Front Page Titles (by Subject) SECTION XIII.: EXPIREES, DURING DETENTION, KEPT IN A STATE OF BONDAGE. - The Works of Jeremy Bentham, vol. 4
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
SECTION XIII.: EXPIREES, DURING DETENTION, KEPT IN A STATE OF BONDAGE. - 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.
EXPIREES, DURING DETENTION, KEPT IN A STATE OF BONDAGE.
No. 17, I. 74. July 1787.—Freedom from bondage, refused along with liberty of departure, on the same ground, viz. the want of evidence of the commencement of the term of servitude. See above, Nos. 1 & 2.
No. 18, I. 169. July 1791.—Expirees, who wished not to become settlers in New South Wales, ordered to work there for twelve or eighteen months certain. See No. 4.
No. 19, I. 208. April 1792.—Expirees “become numerous.” To fourteen of them the choice of the place where they were to labour (where these freemen were to be forced to labour) is stated as an “indulgence.”
No. 20, I. 474. 4th October 1796.—No expiree was now allowed “to remove himself without permission from the public work. But, notwithstanding this had been declared in public orders, many withdrew themselves . . . . on the day of their servitude ceasing.” For this “they were punished, and ordered again to labour.”
No. 21, II. p. 22. February 1797.—“Several convicts who had served their respective terms of transportation, having applied to be discharged from the victualling books of the colony, and allowed to provide for themselves, it was determined that, once during a given time, certificates of their having so served their several sentences should be granted to them, together with the permission they solicited.”—Once during a given time: i. e. once a-year, once a-quarter, or once a-month, &c., if the sense that presents itself to me is what was meant. This being the case, the time when each man was restored to liberty, was the time—not when his right to it commenced—not when law and justice required that he should be restored to it—but a time which recommended itself to the imagination, by some such idea as that of order and regularity:—at any rate, by some idea or other, which in the order of importance occupied in certain conceptions a higher rank than that of law and justice. What would be the feelings of the good people in England, if, by the influence of any such love of order on the mind of a secretary of state or sheriff, prisoners were in future to be discharged from prisons here, not as at present, when their respective terms are up, but in gangs together, say every quarter-day? so that a man, for example, whose sentence was for a month, should, for the sake of good order, be kept in jail three months longer, all but a day or two, if his month happened to end a day or two after quarter-day?
No. 22, Ib. II. p. 23. March 1797.—“It appeared by the books, in which were entered the certificates granted to the convicts who had again become free people, that there were at this time not less than 600 men off the store, and working for themselves in the colony: forming a vast deduction of labouring people from the public strength, and adding a great many chances against the safety of private and public property, as well as present security.”
Legality (let it never be out of mind) is the object of inquiry here, not abstract expediency. So far as security and economy were concerned, legality and expediency seem to have been in a state of perpetual repugnance. Legality required that each man should be liberated from bondage the instant the time comprised in his sentence was at an end: expediency (had legality been out of the question) would perhaps have required that, in a society so constituted, he never should be discharged at any time.* But, as to the contrivance for making the discharges in the lump, at fixed periods, it is not quite so apparent how expediency was served by it, as it is that law was violated by it. What a system! under which, in one way or other, it was impossible not to do wrong! in which mischief, in a variety of shapes—frequently, perhaps, utter destruction—would have been the consequence of anything like an exact conformity to the rules of law!
In a situation like this, the conduct of the local powers may on each occasion be, upon the whole, blameable or unblameable, as it may happen: but the system itself, under which they are obliged to act, what can it be, otherwise than blameable—blameable in the extreme—upon all occasions?
In all these transactions—in all this time—is it in the nature of the case, that the system of illegal detention, such as it is, should have been carried on in the penal colony, otherwise than in consequence of, and in general in conformity to, instructions received from home?
Much argument does not seem necessary to prove, that the difference between punishment of this sort for a limited term, and punishment of the same sort for life, was no secret to those by whom it was obliterated in practice. But by a particular fact a sort of impression will often be made, beyond any that can be made by general inference.
