considerable discretion as to that might be safely left in the hands of the executive.

MR. PULLER said, he was reminded of a letter of King Charles II. to Lord Chancellor Clarendon, in these terms:

"As for Sir Harry Vane, if there be any honest way of getting rid of him, he is too dangerous a man to let live."

--

So he would say If there were any honest way of getting rid of criminals, they were too dangerous a set of men to let remain in this country. But it must be an honest way-honest towards the criminal, and honest towards the colonists, for in dealing with this question of transportation there were two classes whose interests were entitled to particular considerationnamely, the convicts themselves and the people among whom they were to be located. We ought to endeavour to reform our criminals, but he must, at the same time admit, that he had no great faith in any system of reform, so far as related to our adult population. He felt it, however, to be the imperative duty of the Legisla

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ture to provide that criminals should not, after the expiration of their period of sentence, be placed in a position in which it would be difficult for them to abandon their evil course of life. The means of effecting their return to the paths of virtue by enabling them to enter into a population of which they constituted the great minority, as under the old system of transportation, was nevertheless evidently at present impossible, except to a limited extent, while, as far as the Colonies were concerned, it could not be denied that it was unjust to them to force a great number of criminals upon them. It was stated that the proposed law would create uncertainty as to what sentence was passed, but certainly not in a greater degree than the existing law; and it would be understood that the sentence of Penal Servitude exposed the criminal to be transported to any place beyond the seas to which the Crown might be advised to send him.

The Amendment was then negatived without a division.

SIR G. GREY said, he was ready to adopt the suggestion which had been made, and fix the minimum period of the sentence of penal servitude, in lieu of seven years' transportation, at three years instead of four years.

MR. S. HERBERT thought it would be as well that the sentence passed should be pronounced in the alternative either in England or the Colonies as Her Majesty should direct.

SIR G. GREY said, that the alternative was expressed in the Act, but that it might be desirable when the sentence was passed to point out clearly the alternative punishment to which the criminal was liable. He would, however, consider the suggestion.

MR. NEATE observed, that under the previous Act penal servitude did not extend to the whole period for which a prisoner was sentenced to be transported, but under this Bill the two terms were made equal. Consequently, unless the penal servitude meant by this Bill were something different from the former, the present measure would indirectly aggravate the severity of the penal code.

Clause agreed to. Remaining clauses agreed to.

House resumed. Bill reported; as amended, to be considered on Monday next.

House adjourned at a quarter after
Twelve o'clock till Monday next.

St. James's Park-Question. 380 HOUSE OF LORDS,

Monday, May 18, 1857.

MINUTES.] PUBLIC BILLS.-1a Dulwich College. 2a Probates and Letters of Administration.

THE IMPROVEMENTS IN ST. JAMES'S

PARK-QUESTION.

THE EARL OF MALMESBURY said, he wished to put a question to the noble Earl the President of the Council in reference to those alterations made in the piece of water in St. James's Park, which he had before brought under the notice of the noble Earl. Their Lordships would remember that on Friday night the noble Earl had founded his justification of those alterations principally, if not exclusively, on sanitary considerations, and he wished to know whether his noble Friend would have any objection to lay before the House any correspondence which might have taken place between the Board of Health and any other public department with respect to the sanitary condition of St. James's Park, or any official document that Board might have issued recommending such steps as those which had been taken in that quarter by Sir Benjamin Hall. It appeared from the reports published in the public press of the statement made by his noble Friend on Friday that Sir Benjamin Hall had received no authority from Parliament to carry out those changes. Now, if that right hon. Gentleman had acted in the matter on the urgent recommendation of the Board of Health, such a fact would, no doubt, furnish a partial excuse for engaging in that work without the consent of Parliament, but would afford no ground for throwing the cost of the undertaking on the national exchequer. As the sanitary laws at present stood works similar to those going on in St. James's Park, were executed throughout England at the expense of the local proprietors. In the city of Salisbury, works of a precisely similar character had been constructed out of purely local rates, which amounted to not less than two-thirds of one year's rental of that city; and, in other places, the burden had fallen very heavily on the owners of property. He did not propose to go into the argument about the recreation of the people and the adornment of the metropolis-it would be childish to suppose that he was not as much in favour of such things as anybody

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