The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 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.

[† ]6 Geo. III. c. 25, §7.

[‡ ]1787.

[∥ ]14 Geo. III. c. 83.

[§ ]13 Geo. II. c. 4, § 20. No. 1740.

[¶ ]The words “are hereby determined to be subject” might, if they had stood alone, have been taken for words of mere adjudication. . . . But before these come words of enactment “shall . . . . be subject.” From the non obstante clause it might again be argued, that nothing more was meant by this provision, than to save those colonial laws from being overruled by the other provisions in the same statute: and therefore, that the effect of this section in it was nothing more, than to leave the legality of these colonial regulations upon its own bottom. But upon examining the act it will be found, that there is not any part of it to which the provision in this section bears any specific or effectual repugnancy. It is only from some perfectly vague and inconclusive inferences that any such apprehension could arise. But it requires little acquaintance with our statute law to have observed, how ready such apprehensions are to present themselves, and how ready the draughtsman is to quiet them with the customary non obstante opiate. Seven years had at this time scarce elapsed, since parliament, in the very act of supplying with money the embryo colony, sat still and saw the crown monopolize the supplying it with the powers of government. But at this latter period (1740) the tide, it seems, had already turned: and the wonder will be the less, that 34 years afterwards, when a new constitution was to be given to Quebec, parliament exercised the whole authority, and took upon itself the whole management of the business.

Will it be said—the confirmation of these colonial laws was necessary, so far and so far only, as they undertook to bind others of his Majesty’s subjects, natives of the mother country, visiting the colonies for a time only in the course of office or of trade? I answer in the words of the court of King’s Bench in a case that will presently be mentioned.a Among the “propositions, in which both sides seem to be perfectly agreed, and which indeed are too clear to be controverted,” is “The 4th, that the law and legislative government of every dominion equally affects all persons and property within the limits thereof; and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the law of the place. An Englishman in Ireland, the Isle of Man, or the Plantations, has no privileges distinct from the natives.” So far Lord Mansfield. If, then, these American laws were binding upon anybody—were binding upon Americans, they were already binding upon Englishmen. They needed no act of parliament, to confirm them in their application to Englishmen and so forth.

[¶ ]The words “are hereby determined to be subject” might, if they had stood alone, have been taken for words of mere adjudication. . . . But before these come words of enactment “shall . . . . be subject.” From the non obstante clause it might again be argued, that nothing more was meant by this provision, than to save those colonial laws from being overruled by the other provisions in the same statute: and therefore, that the effect of this section in it was nothing more, than to leave the legality of these colonial regulations upon its own bottom. But upon examining the act it will be found, that there is not any part of it to which the provision in this section bears any specific or effectual repugnancy. It is only from some perfectly vague and inconclusive inferences that any such apprehension could arise. But it requires little acquaintance with our statute law to have observed, how ready such apprehensions are to present themselves, and how ready the draughtsman is to quiet them with the customary non obstante opiate. Seven years had at this time scarce elapsed, since parliament, in the very act of supplying with money the embryo colony, sat still and saw the crown monopolize the supplying it with the powers of government. But at this latter period (1740) the tide, it seems, had already turned: and the wonder will be the less, that 34 years afterwards, when a new constitution was to be given to Quebec, parliament exercised the whole authority, and took upon itself the whole management of the business.

Will it be said—the confirmation of these colonial laws was necessary, so far and so far only, as they undertook to bind others of his Majesty’s subjects, natives of the mother country, visiting the colonies for a time only in the course of office or of trade? I answer in the words of the court of King’s Bench in a case that will presently be mentioned.a Among the “propositions, in which both sides seem to be perfectly agreed, and which indeed are too clear to be controverted,” is “The 4th, that the law and legislative government of every dominion equally affects all persons and property within the limits thereof; and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the law of the place. An Englishman in Ireland, the Isle of Man, or the Plantations, has no privileges distinct from the natives.” So far Lord Mansfield. If, then, these American laws were binding upon anybody—were binding upon Americans, they were already binding upon Englishmen. They needed no act of parliament, to confirm them in their application to Englishmen and so forth.

[a]Campbell and Hall, Cowper’s Reports, p. 208.