Front Page Titles (by Subject) SECTION XII.: EXPIREES FORCIBLY DETAINED. - The Works of Jeremy Bentham, vol. 4
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SECTION XII.: EXPIREES FORCIBLY DETAINED. - 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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EXPIREES FORCIBLY DETAINED.
No. 1. Collins, I. p. 74: July 1789.—Liberty of departure, and freedom from bondage on the spot, both refused to a number of expirees at the same time; on the ground that no evidence of the original commencement and length of their respective terms was to be found.*
There being, for anything that appeared, no authority for treating them as convicts, the legal consequence would have been, in England, and in short under any system of of law but that of New South Wales, that they should have been treated as freemen. Instead of that, they were kept in confinement and bondage there, till a time which might never happen.
The omission of the papers in question is ascribed by the historian, as by a candid interpreter it naturally would be, to “oversight,” and the oversight is spoken of as being “unaccountable.” What is curious enough is, that this omission is not the only one of the same kind.† But, even though it were the only one, indications are not altogether wanting, such as might lead to a suspicion at least, as to the cause. In the list of convicts, with their respective terms and days of sentence, given by Governor Phillip,‡five persons are named whose terms were to expire in the very month in question, July 1789. Of these there was not one whose remaining penal term, on the day of his being shipped for transportation, or at least on the day of the ship’s sailing, was so long as two years and three months; nor, on the day of his landing, more than eighteen months. Deducting, if it be but six months, for the time requisite for return, had these convicts, all of them, had a vessel in readiness for them to embark in for England, and embarked and arrived accordingly, so as to have reached England by the end of their respective terms, there would have remained no more than a twelve-month for them to have continued, according to their respective sentences, on the spot to which they were conveyed at so heavy an expense. Is it natural, that after remaining in confinement in England for near five years out of his seven, a man should have been sent out to the antipodes with a view of his not being kept there for more than a twelve-month? If not, then the non inventus, upon the documents by which their freedom would have been established, may not appear altogether so unaccountable as without this comparison of circumstances it would naturally appear to be.
What is certain, from Governor Phillip’s list, is—that certain persons, five in number, were in this predicament in this same month. What appears little less so is, that the persons claiming their liberty in that same month were those same persons: “conscious in their own minds that the sentence of the law had been fulfilled on them,” are the terms employed on this occasion, in speaking of these same persons, by their ever-candid historian and judge.
What they claimed on this occasion was, in the first instance, pay, upon the footing of freemen: what was announced to them on this head was, that “by continuing to labour for the public, they would be entitled to share the public provisions in the store;” that is, be kept from starving, on condition of their being kept in bondage.*
The supposition of an intentional suppression anywhere, is, it is true, no more than a bare surmise: a suspicion, given as nothing more, and which, if unfounded, may be easily disproved. In the meantime, the probability of it will not be found diminished by Nos. 6, 7, 8, 9, 10.
No. 2. Collins, I. 74. July 1789.—It was on this same occasion, that one of the claimants in question, having in presence of his Excellency “expressed himself disrespectfully of the lieutenant-governor, was . . . sentenced to receive 600 lashes, and to wear irons for . . . six months.” What the words thus punished were, does not appear: but what does appear beyond doubt is—that if there had been no such violation of law on the one part, there would have been no such violation of respect on the other.
No. 3, p. 159. April 1791.—Information given by the governor to the convicts, “that none would be permitted to quit the colony who had wives and children, incapable of maintaining themselves, and likely to become burthensome to the settlement, until they had found sufficient security for the maintenance of such wives or children, as long as they might continue after them.” Considering the latitude of the discretion assumed by some of these terms, this notice may be considered as a pretty effectual embargo upon the whole married part of the community of expirees.
