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III. Application to the case of the Gaelic.
On the principles here adopted the search of the Gaelic by the Japanese authorities at Yokohama cannot be justified by the doctrine relating to contraband of war. The ship was not constructively in hostile service like the Orozembo. Her destination was the neutral one of Hong Kong, and the passengers who might be considered as contraband were not booked beyond Hong Kong, if that would have been material. It may be admitted that packages containing explosives or machinery for causing explosion, if carried by them as part of their personal luggage and therefore not appearing separately in the ship’s manifest, must be regarded for the purpose of belligerent rights as in course of carriage by the ship to the destination for which the passengers were booked. If that destination had been hostile, the luggage of passengers might on proper grounds of suspicion have been searched for such contraband articles, as well after it had been left behind as while its owners were in the ship with it, and the ship might on proper grounds of suspicion have been searched in order to ascertain whether any such luggage had been left behind. But these reasons did not apply in the case of the Gaelic's passengers, because there could be no ground for attributing to their personal luggage any destination ulterior to their own. The defence, if any, of the Japanese proceeding must be sought elsewhere than in the rights of belligerents against neutrals on the high seas.
It appears to me that a sufficient defence is not far to seek. The Gaelic was not searched on the high seas but in the waters of the belligerent who searched her. Passengers by her on their way to the enemy with proposals for destroying Japanese ships and means for giving effect to those proposals were self-constituted enemies, although their nationality was neutral. A state has the right to protect itself on its own soil and in its own waters against all enemies, whether they are such by their nationality or by their free choice, and it would be absurd to contend that any other state can make the nationality of its ships or of its subjects a ground for interfering with the exercise of that right.
Lastly, the right of self-protection must cover all reasonable measures taken for that end in circumstances of reasonable suspicion. I think therefore that the search of the Gaelic, and the continuance of that search after the suspected persons had left her in order to ascertain whether they had left materials
machinery for destructive explosions behind them, were justifi
able against every foreign power as war measures. It is another question whether they were justifiable under Japanese law as affecting persons and things within Japanese territory or territorial waters. Even if they were not so, there is probably no government
. which would hesitate to supply by its own action an evident gap in the domestic legislation, and to seek an indemnity from the legislature in due course.
But with that point a foreign power would have no concern.
PENAL SERVITUDE: ITS PAST AND ITS FUTURE.
HE recent discussions on the reform of prison administration
between the law relating to penal servitude and the law under which sentences of iniprisonment are carried out. This contrast will, to some extent, be removed when the new Prisons Act comes into full operation, but it is safe to predict that it will be a long time before all vestiges of it have disappeared, and in the meantime it is of sufficient interest to deserve particular attention. In the law relating to imprisonment we find a great variety of rules laid down in statutory form by Parliament, not only prescribing the mode in which the punishment is to be carried out, but also securing to the prisoner a variety of rights of most diverse character, the right to spiritual ministrations by a minister of his own persuasion, the right to holidays on Sundays, Christmas Day and Good Friday, the right to be fully informed of the rules by which prisons are governed, and so on.
For prisoners under sentence of penal servitude the case is quite different : Parliament has not spoken on the subject of any rights possessed by them ; it has not even given any directions as to the character of the punishment nor laid down the conditions under which it is to be carried out. In the year 1853, the Act 16 & 17 Vict. cap. 99 said that in certain cases a sentence of penal servitude should be substituted for a sentence of transportation; that persons under such sentences may be confined in the same places and treated in the same manner while in prison as persons under sentence of transportation might be treated under the then existing law, that they may be released on licence in the same way as transported convicts were released on ticket-of-leave, and generally that any Acts relating to persons under sentence of transportation should apply so far as it was possible to persons sentenced to penal servitude. But in 1853 ‘penal servitude' was an entirely new term in the statute book : the Act by which it was first introduced gives no explanation of its meaning, nor does it lay down in what respects it is to differ from transportation. The prima facie distinction one would be inclined to draw is that transportation implies a punishment carried out beyond the United Kingdom, while the form of punishment that was substituted for it does not; but as a matter
of fact a number of convicts sentenced to transportation were never sent beyond the seas, while on the other hand for a number of years sentences of penal servitude were in part carried out beyond the United Kingdom, as in the Bermudas, at Gibraltar, and in Western Australia, and the Royal Commission of 1863 actually recommended that all convicts under sentence of penal servitude should be sent to the latter place. In short, the difference between transportation and penal servitude is not really a difference of law, but a difference in the mode of administering the law, and a short review of the different stages in the development of the existing system may be found of considerable interest in more than one respect.
