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• A View of the Hard-labour Bill; Being an Abstract of a Pamphlet, Intituled, “draught of a Bill, to Punish By Imprisonment and Hard Labour, Certain Offenders; and to Establish Proper Places For Their Reception:” Interspersed With Observations Relative T
• Panopticon; Or, the Inspection-house: Containing the Idea of a New Principle of Construction Applicable to Any Sort of Establishment, In Which Persons of Any Description Are to Be Kept Under Inspection; and In Particular to Penitentiary-houses,
• Preface.
• Letter I.: Idea of the Inspection Principle.
• Letter II.: Plan For a Penitentiary Inspection-house.
• Letter III.: Extent For a Single Building.
• Letter IV.: The Principle Extended to Uncovered Areas.
• Letter V.: Essential Points of the Plan.
• Letter VI.: Advantages of the Plan.
• Letter VII.: Penitentiary-houses—safe Custody.
• Letter VIII.: Uses—penitentiary-houses—reformation.
• Letter IX.: Penitentiary-houses—economy—contract—plan.
• Letter X.: Choice of Trades Should Be Free.
• Letter XI.: Multiplication of Trades Is Not Necessary.
• Letter XII.: Contractor’s Checks.
• Letter XIII.: Means of Extracting Labour.
• Letter XIV.: Provision For Liberated Persons.
• Letter XV.: Prospect of Saving From This Plan.
• Letter XVI.: Houses of Correction.
• Letter XVII.: Prisons For Safe Custody Merely.
• Letter XVIII.: Manufactories.
• Letter XIX.: Mad-houses.
• Letter XX.: Hospitals.
• Letter XXI.: Schools.
• Postscript, Part I. Containing Further Particulars and Alterations Relative to the Plan of Construction Originally Proposed; Principally Adapted to the Purpose of a Panopticon Penitentiary-house. *
• Section I.: Principal Particulars. Principal Particulars Either Settled Or Altered, Since the First Hasty Design, As Described In Letter II. And Imperfectly Represented In Plate I. See Plate II. †
• Section II.: General View of the Whole Edifice. In a General View of the Whole Building, According to Its Present Form, Three Very Different, Though Connected Masses, May Be Distinguished.
• Section III.: Annular Well. Annular Well, Instead of Stories of Intermediate Annular Area.
• Section IV.: Protracted Partitions Omitted. Protracted Partitions Omitted; Or Rather, Taken Into the Cells.
• Section V.: Cells, Double Instead of Single.
• Section VI.: Dead-part.
• Section VII.: Chapel. Chapel Introduced. *
• Section VIII.: Inspection-galleries and Lodge.
• Section IX.: Of the Communications In General.
• Section X.: Communications. Prisoners’ Staircases.
• Section XI.: Communications—inspectors Staircases.
• Section XII.: Staircase For Chapel Visitors, and For the Officers’ Apartments.
• Section XIII.: Cell-galleries.
• Section XIV.: Doors.
• Section XV.: Diametrical Passage.
• Section XVI.: Communications—exit Into the Yards.
• Section XVII.: Exterior Annular Well. ‡
• Section XVIII.: Windows Reaching Low, and Glazed; Instead of High Up, and Open.
• Section XIX.: Materials. Arched Work—much Iron—plaster Floors.
• Section XX.: Outlets, Including Airing-yards.
• Section XXI.: Approach and Fences.
• Section XXII.: Means of Supplying Water.
• Section XXIII.: Of the Mode of Warming the Building.
• Section XXIV.: Of the Economy Observed In the Construction.
• Postscript—part II. Principles and Plan of Management.
• Section I.: Leading Positions.
• Section II.: Management—in What Hands, and On What Terms.
• Section III.: Of Separation As Between the Sexes.
• Section IV.: Of Separation Into Companies and Classes.
• Section V.: Employment.
• Section VI.: Diet.
• Section VII.: Clothing.
• Section VIII.: Bedding.
• Section IX.: Health and Cleanliness.
• Section X.: Of Airing and Exercise.
• Section XI.: Schooling and Sunday Employment.
• Section XII.: Of Ventilation, Shading, and Cooling.
• Section XIII.: Distribution of Time.
• Section XIV.: Of Punishments.
• Section XV.: Mode of Guarding On the Outside.
• Section XVI.: Provision For Liberated Prisoners.
• The Following Note Respecting This Work Was Given By Bentham to Dr. Bowring, 24 Th January 1821.
• Panopticon Versus New South Wales: Or, the Panopticon Penitentiary System, and the Penal Colonization System, Compared.
• A Plea For the Constitution: Shewing the Enormities Committed, to the Oppression of British Subjects, Innocent As Well As Guilty;
• Preface.
• Section I.: Subject Matter—object—plan.
• Section II.: Power of Legislation—its Necessity In New South Wales.
• Section III: Legislation—how Far Lawful In New South Wales.
• Section IV.: American, &c. Legislation No Precedent For New South Wales.
• Section V.: Even In America, the Crown Had No Right to Legislate Without Parliament.
• Section VI.: Nullity of Legislation In New South Wales, For Want of an Assembly to Consent.
• Section VII.: Nullity of Governor’s Ordinances. For Want of a Court to Try Offences Against Them.
• Section VIII.: King’s Law-servants Not Infallible.
• Section IX.: Nullity of New South Wales Legislation, Proved By the Granada Case.
• Section X.: Governor’s Illegal Ordinances Exemplified.
• Section XI.: Governor’s Illegal Ordinances Exemplified.
• Section XII.: Expirees Forcibly Detained.
• Section XIII.: Expirees, During Detention, Kept In a State of Bondage.
• Section XIV.: Statutes Transgressed By the Legislation and Government of New South Wales.
• Draught of a Code For the Organization of the Judicial Establishment In France: With Critical Observations On the Draught Proposed By the National Assembly Committee, In the Form of a Perpetual Commentary.
• Bentham’s Draught For the Organization of Judicial Establishments, Compared With That of the National Assembly, With a Commentary On the Same.
• Emancipate Your Colonies! Addressed to the National Convention of France, Anno 1793.
• Jeremy Bentham to His Fellow-citizens of France, On Houses of Peers and Senates.
• Papers Relative to Codification and Public Instruction: Including Correspondence With the Russian Emperor, and Divers Constituted Authorities In the American United States.
• Part I.—: On Codification.
• No. I.: To the President of the United States of America.
• No. II.: James Madison, Then President of the Congress of the American United States, to Jeremy Bentham, London.
• No. III.: Albert Gallatin, Minister Plenipotentiary From the American United States to the Court of London, to Simon Snyder, Governor of Pennsylvania, Introducing a Letter From Jeremy Bentham to the Said Governor.
• No. IV.: Jeremy Bentham, London, to Simon Snyder, Governor of Pennsylvania.
• No. V.: Simon Snyder, Governor of Pennsylvania, to David Meade Randolph, Esq. Williamsburgh, Virginia, On the Subject of the Above Letter of Jeremy Bentham.
• No. VI.: Extract From a Printed Paper, Signed Simon Snyder, Dated Harrisburg, December 5 Th 1816, James Peacock, Printer, Intituled “ Governor’s Message to the Senate and House of Representatives of the Commonwealth of Pennsylvania, ” Containing Seve
• No. VII.: Circular. — to the Governor of the State of
• No. VIII.: Jeremy Bentham, an Englishman, to the Citizens of the Several American United States.
• No. IX.: Jeremy Bentham to James Madison, Late President of the American United States.
• No. X.: Jeremy Bentham to the Emperor of All the Russias.
• No. XI.: Alexander I. Emperor of All the Russias, to Jeremy Bentham, London—written With His Imperial Majesty’s Own Hand, In Answer to the Above, [no. X.]
• No. XII.: Jeremy Bentham to the Emperor of All the Russias.
• No. XIII.: Prince Adam Czartoriski, of Poland, to Jeremy Bentham, London. *
• No. XIV.: Jeremy Bentham, London, to Prince Adam Czartoriski of Poland.
• Part II.: Public Instruction.
• No. I.: ( Circular. )— Letter From His Excellency Wilson Cary Nicholas, Governor of Virginia, On the Subject of Public Instruction.—addressed (the Copy of Which This Is a Transcript) to His Excellency John Quincy Adams, Minister Plenipotentiary From the U
• No. II.: ( Circular. )— to the Governor of the State of
• No. III.
• No. IV. Notice Concerning Chrestomathia, By the Paris Lancasterian Instruction Society. Report of the British and Foreign School Society to the General Meeting, Dec. 12, 1816.—EXTRACT.
• Codification Proposal, Addressed By Jeremy Bentham to All Nations Professing Liberal Opinions; Or Idea of a Proposed All-comprehensive Body of Law, With an Accompaniment of Reasons, Applying All Along to the Several Proposed Arrangements:
• Advertisement.
• Part I.—ARGUMENTS.: Positions, With Reasons For Proofs.
• Section 1.: In Every Political State, the Greatest Happiness of the Greatest Number Requires, That It Be Provided With an All-comprehensive Body of Law. All-comprehensiveness, Practicable, and Indispensable.
• Section 2.: The Greatest Happiness of the Greatest Number Requires, That Such Body of Law Be Throughout Accompanied By Its Rationale: an Indication of the Reasons On Which the Several Arrangements Contained In It Are Grounded. Rationale, Though Unex
• Section 3.: The Greatest Happiness of the Greatest Number Requires, That Those Reasons Be Such, Throughout, As Shall Show the Conduciveness of the Several Arrangements to the All-comprehensive and Only Defensible End Thus Expressed. Rationale, Indicat
• Section 4.: The Greatest Happiness of the Greatest Number Requires, That, of This Rationale, the Several Parts Be Placed In the Most Immediate Contact With the Several Arrangements to Which They Respectively Apply. Rationale, Interwoven, Not Detached.
• Section 5.: The Greatest Happiness of the Greatest Number Requires, That For the Function Exercised By the Drawing of the Original Draught of Such a Code, the Competitors He As Many As, Without Reward At the Public Expense, Can Be Obtained: and So, For T
• Section 6.: The Greatest Happiness of the Greatest Number Requires—that, For the Drawing of Any Such Draught, No Reward At the Public Expense Be Given. At Additional Expense, Reward None.
• Section 7.: The Greatest Happiness of the Greatest Number Requires—that Every Draught, So Given In, Be, From Beginning to End, If Possible, the Work of a Single Hand. Hands Not More Than One.
• Section 8.: The Greatest Happiness of the Greatest Number Requires—that Such Original Draught, Being the Work of a Single Hand, Be Known to Be So. Hand, Known to Be But One.
• Section 9.: The Greatest Happiness of the Greatest Number Requires, That the Work, Being the Work of a Single Hand, and Known to Be So, It Be Known Whose the Hand Is. Hand, Known Whose It Is.
• Section 10.: The Greatest Happiness of the Greatest Number Requires, That, For the Drawing of the Original Draught, All Foreigners Be Admitted Into the Competition: and That, In So Far As Applicable, Unless It Be In All Particulars Taken Together Decid
• Section 11.: On the Part of an Individual, Proposing Himself As Draughtsman For the Original Draught of a Code of Laws, Willingness Or Unwillingness to Interweave In His Draught a Rationale As Above, Is the Most Conclusive Preliminary Test, and That
• Section 12.: On the Part of a Ruler, Willingness Or Unwillingness to See Established an All-comprehensive Code, With Its Rationale As Above, and to Receive Original Draughts From All Hands, Are Among the Most Conclusive Tests of Appropriate Aptitude,
• Part II.—TESTIMONIALS.
• I. England
• II. Geneva
• III.: Spain.
• IV.: Portugal.
• V.: Italy.
• VI.: France.
• VII.: Anglo-american United States.
• VIII.: Greece.
• IX.: South America.

A PLEA FOR THE CONSTITUTION:

SHEWING THE ENORMITIES COMMITTED, TO THE OPPRESSION OF BRITISH SUBJECTS, INNOCENT AS WELL AS GUILTY;

in breach of

as likewise of the

SEVERAL TRANSPORTATION ACTS,

in and by

THE DESIGN, FOUNDATION, AND GOVERNMENT

of the

PENAL COLONY OF NEW SOUTH WALES:

including

AN INQUIRY INTO THE RIGHT OF THE CROWN TO LEGISLATE WITHOUT PARLIAMENT

in

TRINIDAD, AND OTHER BRITISH COLONIES.

BY JEREMY BENTHAM, ESQ. OF LINCOLN’S INN, BARRISTER AT LAW.

PREFACE.

In two already printed Letters,* having for their direct object, not the legality, as here, but the policy of the penal colonization system, hints were given respecting the illegalities, which are the subject of the present sketch. At the same time, the publication of them in the ordinary mode was forborne, and the circulation of them confined to a few select hands: lest, before there should have been time for the application of a parliamentary remedy, the information thus given, of the illegality of the government there, should, by any of those indirect channels which are not wholly wanting, find its way into the colony, and be followed by any of those disorders, of which, in a community so composed, a state of known anarchy might so naturally be productive.

