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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: by Jeremy Bentham of Lincoln's Inn, Esquire, Barrister at Law. (b) Marginal Contents in two Sheets. Sheet I.
A
§ 1 Legislative powers
necessary —
§. 2. Legislative powers
&c created —
§. 3. Legislation void
without Parliament.
§. 4. Legislation exercised
- instances —
§. 5 Legislative powers
why not applied for.
§. 6. Tyranny &
Negligence — Expirees
detained — non expirees
escape —
§. 7. The Tyrants doom
under the Habeas
Corpus act.
§. 8.
B
(a) Outrages may
seem vague and
declamatory. But
it is one of the new two
legal words upon
which the whole
system of Government
is made to turn
in the New South
Wales Act 267 G. 3 c. 2.
the original No 1.
Wales Act.
Of the wrong
terms of reprobation
here employed, the
use is will be found itunitly justified
by the points
of law and fact
demonstrated. If
the present administration
redress the
grievance, the hostility
of the style may be
softened: if not, it
must be retained &
sharpened, that among
the body of the people
such as may think
Magna Charta amp;c,
the Bill of Rights, of
the Habeas Corpus
Act worth preserving,
may conceive a first
alarm, and give a
constitutional expression
to their feelings.
(b) As a pledge of
responsibility the title
page will bear my
professional description
as well as my name.
---page break---
I. Powers necessity
§. Legislative powers
necessary
Power of making
regulations is necessary
every where - more
particularly in a
new Colony than in
an Old Government.
p. 7.
2.
It is power of legislation.
p. 7
3.
In feudal times the
want of it was felt
here. p. 7.
4.
It is more urgent
1. in an infant Colony
p. 7. than in an old
established state. p. 7.
5.
2. In a community
composed chiefly
of outcasts, than in
one ordinarily composed.
p. 8.
6
3. In a dependency thus
distant than in the
Eastern, as but half, 1/2
as or the Western, as
but 1/4 the distance.
p. 8.
7.
Founding a Colony
is creating the necessary
assortment
of the powers of
government in it —
No foundation
without it. p. 8
8
Judicial power is
not sufficient. p. 9
9
If the actual existence of
such legislative
power be not
necessary, as any
rate the belief of
it is. p. 10
10
No legislative power
was created at the
outset as or has been
since. The only
N. S. Wales Act 27.
G. 3. c. 2. creates
nothing but judicial.
p. 10*
---page break---
§. 2. Power of legislature
— its necessity
in New South Wales
§.3. Power of legislation
existed not
non-existence
has been always
in New South Wales</p>
§. Legislation in
not legal
§. 4. Power of Legislation
can not lawfully
be examined in New South
Wales for want not conformable of
but by power from Parliament</p>
§. 5. Power of legislation
in of legislation
exercised in
New South Wales
§ 6. Tyranny and
negligence. Expirees
detained; non-expirees
escape
§ 7. The Tyrants
doom under the
Habeas Corpus Act.
---page break---
II. Powers _ non-existence.
1 -
Yet the Governor
went on issuing
Ordinances and
the Council Board
or Secretary of State's
offices giving him
instructions for
issuing Ordinances
as if there had
been powers to
that effect. p. 12.
2.
The exercise of
that power must
have been accompanied
with a
persuasion of the
right.
1. On the part of
the Governor p.12.
3.
2. Or of his superiors
at home: viz.
either
1. of its existence
2. or that it
would be believed
to exist. p. 12.
4.
If they had no
such persuasion
of its existence their conduct was
fraudulent. p. 12*
5
That any such
persuasion was
really entertained
is not probable.
To show this here
follows the best
care that can be
made in support
of any such
right. p. 12*
6.
Admitted that a
right exists to a
certain extent; but
not to the extent
to which it has
been exercised.
p. 13.
---page break---
III Powers Non-existence
proved
7. 1
Burned for
what of legal powers
of legislation - persons
and things recieved
and distinguished
for this purpose. p.1.
8. 2
Classes of inhabitant
enumerated, with reference
to their subjection
to Ordinances
Expirees defined. p.13*
9. 3
Classes in regard to
which the right it may be admitted
— though not
in every instance
compleat and unquestioned —
Classes 1 & 2 compleat.
Class 3 incompleat.
Class 4 questionable
— 5 unquestioned
— 6 unquestioned
p. 14.
10. 4
Classes in regard
to which it is denied
Classes 7, 8, 9, 10 - p. 15.
11 5
Things, over which
the Governor would
have a power, and
by that means an
influence over persons.
p. 15.
12. 6
But this influence
is not legislative
power. — p. 15
13 7
All general Ordinances
Ordinances in omnes are
void - notwithstanding
the influence. p. 15
14 8
Assumed, admitted that whatever
power could be
given by the Crown
to make these Ordinances
legal,
was given. p. 16
---page break---
III. Powers non-existence
proved.
15 9
On what grounds
if any, could the
existence of any
such general power
have been supposed?
