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• A View of the Hard-labour Bill; Being an Abstract of a Pamphlet, Intituled, “draught of a Bill, to Punish By Imprisonment and Hard Labour, Certain Offenders; and to Establish Proper Places For Their Reception:” Interspersed With Observations Relative T
• Panopticon; Or, the Inspection-house: Containing the Idea of a New Principle of Construction Applicable to Any Sort of Establishment, In Which Persons of Any Description Are to Be Kept Under Inspection; and In Particular to Penitentiary-houses,
• Preface.
• Letter I.: Idea of the Inspection Principle.
• Letter II.: Plan For a Penitentiary Inspection-house.
• Letter III.: Extent For a Single Building.
• Letter IV.: The Principle Extended to Uncovered Areas.
• Letter V.: Essential Points of the Plan.
• Letter VI.: Advantages of the Plan.
• Letter VII.: Penitentiary-houses—safe Custody.
• Letter VIII.: Uses—penitentiary-houses—reformation.
• Letter IX.: Penitentiary-houses—economy—contract—plan.
• Letter X.: Choice of Trades Should Be Free.
• Letter XI.: Multiplication of Trades Is Not Necessary.
• Letter XII.: Contractor’s Checks.
• Letter XIII.: Means of Extracting Labour.
• Letter XIV.: Provision For Liberated Persons.
• Letter XV.: Prospect of Saving From This Plan.
• Letter XVI.: Houses of Correction.
• Letter XVII.: Prisons For Safe Custody Merely.
• Letter XVIII.: Manufactories.
• Letter XIX.: Mad-houses.
• Letter XX.: Hospitals.
• Letter XXI.: Schools.
• Postscript, Part I. Containing Further Particulars and Alterations Relative to the Plan of Construction Originally Proposed; Principally Adapted to the Purpose of a Panopticon Penitentiary-house. *
• Section I.: Principal Particulars. Principal Particulars Either Settled Or Altered, Since the First Hasty Design, As Described In Letter II. And Imperfectly Represented In Plate I. See Plate II. †
• Section II.: General View of the Whole Edifice. In a General View of the Whole Building, According to Its Present Form, Three Very Different, Though Connected Masses, May Be Distinguished.
• Section III.: Annular Well. Annular Well, Instead of Stories of Intermediate Annular Area.
• Section IV.: Protracted Partitions Omitted. Protracted Partitions Omitted; Or Rather, Taken Into the Cells.
• Section V.: Cells, Double Instead of Single.
• Section VI.: Dead-part.
• Section VII.: Chapel. Chapel Introduced. *
• Section VIII.: Inspection-galleries and Lodge.
• Section IX.: Of the Communications In General.
• Section X.: Communications. Prisoners’ Staircases.
• Section XI.: Communications—inspectors Staircases.
• Section XII.: Staircase For Chapel Visitors, and For the Officers’ Apartments.
• Section XIII.: Cell-galleries.
• Section XIV.: Doors.
• Section XV.: Diametrical Passage.
• Section XVI.: Communications—exit Into the Yards.
• Section XVII.: Exterior Annular Well. ‡
• Section XVIII.: Windows Reaching Low, and Glazed; Instead of High Up, and Open.
• Section XIX.: Materials. Arched Work—much Iron—plaster Floors.
• Section XX.: Outlets, Including Airing-yards.
• Section XXI.: Approach and Fences.
• Section XXII.: Means of Supplying Water.
• Section XXIII.: Of the Mode of Warming the Building.
• Section XXIV.: Of the Economy Observed In the Construction.
• Postscript—part II. Principles and Plan of Management.
• Section I.: Leading Positions.
• Section II.: Management—in What Hands, and On What Terms.
• Section III.: Of Separation As Between the Sexes.
• Section IV.: Of Separation Into Companies and Classes.
• Section V.: Employment.
• Section VI.: Diet.
• Section VII.: Clothing.
• Section VIII.: Bedding.
• Section IX.: Health and Cleanliness.
• Section X.: Of Airing and Exercise.
• Section XI.: Schooling and Sunday Employment.
• Section XII.: Of Ventilation, Shading, and Cooling.
• Section XIII.: Distribution of Time.
• Section XIV.: Of Punishments.
• Section XV.: Mode of Guarding On the Outside.
• Section XVI.: Provision For Liberated Prisoners.
• The Following Note Respecting This Work Was Given By Bentham to Dr. Bowring, 24 Th January 1821.
• Panopticon Versus New South Wales: Or, the Panopticon Penitentiary System, and the Penal Colonization System, Compared.
• A Plea For the Constitution: Shewing the Enormities Committed, to the Oppression of British Subjects, Innocent As Well As Guilty;
• Preface.
• Section I.: Subject Matter—object—plan.
• Section II.: Power of Legislation—its Necessity In New South Wales.
• Section III: Legislation—how Far Lawful In New South Wales.
• Section IV.: American, &c. Legislation No Precedent For New South Wales.
• Section V.: Even In America, the Crown Had No Right to Legislate Without Parliament.
• Section VI.: Nullity of Legislation In New South Wales, For Want of an Assembly to Consent.
• Section VII.: Nullity of Governor’s Ordinances. For Want of a Court to Try Offences Against Them.
• Section VIII.: King’s Law-servants Not Infallible.
• Section IX.: Nullity of New South Wales Legislation, Proved By the Granada Case.
• Section X.: Governor’s Illegal Ordinances Exemplified.
• Section XI.: Governor’s Illegal Ordinances Exemplified.
• Section XII.: Expirees Forcibly Detained.
• Section XIII.: Expirees, During Detention, Kept In a State of Bondage.
• Section XIV.: Statutes Transgressed By the Legislation and Government of New South Wales.
• Draught of a Code For the Organization of the Judicial Establishment In France: With Critical Observations On the Draught Proposed By the National Assembly Committee, In the Form of a Perpetual Commentary.
• Bentham’s Draught For the Organization of Judicial Establishments, Compared With That of the National Assembly, With a Commentary On the Same.
• Emancipate Your Colonies! Addressed to the National Convention of France, Anno 1793.
• Jeremy Bentham to His Fellow-citizens of France, On Houses of Peers and Senates.
• Papers Relative to Codification and Public Instruction: Including Correspondence With the Russian Emperor, and Divers Constituted Authorities In the American United States.
• Part I.—: On Codification.
• No. I.: To the President of the United States of America.
• No. II.: James Madison, Then President of the Congress of the American United States, to Jeremy Bentham, London.
• No. III.: Albert Gallatin, Minister Plenipotentiary From the American United States to the Court of London, to Simon Snyder, Governor of Pennsylvania, Introducing a Letter From Jeremy Bentham to the Said Governor.
• No. IV.: Jeremy Bentham, London, to Simon Snyder, Governor of Pennsylvania.
• No. V.: Simon Snyder, Governor of Pennsylvania, to David Meade Randolph, Esq. Williamsburgh, Virginia, On the Subject of the Above Letter of Jeremy Bentham.
• No. VI.: Extract From a Printed Paper, Signed Simon Snyder, Dated Harrisburg, December 5 Th 1816, James Peacock, Printer, Intituled “ Governor’s Message to the Senate and House of Representatives of the Commonwealth of Pennsylvania, ” Containing Seve
• No. VII.: Circular. — to the Governor of the State of
• No. VIII.: Jeremy Bentham, an Englishman, to the Citizens of the Several American United States.
• No. IX.: Jeremy Bentham to James Madison, Late President of the American United States.
• No. X.: Jeremy Bentham to the Emperor of All the Russias.
• No. XI.: Alexander I. Emperor of All the Russias, to Jeremy Bentham, London—written With His Imperial Majesty’s Own Hand, In Answer to the Above, [no. X.]
• No. XII.: Jeremy Bentham to the Emperor of All the Russias.
• No. XIII.: Prince Adam Czartoriski, of Poland, to Jeremy Bentham, London. *
• No. XIV.: Jeremy Bentham, London, to Prince Adam Czartoriski of Poland.
• Part II.: Public Instruction.
• No. I.: ( Circular. )— Letter From His Excellency Wilson Cary Nicholas, Governor of Virginia, On the Subject of Public Instruction.—addressed (the Copy of Which This Is a Transcript) to His Excellency John Quincy Adams, Minister Plenipotentiary From the U
• No. II.: ( Circular. )— to the Governor of the State of
• No. III.
• No. IV. Notice Concerning Chrestomathia, By the Paris Lancasterian Instruction Society. Report of the British and Foreign School Society to the General Meeting, Dec. 12, 1816.—EXTRACT.
• Codification Proposal, Addressed By Jeremy Bentham to All Nations Professing Liberal Opinions; Or Idea of a Proposed All-comprehensive Body of Law, With an Accompaniment of Reasons, Applying All Along to the Several Proposed Arrangements:
• Advertisement.
• Part I.—ARGUMENTS.: Positions, With Reasons For Proofs.
• Section 1.: In Every Political State, the Greatest Happiness of the Greatest Number Requires, That It Be Provided With an All-comprehensive Body of Law. All-comprehensiveness, Practicable, and Indispensable.
• Section 2.: The Greatest Happiness of the Greatest Number Requires, That Such Body of Law Be Throughout Accompanied By Its Rationale: an Indication of the Reasons On Which the Several Arrangements Contained In It Are Grounded. Rationale, Though Unex
• Section 3.: The Greatest Happiness of the Greatest Number Requires, That Those Reasons Be Such, Throughout, As Shall Show the Conduciveness of the Several Arrangements to the All-comprehensive and Only Defensible End Thus Expressed. Rationale, Indicat
• Section 4.: The Greatest Happiness of the Greatest Number Requires, That, of This Rationale, the Several Parts Be Placed In the Most Immediate Contact With the Several Arrangements to Which They Respectively Apply. Rationale, Interwoven, Not Detached.
• Section 5.: The Greatest Happiness of the Greatest Number Requires, That For the Function Exercised By the Drawing of the Original Draught of Such a Code, the Competitors He As Many As, Without Reward At the Public Expense, Can Be Obtained: and So, For T
• Section 6.: The Greatest Happiness of the Greatest Number Requires—that, For the Drawing of Any Such Draught, No Reward At the Public Expense Be Given. At Additional Expense, Reward None.
• Section 7.: The Greatest Happiness of the Greatest Number Requires—that Every Draught, So Given In, Be, From Beginning to End, If Possible, the Work of a Single Hand. Hands Not More Than One.
• Section 8.: The Greatest Happiness of the Greatest Number Requires—that Such Original Draught, Being the Work of a Single Hand, Be Known to Be So. Hand, Known to Be But One.
• Section 9.: The Greatest Happiness of the Greatest Number Requires, That the Work, Being the Work of a Single Hand, and Known to Be So, It Be Known Whose the Hand Is. Hand, Known Whose It Is.
• Section 10.: The Greatest Happiness of the Greatest Number Requires, That, For the Drawing of the Original Draught, All Foreigners Be Admitted Into the Competition: and That, In So Far As Applicable, Unless It Be In All Particulars Taken Together Decid
• Section 11.: On the Part of an Individual, Proposing Himself As Draughtsman For the Original Draught of a Code of Laws, Willingness Or Unwillingness to Interweave In His Draught a Rationale As Above, Is the Most Conclusive Preliminary Test, and That
• Section 12.: On the Part of a Ruler, Willingness Or Unwillingness to See Established an All-comprehensive Code, With Its Rationale As Above, and to Receive Original Draughts From All Hands, Are Among the Most Conclusive Tests of Appropriate Aptitude,
• Part II.—TESTIMONIALS.
• I. England
• II. Geneva
• III.: Spain.
• IV.: Portugal.
• V.: Italy.
• VI.: France.
• VII.: Anglo-american United States.
• VIII.: Greece.
• IX.: South America.

SECTION XVI.

PROVISION FOR LIBERATED PRISONERS.

How to make provision for the prisoners at the expiration of their terms?—how to ensure for the future, with least hardship on their part, with due regard to their respective characters and connexions, and at the least expense, their good behaviour and their subsistence? It is time to be short—here follows a slight sketch.

i. The prisoner not to be discharged but upon one or other of three conditions:—

1. Entering into the land-service.

2. Entering into the sea-service for life.

3. Finding some responsible householder who will be bound in the sum of [£50] for his good behaviour, by a recognisance renewable from year to year; with a stipulation for surrendering the body in case of non-renewal.*

ii. To furnish an inducement capable of engaging not only relations or other particular friends, but strangers, to take upon them such an obligation, authority given to the prisoner to enter into a contract for a term of any length, conferring on his bondsman the powers following, viz.

1. Power of a father over his child, or of a master over his apprentice.

2. In case of escape, powers of recaption, the same as by 17 Geo. II. ch. 5, § 5, in case of vagrants; with penalties for harbouring or enticing, as by 5 Eliz. ch. 4, § 11, in case of persons bound, for want of employment, to serve as servants in husbandry.*

3. The contracting governor of the Panopticon penitentiary-house to be bound to keep the prisoner there, after the expiration of the term, though it should be for life, until discharged in one or other of the three ways just mentioned; and that upon terms, at any rate, not exceeding those on which he would be bound to receive a fresh prisoner:—and so in case of surrender by a bondsman.

4. The prisoner’s parish to be bound, in such case, to give the crown an indemnification, not exceeding the utmost amount of the charge borne by reason of any pauper by that parish.†

5. The bondsman to be bound for the maintenance, as well as the good behaviour of the liberated prisoner, during the term of the engagement.‡

6. The governor of the penitentiary-house to be bound, on failure of the particular bondsman, to the extent of half the penalty specified in his recognisance in case of forfeiture.∥

7. The governor bound also, on such failure, for the prisoner’s maintenance; but without being obliged to grant him relief on any other terms than those of his returning to the penitentiary-house, or engaging in his service for such time as shall have been agreed on.

8. Such bondsman’s recognisance to be taken before justices in quarter or petty sessions, with power to the governor to oppose and cross-examine, as in the King’s Bench in case of bail.

9. The recognisance to be registered with the clerk of the peace, and annually renewed: upon failure of renewal, the responsibility of the governor to revive, and with it the power of recaption.

10. Power to the governor and the prisoner to enter into a contract of engagement for any number of years, and that before the expiration of the term, subject to attestation before a justice, as in case of enlistment, and examination touching his consent, as in the Common Pleas in case of a feme covert joining in the disposal of an estate.

11. In case of dispute between the governor or any other master-bondsman and any such servant, justices to have cognisance, as at present in case of servants in husbandry.§

12. Any such contract so made with a prisoner, not to give him a fresh settlement.

13. Power to government to remove to his parish any such remanent remaining on the penitentiary establishment after the expiration of his term.*

14. Power to the parish to bind over to the governor a remanent removed, or liable to removal; and that for a term not exceeding seven years in the first instance, nor one year ever after.

Is there anything wanting in the provision made by this plan?—anything to public security, to economy, to humanity, to justice?

The securing the public against the future ill-behaviour of a discharged convict has hitherto been looked upon as a problem, insoluble except by death, or some other punishment which, under the name of a temporary, should be in effect a perpetual one. The idea of absolute incorrigibility is accordingly the idea which, in many an estimate, stands inseparably annexed to that of a thorough-bred London felon. Be it so: upon this plan, be he ever so incorrigible, the public will have nothing to fear from him, since, till he has given satisfactory proof to the contrary, he will not be let loose. When a suspected person is put under the care of a boatswain or a recruiting serjeant, the public peace, as far as he is concerned, is universally looked upon as sufficiently provided for; and the great diminution thereby supposed to be effected in the proportionable number of crimes is reckoned upon as no inconsiderable compensation to set against the miseries of war. But to put even this security in competition with that which is afforded by the Panopticon discipline, would be doing the latter great injustice. The security afforded by the military discipline, or a still better—such, then, is the assurance which the public obtains of the good behaviour of every individual who has gone through his term in a panopticon penitentiary-house; such alone excepted, for whom the affection of friends may have found particular bondsmen, and who, by the confidence thus reposed in them, have given proofs of a degree of trust-worthiness sufficient to place them, in this respect, on a level rather above than under that of the ordinary run of men.

Will reformation, inward reformation, be, or not be, the result of such a course of discipline? My own persuasion, my full persuasion, and I hope it is not too sanguine a one, is, that with very few, or perhaps no exceptions, it will be found to be so; and that at any rate, in such a period as that of seven years, the very disposition to mischief will be found to have been subdued. But should even the disposition remain, the ability will, at any rate, be chained down; and so long as that is the case, how it is with the disposition, is a question which, to every temporal purpose at least, it is as immaterial as it would be difficult to resolve.

As to economy, the terms on which a man is subsisted cannot in any instance be more disadvantageous to the public than on the present footing; and no bounds are set to the reduction of the disadvantage.

Is there anything wanting in the attention paid to the particular circumstances and feelings of individuals? Merely for want of employment, persons to whom no guilt is imputed may, by the statute of Elizabeth, be forced into service in husbandry, or, by the custom of pressing, enforced by occasional laws, into one or other branch of the military service; and in both cases without any option as to the employment, much less as to the employer. Here, no fewer than four options are given to convicts—options, too, which extend to the very person of the employer. Men accustomed to a style of life superior to that of the common run of those who are obnoxious to this fate, would, under a punishment nominally the same, suffer more than their comrades in effect. Such persons may, by the generosity of a disinterested bondsman, find themselves clear of every obligation of service. A father may thus rescue his son, an uncle a nephew, a brother a brother, from the hardships of a degrading servitude. Independently of such contingencies, prisoners who have either brought a general good character into the house (for even such will not be altogether wanting,) or acquired one there, and are either able to get a livelihood, or provided with friends who would furnish them with one, will be sure of bondsmen: and the faculty of investing the bondsmen with such ample powers will render it so much the easier for the prisoner to find one. The more valuable a member of the community he is become in all respects, the better will his condition be, since he will find employers bidding against one another to obtain him.

Suppose him, for want of particular friends or connexions, engaged with the governor or some other undertaker in a subsidiary panopticon: in what respects would his condition differ from that of ordinary service?—only in the engagements being for a longer term, and putting it out of the power of the servant, by absence or intoxication, to deprive the master of the benefit of his service. In these circumstances, a variety of indulgences would naturally take place: abatements would be made in the number of working-hours; a curtain would guard the times of recreation and repose from the importunity of an inspecting eye; every seventh day would be a day of perfect liberty; the comforts of matrimony would in this situation at any rate lie within reach;—in short, instead of being termed a state of confinement sweetened by indulgences, the justest as well as simplest point of view in which it can be considered is that of a state of free service, only somewhat better guarded than ordinary against misbehaviour and abuse.

I hear an objection—“Your subsidiary panopticon is a receptacle for manufacturers working in numbers under a common roof, and such receptacles are found by experience to be nurseries of vice. The manufactories, the only manufactories favourable to virtue, are the dispersed, the rural manufactories—those which spread themselves over the face of a country, and are carried on in private families by each man within the circle of his little family, in the bosom of innocence and retirement.” Be it so: it may be so, for aught I know. But how great the difference, or rather how striking the contrast, betwixt an ordinary manufactory and one carried on upon the panopticon principle! Is there anything in the air of the country or in the structure of a cottage that renders it inaccessible to vice? is the connexion betwixt virtue and secresy so exclusive? No: the advantage which the domestic manufactory has in this respect, over the most public manufactory, is not to be compared with that which the panopticon discipline has over that of the purest of all manufactories upon every other plan, public or private. In what other house, public or private, can equal security be found for the fidelity of the married, for the chastity of the single, and for the extinction of drunkenness, that murderous infatuation, in comparison of which every thing else that goes by the name of vice is virtue?*

How is it that in public manufactories vice insinuates itself? How? How but for want of the inspecting eye of some one who has the power, and may be made (if he has not already) to have the inclination to suppress it? With respect to drunkenness, above all things, is it possible that such inclination should be wanting to any master?—of all others, to the master of an indented servant? The drunkenness of the servant is the master’s loss: what the one suffers in his health and morals, the other suffers in his purse.

This plan is not altogether so simple as I should have been glad to have found it: but simplicity, though it ought never to be out of our eyes, is not always in our choice. There are other plans, which, at least as far as concerns the option—I should say the no-option—given to the convict, are much more simple: but I leave to whoever is ambitious of it, the praise of purchasing simplicity at the expense of economy, good morals, humanity, and justice.

A plan is good or bad, either simply with relation to the end in view, or comparatively with relation to others directed to the same end.

The end in view here is to ensure the good behaviour and subsistence of convicts after the expiration of their punishment, regard being had to economy, humanity, and justice. If perfection be still at a distance here, shall we find anything nearer to it in the colonization scheme, or the penitentiary act?

Out of 687 convicts, sent to a country from whence return without assistance from government is known to be impossible. 20 had been sentenced for 14 years, 630 for 7 years, 12 but for 5 years (tenderness for the tender sex dictated the limitation here,) 35 only, little more than a twentieth of the number, for life.† Was it the intention that, at the expiration of these terms, vessels should be sent out to give effect to the limitation in the sentence? If so, what becomes of the security? and what are we to think of the expense?‡ Was it that they should be left fixed for life on the spot to which they were consigned with such nicety of discrimination, for fourteen, seven, and five years? If so, what is the sentence, or the pretended execution of it, but a mockery of justice?*

Suppose them brought back: what is the provision for them then? None; no more than if they had never been sent there. Suppose them to stay: what is to be the lot of such of them as become chargeable—I mean supposing the time come when there can be any that are not chargeable? Either they are left to starve, or Great Britain is their parish, though they cannot be removed to it. Will their maintenance there cost less, at the distance of seven months sail, than at home?—in a country which has nothing, than in a country which has every thing?†

So much for the colonization scheme: what says the penitentiary act?

Decent clothing;—money in a man’s pocket—for a year not more than £3, nor less than 20s.—for a shorter term in proportion; and if anybody will talk of finding employment for him, and he has behaved well, more money to the same amount at the year’s end.‡

From twenty to sixty shillings at a year’s end? What is that to do? how is it to find a man employment? No employment without an employer: how is it to give him one? what inducement does it hold out to anybody to take upon him that friendly office? None; no powers—no factitious security of any sort, to supply the natural want of confidence. Were employment offered, what obligation, what inducement, to accept of it? They may choose to become beggars, not to say thieves—and what is there to hinder them? If the fear of starving on the spot will not force a man to work, will a few shillings to be received at a year’s end bribe him to it? For whose sake should anybody furnish the employment?—for his own? The act gives him no motive. For the convict’s? No; nor in that way neither. If he will not to save him from starving, will he for the sake of getting him a few shillings, which he is not to have till it has been proved that he can do without it? Of what kind is the employment to be?—one that requires no confidence? The allowance is not wanted: why throw away so much money? If a man has gained an honest livelihood for a year together, what should hinder his continuing to do so? Is confidence necessary? the allowance is of no use. Will the one, two, or three pounds, the convict is to have a year hence, render him trustworthy to-day, in the eyes of any one to whom he would not appear so otherwise?

One man is fortunate enough to have connexions: another man has none. The one gets a friend to say he will take him (for as to engagement it is out of the question;) the other, not. Both live out their year with equal honesty. Why is the former to have all that money, and the latter none of it? why give him who has most merit nothing, while you pay the other for his good fortune? Let him who has the happiness to have friends enjoy the benefit of their friendship: but is he to be rewarded for it too, and that at the public charge?

Decent clothing—so far, so good—a man is not to be turned out naked. But all that money in his pocket—as soon as he is out of the house, what is that for? Is it to furnish him with a few other necessaries besides clothing, such as bedding, household furniture, and tools? One would think so. But if so, how comes the allowance to be pared down and reduced in the inverse ratio of the time he has passed in prison? Will a shorter bed or a smaller table serve a man who has been there but half a year, than him who has been there a whole one? One would think the foundation of the act in this part were the supposition of its own injustice; and that the money, instead of equipment-money, were meant as smart-money. “Poor fellow! You have suffered so much more than such an one: here is so much more for you, to make you amends.”

Set a beggar a-horseback, and the proverb tells you where he will ride. Is the beggar likely to prove the more prudent horseman for having been bred in the school of felony? The penitentiary act sets a whole regiment of such beggars on horseback, and it gives them no master to hold the reins. Men who have given such testimonies of themselves, surely are not much injured in being compared to school-boys. Can prudence, can economy, be expected generally to prevail during the ecstasy that will so naturally mark the period of emancipation? Is not the idlest school-boy he who has the heaviest pocket? What parent, instead of giving the quarter’s board to the master, would give it to the child? Light come, light go, says another proverb, not more familiar than true: the same sum, collected by a man’s own economy, might hope for a better fate.

These little pecuniary allowances do not strike at the root of the difficulty—they do not apply to the right person. In the convict, you see a man in whose breast the passion of the day is accustomed to outweigh the interest of the morrow: in the contracting governor, you have a man who knows what his lasting interest is, and is in the habit of pursuing it.

The means he may have of exercising a desirable influence on the behaviour of the convict, are as powerful as heart can wish: make it his interest to exert that influence, and the object is attained. This man, whom you know, is the man to deal with, and not the convict, of whom you know nothing but what is to his disadvantage. With the latter, it is all nudum pactum—all giving, no receiving: you can stipulate nothing, you can depend upon nothing in return. Strike your bargain with the contracting governor, you have some ground to stand upon; you can get an indemnity in case of disappointment: if your discharged prisoner turns out honest, the object is attained; if otherwise, you get your money back again with interest.

Nothing can be more laudable than the humanity which dictates the provision we have been examining; the misfortune is, that so respectable a motive should not have pitched upon happier means.

The following Note respecting this Work was given by Bentham to Dr. Bowring, 24th January 1821.

The Plates referred to in this work were destroyed by a fire at the printer’s.* An improved plan of construction is shown in a small plate inserted in the work entitled “Pauper Management improved.”

The main body of the Panopticon was sent to the press at Dublin by Sir John Parnell, at that time Chancellor of the Irish Exchequer. Sir John Parnell tried in vain to obtain the adoption of the plan in Ireland. Mr. Pitt, with his colleague Mr. Dundas (afterwards Lord Melville,) laboured, and with like success, in England. The design of building a Panopticon prison lingered from 1791 to 1813, when, by the erection of another prison, without any of the advantages, and more than ten times the expense, it was finally extinguished. George the Third was inexorable. He had been irritated at the author by the guished. George the Third was inexorable. He had been irritated at the author by the Plan for the Judicial Establishment in France; and before that, anno 1789, by two letters in a morning paper signed Anti-Machiavel, written against the war in which the King laboured without success to engage the nation against Russia. To the first of those letters appeared an answer, which the Earl of Shelburne, who had been Secretary of State, and after that Prime Minister, and at that time had his connexions in the King’s family, gave the author to understand was written by the King himself.

After delays upon delays, an act of Parliament was passed, by which the faith of Parliament was pledged to the author for the adoption of his plan; and at last, in 1813, another act to authorise the violation of that pledge. To prepare for this violation, a Committee of the House of Commons had been got up by the Secretary of State, Lord Sidmouth. The plan had been recommended by the famous Finance Committee of 1797-8, of which Mr. Abbott, afterwards Speaker, now Lord Colchester, was chairman. A contract had been entered into, and in consequence the author put into possession of a spot of land. For the commencement of the business, the signature of George III. was necessary; after an unexampled delay of three weeks, that signature was at length peremptorily refused. The official correspondence on the subject would fill a volume. To the all accessible and inspectable prison in question, Lord Sidmouth has substituted a Bastile, not to be visited, without his order, even by constituted authorities.

While nations consent to put into any hands an uncontroulable power of mischief, they may expect to be thus served.

A PLAN exhibiting the idea of a mode of Fortification adapted to Prisons: containing—1. Mode of forming the Approach; 2. Application of the Inspection Principle to the External Area attached to a Panopticon; 3. Mode of guarding against attempts on the surrounding Walls;—also representing the mode in which three Panopticons might be connected under one Establishment.

EXPLANATIONS.

I.

APPROACH.

A B C D-represents a Panopticon, with the area belonging to it, inclosed by a general surrounding wall.

E, the Approach; contracted at the entrance, that it may be the more easily guarded by a sentinel or gate-keeper. Next to him is a small Gate, opening into a Foot-path; next to that a larger Gate, at which carriages are to enter; then a similar one at which they are to go out; beyond that again, a Footway, into which no opening is made, as being too far from the gate-keeper’s station to be under his guard. The gates may be of iron, in order to be seen through from the house; and ten feet high, so as not to be climbed over but with great difficulty: to increase which, they might be crowned with a broad projecting coping.

S, a Lamp-post, or some such object, by way of central mark to direct carriages in turning.

I I, Two Gates, one on each side of the Approach, opening into the part of the area allotted to exterior offices, and officers’ gardens. They are of iron, that they may be seen through from the house.

F, a Wall, serving, in case of an attack, to guard the country behind from the fire of musquetry from the house.

Between E and F, the ordinary Road.

Between F and G, a branch of the road, by which peaceable passengers may pass under shelter at the time of an attack.

II.

OUTLETS.

A B K K, Space allotted for Airing Yards, to exemplify the mode of marking out divisions for the reception of different classes of prisoners.—N. B. It is not supposed that so many would be necessary; the number here given is put only by way of example.

L, a Look-out or Inspection Lodge, from whence a single inspector may inspect all the yards.

M L, a Covered Way, through which an inspector may pass from the building and back again, without the knowledge of the prisoners.

C C, Circular Yard, encompassing the look-out, and affording a common approach to all the yards.

A C, Uncovered Passage for the Male Prisoners to the central yard.

B C, Ditto Ditto for Females to ditto.

Between the walls are iron gates, not so high as to impede in any degree the inspectors’ view. The partition walls project beyond the gates into the central yard, to prevent prisoners in different yards from holding converse.

F K C D, Space for Exterior Offices and Gardens.

III.

MODE OF GUARDING ON THE OUTSIDE.

V¹ V², Two Guard-houses, each flanking the paths of two sentinels. That towards the yards (V²) might have a storey so high as to command them; and it might have a communication with them not to be used but in case of alarm: for instance, by an underground passage, opening into the commanding officer’s apartment, or by a ladder kept under lock, he alone keeping the key.

To prevent all converse, however distant, between the soldiers and the prisoners, it should have no windows looking out into any part of the yards; for which reason it is also detached from the wall, and placed at the greatest distance from the female prisoners.

The double line encompassing the surrounding wall, represents a slight Pallisado, to prevent passengers from approaching the wall without putting themselves into the predicament of delinquents. The dotted line represents the Walks of the sentinels: each walk is extended in such manner as to cross and flank two others, that each sentinel may have two others to check him.

IV.

JUNCTION OF THREE PANOPTICONS.

N H O, Road forming the communication between the central and two lateral Panopticons.—N. B. In this case the walls H H, as to that part of each which crosses and blocks up the road, must be conceived to be away; as also the whole of the walls A C and B D.

A K X T, Additional Space for Airing Yards, upon the supposition of a second Panopticon.

B K P R, Ditto, upon supposition of a third ditto.

d. e. f. g. Communications for the second and third Panopticons with the Look-out L, similar to those from the first. (N. B. It is to prevent confusion, that they are thus cut off in the draught.) Had they been projected straight forward, like those from the first, they could not have joined the look-out without being bent towards it in an angle, which would have concealed more or less of the area from the inspectors’ view. It is to avoid the same inconvenience that the walls at X and P are brought forward almost to a tangent to the circle, instead of being placed nearer to the diameter; for example, in the same direction as the walls K K.

X W C, Additional Space for Offices and Gardens, upon supposition of a second Panopticon.

P Q D, the same, upon supposition of a third Panopticon.

N. B.—The walls should all of them be rounded off at their junctions, as at T R Q, &c., to avoid giving the assistance which angles afford in climbing.

PANOPTICON versus NEW SOUTH WALES:

OR, THE PANOPTICON PENITENTIARY SYSTEM, AND THE PENAL COLONIZATION SYSTEM, COMPARED.

In a Letter addressed to the Right Honourable Lord Pelham.

BY JEREMY BENTHAM, OF LINCOLN’S INN, ESQ.

My Lord,

The letter of which these printed pages form a part, was begun in the view of its being submitted to your Lordship in manuscript. Destined to represent the treatment experienced during a period of eight or nine years from the servants of the crown, by a plan that has twice at their own solicitation received the sanction of parliament—(the second time, after urgent reasons given by the committee on finance for the continually professed execution of it, and no reasons ever given by any body for the suspension of it)—the history had advanced to that stage, in which, for the first time, a disposition to “relinquish” the plan now termed a “project” (after a contract drawn, and land purchased in execution of it)—degraded thus from a plan to a project—had been avowed. Now, lately having, through an authentic channel, received intimation of an intention on your Lordship’s part to “converse on the subject with the Lord Chancellor and the Judges;” it occurred to me, that whatever opinion, if any, were eventually to be obtained from any such high and ever revered authority, any such opinion would not be the less instructive, if in this, as in other instances, it were to have had the opportunity of grounding itself on such evidence as the nature of the case afforded.

After this explanation, I proceed to submit to your Lordship that part of the originally intended address which bears more particularly upon the point in question, detaching it on the spur of the occasion from whatever was originally designed to precede or follow it.*

Fourth and last ground for the relinquishment of the Penitentiary system: “The improved state of the colony of New South Wales.”

Of the three other grounds† the inanity has been displayed: there remains this single ground to bear the strain of the whole measure—I mean, not of the penitentiary establishment, but of the relinquishment of it.

To justify the predilection shewn for the distant establishment, and the use thus made of that predilection, those who have taken upon themselves to make this collateral use of it, have two propositions to make good:

1st, That of the two rival modes of punishment—the punishment by transportation to New South Wales, and the punishment by confinement under the intended penitentiary establishment—the former is the preferable one.

2d, That it is to such a degree preferable, as to justify the laying aside the other altogether, and inclusively the imposing on the public that expense—expense in all its shapes—money, public faith, character of public men—with which the ultimate sacrifice of the thus long suspended establishment would be attended.

The first proposition is the leading one: in this is contained the principal point in issue: this being determined in the negative, the other will be superseded. How, then, shall it be tried? by analytical investigation, supported by specific evidence? or by vague assertion, supported by a few customary phrases? “In the former mode, certainly,” says a voice, which I recognise for your Lordship’s, being that of reason and justice—by the former mode, as being the only true one, how far soever it may be from being either the more generally commodious of the two or the more usual.

The two rival systems in question being systems of punishment, whichever of the two is the preferable one, must be that which will prove to be so on joint reference to the several objects or ends of penal justice.

Objects or ends of penal justice, five:

1st, Example—prevention of similar offences on the part of individuals at large, viz. by the repulsive influence exercised on the minds of bystanders by the apprehension of similar suffering in case of similar delinquency.

2dly, Reformation—prevention of similar offences on the part of the particular individual punished in each instance, viz. by curing him of the will to do the like in future.

3dly, Incapacitation—prevention of similar offences on the part of the same individual, by depriving him of the power to do the like.

4thly, Compensation or satisfaction, viz. to be afforded to the party specially injured where there is one.*

These four from Blackstone and from everybody: to these four I will venture to add a fifth, Economy. The four first, direct ends—ends to which the several measures adopted ought to tend in a direct course; the last, an indirect or collateral end—a mark which, though not the direct object of any such measure, ought not to be departed from to any greater distance, than the pursuit of the other direct ends shall be found to render unavoidable.

The list of these objects belongs to the A B C of legislation: if the application of it to practice had been equally familiar, your Lordship will judge whether it would have been possible the country should ever have seen any such establishment as Mr. Pitt’s and the Duke of Portland’s “improved colony of New South Wales.”†

Assuming these five to be what without dispute they ought to be, the common objects of both systems, let us consider each object by itself; and calling in the two systems, one after another, hear what each promises to perform, or may be considered as having performed, towards the attainment of that common end.

I. First object—Example—prevention of future offences by means of it. What, in the first place, is the course taken for this purpose by the colonial, the transportation system? The convicts and their punishment are removed by it to the antipodes, as far as possible out of the view of the aggregate mass of individuals, on whose minds it is wished that the impression should be made.

What is the course taken in the same view by the penitentiary system—Scene of punishment, the vicinity of the metropolis—the very spot which contains the greatest number of spectators of all descriptions, and in particular of those in whose instance there is the strongest reason for wishing that the impression may be made.

Plan of management—such as has for its object the pointing the impression by all imaginary contrivances to this end, the strengthening it by all apposite means, the multiplying by every imaginable device the number of the visitors and spectators—a perpetual and perpetually interesting drama, in which the obnoxious characters shall in specie, at any rate, be exposed to instructive ignominy, the individuals being with equal facility capable of being exposed to it, or screened from it, as, in the judgment of those to whom it belongs to judge, may be deemed most eligible upon the whole.

II. Second object—Reformation. Under this head, what, in the first place, does the “improved colony?” Delinquency, in the case of offences in general, and the class of offences here in question more particularly, may be considered as having for its positive and primary cause, a sort of morbid sensibility with reference to those enjoyments and those sufferings or uneasinesses, the pursuit or avoidance of which have respectively given birth to the offence. It may be considered, again, as having for its negative and secondary cause, the absence of those peculiar appropriate restraints, from which, had they been present, that vicious propensity might have received an efficacious check. Delinquents, especially of the more criminal descriptions, may be considered as a particular class of human beings, that, to keep them out of harm’s way, require for a continued length of time that sort of sharp looking after, that sort of particularly close inspection, which all human beings, without exception, stand in need of, up to a certain age. They may be considered as persons of unsound mind, but in whom the complaint has not swelled to so high a pitch as to rank them with idiots or lunatics. They may be considered as a sort of grown children, in whose instance the mental weakness attached to non-age continues, in some respects, beyond the ordinary length of time.*

To this mental debility it is the characteristic feature of the system in question—transportation to a new planted colony—to be radically incapable of administering that corrective aid which, in the case in question, is so perfectly indispensable. Field husbandry is, under this system, the principal employment—field-husbandry carried on by individuals or heads of families, each occupying a distinct dwelling, the interior of which is altogether out of the habitual reach of every inspecting eye. At sleeping times, meal times, times of recreation, no inspection whatsoever: even at working times, none but what is imperfect, interrupted, and accidental. Hence no preventive check to those propensities, the peculiar strength of which has been but too plainly demonstrated by the offence by which the individual was conducted to the scene of punishment—propensities, the indulgence of which is either itself a crime, or introductory to those vicious habits which are regarded as the immediate sources of crimes—sloth, drunkenness, gaming, venereal irregularities, profaneness, quarrelsomeness, mischievousness, rapacity.

Thus, then, on the ground of controul to vicious propensities, stands the parallel between the transportation system and the penitentiary system—the transportation system according to the New South Wales edition of it—the penitentiary system according to that edition of it to which, even in the act of sacrificing it on the altar of secret influence, no man ever durst take upon him to refuse the application of an improved one. Colonizing-transportation-system: characteristic feature of it, radical incapacity of being combined with any efficient system of inspection. Penitentiary system: characteristic feature of it, in its original state, frequent and regular inspection; in its extraordinary and improved state, that principle of management carried to such a degree of perfection as till then had never been reached, even by imagination, much less by practice.

Inspection, the only effective instrument of reformative management, being thus essentially inapplicable, and the founders of the colonial system having thus given themselves the nature of things to fight against, they set about it at their ease. Reformation, it was understood, is a species of manufacture: like other manufactures, it requires its particular capital or stock in trade: the assortment being good, that is, in sufficient quantity, and of the accustomed quality, the business will go on in regular course like other businesses. Different sorts of workmen must be got, most of them in red clothes; but to complete the set, there must be some in black, and these must have a particular sort of workshop to themselves, with tools belonging to it. Accordingly, an assortment was provided, not only of officers, civil and military, but of ministers of religion. Besides soldiers, and barracks, and guns, there were to be, and were accordingly, sooner or later, in a proportion more or less adequate, chaplains, and chapels, and good books. Thus far the head reformers saw: farther than this, it was not given them to see. Would the books be read? the chapels visited? the chaplains heard? That was the concern of the chaplains when they got there. Was it in the nature of the case, that any of these events should ever happen? a wild, speculative, out of the way question this—quite out of the line of practice. With great submission, however, to better judgment, it would not, I will venture to say, have been altogether an irrelevant one: a trigger is scarce pulled before the breath may be driven out of a refractory body; but to purify a corrupted heart, especially where nothing is to be got by purifying it, is an operation not quite so simple or so sure.†

Circumstances so favourable to a system of incapacity and negligence, could scarce in any other case have presented themselves. The measure was, indeed, a measure of experiment, and experiment is that sort of operation which calls for the exercise of all sorts of faculties: but the subject-matter of experiment was, in this peculiar case, a peculiarly commodious one—a set of animæ viles—a sort of excrementitious mass, that could be projected, and accordingly was projected—projected, and as it should seem, purposely—as far out of sight as possible.

Turn now, my Lord, to the penitentiary system; in which, if the principles pursued as above, are to be considered as the standard of orthodoxy, the scent of heresy must be acknowledged to be but too strong. In a Panopticon penitentiary system, supposing religion to be really a source of benefit—supposing it good for anything beyond a show—men would have had the full benefit of it. Church attendance would there have neither been forcible nor yet eludible. The presence of my chaplain it would have been little less possible for them to fly from, than from that of the Almighty whom he served. Unable, neither would they have wished, to fly from it. It would have been adorned and fortified by those accompaniments which, in ministering to this branch of instruction, would have combined with it as much appropriate and congenial entertainment, as inventive industry could contrive to bring together in a situation from which every rival attraction might so effectually be excluded. Yes, my Lord, my whole treasury of artifices would have been ransacked for contrivances to render the tuition as interesting as possible to the pupils; my whole dispensary would have been rummaged for sweets and conserves, to render the physic of the soul as palatable as possible to a class of patients in whom the need of it is so eminently deplorable. Nothing which, in the judgment of my superiors ad hoc in the spiritual college, should, in consideration of its conduciveness to the end, stand approved, or though but tolerated, would, on account of the novelty of it, have been shrunk from, or on account of the expense of it, have been grudged. Valeat quantum valere potest, would have been my maxim; and that (mistake me not, my Lord) not as a pretence for indifference and neglect, but as a memento and a spur to attention and to activity. Men who have the interests of religion most at heart, and whose endeavours have been most conspicuously bent to the turning it to the best possible account in the way of practice—such are the men my hopes had always pointed to for counsel and support. Such, my Lord, were veneficia mea—my pious frauds: the stock of them, I assure your Lordship, was not a scanty one. Delinquency (if—and—would have given leave)—delinquency in habit, in act, even in idea, would have been shut out; shut out, not merely by spiritual bars, by moral bars, by legal bars, but by physical ones.

In no point did my system rest itself upon cold forms. In body, in mind, in every way, if my patients suffered, I suffered with them. By every tie I could devise, my own fate had been bound up by me with theirs. Vicinity to the public eye—vicinity was the object with me, not distance. Recluse by inclination, popular at the call of duty, I did not shun the light—I courted it. Self-devoted to the task of unremitting inspection, it would have been a reward to me, not a punishment, to be as unremittingly inspected.

Thus, in so far as reformation is concerned, stands the comparison between the two systems, on the ground of general principles or theory, if a word so much in disgrace with men in whose vocabulary practice is synonymous with wisdom, may for the moment be endured. A theory is, indeed, no farther good than in so far as its indications receive, as occasion serves, the confirmation of experience. But experience, though an instructive guide, is apt to be a costly one. In the present instance, in the compass of ten or eleven years, it had cost, four or five years ago, upwards of a million:* by this time little less, probably, than a million and a half; of which near the odd million (as your Lordship will see) might have been saved, and with it the shame of a project, involving in its very essence the impossibility of success, saved, together with lives by hundreds, and crimes and immoralities without account, if antecedently to the experiment, in addition to the tongue of an orator, there had been an eye at the treasury, capable of reading in the book of human nature.

Under a system of suppression persevered in, spite of parliamentary warnings,† for these ten years,‡ from what source shall the testimony of experience be collected? Happily a more competent, a more instructive, a more authentic source: a source, in any point of view, more valuable, could scarce have been wished for, than that which the public, during the sleep of superior office, has been put in possession of by an eye-witness—the professed moral historiographer of the colony, the late Judge Advocate, Captain Collins. Nor yet simply the historiographer, but the panegyrist, the professed panegyrist likewise: a character which, when accompanied, as in this instance, with that candour and those internal marks of correct veracity with which it is so rare for it to be accompanied, renders the testimony, in this point of view, more than doubly valuable.

Fortunate it is, that whether from firmness in one quarter, or from negligence in another, the principle of suppression has passed by a mass of information that renders its exertions elsewhere of little use. The work is dedicated, and dedicated by permission, to the late Lord Sydney: in great letters, the title of “Patron of the work,” as well as that of “Originator of the plan of Colonization,” are conferred upon the noble lord. “To your patriotism,” says the panegyrist to the patron, “the plan presented a prospect of political and commercial advantage.” “The following pages,” continues the worthy magistrate, with perfect simplicity and unquestionable truth, “will serve to evince with how much wisdom the measure was suggested and conducted; with what beneficial effects its progress has been attended; and what future benefits the parent country may with confidence anticipate.”

In the preface, he concludes with acknowledging himself to be “anxiously solicitous to obtain” for the colony “the candid consideration of his countrymen; among whom,” he says, “it has been painful to him to remark a disposition too prevalent for regarding it with odium and disgust.” ... ... “Its utility consists,” according to him, in, that “besides the circumstance of its freeing the mother country from the depraved branches of her offspring, in some instances reforming their dispositions, and in all cases rendering their labour and talents conducive to the public good, it may prove a valuable nursery to our East India possessions for soldiers and seamen.” ... ... He speaks of a time in which “he began to think ... ... that some account of the gradual reformation of such flagitious characters, as had by many” (he very candidly adds, “and those not illiberal”) “persons in this country been considered as past the probability of amendment, might not be unacceptable.” So far the magistrate historian: as to the flagitious characters, there is no want of them; but as to any evidence of their reformation, here and there a white blackamoor excepted, it is all of it in his wishes—there is none of it in his book. How far the general conceptions, thus conveyed in the preface, are in agreement with the rigid truth of things, will appear from the more specific statements collected a little farther on, at the bottom of the page. For these little inadvertencies, if such they should prove, the interests of the public service are but so much the more in the author’s debt; since, if confining himself to the province for which he appears so eminently qualified, the superior province of the historian, he had left the task of the panegyrist to inferior hands, the satisfaction which, as matters stand, I flatter myself with being able to afford your Lordship on this ground, might have been less complete.

Of passages to the like effect with those which are here transcribed, enough might have been found to fill a volume. Those which are given here are selected as exhibiting the condition of the colony at the latest points of time; this being the stage at which the reforming tendency of the discipline, had it possessed any such tendency, had had the longest time to operate. General statements and observations are moreover preferred to histories of individual criminals, or crimes, partly out of deference to the logical rule, syllogizari non est ex particulari—partly because the particular anecdotes of this kind, being the materials of which a very considerable part of that large but interesting work are composed, could not possibly have been comprised within the limits prescribed by the object of this address.

The persons spoken of as reformed, are for the most part spoken of by name: in number they would scarcely, I think, be found to exceed a score—certainly not double that number, even including the many backsliders. The number of the unreformed is to that of these reformed characters, as a hundred or so to one. A bettermost sort of rogue—a man in whom on any occasion the smallest degree of confidence can be reposed, appears in that country to be beyond comparison a scarcer animal than a black swan. One thing the historian is clear in, that as to all but the few lusus naturæ thus distinguished, the longer they stay in that scene of intended reformation, and the more they are left to themselves (that is, the more entirely they are left to the separate influence of the pure principle of colonization, without any admixture of its discarded rival, the principle of inspection,) the worse they are; those who have the yoke of bondage still about their necks being a sort of half honest, half sober, half provident profligates, in comparison of those called settlers whose term is at an end.*

Reformation being the topic at present on the carpet, it is to this that the present string of extracts will therefore be confined. The other topics glanced at in the passages quoted out of Mr. Collins’ preface, belong to the head of incapacitation—I mean with reference to the commission of fresh offences within the limits of the mother country: to incapacitation, I say, and economy. The merits of the plan in relation to these objects, will be considered apart, under their respective heads.

Such was the state of the “improved colony” in September 1796, at the termination of the period comprised in the first and already published history of Mr. Collins. A continuation from the same able and candid hand is promised (I see) by the public prints, for a time which may perhaps have arrived before these pages of mine have reached your Lordship’s eye.

What subsequent improvements the colony may have received in relation to this same head, is a point on which I cannot pretend to any information from that source.*

In the mean time, so far as concerns general results, which are all your Lordship would endure to see crowded into this place, accident has put into my hands two testimonies of no mean account. In one respect they have the advantage of any which even your Lordship’s authority could command: they are in each instance the uninfluenced and undisguised effusions of the pen, committed to paper without the idea of being made subservient to this or any other public purpose. They wear no factitious colours; neither of that flattering cast which is so apt to give a tinge to the smallest piece of paper that can ever find its way from any such quarter to your Lordship’s office, nor yet of the opposite cast.

The first is an extract of a letter from Captain Hunter, at that time Governor of the colony. The date of it is the 20th of May 1799: about two and a half years had been at that time added to the experience reported by Captain Collins:—

“Sydney, New South Wales, 20th May 1799.

“The fatigue to which the Governor of this territory must submit, both mental and corporeal, is far beyond any idea you can have of the nature of his duty rendering such fatigue necessary in the Commander in chief.

“My former knowledge and acquaintance with this country encouraged me in a hope, which, however, in some respects proved delusive, that I should, with ease to myself, and with proper effect and advantage to the public, have been able to manage all the duties of my office. But I had not been long entered upon it, before I was awakened from that dream of comfort and satisfaction, the prospect of which I had so vainly indulged. The seeds of those vexations which had so disappointed me, had been sown for a very considerable time, and being rather of a prolific nature amongst such people, had gained so much strength, that it will require immense labour to grub them up by the root.

“I have persisted in my attempt to that end, and mean not to change my system; which, be assured, from being calculated to lay restraints upon every species of vice and immorality, cannot amongst such characters be a very popular one: that, however, will be a matter of no immediate concern with me, if I succeed only in a small degree to check the growing profligacy and abandoned turn of the lower classes of the people.

“This is a good country, and will do well, but its progress in improvement would be considerably hastened, could government be prevailed upon not to overstock us with the worst description of characters; for, whilst the mass of the people continue to be of that class, our difficulties will ever be very considerable: the industrious and well-disposed become a continual prey to the idle and worthless.”

It was not to myself that this letter was addressed, neither had I then, nor have I since, had the honour of any personal acquaintance with the gentleman from whom it came. It was a letter perfectly spontaneous, addressed to a person with whom he had never before had any written intercourse.

Your Lordship sees what it is the governor of the improved colony, down to that time, could find to speak of—great labours, no successes. Could any thing have been found that could have been made to wear the appearance, though it were but of a half success, would it have been passed unnoticed? Meantime, if in the line of moral improvement the governor made such small advance, it was not (if the governor himself, or the judge advocate is to be believed) for want of trying it.

The country (your Lordship sees) is a “good country;” but the word good might lead to conclusions rather wide from truth, if a distinction were not to be made between God Almighty’s works and * * * * *’s. To its Almighty Creator is it indebted for those capabilities which neither neglect nor mismanagement can deprive it of: the use made of them had been depending upon * * * * *. Your Lordship sees upon what condition its chance of improvement depended—(in the opinion of the governor at least, upon whom everything had been depending under * * * *;) upon its not being applied to the chief, if not the only purpose for which it had been established, and for which it continues to be kept up: the purpose, with reference to which, according to * * * * *, it was so much superior to everything else. By the governor, after all the labours of which he speaks so feelingly, the nature of things could not be changed. While those who have become bad for want of inspection, remain without any inspection,* (as they must do there, such of them as are not in jail there,† ) they will remain as bad as ever, or rather, according to the estimate given of them as above by the late chief magistrate, become still worse.

The next article, from a source than which that distant region never furnished a more respectable one, bears date the 7th of October 1800. The part that applies to the present purpose, comes after a paragraph of considerably greater length, which I may have occasion to submit to your Lordship under the head of Economy:—

“Governor King, who has the command, will make many regulations, as far as is in his power, for the security and advantage of the colony; and likewise pay some attention to the morals and instruction of the rising generation, to which none has been hitherto given; for certainly, if we ever hope to see worth or honesty in this settlement, we must look to them for it, and not the present degenerate race.”

What your Lordship might not otherwise have supposed, this letter is from a female pen, as well as to a female eye; not a word more in it that bears reference to anything that can be called politics. Mere accident threw it into my hands. For authentication sake, designation will (I suppose) be regarded as indispensable; but where that sex is concerned, the most reserved mode that can be thought of, is the most respectful and the best.* Such was the state of this “improved,” and ever-improving colony, with the benefit of at least a year’s improvements, more than—and—could as yet have heard of at the time (I mean July 1800) when the idea of “relinquishing” the penitentiary system, in consideration of the superiority of their improved colonial system, was first declared in black and white, after having been determined in petto for a length of time unknown to me. A year’s improvements more, and still—and—did not know that there were children there, or if there were, that they were worth saving from the gallows.

“But have not colonies,” says your Lordship, “has not transportation to those colonies been a source of good, and even in this particular line? Have not reformation and honest industry been among the experienced fruits of it?” Yes, my Lord, where the bulk of the population has been ready found and composed of men of thrift and probity—where the mass of the population being formed, the children of improvidence have been dropped in in driblets, absorbed and assimilated as they dropped in, by the predominant mass of the population into which they were received. In America, a master waiting to take charge of the delinquent as soon as landed—that employer a man of thrift—one of a neighbourhood all composed of men of thrift, all ready to make common cause against a fugitive or refractory bondsman: the bondsmen not collected together in any one place in numbers, but distributed among a number of families, one or a few at most in each. Such was a sort of society in which each convict would have to serve and be trained up in unremitting habits of unavoidable industry during his bondage: of the same cast was the society in which, if he settled at all in that quarter of the world, he would have to settle upon his restoration to independence.

Thus it was in America—thus it was with the convict consigned to any one of those old established colonies. How was it in New South Wales? The native inhabitants a set of brutes in human shape—the very dregs even of savage life—a species of society beyond comparison less favourable to colonization than utter solitude; a set of living nuisances, prepared at all times for all sorts of mischief: for plundering the industrious;† for quarrelling with the quarrelsome;‡ for affording harbour to the fugitive.∥ Other inhabitants, none but the very profligates themselves, who were thus sent by thousands from British gaols, to be turned loose to mix with one another in this desert; together with the few taskmasters that were to set them to work in the open wilderness, and the military men who were sent out with them in large but still unequal numbers, to help to keep within bounds the mischief they would be sure to occupy themselves with when thus let loose. Excepting these military guardians, whom, the endeavour was, though a vain one, to keep from mixing with their wards, it was of the very dregs of society—of men unfit to live at large in society—of men proved to be such by experience, and those collected together in multitudes, that the mass of society in this colony has hitherto been, was even meant to be, and for some generations at least would, for any rational ground that the founders could have for expecting the contrary, continue to be composed.

To an eye incapable of seeing further into things than their names, the two above contrasted scenes of existence were indeed the same, since both were colonies; but in themselves no two measures could in this respect be more different than transportation of convicts in retail, into a colony ready formed by honest men, and transportation of convicts by wholesale, into a colony not formed, but to be formed, and to be formed of convicts.

“But may not a set of regularly honest settlers be collected thither by degrees? and thus, with the addition of the improved characters, how few soever at first among the emancipated convicts, accumulate in time into whatever majority may be requisite to form the basis of an industrious and thriving population?” Possibly, my Lord; the bounds of possibility are wide: not even very improbably, so it be in some future century; in the present one, hardly. For what is there that should draw thither men of thrift and capital?—draw them to a place which, except a part of the stock of necessaries for its own inhabitants, neither does produce, nor presents any the smallest indication of being about to produce anything that will not be at the very time produced in other places, as well as imported into Britain from other places at a much cheaper rate—to a place in which, in the meantime, “the industrious and well disposed” will (as the late chief magistrate and the late governor seem to agree in observing) “become a continual prey to the idle and worthless.”

Loud and frequent have been the complaints (nor altogether, I suppose, without truth) about inveigling men (as it is called) to North America; cruel and fraudulent are the epithets given to the practice: to North America, where if manners are not, upon the whole, so amiable, yet crimes of all sorts, probably crimes of depredation certainly, are even more rare than here: to America, where a human being not employed in industry, productive or professional at least, is scarcely to be found. If to invite men to such a country be an act of fraud and cruelty, what must the act of that man be, who should seek to engage an honest settler to sink his capital, his industry, and his prospects, in New South Wales?

But of the prospect of advantageous produce from this as well as all other sources, more will come to be said presently, under the head of economy, to which it more immediately belongs.

III. Third object or end in view—Incapacitation; rendering a man incapable of committing offences of the description in question any more: understand in the present instance in the same place—the only place (it should seem) that was considered as worth caring about in this view.

In this object was seated, to all appearance, the strong hold and main dependence of the system: of reformation it would (I dare believe) have been acknowledged in a whisper there was nothing meant but the form: it was a mere make-believe. In the expedient employed for rendering it impossible for a man to do any more such mischief in the only spot in the world worth thinking about, consisted the sum and substance of the new system of compulsive colonization.

This contrivance was as firmly laid in school-logic as could be wished. Mischievously or otherwise, for a body to act in a place, it must be there. Keep a man in New South Wales, or anywhere else out of Britain, for a given time: he will neither pick a pocket, nor break into a house, nor present a pistol to a passenger, on any spot of British ground within that time.

Depredation, though committed out of Britain, would indeed not the less be depredation; but happily for our statesmen, here came in another rule of logic to their aid. Things not apparent, and things not existing, belong to the same account; the depredation and all other kinds of mischief and vice not making their appearance—that is, not here in Britain—it is the same thing as if there were none. Of the aggregate mass of his Majesty’s subjects, good, bad, and indifferent, taken together, such as remained in this and the next island constituted, according to this mode of taking stock, the only articles that had any pretensions to a place in the inventory. Those who were to be sent out of it belonged neither to the list of souls to be saved, nor to the list of moral beings. On these principles, how the people thus sent thither behaved while there, was a point which, so long as they did but stay there, or, at any rate, did not come back here, was not worth thinking about. Such was the religion, such the morality, which presided over the design and execution of the picture of industry and reformation in New South Wales.

Admitting that immorality and misery are rendered matters of indifference by being shifted from place to place, and that mischief of all kinds, so it be excluded from certain parts of his Majesty’s dominions, may be regarded as annihilated—two points remain still to be considered:

One is, in what degree the contrivance thus hit upon for securing the country in question, against the future presence of the individuals in question, is productive of that effect?

The other is, how far the advantage thus purchased is consistent with the principles of law and justice?

The answer, not to keep your Lordship in suspense, will, I believe, be found to be, that so far as the object is attained, it is attained at the expense of justice; but that even with that expense, the degree in which it is attained is very imperfect: imperfect from the first, and, in the nature of things, destined to become more and more so, the longer the establishment continues; and that, upon the whole, the shame of inefficacy is, in the very nature of the project, added to the odium of injustice.

The nature of the expedient being to be stated in the first place, before the efficacy of it can be examined into, the topic of justice will demand, on this as well as other accounts, the precedence. A word or two in the way of history is on this occasion unavoidable.

Transplantation to the colonies, a measure employed for the first time (at least under authority at this time reputed legal) soon after the Restoration,* is a mode of punishment which in lieu of, or in addition to, the other punishments annexed to offences comprised under the unfathomable and inexpressive appellation of felonies, extended itself gradually into use, so long as the now independent States of America remained upon the list of British colonies. This, like other chronical punishments, being divisible ad libitum into portions of all lengths, different lengths, adapted to the supposed exigency of the different cases of delinquency, have on different occasions, with great care and precision, been marked out: seven years, fourteen years, and for life: the length beyond comparison the most common, seven years: to say nothing of other lengths, not without example, such as terms between 7 and 14 years, and between 0 and 7 years. The statute in which the pains taken about the measurement of these lots are more conspicuous (I believe) than in any other, is a statute of the present reign, the statute of 1779;* the original penitentiary act—one of the two acts, which in a letter that will probably be one day presented in a more particular manner to your Lordship’s notice,—declares himself to have “examined” and “understood the object of.” In this statute, the several gradations of this species of punishment, or those of them at least which are in use, are brought together; and a sort of system of equivalence is established between the several degrees of this species of chronical punishment and a set of corresponding degrees, in three corresponding scales of so many other species of chronical punishment: confinement in the hulks, confinement in the then intended national and definitive penitentiary-houses, and confinement in the then existing gaols, in their destined character of so many local and temporary substitutes to those general penitentiary-houses.

This punishment, which while British America continued the scene of it, had fulfilled the ends of punishment in some points, failed in others. To the primary object, that of example, it was most obviously and incurably incompetent. Unequal in its essence, rendered still more unequal by its accidental concomitants, it was to one man as bad as death, to another a party of pleasure. By an irregularly applied, as well as unexplicitly declared distinction, on most individuals it imposed the additional yoke of bondage; others it left in possession of independence. To any one who had proposed to himself a spontaneous emigration to the same place, it presented a license for practising with impunity such offences as would send him there. So far was pure incongruity. With reference to the two other objects, reformation and incapacitation, it proved efficacious or inefficacious according to contingencies—contingencies altogether out of the thought as well as view and influence, not only of those to whom it was administered, but of those by whom it was administered, as well as of those by whom it was ordained. In some instances a man became in a greater or a less degree reformed; and in those instances the mother country commonly saw no more of him: in others, he remained unreformed; and in those she was sure to receive him back.†

Reformation is a very complex object: thought and contrivance are necessary to the pursuit of it. Local exclusion is a very simple object: it may be aimed at almost without thought. In the one case, if any thing be effected, it must be by mind operating on mind; although operations purely physical may (as I have had already occasion to observe) be among the means employed, and with assured efficacy, in that view. In the other case, body operating upon body is sufficient to the task. This observation may serve to explain the ground of whatever little portion of thought can possibly have been concerned, in the choice made of New South Wales. In a plan in other respects proper and adequate, simplicity is unquestionably a recommendation of no mean importance. But it will neither stand in lieu of efficacy, nor atone for injustice.

When, for persons of the description in question, the obtainment of the accustomed situations in America was found to be, or supposed to be, or said to be, no longer practicable, another spot came to be looked out for, and the spot chosen was this new discovered and pre-eminently distant region, that had been christened, or new christened, New South Wales.

The word distant, were it not for the appearance of affectation, should have stood in capitals. In it will be found not only the grand recommendation of the plan, but the only assignable or so much as imaginable property, which, though it were but for a moment, can have presented itself in that light. Of the several efficient causes of probable reformation to be looked out for in a colony, as having actually been afforded by the old colonies as above, not a single one could have been found existing anywhere in this newfound land. Existing demand for bondsmen—for bondsmen to be employed in separate families—in a ready-formed community composed of men of thrift—with an opportunity of settling in a society of the same complexion on the return of independence—conveyance thither at an inconsiderable expense, or without any expense;—all these requisites were altogether wanting, together with all others that can be imagined.*Distance—the indisputable attribute of this favourite spot—distance, the supposed mother of security, was the virtue which it is evident was regarded as making up for the absence of every other. Of this attribute it was seen to be possessed in a degree altogether beyond dispute. The moon was then, as it continues to be, inaccessible: upon earth there was no accessible spot more distant than New South Wales. The security that had been afforded by America in this respect, the security against the return of the expelled emigrants, had been but an incomplete one: why? because the distance was comparatively so small; means of communication accordingly so abundant. The security, promised in that same way by New South Wales, was the best possible: why? because the distance was the greatest possible; means of communication already established, none; and such as for this purpose would be to be established, would be to be established by government itself: consequently (it was taken for granted) would be altogether at the command of government. From such premises, the conclusion, true or false, was obvious enough: Let a man once get there, we shall never be troubled with him any more.

Setting aside law and justice, the expedient was at any rate a plausible one: and except the revolutionary noyades and fusillades, the Calcutta black-hole, and a few other such foreign devices, a remedy against living nuisances could hardly be more promising or more simple. But suppose for a moment any such considerations as those of law and justice to be entitled to a place in the account, surely never did this country witness an exercise of power more flagrantly reprehensible, more completely indefensible.

In the design of it, if this were really the design of it, it amounted to neither more nor less than the converting at one stroke all inferior degrees of the species of punishment in question, into the highest—all finite lengths into one infinite length. In its conception, the operation is simple enough: banishment for life—for so many years as a man shall live—is as easy to conceive as banishment for any other number of years, fixed or limited; more so than banishment in different lengths, for different numbers of years. But the effects of it upon the legal system, which it was thus sporting with, would take a volume to delineate. All the distinctions which, under this head, the statute-book affords in such numbers, between punishment and punishment—adjusted with so much care to so many corresponding distinctions, real or supposed, between guilt and guilt—all this elaborate pile of distinctions, which for near a century and a half the legislature had been employing itself in building up, was upon this plan to be undermined and levelled at one blast.

In the whole body of the law, if effects are regarded, and not mere words, where shall we find a feature that bears any the least resemblance to this case? I protest I know not. A punishment has been precisely fixed by law—fixed not in species only, but in degree: fixed thus by each particular law upon the species of delinquency, it has been fixed afterwards upon each individual delinquent by a sentence grounded upon that law. The fixation thus performed, there comes upon the back of it another punishment—a punishment of prodigiously greater magnitude—a punishment added by one knows not who, added by an invisible hand, added by the hand of power (for in default of literal designation we must resort perforce to figurative)—added by the hand of power, without a hearing, and to all appearance without thought. In truth, so oblique was the course by which the object was pursued, that no adequate idea of it can possibly be conveyed by any concise form of words: a description of it will be attempted a little further on.

For a measure of this stamp, in what quarter of the English law can a precedent be looked for with any prospect of success? One case there is, in which after a verdict of conviction and damages found by a jury, the court, if they they think fit, have it in their power to increase the damages. It is the case of mayhem. I mention it as the nearest case, though at so wide a distance. Even in that case, not an atom of suffering is imposed upon the injurer, that is not in the shape of compensation converted into enjoyment for the benefit of the party injured. But so strange is the institution to an English eye, so incongruous to the spirit and general tenor of English law, that this singular instance of an apparent extension of punishment or something like punishment, after sentence or what is equivalent to sentence, would scarcely have been thought of but for its singularity, having scarcely ever, within my memory, been brought to view by practice.

For a lot of punishment to be cut down, cut down by royal prerogative, from the length marked out by law, to a length short of that which has been marked out by law, is a case common enough—a case within every day’s observation—a case but too common, were it not that in this quarter of the law, unhappily so loose and incongruous is the texture of it, as to render it matter of praise, perhaps even of merit, on the part of one of the three estates of the legislature, to make changes, even regular and habitual changes, in the work executed at former periods by the whole. Be this as it may, the case of rigour short of the law is in every day’s experience. But of rigour beyond the law, this surely may be set down for the first (as I dare hope it will prove the last) example. When the work of mercy and lenity is performed as above by the king’s prerogative, it is performed in retail—performed by a separate decision pronounced in each individual case. Where, by an abuse of the same sacred instrument (an abuse, the nature and progress of which may perhaps receive a more particular explanation in another place,) the work of rigour has been performed as here, it has been performed by wholesale; in a word, in the same summary and compendious style as that of the noyades and fusillades above mentioned.

In speaking of a rigour beyond the law, I must take the liberty of warning your Lordship against a wrong reading, which otherwise might have been suggested by preceding recollections. Rigour is the word here, not vigour:—not to vigour—not to anything like what is commonly understood by force—but rather to fraud—to the very opposite of open and manly force—belongs the credit of whatever is done in the way of rigour in the present instance.

“Oh but,” I have heard it said, “whatever may here be done, the law remains unchanged; rights remain untouched; rights remain inviolate. Now, as before, so long only as a man’s term of transportation continues, does his return to Britain stand prohibited: now, as before, the term ended, the prohibition is at an end. Let him come back then, if he choose it; nor, if he is able, is there any law to hinder him: no more law to hinder him, than if, in execution of his sentence, he had been conveyed to America, as in former times.”

I answer, so far as actual prohibition is concerned, legality out of the question, the fact is not precisely so; but of this afterwards. Supposing it were so, the plea might indeed serve, if words alone were of any importance—if effects, and such in particular as consist in human suffering, were not worth notice. When laws are issued, to what end are they issued, but to that of producing certain effects? When a law is issued, prohibiting a man from coming into a certain place, to what end is it issued but to that of preventing him from being there?

In both cases—in the supposed case of prohibitive law, and in the actually exemplified case of a system of coercion applied some how or other without the intervention of a prohibitive law—the object aimed at is the same. In both cases, it is prevention—prevention of the return of the individual or individuals on whom sentence of banishment has been pronounced. In both cases, it is by the opposing of obstacles to the deprecated event, that the prevention of it is aimed at. Thus far the two cases run together: where then lies the difference? In the supposed case, the obstacles employed are of that sort which, in the very nature of the case, are at all times liable to be surmounted, and in experience are in fact but too frequently surmounted: mere threats, mere words, by means of which an influence is endeavoured to be exercised over the will. In the really existing case, the obstacles employed, supposing them actually applied, are, in the very nature of them, insurmountable: absence of the necessary means and instruments of self-conveyance. In the one case, it is the will only that is practised upon: in the other case, the very power is taken away, or endeavoured at least to be taken away. In short, for what reason is it that physical obstacles have thus been preferred to moral ones? why? but because those physical means were regarded as more sure. In both cases, so far as obstacles of any kind are opposed to the exercise of the obnoxious act, the right of doing it is infringed to every substantial purpose. In the case, where the obstacle is most powerful, so far is the right from not being infringed, that it is in this case surely that the infringement is most complete.

Suppose it a case between individual and individual. Let us borrow Ugolino for a moment from Dante and Sir Joshua. A strong man has thrown a weak man into a dungeon, turned the key upon him, and left him there to starve: not a syllable to forbid his eating, not a syllable to forbid his coming out. The wretch lives for a week or so, and then expires. Physical obstacles, which rendered it impossible for him to escape and live, are employed in preference to ineffective threats. What follows?—that while he lives, it is not false imprisonment? that when he dies, it is not murder? No; but that the imprisonment is so much the more rigorous, the murder so much the more barbarous.

In this feigned case, it was by the strong man that the weak man was forced into the cave of death. In the real case, it is by authority of the law, that men by hundreds and thousands have been forced into New South Wales. If in this but too real case, staying there for life, because return has, with this express view, been rendered impracticable—if, while thus kept there for life, their stay there is not to be imputed to those who, in that view, sent them thither—then, neither in the feigned case, is the death of the prisoner to be imputed to the man, whom no one I suppose that thinks of the case, will scruple to call his murderer.

The mode of proceeding chosen in the view of securing the proposed effect, was of a piece with the effect itself. Had an act of parliament been passed, abrogating pro tanto in the lump the whole system of the transportation laws, and declaring that, in future, in whatsoever case transportation should be provided, nominally for this or that term of years, in effect the banishment should be for life, the measure would have been a severe one: it would have worn the appearance of an inordinately severe, and not very well considered one; but still, in respect of the course pursued for the accomplishment of it, it would have been an unexceptionable one. For in this case, being to be established by the direct authority of the legislature, and in the express words of the legislature, it could not but have been submitted to the legislature, submitted in its own genuine shape and colour, and, in that shape and colour, passed through all stages and all forms.

Unexceptionable in the mode, unexceptionable in point of form, the measure would not have been the less exceptionable in point of effect and substance. So palpably exceptionable, that I almost fancy your Lordship rejecting it as incredible, and saying to me, “Why encumber the argument thus with improbabilities? why perplex it with extreme cases?”

My Lord, if this be not precisely what was done, at any rate, this and more, and worse (your Lordship has seen already,) was actually done: done—or at least, so far as this was the real design and object of the settlement, endeavoured to be done. To give a particular and precise delineation of the course that was taken for doing what was done, would be a digression here, and must be referred to another place. To speak in generals—what was done in this behalf, was done by administration, by a sort of surprise, not to say fraud, upon the legislature. By an act of 1779, the same by which parliament supposed itself to have established the penitentiary system—by this act, in a hasty clause suggested by the exigency of the moment, the system then regarded as the preferable one not being capable of taking effect for some time, power was given to change the locus ad quem in transportation, from the quondam colonies in America, to any other place “beyond the seas;”* less latitude not appearing sufficient to insure to the transportation system even that temporary continuance which was all that was then intended for it. The evident object of that act was, to continue that mode of punishment upon a footing as near as possible to that on which it had stood ever since it was first instituted. Observing the latitude given for this purpose in the act, the founders of New South Wales laid hold of it, and upon the strength of it changed the real nature of the punishment, and placed it upon a footing as different from any footing on which it had ever stood before—as different from any that had been in contemplation of parliament,—in all essential particulars as widely different (your Lordship has seen) as possible. Of a measure, thus legal in form, thus illegal in spirit and in substance, one knows not well what account to give. It is and is not the act of the legislature. The power of parliament was applied to it: the will of parliament was not applied to it. Neither the will nor understanding of parliament had had any cognizance of what was done. Parliament was dealt with by administration, as a man would be dealt with by an attorney, who should give him a lease for life to sign and seal, telling him it was a lease for years.

