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Bentham to Charles Abbot. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 11 (Memoirs of Bentham Part II and Analytical Index) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 11.
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Bentham to Charles Abbot.
“Friday, 3d September, 1802.
“If, on grounds purely public, or at any rate completely exclusive of all private regard for me, you cannot find sufficient motives for taking upon you the mediation I venture to propose, I neither ask, nor so much as wish you, to think of it on any other. You will see presently what it is I look to you for, and why.
“I. In the course of my researches, for the purpose of the narrative I have of late been employed in drawing up, containing the history of my transactions with Government on the Penitentiary business,* it is but very lately that I have been led to the subject of New South Wales; and, to my unspeakable astonishment, as well as that of my eminently learned friend, to whom ex majori cautelâ I have applied as counsel, I have made the following discoveries:—
“1. That by orders from hence, Expirees (convicts whose terms are expired) have been forcibly ‘detained’ there—not individually only, and for special cause, but collectively, and for an indefinite time—and with the evident intent of adding to the expired legal punishment, a perpetual illegal one: and that, by so doing, all persons concerned in such illegal orders are liable to the penalties of the Habeas Corpus Act, (31 Car. II., c. 2, § 12,) including a Præmunire, ousted of pardon by an express clause.
“2. That, to this false imprisonment have been added in many, perhaps in most instances, various lengths and modifications of illegal bondage.
“3. That, in many instances, this complicated and perpetual illegal punishment has been made to attach upon convicts who, out of a term of seven years, had served five years or upwards in a jail or hulk before they were sent out. [My brother, by representation to Lord Pelham, saved one or two orderly and useful men, whose punishment in New South Wales would scarcely have commenced before it had become illegal.] Beyond the five years I cannot speak with certainty as to times: but the office-books will show, or ought at least to show.
“4. That in repeated instances, whether by negligence, or (as the repetition would indicate) by design, the accounts establishing the dates of expiration of the respective terms have been omitted to be sent to New South Wales: whereupon the presumption, instead of being ‘in favorem libertatis,’ has been in favorem servitutis—in favour of the perpetual servitude thus created.
“5. That, whereas the powers legalized by the several New South Wales acts are extremely limited, an absolute and illegal power of legislation has all along been exercised by the sole authority of the Governor there: always under the eye, and, in many if not all instances, according to ‘Instructions’ of persons here at home.
“6. That, of the several acts of authority that have been exercised in that colony, from the foundation of it to the present moment, a great part have been contrary to law: and that in respect thereof, many, perhaps all persons, that are or ever have been in authority there, remain exposed to ruin by actions and other persecutions.
“All this is set forth in detail, in a paper which, though in substance a law argument, wears at present the form of a letter addressed to Lord Pelham, to whom, in his quality of Secretary of State, I had begun addressing my Narrative:* designing to have sent the whole in manuscript, and not suspecting the bulk to which I found it swell, as I went on with it. The sort of spirit it is written in, is that which would naturally be called forth by the enormities displayed in it; and is purposely preserved, in the view of exciting, in the public mind, that attention which would be necessary to the applying to the grievance whatever may be the proper remedy. It occupies fifty-six pages. Of the substance of it a tolerable conception may be formed by the marginal contents, as given in the table herewith sent. Neither Lord Pelham, nor anybody else but Romilly, has as yet seen it.
“II. So much for law:—policy forms another topic. By deductions drawn from analogous experience, and (so far as economy is concerned) by the facts and calculations given by the Committee of Finance, I had been led to the persuasion, that the institution of the penal colony was from the first, and will be to the last, in a state of radical and incurable repugnancy to every one of the points that were or ought to have been the objects of such an establishment:—to every one of the ends of penal justice:—example—reformation—incapacitation for fresh offences—compensation for injury by past offences—and economy.
“From the first volume of Captain Collins’s Journal,† added to other unprinted but not less authoritative accounts, these preconceptions had received already very ample confirmation. A continuation of that history, to the time of the latest accounts, has just made its appearance: and the confirmation, received from this latest testimony, is ample and conclusive, to a degree beyond what I myself could have imagined.
