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The TRUE BASTILE: shewing the outrages (a) offered to Law, Justice by Mr Pitt and his Associates in the foundation and management of the
penal colony of NEW SOUTH WALES: by Jeremy Bentham of Lincoln's Inn Esquire Barrister at Law (b), Marginal contents in two Sheets. Sheet 1.
III. Non-existence proved
43
3. The sort of affirmance
it gives in the case
of conquered colonies,
applies not to New
South Wales.
44
Proof of the above
propositions.
1. Ld Coke's dictum
in Calvin's case Ao 1608.
2. Yorke & Wearge opinion
on the Jamaica case
in 1722.
45
The dictum in Calvin's
case, as cleaned of
its absurdities by Ld Mansfield.
46
Opinion of Yorke and
Wearge as cited by him.
47.
It negatives the right
of the King alone in
any but a Colony
obtained by conquest.
48.
Upon the whole the
King's right to legislate
without Parliament
is negatived as
to Colonies not acquired
by conquest, by the
S<hi rend='underline'>t Albans case: (supra 10) as
to conquered Colonies
by that and by the
Bill of Rights art.
4 & 6.
49.
Similar opinion maintained
by George Grenville,
according to
Edmund Burke.
50
Had the proper Colonization
powers been granted
from the first by
Parliament, the
American war
would probably have
been saved.
51
The St Albans case,
saying nothing of
Colonies by name was never
applied to them
by lawyers.
[This was an attempt
of the Crown, with the consent
of certain inhabitants
of St Alban's, to
legislate without Parliament
over St Alban's.]
---page break---
III. Non-existence proved 52.
Yet in the grant of
the first Colony is was
was by its Charter made parcel
of East Greenwich,
and subjected to
English tenures.
53.
What is sufficient
to render all Ordinances
void that have
been issued in New
South Wales, and the
acts done in execution
of them so many
injuries, is their
having been without
consent of an Assembly
there or authority
from Parliament.
Whether a Charter
for the formation
of such an Assembly
would have been
valid is immaterial
there: though material
as to Trinidad.
54
Better to establish
all these powers by
authority of Parliament
than leave them in
uncertainty. —
52 (a)
Another example
to shew how much
these Charters are
against decisions
in the character of
precedents. Power
given by a Charter
Ao. 1609 to any two
men here to send
a man to America
to be dealt with at
the pleasure of one
other man there.
55
Either there is no
legislative authority
in New South Wales,
or the constitution
is at an end and
there is none in
Britain.
---page break---
IV. assumption - samples 1.
Though the Governors
legislative powers
were confined by
law to certain
classes, he exercized
them upon all —
as indeed was,
sometimes at least,
necessary - p.53
2.
Proof of the need,
and the supply as well as the exercise
by a list of the
objects with a view
to which he did
legislate. p.54
3.
These objects were
all important.
p.54
4
— and the ordinances
introductory of new
law — therefore illegal.
p.54
5.
Among such illegal
ordinances the
stronger the necessity
the greater the guilt
of those who sent
out the Governor
without power to
make legal ones.
p.55.
6.
Impossibility of
determining with
precision in every
case as to the
legality or illegality
p.55.
7.
Heads selected to
shew the deficiency
and need of legislative
power-
1. Famine
2. Drunkenness
3. Emeigration
p.56.
8.
1. Famine. This &
anarchy introducing
each other - the great
sources of danger
to infant Colonies -
suffering from famine
in N.S. Wales
notwithstanding the
expence.
Anarchy was kept
off partly by a military
force, partly by legal
ignorance. p.56
---page break---
IV. Assumption - samples. 9.
List of Ordinances
for security against
famine — necessary
but illegal —
1. Power to kill
damage feasant
(vice impounding)
2. Orders to give
in lists.
3. Prohibition as to a
use a man's mans using his own
property.
4.1. Prohibition as
to his management
of his own property
2. Specific penalty
created.
5. Private property
seized a particular
article.
6. General seizure
of private property
p.57
10.
Importance of legislating
against
drunkenness: there,
life depended upon
it. — p.58
11.
List of Ordinances
against drunkenness.
Spirits prohibited
to be, without
licence —
1. imported - 2 sold -
3. distilled - 4 paid
for by grain. p.59
12.
The ordinances
under the other
heads are alike
expedient and
illegal. p.61.
13.
Those that relate
to escapes will
be given under
another head —
being censurable
on other grounds.
p.61.
---page break---
VI Escapes. 1
Though the design
was to prevent
the return of Convicts,
no plan was
formed for the
execution of it —
neither at the
outset nor for
years. p.1.
2.
A just plan would
have provided for
their the return of
emancipees and
made it as easy
as under the
old system. p.2.
3.
An unjust one
would have taken
measures against
the return of
emancipees from
thence — p.3.
4.