True it is, that after the choice was made, and New South Wales was fixed upon—true it is that then, under colour of a clause in a later act,* but to the same effect, a fresh act was obtained from parliament,† an act of which the object, and even the sole object, was the foundation of this new colony. By foundation, I mean the doing all that was thought fit to be proposed to be done by parliament for that purpose, viz. the creation of powers for the organization of one judicial court: on the subject of legislative power, an inviolable silence being preserved, for reasons which I may have occasion to speak of in another place. But this fresh act, in which not a syllable was said of any of the existing transportation acts, nor of the virtual extension which the several transportation terms respectively created by them were destined to receive—this fresh act was but the produce of a fresh fraud of the same kind, coming upon the back of the former fraud, and committed in support of it. From the very tenor of the act, as well as from a variety of collateral circumstances relative to it, your Lordship will (I dare venture to say) see the allegation put out of doubt: the inquiry, I am inclined to think, will not be altogether an uninteresting one; but, as already intimated, it must wait for another place. What I acknowledge accordingly is, that the choice made of that situation has the authority of parliament for its sanction, and in so doing I acknowledge it to be legal. But what I assert and undertake to show is, that the mind of the legislature has never gone with it: and thence it is that, in speaking of it, I may here and there have suffered my pen to run on with a degree of freedom, such as, had I considered it as substantially the act of the legislature, my respect for so sacred an authority might scarce have permitted me to assume.

Thus it is, that for authorizing in express terms the conversion of all finite lengths of transportation-banishment into infinite, no act of parliament was in fact passed or intended to be passed: but what was intended, and in part accomplished, and this under colour of an act of parliament (viz. the act just mentioned) was, that the fate of the wretches in question should be exactly the same as if an act of parliament to that effect had really been passed. Judges were accordingly to continue, and have continued with the accustomed gravity, sentencing men to transportation for fourteen years, or for seven years, or for any number of years not greater than seven, or for any number of years between seven and fourteen (for thus stands the law in some cases,) understanding or not understanding, that under a sentence of transportation for seven years, the convict was to continue in a state of banishment from his native country—in a state of confinement within the limits of that unknown country—for the remainder of his life. Parliaments were to go on in the same strain, establishing the same distinction in words, and with the same determination on the part of the servants of the crown, not to suffer any of those distinctions to be carried into effect. In the case intended to be realized, and in the case above supposed, but rejected as too bad to be supposed, the indiscriminating rigour, the groundless oppression, are just the same: the difference is, and the only difference, that in the imaginary case, the rigour, the oppression, stands clear of fraud—in the actual case it is defiled by fraud, by fraud aggravated by a solemn mockery of the forms of justice: a fraud organized by the servants of the crown, and forced upon the judges, who have it not in their power to refuse the part they act in it.

Nor yet was it by a mere fraud—the fraud of conveying a man, under colour of an act which meant no such thing, to a place from which no prohibition (it was hoped) would be necessary to prevent his return: it was not in this simple way alone that measures were taken for that purpose. Positive orders your Lordship will see issued, addressed to men whose punishment was expired, prohibiting them from leaving the colony in express terms—orders issued in full and direct contempt of the several laws of partiament on which the punishment had been grounded. But of this in another place.

Nor is this all—for in this cluster of abuses was involved, at the outset of the business, the monstrous, and in this country almost unexampled iniquity of an ex post facto law: nor yet a mere particular ex post facto law, such as that which, under the name of privilegium, has been consigned by Cicero to infamy, but a general ex post facto law: a law of this most odious cast, established upon a wide extending scale. At the outset, convicts were found by hundreds, lying under sentence of transportation, for terms of different limited lengths, from seven years or under, to fourteen years. In all these instances, to a punishment appointed according to law and by a legal sentence, was superadded, or at least endeavoured and thought to be superadded, a punishment of much greater magnitude, inflicted, or at least meant to be inflicted, silently and without sentence: a punishment for the remainder of life, superadded to a punishment for years.

If among the group of convicts whose sentence has consigned them to a hulk, so much as a single individual were to be confined by the hulk-keeper with or without an authority from a secretary of state, that secretary of state acting therein with or without an authority from the council board—if in this way a portion of punishment, though but for a month, were to be added to the length of punishment appointed by the law, what a sensation! what an outcry! Nor yet surely without cause. Here—not in one instance only, but in hundreds of instances at once—to a punishment, of from fourteen years down to one year or less, is superadded a punishment of the same kind for ninety-nine years (to express the duration by the phrase used by lawyers to express it,) for ninety and nine years, if in each instance the wretch shall so long live.

I do not mean to say (for the case is not exactly so) that in effect there is no difference at all, between the lot of him whose sentence is for seven years and that of him whose term of transportation is for life: no, not even supposing them both to remain for life in the common scene of their intended fate. Transportation is indeed the punishment named by the law in both cases:—transportation, i. e. banishment, and that, intended to continue for life, is thereupon the punishment they are alike doomed to in both cases. But to mark the distinction between the two lots, here comes in the necessity of taking a second glance at another abuse, which has been already touched upon, and for which the only apology that could ever have been made is, that it was an ancient one. Transportation is the word used alike for all transportable convicts in the act of parliament: Transportation is therefore (I take for granted) the word that has been used for all alike in the judicial sentence or order, in virtue of which, in execution of these acts, the convicts have been sent abroad. Yet somehow or other, so it has been in practice, that under the same provision in the act, and under a judicial sentence or order couched in the same terms, transportation has been (as your Lordship has seen) to one man, simple banishment; to another man, banishment aggravated by bondage: as if to men in general, and in particular to men of British blood, the difference between bondage and liberty were a matter not worth speaking about.

This being the case, as to such part of the suffering, as (in the cases of two convicts sentenced to different lengths of transportation) is imposed by the express appointment of the law (I mean the simple banishment,) the extension thus given, under the present system, by this clandestine act of power, is in both cases really the same: what difference there is, lies in a point overlooked by the law, overlooked from the very first, as not worthy of its notice. The banishment—I mean the simple banishment—the mere continuance in the destined scene of banishment, is, or at least is hoped, and, by all who can find anything to say for the measure, expected to be in both cases for life: the only part of the punishment that has a different termination in the two cases is the bondage: the accidental accompaniment which the law in its wisdom has never yet looked upon as worth mentioning or caring about.

The bondage does not receive, nor therefore was meant to receive, any prolongation, at least any regular and avowed prolongation, from the choice made of New South Wales:* it is the banishment alone that does. But the banishment is the only part of the punishment which the statute law either speaks of in that light, or takes any care for the enforcement of: the bondage comes in by the bye: it was put in only to save charges.†

In speaking of the prolongation thus given to all these different lengths of banishment, a point I have all along been careful to keep in view, is the distinction between design and execution, between the effect intended to be produced and the effect actually produced. In its intention, it has to all alike been banishment for life. In effect, what has it been? To some perhaps what it was intended to be: to others, to many others, no such thing. For, not even at the first moment, at the time when the difficulty of evasion was at its highest pitch, did the effect come up with any uniformity to the intention: and the longer the punishment continues in use, the further and the further will it be from the attainment of this end. Many whose terms are expired, and who, with whatever views, pant for the exercise of those rights to which the law, as if it were in derision, pretends to have restored them, do indeed remain debarred from the exercise of those rights, according to the intention of those who devised and organized this plan of perfidy. But many—more, in abundance, than these politicians could have conceived—escape from this scene of intended annihilation, to afflict their mother-country a second time with their pernicious existence.

Then it is, that this expelled, this fruitlessly expelled mass of corruption—then it is, that (instead of putting on incorruption, as it was expected to have done by miracle, without any human means provided for the production of the effect,) it is found (as your Lordship has seen) to have put on a worse corruption, if possible, than before.

The price, in the way of injustice—the whole price is thus paid for the expected benefit: and it is but in an imperfect degree that the benefit is reaped. The proportions of penal justice are confounded; the poison of perfidy is infused into the system of government; and still the obnoxious vermin remain unextirpated.*

Your Lordship sees below how large, how indefinite, the number is of these exiles, that may be expected to return: the number of all descriptions: of those, whose return the governor may have been willing to permit, of those, whose return the governor may have been not willing to permit; of those, whose return he may have been willing to prevent, according to law; of those, whose return he may have been willing to prevent, contrary to law.

On this head, two further considerations may be not altogether unworthy of notice: one regarding number again—the other, quality.

As to number of returners, whatever it may have been hitherto, it may naturally be expected to be greater and greater, the longer the establishment continues: because, the longer it continues, the greater the population of it may be expected to be, and, on that and other accounts, the greater the number of vessels that touch there in a year, whether for the purpose of bringing in more convicts, or for any other purposes; whether belonging to this country or belonging to other countries.*

The consequence is, that the greater the use made of the colony in this or in any other way—the greater the increase of it in wealth as well as population—the greater, in a word, the degree of “improvement” it receives in all other points of view—the more incapable it becomes of answering the expectations formed of it, in regard to this its primary object—the more unfit, with reference to this the only real and substantial use that anybody has ever seen or professed to see in it.

Already has an open boat been known to furnish the means of escape; and that through the vast space between New South Wales and Timor. One of these days, as stations multiply, and the coasts become more and more difficult to guard, we may expect to see better boats, stolen or even built, for voyages of escape to Otaheite or some other of the many shorter voyages, with the help of a seaman or two to each of them, to command it.

Lastly, as to the quality of the persons—the sorts of characters, I mean, whose return may in the greatest proportion be expected. These are precisely those, from whom, on one account or another, the most mischief is to be apprehended. The species of delinquents, who with the greatest certainty can command the means of their return, are those who occupy the highest ranks in the hierarchy of criminality; the men of science and connexion among depredators; the master-dealers who have accumulated a capital out of the profits of their trade; the receivers of stolen goods, those wholesale merchants who, by the very nature of their prolific department in the division of criminal labour, are, in a swarm of connected depredators, what the queen bee is in the hive.

It is the indigent, and unconnected malefactor alone, that stays there, for want of the means of buying his way back: among these, it is the unenterprising, and thereby the least dangerous species of malefactor, that will be most apt to stay there, for want of being able to employ with success those means of escape, which his more ingenious, or more audacious, and on either account more dangerous comrades, make such abundant and successful use of.

In the contemplation of the beauties of the colonial establishment, your Lordship has almost lost sight (I doubt) of the establishment sacrificed to it, and the parallel that was to be kept up between the favourite and the discarded measure.

During the continuance of the penal term, at any rate, the advantage, so far as the article of incapacitation for fresh offences is concerned, may, I flatter myself, be stated as being clearly enough on the side of the penitentiary establishment. Even in an ordinary prison, an escape is not a very common incident: under the new and still more powerful securities of so many sorts, superadded to the common ones, in a prison upon the panopticon plan, I have ventured to state it as, morally speaking, an impossible one.

After the expiration of the penal term, the part of the penitentiary house at home, so far as prevention of future delinquency is concerned, becomes, in comparison of that of the colony at the antipodes, I must confess, but an under part. My means would have had for their limits those of law and justice: I could not have added an illegal indefinite punishment to a finite legal one; I could not have flogged men for the exercise of their rights. I am not a—, to tread upon the law. No, not in any case: so that how little soever he may have done in this way, in comparison of what he meant to do, that little will always be so much more than could in this way have been done by me.

For reformation indeed (as your Lordship has seen) I had strong means, and even physical means: but as to absolute incapacitation, incapacitation with regard to future mischief, physical means (I must acknowledge) fail me. It was on reformation (I must confess) I had placed my first reliance: first in order at any rate—and it was not a weak one. Drunkenness, in the “improved colony,” universal: in a panopticon penitentiary house, impossible. Religious exercise—there odious, and generally eluded: here, uneludible, and by every imaginable and becoming device rendered as inviting and interesting as possible. Profitable employment—there again odious, in a great degree eludible, and eluded as much as possible; here, uneludible again, and by diversification (the opportunities of which would be abundant) and choice, as far as choice is admissible, rendered from the first not odious, and, by habit and universal example, easy and even agreeable.

After emancipation, profitable employment—there not wanting indeed, but still generally irksome, because, under preceding habits, all along rendered so, by habitual sloth, drunkenness, and dissipation: here certain, and in whatever shape, habit, concurring with choice, may have rendered most agreeable, to bodies and minds invigorated by inviolable temperance.

Constituted as human nature is, it may be too much to expect, that even these securities should in every instance be effectual: but where they fail to be so, here presents itself, in dernier resort, incapacitation—absolute incapacitation with regard to any third offence, after conviction of a second: I mean of course by consignment to the penitentiary-house for life. Take away this instrument of incapacitation, and there remains (as at present) no other but the savage and unnecessary resource of death, or the ineffectual resource of transportation: transportation nominally, and frequently but nominally, for life.

Experience is a standard I never miss appealing to, so far as it can be employed. On one side, on the side of the penitentiary establishment, no direct reference can, unfortunately, be made to it. To afford experience, it must have had existence; and that it should not, gentlemen took effectual care. Yet, notwithstanding all their industry, added to all their negligence (for the article of escapes has shown your Lordship how difficult it is to distinguish the one from the other by their effects,) a testimony nearer to that of direct experience—of experience of the penitentiary plan itself—than could easily have been imagined, has actually started up: experience, though not precisely of that very instrument of security, yet of those means of security that are most like it, and stand next to it.

The characteristic principle of the colonization plan (loose confinement, without inspection) having been tried and found to fail—to fail as completely as it was possible for a principle to fail—one resource alone remained. This was the opposite principle, close inspection—inspection as close as there were means for making it; with or without confinement, also according to the means. A jail is not quite so easily built as talked of, not even in England, as I have had occasion to know but too well; still less in New South Wales, where even the makeshift dwelling-places could not be put together fast enough. A jail, however, being found to be the one thing needful—and among all countries most needful in that remotest of all accessible regions, to which delinquents were thus sent, on pretence of saving the expense of it—a jail, such as it was, was accordingly erected, as soon as it could be erected, and, moreover, as jail-room—room in a real immoveable jail—in that which, in the literal sense of the word, is meant by a jail—could not, with every exertion, be provided fast enough, a succedaneum to it was added—a sort of metaphorical ambulatory jail, in which the eye of an inspector, assisted or not by fetters, supplied, as well as it could, the place of prison-walls. The jail, as might have been expected—a jail built under such circumstances—was not always man-tight: it was, however, better than none at all, and, with all its imperfections (whatever they were,) was still the best and ultimate dependence.

This, then, was the real fruit of the establishment: to show (to such eyes, I mean, whosoever they may be, as are not self-condemned to incurable blindness,) to show its own perfect inefficacy, and the absolute necessity of that other establishment which, in its two different shapes, has twice been sacrificed to it, and in the vain hope of saving the honour of so many honourable and right honourable personages, still continues to be sacrificed to it. Such was the upshot of this grand Colony-founding expedition!—to save the expense of an originally improvable, and afterwards beyond all former conception improved, system of inspection-management: men sent off year after year by hundreds to the antipodes, to be kept without employment to corrupt one another under a sort of incomplete inspection-management in a makeshift jail, at an expense (for this too your Lordship will see) from twice to four times as great as that of the system sacrificed to it. Happily, on those terms, and at that distance, the necessary jail, such as it was, was built.* In New South Wales, under the law of fabricated necessity, as in Constantinople, under the lex regia, the will of the Imperator was the sole law—sole undisputed law—law not in name but in effect—law not to be dealt with like the law of Parliament—not to be trod upon, but to be obeyed. It was law paramount, my Lord, and without any dispensing power, such as (your Lordship will see) has been exercised in this country to overrule it. It being the legislator’s interest, as well as that of every other honest man in the colony, that the jail should be erected, and his conception of his interest not being disturbed by imaginations, such accordingly was his will. A law was passed for the building of that jail, and (how incredible soever it may seem to honourable and right honourable gentlemen in this country, that a law for building a jail should find obedience) built it was.

In addition to the positive testimony of the fact, it seemed necessary that a demonstration should thus be given of the possibility of such an event, lest, without some such preparation, judging of the state of law and politics there by the state of law and politics here, your Lordship should have rejected it as incredible.

The testimony does not stop here. Not only among the convicts, who were transported to the antipodes to be kept in order, but among the soldiery that were transported with them to help to keep them in order, the root of all disorder was found to he in a deficiency of inspection: and accordingly, whatever imperfect check was ever given to the disorder, was given to it by supplying that deficiency—supplying it either by inspection simply, or by inspection coupled with confinement, as the causa sine quâ non for rendering it sufficiently steady and effective.

In that land of universal and continually increasing corruption, the guardian class (as might have been expected) became corrupted by their wards. To stop the contagion, exertions on the part of the officers were neither deficient, nor yet successful. After years of ill success, what at last was the remedy?—a wall:—barracks, with “a high brick wall round them,” or “an inclosure of strong paling,” to answer the same purpose.†

Under the head of Incapacitation, one instrument I had like to have omitted, to the credit of which, the founders and conductors of this establishment have a most indisputable and exclusive title—and that is death. For keeping a man out of harm’s way—out of harm’s way in both senses—out of the way of doing it—out of the way of receiving it—the homely proverb is applicable in this case with indisputable propriety—Stone dead has no fellow.

In the course of about eight years and a half, from the 13th of May 1787 to the 31st of December 1795, convicts shipped 5196: died in the passage 522:‡ and all not told. Such care had the founders taken of their colonists, that, in the mere passage, without reckoning famines at the end of it, they had decimated them: more than decimated them, as per account, and the account is evidently an incomplete one, the article of deaths being left unnoticed in regard to five ships out of twenty-eight.

“Bad enough indeed: but did not the fault he in the contractors?” Yes, my Lord, there was but too much fault in the contractors, but it was not the less the fault of those who contracted with them, and of the system under which they contracted. It was the fault of—and his man of economy, by a double title; for having fixed upon so incurably bad a system (sacrificing to it the so much better system they found ordained by parliament with the assistance of the twelve judges,) and for having rendered the management so much worse than even under that bad system, it need to have been made.

First cause of the mischief—length of the voyage: the effect of the unexampled distance of the spot—of the spot chosen to be colonized, and to be thus colonized.

Second cause of the mischief—want of interest on the part of those on whose power depended the prevention of it—the profit which the transporter had it in his power to make by putting people to death—whether by starving them or crowding them—this profit in both cases being left to be reaped with impunity, and unbalanced by any profit to be got by keeping them alive:—want of that care which might and ought to have been taken, to do what in that case it would have been so easy to do—to bring the two antagonizing forces—duty, and that sort of narrow interest which acts in opposition to duty, into coincidence.

These causes were, both of them, peculiar to this new transportation system: they had not, either of them, any place in the old. While the territory, to which the transportation was allowed to be made, was comprised within the limits of what was then British America, the length of the voyage was scarce the third or fourth part of what it is in the case of New South Wales. Thus it stood in point of distance. The transportation was performed under the care of those, who, in the case of each individual under their charge, not only had nothing to gain by his death, but had everything to lose by it. The animal was a saleable commodity, the carcase not. The sale was not only a source of profit, but the only source. Thus it stood in point of interest.

Turn now, my Lord, to the penitentary system. Under both editions of it, voyage none. Under the original system, the managers no gainers by the death of any mortal under their management: under the improved edition of it, the manager a great loser by every one—a hundred pounds in hard money, besides other losses not susceptible of a precise and concise estimate, but which would in many instances rise to a still superior amount.

This stipulation, to the want of which, more clearly than to any other cause, may be referred the loss of so many lives as were lost in the passage to New South Wales, was not only contrived by me for my contract, and inserted by me, but maintained by me against a strong reluctance to the contrary: and after all, it was rather to the influence of will over will, of humble importunity over despotic carelessness, than to any influence of reason on such faculties as I had to deal with, that I could find any ground for attributing my success:—if success it can be termed, to receive a plighted faith, with a clandestinely promised and carefully concealed determination to break it at the bottom of it.

What the cause of this reluctance was, I do not pretend to know: whether the wish was, that the wretches should die to save charges and lighten the budget, or that the influence of profit and loss over the human breast had not been able to demonstrate itself to gentlemen even in that situation, and after so many examples of it as the voyages to New South Wales had even then been already forcing upon their eyes. The idea of establishing this coincidence, and in some such way as that proposed in the case of the penitentiary establishment, has, since that time, (if my recollection does not deceive me) conquered in some other instances the predilection for accustomed abuse, in preference to unaccustomed remedy, and forced its way into legislation or administration, I forget which. But the case is not worth hunting for: it would be found (I believe) either in the convict transportation trade, or in the slave trade, or both.*

In the account of death, I have mentioned as yet but one of the efficient causes of this species of security, viz. duress on ship-board. On their arrival at this land of cruel promise, the fugitives from pestilence were received by famine. Those who had escaped the first decimation, were now to go through a second. In one year (1792,) out of fewer than 4000 convicts, 436 breathed their last, of whom more than 400 were carried off by famine. I say by famine, for such was the degree of natural salubrity in the spot (a degree so prodigiously superior to any thing which antecedent experience could have promised,) that in 1794, out of a greater number there died but forty two, and in 1795, but twenty.*

At the end of the year 1792, the destroying angel having been at work in this way for three years, out of the whole number shipped off within that time, more than one fourth, by sea and land together, had died: out of 4792, viz. 1291.

In this combination of associated scourges (both of them in no small degree the product of official management) one circumstance requires to be observed. Of the mortality on both elements, that part which took place at sea, deplorable as it was in itself, operated in effect in diminution of the whole. The 522 who by pestilence or famine perished in the voyage—these enviable, because earlier victims—these superfluous wretches, had they landed, would probably, and by a number still greater than themselves, have increased the multitude of those subsequent victims, whom, by an undisputed title, famine called her own. From the amount of the least ration necessary to health, take away a certain portion, only a part may die: aggravate the deficiency by a small fraction more, the same fate may involve the whole. The 522 and upwards who perished at sea, may, by having been thus destroyed in time, have saved more than 521 from being destroyed by famine, in addition to the 639, or thereabouts, who actually received their quietus from that scourge.

“But,” says somebody, and not unplausibly, “to what good purpose seek, at this time of day, to rip up these old sores? In respect of life and death, the establishment presents two features: mortality at the outset; health and vitality afterwards: the mortality an infliction common to all new colonies: the vitality, a blessing in a degree altogether peculiar to this of New South Wales. The bad is past, and without remedy: for the future, (you yourself cannot but allow) the prospect is, on this side at least, a fair one.”

Yes, my Lord, in the colony itself, men being once landed there—in the several spots at present settled, and, so far as concerns ordinary disease—the healthiness of the climate, and that in a more than ordinary degree, does indeed appear sufficiently established. But should the existence of the settlement, (which God forbid on so many other accounts,) be protracted for a period of considerable length—suppose double the length of that which has already elapsed—it will then be seen whether the increase of vitality gained by exemption from ordinary disease, be not dearly paid for by a decrease produced in the same period by the operation of the scourge of famine. Further on, as the facts rise to view, I may have occasion to sketch out the very particular nature of this danger, and to submit to your Lordship, whether it be not inextricably interwoven with the unchangeable circumstances of the spot.

The pestilence too—the preliminary pestilence during the voyage—will be found, and in a very high degree, not a mere accidental and occasional concomitant, but an essential and irremoveable one: for irremoveable it must be in no inconsiderable degree, if it be really what it appears to be, the joint result of the character of the passengers and the duration of the voyage. Leave them unconfined, they mutiny; confine them, they die. Negligence, above or below, may have augmented, as it does indeed appear to have augmented, the amount of the mortality from this source: care in both places may lessen it; but in such circumstances, mortality, and that in a most deplorable degree, is an affliction that, on any right consideration of the nature of the case, can scarcely but be expected ever and anon to take place, spite of the utmost care. Accordingly, as we are informed by Mr. Collins (ii. 222) in the Hillsborough, a ship that arrived in New South Wales with convicts in July 1799, the deaths were, out of 300, no fewer than 101, not to speak of sickness; although, according to the conception of the same ever candid reporter, “it was impossible that any ship could have been better fitted by government for the accommodation of prisoners during such a voyage.” “The gaol-fever lurking in their clothing,” is the cause to which he attributes this mortality, amounting to upwards of a third. “The terms of the charter party” he understands to have been “strictly complied with.”

IV. Fourth object or end in view, Compensation, or Satisfaction: the means of it to be extracted, if possible, out of the punishment, and made over to the party specially injured (where there is one) in satisfaction for whatever loss or other suffering had been brought upon him by the offence.

In speaking of this as among the ends of punishment, I find myself driven, against my wishes, upon a distinction which, as often as it presents itself, can never be other than an unpleasing one: I mean the distinction between what exists, and what on the score of public good it were to be wished did exist, in point of law. That, in the case of transportable offences—of offences of the rank of those to which that species of punishment has been annexed—no such result is among the objects of our system of penal law, unless by accident, is but too indisputable: whether it were not desirable that it should be, may be left to every understanding, as well as to every heart, in which the study of law has not extinguished the sense of justice.

Observe, my Lord, the incongruity, the inconsistency. Where the offence is deemed least enormous, the party injured has his chance of satisfaction for the injury: where it is deemed most enormous, and punished accordingly, he has no such chance. Not that anything can be more satisfactory to anybody than this arrangement is to Blackstone.* As often as a man is hanged or transported, or kept in a jail or flogged, satisfaction is thereby given to somebody or to something: this being assumed, what sort of a thing the satisfaction is, or who gets it, is, in the learned commentator’s account, not worth thinking about.*

To your Lordship’s most humble servant, since he conceived himself to understand what satisfaction meant, nothing but dissatisfaction (he will confess) has ever been afforded by the arrangements thus made with reference to it; and with these feelings, some sixteen or eighteen years ago, he set to work, and travelled through divers investigations in relation to the subject. Cases, by injury or otherwise, calling for satisfaction, with the reasons for affording it—party to whom—party at whose expense—it shall be afforded—quantity and certainty of satisfaction—different species or modes of satisfaction, adapted to the nature of the several injuries. Such were among the subjects of those labours, the produce of which, lately rescued from the spiders by a friend, should be laid at your Lordship’s feet, could time be spared for any such trifles from your Lordship’s sublimer occupations.

Nine or ten years ago, in drawing up the proposal for my penitentiary establishment, a thought struck me, that on paying the whole expense of the experiment, I might perhaps be allowed to purchase the satisfaction of stealing the idea into practice. Amidst the blindness and negligence, the marks of which appeared but too conspicuous, my hope was, that, under favour of that vulgar and almost universal jealousy, that would rather lose a ten-fold public benefit than not nibble down to the quick the recompense to the individual who should give birth to it, a plot even for doing good might pass undetected. I had, however, miscalculated: gentlemen were too sharp for me: what was wanting in discernment, had been supplied by prejudice. When the proposal came to be turned into a contract, the battles I had to fight would be here an episode, upon what I fear has already been accused of being itself an episode. Careful of my interests, as I myself was negligent—seeing deeper into them by a glance than I had been able to do by the calculations and meditations of months or years, gentlemen trembled lest I should ruin myself.

To let your Lordship into a secret, the danger of loss was as nothing: diminution of gain was all the sacrifice. What I bound myself to do in this way, was limited by considerations of necessary prudence: my hopes, and, as far as means should extend, my intentions, were to do more. Your Lordship is now master of my secret; which, to complete the confession, has never been such to anybody that would allow me to hope he might be prevailed upon to listen to it.

To return to the question. In New South Wales, the annual value of a man’s labour being minus £46 : 5s. or some such matter, the surplus applicable to the purpose of compensation could not be great: I mean, the positive surplus, extractable from that negative quantity, for the purpose of being converted into the matter of positive compensation, payable to the individual in Great Britain who had been a sufferer by the offence for which the convict in question had been consigned to New South Wales.

I hear your Lordship stopping me. “The idea of compensation being, in such a case, so novel—novel to a degree which you yourself, sir, have even been forward to acknowledge—the absence of it cannot, consistently with justice, be objected as a blemish to that system of punishment, of which the scene was laid in New South Wales.” Be it so, my Lord: but the task in hand is—a parallel to be drawn between this exotic system and the home system, which has been set aside by it: and the mode of trial chosen by me, not knowing of a better, was, by their respective degrees of conformity to the several objects or ends of penal justice: and, at the very outset, in speaking of those ends, I assumed the liberty (I hope not altogether an unreasonable one) of adding to those actually and habitually aimed at, such others, if any, in regard to which it might appear reasonable and desirable that they should be aimed at. But, in regard to this of compensation, as far as my opportunities of observation have extended, and from all I have been able to collect from offices of insurance, courts of justice, and other places, it has appeared to me that, when a loss has been suffered, the receiving back again the amount of it, or so much towards it as may be to be had, is an event pretty generally looked upon as a desirable one; I mean, in the eyes of him by whom the loss has been sustained: nor, saving Blackstone, and those who think with Blackstone, has it ever happened to me to meet with any person, to whom it has presented itself in the opposite point of view, unless those be excepted, at whose expense and to whose loss the matter of compensation was to be found; a class of persons whose repugnance would not, I believe, on the present occasion, be regarded as an insuperable obstacle, forasmuch as, by the supposition, it is intended they should undergo punishment—and a degree of punishment, of which the mortification from such loss would be but a part.

If, then, it may be assumed that compensation presents a legitimate title to a place among the ends of penal justice, it appears further to my humble conception, that supposing, with the favourite system of exotic punishment in one scale, and the discarded system of home punishment in the other, the balance were to be found to hang exactly even (the weights from the four other topics, example, reformation, incapacitation for fresh offences, and economy, being collected and thrown in on both sides) that on that supposition, I say—and that I hope, not a very presumptuous one—a few grains of compensation might (forasmuch as there could be nothing of the sort in the opposite scale) be found peradventure to preponderate.

This is all I presume to contend for under this head: and here ends all the trouble I wish to give your Lordship, for the present at least, on the subject of this unfashionable and little regarded end of penal justice.

V. Fifth head of comparison between the two systems: fifth and last object or end proper to be kept in view in a system of penal legislation: the collateral object of Economy: economy in respect of the aggregate expense of the establishments allotted to this purpose.

In the 28th Report of the Committee on Finance, your Lordship possesses a document in which this topic stands discussed, with that comprehensive and demonstrative accuracy in which the advocates of the penal colonization system have never ceased to behold their sentence. I beg your Lordship’s pardon: instead of advocates, I should rather have said supporters; for, to be an advocate of a system, a man must have something to say for it, which in the case of a supporter is not necessary. In the present instance, in the character of advocates, I have always found gentlemen as silent and modest as in the character of supporters they have been found powerful—and by dint of power firm and strenuous. In the epithet, the so often quoted epithet, “improved,” consists (as your Lordship will find) not only the substance, but the entire tenor of their argument: and on what sort of foundation that epithet has been applied is a point on which, by this time, your Lordship is not altogether unprepared to judge. Including, as it does, the whole budget of their arguments, for all occasions, on which the merits of the favourite establishment can come in question, it would be injustice to refuse them, on any occasion, the full benefit of it.

According to the calculations in the above Finance Report—in New South Wales, the average annual expense of convicts, per head, varying according to a variety of statements and suppositions, is from £33 : 9 : 5½ to £46 : 7 : 9¼; the highest rate of expense the most probable.

Say, accordingly, rate of expense of the colonial establishment to the penitentiary establishment—in round numbers, from somewhat more than two to one, to somewhat less than four to one.

True it is, that in the course of the seven or eight years, during which the pretence for relinquishment on the ground of lapse of time, had been manufacturing, the expense of necessaries had received such an increase, that, without some such addition as between £4 and £5, the faith plighted by the acceptance of the proposal in 1793, must (as your Lordship may have observed from my armed,‡ and therefore suppressed memorial of April 1800,) have been violated in substance. True it is also, that by the compliment paid to—in the change of the spot from Battersea Rise (the spot chosen by the twelve judges, &c., and valued by a jury under the act of 1779,) to Tothill-fields, an additional expense would have been incurred: an expense, the amount of which, though not capable of exact liquidation, might, supposing the lot had been completed, be set down in round numbers at another £10,000: so that, upon the whole, the expense per head per annum of the penitentiary system, on the supposition of the thousand prisoners, would have been to be raised from about £13 : 10s. to about £18, 10s. But the difference, amounting to about £5 a-year per convict, belongs plainly to no such account as that of the original and proper expense of the penitentiary system: it may be set down to the account of public money wasted—wasted between—and—by the one of these—and incorruptible members of—, in spite of the most strenuous remonstrances on my part, out of compliment to, and for the accommodation of the other.

“But the expense,” says somebody, “will decrease: it was expected to be great, till the colony raised its own provisions; but now that period is arrived.”

My Lord, if it were put to me to say, honestly and sincerely, whether the expense per head were most likely to increase or to decrease (reckoning from the last amount as stated in the report of the committee of finance), I should certainly answer—to decrease, and that in a considerable degree: though at the sametime, were I to be asked whether any considerable decrease would be to be depended upon, I could not answer otherwise than in the negative.

On the other side of the question, there are two other points, to which I could venture to speak with much greater confidence.

One is, that the rate of possible decrease has its limits; and those limits such, that there is not any the smallest chance whatever, that within the compass of the present century the rate of expense per head in New South Wales will be reduced to a level with the rate at which, if the public faith had been kept with me at the outset, it would have stood under the penitentiary system. I might perhaps add—nor even to a level with that at which it would now stand, if so much of the public faith, as at this time can be kept with me, were now kept.

Another is—that, long before the rate of expense per head, in New South Wales, is reduced so much as to the level of what it would now be under the penitentiary system, this latter expense would be reduced to nothing at all.

In relation to the first of these two points—the probable amount of the decrease in the case of the New South Wales system—if our expectations are governed by those which, according to the latest documents, were entertained by the conductors and supporters of it, they at least cannot complain much of the estimate.

Of the expense of the ten or eleven first years of the existence of this settlement, being the period comprised in the account signed Charles Long, 16th May 1798, and marked O in the 28th Finance Report, printed 26th June 1798, the grand total, at that time brought to account, amounted to £1,037,000. This total is compounded of seven divisions. One of them is intituled, “Expense of victualling the convicts and the settlement from home.” To this division a note is subjoined, expressive of the expectations of the conductors and supporters of this system, in relation to the reduction of the expense. “It is supposed,” says the note, “this expense, compared with the numbers victualled, will gradually decrease.”

It is to this division (your Lordship will have the goodness to observe)—it is to this division that the expectations thus declared confine themselves: of no other of the seven divisions is any such expectation so much as hinted.

In this £37, then, your Lordship sees that quantity towards which, according to the expectation of gentlemen who are urged by every imaginable motive to put the best face possible upon their “improved” colony, may be considered as likely to be making approaches, from time to time, but to which, even according to expectations so circumstanced, it can never be considered as susceptible, in the nature of the case, of ever being reduced.

But in this £37 your Lordship sees a rate of expense the exact double of that of the penitentiary establishment, taken at its latest and artificially augmented nominal amount, £18, 10s.

Which was the original and proper rate.*

Here, then, as in a nut-shell, your Lordship may see the morality, the economy, and the logic of right honourable gentlemen—all in their genuine colours.

For seven years together, by a course of management which I may have occasion to exhibit elsewhere, they were manufacturing their “lapse of time;” and thus was formed one of their four grounds for the relinquishment of the incommodious measure.

In a still longer space of time (adding preceding delays) they manufactured a necessary “increase of terms;” and this was another of their four grounds: and, in these two harmonizing features, your Lordship beholds the morality of honourable and right honourable gentlemen delineated to the life.

And here your Lordship has another sample, of that congenial cast of economy, for which the public is indebted to the contrivers of the never-to-be-forgotten Poor Bill.

It is to save the public from being burthened by that “increase of terms,” to which, not altogether without reason, they apply the attribute “great”—to save his Majesty’s subjects from paying £18 : 10s. that they saddle the present generation with £46 : 5s.—leaving to some future generation its chance for seeing the expense reduced to a sum between that and the £37.

And here, in conclusion, your Lordship sees a sample of that logic which has led to such economy, and proved such morality to be conducive to true interest, and compatible with lasting fame.

Your Lordship (I hope) has not forgotten, that, in relation to every one of those points which either have been, or ought to have been its direct objects—example—reformation—incapacitation in regard to ulterior offences—compensation for the mischief by past offences—the establishment has been (according to the nature of each object) as completely unconducive, or as strenuously repugnant, as it is possible for an institution to be: and it is for so pre-eminent a degree of unfitness with reference to all these its direct ends, that a compensation was to be looked for on the collateral ground of economy;—economy, the only ground so much as hinted at—the strong and favourite ground of right honourable gentlemen:—the only one of the five objects so often mentioned that appears ever to have had any pretensions to the honour of their notice: for, as to the confining the mischievous activity of convicts—confining it, by lawless force, to the spot from which the law, had its force been equal to that of right honourable gentlemen, would have set them free—confining it to a part of his Majesty’s dominions, and thereby preventing it from displaying itself in any part except that one—as to this point, I have already had occasion to observe, that change of place and annihilation are not the same operation to an ordinary understanding, whatever they may be to extraordinary ones.

“In arithmetic,” (says Mr. Rose most truly* ) “there is no eloquence to persuade, no partiality to mislead. In its calculations, therefore,” (I keep on saying with the right honourable gentlemen at my respectful distance,) “if the reader will have the patience to peruse them, plainly and fairly, as they are given in the preceding pages, he cannot be at a loss for his decision. To them the writer of these sheets,” (I still keep up with him,) “can with confidence appeal. The subject,” he continues and concludes, does not “admit of favour, but it cannot fail to obtain justice.” There—there, alas!—he distances me. The subject—the subject in which I was concerned—did admit of favour, and therefore it could not obtain justice.

So much for the contingent decrease upon the expense of the favourite establishment. Your Lordship may now compare it with the decrease already hinted at, in the case of its devoted rival. Of this expense, the continuance being limited to that of the longest of two lives, one of them a very insignificant and useless one, was in June 1798, in a valuation printed in the 28th report of the finance committee, estimated at from about 12⅖ to about 13¾ years;† and, in the course of the four years and more, which gentlemen have since contrived to make elapse, those two lives (it will be comprehended without much difficulty) have not, under the care thus taken of them, increased much in value.

Thus much, on the supposition of a reduction under one of the seven heads of expense. Against this will be to be set the contingency of an increase, under two other of these heads: a contingency which does not present itself as altogether an improbable one: I mean those of the military and naval establishments; to say nothing of the civil, which is so much inferior to the least of them.‡

Your Lordship has not failed to notice in its place the lady’s letter. The initial and principal part of it brings upon the carpet this same topic (and sure enough, my Lord, it is not from that source alone that your Lordship has heard of it,) the two sorts of things at present needful to the “improved” colony—more vessels and more troops. The passage is in these words:—

“Port Jackson, 7th October 1800.

“H. M. Ship Buffalo, returning to Europe, gives me an opportunity of writing to you, and of mentioning the uncomfortable state of anxiety we are kept in by the late importation of United Irishmen. For these last six months we have been under some apprehensions: but—, disbelieving their intentions,—took no steps to prevent their designs, until last Sunday week, which was the day fixed for the destruction of the military and principal families at Paramatta; a considerable settlement fifteen miles from this. The alarm being general, prevented their meeting: but above thirty of the ringleaders were apprehended and examined, when the greatest part confessed the horrid plot. Most of the passengers in the Buffalo treat this business as ridiculous: but this is probably because they are not likely now to partake of our danger, or from their not knowing the dreadful enormities already committed by these people in their own country. Our military force is very little in comparison of the numbers of Irish now in the colony, and that little much divided: the Buffalo’s sailing leaves us without any naval protection whatever. Much trouble may befal us before any succours can arrive, even after our critical situation is known; and we have every reason to believe that other ships, with the same description of people, are now on their voyage to this place.”

That these apprehensions, though expressed by a female pen, were neither unfounded nor exaggerated, appears pretty well established by posterior accounts. For these, indeed, I have no other warrant than that of the newspapers from which they are copied. All the knowledge I have of them is of the negative kind, viz. that I know nothing whatever, either of the authors of the respective articles of intelligence, or of the manner in which they found their way to the respective prints. But even this negative knowledge is not altogether without its use and application, since the result of it is, that the contents cannot have received any undue tincture from any motives by which the present representation may be supposed to have been tinged.*

“But New South Wales,” (it may still be said,) “New South Wales, besides being an establishment for the maintenance, employment, and reformation of convicts, is moreover a colony: and, as colonies in general are admitted to be valuable possessions, so must this too; since this, whatever becomes of it in any other character, remains at any rate a colony.”

My Lord—to confess the truth, I never could bring myself to see any real advantage derived by the mother country, from anything that ever bore the name of a Colony. It does not appear to me, that any instance ever did exist, in which any expense bestowed by government in the planting or conquering of a colony was really repaid. The goods produced by the inhabitants of such new colony cannot be had by the inhabitants of the mother country, without being paid for: and from other countries, or the mother country itself, goods to equal value may, without any such additional expense, as that of founding, maintaining, and protecting a colony, be had upon the same terms.

By accident, and for a time, there may indeed be, in the rate of profit obtained in dealing with the inhabitants of the new colony, a superiority with reference to the rate of profit obtained in dealing with other inhabitants of the mother country, or with the inhabitants of other states that are at the whole expense of their own maintenance; but such superiority is either not regarded as worth thinking about, or else tacitly assumed, and at any rate, never so much as attempted to be proved: while, on the other hand, an inferiority is at least as probable.* The supposition universally entertained—the supposition all along, though tacitly, assumed—the supposition on which statesmen speak and governments act, is—that the goods of the inhabitants of the colony—the productions of the colony—are obtained for nothing;—that the capital employed in carrying on the trade with the colony would not have yielded anything—would neither have yielded the ordinary rate of profit, nor any rate of profit at all, had it been employed elsewhere—had it been employed in any other branch of productive industry. On this supposition, the whole amount of the annually imported produce of the colony, figures annually on the side of national profit, without any per contrâ on the other side: or rather (what is still worse, and, if it were not so universal, more flagrantly absurd,) the export, by the sacrifice of which this import is obtained, is also considered as national profit: the loss, not only not deducted from the profit, but added to it.

Thus then stands the real account of profit and loss, in respect of colonies in general:—Colonies in general yield no advantage to the mother country, because their produce is never obtained without an equivalent sacrifice, for which equal value might have been obtained elsewhere. The particular colony here in question yields no advantage to the mother country, and for a reason still more simple—because it yields no produce.

The distinction is an essential one: I trust to your Lordship’s candour for the keeping it in broad day-light. The proposition relative to the unprofitableness of colonies in general is one thing: the proposition relative to the particular unprofitableness of this particular colony, is quite a different thing. The first may be consigned to the chapter of romance, by the admirers of arithmetic and its calculations: the other will remain as firm, as impregnable, as ever. The former gentlemen may amuse themselves with, and welcome—a good round House-of-Commons laugh will dispose of it—the other will not quite so easily be got rid off. Ex nihilo nihil fit, is a maxim, which, by its antiquity, may at least be protected from the reproach of innovation. From a colony in which no import-worthy produce can be raised, no import-worthy produce therein raised can be imported.

A trade, indeed, and a trade with foreign countries, has all along been carried on in New South Wales by the inhabitants of New South Wales. A trade? Yes, but of what sort?—a trade consisting of buying without selling. The articles purchased have been such of the necessaries and comforts of life, as the inhabitants, receiving pay immediately or mediately from the government of the mother country, have been willing to purchase, at the expense of the whole, or a corresponding portion of such their pay. The articles sacrificed have consisted, exclusively, of the money of which that pay has been composed: a trade which, with reference to any profit considered as receivable by the inhabitants of the mother country, consists in giving to the people of other countries for nothing, and in the shape of hard money, so much wealth raised on those same inhabitants of the mother country by taxes;—a trade which consists in paying tribute, tribute without return, to foreign countries. The people at large, on whom the money is levied, to be distributed, in the shape of pay, among the functionaries of government in New South Wales, get nothing at all for their money: the functionaries themselves get very little for it, since the goods they have purchased with it have always been sold to them at most enormous prices: prices some number of times perhaps as great, as they would have got the same articles for had they staid at home.*

Such has been the nature of the trade hitherto: and, if there be any prospect that the nature of that trade should undergo a change in any degree or in any respect more advantageous to the mother country, it will rest with those to whom such prospect has manifested itself, to point it out.

Of real advantages, if the case afforded any, experience, with reflection grounded on it, might furnish out the list: for ideal ones, opinion, wherever it may be to be found, is the sole resource.

In a passage that has already been submitted to your Lordship’s notice, the late Judge Advocate of the colony, taking upon himself the task of advocate in another sense, and calling over the muster roll of the advantages supposed to result from the establishment, gives the precedence to those, to which, had they any real existence, the precedence would unquestionably be due: I mean those which consist in its supposed subservience to the ends of penal justice: of which supposed subservience I have already had occasion to submit to your Lordship a somewhat different estimate. Of any of the advantages commonly looked for in colonies (advantages derived from population, produce, or trade,) I find no specific mention. Two other supposed advantages are, however, added, the account of which, that no injustice may unawares be done to it, is here given in the respectable author’s own words. The passage has been already quoted. “Valuable nursery to our East-India possessions for soldiers: valuable nursery to our East India possessions for seamen.” Nothing, indeed, of all this does the learned Advocate state it as having yet proved: but all this he supposes that one day or other “it may prove.”*

As to soldiers, in as far as it lies within the bounds of physical possibility, that soldiers stationed in New South Wales may be sent from thence to the East Indies, in so far may New South Wales be considered as capable of serving as a nursery for soldiers, with reference to the East Indies. But, forasmuch as the nearest port in New South Wales is farther from the mother country than the farthest port in the East Indies is, farther in point of time, by a third or so of the way—and forasmuch as it is not New South Wales that is in the way to the East Indies, but the East Indies that are in the way to New South Wales—on these considerations it should seem, that to be at hand for service in the East Indies, any given number of soldiers would be rather more usefully stationed if landed at once at that port, whatever it be, of the East Indies, which at any given point of time seemed likely to afford the speediest demand for their services, than if sent onwards, two or three months’ voyage farther to New South Wales, for the chance of getting them back again upon occasion by another voyage of the same length. The two wars with Tippoo Saib present the two occasions on which, since the foundation of the colony, the demand for soldiers in the East Indies seems to have been at its highest pitch. I dare venture to hope that, for some years at least, if not generations, there will not be such another. It does not appear that on either of those occasions any great use was made of that part of his Majesty’s army which was stationed in New South Wales.

If not in any state of things resembling the present, I am at a loss to conceive in what probable future state of things gentlemen here at home should, on any principles whatsoever, be either warranted in keeping up, or in any degree even disposed to keep up, in the ever so much “improved” colony, a superfluous detachment, applicable to the service of the mother country, in the East Indies.

As to seamen, men and boys may be sent on this voyage, with, for aught I know, as much advantage in point of instruction in seamanship as on any other voyage or succession of voyages, of the same length: but their proficiency in point of seamanship would not, I suppose, be much the less, if the voyage were performed at once in those other tracks, in reference to which a voyage in this track is supposed to serve as a school or “nursery,” and if there were something to be brought that were worth bringing so far from the country to which they are sent. When the vessels that have carried out from Britain goods and passengers to New South Wales, have brought any thing home, it has been (if I am not mistaken) either from China or the East Indies: so that the advantage in respect of the nursery for seamen has been pretty much of the same sort and degree as the advantage just mentioned in respect of the nursery for soldiers. If, in this case, there be any occult property in a round-about voyage that renders it preferable to a direct one, the case (I think) must be much the same in other voyages: in which case, the policy would be to establish some general and comprehensive system, for preventing vessels in general from arriving at their respective places of ultimate destination so soon as they would otherwise.

Wise or otherwise, the argument, it must be confessed, is far enough from being an unpopular one: navigation—(conveyance on the favourite element)—navigation, like trade, considered as an end, rather than as a means: or if as a means, as a means with reference to colonies. Here again comes in the ancient and favourite circle: a circle by which, in defiance of logic and mathematics, political conduct is squared, and wars generated. What are colonies good for?—for nursing so vast a navy. What is so vast a navy good for?—for keeping and conquering colonies.

A construction that might possibly have been put upon the supposed utility of the colony in the character of a nursery, receives a direct and decided negative from the author in the course of the book: I mean, the supposition that it was from among the convicts themselves that the two branches of the public service were to receive their recruits. Upon this construction a negative is put, not only by declared opinion, but by the specific experiences by which that opinion was produced.*

Be this as it may, of this stamp (it may naturally enough be conceived) were the ingredients of that mass of “political advantage,” “the prospect of which” (our historiographer informs us) “was” actually “presented by the plan to the patriotism of its noble originator” (the late Lord Sydney)—a prospect which appears to have all along presented itself in colours equally pleasing to his Lordship’s successors on the second floor of the treasury, as well as to his and their colleagues on the first—I mean always down to a point of time, the fixation of which I must beg leave to submit to your Lordship, to whom it is as precisely known as it is completely unscrutable to me at my humble distance.

The importance of these same elements of political advantage will appear in the clearer light, if they be admitted to be, what to my humble apprehension they appear to be, fair and correct samples of all those “indemnities for the past”—all those “securities for the future”—which have ever been presented by anything else that has ever borne the name of a colony, to the scrutinizing optics of those well exercised cultivators—some of them (as your Lordship has seen) professed panegyrists—“of arithmetic and its calculations.” If a fit standard of “appeal” on the subject of the burthens on the civil list, it can scarcely be a very unfit one on the subject either of the burthens or of the benefits from this or other colonies. But it is only where wisdom or fortune happen to have put right honourable gentlemen in possession of what presents itself to them as a good case, that they have either pens or tongues or so much as ears for any such undistinguished and undistinguishable individual as he who, on this ground, as well as some other already mentioned corners of the field of economy, would be proud to wait upon them in the character of a co-appellant.

In what then consists the real acquisition, the real advantage derived from the plan of colonizing the antipodes—colonizing them with settlers selected for their unfitness for colonization? This real acquisition (for one real one I do not dispute) I will beg leave to present your Lordship with an honest view of.

Two hundred and fifty plants, or thereabouts—two hundred and fifty new discovered plants—composed the amount of the stock of vegetable curiosities that had been imported from thence in 1796, according to the estimate communicated to me (in 1796 I think it was, or 1797) by Lieutenant-colonel Paterson, the chief upon the botanical staff of that colony, as well as upon the military.

In these two hundred and fifty plants, together with such others as may have been added to the number since, your Lordship sees the whole of the real gain that has ever been reaped, or can, on any tolerably rational ground, be expected ever to be reaped, by this our mother country, from that ever so much “improved” colony. In speaking of this as a gain, I admit it to be a reat one: in my own person, by the evidence of my own taste, I feel it such.

But plants, my Lord, as well as gold, may be bought too dear: and moreover, though it were fit to make as light of money as right honourable gentlemen appear on this occasion to have made of it, still, in the account of population, for each vegetable acquired your Lordship would find, I believe, some number of human lives most miserably destroyed; nor, after all, is it altogether necessary to the gathering seeds in a country, that a colony should be planted in it.

I know that, for economy like that in question, something like a precedent might be found: but unfortunately it is not broad enough. What the island, to which Botany Bay has given its name and character, was to the first Lord Sydney, this island of ours was in its day to a still more illustrious student in natural history, that first of conchologists and of concholegists—the Emperor Claudius. I say, my Lord, with submission, the precedent is not broad enough. To reap the fruit of his expedition to this wild country, the Emperor employed an army, we are told, in gathering shells here. So far the parallel runs, but no further. Employ an army here in shell gathering? Yes: but he did not leave one here.

In return for so many choice and physical plants transplanted from the colony, there is one plant, though it be but a metaphorical one, which has been planted in the colony, and of the planting of which, the founders of Botany Bay have the indisputable merit—(God forbid that it should ever be of the number of those transplanted hither!) and that is—the plant of military despotism.—Of this plant, in the soil and situation in which it is thus planted, it may be said, with at least as much truth as once by a celebrated verbal florist,* it was said of true glory (I think it was, or some such vegetable,) radices agit et propagatur. Unhappily, in the next island to this we have it already, though it is there (God be thanked!) but an annual plant; and even there men had rather see it on the dunghill than in the hot-house: nor in saying men am I uncandid enough to except even the very men who planted it there. In the other island—the seven months distant island—it is perennial; and the very geographical position of the country—with or without the particular nature of the use thus made of it—is enough to make it such.

My Lord, I could not use a poisoned weapon, though life depended on it. Without discrimination, I neither condemn martial law—nor even torture. Of words significative of ideas thus complex and thus extensive, a proposition can scarcely be framed, that shall at once be clear of all exception and be true. Knowing that government throughout is but a choice of evils, I am on every occasion ready to embrace the least of any two, whatever may be its name. In speaking of the colony as a vast conservatory of military law, I am therefore far enough from saying either that that law ought now to be abolished there (supposing the settlement with its abominations to be persevered in)—or even that it ought not to have been introduced. Odious as the plant is—fœtid as it is, even at that vast distance, to the sense of every true Briton—yet in that distant country, in which it has thus been planted, I admit it to be an useful one—I admit it even to be a necessary one. Yet this, my Lord, I will be bold to say—and let those to whom it is sweetest, contradict me if they dare—that the end for which it is employed must be pure and clear of all objection—must be pure indeed, if there be virtue in it to afford a sanction to such means.

I have already mentioned (p. 180) my intention of submitting to your Lordship a view of the subsequent symptoms of improvement that have manifested themselves in the improved colony, according to the history of it, as brought down to the time of the latest accounts (dated August 1801,) by the second volume of the valuable book so often mentioned. To this view it has since occurred to me to subjoin, by way of contrast, a view of the effects of the penitentiary system, as established in several of the American states: pointing out at the same time, in these latter establishments, a few particulars from whence a conception may be formed, whether their salutary efficacy would have experienced any diminution had the economical and moral features of the system been crowned by the architectural features of the panopticon or central inspection principle. At the outset of the letter, not to trouble your Lordship oftener than necessary, my intention was to have included this ulterior matter in the compass of it; but, considering that, of the three months within which your Lordship had the goodness to say you would “endeavour to get something settled” (I mean between the 19th of August and the meeting of Parliament,) two months and a half are already gone—and considering that there remains accordingly but a fortnight for the accomplishment of those endeavours—and considering that under your Lordship’s anxiety for the accomplishment of them, the conversations your Lordship was to have had with the Chancellor and the Judges, may have been brought to a conclusion any day, while these pages were but bringing to a conclusion—under the spur of all these incentives, I find myself compelled by necessity to refer to a further day, and to a second letter, all such supplemental matter—and, for the moment, to subscribe myself thus abruptly, my Lord, your Lordship’s most obedient and humble servant,

Jeremy Bentham.

Queen’s Square Place, Westminster,
2d November 1802.

SECOND LETTER TO LORD PELHAM, &c. &c. &c.

IN CONTINUATION OF THE COMPARATIVE VIEW OF THE SYSTEM OF PENAL COLONIZATION IN NEW SOUTH WALES, AND THE HOME PENITENTIARY SYSTEM, PRESCRIBED BY TWO ACTS OF PARLIAMENT OF THE YEARS 1794 AND 1799.

My Lord,

I resume the pen. I now submit to your Lordship the promised continuation, together with the promised contrast. On the one hand, the effects of the penal colonization system in New South Wales: on the other hand, the effects of the penitentiary system in North America: the good effects of it, even in its least perfect state: subject still to those imperfections for which the central-inspection principle presents, as I flatter myself your Lordship will recognise, a most complete and indisputable cure.

Before the picture of reformation, as it has shone forth in that rising quarter of the world, is begun to be displayed, a few words will be necessary for the purpose of fixing places, times, and vouchers. Permit me accordingly to convey your Lordship’s attention for a moment, to that scene of quondam transportation—suffer me to set it down among our ci-devant colonies—the now happily independent (and long may they remain so!) United States. Instruction grows there; your Lordship would not disdain it, though it were from enemies: how much longer shall it remain unprofited by us, sent to us, as it has been so long ago—sent to us from relatives and friends?

It was Pennsylvania that took the lead. To the task of reformation, or at any rate to the change which presented itself under that name, the first hand was there set in 1786. In that year passed an act for a new system of punishment, under which hard labour should take place of imprisoned idleness:—labour, and that hard enough: but to be performed in public, in an ignominious garb, in irons, by men in gangs on the roads, and even in the streets. Under this first plan, though already in use in Switzerland, and as such indicated by Howard, success was soon observed to fall short of expectation.* The friends of reformation were, however, not to be discouraged. An experiment of four years was on that theatre deemed a sufficient trial. Men were not there too dim-sighted to see, too careless to observe, too unfeeling to regret, too proud to confess an error, or too indolent to repair it. In 1790, after a hard-fought battle of such battles as quakers fight, and on both sides it is confessed an honest one (on both sides, my Lord, what is essential to honesty, an open one,) by an act of that date they set on foot another experiment—they obtained a second change. The badge of infamy was now pulled off: “the iron entered no longer into the afflicted soul;” separation, as far as means permitted, took place of promiscuous aggregation; seclusion, yet not unseen, succeeded to tumultuous publicity. This second experiment was successful almost beyond hope: how eminently so, your Lordship will see as we advance.

Penitentiary houses, at present two: at Philadelphia and New York. In that at Philadelphia, the plan of management under its present form, commencing in April 1790; the prison in New York, begun in 1796, completed in 1797;* month not mentioned. I speak of those from which accounts have reached us. Two others already in existence in New Jersey and Virginia.† Two more in contemplation last year, and begun perhaps by this time—in Massachusetts and South Carolina.

Historians, four: I mention them in the order of their dates: dates are not to be despised in histories. For the Philadelphia house three:—1. Lownes, the chief projector, whose account of it comes at the end of a pamphlet on the punishment of death by his co-operator Bradford, then one of the judges of the State, since deceased; date in the preface, February 26, 1793. 2. The Duke de Liancourt, a visitor (a veteran in the service of the prisoner and the poor); Philadelphia printed, London reprinted, second edition, date in title-page 1796; year of visitation from private information 1795.‡Turnbull of South Carolina (another philanthropic visitor;) date in preface, 4th August 1796; date in title-page 1797. For the New York house, one: Eddy, New York printed; date in title-page 1801; date of subsequent report annexed, 9th February 1802.

The Pennsylvania house is that which, as the date itself shews, served as an example, and naturally as far as circumstances permitted, as a model. New York follows next.—Caleb Lownes took the lead in Philadelphia. Thomas Eddy followed him in New York. In both these men, your Lordship will find, under the garb of a quaker, the head of a statesman, as well as the pen of an academic.

After this short introductory view of the transactions in North America, permit me to wait upon your Lordship back again for a moment, to New South Wales.

Facts compose the chief matter of this supplemental address: and in how eminent a degree the general propositions advanced in the preceding one will be found to receive confirmation from these facts, is a point I have already ventured to give intimation of.

In a tract like this, history in its own order is but a labyrinth, but to this labyrinth here as before, the ends of penal justice hold out a clue.

Under the head of reformation, replaced in New South Wales by corruption, I will beg leave to attend your Lordship from effects to causes; and among effects, again, from smaller to greater—from the lighter shades of depravity to the darker: presenting the effects in this order, lest the opposite one, though in other respects perhaps the more obvious one, should have produced the sensation of an anti-climax. In subordination, however, to these logical principles of arrangement, the chronological one will have its use: it will serve all along to show, and in an order perfectly natural, the progress of the “improved” colony from bad to worse. Matter thus pregnant, cannot but give birth to a variety of observations; but this will in general be most readily apprehended, and most effectually recommended, when preceded by the particulars by which they were respectively suggested.

Our authors not having had themselves any such arrangements in their view, the matter belonging to one head will every now and then, in the shape in which it comes from their hands, be found intermixed with matter belonging to another. This incongruity, which, however, is but a merely relative one, cannot always be cleared away: all that can be done with it is to point it out: this done, now and then a repetition constitutes the sum of the inconveniences.

Under each head, each picture has two sides: one for the soi-disant “improved” colony; the other for those really improved countries, whose apprenticeship in the form of colonies is expired. For each feature of depravity and corruption on the one side, your Lordship will see, on the other side according to the nature of the feature, either a blank for the absence of it, or a space filled with the opposite feature of virtue and reformation.

I.

Reformation.—First feature, Industry: Opposite feature of Corruption, Sloth;—Prevalence of it in New South Wales.

No. 1, p. 23. February 1797.—“An extraordinary theft was committed about the middle of the month, which very forcibly marked the inherent depravity of some of these miscreants. While the miller was absent for a short time, part of the sails belonging to the mill were stolen. Now this machine was at work for the benefit of those very incorrigible vagabonds who had thus for a time prevented its being of use to any one, and who, being too lazy to grind for themselves, had formerly been obliged to pay one third of their whole allowance of wheat, to have the remainder ground for them by hand-mills—an expense that was saved to them by bringing their corn to the public mill.”

No. 2, p. 40. June 1797.—“In consequence of the proclamation which was issued in the last month, one of the run-away convicts delivered himself up to a constable, and another was taken, and lodged in confinement: they appeared to be half starved; yet their sufferings were not sufficient to prevent similar desertions from work in others, nor a repetition of the offence in themselves; such was the strong aversion which these worthless characters had to anything that bore the name of work. More labour would have been performed in this country by 100 people from any part of England or Scotland, than had at any time been derived from 300 of these people, with all the attention that could be paid to them.”

Observations.—Which “all” (it appears, as well from the nature of the case as from passage upon passage in the history) could not be much:—a fresh occasion for bringing to view that deficiency of necessary inspection which is among the indelible features of the system of forced colonization.

No. 3, p. 202. March 1799.—At this time, “among other public works in hand were, the raising the walls of the new gaol, laying the upper floor of the windmill, and erecting the churches at Sydney and Paramatta. Most of these buildings did not advance so rapidly as the necessity for them required, owing to the weakness of the public gangs; and indeed scarcely had there ever been a thorough day’s labour, such as is performed by a labouring man in England, obtained from them. They never felt themselves interested in the effect of their work, knowing that the ration from the store, whatever it might be, would be issued to them, whether they earned it or not; unlike the labouring man, whose subsistence and that of his family depends upon his exertions. For the individual who would pay them for their services with spirits, they would labour while they had strength to lift the hoe or the axe; but when government required the production of that strength, it was not forthcoming; and it was more to be wondered that, under such disadvantages, so much, rather than so little, had been done. The convicts whose services belonged to the crown were for the most part a wretched, worthless, dissipated set, who never thought beyond the present moment; and they were for ever employed in rendering that moment as easy to themselves as their invention could enable them.

“Of the settlers and their disposition much has been already said. The assistance and encouragement which from time to time were given them, they were not found to deserve. The greater part had originally been convicts, and it is not to be supposed that while they continued in that state, their habits were much improved. With these habits, then, they became freemen and settlers; the effect of which was, to render them insolent and presuming; and most of them continued a dead weight upon the government, without reducing the expenses of the colony.”

Observations.—The features of worthlessness are ascribed to them (“the settlers”) in general: the non-convicts are alluded to, and are not excepted. In this view of it, the improved colony presents the picture of a community, in which not only the corrupt members of it are not amended, but the sound members—such as had been introduced into it—are corrupted. If such be the case, there is nothing in it but what ought to have been expected. In Letter I. page 210, instances in proof of it have been already given, in speaking of the soldiery: and more will come to be given under the head of Public Functionaries.

No. 4, p. 277. December 1799.—“The harvest was now begun, and constables were sent to the Hawkesbury, with directions to secure every vagrant they could meet, and bring them to Sydney, unless they chose to work for the settlers, who were willing to pay them a dollar each day, and their provisions; for at this time there were a great number of persons in that district, styling themselves free people, who refused to labour unless they were paid the most exorbitant wages.”

Observations.—Standing out for the best wages that could be got, is no proof of sloth: it is rather a proof of that appetite for gain, which is the spur and natural concomitant to industry; but high as the wages were, it appears there were vagrants, who preferred idleness even to such high wages.

No. 5, p. 314. August 1801.—“Nothing has been said, in this account of the public labour, of preparing the government ground annually for seed, and cropping it, or of gathering the harvest when ripe. But these must be taken into account, as well as threshing the corn for delivery, and unloading the storeships on their arrival; which latter work must always be completed within a limited time, pursuant to their charters. It has been said before, that it was impossible to obtain a fair day’s work from the convicts, when employed for the public: the weather frequently interfered with out-door business, and occasioned much to be done a second time. Under all these disadvantages, and with a turbulent refractory body of prisoners, we are warranted in saying, on thus summing up of the whole of the public labour during the last four years, that more could not have been performed; and that it is rather matter of wonder that so much had been obtained with such means.”

Observations.—Of wonder indeed! The worse the system, the greater the wonder that any given quantity of good works, how small soever, should be shown forth under it. The more irremediably bad—the more irreproachable the conduct, the more pitiable the lot, of those whose misfortune it was to have the management of it on the spot. The more radically bad the system, the more inexcusable those at home who planned it, but most of all those at home who persevered in it, its deformities all the while staring them in the face. The period is an early one for such reflections; but they accompany the idea of the “improved” colony from the very first glance, and never leave it till the last.

II.

Further features ofReformation—Frugality and Forecast: Opposite features of Corruption, Prodigality and Improvidence;—Prevalence of them in New South Wales.

No. 1, p. 21. February 1797.—“It now appeared, that to obtain spirituous liquors, these people, the settlers, had incurred debts to so great an amount, as to preclude the most distant hope of liquidating them, except by selling their farms. Thus all their former industry must be sacrificed to discharge debts, which were contracted for the temporary gratification of being steeped in beastly intoxication for a certain length of time. All the cautions which had occasionally been inserted in the public orders against this dangerous practice, had not proved of any advantage to those whose benefit they were intended to promote; and it was observed with concern, that several scenes of shameful imposition, which had been practised by the retail dealers in this article, were brought to light by this investigation.”

Observations.—Intermixed with the prodigality and the improvidence (your Lordship sees) comes drunkenness: but drunkenness comes in everywhere, and with every thing. We shall, however, have a head appropriated to it. All this reprobacy, too, (is it credible?) spite of all these public orders—all this good advice from the governor: pearls of which there has never been any want among these swine. Of the water of these pearls something will come to be said under the head of Drunkenness.

No. 2, p. 96. March 5, 1798.—“Speaking of the business before a court of civil judicature,” “this,” says our author, “consisted chiefly of litigation about debts contracted between the retail dealers and the settlers. As a proof to what a height this business had reached, it need only be mentioned, that an appeal was made to the governor in one prosecution for a debt of £868 : 16 : 10; which appeal was, however, withdrawn, the defendant consenting to pay the debt.”

Observations.—No small mass of property to be amassed in such a place: but of the source of it mention has been already made under the head of Colonies (Letter I. page 207); and of the security of it, more may come to be said under the head of Economy, towards the close of the present letter.

No. 3, p. 97, 98. March 1798.—“The governor having received from the settlers in each district a clear and correct statement of their grievances and distresses, informed them that it was with real concern he beheld the effects of the meeting of each civil court which for the public accommodation he from time to time had occasion to assemble. The vast load of debt with which they so frequently felt themselves burthened through the imposition and extortion of the multitude of petty dealers, by whom the colony was so much troubled, with the difficulties under which the industrious man laboured for want of some other mode of providing the necessaries which he required, were grievances of which he was determined to get the better; and, as far as his situation would authorise him, he would adopt every means in his power to afford them relief.

“To this end he found it absolutely necessary to suppress many of those licensed public houses, which, when first permitted, were designed as a convenience to the labouring people; but which he now saw were the principal cause whence many had candidly confessed their ruin to have sprung.

“He wished it were possible to dissuade them from heaping such heavy debts upon themselves by the enjoyment of articles which they could do without, or by throwing away their money in purchasing at every public auction rags and trifles for which such exorbitant sums were exacted. He urged them with a paternal anxiety to consider that their folly involved their whole families in ruin and misfortune, and conjured them to wait with patience the result of some representations which he had made to government, as well in their behalf as in behalf of the settlers upon Norfolk Island; by which he hoped that ere long they would have an opportunity of purchasing every European article that they might want, at such a reasonable and moderate price as they by their industry would be very well able to afford from the produce of their labour.

“The island upon which Captain Hamilton had run his ship, and thereby prevented her sinking with them at sea, was thenceforward to be distinguished by the name of Preservation Island. From thence, the colonial schooner had arrived with what remained of the property. As soon as she was unloaded, the property was put up to sale for the benefit of the underwriters, when the little effect of the governor’s recommendation of patience was seen by the most enormous prices being paid for every article. The money that should have been expended in the cultivation and improvement of their farms was thus lavishly thrown away; and it happened fortunately enough for the underwriters that the wheat of this last season had been received into the public granary, and immediately paid for. Twenty-two shillings were paid at this sale for one common cup and saucer.”

Observations.—Besides prodigality and improvidence, more drunkenness, more good advice, as pregnant as ever with good effects. But of this in its place, as already mentioned. “Imposition and extortion,” the fruit “of the multitude of the dealers”? Say rather, of the smallness of their number. In the multitude of dealers, much more surely than of “counsellors,” there is safety. Copies of Adam Smith do not appear to have been abundant in the libraries of New South Wales.

Government to turn shopkeeper!—Perhaps a necessary remedy—not improbably a costly, and therefore most certainly a formidable one. Away with it! cries Adam Smith. But most assuredly, among the nations whose wealth he had in view, was no such nation as New South Wales. Of this further, perhaps, under the head of Economy.

No. 4, p. 120. July 1798.—“The ready sale which the speculators who called here constantly found for their cargoes, together with the ruinous traffic which was carried on by means of the monopolies that existed, in opposition to every order and endeavour to prevent them, would, beyond a doubt, without the establishment of a public store on the part of government, keep the settlers and others in a continual state of beggary, and extremely retard the progressive improvement of the colony.”

No. 5, p. 198. February 1799.—“Presuming on the late inefficient harvest, the settlers requested again to be supplied with seed-wheat from the store, but were refused. It was well known that they sold for spirits, to the last bushel of their crop, and left their families without bread. Then they pleaded poverty and distress, and their utter inability to pay what they had borrowed. When seed has been lent them, they have not unfrequently been seen to sell it at the door of the store whence they received it.”

Observations.—Again the settlers no exception in favour of non-convicts.

No. 6, p. 279. January 3, 1800.—“The Swallow, East-India packet, anchored in the Cove, on her way to China. She had on board a great variety of articles for sale, which were intended for the China market; but the master thought, and actually found it worth his while to gratify the inhabitants, particularly the females, with a display of many elegant articles of dress from Bond Street, and other fashionable repositories of the metropolis.

“On the 11th, the Minerva transport arrived from Ireland. Having touched at Rio de Janeiro, she had brought many articles for sale, as well from that port as from England, most of which were much wanted by the inhabitants; but the prices required for them were such as to drain the colony of every shilling that could be got together.”

Observations.—Of this already (Letter I. page 207,) in speaking of paper money, and the staple trade of this peculiar colony.

III.

Per Contra—Industry, Frugality, Forecast,in the American Penitentiary Houses.

1.

Philadelphia House, instituted 1790.

No. 1. Philadelphia; 1795: Laincourt, p. 14.—“Out of his profits the prisoner is obliged to pay his board, and the price of, or in some cases a certain rent or hire for the instruments he uses. These payments, which are necessarily determined by the current price of commodities, are fixed by the inspectors four times in every year. At present it amounts to one-sixth of a dollar for each man’s board. The most infirm, however, may earn easily twenty pence per day, by picking oakum; and there are some who earn above a dollar.”

No. 2. Philadelphia; 1796: Turnbull, p. 16.—“For each convict a separate account is kept by the jailor, charging him with his clothing, sustenance, &c.; and in which a reasonable allowance for his labour is credited. It is generally rather less than the wages of other workmen in the city. These accounts are balanced at short periods, in order that the overplus or proportion which might be due to the prisoner, may be paid into the county treasury for safe keeping; and, once in every three months, they are audited before the inspectors. The committee of inspectors, once during the same period of time, fix the charges for the prisoners’ maintenance, which depend on the existing price of provisions, &c. It is now one shilling and threepence a-day for the males, and sevenpence for the females. There are few who do not earn above two shillings. The marble sawing and manufacturing of nails are the most lucrative employments followed in the prison. Several were pointed out to us, who earned at these occupations above a dollar, and one in particular whose daily labour averaged one dollar and a half.”

No. 3. Ib. p. 48.—“Some have appropriated the proceeds of their labour, while in confinement, to the support of their families; and several, on leaving the prison, have received 40 or 50 dollars (4s. 6d.) the overplus of the profits of their labour, and with this capital turned out honest and industrious members of society.”