“From the time that the illegality of the government of New South Wales was known in New South Wales, what strikes me as not very improbable, is—that all subordination—all government there—would be at an end, unless Parliament were to give it that legality which is at present wanting: but, that Parliament would not give it any such sanction, on any other terms, than the putting an end, as soon as may be, to a system thus replete with misery and wickedness: diseases both incurable—both raging in a degree without example. Were I as insensible to human misery and wickedness as the founders and maintainers of that scene of abominations have shown themselves for so many years, I should publish immediately: and, as the bulk of the inhabitants, indifferent to life and death, are ripe for insurrection at all times, and without any pretence,—a fortiori would they be so, when general independence, on the part of all whose terms were expired, would be seen to have the sanction of law: and, though the intelligence might be prevented from being carried out from home directly in Government vessels, yet, from various other countries receiving intelligence from this, vessels are going at all times.‡ So much for what might be: being as I am, you may perhaps think it superfluous for me to say—that it will be my care not to let any information transpire of the disorder, till Parliament is in a condition to apply a remedy.
“In some eyes, a degree of ridicule might attach, to the idea of keeping secret what has been in print these four years. But (besides that, to the ignorant, the preoccupied and the incurious, publication of needles in bottles of hay is no notice) to you it can be no secret, that in law as in chemistry, results altogether new may be produced, by new combinations of old elements.
“Of the pamphlet on the question of law, the short title is—The True Bastille: &c.: of the other, on the question of policy,PanopticonversusNew South Wales: &c. Of this last the Table of Marginal Contents has been in the hands of Lord Pelham since the 12th.
“III. In the course, and for the purpose of the intrigues, of which by and by, the Duke of Portland, by an unusually self-signed letter,* with Mr Baldwin for his counsel, and Mr King for his scribe, was ill-advised enough to avow, in an address to the Treasury, the following designs and practices:—
“1. Putting, of his own authority, a professed negative, upon the sole object of the imperative provisions of the Penitentiary Contract Act.†
“2. Filling the country jails with Penitentiary prisoners, in direct contempt of the original Penitentiary Act.‡1
“3. Assuming, as well as exercising, of his own sole authority, the power of taxation, by throwing the expense of convicts upon a fund of his own choosing (the County Rates, i. e. the Poor-Rates) instead of the general fund, on which, by the Penitentiary acts, those expenses were charged by Parliament.
“Other similar heresies I pass over, as requiring too many words to state them. And he not only quotes distinctly by their titles the two acts, the provisions of which he thus abrogates on the declared ground of their being ‘very inexpedient,’ but says of them in so many words, ‘I have examined and understand the object of’ them.
“Of this letter a copy was refused me by the prudence of Mr Long, but I obtained a sufficient extract by imprudence elsewhere. Another publication in readiness for the press, is a pamphlet written upon the strength of this letter, for the purpose of inquiring who is the Sovereign of this country,—the King in Parliament, or the Duke of Portland. It is a point to be ascertained, what the House of Commons will say to a power thus exercised by a servant of the crown,—a single lord of Parliament,—over the public purse. Title,—‘Observations on a late exercise of legislative power by the Duke of Portland, in declared contempt of Parliament.’ With the details of this less serious and more debateable business, I will not attempt to trouble you (unless you call for them) no more than I have Romilly. Taking it upon the face of my statement of it, (a statement drawn up in writing, and with great care,) he makes no difficulty in speaking of it (in writing) as containing impeachable matter, whatever may be the uncertainty, in which decisions on questions of this sort have been commonly involved by what is called politics.