In September 1794, in a single page, an account is given of no fewer than sixteen convicts existing at one time (one, in from a hundred to two hundred or some such matter,) in whom symptoms of reformation had been supposed to be discovered.* The supposed penitents here in question were nonexpirees: to different individuals amongst them, different and very carefully measured degrees of indulgence were extended. To one of them (William Leach) whose “term” under “his sentence of transportation” had been for seven years, of which term a part only had elapsed, “permission,” it is stated, was given “to quit this country” (New South Wales;) but clogged with the condition of his not returning to England, so long as his “term” remained “unexpired.”
Here, then, the punishment, we see, was analysed, and its constituent elements separated: the confinement to New South Wales, together with the species of bondage incident to it, was remitted: the exile was left, and for the whole time, in full force.
The written instruments, serving as evidences of the indulgences thus granted, are termed, on the occasion, “warrants of emancipation:” and to these warrants the “seal of the territory” (it is stated) was affixed. What was done on this occasion being done by so many formal, and of course (if anything like a register be kept there) registered acts, it seems difficult to suppose but that it must have been upon Instructions from government here—Instructions in some degree correspondent in point of formality—that they were grounded. If, under any such nice distinctions and guarded limitations, power was thus given for permitting individuals to quit the colony before the expiration of their respective sentences—given, therefore, in contemplation of the precise tenor of each law—is it supposable, that without Instructions equally deliberate, this large and continually-increasing proportion of the population (the expirees) should have been detained as they were detained, though against law, after the expiration of their respective terms?
Were the Court of Common Pleas to give judgment “in an appeal of death,” they would be “guilty of felony,”—says Hawkins, B. I. ch. 28, § 5, p. 169, 8vo., with a legion of marginal authorities for his support.—Guilty? why guilty? Then comes of course a technical reason:† but the rational one, which it shades, is evident enough; because, without what is called mala fides—without criminal consciousness—consciousness of the want of right to do what they take upon them to do—an error of that description could never, by persons of that description, be committed.‡
[* ]See Letters I. and II. to Lord Pelham. “And, (on the occasion just mentioned (No. 21,) of the expirees “who having withdrawn themselves from the public work immediately upon the expiration of their terms of legal servitude, were punished and ordered again to labour”)—“they seized,” says the historian immediately after, “the first opportunity of running away.” “We were well convinced,” it is added, “that by these people and those who harboured them” [viz. the expiree settlers in general] “every theft was committed.” I. p. 474.
[* ]It is almost the first discovery of the kind mentioned, and I believe quite the last: unless it be that in the instances of the few permissions of departure granted to expirees, the recognition of such a change may, as far as those instances go, be supposed to be included.
[† ]“Because, these courts having no more jurisdiction over these crimes than private persons, their proceedings thereon are merely void, and without any foundation.”
[‡ ]Exile, confinement, and bondage—inflictions perfectly distinct—are the ingredients of which (as already noted) the complex punishment styled transportation is composed. It has been so at all times, and under both systems: though under the new system the two last-mentioned ingredients possess a degree of inflexibility, strongly contrasted with their laxity under the old. When the transportation was to America, the bondage might be bought off or begged off, in the whole or in any less proportion, by agreement with the assignee of the property in the convict’s service:—the bondage, which was the principal infliction of the two; and with it all the accessory accompaniments. Under the new system, neither the one nor the other is remissible, but by the act of the agent of the crown, nor therefore (regularly at least) but upon public grounds. Under the new system, again, over and above the extraordinary degree of tension thus given to these two secondary branches of the punishment, the primary branch, the exile, has received a still more decided enhancement, by the addition made to the duration of it. For, supposing the confinement in the penal colony to be continued, as it always has been, to the legal end of each penal term (with or without the bondage, according to the fluctuating decision of the local despot,) it follows, that under the new system, by the mere change of local situation—I mean by the substitution of the superlatively distant, and comparatively inaccessible, territory of New South Wales, to the so much nearer and more accessible coasts of British America—an addition has thus been made to the exile—an addition which can never have been so little as four months, and may have amounted to years: and in future instances may at all times amount to any number of years.