2.

New York House, instituted 1790.

No. 4. New York; 1802: Eddy, p. 94.—“The convicts have now become more skilful workmen, and can perform more labour, and to greater advantage, than heretofore.”

Observations.—In this more recent prison, the economy, it appears, had not yet attained to such a pitch of perfection as to afford to the public a profit equal to the expense of the convict’s maintenance. Under the Philadelphia system, no allowance was to commence in favour of any convict, till after the estimated expense of his share in the aggregate expense of the prison, or at least the greater part of that expense, had been reimbursed. The New York institution appears to have had disadvantages of its own to struggle with, which by the last accounts were not yet overcome; but which, by the same accounts, were in a way to be overcome. At Philadelphia, the charge against the convict appears to have been fixed at so low a rate, that from the first some surplus went into the pocket of the convict workman, the most unskilful not excepted. Whether the same policy has been pursued, and in the same degree, at New York, I have not found. I should rather expect to find, not; and in that case I am inclined to think that a little more liberality under this head might, even in the way of economy, have been attended with advantage.

Supposing this feature in the Philadelphia system to have been copied in New York, there being no surplus for the convict workman, the virtues of frugality and forecast would not in his instance find any ground to build upon.

3.

Penitentiary system: Panopticon mode.

This spur to industry presented itself to me from the first as a very material implement in the apparatus of reformation. In 1793, when I was arranging with Mr. (now Sir Evan) Nepean (then under-secretary of state under Mr. Dundas) those terms of contract, which, without much variation, were afterwards approved of at the Treasury, and are printed in the 28th Report of the Committee of Finance—on this occasion, in my accepted proposal, on the ground of which we were proceeding, a fourth part having been specified by me as the share I was willing to allow, at the same instant he happened to mention a sixth part as the share he had thought of. Without hesitation I declined taking advantage of this facility. A fourth part (I recollected) was the share mentioned by Howard as that which, judging from his experience, he looked upon as capable of inspiring the requisite degree of alacrity. It went against me to give less than what had been recommended by so approved a judge: and, moreover, under my plan there was a particular reason for not falling short of that mark; since, for the fulfilment of the article relative to the superannuation annuity, I reserved to myself the power of retaining in my hands as far as the half of each man’s allowance, in which case the share received by him, in the shape of present allowance, would be reduced to an eighth.

While yet on the road to reformation, the discussion of these points, though by no means unapposite to that head, has at the same time led us, though prematurely, into a corner of the field of economy. Just entered upon, and that but en passant, and already, my Lord, what a light breaks in upon it! In the account of expense compare this O, or rather this minus x per annum, with the plus £46 of New South Wales.

IV.—

General Depravity—Prevalence of it in New South Wales, as attested in general expressions.

No. 1. II. Collins, p. 2. October 1796.—“The frequent commission of the most atrocious crimes, together with the dissipated, turbulent, and abandoned disposition of the convicts, had more than ever at this time been manifest.”

Observations.—Practical inference—resolution to construct the two prisons, above spoken of, at Sydney and Paramatta.*

No. 2. Ib. p. 3. October 1796.—“Far too many of them were most incorrigibly flagitious.”

Observations.—Practical inference: forming (as above) the most incorrigible of them into a jail gang (Letter I. p. 181.)

No. 3, Ib. p. 9. October 1796.—“The morality of the settlement is” expressly stated as “a point which he” (the governor) “could not venture to promise himself that he should ever attain.”

No. 4, Ib. p. 23. February 1797.—“It now appeared” by the “books” that “there were at this time not less than 600 men off the store, and working for themselves in the colony; forming a vast deduction from the public strength, and adding a great many chances against the safety of private and public property, as well as personal security.”

Observations.—Written confirmation of the general proposition so often repeated:—under inspection (viz. such inspection as the nature of the institution admitted of,) bad enough; out of inspection, worse and worse. To “working for themselves,” might have been added—or supposed to work.

No. 5, p. 53. October 1797.—“At this time, such” (observes the annalist) “was the increase of crimes, that thrice in this month was the court of criminal judicature assembled. Offences—murder, perjury, forgery, and theft.”

No. 6, p. 100. March 1798.—“The utmost vigilance was constantly requisite to guard against robbers, both on land and water. It was impossible, in such a community as this, to have a police too strict, or to be sufficiently aware at all times of such a nest of villains. Many examples had been made; but after a few days had elapsed, they were forgotten; and every act of lenity and indulgence was found to be ruinous to the welfare and comfort of the whole. It was to be hoped, however, that the introduction of more of the better, and fewer of the worst sort of characters, would in due time give the balance a favourable turn.”

Observations.—This, we see, is the ground, weak as it is, upon which, in the expectation of the late chief magistrate, as in the view of the late governor, all hope of moral improvement rests: the not applying the settlement to the only purpose, with reference to which it has ever been thought well of by anybody. Quere as to those “worst” characters—if not sent to this improved colony, what else would gentlemen wish to have done with them? If these most intractable of characters can be disposed of with advantage at a less distance and at a less expense, might not the same economy be applied to the less intractable ones?

My language would be somewhat different. Give me the worst in preference: the greater the difficulty, the greater the glory. If there must be a New South Wales, let rather the least corrupted go to New South Wales.

No. 7, Ib. p. 105. April 1798.—At this time the settlers are still spoken of as being “certainly undeserving of the attention which they met with from the governor.”

Observations.—The settlers—not now, as in October 1792, “far too many;” but the settlers:—the settlers in general. These settlers, however, were the flower of the flock: the class, in whose instance the possession of permanent property—a sort of landed property, such as the nature of a government completely arbitrary admitted of, together with a portion of appropriate stock—would, according to received theories, afford that sort of security for good behaviour which it is in the power of property in such a state of society to give; and who, as often as the occasion recurs for mentioning them, are notwithstanding, and without any discrimination, mentioned as the worst.

No. 8, Ib. p. 130. October 1798.—At this time after speaking of the wilful burning of a building at Sydney, used as a church and school (of which afterwards), “this circumstance,” it is observed, “must impress upon the mind of every one who may read” this account, to what a dreadful state of profligacy “the colony had arrived; which, alarming as it was, might have been still worse, had it not been for the civil police, which fortunately had been established: for a more wicked, abandoned, and irreligious set of people, had never been brought together in any part of the colony. The hope of their amendment seemed every day to lessen.”

Observations.—No travelling without a passport, &c. &c. A sort of system of general imprisonment within the rules: a system, which having necessity for its justification, was not the less subject to endless vexations, oppressions and abuses.

No. 10, Ib. p. 210. May 1799.—Backsliders. At this time mention is made of a convict (Robert Lowe,) one of a number who, for particular instances of good behaviour on shipboard, “had received conditional emancipation, and been allowed to provide for their own maintenance.” “Few of these people, however,” it is added, “were in the end found to merit this reward and indulgence, as their future (i. e. subsequent) conduct had proved.”

Observations.—Whatever symptoms of previous good dispositions had at any time manifested themselves among the convicts, while subject to such degree of inspection as the economical arrangements afforded, were scarce ever found capable of maintaining themselves against the corruptive effects of the state of society there established: a society composed of such characters, exempted from all restraints.

No. 11, Ib. p. 216. 2d July 1799.—Still the older the settlement, the more universal the depravity, and the more authentic the evidence of it. Two men and a woman had just been hanged for a murder committed on the body of a kind and generous friend (one of the missionaries,) to save the repayment of a sum of £10 lent by him to his murderers. “The abandoned state in which the settlement was at this time,” continues the annalist, “cannot be better understood than by a perusal of the following orders:”—The principal mischief mentioned is the “late increased number of nocturnal robberies.” Assigned cause—on the part of the petty constables and divisional watchmen, either extreme negligence or complicity with the malefactors. These subordinate magistrates were the elect among the men of property in the colony.* Remedies proposed—subscription for rewards, and a system of universal vigilance, commensurate to the universal insecurity.

Of these orders, it is stated “that they seemed to have been attended with some effect,” because some vagrants were taken up in consequence. The effect, however, seems not to have been very great, since a statement comes immediately after it—that still “alarming depredations were nightly committed upon the live stock of individuals.”

No. 12, p. 277. December 1779.—The history of this year closes with an ejaculation—“May the annalist, whose business it may be to record in future the transactions of the colony, find a pleasanter field to travel in, where his steps will not be every moment beset with murderers, robbers, and incendiaries!”

No. 13, p. 296. June 1800.—Mention having been made of executions, “the number of robbers and sheep-stealers” is mentioned as “still increasing, notwithstanding the late executions.” Whereupon comes a question—“Can it be wondered at, that so much profligacy prevailed in every part of the settlement?”

Observations.—Here or hereabouts (only four months later) concludes the regular part of the history—the part chronologically arranged. The intelligence by a vessel that quitted the colony at a posterior date (August 1801) consists of nothing but a few scattered articles, mostly without distinction of date.

2.

General Depravitycontinued—Females.

No. 1, p. 121. July 1798.—“Great complaints were now made of the profligacy of the women, who, probably from having met with more indulgence on account of their sex than their general conduct entitled them to, were grown so idle and insolent, that they were unwilling to do anything but nurse their children, an excuse from labour which very few were without. Were their value to be estimated by the fine children with which they had increased and multiplied the numbers in the settlement, they certainly would have been found to deserve every care and attention as useful members of society, but their vices were too conspicuous and prominent to admit of much palliation.”

Observations.—Among these fine children a curious enough topic of inquiry would be, How many legitimate? how many illegitimate?—Another, though not quite so ascertainable, Among the legitimate, how many who had for their fathers the husbands of their mothers?—The managers of the “improved colony,” here at home, had they received any such information, my Lord? had they used any endeavour to obtain it? were they afraid of receiving it? or was it beneath their care?†

No. 2, p. 123. August 1798.—Positively bad in July—another month, and they are become so in the comparative degree—“the women, to their disgrace,” says their historian at this time, “were far worse than the men.”

No. 3, p. 128. October 1798.—In speaking of the seamen belonging to “some of the whalers that were in the harbour,” the women of the colony, along with the spirits of it, are mentioned as the two temptations so peculiarly calculated “everywhere” to lead them astray.

Observations.—Everywhere? Yes, so far as concerns certain vices, such as idleness, prodigality, and improvidence; but not everywhere into crimes. It is only in New South Wales that incontinence exposes a man necessarily and uniformly to the seductions of women “far worse than the men”—the men of New South Wales, i. e. far worse than a gang of robbers, burglarers, murderers, and incendiaries.

No. 4, p. 138. Nov. 1798.—At this time, “the complaints which were daily made of the refractory and disobedient conduct of the convict women rendered it absolutely necessary” (it is said) “that some steps should be instantly taken to make them more clearly understand the nature of their situation, and the duties they were liable to perform:”—Semper eadem, worse and worse.

No. 5, p. 218. 3d July 1799.—Bad beyond endurance. The opinion above given is not peculiar, either to the late chief magistrate, writing at a distance from the colony, or to his informant on the spot. It is proclaimed on the spot in public orders by the highest authority in the place. “The continual complaints which are made of the conduct of the female convicts require” (says the governor in his order of this day) “the most rigid and determined discipline, with such characters, who, to the disgrace of their sex, are far worse than the men, and are generally found at the bottom of every infamous transaction that is committed in the colony.”

No. 6, p. 272. November 1799.—Speaking of divine service on Sundays, “The women” (it is said) were also directed to be more punctual in their appearance; for these still availed themselves of the indulgence which as women they had been treated with, seldom thinking themselves included in the restrictions that were laid upon others.”

No. 7, p. 284. February 1800.—This month exhibits a particular example of the effect of such characters, not upon their fellow-convicts only, but also upon the soldiery. “One of these people, a quiet well-disposed young man, fell a victim to an attachment which he had formed with an infamous woman, who, after plundering him of everything valuable that he possessed, turned him out of the house to make room for another. This treatment he could not live under; and placing the muzzle of his gun beneath his chin, he drew the trigger with his foot, and, the contents going through his neck, instantly expired.”

No. 8, p. 290. 14th April 1800.—It was in order to make an addition to the numbers of this sex, elsewhere the better half of the species, but in this “improved” colony “far the worst,” that on this day the Speedy whaler is mentioned as arriving from England with 50 “female convicts; and what were much more welcome and profitable” (observes the historiographer,) “832 casks of salt provisions, which enabled the governor once more to issue a full ration.” Profitable? Yes: welcomeness depends on appetites and tastes.

V.

General Depravity—Particular Exemplifications.

No. 1, p. 4. October 1796.—At this time, after speaking of “a murder committed by a man on the person of a woman with whom he cohabited,”—“This” (it is added) “made the fifth circumstance of the kind which had occurred within the last twelve months; and so excessively abandoned were the people, that it was scarce possible to obtain sufficient proof to convict the offenders.”

No. 2, p. 196. January 1799.—A burglary committed at this time in the house of the acting commissary (the head-keeper of the public stores) is no otherwise worth distinguishing than as it shows the audacity of the delinquent, and the insecurity of those abodes and masses of property which would naturally be the best guarded and most secure.

No. 3, p. 197. January 1799.—This next page affords an occurrence, distinguished from the herd of crimes by two circumstances—the magnitude of the property stolen, and the multitude of the delinquents associated. “Before this court” (a court held on this day) “was brought part of a nest of thieves who had lately stolen property to the amount of several hundred pounds.”

Observations.—As in the first part, so in this second, the history of “the improved” and ever-improving colony has, for its chief ingredients, a pot pourri of crimes. Giving, if without particular selection, any further additions to the bead-roll of individual offences, I might be accused, though in another sense, of adding piracy to the list. Dropping all such comparative peccadillos as robbery and burglary, I will therefore commit no further trespass on the respectable historian’s well-earned rights of authorship than by picking out the cases of incendiarism as I find them rearing their heads above the herd of ordinary crimes.

VI.

Depravity—Particular Exemplifications—Incendiarism.

No. 1, p. 17. January 1797.—“The governor, on his return from his excursion, had the mortification of seeing a stack, containing about 800 bushels of wheat, burnt to the ground. This happened at Toongabbe, near which place the country was everywhere in flames, and where much wheat belonging to government was stacked. By the accidental vicinity of a jail gang, and assistance bought of them by a universal pardon, other stacks were saved. Although at this season of the year,” continues our author, “there were days when, from the extreme heat of the atmosphere, the leaves of many culinary plants growing in the gardens have been reduced to powder, yet there was some ground for supposing that this accident did not arise from either the heat of the weather, or the fire in the woods. The grain that was burnt was the property of government, and the destruction of 800 bushels of wheat made room for that quantity to be received into the stores from the settlers who had wheat to sell to the commissary: there were, moreover, at this time, some ill-designing people in the country, who were known not to have much regard for the concerns of the public. An inquiry was set on foot to discover, if possible, the perpetrators of this mischief, but nothing could be made of it.”

Thus far our historian. Two other points—the impossibility of obtaining evidence, and the nature of the climate, devoting of itself the fruits of industry to the flames—will be noticed elsewhere.

No. 2, p. 69. December 1797.—“Some time in this month, the house of John Mischam, a settler in the district of Concord, was attacked by three villains, and set on fire, together with a stack of wheat which he had just completed and secured against the weather. This unfortunate man was indebted about £33, which the contents of his wheatstack would have paid off, but now, besides being very much beaten, he had the world to begin again, with a load of debt which this untoward accident would much increase. The man himself knew not to what cause to attribute it; and he was as ignorant who were his enemies, for two of them had blackened their faces, and to the third he was a stranger.”

No. 3, p. 72. December 1797.—“The weather was now become exceeding hot; and as, at this season of the year, the heat of the sun was so intense that every substance became a combustible, and a single spark, if exposed to the air, in a moment became a flame, much evil was to be dreaded from fire. On the east side of the town of Sydney, a fire, the effect of intoxication or carelessness, broke out among the convicts’ houses, when three of them were quickly destroyed; and, three miles from the town, another house was burnt by some runaway wretches, who being displeased with the owner, took this diabolical method of showing it.”

No. 4, p. 129. October 1798.—“Between seven and eight o’clock in the evening of this day, the church on the east side of the cove was discovered to be on fire. Every assistance, as far as numbers could be useful, was given, but ineffectually; for the building being covered with thatch, which was at this time exceedingly dry and combustible, it was completely consumed in an hour.

“This was a great loss, for during the working-days of the week, the building was used as a school, in which from 150 to 200 children were educated, under the immediate inspection of Mr. Johnson, the clergyman. As it stood entirely alone, and no person was suffered to remain in it after the school hours, there was not any doubt that this atrocious act was the effect of design, and the consequence of the late order which had been given out, and had been rigidly executed, enforcing attendance on divine service; and in the view of rendering, by the destruction of the building, the Sabbath a day of as little decency and sobriety as any other in the week.”

No. 5, p. 132. October 1798.—“On the evening of the 11th, another fire happened in the town of Sydney, which, but for a great deal of care and activity, might have burnt all the houses on the east side. A row of buildings, which had been lately erected for the nurses and other persons employed about the hospital, was set on fire and totally consumed. The flames very nearly reached the boat-yard, in which were many concerns of value.”

Observations.—Taken by themselves, the words “was set on fire,” suggest the idea of the wilful act of man; but as nothing is said of rewards offered, or other endeavours used, for the discovery of the authors of the mischief, possibly this occurrence was not meant to be understood as belonging to the calendar of crimes. In the next article, however, where the mischief is expressly referred to human will as its cause, the expression is the same—“was set on fire,”—and nothing is said about reward, any more than here.

No. 6, p. 197. January 1799.—“On the night of the 11th, between the hours of eleven and twelve, the public gaol at Sydney, which cost so much labour and expense to erect, was set on fire, and soon completely consumed. The building was thatched, and there was not any doubt of its having been done through design. But, if this was the fact, it will be read with horror, that at the time there were confined within its walls 20 prisoners, most of whom were loaded with irons, and who with difficulty were snatched from the flames. Feeling for each other was never imputed to these miscreants, and yet, if several were engaged in the commission of a crime, they have seldom been known to betray their companions in iniquity.”

Observations.—What a picture of society! The bond of connexion not sympathy, but antipathy—not sympathy for one another, but antipathy to government, the common enemy.

No. 7, p. 277. December 1799.—“About ten o’clock of the night of the same day, the log gaol at Paramatta was wilfully and maliciously set on fire, and totally consumed. The prisoners who were confined were with difficulty snatched from the flames, but so miserably scorched, that one of them died in a few days. This building was a hundred feet in length, remarkably strong, and had been constructed with much labour and expense.”

“The rewards which had been formerly held out upon similar occasions, were now offered to any man or woman who would come forward with evidence.”

Observations.—Rewards upon rewards, and always with the same success. A feature so remarkable and characteristic may furnish matter for a separate head.

Of all crimes, those excepted which, by striking at the root of government itself, threaten the community with the complicated and unlimitedly extensive miseries of foreign or civil war, incendiarism may be set down as the most pernicious. If wilful inundation be likewise to be excepted, it is only in the comparatively few particular situations, in which, by the removal of some barrier opposed to the force of waters, the wickedness of a rash hand may plunge an indefinitely extended tract of country in a ruin still more extensive than can be brought upon it by the destructive power of fire.

Wide-spreading as the mischief of the first order is but too apt to be, the mischief of the second order is sure to be still more so. While individuals in any number may have been involved in the actual past calamity, no individual whatever within the reach of the report can be secure against the terror which the idea of future possible, and to appearance more or less probable, calamities of the like kind, cannot but inspire—exitium ad paucos metus ad omnes.

The final causes, or generating motives, capable of giving birth to it, are prodigiously diversified. The specimen your Lordship has just been seeing is not a scanty one. Enmity, sport, appetite for gain, may be set down as the most common: and among these, enmity, if not the most frequent, is the most obvious.

Sport, by no means an unexampled one, is to all but the abandoned perpetrator the most horrible and terrific. From the incendiary, whose hand is not put in motion but by enmity, those alone have to fear whose misfortune it is to have excited, or to stand connected in a certain way by vicinity of possession with some one who has excited that passion in his breast. But, from the hand in which, while spreading destruction in this its most diffusive shape, the force of the social and restraining motives has not proved a match for so pigmy a passion as mere sport—and this, too, a motive which requires not, as enmity does, any particular relation or incident to bring it into action—from the assaults of such a hand, where is the individual that can call himself safe? Who was safe under Nero? who was safe under Alexander and Thaïs when in their cups?

Where appetite for gain is the generating motive, it can only be in virtue of some special relation, most commonly of the commercial kind, the effect of which is to put into the hands of a particular individual a relative profit derived from an event, the effect of which is to produce, with reference to the general mass of property, a mere loss. Thus in a case but too often exemplified, a man who has insured his house for more than it is worth, may derive a profit from the destruction of it. Thus again, in a case (as per No. 1) which could in no other place have found existence so easily as in New South Wales, a man who has a commodity to sell may, without the intervention of any such source of special relation as a preceding contract, derive a gain from the destruction of a stock of the same sort of commodity, whether in the hands of the consumer (as in that case) or in the hands of a rival dealer.

In fact, there is scarce a propensity in human nature, that, by one accident or other, may not, in minds suitably disposed, lead to the commission of this crime. Any object which, by thwarting this or that propensity, presents itself as a source of this or that uneasiness, or as an obstacle to this or that pleasure—every such object, so it be but of a nature easily subjected to the power of the devouring element, is capable of putting in action a generating motive, adequate to the production of this crime. It is in this way, that not jails only (as per Nos. 6 and 7,) but schools and churches (as per No. 4) have found incendiaries in New South Wales.

In that privileged seat of depravity, scarce a heart, that in the vulgar motive of enmity (not to speak of motives of mere casual occurrence) may not at any time experience a generative power, adequate to the production of this crime. In the abstract entity government, each subject beholds there, not as elsewhere, a protector, but an enemy: and that ideal enemy he sees embodied and made flesh in the persons of as many individuals as that government has functionaries.

Even in England, cases are not wanting, where a sort of blind malignity—a mixed propensity, compounded of sport, envy, and despair—has not only without any special provocation, but without, any assignable advantage in any shape, given birth to this crime, in many a deluded breast, which till that fatal moment had known no guile. In times of scarcity, destruction is the grand remedy of an unthinking populace: and on these occasions fire, the most commodious of all instruments, is seldom suffered to lie idle. But scarcity—simple scarcity—is not so frequent in England as famine itself not only has hitherto been, but (as your Lordship, I believe, will see) may in reason be ever expected to be in New South Wales.

The speculation is not an idle one, since the greater the number of the motives, each adequate of itself to the production of the offence, the greater at all times the number of chances that any given hand will, by falling within the sphere of action of some one of all these forces, be drawn into the commission of that offence. In New South Wales, incendiarism (as your Lordship sees) is produced by motives which would scarce lead to it anywhere else.

Motives are nothing without facilities. Facilities, to a degree unexampled elsewhere, are afforded (your Lordship has seen) by the very nature of the climate; while the means of preventing the mischief, or so much as confining it within any given limits, on a soil where every blade is tinder, are not within the reach of industry or art.

On both accounts—on all accounts—this highest upon the scale of ordinary crimes—this outrage, of which murder forms often-times but a part—this cause of ruin, by which the very existence of the whole colony—stock, subsistence, inhabitancy—is, in such a situation, at all times rendered precarious—incendiarism, in a word, has never in any other country been nearly so frequent as it has been, and from the very nature of the case may ever be expected to be, in New South Wales.

At present, it is only in a moral point of view that the mischief claims our notice: hereafter, under the head of Economy, it may be matter of inquiry, how far, amidst so many ever-probable causes of destruction, of which in such a country so inhabited this is but one, subsistence can be regarded as tolerably secure, and whether it be worth while spending fourscore thousand pounds a-year or so, in combustibles for bonfires at such a distance.

VII.

Remedies unavailing—Spiritual.

No. 1, p. 3. October 1796.—“Directing his attention also toward the morality of the settlement, a point which he could not venture to promise himself that he should ever attain, he [the governor] issued some necessary orders for enforcing attendance on divine service, and had the satisfaction of seeing the Sabbath better observed than it had been for some time past. But there were some who were refractory. A fellow named Caroll, an Irishman, abused and ill-treated a constable who was on his duty ordering the people to church, saying that he would neither obey the clergyman nor the governor: for which, the next day, he was properly punished.”

No. 2, p. 51. September 1797.—“A church clock having been brought to the settlement in the Reliance when that ship arrived from England, and no building fit for its reception having been since erected, preparations were now making for constructing a tower fit for the purpose; to which might be added a church, whenever at a future day the increase of labourers might enable the governor to direct such an edifice to be built.”

Observations.—In the first place the ruffle:—the shirt to follow it—one time or other, or never, as it might happen. Neither in the literal, nor therefore in the figurative sense, does edification appear to have been any great object with governors in the improved colony, any more than with the governed. To speak candidly, why should it have been? Of what use could the externals of religion be, in a community in which the only emotions they could reasonably be expected to give rise to were those of hatred and contempt? Better no church, than to be burnt down; better no service, than to be scoffed at.

No. 3, p. 122, 123. August 1798.—“The abandoned and dissipated disposition of most of those who were or had been convicts, so much to be regretted and so often mentioned, was particularly manifest in a shameful abuse of the Sabbath, and a profane ridicule with which everything sacred was treated. A conduct so derogatory to every Christian principle had from time to time been severely reprobated, but it had now arrived at a height that called for the exertion of every advocate for morality to subdue. Observing that instead of employing the Sunday in the performance of those duties for which that day was set apart, it was passed in the indulgence of every abominable act of dissipation, the overseers of the different gangs were strictly ordered to see their men mustered every Sunday morning, and to attend with them at church. The superintendents and constables were to see this order complied with, and that the women (who to their disgrace were far worse than the men) were strictly looked after, and made to attend divine service regularly. And as example might do something, the officers were not only to send a certain number of their servants, but they were also called upon, civil and military, to assist in the execution of this order; to the meaning of which the magistrates were required in a particular degree to pay their attention, in compelling a due obedience thereto, by preventing the opening of the licensed public-houses during the hours of divine service, as well as any irregularity on the day appropriated to the performance thereof.”

Observations.—This was “compelling them to come in” with a vengeance: but to what use, or with what fruit?—where were the wedding garments?

As to the fountains of liquid poison, if they could be sealed up—sealed up to any purpose—at church times, why not at other times, and for ever?—But as to this, see Drunkenness.

No. 4, p. 129. 1st October 1798.—“Between seven and eight o’clock in the evening of this day, the church on the east side of the Cove was discovered to be on fire. Every assistance, as far as numbers could be useful, was given, but ineffectually; for the building being covered with thatch, which was at this time exceedingly dry and combustible, it was completely consumed in an hour.

“This was a great loss; for during the working days of the week, the building was used as a school, in which from 150 to 200 children were educated, under the immediate inspection of Mr. Johnson, the clergyman. As it stood entirely alone, and no person was suffered to remain in it after the school hours, there was not any doubt that this atrocious act was the effect of design, and the consequence of the late order which had been given out, and had been rigidly executed, enforcing attendance on divine service, and in the view of rendering, by the destruction of the building, the Sabbath a day of as little decency and sobriety as any other in the week. The perpetrators of this mischief were, however, disappointed in their expectation; for the governor, justly deeming this to have been the motive, and highly irritated at such a shameful act, resolved, if no convenient place could immediately be found for the performance of public worship, that instead of Sunday being employed as each should propose to himself, the whole of the labouring gangs should be employed on that day in erecting another building for the purpose. It happened, however, that a large storehouse was just at that time finished; and not being immediately wanted, it was fitted up as a church; and thus not a single Sunday was lost by this wicked design.”

Observations.—On the Sabbath, all work, and no devotion, cries the accusing angel.—Work? Yes, answers the recording angel; but holy work, work in order to devotion. What a conflict between the letter and the spirit!—Non in me tantas componere lites. I leave it to the Saundersons of the age.

No. 5, p. 272. November 1799.—“The very little attention which had long been, and continued to be shown to the duties of religion, and the want of that decency and respect which were due to the return of the Sabbath, were now so glaringly conspicuous, that it became necessary to repeat the orders, which had indeed often been given upon that subject, and again to call upon every person possessed of authority, to use that authority in compelling the due attendance of the convicts at church, and other proper observance of the Sabbath. The women were also directed to be more punctual in their appearance; for these still availed themselves of the indulgence which, as women, they had been treated with, seldom thinking themselves included in the restrictions that were laid upon others.”

Observations.—It would be an amusing sight in some respects, if it were not in other respects so melancholy an one, to see the governor thus fighting the demon of irreligion—fighting him with the same straws with which your Lordship will behold him presently fighting the hydra of drunkenness.

No. 6, p. 299. August 1800.—“As if in defiance of the various orders which had been given to enforce a due attendance on Sunday at divine service, that day still continued to be marked by a neglect of its sacred duties, an order was again given out on the 25th, pointing out the duties of the superintendents, constables, and overseers in this particular instance, and assuring them that a farther neglect on their part would be followed by their dismission from their respective situations.”

Observations.—At this period, along with the civil and military, ends the ecclesiastical history of the “improved” colony. What effect has since been produced by these fresh orders succeeding to former orders, as often defied as issued, may be left to conjecture—to conjecture grounded on unvarying experience, as well as the unchangeable nature of the case.

3.

Per Contra—Penitentiary System

No. 7. Philadelphia, 1793 Lownes, p. 89.—“Their [the prisoners’] decorum and attention at times appointed for religious worship, have been obvious, and are such as have obtained the approbation of all those who have been witnesses to it.”

VIII.

Remedies unavailing—Temporal.

1.

Punishments and Rewards—Evidence unobtainable.

This head will consist in good measure of recapitulations.

No. 1, p. 4. October 1796.—“Five murders in the year,” as above, page 220. Strong presumptive proof adduced; but the kind of evidence necessary to establish the offence withheld.”

No. 2, p. 69. December 1796.—“The house and stock of a poor settler involved in debt, purposely destroyed by fire. Emancipation, with a settlement, offered, and offered in vain, for evidence.”

No. 3, p. 110. May 1798.—“A fine bull calf belonging to an officer was about this time taken from the herd; and though considerable rewards were offered for the discovery of the offender, nothing transpired that could lead to it. This was a serious evil; for the care and attention of years might in one night’s time be destroyed by the villany of a few of these lawless people.”

No. 4, p. 130. October 1798.—Burning of the church and school at Sydney.—Reward of £30, with emancipation if a non-expiree; return to England, if an expiree. “But it was seen with concern,” adds the historian, “that rewards and punishments alike failed in their effect.”

No. 5, p. 197. January 1799.—Speaking of a number of “executions and punishments” that took place at this time, “it might be supposed,” observed the historian, “that they would have operated as a check to the commission of offences; but they appeared to be wholly disregarded.”

No. 6, p. 268. October 1799.—“About this time a young ox was missing from the government stock-yard at Tongabbe, and there was every reason to suppose it had been driven away and slaughtered. . . . In the hope of discovering the offender, a notice was published, holding out a conditional emancipation, and permission to become a settler, to any convict for life, who would come forward with the information necessary to convict the persons concerned in this destructive kind of robbery; and an absolute emancipation, with permission to quit the colony, to any one transported only for a limited time; but nothing was ever adduced that could lead to a discovery.”

No. 7, p. 276. December 1799.—Burning of the jail at Paramatta, with one of the prisoners in it.—“Rewards such as had formerly been held out.”—Same exertions, same success.

No. 8, p. 297. July 1800.—“The prisoners who were left for execution at the end of the last month suffered death, two of them at Sydney on the 3d, and the third at Paramatta on the 5th of this month. If examples of this kind could strike terror into the minds of the spectators, they certainly had not lately been without these salutary though dreadful lessons.”

The inaccessibility of evidence presents two very material observations.

One is—that in regard to the degree of profligacy prevalent in New South Wales, the criminal calendar, an alleged copy of which is, I observe, extant in print, would, without a proper caution, be apt to give rise to false inductions, presenting the state of society under an aspect by much too favourable. If every individual offence committed, whether prosecuted or not, detected or not, were registered in it, no;—if the number of offences committed were in no greater a ratio there than in England, to the number of offences prosecuted for, no. But in a community, in which the members are, almost to a man, in a league against government—where each criminal has almost as many protectors, if not accomplices, as he has neighbours, the number of crimes on record, be it ever so small, affords no indication of any correspondent paucity in the number of crimes committed.

Some cases indeed there are, in which, though the criminal remains unprosecuted and even undetected, the existence of the crime will commonly be known, or at least suspected, and in both cases recorded. Murder, at any rate, is of the number. But in the case of a crime of the predatory class, unless accompanied by force to the person or violence to the habitation or its contents, the prevalence of the crime may be continual and universal, without any specific trace of it, and therefore without any specific mention of it.

The other remark respects the degree of depravity indicated by the universality of this mutual adherence, independently of the actual crimes resulting from it. In the ordinary intercourse of life, fidelity to engagements is a virtue: why? because in the ordinary intercourse of life, among the engagements taken there is not one in a thousand, the execution of which is not beneficial to the community upon the whole. That feature of negative sociableness which disposes men not to obstruct or thwart one another in their enterprises, even this, too, is, as far as it goes, a virtue: why? because in ordinary life, among the enterprises engaged in, great and small, there is not one in a million, the success of which is not beneficial to the community as before. But for the same reason that, in the case of innocent and beneficial engagements and enterprises, fidelity and disposition to mutual adherence are virtues: in the case of criminal ones they are vices. A sort of honour may be found (according to a proverbial saying) even among thieves. Good, as an observation; that is, true in fact; but bad if the fact be regarded with complacency, and either the thieves themselves, or the society infested by them, are considered as being the better for it. That honour does exist among thieves is not to be doubted; for thieves are a society to one another, and it is only by honour that any society can be kept together. But to regard such honour with complacency, to speak with reprobation of every instance of the absence of it, to speak with eulogium of every instance of the manifestation of it, is indeed a natural enough prejudice, but, in some of its consequences, a very pernicious one. Without honour, society even among thieves could not exist;—true, but the thing to be wished for is, that among thieves, in so far as they are thieves, society never should exist. Of thieves, as of other men, the thing to be desired is, that they should observe the laws of honour in some cases, not observe them in others: observe them on the occasion of their honest engagements; not observe them on occasion of their dishonest ones: observe them in their ordinary dealings with other men; not observe them in their dealings with one another in their capacity of thieves. By whatsoever causes produced, infidelity to criminal engagements is repentance; and wherein is a man the better for being without repentance? To give birth to such infidelity—to purchase such repentance—is the object of every reward offered for he discovery of accomplices in crimes. To censure a man for the acceptance of any such offer—to commend him for the refusal of it—is to employ so much of the force of the popular or moral sanction, in a direction diametrically opposite to that of the action of the political sanction; diametrically opposite to the interest of society—of every society, but that of malefactors.

The application of this argument is susceptible of extensions: for example, subject to certain modifications, to the case of common informers. At present, let us content ourselves with applying it to the present case: the more pertinacious and extensive this species of sinister fidelity, the more intense and extensive and incorrigible, surely, is the depravity which it serves to indicate. If, indeed, in the case of this sinister fidelity, it were sympathy—sympathy on the part of the individuals as towards one another—that were in any degree the root of it, so far the inference would fail: but over and over again the absence of such sympathy, and that to a degree unexampled elsewhere, is attested as well by particular incidents as by general observations; the true root of this fidelity is—(so it appears throughout)—not in any sympathy on their part for one another, but in their antipathy to government—to the common bond by which society is held together.

2.

Police.

No. 1, p. 8. November 1796.—“The useful regulation of numbering the different houses in the town of Sydney, particularly those in the occupation of the convicts, was followed up by another, equally serviceable, which directed the inhabitants of each of the four divisions of the town (for into that number it was portioned off) to meet, and from among themselves elect three of the most decent and respectable characters, who were to be approved by the governor, and were to serve for the ensuing year as watchmen, for the purpose of enforcing a proper attention to the good order and tranquillity of their respective divisions. Many of the soldiers being allowed to occupy houses for their families in the vicinity of the barracks, the commanding officer was desired to appoint his own officer for the military division of the town, and to order them to report to him.” For the behaviour of these watchmen, see above, p. 219, where they are stated as guilty of “extreme negligence or complicity with the malefactors.”

No. 2, p. 26. March 1796.—At this time, for any but officers, no travelling without a passport: the passport to be inspected in each district by a constable: penalty for being found without one, a month’s imprisonment for the first offence, arbitrary punishment in case of repetition. “The frequent and unrestrained passing and repassing of idle and disorderly people from one part of the colony to another, and the mischievous correspondence which was kept up by such means, was productive of great evil. To check this as much as possible, all persons, the officers excepted, who were travelling from one district of the settlement to another, were required to furnish themselves with a passport, which on a proper application they would obtain without any difficulty. This was to be shown to and inspected by the constables in each district; and if found without it, they were to be imprisoned during a month for the first offence, and otherwise punished if it was repeated. But the best local arrangements were set at defiance by those hardened vagabonds, who seemed daily to increase in number and in infamy.” For the effect of this expedient, see the next title, No. 10, July 1799.

No. 3, p. 64. December 1797.—“The annual election of constables took place in this month. These municipal regulations were attended at least with the advantage of introducing something like a system of regularity into the settlement, than which nothing was more likely to check the relaxation which had lately prevailed in it.” For the behaviour of these constables, see the next title, No. 7.

No. 4, p. 197. January 1799.—“Were it not evident that certain punishment awaited the conviction of offenders, it might be supposed that a relaxation of the civil authority had begotten impunity; but far otherwise was the fact the police was vigilant, the magistrates active, and the governor ever anxious to support them, and with incessant diligence endeavouring to establish good order and morality in the settlement. But such was the depravity of these people, from the habitual practice of vice, that they were become alike fearless of the punishments of this or of the world to come.”

3.

Functionaries corrupt—Servants worthless.

No. 1, p. 60. November 1797.—“There can scarcely be recorded a stronger instance of human depravity, than what the following circumstance, which happened in this month, exhibits. A convict who had formerly been a school companion with the Reverend Mr. Johnson, had been taken by that gentleman into his service, where he reposed in him the utmost confidence, and treated him with the kindest indulgence. He had not been long in his house before Mr. Johnson was informed that his servant, having taken an impression of the key of his store-room in clay, had procured one that would fit the lock: he scarcely credited the information; but being urged to furnish him with an opportunity, he consented that a constable should be concealed in the house on a Sunday, when all the family, this servant excepted, would be attending divine service. The arrangement succeeded but too well. Concluding that all was safe, he applied his key, and entering the room, was proceeding without any remorse to plunder it of such articles as he wanted, when the constable, seeing his prey within his toils, started from his concealment, and seized him in the act of taking the property.

“Thus was this wretched being, without ‘one compunctious visiting of nature,’ detected in the act of injuring the man who, in the better day of his prosperity, had been the companion of his youth, and who had stretched out his hand to shelter him in the present hour of adversity.”

No. 2, p. 104. April 1798.—“The proprietors of this valuable article of stock [horses] were rather unfortunate in the care of it, notwithstanding the high price which it bore. The acting commissary lost a very fine mare, through the stupidity of an Irish servant, who put a short halter round her neck with a running knot by which she was strangled in the night; and information had been received of the death of two foals belonging to government. This accident proceeded from want of proper care in those who were appointed to look after them; but unfortunately, though they were often changed, the change was never found to be for the better.”

No. 3, p. 105. April 1798.—“They [the settlers] laboured under another evil, which was the effect of an unbounded rage for traffic that pervaded nearly the whole settlement. The delivery of grain into the public storehouses, when opened for that purpose, was so completely monopolized, that the settlers had but few opportunities of getting the full value for their crops. A few words will place this iniquitous combination in its proper light. The settler found himself thrust out from the granary by a man whose greater opulence created greater influence. He was then driven by his necessities to dispose of his grain for less than half its value. To whom did he dispose of it? To the very man whose greater opulence enabled him to purchase it, and whose greater influence could get it received into the public store.”

Observations.—The English of this seems to be, that those on whom it depended to choose, of whom the governor should make, these his purchases, gave the preference to those who would bribe highest.

No. 4, p. 111. May 1798.—“The deceptions and impositions which were daily in practice among the labouring part of the colony, to the great injury of the concerns of government, rendered it highly expedient that the governor, who had those concerns to attend to, should be assisted by trusty and active persons, in every situation where public works might be carrying on. Having made some discoveries of this nature in the department of the sawyers, he issued a public order specifying the hours which should be employed in every branch of public labour. This had by no means been the first attempt to check the impositions of these people; but it was found that the private concerns of those who should superintend the various public works occupied so much of their time, that their duty was either wholly neglected, or carelessly performed. This created such a relaxation of discipline, that a repetition of orders and regulations was from time to time published, to keep the labouring people constantly in mind that they were the servants of the crown, and remind those who were appointed to look after them, that they had neglected that duty which should ever have been their first and principal consideration.”

No. 5, p. 134. November 1798.—“An instance of the fatal effects of misguided conduct, and a too late sense of criminality, occurred in the tragical end of Nathaniel Franklyn, the governor’s steward. This man, whom he brought from England, had the whole care and management of the governor’s domestic concerns entrusted to him. He had been repeatedly cautioned by his master against the many artful and designing acquaintances which he had formed in the town, and was pointedly desired to be aware of not suffering himself to be influenced by their opinions. It was proved that he had not had fortitude enough to withstand their solicitations, but had consented to rob the governor to a very considerable amount, abusing the confidence he had placed in him, and making use of his name in a most iniquitous manner. Of the infamy of his conduct he was at last sensible, and retiring into the shrubbery in the garden of the governor’s house, shot himself through the head.”

No. 6, p. 138. December 1798.—“On the 19th died very suddenly Mr. Stephenson, the storekeeper at Sydney. As his death was not exactly in the common way, so neither had been the latter part of his life—indeed all that part of it which he had passed in this country; for, by an upright conduct and a faithful discharge of the duties of the office with which he had been entrusted, he secured to himself the approbation of his superiors while living, and their good name at his death.

“Stephenson had been emancipated for his orderly behaviour, and to enable him to execute the office of storekeeper.”

Observation.—If I misrecollect not, this is the single instance of reformation mentioned by our historian, directly or indirectly, in the compass of the last five years—the period comprised in this his second volume.

No. 7, p. 139. December 1798.—“The annual election of constables recurring about this time, the magistrates were desired to be very particular in their selection of the persons returned to them for that purpose, as there was reason to fear, from the frequent escapes of prisoners from the different gaols, that the constables had been tampered with so shamefully to neglect their duty.”

No. 8, p. 196. January 1799.—“On the night of the 24th, the acting commissary’s house was broken into and robbed of articles to a considerable amount. The thieves appeared to have got in at the office window, and loosened the bricks of a partition wall, by which opening they got into the storeroom, and, forcing the locks of the chests and trunks, carried away every thing that they could manage.”

“One evil among others, which attended the frequent arrival of ships in the port, was the ready market which these plunderers found for disposing of their stolen goods, the seamen not hesitating to become the purchasers on leaving the place.”

No. 9, p. 210. May 1799.—“At the same court one man, Robert Low, was adjudged to corporal punishment and one year’s hard labour, for embezzling some of the live stock of government which had been entrusted to his care. He was a free man, and had been one of the convicts who were with Captain Riow in the Guardian, when her voyage to New South Wales was unfortunately frustrated by her striking upon an island of ice; on account of which, and of their good conduct before and after the accident, directions had been given for their receiving conditional emancipation, and being allowed to provide for their own maintenance. Few of these people, however, were in the end found to merit this reward and indulgence, as their future conduct had proved; and this last act of delinquency pointed out the necessity of a free person being sent out from England to superintend the public live stock, with such an allowance as would make him at once careful of his conduct, and faithful in the execution of his trust.”

No. 10, p. 219. July 1799.—“Still alarming depredations were nightly committed upon the live stock of individuals, and were doubtless effected by those wandering pests to society, the regulations which had long since been established as a check to such an evil being wholly disregarded. It was discovered that hogs were stolen, and delivered on the victualling days at the public store, without any inquiry being made as to whose property they were, or by whom delivered, any person’s name which they chose to give in being considered by the storekeeper as sufficient to authorise him to receive it, although printed vouchers for the delivery of such pork (and grain likewise) were left at the store for the purpose of being signed by the party offering it. This certainly operated as an encouragement to the commission of these thefts; and it became necessary to order that such persons as attended the receipt of any of these articles at the store should direct whoever delivered them to sign the voucher of the quantity received by him; the governor being determined never to approve of any bill laid before him for that purpose, unless the commissary should produce the voucher properly signed by the person in whose name such bill was made out.”

Observations.—By “the regulations established as a check to those wandering pests to society,” I understand the regulations requiring passports, the measure above spoken of under the head of Police, No. 2.

No. 11, p. 267. October 1799.—“A number of the public labouring servants of the crown having lately absconded from their duty, for the purpose either of living by robbery in the woods, or of getting away in some of the ships now about to sail, that none of those concerned in the concealing them might plead ignorance, public notice was given,—‘That any officer or man belonging to the above ships, who should be known to have countenanced or assisted the convicts above alluded to in making their escape, would be taken out of the ship, and punished with the utmost severity of the law; and as the most strict and scrupulous search would take place on board,—for every convict which should be found concealed or suffered to remain on board without regular permission, so many of the ship’s company should be taken out and detained for daring to encourage such escape.’

* * * * * *

“On the day this order was issued, the Hillsborough, which was moving out of the Cove, and preparing for sea, was strictly searched; and several convicts being found on board, they were brought on shore, and each received a severe corporal punishment. One of them was excused, on condition of his declaring who the people were that encouraged that concealment, and prepared hiding-places for them. He accordingly deposed to two of the seamen, who were also brought on shore, punished, and afterwards drummed to the wharf, and sent back to their ship. The foregoing order was then published.

“How well it was attended to, and what effect the punishment of the seamen and convicts produced, were instantly seen. The Hunter, preparatory to a voyage to Bengal, where she was to freight with goods for the colony, went out of the harbour. A woman named Ann Holmes being missing, the governor ordered an armed boat from the Rehance to follow the ship, with some of the constables, and search her; with directions, if any person were found on board who had not permission to depart, to bring her into port again. Having found the woman, the ship was brought up the harbour, and secured.

“Several of her crew having behaved in a most insolent and mutinous manner to the officer of the Reliance, having armed themselves against the constables with cutlasses, and one of them having presented a musquet to the chief constable, they were secured, ordered to be punished on board their own ships, and afterwards turned on shore. But it was necessary to do something more than this; and a criminal court being assembled for the purpose, the master of the ship was brought to trial, charged with aiding and abetting a female convict to make her escape from the colony. As the offence consisted in aiding a convict, it was requisite to prove that such was the person found on board his ship; but upon referring to a list of the prisoners who were embarked in the Royal Admiral, the ship in which Ann Holmes had been sent out to New South Wales, no specific term of transportation was found annexed to her name. On the question, then, whether the master had aided a convict in making an escape, he was acquitted, it not being possible by any document to prove that Holmes was at that moment a convict. But the master was reprehensible in concealing any person whatever in his ship, and ought to have felt the awkwardness of his situation in being brought before a court for the breach of an order expressly issued a short time before, to guard him and others against the offence that he had committed.

“When the Hillsborough was searched, not less than thirty convicts were found to have been received on board, against the orders and without the knowledge of the officers, and secreted by the seamen. This ship and the Hunter, shortly after these transactions, sailed on their respective voyages.”

No. 12, p. 331. August 1801.—“It appeared, on examining the registers of the several terms of transportation of the convicts, that the clerks, who necessarily had had access to them, had altered the sentences of about two hundred prisoners, receiving a gratuity from each, equal to ten or twelve pounds. This was a very serious evil; and proper steps to guard against it in future have been taken, both at home and in the colony.”—Quere, Of how many hundred prisoners could the terms have been shortened by clerks in a penitentiary-house?

Observations.—“If the salt hath lost its savour, wherewith shall it be seasoned?”

At a former period, in more instances than one, the terms of the convicts, instead of an abridgment as here, obtained a prolongation. The cause of it was—not any activity on the part of any clerks or other persons in New South Wales, but the negligence (let us hope at least that it was nothing worse than the negligence) of certain persons here at home: ship after ship, convicts were sent out, and no calendar of their terms sent with them.* In England, the presumption is in favorem libertatis: at the Antipodes, where justice was turned topsy-turvy, it was naturally enough in favorem servitutis.

“We have no proof,” says government there to these convicts—“gentlemen who sent you out have given us none—of our having a right to detain you—any of you—so much as a single day: therefore in the first instance we detain you—all of you—for life. To each of you we give an estate for life in banishment and bondage: yes, for life, in the first instance; defeasible indeed as to the bondage, by what lawyers call in England a possibility upon a possibility.” Thus it was, that in New South Wales, gentlemen of the highest rank, with the help of gentlemen at home, tacked on, in a wholesale way, to the several legal, so many illegal portions of punishment—bondage and banishment together. In the case at present in question, gentlemen of an inferior rank, instead of tacking on illegal portions of punishment, struck off so many portions of legal punishment: not in toto indeed—bondage and banishment together—but bondage alone; in general, at least, leaving the banishment pretty much upon the same footing as they found it. Nor yet were the portions of bondage struck off freely and gratuitously, but for the valuable consideration of £10 or £12 a-head: in other words, part of the bondage was thus compounded for, and commuted into a fine. The fine, it is true, did not go immediately, nor, I fear, was intended ever to go, if it could safely be prevented from going, into the proper reservoir for fines, the privy purse: to which having said proper, I am almost ashamed to add—the king’s—but in this there seems little to distinguish these from other fines. Gentlemen acted in that behalf as so many self-constituted receivers and surveyors of the green wax: and as other receivers and surveyors of that same sort of wax might be expected to do, kept their own secret, kept everything, money and secret together—safe till called for. Neither indeed was the fine thus levied sufficiently public to have any very beneficial effect in the way of example: but in the way of reformation, and in the character of a remedy applied pro salute animæ, the effect of it could hardly have been greater, if levied by the purest ecclesiastical hands, or passed in and stored up in the regular official hive of the receiver and surveyor-general of his majesty’s royal green wax as aforesaid.

Question (should Robin Hood ever come to life again) for the lyceum of Robin Hood: Which are most to blame? gentlemen in New South Wales, who without law have shortened servitude? or gentlemen at home, who also without law have lengthened it?

From former titles your Lordship has been that New South Wales discipline is no source of reformation for convicts—that, è contra, it is a source of ulterior corruption for convicts: from this title your Lordship has seen, and in a variety of very extensive instances, that it is moreover a source of corruption for honest men. For government storekeepers, as per Nos. 3 and 10; superintendent, as per No. 4; stewards, as per No. 5; constables, as per No. 7; seamen in general, as per No. 8; seamen in merchant’s service, as per No. 11; clerks in the government office, as per No. 12; soldiers, as per I. Collins, 303, 455, mentioned in my former letter, p. 195, and p. 209.

Thus and thus far in known instances: in another way, and in unknown instances without account, the spread of the corruption may have been in an indefinite degree more extensive. To so many numerous and important classes of his Majesty’s subjects as are forced or tempted to make a house-of-call of the “improved colony”—to the king’s army—to the king’s navy—to seamen in private service, the nest of female convicts constitutes a constantly open school of mischief and depredation; a school in which the arts of theft, robbery, burglary, murder, and incendiarism, are taught by a set of school-mistresses of the very first order; of school-mistresses pronounced over and over again, upon the fullest experience, by the highest authorities, and most competent judges, to be “far worse than the men,” far worse than thieves, robbers, burglars, murderers, and incendiaries.*

IX.

Main Cause of Non-Reformation, Drunkenness.—Universality and Incurableness of it in New South Wales.†

No. 1, II. Collins, p. 9. November 29, 1796.—Speaking of three capital convicts, who had been executed for robbing the public stores, and three others who on conviction of the same offence had received a conditional pardon, “It was much to be lamented,” continues the judge advocate, “that these people were not to be deterred by any example from the practice of robbing the public stores, which had of late been more frequent than heretofore, and for which there could not be admitted the shadow of an excuse—as the whole of the inhabitants of every description were at this very time on a full and liberal allowance of provisions and clothing, neither of which were in any scarcity in the settlement. But the cause was to be found in the too great indulgence in the use of spirituous liquors, which had obtained among them for a considerable time past. The different capital crimes which had lately been brought before the court of criminal judicature, together with the various petty offences that daily came under the cognizance of the magistrates, did not proceed from an insufficiency either of food or clothing, but from an inordinate desire of possessing, by any means whatsoever, those articles with which they might be able to procure spirits—“that source,” as the governor expressed himself in an order which he published directly after these executions—“that source of the misfortunes of all those whom the laws of their country and the justice that was due to others had launched into eternity, surrounded with the crimes of an ill-spent life.”

No. 2, p. 18. January 18, 1797.—Speaking of the persons called settlers (the expirees, who took to farming on their own account,) and of the measures taken to reduce what was looked upon as excessive in the rate of wages demanded of them by such of their fellows as maintained themselves by serving them as labourers, he goes on and observes, “It must appear from this, that every necessary and useful regulation was suggested, that could promote the convenience and advantage of these people, who being in possession of land that yielded the most ample returns, nothing but the greatest worthlessness on their part could have prevented their getting forward and becoming men of property. That too many of them were of this description, will appear evident from its being notorious that their crops were no sooner gathered than they were instantly disposed of for spirits, which they purchased at the rate of three, nay even of four pounds per gallon, and of a spirit often lowered one-fourth or more of its strength with water.”

No. 3, p. 49. September 1797.—On the 20th of this month, “the Deptford, a small brig, arrived from Madras with a cargo of goods upon speculation for the Sydney market. The spirit of trade, which had for sometime obtained in the colony, afforded an opening for adventurers to bring their goods to this settlement. The voyage from India was short and direct; and from the nature of their investments they were always certain of finding a ready sale, and an ample return upon the original invoice. But this intercourse was found to be pregnant with great evil to the colony; for preferring spirits to any other article that could be introduced from India, the owners never failed to make the rum of that country an essential part of every cargo which they sent upon speculation; and though every necessary measure was adopted to prevent all that arrived from being landed, yet such was the avidity with which it was sought after, that if not permitted, it was generally got on shore clandestinely, and very few ships carried back any of what they had brought down. To this source might be traced all the crimes which disgraced, and all the diseases that injured, the colony.”

No. 4, p. 71. December 24, 1797.—A particular anecdote, mentioned by the historiographer under this date, may serve to show the state of public opinion among the convicts, with reference to this most prolific of all vices:—“On the eve of Christmas-day, two young men, settlers on some land midway between Sydney and Paramatta, having been boasting of their respective abilities in drinking, regardless of the solemnity of the time, challenged each other to a trial of their skill: on which they were so deliberately bent, that to prevent their being interrupted, they retired to the skirts of a neighbouring wood* with a quantity of raw spirits, which they had provided for the purpose. Their abilities, however, were not equal to their boasting; for one of them died upon the spot, and the life of the other was fast ebbing when he was taken up. Had another hour elapsed, he too must have perished like his wretched companion. They had not been able to finish all the pernicious spirit which they had prepared, some of it remaining by them in a case-bottle when they were found.”

No. 5, p. 80. January 20, 1798.—After having spoken, in p. 35, of a merchant ship called the Sydney Cove, that had been then lately wrecked in her voyage from Bengal to New South Wales on speculation, and of the dispatch of a vessel called the Francis to bring in the crew and what could be saved of the cargo, “On the 20th January 1798,” continues our author, “the Francis returned with Captain Hamilton [the captain of the Sydney Cove] from the southward. Previous to his departure for the wreck of his ship, he had informed the governor that she had on board nearly 7000 gallons of spirits, and solicited permission to bring back a part with him in the schooner. The governor, ever averse to the introduction of spirituous liquors, would certainly have resisted the application; but it being generally known in the colony that a considerable quantity of this article had been saved from the wreck, and that the island abounded with kangaroos and birds, he conceived these circumstances not only to have conduced to those desertions and captures ofboats which had been effected, but as likely to prove farther temptations to similar practices. He therefore determined to purchase the rum of Captain Hamilton, and as there was none in store for the public service, to take it on account of government. An agreement was accordingly entered into by the commissary, and 3500 gallons were brought round in the Francis.”

Observations.—Quere 1st, How much more intoxication would be produced by a gallon of spirits taken on account of government, than by ditto of ditto taken on any other account?—Quere 2d, In what degree or respect is “the source of all the crimes that disgraced, and all the diseases that injured, the colony,” &c. conducive to the public service?—Quere 3d, If by stolen boats or otherwise, spirits, when landed in Providence Island by accident, cannot be prevented from being smuggled into New South Wales, how can they, if landed on ditto, or any nearer and more convenient spot, by design and for this very purpose?

No. 6, p. 133. October 1798.—The observations made at this time by the governor respecting the state of things in a spot so often mentioned as by far the most fertile of all the settlements, may serve to show of how little avail are the most signal geographical advantages, when counteracted by this moral obstacle to all industry and all happiness:—“Towards the end of the month, the governor visited the settlers at the Hawkesbury, and while he was there made some useful regulations among the sawyers, who had fixed their own portion of public labour. He gave notice that a session should be held quarterly for settling all civil concerns, and made some other local arrangements, which, if attended to, would have conduced essentially to the welfare of the settlers, whose farms he found promising plenty, but whose houses and persons wore the appearance of poverty and beggary, they converting all the produce of their farms to the unworthy purpose of purchasing a pernicious spirit, that must ever keep them poor.”

No. 7, p. 198. February 1799.—“Notwithstanding the settlement had before it the serious prospect of wanting grain, and the consequent destruction of much useful stock, it was known that several people had erected stills and provided materials for the purpose of distilling spirituous liquors—a pernicious practice, which had long been forbidden by every officer who had had the direction of the colony. Former orders on this subject were now repeated, and persons of all descriptions were called upon to use every means in their power, in aid of the civil magistrate, to seize and destroy such stills and materials as they might find.

No. 8, p. 203. March 1799.—Speaking of an act of homicide committed in self-defence by a sentinel soldier on the person of a drunken seaman—“This accident,” continues the reporter, “was the effect of intoxication; to which, a few days after, another victim was added, in the person of a female, who was either the wife or companion of Simon Taylor, a man who had been considered as one of the few industrious settlers which the colony could boast of. They had both been drinking together to a great excess, and in that state they quarrelled, when the unhappy man, in a fit of madness and desperation, put an untimely end to her existence. He was immediately taken into custody, and reserved for trial.

“To this pernicious practice of drinking to excess, more of the crimes which disgraced the colony, were to be ascribed, than to any other cause; and more lives were lost through this than through any other circumstance; for the settlement had ever been free from epidemical or fatal diseases. How much, then, was the importation of spirits to be lamented! How much was it to be regretted, that it had become the interest of any set of people to vend them!” [It might have been added (as your Lordship will see)—and in one way or other, of every set of people without exception. As to its being become, so it always was from the first, and so it must be to the last.]

“Several robberies, which at this time had been committed, were to be imputed to the same source.”

No. 9, p. 205. April 1799.—At this time a Spanish ship, having been taken by two whalers, was brought into Port Jackson; and the ship being condemned, part of her cargo was sold by auction. The cargo (our author informs us in a note) “consisted of sugar, flour, and an ardent spirit similar to the aqua ardente of the Brazils. This article,” he adds, “the governor would not allow to be sold by auction.”

Observations.—Not by auction: that the governor would not allow it to be sold at all is not said.—Quere 1. How much more intoxication would be produced by a gallon of spirits sold by auction, than by ditto of ditto sold by hand?—Quere 2. What advantage is gained by keeping down the price “of the source of all diseases and all crimes?”

No. 10, p. 222. July 1799.—An observation made at this time serves at once to show the prodigious intensity of two vicious and closely allied propensities—drunkenness and sloth: so mighty the latter, nothing less than the former was able to get the better of it. “Much” (says our historian) “might be expected from the exertions of 355 people; and the greatest advantage would have been derived from their labours, had they been less prone to dissipation and useless traffic—a traffic which most of them entered into solely with a view to indulging themselves in their favourite propensity of drinking.”

No. 11, p. 274. 2d December 1799.—“In the evening . . . . the Plumier, a Spanish ship, anchored in the Cove. She was a prize to three whalers, who had taken her near Cape Corientes, on the coast of Peru. Her cargo consisted chiefly of bad spirits and wine, which, on her being condemned by the court of vice-admiralty as a lawful prize, were removed into the supply, and an order was given out, strictly forbidding the landing of any spirits, wine, or even malt liquor, until a regular permit had been first obtained. This restriction upon wine and malt liquor was occasioned by spirituous liquors having been landed under that description.”

No. 12, p. 275. 16th December.—“The court of criminal judicature being assembled, two mates of [the ship] Walker were brought before it, and tried for using menaces to a person who had stopt their boat when attempting to land spirits without a permit; but as he had not any special authority for making the seizure, or detaining the boat, they were acquitted.”

No. 13, p. 280. 11th January 1800.—“Arrived the Fhynne, a small snow from Bengal, under Danish colours, which had been chartered by the officers*of the colony, civil and military, through the means of an agent whom they had sent thither for that purpose. She was freighted on their account with many articles of which they were much in want; and as more labour could be obtained for spirits than for any other mode of payment, an article so essential to the cultivation of their estates was not forgotten.”†

No. 14, p. 291. 14th April 1800.—“The quantity of spirits at this time in the colony occasioned much intoxication and consequent irregularity. The settlers at the river were so lost to their own interests as to neglect sowing of their grounds;‡ a circumstance which, but for the timely interference of the governor, would have ended in their ruin. Immediately on hearing of their situation, he forbade the sending any more spirits to that profligate corner of the colony,∥ as well as the retailing what had already been sent thither, under pain of the offender’s being prosecuted for such disobedience of his orders.§

No. 15, p. 299. August 9, 1800.—“Toward the latter end of the month, an attempt was made, at 3 o’clock in the afternoon, to land without a permit 1016 gallons of wine and spirits, which were seized at the wharf by the sentinel. If the person who made this attempt had been advised to so incautious and daring a proceeding, it could only have been with a view to try the integrity of the sentinels, or the vigilance of the police.”

No. 16, p. 332. August 1801.—“Several ships had arrived from India, England, and America, most of which had brought upon speculation, cargoes consisting of wine, spirits, tobacco, teas, sugar, hardware, wearing apparel, &c. &c., the sale of which was, with the governor’s approbation, advertised by the commissary, and publicly sold to all descriptions of people.

It appears that from these ships,

And

Observations.—I have already intimated, my Lord, that I see nothing blameworthy in the conduct maintained in this respect by gentlemen in the colony; nothing which it is in the power of blame to set right; nothing, therefore, for which blame would be of any use. If by any sacrifices or exertions of his own, it would have been in the power of any of them to have subtracted anything considerable from the sum-total of the mischief, then, indeed, ground for blame might not have been altogether wanting—then, indeed, blame itself might not have been altogether without its use. But in that situation it does not appear to me, that from any such single exertions, any effectual benefit could have been derived: nor even from any such joint exertions as the nature of the case admitted of. Manufacturing and importation taken together; the exclusion of the means of drunkenness out of the improved colony, presents itself to my view, I must confess, as an achievement, now and for everlasting morally impossible.

In the first place, as to manufacturing.—The settlements are spreading themselves over the face of the country: spreading themselves wider and wider every day. It is what gentlemen wish to see them do: it is matter of triumph that they do so. It is a mark of “improvement”—of that feature of improvement which has hitherto been accepted in lieu of every other. They are not only spread, but scattered: they are so already; they will be more and more so every day. Settlers will not take up inferior land on the mere recommendation of its vicinity to already settled land, when superior land is to be had within a certain distance. But the more extended and dispersed the lots of lands are, with their inhabitants, the more incapable they are of being kept under any given degree—under any sufficient degree—of inspection; of being kept under a degree of inspection sufficient for any purpose: and of all purposes for this. In respect to every purpose, the deficiency of the system of inspectors—of whatsoever professions, civil and military—under whatsoever titles—is, and in the nature of the case ever must be, a standing topic of complaint. For preventing the erections of stills, orders upon orders have all along been issued. [See No. 7, p. 232.] But the publication of each subsequent order is a pretty sufficient evidence of the inefficacy of all preceding ones.

Next, as to importation.—Is it in the nature of things that the coast all round—the coast of a country as large as Europe—should be kept sufficiently guarded for this purpose? Would the whole navy of England be sufficient to the task? Is there so much as a government cock-boat, the expense of which, especially on such a service, is not, and very justly, grudged?

When by accident—by shipwreck (as per No. 5)—a cargo of spirits had been landed on a neighbouring island, preventing the importation of them was found to be impracticable. Would not the difficulty have been at least as great, if design, instead of accident, had brought them there? The spot, though comparatively near, was positively a very distant one. In case of design, not any such distant one would be chosen—but whatever spot, in point of vicinity as well as every other circumstance, presented itself as best adapted for the purpose.

So far as to what depends on the situation and distribution of the land: next, as to the permanent interest and consequent natural disposition of its inhabitants. Whatever regulations can ever be made for the preventing the introduction of spirits into the colony—be it by manufacture, be it by importation—there is scarcely a human being in the colony, in or out of power, who has not a personal interest in the inefficacy of them—an interest as strong as it is possible for a man to have in the inefficacy of any such fiscal regulations.

Among the convicts themselves—non-expirees, as well as expirees—servants as well as masters—there is scarcely a man to whom this liquid poison is not dearer than life. Among all classes of persons—convicts—military officers—civil officers—not a master that, so long as any of it is to be had anywhere, or from anybody, can get a servant to work for him on any other terms. In one case, it is true, and that as conceivable a one as any other, this common interest would not exist. Such would be the case if not so much as a single master had so much as a single drop of the poison to give. In this case, their common corrupt interest would be wanting, and the opposite virtuous common interest—the interest which all masters have in the sobriety of their servants—would take its place. But if one gives spirits all must—or all must see their farms deserted, and their servants gone from theirs to that one. By extraordinary exertions, a reduction in the quantity habitually consumed in the colony might every now and then, I doubt not, be effected; but any such reduction can never be other than temporary: for so many masters as there are (officers as well as others) who see other masters in possession of a greater quantity than they themselves can lay hold of, so many are there who are partakers in this common corrupt interest. Upon the whole, therefore, so long as the quantity of spirits in the colony is short of the full quantity which the convicts altogether are disposed to drink, so long must the virtual auction—the universal competition among the purchasers of the article—continue. Those who, at any given period, have the advantage in this respect over their neighbours, will find themselves under the constant necessity of keeping up their stock of it; keeping it up against all competitors, for the purpose of keeping up this advantage; so that the common interest in question—the interest which men of all descriptions have in eluding all such restrictive regulations—is not merely a general and temporary interest, but a universal one, and, humanly speaking, an indefeasible and perpetual one.

With the situation of the governor of New South Wales and his subordinates, contrast, in this respect, that of the governor of a panopticon penitentiary house. Not a drop of forbidden liquor can be either drunk in the house, or so much as introduced into it, without being seen to be so by everybody: by officers—prisoners—visitors through curiosity—visitors upon business: therefore, were transgression ever so advantageous, detection and punishment would be inevitable. But what is still more, transgression would give no advantage. Without work, among those who can work, not so much as a morsel of bread is to be had by anybody (so that here, as elsewhere, as many as choose it may be starved;) and every person, the more he works the better he is paid: the amount of his earnings is ascertained, and he receives a quarter of it. Taken in excess, fermented liquors would be directly adverse to profitable economy; taken even in moderation, they would be of no use to it.

X.

Per Contra—Penitentiary System,—General Reformation, as attested in general expressions:—1. During Confinement.

No. 1. Philadelphia; 1793: Lownes, p. 89.—“The order in their” [the prisoners’] “employments, their demeanour towards the officers, harmony amongst each other, and their decorum and attention at times appointed for religious worship, have been obvious, and are such as have obtained the approbation of all those who have been witnesses to it; and we trust that the impressions received in this secluded state of existence will have a happy influence towards promoting the great object contemplated by the change of the penal code by the legislature of this commonwealth.”

No. 2. Philadelphia; 1795: Liancourt, p. 21.—“The appearance of the prisoners has nothing of that insolence or of that dejection which is so striking among our own convicts in Europe. It is cold, respectful, sorrowful, and calm.”

No. 3. Philadelphia; 1796: Turnbull, p. 4.—“There was such a spirit of industry visible on every side, and such contentment pervaded the countenances of all, that it was with difficulty I divested myself of the idea that these men surely were not convicts, but accustomed to labour from their infancy.”

No. 4. Ib. p. 27.—“The convicts are called to their meals by the ringing of a bell; we saw the men sit down to their supper, and I do not recollect a scene more interesting. At one view, we beheld about 90 fellow-creatures, formerly lost as it were to their country and the world, now collected in one body, and observing that air of composure and decency to each other, consequent only from a long and continued practice of moral habits.”

No. 5. Ib. p. 46.—“After conversing with her (the jailoress) for some time, he (a person before mentioned) inquired of her whether there were no inconveniences attending the institution? With the greatest concern she replied, that there was one which gave her no small degree of uneasiness. That the debtors in their apartments, from being able to overlook the yard of the prison, made her fear that their conversing together, swearing, &c. might corrupt the morals of her people. You may think it strange that debtors should corrupt criminals; but the case is really so, for there is certainly as much, if not more, morality among the latter, than the former. And so fully convinced were the inspectors of her apprehensions being well founded, that, to remedy the defect, they have since had the prison wall raised.”

Observations.—The sex of the keeper, compared with the nature of her office, brings to view the picture of a future golden age as delineated by prophetic poetry: “The wolf shall dwell with the lamb, * * * * and a young child shall lead them.” The paradox had already received its explanation in the same page.

“I was surprised to find a female in the first appointment, and on inquiry found that her husband was formerly jailor. Discharging the duties of a tender parent towards his daughter, infected with the yellow fever in 1793, he caught the disorder and died, leaving the prisoners to regret the loss of a friend and protector, and the community that of a valuable citizen. In consideration of his faithful performance of the functions of his office, his widow was nominated to succeed him. She is exceedingly attentive and humane.”

No. 6, Ib. p. 48.—“Few have been known to stay in the prison the whole of the term to which they were sentenced, the amendment and repentance of many of them being so visible to the inspectors, as to have had a claim to the governor’s clemency.”

2.

After Liberation, as per accounts.

No. 7. Philadelphia; 1793: Lownes, p. 92.—“Out of near 200 persons, who at different times have been recommended to and pardoned by the governor, only four have been returned; three from Philadelphia, reconvicted of larceny, and one from a neighbouring county. As several of them thus discharged were old offenders, there was some reason to fear that they would not long behave as honest citizens. But if they have returned to their old courses, they have chosen to run the risk of being hanged in other states, rather than encounter the certainty of being confined in the penitentiary cells of this. We may therefore conclude, that the plan adopted has had a good effect on these; for it is a fact well known, that many of them were heretofore frequently at the bar of public justice, and had often received the punishment of their crimes under the former laws.”

No. 8. Philadelphia; 1796: Turnbull, p. 48.—“Reconvictions are seldom heard of. Of all the convicts condemned for these five years past, not above 5 in a 100 have been known to return.”

Observations.—Between this article and the last preceding one, your Lordship will have observed the difference. Those of whom but 2 in the 100 proved backsliders, were picked men: men picked out as the best, and pardoned. Those of whom so many as 5 in the 100 proved backsliders, were the whole number of the “condemned” taken together. The time which gave these gave these 5 in a 100, was moreover nearly as long again as the time which gave not quite so much as the 2 in the 100.

No. 9. New York; 1802: Eddy, p. 33.—“Under the instruction of a prisoner sentenced for life, who was a skilful shoemaker, it was matter of surprise to observe with how much rapidity those who were before wholly ignorant of the trade, learned to become excellent workmen.”

No. 10. Ib. p. 52.—“It is with no small pleasure that the inspectors have observed, that a number of those who have been discharged from the prison, confided to their care, have continued in habits of industry and sobriety, and bid fair to become good members of society.”

Observations.—From a literal interpretation of this passage, an inference that might be drawn is, that though the reformed were in a certain number, the unreformed were in a number still greater. But from the general tenor of the publication, and in particular from the two next articles of it as here copied, it will appear evident enough, that the persons here alluded to as reformed were such alone as on that account happened in a particular manner to have attracted the notice of these their former guardians.”

No. 11. Ib. p. 85.—In five years ending with 1801, “of 349 prisoners who have been discharged by expiration of sentence and pardon, 29 only, or 1-12th part, have been convicted of second offences; and of these, 16 were foreigners. Of 86 pardoned, 8 have been recommitted for second offences; and of these, 5 were foreigners.”

In the recent institution at New York, your Lordship will have observed, the account of backsliders is not as yet quite so favourable as in Philadelphia. The difference may, it should seem, fairly enough be ascribed to a variety of peculiar difficulties which New York has had to struggle with.—Statement given by Mr. Eddy, too long to be inserted here.

