Front Page Titles (by Subject) SECTION X.: GOVERNOR'S ILLEGAL ORDINANCES EXEMPLIFIED. - The Works of Jeremy Bentham, vol. 4
SECTION X.: GOVERNOR’S ILLEGAL ORDINANCES EXEMPLIFIED. - 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.
GOVERNOR’S ILLEGAL ORDINANCES EXEMPLIFIED.
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.