The particularity with which the punishment of imprisonment has been dealt with in the statute book arises of course from the fact that Parliament in that case was, prior to 1877, imposing its will on the local authorities who for centuries had been responsible. The aim of the Prison Act 1865, as well as of the Acts that preceded it, was to amend an existing system by securing uniformity, and introducing in some respects greater rigour, in other respects greater leniency and generosity in the treatment of prisoners by the local authorities. Penal servitude, on the other hand, was from the first intended to be wholly in the hands of the central Government, on whom had fallen by degrees the entire responsibility for the earlier form of punishment which it superseded.
In 1847 Earl Grey, the Secretary of State for the Colonies, and the Home Secretary, Sir George Grey, agreed on a scheme by which a sentence of transportation was in future to mean that the convict should first be kept in separation and at hard labour in a penitentiary such as Pentonville ; that he should then be removed to a prison either in England or at Gibraltar or in Bermuda, where he could be employed on public works such as the construction of docks and harbours; that he should then be given a ticket-of-leave and be sent to a colony where he was to obtain work for himself subject to certain police restrictions; that finally he might be pardoned and become a free man on the condition of not returning to this country. It was, however, found impossible to induce the colonies to absorb the large number of the ticket-of-leave men who had to be disposed of, and in 1853 the Act of 16 & 17 Vict. abolished sentences of transportation eo nomine for any term of less than fourteen years, and provided that in their place sentences of penal servitude for shorter terms should be substituted, that is to say, four years' penal servitude for seven years' transportation, four to six years' penal servitude for seven to ten years' transportation, and so on. Now these shorter terms were the terms for which convicts sentenced to transportation were kept in the first two stages of the
1847 scheme ; and the intention of the Act was therefore virtually that all convicts under sentences of less than fourteen years should in future be discharged unconditionally in this country, when they had passed through the first two stages of their sentence, instead of being discharged on ticket-of-leave in a colony.
In 1857 transportation was nominally abolished altogether, but now for any term of transportation an equal term of penal servitude might be substituted. If the character of penal servitude had remained what it was at first intended to be, the effect of the Act of 1857 would clearly have been to keep all convicts for their whole sentence in the first two stages of the scheme of 1847-an immense aggravation of the severity of their punishment; but this result was prevented by the development of the ticket-of-leave system. The ticket-of-leave had been originally a mere governmental licence to a transported convict to be at large in the colony during a portion of his sentence ; it was recognized by 9 Geo. IV. cap. 83, and 2 & 3
i Will. IV. cap. 62, which limited the power of granting it; but, strictly speaking, it only applied to convicts in a colony, and the period at which it could be obtained depended on the convict's conduct during the first part of his sentence. Power was however taken in the Act of 1853 to grant a similar licence to be at large in the United Kingdom. Though this could be granted to all persons sentenced either to transportation or to any punishment substituted therefor, it was intended at the time to apply to those convicts only who had been sentenced before 1853 to transportation but who could not be removed from this country owing to the difficulty with the colonies about receiving them. They were, in fact, to be discharged in this country on licence under the Act of 1853 after going through the first two stages, instead of being discharged in a colony on tickets-ofleave, as was the former practice; but it was not thought, as a general rule, of allowing the same privilege to persons undergoing the new punishment of penal servitude, this being intended to correspond merely with the first two stages of transportation. In 1857, however, the system of granting licences of discharge conditional on good conduct was recognized to be as desirable in the case of penal servitude as in that of transportation ; in order to allow of this being done the terms of penal servitude which the Courts were empowered to impose, were accordingly lengthened by the Act of that year, and licences were granted under the Act of 1853 for the last portion of the sentence.
Thus since the Act of 1857 a sentence of penal servitude has been essentially similar in character to what a sentence of transportation was after 1847—that is to say, it consists of a fixed period of separate confinement with hard labour, a period of employment in gangs