JB/116/340/001

Click Here To Edit

N.S. Wales

5 July 1802

6. Conduct
VIII Jeopardy

5
Such confinement
though not within
walls or false imprisonment and
against Magna Charta
as per Ld Coke.

It is almost superfluous to observe, that an intendment of law
every place, circumscribed or not by walls—every place in
which without sufficient warrant a man is kept against his will
is in intendment of law—as for all the purposes of justice it is most necessary
that it should be—a prison. If the law be a penal one
it is also a remedial one: if in the whole body of the Statute
law there be one law more conveniently remedial than another
it is this. If there be as the lawyers distinction between remedial
and penal assumes there be two opposite modes of finding out
the meaning of the same law—the claim reasons for an compilation
extensive construction are if in any case they can be, stronger than
the reasons for a restrictive one. The penal part and the
remedial part are interwoven together: nor can the
matter of the opposition be screened saved from condign punishment, without
depriving excluding the victim from redress. If an island larger
than all Europe were not to this purpose a prison, the one
of the two equally declared/the legislation on this occasion objects of the law would be compleatly defeated, and the whole text
of it turned to a dead letter.

II. Inst. 46. 589.

Thus saith common sense: and what to speak in a in the instance
of many a reader to a certain class of men fortunately for the present purpose is much more persuasive and conclusive indisputable and decisive
what is more thus saith Lord Coke.+ "So it is (says he) of a
"felon: ... Custody of the King's Officer ... is an imprisonment
in law.+ He that is ... under lawful arrest is said to
be in prison, although it he be not infra parietes carceris.II
Imprisonment doth not only extend to false imprisonment imprisonment
and unjust, but for detaining of the prisoner longer than
he ought, where he was at the first lawfully imprisoned.II

"No man" (says he) "shall be exiled or banished out of his Country
"that is nemo perdet patriam, no man shall lose his country
"unless he be exiled according to the law of the land.+

+ whose comment, though
the date of the declared text of it
the text be of the so much
later earlier date, is not here inapposite:
since the Habeas
Corpus Act in an
an Act having
Magna Charta for its groundwork,
has for its object
no other than the affording
an additional protection
to this part of the rights
which already by that
first sacred and
of that constitution
had already been established

"No man shall be outlawed, made an exlex, put out of
"the law, that is deprived of the benefit of the law, unless he
"be outlawed according to the law of the land." # —Their time of
lawful punishment being expired, then the quondam Convict in habitants of New
South Wales, by being kept there against their wills, are they not made to lose their
Country? and, by being
thus de facto removed out of the reach
of the remedial arm of justice
are they not put out of the law as effectually
as if a wrongful
of outlawry were being pronounced if then they were deprived de facto falso jure of the benefit of the laws of falso jure?

Identifier: | JB/116/340/001 "JB/" can not be assigned to a declared number type with value 116.
Date_1	1802-07-05	Marginal Summary Numbering	5
Box	116	Main Headings	panopticon versus new south wales
Folio number	340	Info in main headings field	n. s. wales
Image	001	Titles
Category	text sheet	Number of Pages	1
Recto/Verso	recto	Page Numbering	d4 / f59
Penner	jeremy bentham	Watermarks
Marginals	jeremy bentham	Paper Producer
Corrections	jeremy bentham	Paper Produced in Year
Notes public		ID Number	37873
Box Contents