date

3 Transportation 19 June 1802 Transportation
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.
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    I do not mean to say - for the case is not exactly so - that in effect there is no difference at all, between the lot of him whose sentence is for seven years, and that of him whose term of transportation is for life:- no, not even supposing them both to remain for life in the common scene[?] of their intended fate. Transportation is the punishment - named by the law in both cases: transportation i.e. banishment - and that intended to continue for life - is thereupon the punishment they are alike doomed to in both cases. But, to make the distinction between the two lots, here comes the necessity of touching a little more closely upon another abuse - /+which has already been glanced at, and will be more particularly spoken to in some other place - and/ for which the only apology that can be made is, that it is an ancient one. Transportation is the word used alike for all transportable Convicts in the acts of Parliament: transportation is therefore (I take for granted) the word used for all alike in the judicial sentence or oder in virtue of which, in execution of these Acts the Convicts ae sent abroad. Not, some how or other, so it is in practice, that under the same provision in the Act, and under a judicial sentence or order couched in the same terms, transportation shall be to one man simple banishment to another man banishment aggravated by bondage: as if the difference between bondage and independence were a matter not worth speaking about.
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    This being the case - as to such part of the suffering /+as in the cases of two convicts sentenced to different lengths of transportation is imposed by the express appointment of the law (I mean the simple banishment) the extension thus given to it by this clandestine act of power is in both cases really the same:/ what difference there is in a point over looked by the law:- overlooked from the very first, as not worthy of it notice. The banishment - I mean the simple banishment - the mere continuance in the declared sense of banishment is, or at least is hoped, and, and by all who can find any thing to say for the measure, expected to be, in both cases, for life: the only part of the punishment that has a different termination in the two cases is the bondage:- the accidental accompaniment which the law in its evidence, has never yet looked upon as worth mentioning or caring about.

    This neglect /unseemly negligence/ this scandal this anti-constitutional heresy by which liberty - and not non-sensical and impossible liberty - but perfectly intelligible and practically impertinent liberty - is thus sported with and made a present of /thrown out/ to chance - would have no place under the Penitentiary system: the complexion of the servitude might be varied according to man's habits and faculties, but it would not be to be given away or sold. /+A man would know in all cases whether he was to undergo it, or no: in all cases people/ would see what it was: and that there was neither too little nor too much of it.

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