In respect of general remarks, circumstances would naturally give a different colour to the representations as between Philadelphia and New York. The Philadelphia accounts are, the two latest of them, accounts given by strangers to strangers: the New York, by the leading manager to his fellow-countrymen and fellow-townsmen. In this latter case, the main object was to give economical and other arithmetical details: it is a compte rendu by a trustee to his principals. As to deportment, &c. of the prisoners, the persons to whom principally the writer was addressing himself were fellow-townsmen, who being on the spot, had eyes of their own to see with. That upon the whole, the chief author saw nothing to deter him from expressing himself satisfied with his work, appears from the concluding paragraph, which is as follows:—

No. 12. Ib. p. 70.—“The New York state-prison will furnish a model for others, which the increase of population and growth of luxury may render necessary in the distant parts of this extensive country* . And whatever may be the future condition of mankind, this institution will reflect lasting honour on the State; become a durable monument of the wisdom, justice, and humanity of its legislators, more glorious than the most splendid achievements of conquerors or kings; and be remembered, when the magnificent structures of folly and pride, with their founders, are alike exterminated and forgotten.

Penitentiary System continued:—Reformation—Particular Exemplifications:—Heroic Humanity.

No. 1. Philadelphia, 1796: Turnbull, p. 91.—“At the time of the yellow fever in 1793, great difficulty was found in obtaining nurses and attendants for the sick at Bush Hill hospital. Recourse was had to the prison. The request was made, and the apparent danger stated to the convicts. As many offered as were wanted. They continued faithful till the dreadful scene was closed—none of them making a demand for their services till all were discharged.

No. 2. Ib. p. 48.—“Some (on the same occasion) at the expiration of their terms of confinement, voluntarily offered themselves . . . . and conducted themselves with so much fidelity and tenderness, as to have had the repeated thanks of the managers.”

No. 3. Ib. p. 92.—Another instance of the good conduct of the prisoners during the sickness, happened among the women. When request was made of them to give up their bedsteads for the use of the sick at the hospital, they cheerfully offered even their bedding, &c. When a similar request was made to the debtors, they all refused.” Some difference, my Lord, between these women and the women “far worse than the men,” in New South Wales—some difference between the men who serve in hospitals at the peril of their lives, and those who make bonfires of hospitals, as well as of prisons with the prisoners in them:—the prisoners—their comrades—their peers—men whom, instead of burning them, they would have been ready to clasp to their bosoms, so it had been to join in mischief.

XI.

Main Cause:—Sobriety, Strictness,—Universality and good effects of it in the Penitentiary House.

No. 1. Philadelphia; 1795: Liancourt, p. 19.—“They [the convict prisoners] are never on any account permitted the use of fermented liquors, not even of small beer. The prohibition of fermented drink is a standing order, and most religiously observed. The liveliness and animation which such liquors might induce in the workmen is only an artificial and momentary vigour; a cause of irritation, heating the blood, and destroying the effect of that temperate regimen which is intended to alter the habit and the constitution.”

No. 2. Philadelphia; 1796: Turnbull, p. 26.—“The drink of the criminals is molasses and water; spirituous liquors are forbidden, except for medical purposes prescribed by the attending physician; and the person who sells, or suffers them to be introduced on any other occasion, subjects himself to a penalty of five pounds; if an officer of the prison, to dismission from office. The reason of this rigorous regulation arises, in the first place, from the probability of the abuse which might be made of the practice, were it once introduced: and in the next place, from the conviction of the inspectors, that those liquors act not so powerfully in strengthening a body doomed to more than ordinary toil and labour, as the effects of good wholesome water. That whatever cheerfulness or vigour it may produce in a labourer, it is merely temporary, and like all high stimulatives, its operations are no sooner at an end, than the system is left enervated and fatigued.”

No. 3. New York; 1802: Eddy, p. 49.—“Many of those who came into the prison with constitutions greatly impaired by excessive drinking, debauchery, and vicious habits, after being sometime used to the system of temperance, order, and industry established in the prison, have become healthy and vigorous.”

No. 4. Ib. p. 59.—“It is well known that the greater number of crimes originate in the irregular and vicious habits produced by intoxication, and by the idle, low, and dissipated practices encouraged in taverns and tippling-houses. There are few criminals whose gradual depravation cannot be traced to this source.”

No. 5. Ib. 59, 60.—“By the city charter, the power of granting licenses is vested in the mayor, who is the sole judge of the propriety of granting them, or of their number. Thirty shillings are paid for each license, four-fifths of which sum goes into the city treasury, and the residue to the mayor. While a revenue is derived to the corporation from these licenses, it is not to be expected that there will be much solicitude to lessen their number, or to examine minutely into the merits of the applicants for them.”

Observations.—Can the degree of such solicitude be expected to be much greater where, instead of now and then an odd 5s. to be gained by putting about the cup of intoxication, the greater part or the whole of a man’s income—of the income of every man who could do anything towards stopping it, depends upon the circulation of it?

No. 6. Philadelphia; 1799: Liancourt, p. 22.—“The new regimen has . . . . produced a change which is remarkably evident, even in the physician’s bill, which formerly amounted to two hundred or three hundred and twenty dollars per quarter, but at present seldom rises above forty. This enormous difference is entirely attributable to the total change of discipline which has taken place. During the former system, the irregular government of the prison was attended with filth and drunkenness; and frequent broils produced diseases, wounds, and bruises of every kind. Under the new order, these causes of evil have ceased—the disorders are confined to colds, or such accidents as are common everywhere. Only two prisoners have deceased within four years, and those of the small pox. Except in cases of contagious maladies, the sick prisoners remain in their room: in such cases, however, they are removed to a separate apartment.”

No. 7. Philadelphia; 1796: Turnbull, p. 20.—“A good proof of the cleanliness of the place you have, when I mention from authority, that out of 8060 persons who were confined in the several apartments of the prinso (the debtors’ jail included,) from the 28th day of September 1780 to the 5th of the same month in 1790, only twelve died of natural deaths. Since the latter of these periods, the establishment of the new system of discipline has produced much better arrangements, as well in respect to the comfort and health as to the good order and government of the prisoners. This has been evident in several instances. The physician’s bill, which formerly amounted to 1280 dollars a-year, seldom exceeds at present 160; and excepting in cases of contagious diseases, not more than two prisoners have died from June 1791 to March 1795, a period of nearly four years. During the fall of 1793, when the yellow fever had extended its fatal ravages over every part of the city and suburbs of Philadelphia, we have from Mr. Carey, in his account of that calamity, that only six persons in the prison were taken sick and sent to the hospital, although the situation of jails, even under the best administration, makes them most frequently liable to the generation of contagious and other diseases. At this time, too, were confined there, by order of the French consul, 106 French soldiers and sailors, besides 100 other prisoners, composed of convicts, vagrants, and criminals committed for trial.”

Observations.—From the number of the prisoners that passed through the prison within a given space of time—from the mere number alone, as compared with the number of deaths within that time, no very precise induction can be drawn: another point to be known is, what was the average duration of a prisoner’s continuance there; if, for example, about half-a-year, viz. 180 days, this would give for the 8000 in ten years, four hundred throughout the whole of every year: upon this number, 12 in the ten years would be 1⅕ death per annum upon the four hundred.

In this parallel between the two systems, your Lordship may have observed, on the part of the penitentiary system, whole heads wanting, and those very material ones. Under the head of miscellaneous crimes (given as exemplifications of depravity,) a mere blank: under the head of incendiarism in particular, a complete one. The case is—that among chronical punishments administering a coercive discipline, it is the peculiar glory of the penal colonization plan, that under it the list of crimes keeps running on, as if no coercion at all were administered; or, if there be any difference, in rather a greater proportion under and with the benefit of this discipline, than without it. In this point, I question whether the world ever saw anything under the name of punishment bearing the least resemblance to it. In the very worst ordered gaol, the discipline has at any rate been sufficient to keep the prisoners out of the commission of great crimes: even the hulks have succeeded thus far; even the worst ordered of those archetypes of our hulks that are still to be seen upon the continent—the galleys. No forcible robberies are committed—no burglaries—no churches, no hospitals are burnt—even in the galleys.

XII.

Central Inspection Principle:

Escapes, for want of it, from the American Prisons, as above.

In a method governed by the consideration of the ends of penal justice, the topic of escapes seems to belong to the head of Incapacitation—incapacitation for fresh offences. Why? Because under any mode of confinement the effect of which is to prevent offences while it lasts, the effect of an escape is to break the bridle, and leave delinquency to run on again in its old course. Unfortunately, in the penal colony of New South Wales, the place for the topic of escapes is not quite so easy to be found. When a man escapes out of it, the scene indeed of his misdeeds is changed; but the multitude of them, being during the continuance of the confinement at the highest pitch, is not in much danger of being increased by the cessation of it. Be this as it may, the confinement of the prisoner being by the supposition a desirable object, an escape by which he is liberated from that confinement must, happen where it will—must, were it only for consistency’s sake, be ranked among undesirable ones. In the case of any other place of legal confinement—in the case of an American penitentiary-house more particularly—this character will be seen to belong to it without dispute.

Good as the penitentiary system has proved itself, wherever it has been established—good in every point of view—good with reference to its end—good in comparison, with reference to every other system of confinement—I have never given it as altogether perfect: I mean, in any of its existing shapes. I have reserved to myself the submitting to your Lordship, whether from experience as well as by reason, the addition of the principle of central inspection may not be regarded as calculated to add to the perfections of it. Reformation, economy, and prevention of escapes—incapacitation thereby for fresh offences resulting from escapes—in respect of every one of these objects, I have ventured to state it as eminently serviceable. In respect of reformation and economy, its presence having never been experienced, the loss, if any, from the want of it, is a point of which, as even the existence, however probable, cannot, strictly speaking, be demonstrated, still less can the amount be mathematically ascertained. In the article of escapes, the amount of the inconvenience from the want of it, and thence of the benefit that would result from the adoption of it, is rather more open to demonstration. A postulate, it is true, must even in this case be assumed: viz. that under the eye of a keeper, with adequate assistance and means of defence at his elbow, he at the same out of the reach of assault, neither a single unarmed prisoner, nor any number of unarmed prisoners, confined in a room by bars and bolts, will so much as attempt to escape out of it. This being admitted, whatever escapes have been found actually to have taken place from a prison unprovided with this security, may be set down as having the want of it for their cause: and to this same score may be set down, in the account of economy, the expense of all such guards whose services, in a spot exterior to the prison, have for a given period been kept appropriated to this purpose. After these remarks, whatever considerations are presented to view by the ensuing extracts will, I presume, find their application without much difficulty.

XIII.

Inspectionthe more perfect—the more perfect the Management; viz. in respect ofReformation, Incapacitationas toEscapes,andEconomy.

No. 1. Philadelphia; between 1786 and April 1790, under the ambulatory jail-gang system, being the first attempt at reformation. Liancourt; 1795: p. 6.—“Criminals loaded with irons, and scattered through the streets and along the roads, presented to the public the spectacle of vice, rather than of shame and misery; and the impossibility of watching them properly, facilitated the means of excess, of drunkenness, of pillage, and of escape.”

Observations.—Under this system, it may be inferred that escapes actually did take place, with more or less frequency, as under such a system might naturally be expected.

No. 2. Philadelphia; 1786: Turnbull; 1796, p. 14.—“Finding at length that the perseverance of the ‘Society for alleviating the miseries of Prisons’ bid fair to an extinction of all hopes of their continuing in the same scene of confusion, with one consent they resolved on a breach of prison. The attempt was accordingly made on the evening of the day the new order of things had taken place. Fortunately, few of them escaped: [Fifteen, as per Liancourt, p. 31.] The jailor was immediately discharged; and since that period [to August 1796,] almost every project for the same purpose has failed, either from the want of unanimity of the most evil disposed, the fears of those less so, or the decided disapprobation of the greatest proportion of the prisoners to anything of the kind.”

No. 3. Ib. Philadelphia; 1796: Turnbull, p. 19.—“About seven [prisoners] are in a shop, one of whom is appointed by the jailor, whose duty it is strictly to notice all offences, and who, in default of it, is punished according to the rules. For this, however, there is little or no necessity, as they commonly work under the mutual inspection of each other.*The keepers constantly parade among the prisoners, in the court-yards and passages. [viz. per Liancourt, p. 19. Turnkeys, four in number for the whole house.]

Observations.—“Constantly parade among the prisoners;” i. e. constantly have some of the prisoners themselves in view:—“constantly in the yards and passages;” i. e. constantly have in view more or less of the space occupied by the prisoners:—constantly; i. e. in the day time? But in the night? have they them, all of them, and all night long, in view? Unquestionably not; if they had, the escapes indicated by the word almost, in No. 1, could not, humanly speaking, have taken place.

So far at least as mere inspection is concerned, the work of the four keepers would, in a prison upon the central inspection principle, have been performed, and much more effectually and clear of almosts, by a single keeper; at the same time that, on my plan, the economy of the concern would of itself have afforded, as well as demanded, all night long, the assistance of a number of observing eyes.

No. 4. New York; 1802: Eddy, p. 18.—“Absolute reliance ought not to be placed on the strength of any prison, let their walls be ever so well constructed. Nothing will probably prevent escape but the unremitting vigilance of the keepers, and a strict watch day and night.”

No. 5. Ib. p. 19.—“It would have been more secure, if all the cells and the rooms in the wings adjoining had communicated with one and the same passage; since the same person who watched the wings might at the same time have attended to the cells. It was probably owing to this defect that the escapes were made from the cells, which might have been prevented by a suitable watch.”

No. 6. Ib. p. 37.—“When day-light disappears, a small lamp is lighted in each room and in the halls; and then the assistant keepers go on watch in the halls and corridors, which command a view through grated doors of each apartment: they walk to and fro during the night, dividing the watch between them.”

No. 7. Ib. p. 29.—“In consequence of some escapes, the legislature, at the last sessions, authorised the governor, or the person administering the government, to raise a guard, to be called ‘The State Prison Guard.’

“The annual expense of this guard will be about 7000 dollars (£1575.) Though the security of the prison is of the highest consequence, since the efficacy of mild punishments depends on their certainty; yet it is probable that an increase of the number of keepers [i. e. within the prison] and a more perfect arrangement of them, would have been equally effectual to that security, and would create not half the additional expense of the present guard.”

Observations.—A more perfect arrangement of the apartment, viz. upon the central inspection principle, would have been much more effectual, and saved the expense not only of the guard itself, but of the proposed succedaneum to it.

No. 8. Ib. p. 54.—“About twenty-two of the most obdurate criminals are kept confined and at work in the separate apartments, and are not suffered to come out, or to have any communication with other prisoners, but are constantly watched by keepers day and night.”

Observations.—Without the benefit of the central inspection principle, by which the whole inhabitancy would have been watched by a single keeper without effort, how severe the obligation of such vigilancy, how inordinate the expense!

That these precautions were neither unnecessary, nor so much as sufficient, appears but too plainly from the account of escapes, as given by the same intelligent and zealous administrator, whose labours had, under the invincible disadvantage of ill-adapted architecture, been applied to the prevention of them.

From this it appears, that in the case of that prison, the number of the prisoners that have escaped has, within the five years in question, been almost equal to the number who have died in it; between 1-3d and 1-4th of the number who have been discharged out of it by pardon; between 1-8th and 1-9th of the number discharged by expiration of their sentences; and between 1-27th and 1-28th of the whole number received into it.

If a man may be allowed to quote himself, a few observations written on the same subject on another occasion* will not here be altogether out of their place. “If in a building on this plan, anything of disorder is supposed, it must be because, though in words the adoption of it may have been admitted, the state of things that would be the necessary result of it is not present to the mind. The disorder supposed, is supposed to be out of sight, which in fact it never could be. From the want of this advantage proceeds that anxiety, the intensity, and at the same time the inefficacy of which is apparent in every page of the rules and orders that one sees. Officers frequently to go into the wards—frequently to hear complaints—master frequently to go into every ward, and inspect the persons therein, on a particular day of the week especially—twice a-week the matron to inspect every part of the house—paupers to be kept clean—officers frequently to take a view of them—paupers to come down into the dining-hall to be mustered and employed—doors to be locked that they may not harbour in the wards in the day time;—nurse-children frequently to be visited—once a-month at least;—apprentices frequently to be visited by the messenger.—This from the regulations of one of the first-rate poor-houses. All this an attempt—and that probably in a great degree an unavailing one—to effect by great exertions, not a hundredth part of what on the central inspection plan would take place of itself, without a man’s stirring from his chair.”

Being thus far engaged in self-piracy, I will e’en beg leave of your Lordship to go so much further as to transcribe a passage on the same subject from another work: I mean the book entitled Panopticon; containing an exposition of the central-inspection principle, with a view to the variety of different purposes to which it presented itself as applicable. The insertion may perhaps be the more pardonable, inasmuch as though the first of the three little volumes, of which the work consists, was in 1791 reprinted, and perhaps sold in Ireland, by order of the government of that day, yet neither that partial re-impression, any more than the original impression, can have ever found its way here into the shops. At the same time, not to obtrude as necessary, what may perhaps be deemed superfluous, it stands dismissed to the bottom of the page.*

What is below being read or not read, let me beg of your Lordship to consider whether, if the too famous prison in Coldbath Fields had been upon any such plan, those complaints which have given so much trouble to so many Right Honourable and Honourable Gentlemen could ever have obtruded themselves?—whether the ground for those complaints, such as it was, could ever have had existence?—whether the time of so many public men, whose labour, so much to their regret, was for so many weeks employed upon this irksome service (men worthy of better occupations,) would not have been saved, and the peace of the metropolitan county, together with the situation of its veteran representative, have remained undisturbed?

At different times a sketch on the central-inspection plan has been shewn to jailors:—at no time without producing an exclamation: Ah! if my jail were like this, my task would be a safe and easy one!

Different men, different opinions: where is the subject, my Lord, that will not display the difference, especially when motives prompt opinions, and situations convert them into laws?

One man, upon being told of a prison, in which every prisoner was without intermission exposed to an inspecting eye.—“Then they’ll all get out,” says he. This was one of those men, whom, under the ancien regime, gentlemen used to send out to govern kingdoms: accordingly, so long as he reigned, he took effectual care there should be no such jail to get out of in his dominions, spite of everything that could be said to him by subordinates.

Another man, upon seeing the model of a prison round like Ranelagh, with this difference, that excepting iron bars and supports as in work-shops, the circumference was all glass, exclaimed immediately—“This prison will be too dark: the keepers in the middle will never be able to see their prisoners.” The room it was in, being none of the lightest, ocular demonstration was so far on his side. By I know not by what accident, this reason missed being added to the four reasons for relinquishment: though, sure enough, there was a time, my Lord, when they lay all together safe and snug in the same place. Alas! my Lord! why were they ever suffered to get out of it? There, there indeed, was an escape!

Behold here again, my Lord, another governor of kingdoms: a task a man seems to be set down to, when he is fit for nothing else. Alas! my Lord! what a truism was the deathbed observation of Chancellor Oxenstiern to his son: Nescis, mi fili, quam parvâ sapientiâ mundus regitur!*

XV.

Fruit of the Penitentiary System, in point of Example as well as Reformation. Decrease of Crimes.

No. 1. Philadelphia; 1793: Lownes, p. 93.—“Our streets now meet with no interruption from those characters that formerly rendered it dangerous to walk out of an evening. Our roads in the vicinity of the city, so constantly infested with robbers, are seldom disturbed by those dangerous characters. The few instances that have occurred of the latter, last fall were soon stopped. The perpetrators proved to be strangers quartered near the city, on their way to the westward.

“Our houses, stores, and vessels, so perpetually disturbed and robbed, no longer experience those alarming evils. We lie down in peace—we sleep in security.

“There have been but two instances of burglaries in this city and county for near two years. Pickpockets, formerly such pests to society, are now unknown. Not one instance has occurred of a person being convicted of this offence for two years past. The number of persons convicted at the several courts has constantly decreased. Thirty and upwards at a session have frequently been added to the criminal list: at this time, when both city and county courts are but a few days distant, there are but five for trial! Such have been our measures—such is the state of things—and such the effect. If any one can assign other causes for them than are here adduced, they must have other opportunities, other means of information than I am acquainted with.”

No. 2. Philadelphia; 1796: Turnbull, p. 91.—“It appears that since the late improvements in the penal code, offences have diminished in a proportion of about one half; and when we recollect that the first table contains the offences of the city and county of Philadelphia only, we may pronounce that they have decreased throughout the whole state nearly two thirds. The two periods are equal, and the latter commences from 1791, from the new discipline not having taken place previous to that time. The most material point gained with respect to offences, is the diminution of the most heinous ones, which are still in a greater proportion. They stand in the table as follows:—

Observations.—This is a success indeed! a success reported at first after a trial of about two years: confirmed afterwards, as per last accounts, by a further experience of between three and four years. According to the figures, the first-rate crimes reduced to less than a fifth of their former number: but even this degree of success, prodigious as it is, falls short of the proportion really obtained. The larger number (the 126) during the prior period is for the capital—Philadelphia—city and county alone:—the smaller number (the 24) during the subsequent period—the period of improvement—is for all Pennsylvania—for the whole state. But in the jail of this same state, in December 1792,* at a time when, for the whole state, the number of convicts of all sorts was 37, out of these 37, the number for the city and county taken together was but 24; that is, was not quite so much as two thirds of the number for the whole state. Assuming, for supposition’s sake, that at the point of time in question (August 25, 1796,) the proportion was still the same, it would follow, that at this latter point of time, out of the 24 for the whole state, no more than 16 were for the city and county:—in this latter period of five years, no more than 16 from the same portion of territory, which in the earlier period of the same length, had furnished convicts of the same description, to the number of 126. If instead of the 126, the number had been 128, the proportion of convicts for the latter period would have been no more than one-eighth of the number for the former—instead of four fifths, the decrease would have amounted to seven eighths.

Permit me on this occasion to add, my Lord, that the difference thus produced—the distinction thus noted—between the number of first-rate crimes and the number of crimes of a less mischievous complexion, is matter of particular satisfaction to me. It gives the permit of experience to some speculative and therefore contraband ideas, consigned long ago to some of the useless papers I have already hinted at. After the diminishing the number of crimes of all sorts and sizes taken together, another distinguishable though concomitant object should be (so it appeared to me,) by a system of due proportions as between punishments and offences, to shove down, as it were, the number of the higher crimes, to convert the higher ones as far as can be done into inferior ones—which inferior ones will then be found such to the mischief of which it is in the power of money to apply a cure. This done, the mischief might, with the help of a few obvious and necessary precautions, be brought within the healing influence of the principle of insurance: the principle applied with so much success to the reducing the quantum of suffering from various other causes. Under the head of Compensation, I have already troubled your Lordship with a reference to the humble endeavours I had used to throw my mite into this treasury. What I do not pretend to say is—that against mischief from criminality, any more than against mischief from fire or water, the door could be altogether shut by this means or any other: but what I fear not to say is—that by this means the mischief from criminality—from such crimes as are committed (not to speak of defalcations that might be made from the mass of mischief, by defalcations from the absolute number of crimes,) might be made to undergo a degree of reduction, beyond anything which in this country at least has ever yet been looked up to as within the reach of hope. The great point is, to clear the country of those crimes, each instance of which is sufficient to awaken and keep alive, in every breast within a certain circle, the fear of boundless injury to person or property, as well as of destruction to life itself—in comparison of this widespreading—this almost universally extending mischief—this fear of boundless injury—the sum of the mischiefs resulting in each instance from losses and other injuries actually sustained by particular individuals would be found relatively inconsiderable. From the number of these superlatively terrific crimes, seven eighths or thereabouts appear, in the instance in question, to have actually been struck off in actual experience. In this, or any other country, my Lord, would not the same advantage have been worth purchasing at the same price?

In speaking of the price, it would be incorrect, I doubt, to state it as consisting of such exertions, merely as would be requisite for the establishment of a penitentiary-house. Another cause which appears to have contributed, and perhaps in at least an equal degree, to the production of the effect, is—the abolition, next to a total one, of the punishment of death. If this be so, then to the account of exertions must be added the effort (no slight one) necessary for giving up the favourite punishment; the punishment so dear to vengeance, hard-heartedness, prejudice, and indolence. On this subject, let the following fact speak in the first place:—

No. 1. Philadelphia; 1786: Liancourt; 1796, p. 38.—“In the year 1786, after the law had been passed which abolished the punishment of death and established the new system, two prisoners arrested for crimes (which according to the ancient jurisprudence were punishable by death, and by the new one only by imprisonment,) preferred to be judged according to the ancient law, rather than be subjected to so long and rigorous a detention; and particularly to that solitary confinement which they started from with horror, though they had never experienced its bitterness. They were confirmed in this choice by the hope of a free pardon; an event which would have restored them to immediate freedom. One of them was not deceived in his expectations; the other suffered death.”

Observations.—From this instance, my Lord, may it not be inferred, and may not an instance thus happily apposite be pronounced sufficient of itself to support the inference—that it is not merely in the way of reformation, but by its subserviency to the still superior end, example, that penitentiary punishment, when well conducted, operates with so palpable an effect in diminution of the multitude of crimes? This same instance, is it not moreover sufficient to support the further inference that death, which reforms only by annihilation, which incapacitates for crimes only by incapacitating for everything—that death, of which the only recommendation is its supposed superior efficiency in the way of example, yields even in this point to that which is so much superior to it in every other? Turning again to penitentiary punishment, and comparing the exemplification here given of the terror inspired by it, while as yet unexperienced, with the preceding accounts of the deportment and apparent state of mind of the patients under and during the infliction of it, is it not, in both points of view, everything that, for the sake of all parties, one would wish to find it?—does it not, as far as is compatible with the melancholy complexion of the case, exhibit that combination so desirable in every case—the utile cum dulce? In prospect terrible, in experience tolerable?

Observe, my Lord, how the separate experiences on both sides are confirmed and crowned by this comparative experience. Of the efficiency of penitentiary punishment, the separate exemplifications have just been presenting themselves to your Lordship’s view. Of the inefficiency of capital punishments, observations upon observations occur in the annals of the penal colony as recorded by its chief magistrate. At the time of execution,* at the time of dissection,† on a variety of other occasions, such as on all minds might have been expected to be, and on other minds would have been impressive. The insensibility of the survivors to the fate of their comrades and associates is matter of surprise no less than concern to the historian who witnessed it. Confronted together, these contrasted masses of experience, consistent though unconnected, would of themselves afford a proof of no light weight in the scale of prudential conjecture;—would afford that sort and degree of proof, which of itself might appear of sufficient strength to support a correspondent practical inference, with its correspondent measure. But what an accession of force is added to these separate experiments, when thus supported by a corroborative of so rare a complexion, as that which is afforded (to use the language of Lord Bacon) by this conjunct experiment!—the experiment, I mean, in which the two punishments being put in the opposite scales of the same balance, and in the same minds, the punishment of death is found light—the more temperate and regulated mode of punishment outweighing it.

XV.

New South Wales—Economy—Prospects, as per last accounts.

The subject of reformation being thus far considered, economy presents the only remaining topic on which any very material lights can be thrown by the ulterior accounts. On this subject, the evidence might be supposed to have been favourable, or at least less unfavourable than before, if so conspicuous a topic were passed over altogether without notice. At the outset my intention was, to have exhibited the passages as before in terminis. Frightened, however, at the mass of paper already filled, I give up the greater part of the attempt I had projected on this ground, upon your Lordship’s patience, confining myself, for the present at least, to a brief indication of the topics, with references instead of quotations.

Respecting expense, past or future—I mean expense to government, the ulterior accounts afford not to my view any indications worth referring exclusively to that head. Two other co-ordinate heads comprise everything that presents itself as worth mentioning:—perpetual probability of sudden destruction—hopelessness of a non-convict population—the existence of one, a circumstance that seems all along assumed as a condition sine qua non to the ultimate success (whatever may be understood by success) of the 14 years’ experiment;—assumed by the concurring opinions of the late governor,* and the late chief magistrate,† gentlemen whose opinions on this as on every other head cannot but be as weighty in the scale of opinion as any observations of mine, were I to take upon me to present them in that character, would be light. As to success, what sort of result is to be understood by that expression is a question, for the answer to which I must beg leave to refer your Lordship to the gentlemen themselves, by whom the word, or what amounts to it, has been employed. What I myself should mean by it, has, I hope, for some time been tolerably clear—accomplishment of the several already enumerated ends of penal justice. Be this as it may, in the notice given by this previous announcement, I claim some merit, my Lord; because, if the results in question be not worth regarding, the proof is still less so: the paper, if thus far read, is thrown by, and so much of your Lordship’s time is saved.

Three main causes of famine, and destruction by famine perpetually impending over the ever-so-much “improved” colony: each of them adequate to the effect, according to the time. Fire—drought—inundation—for so the case seems to be—there is always either too little water or too much. Fire, by the malice or phrenzy of the colonists themselves, converted alike by good or bad government into intestine enemies.* Fire, again, by hostility of external enemies, the native savages, ever ready, ever able, to return evil for evil, and for good likewise:† fire, even spontaneous, or in the language of law and religion, by the visitation of God.‡ From all these sources together, danger of fire continually brooding over the whole colony, and covering every acre of ground contained in it. Of inundation, the danger not quite so universal, being confined to the settlements on George’s River and the Hawkesbury,∥ the only spots that present any hope of agricultural advantage.§ On the other hand, what it wants in universality made up in point of certainty, grounded on the topographical features of the country, and by the very latest accounts (dated August 1801,) realized to such a degree, that “many of the settlers who had farms on the banks had in despair totally abandoned them.”¶

To these, more awful scourges might be added, insect vermin, grubs** and caterpillars;†† plagues as destructive and as frequent as inundation: more and more ineludible than fire. These minor plagues indeed (it will occur) have their equivalent in other countries. True—but then such other countries have unplagued neighbours to draw upon for relief.

As there are years in which the crop does not amount to above a third of what it does in others;‡‡ hence, to guard against dearth, if dearth could be guarded against, would require amply stocked magazines:—receptacles in which, over and above the ordinary provision for an ordinary year, more than two-thirds of a year’s crop should be kept constantly in store.* The quantity of land cultivated on government account not being yet so much as a tenth part of the whole quantity in culture,† it follows, that to make any tolerable provision against famine, two-thirds of a crop, plus the nine-tenths of a crop, must be bought on government account of the settlers, and a constant overplus to that same amount be kept up by the same means. Here, then, comes a constantly real necessity for a prodigious quantity apparently superfluous. If the demands of this necessity are yielded to, then comes a proportionally heavy expense, and in the natural course of things, suspicions at home in consequence, reprimands in consequence of these suspicions:—if in consequence of these suspicions and reprimands, or otherwise, the demands of the necessity are not yielded to, then, on the other hand, comes famine:—nor that alone, but along with it the insufficient exertions in the way of expense made as heretofore in fighting against the famine. Beau jeu in all this (your Lordship may perhaps observe) for opposition: if opposition were to find a glance to bestow upon such trifles, and if half a dozen thousand convicts in New South Wales were worth half the pains that have been seen to be taken about half a dozen seditionists, or supposed seditionists, in Coldbath Fields. Is the necessary provision made? Outcry against the expense:—is it withholden? then in God’s own good time comes the famine, which, if it were the fashion to look to any such distance, would be a still better thing than the expense.

So again, about the chandler’s shop already spoken of.* Is the shop sent out thither and opened?—then again comes the expense in that shape. Are the governor’s promises on that head kept by gentlemen here, as in my instance they have been keeping their own engagements for these nine years?—then comes the impoverishments of the settlers—the already established reason for keeping up that enormity of price† by which the expense is let in, and the public money let out at another crevice.

It would be something, if at any expense the security could after all be purchased; but as the security increases on one hand, so does the danger on the other. These magazines, are they scattered over the face of the country?—so many stations, so many points to guard against depredation. Are they kept together in one mass?—the more comprehensive, then, the destruction they are exposed to suffer from the devouring flames. Each Caligula (in a state of things capable of giving birth to many Caligulas) beholds his wish thus realized: all heads standing upon one neck, and capable of being cut off at one stroke. The supposition, can it, in that situation, be deemed a forced one? Even in the mild climate of the mother country, when symptoms of dearth break out, does not the actual cautery stand in the materia medica of the populace, upon the list of remedies?

But not to speak of a whole stock of settlers, how should so much as a single settler, henceforward at least, ever find his way thither, without insanity on his part, or cruel treachery on the part of those who sent him?‡ No tolerably assured source of supply, either for accustomed comforts, or so much as necessary tools and implements∥ —no tolerably assured market for produce when raised.§ The chance depending, in the first place, upon the real wants of government; in the next place, upon the arbitrary will and pleasure of a single person, in a situation capable of making a tyrant out of a Trajan or a Titus.¶ Storehouses and dwelling-places requiring repairs every year,* and even on those terms (such is the law of the climate) not capable of being made to hold together above ten years.†Property (supposing it acquired)—property (not to speak of person) incapable of being removed, and exposed all the time to depredation, as well as to so unprecedented an assemblage of the causes of destruction as that referred to as above. No stirring from home without a special license; an instrument to be inspected and confirmed every two or three miles, by a man who may not be to be found, or may refuse to look at it,‡ —every action of life depending, ultimately or immediately, upon the caprice of a governor, whose caprice is without controul, and whose whole course of government (as I propose to myself the honour of stating to your Lordship ere long) is one unintermitted, howsoever excuseable, violation of law. While a niche in a rock is to be had in Nova Zembla—I beg leave to ask, my Lord—could a man in his senses, supposing him apprised of all these circumstances, regard any otherwise than with abhorrence, the idea of becoming a settler in New South Wales?—in a country peopled almost entirely with characters, the importation of whom into any other “community,” though it were in the smallest numbers, is compared by the chief magistrates to the “importation of the plague, or the yellow fever?”∥

After the view already given of the establishment, with reference to the avowed, or at least only avowable, ends of its institution, the sketch likewise given of the eventual probability of its destruction would to some eyes be productive, not of regret, but satisfaction: a satisfaction the more complete, the nearer that probability were looked upon as approaching to certainty. The worse the system, the more fortunate that the maintenance of it should be thus hopeless. Once admitted, this hopelessness would ease gentlemen of the responsibility, save them the expense of thought, relieve them from the burthen of reflection and debate. Such, I am inclined to think, would be the effect of the picture on some eyes:—whether your Lordship be or be not of the number, is a point altogether above the reach of the best observations that can possibly be made from so humble an observatory as mine.

XVI.

English Hulksand “Improved Prisons”—Topics deferred.

After so much as has been said of the two specially contrasted systems—the system of penal colonization on the one hand, the penitentiary system in its most improved realized form, as likewise in its supposed still more improved, though as yet unrealized form, on the other—a supplement of a very moderate length would suffice to complete the review of the several modifications of chronical punishment that have as yet been either exemplified or proposed among Britons and men of British race. “Hulks” and “improved prisons” are the heads under one or other of which all the yet remaining matter might be comprised. Principles being already laid down, a small number of additional pages would suffice for the application of them to these two topics. At present, however, considering how large the draughts are which I have been venturing to draw already upon a time so precious as your Lordship’s—how complete the uncertainty is to a man at my humble distance, in what proportion, if in any, this or any such draughts from any such quarter will ever be honoured; considering with what imperturbable serenity your Lordship was pleased to view the outline, which it has been the business of this and the former letter to fill up—how incapable it was of producing on your Lordship’s part any other perceptible effect than a philosophical reflection on the supposed frame of mind by which some other papers that accompanied it were supposed to have been produced; considering how impossible it is for me to know, or so much as to conjecture, whether the lot of convicts, or that portion of public security which depends upon the disposal of them, has ever yet been regarded, or is ever destined to be regarded, as worth a moment’s thought, either by your Lordship, or by any of those other exalted persons with whom, when anything is acted, your Lordship acts; considering how much easier, in certain circumstances, repose is than action, silence than justification, or even excuse; taught by a course of nine years’ experience, how much superior your Lordship’s situation is to every level of practical responsibility—how much inferior mine, and every public subject that has the misfortune to be connected with it, is to every level of effectual and exigible right; recollecting, with an emotion of not altogether uninterested sympathy, the mortification experienced by the well-bred visitor at Mrs. Salmon’s circle, whose homage to a well-dressed lady was not sufficient to procure him the return of so much as a nod;—putting all these things together, my Lord, I have determined to consult my own ease at least, whether your Lordship’s be or be not connected with it, by reserving to an occasion of future contingency what little may require to be said on those other uninteresting topics above glanced at;—and accordingly for the present, waiting with the necessary resignation that nod, which at one time it was said to be in your Lordship’s contemplation to bestow, I have the honour once more to subscribe myself, my Lord, your Lordship’s most obedient and humble servant,

Jeremy Bentham

Queen’s Square Place,
Westminster,
17th December 1802. }

A PLEA FOR THE CONSTITUTION:

SHEWING THE ENORMITIES COMMITTED, TO THE OPPRESSION OF BRITISH SUBJECTS, INNOCENT AS WELL AS GUILTY;

in breach of

as likewise of the

SEVERAL TRANSPORTATION ACTS,

in and by

THE DESIGN, FOUNDATION, AND GOVERNMENT

of the

PENAL COLONY OF NEW SOUTH WALES:

including

AN INQUIRY INTO THE RIGHT OF THE CROWN TO LEGISLATE WITHOUT PARLIAMENT

in

TRINIDAD, AND OTHER BRITISH COLONIES.

BY JEREMY BENTHAM, ESQ. OF LINCOLN’S INN, BARRISTER AT LAW.

PREFACE.

In two already printed Letters,* having for their direct object, not the legality, as here, but the policy of the penal colonization system, hints were given respecting the illegalities, which are the subject of the present sketch. At the same time, the publication of them in the ordinary mode was forborne, and the circulation of them confined to a few select hands: lest, before there should have been time for the application of a parliamentary remedy, the information thus given, of the illegality of the government there, should, by any of those indirect channels which are not wholly wanting, find its way into the colony, and be followed by any of those disorders, of which, in a community so composed, a state of known anarchy might so naturally be productive.

On that same occasion, mention was made of the case of the Ship Glatton, which in September or October had sailed with convicts for New South Wales.† On all former occasions, the vessels in which convicts had been conveyed had been private vessels: the powers given by the various transportation acts not being applicable to king’s ships. The person to transport the convicts was to be a private individual:—he was to execute the business by contract; and the service to which the convicts were to be subjected, was to be rendered exclusively either to the person so transporting them, or to some other person or persons, to whom by such contracting transporter the right to such service had been assigned. The Glatton is a king’s ship: the first, if I mistake not, that had ever been employed in that service. Setting aside the possible fiction of the king’s captain having been converted for this purpose into an independent contracting merchant, and the king’s governor into a character of similar description, it follows, that, in point of law, neither has the captain during the voyage, nor will the governor have at the conclusion of it, any more power over these exiles, than he would have over any other passenger. The eventual consequences, in respect of trespass, murder, and so forth, are too complicated, yet at the same time too obvious, to be unfolded here.

This intimation, though from so obscure a quarter, has not been altogether without its fruit. I speak of the transportation facilitating act, the act of 43 Geo. III. c. 15, dated 29th December 1802;‡ a statute which, from its almost unexampled brevity, may, without much expense of paper, find a place at the bottom of the page.

The occasion which called forth this manifestation of parliamentary wisdom, was the then and still intended expedition of the Ship Calcutta, another king’s ship with a similar lading, on a commission of exactly the same nature.

In this act, the powers I had ventured to point out as necessary for the ship that sailed without them, are precisely the powers that have been provided for the ship that is now to sail; and so far all is right. But the ship that sailed without them,—what provision is made in the act for her case? None whatever. To the case of all such convicts as may come to be transported, at any time subsequent to the 29th of December, the powers are capable of being applied: to whatever have been sent off before that time, they are not applicable. Captain Woodriff, whenever he sails, will sail (I doubt not) in the character of a lawful agent of the crown, provided with lawful powers: but Captain Colnett, (to whom I beg to be understood not to impute the smallest particle of moral blame,) Captain Colnett, for any warrant or protection that has been afforded him by this act, cannot have sailed in any other character than that of a kidnapper. For the exile, confinement, and bondage of Captain Woodriff’s cargo of convicts, there will doubtless be a sufficient warrant under this act. For the confinement and bondage of Captain Colnett’s cargo, there is no better warrant than there would be for the like coercion, if an equal number of his Majesty’s titled subjects, swept out of a birth-day ball-room, were to be the objects of it. Needless in toto, or else insufficient by half: such, upon the face of this statement, is the dilemma, out of which, if any gentleman in a long robe, or without a robe, is able to extricate the measure, he will do good service.

The act is simply enactive: it is not declarative. By being made declarative it might have been made virtually retrospective: but declarative clauses are seldom to be found, without an introductory escort of sometimes real, but more frequently pretended “doubts.” Here the preceding illegality, of the powers which it was the business of this act to confer, was beyond all doubt. In the personal character of the truly honourable servant of the crown, on whose shoulders the mechanism of this disastrous business pressed, I behold, with pleasure, a cause sufficient to account for the exclusion of this, as well as all other disingenuous pretences.

Being without retrospect in effect, the act is still more palpably destitute of every operation of that kind, expressed in direct terms. The cause of the deficiency is not less perceptible in this case than in the other. The emotion of disgust and alarm, with which an eye of legal and constitutional sensibility could not but have shrunk on this occasion from every such retrospective glance, may be anticipated in some measure from the very title-page of this Essay, and I flatter myself will be pretty distinctly warranted, as well as accounted for, by the tenor of the ensuing pages. So foul, so frightful, was the ulcer, the surgeon durst not look it in the face.

Thus then stands the matter at this hour. The same act by which legality has been given to the expedition about to sail, confesses the illegality of that which is already on its way. A deeper probe, a broader plaster, are still necessary. A fresh act must be passed for the ship Glatton, or all pretence of consistency—all regard for official decency—all regard for the forms and fences of the constitution—must be disclaimed.

SECTION I.

SUBJECT MATTER—OBJECT—PLAN.

On the ground of natural justice, as well as expediency, a view, nor that a slight or hasty one, has already been given of the penal colony.*

The object of the present essay is of another order: the business of it is to examine the same establishment on the ground of positive law: and, in so doing, to state for the consideration of such of my fellow-subjects, if such there be, by whom the constitution under which we drew our breath may be regarded as worth preserving, the injury it has received from the system of misgovernment, by which this nursery of martial law was originally planted, and ever since, during a period of more than fourteen years past, has been conducted and upheld.

On the ground of policy, the measure had from the first presented itself to me as more than questionable: years many and many, before the particular inducements, by which I was led to a closer investigation, had so unfortunately occurred to me. On the ground of legality, it was not till very lately that so much as a suspicion had come across me.

In a survey taken of the system pursued by the government of the colony when founded, the laws passed for the foundation of it would not remain long unnoticed. Astonishment flashed from the first glance. Compared with the immensity of the superstructure, the scantiness of the basis exhibited a Colossus mounted upon a straw. Such is the impression, such the discovery, if so it may be termed by anticipation, that gave birth to the scrutiny, of which the following pages are the result.

Legislative power is, and all along has been necessary, for the maintenance of government in the colony of New South Wales. Lawful power of legislation exists not—has not at any time existed—in that colony. Actual power of legislation has at all times been—still continues to be—exercised there. The power thus illegally assumed, was employed, as it had been assumed, for oppressive as well as anti-constitutional purposes. Britons, to whom their country, with the whole world besides, was open by law, have been kept in confinement in that land of exile. Britons, free by law as Britons can be, have been kept in that land of exile in a state of bondage. Such are the propositions which have presented themselves, and which, as such, it will be the main business of the ensuing pages to establish.

Other propositions, though distinct in the expression, and more impressive on the imagination, are not distinct in substance, being virtually included in the foregoing ones. Of what passes there for justice, a great, perhaps the greater part, is so much lawless violence: magistrates are malefactors: delinquency, which, in the conduct of the most obnoxious of the governed, is but an occasional incident—is at all times, on the part of the governing class, and especially on the part of the head of that class, the order of the day. To a part, probably the greater part, of the mandates issued, resistance is a matter of right: homicide, in the endeavour to subdue it, would be—has actually, if the case has occurred, been—as the law stands at present—murder. Not a governor, not a magistrate who has ever acted there, that has not exposed himself—that to this hour does not stand exposed—to prosecutions upon prosecutions, to actions upon actions, from which not even the Crown can save him, and of which ruin may be the consequence.

Connected with these propositions of dry law, are others in which considerations of a moral nature are combined with legal ones. Among the numerous, or rather innumerable manifestations of lawless power, are indeed some—and probably (let candour add) even by far the greater number, which import no moral blame: which, legality apart, import rather praise than blame, so far as praise is due to necessary prudence; and which, in a word, want nothing but legality to be laudable ones: measures, I mean, taken for the maintenance of authority and necessary subordination; measures calculated for the prevention of mischief in all its various shapes. To this division will be found to belong, more particularly, if not exclusively, the acts of the possessors of power upon the spot: measures recommended at least to them, if not absolutely forced upon them, by their providence, by their experience: measures finding, perhaps in every instance, an excuse—in most, if not all instances, a justification (I mean always in a moral point of view) in the mischiefs and dangers of all kinds, with which so unexampled a state of society is encompassed.

To acts of another description no such justification, no justification at all, scarce anything that can be termed so much as an excuse, in foro morali, any more than in foro legali, will perhaps, if the following view of the matter be correct, be found applicable. Such are the acts by which the punishment has been continued in fact, after the term, during which the law had authorized the infliction of it, has been at an end. Of all such oppressions, the guilt will be found to belong indisputably, and I hope exclusively, to men in power here at home: indisputably, because the exercise of such oppressions was of the essence of the system: necessary to the production of the effect, on which alone so much as a pretence to the praise of utility could ever have been grounded: exclusively, because the views promoted by such oppressions were the views of the contrivers and arch-upholders of the system, and of them alone, not of those local agents to whom the execution of it was committed; and because it was not natural, that, among professional men, whose profession is naturally understood to exempt them from the investigation of legal niceties, so much as a suspicion should have arisen, that in a system put into their hands by their official superiors, and those composing the supreme executive authority of the state, anything should be wanting to render it conformable either to the spirit or the letter of the law; especially after the application, which on that very occasion had been made to the legislature itself for powers, and powers obtained in consequence.

Once more, it is not in the injury to individuals that we are to look for the main object of the present pages: nor yet in the so much more extensive mischief accruing to the whole body of the community, from the repugnancy of the system to every one of the ends of penal justice. These are the topics already handled at least, if not exhausted, elsewhere.* The grievance, by which alone the present representation was called forth, is of a still higher order. It consists of the wound inflicted on the whole body of the people, in what used to be felt to be the tenderest part—a wound in the vitals of that constitution, which, to our forefathers at least, was an object of such fond attachment, a subject of such unremitting jealousy. Over British subjects, the agents of the crown have exercised legislative power without authority from parliament: they have legislated, not in this or that case only, but in all cases: they have exercised an authority as completely autocratical as was ever exercised in Russia: they have maintained a tyranny—not the once-famed argumentative tyranny of forty days, but a too real tyranny of fourteen years:—they have exercised it, not only over this or that degraded class alone, whose ignominy may seem to have separated their lot from the common lot of their fellow-subjects, but over multitudes as free from blemish as themselves: they have exercised it for the purpose of exercising the most glaring of oppressions: for the purpose of inflicting punishment without cause upon those on whom the whole fund of just and legal punishment had already been exhausted.

The conclusions to which the investigation tends being thus announced, the proof will constitute the principal matter of the ensuing pages.

SECTION II.

POWER OF LEGISLATION—ITS NECESSITY IN NEW SOUTH WALES.

The power of making regulations considered as reposed in any other hands than those of the supreme authority of a state, is neither more nor less than legislative power, though derived from a superior power of the same kind, and acting under the controul of it.

A general right of legislation is one of those branches of power, the existence of which may be stated, without much fear of contradiction, as necessary in every political community whatsoever, old established or new established: necessary—if, for short spaces of time, not absolutely to the very being of the state, yet at all times to the well-being of it.

In this country, during the infant and ricketty period of the constitution, the want of so important an article in the list of the powers of government was but too notoriously, as well as frequently and severely felt, in the intervals between parliament and parliament.

In a colony—in a new formed community—much more in the colony in question, at the time in question—a colony not yet formed, but to be formed—the existence of such a power may be pronounced altogether necessary to the very existence of the infant establishment.

The creation of such powers is a security that surely was never before omitted in the case of any thing that was ever called a colony: never, even in the case of a colony established on the natural and ordinary footing, by a population composed principally or exclusively of free settlers, impelled thither by the principle of social industry. How much more urgent the demand for it in the case of a population composed as in New South Wales! composed almost exclusively of such disturbed, discordant, dissocial elements!

It is a security never yet omitted in colonies the least remote, in local situation, from the mother country. How much more indispensable in a population to be transported from Britain to the very furthest point of the globe, at a distance more than twice as great as that of the eastern dependencies, and more than four times as great as that of the western!*

In the act of founding a colony, as distinguished from an originally independent state, two parties are necessarily concerned:—the destined inhabitants of the new territory, and the legal founders of it, their accustomed rulers, from whom they derive permission to quit their mother country, and assistance towards establishing themselves in this new one. But, on the part of the founders, as thus distinguished, unless it be the accidental contribution of pecuniary assistance, what was ever understood to be done by the founding of a colony, but the conferring, on persons of certain descriptions, settled or about to settle in the territory of the colony, the necessary assortment of the powers of government? an assortment of which the power of legislation has never been suspected, I believe, of being anything less than a necessary ingredient.

From one source or another—from within or from without—from intrinsic authority or from extrinsic—who ever heard of the foundation of a state, dependent or independent, without a power in it to make laws? No, surely: Lucina sine concubitu is not a more palpable absurdity, than the idea of founding a colony without providing any legislative powers for it.

Supposing the whole mass of law existing in the mother country to be transplanted in one lot into the colony, judicial power might, in this case, be of itself admitted to be sufficient: admitting always (what never can be admitted) that no need will ever occur for the imposition of fresh obligations. But even in the oldest established communities, that need is occurring every day; and surely the more novel the situation, the more urgent and frequent must be the demand for fresh obligations. I say obligations: for it is by such instruments, and such alone, that any provision can be made for the unforeseeable and infinitely diversifiable train of exigencies, of which such a situation could not but, in point of reason, be expected to be productive.

One omission it is time I should confess, in the observation of which the reader may not improbably have been beforehand with me. In speaking of the existence of such a power as necessary, I ought to have added, or the belief of its existence. To many an eye the distinction might appear an useless refinement; for without a really existing power of legislation, how in the nature of things, it may be asked, can the belief of it be produced? or, if it could be, who would set about producing it, and to what end or use?—questions pertinent enough these, but not unanswerable. The reader will soon judge.

The expedition was fitted out. It left the seat and source of regular government.* A governor went out with it: and with him went not out the smallest particle of legislative power, derived from the only source of legislative power—from the source, from whence other and inferior powers (judicial I mean) that at the same time were sent with him, had been derived—in a word, from parliament.

An act, brought in by administration, had been obtained of parliament to serve as a sanction for the measure: “An act to enable his Majesty to establish a court of criminal judicature on the eastern coast of New South Wales, and the parts adjacent.”† Such is the title of the act:—no such power as that of legislation is in the title; no such power is in the act. What powers, then, are there in the act? Powers for creating courts of judicature, and no other. This was the professed business of the act: this the only business: the very title says as much. Powers are given by it—to do what? to create any new rights? to impose any new obligations? No such thing. Nothing but to punish “outrages and misbehaviours.”‡ And what outrages and misbehaviours? “Such” (and such alone) “as if committed in this realm would be . . . treason or misprision thereof, felony or misdemeanour.”—“Whereas,” says the preamble, “it may be found necessary that a colony and civil government should be established in the place.” “To establish a civil government—that a civil government should be established”∥ —at least, established somehow and by somebody—was the professed object of the act. “A civil government to be established,” and no power of making general regulations—no power of making laws—no, not in any case whatever—is comprised in it! If, without parliament, power could be found for legislating in all other cases, and for all other purposes, why not for the establishment of this, or any other court of justice?

Under this provision of the law, an ordinance, suppose of the prohibitive class, is issued by the governor in New South Wales. In the words above quoted, we have a standard for the validity of such ordinance. The act prohibited by it, is it of the number of those acts which would be “outrages” or “misbehaviours” if committed “in this realm?”§ If not, then is the ordinance by which it thus stands prohibited, illegal and void: void beyond dispute, unless the power of making laws binding “in this realm” belongs to the governor of New South Wales, or some other person or persons legislating in New South Wales.

SECTION III

LEGISLATION—HOW FAR LAWFUL IN NEW SOUTH WALES.

All this while, from the time of the first landing of the first expedition to the time at which the historiographer of the colony took his leave of it, that is, from January 1788 to September 1796, ordinances were issued by the governor, and, as it should seem, by his sole authority. Instructions were also from time to time received by him from his superiors here at home, and ordinances issued in consequence of, and therefore (it may be presumed) in conformity to, these instructions. And these ordinances are not, like the king’s proclamations in Great Britain, mere acts of monition, or other acts, grounded on pre-existing acts of the legislature, but original acts of legislation, forbidding, and thereby converting into “misbehaviours,” a variety of acts, such as, if performed “in this realm,” whether in England or in Scotland, would not have been “misbehaviours,” would not have belonged to the class of “misdemeanours,” or to any of those higher classes of delinquency (treason, misprision thereof, or felony,”) specified as such in the act.

This assumption of power, how shall it be accounted for? On the part of the governor, there can be little difficulty. Whatsoever were given to him for law, by his superiors at the Council Board, or the Secretary of State’s office, would naturally enough, one may almost say unavoidably, be taken by this sea captain for law. By this sea captain: for such has been the profession and rank of every gentleman who has ever as yet been invested with this important office.

On the part of these authorities at home, some imagination or other must necessarily have been entertained about the right—either that a right to confer on the governor this power was actually existing in the authority thus assuming and exercising the power; or at least that of the existence of such right a belief would be entertained by the several parties interested—a belief which, though it were ill-grounded and erroneous, would, so long as it continued to be entertained by all parties, have the same effect as if well-grounded and correct.

On the first supposition, they went to work bona fide, believing that to be legal which was determined to be done. In the other case, conscious of the illegality of the course they were pursuing, they determined to persevere in it notwithstanding; perpetual fraud trusting for its success to perpetual and universal ignorance.

Of two such opposite conceptions, which, then, is it that, on the face of it, carries the strongest probability of having been entertained?

The first hardly, for what is there that can be found to countenance it? Legislative power exercised by an officer of the crown, for such a course of years, without authority from parliament! On what possible ground could any conception of the legality of such a system be seriously entertained?

I will make the best case for it in my power: I will ransack imagination for possible grounds.

That the supposition was, in the whole extent of it, without foundation, would indeed be evidently untrue. That there was and is a considerable stock of lawful power in the colony to work with, is palpable enough. That that power was of a nature to serve as a succedaneum, so far as it went, to a regular and expressly-constituted legislative power, must also be admitted: manifest enough, I accordingly admit, it is, that a power of legislating over certain persons, and in certain cases, was virtually among the contents of it. But, in addition to all such persons and cases, legislation (so the fact is) has been exercised there (as indeed it required to be exercised there) over abundance of other persons, and in abundance of other cases.

To show this, I will in the first place exhibit a short survey of the stock of the colony, live and dead, persons and things, thrown into classes with this view. It will then be easy enough, and with a degree of accuracy sufficient for the purpose, to go over them, and say of each, this stands subjected, or this does not stand subjected, to the powers of all-embracing legislation, that have been exercised in New South Wales, by the sole authority of the king’s governor of New South Wales.

In the course of a period of nine years and a half, comprised in the history given of the colony by its chief magistrate, the inhabitants, considered in respect of their subjection to any ordinances of the governor (or of any other person or persons pretending to the exercise of legislative authority there) may be distinguished into the classes following:—

• 1.Officers and privates, in the land branch of the king’s military service, subject to orders, as such, under the mutiny act.
• 2. Officers and privates in the naval branch of the king’s military service, subject to orders, as such, under the articles of war.
• 3. Persons in the king’s service in a civil capacity: as such, not subject either to the articles of war or the mutiny act: such as chaplains, surgeons, superintendents, &c.
• 4. Commanders and crews of British vessels in private service.
• 5. Commanders and crews of foreign vessels.
• 6. Convicts still in a state of legal bondage: the terms of punishment specified in their respective sentences being as yet unexpired. For distinction’s sake, they may be called convicts non-emancipated de jure, or, still more shortly, non-expirees. The reason of this distinction, and the nomenclature founded on it, will appear immediately.
• 7.Wives, children, and other relatives, if any, of non-expirees.
• 8.Expirees. Convicts emancipated de jure: de jure, in contradistinction to de facto. The distinction is altogether a necessary one: for, in point of fact, one of the characteristic features of the establishment, and crimes of its foundation, was—that those who by law ought without exception to have been free, were, and were to be, in a multitude of instances, retained in bondage.
• 9. Wives and children, and other relatives, of expirees.
• 10.Unblemished settlers: that is, all settlers not belonging to classes 6, 7, or 8, or any of the preceding classes. In this instance, and for this purpose, the term free settlers (the term employed elsewhere) would not serve: since, if law had been the standard, classes 7, 8, and 9 would have been as free as these.

1, 2. With reference to the two first of these ten classes (Army and Navy,) the right of legislation may pass without dispute. Conditions might be stated as requisite—limitations might be suggested—but the discussion would be superfluous. For the purpose of the argument, I suppose and admit proper measures to have been taken, and by the proper authority, to subject all persons of these two descriptions to the authority of the governor in that behalf.

3. Over persons of the third class (servants of the crown in civil capacities,) supposing power to be given to the governor to dismiss them from their respective situations, this power operates of course as a means of influence, tending to produce a disposition towards a general submission to his will, howsoever signified. Setting aside this means of influence, their condition is noways different from that of class 10th, unblemished settlers.

4. With reference to commanders and crews of British vessels, the right might also be admitted, for the purpose of the argument:—though, in this instance, it appears liable to particular objections, which will be mentioned presently.

5. With respect to the commanders and crews of foreign vessels, the right shall, for the same purpose, pass unquestioned.

6. With respect to non-expirees (convicts still in a state of legal bondage,) their legal subjection to the governor, and consequently to all such orders as a master in England has it in his power to issue to an indented servant, may be pronounced unimpeachable: I mean, supposing the course directed in that behalf by the act to have been pursued;* and supposing the civil branches of the law of England, or of Scotland, or of both together, or of Great Britain, to have grown up in New South Wales, like so many weeds, without having been ever planted there: of which more will be said presently. That the spirit of the old transportation system, which it is the professed object of the act to continue, cannot have been conformed to, I have already had occasion to explain in another place.† But, if the words of the act have been pursued, in the manner that will also be stated, I see nothing to hinder the power of the governor from having been rendered unimpeachable in relation to this class: always assuming the fulfilment of the unfulfillable conditions just mentioned.

7. 8. 9. 10. Over expiree convicts, their wives, children, and other dependent relatives—over the wives, children, and other dependent relatives, even of convicts themselves in a state of legal bondage—over unblemished settlers—the governor neither had, nor could have had, nor without fresh authority from parliament can ever have, any more power (I speak always of legal power) than I have.

Over any stores entrusted to his care, the governor, in his quality of agent to his Majesty, the legal proprietor of those stores, will have had the same legal power as any other proprietor anywhere. These stores being in a large proportion among the necessaries of life, from the proprietorship of these means of subsistence, must of course result a proportionable degree of influence.

But influence—natural influence—is one thing: legal power is another. To the production of an effect by influence, consent is necessary: special consent precedently given to each act, by the production of which the influence has fulfilled its purpose: to the production of the same effect by power, no such consent is necessary. Were the governor to say to this or to that man, being a man not in bondage to him—“Do such or such a piece of work, or you shall have no bread served out to you to-day—an order thus sanctioned may be admitted to be legal, though without any previous authority given by parliament for the issuing of it. But if, addressing himself to the same man, and speaking of the same piece of work, the governor were in like manner to say (as he has so often done)—“Do this, or you shall be whipped”—here would be an ordinance illegal and void.

The same thing may be said of any general ordinance addressed to all persons without distinction, with or without any special sanction annexed to it, and whatever may have been the utility or even necessity of it: so far as the persons bound, or otherwise affected by it in point of interest, are persons subjected by any special legal commission, to orders from the governor, so far, and as to those persons, it is good and legal. Beyond this, and as to all other persons, the same ordinance is illegal and void. As for example: orders that no persons shall, for such a time, go beyond such and such bounds:‡ orders that no man shall build, or begin to build, a vessel of a size beyond such and such dimensions.§

I take for granted (always for the purpose of the argument,) that whatever power of legislation could be given by the crown, to anybody, to be exercised in this colony, has all along been given by the crown to the several successive governors. All this notwithstanding—all this being admitted—what I maintain is, that, no such authority having been given to the crown, in the only act in question,* by the legislature, it was no more in the power of the crown to confer any such power of legislation (except the limited, and not so denominated, but only virtual powers of legislation above excepted) on the governor, or any other person or persons, than in mine.

SECTION IV.

AMERICAN, &c. LEGISLATION NO PRECEDENT FOR NEW SOUTH WALES.

The nature of the case not furnishing any just grounds for the assumption of any such legislative power as has actually been exercised, I come now—(still acting under the difficulty already recognised)—I come now to fish out imaginary and possibly pretended grounds, at a venture.

True it is accordingly, certainly in general, and for aught I know, without exception—and as such I shall admit it—that among all the charters in which the governments in the several existing English, British, or quondam British colonies in America (West Indies included,) have respectively had their rise, there is not one, for the granting of which any powers, previously or subsequently to the concession of it, had been obtained from parliament.

Still more clearly true it is, that even in the instance of Georgia (the last colony established before the revolt, established at so late a period as in the sixth year of the reign of the late King,) when an act of parliament was passed, having for the object of one of its clauses† (as declared in what may be called a clause in its longwinded title,) the “enabling his Majesty . . . . to pay . . . . ten thousand pounds to the trustees for establishing the colony of Georgia,” no powers are given to the crown, any more than in any preceding or subsequent act, for the purpose of legalizing such powers, as the crown must then recently have been creating for the government of that colony.

But, since that period, and before that of the passing of the act for the foundation of the colony of New South Wales,‡ this practice of organizing governments for British dependencies, in territories out of Great Britain, by the sole power of the crown, may, I think, be said to have been relinquished, and virtually acknowledged to be indefensible. I mean, by the precedent, set by the act commonly called the “Quebec Act,”∥ in which, whatever was done in the way of establishing subordinate powers of legislation, was in that case, as well as in the case of judicature, done either by parliament itself, or by authority therein given to the crown by Parliament.

Even in the same reign which thus gave birth to the latest instance of unparliamentary colonization, and not more than seven years after that instance, the legality of the practice appears to have been regarded as matter of doubt, at least by parliament itself.§ At this time, among the American colonies, there were many, that under the powers of legislation granted to them from the crown, had passed acts of their own, restricting personal liberty (as in New South Wales)—restricting the right of departure out of the precincts of their respective territories. Acts made (says the preamble of the British act) “for the preventing the carrying off, from the said colonies or plantations, any servant or slave without the consent of the owner, or the carrying off from thence any other person or persons whatsoever, until such persons shall have taken out his ticket from the secretary’s office within such respective colony or plantation, in such manner, and under such penalties and forfeitures, as in and by the said several laws is declared and provided.” But even at this time, so little satisfied was parliament of the legality of the restraints thus imposed—in other words, of the legality of the powers under which they were imposed—so far at least as among the persons thus legislated upon were included, viz. “commanders of private ships of war, or merchant ships having letters of marque,”—that in the act, and by the clause, from the preamble of which the passage above quoted is copied, provision is made for the declared purpose of giving legality to those same laws: “Be it enacted,” says the statute, “that all commanders (as above) shall, upon their going into any of those ports or harbours, be subject and they are hereby determined to be subject, to the several directions, provisions, penalties, and forfeitures, in and by such laws made and provided, anything in this act to the contrary notwithstanding.”¶

Among the powers actually exercised in New South Wales, with or without instructions from hence, conformably or unconformably to such instructions, is that of prohibiting or “preventing” masters of private vessels from “carrying off persons” from the colony, without special permission from the governor, particularizing each person permitted in each instance. Upon the exercise of these powers depends the whole system of government in this penal colony: every use which anybody could ever fancy it good for, or capable of being made good for. Even in America, and so early as the year 1740, the legality of these powers was looked upon as being so questionable at least (to say no more), as to require for the confirmation of it the authority of Parliament. In America, these powers were thus confirmed, and were therefore legal: but in New South Wales they have not been thus confirmed; for America is the only place mentioned in the act—American laws the only “laws.” New South Wales has nothing in it that ever was a law, or so much as called a law, and America (God be thanked) has no such colony in it as New South Wales.

SECTION V.

EVEN IN AMERICA, THE CROWN HAD NO RIGHT TO LEGISLATE WITHOUT PARLIAMENT.

Relinquished, as it has been, no otherwise than tacitly, if at all (for the point is not worth arguing,) if the power had been declared illegal, and abolished by express words, it would not have been so disposed of without very sufficient grounds. That over English subjects in England, or anywhere else, the king should, by himself or by others, exercise legislative power, without the concurrence of parliament, was repugnant to the constitution, was repugnant to Magna Charta.

True it is, for aught I know, that till the reign of George the Second, till the year 1740 at least, as above, it never had been disputed or doubted of: and the train of precedents by which it has been exercised, commences with what appears as the first charter given to the first colony, in the reign of James the First,* in 1606, or thereabouts.

But, in the days in which the practice thus originated, the exclusive right of parliament to legislative power was far from being defined as now. Even within the territory of England—on this, and that, and other ground—the king by his proclamations would be legislating without parliament, and even in spite of parliament. Whatever parliament would endure to see him do, this and more he was sure to do without parliament. By monopolies, by ship-money, by dispensations of penal statutes, on one pretence or another, he was even levying money without parliament. The very existence of parliament was a matter of perpetual contingency. At all times it depended upon the king’s pleasure whether there should ever be another. And so long as he could contrive to go on with existing powers, and upon existing funds, he had everything to lose and nothing to gain, by calling to his aid any such troublesome assistance.

Even in Lord Cohe’s time, had this mode of legislating without parliament been questioned in the King’s Bench, it would not have stood its ground: at least if Lord Coke had at that time been in disgrace, and the decision had depended on Lord Coke.

“King Edward the Sixth did incorporate” (says he† ) “the town of St. Alban’s, and granted to make ordinances, &c. They made an ordinance upon pain of imprisonment, and it was judged to be against this statute of Magna Charta. So it is if such an ordinance had been contained in the patent itself.” Thus far Lord Coke. The train of reasoning is evident. It was by the glaring illegality in the case last mentioned (which is the feigned case,) that light was thrown on the covert illegality in the former case, which was the real case. It was a case actually decided, decided in the Common Pleas, and reported by Lord Coke himself.* The decision was given in the 38th year of Elizabeth, and even Elizabeth submitted to it.†

Had the first charter that was ever granted for the foundation of an English colony (say the charter, granted in 1606, for the colonization of the tract of land then comprised under the denomination of Virginia by James the First,)‡ —had this first charter been questioned as illegal—as contrary to the decision in the St. Alban’s case, in vain would it have been to have said,—“This case is different: that applies to Englishmen wishing to legislate in England: this applies to Englishmen wishing to legislate in a distant, and as yet unplanted region.” To warrant any such distinction, there was neither principle nor precedent. Not principle: because, as to hardship, if Englishmen are to be legislated upon otherwise than by parliament, how was the hardship lessened by their being in the then wilderness of America? in a quarter of the globe, so far out of the reach of the protecting hand of parliament? Not precedent: for, of an attempt to subject them to legislation in this mode, the instance in question is, by the very supposition, the first instance.

The right of thus granting away the powers of parliament passed (it is true) unquestioned. Why? because nobody ever started up, to whom it had happened to conceive himself as being concerned in interest to question it. For, if a man went from England to live there, it was because he found it more agreeable to him to live there under those laws, than to live in England under English laws: and if at any time a man preferred English laws, England was at all times open to receive him. Whatever was the cause, such at least was the effect: the right remained unquestioned; and, remaining unquestioned, usurpation had time to clothe itself in the garb of law.

Admitting, that on any one mass of territory, having English owners, and not being, or having passed, under the dominion of any foreign power, the concurrence of the three estates is necessary to legislation, no reason can be given why, on any principle either of utility or analogy, it should be less necessary on any other spot so circumstanced. By remoteness from the natal soil—from the seat of connexion and protection—the hardship of whatever is looked upon as tyranny is not lessened but enhanced. The sense of liberty (of what is meant by liberty in one of its thousand senses) has not been found to evaporate by expatriation in English men, as the sense of smell has been said to do in English dogs. Of Englishmen surely it may be said, if of any men, Cælum, non animum mutant, qui trans mare currunt.

For whom, or what, was it that the protection afforded by Magna Charta was intended? For the inhabitants of the land, or for the soil only?—for the flesh and blood, or only for the stocks and stones?

A lawyer, who should attempt to get rid of the application, of the case of the charter given to certain inhabitants of St. Alban’s, to the case of a charter granted to certain inhabitants of other places in England, must answer boldly—“Only for the stocks and stones. Englishmen, the moment they get out of sight of the stocks and stones of England, for whom alone Magna Charta was designed, are neither worth protecting nor worth governing.” But, unless it be on a spot, which being under foreign owners, affords a protection and a governance of its own, in what book will he find a colour for saying, that Englishmen, by being out of sight of English ground, are either out of the protection or out of the governance of an English parliament? Limited as the power of an English king is over Englishmen in England, in what book will he find that it is absolute over them everywhere else?

Will the portion of consent, of popular consent, given in the first instance to these charters, or the consent given in succeeding times to the laws made in America, in the several colonies, in consequence of these charters—will any such sanction be urged in proof of the original validity of a purely royal act, thus attempting to legislate over Englishmen without parliament?

Alas! what a cloud of illusions is involved in that little word consent, employed, as it is but too common for it to be employed! But, without plunging into any such discussions, it is sufficient to say here, that no such unparliamentary consent had any weight in the St. Alban’s case. There never could have been applied, to the law of any American assembly of succeeding times, the actual consent of so great a proportion of individuals to be governed by it, as there probably was in the St. Alban’s case. But this did not hinder the attempt made in that case (the attempt on the part of the king, in conjunction with a portion of the inhabitants of that one town, to legislate, on pain of imprisonment, over the rest) from being disallowed: disallowed on the ground of its being an invasion of the rights of parliament.

What is the consent required by the constitution to give validity to a law? The consent—not of a part surely, but of the whole. It is not the consent of that part of the king’s subjects for whose exclusive advantage the law is made, that is sufficient to give validity to a law, by which others, not sharing in the benefit, are attempted to be bound: if it were, there would never be any want of consent to the worst law. Neither then, nor since, has the consent necessary to give validity to any English law, been either more or less than the consent of the two sets of trustees for the whole body of the king’s subjects—the two other estates of Parliament.

The question is, whether the king, with the assent of a few persons named by himself, had it in his power to repeal, pro tanto, the statute called Magna Charta? The answer is given by the judges in the St. Alban’s case: “L’assent ne poet alter la ley in tiel case.” If this be not the very best of French, better English at least cannot be desired.

To supply what is thus in contemplation of law wanting in point of consent, will any such topic as that of abstract utility be resorted to? Will it be urged, in the view of giving validity to the illegal mass of pretended law, that the benefit of all parties followed from it? This benefit, admitting it in its full extent, this benefit, destined to be reaped in after ages, will it give retro-active validity to an act void from the very first instant? If so, at what point of time was it that, on a sudden, and without any efficient cause, an illegal act was thus converted into a legal one?

Legality, it must be remembered, not expediency, not abstract utility, is the question here: to confound the two ideas would be to tear all law up by the roots. Admitted in the fullest extent, the alleged expediency would prove no more than this, viz. that, had James the First obtained, by a law of parliament, authority for the foundation of his first colony—authority for the powers conveyed by the charters, in virtue of which this colony was founded—had the king so done—a law to that effect, if passed, would have been a good law: and so in regard to the several other real colonies, real charters, and correspondent ideal laws. But, the expediency of all these ideal laws, does it prove them real ones? does it prove that any such acts of parliament were actually passed?

When a practice is repugnant to acknowledged principles, the case of general warrants is sufficient to show how little force there is in mere official precedents, however numerous the train of them, and however ancient the commencement of it. For the purpose of that case, a list of general warrants (a list of the cases in which authorities of that description had been issued by the servants of the crown) was published at the time.* It begins with the Restoration; not surely because there were none of any earlier date (for such there must have been in numbers,) but because it was not conceived that authorities of that kind, issued at any less constitutional period, could possess any tolerable chance of being looked upon as good precedents.

