JB/116/272/001

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7 Aug. 1802
III Incapacitation
Marg. Contents

III.3 Incapacitation.
I. This the sole real end.

1
Incapacitation by
mere distance, without
reformation, seems
to have been the
only real object
in this choice.

2
Misbehaviour, the
result of non-reformation,
not being
regarded, so as it
was out of Britain
and unseen.

3
The contrivance was
in every instance
either unjust or
inefficacious.

II Injustices of the design

4
1. Injustice of the
expedient
Historical sketch –
Since the reformation restoration
transportation to
the American Colonies
has been
coming into use;
and has been
marked out, in
lots of different
lengths, with great
apparent care.

5.
The Penitentiary
Act of 1779 affords
an particular eminent example
of this care.

6.
To America, transportation
had partly
fulfilled the objects
of punishment,
partly failed.

7
Reformation being
difficult, and incapacitation
by local
exclusion appearing
easy, when a fresh
spot was to be looked
out for, N.S. Wales
recommended itself
on the score of
distance.

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III.3. Incapacitation
II. Injustice

8
Distance was the
only circumstance
that could have
recommended it.

9
In idea, the expedient
was a simple
one.

10.
But its effects on
the system of transportation
punishment, as laid down
by so many Acts laws ,
were extremely complicated.

11
In an oblique way
which will be delineated
presently –
the punishment
in almost all cases
of transportation
underwent an
increase, prodigious
and unprecedented.

12.
In the almost
obsolete practise
with regard to
mayhem , damages
found by the Jury
may be encreased
by the Judge - but
the benefit goes
to the party injured.

13.
In the case of pardon,
or actual execution rigour is
made to fall short
of that of the law
- in no other case to
stretch beyond the
law, as here.

14.
It is no justification
to say the right
of return remains –
since the physical
power is taken or
meant to be taken
away more effectually
than by than it could be , were taking away
the right.

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III.3 Incapacitation.
II. Injustice

15.
The existing law
of transportation
is as much broke
in upon, as the
law against murder
would be, by
throwing a man
into a dungeon,
and leaving him
to starve.

16.
The mode of producing
the effect
was particularly
objectionable as
well as the effect
produced.
The alteration
would have been
hard unjust, though it had
been made regularly
by Parliament.

17.
But it was made
by a deceit on put upon
Parliament: powers
given, for the purpose
of continuing
transportation on its
former footing, being
applied to the putting
it upon a quite
different footing.

18.
Even in the Act
of 1787 in which
N.S. Wales was
mentioned, there
was another deceit
on Parliament ,
which will be
laid open farther elsewhere
on.

19.
The punishments
being still , by the
tenor of the several
laws, of different
lengths , while in
effect they were to
be all of one length –
viz perpetual – hence a continual
(though unheeded)
mockery of justice –
on the part of Parliament
as well
as Judges.

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III.3. Incapacitation
III. Inefficacy

20.
With respect to Convicts
already under sentence,
the inclusion extension had all
the iniquity of an ex
post facto law.

21.
Pernicious example set
by this perfidy, on the
part of Pitt, those : - Indication
afforded by it
of the perfidy exemplified
afterwards in the
dialougs of the sum persons in respect of
Panopticon.

22.
If but a month were
to be added by direct
order to hulk confinement
here at home
what a sensation ,
in the public mind.

23.
Though the bondage may
not not have been thus meant to be
made perpetual - yet
the banishment was
which is the only part
of the punishment
expressly warranted by
the law.

III. Inefficacy –

24.
Though the banishment
was intended by the
contrivers of the system
to be perpetual , the
intention has succeeded
but imperfectly. A
considerable number
return.

25.
– worse corrupted by the
discipline of N. S. Wales.

26.
While the injustice
is compleat, the benefit
expected from it is
thereby incompleat.

26 (a) Quotations
1 No care taken as home for
4 1/2 years to prevent unlawful
returns – care
taken there to prevent
lawful ones.
2. Release without permission
easy return, not settlement,
the general object.
3. Table of Returns from Collins.

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III.3. Incapacitation
IV. Panopticon contrà

27.
The use of the place
and the security
afforded by it in
this respect grows
less and less – as
the Colony is in
other respects more
and more "improved".

27 (a)
Though the employing
King's Ships exclusively
(ex.gr. the
Glatton) will diminish
the facility
it will not put
an end to it while
any private ships
are admitted.

28.
It is to the most
pernicious and dangerous
characters,
that escape and
return to England
are is easiest –
1. the opulent receiver –
2. the enterprising
Burglarer &c

IV. Panopticon contrà

29.
Panopticon system –
During the penal
term, its efficacy,
under the head of
incapacitation, is
at its a maximum.

30.
Thenceforward , instead
of incapacitation,
its reliance is
upon reformation.

31.
Its extreme oppositeness
to N.S. Wales
in every point of
view on which reformation depends –
1. Absence of Drunkenness
& Gaming &.c total.
2. Religious exercise
constant.
3 . After the term
of punishment,
eligible employment
certain. – v. Suprà.

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III.3 Incapacitation. V. Dernier resort, Inspection &c

32. In case of a second
offence Panopticon for
life would incapacitate
for any third.

V. Dernier resort, Inspection

33.
In N.S. Wales, necessity
drove men to an
application, however
imperfect, of the Inspection
principle.

34.
The Governor there,
having more power
than Parliament
has here, built a
General Jail for
that island; which
was what Parliament
attempted in vain
to do for this . The
D. of Portland, as per letter 14 Octr 1799 , marking its Acts

35.
In a society, thus
corrupted by the
original principle of
its institution, the
tutelary principle of
inspection was found
necessary to be applied
even to the Soldiery.

VI. Surest resource , Death.

36.
Death, a particular
mode of incapacitation,
in respect
of which the efficiency
of the N.S. Wales
system was pre-eminent.
In the
voyage they were
more than decimated.

37.
The fault lay not
in the Contractors
but in Pitt & Co.
by their incapacity
& inhuman negligence –
their
bad management
making a bad
system worse.

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III.3 Incapacitation.
VI.Surest resource , Death.

38
Causes of the mortality –
1. Length of the Voyage.
2. Want of interest
on the part of the
part of the Contractors
in the preservation
of the lives of the
Cargo.

39.
Neither of these causes
of mortality had
place even in the old
transportation system.

40
In the Panopticon
system , the opposite
efficient causes of
security are at
the maximum.

41.
Struggles which it
cost the author to
preserve to this
article its place
in the Contract;
notwithstanding
the consent given
to it in the Proposal.

Identifier: | JB/116/272/001"JB/" can not be assigned to a declared number type with value 116.
Date_1	1802-08-07	Marginal Summary Numbering	1-26, 26a, 27, 27a, 28-41
Box	116	Main Headings	panopticon versus new south wales
Folio number	272	Info in main headings field	iii incapacitation marg. contents
Image	001	Titles
Category	marginal summary sheet	Number of Pages	2
Recto/Verso	recto	Page Numbering
Penner	john herbert koe	Watermarks
Marginals		Paper Producer
Corrections	jeremy bentham	Paper Produced in Year
Notes public		ID Number	37805
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