self, and whose ruined character excludes him from the chance of honest employment,-such a miserable being is not punished by being sent to a foreign land, where a plentiful subsistence is provided for him, on the condition of labour according to his ability. In the latter respect, England acts on principles more just and beneficent than Russia, the only other European country now in the practice of banishing criminals. It is understood that those who are exiled to Siberia are left to shift for themselves; but England incurs enormous expenses in her convict colonization; and, indeed, whatever may be the cost, no other course would be consistent with humanity. If we were to conceive the debarkation of five hundred of these unhappy people on the arid sands of Australia, there abandoned to be starved in the forests, or to be butchered by the natives, we should be shocked at a measure so cruel. It would be inflicting the punishment of death in its worst forms; and in the substitution of protracted agony for the expedition of the gallows, the petty thief might regret that he had stopped short of actual homicide. But it does not follow that the nation which transports and provides for them, and gives them the opportunity, during a certain term, of acquiring habits of honest industry, and which, moreover, is ready to grant to them a reasonable portion of land upon which to improve and settle themselves, if they ever become reformed, is under any moral obligation, at the expiration of that term, to earry them back to the place from which they came. If they have become truly reformed, they possess the means of subsistence in the foreign place;-if they are not cured of their vices, it would be injurious and absurd to bring them back to pursue the same career, and to be again convicted and transported. Whatever may have been the case in the first instance, those who sin since the system has been fully established, cannot complain, inasmuch as all the consequences were publicly known when the offence was committed.

The practice of banishment, as part of the scheme of civil society, is interesting. The right of a nation to diminish its own numbers by expelling an individual for a reasonable cause, cannot be denied. It is only necessary that the right should be previously understood on both sides, so that those who become subject to it should not be punished on a retrospective law. Aristotle holds it necessary for the preservation of equality in a republic, that those who acquire great wealth, and collect around them a number of partisans, should be banished for a term of years. In Athens, we know that it was occasionally practised on this principle, grossly indeed perverted in one signal case. Among the Romans it was not customary, prior to the time of Augustus, to banish to any particular spot. În certain crimes of a high nature, the offender was forbidden the use of fire and wa

ter, which was understood to be equivalent to depriving him of the necessaries of life, and withholding from him all intercourse with society. Banishment was then elected by himself, as a relief from this severe punishment;-he left Italy, that he might continue his existence, though with diminished comfort, in a distant place, either beyond the reach, or with the connivance of the Roman government. The passage in the oration pro Cæcina will occur to our classic readers:-"Exilium non supplicium est sed perfugium portusque supplicii-cum homines vincula, neces, ignominiasque vitant quæ sunt legibus constitutæ, confugiant, quasi ad aram, in exilium." But Augustus introduced the banishment to a particular place as a positive penalty; and Ovid may have been the first victim under the new system. Every one knows how laboriously Seneca endeavoured to persuade his mother that banishment to the rough and sterile rocks, the intemperate climate and barbarous inhabitants of Corsica, was not a punishment. The philosophy which enabled him to support such a contrast with the unmeasured luxuries he enjoyed at Rome, would not in any eminent degree be called into action on the part of him who left meanness and poverty and persecution in London, for protection, moderate labour, and certain subsistence in Australia.

In our country, banishment is legally unknown. If offences are committed against the United States, they are punished in the ordinary routine of fine, imprisonment, and death. It is with regret that we include the last mentioned as a part of the ordinary routine; but the Acts of Congress are not remarkable for their mildness, and the ease and prodigality with which this extreme punishment is distributed among so many of the codes of Europe, have been too closely copied in American legislation. It would be impossible for the legislature of the United States to incorporate banishment to any particular spot, into their penal system. We have no colonies, and perhaps we never shall have them. At any rate, ages must roll by, before our extensive territory becomes so overstocked as to occasion the formation of colonies for want of room within our own precincts: and within those precincts, no spot can be appropriated as a receptacle for convicts. As population extends and labour cultivates, equal rights are acquired in a definite relation to every part. The expense alone would be an insurmountable objection. The British procedure in this respect has cost them, since 1787, not less than 15,000,000 dollars. An inland position would require a greater and more constant military power, than one like theirs, very distant, and accessible only by sea. If indefinite banishment were substituted, it would, in the present state of society, be a breach of the tacit obligations of one nation to another. It would be to do indirectly, what cannot be done directly. As no sovereign

nation can be required to receive the criminals of another, it follows that it is not consistent with the principles of the laws of nations to send them. A compact between the nation in which the crime was committed, and the offenders themselves, that the latter would remove, and reside in another nation whose consent had not been previously obtained, would not only be insulting but illegal. It is so grossly wrong, that it is now seldom attempted. We are of course not to be understood to speak of those who, in great political revolutions, obtain leave of their successful opponents to remove to another place. Such persons are conceived to be tainted with no other offence than that of political dissent. To such men, this country never has refused, and perhaps never will refuse an asylum.