At first, they had
no plan, for prevention
of the return,
either of emancipees
or non-emancipees.
p.4.
5.
When they had
any it was directed
as much against
the one as the other.
p.4.
6.
Be this a legitimate
object of
the establishment
or not, their conduct
is equally indefensible.
p.6.
7.
When they put
emancipated bondsmen
under this
illegal restraint
they put all
free men under
the same restraint. —
p.6.
---page break---
VI. Escapes 8.
Quere what instructions
were
given to the
Governor as to
permitting or
prohibiting departure —
particularly
to expirees?
p.7.
9.
Effect of this want
of plan.
1. When there
was no plan
formed for preventing
the return of
Expirees Expirees, it wereas
prevented by the
neglect, real or
pretended, of not
sending out the
papers evidencing
the length of their
terms. p.9.
9 (a) II 1
1 Expirees kept in
bondage: papers
evidencing the
expiration being
left behind. Collins
p.74. [This neglect, involving in it a most scandalous and tyrannical exercise ail of false imprisonment, has I find been several times repeated under the management of the Duke of Portland, Mr King and Mr Baldwin. It cries aloud for consign punishment enquiry. In, Collins. 74 40 Collins 131. 212 267.
2. ?I, II5. It appears by
the same document,
that Convicts who
had no more than
2 years remaining
were sent in the
design of their never
returning. p.10 [II Collins 141.]
[Another certain case of cool
barbarity, the multiplied
instance of call
for ]
Another instance of cool barbarity, because habitual (there is reason to suspect) under the management of the Duke of Portland, Mr King & Mr Baldwin. Ao 1798. General Bentham by representation to Ld Pelham, obtained relief for one or two men, whom by Mr King and Mr Baldwin had been doomed to bondage for life in N.S. Wales when but a few months of their term of punishment under their sentences remained due. Measures are taking for bringing this point before Parliament.
10
Particular exemplification
of the
Conduct observed
in relation to Expirees.
p.11
11. I2
1. Expirees refused
liberty for liberty
for want of papers -
flogged 60s for
claiming it. p.12
12. I3
2. Another flogged
for trying attempting to go without
leave. p.12
13. II2
3. Bloodsworth made
free, and confined
2 years to work
gratis. without pay p.12.
---page break---
VII. Escapes. 14.
4. Oars destroyed - as
being made, as supposed, for
escape - whose they owner
were unknown.
p.12.
15. I 1 54
5. Orders - married
men not to quit
without finding
security p.13
16. II 3
6. Order - Expirees to
work 18 months &
then no obstacle, or nor
assistance. p.19. as
to their quitting. p.19
17 I 65
7. Expirees escaping
to India to be there
apprehended. p.14
18. II 34
8. Choice of place of
labour an indulgence
to Expirees. p.14.
19. I. 6
9. Orders - General
liberty of departure,
with the intention
of not allowing it.
Instructions for
preventing departure
expected. p.15.
20. I 7.
10. Instructions for
preventing departure
received. p.16.
21. I 2*
11. First breach of the
promise - Two Expirees
attempting
to depart stopped
as well as at the same time with two
Non-expirees. p.17
22.
12. Second breach -
permission given
to few - denied to
many. p.
23.
13. Permission granted.
24. I
14. Third breach - two
men Expirees stopped
and flogged.
25. II
15. Expirees treated
all as bondsmen.
VII Escapes. 26.
Negligence being
coupled with the
oppression, about as
many got away
without rights as
with. p.18.
27.
Recapitulation
1. Illegal legislation
2. Oppression.
3. Perfidy.
4. The Detainer
was not by mere
physical difficulties
but by special
orders from Pitt &c
at home. p.20
The illegal subsequent system
of illegal detainer is not
imputable to negligence,
as the
original system
of foundation may
be. p.22.
29.
Ignorance of the
law is no reason excuse
in such a situation.
For The Common Pleas
to give judgment of
death would be
murder. p.22
30
The oppression and
the perfidy of the
perfidy of the detainment
are a
distinct charge
from the illegality
of the Ordinances.
p.22.
30 (a)
Governor fully
aware of the right
(of departure) he
was violating.
p.22*
31
Mischief by Expirees
in case of return
affords no excuse
to the founders
of the Colony at
home. p.23.
32.
Facienda? What
course is best to be
taken under the
existing circumstances?
p.26.
---page break---
VII. Escapes. 33.
Causes of the
repugnance that
may be expected
on the part of the public mind in regard to a
general return of
the Expirees.
- the inevitable deterioration instead
of reformation
of the Convicts under
the system of penal colonization.
p.27.
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Identifier: | JB/116/269/001 "JB/" can not be assigned to a declared number type with value 116.
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panopticon versus new south wales |
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the true bastile: shewing 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 |
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marginal summary sheet |
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recto |
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john herbert koe |
1798 am |
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frances wright |
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1798 |
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