JB_116_208_001.xml

Title: [12 June 1802 37 N. S. Wales 2 is taken]

Description: 12 June 1802 37 N. S. Wales 2

is taken of him by the Governor. By what means does this happen? Conjecture,

grounded on the apparent nature of the case, is all

the ground authority I can pretend to for the answer which

I hear I give. The Merchant, by the terms

of the Act, and therefore I conclude, by the terms of the Contract grounded

on it, having power to assign the Convict assigns him

accordingly to the Governor: to the Governor in his quality of

agent to the crown and trustee for the public in that

behalf. But suppose the Contracting Merchant instead of

assigning over the Convict to the Governor who gives him nothing but a

receipt (payment under the Contract coming from the Treasury here at

home) suppose he tries to assign assigns the Convict

to some friend of the Convict's own, who as such

will give a price for him: to the end that, when arrived at this place

of banishment, he may be free. Is there any thing to prevent any such

bargain? At any rate there is nothing in the Act: [so that should there be

any thing

to that effect in a Contract of that sort entered into today, there

may be nothing to that effect in another Contract entered into tomorrow.

By the Act — by law — a Convict [+] can

[+] except in a particular case that will be

mentioned presently

not be transported otherwise than by the intervention of a Contract

for that purpose: nor without such a Contract as puts the fate of the

Convict in respect of as to the question difference

between freedom and bondage altogether in the

power of the Contractor who thereby, if for

money or favour he thinks fit to remit to the

Convict so much of the punishment as turns upon that difference,

has it compleatly

in his power.

The carried out on Government account Then there must have

been some fiction, if the letter of the Act has been

observed.

JB_116_451_001.xml

Title: [1. Legislative power. none]

Description: 1.

Legislative power. none

created.

2.

Cause. Two powers

were meant to be exercised.

neither of them

fit to be named -

1. Power of amending

all the transportation

laws

3.

2. Power of legislation

in a single hand.

4.

Pitt was then upon

his good behaviour

having lately stood

his ground against

the House of Commons

upon Constitutional

grounds -

5

There was a rage

for colonizing somewhere

- this furnished

a pretence for the

expence

6

To create the necessary

legislative power the

only way was to

create the necessity

for it by

7.

As by the first Pitt

Lord Camden had been

done by negligence.

8

Evil consequences

1 st Unconstitutional

example

2. Insecurity of the

Colony.

9.

The seditionists if at

any time they should

have lawyers among

them may subvert

the government without

incurring any

legal penalty.

10

Regulations

1 st what legal

11

2. what illegal.

12.

Cases put of illegal

regulations for which

in point of utility

there may be a

demand.

13.

Capt n Collins not

considering this

want of power to

make regulations

speaks with surprize

of the spirit

of careless independance

among

the emancipated

bondsmen.

1

Though the design was

to prevent the return of

Convicts, no plan was

formed for the execution

of it - neither

at the outset, nor for years. p.18

2

A just one would

have provided for

their return of emancipees

and made it

as easy as under

the old system. p.19

3.

An unjust one would

have taken measures

against the return

of emancipees from

the first.

4

At first they had

no plan for prevention

of the return either

of emancipees or

non-emancipees.

5.

When they had any

it was directed as

much against the

one as the other.

6

and this the legitimate

object of the establishment

or not their

conduct is equally

indefensible.

7.

When they put emancipated

bondsmen

under this

illegal restraint

they put all freemen

under the same

restraint.

9

It appears in the

same document authority (Collins)

that Convicts who had

no more than 3 year

remaining was sent

out in the design

of their never returning.

p.26.

10

It was with the

Penitentiary Act

of 1799 before them

the Act so anxious

to distinguish between

degrees of punishment

that they thus confound

them.

Though this gives them

the power (as well as

1704) they avoided

it.

8

Effect of this event of

plan

1. While as yet there was no

plan formed for preventing

the return of

non-expirees, expences

were provided, by the

neglect, not accidental

or wilful, if not speeding

out the process evidencing

the lengths of the terms. n.25

1

On what ground rests

the Governor's power over

the Convicts?