On that same occasion, mention was made of the case of the Ship Glatton, which in September or October had sailed with convicts for New South Wales.† On all former occasions, the vessels in which convicts had been conveyed had been private vessels: the powers given by the various transportation acts not being applicable to king’s ships. The person to transport the convicts was to be a private individual:—he was to execute the business by contract; and the service to which the convicts were to be subjected, was to be rendered exclusively either to the person so transporting them, or to some other person or persons, to whom by such contracting transporter the right to such service had been assigned. The Glatton is a king’s ship: the first, if I mistake not, that had ever been employed in that service. Setting aside the possible fiction of the king’s captain having been converted for this purpose into an independent contracting merchant, and the king’s governor into a character of similar description, it follows, that, in point of law, neither has the captain during the voyage, nor will the governor have at the conclusion of it, any more power over these exiles, than he would have over any other passenger. The eventual consequences, in respect of trespass, murder, and so forth, are too complicated, yet at the same time too obvious, to be unfolded here.

This intimation, though from so obscure a quarter, has not been altogether without its fruit. I speak of the transportation facilitating act, the act of 43 Geo. III. c. 15, dated 29th December 1802;‡ a statute which, from its almost unexampled brevity, may, without much expense of paper, find a place at the bottom of the page.

The occasion which called forth this manifestation of parliamentary wisdom, was the then and still intended expedition of the Ship Calcutta, another king’s ship with a similar lading, on a commission of exactly the same nature.

In this act, the powers I had ventured to point out as necessary for the ship that sailed without them, are precisely the powers that have been provided for the ship that is now to sail; and so far all is right. But the ship that sailed without them,—what provision is made in the act for her case? None whatever. To the case of all such convicts as may come to be transported, at any time subsequent to the 29th of December, the powers are capable of being applied: to whatever have been sent off before that time, they are not applicable. Captain Woodriff, whenever he sails, will sail (I doubt not) in the character of a lawful agent of the crown, provided with lawful powers: but Captain Colnett, (to whom I beg to be understood not to impute the smallest particle of moral blame,) Captain Colnett, for any warrant or protection that has been afforded him by this act, cannot have sailed in any other character than that of a kidnapper. For the exile, confinement, and bondage of Captain Woodriff’s cargo of convicts, there will doubtless be a sufficient warrant under this act. For the confinement and bondage of Captain Colnett’s cargo, there is no better warrant than there would be for the like coercion, if an equal number of his Majesty’s titled subjects, swept out of a birth-day ball-room, were to be the objects of it. Needless in toto, or else insufficient by half: such, upon the face of this statement, is the dilemma, out of which, if any gentleman in a long robe, or without a robe, is able to extricate the measure, he will do good service.

The act is simply enactive: it is not declarative. By being made declarative it might have been made virtually retrospective: but declarative clauses are seldom to be found, without an introductory escort of sometimes real, but more frequently pretended “doubts.” Here the preceding illegality, of the powers which it was the business of this act to confer, was beyond all doubt. In the personal character of the truly honourable servant of the crown, on whose shoulders the mechanism of this disastrous business pressed, I behold, with pleasure, a cause sufficient to account for the exclusion of this, as well as all other disingenuous pretences.

Being without retrospect in effect, the act is still more palpably destitute of every operation of that kind, expressed in direct terms. The cause of the deficiency is not less perceptible in this case than in the other. The emotion of disgust and alarm, with which an eye of legal and constitutional sensibility could not but have shrunk on this occasion from every such retrospective glance, may be anticipated in some measure from the very title-page of this Essay, and I flatter myself will be pretty distinctly warranted, as well as accounted for, by the tenor of the ensuing pages. So foul, so frightful, was the ulcer, the surgeon durst not look it in the face.

Thus then stands the matter at this hour. The same act by which legality has been given to the expedition about to sail, confesses the illegality of that which is already on its way. A deeper probe, a broader plaster, are still necessary. A fresh act must be passed for the ship Glatton, or all pretence of consistency—all regard for official decency—all regard for the forms and fences of the constitution—must be disclaimed.

SECTION I.

SUBJECT MATTER—OBJECT—PLAN.

On the ground of natural justice, as well as expediency, a view, nor that a slight or hasty one, has already been given of the penal colony.*

The object of the present essay is of another order: the business of it is to examine the same establishment on the ground of positive law: and, in so doing, to state for the consideration of such of my fellow-subjects, if such there be, by whom the constitution under which we drew our breath may be regarded as worth preserving, the injury it has received from the system of misgovernment, by which this nursery of martial law was originally planted, and ever since, during a period of more than fourteen years past, has been conducted and upheld.

On the ground of policy, the measure had from the first presented itself to me as more than questionable: years many and many, before the particular inducements, by which I was led to a closer investigation, had so unfortunately occurred to me. On the ground of legality, it was not till very lately that so much as a suspicion had come across me.

In a survey taken of the system pursued by the government of the colony when founded, the laws passed for the foundation of it would not remain long unnoticed. Astonishment flashed from the first glance. Compared with the immensity of the superstructure, the scantiness of the basis exhibited a Colossus mounted upon a straw. Such is the impression, such the discovery, if so it may be termed by anticipation, that gave birth to the scrutiny, of which the following pages are the result.

Legislative power is, and all along has been necessary, for the maintenance of government in the colony of New South Wales. Lawful power of legislation exists not—has not at any time existed—in that colony. Actual power of legislation has at all times been—still continues to be—exercised there. The power thus illegally assumed, was employed, as it had been assumed, for oppressive as well as anti-constitutional purposes. Britons, to whom their country, with the whole world besides, was open by law, have been kept in confinement in that land of exile. Britons, free by law as Britons can be, have been kept in that land of exile in a state of bondage. Such are the propositions which have presented themselves, and which, as such, it will be the main business of the ensuing pages to establish.

Other propositions, though distinct in the expression, and more impressive on the imagination, are not distinct in substance, being virtually included in the foregoing ones. Of what passes there for justice, a great, perhaps the greater part, is so much lawless violence: magistrates are malefactors: delinquency, which, in the conduct of the most obnoxious of the governed, is but an occasional incident—is at all times, on the part of the governing class, and especially on the part of the head of that class, the order of the day. To a part, probably the greater part, of the mandates issued, resistance is a matter of right: homicide, in the endeavour to subdue it, would be—has actually, if the case has occurred, been—as the law stands at present—murder. Not a governor, not a magistrate who has ever acted there, that has not exposed himself—that to this hour does not stand exposed—to prosecutions upon prosecutions, to actions upon actions, from which not even the Crown can save him, and of which ruin may be the consequence.

Connected with these propositions of dry law, are others in which considerations of a moral nature are combined with legal ones. Among the numerous, or rather innumerable manifestations of lawless power, are indeed some—and probably (let candour add) even by far the greater number, which import no moral blame: which, legality apart, import rather praise than blame, so far as praise is due to necessary prudence; and which, in a word, want nothing but legality to be laudable ones: measures, I mean, taken for the maintenance of authority and necessary subordination; measures calculated for the prevention of mischief in all its various shapes. To this division will be found to belong, more particularly, if not exclusively, the acts of the possessors of power upon the spot: measures recommended at least to them, if not absolutely forced upon them, by their providence, by their experience: measures finding, perhaps in every instance, an excuse—in most, if not all instances, a justification (I mean always in a moral point of view) in the mischiefs and dangers of all kinds, with which so unexampled a state of society is encompassed.

To acts of another description no such justification, no justification at all, scarce anything that can be termed so much as an excuse, in foro morali, any more than in foro legali, will perhaps, if the following view of the matter be correct, be found applicable. Such are the acts by which the punishment has been continued in fact, after the term, during which the law had authorized the infliction of it, has been at an end. Of all such oppressions, the guilt will be found to belong indisputably, and I hope exclusively, to men in power here at home: indisputably, because the exercise of such oppressions was of the essence of the system: necessary to the production of the effect, on which alone so much as a pretence to the praise of utility could ever have been grounded: exclusively, because the views promoted by such oppressions were the views of the contrivers and arch-upholders of the system, and of them alone, not of those local agents to whom the execution of it was committed; and because it was not natural, that, among professional men, whose profession is naturally understood to exempt them from the investigation of legal niceties, so much as a suspicion should have arisen, that in a system put into their hands by their official superiors, and those composing the supreme executive authority of the state, anything should be wanting to render it conformable either to the spirit or the letter of the law; especially after the application, which on that very occasion had been made to the legislature itself for powers, and powers obtained in consequence.

Once more, it is not in the injury to individuals that we are to look for the main object of the present pages: nor yet in the so much more extensive mischief accruing to the whole body of the community, from the repugnancy of the system to every one of the ends of penal justice. These are the topics already handled at least, if not exhausted, elsewhere.* The grievance, by which alone the present representation was called forth, is of a still higher order. It consists of the wound inflicted on the whole body of the people, in what used to be felt to be the tenderest part—a wound in the vitals of that constitution, which, to our forefathers at least, was an object of such fond attachment, a subject of such unremitting jealousy. Over British subjects, the agents of the crown have exercised legislative power without authority from parliament: they have legislated, not in this or that case only, but in all cases: they have exercised an authority as completely autocratical as was ever exercised in Russia: they have maintained a tyranny—not the once-famed argumentative tyranny of forty days, but a too real tyranny of fourteen years:—they have exercised it, not only over this or that degraded class alone, whose ignominy may seem to have separated their lot from the common lot of their fellow-subjects, but over multitudes as free from blemish as themselves: they have exercised it for the purpose of exercising the most glaring of oppressions: for the purpose of inflicting punishment without cause upon those on whom the whole fund of just and legal punishment had already been exhausted.

The conclusions to which the investigation tends being thus announced, the proof will constitute the principal matter of the ensuing pages.

SECTION II.

POWER OF LEGISLATION—ITS NECESSITY IN NEW SOUTH WALES.

The power of making regulations considered as reposed in any other hands than those of the supreme authority of a state, is neither more nor less than legislative power, though derived from a superior power of the same kind, and acting under the controul of it.

A general right of legislation is one of those branches of power, the existence of which may be stated, without much fear of contradiction, as necessary in every political community whatsoever, old established or new established: necessary—if, for short spaces of time, not absolutely to the very being of the state, yet at all times to the well-being of it.

In this country, during the infant and ricketty period of the constitution, the want of so important an article in the list of the powers of government was but too notoriously, as well as frequently and severely felt, in the intervals between parliament and parliament.

In a colony—in a new formed community—much more in the colony in question, at the time in question—a colony not yet formed, but to be formed—the existence of such a power may be pronounced altogether necessary to the very existence of the infant establishment.

The creation of such powers is a security that surely was never before omitted in the case of any thing that was ever called a colony: never, even in the case of a colony established on the natural and ordinary footing, by a population composed principally or exclusively of free settlers, impelled thither by the principle of social industry. How much more urgent the demand for it in the case of a population composed as in New South Wales! composed almost exclusively of such disturbed, discordant, dissocial elements!

It is a security never yet omitted in colonies the least remote, in local situation, from the mother country. How much more indispensable in a population to be transported from Britain to the very furthest point of the globe, at a distance more than twice as great as that of the eastern dependencies, and more than four times as great as that of the western!*

In the act of founding a colony, as distinguished from an originally independent state, two parties are necessarily concerned:—the destined inhabitants of the new territory, and the legal founders of it, their accustomed rulers, from whom they derive permission to quit their mother country, and assistance towards establishing themselves in this new one. But, on the part of the founders, as thus distinguished, unless it be the accidental contribution of pecuniary assistance, what was ever understood to be done by the founding of a colony, but the conferring, on persons of certain descriptions, settled or about to settle in the territory of the colony, the necessary assortment of the powers of government? an assortment of which the power of legislation has never been suspected, I believe, of being anything less than a necessary ingredient.

From one source or another—from within or from without—from intrinsic authority or from extrinsic—who ever heard of the foundation of a state, dependent or independent, without a power in it to make laws? No, surely: Lucina sine concubitu is not a more palpable absurdity, than the idea of founding a colony without providing any legislative powers for it.

Supposing the whole mass of law existing in the mother country to be transplanted in one lot into the colony, judicial power might, in this case, be of itself admitted to be sufficient: admitting always (what never can be admitted) that no need will ever occur for the imposition of fresh obligations. But even in the oldest established communities, that need is occurring every day; and surely the more novel the situation, the more urgent and frequent must be the demand for fresh obligations. I say obligations: for it is by such instruments, and such alone, that any provision can be made for the unforeseeable and infinitely diversifiable train of exigencies, of which such a situation could not but, in point of reason, be expected to be productive.

One omission it is time I should confess, in the observation of which the reader may not improbably have been beforehand with me. In speaking of the existence of such a power as necessary, I ought to have added, or the belief of its existence. To many an eye the distinction might appear an useless refinement; for without a really existing power of legislation, how in the nature of things, it may be asked, can the belief of it be produced? or, if it could be, who would set about producing it, and to what end or use?—questions pertinent enough these, but not unanswerable. The reader will soon judge.

