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where Parliament had but little wish to interfere. While the agitation for prison reform and the unending discussion of the proper mode of treating prisoners in this country was giving rise to one Prison Act after another, the system of transportation developed itself without guidance or directions from the Legislature; and when at length, on the report of Sir William Molesworth's Committee of 1837–8, the hideous abuses connected with it aroused public attention, it was found the system could be wholly transformed without any essential modification of existing enactments. The provisions of the Act of 1824 are substantially those of the Act of 1784 and earlier statutes, and, as we have seen, even the substitution of penal servitude for transportation was more an apparent than a real change in the law as laid down by Parliament.
The numerous statutes relating to transportation passed between 1784 and 1824 are all provisional in character; most of them merely continue the existing law in force, sometimes re-enacting with unimportant modifications, and none of them contain any indication of the process of development that was going on. A list of them is given belowl. The main point of interest is the gradual omission of references to the local authorities as responsible for providing means of keeping convicts at work in default of or pending their transportation over seas. The duty was indeed recognized in some degree by the Acts of 1791 and 1815, but the scheme for State penitentiaries was looked on as more fruitful, and eventually in the Act of 1824 the local prison authorities drop altogether out of the system, and it comes entirely under the management of the Secretary of State.
The places of confinement in this country for offenders under sentence of transportation are to be appointed by the Crown, and convicts are to be sent there from gaol by an order from the Secretary of State and kept till he orders their removal. These places were to be managed by a superintendent, and places outside England could also be appointed by Order in Council for the same purpose which he would equally superintend.
In fact the Government which had already been forced to institute some control over the management of gaols and houses of correction by the local authorities at last assumed definitely the entire responsibility for carrying out sentences for transportation. The Act has been amended in some particulars, but the essential part of the law remains unaltered, numerous and far-reaching as the changes in its application have been. No legislation was necessary when transportation to New South Wales ceased in 1840, nor when Lord Derby's scheme for carrying the convicts of Van Diemen's Land through progressive stages of discipline was formulated in 1842, nor again when transportation to Van Diemen's Land was suspended in 1846, nor when under Lord Grey and Sir George Grey's scheme of 1847 the colony was to receive ticket-of-leave men who had served the first part of their sentence elsewhere, nor lastly when a new penal settlement was formed in Western Australia in 1850. Then the two Acts substituting penal servitude for transportation were passed, but, as we have already seen, they effected no very substantial alteration in the law : convicts under sentence of penal servitude were employed on public works at Gibraltar, Bermuda, and in Western Australia just as convicts under sentence of transportation bad been, while some of them were in later times discharged on licence in the last-named colony, just as formerly transported convicts had been discharged on ticket-of-leave.
| 28 Geo. III. cap. 24; 30 Geo. III. cap. 47; 31 Geo. III. cap. 46 ; 42 Geo. III. cap. 28; 43 Geo. III. cap. 15; 46 Geo. III. cap. 28 ; 53 Geo. III. cap. 39 ; 55 Geo. III, cap. 156; 56 Geo. III. cap. 27; 1 & 2 Geo. IV. cap. 6, and 4 Geo. IV. cap. 47.
The convict establishments in Western Australia, Bermuda, and Gibraltar 1 have been closed, but the existing law would allow similar works to be opened there or elsewhere within Her Majesty's dominions, and would even, it appears, allow any of the schemes formulated in the early part of the reign for carrying out sentences of transportation to be applied to convicts under sentence of penal servitude, should circumstances render such a course desirable. It is not likely that anything of this kind would now be found feasible, but a full understanding of the flexibility of the present law affecting penal servitude cannot but suggest a hope for its further development in the future.
In this connexion the character of the persons to whom transportation at different times has been deemed applicable deserves more than a merely passing notice. As we have seen, it was first recognized as a punishment for persons leading an incorrigibly idle and disreputable life; then for various classes of the community that were at the time considered equally obnoxious and dangerous to social order-moss-troopers, the Irish Catholics of Cromwell's day, rebels and adherents of rebellion at a later period; afterwards for all felons who through the royal clemency or through having a claim to the benefit of clergy escaped the ordinary penalty for felony, but for whom the law provided no other adequate punishment. Hence transportation came to be used as a secondary punishment for the more heinous misdemeanours as well as for felonies whether of a serious or a trivial kind. In our own day
* No convicts have been transported to Western Australia since 1867, to Gibraltar since 1871, or to Bermuda since 1859, though there were of course convicts still serving sentences of penal servitude abroad for some years after these dates.
on indictment of indictable offences
penal servitude is reserved for the more serious crimes, and till
transportation or penal against property.
1 This year is taken instead of 1856, because it is the first year in which the number of indictable charges summarily disposed of can be ascertained. Before 1847 there were no such cases.
least, a doubtful matter; and meanwhile the substitution of sentences of imprisonment for sentences of penal servitude means that less advantage is taken of the opportunities afforded by the law for preventing crime by restraining the criminal. There is good reason for believing that the number of professional criminals, i.e. those who make a living by crime as distinguished from those whose lapse into crime is due to passion or the stress of special circumstances, is constantly decreasing ; but there is at present no prospect of their total or even their approximate extinction, and meanwhile it is clear that there is a growing disinclination to resort to that form of punishment which does most to hamper a career of dishonesty. It would seem that the retributive element of punishment, as opposed to the preventive element, is given more and more consideration ; but if penal servitude is an unreasonably severe punishment for the petty pilferer, to many people on the other hand it seems equally unreasonable to impose on him a sentence of such a kind as has been proved by his past history to be no deterrent and which does not act as a preventive except for a short period. If a man after numerous terms of imprisonment reverts forthwith to dishonesty, it is improbable that a repetition of the punishment will either reform or deter him, while the example of a man repeatedly defying the law for the sake of a paltry gain is clearly not likely to encourage others to respect the law. For such an offender, the only logical alternatives appear to be either to leave him alone altogether, or to pass such a sentence as may prevent him for a long time renewing his depredations on society. We have, in fact, in our professional criminals of to-day a class closely analogous to the incorrigible rogues for whom transportation was first resorted to. If the form of punishment into which transportation has been gradually moulded is better suited for criminals of a specially heinous type than for the poor wreckage of our social system, who form the permanent criminal residuum, is it too much to hope for such a reversion to earlier traditions as may give the Courts of law some other means of dealing effectively with the difficulties presented by this latter class ? A differentiation of penal servitude, by which under that name one kind of punishment might be applied to the exceptional crimes which are the outcome of brutal passion or dishonesty of the more daring kind, while a less rigorous, but perhaps more prolonged kind, might be applied to the incorrigible offender of a lower stamp, would, it is submitted, not only be reasonable and convenient in itself, but would also have a sound foundation in the historical facts we have been above considering. Transportation, in the sense of banishment beyond the seas, is no longer possible or desirable ; but labour on
works of public utility enforced with no more rigour than is necessary in the interests of discipline and economy, would be a form of punishment eminently suited to the criminals on whom short terms of imprisonment produce no effect. The preceding sketch of the past history of penal servitude shows at all events the practicability in the future of a development in this direction.
H. B. SIMPSON.