Front Page Titles (by Subject) Romilly to Bentham. - The Works of Jeremy Bentham, vol. 11 (Memoirs of Bentham Part II and Analytical Index)
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Romilly to Bentham. - 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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Romilly to Bentham.
The Committee made their Report yesterday. I have not been able to see it. It is very long, and, I understand, very unfavourable to your contract. I attended the last day but one, of their meeting, but found it quite impossible to do anything. Except Abercromby, and myself, and Wilberforce, no person friendly to you was present.—Evermost sincerely yours, &c.
“June 1, 1811.”
The part of the Report which bears on the subject is as follows:—
“The 34th Geo. III. cap. 84, reciting that certain lands at Battersea Rise (which are described in the recital, and stated to contain 79 acres and one rood) had been fixed upon by the supervisors appointed in pursuance of the former act, and after being duly approved of under the provisions of that act, had been valued by the verdict of a jury at £6,600, but that penitentiary houses had not been erected, directs the lords commissioners of the treasury to fix upon that spot of ground, or any other equally convenient, and to contract for the erection of a penitentiary house or penitentiary houses thereupon. They were to appoint a feoffee or feoffees to treat for the ground, and accept a conveyance of it; and the usual powers were given to compel a sale by the owners of the spot selected.
“The provisions of the former act, respecting the appointment of a Committee for the superintendence of the establishment, as well as those enactments which related to the treatment of the offenders to be confined therein, were virtually superseded, by the third clause of this statute enabling his Majesty to nominate a governor or governors of such penitentiary house or houses when erected, and giving to such governor or governors the care, management, superintendence, and control of the same, under such powers, directions, limitations, and restrictions, as are contained in the 24th Geo. III. cap. 56, or as should be appointed by his Majesty under the powers of that act; which is an act empowering his Majesty to commit to the care of persons to be named overseers, offenders either under sentence of death and reprieved, or under sentence of transportation, to be fed, clothed, and kept to hard labour, in such places and under such directions as his Majesty shall appoint.
“The 34th Geo. III. appears to have been brought into parliament with a view to an arrangement which had been for some time in contemplation, founded on an offer made by Jeremy Bentham, Esq., a gentleman of great respectability, to contract with the Lords Commissioners of the Treasury for the erection of a penitentiary house, and the care and custody of the persons to be confined therein, upon a plan described in a paper entitled, “A Proposal for a new and less expensive mode of employing and reforming Convicts,” a copy of which is contained in the Appendix to this Report; and about a month before the act received the royal assent, a sum of £2000 was actually advanced to Mr Bentham, from the treasury, by way of imprest, to enable him to make such preparation as might be necessary for the custody and care of the convicts proposed to be confined in the penitentiary houses intended to be erected. It appears that Articles of Agreement were accordingly drawn up between the Lords Commissioners of the Treasury and Mr Bentham; and the various sums of money to be received or paid by the contractor, in the several cases that might occur under the contract, were settled and inserted in the draft, a blank being only left for the description of the ground; in the selection or purchase of which, the difficulties which have prevented the completion of the arrangement appear to have arisen.
“It does not appear for what reason the site of the intended erection was changed from Battersea Rise, but the ground which had been chosen there, and valued under the former act, was abandoned, before any contract for the conveyance of it had been completed, for a spot in Tothill Fields, where 53 acres of land were purchased for £12,000, and a conveyance of them taken on the 12th day of October, 1799, from the vender to Mr Bentham, as feoffee under the provisions of the 34th Geo. III.
Mr Bentham, who is still in possession of this land, considers himself as entitled to have attached to the Penitentiary House under his contract, such additional quantity of ground as shall make the whole of what is allotted to him, amount to 79 acres, that being the number which he found appropriated to the intended establishment, by the recital in the act of parliament; and he states upon that head, that the portion of such ground, which may exceed the quantity absolutely necessary for the erection of a Penitentiary House, formed a part of the consideration for which he consented to the terms of the original agreement, and that he intended to use the whole for the purposes of the establishment, by employing such of the convicts as were fit for it in agriculture and gardening.
“Mr Bentham having appeared to your Committee to be still desirous that the contract, to which, though not actually signed, he conceives the public faith to be fully pledged, should be carried into effect, with such variation in the sum of money to be paid by government for the maintenance of each convict as should be deemed equitable, in consideration of the advance of price which has taken place in all articles of consumption since the agreement was framed, and with the exception of such part of the agreement as relates to the erection of the buildings for the Penitentiary House, which he does not now find himself able to undertake; your Committee found it necessary to enter into the consideration of the principles of the contract alluded to, in order to form a judgment on the expediency of its adoption for the management of the Penitentiary establishment recommended in this Report.