The expedition was fitted out. It left the seat and source of regular government.* A governor went out with it: and with him went not out the smallest particle of legislative power, derived from the only source of legislative power—from the source, from whence other and inferior powers (judicial I mean) that at the same time were sent with him, had been derived—in a word, from parliament.

An act, brought in by administration, had been obtained of parliament to serve as a sanction for the measure: “An act to enable his Majesty to establish a court of criminal judicature on the eastern coast of New South Wales, and the parts adjacent.”† Such is the title of the act:—no such power as that of legislation is in the title; no such power is in the act. What powers, then, are there in the act? Powers for creating courts of judicature, and no other. This was the professed business of the act: this the only business: the very title says as much. Powers are given by it—to do what? to create any new rights? to impose any new obligations? No such thing. Nothing but to punish “outrages and misbehaviours.”‡ And what outrages and misbehaviours? “Such” (and such alone) “as if committed in this realm would be . . . treason or misprision thereof, felony or misdemeanour.”—“Whereas,” says the preamble, “it may be found necessary that a colony and civil government should be established in the place.” “To establish a civil government—that a civil government should be established”∥ —at least, established somehow and by somebody—was the professed object of the act. “A civil government to be established,” and no power of making general regulations—no power of making laws—no, not in any case whatever—is comprised in it! If, without parliament, power could be found for legislating in all other cases, and for all other purposes, why not for the establishment of this, or any other court of justice?

Under this provision of the law, an ordinance, suppose of the prohibitive class, is issued by the governor in New South Wales. In the words above quoted, we have a standard for the validity of such ordinance. The act prohibited by it, is it of the number of those acts which would be “outrages” or “misbehaviours” if committed “in this realm?”§ If not, then is the ordinance by which it thus stands prohibited, illegal and void: void beyond dispute, unless the power of making laws binding “in this realm” belongs to the governor of New South Wales, or some other person or persons legislating in New South Wales.

SECTION III

LEGISLATION—HOW FAR LAWFUL IN NEW SOUTH WALES.

All this while, from the time of the first landing of the first expedition to the time at which the historiographer of the colony took his leave of it, that is, from January 1788 to September 1796, ordinances were issued by the governor, and, as it should seem, by his sole authority. Instructions were also from time to time received by him from his superiors here at home, and ordinances issued in consequence of, and therefore (it may be presumed) in conformity to, these instructions. And these ordinances are not, like the king’s proclamations in Great Britain, mere acts of monition, or other acts, grounded on pre-existing acts of the legislature, but original acts of legislation, forbidding, and thereby converting into “misbehaviours,” a variety of acts, such as, if performed “in this realm,” whether in England or in Scotland, would not have been “misbehaviours,” would not have belonged to the class of “misdemeanours,” or to any of those higher classes of delinquency (treason, misprision thereof, or felony,”) specified as such in the act.

This assumption of power, how shall it be accounted for? On the part of the governor, there can be little difficulty. 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. By this sea captain: for such has been the profession and rank of every gentleman who has ever as yet been invested with this important office.

On the part of these authorities at home, some imagination or other must necessarily have been entertained about the right—either that a right to confer on the governor this power was actually existing in the authority thus assuming and exercising the power; or at least that of the existence of such right a belief would be entertained by the several parties interested—a belief which, though it were ill-grounded and erroneous, would, so long as it continued to be entertained by all parties, have the same effect as if well-grounded and correct.

On the first supposition, they went to work bona fide, believing that to be legal which was determined to be done. In the other case, conscious of the illegality of the course they were pursuing, they determined to persevere in it notwithstanding; perpetual fraud trusting for its success to perpetual and universal ignorance.

Of two such opposite conceptions, which, then, is it that, on the face of it, carries the strongest probability of having been entertained?

The first hardly, for what is there that can be found to countenance it? Legislative power exercised by an officer of the crown, for such a course of years, without authority from parliament! On what possible ground could any conception of the legality of such a system be seriously entertained?

I will make the best case for it in my power: I will ransack imagination for possible grounds.

That the supposition was, in the whole extent of it, without foundation, would indeed be evidently untrue. That there was and is a considerable stock of lawful power in the colony to work with, is palpable enough. That that power was of a nature to serve as a succedaneum, so far as it went, to a regular and expressly-constituted legislative power, must also be admitted: manifest enough, I accordingly admit, it is, that a power of legislating over certain persons, and in certain cases, was virtually among the contents of it. But, in addition to all such persons and cases, legislation (so the fact is) has been exercised there (as indeed it required to be exercised there) over abundance of other persons, and in abundance of other cases.

To show this, I will in the first place exhibit a short survey of the stock of the colony, live and dead, persons and things, thrown into classes with this view. It will then be easy enough, and with a degree of accuracy sufficient for the purpose, to go over them, and say of each, this stands subjected, or this does not stand subjected, to the powers of all-embracing legislation, that have been exercised in New South Wales, by the sole authority of the king’s governor of New South Wales.

In the course of a period of nine years and a half, comprised in the history given of the colony by its chief magistrate, the inhabitants, considered in respect of their subjection to any ordinances of the governor (or of any other person or persons pretending to the exercise of legislative authority there) may be distinguished into the classes following:—

• 1.Officers and privates, in the land branch of the king’s military service, subject to orders, as such, under the mutiny act.
• 2. Officers and privates in the naval branch of the king’s military service, subject to orders, as such, under the articles of war.
• 3. Persons in the king’s service in a civil capacity: as such, not subject either to the articles of war or the mutiny act: such as chaplains, surgeons, superintendents, &c.
• 4. Commanders and crews of British vessels in private service.
• 5. Commanders and crews of foreign vessels.
• 6. Convicts still in a state of legal bondage: the terms of punishment specified in their respective sentences being as yet unexpired. For distinction’s sake, they may be called convicts non-emancipated de jure, or, still more shortly, non-expirees. The reason of this distinction, and the nomenclature founded on it, will appear immediately.
• 7.Wives, children, and other relatives, if any, of non-expirees.
• 8.Expirees. Convicts emancipated de jure: de jure, in contradistinction to de facto. The distinction is altogether a necessary one: for, in point of fact, one of the characteristic features of the establishment, and crimes of its foundation, was—that those who by law ought without exception to have been free, were, and were to be, in a multitude of instances, retained in bondage.
• 9. Wives and children, and other relatives, of expirees.
• 10.Unblemished settlers: that is, all settlers not belonging to classes 6, 7, or 8, or any of the preceding classes. In this instance, and for this purpose, the term free settlers (the term employed elsewhere) would not serve: since, if law had been the standard, classes 7, 8, and 9 would have been as free as these.

1, 2. With reference to the two first of these ten classes (Army and Navy,) the right of legislation may pass without dispute. Conditions might be stated as requisite—limitations might be suggested—but the discussion would be superfluous. For the purpose of the argument, I suppose and admit proper measures to have been taken, and by the proper authority, to subject all persons of these two descriptions to the authority of the governor in that behalf.

3. Over persons of the third class (servants of the crown in civil capacities,) supposing power to be given to the governor to dismiss them from their respective situations, this power operates of course as a means of influence, tending to produce a disposition towards a general submission to his will, howsoever signified. Setting aside this means of influence, their condition is noways different from that of class 10th, unblemished settlers.

4. With reference to commanders and crews of British vessels, the right might also be admitted, for the purpose of the argument:—though, in this instance, it appears liable to particular objections, which will be mentioned presently.

5. With respect to the commanders and crews of foreign vessels, the right shall, for the same purpose, pass unquestioned.

6. With respect to non-expirees (convicts still in a state of legal bondage,) their legal subjection to the governor, and consequently to all such orders as a master in England has it in his power to issue to an indented servant, may be pronounced unimpeachable: I mean, supposing the course directed in that behalf by the act to have been pursued;* and supposing the civil branches of the law of England, or of Scotland, or of both together, or of Great Britain, to have grown up in New South Wales, like so many weeds, without having been ever planted there: of which more will be said presently. That the spirit of the old transportation system, which it is the professed object of the act to continue, cannot have been conformed to, I have already had occasion to explain in another place.† But, if the words of the act have been pursued, in the manner that will also be stated, I see nothing to hinder the power of the governor from having been rendered unimpeachable in relation to this class: always assuming the fulfilment of the unfulfillable conditions just mentioned.

7. 8. 9. 10. Over expiree convicts, their wives, children, and other dependent relatives—over the wives, children, and other dependent relatives, even of convicts themselves in a state of legal bondage—over unblemished settlers—the governor neither had, nor could have had, nor without fresh authority from parliament can ever have, any more power (I speak always of legal power) than I have.

Over any stores entrusted to his care, the governor, in his quality of agent to his Majesty, the legal proprietor of those stores, will have had the same legal power as any other proprietor anywhere. These stores being in a large proportion among the necessaries of life, from the proprietorship of these means of subsistence, must of course result a proportionable degree of influence.

But influence—natural influence—is one thing: legal power is another. To the production of an effect by influence, consent is necessary: special consent precedently given to each act, by the production of which the influence has fulfilled its purpose: to the production of the same effect by power, no such consent is necessary. Were the governor to say to this or to that man, being a man not in bondage to him—“Do such or such a piece of work, or you shall have no bread served out to you to-day—an order thus sanctioned may be admitted to be legal, though without any previous authority given by parliament for the issuing of it. But if, addressing himself to the same man, and speaking of the same piece of work, the governor were in like manner to say (as he has so often done)—“Do this, or you shall be whipped”—here would be an ordinance illegal and void.

The same thing may be said of any general ordinance addressed to all persons without distinction, with or without any special sanction annexed to it, and whatever may have been the utility or even necessity of it: so far as the persons bound, or otherwise affected by it in point of interest, are persons subjected by any special legal commission, to orders from the governor, so far, and as to those persons, it is good and legal. Beyond this, and as to all other persons, the same ordinance is illegal and void. As for example: orders that no persons shall, for such a time, go beyond such and such bounds:‡ orders that no man shall build, or begin to build, a vessel of a size beyond such and such dimensions.§

I take for granted (always for the purpose of the argument,) that whatever power of legislation could be given by the crown, to anybody, to be exercised in this colony, has all along been given by the crown to the several successive governors. All this notwithstanding—all this being admitted—what I maintain is, that, no such authority having been given to the crown, in the only act in question,* by the legislature, it was no more in the power of the crown to confer any such power of legislation (except the limited, and not so denominated, but only virtual powers of legislation above excepted) on the governor, or any other person or persons, than in mine.

SECTION IV.

AMERICAN, &c. LEGISLATION NO PRECEDENT FOR NEW SOUTH WALES.

The nature of the case not furnishing any just grounds for the assumption of any such legislative power as has actually been exercised, I come now—(still acting under the difficulty already recognised)—I come now to fish out imaginary and possibly pretended grounds, at a venture.

True it is accordingly, certainly in general, and for aught I know, without exception—and as such I shall admit it—that among all the charters in which the governments in the several existing English, British, or quondam British colonies in America (West Indies included,) have respectively had their rise, there is not one, for the granting of which any powers, previously or subsequently to the concession of it, had been obtained from parliament.

Still more clearly true it is, that even in the instance of Georgia (the last colony established before the revolt, established at so late a period as in the sixth year of the reign of the late King,) when an act of parliament was passed, having for the object of one of its clauses† (as declared in what may be called a clause in its longwinded title,) the “enabling his Majesty . . . . to pay . . . . ten thousand pounds to the trustees for establishing the colony of Georgia,” no powers are given to the crown, any more than in any preceding or subsequent act, for the purpose of legalizing such powers, as the crown must then recently have been creating for the government of that colony.

But, since that period, and before that of the passing of the act for the foundation of the colony of New South Wales,‡ this practice of organizing governments for British dependencies, in territories out of Great Britain, by the sole power of the crown, may, I think, be said to have been relinquished, and virtually acknowledged to be indefensible. I mean, by the precedent, set by the act commonly called the “Quebec Act,”∥ in which, whatever was done in the way of establishing subordinate powers of legislation, was in that case, as well as in the case of judicature, done either by parliament itself, or by authority therein given to the crown by Parliament.

