Jeremy Bentham and the New South Wales convicts.
Bentham was opposed to the New South Wales settlement from its inception on the general ground that transportation to the colonies was an unsatisfactory way of punishing convicts. The principal aim of punishment, in his view, should be to deter would-be offenders, and this was more likely to be achieved by making an example of convicts in a strictly run penitentiary than by shipping them off to the other side of the world. While this view of the matter rested on Bentham's own long-held and minutely worked-out theory of punishment, he was soon to develop a more personal interest in the fate of the penal colony arising out of his plans to build and manage a penitentiary constructed on the panopticon principle. The success of the panopticon penitentiary, he believed, would demonstrate both the power of his penal theory and the superiority of a prison run for profit over alternative forms of convict management. It would also make him a fortune. All this, however, was placed in jeopardy by the sending of convicts to New South Wales.
Panopticon versus New South Wales
Bentham was in Russia on a visit to his brother Samuel when news reached him in 1786 of the Government's intention to set up a penal colony in New South Wales. His journey had been undertaken partly in the hope that Catherine the Great would engage him to construct a new and comprehensive legal code. When this came to nothing, his thoughts turned again towards convicts. Samuel had introduced him to the idea of a panopticon, which was a building so designed that any or all of its occupants could be seen at any time from a central position. Thus began a "central episode" (Hume, 1973, p. 703) in Bentham's life. As a proposed penitentiary, the panopticon was to engage much of his attention, to dominate his financial affairs, and to become his most sustained attempt to put into practice his theoretical ideas on the use of law as an instrument of social control.
In a series of letters written from Russia in 1787 and published in 1791, Bentham showed how the principle of construction underlying the panopticon might be applied to penitentiaries, poor houses, hospitals, and indeed to any establishment in which people were to be kept under surveillance:
Morals reformed - health preserved - industry invigorated - instruction diffused - public burthens lightened - economy seated, as it were, on a rock - the gordian knot of the Poor-Laws not cut, but untied - all by a simple idea in Architecture] (1791, p. 39).
On his return to England in 1788, Bentham tried to interest the Irish, French, and British Governments in a panopticon penitentiary to be built and managed under his direction. By 1792 he had persuaded Pitt's Government to agree to the building of a penitentiary to house 1,000 convicts. The Government was to pay Bentham so much for each of the convicts committed to his care, and he was to keep any profit arising from their labour. In Bentham's view, the arrangement of the building would ensure that the objectives of a correct penal policy would be achieved while at the same time allowing sufficient labour to be extracted from the convicts to produce a net return to the enterprise.
In spite of his agreement with the Government, Bentham's panopticon penitentiary was never built. Powerful interests combined to defeat his attempts to secure a site, and at every turn he ran into the characteristic administrative inertia of the day (Hume, 1973, 1974). The outbreak of war with France in 1793 delayed matters further, partly by absorbing the administration's attention and partly by providing ready alternatives to the housing of convicts in his panopticon. Convicts were now set to work on the construction of dockyards and fortifications or allowed to enlist in the armed forces.
Bentham could ill afford to oppose these wartime uses for convicts. New South Wales, however, was a different matter. While the flow of convicts there had also diminished during the war, the penal colony remained a serious rival to the panopticon, and one that Bentham was eager to put down. Earlier, in 1791, he had worked through the first published financial returns from New South Wales to show that transportation was an expensive way of dealing with convicts and had also helped to draft motions attacking the penal colony in the House of Commons. A second campaign against New South Wales in 1798 involved him in activities behind the scenes of the Committee of Finance, a parliamentary committee charged with finding ways of economising on government expenditure. Bentham's efforts helped to persuade the committee that transportation to New South Wales was an expensive and ineffectual way of dealing with convicts (Jackson, 1988). Given the fiscal crisis brought on by the war, the apparent expense of the penal colony was expected to be a decisive consideration in favour of the panopticon.