“IV. In the agony of their distress, the late Treasury, when called upon to show in their ‘Proceedings,’ why nothing was done about Panopticon, were desperate enough to speak of a pretended ‘increase of terms’‡2 as the cause. It was not a misconception: it was a studied, long-premeditated, elaborately-prepared falsehood: a grosser, a more transparent one, was never uttered. It was so gross, that the man, whoever it was, that first broached it, was afraid to put his name to it. It stands in the printed ‘Proceedings,’ in the form of an anonymous communication! I have looked over these ‘Proceedings’ carefully: (your kindness gave me the means.) In the whole pile of them, there is not another such example: for it is not given as a ‘Minute,’ of the Board. The more direct utterances of the same falsehood, contained in the ‘Proceedings,’ forced into day by the change of Ministry,§ were destined for eternal night, and by express order most studiously concealed from the man whose conduct they were libelling, and whose fate they took upon them to dispose of. Anything they had ever received from me on the subject would have disproved the falsehood: and, therefore, everything they have ever received from me was suppressed. I wrote immediately to Mr Hiley Addington, stating the injury, and praying publication of the suppressed documents for redress; saying, I must publish, if they would not. Mr H. Addington was frightened: Mr Long was frightened: to divert me from that claim, they drew me by a trick into an unexpected conference,* the object of which was, to make me hear a sham offer they had to make to me. The very nature of the offer showed me at once it was not intended to be realized: the event has proved as much. The cover given to it, was an affectation of extreme surprise at my perversity, in pretending not to understand the same offer to have been already made in the last official letter to me.† That letter bound them to nothing as to one half of the offer, (the reduced number of 500 convicts, instead of the original number of 1000, and the augmented number of 2000,) and put a clear negative on the other half,—viz., compensation for the difference. What passed at the conference is as curious as the contrivance for producing it, and, in the sketches of Treasury morality, would make a picture of itself. Some allusions to it are in a paper already in the hands of Lord Pelham. They got nothing by their stratagem for parrying the demand: I got nothing by the demand itself; unless it be the opportunity of observing, how sore they were in the place it touched them in. In saying I got nothing, I mean at the time: for, in the long run, together with an additional motive, I have obtained an additional ground, for applying by Petition to the new Parliament, for relief, against insinuations having the effect of defamation, (for the injury done to me by it was a serious one,) and suppressions having the effect of forgery. If, on my petition, the House does not publish, (I mean, call for the suppressed documents, and order them to be published,) I do: to publish a correspondence between the Treasury and myself, is no offence against the House. But what (saving your better judgment) is an offence against the House, is, reporting to it anonymous falsehoods, instead of authenticated facts.
“V. You have no more forgotten than I have, your opinion of Mr Pitt’s treatment of me, as declared for his edification before Mr Rider at the Committee.‡ The ‘barbarity’ was then not more than a barbarity of four years. It has since been doubled: in duration I mean: but in multiplicity of acts and variety of engines it has been swollen and improved to a degree that would astonish you. The underhand practices,—the system of long-spun and elaborate, yet always transparent treachery, concerted,—sometimes between the two floors of the Treasury, sometimes between the Treasury and subordinate offices,—form such a history, as I cannot think would be altogether without interest to the public, or even to Parliament. It cannot, if there be any the smallest spark of regard in either, for probity and good faith, in the head-quarters of the state.
“1. The assurance, without which I refused to meddle with the then proffered, and since purchased land,—the assurance that no opposition on the part of Lord Belgrave should prevent the application of it to the public use, (Lord Belgrave, a mere neighbour, having no interest in the land,) the assurance given me, in the most energetic and apparently confidential manner, by Mr Long: thereupon a promise (of which I have proof) given to Lord Belgrave, that the land never should be applied to that same use. The existence of this perfidious promise assumed over and over again, by myself and others, in black and white, as well as in conversations with Mr Long: and Mr Long never attempting to excuse it, nor daring to deny it.
“2. Care taken that the £12,000 purchase-money should be received by Lord Salisbury: care taken at the same time that the £1000 known from the first to be necessary to the application of the land to its pretended public use, (viz., by buying out remains of leasehold terms,) should not, nor any part of it, be ever received by me. The £12,000 not suffered to pass through the hands of me, (the feofee,) who was to acknowledge the receipt of it, lest the deficiency of the necessary and promised £1000 should be perceived by me: my signature obtained to a false receipt—a paper acknowledging the receipt of it—obtained by a contrivance. The very possession of the leases, as well as the title-deeds, endeavoured to be withholden from me: the possession of the land (such part as could be withholden) withholden from me to this hour, in spite of all remonstrances, viz., by the withholding of the money for the purchase.
“Assurances that orders had been issued for a warrant for that money, as in fact they had been issued, and a Minute made accordingly: those assurances given to me, and in the same breath measures taken for preventing the money from being ever issued.