Even in the same reign which thus gave birth to the latest instance of unparliamentary colonization, and not more than seven years after that instance, the legality of the practice appears to have been regarded as matter of doubt, at least by parliament itself.§ At this time, among the American colonies, there were many, that under the powers of legislation granted to them from the crown, had passed acts of their own, restricting personal liberty (as in New South Wales)—restricting the right of departure out of the precincts of their respective territories. Acts made (says the preamble of the British act) “for the preventing the carrying off, from the said colonies or plantations, any servant or slave without the consent of the owner, or the carrying off from thence any other person or persons whatsoever, until such persons shall have taken out his ticket from the secretary’s office within such respective colony or plantation, in such manner, and under such penalties and forfeitures, as in and by the said several laws is declared and provided.” But even at this time, so little satisfied was parliament of the legality of the restraints thus imposed—in other words, of the legality of the powers under which they were imposed—so far at least as among the persons thus legislated upon were included, viz. “commanders of private ships of war, or merchant ships having letters of marque,”—that in the act, and by the clause, from the preamble of which the passage above quoted is copied, provision is made for the declared purpose of giving legality to those same laws: “Be it enacted,” says the statute, “that all commanders (as above) shall, upon their going into any of those ports or harbours, be subject and they are hereby determined to be subject, to the several directions, provisions, penalties, and forfeitures, in and by such laws made and provided, anything in this act to the contrary notwithstanding.”¶

Among the powers actually exercised in New South Wales, with or without instructions from hence, conformably or unconformably to such instructions, is that of prohibiting or “preventing” masters of private vessels from “carrying off persons” from the colony, without special permission from the governor, particularizing each person permitted in each instance. Upon the exercise of these powers depends the whole system of government in this penal colony: every use which anybody could ever fancy it good for, or capable of being made good for. Even in America, and so early as the year 1740, the legality of these powers was looked upon as being so questionable at least (to say no more), as to require for the confirmation of it the authority of Parliament. In America, these powers were thus confirmed, and were therefore legal: but in New South Wales they have not been thus confirmed; for America is the only place mentioned in the act—American laws the only “laws.” New South Wales has nothing in it that ever was a law, or so much as called a law, and America (God be thanked) has no such colony in it as New South Wales.

SECTION V.

EVEN IN AMERICA, THE CROWN HAD NO RIGHT TO LEGISLATE WITHOUT PARLIAMENT.

Relinquished, as it has been, no otherwise than tacitly, if at all (for the point is not worth arguing,) if the power had been declared illegal, and abolished by express words, it would not have been so disposed of without very sufficient grounds. That over English subjects in England, or anywhere else, the king should, by himself or by others, exercise legislative power, without the concurrence of parliament, was repugnant to the constitution, was repugnant to Magna Charta.

True it is, for aught I know, that till the reign of George the Second, till the year 1740 at least, as above, it never had been disputed or doubted of: and the train of precedents by which it has been exercised, commences with what appears as the first charter given to the first colony, in the reign of James the First,* in 1606, or thereabouts.

But, in the days in which the practice thus originated, the exclusive right of parliament to legislative power was far from being defined as now. Even within the territory of England—on this, and that, and other ground—the king by his proclamations would be legislating without parliament, and even in spite of parliament. Whatever parliament would endure to see him do, this and more he was sure to do without parliament. By monopolies, by ship-money, by dispensations of penal statutes, on one pretence or another, he was even levying money without parliament. The very existence of parliament was a matter of perpetual contingency. At all times it depended upon the king’s pleasure whether there should ever be another. And so long as he could contrive to go on with existing powers, and upon existing funds, he had everything to lose and nothing to gain, by calling to his aid any such troublesome assistance.

Even in Lord Cohe’s time, had this mode of legislating without parliament been questioned in the King’s Bench, it would not have stood its ground: at least if Lord Coke had at that time been in disgrace, and the decision had depended on Lord Coke.

“King Edward the Sixth did incorporate” (says he† ) “the town of St. Alban’s, and granted to make ordinances, &c. They made an ordinance upon pain of imprisonment, and it was judged to be against this statute of Magna Charta. So it is if such an ordinance had been contained in the patent itself.” Thus far Lord Coke. The train of reasoning is evident. It was by the glaring illegality in the case last mentioned (which is the feigned case,) that light was thrown on the covert illegality in the former case, which was the real case. It was a case actually decided, decided in the Common Pleas, and reported by Lord Coke himself.* The decision was given in the 38th year of Elizabeth, and even Elizabeth submitted to it.†

Had the first charter that was ever granted for the foundation of an English colony (say the charter, granted in 1606, for the colonization of the tract of land then comprised under the denomination of Virginia by James the First,)‡ —had this first charter been questioned as illegal—as contrary to the decision in the St. Alban’s case, in vain would it have been to have said,—“This case is different: that applies to Englishmen wishing to legislate in England: this applies to Englishmen wishing to legislate in a distant, and as yet unplanted region.” To warrant any such distinction, there was neither principle nor precedent. Not principle: because, as to hardship, if Englishmen are to be legislated upon otherwise than by parliament, how was the hardship lessened by their being in the then wilderness of America? in a quarter of the globe, so far out of the reach of the protecting hand of parliament? Not precedent: for, of an attempt to subject them to legislation in this mode, the instance in question is, by the very supposition, the first instance.

The right of thus granting away the powers of parliament passed (it is true) unquestioned. Why? because nobody ever started up, to whom it had happened to conceive himself as being concerned in interest to question it. For, if a man went from England to live there, it was because he found it more agreeable to him to live there under those laws, than to live in England under English laws: and if at any time a man preferred English laws, England was at all times open to receive him. Whatever was the cause, such at least was the effect: the right remained unquestioned; and, remaining unquestioned, usurpation had time to clothe itself in the garb of law.

Admitting, that on any one mass of territory, having English owners, and not being, or having passed, under the dominion of any foreign power, the concurrence of the three estates is necessary to legislation, no reason can be given why, on any principle either of utility or analogy, it should be less necessary on any other spot so circumstanced. By remoteness from the natal soil—from the seat of connexion and protection—the hardship of whatever is looked upon as tyranny is not lessened but enhanced. The sense of liberty (of what is meant by liberty in one of its thousand senses) has not been found to evaporate by expatriation in English men, as the sense of smell has been said to do in English dogs. Of Englishmen surely it may be said, if of any men, Cælum, non animum mutant, qui trans mare currunt.

For whom, or what, was it that the protection afforded by Magna Charta was intended? For the inhabitants of the land, or for the soil only?—for the flesh and blood, or only for the stocks and stones?

A lawyer, who should attempt to get rid of the application, of the case of the charter given to certain inhabitants of St. Alban’s, to the case of a charter granted to certain inhabitants of other places in England, must answer boldly—“Only for the stocks and stones. Englishmen, the moment they get out of sight of the stocks and stones of England, for whom alone Magna Charta was designed, are neither worth protecting nor worth governing.” But, unless it be on a spot, which being under foreign owners, affords a protection and a governance of its own, in what book will he find a colour for saying, that Englishmen, by being out of sight of English ground, are either out of the protection or out of the governance of an English parliament? Limited as the power of an English king is over Englishmen in England, in what book will he find that it is absolute over them everywhere else?

Will the portion of consent, of popular consent, given in the first instance to these charters, or the consent given in succeeding times to the laws made in America, in the several colonies, in consequence of these charters—will any such sanction be urged in proof of the original validity of a purely royal act, thus attempting to legislate over Englishmen without parliament?

Alas! what a cloud of illusions is involved in that little word consent, employed, as it is but too common for it to be employed! But, without plunging into any such discussions, it is sufficient to say here, that no such unparliamentary consent had any weight in the St. Alban’s case. There never could have been applied, to the law of any American assembly of succeeding times, the actual consent of so great a proportion of individuals to be governed by it, as there probably was in the St. Alban’s case. But this did not hinder the attempt made in that case (the attempt on the part of the king, in conjunction with a portion of the inhabitants of that one town, to legislate, on pain of imprisonment, over the rest) from being disallowed: disallowed on the ground of its being an invasion of the rights of parliament.

What is the consent required by the constitution to give validity to a law? The consent—not of a part surely, but of the whole. It is not the consent of that part of the king’s subjects for whose exclusive advantage the law is made, that is sufficient to give validity to a law, by which others, not sharing in the benefit, are attempted to be bound: if it were, there would never be any want of consent to the worst law. Neither then, nor since, has the consent necessary to give validity to any English law, been either more or less than the consent of the two sets of trustees for the whole body of the king’s subjects—the two other estates of Parliament.

The question is, whether the king, with the assent of a few persons named by himself, had it in his power to repeal, pro tanto, the statute called Magna Charta? The answer is given by the judges in the St. Alban’s case: “L’assent ne poet alter la ley in tiel case.” If this be not the very best of French, better English at least cannot be desired.

To supply what is thus in contemplation of law wanting in point of consent, will any such topic as that of abstract utility be resorted to? Will it be urged, in the view of giving validity to the illegal mass of pretended law, that the benefit of all parties followed from it? This benefit, admitting it in its full extent, this benefit, destined to be reaped in after ages, will it give retro-active validity to an act void from the very first instant? If so, at what point of time was it that, on a sudden, and without any efficient cause, an illegal act was thus converted into a legal one?

Legality, it must be remembered, not expediency, not abstract utility, is the question here: to confound the two ideas would be to tear all law up by the roots. Admitted in the fullest extent, the alleged expediency would prove no more than this, viz. that, had James the First obtained, by a law of parliament, authority for the foundation of his first colony—authority for the powers conveyed by the charters, in virtue of which this colony was founded—had the king so done—a law to that effect, if passed, would have been a good law: and so in regard to the several other real colonies, real charters, and correspondent ideal laws. But, the expediency of all these ideal laws, does it prove them real ones? does it prove that any such acts of parliament were actually passed?

When a practice is repugnant to acknowledged principles, the case of general warrants is sufficient to show how little force there is in mere official precedents, however numerous the train of them, and however ancient the commencement of it. For the purpose of that case, a list of general warrants (a list of the cases in which authorities of that description had been issued by the servants of the crown) was published at the time.* It begins with the Restoration; not surely because there were none of any earlier date (for such there must have been in numbers,) but because it was not conceived that authorities of that kind, issued at any less constitutional period, could possess any tolerable chance of being looked upon as good precedents.

Prior to the issuing of the first general warrant, there was no direct judicial decision against general warrants, as there was against legislative power exercised by the crown without parliament, in the case just mentioned: yet general warrants, spite of the number of precedents and length of the practice, could not stand their ground. Against general warrants there was nothing but principle. Against colonization charters there is the principle, and a direct judgment grounded on it. And who is there that will deny that, in the scale of common law, a thousand unjudicial official precedents are not equal to one judicial one?

SECTION VI.

NULLITY OF LEGISLATION IN NEW SOUTH WALES, FOR WANT OF AN ASSEMBLY TO CONSENT.

All this, however, is but skirmishing—matter of illustration, not of necessary argument. For, though the right of the crown to found colonies (as the American colonies were founded) without parliament, were ever so well established, a claim in that quarter to exercise or create legislative powers, to be exercised over Englishmen, Scotchmen, or Irishmen, in New South Wales—in this colony sui generis—in this so denominated, but perfectly nondescript, and newly discovered species of colony—would not be the less unfounded.

In all the several charters by which legislative power, whether per se or per alios, was exercised by the king, there were two common features, and those most indispensable ones:—1. Consent on the part of the colonists as to their subjection to such powers—irrevocability of the privileges granted by such charters—irrevocability of the king’s act, whereby such powers were created, or the right of creating them conferred.

The irrevocability, though a feature perfectly distinct from the consent, was a natural, and one may almost say, a necessary consequence of it; or rather preliminary to it. For what man of common prudence would have gone to embark his property and his prospects, under a form of government, in which, so long indeed as it remained unchanged, he looked upon them as safe, but at the same time without any security against its being changed at any time—changed into some unknown arbitrary form, under which every thing would go to wreck—changed without his being heard, and at the suggestion of some court favourite, whose object would be of course to extract plunder from the change?—Not general satire—particular history is here in view: Elizabeth and James, with their favourites and their monopolies.

The irrevocability of the sanction given by the crown was therefore of the very essence of the case. This attribute of it was recognized all along by the judicial power. Even in the most arbitrary times, the crown itself never pretended that its own charters of this kind were revocable at its own pleasure. The utmost of its pretensions was—that for certain causes, these powers of subordinate government were susceptible of being forfeited: it belonged to the judicial authority in that behalf (the Court of King’s Bench) to pronounce—to pronounce judicially in each case—upon the existence of any such cause of forfeiture. And in the annals of that court, and of the colonies, are contained divers instances of prosecutions instituted on that ground, against colonial governments, and of resignations made of charters, under the apprehension of such prosecutions.*

As to consent (by which I do not mean a presumptive, constructive, fictitious, pretended, general consent, but actual, direct, individual, consent;) immaterial as the circumstance is in this view, under a government already formed, in a territory into the precincts of which a man has been introduced either by birth or voluntary self-conveyance—nugatory as any argument grounded upon it would be in the ordinary state of things—yet in a new formed, or forming government—in a new planted, or about to be planted, colony—every thing depends upon it: utility, and therefore that law, which so far, and so far only as it has utility for its basis, is any thing better than oppression and abuse, depends upon it altogether. To a man’s being born in a country, his consent cannot be taken—but to his being conveyed to it, his consent can be taken; and, on its being taken or not, depends a Pandora’s box of miseries and injuries.

In New South Wales, not only was this most indispensable of all requisites to the foundation of a colony—to the establishment of legislative power in a colony, wanting—notoriously wanting—on the part of the great mass of the intended population; but the getting rid of so troublesome a condition—the weeding it and eradicating it out of the about-to-be-new-planted colony, was the very object—the professed object—the sole professed object—of the foundation of this vast receptacle of penal suffering. If, in point of fact, it should ever acquire a title to the name of a “colony”—(the name bestowed upon it in the tenor of the law made for the foundation of it,)† it could only be in so far as the persons sent thither against their wills, and having a legal right of departing from thence at the expiration of certain terms, should, by irresistible power, in defiance of that right, be kept there each to his life’s end.