Progress in implementing the project nonetheless stalled, and by 1800 it was clear that the administration was turning against the panopticon plan. Rather than being central to future penal policy, the panopticon was now being described as merely a temporary receptacle for convicts awaiting transportation. Soon, officials and ministers were unwilling to concede even this role for the panopticon, for they had come to believe that New South Wales was now capable of taking all the convicts it might be necessary to send there. Accordingly, Bentham began a third campaign against New South Wales. In two open letters to the Home Secretary, Lord Pelham, he argued at length against the proposition that recent progress in the colony had been such as to make the panopticon penitentiary dispensable and urged that transportation be discontinued because it served none of the ends of penal policy (Bentham, 1802b). In a further effort to discredit the colony, he circulated privately and threatened to publish a closely reasoned account of his view that the arrangements for governing New South Wales were unconstitutional (Bentham, 1802c).
None of this brought Bentham's panopticon scheme to fruition. Nor did his attacks on New South Wales shake the Government's faith in the penal colony. This, however, was the closest that Bentham ever came to putting theory directly into practice in an important area of public policy. In the process, he quickly found that the Government's apparent willingness to accept his key theoretical ideas was not enough to prompt it to act. Like others in the public arena before and since, he was forced to give most attention both to subsidiary elements of his general argument and to particular and largely incidental matters of fact. And, as it happened, the particular and the incidental carried the day against the panopticon.
The panopticon penitentiary
Bentham's penal theory, of course, drew on his utilitarian philosophy, the punishment of offenders being one means among many of promoting the greatest happiness of the greatest number. Punishment, he wrote, "in itself is evil" and "ought only to be admitted in as far as it promises to exclude some greater evil", namely the suffering arising out of the commission of further offences. Here, the main benefit was expected to flow from the effect of punishment on the actions of people besides those undergoing it. Punishment J would achieve this by altering the balance between pain and pleasure as seen by potential offenders:
The immediate principal end of punishment is to control action. This action is either that of the offender, or of others: that of the offender it controls by its influence, either on his will, in which case it is said to operate in the way of reformation, or on his physical power, in which case it is said to operate by disablement: that of others it can influence no otherwise than by its influence over their wills; in which case it is said to operate in the way of example (Bentham, 1789. p. 158).
Bentham regarded the prevention of future offences by example as fundamental, it being "beyond comparison the most important" of the ends of penal policy. Reformation and disablement affected only "the comparatively small number of individuals, who having actually offended, have moreover actually suffered for the offence". Example, on the other hand, affected "as many individuals as are exposed to the temptation of offending; that is ... all mankind" (Bentham, 1802b, p. 174). This emphasis on example indicated a willingness to punish an individual according to the social consequences that would follow, and it raises moral problems in that individuals are made to suffer without their direct consent for the benefit of others. While these features were later to limit the appeal of Bentham's penal theory, the primacy he gave to example was at that time uncontroversial.
In this context, the effect of punishment on the offenders themselves was a minor consideration so long as their fate deterred others from committing offences. Even so, in his efforts to promote the panopticon penitentiary Bentham was driven to make the convicts themselves the focus of his analysis and to stress the efficacy of his prison regime in reforming their morals and in making their labour productive during their confinement. The reformation of offenders, of course, was itself a direct end of punishment. Making convicts productive, in contrast, contributed only incidentally to the efficacy of penal policy, economy being "an indirect or collateral end - a mark which, though not the direct object of any such measure, ought not to be departed from to any greater distance, than the pursuit of the other direct ends shall be found to render unavoidable" (Bentham, 1802b, p. 174).
Though it occupied a lowly place in Bentham's theoretical scheme, the productivity of convict labour was crucial to the viability of his panopticon project, and the arrangements for making the prison run at a profit occupied a share of his attention out of all proportion to their intrinsic importance. Thus much of what he wrote on the panopticon was concerned with devices to ensure that his prison would produce a large stream of output, even though there was no necessary logical connection between the productivity of the convicts and the achievement of his central aim of making their fate an example to others. The rule of economy, he was ready to assert, "ought, in every point of management, to be the prevalent consideration" (Bentham, 1791, p. 123).