“3. The very species of misconduct that furnished the sole pretence for breaking the public faith with Mr Palmer,—(the having conceived, under the agony of provocation, the momentary idea of throwing confusion into the public service in that subordinate department)—that very species of misconduct, adopted and practised in the department paramount, in cold blood, for the purpose of the breach to be made in the public faith as plighted to me. Confusion and insubordination purposely organized: subordinates encouraged in declared contempt of the orders of the Board: encouraged in repeated instances, and in different offices, and after full notice of the contempt by written complaints from me. Facts and arguments, forming the ground for the orders of the Board, kept back from subordinates; lest they should be deterred from the opposition they had been instructed to make. Engagements sanctioned by Minutes of the Board: these engagements broken to my prejudice—broken without apology or explanation, under the observation of the clerks, and other witnesses of the transactions of the Board.
“4. Attempts to render me an instrument of oppression (and much vexation, in spite of my indefatigable labour to prevent it, actually caused) to twenty unoffending families, (inhabitants of houses in the purchased land,) for the purpose of the ruin in which it is hoped they would involve me by suits at law. Instead of the promised £1000 for buying out these and other interests, (a price at which, after Lord Salisbury had offered, I had offered to bear the expense,) an order obtained from the Board, directing me to inquire into the compensation requisite, with an advice from their solicitor to insist that the evacuation of the premises should be ‘absolute and immediate’:—that order obtained, under a determination, never to give me possession of the premises—never to give any money for the compensation; the damage thus swelled, from the above-mentioned single thousand to several thousands, in spite of the most indefatigable exertions on my part to keep it as low as possible: recorded exertions, testimony of which I have been careful to preserve. All this in spite of, or rather by reason of, the most strenuous remonstrances on my part, remonstrances in writing, exhibiting the mischief in all its features. Of the insidious refusal of the promised £1000, one evident motive was—the hope of driving me (for I was not to be led) into this snare.
“5. To blind me the more effectually, and at the same time involve in the more certain ruin, my character by the appearance of their own ill faith, my fortune by litigation, and my health and peace of mind by vexation and disappointment—a sham treaty carried on all this while—carried on for a matter of a twelve-month—for other necessary contiguous land: the proprietor a gentleman of fortune but under temporary difficulties, (Mr Wire,) disturbed by the fraud in his economical arrangements, and to my knowledge materially injured in his fortune.
“6. Letters upon letters from me unanswered and unnoticed: personal access, eluded for months, at last openly refused. From the time that, for the accommodation of Lord Salisbury, (himself innocent and irreproachable,) I was deluded, as above, into the acceptance of his estate,* scarce in a single instance a fair audience of Mr Long. Three weeks, without the intermission of a single day—three whole weeks, on one single occasion—I remember passing in the passages: and when at last Mr Long was pleased to send out a refusal to see me, it presented itself to me as a favour, because discharging me from my attendance. Wanton and unprovoked insults were what I got from Mr Rose, when attending him for the fulfilment of the prospects he had held out to me: they were put an end to, prospects and insults together, by a refusal to see me any more. Not to speak of clerks, whose civility to me had real merit in it, I owe it to the kindness of the porters, that I received no insults from them, after the treatment they saw given to me. All, without so much as the fancied shadow of a complaint against me: as Mr Long, before witnesses, and particularly at our very last interview, has been forced repeatedly to confess. In the midst of all these transparent frauds—under all these barbarous oppressions—not a single harsh word on the part of the patient—in conversation or writing, towards a single individual among his oppressors of all ranks.
“More of this—I know not how much—might be added. I spare it you:—I spare myself the hunting for it. If this be not enough, what else can be?
“Panopticon (it is obvious enough) is not the more beneficial a system for any scrape into which its adversaries may have floundered. True: but neither is it the worse. Against it, scarce an expression of vague dislike, much less anything in the shape of a specific objection, has been ever urged, that I could ever hear of, by its most determined adversaries. No man has ever yet been hardy enough to deny, though the calls for denial have been perpetual, that the sole causes, of the sacrifices so often made of it, have been the successive compliments paid to the train of successive lords, ending with Lord Belgrave.
