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Panopticon Bill
Escape
Observations with Answers
The use of this is to put it into the power of the Governor to soften the punishment, in
the case where he is satisfied the negligence has been real and not affected: or where though affected, the
danger from it does not appear to have been great: inasmuch as the treachery or gross negligence
of one such Guard, would be insufficient to produce the apprehended mischief without similar delinquency
on the part of others.
A punishment short of the above seemed inadequate to the purpose: and the necessity of applying
it in its utmost extend in each instance seemed to turn upon such nice considerations and
so much out of the reach of legal evidence, that I knew not in what hands to lodge it, with safety
to the establishment and to the country, other than those of the Governor. His interest, let it be observed
is as perfectly combined with that of the Country at large as that of the Judge or Jury can
be. He can have no temptation to abuse the power of the side of lenity, since the escape of the
Prisoners would be his ruin: nor on the side of severity, by refraining (on account of a preceding
grudge borne to the offender) to prosecute for the lesser punishment in preference to the greater;
since if he had had any grudge, a sure and lawful way of exercising it would have been to
turn the man out of his place. It is impossible therefore, from the nature of the case, that the
Governor should entertain any resentment against such his offending servant, except what was suggested
by his opinion of the danger to be apprehended from the offence.
In point of precedent, the discretion here contended for exists in a very numerous tribe of instances:
in none of them I believe with so much reason, and in most of them without any such reason, as
here: send where it is exercised, the exercise of it is the frequent subject of vulgar, and as it to me appears
immerited applause.
1. It exists wherever a theft for instance is at Common Law single felony, and the offence is on
account of some circumstances of real or supposed aggravation (I say supposed for it has in few
instances been my good fortune to be able to discover any substantial ground (or these suppositions)
such as the nature of the building from whence the thing was stolen, or the circumstance of its being
stolen from the person &c. &c. erected into a capital felony.
2. Where an offence, being an offence originally at Common Law, has been prohibited under a
particular penalty by some Statute.
3. When it has been prohibited under different penalties by different Statutes.
4. Where, as in the case of Revenue-Laws, Game-Laws &c., option has been given between the
regular mode of prosecution and a summary mode less burthensome as well to the Defendant
as to the Prosecutor.
As to the jurisdiction, when the punishment came to be reduced so low as from life to a single
year, I thought there could be no great danger in preferring to trust the safety of such an establishment
to a jurisdiction not quite so much exposed to gusts of momentary prejudice or caprice
as that of a common Jury. Instances I believe are not wanting, where a punishment to this
amount has been trusted to a single Justice: but if it should be thought better to require two
Justices, I have no objection.
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Identifier: | JB/119/183/002 "JB/" can not be assigned to a declared number type with value 119.
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183 |
panopticon bill |
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copy/fair copy sheet |
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recto |
d1 f1 / f2 / f3 / f4 |
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39694 |
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