No. 4, p. 169. July 1791.—Information given by the governor to the expirees, that those who wished not to become settlers in New South Wales were “to labour for their provisions, stipulating to work for twelve or eighteen months certain;” and that afterwards, on condition of their entering into such engagement (is not that the meaning?) “no obstacles would be thrown in the way of their return to England;” but that, as to “assistance” for any such purpose, nobody was to expect it.† Illegal detention, for twelve or eighteen months, nobody was to know which, which is called “certain;” and this at any rate universal:—illegal bondage, for the same uncertain certainty, and equally universal. And at the end of this certainty, what was to be their fate? As to the means of departure, they were to get away if they could, but they were to have no “assistance:” as to their condition so long as they staid (that is, as to the greater part of them, so long as they lived,) they were to be either bond or free, as it might happen: nobody was to know anything about the matter. Such is legislation in the antipodes: such is legislation by the servants of the crown: such is legislation without parliament.
No. 5, p. 190. 3d December 1791.—Sailed the Active and Albemarle for India. After their departure, expirees were missing. “Previous to their sailing, the governor was aware of an intention, on the part of the seamen, to facilitate such their departure. He thereupon instructed the master to deliver any persons whom he might discover to be on board, withoutpermission to quit the colony, as prisoners, to the commanding officer of the first British settlement they should touch at in India.”
No. 6, p. 230. August 1792.—“Such [expirees] as should be desirous of returning to England were informed, that no obstacle would be thrown in their way, they being” (i. e. all of them being) “at liberty to ship themselves on board of such vessel as would give them a passage.” Such was the intention announced. What was the intention at that same time entertained? The following words explain it:—Now it was that “it was understood that a clause was to be inserted, in all future contracts for shipping for this country, subjecting the masters to certain penalties, on certificates being received of their having brought away any convicts or other persons from the settlement without the governor’s permission: and, as it was not probable that many of them would, on their return, refrain from the vices or avoid the society of those companions who had been the causes of their transportation to this country, not many could hope to obtain the sanction of the governor for their return.”—Not “obtain” it? Agreed. But—not so much as “hope” to obtain it? not even at the very time when it was expressly promised to them?—a promise made to all; and this at the very time when it was determined that, a few only excepted, none should ever receive the benefit of it!
No. 7, p. 268. 19th February 1792.—Intention executed. Howsoever it may have been as between the intention announced and the intention entertained, between the intention entertained and the execution that ensued there was no repugnance. On this day sailed for Canton the Bellona. Into this ship had been received six persons from the settlement: two of them, expirees, by permission; two others, expirees also, but without permission; the remaining two, non-expirees. Of the four latter it is stated, that they had been “secreted;” also that they were “discovered,” “the ship being smoked.” That they were accordingly re-landed at least, if not otherwise punished, may pretty safely be concluded, though not expressly mentioned.
Of the two non-expirees it is stated, that “they had not yet served the full period of their sentences.” From this it seems not unreasonable to conclude that this full period would have arrived before their arrival in Great Britain. If so, then neither by their arrival, any more than by their departure, would they have gone beyond the exercise of their renovated rights.
No. 8, p. 268. 15th February 1793.—At this time the expectation “about the clause . . . . in the charter party, for preventing shipmasters from receiving any person . . . . from the colony, without the express consent and order of the governor,” was found to be realized. The Bellona came provided with this clause. She had sailed from England on the 8th of August 1792.
No. 9, p. 283. 24th April 1793.—Intention executed a second time. Sailed the Shah Hormuzear and Chesterfield. “But few convicts [expirees] were allowed to quit the colony in these ships.” On a subsequent occasion, in November 1794, the number received on board the same number of ships (the Endeavour and the Fancy) had been near a hundred: whereof by permission, 50; without permission near 50 more. Ib. p. 398.
No. 10, p. 316. 2d October 1793.—Intention executed a third time. Sailed the Boddingtons and Sugar-cane for Bengal. “From the Sugar-cane were brought up this day. . . . two expirees: they had got on board without permission.—Punished with 50 lashes each, and sent up to Toongabbe.”
