This plan of ridding Society not being found to answer, the next idea which seems to have presented itself to the Legislature was, to send the culprit as far away as possible,—to inflict a political death upon the offender by banishment. There are some crimes which might, we think, be properly visited with simple banishment. The culprit, in that case, is free to live where he pleases, so long as he does not return to infest his own country. This is certainly a cheaper method of getting rid of the bad folk, inasmuch as it saves the charge of transportation across seas, and all future expenses involved in the safeguard or control of the convict. And if the object of the punishment be simply what Jeremy Bentham calls disablement, this end is answered as completely by expulsion as by penal colonization. The only thing to be guarded against is, the clandestine return of the banished party, which would require to be visited with heavier penalties.

But of what is it desirable that Society should get rid? Of the presence of the offender, of the cost of maintaining him, or of the apprehension of his future misdeeds? The culprit is as effectually removed from society by being imprisoned in a penitentiary or a convict ship, as by being sent to Botany Bay. As to the cost, that is not got rid of by his transportation, which is the most expensive mode of punishing him. As to the apprehension of his doing future mischief, if it be merely a question, whether he shall do mischief in this country or in another country, in the moral and political welfare of which we are deeply implicated, and where his evil example would be still more pernicious, surely the changing the scene of his delinquency is not a valid reason for adopting this compromise of punishment. Upon this point, we think there is considerable force in the following remarks, which we transcribe from an article on Secondary Punishments in No. XIX. of the Law Magazine; a Quarterly Journal conducted with much ability. After citing from the Report of the Committee some observations to which we shall presently advert, in favour of this mode of disposing of criminals, the writer says:

Now, in the first place, this argument assumes, that the mother country is justified in sacrificing the interest of the colony to its own interest; that the English Government is not to regard the welfare of N. South Wales, but is free to use it as a receptacle for those persons who are too dangerous to remain at home. Now this is a maxim of colonial government, which, though unhappily it has been too prevalent in many states, we take the liberty of rejecting as both impolitic and unjust. Colonies are subordinate political societies belonging to the society which is their mother country; subject with her to one sovereign power, and equally entitled to its protection and consideration. To establish a colony, therefore, in order to serve as a drain for the impurities of the mother country, is to do an act which no casuistry can defend. Even if it were possible, by founding a new society with

the worst outcasts of a large nation, to exterminate or greatly reduce the body of persons who live by the commission of crime, nothing could, in our opinion, justify such a measure. In a large nation, the discharged convicts, whether criminals or not, could never, under a tolerable penal system, make a large part of the whole population; and if criminals are mischievous when they form a small part of the community, what must they be when they form the whole? But it is not possible to reduce the number of criminals by drafting off convicts to a place of reward; and we may say of transportation without punishment, what has been said of emigration without amendment of the poor laws, that "to attempt to diminish crime by removing a portion of criminals, and yet leaving in full force the most powerful machinery ever applied to the increase of crime, is to attempt to exhaust by continual pumping the waters of a perpetual fountain." There is no doubt that wicked men, intent on the commission of crime, whether they have been convicted or not, are an evil to a country; nevertheless they are a less evil in the mother country than in a penal colony. Poisons which are almost harmless when extenuated and diffused in a large mass, work with a fatal vigour if taken in a concentrated and separate form. Nor is it a simple question of numerical proportion, whether a bad man is more mischievous with ninety-nine good men or with ninety-nine bad men; but the future increase of the one bad man is likewise to be considered. In the midst of a large society, discountenanced by the general opinion, neglected and shunned by their relations and friends, outstripped by the industrious, oppressed with the sense of disgrace, blighted in all their prospects by the knowledge of their dishonesty, rarely marrying on account of their bad character and irregular habits, criminals commonly terminate by an early death their career of riot, dissipation, debauchery, wretchedness, and outrage, and sink into the great ocean of society "without a grave, unknelled, uncoffined, and unknown." Such is the way in which the propagation of vice is hindered in the regular order of society. We, however, in our wisdom, thinking to improve on this arrangement, and too impatient of the presence of the vicious to await their natural extinction, save them from this moral shipwreck, and collect them into one spot, where there is no example to deter, no virtuous public opinion to discountenance, no honest industry to compete with them, no odious comparisons to be undergone; and then, insuring always a regular supply of additional recruits from the gaols of the mother country, like the physical philosophers of antiquity, from this corruption we generate a new society. Law Mag. No. xix. pp. 12, 13.

But it is alleged, (in the Report of the Select Committee, p. 25,) that unless there existed some such mode of disposing of criminals whose offences do not merit the penalty of death, but whose morals are so depraved that their reformation can hardly 'be expected, no alternative would remain between perpetual im'prisonment and the constant infusion into society, of malefactors who, after the term of their punishment had arrived, would again be thrown as outcasts on the world, without character and

' without the means of gaining an honest livelihood.' In answer to this plea for retaining transportation as a secondary punishment, we would remark, first, that this constant infusion into society of malefactors, is going on at a rate which the existence of the penal colonies may, in the first instance, mitigate; but against the proportion which they subtract, must be set the encouragement which transportation holds out to desperate offenders. Of 12,800 persons convicted and sentenced in England and Wales in 1830, it appears that there were

In the same year, there arrived in New South Wales, 3225 convicts, and in Van Diemen's Land 2045; together, 5270. In the previous year, the number was upwards of 5000. It does not appear how these large numbers are produced, since those sentenced to be transported for not more than seven years, are rarely (if ever) sent across the seas; and the numbers sentenced to be transported for a longer period in Scotland and Ireland, were only about 500, making with the English convicts less than 3000. However this may be, the number of those sentenced to be transported for seven years, or to be imprisoned for different terms, from six months to five years, in England and Wales, during the last seven years, is 68,702, or, on an average, 9820 per annum, exclusive of about 5000 committed to gaol, but acquitted or discharged. Here, then, is an infusion of nearly 15,000 tainted, if not incorrigible persons every year into English society, exclusive of discharged debtors and vagrants. To lessen this frightful amount, becomes an object of vital importance; but the question before us is, whether the system of transportation is an efficient alleviation of the evil, or whether it does not tamper with the disease, instead of acting with remedial virtue.