If banishment to a particular place, or banishment generally, is thus prohibited to the collected states, it is much more inconsistent with the powers of the states separately. In relation to foreign countries, all political operations belong exclusively to the general head. In respect to sister states, there are certain obvious duties and obligations not expressed in written constitutions, but arising from the nature of things and the principles of our political union. Every state is bound to abstain from all unnecessary violations of the internal interests and peace of the others. It has no right to transport into their bosoms any number of criminals however small, because it is more convenient to do so than to retain and punish them at home. A pardon on condition that the convict shall leave the state, is therefore a breach of the social compact among the states. If the place were specified, it would shock the mind at once. If Pennsylvania were to pardon a malefactor on condition that he removed to and remained in New-York, the people of the latter would justly exclaim at it as an outrage. If the governor of New-York were to grant his pardon on the general condition that the individual should leave the state never to return, and if that individual selected Pennsylvania as the theatre where he could reside with impunity for the past, and where, if his disposition continued to be the same, he could repeat the same enormities, the grievance would be the

same.

If the legislature of any one state should make provision for this species of banishment, its laws would be a violation of the social compact, and substantially inconsistent with that clause in the general constitution, which compels the surrender of fugitives from justice, on the demand of the state in which the offence was committed. As it cannot, if it would, afford protection to the fugitive, it ought not to be expected to receive him. It is true, that each state is at liberty to pass laws, prohibiting persons of this character from entering its limits; but the execution of such laws would be difficult, and the conduct of no state ought

to impose upon others the necessity of passing them. These remarks, and others, which, if it were convenient to enlarge on the subject, might be added, will apply with more effect to the executive authority of any state, which, without the sanction of a law, adopts a measure of this nature.

The English practice in regard to transportation, is not traced further back than the reign of Elizabeth; her successor, James, pursued the same course; and the "hundred dissolute persons," who in 1619 were sent out to Virginia, are said to have been accepted by the colonists as a favour. From that time, till the commencement of the war which terminated in our Revolution, the American colonies became the constant receptacles of these outcasts, sometimes received with submission, and sometimes with murmurs and a feeble opposition. But when our provincial dependence ceased, it became expedient to provide another outlet; and the flattering picture drawn by captain Cook and his scientific companions, of Botany Bay, determined the ministers to select it as a deposit. The inhabitants did not appear to be numerous or civilized; little serious opposition could therefore be expected: the country was fertile, and the harbour believed to be commodious. Towards the close of the year 1787, an expedition was fitted out, and six hundred male and two hundred female convicts, embarked under the direction of governor Philip, provided with every thing necessary to their immediate sustenance and protection, and intended to form the foundation of a future colonial settlement. In January 1788, they arrived at their destined port; and it was a curious circumstance, that, exactly at the same time, the accomplished and unfortunate La Peyrouse, who had been despatched by the French court with two ships on a voyage of discovery, arrived at the same spot. Some time was unavoidably spent in fixing on a suitable position for the new colony, (for which, Port Jackson, a few miles further, was preferred to Botany Bay,) in clearing the ground, erecting necessary buildings, and converting the heterogeneous mixture of convicts into tolerable labourers. From the brutish, degraded natives, no permission to land and to settle was asked, and no serious resistance was experienced. The straggling convict was sometimes surprised and cut off; but as the settlements gradually extended from the east, the natives, although apparently not susceptible of civilization, became friendly and submissive.

It will not be inconsistent with the subject precisely before us, to take a short view of the present state and probable consequences of this new plantation of Englishmen, at so great a distance from the parent country.

The utter ignorance of the natives as to the meanest degree of agriculture, their filthy habits, precarious and insufficient aliment, and cruel treatment of females, combined with the destructive VOL. I.NO. 2.

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influence of the vicinity of civilized beings, although the latter may be honest and friendly, produce a constant diminution of the numbers of the former; and, in a few years, they will probably be as invisible as the North American Indians now are upon the whole line of our sea-coast.

In the very limited explorations of the interior that have yet taken place, the native population has been almost invariably found to grow more scarce as the travellers advanced from the shore; and it is remarkable, that in no spot yet visited, has any esculent vegetable been found, except the root of a species of fern; not the slightest evidence of any cultivation of the soil appeared. The rudest of our North American savages were found by the first adventurers to be in the habit of raising that species of corn, which then received the national appellation by which it has ever since been distinguished; wild and wholesome fruits, with many edible nuts, abounded, and in addition, the products of the chase diversified their repasts; but in this anomalous region, the Creator, for reasons which it would be vain for humanity to investigate, has caused or suffered races of men to fix themselves, with almost no vegetable nourishment, and although surrounded by game of peculiar kinds, with little means of obtaining it. Reduced at times by necessity to the most revolting kinds of sustenance, even to worms, and large spiders; ferocious and vindictive, their lives are divided between the two only stimulants of hunger and war: mental improvement, if left to themselves, is impossible. Whence they came, we know not: they have no tradition of their own ancestry; but there is no reason to suppose it was more civilized than they are at present. Those in the neighbourhood of Sydney, the capital of the colony, now loiter about the streets and roads, helpless dependants upon charity, unless they occasionally catch a few fish, or serve as guides in country excursions: some of them indeed are occasionally employed as assistants in the pursuit of fugitive convicts.

To these convicts the eye of philosophic curiosity will naturally be directed.

If it is possible for a single individual to be reformed by exhortation, example, and constraint, there seems no reason why many individuals may not, by the same agents, also be reformed. The association, it is true, renders the task more difficult; a guilty fraternity encourages its members in the continuance of their ancient enormities; and it sometimes resembles a phalanx impenetrable to outward assault. But when it is far removed from the facilities of committing offences, and the possibility of even a temporary enjoyment of the fruits of them, the metaphor is at least weakened, if it does not wholly fail. The composition of the body suffers an internal corrosion, either by the introdue