and inflicted the penalties he appointed; though the supreme court, sitting concurrently with these "benches," rejected the legislation of the governor as invalid, when the basis of an action: one judge supported them by his moral countenance, although he knew them to be without legal authority.[90] Judge Advocate Wylde, however, declared the legislative authority of the governor equally binding with acts of parliament—a doctrine never surpassed by the most subservient advocates of an unlimited monarchy.[91]
The crown authorised the governor to grant remissions, but while he omitted the formalities requisite to perfect those pardons, the minister neglected to require them. For thirty years the error was undetected, and until a fraudulent creditor evaded a bill due to an emancipist; but several years were allowed to pass, even when the mistake was discovered, before it was fully corrected.
The ministers authorised the governors to grant land to settlers. For forty-six years these delegates divided the domain of their sovereign, as if it were his personal property, and without the consent of parliament, when a court of this colony decided that all such titles were void in law, whether acquired by purchase or under the old quit-rent tenure.[92]
Above two hundred thousand pounds had been levied by successive governors since the illegality of taxation was first submitted to the notice of the cabinet. In gathering this money, not only had property been seized, destroyed, and confiscated, but many persons had been imprisoned, and suffered all the miseries of felon bonds: yet when arrears, which the indulgence of the government had permitted to accumulate, were made a subject of legal procedure, the whole fabric of taxation and legislation by the governor's will, fell down.[93]
The judge of the supreme court could not be insensible to the serious personal responsibility of longer supporting illegal taxation: he privately admonished the governor, who withdrew his actions. An act of indemnity released the ministers who advised, and the governors who enforced their demands, from the punishment of usurpation; and granted them power to do by law, what in defiance of law they had done so long.[94]
Ingenious aggravations were made to the common penalties of a crime: Collins relates that a witness convicted of perjury, was condemned to the pillory: his ears nailed to the post as an additional punishment.[95]
The courts of those times confounded everything together, and deciding the perjury of a witness, often tried two parties at the same moment. Flogging witnesses was an ordinary result of investigations, when they did not end in convictions: so late as 1823, Judge Wylde ordered a witness to be taken outside, and receive instanter one hundred lashes.[96]
The long privation of this colony of judicial protection, not only hindered the due administration of justice, but encouraged imprudence and fraud. In the year 1814, when the crown erected a supreme court at Sydney for the decision of civil causes, Major Abbot, a member of the New South Wales corps, was commissioned as deputy judge advocate in Van Diemen's Land. He adjudicated in petty session as a magistrate, and by the accommodation of law to the circumstances of the colony, dealt in a summary manner with capital offences where prisoners were concerned. Thus sheep stealing and crimes against the person, committed by prisoners, were punished by flogging, and removal to a more penal station; and thus, while a prisoner of the crown might escape with a milder sentence, free persons for similar offences were placed in jeopardy of their lives.
"The experiment of a reformatory penal colony," said Sir James Mackintosh, "is the grandest ever tried; but New South Wales is governed on principles of political economy more barbarous than those which prevailed under Queen Bess."[97] This great statesman, who declared no provincial sphere seemed to him so worthy a noble ambition, as to become the legislator for these colonies, never failed to denounce the accumulation of illegality and folly.
At this stage of our inquiry, it may be proper to scan this singular government. The legislators who authorised its establishment, prescribed as little as possible: all beyond the repression of crime was hidden from their eyes. They saw that punishments must be necessary, and provided for their infliction; but the complicated arrangements which grew out of the colonisation, were left to the adjustment of chance, or the discrimination of ministers, and ultimately to the caprice of naval and military governors.
The extemporary character of their contrivance and expedients, is sufficiently apparent. Nothing was expected: nothing was dreaded: no checks were opposed to abuses. Thus acts of tyranny were perpetrated beyond the ordinary excesses of arbitrary governments, and all classes were confounded in one regimen of despotism. The commencing measures manifested their indifference to personal rights. Intending to banish men for life, the ministers selected for the first fleet chiefly persons whose crimes only forfeited their freedom for a few years. By withholding, or neglecting to forward lists of their names, their crimes, or their sentences, they consigned them not only to perpetual exile but protracted and illegal bondage. Imitating the ministers of the crown, the governor imposed compulsory labor on free men, or detained them when their liberation was notoriously due.
Thus again, law had conveyed power to the king to deliver prisoners by assignment to shippers, but jealous of trusting the executive, the actual transportation could only be carried out as the result of a covenant with private persons. Regardless of these well-advised precautions, the ministers delivered prisoners to ships of war, in custody of captains in the royal navy, bound to obey the orders of the crown; and when loud remonstrances induced them to obtain a legislative sanction to the innovation, they were silent in reference to the past, and trusted in their party influence to protect their own agents from legal penalties.[98] No wonder, with such examples before them, the governors detained or released at their pleasure.
Bentham was the first to protest against this illegal and violent system of government, as opposed to every principle made sacred by the Revolution, by judicial decisions, or by the oaths of sovereigns. He asserted that the movers and ministers of these despotic proceedings were liable, one and all, to the visitations of the most penal laws.[99] They had legislated without warrant, had detained free persons in bondage, levied illegal duties and imposed unconstitutional restrictions, and had inflicted cruel punishments for crimes invented by themselves. The apology for usurpation, was its obvious importance and general utility; but no one will dissent from the strong indignation expressed by the philosopher, at wanton violations of British law, neglect of personal rights and parliamentary privileges.
Governor King, it is believed, first established customs.[100] Hunter had assessed the property of the colonists, upon obtaining the consent of several, for the erection of a gaol.[101] The poorer inhabitants refused to comply with the levy, and were threatened with vengeance: they knew that however useful, such taxes were illegal though otherwise just. Thus, although legislation was not shadowed by the parliamentary act, the governors assumed it in its amplest form. Among the earliest were orders respecting the production and sale of spirits: to this, the oriental penalty was attached—"his still shall be destroyed, and his house pulled down." Infraction of this law was subsequently punished by imprisonment and transportation.
Of torture, to extort confession, we have ample proof, both written and traditional: of one Collins observes, "when he trifled he was punished again; he then declared that the plunder was buried. He went to the spot, but could not find it; he was then taken to the hospital." Another was tortured in the same form; but, adds the judge, "the