Prior to the issuing of the first general warrant, there was no direct judicial decision against general warrants, as there was against legislative power exercised by the crown without parliament, in the case just mentioned: yet general warrants, spite of the number of precedents and length of the practice, could not stand their ground. Against general warrants there was nothing but principle. Against colonization charters there is the principle, and a direct judgment grounded on it. And who is there that will deny that, in the scale of common law, a thousand unjudicial official precedents are not equal to one judicial one?

SECTION VI.

NULLITY OF LEGISLATION IN NEW SOUTH WALES, FOR WANT OF AN ASSEMBLY TO CONSENT.

All this, however, is but skirmishing—matter of illustration, not of necessary argument. For, though the right of the crown to found colonies (as the American colonies were founded) without parliament, were ever so well established, a claim in that quarter to exercise or create legislative powers, to be exercised over Englishmen, Scotchmen, or Irishmen, in New South Wales—in this colony sui generis—in this so denominated, but perfectly nondescript, and newly discovered species of colony—would not be the less unfounded.

In all the several charters by which legislative power, whether per se or per alios, was exercised by the king, there were two common features, and those most indispensable ones:—1. Consent on the part of the colonists as to their subjection to such powers—irrevocability of the privileges granted by such charters—irrevocability of the king’s act, whereby such powers were created, or the right of creating them conferred.

The irrevocability, though a feature perfectly distinct from the consent, was a natural, and one may almost say, a necessary consequence of it; or rather preliminary to it. For what man of common prudence would have gone to embark his property and his prospects, under a form of government, in which, so long indeed as it remained unchanged, he looked upon them as safe, but at the same time without any security against its being changed at any time—changed into some unknown arbitrary form, under which every thing would go to wreck—changed without his being heard, and at the suggestion of some court favourite, whose object would be of course to extract plunder from the change?—Not general satire—particular history is here in view: Elizabeth and James, with their favourites and their monopolies.

The irrevocability of the sanction given by the crown was therefore of the very essence of the case. This attribute of it was recognized all along by the judicial power. Even in the most arbitrary times, the crown itself never pretended that its own charters of this kind were revocable at its own pleasure. The utmost of its pretensions was—that for certain causes, these powers of subordinate government were susceptible of being forfeited: it belonged to the judicial authority in that behalf (the Court of King’s Bench) to pronounce—to pronounce judicially in each case—upon the existence of any such cause of forfeiture. And in the annals of that court, and of the colonies, are contained divers instances of prosecutions instituted on that ground, against colonial governments, and of resignations made of charters, under the apprehension of such prosecutions.*

As to consent (by which I do not mean a presumptive, constructive, fictitious, pretended, general consent, but actual, direct, individual, consent;) immaterial as the circumstance is in this view, under a government already formed, in a territory into the precincts of which a man has been introduced either by birth or voluntary self-conveyance—nugatory as any argument grounded upon it would be in the ordinary state of things—yet in a new formed, or forming government—in a new planted, or about to be planted, colony—every thing depends upon it: utility, and therefore that law, which so far, and so far only as it has utility for its basis, is any thing better than oppression and abuse, depends upon it altogether. To a man’s being born in a country, his consent cannot be taken—but to his being conveyed to it, his consent can be taken; and, on its being taken or not, depends a Pandora’s box of miseries and injuries.

In New South Wales, not only was this most indispensable of all requisites to the foundation of a colony—to the establishment of legislative power in a colony, wanting—notoriously wanting—on the part of the great mass of the intended population; but the getting rid of so troublesome a condition—the weeding it and eradicating it out of the about-to-be-new-planted colony, was the very object—the professed object—the sole professed object—of the foundation of this vast receptacle of penal suffering. If, in point of fact, it should ever acquire a title to the name of a “colony”—(the name bestowed upon it in the tenor of the law made for the foundation of it,)† it could only be in so far as the persons sent thither against their wills, and having a legal right of departing from thence at the expiration of certain terms, should, by irresistible power, in defiance of that right, be kept there each to his life’s end.

In common intendment—in common, and not merely in vulgar, but in deliberate and well-considered language—permanence of inhabitancy is acknowledged to be of the very essence of colonization. Accordingly, in the disputes that of late have arisen on the affairs of the East Indies, the language on one side is, “To do thus or thus would be colonization:—as you tender your existence, forbear to colonize.”

Force under the law, was to plant men there; force against law, was to keep them there: and when, under the law, they were planted, it was for this very and only end and purpose—that against law they might be kept.

Nolentesper populos dat jura should be the royal motto, in this as purely royal, as it is daringly anti-parliamentary, colony of New South Wales.

So much as to the first mentioned condition, consent—consent to habitancy and subjection. But this condition, a condition so inseparable to the foundation of every colony that is any thing better than a bastile, being so essentially wanting to the foundation of this colony, it seems almost superfluous to extend the observation to the other kindred condition—irrevocability of privilege. That which was never granted, cannot easily be revoked. So far the inhabitants—the chosen inhabitants of New South Wales—are secure enough. What was never possessed, cannot be forfeited.

If common sense be not of itself convincing enough, e’en let us translate it into common law. In their day, the American Constitutions were legal ones: be it so. But they were by charter: here there is none. No charter either has ever yet been granted—or is in a way very soon to be applied for by the inhabitants, or any inhabitants of New South Wales. Yet has the colony been “founded” I suppose:—founded as Mr. Pitt and Mr. Rose found colonies.—No charter, no colony. In that one technical expression, are condensed the two substantial and rational grounds of nullity: no consent to subjection—no irrevocability of privilege.

All this while a sort of a colony there is—I am perfectly aware of it—that is, or has been supposed to be, capable of existing without charters, and in which the advisers of the crown have accordingly been used to find themselves pretty much at their ease. I mention it, to save gentlemen the trouble of catching at the shadow of an argument. It is the sort of colony that has been obtained by conquest; having surrendered, with or without capitulation; having or not having, at the treaty which confirmed the cession of it, a stipulation made in favour of it; having or not having, antecedently to its surrender, a constitution of its own. All or any of these varieties, might upon occasion afford considerable amusement to any learned gentleman, who, along with his brief, should have acquired a taste for the natural history of the law of colonies. But, as to any practical use for them, happily in the case of New South Wales there is none. To the host of follies included in the circumstance of distant possession, this colony at least, with all its peculiarities and all its faults, has not added that vulgar and crowning folly of distant conquest. It is needless to enquire, what on this occasion might have been the virtue of a string of wampum: no wampum, nor any substitute for wampum, has either been received or given in New South Wales. When, from their immense continental island, Benillong and Yem-mer-ra-wannie* did us the honour to bestow a glance upon this our little one, it was in the character of private gentlemen, travelling for their amusement, or at least for our’s: they signed no treaty with his Majesty, nor brought with them any diplomatic powers.

The flaw is an incurable one: if it were not, it would be none. No charter ever could, can now, or ever can be granted. It is not a case for charters: all the wax—all the parchment in the king’s stationary office—all the law on all his woolsacks—would not make one. A charter, make it of what or how you will, must have somebody to accept it. But a charter—a thing to keep men in New South Wales—Who is there, or who ever can there be, to accept it in New South Wales? A charter to empower a free man to lead a life of slavery, and to be flogged as often as he endeavours to escape from it!†

Instructions and counter instructions—insinuations and counter insinuations—instructions in form and instructions not in form;—despotism acting there by instructions, and without instructions, and against instructions;—all these things there may be, and will be, in abundance. But of charters—unless such instructions be called charters;—of constitutions—that anybody that can help it will be governed by;—of any lawful warrants, unless from Parliament;—from the present day to the day of judgment there will be none.

No, most assuredly; no parchment, no wax, no cement is there whatever, that can patch the no-constitution of it together for a moment longer, or prevent the improved colony from being converted, any day in the year, into a still worse chaos than it is. No plaster of any kind can be laid on upon this universal sore, by any other than the all-healing hand of Parliament.

If this view of the law be not just, and if the penners of the New South Wales act were not themselves sensible of its being so, wherefore apply to parliament for powers, for the organization of a judicial establishment in that colony? Judicial power is in its nature inferior, subordinate to legislative. If the crown had an original right to create the superior power, how can it have been without the right of creating the subordinate? If, by the American charters, the king creates legislative powers, by the same charters he creates powers of judicature; or what comes to the same thing, confers authority for the creation of such powers.

This argument, it must be acknowledged, supposes something like consistency on the part of the penners of the act; and of consistency what traces in it are to be found?

SECTION VII.

NULLITY OF GOVERNOR’S ORDINANCES. FOR WANT OF A COURT TO TRY OFFENCES AGAINST THEM.

One imagination more, for a last effort. With or without a declaration to that effect by the king’s governor, the laws of England, (let it be said,) such as they exist at present, and such of them as are applicable to the state of things in the new colony, transport themselves in one great mass into New South Wales. After them, transport themselves, as they came out, all subsequently manufactured masses of law, common as well as statute, such of them as are so applicable, and in as far as they are so applicable, each in an air balloon of its own making, without any body to send them out, or make it possible for them to be known when they are arrived. Moreover, along with the first great mass, transports itself in like manner the right of establishing courts of justice for the trial of all offences against all such masses of English-made law, present and future, as they come in; under the single condition, that the mode of procedure in such courts, in each sort of case, shall not be different from the mode of procedure in the same sort of case pursued in England. Why these conditions?—for this reason. The circumstance that rendered the authority of parliament necessary for the legalization of the sort of court which it has actually been employed in legalizing, is—that that court not calling in the assistance of a jury, though the cases are jury cases, the mode of proceeding under it is not according to the law of England. Being, therefore, the sort of court which the king’s agent with all his powers had not quite power enough to make, thence came the necessity of sending it out, ready-made by the king, in pursuance of powers obtained from Parliament for the making it.

Unfounded this, a great part of it at least, in principle or in fact. But even if all the dreams in it were truths, the government of New South Wales would not, in point of legality, be one jot the better for them. These courts, made after the English pattern, serve for the trial of offences against English-made laws:—allowed; but the offences, for the trial of which proper courts are wanted, are not offences against English-made laws. By what courts, then, in New South Wales are these non-English offences to be tried? Not by these supposed New South Wales made courts, since, by the supposition, it is only for the trial of English-made offences that they can be made to serve. Not by the grand court, the establishment of which was the sole business of the statute: for it is to the trial of English-made offences that that court, by the express words of the statute, stands confined:—the court, when “convened,” is to be “for the trial and punishment of all such outrages and misbehaviours, as, if committed within this realm, would be deemed and taken, according to the laws of this realm, to be treason or misprision thereof, felony or misdemeanour;”—not all “outrages and misbehaviours” without exception, but such alone as would be “misdemeanours” and so forth, “if committed within this realm.”

The governor (suppose) issues an ordinance (such as, it will be seen, he has issued in abundance,) prohibiting an act, which would not have been either “misdemeanour” or “misbehaviour,” “if committed within this realm.”* Admit then, that it is really in the power of the crown to communicate to the governor, in his individual capacity (the power he has so often exercised,) the complete power of legislation. Power of legislation alone being thus communicated to him, power of judicature (except in the case of acts that would be offences “if committed in this realm,”) not being given to him or anybody, what would he be the better for it? He has power to create the offence, but neither he nor anybody else has any power to punish or try the offender for it, when committed. The governor, by his proclamations, has power to enact new laws. Be it so. But has he likewise powers to create Star Chambers—to punish such as shall fail of obeying those proclamations? Where is the court to try any such offence? The court created under the statute? By the statute itself it stands precluded (as hath just been seen) from meddling with them. A court of King’s Bench, or any other court to be erected by the governor under his instructions?—those instructions which are to be to this colony, what charters have been to all other colonies? Nor that neither. Power or no power—instructions or no instructions—thus much seems clear enough—that, down to the time of Mr. Collins’s quitting the colony in September 1796, no such court (no court other than what has been called there a civil court, in addition to the court for the erection of which special power is given by the statutes) had ever in fact been holden. A court to be composed of the governor alone, for the trying of offences created by the governor alone? If so, here then we have the very quintessence of despotism; too rank, one should have thought, even for the meridian of New South Wales. It is Star-chamber out Star-chamberized: legislature and judicature confounded and lodged together, both in one and the same hand.

Is it true, then, that even such a court—a court thus arbitrary—might have been created, and that without any powers from Parliament? If so, then (as far at least as “misdemeanours” are concerned,) there was no need of Parliament, for the establishment of the less arbitrary sort of court, therein established and described:—a court composed of “the judge-advocate . . . . . together with six officers of his Majesty’s forces by sea or land;” the governor not sitting among them indeed; though, being the person to “convene” the court, he possesses (as it was evidently intended he should possess) the power of choosing, on each occasion, such members for it, as, on that occasion, he thinks, himself most sure of. The conclusion is then—that in spite of all suppositions, whatever ordinances he enacts and executes, are on a double ground illegal: first, because there is no law for enacting them; and again, because there is no law for executing them.

So much for law. In fact, in what set of cases the governor makes use of this court, and in what cases he does without it, or whether any precise line is drawn between them, is more than on the face of the documents (I mean the judge-advocate’s printed journal) I should expect to be able to pronounce. As far as I have yet seen, I should suppose no certain line: but, in each individual case, if it seems of importance enough, the court is convened: if not, whatever be the offence—English made, or colony made—the governor does what he pleases with it, without troubling anybody else, unless it be the man who is to give the lashes, or to “pull the house down,”* &c. as the case may be.

SECTION VIII.

KING’S LAW-SERVANTS NOT INFALLIBLE.

But, (says somebody) do you consider, Sir, by what authority all these acts, thus charged by you with illegality, were done? It is not the minister alone, and his subordinates, that are implicated. This is not mere treasury business. The acts have not only the king’s name and signature to them, but the sanction of the whole council-board, with the opinions of this and that and t’other great dignitary of the law included in it.

My answer is—all this makes little difference. It goes no farther than to show, that, as for a certainty a surprise was put upon parliament, so probably enough a surprise was also put upon the council-board: upon the council-board, including the legal learning and legal authority belonging to it. On putting the dry question of law—“Has not the crown, without special powers from parliament, powers to organize a constitution for a new colony?” the answer, judging from the supposed precedents of the American colonies, may, not very improbably, have been in the affirmative:—especially if given on slight consideration, as it naturally enough might be, in a case where no opposition was apprehended.

But, surprise or no surprise, God be thanked, it is not in the power of the king’s counsellors† to inflict upon a single Briton an atom of punishment of their own creation, much less to inflict illegal punishment upon Britons by thousands, and to make ex post facto penal laws by dozens, in repugnancy to so many laws of parliament, including Magna Charta and the Bill of Rights. Let the sanctions lent to the measures be what they may—by whatever pretences—and from whatever names obtained—wholesale oppression was the object of it, wholesale oppression has been the result.

What does appear in point of fact, and from very high authority, is—that in matters of colonial legislation, there has been a time, and even since the accession of his present Majesty—when his Majesty’s law-advisers in this behalf have not been altogether masters of this part of their business: so at least, in the court of King’s Bench, in the famous Granada case—the great and only adjudged case since the foundation of the first colony, that has any bearing upon this point—(Lord Mansfield being spokesman)—was the opinion of the judges.* “The inattention of the king’s servants” (speaking of his Majesty’s law-servants) is the circumstance to which, as the sole cause, the dispute then on the carpet is ascribed by that discerning judge. The power of legislation, as exercised in that colony, in the way of taxation, on the 20th of July 1764, by the king alone, without the concurrence of any other authority—either that of parliament here, or that of an assembly of the colony there—exercised on the ground of its being a conquered colony—is there supposed, though but arguendo, to have been in itself indisputable. But, before that day, to wit, on the 7th October 1763, these his Majesty’s careless servants, not knowing, or not minding what they were about, had so managed as to divest him of it: and it was after having so done, that, forgetting what they had done, they picked it up again, and in the name of their royal masters exercised it as above: “inverting,” says Lord Mansfield, “the order in which the instruments should have passed, and been notoriously published, the last act” was, under their management, “contradictory to, and in violation of the first:” and this is the “inattention” spoken of. Here, then, was an occasion on which, according to Lord Mansfield and the rest of the judges in the King’s Bench, his Majesty’s law-servants did not know what they were about: and this occasion was—the same as that now in question—that of the making or mending a constitution for a colony. This was in 1763 and 1764: and, forasmuch as a mistake of this sort was actually made, and by his Majesty’s law-advisers, I think I may venture, from the demonstrated error of that prior time, to infer the possibility of an error on the like subject, on the part of the same description of persons, in 1786 and 1787. The arguments ab auctoritate and ab impossibili being thus cleared away, the other arguments may without much rashness be trusted to their own strength.

SECTION IX.

NULLITY OF NEW SOUTH WALES LEGISLATION, PROVED BY THE GRANADA CASE.

If any addition could be wanting, to the proof already given, of the illegality of the legislative power exercised by the sole authority of the crown in this colony, it might be drawn, and with full assurance, from this Granada case.

From the whole tenor of the argument of the court, as delivered by Lord Mansfield, and taken in short-hand by the reporter in that case, two propositions may be deduced with full assurance:—

1. That in no case had any judicial decision been given, down to that time (1774,) recognizing the right of the crown to legislate, without parliament, over an English colony, howsoever acquired, (whether by conquest, as Granada was, or without conquest:) that therefore, as to every point not necessarily comprised in the decision given in that Granada case, the question, so far as concerns judicial decision, in contradistinction to extra-judicial opinion, remained open to that day; and from thence, it may be added, to the present. The above-mentioned decision in the St. Alban’s case—the decision disaffirming the king’s right to legislate over Englishmen without parliament—has therefore nothing to contradict it.

2. That, although by that argument, in the case of the foreign inhabitants of a country acquired by conquest, the right in question is affirmed: yet, in that same argument, in the case of a colony acquired in any other way than by conquest, it is expressly disaffirmed; and in particular, it is disaffirmed in the case of all the several other colonies at that time in existence.

3. On one condition indeed, it is, in the non-judicial opinion relied on by that same argument, in a certain way, affirmed: and the condition is—that, as in those other colonies, a share be taken by an assembly of the colony in the exercise of the right. But, by the affirmance of the right, restrained as it is by this condition, the case of Mr. Pitt, in his exercise of it, will not be bettered. For, of any legislative assembly in the penal colony of New South Wales, there has never been so much as a shadow.

Nor, even thus, is the affirmance given to the right a distinct and positive one. It is only not disaffirmed, because not disputed; both parties (the crown and the local assembly) being alike engaged by their respective views and interests to assume it. These propositions, being of such importance, may seem to have a claim to very specific proof: such proof shall not be wanting.

Of all these propositions proof will be afforded at the same time, by the two only authorities stated as having any bearing upon the case. These are—

1. A dictum in 1608 by Lord Coke, Chief-Justice, in his report of the famous case called Calvin’s case: the case in which, on the accession of James the First, a right on the part of Scotchmen to certain privileges of Englishmen, was claimed and allowed. 2. A non-judicial opinion, given in 1702 by two practising lawyers—one of them at least at that time a servant of the crown—Sir Philip Yorke (afterwards Earl of Hardwicke) and Sir Clement Wearg, on a question relative to the right of the crown to tax Jamaica: an opinion which, so far as it went to the affirmance of the right, in the case of a colony obtained by conquest, appears to have had for its ground, and only ground, that same ante-colonial dictum thrown out in Calvin’s case.

As to what is said in Calvin’s case, not applying (if to any colony) to any other than a colony acquired by conquest (such as New South Wales, most certainly, is not,) to scrutinize into it is a task that may here be spared.

The proposition is a mere dictum: collateral, and not even very perceptibly relevant, to the case in hand, the words of it, when extracted and wiped clean, as it has been very carefully by Lord Mansfield, from the portentous mass of absurdity and atrocity with which he found it entangled,* are as follows:—“If a king comes to a kingdom by conquest, he may change and alter the laws of that kingdom: but if he comes to it by title and [of] descent, he cannot change the laws of himself, without the consent of parliament.”

Of the opinion given by Yorke and Wearg, the account given by Lord Mansfield is in these words:—

“In the year 1722, the assembly of Jamaica being refractory, it was referred to Sir Philip Yorke and Sir Clement Wearg, to know what could be done, if the assembly should obstinately continue to withhold all the usual supplies. They reported thus:—‘If Jamaica was still to be considered as a conquered island, the king had a right to levy taxes on the inhabitants: but if it was to be considered in the same light as the other colonies, no tax could be imposed on the inhabitants, but by an assembly of the island, or by an act of parliament.’

“They considered the distinction in law as clear, and an indisputable consequence of the island’s being in the one state or the other.”

“In the one state,” says Lord Mansfield, “or the other.” Neither did he, therefore, any more than those whose opinions he was adopting, know of any third state. They recognized not any such state, as that of a colony acquired otherwise than by conquest, and yet capable of being legislated upon by the crown alone—by the crown, without any further sanction, either that of a local assembly, or that of the supreme legislative body in the mother country—without any check at all upon absolute autocratic power—without the necessity of any consent, either on the part of any special deputies from that particular division of his Majesty’s subjects, or on the part of the representatives of the whole.

In the case which drew this argument from Lord Mansfield, the point he was bound to determine, and which he accordingly did determine, was—that, as matters stood, the power of taxation, as exercised by the crown in Granada, was not legal. Another point which, being at liberty to speak to it or not, he thought fit to speak to was, that if matters had been otherwise, such power would have been legal. If, in humble imitation of such high and sincerely respected authority, and in precisely the same view, viz. that of seeing important constitutional questions settled on the broadest and most solid grounds, it may be allowable for an obscure ex-lawyer, on this same ground, to travel, as the phrase is, a little way out of the record, I will venture to state it as a question, which, notwithstanding the opinion so distinctly given by that great lawyer in the affirmative, remains still quite open, whether, even in the case of conquest, in any colony acquired since the Revolution, Trinidad for example, the right of the king to legislate without parliament—I mean, without express authority from parliament—would, in case of dispute, be found maintainable in law?

Over Englishmen, it stands expressly negatived (as already mentioned) by Magna Charta, and by the interpretation put upon that statute, by the judicial decision given in the St. Alban’s case.

Over foreigners, inhabitants found existing in a colony acquired by conquest, it would (I am much inclined to think) be regarded as negatived, as well as over Englishmen, by the two connected constitutional principles, recognised in the 4th and 5th articles of the Bill of Rights: viz. that neither in actu nor in potentia, shall a king of England have, as such, without the express allowance of parliament, either a separate army of his own, or a separate purse. And in this light, it appears from Edmund Burke,† that the Bill of Rights was most publicly (viz. in the House of Commons) and constantly, and, for anything that appears, without contradiction, considered by George Grenville, himself a lawyer—(according to Burke, even too much of a lawyer)—before he was a minister, and this not on the ground of policy merely, but of actual law.

Be this as it may, what is certain is—that the question is still open, notwithstanding the decision in the Granada case; because in that case, though an opinion was given, affirming the right of the crown to legislate in case of conquest, that opinion was not necessary to the decision then pronounced.

How much better for this country, as well as so many other countries, would it have been, if instead of fishing for drops of sense out of the extrajudicial ravings of Lord Coke, men of law had attended, on the one hand, to the direct decision of the judicial authority, as reported, in sober though very energetic language, by the same God of their idolatry, in the St. Alban’s case; on the other hand, to that of the legislative authority, as displaying itself in the Bill of Rights! If they had, nothing in the way of legislation would, from first to last, have been done in English-America, but by parliament, or with express authority from parliament. It would not then have been so much as dreamt of, that it was in the power of the king, by confederating with a part of his subjects, withdrawing themselves for this purpose to a vacant territory remote from the eye of parliament—that it was in the power of his law-servants, by any such management, to oust parliament of its rights: I mean its exclusive right of legislation, as established in the St. Alban’s case. Dissension would then have been nipped in the bud; and the American war, with all its miseries, and all its waste of blood and treasure on all sides, would have been saved.

Unfortunately, in the St. Alban’s case, the scene not lying in America, nor any thought being entertained by anybody about America, no such word as America is to be found. Of colonies, as little: for at that time scarce had any such idea as that of colonization ever presented itself to any English mind. And thus it happened, that when America came to be the order of the day with lawyers, nothing appeared in their common-place books, to guide them to that case.

What is curious enough, is—that in the very first instance of a grant of land made by a charter from the crown of England to intended settlers in America, these portions of American ground were declared to be put upon the same footing in point of law, as if contained within a spot of English ground;—the manor of East Greenwich.* And with the St. Alban’s case, then comparatively a recent one, before their eyes—with this case, one of the most prominent cases, in the most prominent of all law books, full in their teeth, were these crown-lawyers audacious enough to make their king grant, to these inhabitants of East Greenwich, privileges which had already been declared illegal, not fourteen years before, when granted to the inhabitants of St. Alban’s. But the grant was of the number of those exertions of prerogative, which were not expected to come before an English court of justice, any more than they were intended for the eye of parliament. Parliament, never for two days together sure of its own existence, had too much of its own and the whole nation’s business upon its hands, to be inquisitive about a handful of obscure adventurers, who, turning their backs upon their country, betook themselves to other laws.†

All this, except what concerns the want of power, on the part of the servants of the crown here in England, to legislate over Englishmen in New South Wales, and without any of those limitations, without which, or some of them, no such power had ever been exercised by any servant of the crown of England anywhere else, is, as I have already observed and acknowledged, a mere work of supererogation, with reference to New South Wales. But there are other places, with reference to which it may be not altogether so immaterial:—say Trinidad for example.

Mischievous as the effect of these questions might be, if ill-timed, I start them without any sort of scruple. Parliament being now sitting, the tendency as well as the object of them is, not to create confusion, but to prevent it. How desirable, on every account, that rights of such importance should be fixed at once upon the rock of legislation, instead of being left to totter upon the quicksands of expected judicature, waiting for “the competition of opposite analogies!”* Can it be worth while to leave so much property a prey to insecurity—so many confident expectations a prey to disappointment—for the chance of saving a little longer the stump of a rotten prerogative, and perhaps the pride of a few lawyers?

But, all collateral questions dismissed, thus, on the ground of law, stands the government of New South Wales. Over Britons or Irishmen, in or out of Great Britain and Ireland, the king, not being himself possessed of legislative power, can confer none. To confer it on others—those others being his instruments, placeable and displaceable by himself at any time, is exactly the same thing as to possess and exercise it himself.

The displaceable instruments of the crown—the successive governors of New South Wales—have, for these fourteen years past, been exercising legislative power without any authority from parliament: and either without any authority at all from anybody, or at most without any authority but from the king: and all along they have been, as it was most fit they should be, placed and displaced at his Majesty’s pleasure.

And among those, over whom legislative power has thus been exercised, have been individuals by hundreds, or, ere this, by thousands, who, so far from subjecting themselves to this power by their own consent, or having been subjected to it by any consent on the part of their ancestors, under whom they were born and bred, have all along been doing their utmost to make their escape out of the reach of it: and this very absence of consent—the very energy and notoriety of their repugnance—is among the very grounds on which, in the most important case of all, that of confining to this land of bondage such as are free by law, the power thus exercised over them would, if at all, be justified.

Of two things, one. Either there is not at this moment any legal power of legislation in New South Wales, or there is not any legal power of legislation in Great Britain—Magna Charta is waste paper. If, without fresh support from parliament, the constitution of New South Wales stands, that of Great Britain and Ireland is no more. If, without authority from parliament, the king can legislate over Britons and Irishmen in New South Wales, so can he in Great Britain and Ireland. If, without authority from parliament, the king can confine to that place of exile any such quondam bondsmen, reconstituted freemen by the expiration of their legal terms of bondage, so likewise can he deal by freemen who never were in bondage. If men of either description can be thus confined when there, with equal right may they be sent there. The King is absolute: and, instead of convening Lords and Commons to Westminster Hall to join with him in making laws, may send them to have laws made upon them in New South Wales.

SECTION X.

GOVERNOR’S ILLEGAL ORDINANCES EXEMPLIFIED.

1.

For Prevention of Famine.

Thus, then, stands legislation there in point of right. In point of fact, I have already observed, there has not been any deficiency of it; or, if there has, it has not had the deficiency in point of law, or any suspicion of such deficiency, for its cause. Ten classes, comprising the whole population of the colony, have already been brought to view: half of them, or thereabouts, subject by law, in one way or other, to a certain degree at least (for aught appears,) to the governor’s legislative power: the other half, not thus subject to it. No traces of any such distinction, in point of right, appear in point of fact. Regardless, or (to embrace the more probable, as well as more candid supposition) unapprized of any such distinctions, he legislated chance-medley upon all. The terms of each ordinance or mandate being general—addressed to all alike—no exception of this or that denomination of persons—neither exception nor specification (which is as much as to say an exception of all denominations not specified)—obedience appears to have been expected and exacted from all alike. De jure, a limited monarch (though most strangely limited)—de facto, he was an absolute one: as, indeed, in the situation in which he, and everybody under him, had been so unnecessarily placed, it was sometimes at least, if not always, necessary that he should be.

To satisfy the reader at one and the same view, that of legislation there was little or no want in one sense, and at the same time a most urgent and perpetual want in the other—that there was plenty of legislation, accompanied all along by a most urgent need of it—here follows a list of the chief objects or purposes, which the ordinances actually issued appear to have had in view. To class a set of laws under the very heads which point out the reasons of them—such, if not a very ordinary mode of classification, is neither an uninstructive, nor surely an unfair one.

In the journal of the late judge-advocate of the colony, indications more or less distinct may be found, of a set of ordinances, of one sort or other—in number between sixty and seventy—issued within a period commencing with the arrival of the first expedition on the 20th of January 1788, and ending with the month of September 1796; a period of not quite nine years.

Among the objects or final causes of these regulations, the following appear to have been the principal ones:—

• 1. Security against scarcity and famine.
• 2. Security against depredation, and other mischief from within.
• 3. Security against mischiefs from without, viz. against injuries from the native savages.
• 4. Security against accidents by fire.
• 5. Prevention of drunkenness.
• 6. Enforcement of attendance on divine worship.
• 7. Prevention of emigration—whether on the part of non-expirees—of expirees—or both together without distinction.

These objects—were they of no moment? The mischiefs thus guarded against—was there anything singular or unexampled in them?—anything which, to a man of ordinary forecast, legislating in England could be expected to be invisible?

Without entering into particular examinations, thus much may be averred in general terms without error—that among these ordinances are many either altogether indispensable, or indisputably useful: speaking all along of such as, being introductory of new law, adapted to the particular exigencies of the spot, became creative of so many correspondent offences, such as would not be “misdemeanours or felonies, treasons or misprision thereof,” if committed in “this realm;”* to use the words employed by the act, in the description of the only offences, which the only court of justice legalized by it, received authority from it to punish.

In every instance, the stronger the necessity of each illegal ordinance, the clearer the innocence of the local lawgiver, if not in a legal point of view, at least in every other: but the more clear his innocence, the more flagrant the guilt of those who, sitting in the bosom of security, sent him out thus to legislate with a halter about his neck, and without legal powers! Guilty, if in their dreams they thus exposed him: how much more so if awake!

From the sort of account given of these several ordinances by the judge-advocate (an account which had no such scrutiny as this for its object,) to speak with decision, and at the same time with correctness, as to the legality of the ordinance, is not in every instance possible. In many, perhaps most instances, one and the same ordinance will have been in part illegal, in part legal: legal, in so far as it bears upon the faculties, active or even passive, of persons belonging to the classes above distinguished as legally subjected to the authority of the governor; illegal, in as far as it bears in like manner upon persons not so subjected.

For showing, by the tenor of the ordinances themselves, the urgency of the demand for legal authority for the issuing of them, and thence the guilt of those by whom it was left unsupplied, I select, out of the above seven cases, the three most prominent ones: famine, drunkenness, and escape.

The absence, coupled with the need, of any of the powers of government—this combination, as far as it extends, is anarchy. Famine and anarchy are the grand intestine foes, which all infant settlements have to struggle with. Each leads on and exasperates the other. From one or other, or both, many expeditions of this sort have suffered more or less severely: some have perished altogether. Such has been the case where the spot has been comparatively at next door to the source of power and supply: in America for example, at scarce a quarter of the distance. To any considerate eye, how much more repulsive the danger in New South Wales!

This double source of destruction ought to have been foreseen; and with an ordinary degree of intelligence and attention would have been foreseen: and being foreseen, should of itself have been sufficient to prevent the establishment—if not of any colony—at least of any colony so composed. In a country so situated and circumstanced—of itself yielding nothing in the way of sustenance, and at that unexampled distance from the nearest country that yielded anything—it was in the very nature of the enterprise, to deliver up the persons sent upon it, to the scourge of famine: it was in the very nature of the enterprise, to give birth to enormous exertions, in the way of national expense, in the view of protecting them against the affliction: it was in the very nature of the enterprise, that such exertions should be more or less ineffectual. Such was the tendency of it—such was the event: many sunk under the pressure: the remainder, for months together, stood between life and death. Death must evidently have been the general lot, had it not been for the exercise of those powers, of which the founders of the establishment here at home had left it destitute.

Such negligence, to give it the gentlest name, being too flagitious to be suspected, was not in that Ultima Thulé followed with those consequences, of which it might have been productive, in a situation communicating more freely with the centre of information. Against anarchy, a battalion of well-armed soldiers, to keep in order a band of unarmed convicts—such a remedy, expensive as it is, must be allowed to be a strong one: continual as the apprehensions are, that it will not be strong enough.

Examples of Ordinances, having for their object security against Scarcity and Famine.

1. Page 23, March 1788. “Much damage . . . . by hogs—. . . . Orders given . . . . any hog caught trespassing, to be killed by the person who actually received any damage from it.”

2. Page 28, May 1788.—“The governor . . . . directed every person in the settlement to make a return of what live-stock was in his possession—”

3. Page 98, March 1790.—“It being found that great quantities of stock were killed, an order was immediately given, to prevent the farther destruction of an article so essential in our present situation.”

4. Page 101, 27th March 1790.—“Damage was received from the little stock which remained alive: the owners not having wherewithal to feed them, were obliged to turn them loose to browse . . . . It was however ordered, that the stock should be kept up during the night, and every damage that could be proved to have been received during that time was to be made good by the owners—. . . . or the animals . . . . forfeited.”—

5. Page 105, between the 3d and the 7th of April 1790.—“All private boats were to be surrendered to the public use.” This was for fishing: a determination having been taken “to reduce still lower what was already too low” (the ration.) “In this exigency, the governor had thought it necessary to assemble all the officers of the settlement—civil and military—to determine on . . . . measures—”

6. Page 104, between the 3d and 7th of April 1790.—“The lieutenant-governor . . . . called a council of all the naval and marine officers in the settlement, when it was unanimously determined, that martial law should be proclaimed; that all private stock, poultry excepted, should be considered as the property of the state!”

Of the several acts of disobedience with reference to these respective ordinances, how many are there that would have been “misdemeanours,” if committed in England?—Scarce a single one.

The ordinances all prudent and expedient:—upon the face of them, at any rate: some at least necessary; necessary to a degree of urgency to which even conception cannot reach in England. Sanction, the physical: penalty of non-legislation, not scarcity only, but famine.

SECTION XI.

GOVERNOR’S ILLEGAL ORDINANCES EXEMPLIFIED.

2.

For Prevention of Drunkenness.

Improvidence—Indolence—Helplessness—all extensive as well as intense, to a degree scarce conceivable in this country, were the prominent features of this reformation colony, down to the time when its historiographer took his leave of it.* But of all these weaknesses, drunkenness was the principal and perennial source.†

Prevention—anything like complete prevention—being out of the question, to snatch from this vice what could be snatched from it of its prey, would be as important an object as it was a natural one, to a governor legislating on that spot. But important is not strong enough. In this country, well-being only; in that, even being was attached to it. Upon sobriety, depended labour: upon labour, the means of immediate subsistence. In that state of things, to legislate against drunkenness was to legislate against famine. The means chosen might be more or less apposite; the result more or less successful. But the endeavour was as necessary as life is necessary: and for this endeavour, the authority obtained from parliament was as insufficient as for all the others.

Here, as in the case of famine, the same natural incompatibility established between the expedient and the lawful: to the governor the same distressing option between legal duty and moral, supposing the difference to have been present to his view.

Among the ordinances actually issued by him on this ground, it will be only by accident, if any one be found, that was not expedient: it will be only by accident, if any one can be found, that was not illegal. As to the test of illegality, it is already given. To apply it to the several ordinances, article by article, would to lawyers be unnecessary, to non-lawyers tedious beyond endurance.

No. 1. Collins, I. p. 175: 28th August 1791.—“Spirituous liquors . . . . Ordered that none should be landed, until a permit had been granted by the judge-advocate: and the provost-marshal, his assistants, and two principals of the watch, were deputed to seize all spirituous liquors which might be landed.”

No. 2, p. 300: July 1793.—“Spirituous liquors. Notice” (by the lieutenant-governor,) “that any person attempting to sell spirituous liquors without a licence, might rely on its being seized, and the house of the offending parties pulled down.”

No. 3, p. 449: 18th January 1796.—“The governor forbade all persons . . . . to distil spirituous liquors . . . . on pain of such steps being taken for their punishment as would effectually prevent a repetition of so dangerous an offence.” “In pursuance of these directions,” pursues the text, “several stills were found and destroyed.” Rather more of the mystery of despotism than of the certainty of law in the above sanctionative part: but, by the practical comment, the mystery was unravelled.

The forbidden practice is spoken of as being “in direct disobedience to his Majesty’s commands.” Here then we have one instance at least, in which the name of Majesty was profaned, for the purpose of giving an apparent sanction to these violations of law, which were found better adapted to the purposes and dispositions of ministers, than the legal authority, which might or might not have been obtainable from parliament.

No. 4, p. 483.—“Direction by the governor . . . . that none of those persons who had obtained licences should presume to carry on a traffic with settlers or others who might have grain to dispose of, by paying for such grain in spirits.” Then, in case of contravention, comes the menace in the established mysterious style: their licences would immediately be recalled, and such steps taken for their punishment, as they might be thought to deserve.” Also that “trading, to the extent which he found practised, was strictly forbidden to others, as well as to those who had licenced public houses.” Observations, in various shapes, present themselves: amongst others a question, how a man was to know whether he was safe or no under this law? But as to what may apply more particularly to individuals there, this is not a place for observations.

SECTION XII.

EXPIREES FORCIBLY DETAINED.

No. 1. Collins, I. p. 74: July 1789.—Liberty of departure, and freedom from bondage on the spot, both refused to a number of expirees at the same time; on the ground that no evidence of the original commencement and length of their respective terms was to be found.*

There being, for anything that appeared, no authority for treating them as convicts, the legal consequence would have been, in England, and in short under any system of of law but that of New South Wales, that they should have been treated as freemen. Instead of that, they were kept in confinement and bondage there, till a time which might never happen.

The omission of the papers in question is ascribed by the historian, as by a candid interpreter it naturally would be, to “oversight,” and the oversight is spoken of as being “unaccountable.” What is curious enough is, that this omission is not the only one of the same kind.† But, even though it were the only one, indications are not altogether wanting, such as might lead to a suspicion at least, as to the cause. In the list of convicts, with their respective terms and days of sentence, given by Governor Phillip,‡five persons are named whose terms were to expire in the very month in question, July 1789. Of these there was not one whose remaining penal term, on the day of his being shipped for transportation, or at least on the day of the ship’s sailing, was so long as two years and three months; nor, on the day of his landing, more than eighteen months. Deducting, if it be but six months, for the time requisite for return, had these convicts, all of them, had a vessel in readiness for them to embark in for England, and embarked and arrived accordingly, so as to have reached England by the end of their respective terms, there would have remained no more than a twelve-month for them to have continued, according to their respective sentences, on the spot to which they were conveyed at so heavy an expense. Is it natural, that after remaining in confinement in England for near five years out of his seven, a man should have been sent out to the antipodes with a view of his not being kept there for more than a twelve-month? If not, then the non inventus, upon the documents by which their freedom would have been established, may not appear altogether so unaccountable as without this comparison of circumstances it would naturally appear to be.

What is certain, from Governor Phillip’s list, is—that certain persons, five in number, were in this predicament in this same month. What appears little less so is, that the persons claiming their liberty in that same month were those same persons: “conscious in their own minds that the sentence of the law had been fulfilled on them,” are the terms employed on this occasion, in speaking of these same persons, by their ever-candid historian and judge.

What they claimed on this occasion was, in the first instance, pay, upon the footing of freemen: what was announced to them on this head was, that “by continuing to labour for the public, they would be entitled to share the public provisions in the store;” that is, be kept from starving, on condition of their being kept in bondage.*

The supposition of an intentional suppression anywhere, is, it is true, no more than a bare surmise: a suspicion, given as nothing more, and which, if unfounded, may be easily disproved. In the meantime, the probability of it will not be found diminished by Nos. 6, 7, 8, 9, 10.

No. 2. Collins, I. 74. July 1789.—It was on this same occasion, that one of the claimants in question, having in presence of his Excellency “expressed himself disrespectfully of the lieutenant-governor, was . . . sentenced to receive 600 lashes, and to wear irons for . . . six months.” What the words thus punished were, does not appear: but what does appear beyond doubt is—that if there had been no such violation of law on the one part, there would have been no such violation of respect on the other.

No. 3, p. 159. April 1791.—Information given by the governor to the convicts, “that none would be permitted to quit the colony who had wives and children, incapable of maintaining themselves, and likely to become burthensome to the settlement, until they had found sufficient security for the maintenance of such wives or children, as long as they might continue after them.” Considering the latitude of the discretion assumed by some of these terms, this notice may be considered as a pretty effectual embargo upon the whole married part of the community of expirees.

No. 4, p. 169. July 1791.—Information given by the governor to the expirees, that those who wished not to become settlers in New South Wales were “to labour for their provisions, stipulating to work for twelve or eighteen months certain;” and that afterwards, on condition of their entering into such engagement (is not that the meaning?) “no obstacles would be thrown in the way of their return to England;” but that, as to “assistance” for any such purpose, nobody was to expect it.† Illegal detention, for twelve or eighteen months, nobody was to know which, which is called “certain;” and this at any rate universal:—illegal bondage, for the same uncertain certainty, and equally universal. And at the end of this certainty, what was to be their fate? As to the means of departure, they were to get away if they could, but they were to have no “assistance:” as to their condition so long as they staid (that is, as to the greater part of them, so long as they lived,) they were to be either bond or free, as it might happen: nobody was to know anything about the matter. Such is legislation in the antipodes: such is legislation by the servants of the crown: such is legislation without parliament.

No. 5, p. 190. 3d December 1791.—Sailed the Active and Albemarle for India. After their departure, expirees were missing. “Previous to their sailing, the governor was aware of an intention, on the part of the seamen, to facilitate such their departure. He thereupon instructed the master to deliver any persons whom he might discover to be on board, withoutpermission to quit the colony, as prisoners, to the commanding officer of the first British settlement they should touch at in India.”

No. 6, p. 230. August 1792.—“Such [expirees] as should be desirous of returning to England were informed, that no obstacle would be thrown in their way, they being” (i. e. all of them being) “at liberty to ship themselves on board of such vessel as would give them a passage.” Such was the intention announced. What was the intention at that same time entertained? The following words explain it:—Now it was that “it was understood that a clause was to be inserted, in all future contracts for shipping for this country, subjecting the masters to certain penalties, on certificates being received of their having brought away any convicts or other persons from the settlement without the governor’s permission: and, as it was not probable that many of them would, on their return, refrain from the vices or avoid the society of those companions who had been the causes of their transportation to this country, not many could hope to obtain the sanction of the governor for their return.”—Not “obtain” it? Agreed. But—not so much as “hope” to obtain it? not even at the very time when it was expressly promised to them?—a promise made to all; and this at the very time when it was determined that, a few only excepted, none should ever receive the benefit of it!

No. 7, p. 268. 19th February 1792.—Intention executed. Howsoever it may have been as between the intention announced and the intention entertained, between the intention entertained and the execution that ensued there was no repugnance. On this day sailed for Canton the Bellona. Into this ship had been received six persons from the settlement: two of them, expirees, by permission; two others, expirees also, but without permission; the remaining two, non-expirees. Of the four latter it is stated, that they had been “secreted;” also that they were “discovered,” “the ship being smoked.” That they were accordingly re-landed at least, if not otherwise punished, may pretty safely be concluded, though not expressly mentioned.

Of the two non-expirees it is stated, that “they had not yet served the full period of their sentences.” From this it seems not unreasonable to conclude that this full period would have arrived before their arrival in Great Britain. If so, then neither by their arrival, any more than by their departure, would they have gone beyond the exercise of their renovated rights.

No. 8, p. 268. 15th February 1793.—At this time the expectation “about the clause . . . . in the charter party, for preventing shipmasters from receiving any person . . . . from the colony, without the express consent and order of the governor,” was found to be realized. The Bellona came provided with this clause. She had sailed from England on the 8th of August 1792.

No. 9, p. 283. 24th April 1793.—Intention executed a second time. Sailed the Shah Hormuzear and Chesterfield. “But few convicts [expirees] were allowed to quit the colony in these ships.” On a subsequent occasion, in November 1794, the number received on board the same number of ships (the Endeavour and the Fancy) had been near a hundred: whereof by permission, 50; without permission near 50 more. Ib. p. 398.

No. 10, p. 316. 2d October 1793.—Intention executed a third time. Sailed the Boddingtons and Sugar-cane for Bengal. “From the Sugar-cane were brought up this day. . . . two expirees: they had got on board without permission.—Punished with 50 lashes each, and sent up to Toongabbe.”

In the continuation of the history, no express statements of detention have been met with. The historian not being at this time present in the colony, the precision exhibited in the former volume no longer presents itself in the same degree. During the latter period, the conception which it seems to be the object to present to view, is rather the removal of the restraint than the continuance of it. It is not, however, the less perceptible, that even at this time it was restraint that constituted the general rule, and that whatever instances of the exercise of the opposite liberty took place, were the result of so many special permissions, and constituted but so many exceptions to, and confirmations of the rule.

No. 11, II. p. 11. 6th December 1796.—“Although they every day saw that no obstacle was thrown in the way of the convict who had got through the period of his transportation with credit and a good character, but that he was suffered to depart with the master of any ship who would receive him, and a certificate given to him of his being a free man, yet, &c.” By this it appears as plainly, that, among expirees themselves, there were some to whom the liberty of departure was refused, as it does that there were others to whom it was granted.

No. 12, Ib. p. 49. September 1797.—“As the masters were seldom refused permission to ship such as were free.” From this passage it follows, that, at this time likewise, though there were but few instances, yet there were some, in which such permission was refused.

No. 13, Ib. p. 45. August 1797.—Sailed the Britannia and the Ganges. “The commander of the latter was permitted to take on board several convicts that had become free.”

No. 14, p. 125. September 1798.—Sailed the Barwell for China. “Her commander was allowed to receive on board about 50 persons, who had completed their period of transportation.”

No. 15, p. 57. October 1797.—“Decreasing daily as did the number of working men in the employ of government, yet” [at this time it is stated that] “the governor could not refuse granting certificates to such convicts as had served their respective terms of transportation; and no less than 125 men were at this time certified by him to be free. Most of these people had no other view in obtaining this certificate than the enabling them, when an opportunity offered, to quit the settlement, or following their own pursuits till that time should arrive.” Could not refuse? Why so? He had without any difficulty refused on the former occasions, mentioned in Nos. 1, 3, 4, 5, 7, 10: what was there to prevent him now? From hence it should seem, that by this time some legal scruples had arisen, in some breast or other, either in the colony or at home: and that from thence it was, in the first place, that the granting of the certificate, at or about the expiration of each man’s term, was regarded as in some measure obligatory; in the next place, that the effect of such certificate, when obtained, was to confer on the individual the liberty of departure:—a primâ facie liberty at any rate, though probably subject at all times to revocation by special order.

No. 16, p. 298. August 1800.—“Several certificates were granted this month, to persons who had served their terms of transportation.”

SECTION XIII.

EXPIREES, DURING DETENTION, KEPT IN A STATE OF BONDAGE.

No. 17, I. 74. July 1787.—Freedom from bondage, refused along with liberty of departure, on the same ground, viz. the want of evidence of the commencement of the term of servitude. See above, Nos. 1 & 2.

No. 18, I. 169. July 1791.—Expirees, who wished not to become settlers in New South Wales, ordered to work there for twelve or eighteen months certain. See No. 4.

No. 19, I. 208. April 1792.—Expirees “become numerous.” To fourteen of them the choice of the place where they were to labour (where these freemen were to be forced to labour) is stated as an “indulgence.”

No. 20, I. 474. 4th October 1796.—No expiree was now allowed “to remove himself without permission from the public work. But, notwithstanding this had been declared in public orders, many withdrew themselves . . . . on the day of their servitude ceasing.” For this “they were punished, and ordered again to labour.”

No. 21, II. p. 22. February 1797.—“Several convicts who had served their respective terms of transportation, having applied to be discharged from the victualling books of the colony, and allowed to provide for themselves, it was determined that, once during a given time, certificates of their having so served their several sentences should be granted to them, together with the permission they solicited.”—Once during a given time: i. e. once a-year, once a-quarter, or once a-month, &c., if the sense that presents itself to me is what was meant. This being the case, the time when each man was restored to liberty, was the time—not when his right to it commenced—not when law and justice required that he should be restored to it—but a time which recommended itself to the imagination, by some such idea as that of order and regularity:—at any rate, by some idea or other, which in the order of importance occupied in certain conceptions a higher rank than that of law and justice. What would be the feelings of the good people in England, if, by the influence of any such love of order on the mind of a secretary of state or sheriff, prisoners were in future to be discharged from prisons here, not as at present, when their respective terms are up, but in gangs together, say every quarter-day? so that a man, for example, whose sentence was for a month, should, for the sake of good order, be kept in jail three months longer, all but a day or two, if his month happened to end a day or two after quarter-day?

No. 22, Ib. II. p. 23. March 1797.—“It appeared by the books, in which were entered the certificates granted to the convicts who had again become free people, that there were at this time not less than 600 men off the store, and working for themselves in the colony: forming a vast deduction of labouring people from the public strength, and adding a great many chances against the safety of private and public property, as well as present security.”

Legality (let it never be out of mind) is the object of inquiry here, not abstract expediency. So far as security and economy were concerned, legality and expediency seem to have been in a state of perpetual repugnance. Legality required that each man should be liberated from bondage the instant the time comprised in his sentence was at an end: expediency (had legality been out of the question) would perhaps have required that, in a society so constituted, he never should be discharged at any time.* But, as to the contrivance for making the discharges in the lump, at fixed periods, it is not quite so apparent how expediency was served by it, as it is that law was violated by it. What a system! under which, in one way or other, it was impossible not to do wrong! in which mischief, in a variety of shapes—frequently, perhaps, utter destruction—would have been the consequence of anything like an exact conformity to the rules of law!

In a situation like this, the conduct of the local powers may on each occasion be, upon the whole, blameable or unblameable, as it may happen: but the system itself, under which they are obliged to act, what can it be, otherwise than blameable—blameable in the extreme—upon all occasions?

In all these transactions—in all this time—is it in the nature of the case, that the system of illegal detention, such as it is, should have been carried on in the penal colony, otherwise than in consequence of, and in general in conformity to, instructions received from home?

Much argument does not seem necessary to prove, that the difference between punishment of this sort for a limited term, and punishment of the same sort for life, was no secret to those by whom it was obliterated in practice. But by a particular fact a sort of impression will often be made, beyond any that can be made by general inference.

In September 1794, in a single page, an account is given of no fewer than sixteen convicts existing at one time (one, in from a hundred to two hundred or some such matter,) in whom symptoms of reformation had been supposed to be discovered.* The supposed penitents here in question were nonexpirees: to different individuals amongst them, different and very carefully measured degrees of indulgence were extended. To one of them (William Leach) whose “term” under “his sentence of transportation” had been for seven years, of which term a part only had elapsed, “permission,” it is stated, was given “to quit this country” (New South Wales;) but clogged with the condition of his not returning to England, so long as his “term” remained “unexpired.”

Here, then, the punishment, we see, was analysed, and its constituent elements separated: the confinement to New South Wales, together with the species of bondage incident to it, was remitted: the exile was left, and for the whole time, in full force.

The written instruments, serving as evidences of the indulgences thus granted, are termed, on the occasion, “warrants of emancipation:” and to these warrants the “seal of the territory” (it is stated) was affixed. What was done on this occasion being done by so many formal, and of course (if anything like a register be kept there) registered acts, it seems difficult to suppose but that it must have been upon Instructions from government here—Instructions in some degree correspondent in point of formality—that they were grounded. If, under any such nice distinctions and guarded limitations, power was thus given for permitting individuals to quit the colony before the expiration of their respective sentences—given, therefore, in contemplation of the precise tenor of each law—is it supposable, that without Instructions equally deliberate, this large and continually-increasing proportion of the population (the expirees) should have been detained as they were detained, though against law, after the expiration of their respective terms?

Were the Court of Common Pleas to give judgment “in an appeal of death,” they would be “guilty of felony,”—says Hawkins, B. I. ch. 28, § 5, p. 169, 8vo., with a legion of marginal authorities for his support.—Guilty? why guilty? Then comes of course a technical reason:† but the rational one, which it shades, is evident enough; because, without what is called mala fides—without criminal consciousness—consciousness of the want of right to do what they take upon them to do—an error of that description could never, by persons of that description, be committed.‡

SECTION XIV.

STATUTES TRANSGRESSED BY THE LEGISLATION AND GOVERNMENT OF NEW SOUTH WALES.

The acts of legislation, and other acts of government, that have been exercised in New South Wales, have thus been stated, in a general point of view, as being contrary to law. It remains to confront the several heads of transgression that have thus been manifested, with the several constitutional laws and principles of law, which in those several points have been transgressed and violated.

I.

Transgressions in breach of the Habeas Corpus Act—Penalties thereby incurred under the said Act.

“And for preventing illegal imprisonment,” says the act,* “in prisons beyond the seas; Be it further enacted . . . that no subject of this realm, that now is, or hereafter shall be, an inhabitant or resident of this kingdom of England . . . shall or may be sent prisoner . . . into ports, garrisons, islands, or places beyond the seas, which are, or at anytime hereafter shall be, within or without the dominions of his Majesty, his heirs and successors; and that every such imprisonment is hereby enacted and adjudged to be illegal; and that if any of the said subjects . . . hereafter, shall be so imprisoned, every such person . . . so imprisoned . . . may for every such imprisonment maintain, by virtue of this act, an action or actions of false imprisonment, in any of his Majesty’s courts of record, against the person or persons by whom he or she shall be so committed, detained, imprisoned, sent prisoner, or transported, contrary to the true meaning of this act, and against all or any person or persons that shall frame, contrive, write, seal, or countersign any warrant or writing for such commitment, detainer, imprisonment, or transportation, or shall be advising, aiding, or assisting in the same, or any of them;† and the plaintiff in every such action shall have judgment to recover his treble costs besides damages, which damages so to be given shall not be less than five hundred pounds, . . . and the person or persons who shall knowingly frame, contrive, write, seal, or countersign any warrant for such commitment, detainer, or transportation, or shall so commit, detain, imprison, or transport any person or persons contrary to this act, or be anyways advising, aiding, or assisting therein, being lawfully convicted thereof, shall be disabled from thenceforth to bear any office of trust or profit within the said realm of England: and shall incur and sustain the pains, penalties, and forfeitures . . . provided . . . by the statute of provision and præmunire, . . . and shall be incapable of any pardon from the king.”

To the provisions in this clause there are two exceptions, annexed by so many immediately succeeding clauses:—one, in respect of persons, by their own agreement in writing, contracting to be transported;‡ the other, in respect of persons praying to be transported;∥ as it seems they were allowed to do in some cases, as still in Scotland, to save themselves from severer punishment.

There are also at present as many exceptions as there are posterior statutes authorising transportation, these exceptions having for their extent that of the authority given in each case by each respective statute: but, forasmuch as by a statute authorising the crown to transport offenders for a term therein limited, no authority, either express or implied, is given to “detain” any such offender, in any case, a moment beyond such limited time, the provisions in the Habeas Corpus act remain, in the instance of every convict so detained in New South Wales, in full force and virtue.

The several acts and modes of participation, by and in which a man may be a partaker in the crime of unlawful imprisonment, are here carefully enumerated and distinguished. As to acts, commitment is one; detainer is another. In the instance of the convicts, the commitment has not been unlawful: the detainer, after the expiration of their respective terms, has been, and still is. As to modes of participation, the description given of them will, I believe, be found sufficiently comprehensive. To appropriate them to this or that great person, in or out of office, would at present be an useless labour. The act has done its part: the books of the council board and the treasury—not forgetting the office of the secretary of state for the home department—these, with or without certain documents from the colony, and a little explanatory oral evidence, which need not be wanting, would do the rest.

It is almost superfluous to observe, that in intendment of law, every place, circumscribed or not by walls—every place in which, without sufficient warrant, a man is kept against his will—is, to this purpose—as for all purposes of justice it is most necessary that it should be—a prison.* If an island larger than all Europe were not to this purpose a prison, one of the two equally declared objects of the law would be defeated, and the whole text of it turned into a dead letter.

II.

Repugnancy of such Transgressions to Magna Charta, according to Coke and Comyns.

Thus saith common sense: and—what, fortunately for the present purpose, is much more indisputable and decisive—thus saith Lord Coke; whose comment, though the parliamentary text of it be of so much earlier date, is not here inapposite: since the Habeas Corpus act—an act having Magna Charta for its ground-work, has for its object no other than the affording an additional protection to this part of the rights which, by that sacred trumpet of the constitution, had already been proclaimed. Step by step, the oracles of the legal sage will be found advancing to the point, and at length coming fully home to it.

1. “No man,” says he, “shall be exiled, or banished out of his country; that is, Nemo perdet patriam, no man shall lose his country, unless he be exiled according to the law of the land.†

2. “No man shall be outlawed, made an exlex, put out of the law; that is, deprived of the benefit of the law, unless he be outlawed according to the law of the land.”‡ Their time of lawful punishment being expired, the quondam convict inhabitants of New South Wales, by being kept here against their wills, are they not made “to lose their country?” and, by being thus de facto removed out of the reach of the remedial arm of justice, are they not “put out of the law,” as effectually as if, after a wrongful judgment of outlawry pronounced against them, they had thus been deprived of the benefit of it ipso jure, i. e. falso jure?

3. “By this law of the land, no man can be exiled, or banished out of his native country, but either by authority of parliament, or, in case of abjuration for felony, by the common law.”∥ In the instance of each of these convicts, there is a time for and during which he has been “exiled by authority of parliament,” and so far as it is only for and during this time that he is kept in New South Wales, so far there is no injury. But, after the expiration of this time, all the rest of the time during which he is kept there, he is kept “in exile and in imprisonment, without authority of parliament.” He would be kept in exile, if, with the exception of this his native country, he had the choice of the whole world. But, besides being kept in exile, he is kept even, in most instances, in imprisonment, confined as he is to the insulated, however extended, region of New South Wales.

4. “This” [Magna Charta] “is a beneficial law, and is construed benignly: and therefore the king cannot send any subject of England, against his will, to serve him out of this realm; for, that would be an exile, and he should perdere patriam: no, he cannot be sent against his will into Ireland, to serve the king as his deputy there, because it is out of the realm of England: for, if the king might send him out of this realm to any place, then, under pretence of service, as ambassador, or the like, he might send him into the furthest part of the world, which, being an exile, is prohibited by this act.”§ To send the meanest of these convicts to this “furthest part of the world,” against his will, though it were to be governor there, would thus be an offence: an offence, in the first place, against Magna Charta; in the next place, against the Habeas Corpus act. These men, not one of whom Majesty itself could order to continue there, were it even to be governor there, against his will, these are the men whom, by thousands, his Majesty’s ministers are keeping there still in bondage.

5. If “a felon . . . is under custody of the king’s officer [it] is an imprisonment in law.”§ He that is under lawful arrest is said to be in prison, although it be not intra parietes carceris.¶

6. “Imprisonment doth not only extend to false imprisonment, and unjust, but for detaining of the prisoner longer than he ought where he was at first lawfully imprisoned.”*

7. “If any man, by colour of any authority, where he hath not any in that particular case, arrest or imprison any man, or cause him to be arrested or imprisoned, this is against the act; and it is most hateful, when it is done by countenance of justice.”

Had Lord Coke been a prophet as well as a lawyer, he could not have pointed more surely to the present case.†

III.

Transgressions in Breach of the Petition of Right, 3 C. I. c. 1.

In this statute, among the petitions contained in § 10, after the recital that “commissions” had then of late been “issued forth” “for proceeding by martial law,” is this—“That hereafter no commissions of like nature may issue forth to any person or persons whatsoever, to be executed as aforesaid, lest by colour of them any of your Majesty’s subjects be destroyed, or put to death, contrary to the laws and franchise of the land.”

After this comes the concluding section (§ 11,) which is in these words:—

“All which they most humbly pray of your most excellent Majesty, as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, that the awards, doings, and proceedings, to the prejudice of your people, in any of the premisses, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid, all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honour of your Majesty, and the prosperity of this kingdom. Quâ quidem petitione lectâ, et plenius intellectâ, per dictum Dominum Regem taliter est responsum in pleno Parliamento, viz. Soit droit fait come est desire.”

In full contradiction to this statute, it appears from the journal of the Judge-Advocate, that, in April 1790, in New South Wales, by the governor of New South Wales, martial law was actually proclaimed.‡ In the petition of right, the territory on which the commissions thus branded with illegality had been executed, stands described by words of no greater amplitude, indeed, than the words “this realm.” Of colonies no mention is there made:—good reason why, no such dependencies being at that time in existence.∥ But, if the principles already laid down in this behalf are just, no just reason could be built on this ground, for regarding the petition of right as being in this point of view inapplicable to New South Wales. In the first place, what should hinder that settlement, though at the distance of the antipodes, from being considered as parcel of “this realm?” Not local distance: for this, as we have seen already, did not hinder the whole of the intended plantations in America from being parcel of the manor of East Greenwich. In the next place, among the petitions contained in the concluding section above quoted, is this—“That your Majesty will also vouch-safe to declare that the . . . proceedings to the prejudice of your people in any of the premisses shall not be drawn hereafter into consequence or example;” and moreover. “that in the things aforesaid, all your officers and ministers shall serve you according to the laws and statutes of this realm.”

On this, as on all other occasions of necessity, real or apparent, I impute not any moral blame to the governor: moral blame might, for aught I know, have been imputable to him, had he acted otherwise.§Elsewhere, however—I mean to his Majesty’s “officers and ministers” here at home—I see not how it can be that moral blame should not be imputable: I mean, if, under constitutional blame, moral be included—if a regard for the constitution of their country—for the “laws and statutes according to which” they are thus pledged “to serve” their royal master—have any sort of place among the articles of their moral code. Amongst the documents which composed the legal armature of the governor, was any such power as that of declaring martial law, in that nursery of despotism, included? If so, then has there been, in that behalf, on their part, an open and point-blank breach made in this constitutional and hard-earned bulwark of the constitution. Again, be this as it may, when with or without precedent authority, from these his Majesty’s “officers and ministers,” martial law had actually been proclaimed, was information of such proceeding officially transmitted to them in consequence? That, in one way or other, at one time or other, information of this fact has come to their cognizance, is beyond dispute: if not by the next conveyance, and in the way of official correspondence (an omission not naturally to be presumed,) at any rate it was received by them in 1798, through the medium of the press. It is therefore at any rate with their knowledge that the petition of right has thus been violated. On the occasion of this, any more than of so many other exercises of unconstitutional powers, have they ever condescended to apply to parliament—I do not say for precedent authority—but so much as for an ex post facto indemnity? Not they indeed: no, not in any one of the multitude of instances that have called for indemnity at least, if not for punishment.

IV.

Transgressions in Breach of the Declaration of Rights.*

This statute, so familiar to English ears, and once at least so dear to English hearts, under the name of the Bill of Rights, opens with the recital of twelve heads of transgression, “whereby the late King James the Second, by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert . . . the laws and liberties of this kingdom.”

Of those twelve heads of royal transgression, of which in those days England had been the scene, seven at least present themselves, as having had their counterparts in New South Wales: with this difference, that, in the most material instances, the transgressions that at that time gave birth to the Revolution in this our island were but peccadillos in comparison of the enormities acted on that distant theatre. In England, the subversion was but attempted: at the antipodes it has been completed—complete in design, from the first moment—completed in the execution, so soon as occasion called for it: the subversion of English liberties having been the very object and final cause of the foundation of this English colony. The words of the clause, which it became necessary to copy, present another difference, but happily too striking a one to every loyal eye to require any further mention of it.

No. 1. Transgression the 1st in England.—“By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of parliament.”

Analogous Transgression in New South Wales.—Exercising legislative power by the hand of the governor there, without authority from parliament, in an habitual train of enumerated instances, to the number of sixty or seventy, or upwards, as already exemplified in § 10: besides other instances, not as yet specifically ascertainable. The word analogous requires correction. It is evident enough how inconsiderable the transgression is which consists in the mere act of dispensation or suspension, put upon here and there a law already existing, in comparison of an habitual and positive exercise of an illegal power of legislation, in all cases.

No. 2. Transgression 2d in England.—“Committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concurring to the said assumed power of suspending and dispensing with laws.”

Analogous Transgression in New South Wales.—Confining within this land of illegal bondage, and even without “prosecution,” punishing by arbitrary power, viz. with whipping—divers persons formerly guilty, but who had been restored, in point of law, to the condition of innocent persons, by the expiration of their terms of legal punishment.†

No. 3. Transgression 3d in England.—“Issuing and causing to be executed, a commission under the Great Seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes.”

Analogous Transgressions in New South Wales.—1. Instituting a court called a civil court, without authority from parliament.‡

2. Punishing divers persons, on divers occasions, in divers manners, by the single authority of the governor, for pretended offences created by so many acts of legislative authority exercised by the governor: for example, in some instances, by destroying stills,* pulling down houses,† destroying oars. These, though on the mention of them presenting the appearance rather of “outrages” committed by individuals, were among the acts done by the governor in the exercise of these illegal powers.

No. 4. Transgression the 4th in England.—“Levying money to and for the use of the crown, by pretence of prerogative, for other time, and in other manner, than the same was granted in parliament.”

Analogous Transgression in New South Wales.—Levying for the use of the crown a tax of 6d. per bushel on corn, and other taxes, applied towards the expense of building a jail at Sydney.‡

No. 5. Transgression the 7th in England.—“Violating the freedom of election of members to serve in Parliament.”

Analogous Transgression in New South Wales.—Legislation, exercised by the governor alone, without authority from parliament at home, or the concurrence of any assembly, standing in the place of parliament, in New South Wales.

No. 6. Transgression the 10th in England.—“Excessive bail . . . required . . . to elude the benefit of the laws made for the liberty of the subject.”

Analogous Transgression in New South Wales.—Married men, whose terms were expired, not suffered to quit the colony, without finding security for the maintenance of their wives and children, if left behind.∥

No. 7. Transgression the 11th in England.—“Illegal and cruel punishments inflicted.”

Analogous Transgression in New South Wales.—Perpetual exile, accompamed with perpetual confinement and perpetual slavery, inflicted on his Majesty’s subjects, altogether without cause; whatever offences they had been convicted of, having been previously expiated by appropriate lots of punishment, marked out by law. Of the mere endeavour to escape from this combination of illegal and cruel punishments—the humble and peaceable endeavour without anything like force—an additional lot of illegal punishment, illegal whipping, was the appointed consequence.

Under this head, the enormities imputed to James the Second were mere peccadillos, in comparison of the more palpably “illegal,” more “cruel,” and above all prodigiously more numerous enormities of the like complexion, committed under—My pen refuses to complete the sentence.§

After the statement of the several heads of transgression by which the rights in question had been violated, the act proceeds to declare the rights themselves in certain articles, the first of which is in these words: “The pretended power of suspending laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.”—But, if simple suspension or dispensation—(i. e. abrogation for a time in individual instances) be thus illegal, how much more flagrant must be the illegality of positive enactment, and that without any limitation as to the nature of the case?

In § 64, after declaring the rights and liberties in question to be “the true ancient and indubitable rights of the people of this kingdom,” the act concludes with “declaring and enacting,” that “all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come.”

The wretches in question, whatever may have been their crimes, were they not—are they not still, and as truly as the very best of their betters, so many individuals of “the people of this kingdom?” And thus it is, then, that his present Majesty, the venerable and beloved successor of the royal founders of these rights and liberties, has been “served” by “the officers and ministers of his time:” thus it is, that the “ancient and indubitable rights” of this helpless and defenceless portion of his people, have been respected and protected by these his “officers and ministers.”

IV.

Transgressions in breach of the several Transportation Acts, by which that Punishment has been appointed for limited lengths of time.

It would be a double charge of the same article, to state these as so many acts of delinquency, distinct from, and over and above those already referred to, in their character of transgressions against the Habeas Corpus act. It is by these several statutes, that the limits of legal punishment are marked out, in the several respective instances; it is in the transgression of those limits in each instance that consists the violation offered to that sacred law.

It would, moreover, be a waste of paper to give, by a string of references, a specific list of the several particular laws thus transgressed: it would be making so many useless transcripts, from the already existing indexes and abridgments.

In this complicated body of enormity, perspicuity requires that the distinction between the two main branches be kept in view. The one consists in the system of groundless, as well as illegal punishment; the other in the system of illegal legislation and government:—the former, in the oppression exercised upon individuals; the latter, in the usurpation exercised by the servants of the crown over the authority of parliament:—the former, in the wound given to the penal branch, and through that alone to the constitutional branch of the law; the other in a system of delinquency, striking more directly against the constitutional branch. The relation of the latter system of transgression to the former, is that of a means to an end: it was for the purpose of the oppression exercised upon individual subjects, that the authority of his Majesty in parliament was thus usurped by his “officers and ministers.”

One thing, in regard to the question of law, requires particularly to be observed: which is, that though the right of the crown to legislate in this new-founded colony, without the concurrence, either of the two other estates of the supreme legislature in the mother country, or of a subordinate assembly of states in the colony, were as clear as, I flatter myself, the contrary has been made out to be, the stain of illegality would not even thus be cleared away: for, admitting, on the part of the King’s governor of New South Wales, the right of legislating to every other effect imaginable, even then no such supposition could be entertained, consistently with any sort or degree of supremacy on the part of parliament, as that of a right of making ordinances in New South Wales, in direct repugnancy to the several acts of parliament, by which express limitations stand annexed to the several lots of punishment respectively appointed by those acts. And as to the Habeas Corpus act, should even the letter of that sacred charter be (as I can scarce conceive it to be) deemed not to have been violated, the violation of the spirit of it would still remain as plain and palpable, as it could have been in any of the cases, the experience of which may be supposed to have given occasion to the law.

As to everything that concerns motives and extenuations—motives by which any of the transgressors may be supposed to have been led into transgression—extenuations that may be supposed capable of being grounded on those motives—discussions on any such topics as these, might in the present state of the business be regarded as premature. The essential subject of solicitude is the Constitution: the essential operation is the healing the wound that has thus been given to it: that object being accomplished by the requisite votes and laws, everything else may in comparison be deemed of light importance; and may without much danger be left to float upon the tide of popular and party favour. The object on no account to be lost sight of is futurity: that being provided for at any rate, it is a matter of little comparative moment what degree of indulgence may accompany the retrospect, which cannot altogether be omitted to be taken of the past. The fact of transgression, declared, then would come the consideration of the censure, if any, and the deductions or set-offs to be made, on the score of motives, intentions, or past services, real or supposed, in other lines. All would be lost—the constitution would be betrayed and sacrificed—if, dazzled by the lustre that circles the head of this or that arch-delinquent, the eye of parliament were to show itself insensible to the distinction between right and wrong, and the quality of the criminal were to be accepted as a warrant for the crime. It was not in the case of James the Second—it was not in the case of that misguided, yet most religious, though so unhappily religious king: it saved him not from forfeiture, much less from verbal censure. It remains to be seen, whether the constitution, which, in the seventeenth century, even a king was punished and expelled for violating, is to be complimented away, and made a sacrifice of, to the pride of this or that domineering subject, in the nineteenth century—in this maturer age, in this supposed period of constitutional improvement, and more firmly established rights.

