Front Page Titles (by Subject) SECTION III: LEGISLATION—HOW FAR LAWFUL IN NEW SOUTH WALES. - The Works of Jeremy Bentham, vol. 4
SECTION III: LEGISLATION—HOW FAR LAWFUL 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.
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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,
- 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.
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.