2IO 



A COLONIAL AUTOCRACY. 



nished your Excellency with my observations on the proposed 

 Port Regulations, and beg leave to say that some of these 

 deviate so much from the known laws of the realm that I do 

 not think they can be legally enforced on your Excellency's 

 authority alone. ... If your Excellency . . . chooses to take 

 . . . the responsibility of acting contrary to my opinion, I think 

 it becomes a delicacy due to my judicial character to select 

 some other person to draw them up ; for ... I cannot in the 

 due discharge of my duty to my Sovereign or to my conscience 

 consent to attempt to give legal form to that which is illegal, 

 or to frame or draw up regulations many of which in the due 

 exercise of my functions as a judge, and with proper regard to 

 my oath to administer justice according to law, I cannot en- 

 force in my judicial capacity. . . . Your Excellency will excuse 

 me for saying that your orders would be no justification to me 

 in my own eyes or in the opinion of His Majesty's Ministers, 

 more particularly if I am right in my opinion that it is no part 

 of my official duty to draw up your Excellency's Regulations.'' l 

 Macquarie had no answer to make, and could only refer the 

 matter home. 2 A few months later Bent also appealed to His 

 Majesty's Ministers, reviewing very fully the Governor's exercise 

 of legislative powers and making a powerful plea for its restraint. 

 " My Lord," he wrote, " I feel it my duty humbly to offer my 

 opinion . . . that when there is reason to suppose that local 

 circumstances require extraordinary deviations from the Laws 

 of England, that the Governor should first point out those 

 circumstances to His Majesty's Ministers, and that the remedy 

 should come from that quarter which can alone give it legality. 

 But that a Governor of New South Wales of his own authority, 

 implied from but by no means granted by the words of his 

 Commission, should make laws imposing penalties of 500, or 

 hard labour at the coal mines for three years, upon free British 

 subjects, to be inflicted at the discretion of magistrates, . . . 

 is a circumstance which I cannot but consider to be wholly 

 unknown to His Majesty's Ministers 3 ... in far the greater 

 number of cases this power is exercised without the smallest 

 reference to His Majesty's Law Officer and without any inquiry 



1 Enclosure, D. i, February, 1815. R.O., MS. *Ibid. 



3 This was penalty for taking away convicts from New South Wales. 