Compare the case of this immense, yet too real, because uninspectable Bastile, with that of the scene of kindred abuse in miniature,—the home-jail thus hyperbolized and stigmatized—in Coldbath Fields. See what was the conduct of parliament in the one case, and from thence say what it ought to be—what, if consistency be the rule, it cannot but be in the other. Information to parliament of mismanagement in a prison—a lawful prison—employed as such under the law for the suspension of the Habeas Corpus act. No principle of the constitution violated—no authority setting itself up to make ordinances repugnant to the laws, and subversive of the authority of Parliament. The alleged cause of the abuse, malpractices on the part of a single jailor, negligence or connivance on the part of certain magistrates, his official superiors. On this ground—on this single ground—an address is presented to his Majesty by the House of Commons, for an inquiry into the management of this jail; an address presented with the express concurrence of the chancellor of the exchequer; and a commission of inquiry is issued accordingly—issued by the crown,* and executed.†

On the present occasion, his Majesty’s subjects kept by hundreds, ere now, perhaps, by thousands, in a state of exile and bondage, without end and without cause: the four grand bulwarks of the constitution all broken through, for the very purpose of this causeless and endless punishment; the authority of parliament treated by the servants of the crown with a contempt already become habitual and rooted:—is the supposition so much as an endurable one, that after information thus exhibited, though it be by so obscure a hand, parliament should sit still and silent, exactly as if nothing amiss had ever happened?

When on that occasion the motion was made for the address, the delicacy of the chancellor of the exchequer of that day would not suffer him to refuse his declared concurrence with it.‡ Would the supposition be so much as a decent one, that the Chancellor of the Exchequer of the present day would show so little respect to the precedent thus set by his predecessor, as to refuse to the very vitals of the constitution that attention which it was then not thought decent to refuse to the police of one of the prisons.∥

DRAUGHT OF A CODE FOR THE ORGANIZATION OF THE JUDICIAL ESTABLISHMENT

IN FRANCE: WITH CRITICAL OBSERVATIONS ON THE DRAUGHT PROPOSED BY THE NATIONAL ASSEMBLY COMMITTEE, IN THE FORM OF A PERPETUAL COMMENTARY.

BY JEREMY BENTHAM, of lincoln’s inn, esq.

MARCH 1790.

TITLE I.

OF COURTS OF JUSTICE IN GENERAL.*

Art. I.—The fountain of justice is the nation, through the channel of the legislature. Justice shall not be administered in the name of the king, or any other single person.

Art. II.—The judges shall in general be elected by the persons subject to their jurisdiction; and that in manner hereinafter specified.

Art. III.—No office conferring judicial power, or the exclusive privilege of ministering by particular services to the exercise of such power, shall be created by the sole authority of the king for any purpose, much less in order to be sold.

Art. IV.—Justice shall be administered gratis. Provision shall be made for the ministers of justice by salaries. All exaction, or acceptance of fees, by persons any way concerned in the administration of justice, is hereby declared illegal.

Art. V.—All stamp-duties or other duties upon law proceedings are hereby abolished: and all laws made to ensure the collection of such duties, are so far forth repealed.

Art. VI.—The judges have no share in legislative power. Appointed for the express purpose of enforcing obedience to the laws, their duty is to be foremost in obedience. Any attempt on the part of a judge to frustrate or unnecessarily to retard the efficacy of what he understands to have been the decided meaning of the legislature, shall be punished with forfeiture of his office.

Art. VII.—But rules of law derivable from decrees of judges and customs of courts in times past, shall still be in force, so long as they remain unsuperseded by acts of the legislature.

Art. VIII.—No judge has any power to make general regulations; not even relative to the mode of procedure in his own court.

Art. IX.—But should any case arise before a judge, in respect of which it appears to him that the legislature, had the same been in their contemplation, would have made a provision different from that which the letter of the law imports, he is hereby authorised, and even required, so to deal therein as it appears to him that the legislature would have willed him to do, had such case been in their contemplation: taking such measures withal, whether by exacting security, or sequestration of goods or persons, or otherwise, as shall be necessary to prevent the happening of any irremediable mischief in either event, whether the legislature abide by the law, or alter it.

Art. X.—The suspensive power hereby given extends even to such laws and other acts of authority as shall have issued from the National Assembly, or from any subordinate authority, at any period posterior to that of the convocation of the present National Assembly: and it may be exercised with still less reserve with regard to such former laws and rules of law as, though not expressly abolished, may appear unconformable to the principles manifested by the National Assembly, and especially to those contained in the declaration of rights.

Art. XI.—Provided always that the judge, as soon as possible after the case calling for the exercise of such suspensive power has presented itself to his notice, shall make report thereof to the National Assembly.

Art. XII.—Copies of such report shall also be sent to the several courts of justice to which his court is subordinate: so that the dispatching of the original report be not delayedon account of the dispatching of such copies.

Art. XIII.—In such report shall be contained—

1. A statement of the matter of fact which has happened to call for the execution of the law.

2. A quotation, with proper references, of the passage of law in question.

3. A statement of the mischief which in his conception would ensue, were the letter of the law to be observed.

4. A statement of the course provisionally taken by him for avoidance of such mischief, in pursuance of the power given him by Art. IX.

5. To such report he is at liberty, and is hereby invited, to subjoin a note of such alteration in the text of the law, as appears to him most proper for guarding against the mischief in question for the future; whether such alteration consist in defalcation, addition, or substitution; pointing out the very words in which the passage in question, after the alteration suggested, ought to stand.

Art. XIV.—The true and only proper object of inquiry in the exercise of this suspensive power, as far as it regards laws posterior to the convocation of the present National Assembly, is, not what ought to have been the intention of the legislature in the case in question, but only what would have been so, had the same been present to their view.

Art. XV.—All judges and other ministers of justice are also hereby invited to make report, at any time, of any inconvenience which appears to them likely to ensue from the literal execution of any article of law, even although no case calling for such execution shall have yet arisen: as also to propose questions relative to the import of any passage in the law, which may have appeared to them ambiguous or obscure.

Art. XVI.—The subordinate representative assemblies, in the exercise of the powers of administration, and subordinate legislation, lodged in their hands by the supreme legislature, are [not?] accountable to the judicial power. The members of them cannot therefore be punished, or cited to appear before it, for any act done by them in their quality of members. Obedience to an act of any such assembly, acting within the sphere of the authority committed to it by the sovereign legislature, is to be enforced by the courts of justice in like manner as to an act of the National Assembly itself. But for that purpose, it is necessary that the courts of justice should take cognizance, upon every occasion, of the question, whether in such instance the subordinate assembly has or has not confined itself within its proper sphere, and to decide accordingly upon the validity of their act.

Art. XVII.—The judges, elected as in manner hereafter ordained, shall enjoy their offices for life, unless divested thereof in manner hereinafter specified.

Art. XVIII.—Judicial proceedings, from the first step to the last inclusive, shall, in all cases but the secret ones hereinafter specified, be carried on with the utmost degree of publicity possible.

Art. XIX.—Every subject has a right to plead his own cause, in every stage, and before every court, as well by word of mouth as in writing; and as well by himself as by the mouth or hand of any person of his choice, not being specially debarred by law.

Art. XX.—All monopoly of the right of selling advice or service in matters of law (saving provisionally the profession of a notary) is abolished. Any advocate may practise in the capacity of an attorney; any attorney, in the capacity of an advocate; and any man, not specially debarred, in the capacity of either.

Art. XXI.—In every suit, civil as well as penal, both parties shall attend in person at the commencement of the cause, in presence of each other and of the judge (unless in as far as they may stand excused by special reasons, in manner hereinafter specified); and so from time to time during the continuance of the cause; there to depose, and to be interrogated, at any time, they or their representatives, each on the part of the other, in the same manner as witnesses.

Art. XXII.—All privilege in matters of jurisdiction stands abolished. All subjects stand henceforward upon an equal footing, in respect, as well of the manner of pleading, and the order in which their causes are to be heard and decided, as of the choice of the courts before which they are to plead.

Art. XXIII.—The constitutional order of jurisdiction shall not be disturbed, nor the subject drawn out of his natural court by royal commissions, or attributions of causes, or arbitrary evocations.

Art. XXIV.—Resolved, That this Assembly will, with all convenient speed, proceed to the enactment of a law to determine in what cases, and how, the power of evocation may be lawfully exercised.

Art. XXV.—Resolved, That this Assembly will proceed with all possible expedition to frame a new code of Procedure, of which the object shall be to render the administration of justice as simple, as expeditious, and as little expensive as possible.

Art. XXVI.—Resolved, That this Assembly will proceed with all possible expedition to frame a new code of Penal Law, of which the object shall be to render the punishments in every case as proportionate, as mild, and as apposite, as possible; never losing sight of the maxim, that every lot or degree of punishment which is not necessary, is a violation of the rights of man, and an offence committed by the legislator against society.

TITLE II.

DISTRIBUTION AND GRADATION OF THE COURTS OF JUSTICE.

Art. I.—In every parish [or canton] there shall be a court of justice of immediate jurisdiction, under the name of the Parish Court,*composed of a single judge; saving such consolidations or divisions of parishes, as may be made for this purpose, in virtue of the powers hereinafter given.

Art. II.—In each district there shall be a court of justice of immediate jurisdiction, under the name of the immediateDistrict Court,composed in like manner of a single judge.

Art. III.—In each district there shall also be a Court of Appeal, under the name of the District Court of Appeal, composed in like manner of a single judge.

Art. IV.—[In each department there shall be a Courtof Appeal, under the name of the Department Court,composed in like manner of a single judge.] [Quære, the necessity of this court?]

Art. V.—At Paris there shall be a Court of Appeal, in the last resort, under the name of the Metropolitan, or SupremeCourt, composed in like manner of a single judge.

Art. VI.—The decrees of the Metropolitan Court of Justice shall be final, except such on account of which censure shall have been past on the judge by a decree of the National Assembly, in manner hereinafter specified.

Art. VII.—To each of the several classes of courts above mentioned is given authority over all sorts of persons, and in every sort of cause, throughout the kingdom; saving only, the difference between jurisdiction immediate and appellate, and the authority of certain tribunals of exception, in as far as the same is hereby acknowledged, and provisionally confirmed.

Art. VIII.—These are, 1. Courts-Martial in the land service; in as far as the powers of such courts are confined to the maintenance of discipline among military men.

Art. IX.—2. Naval Courts-Martial; in as far as their powers are confined to the maintenance of discipline among men engaged in the naval department of the public service.

Art. X.—3. Causes relative to matters happening at sea, on board private vessels, belong to the jurisdiction of the courts of any territory where the vessel is in harbour; viz. to the immediate courts, if no regular judgment has been passed in virtue of any lawful authority on board the vessel; or, if there has, then to the courts of appeal.

Art. XI.—4. Courts Ecclesiastical; in as far as the powers of such courts are confined to the maintenance of ecclesiastical discipline among ecclesiastical men.

Art. XII. 5.—All representative assemblies; for the purpose of putting a stop to, and punishing offences committed by members or others, in face of the assembly.

Art. XIII.—All courts, other than the tribunals of exception, as above specified, shall be comprised under the common appellation of Ordinary Courts.

Art. XIV.—In every ordinary court [but the parish court, and in every parish court where there is a judge specially appointed, as in Tit. V.] there shall be a Pursuer-general and a Defender-general.

Art. XV.—Attached to the authority of the judge, as well as to that of the pursuer-general and defender-general of every ordinary court, shall be the power of appointing substitutes, or deputies, viz. one permanent and occasional ones as occasion may require.

Art. XVI.—The name of Advocate-General, or Public-Advocate, shall be common to pursuers and defenders general; and the name of Magistrate to judges, advocate-generals, and the permanent deputy of each.

TITLE III.

OF JUDGES OF THE ORDINARY COURTS.

§ 1.

Appointment—Continuance in Office—Power and Rank.

Art. I.—A [Judgea ] (principal) shall be elected by the electors chosen by the active citizens of the territory over which he is to be [judge,a ] in the same manner as a member of the administrative body of that territory; parochial [judgesb ] excepted, of whom in Tit. V., and metropolitan [judges.b ]

*Art. II.—On the first election, to be eligible to this office, a man must be seven and twenty years of age, and must have exercised the functions of a man of law, for three years in a superior court, or for five years before an inferior tribunal.c

Under the denomination of Men of Law, are comprised, for this purpose, 1. Judges of every description; 2. King’s advocates and attornies, and their substitutes; 3. Advocates; 4. Attornies; [5. Secretaries of courts? Greffiers?] [6. Notaries?]

Art. III.—No vacancy in any [judicial officed ] but the lowest shall be filled, but out of the same rank of [judges,b ] or that next below: but [judgesb ] in those ranks all over the kingdom are alike eligible.

Art. IV.—No vacancy in the lowest rank of [judges]b principal shall be filled but by some one who has served in the station of [judge]a depute permanent, and that for at least [three] years, on elections posterior to the year [1793.]

Art. V. The [judgea ] principal of every court, (except the parish [or canton] court, and the metropolitan) shall hold his office for life, unless divested of it in one or other of the following ways:—

1. Resignation.

2. Forfeiture, judicially pronounced.

3. Amotion, pronounced by the suffrages of a majority of the whole number of the electors entitled to vote at the last preceding election, general or particular, holden for the choice of a magistrate, or of a member of the administrative body of his territory.

4. Amotion, pronounced by a majority of the whole number of members of the administrative body next in rank above that of the territory of which he is [judge.a ]

Art. VI.—By amotion, without forfeiture, a [judgea ] loses his rank as such, but not his salary, nor the capacity of being rechosen, even immediately.

Art. VII.—e Every judge, for the enforcement of his decrees judicially given, has, in case of necessity, the command over all persons, without distinction, within the bounds of his territory, the king only, and judges of equal or superior rank, excepted.

Art. VIII.—When a [judge,a ] in the exercise of his function, goes out of his own proper territory into another, he takes his [rank and powerf ] with him, subject only to the [rank and powerf ] of the co-ordinate and superior [judgesb ] of that territory.

Art. IX.—A judge principale shall have precedency of all persons over whom he has power, as according to Art. XI.; a judge of appeal taking place of a judge of immediate jurisdiction for the same territory, and judges of the same court according to the priority of their appointment.

Art. X.—Judicial dutygought not to be neglected for any other. Acceptance of a judicial office vacates every other, judicial or not judicial: and acceptance of an office not judicial, vacates every judicial one. Much less shall a Judge exercise any other profession, such as that of notary, advocate, or attorney. This extends to Judges-Deputes permanent, but not to judges natural, of whom in Tit. V.

Art. XI.—[A judge ought to stand clear of offence, and of suspicion of partiality.h ] No [judgea ] shall give his vote at any election; nor use any means, direct or indirect, to influence the votes of others.

§ 2.

Pay.

Art. I.—The expense of the salary of an [instituted judgea ] of the parish court shall be defrayed by the parish:

[Of a canton court, by the district:]

Of a district court, by the district:

[Of a department court, by the department:]

Of the metropolitan court, by the nation.

Art. II.—On the [ day] preceding the day of election, an auction shall be held before the directory of the administrative body of the territory charged with the expense of the salary, under the name of the Patriotic Auction: at which the candidates shall be at liberty to attend, in person or by proxy, in order to declare, each of them, what he is willing to give, if anything, to the common fund of the territory, in the event of his being elected to the office. And thereupon the office shall be put up by the president, each bidder being at liberty to advance as often as he thinks proper, in the manner of a common auction.

Art. III.—As soon as it appears that no candidate will make any farther advance, each shall give in an undertaking in writing, in which shall be specified what he binds himself to give, in the event of his being elected.

Art. IV.—At the same time each candidate shall give in an inventory of his estate, as well in possession as in expectancy, together with all charges thereupon, with an estimate of the clear value thereof in ready money; the whole being signed by the candidate himself, and verified by his oath.

Art. V.—At the same time each candidate shall give in a paper stating his pretensions, of what nature soever, on which he grounds his hopes of being chosen; such as his age, the time during which he has acted in the capacity of a man of law, in what branch of the profession, before what courts, and the like: and such paper shall also be signed by the candidate himself, and verified by his oath.

Art. VI.—The above inventory may either be open or sealed: if sealed, the declaration of its verity, concluding with the signature, shall be on the outside: and it shall be reserved unopened till the event of the election is declared; at which period, if he whose act it is should prove the successful candidate, it shall thereupon be broken open; if not, it shall be returned to him unopened.

Art. VII.—The above-mentioned undertakings and declarations shall forthwith be printed together on the same paper, and a copy given to every elector [NA] days before the election.

Art. VIII.—If, the election having fallen upon one of the bidders, he should fail in complying in any particular with the terms of his engagement, his right to the office shall thereupon cease; and upon a vacancy declared by the competent court, at the instance of the procurator syndic of the administrative body, a new election shall be decreed: but time may be allowed him for performing his engagement, or an equivalent accepted by the court on his application, the procurator syndic being heard on the other side.

Art. IX.—The penalty, in case of falsehood in a declaration given in as above, shall be, if the falsehood were wilful, forfeiture of the office, together with the purchase-money, if any were paid: if the falsehood happened through inadvertence coupled with temerity or negligence, a discretionary fine.

Art. X.—From the salary of every [judgea ] shall be deducted [25] per cent. upon the interest of the capital representing his private fortune; yet so as that the remainder shall not be less than [one fourth] of the whole; unless in as far as any farther deduction may have been comprised in the undertaking he has delivered in.

Art. XI.—In the case where, his salary not having undergone the utmost deduction of which it is thus susceptible, any accession happens to his fortune by succession, donation, or bequest, to the value of [12,000] livres or upwards, he shall, within [half a year] after effects to that amount have been received, give in a supplemental declaration of the particulars of such accession; and, upon an account settled with the officer who stands charged with the payment of his salary, a proportionable deduction shall take place, from the day when such supplemental declaration was given in.

Art. XII.—The contribution offered at the auction, may be either in ready money, or in any other shape; and in particular, it may be in the shape of a release of the whole, or any part of the appointed salary: and in this case, the deduction prescribed by Art. X. shall be understood to be included; but no offer shall be deemed valid, which would reduce the income of the candidate below the amount of the appointed salary.

Art. XIII.—On the day when the successful candidate is sworn in, and previous to his being sworn in, any member of the corporate assembly, before which he is sworn in, shall be at liberty to put to him all such questions as may tend to ascertain the truth and sufficiency of the several declarations he has given in: and whoever exercises the functions of procurator syndic, is specially charged with this duty, and responsible for the neglect of it.

Art. XIV.—That time and opportunity for scrutinizing the accuracy of the inventory above mentioned may not be wanting, the [judge electa ] shall not be sworn in till [NA] days after it has been broken open, nor till [NA] days after it has been published in [the newspaper most current in the place.]

Art. XV.—In case of amotion without forfeiture, the salary paid shall be the appointed salary, without deduction: and any contribution that has been given in consequence of the patriotic auction shall be refunded, but without interest.

Art. XVI.—In case of resignation, the contribution shall in like manner be refunded, but no salary continued.

§ 3.

Attendance.

When Injustice sleeps, Justice may do the same.

Art. I.—The [judgment-seati ] ought never to be empty, during any part of the juridical day, throughout the year: in an immediate court, never: in a court of appeal, never where there is any cause on the paper, ripe for hearing.

Art. II.—The juridical day shall be of [twelve] hours: viz. from [eight] to [eight,] allowing only [one] hour within that time, viz. between [two] and [three] for refreshment. This extends not to the judges termed Natural.

Art. III.—A [judge immediate,k ] when absent from the fixed judgment-seat upon out-duty (as upon a view or the examination of a sick person,) ought to take care that it be filled, if possible, by some [judgea ] depute permanent or occasional, on pain of being responsible for the failure.

Art. IV.—A [judge’sl ] salary shall be reckoned by the day, and paid him every [week] by [the paymaster.] It shall be paid him nowhere but upon the [judgment] seat; or, in case of sickness, in his own apartment: a day’s pay being deducted for every day of absence, otherwise than upon duty; except vacation-days which he is allowed to take, [thirty] in the course of the year, at his choice; provided that the [judgment] seat be not at any time left vacant.

Art. V.—The day’s pay thus to be received shall be a day’s pay of the appointed salary: the difference, if any, between that and the clear salary remaining after the contribution furnished according to § 2, shall be made up by quarterly advances, which the [judgea ] shall make on [the usual quarterdays] to [the paymaster:] nor shall he be reimbursed any deficiencies occasioned by unallowed days of absence.

Art. VI.—Declaration to be taken by every [judgea ] every time he receives his salary:—

I, A. J., solemnly declare, that since the last time of my receiving salary, I have not at any time, during juridical hours, been absent from the duty of my office, except during the following days, viz. [NA], nor absent from the judgment-seat, except the following days, when I was out upon duty, at the places, in the causes, and for the purposes following, viz. [NA].

Art. VII.—A copy of every such declaration, signed by the [judge,a ] shall, on that same day in which it was made, be hung up, in a conspicuous manner, near the judgment-seat, there to remain till the next quarterday.

Art. VIII.—A [judgea ] is to be understood to have been absent from duty on any day, if, in the course of that day, he has not sitten at least [one hour;] and if, during the rest of the day, he has not been within [an hour’s] call of the judgment-seat, except when out upon distant duty: word being left with [NA] where he was to be found.

Art. IX.—[Judgesb ] of immediate courts are also bound to go upon duty, in cases of necessity, at all hours, in manner hereinafter specified.

§ 4.

Oath of Office.

Art. I.—The following oath shall be taken by every [judgea ] upon his entrance into office. While pronouncing it, he shall stand up before the judgment-seat, in open court, with his left hand on his bosom, and his right lifted up to heaven:—

I, A. J., being raised by the choice of my fellow-citizens to the office of [NA], do solemnly promise and swear:

[Art. II.m —1. That so long as I continue in possession of my said office, I will, to the best of my ability, administer justice to all men alike, to high and to low, to rich and to poor, not suffering myself to be biassed by personal interest, by hope or fear, or by favour or aversion towards any individual or class of men or party in the state.]

Art. III.—2. That I will not endeavour to keep secret, but on the contrary study by all suitable means to render public, the proceedings belonging to my office, in all cases in which the law ordains them to be public.

Art. IV.—3. That I will keep secret, to the utmost of my power, the proceedings belonging to my office, in as far the law ordains them to be secret.

Art. V.—4. That I will not on any account, out of the regular course of justice, give ear to, but indignantly reprove, any application that may be made to me concerning any cause in contemplation of its depending or coming to depend before me, much less give any opinion or advice relative thereto: and that, should any such application be made to me in writing, I will forthwith produce and read the same in open court, although it should be contained in a private and confidential letter.

Art. VI.—5. That I will at no time accept any gift or favour that shall have been offered me, in the view either of influencing or recompensing my conduct on any particular occasion in the discharge of the functions of my office: and that, in case of my suspecting any favour to have been done or offered me with any such view, I will forthwith declare and make public my suspicion: nor will I knowingly and wittingly suffer any such offer or recompense to be made, on any such account, to any person dependent upon or connected with me; but that, on suspicion of any such offer or recompense, I will forthwith make public such my suspicion, together with the grounds thereof, and the names of all parties concerned.

Art. VII.—6. That I will not, on the occasion of any pecuniary or other bargain, directly or indirectly avail myself, or endeavour to avail myself, of the influence or authority of my station to obtain any advantage to myself or any other.

Art. VIII.—7. That I will not take any part whatsoever in any election; nor use any means, direct or indirect, to influence the vote of any other; excepting only the public statement of my pretensions according to law, on any election in which I shall myself be candidate.

Art. IX.—8. That I will not willingly absent myself from duty, except to the extent of the time allowed me by the law, or in case of unavoidable necessity, resulting from sickness or otherwise; nor then, without making the best provision in my power for keeping my place supplied.

Art. X.—9. That I will, as far as depends upon me, give to every cause that comes into my hands, the utmost dispatch that shall appear to me consistent with the purposes of justice: nor will In put off any cause, or give to any cause the priority over another, but for special reason publicly declared.

Art. XI.—10. That I will at no time, through impatience or otherwise, knowingly cause or permit justice to suffer by undue precipitation; and in particular, that I will not bestow less attention upon the cause of the poor than of the rich; considering that, where small rights are seen to be contemned, great ones will not be deemed secure; and that importance depends not upon nominal value, but upon the proportion of the matter in dispute to the circumstances, and its relation to the feelings of the parties.

Art. XII.—11. That I will not, through favour to those who profit by the expense of the administration of justice, conniveat, much less promote, any unnecessary expense; but on the contrary study, as much as in me lies, to confine such expense within the narrowest bounds compatible with the purposes of justice.

Art. XIII.—12. That I will not, through impatience, or favour to the professional advocate, show discountenance to him who pleads his own cause, or to him who pleads gratuitously the cause of his friend, but rather show indulgence and lend assistance to their weakness.

Art. XIV.—13. That I will, in all things touching the execution of my office, pay obedience to the law: and thato I will do my utmost to carry the same into execution, according to what shall appear to me to be the intent of the legislature for the time being; not presuming to set my own private will above the will of the legislature, even in such cases, if any, where the provisions of the law may appear to me inexpedient; saving onlyp the exercise of such discretionary suspensive power, if any, with which the legislature may have thought fit to entrust [me.q ]

Art. XV.—14. That I will not either make or revoke any appointment of a depute, permanent or occasional, with a view to favour or prejudice any suitor otherwise than according to justice, but for the common convenience of suitors, and only to the extent of the number which shall appear to me requisite to that end.

All these engagements I hold myself solemnly pledged to fulfil, by all the regard I owe either to the displeasure of Almighty God, or to the indignation and contempt of my fellow-citizens.

Art. XVI.—A copy of the above oath, printed in the largest type, and on one side only of the paper, with the signature of the [judgea ] at length to every clause, and at the end the date of the day when signed, shall be kept hung up in a conspicuous situation, near the [judgmentb ] seat, so long as he shall continue in office.

§ 5.

Deputes.

Art. I.—The duty of the permanent [judgea ] depute shall be to take the place of his principal, and with the same [powers,f ] whensoever the principal shall happen to be absent from duty, or preoccupied therein.

Art. II.—The [powerf ] of the [judgea ] depute permanent shall last as long as his principal continues in the same office, and until a vacancy in the office is filled up; unless the appointment be sooner revoked, which it may be at any time, or terminated in any of the ways in which the office of a judge principal may be vacated.

Art. III.—To the station of [judgea ] depute permanent, no emolument of any kind shall be annexed; except a habit of office to be worn while on duty, and a mark of honour to be worn at all times during his continuance in the station: and in rank he shall take place next his principal.

Art. IV.—A [judgea ] principal is civilly responsible for the acts of his deputes, permanent or occasional, having recourse to them for his indemnity: also criminally, in case of his concurring with, or barely conniving at, any behaviour known to him to be criminal on their part.

Art. V.—A [judgea ] depute permanent shall pronounce and sign the same oath as a [judgea ] principal, and in the same manner; excepting only the words [permanent or] in the 14th clause; and making the requisite change at the commencement relative to the style of office.

Art. VI.—A permanent [judgea ] depute is bound to the same attendance as his principal; except that he is allowed double the number of vacation days in the year (taking them only when his principal is upon duty,) and that he is not liable to be called to night-duty while his principal is in the way.

Art. VII.—Attached in like manner to the office of [judgea ] principal, shall be the power of appointing occasional [judgesb ] depute for the purpose of performing duty in any particular cause, or relative to any particular point in any particular cause.

Art. VIII.—To the function of occasional [judgea ] depute shall belong neither emolument nor permanent honour: but for distinction’s sake, he may wear, while on duty, a medallion, or other such mark of office.

Art. IX.—An occasional [judgea ] depute shall, previously to the first time of his taking upon him that function, pronounce and sign, in the presence of the judge who appoints him, [an oath the same as the above, mutatis mutandis:] and entry of his having done so, shall forthwith be made in the register-book of the court.

Art. X.—A permanent [judgea ] depute has in like manner, and under the same responsibility, power of appointing occasional [judgesb ] depute. But it is to be expected that he exercise it only in case of necessity, and for the reason that such appointment cannot be made by the [judgea ] principal: and such appointment is at any time revocable by the [judgea ] principal.

Art. XI.—As often as any act is done by or before a [judgea ] depute, either permanent or occasional, mention shall be made as well upon the face of the act, if written, as upon the register-book, by or before whom; and if in the instance of a [judgea ] depute occasional, by whom appointed.

Art. XII.—Care ought to be taken to avoid, as much as conveniently may be, the shifting of the same cause to different [judgesb ] unless when the points of which they respectively take cognizance, happen to be totally independent of each other: that [the judge who gives judgmentr ] may be as little as possible under the necessity of taking the grounds of his [opinions ] at second hand, from another man.

§ 6.

Responsibility.

Art. I.—The punishment of a [judgea ] for misbehaviour in relation to his office, may be to all or any of the effects following:—

1. Injunction to be more circumspect in future.

2. Suspension from office.

3. Deprivation.

4. Incapacitation for any office, or for certain offices.

5. Fine.

6. Imprisonment.

7. Obligation to make satisfaction, in the way of pecuniary compensation, or otherwise, to the party injured.

8. When the effect of the misbehaviour has been to produce death, or any other corporal suffering, on the part of any one, in the way of punishment, or otherwise; such offence, if accompanied with evil conscience,t [mauvaise foi,] shall be punished as if committed with the offender’s own hands.

Art. II.—Judges, pursuer-generals, defender-generals, and their respective deputies, being privy to any misbehaviour, accompanied with evil conscience, on the part of each other, and not informing in due time, are punishable, as for connivance.

TITLE IV.

OF JURISDICTION.

Art. I.—That shall be styled a man’s natural court, within the territory of which his ordinary and fixed abode is situated; that, his occasional court, within the territory of which he happens to be, for the time being: the defendant, for instance, at the instant he receives a summons, or is put under arrest.

Art. II.—Regularly all causes, as well penal as civil, belong to the defendant’s ordinary court: if he has more ordinary abodes than one, then to the courts corresponding to any one of such abodes, at the option of the pursuer.

Art. III.—But it may be dismissed in the state in which it is, at any time, from any one such court to any other, at the requisition of either party, upon consideration had of the mutual convenience of both.

Art. IV.—A cause may also be commenced in the defendant’s occasional court; subject in like manner, to be dismissed to his ordinary court.

Art. V.—But a cause relative to immovable property, may be heard and determined in the court of the subject-matter. Any such cause may be begun there; and if begun in the defendant’s court, or elsewhere, it may be removed from thence, by either of the parties, unless previously inhibited upon hearing before the judge. But although begun there, or removed thither, it may be dismissed, by the judge, to the defendant’s court, if he thinks proper, in consideration of mutual or preponderant convenience.

Art. VI.—A cause relative to specific property not immovable, shall be begun in the court of the defendant; but may be dismissed to the court of the subject-matter, upon consideration of mutual or preponderant convenience.

Art. VII.—A cause relative to a subject-matter situated in more jurisdictions than one, may be heard and determined in any one: and the decision of any one such court may bind the whole subject-matter; but it may be dismissed to any of the others, on consideration of mutual or preponderant convenience.

Any aggregate of different effects, comprised under, or referred to, by one and the same claim, are to be considered to this purpose, as forming one and the same subject-matter: for instance, the stock of a farm, situate within divers territories.

Art. VIII.—A cause may even be dismissed to the pursuer’s court, or to any foreign court, upon consideration of preponderant convenience: but the difference, in point of convenience, in this case ought to be considerable, and clearly established.

Art. IX.—In the estimation of comparative convenience, the pecuniary circumstances of the parties ought particularly to be taken into account.

Art. X.—A plaintiff, instead of carrying the cause before the proper court, whether of the defendant or of the subject-matter, may carry it before the court of any territory adjoining, so that the seat of such adjoining court be not farther distant than that of the proper one: but in so doing, he acts at the peril of costs, should the distance be found greater.

Art. XI.—A plaintiff shall be responsible, in costs and damages, as for vexation, if, without any convenience to himself, and merely with a view of putting his adversary, or any one else, to inconvenience, he commences a suit in, or removes it to, a court known to be inconvenient to them, even though the court be not improper: or, even with views of convenience, if the comparative convenience be deemed too slight on his side, to leave him any real hope of seeing the cause retained there.

Art. XII.—Where there are more plaintiffs than one, or more defendants than one, the convenience of every such party is to be taken into the account.

Art. XIII.—By consent of all parties, any civil cause may be carried on, in the first instance, before any immediate court whatever; nor shall it in that case be removed from thence but by like consent, or on account of very evident predominant convenience manifesting itself, since the giving of the consent.

Art. XIV.—But in such cases it behoves the judge to be upon his guard against causes collusively removed to a distant scene, for the purpose of prejudging the interest of a third person: and in such case, besides applying, should the case admit of it, the punishment appointed for this sort of fraudulent attempt, it behoves him, by suitable notices and publications, to render the success of it impracticable elsewhere.

Art. XV.—Causes, penal as well as civil, to which a French citizen is party, and in which the cause of action arose elsewhere than within the territory of France, belong regularly to the defendant’s courts: viz. to the courts of appeal, if judgment has already been given in any foreign court; otherwise, to the immediate courts: but in both cases subject to removal, on the ground of preponderate convenience.

Art. XVI.—A plaintiff, who, having commenced a suit in any court, commences another suit, relative to the same matter, in the court of another district, without leave obtained of the court first applied to, is responsible, as for vexation.

Art. XVII.—The judgment, order, and warrant of every court, shall be held good in the courts of every other territory, unless reversed in a court above, or pending the appeal for that purpose. Under that restriction, every court ought to lend its assistance to the execution of the order of every other.

Art. XVIII.—An order or warrant of a foreign court shall, when countersigned by a judge of the territory, receive the same obedience as if issued by him originally. It may even be obeyed without such counter-signature; and ought to be, rather than, on account of the delay occasioned by the application for such counter-signature, any failure of justice should ensue: unless the person whose obedience is called for, has reason to suspect the genuineness of it, or to know that the legality of it is disputed by the court of the territory in which such obedience is called for.

Art. XIX.—When a cause, or any incidental operation to be performed in the course of a cause, is brought before a judge, if he finds himself so circumstanced, in any respect, as to stand exposed to the action or influence of any cause of partiality, he ought forthwith to make known every such cause, except in the case hereinafter excepted (Art. XXII.) and decline acting accordingly: but if the party to whose prejudice alone such partiality, if it existed and operated, could redound, insists upon the judge’s taking cognizance notwithstanding, he may, and, rather than there should be any failure of justice, he is bound to do so.

Art. XX.—That no cause of partiality may be undisclosed, any questions tending to produce such disclosure may, at any time, be put to any judge, by or in behalf of any person interested: and to every such question, if pertinent in matter, and not disrespectful in manner, the judge is bound to make answer on the spot.

Art. XXI.—Examples of causes of partiality:—

1. Pecuniary interest of any kind, present or future, certain or contingent.

2. Relationship by blood, or alliance to any of the parties.

3. Intimate acquaintance.

4. Enmity, or litigation.

5. Relation of landlord or tenant.

6. Relation of debtor or creditor, if to an amount of sufficient importance to create any interest or dependence.

In accepting cognizance, or declining it, on such grounds, the judge ought to govern himself rather by the actual affection, than by the external cause.

Art. XXII.—And, forasmuch as there may be secret causes of partiality, which a man could not disclose without great pain and prejudice to himself, a judge may, on such consideration, decline jurisdiction, without cause assigned, whensoever it can be done without failure of justice; doing as much as in him lies, to save the parties from suffering any prejudice thereby.

Art. XXIII.—Examples:—

Where he, or a son, or other such near relation of his, has any secret design, declared, or not yet declared, of courting any woman in marriage; or soliciting preferment, or other favour, at the hands of any person, the same being party to the cause, or connected with one who is.

Art. XXIV.—In any such case he may, without blame, silently transfer the cognizance to a judge-depute, permanent or occasional; (or, if he be a judge-depute, to his principal:) but, if this cannot be done, he may pray the party’s excuse, on the general allegation of motives of delicacy, referring him to an unexceptionable judge of some adjoining territory, or in the case of a parish [or canton] court, to the district court above.

Art. XXV.—Although parties may, by consent, carry a cause before a court which is not, in any respect, a proper one, yet the judge is not bound, nor ought he to accept the cognizance of it, to the prejudice of the dispatch due to the suitors of his own territory.

Art. XXVI.—The following are the cases in any of which a court may be deemed a proper one, to the purpose of obliging the judge to take cognizance:—

If it be—

1. The court of any defendant, ordinary or occasional.

2. The ordinary court of any plaintiff.

3. A court nearer situated with respect to the abode of any of the parties than his own.

4. The court of the subject-matter.

5. The court of the cause of action; i. e. where the offence, whether public or private, was committed.

6. In case of contracts, the court of the territory where the contract was entered into.

7. A court adjoining to one from whence the cause has been dismissed, on the ground of an avowed cause of partiality on the part of the judge, or through motives of delicacy, as by Art. XXIV.

Art. XXVII.—A judge, though not bound to take cognizance of a cause for the purpose of definitive decision, is not the less bound to do any act which, to prevent failure of justice, may be necessary to be performed before the cause can be commenced in any proper court: such as the examination of a witness who is upon the point of departure; the arrestment of such witness if necessary; the examination or seizure of effects capable of supplying evidence; the seizure of effects for the purpose of insuring the responsibility of the defendant in case of conviction; and the like.*

Art. XXVIII.—Complaints of misbehaviour on the part of a judge in the execution of his office, and petitions for expedition on his part in a cause depending before him, shall be preferred only to the court of appeal to which his court is immediately subject. This extends to deputes permanent, as well as to principals.

Art. XXIX.—Other actions, as well criminal as civil, in which a judge is defendant, may be brought in an immediate court of any territory adjoining to his; but may be dismissed from thence to any other except his own, on the ground of preponderant convenience.

TITLE V.

OF THE PARISH COURT.

§ 1.

Of the Judges.

Art. I.—To the principal ecclesiastical minister of every parish shall belong, within the limits of his parish, all the powers of an immediate judge, under the name of the judge natural of that parish; unless where such authority shall have been superseded by the appointment of an instituted judge.

Art. II.—The district assembly may, under the controul of the department assembly, decree, with the consent of any parish, that such parish shall thereafter, instead of the natural, have an instituted judge; fixing a salary, which in that case the parish shall be bound to pay, for the maintenance of the judge.

Art. III.—Upon a vacancy in such office of instituted judge, the authority of the natural judge shall revive of course, and continue till the vacancy has been filled up.

Art. IV.—The power of appointing to the office of parish judge shall belong to the district assembly, subject to the approbation of the municipality of the parish; unless where the district assembly has transferred it altogether to the municipality, which it ought to do, wherever the population and opulence of the parish is such as to afford a sufficient security against an overbearing influence on the election in the hands of a small number of individuals.

Art. V.—In the same way may be appointed any additional number of Fellow-judges, upon the terms of fixing a competent permanent salary for every such judge. But no two judges shall take cognizance at the same time of the same point in the same cause.

Art. VI.—The district assembly, under the controul of the department assembly, may give the local field of jurisdiction of any parish court an extent greater or less in any degree than that of the parish; and to that purpose may new-model the local divisions of any part of their territory, in what manner they deem most convenient; regard being had to extent, population, and the pecuniary faculties of the inhabitants.

Art. VII.—An instituted parish judge shall hold his office for life, unless divested of it in one or other of the following ways, viz.—

1. Resignation.

2. Forfeiture judicially pronounced.

3. Amotion by the suffrages of a majority of the whole number of active citizens belonging to the parochial territory, confirmed by the district assembly.

4. Amotion by the department assembly.

Art. VIII.—Amotion, without forfeiture, shall not deprive him of his salary; but may deprive him, if so ordered, of the faculty of being re-elected into the same seat.

Art. IX.—A cause commenced in a parish court, whether it be before the natural or an instituted judge, may at any time be evoked by the immediate district court, at the instance of any party, but upon consideration had of the mutual convenience of all parties. But the judge of the district court, before he issues the order of evocation, or puts a party to the trouble of showing cause against it, should assure himself, as far as may be done by the examination of the party applying for it, that the power of granting it be not abused to the purpose of vexation, should that appear afterwards to have been the object, the party applying for such order shall be responsible in costs and damages.

Art. X.—Care ought to be taken, on the other hand, in penal causes, by the pursuer-general of the district, that, through simplicity or criminal connivance on the part of a judge of a parish court, the powers of such court be not abused to the purpose of acquitting an offender, by suppression or partial examination of evidence, or to let him off with less punishment than is due; particularly in cases of offences merely public, where, there being no person specially injured, there is no person specially interested to appeal: and to this end he may, without waiting to appeal, evoke the cause to the immediate district court at any time.

Art. XI.—The judge of a parish court may and ought to remit the cause of his own accord to the district court, wheresoever it appears to him that the purposes of justice would be better answered by his remitting it than by his retaining it.

Examples:—

1. Wherever it seems unlikely that the judgment of the parish court, whichever way given, would be acquiesced in: as may happen from the intricacy of the inquiry, or the magnitude of the subject in dispute; especially in a court where there is no other than the natural judge.

2. Where the cause, by reason of its complexity, is of a nature to take up more time than could be spared by the judge from his other official occupations; at the same time that the territory affords no person competent to serve in that instance in quality of judge-depute.

Art. XII.—Examples of causes apt to be of a nature particularly complex:—

1. Causes relative to matters of account; especially if the account be mutual, and the items numerous. Every disputed article is in fact the subject of a distinct cause.

2. Bills for work done by artists or others, whose work it is difficult to judge of; such as architects, bailiffs in husbandry, stewards, attornies, and other agents, &c.

3. Causes relative to mercantile accounts.

4. Causes relative to the division of the mass of property left by a person deceased.

5. Causes relative to the division of insolvents’ estates.

6. Causes relative to the division of common lands.

Art. XIII.—But notwithstanding such remittal, the judge, rather than suffer any evidence to be lost, ought to collect and record it, if thereto required on either side.

§ 2.

Place of Judicature.

Art. I.—In a parish where there is no instituted judge, the ordinary place of judicature shall be the parish church; in which the natural judge or his deputy shall sit, to transact whatsoever judicial business presents itself, every time of divine service, in the face of the congregation, immediately after the service.

Art. II.—Such natural judge, or his deputy, may also do judicial business in his own house: but, for the sake of publicity, in all cases where secresy is not required, he ought rather to prefer the church, if the business can wait without prejudice to the next time of divine service.

Art. III.—In penal causes, other than secret ones, definitive judgment shall never be pronounced by the natural judge elsewhere than in church; though measures in the nature of execution may be taken provisionally, to prevent failure of justice.

Art. IV.—Causes which, being commenced in, or brought to church at a time of divine service, cannot conveniently be finished at that time, may be adjourned, on notice then publicly given, to a time nearer than the next time of divine service.

Art. V.—Every Sunday, before the conclusion of divine service, the minister shall read a list of all the causes (not secret) in which any judicial business has been done in the course of the week, with a brief intimation of the nature of the business done in each.

Art. VI.—Any person who conceives himself to have reason to complain of anything done, or omitted to be done, in the way of judicial business, by such natural judge, out of church, may, on the next Sunday after such ground of complaint comes to his knowledge, or, if on that day prevented without his default, on the first Sunday in which it is in his power, state such ground of complaint to the judge, in the face of the congregation: on which occasion any questions relative thereto may be put to him by or in behalf of the persons interested: and to every such question, if pertinent in matter, and not disrespectful in manner, the judge is bound to make answer on the spot; and, if thereto required, to set down in writing each question, with his answer, or refusal to answer, proceeding in the same manner as in the making up of a record [procès verbal.]

Art. VII.—No creation shall be made, as by § 1, Art. II., of an office of parish judge, without making provision at the same time for a justice-hall, with a dwelling-house for the judge. And until such hall and dwelling-house are built, or otherwise provided, the same use shall be made of the church, for the purposes of justice, by the instituted, as might be by the natural judge.

Art. VIII.—On Sundays, instead of the justice-hall, the court shall be holden in church, immediately after divine service; and in the case where the jurisdiction of a parish court has been made to extend over divers parishes, then alternately in the churches respectively belonging to those parishes.

Art. IX.—Minutes of the judicial business done in that parish since the last time of sitting there (such minutes being drawn up upon the plan mentioned in Art. V.) shall then also be read by the minister before the conclusion of divine service, having been furnished him for that purpose by the judge.

TITLE VI.

OF THE IMMEDIATE DISTRICT COURT.

Art. I.—To the immediate district court belongs all immediate judicial power (that of the tribunals of exception excepted) within the territorial limits of the district, in concurrence with the several parish [or canton] courts within the district.

For other matters touching its jurisdiction, see Tit. II. III. IV. and V.

Art. II.—To the judge of the immediate district court, the district assembly, under the controul of the department assembly, may add as many fellow-judges as it thinks proper, with the same powers, rank, and salary; provided that no more than one judge shall act at the same time, on the same point, in the same cause.

Art. III.—The salary of a judge of an immediate district court shall be [ NA ] livres a-year.

Art. IV.—In the following cases there shall regularly be no appeal from the district court of appeal to any other court:—

1. Embezzlement.

2. Theft.

3. Defraudment, except where operated in the way of forgery.

4. Robbery.

5. The attempt or preparation to commit an offence of any of the above kinds.

6. Homicide, or incendiarism, in prosecution of the design of committing an offence of any of the above kinds.

Art. V.—Appeal, however, shall go, in any of the above cases, to the metropolitan court, upon a requisition made for that purpose, and signed by any of the following sets of persons:—

1. One [fourth] part of the whole number of the members of the department assembly.

2. One [fourth] part of the whole number of the members of the district assembly.

3. One [fourth] part of the whole number of the members of the community of the town where the district court of appeal has its seat.

4. One [tenth] part of the whole number of the active citizens of the town, in a town of 4000 inhabitants, one twentieth in one of 8000 inhabitants, one thirtieth in one of 12,000 inhabitants, and so on. [See Décret sur les Municip., Art. V.]

Art. VI.—To the end that due time may not be wanting for the collection of signatures, [two] days at least, both exclusive, shall intervene, in every case, between the day of sentence and the day of execution: within which interval, if three members of any of the administrative bodies, or ten of the active citizens, above mentioned, concur in signing and presenting a preliminary requisition to that purpose, [seven] such entire days, reckoning from the day of presentation, shall be given, for collecting signatures for a definitive requisition.

Art. VII.—But, although appeal be excluded, petitions for expedition may, at any time, and in all causes, be preferred from this court to the court next above, as well as complaints for misbehaviour on the part of the judge.

Art. VIII.—In civil cases, on a judgment of the district court of appeal, execution shall have place provisionally, notwithstanding the appeal; security being exacted, and the other precautions taken which are prescribed in the code of procedure, to prevent the happening of irreparable damage.

Art. IX.—So in penal cases, where the punishment decreed is no other than pecuniary; as likewise with regard to such part of the punishment, if any, as is not contested by the appeal.*

Art. X.—If, for want of such precaution, or through insufficiency of the precaution, irreparable damage should actually ensue, the least punishment to which the judge can be sentenced is, in case of evil intention [mauvaise foi,] forfeiture and incapacitation, together with the obligation of making such pecuniary satisfaction as is in his power: in the case of culpable negligence, or temerity, injunction to be more circumspect, together with a fine applicable in part of satisfaction.

Art. XI.—Examples of cases of irreparable damage:—

1. Loss of female honour, by delivery into the power of a false husband, father, guardian, or master.

2. Loss, destruction, or damage of effects possessed of a value of affection, such as trees, serving for shelter or ornament; favourite animals; uncopied manuscripts; family pictures; matchless articles of natural history, antiquities, &c.

Art. XII.—In civil cases, and in penal cases, where the punishment decreed is no other than pecuniary, no appeal shall be suffered to go from the district court of appeal till the appellant, if not a pauper, has deposited in the hands of the public advocate, on the other side, [48] livres; which sum shall be forfeited, over and above costs, if the decree of the court above is unfavourable to the appeal, unless the judge of the court above enters upon the instrument of appeal a certificate of reasonable cause.

Art. XIII.—Nor although the defendant be a pauper, unless, previously to the appeal, his advocate-general at the court appealed from shall have entered a like certificate.

Art. XIV.—But if he can find any one to advance the deposit, as likewise any responsible person to be his security for the costs, the appeal shall go, without any such certificate. And for this purpose, two full days shall be allowed him, between the signing of judgment and the execution, saving all precautions necessary to prevent the execution from being eluded.

Art. XV.—Deposit-money thus forfeited shall go to [the paymaster of the district] to the use of the district, and be comprised in the public advocate’s quarterly account with [the paymaster,] according to Tit. XIV.

TITLE VII.

OF THE DISTRICT COURT OF APPEAL.

Art. I.—To the district court of appeal belongs the cognizance of all causes (those belonging to the tribunals of exception excepted) in the way of appeal, as well from the immediate district court as from the several parish [of canton] courts within the district.

For other matters touching its jurisdiction, see Tit. II. III. IV. and V.

Art. II.—To the judge of the district court of appeal may be added fellow-judges, in like manner as to the judge of the immediate district court, according to Tit. VI.

Art. III.—The salary of a judge of a district court of appeal shall be [NA] livres a-year.

TITLE VIII.

OF THE DEPARTMENT COURT.

Art. I.—To the department court belongs the cognizance of all causes in the way of appeal from the district court of appeal; or of complaint for misbehaviour on the part of the judge, or of petition for expedition; but of no cause in the first instance.

For other matters touching its jurisdiction, see Tit. II. III. IV. and V.

Art. II.—To the judge of the department court, the department assembly may add as many fellow-judges as it thinks proper, with the same powers, rank, and salary: provided that no more than one judge shall act at the same time, on the same point of the same cause.

Art. III.—The salary of a judge of a department court shall be [NA] livres.

TITLE IX.

OF THE METROPOLITAN COURT.

Art. I.—The judges of the metropolitan court shall be elected by the national assembly. No vacancy shall be filled but out of the rank of judges next below.

Art. II.—A judge of the metropolitan court shall hold his office for life, unless vacated in one or other of the following ways:

1. Resignation.

2. Forfeiture judicially pronounced.

3. A motion by a majority of all the members entitled to vote in the national assembly.

4. A motion by a majority of all the electors and members entitled to vote at the last preceding election, general or particular, for the choice of a judge of the metropolitan court, or of a member of the national assembly.

Art. III.—By a motion without forfeiture, a metropolitan judge loses his judicial rank, but not his salary. He also loses his capacity of being re-elected during the continuance of the same legislature.

For other matters touching its jurisdiction, see Tit. II. III. IV. and V.

Art. IV.—The salary of a judge of the metropolitan court shall be [NA] livres.

Art. V.—To the metropolitan court shall belong [NA] judges, with equal power, rank, and salary: provided that no more than one judge shall act at the same time, on the same point, in the same cause. But as many as happen at any time to be unemployed, may, and ought to sit as assessors without vote.

Art. VI.—To the metropolitan court belongs the cognizance of all causes not particularly excepted, in the way of appeal from the department court [or, if no department courts, from the district courts of appeal.]

Also complaints for misbehaviour, and petitions for expedition, even in such cases as are excluded from appeal.

Art. VII.—Business, as it comes in, shall be distributed among the several judges by rotation.

Art. VIII.—From the decree of a judge of the metropolitan court, neither can any appeal, nor any petition for expedition, be preferred, without being accompanied with a complaint of misbehaviour on the part of the judge: nor can any order for expedition be issued to him, nor any change be made in his decree, without censure passed on him at the same time.

TITLE X.

NATIONAL ASSEMBLY COURT.

Art. I.—Complaint against a judge of the metropolitan court for misbehaviour cannot be made anywhere but in the national assembly, nor there unless signed by [six] members.

Art. II.—If received by the assembly, it shall appoint two committees, one to try and report, the other to prosecute.

Art. III.—Such trial shall be conducted, from beginning to end, with open doors, and with the utmost possible degree of publicity.

Art. IV.—No criminal accusation shall be preferred in the national assembly against any other person whatever than a judge of the metropolitan court, except for offences committed in face of the assembly.

TITLE XI.

OF PURSUER-GENERALS.

Art. I.u —The functions of a pursuer-general of an immediate court shall be, in civil matters—

1. To reclaim the execution of all laws in the execution of which no individual has any special interest, and of those in the execution of which the nation has a special interest of its own, superadded to that of individuals.

2. u To act on behalf of the king in his individual capacity, as well in the character of defendant as that of plaintiff.

3. To act on behalf of every [plaintiffv ] who, through poverty and want of friends, is unable to engage any other advocate.

4. To obviate any prejudice he sees likely to result to justice from any oversight or unskilfulness on the part of a [plaintiffv ] who pleads his own cause, or on the part of his advocate, gratuitous or professional.

Art. II.—In penal matters—

1. To superintend the proceedings of every private prosecutor; to assist him, in case of oversight or unskilfulness; and to watch over him, and prevent collusion with the defendant.

2. To reclaim the execution of all penal laws, by performing the functions of prosecutor where no private prosecutor has first presented himself, and in the cases, if any, where individuals are not admitted to prosecute.

Art. III.—In cases where the administrative body of the territory for which he serves, is empowered to act in the character of pursuer by the hands of its procurator-syndic, and the pursuer-general is not engaged by his office in the other side, he has concurrent authority with such procurator-syndic, each cause belonging to that one of them who is first seized of it. But, to prevent collusion or remissness, each of them has a right to receive communication of all such business carried on by the other.

Art. IV.—Where a [pursuerv ] whose interests a [pursuer-generalw ] has espoused, happens to be made [defendantx ] in a cross cause growing out of that in which he was [pursuer,v ] the [pursuer-general,w ] and not the [defender-general,y ] shall take in charge the interests of such party in such derivative cause.

Art. V.—In a court of appeal, the client of the [pursuer-generalw ] shall be the party who was the client of the [pursuer-generalw ] of the immediate court in the original cause.

Art. VI.—Clauses in the oath of office to be taken by the pursuer-generals, in the room of clause I. in the oath appointed to be taken by judges:—

1. That I will, at all times, be vigilant in looking out for, forward in entering upon, and faithful in executing, all such business as the law has given in charge; not suffering myself to be turned aside from the pursuit or the performance of it, by indolence, or by interest, by hope or by fear, by affection or by enmity towards any individual, or class of men, or party, in the state.

Art. VII.—3. That in my zeal on behalf of the cause I have in charge, I will not seek to serve it at the expense of truth or justice. I will not use any endeavours to cause to be received as true, any fact which I do not believe to be true; nor as just, any conclusion which I do not believe to be just; nor my persuasion of the truth of any fact, or the justice of any conclusion, as stronger than it really is: nor will I seek to put upon the conduct of any man, any colouring other than what I believe to be true; nor will I exercise partiality in favour of the party whose interest I espouse, any otherwise than by doing such acts as justice requires to be done, and giving such counsel as justice requires to be given, on his behalf, and by applying my faculties to the discovering and presenting of such considerations as make in favour of his cause, in preference to such as make against it.

☞ For the provisions relative to pursuer-generals, see Tit. III. Of Judges.

TITLE XII.

OF DEFENDER-GENERALS.

Art. I.—The functions of a defender-general of an immediate court shall be, in matters civil as well as penal—

1. To act on behalf of every defendant who, through poverty and want of friends, is unable to engage any other advocate.

2. To obviate any prejudice he sees likely to result to justice, from any oversight or unskilfulness on the part of a defendant who pleads his own cause, or on the part of his private advocate, gratuitous or professional.

Art. II.—To act on behalf of the administrative body of the territory, for which he serves, in cases where the pursuer-general is engaged on the other side. But this in concurrence with the procurator-syndic of that body, in the same manner as the pursuer-general would have had to act.

☞ For the other provisions relative to defender-generals, see Tit. III. Of Judges, and Tit. XI. Of Pursuer-Generals.

TITLE XIII.

OF SECRET CAUSES.*

Art. I.—In certain causes the proceedings shall be secret throughout, except in the courts hereinafter mentioned. These are—

I. Where secresy is necessary to the peace or honour of families, by reason of the dishonour, or other uneasiness, which might ensue, if the disagreements and weaknesses, and other unprosperous circumstances of their members, were to be divulged to the world at large.

On this ground, the following causes are to be classed under the head of secret causes:—

1. Generally all causes in which near relations are concerned against each other.

2. Also causes betwixt guardian and ward, in as far as the propriety of the conduct of the ward comes in question.

Art. II.—Under the denomination of near relations are to be comprehended, for this purpose, persons related to an individual in any of the following degrees, by blood or alliance; viz.

1. Wife, or husband.

2. Descendants.

3. Father, mother, and other relations in the descending line.

4. Brethren and sisters, of the whole or half blood, and their descendants.

5. Uncles and aunts, of the whole or half blood, in any degree.

Art. III.—To this class belong, in a more especial manner, causes of the following nature:—

1. Causes between husband and wife, for disobedience, extravagance, hard treatment, adultery, or impotence.

2. Causes between parent and child for extravagance, undutifulness, idleness, theft, embezzlement, defraudment, indecorum, on one side; or hard treatment, or neglect of education, improper education, or exposal of chastity, on the other.

3. Prosecutions for incest; and causes in the course of which incest may come to be proved, or to be attempted to be proved.

4. Causes relative to the pregnancy or delivery of unmarried women, and the discovery of the father of the child.

Art. IV.—But the secresy shall not be carried beyond the occasion; insomuch that, in relation to any point in respect to which it may be clear that neither the honour nor the peace of the parties litigant, or any of them, can be affected by the publicity of the proceedings, the same publicity shall be observed as in other cases.

Such may be, for example,

1. Any mere question of law relative to a family settlement, or a will, or a share in the effects of an intestate.

2. Any question of fact in any such cause not affecting the moral character of the party, or relative to the conduct of some stranger.

Art. V.—II. Where secresy is dictated by the regard due to decency. To this class belong such causes as are covered with the veil of secresy, in order to avoid wounding or enfeebling the sentiment of modesty, as well on the part of the auditors as the persons concerned, viz.

Causes, as well penal as civil, relative to any irregularities of the venereal appetite; including several of those mentioned under the former head.

Art. VI.—In causes appointed to be kept secret for the peace or honour of families, the secret mode of proceeding shall not be observed unless on the requisition of some one at least of the parties.

Art. VII.—Causes appointed to be kept secret for the sake of decency, shall be kept so although the parties were all of them to desire the contrary.

Art. VIII.—The seal of secresy, having been once affixed, shall not be taken off, unless in the cases mentioned in Art. IV. until after judgment in the last instance: nor then, unless some one of the parties demands it; alleging for the ground of his demand, partiality on the part of the judges, or some one of them, through whose hands it has passed. The cause shall in that case be re-heard publicly before a judge of equal rank, to be named by the supreme court; and if such charge of partiality shall have been deemed rash or malicious, the offender shall suffer as well for the wound given to the peace or honour of the family, as for the calumny against the judge.

Art. IX.—III. In certain causes, secresy shall be observed at the outset, to prevent falsehood from gaining instruction. These are—

1. All penal causes admitting of corporal punishment, afflictive or ignominious, or imprisonment, or banishment for any longer term than a year.

2. All causes, civil as well as penal, upon special and satisfactory reason given for apprehending a confederacy in falsehood.

In the latter class of causes, the examination of each examinant, whether party or witness, may, and in the former shall, of course, be performed in secret; and such secret examination may even be repeated, so long as it is thought proper by the judge to examine them separately: but judgment shall never be given until the minutes of secret examination have been read in public, the examinants re-examined in public, with liberty to object to the verity of the minutes, and confrontation, where proper and possible, performed, and parties and advocates on both sides heard in argument.

Art. X.—Out of regard to pecuniary reputation, certain inquiries shall, at the requisition of any party, be made in the secret mode, in the course of whatever cause they come to be made. These are—

1. Inquiries made relative to the pecuniary circumstances of both or either of the parties, for the purpose of awarding satisfaction in case of an offence other than infamous.

2. Inquiries made, in the same view, relative to the circumstances of the party injured, in case of an infamous offence.

3. Inquiries made, in cases of debt, into the pecuniary circumstances of either party, for the purpose of ascertaining whether any and what respite shall be granted to the debtor.

Art. XI.—Present at all secret business shall be a pursuer-general and a defender-general; and, if necessary, a secretary of the court, to take the minutes, sworn to secresy in like manner as the magistrates above mentioned. [See Tit. III. § 4.]

Art. XII.—For all secret business a particular register-book shall be kept under the name of the secret register-book.

Art. XIII.—Secret business, unless in case of out-door duty, shall be transacted in the judge’s chamber; the adjournment being performed only for the moment in incidental inquiries, and the auditory left sitting in the public place of justice.

TITLE XIV.

PAUPERS.

Art. I.—The judge, if upon report by the pursuer-general or the defender-general, as the case is, it shall appear to him that, for the rendering of justice in any cause, certain expenses are necessary on the part of either of the parties, who is unable to defray them, shall draw upon [the paymaster of the territory] in favour of such advocate, to the amount of such expense; and so from time to time, as often as there shall be occasion, during the continuance of the cause.

Art. II.—In such draught shall be specified a particular of all the several purposes for which the money shall be deemed necessary by computation: and it shall be signed by the public advocate of the pauper, as well as by the judge.

Art. III.—[Four] times in every year [viz. on the quarter-day in each quarter,] the public advocates of the territory shall each deliver in to [the paymaster] an account of the disbursements of all monies so drawn for and received, distinguishing under the head of each cause, the monies received and disbursed on account of that cause; and stating each item of disbursement, according to the time on which, and the particular service for which it was made: and shall, at the time of delivering in such account, refund the whole of the balance which the account admits to be in their hands.

Art. IV.—If the adversary of the pauper on whose account money has been drawn for, as above, should be a solvent person, and it should be thought fit, by the judge, to charge him with costs, the amount shall be paid to the pauper’s public advocate, and by him refunded to the [paymaster of the territory] at the next periodical time of settling their accounts.

TITLE XV.

OF TRIAL BY JURY.

Art. I.—Trial by jury shall be awarded no otherwise, than upon requisition made by some one of the sets of persons, at whose requisition appeal goes, according to Tit. VI. from the district court of appeal to the metropolitan court, in the cases not regularly appealable: nor shall requisition be made for that purpose, until the judgment of the metropolitan court has been sent down to the immediate district court, where execution, if awarded, is to be performed.

Art. II.—In the following cases alone, requisition for such purpose may be made:—

1. Where the judgment of the metropolitan court imports sentence of death, or indelible corporal punishment, or afflictive corporal punishment, or ignominious corporal punishment, or imprisonment, or banishment from the kingdom for a longer term than a year.

2. When the decision of the metropolitan court, respecting the principal question of fact, is opposite to the decisions of both the courts below.

Art. III.—In all cases where such requisition is admitted, the judgment of the metropolitan court, after having been publicly read in the immediate court, by which execution is to be awarded, shall be hung up, in conspicuous characters, in a particular part of the court appropriated to that purpose: and, to give time for the collection of signatures, [two] days, both exclusive, shall intervene in such case, between the hanging up of such judgment and the execution of the sentence, for a preliminary requisition, as according to Tit. VI.; and [seven] entire days more, reckoning from the time of presentation, for a definitive requisition.

Art. IV.—Upon a rehearing thus laid before a jury, all witnesses ought regularly to be re-examined: but as it may happen that, in a cause ever so strongly contested, there may be certain points, the evidence respecting which may appear to every one incontestible; and that the abode of the witnesses, relative to those points, may be in foreign parts, or very distant parts of the kingdom; the persons requiring may, in their requisition, distinguish such witnesses from the rest: in which case, the reading of the minutes of what passed on the examination of such witnesses at the former trial, shall stand in the place of their re-examination. And it is the duty of the judge to point out to the subscribers, when attending him with the requisition, all witnesses so circumstanced.

Art. V.—The manner of striking a jury shall be as follows:—

Forty-two persons shall be taken, by lot, out of the list of the active citizens dwelling in the town, or in any parish of which the church is not more than one great league distant from the town-house: the lottery being drawn by [the keeper of the list,] in the presence of both parties, or their representatives. Of these forty-two, the pursuer and the defendant shall each strike off twelve: the remaining eighteen shall be bound to attend: of those who attend, an equal number shall again be stricken off by the parties (if there remain an odd one, that odd one by the judge,) till the number be reduced to twelve; these twelve shall sit upon the trial.

Art. VI.—The judge to try the cause shall be a judge of appeal of some one of the districts contiguous to that by the immediate court whereof the sentence would have been to be executed: the choice to be determined by a lottery, drawn in presence of the parties, or their representatives, by the judge of such immediate court: provided that the judge so chosen may sit by deputy, if he thinks proper.

Art. VII.—The punishment of a juror, for non-attendance, shall be a fine of [12] livres: and if the cause should be delayed for want of a sufficient number, the absentees shall, amongst them, be chargeable with the costs occasioned by such delay.

Art. VIII.—To prevent such delay, the number deficient may be supplied amongst the bystanders, to be named upon the spot, by the judge; and each person so named, if possessed of the qualifications of an active citizen, shall, unless objected to by either party, for specific and sufficient cause, be forthwith aggregated to such of the jurymen as appear, until the full number be completed.

Art. IX.—Persons who have once served on a jury, or attended for that purpose, shall stand exempted from taking their chance a second time, until the number remaining liable shall be reduced below eighty-five.

Art. X.—When the evidence has been gone through, the arguments heard, and the judge’s charge delivered, balloting-balls shall be delivered to the jury, three to each: one black one, to denote conviction; one white, to denote acquittal; and the one half black and half white, to denote uncertainty. To give their votes, each shall secretly deposit, in one common box, provided for that purpose, the ball expressive of the state of his opinion, returning the two others, with equal secresy, into the common box, or bag, in which they were brought.

The defendant shall stand acquitted, if more white balls than one are found in the voting-box, or if there be not so many as seven black ones.

Art. XI.—If in the course of this rehearing any fresh matter comes out, tending to aggravate or extenuate the offence, the judge, in case of conviction, may vary the punishment accordingly: but if not, it is expected of him that he adhere to the sentence pronounced by the metropolitan court.

Art. XII.—At the trial, either party may object to any juryman, on the ground of partiality: and such objection shall be allowed or disallowed by the judge, according as, upon due examination, he finds reasonable. But every such objection shall be made, before the parties are admitted to strike off jurors, without cause assigned: nor shall either party be admitted to object to any juror, after the numbers have been reduced to twelve, unless he show, to the satisfaction of the judge, that good cause of objection, on his part, lay to all those whom he struck off, out of the whole number of forty-two, at the time of the drawing of the lottery.

Art. XIII.—Causes of partiality to warrant the challenging of a juror, may be any of those specified in Tit. IV., to which may be added, the case where there is reason to think that the juror challenged is, by reason of some party affection, prejudiced against the challenger. But the allowing or disallowing the challenge rests, in all cases, upon the discretion of the judge, determining upon the party’s own examination, upon oath, and any other evidence that happens to be forthcoming upon the spot.

Art. XIV.—The metropolitan court may, if it thinks proper, order that, in the event of a requisition made for a jury, the minutes of the former trial, as well as of the proceedings in the appeals, shall be printed, at the expense, and sold for the account, of the district where the trial will be: in that case, the trial before the jury shall not come on till the minutes above mentioned have been printed, and a copy delivered to each of the eighteen jurymen remaining after the lottery has been drawn, and the jury reduced to that number, from forty-two, as by Art. V.

The jury, if, upon comparison of the evidence upon the trial before them with the evidence on the former trials, they should deem the requisition of a jury to have been frivolous, and made without reasonable cause, may, if they think fit, decree that the loss, if any, upon the publication of the minutes above mentioned, shall be borne jointly by the persons by whom the requisition was signed.

BENTHAM’S DRAUGHT

FOR THE ORGANIZATION OF JUDICIAL ESTABLISHMENTS, COMPARED WITH THAT OF THE NATIONAL ASSEMBLY, WITH A COMMENTARY ON THE SAME.

CHAPTER I.

Tit. I.—

Of Courts of Justice, and of Judges in general.*

New Draught.—Art. I. The fountain of justice is the nation, through the channel of the legislature. Justice shall not be administered in the name of the King, or any single person. (1)

Committee’s Draught.—Art. I. Justice shall be administered in the name of the King. No individual subject, no body-corporate, can have the right of causing it to be rendered in their names. (a)

Observations.—(1) Justice to be administered in the king’s name?—Why so? why in the name of any one? What is the meaning of administering justice in this or that person’s name? Whatever is done in the way of justice, is done under the authority of some judge, either immediately by himself, or by some person under his controul. In this way, as in every other, whatever act is done by any man ought to bear the name of him who does it, that the title it has to obedience may be exactly known, and that he whose act it is may be responsible for the consequences. The introduction of the name of any person other than the judge, in acts expressive of the will or opinion of a judge, is of evil example, and tends to inculcate false and mischievous conceptions. The king’s name ought least of all to stand as an exception to this rule: if the king’s will is the cause of rendering justice, the inference is, that the king’s will ought to be the guide in rendering it. To what purpose, then, begin a body of laws with a figure of speech, which has no precise meaning, which has no use, and which, if it had any effect, would have a mischievous one?

The idea of the king’s being, as the lawyers term it, the fountain of justice, is a remnant of feudal barbarism; a branch of that poisonous tree which the National Assembly have already, to their immortal honour, rooted up.*

Under that system, that justice should be administered in the king’s name was equally natural and proper:—Why? because under that system it used actually to be administered by him: under that system he used actually to sit as judge. It was equally natural and necessary he should do so: he of all men stood the best chance, though a precarious one it often was, of seeing his decrees respected: he, whose standard was followed in time of war, was the only man whose voice would be listened to in time of peace. In that short interval, justice was his great employment. Legislation there was scarce any: foresight, leisure, intelligence, power, every requisite for it, was wanting. Peace was kept, government was carried on, as occasion started, in the ex post facto mode of judiciary decrees. Administration there was next to none: no public purse: towns without government, except that of masters over slaves; no standing army; the idea of colonies and of a navy equally unknown; there was next to nothing to administrate. The king was maintained, and a considerable part of the small expense of government defrayed, out of the king’s private estate.

As the business of legislation and administration increased, not to mention the more important business of luxury and pleasure, the king withdrew himself little by little from the judgment-seat: first, judges were called in to his assistance: by degrees he left them to sit and act by themselves, with liberty to make use of his name. In that state of things, there was a use and propriety in introducing the king’s name into the proceedings of courts of justice. At this time of day, were a king to take a fancy to resume his long-abandoned station on the judgment-seat, would either Frenchmen or Englishmen permit it? They know better. Court is the region of favour: the very air of it is pestiferous to justice. Then why give the people to understand that the king is judge, when he is no such thing? Leave the rattle of fiction to such children in legislation as our lawyers. You, who to the virtue of youth, add the intelligence of manhood, what use can such toys be of to you?

If, for the sake of dignity, you wish at any time, in the language of your solemn acts, to throw a sort of veil over the personality of the judge, a better cannot be found than what all nations possess in the abstract term Justice: instead of De par le Roi, say De par la Justice.

The king, it will be said on the other side, is the executive power: it is in his name, therefore, that the decrees of justice ought to be executed; at least, if not originally promulgated. This comes of old confused systems and ill-imagined appellatives. The king is not, nor ever can be, in any proper sense of the word execution, the executive power: the power of the nation, in as far as it is employed in the execution of the decrees of judges against the opponents of justice, is not, ought not to be, cannot be, in the king’s hand. It must be in the hands of the judges themselves, each acting within the sphere of his jurisdiction, and under the controul of his superior, up to the supreme court of judicature, which acts under no other controul than that of the representatives of the nation. Suppose, in a settled state of things, a man ordered into custody in a regular way by a court of justice at Antibes or Perpignan, and rescued by a mob. Is justice to be at a stand till information has been transmitted to the king at Paris, and orders received from him for a party of militia or regulars to assist in the recapture? The king of England is, at this moment, a despot in comparison of the king of France; yet even the king of England is not to this purpose, nor to any purpose but that of systematic language, the executive magistrate. Every man almost who bears the name of a judge, as well as several who do not, may command for this purpose the whole power of the country within the limits of his jurisdiction. The chief-justice of England commands to this purpose the power of all England: citizens, militia, regulars, everything; even navy, I suppose, if there were occasion: the king cannot to this purpose command a single man. Charles II. ordered a man into custody, for what, had the order been issued by a judge, would have been deemed good cause: the order was adjudged illegal because it was the king’s. If an order signed by the king of England were to be delivered to a goaler anywhere to release a man under arrest for debt, would it be held legal? No certainly. But if justice must be executed without the king, and even in spite of the king, in what sense can his power be termed, to this purpose, the executive?

The truth is, that, in any intelligible sense of the word executive, he is not the executive power to any purpose. What is it that he executes? Not the decrees of the legislature, or those of the ministers of justice against internal enemies: those decrees, as we have just seen, are executed by others, without his intervention, and in spite of it. Not the decrees of the legislature against external adversaries: the legislature of one country does not make laws to be obeyed by the inhabitants of another; it does not make laws for enemies. There are no laws, then, for him to execute against enemies. In his hands, indeed, is placed the force destined to act against foreign enemies: in his hands is vested the administration of that force, in all its various branches. Say that it is in virtue of a law that he makes war against the enemy. He then executes that law in a certain sense if he obeys it. But how is the law, then, executed? only in as far as it is obeyed: but not in the sense in which a law is said to be executed upon or against those who withhold or refuse obedience. A man, by obeying a law requiring his obedience, without waiting for its being executed upon him for disobedience, may, in a certain sense, be said to execute the law: but does this render his obedience an exercise of executive power? If it does, every man is the executive power, and king and subject are the same thing. The king’s power, then, may be termed, if you please, the administrative power: but in what sense is it the executive?