“For my petition, I mean to avail myself of the offer of Sir C. Bunbury: he having been the first to mention Panopticon to Parliament,† before Mr Dundas came forward with his panegyric. Wilberforce must either help to pour shame upon the heads of his friends in both ministries, or desert his own opinions and belie his feelings, not only as declared to myself in black and white, and that very recently, but declared for years to all sorts of persons without reserve. Be the prayer of the petition granted or refused—all the perfidies—all the treacheries—all the oppressions—all the corruption—all the disorder—come out of course. For the constitutional points (without yet knowing the particulars) a person out of all party, but above all party, and of no small account—particularly in points of that nature, has promised in a letter I have by me, a ‘strict attention’ to the business. Having tried nobody else yet, I have met with no refusals. Of the Opposition, of whom I know nothing, I leave you to judge. Who can say? The same spirit, which has so lately brought upon the head of Mr Mainwaring a punishment which (judging from the Report of the Commissioners of the Crown, and the confession of one of those who voted for him along with you) I cannot look upon as altogether unmerited: may it not give some trouble in its call for punishment—not of Mr Pitt, or the Duke of Portland only, but even of Mr Addington, for connivances so much more culpable?
“The opinion of Romilly was not lightly given. After a consideration of some weeks, it was first given vivâ voce. I resuggested the points that seemed most novel or least clear. An inconsiderate opinion might have hurt both of us. I told him there might be occasion for me to make it public. He kept the papers: and, in a letter written for the purpose, on the point of his departure, found he could do neither more nor less than say—‘What you state respecting Botany Bay has very much astonished me. It has the more astonished me, because I take the law upon the subject to beexactlyas you have stated it.’ The marginal contents are not sufficient to enable you to form an opinion of your own: but they show upon what points it would have to turn. I would not load you with the paper at large, (56 pages.) It is at your command, of course, at any time. Romilly is for the Crown on the question of the Prince of Wales. White was beforehand with the Prince’s people in retaining him: and the Prince himself has expressed his disappointment at it. The spirit of self-delusion might have suggested this, and that, and t’other, in relation to a man who, though no party man, was no greater an admirer than myself of the late Ministry: but this works by estoppel. You probably know better than I whether, for some time past, he has not been by far the first man in the Court of Chancery, though originally more conversant in the common law.
“Upon the whole, in regard to Mr Addington, my calculation is—that (even setting aside all danger to his friends) he would find it less trouble to break at once the corrupt illegal promise, than to persist in breaking the legal one:—to establish a system of certain reformation, than to maintain, by waste of public money, a system of unexampled and altogether remediless abominations.* Should his calculation agree with this of mine, he will act accordingly: should yours agree with it, your regard for his honour, still more for the honour of Government as bound up with it, will, according to another calculation of mine, afford you a sufficient inducement to apprize him of your sentiments to that effect.
“The ground upon which these prospects, such as they are, are built, is not the most flattering of all others to Mr Addington: but it is he that has driven me upon it. Before trial, I looked up to him with the firmest confidence. The margin† refers to a most faithful picture of it. Nothing short of experience, nor even that for a long time, could wrench it from me.
“On that occasion, Mr Addington’s probity failed him, and with it, as is but natural, his courage. Though Mr Nepean was my evidence, or rather because Mr Nepean was my evidence, he durst not hear my evidence. As little durst he refuse to hear it. He set his brother to shuffle with me, as you may see. My ‘representations’ he had no objection to receive; because a paper the more upon his shelves would not give him much trouble. From Mr Nepean, though (I mean always because) the only person from whom he could have got any correct and honest account of the secret part of the business, that is, the dregs at the bottom of the dirty and dishonourable part of it, he could not bear to hear anything about it: because, having every now and then occasion to face Mr Nepean, and being known to Mr Nepean to have had notice of the business, with more or less of the perfidies, and treacheries, and oppressions, and corruptions sticking to it, in Mr Nepean he would as often have to face a man who would behold in him a privy, and by adoption a party, to so many scandalous enormities.
