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Subject Area: Law

I.: As to New South Wales. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 11 (Memoirs of Bentham Part II and Analytical Index) [1843]

Edition used:

The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 11.

Part of: The Works of Jeremy Bentham, 11 vols.

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I.

As to New South Wales.

“Since the foundation of this penal colony in 1787, convicts have been sent thither under sentences of transportation for various terms—mostly seven years; a few for life; still fewer for fourteen years. This, under a variety of Acts of Parliament—say from twenty to thirty, made for the punishment of so many modifications of delinquency, almost all coming under the head of depredation; nine out of ten perhaps sentenced only for seven years, and more or less of those seven years expired before they were shipped off. In direct breach of all these Acts of Parliament, they have given orders upon orders to their Governor of New South Wales; in virtue of which orders, the convicts, upon the expiration of their respective terms, have been confined there, i. e., destined to be confined there for life: adding thereby to a temporary legal punishment a perpetual illegal one.

“2. To the above illegal confinement and banishment, they have, moreover, added various lengths and modifications of equally illegal bondage.

“3. The unexampled distance from the principal seat of government, added to the particular character of the people to be governed, required powers to be vested in a single hand—powers very little short of pure despotism,—of itself a pretty sufficient reason why no such colony should have been established. Understanding this, and fearing to apply to Parliament for such powers, Pitt & Co. have been all along setting their government to legislate in all manner of cases, without legal power for legislating in any one. Powers for some purpose, and in respect of some classes of persons, he has: but, upon the whole of the mass of power, of all sorts, exercised by him, about half has been illegal: and thereby there is not a creature, that has ever been in any sort of office in the colony, that is not, at this moment, liable to be ruined over and over again by actions at law for what he has done: some, perhaps, liable to suffer as for murder.

“4. Among the destined, as above, to perpetual confinement, are numbers who, instead of the seven years, had smaller lengths of time remaining unexpired when sent thither: some no more than two years: my brother, by application to Lord Pelham, stopped one or two that were on the point of being sent thither as above for life, though perhaps, before their arrival thither, their respective legal terms—the legal part of their punishment—would be at an end. The exact length of time, and the number thus circumstanced, cannot be distinctly mentioned, but would be ascertained in case of a Parliamentary inquiry from the official booker.

“5. In several instances whole shiploads of convicts have been sent out without sending out with them any accounts exhibiting their respective terms: and by this most scandalous, and perhaps wilful neglect, their bondage, as well as their confinement, has been rendered indefinite in duration, not to say perpetual. Their terms expired, when they have claimed their liberty, or have tried to exercise it by getting away, they have been flogged.

“6. So much for criminality on the part of the arch-tyrants here at home: now for punishment. What they have been doing there for these fourteen or fifteen years is an offence, not only against Magna Charta, (as per Lord Coke,) but against the Bill of Rights and the Habeas Corpus act. They are liable at the suit of any individual thus confined, (besides damages £500 to the party injured,) to the punishment called a Præmunire: a part of which consists of general confiscation, together with imprisonment for life, and the king’s power of pardon is in this instance taken away by the same statute.

“The ground of the above statements, as to matter of fact, is constituted partly by private intelligence, but principally by the printed accounts given of the colony by the late Judge Advocate of it, Captain (now Lieutenant-colonel) Collins of the Marines. His first volume published in 1790: a second just come out now, in 1802. He is a professed panegyrist, dedicating his first volume to the ostensible founder, the late Lord Sydney: his second, to the present manager, Lord Hobart: the abominations came out through his candour, partly, perhaps, through holes in his discernment.

“The matter of law has been discovered by me (together with the facts) within these few weeks; and the accuracy of the views I have taken of the matter of law, has received the most unreserved confirmation from Romilly.

“I have ready for the press, inter alia, a pamphlet with this title, ‘The True Bastille, showing the outrages offered to law, justice, and humanity, by Mr Pitt and his associates, in the foundation and management of the penal colony of New South Wales. By J. Bentham of Lincoln’s Inn, Esq., Barrister at Law.’* It is the same (except a trifling part having nothing to do with law) that Romilly has revised for me.

“Were I to publish now, before Parliament is in readiness to do anything, the great probability is that the colony would be in a flame: for ships are going thither, nor from hence only, but from America and other countries, frequently: and as they are ready for revolution, most of them, at all times, without any pretence, a fortiori would they be when general independence, on the part of all whose terms were expired, could be seen to have the sanction of the law. If, therefore, I publish at all, it will not be till the meeting of Parliament; because then, and not till then, there would be a power in the country capable of preventing the flame from breaking out, by sending out legal powers.

