date

[094-315v] 16 Jan y 1803 Expiries
[094-315v]

16 Jan y 1803

Expiries

laws not a thought was ever entertained of employing this [...?] as a ground for ever delivering or excluding a single Convict beyond his legal transportation. In the case of this new Colony, under this new transportation system of the lea of expediency has any application, beyond what it had under the prior system, it can not be on any other ground than that of the incompetency of this modern /new-[...?]/ system in comparison of the old one. Under the old one /system/, they are reformed: therefore it was no such sufficient reason had of preventing them from coming back. Under the new system they are worse corrupted than before: thence comes the sufficiency of the reason supposing it [...?] for preventing them from coming back from New South Wales.

/The new system must firs be supposed to be a bad one[?] an inexpedient[?] one in their point of view bad at least in comparison of the old one, for the purpose of proving the expediency of the stretch[?] of power[?] //act of coercion// in question an act of coercion which under the old system were without example./

As to bondage, the keeping them in that state, it being determined that they should be detained there, rested on other grounds and on the ground of expediency, more or less sufficient at any rate more plausible. Some sort of co-ersion - beyond what they would have been /[...?] in general are/ subjected to in England after the [...?] of their terms /Why not subject such persons in England to whatever coercion was deemed[?] employ there?/, could scarcely be deemed to be necessary - necessary to the [...?] and perhaps the very existence of the Colony. From that up to absolute bondage, may exist different degrees of coercion, differing in [...?] instances by shades of difference not easily definable: but admitting that in the instance of any such degree that it was beyond what was necessary [...?] reference to those objects those ends even[?] the plea of trial necessity[?], and the plea even of expediency along with it.

These considerations however it ought [...?] to [...?...?] are rather of a moral nature, and as such not truly[?] [...?] to the object of the personal essay: in a purely legal point of view, all such distinctions are [...?...?] purpose. In each case, the advantage the [...?] the conclusion in point of expediency is - that the Colony so circumstanced ought not either to have been established as [...?]: /authorities at home[?]/ not that the conduct[?] thus rendered necessary by them ought no to have been maintained by the authorities in the Colony. The satisfaction[?] - the excuse - whether it may immoral be applies totally to persons there: not in any degree to presume here. Whether[?] here[?] no[?] [...?] ought a man to be [...?...?] advantage of the [...?].
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  • Title: [2 Feb 1803 Note — continued (2 to]
    Description: 2 Feb 1803 Note — continued (2

    to which by the transportation the Convict may have happened to be

    transported in the first instance, it

    was not in its nature incapable of being remarked, without the

    succession of the bondage. The bondage in like manner was not under

    this system incapable of being

    detached from the confinement and remitted by itself

    the confinement continuing unremitted: but, +

    + as it was only in virtue of the bondage i:

    e: the profit not made by the Court servant that the Traitor could have any

    interest in keeping him in any sort of confinement

    as the individual purchaser of the service. the Master of the

    Convict would hav it was not natural that any such

    separation should ever have taken place in practice.

    Under the new system

    confinement became fixed to a spot certain,

    circumscribed by the by the courts of the settlement, the Governor

    — now an Agent of the Crown, standing in the place of the Master

    — the bondage might by a

    parochial indulgence, declared or undeclared, be remitted, without

    the intervention of any formal written instrument, and without

    the remission of the confinement: the confinement might also be

    remitted, and at any time before the expiration of the exile, though not

    without a formal instrument for the purpose.

    Under the old system, the distance of the

    spot, to which the Convict was to be transported in the first

    instance, made in an indirect way, in most instances, though not

    necessarily a correspondent addition to the duration of the

    exile. The right to the service of the Convict being sold for

    the whole seven years, if accordingly he was kept in bondage in the last

    day of that seven years

    it could not even be in his power the day

    after to find himself the day after on British ground so early as the next

    day. He would have to wait in the first place for the sailing of a

    ship bound to a port in Great Britain from the spot

    on Colony in which

    the
  • 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: [19 Jan y 1803 + (11 Our consideration]
    Description: 19 Jan y 1803 + (11

    Our consideration however

    all this which presents itself unnoticed

    from which the plea for violation of law on the ground of

    necessity and expediency, can not but

    suffer from abatement of its force. Already the March 1797

    Expirees in a state of freedom are stated as amounting to

    not less than 600. If

    at that time so large a number could

    be existing in that sort of state which is there called freedom, and the settlement remain

    undestroyed, what becomes of the plea of necessity or even expediency, when applied to

    to the keeping of them in a state of illegal bondage, by dozens or

    half dozens at a time? a violation of law and justice, for

    the sake of no greater a mass of advantage than was to be reaped

    to no greater profit, than that was to be had by

    the keeping them in this state by

    dozens or half dozens at a time?

    In all these transactions, in all this time, is it in the nature of the

    case that the system, such as it is should have been carried on

    otherwise than in consequence of and in general in conformity to,

    Official Instructions received from him?