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.