The answer must
be mere conjecture.
p. 16.
16 10
Was it this? that
American Colonies
were founded without
powers from
Parliament?
The fact is admitted.
p. 16
17 11
Even in the instance
of Georgia, founded
so late as in the
6th of G. 2. Ao 1740.
p. 17.
18 12
But the practice
may be considered
as being relinquished
and virtually recognized
to be illegal
in 1774 by the Quebec
Act. p. 18.
19. 13
But No more than seven years
after the Georgia
Act the legislative
power exercised in
the Colonies was, so
far as is went to
restrain the right
of departure from
thence thought to
stand in need of
confirmation here,
by 13 G. 2. c. 4. Ao 1740
p. 19
19 (a) 14 13(a)
1. This clause was
understood to be requisite
not merely
to save the power
in question from
being taken away
by other clauses in
this same Act.
p. 19*
2. It was not
necessary if the American
Acts in
question were binding
upon America.
p. 19**
---page break---
III. Non-existence proved
20 15 14
This same application
of legislative power
is among the powers
exercised in New
South Wales and is
necessary to prevent
the depopulation of
it. p. 20
15
Such power is repugnant
to the
principles of the
Constitution.
16.
The practice began
under James 1<hi rend="underline">st</hi>
17.
The exclusive right
of Parliament to
legislative power
was not the
so well settled as since.
18
yet The want of power
in the King to
establish Ordinances
on pain of imprisonment
was established
so early as Tempore Elizabeth
as per Ld
Coke in Clark's case, St. Alban's
called Clark's case.
19.
At the time of the
first Charter no
distinction could
have been taken on the
ground of distance
to take the case out
of Clark's can these
being neither principle
for it nor
precedent.
20.
How the right
remained unquestioned
because nobody
had sufficient
interest to question
it.
21
If If, without Parliament the King could
not legislate over
Englishmen in
England, neither
could he elsewhere.
22.
No such rights can
be evoked by from the consent of
a part only of his
subjects and than
the selected objects of his
favour.
---page break---
III. Non-existence proved.
nor yet from by any
expediency supposed in the
constitution nature of
an Colonization System as
evidenced by subsequent
experience.
24.
That official precedents
will not
stand against judicial
principles,
is proved by the
case of general General
warrants Warrants.
25.
Though In that case, the
practice was not
precondemned, as here, by
direct adjuducation.
as here.
26.
The case of the
American Colonies
applies not here, because
there the power
was not exercised,
without
1. Consent to inhabitancy
the Colony and be subjected
to to the laws thus
made and to be made in it
2. Irrevocability of
the privileges granted
by the Crown.
27.
1. Irrevocability, though
distinct from consent,
is a condition sine
qua non of without
being which the
consent would not
have been given.
28
Another conviction and therefore
to the validity of
such any powers, by
which such
are enforced.
be irreconcileable
29.
The irrevocability of
powers for colonization
derived from
the Crown, has been
all along recognized
by the Crown itself,
as well as by the
judicial power.
30
Consent, though not
necessary to subjection
under an old government,
is under a
new one : in point
of utility,and
in English law.
---page break---
III Non-existence proved.
31
In New South
Wales no such consent
- the very
object of the foundation
was to legislate
against consent.
32.
Nor irrevocability
of privilege -
there being no
privilege.
33.
All those Constitutions
were by
Charter - Here no
Charter. -
34.
In a Colony obtained
by conquest legislative
power may perhaps
be exercised by the
Crown otherwise
than by Charter -
but that is not
the case here.
35.
Nor ever can be.
36.
The founders of
New South Wales
were so wellsatisfied of their
as by their insufficiency of the
to Parliament power of the Crown for
for power legislated that they
to establish the would not trust to it
will for Judicial
power though a power inferior
to legislation.
37.
Ordinances issued
in New South
Wales besides being
void in themselves
could have no force
for want of a Court
to try for breaches
of them - the Court
created under the
stature having no
power to punish
for any offences
that would not be
so if committed
within "in this realm"
---page break---
III. Non-existence proved.
38. 37(a)
Specimens of the
uncertainties and
dificiencies in the
provision made in
the Act for the
establishment of
the necessary body
of law in N. S. Wales-
1. "This Realm"
2. Civil Injuries
3. Laws turning
upon names of
things and persons
not in N. S. Wales.
4. Ecclesiastical
offences.
38.
So far as the Council
Board were parties
to their illegalities,
they were probably
surprized (as well
as Parliament) by
the Minister and
Secretary of State
though this makes
no difference as to
the legality.
39.
Error on the part
of the Crown lawyers
not impossible-
Proof, their error
in the Grenada law.
Ao 1764 decided as per
1774 - in
40
Inferences deducible
from this Grenada
case, of the illegality
of the Kings legislation
in New South
Wales.
41 41
1. As Down to that time, not
decision, affirming
the right as to Colonies
in general.
42
2. That decision, in affirming
the right as to conquered
Colonies,
it as to
all others.
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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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