“Parliament would certainly pass a Bill of Indemnity: so far at least as to save the Secretaries of State and perhaps members of the Council Board, with their respective subordinates, for so many years, from such tremendous punishment. God forbid they should not! But it is something for an Homuncio like myself to put all these potentates into jeopardy, and force Parliament to act: and though Opposition would not be able, if they wished it, to prevent the Bill of Indemnity from passing, yet they might, I should think, make sure of getting the whole official history of the colony laid before Parliament, (it would be the usual course,) and thereby expose their enormities, at any rate, to public shame, and possibly even make them glad to compound for some inferior censure.

“Another pamphlet of mine, ready for the press, will have some such title as the following:—‘Panopticon versus New South Wales. Showing the complete and incurable repugnancy of the system of penal colonization to the several ends of penal justice, as contrasted with the degree of perfection in which the same objects are provided for under the Penitentiary system, kept in suspense for these eight years by corrupt influence, in contempt of an imperative law of Parliament, and a long train of engagements grounded on it.’ This, having nothing to do with law, Romilly has not seen. Though I should agree with Ministry, the substance of it might be published, though with a tamer title, to warrant their proceeding in consequence.

“A third, likewise ready for the press, is, ‘Observations on a late exercise of Legislative Power by the Duke of Portland, his associates and subordinates, in contempt of Parliament.’

“For the purpose of obstructing Panopticon, on the 14th of October, 1799, by a letter which he had the unnecessary folly to sign with his own hand, having the two ex-lawyers, his under-secretary King, and his mentor Baldwin, for advisers, (which letter being ashamed and afraid of, they have endeavoured to suppress, though to no purpose, I having a copy of it,) he has fallen into the following impeachable heresies: his doctrines and his acts serving for the explanation and crimination of one another:—

“1. Professing a determination, of his own authority, to prevent the execution of an imperative Act of Parliament (the one made for me, 34 Geo. III. c. 84) without any reason assigned.

“2. Professing for the same purpose an intention of crowding the existing jails with such convicts as ought to have been consigned to Panopticon, in contempt of another Act of Parliament, 19 Geo. III. c. 74.

“3. Assuming by his own authority the power of taxation, by throwing the expense of such convicts upon the contributors to the Poor-rates, instead of the general fund assigned by Parliament.

“To me this letter seems to constitute an impeachable offence. It is in direct repugnance to the Bill of Rights. It appears in the same light to Romilly: though he takes my account of the letter, not having time to examine my argument on the subject of it. Agreeing so perfectly with my other argument, containing a most extensive mass of law, the probability is that he would not find in my statement in the present case any very material incorrectness.

“In case of the present ministry’s agreeing so far with me as to fulfil those engagements in which I am concerned, their pride and their incapacity together would prevent them (I make little doubt) from endeavouring to make any such bargain as would put it out of my power to lend a hand towards bringing them or their predecessors to shame at least, if not to justice. Looking upon their exposure as a very important benefit to the constitution, I would resist any such bargain as strenuously as possible. But lest at the worst I should find myself forced to submit to it, one object of the present letter is to put it out of my own power to deprive the country altogether of so useful an example. If, therefore, any favourable opportunity should present itself, and if you see the matter in the same light as I do, (or do not decidedly see it in an opposite one,) you will embrace such opportunity, my dear Dumont, and with your skill in paving, pave the way for me for a junction with some of your Opposition potentates for this purpose. Even without me, Collins’s book, if they have but industry to sift it, would afford them a very good ostensible ground: though having paid so much attention to the subject, and made so many constitutional discoveries in it, which nobody ever made before, their indolence would, I think, find its account in one way or other, in taking the benefit of my industry. Sure enough, through the whole period of Pitt’s administration, they never in any instance took ground comparable in strength to this: and unless they have made a vow to the goddess of Folly, to prefer matter of vague declamation to the most perfect legal solidity, they will jump mast high at the first mention of such an opening.

“Romilly, though agreeing with me so completely in all the points of law, yet has no hope of success from any of them. But this despondency arises from a sort of general tone of croaking he has given into, and is founded, as he himself declares, on his contempt for the judgment of Opposition, and his persuasion of the imperturbable servility of Parliament. It is not that this particular ground is not strong enough, but that in his view of the public mind on all sides of it—no ground whatever, not even the strongest, would be strong enough.