In common intendment—in common, and not merely in vulgar, but in deliberate and well-considered language—permanence of inhabitancy is acknowledged to be of the very essence of colonization. Accordingly, in the disputes that of late have arisen on the affairs of the East Indies, the language on one side is, “To do thus or thus would be colonization:—as you tender your existence, forbear to colonize.”

Force under the law, was to plant men there; force against law, was to keep them there: and when, under the law, they were planted, it was for this very and only end and purpose—that against law they might be kept.

Nolentesper populos dat jura should be the royal motto, in this as purely royal, as it is daringly anti-parliamentary, colony of New South Wales.

So much as to the first mentioned condition, consent—consent to habitancy and subjection. But this condition, a condition so inseparable to the foundation of every colony that is any thing better than a bastile, being so essentially wanting to the foundation of this colony, it seems almost superfluous to extend the observation to the other kindred condition—irrevocability of privilege. That which was never granted, cannot easily be revoked. So far the inhabitants—the chosen inhabitants of New South Wales—are secure enough. What was never possessed, cannot be forfeited.

If common sense be not of itself convincing enough, e’en let us translate it into common law. In their day, the American Constitutions were legal ones: be it so. But they were by charter: here there is none. No charter either has ever yet been granted—or is in a way very soon to be applied for by the inhabitants, or any inhabitants of New South Wales. Yet has the colony been “founded” I suppose:—founded as Mr. Pitt and Mr. Rose found colonies.—No charter, no colony. In that one technical expression, are condensed the two substantial and rational grounds of nullity: no consent to subjection—no irrevocability of privilege.

All this while a sort of a colony there is—I am perfectly aware of it—that is, or has been supposed to be, capable of existing without charters, and in which the advisers of the crown have accordingly been used to find themselves pretty much at their ease. I mention it, to save gentlemen the trouble of catching at the shadow of an argument. It is the sort of colony that has been obtained by conquest; having surrendered, with or without capitulation; having or not having, at the treaty which confirmed the cession of it, a stipulation made in favour of it; having or not having, antecedently to its surrender, a constitution of its own. All or any of these varieties, might upon occasion afford considerable amusement to any learned gentleman, who, along with his brief, should have acquired a taste for the natural history of the law of colonies. But, as to any practical use for them, happily in the case of New South Wales there is none. To the host of follies included in the circumstance of distant possession, this colony at least, with all its peculiarities and all its faults, has not added that vulgar and crowning folly of distant conquest. It is needless to enquire, what on this occasion might have been the virtue of a string of wampum: no wampum, nor any substitute for wampum, has either been received or given in New South Wales. When, from their immense continental island, Benillong and Yem-mer-ra-wannie* did us the honour to bestow a glance upon this our little one, it was in the character of private gentlemen, travelling for their amusement, or at least for our’s: they signed no treaty with his Majesty, nor brought with them any diplomatic powers.

The flaw is an incurable one: if it were not, it would be none. No charter ever could, can now, or ever can be granted. It is not a case for charters: all the wax—all the parchment in the king’s stationary office—all the law on all his woolsacks—would not make one. A charter, make it of what or how you will, must have somebody to accept it. But a charter—a thing to keep men in New South Wales—Who is there, or who ever can there be, to accept it in New South Wales? A charter to empower a free man to lead a life of slavery, and to be flogged as often as he endeavours to escape from it!†

Instructions and counter instructions—insinuations and counter insinuations—instructions in form and instructions not in form;—despotism acting there by instructions, and without instructions, and against instructions;—all these things there may be, and will be, in abundance. But of charters—unless such instructions be called charters;—of constitutions—that anybody that can help it will be governed by;—of any lawful warrants, unless from Parliament;—from the present day to the day of judgment there will be none.

No, most assuredly; no parchment, no wax, no cement is there whatever, that can patch the no-constitution of it together for a moment longer, or prevent the improved colony from being converted, any day in the year, into a still worse chaos than it is. No plaster of any kind can be laid on upon this universal sore, by any other than the all-healing hand of Parliament.

If this view of the law be not just, and if the penners of the New South Wales act were not themselves sensible of its being so, wherefore apply to parliament for powers, for the organization of a judicial establishment in that colony? Judicial power is in its nature inferior, subordinate 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? If, by the American charters, the king creates legislative powers, by the same charters he creates powers of judicature; or what comes to the same thing, confers authority for the creation of such powers.

This argument, it must be acknowledged, supposes something like consistency on the part of the penners of the act; and of consistency what traces in it are to be found?

SECTION VII.

NULLITY OF GOVERNOR’S ORDINANCES. FOR WANT OF A COURT TO TRY OFFENCES AGAINST THEM.

One imagination more, for a last effort. With or without a declaration to that effect by the king’s governor, the laws of England, (let it be said,) such as they exist at present, and such of them as are applicable to the state of things in the new colony, transport themselves in one great mass into New South Wales. After them, transport themselves, as they came out, all subsequently manufactured masses of law, common as well as statute, such of them as are so applicable, and in as far as they are so applicable, each in an air balloon of its own making, without any body to send them out, or make it possible for them to be known when they are arrived. Moreover, along with the first great mass, transports itself in like manner the right of establishing courts of justice for the trial of all offences against all such masses of English-made law, present and future, as they come in; under the single condition, that the mode of procedure in such courts, in each sort of case, shall not be different from the mode of procedure in the same sort of case pursued in England. Why these conditions?—for this reason. The circumstance that rendered the authority of parliament necessary for the legalization of the sort of court which it has actually been employed in legalizing, is—that that court not calling in the assistance of a jury, though the cases are jury cases, the mode of proceeding under it is not according to the law of England. Being, therefore, the sort of court which the king’s agent with all his powers had not quite power enough to make, thence came the necessity of sending it out, ready-made by the king, in pursuance of powers obtained from Parliament for the making it.

Unfounded this, a great part of it at least, in principle or in fact. But even if all the dreams in it were truths, the government of New South Wales would not, in point of legality, be one jot the better for them. These courts, made after the English pattern, serve for the trial of offences against English-made laws:—allowed; but the offences, for the trial of which proper courts are wanted, are not offences against English-made laws. By what courts, then, in New South Wales are these non-English offences to be tried? Not by these supposed New South Wales made courts, since, by the supposition, it is only for the trial of English-made offences that they can be made to serve. Not by the grand court, the establishment of which was the sole business of the statute: for it is to the trial of English-made offences that that court, by the express words of the statute, stands confined:—the court, when “convened,” is to be “for the trial and punishment of all such outrages and misbehaviours, as, if committed within this realm, would be deemed and taken, according to the laws of this realm, to be treason or misprision thereof, felony or misdemeanour;”—not all “outrages and misbehaviours” without exception, but such alone as would be “misdemeanours” and so forth, “if committed within this realm.”

The governor (suppose) issues an ordinance (such as, it will be seen, he has issued in abundance,) prohibiting an act, which would not have been either “misdemeanour” or “misbehaviour,” “if committed within this realm.”* Admit then, that it is really in the power of the crown to communicate to the governor, in his individual capacity (the power he has so often exercised,) the complete power of legislation. Power of legislation alone being thus communicated to him, power of judicature (except in the case of acts that would be offences “if committed in this realm,”) not being given to him or anybody, what would he be the better for it? He has power to create the offence, but neither he nor anybody else has any power to punish or try the offender for it, when committed. The governor, by his proclamations, has power to enact new laws. Be it so. But has he likewise powers to create Star Chambers—to punish such as shall fail of obeying those proclamations? Where is the court to try any such offence? The court created under the statute? By the statute itself it stands precluded (as hath just been seen) from meddling with them. A court of King’s Bench, or any other court to be erected by the governor under his instructions?—those instructions which are to be to this colony, what charters have been to all other colonies? Nor that neither. Power or no power—instructions or no instructions—thus much seems clear enough—that, down to the time of Mr. Collins’s quitting the colony in September 1796, no such court (no court other than what has been called there a civil court, in addition to the court for the erection of which special power is given by the statutes) had ever in fact been holden. A court to be composed of the governor alone, for the trying of offences created by the governor alone? If so, here then we have the very quintessence of despotism; too rank, one should have thought, even for the meridian of New South Wales. It is Star-chamber out Star-chamberized: legislature and judicature confounded and lodged together, both in one and the same hand.

Is it true, then, that even such a court—a court thus arbitrary—might have been created, and that without any powers from Parliament? If so, then (as far at least as “misdemeanours” are concerned,) there was no need of Parliament, for the establishment of the less arbitrary sort of court, therein established and described:—a court composed of “the judge-advocate . . . . . together with six officers of his Majesty’s forces by sea or land;” the governor not sitting among them indeed; though, being the person to “convene” the court, he possesses (as it was evidently intended he should possess) the power of choosing, on each occasion, such members for it, as, on that occasion, he thinks, himself most sure of. The conclusion is then—that in spite of all suppositions, whatever ordinances he enacts and executes, are on a double ground illegal: first, because there is no law for enacting them; and again, because there is no law for executing them.

So much for law. In fact, in what set of cases the governor makes use of this court, and in what cases he does without it, or whether any precise line is drawn between them, is more than on the face of the documents (I mean the judge-advocate’s printed journal) I should expect to be able to pronounce. As far as I have yet seen, I should suppose no certain line: but, in each individual case, if it seems of importance enough, the court is convened: if not, whatever be the offence—English made, or colony made—the governor does what he pleases with it, without troubling anybody else, unless it be the man who is to give the lashes, or to “pull the house down,”* &c. as the case may be.

SECTION VIII.

KING’S LAW-SERVANTS NOT INFALLIBLE.

But, (says somebody) do you consider, Sir, by what authority all these acts, thus charged by you with illegality, were done? It is not the minister alone, and his subordinates, that are implicated. This is not mere treasury business. The acts have not only the king’s name and signature to them, but the sanction of the whole council-board, with the opinions of this and that and t’other great dignitary of the law included in it.

My answer is—all this makes little difference. It goes no farther than to show, that, as for a certainty a surprise was put upon parliament, so probably enough a surprise was also put upon the council-board: upon the council-board, including the legal learning and legal authority belonging to it. On putting the dry question of law—“Has not the crown, without special powers from parliament, powers to organize a constitution for a new colony?” the answer, judging from the supposed precedents of the American colonies, may, not very improbably, have been in the affirmative:—especially if given on slight consideration, as it naturally enough might be, in a case where no opposition was apprehended.

But, surprise or no surprise, God be thanked, it is not in the power of the king’s counsellors† to inflict upon a single Briton an atom of punishment of their own creation, much less to inflict illegal punishment upon Britons by thousands, and to make ex post facto penal laws by dozens, in repugnancy to so many laws of parliament, including Magna Charta and the Bill of Rights. Let the sanctions lent to the measures be what they may—by whatever pretences—and from whatever names obtained—wholesale oppression was the object of it, wholesale oppression has been the result.

What does appear in point of fact, and from very high authority, is—that in matters of colonial legislation, there has been a time, and even since the accession of his present Majesty—when his Majesty’s law-advisers in this behalf have not been altogether masters of this part of their business: so at least, in the court of King’s Bench, in the famous Granada case—the great and only adjudged case since the foundation of the first colony, that has any bearing upon this point—(Lord Mansfield being spokesman)—was the opinion of the judges.* “The inattention of the king’s servants” (speaking of his Majesty’s law-servants) is the circumstance to which, as the sole cause, the dispute then on the carpet is ascribed by that discerning judge. The power of legislation, as exercised in that colony, in the way of taxation, on the 20th of July 1764, by the king alone, without the concurrence of any other authority—either that of parliament here, or that of an assembly of the colony there—exercised on the ground of its being a conquered colony—is there supposed, though but arguendo, to have been in itself indisputable. But, before that day, to wit, on the 7th October 1763, these his Majesty’s careless servants, not knowing, or not minding what they were about, had so managed as to divest him of it: and it was after having so done, that, forgetting what they had done, they picked it up again, and in the name of their royal masters exercised it as above: “inverting,” says Lord Mansfield, “the order in which the instruments should have passed, and been notoriously published, the last act” was, under their management, “contradictory to, and in violation of the first:” and this is the “inattention” spoken of. Here, then, was an occasion on which, according to Lord Mansfield and the rest of the judges in the King’s Bench, his Majesty’s law-servants did not know what they were about: and this occasion was—the same as that now in question—that of the making or mending a constitution for a colony. This was in 1763 and 1764: and, forasmuch as a mistake of this sort was actually made, and by his Majesty’s law-advisers, I think I may venture, from the demonstrated error of that prior time, to infer the possibility of an error on the like subject, on the part of the same description of persons, in 1786 and 1787. The arguments ab auctoritate and ab impossibili being thus cleared away, the other arguments may without much rashness be trusted to their own strength.