“Mr Bentham’s offer, the terms of which appear, in a pecuniary point of view, to be advantageous to the public, was founded, according to the statement contained in his original proposal, upon his having ‘contrived a building in which any number of persons might be kept within the reach of being inspected, during every moment of their lives.’
“The Plan upon which it was his intention to erect this building, may be seen in a paper annexed to the proposal, and entitled ‘Outline of the plan of construction alluded to in the above proposal;’ and models of a Penitentiary House, as therein described, were exhibited to many persons in Mr Bentham’s own house, before his proposals were accepted; but no plan or form of building is referred to in the articles of agreement, and Mr Bentham states himself to be at liberty under it, to place what number of convicts or prisoners he may think fit, in the same cell, and to make them sleep and work in the same apartments; which statement appears to your Committee to be correct, there being no restriction or direction relative to those points to be found in the articles.
“By the agreement, Mr Bentham is to build, within one year after he shall get possession of the ground mentioned therein, fit accommodation for 1000 male convicts or prisoners, certain sums of money being to be paid to him for that purpose by instalments; and he is afterwards to make provision for the reception of supernumeraries, if required, upon certain terms.
“The contract being to continue during the lives of Mr Bentham and his brother, General Samuel Bentham, the building, and the stock and effects used therewith, are to be valued on the decease of the survivor of them, and a deduction being made of the sum of money originally advanced by government, the remainder of the estimated value is to be paid to the representatives of such survivor.
“The management of the prisoners is to be vested in Mr Bentham, (or in any fit person or persons to be named by him from time to time, during his life, to exercise the authority and receive the benefits derivable under the contract,) with the appointment of governor, and with such powers as his Majesty is enabled to grant under the 24th Geo. III., the Act to which the 34th of the king refers upon that head, as has been already stated; and in the event of Mr Bentham dying in the lifetime of his brother, General Samuel Bentham, ‘the same office and powers are to be exercised, and the benefit thereof enjoyed by the said Samuel Bentham, or some person or persons to be named by him, during his natural life.’
“The contractor is to receive a certain allowance for the care and maintenance of each prisoner, and is to be annually paid for 1000 at least, though the persons committed to his charge should not amount to that number. He is also to retain for himself three-fourths of the profit upon their labour; the remainder being appropriated to their own use, payable in part to them immediately, and in part convertible, on the expiration of their respective terms of imprisonment, into annuities for their future benefit.
“The contractor undertakes, on his side, to feed and clothe the prisoners, supplying them daily with wholesome sustenance, composed of bread and meat, and other articles commonly used for human food, and with one suit of clothes yearly, as well as with a clean shirt twice a-week.
“He is also to furnish each a separate bed and bedding, of sufficient warmth, with clean sheets or blankets once a-month; and he engages, that ‘all possible attention shall be paid to the cleanliness of the prisoners in every respect, as far as circumstances will permit; that the Penitentiary House and buildings belonging thereto shall be sufficiently warmed and lighted; and that every proper precaution shall be taken to prevent the same from becoming infectious or unwholesome, to preserve the prisoners in good health.’
“He further engages to provide, at his own expense, a clergyman of the Church of England to live on the spot; a surgeon; and a sufficient number of competent schoolmasters, by whom instruction shall be administered on every Sunday at least, in reading, writing, and arithmetic, to such of the prisoners as shall stand in need of it.
“Subject to these stipulations, every arrangement, in regard to the treatment of the prisoners, as well as the determination of the manner in which they should be employed, of the hours of the day or night in which they should labour, and of the classes or numbers which should either work together, or associate at their meals or times of exercise or recreation, is entirely left at the discretion or will of the contractor; while every officer and servant, connected with the establishment, is to be placed there by his appointment, and removable at his pleasure.
“The system of management here described, appears to your Committee to have been framed with reference rather to the personal character of the party, in whose custody the prisoners were on the first instance to be placed, and to the favourable opinion entertained of the construction of the building proposed by him, than to the principles upon which prisons have hitherto been conducted in this country. Your Committee are satisfied, that Mr Bentham would enter upon the undertaking, to which his contract relates, with the best intentions; but the prosecution of that measure, together with the benefits derivable under the contract, might, by the terms of the agreement, pass at any time into other hands; and even if that were not the case, the arrangement above stated is too exceptionable on general grounds, in the judgment of your Committee, to be adopted from confidence in an individual.