“The maxim Mr Addington has hitherto found it convenient (as he thinks) to take, upon this as upon other occasions, for his guide, is—that Mr Pitt can do no wrong: and it is that he may not be obliged to part with it, that he has taken for his model, the judge I have just been reading of in a newspaper, who would ‘never suffer more than one side of a cause to be heard, because both sides (he said) confused him.’ The side that gave him the support of so useful, not to say necessary, a friend, presented itself to his prudence as the side of safety. The example of such a predecessor—of such a possible successor—presented itself to his probity, as an advantageous substitute, to the dictates of law, public policy, and justice. My case being among those, which by the law itself are put out of the protection of the law—and Mr Addington’s station in it being that of a judge, but with a power much more boundless than that of any judge so called, the injustice of his conduct, is by so much the more efficient, than that of the very considerate magistrate just mentioned.
“Mr Addington’s hope is—what Mr Pitt’s hope was—to see me die broken-hearted, like a rat in a hole. I may die any day: but so long as perfidy, and treachery, and oppression, and corruption, and arbitrary power, and contempt of Parliament, and the persevering propagation of immorality and misery are the order of the day with him, so long as I live he will find me living to his annoyance. Living did I say? Yes: and even when I am dead, he will not be rid of me.
“Being no longer hare but hunter, the spirit that animates hunters is come upon me. By leaving me nothing to do, of that which I ought to have had to do so many years ago, he leaves me no other mode of serving the public so efficient or impressive, as the reading of that moral lesson which will be read to it by the uncovering of his shame.
“My demand is an extremely simple one:—that an engagement of one-and-a-half year’s standing, entered into after seven months taken to consider of it, may be trampled upon no longer:—that, according to that engagement, prison-room be given me for the 2000:—terms to be grounded on it, as per Memorial settled by Mr Nepean—principles assented to, over and over, in conversation with him, by Mr Long. The number to be secured to me, no more than the original number, 1000:* for anything beyond that number I neither asked any engagement, nor would have accepted it, had it been offered.
“For taking the least bad course that can now be taken in relation to New South Wales, he might perhaps in this case find his account in consulting a man, who is not an utter stranger (as so many have been) to the subject, either on the chapter of law or policy—who is not above taking trouble on any subject, nor above looking upon these outcasts as fit objects of his care.
“Lord Pelham’s letter does not satisfy me. You may see why it does not. It may be sincere, but though I were sure of its being so, I could not trust to it. It binds not Mr Addington. It is much less than I got from Mr Dundas, in his lordship’s place, on the occasion of Battersea Rise. Time begins already to show the value of it.
“In any declaration he might make to you, though it were but a verbal one, so it were a specific one, he knowing you to be in possession of the case, I might venture to have confidence. Why? because it will never be in his power to ‘fly from your presence,’ as he might have done for the most part from Mr Nepean’s. As often as he looked up to you in your chair, with those professions of probity upon his lips which will be so often called for from his place, your eyes would bear witness against him, if he were false.
“This is my last private attempt, to drive into the head of Mr Addington the sense of justice. Should this pass unnoticed, or prove fruitless, the die is cast. If I hear nothing from you before the 13th of this instant September, 1802, this being the 3d, I shall no longer look for it. On that day it may be necessary for me to take steps that may be irrevocable. Time passes, and presses. I must not lose the commencement of the approaching Session, as Messrs Addingtons made me lose the remainder of the Session of 1801.”
[* ] Title, Picture of the Treasury, &c. &c.
[* ] See Panopticon versus New South Wales, in the Works, vol. iv. p. 173 et seq.
[† ] 4to, 1798.
[‡ ] II. Collins, 316, Table of Arrivals.
[* ] 4th October, 1799.
[† ] 34 Geo. III. c. 84.
[‡1 ] 19 Geo. III. c. 74.
[‡2 ] Further Proceedings, 15th July, 1800, p. 50, No. 9, dated “Treasury Chambers, 14th July, 1800.”
[§ ] 12th June, 1801, No. 9, pp. 79, 80, 81.
[* ] 9th July, 1801.
[† ] 24th March, 1801.
[‡ ] June, 1798.
[* ] December 1798.
[† ] See Debate, 31st May, 1793. Parl. Hist. xxx. 956.
[* ] “Not that there is, or ever has been, any incompatibility: with equal complacency, if he finds it most convenient, he may support the bad and the good together.”
[† ] Some note appears to be wanting here.—Ed.
[* ] Draught of Contract, 23th Finance Report, appendix.