Words in themselves are of no sort of consequence; but when they are made the foundation of practical institutions, then surely their propriety becomes worth investigation. Whether the practical institutions grounded on this verbal theory are right or wrong; and whether, if wrong, the error is material or otherwise, may be seen under the next article.

New Draught.—Art. II. The judges shall in general be elected by the persons subject to their jurisdiction; and that in manner hereinafter specified. (2)

Committee’s Draught.—Art. II. The judges shall be chosen by the proper subjects to their jurisdiction, in manner and form hereinafter to be mentioned. The judges shall be appointed by the king, upon a presentation to be made to him of two candidates chosen for each vacant office. (b)

Observations.—(2) (b) The share here given to the king in the choice of the ministers of justice, seems neither consistent with utility in the abstract, nor with received principles.

Were the matter never referred to the choice of the people at all, a choice made by the king, or rather in the king’s name, might pass for that which it might be presumed the people would have made, had it been put to them to make a choice. A presumption of that nature, whatever there may be in it, can under this arrangement no longer be held up. Two candidates are presented to the king by the people: one who, it is proved, is the most acceptable to them of the two; the other, who is the least acceptable. Shall the king’s minister have it in his power to force upon them the one whom they like least, depriving them of the one who has been declared to have their preference?

What is the good that is to result from so evil an example? As a means of preserving the people from an imprudent choice, the efficacy of any such option can be worth but little. If, in virtue of any cause whatsoever, a body of people are likely to make one foolish choice, what should hinder the same people from making two? Satisfy yourself, that the choice of the people in this instance ought not to outweigh that of the king’s ministers; and it must be by such arguments as ought to satisfy you, that, in the first instance at least, the appointment ought not to be left in any way to their choice. To be consistent, you should give the nomination to the king; and if you give the people anything, the option only to them. In this way the choice of the people is exposed to open contempt, and the security gained by it is not worth a straw. In the mode I have ventured to propose—(see Tit. III. § 1 & 5)—the highest security is given, and the respect due to the choice of the people preserved inviolate.

As to the person of the king, it is on all accounts plainly out of the question. I ask not what the king, but what the king’s minister for this department, can know about the character of two persons chosen by the people from among themselves, in a distant province, more than the people themselves know? Whatever judgment is to govern in this business, will have been formed, not by the king’s minister, not by the keeper of the seals, for example, but by some inostensible whisperer, some intriguant about the keeper, who has connexions in the province.

The most considerable effect such an arrangement seems likely to have, is that of strengthening ministerial influence. It will concern every candidate to be well at court: that, if first, he may not be rejected, and that, if last, he may be preferred. This property, howsoever it might recommend it in England, quadrates but ill with the principles that seem to be universally received in France. It is the essential property of command to be environed with a sphere of influence much more extensive than its own. The king must have command: therefore he cannot be divested of all influence. But the less influence he has as such, the better. Here we have a department without any command, consisting of nothing but influence. And this department is not so much as a remnant of the old system: it has not usage and antiquity to recommend it. The King of France is not in the use of having anything to do with the appointment to the provincial offices of justice: they have been always bought and sold: the seller and the buyer between them have chosen the buyer.

Justice, I have already said it, was the proper business of a feudal king. Justice, even the naming of the persons who shall administer it, is no fit business for a modern one. The military department—that department of which the measures depend so much for their success upon promptitude, and the complete combination of a vast multitude of scattered instruments—the military department is the proper, and only proper field of action for a monarch. It is essential that every branch of that department, everything that may be necessary to complete a body of force destined to act against an enemy, should be at the disposal of a single hand. War-office, ordnance-office, admiralty-board, navy-board, fortresses, dock-yards, even treasury-board, to the amount of the sums, and with restriction as to their application, provided by the delegates of the nation—everything of that sort, ought to be at his devotion. But we want no king, to sell us to foreign powers, to throw away our money in buying the useless and pernicious assistance of foreign powers, to make treaties in our name without our knowledge, to insult weaker nations, and dictate laws to them on pretence of mediation, or to plunge us into war before we have any suspicion of the cause. As little do we want a king at the Louvre or St. James’s, to tell us what persons are best deserving of our confidence in Northumberland or Provence.—When I search for the advantages expected from this power among the details of its application, my embarrassment, instead of being relieved is increased. Where the election is lodged in the hands of picked men, men thought worthy to be entrusted with the choice of the members of the administrative bodies, and of the sovereign legislature, or men considered as still more select, and still better entitled to confidence; the choice made by the people by these chosen electors is put, I find, under subjection to this over-ruling power. Where the election is thrown open to the lowest order of citizens, to those whose contributions do not amount to more than half a crown in the year, to those who are but the electors of the above-mentioned picked electors, the choice thus made is left without controul. Where ignorance is least apprehended, an expedient is employed for correcting the choice that may be made by ignorance: where ignorance is most apprehended, the corrective is withheld.

Nine sorts of courts are comprised in the institution, exclusive of the High National court constructed upon principles too peculiar to be brought here into the account. In five of these instances,* the appointment follows the general rule laid down by this article: in the other four the rule is departed from,† and the choice of the electors stands uncontrouled. Of these exceptions, the first that presents itself is that of the canton court, filled by a single judge, under the denomination of a judge of the peace. This example augments my embarrassment still further. Where the judges are to sit in bodies of five, ten, twenty, and six-and-thirty, each individual capable of making up for any deficiency that may be exhibited by the unfitness of another, the remedy provided against a bad choice is applied: where the person chosen is to act alone, the remedy is withheld. And to the court of this judge, as well as to the other courts, is given a portion of jurisdiction exempt from appeal.

Will it be said, that the class of causes in which the judge is exempted from controul is the very lowest only in the scale of importance?—causes, I mean, of not more than fifty livres value? This indeed is what I fear: for, according to my measure, among causes merely pecuniary, these are precisely those which stand highest in the scale. But of this under the next title.

The complication introduced by this system of royal controul, would, of itself, form a sufficient ground for rejecting it, unless some very unequivocal advantage could be shown to flow from it. Complication infects the general mode chalked out by the general article. Further complication results from the discordance between the instances in which the general rule is observed, and the instances, almost equally numerous, in which it is departed from. One useless law renders another necessary: for the provision, though redundant, is defective. Along with the choice of two candidates, a negative is unawares given upon both; and there it must continue, unless more laws are made to take it away. Should the minister dislike both the elected candidates, and withhold the royal option with or without pretence of hesitation, the impediment might last till they both died, for anything there is in this code to put an end to it.

The reasons, which plead in favour of the king’s suspensive power in matters of legislation, apply not in any degree to this share in the creation of judicial power. To exercise that suspensive power, would be to say to the agents of the nation—“I suspect your maturer judgment will be different on this head from your present opinion:” or “I suspect that, were the opinion of the people for whom you act to be known, it would be found different from yours.” To exercise this elective power, would be to say, “The wish of the people, I see, is to have Paul to judge them; but I, disregarding their wishes, choose they should have Peter.”

For this, as for every other act of kingly power, the committee, I suppose, mean to have some person or other responsible. But what minister would have the courage to take upon himself the responsibility of such a choice?

God forbid that for this or for anything else, I should accuse the committee of intentionally betraying the cause of the people. Policy should forbid, though truth did not, so ungenerous an imputation. Their offences against popularity are but peccadillos, in comparison with mine. To confess the truth, even in this very instance, they have gone farther on the popular side than perhaps, without the encouragement of their example, I should have ventured to have gone. I have been distressed for years what to do with the appointment of judges: whether to give it the people; or to give it (or as in England it would be, to continue it), to the king. It might be a matter of some difficulty to point out any specific mischief which has resulted in England from this part of the king’s prerogative as it stands at present. But on this point, neither do the past usages nor the present views of the two kingdoms afford any parallel. The king of England has always had the nomination of almost everything that goes by the name of a judge. In this line, except in an insignificant office or two, such as that of coroner, the people know not what it is to choose. They might choose for chief-justice an Hottentot, or an ourang-outang: and our profound constitutionalists, who worship precedent as the test of excellence, would expect no better choice. To us, a system of local judicature, distributing justice upon the spot, in all its branches, is new, not only in practice, but in imagination. With us, no man has yet been found bold enough to insinuate, that fifty pounds may be too high a price to pay for five shillings, or four hundred miles too far to go for it. While the trade of justice is in a manner confined to Westminster Hall, the king at St. James’s has not far to look in order to choose the dealers.

It is surely a bold experiment this of trusting the people at large with the choice of their judges: the boldest, perhaps, that ever was proposed on the popular side. My thoughts were divided betwixt the king and the representative assemblies. I could scarce think of looking so far down the pyramid, as to the body of the people. But now that the committee has given me courage to look the idea in the face, I have little fear of the success. My wish, however, is to see the experiment fairly tried, in its simplest form, and not clogged by a temperament in which I see the mischievous effects I have been stating, and in which I can descry no use.

What I accuse the committee of, is the instituting this fund of corruption, not for the sake of the king, not for the sake of ministers, but for the sake of a word: and I retract immediately if their own candour does not plead guilty to the charge. The king is the executive power: justice is a thing which requires to be executed; being a thing to be executed, it must be executed by him. Something at least he must be seen to do toward the execution of it: and this is the way in which his interference will do least mischief.

New Draught.—Art. III. No office conferring judicial power, or the exclusive privilege of ministering by particular services to the exercise of such power, shall be created by the sole authority of the king for any purpose, much less in order to be sold.

Committee’s Draught.—Art. III. No office conferring judicial power can henceforward, under any pretence, be created to be sold. (c)

Observations.—(3) (c) The addition of the passage distinguished in my draught by italics seems necessary to fulfil the intention of the committee. Jailors, clerks, bailiffs, criers, &c. are within the reason of the law; they are not within the words of the committee’s draught.

In condemning the venality of judicial offices, without limitation—consequently by whomsoever sold, on account of whomsoever, and on whatsoever terms—the committee goes beyond the mark, and ties the hand of the legislature, as far the hands of a legislature can be tied. In a paper on the Patriotic Auction, proposed under Tit. III. § 2, of my draught, as an expedient for saving something of the vast expense of so many judges’ salaries, preserving the right of election inviolate, I state what the real mischiefs of venality were upon the old plan, and show that mine stands clear of them.

New Draught.—Art. IV. Justice shall be administered gratis. Provision shall be made for the ministers of justice by salaries. All exaction, or acceptance of fees, by persons any way concerned in the administration of justice, is hereby declared illegal.

Art. V. All stamp duties or other duties upon law proceedings are hereby abolished: and all laws made to ensure the collection of such duties, are so far forth repealed. (4)

Committee’s Draught.—Art. IV. Justice shall be administered gratis, and appointments for the judges shall be provided to a sufficient amount, proportioned to the dignity of their stations, and the importance of their functions. (d)

Observations.—(4) (d) So much good has seldom been proposed in so few words. I have taken upon me to subjoin reasons for the measure, principally with a view to the country in which it will be scorned, but not altogether without an eye to that in which it will be crowned. If it be desirable that good laws be established, it is not altogether superfluous that it should be generally understood on what accounts and to what a degree they are so. Power gives existence to a law for the moment, but it is upon reason that it must depend for its stability. The discussion being thought too long for a note, forms a separate paper.

The concluding part of this article, as it stands in the committee’s draught, is rather a resolution than a law. It might be as well perhaps to omit it in this place, and add it to the string of resolutions with which this title concludes.

The concluding part of the fourth article in my draught, together with the fifth article, seemed necessary to give complete effect to the general provision, and place the intended extent of it beyond the reach of doubt.

If these taxes are abolished, a list of the laws therewith abolished should be subjoined. This is a sort of appendix that should be subjoined as soon as possible to every decree of the new legislation, as well in order to obviate doubts, as in order to prune off so much of the dead wood, and reduce the bulk of the body of the law.

New Draught.—Art. VI. The judges have no share in legislative power. Appointed for the express purpose of enforcing obedience to the laws, their duty is to be foremost in obedience. Any attempt on the part of a judge to frustrate or unnecessarily to retard the efficacy of what he understands to have been the decided meaning of the legislature, shall be punished with forfeiture of his office. (5)

Committee’s Draught.—Art. VI. The judicial power being subordinate to the legislative, the courts of justice shall not usurp any of the functions of the legislative body, nor hinder nor retard the execution of its decrees sanctioned by the king, on pain of forfeiture. (e)

Observations.—(5) (e) In these nine articles from the 6th to 15th inclusive, I have endeavoured to embrace the subject-matter which the committee seem to have had before their eyes, while occupied in framing the 1st, 6th, 7th, and 8th articles of their draught: but to a somewhat greater extent, and with some difference as to the means made use of.

Three objects seemed to require attention on this occasion: 1. The setting up a bar to usurpation of legislative authority on the part of the courts of justice: 2. The providing a remedy against inconveniences which might arise in cases unforeseen by the law from the too rigid and liberal execution of it: and 3. The settling a plan of correspondence, by means of which the legislature might put itself in possession of such means of judging of the conformity of the laws to their design, as the opportunities afforded to the judges by local situation and particular experience, must render them peculiarly well qualified to supply.

In the provision to be made for the first of these objects, some attention seemed necessary, in order to avoid throwing down, by a side wind, the whole fabric of what is sometimes called the unwritten law:—the collection of rules of law deduced upon occasion from the observation of the course taken by the courts of justice in their decisions. This bastard sort of law cannot, it is true, too soon be made to give place to the legitimate; but there must be some law in the country in the meantime. A judge, in as far as his decision in one case serves as a rule in a subsequent one, is in effect a legislator: and a large proportion of what goes by the name, and has the effect of law, has, in France as well as England, no other origin than this. In refusing to these new judges all share in legislation, it may be necessary not to extend the stigma of reprobation to the unwritten or judiciary law, the result of those acts of indirect legislation, which have been exercised by their predecessors.

In virtue of decrees already passed by the assembly, articles of law, deemed other than constitutional ones, are presented to the king for his consent, and sanctioned by him. Articles of law deemed constitutional, are declared not to require the king’s sanction. In this very draught of the committee, are contained many which I suppose will be deemed to come under the latter denomination. A judge disregards an article of constitutional law, not sanctioned by the king—is it the design of this article to leave him at liberty so to do? certainly not: then why confine the obligation to the decrees “sanctioned by the king?”

By the word retard, employed as here, without any modification annexed to it, I doubt the committee will be found to have gone beside the mark in some degree, to have put the courts of justice into an embarrassing situation, and to have counteracted their own views. The retardation they meant to condemn was, I suppose, that which would be the consequence of an address to the people, or, what might come nearly to the same thing, an address to the legislature, circulated among the people, pointing out a law newly issued, as unfit, on some account or other, for execution. But, to take time to consider of the true meaning of a law, when the execution of it is called for by an action grounded upon it, is also to retard the execution of it. This is what can hardly, I think, have been meant to be included under the censure; and yet for this, according to the letter of the provision, a judge would stand liable to forfeiture.

New Draught.—Art. VII. But rules of law, derivable from decrees of judges and customs of courts in times past, shall still be in force, so long as they remain unsuperseded by acts of the legislature.

Committee’s Draught.—Art. VII. The courts of justice shall be bound to transcribe purely and simply upon their registers, the laws which shall be sent to them, within three days after they have received them, and to publish them within eight days, on pain of forfeiture. (f)

Observations.—(f) The declared object of this provision is to prevent the new courts of justice from exercising, as some of the old ones did, a negative upon the acts of the legislature; the tendency of it, as far as it tends to anything, is to enable them to assume this negative. Require that such or such a man shall do so and so, before an instrument of any kind shall begin to have validity, you give that man, how inconsiderable soever in other respects, a virtual negative upon the power exercised by that instrument. Upon the requisition made in the present instance, the construction that will naturally be put is, that till the act required be performed, the validity of a law is not to commence; for such, it seems, has been the case hitherto in France.

A decree will, upon this plan, in every one of several thousand judicial territories, begin to be in force at so many different periods, according to the length of the instrument, and the probity or improbity, the diligence or negligence, the good or bad health, of various sets of persons:—of the judge, of the register of the court, and of the copying clerk by whom, under the immediate inspection of the register, the business is to be done.

Take a written copy of a printed paper? Why? Of what use can it be when done? And this in every one of so many thousand courts! To what purpose this enormity of expense? Wherein has the art of printing offended, that justice is to disdain to avail herself of its assistance?

At what period, too, is the obligation to obedience to commence? At that of the publication, I suppose. From what period, then, is the week to be reckoned, at the end of which the publication is to take place?—that of the receipt of the original, or that of the completion of the copy? From the latter it should be, if the copying were of any use. What if a single decree amount to a large volume, as may be the case with the promised penal code, and the promised code of procedure? Will the judges, with all their power, find a man who shall copy it into the register-book in eight days?

Oh, but in France a law is no law until it is registered: nor anywhere but where it is registered: and to register a law is to copy it into a register-book. And so, because laws made by a despot were to be put out to copy, that parliaments might have time to see whether there was nothing to find fault with, no loop-hole at which they might steal in their negative in legislation, laws are still to be put out to copy, now that there are no despots, and no parliaments.

There was a time when this copying business was of real use.—Why? Because there was a time when printing was unknown. It is the delight of lawyers to go on plodding in paths which reason has never visited, or having visited, has deserted. But is it for the legislature to catch this propensity, and convert it into obligation?

Oh, but printed copies of laws may be forged—they have been forged. Standard instruments, therefore, are necessary to detect the forgery. True: but what written copy can be so good a standard as the printed original? The true standard at each court of justice is the printed paper which the judge of the court receives from the proper officer at Paris. Let each sheet of that copy, or, to guard against interpolated leaves, each leaf, be numbered and signed by him, cote et paragraphe, in testimony of its authenticity. This will be the work of a few minutes: and by this work of a few minutes, the purposes will be better answered than by the proposed work of as many days.

One would think, from this article, that a sort of tacit persuasion had got possession of men’s minds, that laws, after they had passed the hands of the legislator, could not begin to take effect till after somewhat or other had been done for that purpose by other people. The king, that he may have something to do in the business, is, besides his previous consent or acceptance to the law while in manuscript, to take charge of the printed copies for the purpose of dispersing them: as if a clerk to the assembly could not as well put a packet into the post, as a clerk in an office under the king. The courts of justice, that they may have something to do in the business, are to set clerks to work upon the useless operation of copying a printed paper.

The separation of the instrument containing the king’s sanction, from that containing the decree of assembly to which it applies, is attended with two bad effects:—it gives ministers an indirect and insidious negative, in addition to the one avowedly belonging to the king: and it loads the text of the law with the rubbish of letters-patent.

Were the decree to run in the joint names of the king and the assembly, as in the British statutes, and were the king’s sanction given by his seal and signature applied to the original instrument of the decree, that instrument never quitting the custody of the assembly, and the business of circulation committed to the assembly’s printer, or some other person under their immediate authority, a deal of chicane, and negligence, and anxiety, and time, and money, and paper, might be saved.

It is highly necessary that at all times, and in particular, immediately after the passing of a new law, means should be used for impressing the contents upon the minds of those whose conduct is to be governed by it: and the anxiety testified by the committee on this head is highly laudable. But what measure so simple or so effectual, as to send by the post a copy to the ecclesiastical minister of every parish, under a general order to read it to the congregation the next church-day, or the two next church-days, au prone, immediately after divine service?

In England, the business of promulgation is a very simple affair. In the body of every act of parliament, a day is specified in which it shall be considered as being in force. Nothing is done to circulate it by king, or judges, or any body else: but a copy is given to the king’s printing-office, where it is printed in an obsolete obscure type, and inconvenient folio form, and sold, as may be expected under a monopoly, at a dear price; and there it lies for the use of any one that has money to spare to buy it, and thinks it worth his while to do so. Every man is then supposed to know, and to understand the law: juries excepted, who, when they have taken upon them to pronounce a man guilty of having violated the law, are held not to have decided upon the law, it being impossible they should understand it.

New Draught.—Art. VIII. No judge has any power to make general regulations; not even relative to the mode of procedure in his own court. (6)

Art. IX.—But should any case arise before a judge, in respect of which it appears to him that the legislature, had the same been in their contemplation, would have made a provision different from that which the letter of the law imports, he is hereby authorised, and even required, so to deal therein as it appears to him that the legislature would have willed him to do, had such case been in their contemplation: taking such measures withal, whether by exacting security, or sequestration of goods or persons, or otherwise, as shall be necessary to prevent the happening of any irremediable mischief in either event, whether the legislature abide by the law, or alter it.*

Art. X.—The suspensive power hereby given extends even to such laws and other acts of authority as shall have issued from the National Assembly, or from any subordinate authority, at any period posterior to that of the convocation of the present National Assembly: and it may be exercised with still less reserve with regard to such former laws and rules of law, as, though not expressly abolished, may appear unconformable to the principles manifested by the National Assembly, and especially to those contained in the declaration of rights.

Art. XI.—Provided always that the judge, as soon as possible after the case calling for the exercise of such suspensive power has presented itself to his notice, shall make report thereof to the National Assembly.

Art. XII.—Copies of such report shall also be sent to the several courts of justice to which his court is subordinate: so that the dispatching of the original report be not delayed on account of the dispatching of such copies. (7.)

Art. XIII.—In such report shall be contained—

1. A statement of the matter of fact which has happened to call for the execution of the law.

2. A quotation, with proper references, of the passage of law in question.

3. A statement of the mischief which in his conception would ensue, were the letter of the law to be observed.

4. A statement of the course provisionally taken by him for avoidance of such mischief, in pursuance of the power given to him by Art. IX.

5. To such report he is at liberty, and is hereby invited, to subjoin a note of such alteration in the text of the law, as appears to him most proper for guarding against the mischief in question for the future; whether such alteration consist in defalcation, addition, or substitution; pointing out the very words in which the passage in question, after the alteration suggested, ought to stand. (8)

Art. XIV.—The true and only proper object of inquiry, in the exercise of this suspensive power, as far as it regards laws posterior to the convocation of the present National Assembly, is, not what ought to have been the intention of the legislature in the case in question, but only what would have been so, had the same been present to their view.

Art. XV.—All judges and other ministers of justice are also hereby invited to make report, at any time, of any inconvenience which appears to them likely to ensue from the literal execution of any article of law, even although no case calling for such execution shall have yet arisen: as also to propose questions relative to the import of any passage in the law, which may have appeared to them ambiguous or obscure.

Committee’s Draught.—Art. VIII. The courts of justice have no power to make regulations; they shall address their representations to the legislative body as often as they shall deem it necessary either to interpret the doubtful signification of a law, or to enact a new one. (g)

Observations.—(6) (g) The committee, I observe, in the general interdiction passed upon regulations made by judges, makes no exception in favour of regulations relative to the mode of procedure, made by those magistrates, each in his own court; and it seems to have done very right. Were this permitted, the modes of practice in the different courts would gradually diverge; diversities would gain ground in each, and complication in the whole. Judges, too, from caprice, or regard to their own ease, might clog the system of procedure with unnecessary and unbending restrictions and obligations.

In England, courts of justice, at least the more considerable ones, have always holden this power within their competence; though of late they have exercised it but sparingly. The public, as things are circumstanced in England, four or five great courts exercising joint and immediate jurisdiction over the whole country, owes them little thanks for this reserve. The practice, as to the main part of it, has been settled somehow or other between the subordinate officers and the attornies; nobody knows when, nor by whom, nor how, nor for what reason. It is accordingly, in the language of lawyers, like everything else that has been done by lawyers, “the perfection of reason;” that is, different in all the different courts, repugnant in every one of them to the ends of justice, but extremely convenient, and not a little beneficial to all parties concerned, except the suitors.

The phraseology of the committee’s article, where it speaks of the power of interpretation, seems not to be altogether so clear as one would wish to find it.

Interpreting the law, is what, in a certain sense, a judge, as well as everybody else, must always do, as often as the authority of it is appealed to, and a man is called upon to act accordingly: Interpreting the doubtful signification of the law is what he cannot do but where the signification of it is doubtful. So long as the signification of a law appears doubtful to a man, he can neither interpret it himself, nor avoid thinking it necessary that somebody else should. In this case, if it wears the same appearance in the eyes of the legislature for the time being, the best thing they can do is, not to give a separate interpretation of the law, but to revoke it, and promulgate a new one, which shall stand clear of the difficulty. As the law cannot compress what it has to say into too small a compass, substitution and even defalcation, wheresoever it will equally well express the meaning, is much better than addition.

Interpretation, when spoken of in regard to any species of composition but a law, means attributing to it the sense of which a man really conceives it to be expressive. Interpretation in France, it seems, as well as in other countries where the law language on this head is taken from the old Roman law, means passing another law relative to the same subject-matter, with or without the deceit of pretending to attribute to the former a sense which a man is conscious does not belong to it. In the former sense, that is, in the original and natural sense, every subject not only has a right to interpret the law, but is forced to do so, in as far as he is bound to square his conduct by it: in the technical sense, if the right of interpreting the law belongs to any man, that man is a legislator; and a legislator of equal authority with him who made it.

* An example, quoted by Puffendorf and other writers, of a law actually established in some Italian state, will serve to make this distinction clear, and at the same time to manifest the necessity of such a suspensive power as is proposed:—

Whosoever draws blood in the streets shall be put to death.

I put three cases upon this law:—

1. A surgeon, seeing a man drop down in a street in a fit of apoplexy, lets him blood and saves his life. Ought he for this to lose his own? Yet such must be the inevitable consequence of a strict execution of the letter of the law.

2. A man, waylaying his adversary, sets upon him in a street, and strangles him without shedding a drop of blood.

3. A man, waylaying his adversary, and meeting with him in the street, draws blood from him, by giving him a stab, which however does not prove a mortal one.

The judge possesses a suspensive power given him in the words proposed in my draught: What courses ought he respectively to take in the above three cases?

1. In the case of the surgeon, he ought to collect all the evidence, staying judgment till after the decision given by the legislature in answer to the report; and, in the meantime, taking such security as appears to him sufficient for the defendant’s forthcoming, in order to abide the event of such decision.

2. In the case of the strangler, he ought to proceed in the same manner: but in this case, the security required would naturally be stronger than in the other.

3. In the case of the stabber, he ought to proceed to sentence and execution. He might indeed think it improper that a bare attempt to kill, or perhaps merely to wound, with a special care not to kill, should receive as heavy a punishment as actual murder. But this case is one which the legislature, it is plain, must have had in contemplation, and they have decided otherwise. The two other cases it seems equally plain they had not in contemplation. In these cases, then, to exercise the suspensive power, would be only to seek out, and minister to the intention of the legislature: in the third case, it would be to censure and controul it.

Put now the same three cases, and let the article as it stands in the committee’s draught be the law. What is the consequence? Let justice go on in its ordinary train, the benevolent surgeon must be put to death, and the murderous assassin acquitted, before any answer arrives from the legislature. A conscientious and courageous judge might perhaps take upon him to exercise a suspensive power in two such cases, though not given him by the law. Perhaps so: but all judges may not be conscientious: nor are all conscientious judges courageous: and whatever good quality this or that judge may chance to possess, affords no apology for the defectiveness of a law. Whatever power the law means to permit, it ought openly to allow. Connivance pre-supposes and establishes arbitrary power.

No body of laws ever yet made its appearance anywhere, which does not afford ample field for such a suspensive power. At the commencement of a new order of things, such as that which is establishing in France, the calls for such a power must be particularly abundant. The new laws, being made piecemeal, must leave a multitude of cases unforeseen and unprovided for: and till the new system is completed, the ambiguous state of the old body, half living, half dead, must increase the multitude of doubts and difficulties.

A suspensive power thus given may possibly be productive of some abuse. It is just possible. But without it, abuse is certain and universal. Distress to individuals, and that to an amount not to be conceived: open disobedience on the part of the judges to the legislature; and that in the infancy of its power: such is the only alternative. Shall disobedience be foreseen and wilfully allowed? Thus to allow it, is to invite it.

Reports of this sort pouring in upon the legislature from all the courts will take up a good deal of its time. Probably: but the inconvenience cannot be avoided but at the expense of a worse: nor is the door which the committee’s article opens to it a hair’s breadth less wide. Both laws expose the feelings of the legislature to be wounded by tales of distress. The difference is this: the one remedies the mischief, and then tells of it; the other tells of it without remedying it.

Oh but, says the committee, the representations you speak of are not those which we mean to allow. When we speak of judges, we think of our old parliaments. When was it the parliament used to make their representations, if they chose to make any? When? why, before they registered it, to be sure. When they had registered it, they had passed it; it was then their law: do you think they would have found fault with their own law? No, no: our representations have nothing to do with yours. Have not they, say I? So much the worse. Observe the task you have given to your judges. What the legislator professes to understand, they are to teach him: what he wants to know, but can know from nobody but them, they are to keep to themselves. They are to speak of everything they fancy, and of nothing that they see: they are to report from imagination, and not from evidence.

(7) A plan for giving to the conveyance by the post, the exactness requisite for this and all other branches of judiciary correspondence, is contained in the draught of a code of procedure, designed to form a sequel to the present publication.

(8) All human laws will have defects: all new ones more particularly: defects to be remedied must be pointed out by somebody: and who so proper to point them out as the persons engaged by duty in the study of them, and by practice in the observation of the incidents that bring them into notice? No legislator can as such possess opportunities of this nature equal to those which must present themselves to every judge.

In England, no invitation of this sort was ever given to the judges. Those magistrates, however, have always had the right of making representations of this sort, since, under the name of petitions, it is no more than what all subjects in general have enjoyed. No nation hitherto whose laws have such large features of excellence in them as those of England: yet none, perhaps, whose laws are more abundant in particular and very gross defects. No judge can well sit on the bench for a day together without being witness to numerous exemplifications of them. In one of the houses of legislature, all the judges have always had seats, and at all times some of them have had votes. Yet who ever heard of a representation of this sort spontaneously given by a judge to the legislature? and how many instances do the annals of parliament afford of bills brought in by law-lords for the amendment of the law? Is a bill of this sort attempted to be stole in by an unlearned hand? learned eyes are not wanting for spying out the defects—not of the law, but of the bill which seeks to remedy it: and scorn is the reward which public spirit gets for its temerity.

Of the very few judges who in our time have betrayed any symptoms of a suspicion that the law could be in any respect better than it is, or of a wish to see it so, the most eminent have gone to work, as if their object were to render reformation odious. Reformation of the law, by the commissioned legislator, is indeed, what Lord Bacon styles it, an heroic work; by the judge it is usurpation, despotism, and confusion.

Provisions to the effect above mentioned would be insufficient to the end, without some others, of which, as not belonging properly to the present title, I shall content myself here with giving a general intimation.

Provisions for the elucidation and improvement of the laws by the help of lights, suggested by persons other than judges; in a word, by the citizens at large:—

1. General liberty to any subject to make communications of the same sort which the judges are invited to make.

2. Special liberty to persons wishing to engage in a contract of any kind, whether of the nature of a pact or of a conveyance, of the validity or invalidity of which no declaration sufficiently explicit is given by the law, to propose questions to the legislature relative to such validity. Questions of this kind might pass through the hands of the several ranks of judges, who, if they thought proper, might adopt them by their signature, and might even on certain conditions be authorised and required to give a decision, which should be binding at the end of a certain time, if not annulled by the legislature.

In England, wills and conveyances are made, agreements entered into, on which the fortune and condition in life of families are built, and afterwards, at ten, or twenty, or thirty years end, comes an ex post facto decision, which overthrows everything, and reduces them to beggary. Courts of justice can take no cognizance of a question that does not come before them in the course of a cause, and if an amicable cause were instituted for the sake of getting a decision on a question, before the event that called for it had taken place, it would be a crime punishable by law. Multitudes are thus doomed to inevitable ruin, for the crime of not knowing a judge’s opinion, some ten or twenty years before the question had ever entered into his head. This confusion and injustice is of the very essence of what in England is called common law—that many-headed monster, which, not capable of thinking of anything till after it has happened, nor then rationally, pretends to have predetermined everything. Nebuchadnezzar put men to death for not finding a meaning for his dreams: but the dreams were at least dreamt first, and duly notified. English judges put men to death very coolly for not having been able to interpret their dreams, and that before they were so much as dreamt.

The rescripts produced by the questions put by Roman citizens to Roman emperors, gave nothing but a load of rubbish to the law. Fabricated in the dark, by some unknown scribe of a despotic sovereign, they remain in the rude state in which they were emitted, without being melted down into the text of any general law. How should they have been? No such law was in existence. Such will not be the fruit of questions put by the free citizens of France to their enlightened legislature.

3. A committee to receive communications of this sort, to publish such as they think worth publishing, and to propose to the assembly any such alterations as they think proper to be made in the text of the laws, in consequence. Right given to the author of any rejected communication to have it printed and subjoined in form of an appendix to the authoritative collection, upon depositing the expense.

Other provisions relative to the elucidation, improvement, and preservation of the text of the laws, diverge too far from the subject to be mentioned here.

New Draught.—Art. XVI. The subordinate representative assemblies, in the exercise of the powers of administration, and subordinate legislation, lodged in their hands by the supreme legislature, are [not?] accountable to the judicial power. The members of them cannot therefore be punished, or cited to appear before it, for any act done by them in their quality of members. Obedience to an act of any such assembly, acting within the sphere of the authority committed to it by the sovereign legislature, is to be enforced by the courts of justice in like manner as to an act of the National Assembly itself. But for that purpose, it is necessary that the courts of justice should take cognizance, upon every occasion, of the question, whether in such instance the subordinate assembly has or has not confined itself within its proper sphere, and decide accordingly upon the validity of its act. (9)

Committee’s Draught.—Art. IX. As the judicial power is distinct, and ought to be kept separate from the power of administration, the courts of justice have no power to take any sort of part in matters of administration, nor to give any sort of disturbance to the operations of the administrative bodies, nor summon before them the members thereof, for matters done in the exercise of their functions, on pain of forfeiture. (h)

Observations.—(9) (h) In speaking of the subordinate representative bodies, care, I observe, seems to be taken, to speak of their functions as confined to the head of administration, without any share in legislation. If administration is understood to include subordinate legislation, the term may pass: if not, the language here held relative to the functions of these bodies is contradicted by the functions themselves. See Decret concernant les Municipalités. Under certain restrictions they are to possess powers of taxation, and the municipal governments in towns are to have power of establishing regulations of police, which as such must frequently be binding upon all the citizens. If this be not legislation, it will be difficult to say what is. All that can be said to distinguish it from the sort of legislation exercised by the National Assembly is, that the one is subordinate, the other supreme: and this surely is sufficient. The acts of the one, if valid, and while valid, are as much laws as those of the other: the only difference is, that the laws of those subordinate bodies are liable to be stopped in their formation, or overthrown when formed, by the acts of the National Assembly: while the acts of the National Assembly can be retarded only by the king, and can be overthrown by nobody without the concurrence of the National Assembly itself. If legislation, merely by being subordinate, ceases to be legislation, judicature, by being subordinate, should cease to be judicature. It is a sad error thus to confound legislation with supremacy—the nature of the function with the dependence or independence of him who exercises it. Names are certainly of little importance, so long as men are agreed about the things signified by them: but the danger is here, lest, when these representative bodies exercise, as they must do on pain of inutility, some act of legislation, somebody should start up and say—“No, this is what you have no right to do; for this is legislation: whereas nothing is yours but administration.”

I have some doubt about the propriety of this word disturb, [troubler,] and whether the memory of past grievances may not here have carried the committee rather beyond the mark. A provincial assembly may say to the court of judicature sitting in the same town. If you adjudge our acts void, you disturb us in our operations: yet this is what the court cannot well avoid, if it judges the act not conformable to the powers given by the sovereign legislature; and it is difficult to say what the harm of this would be, or, if there were any, what could be the remedy.

In England, the meanest court that sits would take upon itself to judge whether any law (by-law the word here is) of a corporation that came before it, was valid or no: and the Court of King’s Bench, a court of mere judicature, issues orders (mandamus’s) after hearing of parties, to the local legislatures to exercise their functions, and even punishes the members in case of their going beyond them: and no inconvenience ever happens from this power. The Court of King’s Bench, it is true, is not a French parliament, but neither will these new-created courts of justice be so. Refuse them legislation in as positive terms as you please: but if you refuse them judicature in any case, you must lodge it somewhere else: and where can it be lodged with less danger and inconvenience? Whatever judicial power you take away from the ordinary courts, you must institute an extraordinary court, a tribunal of exception, to give it to: and every separate court set up to exercise a fragment of power, that can as well be exercised without it, introduces unnecessary complication, and becomes a grievance.

New Draught.—Art. XVII. The judges, elected as in manner hereafter ordained, shall enjoy their offices for life, unless divested thereof in manner hereinafter specified. (10)

Committee’s Draught.—Art. X. The judges, such of them as, having been lawfully elected, shall have been instituted in virtue of a commission from the king, shall be irremoveable; nor can they be deprived of their places but in case of forfeiture, and after judgment thereof. (i)

Observations.—(10) (i) My reasons for proposing amotion in certain cases without forfeiture of salary, or of re-eligibility, being connected with various provisions of detail, will stand more commodiously under Tit. III. Of Judges.

New Draught.—Art. XVIII. Judicial proceedings, from the first step to the last inclusive, shall, in all cases but the secret ones hereinafter specified, be carried on with the utmost degree of publicity possible. (11)

Committee’s Draught.—Art. XI. Judgments, in what cause and in what form soever given, either upon argument, or upon the report and opinion of a judge-reporter, shall be given publicly: the examinations taken in the course of the procedure shall also be publicly taken in criminal causes. In all cases, the parties, or their defenders, shall have a right to be heard, and to make summary observations upon the opinion of the judge-reporter. (k)

Observations.—(11) (k) Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial. Under the auspices of publicity, the cause in the court of law, and the appeal to the court of public opinion, are going on at the same time. So many bystanders as an unrighteous judge, or rather a judge who would otherwise be unrighteous, beholds attending in his court, so many witnesses he sees of his unrighteousness, so many condemning judges, so many ready executioners, and so many industrious proclaimers of his sentence. By publicity, the court of law, to which his judgment is appealed from, is secured against any want of evidence of his guilt. It is through publicity alone that justice becomes the mother of security. By publicity, the temple of justice is converted into a school of the first order, where the most important branches of morality are enforced, by the most impressive means:—into a theatre, where the sports of the imagination give place to the more interesting exhibitions of real life.

Nor is publicity less auspicious to the veracity of the witness, than to the probity of the judge. Environed as he sees himself by a thousand eyes, contradiction, should be hazard a false tale, will seem ready to rise up in opposition to it from a thousand mouths. Many a known face, and every unknown countenance, presents to him a possible source of detection, from whence the truth he is struggling to suppress may through some unsuspected connexion burst forth to his confusion.

Without publicity, all other checks are fruitless: in comparison of publicity, all other checks are of small account. It is to publicity, more than to everything else put together, that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst. It is for want of this essential principle, more than anything else, that the well-meant labours of Frederick and Catherine in the field of justice have fallen so far short of the mark at which they aimed. Division and subordination of judicial powers are no otherwise a guard to probity, than in as far as the chance of disagreement and altercation presents a faint chance of occasional publicity. Appeals without publicity serve only to lengthen the dull and useless course of despotism, procrastination, precipitation, caprice, and negligence.

If publicity is necessary in any one cause, so is it in every other. For what is that cause in which judges and witnesses are not liable to prevaricate? Give a judge any sort of power, penal or civil, which he is to be allowed to exercise without its being possible to know on what grounds, he may exercise it on whatever grounds he pleases, or without any grounds at all. It was upon these terms that the tribunal, erected by I forget what German emperor, under the name of the Vehmic Council, exercised the power of life and death: the judges of that council became as formidable as the triumvirs at the time of their proscriptions. The Inquisition possess it at present, upon terms not very dissimilar, in Spain and Portugal. The lowest power, penal or civil, you can give a judge, is that over men’s fortunes: the power of levying money on an individual, whether on the score of punishment, or in satisfaction of a claim of right on the part of another individual. Give a judge this power without controul, though it extend not beyond the amount of a shilling, you may make him absolute master of men’s properties, and by that means, at the long run, of their very lives: lower the sum, all the security you gain is the putting him to the trouble of so many more decrees before he can effect his purpose.

But, essential as it is that nothing should ever pass in justice which it should be in the power of the judge, or of any one, ultimately to conceal, it is not by any means so that every incident should be made known at the very instant of its taking place. If, then, in any case, things should be so circumstanced, that the unrestrained publication of one truth might give facilities for the suppression of another, a temporary veil might be thrown over that part of the proceedings, without any infraction of the general principle. On this consideration is grounded one division of the class of secret cases as laid down in Tit. XIII:—preliminary examinations in criminal causes and others, in which there appears ground for suspecting a plan of concerted falsehood.

Necessary again as it is that nothing should ever pass in justice which it should not be in the power of every one who had an interest in bringing it to light, to bring to light if he thought proper, it is not so that anything should be brought to light, the disclosure of which would be prejudicial to some and beneficial to nobody. It is on this consideration that I ground the three other divisions of the class of secret cases: causes to be kept secret for the sake of the peace and honour of families; causes to be kept secret for the sake of decency; and incidental inquiries to be kept secret out of tenderness to pecuniary reputation.

A word now as to the committee’s draught:

And is it then only in criminal matters that the proceedings previous to judgment are to be public according to their plan? And is it only the ceremony of pronouncing judgment that is to be public in such cases as are termed civil? But on what possible ground admit publicity in the one case, and reject it in the other? Do the terms civil and criminal indicate any fixed line of separation between the classes they are meant to distinguish?—do they indicate so much as the comparative importance of the cases thus classed? May not four or five livres be the stake in a criminal cause, while four or five millions, or liberty, is at stake upon a civil one?

As to the appendage about the right of being heard—(a provision very distant in its import from that contained in the main article)—I know not very well what to make of it. Take it according to the letter, it seems to put a negative upon all provisionary orders obtained ex parte in the course of a cause, as well as upon provisionary sentences of condemnation against absconding criminals. These usages, however, have nothing repugnant in them to the general right of not being condemned unheard—a right surely of importance enough to demand an article to itself. In the concluding part of the sentence, the privilege of the suitor seems to lose more by the implication than it gains by the express terms.

The opinion of the judge-reporter is here spoken of in the singular number as one discourse, embracing, as it should seem, the whole body of the evidence that has been collected by him. If the observations here allowed to be made by the parties are to wait till the cause has got this length, that is, till the examination is closed and the witnesses are gone home, complaint is stifled, I cannot imagine why, till the remedy is out of reach. A witness, suppose, is rejected, or liberty refused of putting a question to him which is thought necessary: are the parties or their counsel to sit by and see this, without the liberty of being heard against it?

New Draught.—Art. XIX. Every subject has a right to plead his own cause, in every stage, and before every court, as well by word of mouth as in writing; and as well by himself, as by the mouth or hand of any person of his choice, not being specially debarred by law. (12)

Art. XX.—All monopoly of the right of selling advice or service in matters of law (saving provisionally the profession of a notary) is abolished. Any advocate may practise in the capacity of an attorney; any attorney in the capacity of an advocate; and any man, not specially debarred, in the capacity of either. (13)

Committee’s Draught.—Art. XII. Every subject shall have a right to plead his own cause, as well [viva voce] upon a hearing, as in writing. (l)

Observations.—(12)(l) The right of pleading one’s own cause by one’s own mouth, or one’s own hand, the committee have established: the right of pleading one’s cause by the mouth or the hand of a friend of one’s own free choice, they have not established. If they have done right in what they have granted, as I contend they have, they have done wrong in what they have refused. Both rights stand upon the same basis: but if the violation of either of them be a grievance, it is that of the latter that is the more cruel grievance.

The right of pleading one’s own cause in one’s own person, and without the obligation of making use of forced assistance, is of all rights one of those which has the best pretensions to be considered as a natural and indefeasible one. To refuse a man the right of speaking in his own behalf, is to condemn him unheard—to condemn unheard, not a fugitive, but a man who is on the spot demanding to be heard. To render a man’s fate dependent upon the endeavours of an assistant, whom if left at liberty he would not choose, is still to condemn him unheard; it is adding mockery to injustice. To compel him withal to pay an assistant thus forced upon him, is adding extortion to mockery and injustice. The worst of all taxes, as I show elsewhere, and the most cruel of all oppressions, is the tax upon law-proceedings. The compulsion here in question carries with it all the oppression and iniquity of a tax upon law-proceedings, without any of the use. It is, to a tax upon law-proceedings, what a forced reduction of the rate of interest is, to a tax to the same amount on money lent at interest. It is a tax upon law-proceedings with this addition—that the produce, instead of being carried into the public treasury, to be applied to the public service, is to be left in the hands of the collector, to be applied to his own use.

The right of accepting, for the purpose in question, the assistance of whatever friend may be disposed to furnish it, stands upon the same basis as the right of pleading on one’s own behalf. Without the latter right, the former would lay all those who are most helpless at the mercy of all those who are most able to manage their own cause. It would condemn unheard, or put into a situation as bad as that of condemnation without hearing, the weak in intellect, the raw youth, the bashful maiden, and the timorous woman; the sick, the unavoidably absent, and the dying. It would entail a peculiar hardship upon those who have peculiar claims to favour and indulgence.

Even to men possessed of the ordinary measure of assurance and intelligence, it might be difficult to say which of the two rights ought to be deemed most valuable. Few must they be, who in the whole circle of their private friends may not upon occasion be able to find some one or other better able than even themselves to do justice to their own cause. Though in a man’s own cause, the chances are greatly in favour of his superior fitness in this respect, in comparison with any other single man taken at random, yet the odds of the field against one may surely make up the difference.

(13) The provisions exhibited in this article are no more than the undeniable consequences of, if they are not already contained in, those of the preceding article. If every man may be his own advocate, and any man the advocate of any other, there is an end of the monopoly possessed by advocates. But if any man may appear and speak in behalf of any man, it would be absurd indeed to say that he should not appear without speaking. An attorney is one, whom for a certain purpose, a man puts in his place: shall it be said that a man shall not put himself in his own place? As to the rest, the free choice of an attorney stands upon at least as favourable ground as that of an advocate.

One very important, and very beneficial consequence of the abolition of the whole monopoly, will be the throwing down the legal partition which separates the two main branches of it. It is in a very few, out of the whole number of causes, that it can be any advantage to the suitor that the two functions should be exercised by different persons: and in all but those very few, the separation of them is equally oppressive to the suitor, and repugnant to the interests of truth and justice.

This I shall take occasion to demonstrate at large in a separate paper. Treading everywhere in the steps of the committee, I have inserted thus much here, in order to show that they have acted right in going thus far, but wrong and inconsistently in not going a step farther. This is the place which they have fixed for great and fundamental principles. Advantages of detail, resulting from particular applications of those principles, belong to a subsequent stage.

As to the word provisionally, applied to the case of notaries, I inserted it not with any view of advantage to be had by abolishing that branch of the monopoly, but only as a warning against the prejudging so much of the question as concerns their case. Their branch stands upon very different ground from that of the two others. It does not contribute in any shape towards either the denial or perversion of justice. The functions belonging to this purer branch are two:—the penning of contracts and other acts; and the furnishing evidence of their authenticity by attestation. To determine the question respecting notaries, would be to determine the question respecting register-offices: for in respect to so much as concerns attestation, the functions of notaries and those of register-offices coincide.

The distinction here spoken of exists no longer in England: the notary, formerly styled scrivener, possessing no monopoly as against attornies, has been swallowed up in the attorney.

In the Prussian dominions, by a regulation of not many years standing, all professional advocates are put to silence: pensioned advocates, appointed by the king, being given to the suitors in their room. This is what in the language of despotism, is styled reform. To obviate the inconveniences of a loose monopoly, it establishes a close one.

New Draught.—Art. XXI. In every suit, civil as well as penal, both parties shall attend in person at the commencement of the cause, in presence of each other and of the judge: unless in as far as they may stand excused by special reasons, in manner hereinafter specified; and so from time to time during the continuance of the cause: there to depose, and to be interrogated, at any time, they or their representatives, each on the part of the other, in the same manner as witnesses. (14)

Observations.—(14) This is but one feature, though that certainly a capital one, in the system of natural or domestic procedure, which I adopt in all its points: all technical ones being absurd and pernicious, as I shall show in due time, in proportion as they depart from it. I introduce the article here, partly as having an intimate connexion with that for the abolition of the monopoly possessed by lawyers, partly for the occasion I shall have to build upon it.

It is not enough that suitors be permitted to attend upon their own business; they must be bound to do so, at least at the outset, saving such exceptions as particular necessities may suggest,—a topic of detail not worth discussing here.

When the parties are brought face to face, at the outset of a cause, in presence of the judge, both speaking upon oath, upon the same footing as witnesses, the following advantages are the natural result of such a meeting:—

1. No cause, that is not carried on bonâ fide on both sides, can well go any farther: the suspicions entertained, by each of each, being reciprocally communicated, are either removed or converted into certainty, and the plan of fraud and treachery, whatever it be, being rendered hopeless, is abandoned.

2. The same thing may be said with regard to all causes founded on any error or misconception on either side, which it is possible for such information as the other party has in his power, or the sagacity of the judge, to remove.

3. If the cause turns solely upon the evidence of the parties, or upon such real evidence as they happen to bring with them, or upon the question of law, or upon all together, it may receive a decision upon the spot. And why not then, as well as weeks, or months, or years afterwards?

4. The cause, if not terminated, is at any rate cleared in the first instance, by mutual admissions, of all facts on each side which the other does not mean to contest. By this means it is cleared of all the witnesses and written or other real evidence relative to those facts, of all expense relative to the production and examination of such evidence, and of all expense relative to the drawing of instructions for such production and examination. If the costs of the successful are thrown upon the unsuccessful party, a man though ever so much disposed to take any unfair advantage, will make no difficulty of admitting all such as, if not proved already, he is satisfied it must be in the power of the adversary to prove.

5. Both parties speaking upon oath, and like witnesses under the check of cross-examination administered upon the spot, all such false allegations, the truth of which he who makes them has no hope of being able to maintain, are cut off at a stroke.

Thus are both species of insincerity, falsehood and suppression of truth, banished, and that at the outset, from every cause; at least rendered as perilous on the part of suitors as by the best mode of examination possible they are already on the part of witnesses. Insincerity is the great support of litigation. If scope were not left for the insincerity of the client, the insincerity of the lawyer would remain without employ. Insincerity has accordingly, in all modes of procedure devised by lawyers, at least by English lawyers, been knowingly and wilfully allowed, protected, and encouraged.

6. If the cause, for want of sufficient evidence, is not yet ripe for an absolute decision, the party who feels himself to be in the right, may in the meantime have the satisfaction of receiving a sort of conditional decision, which to him may be little less tranquillizing than an absolute one. It will have been thoroughly understood, even at this early period, upon what hinges the dispute turns: whether it is the matter of law that is in question, or the matter of fact: what the facts are, on which the pursuer grounds his claim, and whether the defendant’s reliance is upon the disputing of those facts, or whether he trusts to some counterplea, which the pursuer disputes. A perspective view is thus gained at any rate by both parties, of the whole field of inquiry which the cause can have to run through: and it is in the power of the judge to announce to them hypothetically, what his decision will be in any event: what if the law or the facts turn out this way, and what if they turn out the other.

7. If it be a case fit for compromise, now is the time when a compromise may be brought about, at the most advantageous period, and under the most advantageous circumstances.

There are two cases, and but two, in which a compromise is not inconsistent with the ends of justice. The one results from the state of the law; the letter of the law lies open before both parties; and the manifest uncertainty of it reduces in the eyes of each the value of his claim. It may appear to each better to forego a part of his hopes, and realize the other part, than to remain exposed to the chance of foregoing the whole. The other case results from the circumstances that attend the fact. The expense of investigation may be certain; the result uncertain. The expense may be greater than the value in dispute. This may even remain the case, after all artificial expense has been struck off by law, and of the natural, none left but what is unavoidable; witnesses, for instance, to be fetched from distant parts, long accounts to be sorted, copied out, and subjected to minute discussion. In the first of these cases, it is true the compromise can derive no facility from the presence of the judge. It is his duty to decide. He must not be allowed to profess uncertainty, lest he should affect it. Groundless doubts may be affected with much less peril of character, than groundless decision given; and use might be made of them to extort from the suitor the sacrifice of a clear right. But as to every other subject of doubts, there is nothing to restrain the judge from assisting the parties with his representations and advice. What should hinder him? Is there any repugnancy between the functions of the mediator and the judge? There should seem to be, in the eyes of the committee; for they institute a set of courts upon a separate establishment, ordained to mediate, and impotent to decide. See the annexed paper on the reconciliation offices proposed by the committee.

8. If delay is now requested, no more will naturally be granted than what the exigencies of justice really demand. For, the party who applies for it will naturally be required, not only to make known the purpose for which he wants it, but to satisfy the judge that it is necessary for that purpose.

Under the current systems of procedure, delay is fixed inexorably for all causes, because it is possible that it may be necessary in some. A certain measure of delay every defendant is entitled to, whether he has need of it or no, and without telling any lies to get it. Another measure, upon telling certain lies, which, not being rendered punishable, are told without reserve or mystery. Another measure again, upon giving such reasons, as, true or false, shall have been fortunate enough to have passed the test of examination. So long as you make a point of keeping suitors at a distance from each other, and from the judge, this profusion of delay is unavoidable. When you cannot tell how much time a man may honestly have occasion for, you must make sure of giving him enough. As you will not ask anybody that can tell you, it is impossible you should know how much he has occasion for. You must therefore give him what, in ninety-nine instances out of a hundred, will be too much. Such is the consequence of unbending rules in a system of procedure.

What then? Are men of the first rank and consideration—are men high in office—men whose time is not less valuable to the public than to themselves—are such men to be forced to quit their business, their functions, or what is more than all, their pleasure, at the beck of every idle or malicious adversary, to dance attendance upon every petty cause? Yes, as far as it is necessary, they and everybody. What if, instead of parties, they were witnesses? Upon business of other people’s everybody is obliged to attend, and nobody complains of it. Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing by in the same coach, while a chimney-sweeper and a barrow-woman were in dispute about a halfpennyworth of apples, and the chimney-sweeper or the barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly. Of the two hardships, then, which is the greatest—to attend upon other people’s business, or your own? One thing is certain, that if a great man who sues or is sued does not attend the judge, he must attend an attorney. Of the two attendances, which is most humiliating to his grandeur, and most consumptive of his time? Another thing is equally certain, that by the attendance of one person, great or small, in the character of a party, you may save the attendance of twenty such persons in the character of witnesses. What by confessions, concessions, or proposals—what by narrowing a cause, or putting an end to it altogether—no expense of time can be thus incurred that is not repaid with usury.

When a suitor, instead of attending a judge, attends an attorney, what is there saved by it? The client tells his story to the attorney, that the attorney may tell him what the judge will do, if the story turns out to be true. The attorney knows nothing about the matter; but he will write down the story, and give it to a counsel, that the counsel may tell him what the judge will do. If anybody knew what the judge would do, one should think it should be the judge. But the judge is not to be spoken with. How can you expect he should?—a cause would be put an end to as soon as begun—he has not been for some hundred of years; nor ever will again, if he can help it.

Convenient as this meeting would be to suitors, the opposite arrangement, it must be confessed, is by much the most convenient to all sorts of persons upon whom the option depends. It is more convenient to the lawyer to have a great deal of business, than a little. It is more convenient to the judge to do business with friends and gentlemen, than with low people and strangers. It is more convenient to the legislator to listen to the wishes of those who would save him from all trouble, than of those who would give him a great deal. I speak of British legislators: not of French, who know no pleasure but such trouble.

New Draught.—Art. XXII. All privilege in matters of jurisdiction stands abolished. All subjects stands henceforward upon an equal footing, in respect, as well of the manner of pleading, and the order in which their causes are to be heard and decided, as of the choice of the courts before which they are to plead. (15)

Art. XXIII.—The constitutional order of jurisdiction shall not be disturbed, nor the subject drawn out of his natural court by royal commissions, or attributions of causes, or arbitrary evocations. (16)

Committee’s Draught.—Art. XIII. All privilege in matters of jurisdiction is abolished. All subjects without distinction shall plead in the same form, and before the same court, in the same cases. (m)

Art. XIV.—The constitutional order among the jurisdictions shall not be disturbed, nor subjects called out of their natural tribunals by commissions or attributions, or arbitrary evocations. (n)

Observations.—(15) (m) Happy France! where aristocratical tyranny is laid low; while in England it is striking fresh root every day. When a peer commits a murder, more mischief is done by his trial, than by his crime. The time of the legislature, that time which is the property of the nation, and which ought to be employed on great plans of national reform, of which there is such abundant need—that time of which there can never be found enough, even for the routine of unavoidable affairs—is wasted upon this and a thousand other petty businesses, which could be a thousand times better transacted elsewhere. To the nation, the life of an idle peer is worth as much as that of an idle porter, but not so much as that of an industrious one. To the peers, their right of being tried by their own body in capital cases was of use when peers were in a state of perpetual hostility with the crown, and juries were at its devotion. It is now a burthen to the nation, and of use to nobody, unless it be to the Lord Chamberlain, and to make a raree-show.

(16) (n) In this fourteenth article, as in several of the preceding ones, we see correction, as is natural and necessary, treading in the footsteps of abuse. But, the mischief consisting in the application of the king’s sole authority to these purposes, respect should not have prevented the introduction of the king’s name. Commissions given, and attributions made by the authority of the National Assembly after public debate, on the grounds of public necessity, would stand upon a very different footing. Such extraordinary exertions of power nothing but necessity should extort from any authority; and in a settled government, such necessity is not likely frequently to arise. But that it may sometimes arise is what the National Assembly can have no doubt of, for it is what they have been acting under every day, though in the chastest manner, and with the most exemplary regard to justice. In tying up the king’s hands, they should take care to confine the knot there, and not slip it unawares upon their own.

New Draught.—Art. XXIV. Resolved, That this assembly will, with all convenient speed, proceed to the enactment of a law to determine in what cases, and how, the power of evocation may be lawfully exercised. (17)

Committee’s Draught.—Art. XV. A law shall be made to regulate the laws where evocation may lawfully have place. (o)

Observations.—(17) (o) Of the future law about evocations, as here announced, I have some suspicions. A lawsuit carried on, in order to know whether a lawsuit shall be carried on, is a bad thing: especially a lawsuit carried on in the capital by the inhabitants of a remote province, in order to know whether a lawsuit is to be carried on in that or a neighbouring province. In the cases where it may be proper a cause should go out of its ordinary court into an extraordinary one, it would be much better if it could be made to find its way thither of itself, without any one’s interfering extrajudicially to evoke it. This is accordingly what I have aimed at in a set of provisions which will be found in Tit. IV. of the present draught.

This article is nothing but a resolution, in which form I have accordingly conceived it.

Committee’s Draught.—Art. XVI. All subjects being equal in the sight of the law, every sort of preference, even respecting the rank and order in which a man shall be judged, is an injustice. In every court, the clerk shall keep a register-book, of which the leaves shall be numbered and signed by the president, in which all the parties who demand judgment shall cause their names to be set down in the order in which they shall have appeared and made requisition at the office. The president shall form three lists; in which shall be distinguished causes upon report, causes for hearing, and matters of a provisionary and summary nature. Each matter shall be entered upon the list to which, by its nature, it belongs, but in the order in which the names of the parties have been entered upon the register-book in the office: and this order shall be followed in giving judgment. (p)

Observations.—(p) Of this 16th article the first sentence seems to be unnecessarily severed from the 13th. The great principle it lays down will be found, I doubt, to be but indifferently pursued in the details that follow in the same article—details too minute to match with the rest of the contents of so general a title. The technical nomenclature of causes upon report, and causes for hearing, citing and adopting the present technical practice, the putting of these dilatory modes of proceeding before the summary ones, as if delay was to come in course, and expedition only in causes that were not worth delaying, are no very favourable omens. A fundamental position with me is, that every cause should be presumed summary: none taken out of that class without special reason. Expedition is the good to be aimed at: delay an evil to be submitted to through necessity, and only to the extent of the necessity. But of this hereafter in its place.

As to the inviolability of the order of the causes, by the parties whom the committee speak of as demanding judgment, they must surely mean the pursuers in each cause; for if the priority depended upon the defendants in cases where the defendant’s object is delay, as it is in most causes, the expedition gained by this regulation would not be very great. What then? When a cause is set down for argument, and the person who should argue it is dead, or confined to his bed, is it to be decided on that very day, and without hearing? If not, either the order of the causes must be departed from, or fifty causes must be delayed to no purpose on account of one. The article, by the terms of it, does not exclude any sort of cause, criminal any more than civil. A defendant guilty of a capital offence is not likely to be in any great haste to join in setting down his cause.

In judicial procedure, every rule that is not made to bend will be sure to break, or still worse must ensue. And when a rule, laid down by the legislature, is made to bend by the authority of the judge, what is this but the power of interpretation so anxiously proscribed.

In the Court of King’s Bench, causes are in general tried in the order in which they are set down upon the paper. Yet, upon special reason given, a cause is every now and then brought forward, or put back. But as this, if opposed, cannot be done without both parties being heard, nobody ever dreamt of the power’s being abused.

New Draught.—Art. XXV. Resolved, That this Assembly will proceed with all possible expedition to frame a new code of procedure, of which the object shall be to render the administration of justice as simple, as expeditious, and as little expensive, as possible.

Art. XXVI. Resolved, That this assembly will proceed with all possible expedition to frame a new code of penal law, of which the object shall be to render the punishments in every case as proportionate, as mild, and as apposite, as possible; never losing sight of the maxim, that every lot or degree of punishment which is not necessary, is a violation of the rights of man, and an offence committed by the legislator against society.

Committee’s Draught.—Art. XVII. The code of procedure in civil cases shall be reformed without delay, so as to render the proceedings more simple, more expeditious, and less expensive.

Art. XVIII. The penal code shall be reformed without delay, so as that punishments may be better proportioned to offences; taking care that they shall be mild; and never losing sight of the maxim, that every punishment, which is not necessary, is a violation of the rights of man, and an offence committed by the legislator against the community.

CHAPTER II.

Tit. II.—

Distribution and Gradation of the Courts of Justice.

New Draught.—Art. I. In every parish [or canton] there shall be a court of justice of immediate jurisdiction, under the name of the parish or [canton] court, composed of a single judge; saving such consolidations or divisions of parishes, as may be made for this purpose, in virtue of the powers hereinafter given.

Art. II. In every district there shall be a court of justice of immediate jurisdiction, under the name of the immediate district court, composed, in like manner, of a single judge.

Art. III. In every department, or subdepartment, or district, there shall be a court of appeal, under the name of the provincial court of appeal, composed, in like manner, of a single judge.

Art. IV. At Paris there shall be a court of appeal, in the last resort, under the name of the metropolitan, or supreme court, composed, in like manner, of a single judge.

Art. V. The decrees of the metropolitan court of justice shall be final, except such on account of which censure shall have been past on the judge, by a decree of the National Assembly, in manner hereinafter specified.

Art. VI. To each of the several classes of courts above mentioned, is given authority over all sorts of persons, and in every sort of cause, throughout the kingdom: saving only the difference between jurisdiction immediate and appellate, and the authority of certain tribunals of exception, in as far as the same is hereby acknowledged, and provisionally confirmed.

Art. VII. These are,—1. Courts-martial in the land service: in as far as the powers of such courts are confined to the maintenance of discipline among military men.

Art. VIII.—2. Naval courts-martial: in as far as their powers are confined to the maintenance of discipline among men engaged in the naval department of the public service.

Art. IX.—3. Causes relative to matters happening at sea, on board private vessels, belong to the jurisdiction of the courts of any territory where the vessel is in harbour; viz. to the immediate courts, if no regular judgment has been passed, in virtue of any lawful authority, on board the vessel; or, if there has, then to the courts of appeal.

Art. X.—4. Courts ecclesiastical: in as far as the powers of such courts are confined to the maintenance of ecclesiastical discipline among ecclesiastical men.

Art. XI.—5. All representative assemblies: for the purpose of putting a stop to, and punishing, offences committed, by members or others, in face of the assembly.

Art. XII. All courts, other than the tribunals of exception as above specified, shall be comprised under the common appellation of ordinary courts.

Art. XIII. In every ordinary court but the parish court, and in every parish court where there is a judge specially appointed, as in Tit. V. there shall be a pursuer-general, and a defender-general.

Art. XIV. Attached to the authority of the judge, as well as to that of the pursuer-general and defender-general of every ordinary court, shall be the power of appointing substitutes, or deputies; viz. one permanent, and occasional ones as occasion may require.

Art. XV. The name of advocate-general, or public advocate, shall be common to pursuers and defenders-general; and the name of judicial magistrate to judges, advocate-generals, and the permanent deputy of each.

Committee’s Draught.—Art. I. In every canton there shall be a judge of the peace, with good-men-and-true [prudhommes] for his assessors.

Art. II. In every district there shall be a king’s court, under the appellation of the district court.

Art. III. In every department, one of the district courts shall bear the name, and execute the functions, of a department court.

Art. IV. In such towns as shall appear to afford the most convenient situations, there shall be established superior courts of justice, which shall have for their field of jurisdiction, that of three or four departments, according to local exigency.

Art. V. Over the superior courts of justice there shall be, for the whole kingdom, a supreme court of revision.

Art. VI. The high national court, which shall have cognizance of impeachments of ministers, of crimes of high-treason against the nation, and of crimes punished with forfeiture on the part of courts of justice and administrative bodies, shall sit, when convoked, in the same place with the legislatures [auprès des législatures].

Art. VII. Matters of police, matters of trade, and causes relative to taxes and matters of administration, shall be cognizable in place and manner hereinafter to be explained.

Observations.—The principal differences beween the Committee’s plan and mine, turn upon the following points: viz.

1. The number of the judges put into each court. I put but one into any: they, from three to eighty-eight.

2. The principle of demarcation employed for the parcelling out of jurisdiction among different courts. I employ but one principle throughout, the geographical. They, after pursuing the geographical principle to a certain length, subjoin a multitude of tribunals of exception, grounded, as it should seem, upon no fixed principles.

3. The number of degrees of appeal. I establish two, and no more than two, for every sort of cause. They establish appeals in a number which it is not easy to count: different for different causes, and greater in several instances than they seem to be aware.

4. The vesting or not in the same persons the powers of a court of appeal, and those of a court of immediate jurisdiction. I establish this union of functions in no instance: they in several.

5. The nature of the tribunal standing on the summit of the scale. They give the penal controul over all other tribunals to a court called the High National Court, which is to be altogether independent of the National Assembly, and is to do a variety of other business. I give it to the National Assembly themselves: not thinking it fit to give, to any other set of men, a negative upon their laws.

6. The subjoining, as the committee does, a species of tribunal, with an authority different from that of an ordinary court of justice, under the name of a reconciliation-office. I admit no such thing; seeing nothing in a judge to hinder him from recommending a compromise, where such a recommendation is proper, nor any use in necessitating a lawsuit for the chance of saving a lawsuit, or in setting up a court with power to obstruct justice, and none to render it.

7. The mode of filling the offices of judicature. My plan, which is a new and particular one, has for its object the union of economy on the part of the establishment, with responsibility, intelligence, experience and that of the most suitable kind, on the part of the judge: without prejudice to the freedom of election on the part of the people.

8. The provision made for promptitude of justice, as far as depends upon the institution of the courts. In the committee’s I shall have occasion to point out several causes of retardation: in mine, several expedients for acceleration.

9. The provision made with regard to publicity. The committee make the publicity, or non-publicity of the proceedings, depend upon the penality or non-penality of the cause. Rejecting that distinction, I make the proceedings public in general; reserving secresy only for such special cases in which I can show it to be necessary, and in them no farther than it is necessary.

Where the committee mean the proceedings should be public, they give the judge, for witnesses of his conduct, two men, leaving him to take his chance for more, where they allow him any more. I give the obscurest judge a whole congregation: employing several expedients for securing to judges in more conspicuous situations, the benefit of a superintending audience.

10. The provision made for secresy, on particular occasions on which secresy is not incompatible with the ends of justice. This seems to be the object aimed at by the committee, in their institution of the family tribunal. In my plan, without prejudice to the ends of publicity, secresy is assured in all cases where anybody would wish for it, and just so far as they would wish for it, and no farther. The committee, though they appear to wish for it, have done nothing to ensure it.

11. The provision made for assistance to be given to the poor, to enable them to obtain justice. The committee establish a sort of court, or office, on purpose, consisting of members distinct from the courts of justice. I institute for the same purpose a pursuer-general and defender-general, with this and other functions, in the place of the committee’s king’s attorney, or attorney-general.

12. The use made of the institution of juries. The committee, in compliance with a general and not ungrounded prejudice, make it a fundamental article of the constitution. I give it to those who choose to have it, in cases in which they choose to have it, and not unless they insist upon having it: looking upon it as an institution, admirable in barbarous times, not fit for enlightened times, necessary as matters stand in England, of use against particular mischiefs, but those happily no longer possible in France. The grounds of this opinion will be amply set forth in a dissertation on purpose.

The questions concerning the number of the judges to be put into a court, the principle of demarcation to be pursued in the multiplication of courts, and the number of degrees to be permitted in the business of appeal, being topics that run through the whole plan, must meet with some degree of consideration under the present title. The remaining ones may wait for the several titles by which they will be respectively brought to view.

I.

Of Numbers in Judicature.—Single Judges preferable to many.

The question as to the number of judges acting together in the same court, seemed of such importance as to require a discussion too long to appear in form of a note. I have accordingly dismissed the full consideration of it to a separate essay. The result is, that (under the auspices of publicity) one judge is beyond all comparison preferable in every instance to any greater number. That this will be found to be the case, whether the question be considered with regard to the properties to be wished for on the part of an establishment for the administration of justice—which are, rectitude of decision, promptitude, and cheapness: or the qualities that in that view are to be wished for on the part of a judge—which, as far as they are concerned in the present question, are probity, exertion, and intelligence. That probity on the part of a judge is, to every practical purpose, to be considered as exactly proportioned to the strictness of his dependence on public opinion, meaning the general tenor of it. That a single judge finds nobody on whom he can shift off the odium of an unjust decree—nobody to share with him the weight of that odium—none to help, support him under the apprehension of it, by the encouragement of their countenance. That a single judge has it not in his power to give, without committing himself, the value of half a vote to an indefensible cause, by purposed non-attendance. That the reputation of a single judge stands upon its own bottom: and that he finds nobody to help him, as numbers help one another, to raise a schism in the public, and draw after them the suffrages of the unreflecting part of it, in spite of evidence, by the mere force of prejudice. That a judge, by being single, exerts himself the more from his seeing no resource but in his own powers. That in a single judge most intelligence is likely to be found, in as far as intelligence is the fruit of exertion. That the advantages obtainable from a plurality of heads independent of exertion, are wanted only in a small proportion of the whole number of cases: and may be had, in proportion as they are wanted, by the help of advocates and courts of appeal, without putting more judges than one into the same court. That it is only under a single judge that the quality of promptitude can be pushed to perfection. That a single judge has but one opinion, and one set of reasons, to give: that he has nobody’s opinion to wait for: nobody to debate with, to gain over, or to quarrel with: nobody but himself to put unnecessary questions, suggest unnecessary steps, and necessitate useless adjournments: all which causes of delay are so many causes of expense: nor, what to the committee seems to be so much the object of apprehension, anybody to form a party with, and rise up in opposition to the authority of the legislature. That the addition of colleagues in judicature is productive of the several inconveniences alluded to, in a degree exactly proportioned to their multitude. That all the advantages that can be expected from a multiplicity of judges may be insured, in a much greater degree, by a numerous auditory, with the addition of the whole world for readers, as to everything in the conduct of a judge, that anybody thinks worth their notice: and that any advantage, that can ever have resulted by accident from such multiplication, can be imputed to nothing but the chance it affords of an occasional glimmering of publicity. That what constitutes arbitrary power in judicature, is not the unity of the judge, but his exemption from the controul of a superior, from the obligation of assigning reasons for his acts, and from the superintending scrutiny of the public eye. That the reproach of arbitrary power belongs, on all the accounts we have seen, to the authority of many judges, especially large bodies of judges, in contradistinction to that of one: and that the circumstances which render plurality indispensable in sovereign legislature do not apply to judicature. That in Great Britain this reasoning has received the fullest confirmation imaginable from experience: that the probity of the courts of justice there runs uniformly, in a ratio compounded of the direct proportion of the publicity of the conduct of the judges, and the inverse proportion of their numbers. That imagination cannot conceive, nor heart desire, greater integrity than has been uniformly displayed for ages, by courts composed of single judges, without juries, under the auspices of publicity, though in a state of dependence on the crown: while courts composed of large multitudes of judges, and those occupying the highest ranks of life, have, either virtually or formally, abdicated their authority, on the avowed ground of their profligacy or inaptitude.