In the continuation of the history, no express statements of detention have been met with. The historian not being at this time present in the colony, the precision exhibited in the former volume no longer presents itself in the same degree. During the latter period, the conception which it seems to be the object to present to view, is rather the removal of the restraint than the continuance of it. It is not, however, the less perceptible, that even at this time it was restraint that constituted the general rule, and that whatever instances of the exercise of the opposite liberty took place, were the result of so many special permissions, and constituted but so many exceptions to, and confirmations of the rule.
No. 11, II. p. 11. 6th December 1796.—“Although they every day saw that no obstacle was thrown in the way of the convict who had got through the period of his transportation with credit and a good character, but that he was suffered to depart with the master of any ship who would receive him, and a certificate given to him of his being a free man, yet, &c.” By this it appears as plainly, that, among expirees themselves, there were some to whom the liberty of departure was refused, as it does that there were others to whom it was granted.
No. 12, Ib. p. 49. September 1797.—“As the masters were seldom refused permission to ship such as were free.” From this passage it follows, that, at this time likewise, though there were but few instances, yet there were some, in which such permission was refused.
No. 13, Ib. p. 45. August 1797.—Sailed the Britannia and the Ganges. “The commander of the latter was permitted to take on board several convicts that had become free.”
No. 14, p. 125. September 1798.—Sailed the Barwell for China. “Her commander was allowed to receive on board about 50 persons, who had completed their period of transportation.”
No. 15, p. 57. October 1797.—“Decreasing daily as did the number of working men in the employ of government, yet” [at this time it is stated that] “the governor could not refuse granting certificates to such convicts as had served their respective terms of transportation; and no less than 125 men were at this time certified by him to be free. Most of these people had no other view in obtaining this certificate than the enabling them, when an opportunity offered, to quit the settlement, or following their own pursuits till that time should arrive.” Could not refuse? Why so? He had without any difficulty refused on the former occasions, mentioned in Nos. 1, 3, 4, 5, 7, 10: what was there to prevent him now? From hence it should seem, that by this time some legal scruples had arisen, in some breast or other, either in the colony or at home: and that from thence it was, in the first place, that the granting of the certificate, at or about the expiration of each man’s term, was regarded as in some measure obligatory; in the next place, that the effect of such certificate, when obtained, was to confer on the individual the liberty of departure:—a primâ facie liberty at any rate, though probably subject at all times to revocation by special order.
No. 16, p. 298. August 1800.—“Several certificates were granted this month, to persons who had served their terms of transportation.”
[* ]Collins, I. p. 74: July 1789.—“Notwithstanding little more than two years had elapsed since our departure from England, several convicts about this time signified that the respective terms for which they had been transported had expired, and claimed to be restored to the privileges of free men. Unfortunately, by some unaccountable oversight, the papers necessary to ascertain these particulars had been left by the masters of the transports with their owners in England, instead of being brought out and deposited in the colony; and as, thus situated, it was equally impossible to admit or to deny the truth of their assertions, they were told to wait till accounts could be received from England; and in the meantime, by continuing to labour for the public, they would be entitled to share the public provisions in the store. This was by no means satisfactory; as it appeared they expected an assurance from the governor of receiving some gratuity, for employing their future time and labour for the benefit of the settlement.”
[† ]See Collins, II. 22, 131, 267, 331.
[‡ ]Voyage, Appendix, p. lv.
[* ]Quere, At what time, and by what means, and by whom, were these facts ascertained at last, for the purpose of their insertion in the abovementioned printed list. In the printed voyage, the date on the title-page is 1789: the date in the dedication is the 25th of November in that year. Among the materials of which the publication is composed, all the other articles at least were transmitted from New South Wales. If it was from New South Wales that this document was transmitted with the rest, the time of its being sent from thence must have been considerably anterior to the time in question. On this supposition, they must actually have been in New South Wales, at the very time when “it was found that they were left by the masters of the transports with their owners in England” Collins, I. 74.
[† ]I cannot take upon myself to affirm with absolute certainty, whether the sense, in which the passage presented itself to me, be in all parts correct. To keep clear of misrepresentation, I here transcribe it at full length—