82 A COLONIAL AUTOCRACY. 



having the previous sanction of His Majesty's Government for 

 their construction, or without being enabled to prove most clearly 

 and satisfactorily that the delay of reference would be productive 

 of serious injury to the public service." l 



With regard to the Governor's legislative powers, his right 

 to regulate the lives of the convicts was, of course, beyond ques- 

 tion. But the regulations issued from time to time by each 

 successive Governor and upheld by the Colonial Courts, dealing 

 with all subjects from illicit distilling to observance of the 

 Sabbath, touched all the inhabitants free, freed, and in ser- 

 vitude. The claim to this right was based on the words of the 

 Governor's Instructions, 2 the needs of a penal settlement and 

 the status of a military Governor. The last claim had neither 

 validity nor logic. For though in name a " military Governor " 

 he ruled through a civilian staff with a judicial establishment 

 appointed under Act of Parliament. The Criminal Court itself 

 with all its military appurtenances and its summary procedure 

 was a Court of Record and administered the law of England. 

 It was this law which the Judge- Advocate was sworn to ad- 

 minister, yet by his Commission he was brought under the 

 orders of the Governor. 3 It was an impossible position. If the 

 Governor promulgated orders which were opposed to law, was 

 the Judge- Advocate to enforce them in the Court ? Bent pro- 

 tested that he was bound by his oath not to do so the Colonial 

 Office held that he was bound by his Commission to obey the 

 Governor. 4 The magistrates might be placed in an equally 

 difficult dilemma. An instance occurred under Governor King 

 in 1806. He had reissued an Order of Governor Hunter's and 

 enjoined the magistrates to enforce it more rigorously. The 

 Order, intended to put an end to illicit distilling, prescribed the 

 punishment of " banishment " for all free persons convicted of 

 the offence. A Bench of seven magistrates refused to pronounce 



1 D. 20, 4th May, 1812. R.O., MS. Shortly after this, Lord Bathurst and 

 Henry Goulburn replaced Liverpool and Peel at the Colonial Office. In financial 

 matters they were less exigent than their predecessors. 



2 The terras in the Instructions were very general, contained in the duty " to 

 pursue such measures as are necessary," for the peace and security of the Colony. 

 See H.R., VII., p. 133, par. 2. 



3 See Commission, H.R., VII., dated May, 1809. 



4 See correspondence of Bent with Colonial Office, 1814 to 1815, R.O., MS. 

 See also Chapter VII. 