If these principles be just, the saving they will produce in the expense of the establishment is prodigious. In the expenses attending the collection of taxes, in the terms of loans, in the adjustment of most other plans of economy in finance, a saving of a few units per cent. is thought a great matter: here it runs in hundreds per cent., and the least saving is a hundred.

A question the committee do not appear to have taken into consideration is, whether the number of judges allotted to each court are on every occasion to sit together, taking every one of them cognizance of each cause in every stage of the proceedings; or whether on any and what occasions they are to divide themselves, one part sitting upon one cause, and another part sitting upon another cause, at the same time.

For this question my plan affords no room. On the plan of the committee, it is of the highest importance.

I. First, Suppose the judges never to separate. In this case, what if one set of judges to a territory, to a district, to a department, to a super-department, should not be sufficient for the business? What follows? Either a proportionable part of the causes must go without justice, or more such courts than one must be established in every such territory. My notion is, that there will scarcely be any one such territory in which the single court allotted to it will suffice: and that, on the contrary, several will be found, in which a considerable number of such courts will be found necessary. If so, this profuse multiplication of judges, and the profusion of expense which is the consequence, must be multiplied in proportion; and the multiplication will increase in proportion with the facility of the terms upon which the people obtain justice; that is, with the goodness of the plan—with the degree of its subserviency to its end in other respects.

In point of power of dispatch, it must not be supposed that five, or ten, or twenty, or six-and-thirty judges, will be equal to one; they will be much less than one, and less in proportion to their multitude. The reasons of this have been already intimated, and are more fully stated in the paper alluded to. Where I should want three or four courts of concurrent jurisdiction in the same territory, the committee, for the same quantity of business, might want four or five.

If the judges were not to sit constantly all together, but were upon occasion to distribute themselves, then—

1. In proportion as the distribution took place, the principle of the committee would be departed from; and whatever advantages are expected from the multiplicity of judges would be give up.

The distribution, if any, would be, I suppose, for the purpose of dispatching different causes at the same time. It is not very natural, though in many instances it would be possible, that it should take place, for the sake of dispatching at the same time several points relative to the same cause. Points in a cause present themselves generally at successive periods, according to the stage to which it has advanced. It is possible, indeed, for one judge to be examining one witness; another, another; while a third judge is occupied in hearing a debate on some question of law. But this is not the usual course, nor in general would it be a very eligible one.

In France, the custom has been hitherto, if I understand right, for one judge, in a court consisting of perhaps twenty judges, to take to himself, under the name of judge-reporter, the examination of all the witnesses: while the decision, whether upon the conclusions to be drawn from the evidence, or upon the questions of law, is given afterwards by the whole body. According to my notions, if there were any use for more judges than one, it would be much rather for the examination of witnesses, than for deciding on the question of law, or upon the whole body of evidence, as furnished in writing by other hands: but of this elsewhere. Be that as it may, if, while one judge is occupied in collecting the evidence, the other nineteen are to stay at home, and do nothing, nothing is gained by the separation. Nineteen judges out of twenty are kept idle, without any reason: the advantages, real or imaginary, of a multiplicity of heads, are sacrificed: and nothing gained in dispatch, except what depends upon the hitherto-unheeded advantage, in this respect, of one over a multitude.

If this matter is to be left at large, as I believe it is, more or less, in France as well as elsewhere, then comes in a world of complication: regulations deciding what number of judges shall be necessary in one case, what sufficient in another: adjournments for want of the sufficient number: debates on the question whether a case belongs to one or another of these heads. This is one out of the thousand ways in which trouble and expense are spun out of nothing, to no purpose.

If it be impossible to know beforehand, with any tolerable exactness, what the quantity of business will be in any judicial territory, and what number of courts it will require to go through with it, the fixing beforehand a precise number of courts for any such territory must be improper: if not enough, the consequence is a failure of justice; if more than enough, an unnecessary expense. This must be particularly apt to be the case under a new system, so different from everything that has gone before it. It is on these considerations that I have rendered the number of judges, that is, of courts of concurrent jurisdiction in each territory, so far loose as to be able to be suited with tolerable exactness to the experienced demand: viz. by the powers given to each judge to appoint deputies without salary, and the powers given to the local representative bodies to add courts, composed of single judges with salaries, as will be seen under the next title: avoiding every expense on this account, of the necessity of which there can be any doubt.

This sort of pliancy, so necessary to every new establishment, nothing but the system of unity in judicature, and the extreme simplicity that characterizes it, could have rendered practicable.

The confidence which the committee have in numbers is extreme. No consideration but that of the expense seems to set them any limit on this side: of course, the more important the business of the court, the more judges they put into it. In their lowest order of courts, as there are to be so many of them, (about four thousand) they put but one judge, who surely must be paid as such, though nothing is said about it—doubtless, because they could afford no more; but to him they add two other poor men, under the name of assessors, who are to appear to cost nothing, because the expense is to be thrown upon themselves. In the order of courts next above, in the district courts, they put five. In the courts called Reconciliation offices, one to each district, which are to keep men from going to the district courts, they put six, of whom three are to appear to cost nothing: the other three, being lawyers, are to be paid: in the department courts, ten: in the courts called Superior, twenty: in the court called Supreme, thirty-six: in the High National Court, which is still higher than the supreme, eighty-eight, out of whom eighty-three are to have the name of jurors, with scarce anything but the name.

What should have occasioned this predilection for crowds, I am under some difficulty to determine.

1st, It cannot have been experience of advantage: the testimony of experience can hardly have been so opposite, surely, in France, to what it has been in Great Britain.

2dly, Was it mathematical reasoning? Perhaps so, in some degree. I have by me a large quarto of mathematics, written by a mathematician and politician of deserved eminence, in which the utility of numbers, as a security for good judicature, is assumed. The conclusions of mathematicians, though always mathematically just, are not unfrequently physically false: that is, they would be true if things were not as they are. Some necessary element is omitted to be taken into the account: and thus the only effect of the operation is to mislead. Of the elements which I have ventured to suggest as proper to be taken into the account here, unfortunately there is not one that has been taken into the account I speak of.

3dly, Was it the mere force of habit? Probably so, in no inconsiderable degree: the habit of seeing numbers put to the same business, and the greater numbers commonly to the more important business. But of this multitudinous establishment of judges, what was the final cause? Was it the advancement of justice? was it that they who raised it, thought that justice would be the better for it, or cared whether it would be or no? No: but because the king wanted money, and this was found a way of getting it: the more judges, the more offices; the more offices, the more money.

In the decision of this question, one thing ought not to be forgotten. Simplicity and frugality being on the side of unity, the onus probandi lies altogether on the other side. It is for those who contend for the complicated and expensive establishment, to show that it possesses advantages, and those so considerable, as to outweigh the indisputable and enormous inconveniences of complication, and multiplication instead of addition, of expense.

Even although, upon no other grounds, the decision were unfavourable to the principle of unity in judicature, still, if it were not very clear and peremptory, the prodigious advantage, in point of economy, might entitle it at least to a temporaty trial. Should the system of simplicity fail upon the trial, nothing would be easier than to go on to a more complicated one, and add complication in proportion as complication were adjudged necessary. Begin with a complicated one, it is not so easy to fall back into the line of simplicity. At the first outset you may give your scale of expense whatever degree of contraction you think proper, without hardship to any one: but a scale of expense once enlarged cannot be contracted without real hardship and much difficulty. Before any one is named judge, say there shall be one judge only, instead of six-and-thirty, and you hurt nobody. But suppose six-and-thirty chosen, are you then at liberty to strike off five and thirty of them? Not justly, without continuing them their salaries: and even then, loss of dignity and power is a hardship, for which you have afforded them no compensation.

View the establishment as a subject of economy: so long as frugality presents but a tolerable chance of answering the purpose, who, in an overburthened nation, would give the first trial to profusion? Consider it in the light of a means directed to an end: better pay the price of the complicated establishment for the simple one, than that of the simple one for the complicated one.

I could suggest temperaments and compromises—unity below, multiplicity above, where, fewer tribunals being wanted, it would cost less; because purity above insures purity below; and the certain disappointment of all projects of injustice is a sure preventative of all such projects. Numbers the last resort, to those who choose to bear the expense: as in England you may for a guinea a-head have a special jury, if you choose not to trust to a common one. But why look out for temperaments, to spoil simplicity and substitute mediocrity to excellence? Reason, supported by experience on one side: prepossession derived from mere habit on the other—can the most enlightened of nations hesitate?

The strength of the argument against single judges and summary justice lies in an epigram of Montesquieu’s. Single judges are bashaws: summary justice is Turkish justice. “The bashaw sees how the matter stands at the first word, orders both parties a good drubbing, and there’s an end of it.” The situations are not altogether parallel. In Turkey, no written law; for among the thousand and so many pages of the Koran, there are scarce ten about law; and they might as well have been about anything else. In Turkey, no public, no press, no newspapers, no National Assembly, no municipal or administrative bodies, no popular elections. In Turkish justice, no minutes of proceedings, no appeals, no means of escaping from the jurisdiction of an exceptionable judge, into that of an unexceptionable one: an escape which the committee’s plan hopes in vain to effect at the expense of a lawsuit on purpose, to be carried on in the metropolis; and which mine insures without expense, delay, or difficulty.

Thus much for the advantages of simplicity, in relation to the number of judges to be put into a court. We shall find them equally indubitable, and little less considerable, in relation to the multitude of sorts of courts to be put into the establishment. I mean the adoption of the geographical principle of demarcation to the exclusion of every other, striking off without mercy all manner of tribunals of exception, as well those which the committee create, as those which they destroy: two or three indispensable ones excepted, which, as presenting themselves to everybody, they have not thought it worth their while to notice.

CHAPTER III.

Title II. continued.—

On the Mode of parcelling out Jurisdiction.

In an extensive country, such as France and England, more tribunals than one are necessary.

Two causes concur in the production of this necessity: 1. The time which the business must take up on the part of the judge; 2. The time and expense which it must cost the suitor to go in quest of justice.

A necessity of this kind may result from the first of these causes, where it would not from the other. Population may require more tribunals than one, where mere local distance would not. In a town like Paris, it is not conceivable that the time of one tribunal should be sufficient for all the business: but if it were, it could scarcely be worth while, on the mere account of local distance, to set up two. In the largest city, were the situation of the seat of justice at all centrical, no inhabitant could have more than two or three miles to go to it. The consumption of time would be little worth noticing, and the expense still less.

The consideration of local distance, including that of the time and expense of travelling, tends on two accounts to necessitate the multiplication of tribunals: on the score of economy, and on that of promptitude. Expense attending the pursuit of justice has the effect of a denial of justice to all who have not wherewithal to defray the expense: and consumption of time, to him who lives by the sale of his time, is equivalent to expense. Distance in point of place, making a proportionable distance in point of time, is productive of a failure of justice, in all instances in which, the business of justice if not done within a certain time cannot be done at all, and it is not done within that time: as if a fugitive thief were to be apprehended no otherwise than under a warrant from the judge, upon the application made by the party robbed, and the party’s residence were fifty miles from that of the judge’s.

On both these accounts, if the consideration of local distance requires anywhere the multiplication of tribunals, it is by requiring their distribution. There must in the whole be several tribunals, that everywhere within a moderate distance of the remotest suitor, there may be one.

The advantage to be gained by the institution of several tribunals at a distance from one another, could not be insured in every instance, unless a boundary line of some sort or other were drawn between them somewhere, distinguishing the spots over which their jurisdiction should respectively extend. In vain would you give a man a tribunal close to his own house, if, at the pleasure of an adversary who waited for nothing but an opportunity of distressing him, he were liable to be dragged away before a tribunal at the farther end of the country.

The purely local ground of multiplication may exist, too, without the temporal. Few or many, distant from, or contiguous to each other—all the inhabitants of a country must have access to, all must be accessible to—justice. Few or many, every one of them, every two of them, at least, must have within a certain distance of them a judge. For want of justice, any man may at any time lose his all: not to mention life and liberty. But a very small portion of that all will be as much as his share of the sum requisite for the maintenance of a judge can possibly amount to, in any place inhabited and worth inhabiting. Though the quantity of business arising within a given territory took not up an half, or even a quarter of the time of the judge, yet if the territory is so extensive, that any persons living beyond the circle that bounds it would find themselves beyond that greatest admissible distance, the territory of that judge ought not therefore to be enlarged, much less any other territory tacked on it. In a very thinly peopled country, such as is the Russian empire in most parts of it, more judges may therefore be necessary in such parts, than full employment for is likely to arise.

The causes which contribute to render the local ground of multiplication a proper one, serve to fix the mark up to which the multiplication of tribunals (and consequently the division of territory for this purpose) ought, and beyond which it ought not, to be pushed.

The inconveniences that may result from occasional failure of justice, by reason of want of promptitude, will, it is true, scarce come under calculation. Those resulting from the constant denial of justice are easily determinable: and on this ground it may be laid down as a rule, that the area of a judicial territory ought always to undergo a further division, if the value of the time that would be saved on the part of all the suitors by such further division would be greater than what it must cost to save it—which is the value of the whole time of an additional judge, added to that of the subordinate officers, whose services form a necessary appendage to the judicial office.

If any consideration could set limits to the multiplication of tribunals on this ground, it would be that of publicity. Publicity has been shown to be the sure and only effectual pledge of probity and all other qualities requisite on the part of the judge. Its efficacy in this respect will be proportioned partly to the number of the individuals of whom the public consists, but still more to the measure of intelligence to be found among them. On this account, for the sake of getting a good public, it may be worth while to send the suitor to a greater distance than he need have to go otherwise. On the mere account of economy, it might be worth while to cut down every section of territory, such as the committee’s districts, into six or eight sub-sections, such as their cantons: yet in this or that canton, there may be so indifferent a public, and in the chief town of the district so good a one, that in many cases it may be worth while to waive the advantages of nearer justice for the sake of those of better justice.

But of this consideration alone, what is the result? Not to set limits in any respect to the multiplication and distribution of tribunals: but only to suggest the expediency of permitting recourse to a more remote tribunal in preference to a nearer one.

An obvious expedient for reconciling the opposite demands thus made by vicinity and publicity, is that of appeal: when the near justice is found not to be good, let a man go farther and have better. Hence the use of an appeal from a canton court to a district court.

But double litigation is double expense and trouble. If the second litigation can be saved, in any instance, without any extraordinary expense, so much the better. If the time required by the quantity of business is sufficient to find employment for a district court of immediate jurisdiction, in addition to the canton courts within that district, the interests of vicinity and publicity may thus be reconciled in the first instance. Where, in the opinion of either party, the superior chance of good justice is worth paying for, by the trouble of going to an immediate court, seated in the capital town of a district, instead of a nearer canton court, he may have it. Under such an arrangement, causes which have anything particular in them, either in the way of difficulty or of importance, will naturally find their way to the district court: while the ordinary run of causes will stay, at least in the first instance, in the cantons. And in this way nature will effect, in the most perfect manner, and without any inconvenience, a separation which art and positive law could not, as we shall see, execute, but in a very imperfect manner, nor attempt without very signal inconvenience. On this consideration is grounded in part my establishment of immediate district courts, and the intercommunity of jurisdiction between every such court and the several parish or canton courts within the district, as according to Titles V. and VI.

Under the restriction thus set by these two considerations of economy, it is evident that the multiplication of courts upon this ground cannot be carried too far, nor consequently the extent of each jurisdiction confined within too narrow bounds. A thing much to be wished is, that no court of immediate jurisdiction should have an area so extensive, but that an inhabitant situated at the remotest point of it from the seat of justice might travel thither, do his business there, and return in the course of the day, without sleeping elsewhere than at his own home. Travelling early and late, this, it is presumed, he may do, if the distance is not greater than ten or twelve miles. This measure, not only the cantons, but even the districts, if the seats of justice in them are set down centrically, will, I hope, be found in general not to exceed. To a man who can afford no other means of conveyance than what nature furnishes, ten or twelve miles very early in the morning, and the same journey late in the evening, would be no intolerable hardship. A man who has more easy means of conveyance at command, has, at the same time, less need to regard the expense of a night’s lodging from home, and less occasion to incur it. But the persons not thus favoured by fortune are those whose interest ought to set the law; for of such is the bulk of the people made.

I speak of immediate courts: for as to courts of appeal, as in general they ought not in their judgments to take into consideration any other materials than what were possessed by the court below, and as it will not in any case be necessary that they should engage in any examination of personal evidence themselves, the necessity of personal attendance of parties does not extend to them. But of this under the heads of appeals. What if a district should be found anywhere, whose funds were insufficient to the defraying of this necessary expense? The aid of more opulent districts must be called in. Where there is no justice there should be no inhabitants. And that there should be justice in every territory is scarcely more the interest of the inhabitants of that territory than of all its neighbours.

Expenses, of which all parts of the kingdom have the benefit, should be defrayed by all. It is not therefore merely where a district is unable, but where it is less able than others, that it has a claim upon others for relief. Thus far, then, extends that least admissible number of local judicatures, to the expense of which the whole wealth and population of the kingdom should equally contribute. In a territory of which the population requires a further division of territory and an additional supply of tribunals, the same cause that creates the demand will afford the means of satisfying it. The more people there are who want justice, the more there are to pay for it.

The case above put must surely be ideal in a country like France; unless possibly in the neighbourhood of Bourdeaux. But in some countries, for example in the Russian empire and in America, it may have its application.

As to the number of courts of justice that France could afford to maintain, we know thus much, that, if according to the foregoing definition, it were worth while, she could afford as many as she contains parishes. For she can afford to maintain, and always has maintained, as many ministers of religion as she contains parishes. Better justice without religion than religion without justice. Religion can exist, does exist without ministers: justice never can exist, never has existed, without judges. But what is there between justice and religion so incompatible, as that he who ministers to justice might not minister to religion, or he who ministers to religion, might not, optionally at least, minister to justice? On this consideration stand the passages in Tit. V. of my draught relative to the provisional and optional use to be made of ecclesiastical ministers in the capacity of parochial judges.

The purely temporal ground of multiplication may, as hath already been observed, require more courts within a given territory, than it would be very material on the purely local ground to distribute. Where this is the case, intercommunity of jurisdiction may be permitted with less scruple: and from intercommunity of jurisdiction, in as far as other considerations allow of it, very material advantages may be observed, as I shall presently have occasion to show.

Taking a country throughout, the purely temporal ground of multiplication, and the local ground of distribution, agree however pretty well in the results they dictate. It is only in towns, that you can find it necessary on account of the quantity of business to set down in the same territory, two tribunals which on account of the distance, it will not be eminently advantageous to distribute.

What must never be forgotten is, that though the grounds for multiplication of tribunals may be two, the ground for dispersing them, and in consequence for parcelling out jurisdiction between them, is but one. This simple and genuine principle of demarcation I style the geographical one, in contradistinction to certain spurious ones, of which presently.

As to this principle, it must be observed that, though, when the sections of territory that have been the result of it are very small, for example less than the area of the largest towns, the benefit to be obtained from pursuing it still further be not very considerable, yet that benefit is always something: so that, in whatsoever section of territory the quantity of business requires the placing of two tribunals, it is better to place them at a certain distance from one another than not: and for that purpose to cut down the section into two, how little rigour soever may be thought necessary in guarding the limits between the two sections from being overleaped. Neglecting, therefore, the purely temporal ground of multiplication, as one which can never present any tribunals as fit to be erected, which on the ground of local convenience it would not be advantageous to distribute, we may consider distribution as the inseparable accompaniment of multiplication, and the geographical principle of demarcation as presiding throughout over the establishment of courts of justice.

I seem to have said nothing: in fact, I have said everything. So long as any more courts can be set down to advantage, in addition to such as may already have been set down upon the geographical principle, so long ought more courts to be set down, but still upon the same principle.

When there are so many tribunals erected upon that principle, as it is worth while to have in a territory, more tribunals ought not to be erected on any consideration, or on any pretence. Add but a single tribunal more, on the suggestion of any other principle, what is the consequence? As a court of justice it is useless: as a source of expense it is pernicious.

If anything prevented the application of the geographical principles of demarcation, other principles might be resorted to, and jurisdiction might be carved out in the manner presented by such other principles. No principle for this purpose has ever been adopted in an extensive country: none ever could have been adopted to the total exclusion of the geographical one. Other principles, however, have been resorted to in concurrence with it, sometimes perhaps because something prevented carrying the geographical principle to the end of its career, but oftener without that reason, without any good reason, and without any cause but the propensity to imitation. But all such spurious principles are very bad succedanea to the only genuine one, having no advantage over it in any respect whatsoever, and being incurably infected with many, and very important, inconveniences, as will presently be seen.

These principles may be all reduced to two: the metaphysical, as I take leave to style it, and the pecuniary. The metaphysical principle of demarcation is a bad principle: the pecuniary one is a bad modification of that bad principle.

I term metaphysical the principle that gives to one court one sort of cause, to another court another sort. Geography is a study as pleasant as it is simple: it is one of the sports of children. Metaphysics, when well applied, though a very useful, is a very dry study: and here, being very ill applied, it is a very pernicious one.

From the sensible world you now find yourself launched into the intellectual. Adhere to the geographical principle, the map of France or England is your sufficient guide. A speculative field now commands and tortures your attention. A new map is now spread before you: a map of causes of action, of sorts of rights, of sorts of wrongs, or of offences which are the infringement of those rights. Spread before you, did I say? No: the legislator has done no such thing for you: he knows not how to do it. He refers to objects as if they were to be found in such a map: but the map, if there be any such thing made, it must be you that make it. It is for want of understanding metaphysics that the legislator talks metaphysics to you, and calls upon you to understand it. On pain that may follow, on pain of life, liberty, or fortune, he commands you to understand that with which, had he himself understood it, he would have known better than to have meddled.

To some of the tribunals, severed by the metaphysical principle of demarcation from the body of those set up upon the geographical principle, the committee give the name of tribunals of exception. I give it to all of them.* Tribunals of exception are productive of various inconveniences, which multiply in proportion to the number of such tribunals. Spite of those inconveniences, the very few tribunals of exception which stand in my plan under that name, are not only convenient but necessary, as will be shown further on. Excepting those, of which the committee take no notice, no others are attended with any advantage whatsoever.

An establishment constructed exclusively upon the geographical principle of demarcation, and that pursued to the utmost, is chargeable with one inconvenience, which is the expense. But of this inconvenience a certain measure is inseparable from the establishment upon any plan: it is inseparable from all establishments: and by the supposition, the expense is not laid out without fruit. It is chargeable, however, with no other imaginable inconvenience whatsoever. An establishment into which the other principle of demarcation is admitted, is, in proportion as that other principle is pursued, attended with no less expense, and with the following inconveniences, from which the geographical one is free:—

1. Superfluous multitude of courts: hence money wasted to pay unnecessary salaries. So many courts as it is worth while for you to pay for, so many does the geographical principle require: whatever the metaphysical adds, are just so many which it is not worth your while to pay for. Five courts the committee have taken from the geographical principle; courts of appeal included: the canton court, the district court, the department court, the superior court, and the supreme court. Four others they have taken from the metaphysical principle: their high national court, their court of police, their court of trade, their court of administration and revenue: not to mention what they call a reconciliation-office, and I a court for obstructing justice.†

2. Inconvenient paucity of courts: the inevitable consequence of such a superfluity. If five ranks of courts, one above another, are necessary in any one sort of cause, so are they, without any exceptions worth mentioning, in each.

Five times five and once five make thirty: applying the geographical principle to each division made of the metaphysical, they ought therefore to have had thirty sets of courts, instead of thirteen. Their court of revenue, for example, has cognizance of debts due to the state on the ground of taxes: but as four thousand of these courts were too many to distribute among the cantons in addition to the four thousand courts called canton courts, the cantons are deprived of the benefit of these courts, which are given to the districts only, to the amount of no more than five or six hundred. But if it be inconvenient to a man to travel from one side to another of a district, to answer to a demand of two or three livres made on him on the part of an individual, it is not at all less so when the demand, instead of being made on the part of an individual, is made on the part of the crown.

3. Useless addition made to the voluminousness of the laws, with which increases always the difficulty of apprehending and retaining them; and the chance that a given disposition of law will in each given instance be ineffectual to its object—effectual only to the purpose of drawing down punishment or other unexpected hardships, for want of having been apprehended or retained.

4. Difficulty of knowing which of so many sorts of courts to resort to. How happy the suitor where there is but one court, the court! the simplest of all clowns would not mistake his way to it. Cut courts out of another with metaphysical sheers, a science of that which ought not to have had existence is thus created out of nothing. To the necessary science of knowing whether you have a right and a remedy for it, is added the unnecessary one of knowing to what sort of a judge you are to go in order to get your remedy. In vain have you re-enacted your indefeasible law of nature, and proclaimed the maxim, Every man his own lawyer. The hireling laughs at your maxim, and sits down in tranquil certainty of his prey. He knows that, in the very first step in the road to justice, you have built a labyrinth, to which no man has a certain clue, and to which no man but a lawyer can pretend to have any.*

As to the committee, the foundation of their labyrinth is laid; but who shall say, when, or by whom, it shall be finished?—Out of the first parcel of metaphysics come forth doubts: then comes more metaphysics to solve those doubts; and out of the fresh metaphysics arise fresh doubts. At a moment’s glance, I see doubts enough to fill a volume:—but who would thank me for it?

5. Subservience to the purposes of publicity is not the least among the advantages of the principle of universal competence. Tribunals of exception cut off the attention of the public from the principal courts, and from each other, and break down the superintending part of it into portions too small to be sufficiently respectable.

In England, as in France, a thousand heterogeneous tribunals, armed with scraps and fragments of jurisdiction, distract the attention of the public, not less than they deform the face of justice. Gather up these fragments, put them into one great receptacle, no part of the public will be lost. This, and that, and t’other court, escape from observation; but the court, an object deriving greatness from its simplicity, lifts up its head like a landmark, and extorts attention from the most incurious eye.

Ask for the advantages of this complication: they are absolutely none. No, not the smallest particle; not a shadow of advantage. A particular branch of the law, it will be said, will in a particular spot find of itself constant employment for a court of justice. Be it so. What follows? That you ought to have a court empowered to take cognizance of that branch, and no other? By no means. By denying to that court all other branches of jurisdiction, what do you gain? Nothing.—Oh! but the judge may not understand the other branches so well as that particular one. Why so? what should hinder him? Does not every advocate that practises understand every branch? The knowledge which you make sure of finding in every advocate, why should you doubt of finding it in a judge? The judge has the advocate to prompt him: who is there to prompt the advocate? When the book of the law is opened before him, as you intend it shall be, will it be more difficult for him to read one page of it than another? No: if the law has anything in it more difficult than another, it is this very science, which you create out of nothing, under the notion of solving difficulty. What belongs to him, and what does not, is one of the most difficult points which the judge of a tribunal of exception, or the judge from whose jurisdiction a tribunal of exception is severed, has to solve.

The particular branch of business, you say, will be sufficient of itself to fill up the time of one tribunal. So it certainly may be, just sufficient to take up the time of one court, and no more; just sufficient to take up the time of two courts, and no more; and so on. All this is possible: but the chances against its being fact are infinity to one. Is one of these peculiar courts not quite sufficient? Two such courts will be sufficient, and a great deal more. Institute but one of them, all men are delayed, and some go without justice. Institute two, the judges of one or both sit idle a great part of their time. I ask, what is the use of their being kept idle, surrounded as they are by fellow-citizens, who, for rights relative to other branches of the law, are lingering without remedy?

Bad as the metaphysical principle of demarcation is, the pecuniary is still worse. Why? Because to all the bad qualities of the metaphysical, it adds others of its own. To such a court shall belong the cognizance of such and such sorts of causes, says the metaphysical principle: provided they are not beyond such or such a value, subjoins the pecuniary. What follows? That, besides being plagued about the sort of cause, you are plagued about the value. What if the value of the thing change in the course of the cause? What, if there be several who claim shares in it, or against whom shares are claimed? What if one claimant gives up his share, and makes the thing beyond value? Does the addition of interest to principal, or of costs of suit to both, raise it beyond value? The doubts, that sprung out of the institution of assessors to criminal examinations, are nothing, in comparison with the unobviated ones that might be drawn out of this single word.

But the worst charge against the pecuniary principle is yet behind. It is the being connected, as it is inseparably, with a false estimate of importance: in consequence of which, causes of chief moment have been treated in various ways, as if they were of little moment, or none at all.

To detect the false measure, we must lay down the true. View a cause through the medium of public concern, the importance of a class of causes has two measures; its importance to the interest of each individual person concerned in each individual cause, and the number of individuals so concerned.

On both accounts, the importance of a class of causes relative to a sum nominally small, instead of being, what the pecuniary principle always supposes it to be, less than that of a class of causes relative to a sum nominally large, is greater. The importance of a sum to the interest of a given individual, is in its ratio to his income. It is but a small proportion of the people, for example, in France, that have each so much as 200 livres a-year to live on: a very small proportion, indeed, if women and children are to be taken into the account:* the king’s brothers are to have each exactly 20,000† times that sum; 2,000,000 of livres. One livre is, therefore, of at least equal importance to the one, with what 20,000† livres is of to the other. It is, in fact, of much greater importance: for superfluity will bear retrenchment, and that in proportion as it is superfluous: a bare subsistence will bear none. Take from a king’s brother half his income, he still remains an opulent prince. Take from an ordinary day-labourer half his income, he starves.

Taking this for the true measure of pecuniary importance, the importance of a cause, taken indiscriminately, is rather in the inverse than in the direct ratio of the sum; for as the classes of men are more numerous as they are poorer, and the most numerous of all is the poorest of all, a cause about a small sum is more likely to be the cause of a poor man, than a cause about a large one.

The medium, through which the question of importance has usually been viewed, is of a different tinge. That cause is a cause of importance in the eyes of a legislator, that would be so to a man of his opulence, that is of his dignity, and to the great men, that is, to the rich men he is wont to live with,—of whom alone he is wont to think with any degree of complacency, and who alone are deserving of his care. That cause is a cause of importance in the eyes of a lawyer, which will afford a lawyer such a fee as a man of his dignity may stoop to take. Such a cause is to be summoned up to those superior courts where men of such dignity do not disdain attendance. A cause of no importance is a cause that will afford no such fee. What becomes of such cause, or of the class of people likely to be concerned in such a cause, is a question not worth caring about. The cause and the parties are turned over, without appeal, to some obscure and inferior jurisdiction which does with them what it pleases.

From the notions, just and unjust, that have prevailed respecting the importance of different classes of causes, two principal distinctions have been deduced; one respecting the mode of judicature to be respectively allotted to them; the other respecting the treatment to be given to them in the way of appeal. The latter consideration belongs to the next head: a few words relative to the former may come in here.

When the subject thrives, it is sometimes by the care of his keepers, and not unfrequently by their neglect. Regular justice, as it is called, is the justice which the reverence of lawyers has provided for important suitors and important causes. Summary justice is that with which, in their disdain, they have, in some few instances, prevailed upon themselves to indulge the vulgar herd. Regular justice—that is, dilatory, expensive, refined, justice, and, in every respect, and every instance, the worse for its refinement. Summary justice—that is, cheap, expeditious, and substantial. The division having been made, the distribution could not have been more happy. But the plain truth is, that no such distinction ought to have existence. Good justice, it is not less in the power of legislators to bestow, if such is their pleasure, upon the most important causes than upon the most trifling ones: upon the rich than upon the poor. Justice in itself is simple: it is the same for one man as for another: it is only legislators who, by the advice of lawyers, have complicated it, and torn it into shreds. It is neither above nor below any man’s level, unless where removed out of his reach by the interested cunning or blundering anxiety of those whose province it is to dispense it.

That summary justice is really the genuine, and regular the counterfeit, is what any one, who has read the observations of Art. 21 of the preceding Title, has, I trust, found some cause to suspect. To convert his suspicions into complete assurance belongs not to the present work, but to the subject of procedure.

If these principles of demarcation have no foundation in utility, how came they, say you, to be adopted? Just as so many other principles came to be adopted in legislation, at first from some narrow private interest, or some narrow view of public good, afterwards from imitation. Force alone decided geographical boundaries: force and cunning together decided metaphysical ones. In the war of all against all, while baron and baron were fighting for territory, lawyer and lawyer were scrambling for jurisdiction. The king’s lawyer seized what he could from the baron’s lawyer: the baron’s lawyer retaliated as well as he was able: the priest stole what he could from both. This was the case all over Europe. In France, this precious branch of metaphysics derived peculiar encouragement from royal indigence: jurisdiction was cut in slices to be sold; and the discovery of a new branch, capable of being stripped off anyhow from the old trunk, was like the discovery of a gold mine. New laws would cause, every now and then, fresh branches to sprout out: and then, what was to be done with them? Distributed among the sets of judges in being? Their hands were full already. New remedies would now and then be thought of for old subsisting rights: the old judges could not, or would not apply them: and new workmen were appointed to the new work. Tired of being without justice, in countries where the extravagance of the price threw it out of people’s reach, parts of the people would grow clamorous: their demand would, every now and then, be complied with, as to a few sorts of causes, to a value too small to be worth a lawyer’s notice: and thus the pecuniary principle came to be grafted upon the metaphysical in these and several other ways. The artificial principles of demarcation had got so far the ascendant as almost to hide the natural one from view.

The committee found this system of complication in full vigour. What did they? They did as every body must do: go to work upon the old stock of ideas, when time for the discovery of new and better ones is not to be had. When the treasury of error is exhausted, then at last comes truth: when the stores of complication are expended, then at last comes simplicity.

I have spoken of certain tribunals of exception under the name of necessary ones. Their bare names might perhaps be received by most men as sufficient proof of their title to that epithet. But a legislation ought not in the minutest article to rest upon the naked grounds of prejudice. Error lurks among unquestioned propositions.

1. Courts-Martial.—Among military men the necessity of the strictest discipline is obvious to every body. Such discipline could not be maintained without military courts. All is lost, if obedience does not follow instantaneously upon command. A soldier might as well be out of the reach of command as out of the reach of instant judicature. In such a service itinerant suitors must be accompanied by itinerant judges. In such a service no one can so well judge of the importance of an order as he who gives it. While the ordinary judge was learning so much of the art as would be necessary to enable him to form his judgment, the service would be going to ruin. Happily they who command soldiers will serve to judge them, so that the nation will not, on the score of this part of the judicial establishment, be loaded with any additional expense.

2. Tribunals, if anything of that sort there be on board of vessels in private service, as surely there might and ought to be, would scarcely come to be mentioned under the head of tribunals of exception, were it not for the state of subordination into which their judgments might be put in the way of appeal, with relation to the ordinary courts. While at sea, if any jurisdiction is exercised over the class of persons in question, it must be by a tribunal of exception: for a judge cannot be on land and out at sea at the same time. While in harbour, the necessity for the tribunal of exception exists no longer; for the harbour is within the reach of ordinary justice. But in this instance nothing hinders but that the judgment given by the tribunal of exception out at sea might, when the vessel returns into harbour, be subject to review of an ordinary court. If so, that court ought, for the reasons given under the head of appeal, to be a court of pure appeal, and not an immediate court.

3. Ecclesiastical courts, in as far as their jurisdiction is confined to the maintenance of ecclesiastical discipline among ecclesiastical men, I have added provisionally to the number of tribunals of exception, merely to avoid prejudging a delicate question at an immature period. This stable will surely be taken by Hercules for the scene of one of his labours, but surely it will be the last scene. The reason grounded on the supposition of a peculiar sort of skill not likely to be possessed by ordinary judges—this reason, if not altogether so cogent in this as in the military department, is at least at a distant view as plausible. This is no place for giving that plausibility any disturbance.

4. Representative bodies and other legalized assemblies, for the purpose of preserving good order during the continuance of the assembly.—To deny an assembly a tribunal for this purpose, would be to refuse it the right of self-preservation. Without the means of quelling disturbance, and that at the very instant the disturbance was offered, it might never act, for it might be constantly disturbed. A negative upon all its acts would thus be in the power, not only of every single member, but of every idle or malicious stranger.

Cast an eye over the several heads of inconvenience which plead against the establishment of tribunals of exception in general, you will find them either apply but faintly in these instances, or vanish altogether. But any farther discussion relative to points so clear would scarcely be of use.

To these tribunals of exception, of which the committee take no notice, but which they certainly have no idea of abolishing, they add the following ones, which they either create or preserve. I mentioned, I believe, but five of them in a preceding paragraph: for the stores of such a mine were not to be exhausted by a first glance.

I.

New Tribunals of Exception, erected under the express character of Courts of Justice.

• 1. Family-Tribunal for civil cases. Tit. IX. Art. 11.
• 2. A different Family-Tribunal for penal cases. Tit. IX. Art. 12.
• 3. High-National court. Tit. XI.
• 4. Municipal Bodies, under the name of Judges of Police. Tit. XIII.
• 5. Courts of Trade. Tit. XIV.
• 6. Immediate Courts of Administration and Taxes. Tit. XV. Art 1.
• 7. Appellate Courts of Administration and Taxes, formed out of the Superior Courts. Tit. XV. Art. 4.
• 8. Appellate Mint-Courts. Tit. XV. Art. 13.

II.

New Tribunals of Exception, or Law-Offices of a particular kind, designed to block up the entrance into the Courts of Justice.

• 1. Canton-Courts, set up in the character of Reconciliation-Offices, in the way of the District-Courts. Tit. IX. Art. 4.
• 2. District-Reconciliation-Offices, set up in the way of the District-Courts. Tit. IX. Art. 4.
• 3. District-Reconciliation-Offices, set up in the way of the Department-Courts. Tit. IX. Art. 5.
• 4. District-Reconciliation-Offices, set up in the way of the Superior Courts. Tit. IX. Art. 5.
• 5. District-Directories, set up in the character of Reconciliation-Offices, in the way of the immediate Court of Administration and Taxes. Tit. XV. Art. 5.
• 6. Department-Directories, set up in the character of Reconciliation-Offices, in the way of the immediate Courts of Administration and Taxes sitting on special matters. Tit. XV. Art. 6 & 7.
• 7. Municipal Bodies, set up in the character of Reconciliation-Offices, in the way of the immediate Courts of Administration and Taxes sitting on other special matters. Tit. XV. Art. 8.

III.

New Tribunals of Exception, or Law-Offices of a particular kind, designed to smooth the road to the Courts of Justice.

• 1. District-Reconciliation-Offices attached, in the character of Charitable-Law-Offices to the District-Courts. Tit. IX. Art. 6.
• 2. Charitable-Law-Offices, attached to the Department-Courts. Tit. IX. Art. 7.
• 3. Charitable-Law-Offices, attached to the Superior Courts. Tit. IX. Art. 7.

IV.

Old Tribunals of Exception preserved.

• 1. Transit-Duty-Courts. Tit. XV. Art. 5.
• 2. Mint-Courts. Tit. XV. Art. 13.

Intercommunity, I have already observed, is not inconsistent with demarcation. It is necessary there should be boundary lines. Were there none, a plaintiff would not know from what judge he was entitled to assistance: a defendant would not know to what judge he was generally amenable: the judge would not know to what suitors his services were principally due. No man would know how far he might have to go for justice: no man could be secure of finding justice anywhere. Boundary lines once traced, it is not necessary that men should be rigorously confined within them. Convenience was the final cause of tracing them: the cause ceasing, so should the effect.

Upon the application that may be made of the principle of intercommunity of jurisdiction, depend several very essential advantages:

1. Convenience in respect of distance. In general, the court of a man’s own parish, canton, district, or whatever the division be, will be nearer to him than that of any other circumjacent one: but if not, why tie him down to it? In general, it will be more convenient to a man to stay at home, than to go elsewhere: but if business, or pleasure, call him elsewhere, why make home a prison to him? The place most convenient to the one party, is not always so to the other: when interests thus clash, it is for the less to give way to the greater. The convenience of both may point to a spot which is the home of neither: if the judge can spare them any of his time, without prejudice to those who have a preferable right to it, why should the law grudge it them?

2. Giving the greatest number the benefit of the best judicature. In England, under a decline of faculties, this facility has more than once afforded a palliative to the inconvenience of an irremovable judge.

3. Keeping up emulation among judges. Judges of the same rank, especially neighbouring ones, will be rivals for confidence. A sort of perpetual election will then be kept up, but that a quiet one: and the honour of a judge will be measured, as the profit of a shopkeeper, by the number of his customers.

The influence of the principle in this line has been thought to be not altogether imperceptible, certainly, if so, it is not, at this time of day, otherwise than salutary, in English judicature. Though probity requires causes of a more powerful texture, exertion, and the subordinate qualities of affability and good temper, may derive from a circumstance like this, no inconsiderable assistance. Shortly after the Conquest, ignorance drew at random various boundary lines of the metaphysical kind, in the upper regions of justice:* mutual fraud, spurred by sordid motives, struggled, at various periods, to overleap them: the war ended in a sort of uti possidetis, productive of a large measure of intercommunity in various quarters. If anything remains, at this time of day, of all that warfare, it is a certain dignified emulation, covered by decorum, and no otherwise perceptible than in the good qualities that flow from it.

4. Preventing conflicts of jurisdiction. When everything that is not fixed in this way by geometry, is made to follow liberty, there is no room for rapine.

I will venture a prophecy: it can be no ordinary measure of virtue, as well as good fortune, that can suffice to disfulfil it. No sooner are the committee’s magistrates installed, if peradventure they should be installed, than they will fall together by the ears. Serpent’s teeth are the seed: fighting judges will be the harvest: the metaphysical entrenchments thrown up by the committee invite attack, rather than repel it. Convenience will find them adamant: doubt and chicane will find them shadows.

The committee have gone before me in my prophecy. One of the functions of their supreme court (Tit. X. Art. 9,) is to keep repairing these entrenchments as the earth crumbles, and to quash judgments that over-leap them.

I have a singularity on this head. Quashing, the favourite pastime of English judges, has no licence from me. Nullity, the choicest instrument of fraud and chicane, is not upon my list. I care not by whom, or in what way, justice be done, so what is done be justice. In my system is neither dispensing power nor vicarious punishment. I give to no lawyer’s clerk, to no hackney-writer, a negative upon the laws. I set up in no garret, nor in any cellar, an office for selling pardons. With me, judgments are alterable or reversable, always for injustice, never for irregularity. If there be blame, I punish the author of the mismanagement, not the innocent who suffer by it.

5. Insuring the suitor against partial and suspected judicature. The suitors will have nothing left to wish for on this head, if, as often as it happens to the judge to find himself exposed to the action of any cause of partiality, weak or powerful, visible or invisible, he is not only at liberty, but bound, either to dismiss them to another near tribunal, or to disclose to them his situation, asked or unasked, that the party concerned may take his choice.

Such are the considerations which dictated the principle of intercommunity as developed in the series of provisions that form the fourth table in my draft.

The committee have their remedy for this too. If an inhabitant of Provence or Navarre has his suspicions of a judge, he has but to take a walk to the supreme court at Paris. (Tit. X. 9.) At the end of a lawsuit carried on in due form, he will get, or he will not get, a judge that he likes better: and then the lawsuit, which is to give him what he wants, or save him from what he fears, is at liberty to begin.

The institution of circuits has been spoken of as a master-piece. Great men travelling round the country twice a-year, staying two whole days in a place, and carrying justice home to the very doors of little men. What condescension! Justice at thirty or forty miles distance is certainly better than at three or four hundred. Justice four days out of the 365 is certainly better than no justice at all on any day. The worst possible plan that could be contrived is certainly four times as bad an one as this elaborate contrivance: but the most simple and most obvious, which is to put judges where they are wanted, and to let them stay where they are, is just ninety-one times as good an one.

* * * * *

English circuits, I understand, have partizans in a respectable assembly in France. What follows is a tribute of respect to those honourable gentlemen.

The denial of justice is no evil—assume but this one postulate, and you may prove that the institution of circuits, as it stands in England, has some colour of advantage.—1. It gives you no bad chance of not having a partial judge. Staying but a day or two in a county, a judge has no time to form connections in it. If country gentlemen never came up to town, and if barristers never went circuits before they were judges, nor ever went the same circuit twice after they came to be judges, they might have no such connexions. Whatever antiseptic virtue there may be in mobility, there is, happily, rather more in paucity, responsibility, and publicity, or judges would not be what they are. It gives you a cheap establishment. Send a judge to a place four days, he will cost you but a ninety-first part of what it would cost you to keep him there at the same enormous salary for 365. Keep no judge anywhere, and your establishment will be still cheaper. One thing the argument forgets: that what you save in judges, you spend ten times over in counsel and attornies. Instead of having one judge to pay for all causes, you have two or three counsel of as many different sorts, and two or three attornies, of so many different sorts, to pay in every cause. No cause but what must travel backwards and forwards between town and country several times, without reckoning appeals: and causes do not travel from thirty to three hundred and odd miles for nothing. You have a country counsel to pay, a non-travelling town-counsel, and a set of travelling town-counsel: you have a country attorney to pay, and a town attorney. This is part of what you get by not paying your share towards the expense of a country judge.

If motion be necessary to honesty, nothing hinders your putting your judges into a roundabout, so long as you put a seat into it for every county, or whatever else the division be, with a judge in every seat. Complication precedes simplicity. Invention begins in imitation. I had made a model of a roundabout for my judges—I settled my principle of intercommunity of jurisdiction, I moulded it into the form represented in Tit. IV. of my draught, and I threw my roundabout into the fire. I invite the committee to dispose of their twenty sets of tribunals of exception, in the same way. I may show, perhaps, more at length, what they will be gainers by such sacrifice. My roundabout would have cost money, for judges do not dance for nothing. My principle of intercommunity costs not a farthing. When improbity is rendered impossible, contrivances for rendering it somewhat less probable may be spared.

Another thing the argument forgets: that circuits keep defendants in criminal causes in jail, six months in some places, twelve in others, before trial. Oh! but if they had not been guilty, they would not have been put there. Perhaps so; and if so, there is no use in trying them by circuit judges. Several other things the argument forgets—that, between circuit and circuit, evidence vanishes, witnesses are tampered with, justice flies away in a pet, if a witness’s watch happen to go too slow: causes lose the best part of their features by being squeezed into a nutshell: time digs a great gulph betwixt delinquency and punishment. But what need can there be to remember more?

If you will have circuits to be good things, keep to metaphors. Corruption breeds in stagnant waters. Assume that judges are waters, and the thing is done.

Three courts, with twelve judges in them, serve, by the help of circuits, for as many jury causes as all England supplies. I will tell gentlemen how they may make twelve judges go as far in France. Enact a law that no man shall sue another for a shilling, without spending thirty pounds before he knows whether he shall get it or no, and as much more, up to three or four hundred, as circumstances may require. The last shilling I have happened to hear of as got in this way, cost the plaintiff 130 pounds, of which, however, by the help of the judge’s certificate in his favour, he got back all but the odd thirty. This shilling had nothing to distinguish it from other shillings. When you give £150 for a shilling, you may set down the exchange as something above par, according to the course of English justice. After this, let Frenchmen send to English practice for models of justice.

Do gentlemen suppose that the uses that have been found for circuits were the considerations that produced them? The interest of the individual, or the moment, produces laws in a dark age: ingenuity finds uses for them in a more enlightened one. Do they consider what it was for that circuits were set a-going? It was to enable the great tyrant to swallow up the little ones. While the feudal tree was in full bloom, and castles sprung up like mushrooms, each castle enclosed a giant, who, growling treason at the king, sat banqueting on the favourite food of giants, the blood of the people. For this delicacy he was beholden to his dwarf, who with a lawyer’s gown upon his back, sat squeezing the blood out, and conveying it into the monster’s mouth. The arch-giant, whose dwarfs, with all their squeezing, could not supply him fast enough, bethought himself at last of dispatching giants-errant to kill the little giants, that he might get their share. As these hunting giants required to be fed till they could find game, it was only now and then that such hunting parties could be fitted out. At first it was once in seven years, and this was counted a “stupendous effort of magnanimity and benevolence,” by the romancers of that time. At last it came to twice in one year, where it stands at present. The little giants were killed, but the giant-killers, instead of filling their places with good men, went on their rounds, as they continue to do to this day.

When a piece of clock-work is set agoing, and heads to look after it are wanting, it keeps on going, whether it be of use or whether it be of none. The old clock-work of revolving judges, having kept on going for so many years, is admired to this day: partly because it was of use when new, but much more because it is so old, that greatest of all merits in the eyes of lawyers.

The National Assembly of France has been charged with madness for pulling down establishments: and because they have done so, the nation, it is said, is miserable. Those who entertain themselves so much with the idea are yet, it seems, to learn, that if you would have a good house in the site of a bad one, you must pull down your bad one. Were the French legislature as careless for the moment, as the English legislature has been ever since it has been a legislature, there might be some foundation for the charge. While the local judicatures of the barons, courts subsisted, justice, such as it was, was to be had for everything. The short proof lies in the period of the first circuits: for if men could have lived seven years without justice, so might they until seventy times seven. With much ado, those judicatures were demolished. Feeling the want of them every hour, we have been sitting upon the ruins for so many centuries, without so much as a thought of rebuilding anything in their room.

Had I the honour of a seat in that house where the miseries of preparatory demolition were so pathetically expatiated upon, I could find in my heart to propose the restoration of these local judicatures. On what ground? Not under the notion of putting a period to oppression:—not under the notion of rendering it possible for the body of the people to have justice:—I feel full well the weakness of all such arguments.—No. But for the pleasure of demolishing the work of innovation, and re-edifying that most exquisite of all structures, the old English common law.

CHAPTER IV.

Tit. II. continued.—

On Courts of Appeal.

§ 1.

Plan of the Chapter.

Courts of Appeal form the subject of this chapter. Under this head, answers will be expected to the following questions:—

1. Whether any such courts are necessary, and, if necessary, on what account?

2. To what causes their jurisdiction ought to extend?

3. At what places tribunals of this nature ought to be erected?

4. How many ranks of such tribunals there ought to be erected one above another? In other words, How many degrees of appeal ought to be allowed?

5. Of what description the judges seated in such tribunals ought to be? Whether in the description of this sort of judge there ought to be any, and what difference, distinguishing him from a judge of an immediate court?

6. Whether the functions of an immediate court, and those of a court of appeal, ought in any instance to be lodged in the same hands? In other words, Whether appellate jurisdiction ought in any instance to be joined with immediate?

7. What ought to be the proportion, in point of number, between immediate courts and courts of appeal?

The answers to these questions will depend in great measure upon the inconveniences liable to result from the allowance of appeals, and upon the remedies that can be provided against those inconveniences. But the provisions by which those remedies are administered are most of them so many provisions of procedure. This consideration renders unavoidable the anticipating on the subject of procedure in some degree. Not a branch in legislature but what is intertwined with every other. Not a twig can be managed as it should be by him who does not bear in mind a picture of the whole.*

§ 2.

Grounds for the Allowance of Appeals.

Allow appeals, you suppose misconduct on the part of the judge. Suppose no such misconduct, rehearing answers every purpose.

The uses of this allowance are two: 1. To correct wrong decision, whether intentionally so or unintentionally; 2. To prevent decision intentionally wrong, by rendering the accomplishment of its purpose hopeless.

Undue decision is not the only means whereby the object of undue decision is capable of being accomplished: it might equally be so in many cases by delay,* or by suppression of evidence.†

Suppression of evidence may be effected either in a direct way, or indirectly by undue precipitation, or refusing the time necessary for the collection of the evidence.‡

Appeals, properly so called, have therefore for their necessary adjuncts: 1. Complaints of delay; 2. Complaints of suppression of evidence: of which latter a particular modification is, 3. A complaint of undue precipitation, productive of a suppression of evidence.∥

It is evident, therefore, that a court of appeal, in order to answer the purpose of its institution, requires to have cognizance of the several sorts of complaints just mentioned. It will be found equally true, that it can require a cognizance of nothing more.

The institution of appeals is not merely useful to the two purposes that have been mentioned; it is absolutely necessary to both those purposes: neither the superintendence of the public eye exercised through the medium of publicity, nor the establishing of responsibility, civil or criminal, on the part of the judge, nor both these securities put together, can supersede to either purpose the necessity of appeals.

As to publicity, the virtues of it are transcendent; but they are not all-sufficient. 1. They are manifestly insufficient to the correction of undue decision, whether intentionally wrong or unintentionally: they are even insufficient to the prevention of it. Whatever security they may afford against a want of probity, they afford none, no immediate one at least, against a want of intelligence. They tend unquestionably to increase the measure of intelligence, in as far as intelligence is the fruit of exertion: but in this way their efficacy is unhappily precarious, as well as slow: they will render him who has talents more careful to improve what he has; but they will not absolutely give talents to him who has none. Neither can the security they afford against want of probity, powerful as that security is, be depended upon as being in all circumstances proof against all temptation. The sophistry of the passions may flatter a man with the hopes of eluding the scrutiny of the public eye: the violence of the passions may steel him against the public censure: there are treasures, in competition with which reputation itself may appear to have lost its value. It was not for want of publicity to guard it, that the virtue of Appius sunk under the shock it met with from the beauty of Virginia.

The security which responsibility alone, to whatever extent it be carried—the security which responsibility, civil or criminal, affords against undue decision, is equally short of the mark. Against unintentional error it is nothing: to this cause of undue decision it never can apply. Render a judge liable to answer, though it were with his fortune only, for a mere error in judgment, that is, for an opinion different from that of him who is to judge over him; no man, unless perhaps a man of desperate fortune, would take upon him the office of a judge. The mere weakness of the intellectual faculties is what you can never punish: you can punish for no misconduct in which you cannot charge the will with having had in some way or other a share: you may punish for improbity; you may even punish, so it be lightly, for mere want of attention well demonstrated; but for mere want of natural talent you can never punish.

Against even intentional misconduct in this way, the efficacy of punishment alone is almost equally uncertain and deficient. Innumerable are the occasions in which mischief may be done—infinite is the mischief which may be done, in this line, without leaving any traces of such criminality as punishment can lay hold of. Innumerable are the instances in which, lest you should punish blameless error or excusable inattention, you will find yourself obliged to let go inexcusable guilt. The efficacy of legal punishment in this way, though capable of greater strength than that of the censure of public opinion, is still more limited in its extent. Ignominy will scent out many a lurking-place to which punishment can never penetrate.

Add publicity and legal responsibility together, still; without appeal, the measure of security is incomplete. Expatriation will save a man at once from the gripe of punishment, and from the sting of ignominy. Expatriation, though to some an intolerable punishment, is to others a pleasure. Expatriation for an ignominious cause would indeed, to a judge, be a loss of salary, as well as of reputation. But how often may it not be in the power of a wealthy delinquent to afford to a judge an indemnification more than equivalent for the loss of salary, as well as for every other inconvenience of expatriation? especially if the judge, through misfortune or misconduct, should happen at the time of the temptation to find himself straitened in his circumstances. And the sort of judge whose virtue stands exposed is, it must be remembered, of the lowest rank, and commonly in circumstances assorted to that rank. A delinquent, with a hundred thousand pounds in his pocket, is under trial for a crime, the legal consequences of which would absorb his whole fortune: a sacrifice of half of it would be a gaining bargain. Who shall say that no judge, and that in the lowest rank, shall ever be found, who would prefer such a pitch of opulence in a neighbouring country, to hard duty and a moderate salary in his own?* How often in England might not a supposition of this sort be realized by the plunder of the East!

True enough it is, and not undeserving of remembrance, that were it not for the security afforded against intentional misconduct, the benefit to be reaped from the institution of appeals, as a corrective to unintentional error, would hardly pay for the expense. The only considerable mischiefs liable to flow from the latter source, might be cured by other means at a much cheaper rate. The utmost mischief that can result from a single decision so circumstanced, abstraction made of the influence that decision may have upon future ones, is of small account. Whether it shall or shall not in that way cast any prejudicial influence, depends upon the legislature. If it was the matter of fact only that was in question, no such influence can have place: if it were the matter of law, a word from the legislature is sufficient to put a stop to it. Of a decision on the point of law, the effect is, to declare what on the point in question is the will of the legislature. If the declaration be right, there is no error in the case: if wrong, a false law is given as to that sort of case, instead of the true one. But it is the fault of the legislature, if laws that are none of theirs are suffered to be given under their name. A committee of revision, to watch over the interpretations given of the acts of the legislature by the courts of justice, and to report such as appear to have erred from the mark, that their influence, as to the future, may be stopped, is a remedy equally commodious and indispensable. For a committee of this sort some work is already found by Articles 11, 13, and 15, of Tit. I. in my Draught.*

§ 3.

Inconveniences of Appeal, with their Remedies.

If courts of appeal were any thing less than necessary, the institution would, it is evident, be far from eligible. Expense to the public is interwoven with the establishment: expense and delay to the suitor, and thence frequently a failure of justice, is inseparable from the proceedings. Institute more ranks than one, the measure of these inconveniences is increased in a great degree, though not absolutely doubled, at each rank. In what places courts of this sort ought to be set down, and thence how many ranks of them, in a country like France, there ought to be, are questions that will meet us farther on. Thus much in the mean time is evident, that the efficacy of the remedies that can be found for these inconveniences is a consideration by which the number of these courts to be provided, and the stations to be allotted to them, connot but be influenced in a considerable degree: a general view of these remedies must not therefore be omitted here. In all the established systems, large tribes of causes are excluded from the benefit of appeal, on consideration of the expense. Is the exclusion a necessary or justifiable one? To this question no answer can well be given, till after consideration had of the reductions that are capable of being made in the expense.

All the inconveniences above mentioned must have place, in a greater or less degree, although appeals were never to be preferred any otherwise than bonâ fide; that is, accompanied with a sincere persuasion of right, and suggested by a pure desire of justice. To such only can the institution propose to itself willingly to give admittance. The misfortune is, that, along with bonâ fide appeals, malâ fide ones will be liable to slip in: appeals in the preferring of which a man is conscious he is in the wrong, and which he prefers with no other view than that of gaining some undue advantage. Allow this privilege, you must expect to see it oftentimes made use of to no other end than to the staving off the evil day, when satisfaction is to be made or punishment undergone: you must expect to see it made use of for the sake of loading the adversary with expense, and what by the delay, and what by the expense, producing a failure of justice. Such are the uses which you may be sure will be made of it, in as far as ignorance or negligence has left room. To the list of remedies against the inconveniences of appeals in general, must therefore be added another list of remedies, calculated to prevent not only the inconveniences resulting from, malâ fide appeals, but the appeals themselves.

First Remedies against the Inconvenience of Appeals in General.

1. At the head of the first of these lists, may be placed the establishment of the maxim, that the appellate court shall receive as grounds for its judgment, no other documents than what have been submitted to the observation of the court appealed from.

This maxim is in a manner a necessary consequence of the use and definition of an appeal. An appeal supposes error on the part of the judge appealed from: suppose no such error, there is neither ground nor use for it. A rehearing would have been the more simple and equally effectual remedy. But it is no error in a man, not to have profited by documents not within his reach. Add any one document whatsoever to those which he had before him, his judgment might have been altogether different. Under such circumstances, judgment in appeal would be correction where there has been no mistake.

From this maxim, if steadily adhered to, result several capital advantages:—

It gives liberty to choose the fittest situation for the court of appeal, with little or no regard to distance. Were a set of witnesses to have to travel five or six hundred miles upon every sixpenny cause, from an immediate court at Perpignan to a court of appeal at Paris, or a judge of appeal to travel from the judgment-seat at Paris to the abodes of the witnesses at Perpignan, the grievance would be intolerable. But when all there is to convey is a parcel of papers, when once they are put into the post, whether they have sixty miles to go or six hundred, makes in comparison but little difference.

It saves the expense and delay of a repeated collection of the evidence. By the virtue of this single rule, the burthen is thus reduced almost a half.*

The operation of this fundamental measure of economy may be made to receive considerable assistance from several subsidiary provisions.

2. Transmission of the record† from the court below to the court above, by the post, and that gratis, and without passing through mercenary hands.

3. Power to either party to take the judgment of the court above in the first instance, upon mere view of the record, without argument; but without being precluded from the right of arguing, if the decision given on the mere view of the record be not satisfactory.

4. Like power, upon subjoining to the record a written argument.

An appellant or respondent may by this means take two chances, if he pleases, for a decision in his favour, before he puts himself to the expense of engaging an advocate to plead vivâ voce at the court above. The decision not to be conclusive against either party, till he has been at liberty to be heard by an advocate; but to be conclusive against him in the first instance, if he has availed himself of that liberty.

In all this there is no expense but the mere copying of the record; an operation which the appellant himself might be allowed to perform, if he were able, and thought it worth his while. I mean, except an advocate be employed: and then there is no need of an attorney. The pursuer or defender-general, as the case is (see Tit. XI. and XII. of my Draught,) at the court above, upon the fee’s being paid to the corresponding advocate-general at the court below, may be charged with the transmission of it to the professional advocate. Whether this advocate be employed in the metropolis, or in a country town, need, in point of expense, make little difference.

5. Interdiction of all appeals from interlocutory orders; in other words, from decrees other than definitive, on any other ground than that of irreparable mischief: as if the effect of the interlocutory order complained of would be an irrecoverable deperition of indispensable evidence. It is evident that where an interlocutory order would be attended with any such effect, it stands upon the footing of a definitive decree.

From an interdiction of this sort, no prejudice to justice can arise. If, notwithstanding the interlocutory order complained of, the definitive decree is such as the complainant would have wished, the appeal would have been of no use: if otherwise, it is then time enough to appeal; and one appeal at that ultimate stage answers every purpose of twenty appeals at so many intermediate stages. Well or ill grounded, appeals from interlocutory orders are therefore equally useless.

In the case of a complaint of delay, or a complaint of suppression of evidence, the maxim forbidding the admission of fresh documents cannot, it is true, be adhered to.

In the case of delay, the very foundation of the complaint is, that no documents at all have been collected by the court below, or at least not enough to form a just basis for decision.

In the case of suppression of evidence, the complaint is, that certain documents which ought to have been collected, and without which the collection would be incomplete and fallacious, have not been collected.

In both these instances the grievance is, that documents which ought to have been submitted to the observation of the court below, have not been: so that, were the appellate court not to receive as grounds for its judgment any other documents than what at that stage of the cause have been submitted to the observation of the court appealed from, its judgment must be ill-grounded.

In these cases, then, one of three things must be done: the court above must itself interpose, and collect the deficient evidence, or it must reimpose that task upon the court appealed from, or it must transfer it to some other.

1. To employ the first expedient would be employing the court of appeal about the business of an immediate court; a confusion of powers which, as we shall see more particularly a little farther on, would be attended with several inconveniences:—1. It would necessitate the institution of courts of appeal as near to the several scenes of action, and consequently in as great number, as the immediate courts. 2. It would occasionally surcharge the courts with an extraordinary load of business. 3. It would deprive the suitor, as to so much of the proceedings, of the benefit of appeal. 4. It would enable the judges of appeal to make approaches to arbitrary power, by swallowing up the functions of the immediate courts, and substituting in the room of an authority subject to appeal, a power exempt from that controul.

2. Committing to the judge appealed from, the business of repairing his own errors, is what certainly may be done, if no fault of the will, no improbity, no proud or capricious pertinacity, is attributed to him. But the great necessity for instituting appeals and complaints of this nature results, as we have seen, from the danger of a vice of this sort that might otherwise introduce itself into the character of the judge. This resource can never therefore be trusted to as the only one.

3. There remains that of giving the commission to a judge of some neighbouring court. This is an expedient free from all objections, and forms but one out of many instances of the application of the principle of intercommunity of jurisdiction, the advantages of which have already been represented. (See Chap. III.)*

The less the expense of the proceedings in the courts below, the less heavy will the small portion of expense which we have found to be inseparable from the business of appeal, press upon the suitors. The following sketch will afford a glimpse of the means that may be employed for reducing the expense in the first instance:—

1. Abolition of all law taxes, as proposed by the committee. See Tit. I. Art. 5, Committee’s Drought.

2. Abolition of all court fees—of all dues paid by suitors to persons employed by the public in the administration of justice. This also seems to be proposed by the committee. Ibid.

3. Confinement of the expense of mercenary law-assistance to the instances where it is absolutely necessary, by the admission of unmercenary. See Chap. I Observations on Tit. I. Art. 20, New Draught.

4. Reduction of the expense of mercenary assistance, where it is necessary, by the abolition of the distinction between advocates and attorneys. Ibid. Art. 21.

5. Abolition of the expense of taking mercenary opinions, by obliging the judge to give a categorical opinion in the first instance upon a state of facts agreed upon by all parties interested, and an hypothetical one upon a state of facts disputed on any side. Ibid.

6. Termination of the cause at the same hearing in which it commences, whenever it happens to be ripe for decision at that period: as it will be, if the parties attend in person, and the cause rests solely upon the evidence of the parties, or upon such real evidence, or the evidence of such witnesses, as they happen to bring with them, or upon the mere question of law, or upon all or any of these grounds. Ibid.

7. Clearing the cause, by mutual admissions, at that early period, of all facts on each side which are not meant to be contested on the other:—another consequence of the joint appearance of the parties in the first instance in presence of the Judge. Ibid.

8. Clearing the cause of all false allegations, the truth of which he who makes them has no real hope of being able to make good, and of all proof relative to such allegations:—another consequence of the personal appearance of the parties, speaking upon oath. Ibid.

9. Confining the quantity of delay granted to the quantity absolutely and honestly requisite for each particular purpose in each particular cause:—another consequence of the personal appearance of the parties, speaking upon oath, and of the avoiding to lay down general rules of procedure relative to time. Ibid.

10. Facility given to the compromising of the cause in that stage, with the advice and assistance of the judge, if it be a case fit for compromise. Ibid.

11. Reduction of the expense of the attendance of witnesses, by powers for the examination of them each in the court of his own territory, so far as confrontation is not necessary: and for appointing confrontation, where necessary, at the court where it can be performed at least expense.

12. By confining the territories of immediate courts to such an extent as admits of witnesses and suitors attending in court during the juridical day, without being obliged to sleep elsewhere than at their own homes.

13. By managing the business of examination of witnesses in distant courts, by instructions sent from court to court gratis, by the post, without the necessity of passing through mercenary hands.

14. Saving of the delay of waiting for parties or witnesses lying under a temporary inability of personal appearance, by powers for admitting them to correspond with the court in writing, in the style of an ordinary letter, and, though under the sanction of an oath, without the obligation of calling in mercenary assistance to put it into form: or else requiring the judge to examine them at their own homes, according to the importance and urgency of the case.

15. Reduction of the expense of copying, with regard to sundry sorts of papers, such as acts of the parties and of the court, by providing concise and printed formularies for every such paper, as far as the case admits, settled by the legislature, and furnished at the public expense.

16. By measures to be taken to prevent any body’s having an interest in adding unnecessarily to the bulk of such instruments as do not admit of settled formularies.

17. Transmission of law-papers in general by the post, carriage free, from court to court, through the judge, or one or other of the public advocates, without passing through mercenary hands.

Second Division of Remedies against the Inconveniences of Appeal—Remedies for the prevention of malâ fide Appeals.

I. In civil cases:

1. Execution notwithstanding appeal, on finding security.

This salutary expedient is made use of by the committee, though only in certain instances.

2. Allowing extra interest upon the value claimed, payable of course, but susceptible of being remitted, upon certificate of opinion, on the part of either judge, that the appeal was a bonâ fide one.

Confine the quantum of interest to the ordinary rate, you give a dishonest suitor the power of borrowing money at that rate of a man who does not choose to lend it him—of a man whom he has injured. What can be more iniquitous, or more encouraging to iniquity?—allowing under-interest, or no interest at all, in the manner of the English law.

There are cases where, in this way, after fighting the plaintiff with his own money, a defendant is secured in the quiet possession of a considerable part of the remainder. The profit allowed by the law to be made in this way is in proportion to the quantum of the capital the defendant has in his hands; that is, to the enormity of the injury the plaintiff is suffering from the want of it. The sorts of appeals called writs of error have seldom any other object.

3. Obliging the unsuccessful party to reimburse to the successful one the amount of his costs, in course, subject to reduction in case of certificate of bona fides, as above.

4. Refusing the appellant the liberty of employing a mercenary advocate on the appeal, but on the terms of transmitting, together with the fee for his own advocate, a fee to equal amount for an advocate to be chosen by the respondent. The condition liable to be dispensed with, where the pecuniary circumstances of the former are eminently and notoriously inferior to those of the latter.

If one man could get a better chance for justice than another by paying money to the Judge, who would not cry out against the iniquity? But is there less iniquity in allowing justice to be put up to auction in this manner, for the benefit of advocates?

A fee that is not too much for the appellant’s advocate, cannot be too much for the respondent’s: for the record which contains all the instruction they either of them ought to have, is one and the same to both.

Objection.—You destroy all emulation, all motives to exertion, on the part of the advocates at the appellate courts.—Answer. The necessity of exertion is produced as effectually by the superior chance of obtaining fees, as by the superiority of fees. What extinguishes emulation is, not limitation of profit, but monopoly.

5. Obliging the party at whose instance evidence, deemed impertinent by the judge, is notwithstanding collected, to advance the costs on both sides of so much of the proceedings: such part of the costs not to be refunded to him, though the cause should be decided in his favour.

6. Allowing the plaintiff, of course, a satisfaction for so much of his time as has been consumed in the course of the cause; subject to abatement in consideration of bona fides on the part of the defendant, or of the state of pecuniary circumstances on both sides.

7. Allowing the defendant satisfaction for time thus consumed by unnecessary proceedings carried on at the instance of the pursuer, though the latter should gain his cause.

The fifth and seventh of these expedients are calculated to prevent vexation, as well on the part of a plaintiff as a defendant. In general, mala fides will at least be fifty times as frequent on the part of the latter, as on that of the former: for the great demand for compulsive justice is produced by the defendant’s unwillingness to comply with the demands of justice, or his inability to comply with them without inconvenience: cases of doubt are comparatively but rare; and if doubt were all, everything would be done by arbiters; there would be no need of judges.

As the defendant has nothing to gain by a decision, and everything to lose, it is his interest to prevent a decision, whether he be or be not in the right, unless the law has taken care to make it otherwise: whereas the plaintiff has nothing to hope for, as far as benefit to himself is his only object, but from a decision. But the heart of man has affections in it, of the dissocial kind as well as of the self-regarding; and views of mere vexation may instigate the pursuit of an unjust or frivolous claim, as well as the non-compliance with a just demand, if no remedy is provided. A small latitude in this way will be sufficient to lay the poor at the mercy of the rich. If one man, by spending from a hundredth to a hundred-thousandth part of his own fortune, can be the destruction of another’s, malice or the lust of dominion may purchase gratification at a cheap rate. The English law, by the matchless enormity of the artificial burthens it has thrown upon justice, and the ingenuity it has shown in their distribution, has insured this gratification to every man who can afford to give a handsome price for it. In doing so, it has conferred on every man an arbitrary power over every other man less favoured than himself by fortune: a tyranny which nothing has prevented from being intolerable, but the influence of public opinion—that sacred power, against which English judges, by the laws they have made in matters of libel, wage undissembled war, and which, from the days of Lord Coke to the present, they have never ceased doing their utmost to destroy.

II. In penal cases:

1. In case of pecuniary punishment, adding interest from the time of the sentence in the immediate court.

As to the committee, they too have their contrivances for keeping down expense. In one court, causes are to be carried on without writing;* in two others, by nothing but writing:† and from these opposite causes the same good consequence is to follow. They have another expedient for preventing expense; which is, to say there shall be none: but the expedient, being a choice one, is to be produced but rarely.‡ In this place, I must beg a word with the committee. So, then, it is you that we have to thank, and not nature, for whatsoever there is oppressive in the expense of justice? A word from you would ease us of it altogether: and this word, except in the instance of two sets of courts out of about five-and-twenty, and in them only in a few inconsiderable cases, you refuse to speak for us. Look over your list of law expenses: take any article in it you please: either it is preventible or unpreventible. If unpreventible, how can your saying there shall be no expense, save the expense? If preventible, why will you not prevent it?

To make the more sure of having no expense, they will have no form of procedure in these cases.

In this place lurks another confession, not less valuable than the former. The form of procedure they mean to give us, being of the regular, and not of the summary kind, I pronounce, very summarily, to be good for nothing. Rash will they call me, for thus speaking of their work? No; I am obsequious: for such is their own opinion of it. Else why deny men the benefit of it in any single instance?

Is it that truth is material in one sort of cause, immaterial in another? material, when the money is due upon a contract; immaterial, when it is due on the score of taxes? Is it that the system is good for finding out truth in the one case, and not so in the other? That your system is good for nothing in one case, I prove by yourselves, for you are ashamed to use it: that, being so, it is possible it should be good for anything in any other, lies upon you to prove.

Whence all this inconsistency? I have put the question. I will give the answer.