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The political philosopher, Jeremy Bentham (1748–1832), circulated A Plea for the Constitution to influential friends and members of the British government in 1803. Bentham urged the abandonment of convict transportation to penal colonies in Australia. Instead, he advocated building ‘Panopticon Penitentiaries’, in which he had a vested interest. His attack on transportation contained many errors and misinterpretations but, having argued that British penal policy was ineffectual, Bentham turned to its constitutional implications for the free civilians who also lived in New South Wales. He maintained that the ‘protection’ and ‘governance’ of Magna Carta were portable: what applied to subjects in England also applied to those same subjects overseas, unless in the territory of ‘foreign owners’. As free settlers in Australia were denied jury trials, the liberty promised by Magna Carta was unconstitutionally undermined. This argument, of course, disregarded the laws and customs of Australia’s indigenous inhabitants.

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