“You may imagine how clear and decided Romilly is since he has given me his opinion in black and white, for the express purpose (at my request) of my making any, even the most public use of it. If you find any difficulty about undertaking any of this, he could give you explanation of it: but he not being such an intriguant as you are, I do not wish you to give him any unnecessary trouble about it.

“I have lived too long in this wicked world, and set too little value upon everything contained in it, to think it worth my while to go, cap in hand, to them, or any of them, for this or any other purpose. Neither on this nor on any other occasion should I think, on any consideration, to become one of their gang for general purposes. Neither on this, nor on any other Parliament, or anywhere else, in speaking or writing, would I maintain a single proposition, of the truth of which I were not myself persuaded, to save them all (myself included) from the gallows. Joining, then, in this attack upon the enemy, I should defend him against the very next, if it appeared to me unmerited. As to serving me, if they offer to put it on that footing, bid them go to the devil. What I want is to serve the constitution.

“There are some of them so profligate that, for the sake of making the better attack upon the Ministry, they would be glad to set New South Wales in a flame, and some hundreds of throats cut on both sides, and would spread the intelligence prematurely with that view. This is a danger, for such intriguers as you and me to guard against. I should hope Charles Fox might be trusted for taking the requisite precautions for preventing any such mischief: but you know best, and that others I would not trust. I should think it would chime in particularly well with the rout Charles Fox has always been making about the according to him unnecessary suspension of the Habeas Corpus Act: as likewise the pother that Sir F. Burdett would be disposed to keep up for the purpose of the Election question about his Bastille: had all he said about it been true, it would have been but a mouse-trap to mine.

“Romilly will have it, that neither Opposition, nor the Ministry, nor the public at large, care a straw about convicts—or would manifest any sort of resentment for any injustice that ever has been, or could be done to them. Admitting this, and considering them all as so many logs of wood, that could be made use of as so many clubs to beat the ministry past and present about the head with,—for such a purpose I should think it worth their while to regard these logs as sentient ones, and for the good of the cause to speak of them with the most edifying tenderness. Horne Tooke, I am clear, would sell his soul to ten thousand devils for the satisfaction of contributing to such a means as that of a general massacre in New South Wales. In my hearing he has defended Septembrization, and wished (in a large and mixed company) to see it imitated here.

“If, by any puffing of yours,—and, my dear Dumont, you have a tolerable good hand at puffing, (witness Prefaces to ‘Dumont Principes,’)—you can puff any of those potentates into a persuasion that by any means they might be able to get a good attack upon Pitt and Co., with the Roses, Longs, and Portlands of the age, you would do this country, I think, and the general interests of justice and humanity some service; and opportunities might present themselves, if not at Paris, in this country, before the meeting of Parliament.

“It would be lost labour for me to attempt to direct your eye to this, or that, or t’other man, as a likely person: all this will be as much in your eye, and much more in your knowledge, than in mine. If Lord Henry had stuff and spunk enough in him for such business, would it not be a good commonplace declamation topic enough to bring him into notice. N.B. It is that sort of thing that might be taken up in either House.

“If by accident you should light on anybody, and excite his concupiscence, do not let him come to me abruptly to satisfy it; but let me hear from you first to prepare me.

“I see a somebody has begun puffing in the Moniteur at last, who I hope and suppose is Gallois, according to your word. But the wretch has not put his name. Why not? Is he afraid of being sent to the Temple for it—your new Bastille?

“I wish to God I could steal over the herring pond to you for a week or two; but just at present it is not to be thought of.

“Sir Charles Bunbury has offered himself to make mention in Parliament as to anything that concerns me personally. I may possibly beg of him to make a motion for the publication (by the House) of some documents suppressed to my prejudice,—to wipe away the imputation that was endeavoured to be cast upon me by Rose and Long, as if it had been my fault that Panopticon was not set up, inasmuch as I had insisted upon an increase of terms. The point seems trivial: but as it was a most gross lie, and the refutation of it would bring to light a most dirty fraud on their part, the idea of such a thing struck terror into them before, and would distress them beyond measure upon the revival of it.

“What am I writing all this to you for? You are a dead man: and the proof of it is my never having received a syllable from you in answer to the letter I had the credulity to address to you to Geneva poste restante, upon the faith of your perfidious assurances.

“Adieu, my dear Dumont; be a good boy and write to me.”

[* ] This was published under the name of “A Plea for the Constitution.” See the Works, vol. iv. p. 249 et seq.