To this end, Bentham thought it essential that the penitentiary be run by a private contractor who would receive the whole of the net income arising out of the convicts' efforts. Imprisonment coupled with forced labour, he argued, was "naturally a cheap, or to speak properly, a productive" means of punishment (Bentham, 1798, p. 340). This natural productivity, however, was liable to be inhibited by inappropriate institutions. Management by a board of trustees, in particular, would encourage peculation and negligence, the "two grand enemies" of economy. Under contract management, in contrast, peculation was impossible because the declared intention was that the contractor should have "every profit that can be made". Negligence was also made "peculiarly improbable" by the way in which contract management contrived to make the contractor's interest coincide with his duty:
Economy being put under the guardianship of contract management, what more is it in the power of man to do for it? It has the joint support of the principles of reward and punishment, both acting with their utmost force, and both acting of themselves, without waiting for the slow and unsteady hand of law. What the manager gains, stays with him in the shape of reward: whatever is lost, falls on him in the shape of punishment (Bentham, 1791, pp. 127-8).
The contract should be awarded to the highest bidder for life, and the contractor should be given "all the powers that his interest could prompt him to wish for, in order to enable him to make the most of his bargain, with only some slight reservations" (Bentham, 1791, p. 48). Given the contractor's financial stake in the productivity of his prisoners, Bentham was confident that the able-bodied and compliant would be kept fit for work. Some restraint on the contractor's freedom of action was nonetheless desirable. He was to be allowed to offer only positive incentives to effort and could not starve or beat his charges or punish them in any way. Further, his incentive to look after the prisoners should be reinforced by making him "pay so much for every one that died, without troubling" to ask "whether any care of his could have kept the man alive" (Bentham, 1791, p. 53).
The prisoners, for their part, could work or not as they chose. Those choosing not to work would live in clean and healthy conditions with as much bread and water as they wished, though the bread was to be "as bad as wholesome bread can be" (Bentham, 1791, p. 52). Most would prefer to work:
If a man won't work, nothing has he to do, from morning to night, but to eat his bad bread and drink his water, without a soul to speak to. If he will work, his time is occupied, and he has his meat and his beer, or whatever else his earnings may afford him, and not a stroke does he strike but he gets something, which he would not have got otherwise (Bentham, 1791, p. 54).
A small inducement would suffice. Every exertion a prisoner might make "should be sure of its reward", but this need not be "anything near so great" as he might have got elsewhere because his confinement subjected him to a monopoly which the contractor would make "as much of as he can" (Bentham, 1791, p. 54). This monopoly, together with the unparalleled facility of inspection afforded by the panopticon, would ensure the contractor his profit.
In his search for profit, the contractor was to be free to put his prisoners to any trade he wished. In particular, he was not to be limited to giving them only unpleasant or onerous work. Bentham saw no merit in the "general notion ... that as the people were to be made to work for their punishment, the works to be given them should be somewhat which they would not like", for he could see neither the "great harm of a man's liking his work too well" nor that "labour should be the less reforming for being profitable" (Bentham, 1791, p. 50).
The purpose of giving the contractor a secure contract for life was "for clearing away as much as possible every motive of pecuniary interest that could prompt him to throw any kind of cloak or reserve on any of his expedients for increasing his profits". His establishment was in any case to be open to inspection by anyone, and he would be required to "to disclose, and even to print and publish his accounts" (Bentham, 1791, p. 48). The first contract would probably be let on terms disadvantageous to the government. With the penitentiary and its finances both open to general inspection, however, competitive bidding would ensure that subsequent contracts were let on better terms. As Bentham thought the panopticon penitentiary would make high profits, he believed that the government would eventually sell contracts at a premium. In the long run, therefore, the punishment of offenders would produce a net revenue to the government instead of constituting the customary drain on the public purse.