SECTION IX.

NULLITY OF NEW SOUTH WALES LEGISLATION, PROVED BY THE GRANADA CASE.

If any addition could be wanting, to the proof already given, of the illegality of the legislative power exercised by the sole authority of the crown in this colony, it might be drawn, and with full assurance, from this Granada case.

From the whole tenor of the argument of the court, as delivered by Lord Mansfield, and taken in short-hand by the reporter in that case, two propositions may be deduced with full assurance:—

1. That in no case had any judicial decision been given, down to that time (1774,) recognizing the right of the crown to legislate, without parliament, over an English colony, howsoever acquired, (whether by conquest, as Granada was, or without conquest:) that therefore, as to every point not necessarily comprised in the decision given in that Granada case, the question, so far as concerns judicial decision, in contradistinction to extra-judicial opinion, remained open to that day; and from thence, it may be added, to the present. The above-mentioned decision in the St. Alban’s case—the decision disaffirming the king’s right to legislate over Englishmen without parliament—has therefore nothing to contradict it.

2. That, although by that argument, in the case of the foreign inhabitants of a country acquired by conquest, the right in question is affirmed: yet, in that same argument, in the case of a colony acquired in any other way than by conquest, it is expressly disaffirmed; and in particular, it is disaffirmed in the case of all the several other colonies at that time in existence.

3. On one condition indeed, it is, in the non-judicial opinion relied on by that same argument, in a certain way, affirmed: and the condition is—that, as in those other colonies, a share be taken by an assembly of the colony in the exercise of the right. But, by the affirmance of the right, restrained as it is by this condition, the case of Mr. Pitt, in his exercise of it, will not be bettered. For, of any legislative assembly in the penal colony of New South Wales, there has never been so much as a shadow.

Nor, even thus, is the affirmance given to the right a distinct and positive one. It is only not disaffirmed, because not disputed; both parties (the crown and the local assembly) being alike engaged by their respective views and interests to assume it. These propositions, being of such importance, may seem to have a claim to very specific proof: such proof shall not be wanting.

Of all these propositions proof will be afforded at the same time, by the two only authorities stated as having any bearing upon the case. These are—

1. A dictum in 1608 by Lord Coke, Chief-Justice, in his report of the famous case called Calvin’s case: the case in which, on the accession of James the First, a right on the part of Scotchmen to certain privileges of Englishmen, was claimed and allowed. 2. A non-judicial opinion, given in 1702 by two practising lawyers—one of them at least at that time a servant of the crown—Sir Philip Yorke (afterwards Earl of Hardwicke) and Sir Clement Wearg, on a question relative to the right of the crown to tax Jamaica: an opinion which, so far as it went to the affirmance of the right, in the case of a colony obtained by conquest, appears to have had for its ground, and only ground, that same ante-colonial dictum thrown out in Calvin’s case.

As to what is said in Calvin’s case, not applying (if to any colony) to any other than a colony acquired by conquest (such as New South Wales, most certainly, is not,) to scrutinize into it is a task that may here be spared.

The proposition is a mere dictum: collateral, and not even very perceptibly relevant, to the case in hand, the words of it, when extracted and wiped clean, as it has been very carefully by Lord Mansfield, from the portentous mass of absurdity and atrocity with which he found it entangled,* are as follows:—“If a king comes to a kingdom by conquest, he may change and alter the laws of that kingdom: but if he comes to it by title and [of] descent, he cannot change the laws of himself, without the consent of parliament.”

Of the opinion given by Yorke and Wearg, the account given by Lord Mansfield is in these words:—

“In the year 1722, the assembly of Jamaica being refractory, it was referred to Sir Philip Yorke and Sir Clement Wearg, to know what could be done, if the assembly should obstinately continue to withhold all the usual supplies. They reported thus:—‘If Jamaica was still to be considered as a conquered island, the king had a right to levy taxes on the inhabitants: but if it was to be considered in the same light as the other colonies, no tax could be imposed on the inhabitants, but by an assembly of the island, or by an act of parliament.’

“They considered the distinction in law as clear, and an indisputable consequence of the island’s being in the one state or the other.”

“In the one state,” says Lord Mansfield, “or the other.” Neither did he, therefore, any more than those whose opinions he was adopting, know of any third state. They recognized not any such state, as that of a colony acquired otherwise than by conquest, and yet capable of being legislated upon by the crown alone—by the crown, without any further sanction, either that of a local assembly, or that of the supreme legislative body in the mother country—without any check at all upon absolute autocratic power—without the necessity of any consent, either on the part of any special deputies from that particular division of his Majesty’s subjects, or on the part of the representatives of the whole.

In the case which drew this argument from Lord Mansfield, the point he was bound to determine, and which he accordingly did determine, was—that, as matters stood, the power of taxation, as exercised by the crown in Granada, was not legal. Another point which, being at liberty to speak to it or not, he thought fit to speak to was, that if matters had been otherwise, such power would have been legal. If, in humble imitation of such high and sincerely respected authority, and in precisely the same view, viz. that of seeing important constitutional questions settled on the broadest and most solid grounds, it may be allowable for an obscure ex-lawyer, on this same ground, to travel, as the phrase is, a little way out of the record, I will venture to state it as a question, which, notwithstanding the opinion so distinctly given by that great lawyer in the affirmative, remains still quite open, whether, even in the case of conquest, in any colony acquired since the Revolution, Trinidad for example, the right of the king to legislate without parliament—I mean, without express authority from parliament—would, in case of dispute, be found maintainable in law?

Over Englishmen, it stands expressly negatived (as already mentioned) by Magna Charta, and by the interpretation put upon that statute, by the judicial decision given in the St. Alban’s case.

Over foreigners, inhabitants found existing in a colony acquired by conquest, it would (I am much inclined to think) be regarded as negatived, as well as over Englishmen, by the two connected constitutional principles, recognised in the 4th and 5th articles of the Bill of Rights: viz. that neither in actu nor in potentia, shall a king of England have, as such, without the express allowance of parliament, either a separate army of his own, or a separate purse. And in this light, it appears from Edmund Burke,† that the Bill of Rights was most publicly (viz. in the House of Commons) and constantly, and, for anything that appears, without contradiction, considered by George Grenville, himself a lawyer—(according to Burke, even too much of a lawyer)—before he was a minister, and this not on the ground of policy merely, but of actual law.

Be this as it may, what is certain is—that the question is still open, notwithstanding the decision in the Granada case; because in that case, though an opinion was given, affirming the right of the crown to legislate in case of conquest, that opinion was not necessary to the decision then pronounced.

How much better for this country, as well as so many other countries, would it have been, if instead of fishing for drops of sense out of the extrajudicial ravings of Lord Coke, men of law had attended, on the one hand, to the direct decision of the judicial authority, as reported, in sober though very energetic language, by the same God of their idolatry, in the St. Alban’s case; on the other hand, to that of the legislative authority, as displaying itself in the Bill of Rights! If they had, nothing in the way of legislation would, from first to last, have been done in English-America, but by parliament, or with express authority from parliament. It would not then have been so much as dreamt of, that it was in the power of the king, by confederating with a part of his subjects, withdrawing themselves for this purpose to a vacant territory remote from the eye of parliament—that it was in the power of his law-servants, by any such management, to oust parliament of its rights: I mean its exclusive right of legislation, as established in the St. Alban’s case. Dissension would then have been nipped in the bud; and the American war, with all its miseries, and all its waste of blood and treasure on all sides, would have been saved.

Unfortunately, in the St. Alban’s case, the scene not lying in America, nor any thought being entertained by anybody about America, no such word as America is to be found. Of colonies, as little: for at that time scarce had any such idea as that of colonization ever presented itself to any English mind. And thus it happened, that when America came to be the order of the day with lawyers, nothing appeared in their common-place books, to guide them to that case.

What is curious enough, is—that in the very first instance of a grant of land made by a charter from the crown of England to intended settlers in America, these portions of American ground were declared to be put upon the same footing in point of law, as if contained within a spot of English ground;—the manor of East Greenwich.* And with the St. Alban’s case, then comparatively a recent one, before their eyes—with this case, one of the most prominent cases, in the most prominent of all law books, full in their teeth, were these crown-lawyers audacious enough to make their king grant, to these inhabitants of East Greenwich, privileges which had already been declared illegal, not fourteen years before, when granted to the inhabitants of St. Alban’s. But the grant was of the number of those exertions of prerogative, which were not expected to come before an English court of justice, any more than they were intended for the eye of parliament. Parliament, never for two days together sure of its own existence, had too much of its own and the whole nation’s business upon its hands, to be inquisitive about a handful of obscure adventurers, who, turning their backs upon their country, betook themselves to other laws.†

All this, except what concerns the want of power, on the part of the servants of the crown here in England, to legislate over Englishmen in New South Wales, and without any of those limitations, without which, or some of them, no such power had ever been exercised by any servant of the crown of England anywhere else, is, as I have already observed and acknowledged, a mere work of supererogation, with reference to New South Wales. But there are other places, with reference to which it may be not altogether so immaterial:—say Trinidad for example.

Mischievous as the effect of these questions might be, if ill-timed, I start them without any sort of scruple. Parliament being now sitting, the tendency as well as the object of them is, not to create confusion, but to prevent it. How desirable, on every account, that rights of such importance should be fixed at once upon the rock of legislation, instead of being left to totter upon the quicksands of expected judicature, waiting for “the competition of opposite analogies!”* Can it be worth while to leave so much property a prey to insecurity—so many confident expectations a prey to disappointment—for the chance of saving a little longer the stump of a rotten prerogative, and perhaps the pride of a few lawyers?

But, all collateral 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 himself 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 instruments of the crown—the successive governors of New South Wales—have, for these fourteen years past, been exercising legislative power without any authority from parliament: and either without any authority at all from anybody, or at most without any authority but from the king: and all along they have been, as it was most fit they should be, placed and displaced at his Majesty’s pleasure.

And among those, over whom legislative power has thus been exercised, have been individuals by hundreds, or, ere this, by thousands, who, so far from subjecting themselves to this power by their own consent, or having been subjected to it by any consent on the part of their ancestors, under whom they were born and bred, have all along been doing their utmost to make their escape out of the reach of it: and this very absence of consent—the very energy and notoriety of their repugnance—is among the very grounds on which, in the most important case of all, that of confining to this land of bondage such as are free by law, the power thus exercised over them would, if at all, be justified.

Of two things, one. Either there is not at this moment any legal power of legislation in New South Wales, or there is not any legal power of legislation in Great Britain—Magna Charta is waste paper. If, without fresh support from parliament, the constitution of New South Wales stands, that of Great Britain and Ireland is no more. If, without authority from parliament, the king can legislate over Britons and Irishmen in New South Wales, so can he in Great Britain and Ireland. If, without authority from parliament, the king can confine to that place of exile any such quondam bondsmen, reconstituted freemen by the expiration of their legal terms of bondage, so likewise can he deal by freemen who never were in bondage. If men of either description can be thus confined when there, with equal right may they be sent there. The King is absolute: and, instead of convening Lords and Commons to Westminster Hall to join with him in making laws, may send them to have laws made upon them in New South Wales.

SECTION X.

GOVERNOR’S ILLEGAL ORDINANCES EXEMPLIFIED.

1.

For Prevention of Famine.

Thus, then, stands legislation there in point of right. In point of fact, I have already observed, there has not been any deficiency of it; or, if there has, it has not had the deficiency in point of law, or any suspicion of such deficiency, for its cause. Ten classes, comprising the whole population of the colony, have already been brought to view: half of them, or thereabouts, subject by law, in one way or other, to a certain degree at least (for aught appears,) to the governor’s legislative power: the other half, not thus subject to it. No traces of any such distinction, in point of right, appear in point of fact. Regardless, or (to embrace the more probable, as well as more candid supposition) unapprized of any such distinctions, he legislated chance-medley upon all. The terms of each ordinance or mandate being general—addressed to all alike—no exception of this or that denomination of persons—neither exception nor specification (which is as much as to say an exception of all denominations not specified)—obedience appears to have been expected and exacted from all alike. De jure, a limited monarch (though most strangely limited)—de facto, he was an absolute one: as, indeed, in the situation in which he, and everybody under him, had been so unnecessarily placed, it was sometimes at least, if not always, necessary that he should be.

To satisfy the reader at one and the same view, that of legislation there was little or no want in one sense, and at the same time a most urgent and perpetual want in the other—that there was plenty of legislation, accompanied all along by a most urgent need of it—here follows a list of the chief objects or purposes, which the ordinances actually issued appear to have had in view. To class a set of laws under the very heads which point out the reasons of them—such, if not a very ordinary mode of classification, is neither an uninstructive, nor surely an unfair one.

In the journal of the late judge-advocate of the colony, indications more or less distinct may be found, of a set of ordinances, of one sort or other—in number between sixty and seventy—issued within a period commencing with the arrival of the first expedition on the 20th of January 1788, and ending with the month of September 1796; a period of not quite nine years.