“Under the 22d Geo. III. c. 64, sect. 8, which prohibits the governor or keeper of a house of correction from having any advantage from the sale of any article used in the house, there is a security for the goodness of the provisions and necessaries sent in on account of the public for the use of the prisoners, arising from the circumstance of their passing under the eye of the governor and his servants, who have no interest in concealing their defects; while the governor is not exposed to any temptation to sanction the introduction of any improper degree of luxury into the prison, with a view to his own profit, or of demanding an undue price for such articles as may properly be admitted there.
“Mr Bentham’s contract contains no provision upon these points. If, however, this objection could be removed by additional articles in the agreement, by the establishment of a fixed table of diet, and by the appointment of resident inspectors, the public could have no reasonable assurance that sufficient attention would be paid to the religious instruction and moral improvement of the prisoners, under a system of management, every part of which is to be formed and directed by a person, whose interest it must be that the prisoners committed to his charge should do as much work as they were competent to execute, and that their labour should be exercised in the manner by which most profit would be produced. If the chaplain should suggest, that individuals, very profitably employed in the same workshop, were unfit, from their characters or other circumstances, to associate with each other, or that any practice in the prison, which might be convenient in a manufactory, operated to retard rather than to accelerate the progress of moral improvement, it cannot be supposed that such intimations would be heard with as ready an acquiescence, and would meet with the same encouragement, when addressed to a governor, whose profits they were calculated to diminish, as if they were communicated to persons having no interest in the produce of the prisoner’s labour.
“Your Committee see much reason to apprehend, that under a system, in which pecuniary advantage is thus made the most prominent object of attention, the experiment of reformation would not be fairly tried.
“An answer has been supposed to be furnished to this objection, by an article in the agreement, binding the contractor to make compensation for losses occasioned by the future felonies of every person who may have been confined in the Penitentiary House, to an amount varying from £5 to £25, (for the felonies of the same individual,) according to the length of the period during which the offender shall have been under his care; which provision is argued upon as giving a sufficient interest to the governor in the reformation of every prisoner. Your Committee, however, attach very little importance to this article; and it is the more nugatory, as, although its operation must continue during the lives of all those who shall come under the care of the contractor, no funds whatever are provided in the contract, or are now proposed, to answer the contingent payments to become due after the contractor’s death.
“Reliance has also been placed on a provision of the same kind, operating in the nature of a pecuniary penalty, for the preservation of the health of the prisoners; it being agreed in the 17th article of the contract, that the contractor should insure the lives of the persons confined, on such terms, that if more than a certain number shall die within the year, he would be a loser instead of a gainer by the insurance: your Committee observe, that in their opinion the health of the prisoners will be more effectually guarded by the exercise of the judgment of a professional man, not dependent upon the governor, and acting under the direction of other disinterested persons, than by the payment of any sum of money to fall on the governor in the case of the prisoner’s actually dying within the walls of the prison during his confinement.
“It appears to the Committee, that the proposed system affords no sufficient protection to the prisoner, upon any point.
“In a place of confinement, in which the prisoners are compelled to work, and expected to be reformed, something of a more strict discipline may be looked for than in ordinary prisons. It is therefore more particularly requisite, that in a Penitentiary House opportunities of complaint should be frequent, and redress near at hand.
“The most obvious channel of complaint, if the governor be concerned in the supposed injury, is the chaplain, within whose province it lies, as on the one hand to endeavour to reconcile the mind of the offender to the lot which he has brought upon himself by his misconduct: so on the other, to prevent its severity from being aggravated by any hardships or privations which the law did not intend to impose.
“The surgeon is another person, through whom the prisoner may properly complain. But to make these officers of real use in this particular, they must occasionally confer with the prisoner without the presence of the governor or his servants; they must neither be under strong obligations to the governor, or subject to his power; and they must be in habits of communicating with persons armed with sufficient authority to punish or redress the grievances laid before them.
“The Committee to be appointed under the 19th Geo. III., had full powers at all times for this purpose, and they or any two of them were to examine into the state of the Penitentiary House, at least once in every fortnight, and to ‘see every offender confined there and not disabled by sickness.’