Bentham on the New South Wales convicts
Bentham argued that the transportation of convicts to New South Wales served none of the proper ends of penal policy. Above all else, punishment ought to make an example of offenders with a view to the "prevention of similar offences on the part of individuals at large, viz. by the repulsive influence exercised on the minds of bystanders by the apprehension of similar suffering in case of similar delinquency" (Bentham, 1802b, p. 174). In the 1770s, long before the first convicts had been sent to New South Wales, he had argued that the transportation of offenders to the American colonies had been "unexemplary what the convicts suffered, were it much or little, was unknown to the people for whose benefit it was designed" (Bentham, 1778, p. 6). The sending of convicts to New South Wales was even worse because the remoteness of the settlement meant that the convicts were removed "to the antipodes, as far as possible out of the view of the aggregate mass of individuals, on whose minds it is wished that the impression should be made" (Bentham, 1802b, p. 174).
Bentham went on to argue that the further aim of reforming the convicts was also unlikely to be achieved in New South Wales. Convicts were like "grown children" who required "that sort of sharp looking after, that sort of particularly close inspection, which all human beings ... stand in need of, up to a certain age". For this reason, constant surveillance of the kind possible in the panopticon penitentiary was "the only effective instrument of reformative management". Because the "characteristic feature" of transportation to a new colony was its "radical incapacity" of being combined with an efficient system of inspection, there would be no "preventive check" in New South Wales to "those propensities, the peculiar strength of which has been but too plainly demonstrated by the offence by which the individual was conducted to the scene of punishment" (Bentham, 1802b, pp. 174-5). Reform was not impossible among transported convicts, for it had been achieved "every now and then" in North America before the revolutionary war (Bentham, 1778, p. 7). There, however, the "children of improvidence" had been "absorbed and assimilated ... by the predominant mass of the population". They had, moreover, been assigned to private masters having the incentive to apply the necessary inspection and to train them "in unremitting habits of unavoidable industry". This could not happen in New South Wales, where the inhabitants were not "men of thrift and probity" but largely the "profligates themselves" (Bentham, 1802b, p. 182).
Punishment which reduced crime through example and reformation operated on the will of offenders and others. Where example and reformation failed, it became necessary to rely on reducing a convict's physical power to offend again. Bentham thought that in a well designed penal system this resort to "disablement" or "incapacitation" would be infrequent. In the case of New South Wales, however, the Government's desire to make it physically impossible for convicts to commit further offences in Britain was "the strong hold and main dependence" of policy. Because the penal colony was so far away, few convicts would return once their sentences had been served. To the Government, therefore, the behaviour of the convicts after their release in New South Wales, "so long as they did but stay there, or, at any rate, did not come back here, was not worth thinking about" (Bentham, 1802b, p. 183). To Bentham, on the other hand, it was manifestly unjust that a convict should be prevented by force of circumstance from returning home after the expiration of his sentence: "to a punishment appointed according to law and by a legal sentence, was superadded ... a punishment of much greater magnitude, inflicted ... silently and without sentence: a punishment for the remainder of life, superadded to a punishment for years" (Bentham, 1802b, p. 190).
In spite of the difficulties put in their way, some convicts would manage to return to Britain. Not only were these unlikely to have been reformed during their time in the penal settlement, they would be precisely those more daring and dangerous than their fellows: "Then it is, that ... this fruitlessly expelled mass of corruption ... is found ... to have put on a worse corruption, if possible, than before". The security against the return of transported convicts was thus incomplete: "The proportions of penal justice are confounded; the poison of perfidy is infused into the system of government; and still the obnoxious vermin remain unextirpated" (Bentham, 1802b, p. 191).