The argument assumes, that those selected for transportation are criminals whose offences do not merit the penalty of death, but whose depraved morals preclude the hope of their reformation. This assumption is erroneous in both respects. The convict, in a large proportion of cases, is one who has been sentenced

to suffer death, and whose offence must therefore be considered as 'meriting death,' as much as any crime short of murder can be said to merit that penalty. But the greatest crimes are not always committed by the most depraved offenders; nor does the crime for which the delinquent is sentenced to transportation, af ford any criterion of the degree of depravity which he had attained, when arrested in his career of crime. It might have been his first offence, committed under the instigation of sudden passion, or the persuasion of more hardened accomplices. The most depraved and incorrigible offenders are often found among those who are continually violating the laws, but who keep clear of the bolder crimes for which the laws have reserved the penalty of death or of permanent transportation. Thus, that very class of malefactors which it is so desirable to prevent being thrown back upon society, for the most part, escape the sentence which secures their removal, and after the expiration of their term of imprisonment, are re-infused into the general mass. It is true, that sometimes old offenders are sentenced to transportation for life, on account of their notoriously bad character, rather than for the specific crime of which they are found guilty. Waiving the question how far this can be considered as a sound principle of criminal justice, we would simply remark, that such old offenders form but a certain proportion of the criminals actually sent out of the country. Thus, some are transported on account of the particular crime committed; some on the ground of bad character or presumed moral depravity. But the latter are as unfit to be selected as colonists, as the former may be undeserving of being confounded with the thoroughly depraved and incorrigible. It is, however, those who are not so depraved as to preclude the hope of their reformation, who would be the most eligible subjects of the experiment of penal colonization.

Transportation, if deprived of its penal character, if abolished as a punishment, would answer well as an expedient for disposing of discharged criminals who had behaved well during the period of their imprisonment. The helpless predicament of such persons on being thrown back as outcasts upon society, without character and without the means of gaining a honest livelihood, render them peculiar objects of compassion and of the wise beneficence of Government. Hitherto, they have been most inconsiderately neglected, till a repetition of crime, under such circumstances almost inevitable, has procured for them the boon of a second sentence followed by their removal. In many cases, transportation, if held out as a refuge to the discharged and destitute delinquent, would be the preventive, instead of the consequence of crime, at a manifest saving of expense to the community, as well as a diminution of guilt in the individual. Surely, the interests of society are better secured by getting rid of those

who, if they remained in this country, would almost infallibly commit crime, than by getting rid of actual offenders. But, in proportion to the facility of getting rid of culprits, will be the supineness that prevails as to the means of preventing or obviating the temptation to the commission of crime. In this respect, as well as in its effect upon criminals who regard it as a desirable fate, transportation, in the present system, has tended to multiply crime.

Society ought to be made to feel the inconveniences resulting from the crime which is the fruit of its own neglect, or of unwise legislation. That the increase of delinquency in this country is mainly owing to the neglect of the means of prevention, will not be questioned by any persons who have competently examined the working of our criminal system. And if this be the fact, a facile mode of disposing of criminals, must serve only to render our legislators and magistrates more indifferent to the demoralizing effects of ignorance and pauperism, of game-laws and trespass-laws, of beer-shops and gin-shops, of sabbath-breaking, of precipitate and unnecessary commitments, of crowded and ill regulated gaols, and of those other defects in our criminal institutions which contribute to the multiplication of offences and the encouragement of crime*. It is not till the question becomes embarrassing, What shall we do with our convicts? that there is any chance of obtaining due attention to what ought long ago to have undergone more thorough inquiry, What are the best means of preventing men from becoming criminals?

One obvious means of prevention, too little considered by our magistrates, is, not to treat a man as a criminal before he is proved to be such, which is the direct way to make him one. The extreme readiness of magistrates to commit, instead of accepting bail, is not only a very principal cause of the increase in the number of commitments, but, in its ultimate consequences, a cause of the actual increase of crime. No one comes out of gaol as he went in, as respects either his character or his position in society. Now we have already adverted to the large proportion which the number of persons discharged by grand juries or acquitted, bears to the total number of commitments. By the general acceptance of bail, the number of untried prisoners might be reduced at least one half, without any prejudice to the interests of the community, and with great advantage to the discipline of prisons. Few magistrates are disposed to accept of bail; and their anxiety to avoid responsibility, leads them to fill the gaols with petty offenders who, formerly, would have been discharged after personal chastisement. Nothing is more easy than to get an offender committed. The ultimate cost to the community of

* See, on the Increase and Causes of Crime, Ecl. Rev. vol. vii. 3rd Series, pp. 313-324.