Among the objects or final causes of these regulations, the following appear to have been the principal ones:—

• 1. Security against scarcity and famine.
• 2. Security against depredation, and other mischief from within.
• 3. Security against mischiefs from without, viz. against injuries from the native savages.
• 4. Security against accidents by fire.
• 5. Prevention of drunkenness.
• 6. Enforcement of attendance on divine worship.
• 7. Prevention of emigration—whether on the part of non-expirees—of expirees—or both together without distinction.

These objects—were they of no moment? The mischiefs thus guarded against—was there anything singular or unexampled in them?—anything which, to a man of ordinary forecast, legislating in England could be expected to be invisible?

Without entering into particular examinations, thus much may be averred in general terms without error—that among these ordinances are many either altogether indispensable, or indisputably useful: speaking all along of such as, being introductory of new law, adapted to the particular exigencies of the spot, became creative of so many correspondent offences, such as would not be “misdemeanours or felonies, treasons or misprision thereof,” if committed in “this realm;”* to use the words employed by the act, in the description of the only offences, which the only court of justice legalized by it, received authority from it to punish.

In every instance, the stronger the necessity of each illegal ordinance, the clearer the innocence of the local lawgiver, if not in a legal point of view, at least in every other: but the more clear his innocence, the more flagrant the guilt of those who, sitting in the bosom of security, sent him out thus to legislate with a halter about his neck, and without legal powers! Guilty, if in their dreams they thus exposed him: how much more so if awake!

From the sort of account given of these several ordinances by the judge-advocate (an account which had no such scrutiny as this for its object,) to speak with decision, and at the same time with correctness, as to the legality of the ordinance, is not in every instance possible. In many, perhaps most instances, one and the same ordinance will have been in part illegal, in part legal: legal, in so far as it bears upon the faculties, active or even passive, of persons belonging to the classes above distinguished as legally subjected to the authority of the governor; illegal, in as far as it bears in like manner upon persons not so subjected.

For showing, by the tenor of the ordinances themselves, the urgency of the demand for legal authority for the issuing of them, and thence the guilt of those by whom it was left unsupplied, I select, out of the above seven cases, the three most prominent ones: famine, drunkenness, and escape.

The absence, coupled with the need, of any of the powers of government—this combination, as far as it extends, is anarchy. Famine and anarchy are the grand intestine foes, which all infant settlements have to struggle with. Each leads on and exasperates the other. From one or other, or both, many expeditions of this sort have suffered more or less severely: some have perished altogether. Such has been the case where the spot has been comparatively at next door to the source of power and supply: in America for example, at scarce a quarter of the distance. To any considerate eye, how much more repulsive the danger in New South Wales!

This double source of destruction ought to have been foreseen; and with an ordinary degree of intelligence and attention would have been foreseen: and being foreseen, should of itself have been sufficient to prevent the establishment—if not of any colony—at least of any colony so composed. In a country so situated and circumstanced—of itself yielding nothing in the way of sustenance, and at that unexampled distance from the nearest country that yielded anything—it was in the very nature of the enterprise, to deliver up the persons sent upon it, to the scourge of famine: it was in the very nature of the enterprise, to give birth to enormous exertions, in the way of national expense, in the view of protecting them against the affliction: it was in the very nature of the enterprise, that such exertions should be more or less ineffectual. Such was the tendency of it—such was the event: many sunk under the pressure: the remainder, for months together, stood between life and death. Death must evidently have been the general lot, had it not been for the exercise of those powers, of which the founders of the establishment here at home had left it destitute.

Such negligence, to give it the gentlest name, being too flagitious to be suspected, was not in that Ultima Thulé followed with those consequences, of which it might have been productive, in a situation communicating more freely with the centre of information. Against anarchy, a battalion of well-armed soldiers, to keep in order a band of unarmed convicts—such a remedy, expensive as it is, must be allowed to be a strong one: continual as the apprehensions are, that it will not be strong enough.

Examples of Ordinances, having for their object security against Scarcity and Famine.

1. Page 23, March 1788. “Much damage . . . . by hogs—. . . . Orders given . . . . any hog caught trespassing, to be killed by the person who actually received any damage from it.”

2. Page 28, May 1788.—“The governor . . . . directed every person in the settlement to make a return of what live-stock was in his possession—”

3. Page 98, March 1790.—“It being found that great quantities of stock were killed, an order was immediately given, to prevent the farther destruction of an article so essential in our present situation.”

4. Page 101, 27th March 1790.—“Damage was received from the little stock which remained alive: the owners not having wherewithal to feed them, were obliged to turn them loose to browse . . . . It was however ordered, that the stock should be kept up during the night, and every damage that could be proved to have been received during that time was to be made good by the owners—. . . . or the animals . . . . forfeited.”—

5. Page 105, between the 3d and the 7th of April 1790.—“All private boats were to be surrendered to the public use.” This was for fishing: a determination having been taken “to reduce still lower what was already too low” (the ration.) “In this exigency, the governor had thought it necessary to assemble all the officers of the settlement—civil and military—to determine on . . . . measures—”

6. Page 104, between the 3d and 7th of April 1790.—“The lieutenant-governor . . . . called a council of all the naval and marine officers in the settlement, when it was unanimously determined, that martial law should be proclaimed; that all private stock, poultry excepted, should be considered as the property of the state!”

Of the several acts of disobedience with reference to these respective ordinances, how many are there that would have been “misdemeanours,” if committed in England?—Scarce a single one.

The ordinances all prudent and expedient:—upon the face of them, at any rate: some at least necessary; necessary to a degree of urgency to which even conception cannot reach in England. Sanction, the physical: penalty of non-legislation, not scarcity only, but famine.

SECTION XI.

GOVERNOR’S ILLEGAL ORDINANCES EXEMPLIFIED.

2.

For Prevention of Drunkenness.

Improvidence—Indolence—Helplessness—all extensive as well as intense, to a degree scarce conceivable in this country, were the prominent features of this reformation colony, down to the time when its historiographer took his leave of it.* But of all these weaknesses, drunkenness was the principal and perennial source.†

Prevention—anything like complete prevention—being out of the question, to snatch from this vice what could be snatched from it of its prey, would be as important an object as it was a natural one, to a governor legislating on that spot. But important is not strong enough. In this country, well-being only; in that, even being was attached to it. Upon sobriety, depended labour: upon labour, the means of immediate subsistence. In that state of things, to legislate against drunkenness was to legislate against famine. The means chosen might be more or less apposite; the result more or less successful. But the endeavour was as necessary as life is necessary: and for this endeavour, the authority obtained from parliament was as insufficient as for all the others.

Here, as in the case of famine, the same natural incompatibility established between the expedient and the lawful: to the governor the same distressing option between legal duty and moral, supposing the difference to have been present to his view.

Among the ordinances actually issued by him on this ground, it will be only by accident, if any one be found, that was not expedient: it will be only by accident, if any one can be found, that was not illegal. As to the test of illegality, it is already given. To apply it to the several ordinances, article by article, would to lawyers be unnecessary, to non-lawyers tedious beyond endurance.

No. 1. Collins, I. p. 175: 28th August 1791.—“Spirituous liquors . . . . Ordered that none should be landed, until a permit had been granted by the judge-advocate: and the provost-marshal, his assistants, and two principals of the watch, were deputed to seize all spirituous liquors which might be landed.”

No. 2, p. 300: July 1793.—“Spirituous liquors. Notice” (by the lieutenant-governor,) “that any person attempting to sell spirituous liquors without a licence, might rely on its being seized, and the house of the offending parties pulled down.”

No. 3, p. 449: 18th January 1796.—“The governor forbade all persons . . . . to distil spirituous liquors . . . . on pain of such steps being taken for their punishment as would effectually prevent a repetition of so dangerous an offence.” “In pursuance of these directions,” pursues the text, “several stills were found and destroyed.” Rather more of the mystery of despotism than of the certainty of law in the above sanctionative part: but, by the practical comment, the mystery was unravelled.

The forbidden practice is spoken of as being “in direct disobedience to his Majesty’s commands.” Here then we have one instance at least, in which the name of Majesty was profaned, for the purpose of giving an apparent sanction to these violations of law, which were found better adapted to the purposes and dispositions of ministers, than the legal authority, which might or might not have been obtainable from parliament.

No. 4, p. 483.—“Direction by the governor . . . . that none of those persons who had obtained licences should presume to carry on a traffic with settlers or others who might have grain to dispose of, by paying for such grain in spirits.” Then, in case of contravention, comes the menace in the established mysterious style: their licences would immediately be recalled, and such steps taken for their punishment, as they might be thought to deserve.” Also that “trading, to the extent which he found practised, was strictly forbidden to others, as well as to those who had licenced public houses.” Observations, in various shapes, present themselves: amongst others a question, how a man was to know whether he was safe or no under this law? But as to what may apply more particularly to individuals there, this is not a place for observations.

SECTION XII.

EXPIREES FORCIBLY DETAINED.

No. 1. Collins, I. p. 74: July 1789.—Liberty of departure, and freedom from bondage on the spot, both refused to a number of expirees at the same time; on the ground that no evidence of the original commencement and length of their respective terms was to be found.*

There being, for anything that appeared, no authority for treating them as convicts, the legal consequence would have been, in England, and in short under any system of of law but that of New South Wales, that they should have been treated as freemen. Instead of that, they were kept in confinement and bondage there, till a time which might never happen.

The omission of the papers in question is ascribed by the historian, as by a candid interpreter it naturally would be, to “oversight,” and the oversight is spoken of as being “unaccountable.” What is curious enough is, that this omission is not the only one of the same kind.† But, even though it were the only one, indications are not altogether wanting, such as might lead to a suspicion at least, as to the cause. In the list of convicts, with their respective terms and days of sentence, given by Governor Phillip,‡five persons are named whose terms were to expire in the very month in question, July 1789. Of these there was not one whose remaining penal term, on the day of his being shipped for transportation, or at least on the day of the ship’s sailing, was so long as two years and three months; nor, on the day of his landing, more than eighteen months. Deducting, if it be but six months, for the time requisite for return, had these convicts, all of them, had a vessel in readiness for them to embark in for England, and embarked and arrived accordingly, so as to have reached England by the end of their respective terms, there would have remained no more than a twelve-month for them to have continued, according to their respective sentences, on the spot to which they were conveyed at so heavy an expense. Is it natural, that after remaining in confinement in England for near five years out of his seven, a man should have been sent out to the antipodes with a view of his not being kept there for more than a twelve-month? If not, then the non inventus, upon the documents by which their freedom would have been established, may not appear altogether so unaccountable as without this comparison of circumstances it would naturally appear to be.

What is certain, from Governor Phillip’s list, is—that certain persons, five in number, were in this predicament in this same month. What appears little less so is, that the persons claiming their liberty in that same month were those same persons: “conscious in their own minds that the sentence of the law had been fulfilled on them,” are the terms employed on this occasion, in speaking of these same persons, by their ever-candid historian and judge.

What they claimed on this occasion was, in the first instance, pay, upon the footing of freemen: what was announced to them on this head was, that “by continuing to labour for the public, they would be entitled to share the public provisions in the store;” that is, be kept from starving, on condition of their being kept in bondage.*

The supposition of an intentional suppression anywhere, is, it is true, no more than a bare surmise: a suspicion, given as nothing more, and which, if unfounded, may be easily disproved. In the meantime, the probability of it will not be found diminished by Nos. 6, 7, 8, 9, 10.

No. 2. Collins, I. 74. July 1789.—It was on this same occasion, that one of the claimants in question, having in presence of his Excellency “expressed himself disrespectfully of the lieutenant-governor, was . . . sentenced to receive 600 lashes, and to wear irons for . . . six months.” What the words thus punished were, does not appear: but what does appear beyond doubt is—that if there had been no such violation of law on the one part, there would have been no such violation of respect on the other.

No. 3, p. 159. April 1791.—Information given by the governor to the convicts, “that none would be permitted to quit the colony who had wives and children, incapable of maintaining themselves, and likely to become burthensome to the settlement, until they had found sufficient security for the maintenance of such wives or children, as long as they might continue after them.” Considering the latitude of the discretion assumed by some of these terms, this notice may be considered as a pretty effectual embargo upon the whole married part of the community of expirees.

No. 4, p. 169. July 1791.—Information given by the governor to the expirees, that those who wished not to become settlers in New South Wales were “to labour for their provisions, stipulating to work for twelve or eighteen months certain;” and that afterwards, on condition of their entering into such engagement (is not that the meaning?) “no obstacles would be thrown in the way of their return to England;” but that, as to “assistance” for any such purpose, nobody was to expect it.† Illegal detention, for twelve or eighteen months, nobody was to know which, which is called “certain;” and this at any rate universal:—illegal bondage, for the same uncertain certainty, and equally universal. And at the end of this certainty, what was to be their fate? As to the means of departure, they were to get away if they could, but they were to have no “assistance:” as to their condition so long as they staid (that is, as to the greater part of them, so long as they lived,) they were to be either bond or free, as it might happen: nobody was to know anything about the matter. Such is legislation in the antipodes: such is legislation by the servants of the crown: such is legislation without parliament.