Bentham had long argued that a further aim of punishment should be to compensate a person injured by an offence where this could be achieved "without expense" (Bentham, 1789, p. 159). This, he acknowledged, was an "unfashionable and little regarded end of penal justice", but it allowed him to make the point that the surplus extracted from convict labour in a panopticon might provide a fund from which compensation would be paid whereas in New South Wales the expense was so high and the productivity of labour so low that no surplus would be possible. Discussion of compensation thus led naturally J into a consideration of the "collateral object of Economy" (Bentham, 1802b, p. 201). The Finance Committee had already concluded that transportation to New South Wales was more expensive than confinement in a panopticon penitentiary. Because supporters of the penal settlement might contend that New South Wales also had value as a colony, however, it was necessary for Bentham to show that such a colony would bring no net economic benefit to the mother country. He was satisfied of this on the general ground that colonies could yield no advantage "because their produce is never obtained without an equivalent sacrifice, for which equal value might have been obtained elsewhere". New South Wales, in particular, yielded no advantage "for a reason still more simple - because it yields no produce" (Bentham, 1802b, p. 206). Nor would the colony ever attract free settlers, for these "must ..., if they exist, be forever content with a less rate of profit than it would be in their power to obtain, were they to employ their capital and labour in some other plan". Accordingly, "the probability is that there will not for some centuries to come exist any such colonists" (Bentham, 1802a, p. 107).
Bentham thought it obvious that the New South Wales penal settlement would be unproductive because of its remoteness, its lack of natural resources, and its reliance on largely unsupervised convicts as workers. An extended investigation into the colonial economy thus seemed to be superfluous, and instead he simply drew on readily available facts to illustrate what he knew must be the case. A closer analysis of the material at his disposal, however, would have revealed an economic situation startlingly different from the one he described. By 1802, when Bentham was writing so dismissively of its prospects, the penal colony was already an economic success.
Ways were being found to make the Australian convicts productive. To an extent, this was a matter of convict gangs being set to work on the construction projects essential in a new settlement. Here, traditional methods of coercion sufficed. More important consequences, however, flowed from the emergence of a private demand for labour in the colony. Bentham saw that government expenditure on the penal settlement had implications for demand but believed this to have led only to the development of "a trade consisting of buying without selling". The pay of the military and civilian officials, being spent largely on imports, became "tribute" to foreign countries:
The people at large, on whom the money is levied, to be distributed, in the shape of pay, among the functionaries of government in New South Wales, get nothing at all for their money: the functionaries themselves get very little for it, since the goods they have purchased with it have always been sold to them at most enormous prices (Bentham, 1802b, p. 207).
This, however, missed much of what was actually happening in New South Wales. The colony's officials were not simply functionless placeholders, and government expenditure on the settlement created a demand for more than imports. Crucially, this expenditure generated a demand for local production that was met by the growth of private enterprise both among the colony's officials and among its growing number of released convicts.
The practice soon developed of assigning convicts to these private masters. Because private masters had a limited capacity to punish and coerce their assigned convicts, and because in any case many tasks required a measure of diligence and dexterity, positive inducements to effort were necessary. Much ingenuity and pragmatism went into devising the arrangements for convict work which underlay the colony's economic success, a key innovation being the granting of permission of convicts to work part of each day on their own account. By 1800, the growing productiveness of convict labour had transformed the economics of the penal settlement. It was now cheaper to send convicts to New South Wales than to keep them in gaols in Britain (Lewis, 1988). Transported convicts, moreover, were less likely to offend again after their release in the colony, where the scarcity of labour offered them a chance of living honestly, and where the potential returns to crime were less than in Britain. According to William Wentworth, a prominent colonist and himself the son of a convict:
All those persons confined in hulks or penitentiaries are, at the expiration of their imprisonment, thrown back again on the public: and with very few exceptions return to their old habits of theft and plunder, often with enlarged vicious connections and increased talents for mischief: ... but at New South Wales they must live without plundering and they may live comfortably by honest industry (quoted in Lewis, 1988, p. 509).
