60 A COLONIAL AUTOCRACY. 



examined as a witness for Johnston at his trial in 1811, he was 

 askfed why Governor King emancipated Crosley. " To put 

 him within the power of the Colonial Courts," replied Harris, 

 " that people might be able to recover their debts from him." l 



Though in his commission the Governor's prerogative of 

 mercy was expressed in general terms as the power to pardon 

 offences, there were two distinct sides to its exercise. On the 

 one hand, there was the power to the head of the executive 

 to pardon men convicted of offences committed within the 

 territory. On the other, there was the power exercised as 

 Governor of a penal colony to pardon convicts transported 

 for crimes committed outside the territory. 2 In the one case, 

 the offence, in the other, the offender was the prime matter 

 for consideration. 



In pardoning men convicted in the Colonial Courts or in 

 mitigating their sentences, the Governor was restricted in one 

 respect only. In the case of murder or treason, he might 

 grant a reprieve but not a pardon. 3 Macquarie used these 

 prerogatives freely and constantly both with regard to sen- 

 tences of the Criminal Courts and the magistrates. His war- 

 rant to the Provost-Marshal was not given without careful 

 scrutiny of each case, and he was largely guided by personal 

 opinion and knowledge of the individuals concerned. He did 

 not, however, consider it necessary to consult the judge who 

 had passed sentence. Ellis Bent sometimes learnt of a par- 

 don or reprieve for the first time on meeting in the street a 

 man who had lately stood before him in the dock under sen- 

 tence of death. 4 Bent's successor, Judge- Advocate Wylde, ad- 

 mitted that the Governor only consulted him in capital cases, 

 and that then he sometimes acted contrary to his advice. 6 



Johnston's Trial, p. 327. 



3 This power was given in general terms by 30 Geo. III., cap. 47. The 

 whole question of the effect of the Governor's pardons was raised in 1818 and 

 will be treated in Chapter IX. See also Bigge Report, I., 1822, P.P., XX. 



3 In 1811 Macquarie pardoned two men convicted of murder. Finding that 

 he was not authorised by his commission to do so, he at once wrote to the Secre- 

 tary of State explaining the mistake. The pardons were confirmed by the Crown, 

 and the men released accordingly. The incident affords a curious illustration 

 of the neglect with which even a conscientious Governor treated the terms of his 

 appointment. See H.R., VII., p. 613, D., i8th October, 1811. 



4 Bent to Bathurst, ist July, 1815. R.O., MS. 



5 Wylde's Evidence, Appendix to Bigge's Reports. R.O., MS. 



