date

10 May 1805[?] Evidence Introd.
10 May 1805[?]

Evidence Introd.

Introd

Ch.5. Collateral Incidental

'. Delay

I. Exertions of illegal power, for the purpose of forcibly detaining Convicts within the Colony, or reconveying them into it, after the expiration of their terms.

II. Exertions of illegal power, placing Convicts in a state of bondage within the Colony after the expiration of their terms.

1. Liberty of departure, and freedom from bondage, both refused to a number of Convicts /expires/ at the same time, on the ground that no evidence of the terms they had had originally to serve /original commencement and length of their terms/ was to be found.

2. Punishment inflicted on an expired Expence for attempting to quit[?] the Colony

3. Married men though [...?] forbidden to leave the Colony otherwise than in case[?] of their finding security for the maintenance of their wives and families.

4. Expiries[?] still kept in bondage. Faculty of choosing the place of labour - an indulgence.

5. Measures taken for causing[?] expiries[?] who had repaired to [...?] to /[...?] found means to get to/ be forcibly sent back to New South Wales

6. General liberty of departure announced at at time when [...?] for preventing it were [...?] from the things [...?] as [...?]

7. Intention of a general detention of expiries[?] in general notwithstanding a declaration made at the very time announcing a liberty of departure to expiries[?] in general.

Under the heads of vexation and expence, mention has been made of the ulterior evils of which those evils, of themselves sufficiently great, are so apt to be productive. Delay is prolific of vexation. delay is prolific of expence. By[?] a double title, though in a [...?] degree delay is therefore prolific of those same evils.
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  • Title: [[094-316v] 16 Jan y 1803 Expiries]
    Description: [094-316v]

    16 Jan y 1803

    Expiries

    In relation to [...?] there circumstanced, thus much is /two things are/ already , I trust, partly apparent. One is that in point of law (expediency always out of question) neither the Governor nor any body he had any right to detain any one of them a moment after the expiration of his term. 2. Another is, that after that same point of time - neither /as little/ had he any right of applying any sort of special controul to their conduct, even supposing the existence of a general right of controul over the inhabitants of the Colony taken without distraction.

    So much as to the right. In point of fact, what appears is - that on the contrary. 1. [...?] were taken for preventing /detaining/ persons of this description from ever quitting the Colony without have[?]: which here was [...?] given sanctions [...?] - sometimes collectively to the class in general, sometimes to particular individuals of that class, and without any freed principle of distinction that can be perceived.

    2. After expiration of their respective terms, they were moreover and [...?] being thus confused to this source[?] of punishment, treated as [...?] in divers instances, being collectively of individually kept in a state of bandage /servitude/.

    As to delegation, the ground /topic/ of necessity, considered as a /in the character of/ justification or ever so much as one excuse, facts altogether. Expediency, mere expediency is all /the utmost/ that can be alledged under this head: and were this an expediency [...?] purely to the interests of the community in the Mother Country, not the interests of the colony /community/ thus governed. In the case of Convicts transported to America under the original transportation laws [...?][...?].

    Supposing on the other hand the right of detention wanting on the other hand the power of detention assumed and exercised on these suppositions not only merely every instance where permission to quit the [...?] was refused, but also every instance in which it was granted are material for consideration. Every such refusal is an illegal exercise of this power in question: every such permission is a fresh evidence of the assumption of it: exception protect[?] regulation: in /by/ the very act of permission, the permission being official, a pernicious refusal, and that an immoral[?] one is [...?...?].
  • Title: [18 Jan y 1803 + (8 Art 1 N o 12. ib]
    Description: 18 Jan y 1803 + (8 Art 1

    N o 12. ib. p. 19. September 1797. "As the Masters

    were " seldom refused permission to ship such as

    were free" .. From this passage it follows that at this time likewise

    though these were but few instances, yet there were some

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    refused.

    N o 13 ib. p. 45. August 1797.

    Sailed the Britannia and the Ganges "The Commander "of the

    latter was permitted to take on board

    several Convicts "that had become free."

    N o 14. p. 125. September 1798. Sailed the Barwell for

    China. The Commander was allowed to on board

    about 50 "persons who had completed their period of transportation."

    N o 15. p. 57. October 1797. "Decreasing daily as did

    the "number of working men in the employ of government, yet"

    [at this time it is stated that "the Governor could not refuse granting certificates to

    such "convicts as had served their respective terms of transportation;

    "and no less than 128 men were at this time certified

    "by him to be free. Most of these people had no "other view in

    obtaining this certificate than the enabling

    "them when an opportunity offered to quit the

    settlement, in "following their own pursuits untill

    that time should arrive." Could not refuse?

    — why so? We had without any difficulty refused on the former

    occasions, mentioned N os 1,3,4,5,7,10 what was

    there to prevent him now? From it should seem that by this time

    some legal some scruples had arisen in some breast or other

    either in the Colony or at home: and from thence it was, in

    the first place that the grant of the certificate was

    at or about the expiration of each man's term regarded

    as in some measure obligatory; in the next place that the effect of

    such certificate when obtained was to confer on the individual

    the liberty of departure; a prima facie liberty at any rate,

    though

    probably subject at all times to revocation by special

    order. at any time.

    N o 16. p. 298. August 1800. " Several certificates were "granted this month,

    to persons who had served their terms of transportation."
  • Title: [14 May 1805 Evidence Introd]
    Description: 14 May 1805

    Evidence

    Introd

    Ch.9. Precipitation

    Ch.9. Of Precipitation.

    The word Delay can scarce present itself without presenting /bringing along with it/ the idea of precipitation. A sketch having for its object the bringing to view the evils incident to the system of procedure would be apt to seem imperfect if no such word as precipitation were to be found in it. Delay, unnecessary or preponderant delay - is an excess; precipitation is another /the opposite one/: if one excess is thus prolific /abundant/ in mischief, can the other be altogether barren of it /free from it/?

    In the modes /operations/ of action /proceeding/ themselves there is certainly a very close analogy: the analogy of position and contrast in their respective effects, there is scarce any. Delay, besides its contingent, has, as hath just been seen its certain and immediate mischiefs: mischiefs essential to it, and inseparable from it. Precipitation has no such mischiefs. It may exist /have place/ without being productive of any mischief at all: and the mischief of it, when it is productive of mischief, that mischief is /will/ always referable, referable in toto, to one /some/ or other /more/ of the denominations of mischief already included in the list. This /Such/ /Hence/ is the reason why /It is for this reason/, at the same time that delay has here been stationed in that place to which it is so well entitled in /upon/ the list of the evils incident to procedure, no such word as precipation is to be found in it.