From the point of view of Bentham's theory of punishment, this economic success and the associated reformation of large numbers of transported convicts mattered little. Had he foreseen these developments, he would still have continued to maintain that the transportation of convicts to the new colony was poor penal policy because it did not deter other would-be offenders. In the long run, of course, the turning of convicts into productive colonists was to make New South Wales increasingly unsuitable as the site for a penal settlement, even in the eyes of its supporters, but the long run was a long while in coming, and transportation to the colony flourished for nearly 40 years after Bentham's final campaign for its abandonment. In the meantime, the economic success of the penal colony killed the panopticon project. Bentham, it is true, hoped briefly for the revival of his scheme in 1812 when the building of a new penitentiary was again being considered. His time, however, had passed. A parliamentary select committee firmly recommended that the government proceed with an alternative penitentiary building, partly because opinion had moved decisively in favour of bureaucratic management and against the use of private contractors in government business. In Bentham's view, this decision saddled the British public with a prison "without any of the advantages" of the panopticon and at "more than ten times the expense" (Bentham, 1824, p. 171). Bentham himself was awarded [pounds]23,000 in compensation in 1813, which he thought a small return, considering the sums he had spent and the profit he had expected to make from the penitentiary contract (Hume, 1974). The building of the new prison, the notorious Millbank penitentiary, did not herald the displacement of transportation as the central element in penal policy. The number of convicts sent each year to New South Wales and its sister colony in Van Diemen's Land grew rapidly after 1813 and reached a peak in 1833, the year after Bentham's death. Britain was not to turn towards the building of a national system of prisons until after 1840, by which time Bentham's proposals to farm out the prisons to private contractors had come to be regarded as little more than a historical curiosity.
Bentham, J. (1778), A View of the Hard-Labour Bill, reprinted in Bowring, J. (Ed.), The Works of Jeremy Bentham, Vol. 4, Tait, Edinburgh, 1843, pp. 1-35.
Bentham, J. (1789), An Introduction to the Principles of Morals and Legislation, in Burns, J.H. and Hart. H.L.A. (Eds) (1970), Athlone, London.
Bentham, J. (1791), Panopticon, or the Inspection-House, reprinted in Bowring, J. (Ed.) (1843), The Works of Jeremy Bentham, Vol. 4, Tate, Edinburgh, pp. 37-171.
Bentham, J. (1798), "Police report", Bentham Manuscripts, University College London, Box 150.
Bentham, J. (1802a). "New South Wales: economy", Bentham Manuscripts, University College London, Box 116.
Bentham, J. (1802b). Letters to Lord Pelham, reprinted in Bowring, J. (Ed.) (1843), The Works of Jeremy Bentham, Vol. 4, Tate, Edinburgh, pp. 173-248.
Bentham, J. (1802c), A Plea for the Constitution, reprinted in Bowring, J. (Ed.) (1843). The Works of Jeremy Bentham, Vol. 4. Tate, Edinburgh, pp. 249-84.
Bentham, J. (1824), "Note by Mr Bentham", in Bowring, J. (Ed.) (1843). The Works of Jeremy Bentham, Vol. 4, Tate, Edinburgh, pp. 171-2.
Hume, L.J. (1973), "Bentham's panopticon: an administrative history, part I", Historical Studies, Vol. 15, pp. 703-21.
Hume, L.J. (1974), "Bentham's panopticon: an administrative history, part II", Historical Studies, Vol. 16. pp. 36-54.
Jackson, R.V. (1988), "Luxury in punishment: Jeremy Bentham on the cost of the convict colony in New South Wales", Australian Historical Studies, Vol. 23, pp. 44-59.
Lewis, E (1988), "The cost of convict transportation from Britain to Australia, 1796-1810", Economic History Review, Vol. 41, pp. 507-24.
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|Publication:||International Journal of Social Economics|
|Date:||Feb 1, 1998|
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