Front Page Titles (by Subject) SECTION II.: POWER OF LEGISLATION—ITS NECESSITY IN NEW SOUTH WALES. - The Works of Jeremy Bentham, vol. 4
SECTION II.: POWER OF LEGISLATION—ITS NECESSITY IN NEW SOUTH WALES. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 4 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 4.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
- 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,
- 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;
- 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:
- 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.
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.