“In the contract, no provision whatever is made for personal inspection: but the governor is to present a comprehensive report in writing, of the whole state of the establishment, to the court of King’s Bench on the first day of every term. And he is to answer, upon oath if required, all questions put to him by the judges of that court, or by any one judge thereof in vacation time, or by any officer of the crown, or by any other person with the leave of the said court, or of any one judge thereof. And he is further to surrender his office of governor, if ordered by the said court, ‘on proof duly obtained as above, or otherwise, of misbehaviour in the execution of the said office.’
“The insufficiency of this article (the only one in the agreement that concerns the superintendence of the establishment) to provide for the redress of grievances, or the correction of any improper practice which may prevail there, is so evident, that it cannot be necessary for your Committee to enlarge upon this point.
“It is obvious that circumstances must frequently occur in a prison, which call for the interposition of higher authorities to censure or control the keeper, without constituting such instances of misbehaviour, as would justify the avoidance of a beneficial contract. To occasions in which an erroneous or indiscreet mode of treating the prisoners should be pursued, from want of judgment in the contractor, or from any cause not falling under the description of ‘misbehaviour,’ the proposed remedy by the authority of the King’s Bench appears to be totally inapplicable; and in the cases in which it does apply, it could only be attained in term time, while the court, which is to make the order, is sitting.
“Mr Bentham supposes, as may be seen in his evidence, that sufficient inspection, and opportunities enough of making complaints on the part of the prisoners, might be afforded, by the admission of the public at all reasonable times into the inspection room in the middle of the building, from whence all the cells would be visible, and which would be accessible to the voice of every prisoner by means of tubes, to be constructed for that purpose; and he seems to lay some stress on the vigilance which the newspapers are to exert in watching his conduct. But your Committee, agreeing with Mr Bentham in the belief that curiosity would bring many persons to view a Penitentiary House of so novel a construction, do not concur in the supposition, that any intercourse of the description alluded to between such visiters and the prisoners, can supersede the necessity of having persons nominated expressly for the inspection and superintendence of every part of an establishment of that nature, in whom the powers of obtaining information, in regard to any mismanagement, shall be accompanied by sufficient authority for its correction.
“While your Committee state their opinion, of the inexpediency of carrying into execution a contract of the description above stated, they feel themselves called upon to bring under the notice of the House, the strong equitable claims which Mr Bentham possesses to compensation, in consequence of the contract not having taken effect. Your Committee have not gone into a detailed examination of the various circumstances connected with that subject, as an inquiry of that nature might have occasioned an inconvenient delay in their reporting upon the more important matters referred to them; but Mr. Bentham has stated, that he was encouraged by his Majesty’s government to take measures preparatory to the erection of the intended establishment; that he has employed much time, and has expended a large sum of money in addition to the £2000 advanced to him in 1794, as mentioned above, in preparations for the execution of his part of the agreement; and that its non-performance was not owing to any default or backwardness on his side. He has, therefore, under these circumstances, a just right to expect, not only that the money so laid out should be repaid, but that a liberal remuneration should be made to him for his trouble and ultimate disappointment (he on his part accounting for any advantage that shall have accrued to him from the lands, of which he has been stated to be in possession as feoffee.) And your Committee recommend, that measures should be taken for the settlement of these claims without delay.
The Second Report of the Committee, as it chiefly consists of a communication from Bentham, follows at full length:—
Second Report from the Committee on the Laws relating to Penitentiary Houses.—Ordered, by the House of Commons, to be printed, 10th June, 1811.
The Committee appointed to consider of the expediency of erecting a Penitentiary House, or Penitentiary Houses, under the acts of the 34th and 19th of his present Majesty; and, in case the adoption of the measure now referred to their consideration should appear to them to be for the advantage of the public, to report whether any additional legislative provisions will be wanted for that purpose; and what number of persons such Penitentiary House, or Penitentiary Houses, should, in their judgment, be calculated to receive, together with any observations, which they may deem material upon the subject of their inquiry;—and who were instructed to inquire into the effects, which have been produced by the punishment of transportation to New South Wales, and of imprisonment on board the Hulks; and were empowered to report their observations and opinion thereupon from time to time to the House;—Have further considered the matters to them referred and agreed upon the following Report:—
Your Committee having received the following letter from Jeremy Bentham, Esq., since their former Report was made to the House, have thought it their duty to submit the same to the consideration of the House; although the observations therein contained, have not made any difference in their opinion upon the matters referred to them.
10th June, 1811.