2.

Under the Acts the

transportation must

be by contract and the

convict is transferred

to the use of the

contractor and his

Assignees

3.

Under this provision

there is nothing to

hinder the Contractor

from assigning the

Convict to his (the

convicts') use) unless in

the Contract he be

restricted to assign

him to the Governor.

4.

Though a provision to

this effect should be

in one Contract yet

it may be omitted

in any other.

5.

As the transportation

cannot be performed

without the intervention

of a Contract, how can

it be performed in

a King's ship .gr.

the Glatton? not without

a fiction.

6.

In the case of a

Convict, pardoned on

condition of transportation

for life, power is given

to the Crown to allow

him to transport

himself.

7.

By this means the

bondage is pardoned

without speaking of it.

8

Origin of this clause

unclergyable felonies

in some instances

gentlemen's offences.

9.

This power not being

given in the case

of a clergyable offence

hence the greater

criminal has an

indulgence refused

to the less By law

clergyable felons may

be permitted to buy

off the bondage (as

above) if the Crown

does not oppose it:

although not the transportation.

10

But in the transportation

to New

South Wales they

can not now do

either.

11.

The obscurity and

uncertainty of the

fate of the Convicts

in these important

particulars under

such legislation and

management is a

sufficient proof of

its being blameable.

about

claiming from trust

management to contract

management in the

case of the Parliamentary

House.

Mala fides

In the case of Cold

Back Fields prison.

Parliament orders and

enquiry and Mr

Pitt has makes no objection

to it. Will he ever

move for the enquiry

of these abuses &

if there were any he

was not the author.

JB_116_274_002.xml

Title: [3 Transportation 19 June 1802 Transportation]

Description: 3 Transportation 19 June 1802

Transportation by 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 & unseen.

3.

The contrivance was in every instance either unjust or inefficacious.

4.

Injustice of the expedient —

Historical sketch since the Australian transportation into the American colonies has been coming into use — and has been marked out in lots of different length with great apparent care. —

5

The Act of 1799 affords a particular example of this care. —

6

The American transportation had partly the objects of punishment — partly failed. —

7.

Reformation being difficult and incapacitation by local exclusion appearing easy, when a fresh (port was to be looked out for, New South Wales recommended itself on the score of distance.

8.

Distance was the only circumstance that could have recommended it.

9

In idea the expedient was a simple one.

10

But its influence on the system of transportation punishment, as laid down by so many Acts, was 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 practice in regard to Mayhem, damages found by the Jury may be increased by the Judge but the benefit goes to the party injured.

13.

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 taking away the right. —

14 —

The existing law of transportation is as much broken in upon as the law against murder would be be by throwing a man into a dungeon & leaving him to starve. —

15

The mode of producing the effect was particularly objectionable, as well as the effect produced.

The thing would have been bad if done regularly by Parliament. —

16

But it was done by a deceit in Parliament, powers given for continuing transportation on its former footing being applied to the putting it upon a quite different footing.

17—

Even in the Act of 1787, in which New South Wales was mentioned, there was another deceit on Parliament which will be laid open further on.

18—

The punishments, being still, by the letter of the several laws, of different lengths, while in effect they were to be all of one length. Hence a continued mocking of justice on the part of Parliaments as well as Judges. —

19

With respect to convicts already under sentence the exclusion had all the iniquity of an ex post facto law.

20

21

If but a month had been added by direct order to Hulk confinement — what an outcry! —

22

Tho' the bondage is not thus meant to be made perpetual, yet the banishment was: which is the only part of the punishment expressly warranted by law.

23

Under the Penitentiary system the lot of the Convict would not have been exposed to any such uncertainties and obscurities.

24

Tho' the banishment was intended by the contrivers of the system to be perpetual, the intention has succeeded but imperfectly.

25

The use of the plan, and the security afforded by it in this respect, grows less and less, as the colony in other respects is more and more improved.

26

— and return is most easy to the most dangerous characters.