Front Page Titles (by Subject) SECTION VII.: NULLITY OF GOVERNOR'S ORDINANCES. FOR WANT OF A COURT TO TRY OFFENCES AGAINST THEM. - The Works of Jeremy Bentham, vol. 4
SECTION VII.: NULLITY OF GOVERNOR’S ORDINANCES. FOR WANT OF A COURT TO TRY OFFENCES AGAINST THEM. - 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.
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.