296 



A COLONIAL AUTOCRACY. 



acting there by instructions and without instructions and against 

 instructions ; all these things there may be and there will be 

 in abundance. But of charters . . . ; of constitutions . . . ; of 

 lawful warrants, unless from Parliament ; from the present day 

 to the day of judgment there will be none." x 



No blame, however, was to be attached to the Governor. 

 " Whatsoever were given to him for law, by his superiors at the 

 Council Board, or the Secretary of State's office, would naturally 

 enough, one may almost say unavoidably, be taken by this sea- 

 captain for law." ' 2 



The Home Government were the real culprits, and either 

 they had knowingly persevered in an illegal course or had 

 ignorantly blundered. The latter theory seemed unlikely, for the 

 power of Parliament had been invoked to give New South 

 Wales a Criminal Court, and " wherefore apply to Parliament 

 for powers for the organisation of a judicial establishment in 

 that Colony". Judicial power is in its nature inferior, sub- 

 ordinate to legislative. If the Crown had an original right to 

 create the superior power, how can it have been without the 

 right of creating the subordinate ? 3 



After closer discussion Bentham concluded, "But all collat- 

 eral questions dismissed, thus, on the ground of law, stands the 

 Government of New South Wales. Over Britons or Irishmen, 

 in or out of Great Britain and Ireland, the King, not being him- 

 self possessed of legislative power, can confer none. To confer 

 it on others, those others being his instruments, placeable and 

 displaceable by himself at any time, is exactly the same thing 

 as to possess and exercise it himself. The displaceable instru- 

 ments of the Crown the successive Governors of New South 

 Wales have, for these fourteen years past, been exercising 

 legislative power without any authority at all from anybody, or 

 at most without any authority but from the King ; and all along 

 they have been, as was most fit they should be, placed and dis- 

 placed at His Majesty's pleasure." 4 



In 1803 New South Wales enjoyed some amount of notice, 

 for Collins' book was reviewed in April by Sydney Smith in the 



1 P. 24. 

 8 P. 24. 



8 P. 8. This is a reference to the naval governors. 

 4 P. 35- 