No. 5, p. 190. 3d December 1791.—Sailed the Active and Albemarle for India. After their departure, expirees were missing. “Previous to their sailing, the governor was aware of an intention, on the part of the seamen, to facilitate such their departure. He thereupon instructed the master to deliver any persons whom he might discover to be on board, withoutpermission to quit the colony, as prisoners, to the commanding officer of the first British settlement they should touch at in India.”

No. 6, p. 230. August 1792.—“Such [expirees] as should be desirous of returning to England were informed, that no obstacle would be thrown in their way, they being” (i. e. all of them being) “at liberty to ship themselves on board of such vessel as would give them a passage.” Such was the intention announced. What was the intention at that same time entertained? The following words explain it:—Now it was that “it was understood that a clause was to be inserted, in all future contracts for shipping for this country, subjecting the masters to certain penalties, on certificates being received of their having brought away any convicts or other persons from the settlement without the governor’s permission: and, as it was not probable that many of them would, on their return, refrain from the vices or avoid the society of those companions who had been the causes of their transportation to this country, not many could hope to obtain the sanction of the governor for their return.”—Not “obtain” it? Agreed. But—not so much as “hope” to obtain it? not even at the very time when it was expressly promised to them?—a promise made to all; and this at the very time when it was determined that, a few only excepted, none should ever receive the benefit of it!

No. 7, p. 268. 19th February 1792.—Intention executed. Howsoever it may have been as between the intention announced and the intention entertained, between the intention entertained and the execution that ensued there was no repugnance. On this day sailed for Canton the Bellona. Into this ship had been received six persons from the settlement: two of them, expirees, by permission; two others, expirees also, but without permission; the remaining two, non-expirees. Of the four latter it is stated, that they had been “secreted;” also that they were “discovered,” “the ship being smoked.” That they were accordingly re-landed at least, if not otherwise punished, may pretty safely be concluded, though not expressly mentioned.

Of the two non-expirees it is stated, that “they had not yet served the full period of their sentences.” From this it seems not unreasonable to conclude that this full period would have arrived before their arrival in Great Britain. If so, then neither by their arrival, any more than by their departure, would they have gone beyond the exercise of their renovated rights.

No. 8, p. 268. 15th February 1793.—At this time the expectation “about the clause . . . . in the charter party, for preventing shipmasters from receiving any person . . . . from the colony, without the express consent and order of the governor,” was found to be realized. The Bellona came provided with this clause. She had sailed from England on the 8th of August 1792.

No. 9, p. 283. 24th April 1793.—Intention executed a second time. Sailed the Shah Hormuzear and Chesterfield. “But few convicts [expirees] were allowed to quit the colony in these ships.” On a subsequent occasion, in November 1794, the number received on board the same number of ships (the Endeavour and the Fancy) had been near a hundred: whereof by permission, 50; without permission near 50 more. Ib. p. 398.

No. 10, p. 316. 2d October 1793.—Intention executed a third time. Sailed the Boddingtons and Sugar-cane for Bengal. “From the Sugar-cane were brought up this day. . . . two expirees: they had got on board without permission.—Punished with 50 lashes each, and sent up to Toongabbe.”

In the continuation of the history, no express statements of detention have been met with. The historian not being at this time present in the colony, the precision exhibited in the former volume no longer presents itself in the same degree. During the latter period, the conception which it seems to be the object to present to view, is rather the removal of the restraint than the continuance of it. It is not, however, the less perceptible, that even at this time it was restraint that constituted the general rule, and that whatever instances of the exercise of the opposite liberty took place, were the result of so many special permissions, and constituted but so many exceptions to, and confirmations of the rule.

No. 11, II. p. 11. 6th December 1796.—“Although they every day saw that no obstacle was thrown in the way of the convict who had got through the period of his transportation with credit and a good character, but that he was suffered to depart with the master of any ship who would receive him, and a certificate given to him of his being a free man, yet, &c.” By this it appears as plainly, that, among expirees themselves, there were some to whom the liberty of departure was refused, as it does that there were others to whom it was granted.

No. 12, Ib. p. 49. September 1797.—“As the masters were seldom refused permission to ship such as were free.” From this passage it follows, that, at this time likewise, though there were but few instances, yet there were some, in which such permission was refused.

No. 13, Ib. p. 45. August 1797.—Sailed the Britannia and the Ganges. “The commander of the latter was permitted to take on board several convicts that had become free.”

No. 14, p. 125. September 1798.—Sailed the Barwell for China. “Her commander was allowed to receive on board about 50 persons, who had completed their period of transportation.”

No. 15, p. 57. October 1797.—“Decreasing daily as did the number of working men in the employ of government, yet” [at this time it is stated that] “the governor could not refuse granting certificates to such convicts as had served their respective terms of transportation; and no less than 125 men were at this time certified by him to be free. Most of these people had no other view in obtaining this certificate than the enabling them, when an opportunity offered, to quit the settlement, or following their own pursuits till that time should arrive.” Could not refuse? Why so? He had without any difficulty refused on the former occasions, mentioned in Nos. 1, 3, 4, 5, 7, 10: what was there to prevent him now? From hence it should seem, that by this time some legal scruples had arisen, in some breast or other, either in the colony or at home: and that from thence it was, in the first place, that the granting of the certificate, at or about the expiration of each man’s term, was regarded as in some measure obligatory; in the next place, that the effect of such certificate, when obtained, was to confer on the individual the liberty of departure:—a primâ facie liberty at any rate, though probably subject at all times to revocation by special order.

No. 16, p. 298. August 1800.—“Several certificates were granted this month, to persons who had served their terms of transportation.”

SECTION XIII.

EXPIREES, DURING DETENTION, KEPT IN A STATE OF BONDAGE.

No. 17, I. 74. July 1787.—Freedom from bondage, refused along with liberty of departure, on the same ground, viz. the want of evidence of the commencement of the term of servitude. See above, Nos. 1 & 2.

No. 18, I. 169. July 1791.—Expirees, who wished not to become settlers in New South Wales, ordered to work there for twelve or eighteen months certain. See No. 4.

No. 19, I. 208. April 1792.—Expirees “become numerous.” To fourteen of them the choice of the place where they were to labour (where these freemen were to be forced to labour) is stated as an “indulgence.”

No. 20, I. 474. 4th October 1796.—No expiree was now allowed “to remove himself without permission from the public work. But, notwithstanding this had been declared in public orders, many withdrew themselves . . . . on the day of their servitude ceasing.” For this “they were punished, and ordered again to labour.”

No. 21, II. p. 22. February 1797.—“Several convicts who had served their respective terms of transportation, having applied to be discharged from the victualling books of the colony, and allowed to provide for themselves, it was determined that, once during a given time, certificates of their having so served their several sentences should be granted to them, together with the permission they solicited.”—Once during a given time: i. e. once a-year, once a-quarter, or once a-month, &c., if the sense that presents itself to me is what was meant. This being the case, the time when each man was restored to liberty, was the time—not when his right to it commenced—not when law and justice required that he should be restored to it—but a time which recommended itself to the imagination, by some such idea as that of order and regularity:—at any rate, by some idea or other, which in the order of importance occupied in certain conceptions a higher rank than that of law and justice. What would be the feelings of the good people in England, if, by the influence of any such love of order on the mind of a secretary of state or sheriff, prisoners were in future to be discharged from prisons here, not as at present, when their respective terms are up, but in gangs together, say every quarter-day? so that a man, for example, whose sentence was for a month, should, for the sake of good order, be kept in jail three months longer, all but a day or two, if his month happened to end a day or two after quarter-day?

No. 22, Ib. II. p. 23. March 1797.—“It appeared by the books, in which were entered the certificates granted to the convicts who had again become free people, that there were at this time not less than 600 men off the store, and working for themselves in the colony: forming a vast deduction of labouring people from the public strength, and adding a great many chances against the safety of private and public property, as well as present security.”

Legality (let it never be out of mind) is the object of inquiry here, not abstract expediency. So far as security and economy were concerned, legality and expediency seem to have been in a state of perpetual repugnance. Legality required that each man should be liberated from bondage the instant the time comprised in his sentence was at an end: expediency (had legality been out of the question) would perhaps have required that, in a society so constituted, he never should be discharged at any time.* But, as to the contrivance for making the discharges in the lump, at fixed periods, it is not quite so apparent how expediency was served by it, as it is that law was violated by it. What a system! under which, in one way or other, it was impossible not to do wrong! in which mischief, in a variety of shapes—frequently, perhaps, utter destruction—would have been the consequence of anything like an exact conformity to the rules of law!

In a situation like this, the conduct of the local powers may on each occasion be, upon the whole, blameable or unblameable, as it may happen: but the system itself, under which they are obliged to act, what can it be, otherwise than blameable—blameable in the extreme—upon all occasions?

In all these transactions—in all this time—is it in the nature of the case, that the system of illegal detention, such as it is, should have been carried on in the penal colony, otherwise than in consequence of, and in general in conformity to, instructions received from home?

Much argument does not seem necessary to prove, that the difference between punishment of this sort for a limited term, and punishment of the same sort for life, was no secret to those by whom it was obliterated in practice. But by a particular fact a sort of impression will often be made, beyond any that can be made by general inference.

In September 1794, in a single page, an account is given of no fewer than sixteen convicts existing at one time (one, in from a hundred to two hundred or some such matter,) in whom symptoms of reformation had been supposed to be discovered.* The supposed penitents here in question were nonexpirees: to different individuals amongst them, different and very carefully measured degrees of indulgence were extended. To one of them (William Leach) whose “term” under “his sentence of transportation” had been for seven years, of which term a part only had elapsed, “permission,” it is stated, was given “to quit this country” (New South Wales;) but clogged with the condition of his not returning to England, so long as his “term” remained “unexpired.”

Here, then, the punishment, we see, was analysed, and its constituent elements separated: the confinement to New South Wales, together with the species of bondage incident to it, was remitted: the exile was left, and for the whole time, in full force.

The written instruments, serving as evidences of the indulgences thus granted, are termed, on the occasion, “warrants of emancipation:” and to these warrants the “seal of the territory” (it is stated) was affixed. What was done on this occasion being done by so many formal, and of course (if anything like a register be kept there) registered acts, it seems difficult to suppose but that it must have been upon Instructions from government here—Instructions in some degree correspondent in point of formality—that they were grounded. If, under any such nice distinctions and guarded limitations, power was thus given for permitting individuals to quit the colony before the expiration of their respective sentences—given, therefore, in contemplation of the precise tenor of each law—is it supposable, that without Instructions equally deliberate, this large and continually-increasing proportion of the population (the expirees) should have been detained as they were detained, though against law, after the expiration of their respective terms?

Were the Court of Common Pleas to give judgment “in an appeal of death,” they would be “guilty of felony,”—says Hawkins, B. I. ch. 28, § 5, p. 169, 8vo., with a legion of marginal authorities for his support.—Guilty? why guilty? Then comes of course a technical reason:† but the rational one, which it shades, is evident enough; because, without what is called mala fides—without criminal consciousness—consciousness of the want of right to do what they take upon them to do—an error of that description could never, by persons of that description, be committed.‡

SECTION XIV.

STATUTES TRANSGRESSED BY THE LEGISLATION AND GOVERNMENT OF NEW SOUTH WALES.

The acts of legislation, and other acts of government, that have been exercised in New South Wales, have thus been stated, in a general point of view, as being contrary to law. It remains to confront the several heads of transgression that have thus been manifested, with the several constitutional laws and principles of law, which in those several points have been transgressed and violated.

I.

Transgressions in breach of the Habeas Corpus Act—Penalties thereby incurred under the said Act.

“And for preventing illegal imprisonment,” says the act,* “in prisons beyond the seas; Be it further enacted . . . that no subject of this realm, that now is, or hereafter shall be, an inhabitant or resident of this kingdom of England . . . shall or may be sent prisoner . . . into ports, garrisons, islands, or places beyond the seas, which are, or at anytime hereafter shall be, within or without the dominions of his Majesty, his heirs and successors; and that every such imprisonment is hereby enacted and adjudged to be illegal; and that if any of the said subjects . . . hereafter, shall be so imprisoned, every such person . . . so imprisoned . . . may for every such imprisonment maintain, by virtue of this act, an action or actions of false imprisonment, in any of his Majesty’s courts of record, against the person or persons by whom he or she shall be so committed, detained, imprisoned, sent prisoner, or transported, contrary to the true meaning of this act, and against all or any person or persons that shall frame, contrive, write, seal, or countersign any warrant or writing for such commitment, detainer, imprisonment, or transportation, or shall be advising, aiding, or assisting in the same, or any of them;† and the plaintiff in every such action shall have judgment to recover his treble costs besides damages, which damages so to be given shall not be less than five hundred pounds, . . . and the person or persons who shall knowingly frame, contrive, write, seal, or countersign any warrant for such commitment, detainer, or transportation, or shall so commit, detain, imprison, or transport any person or persons contrary to this act, or be anyways advising, aiding, or assisting therein, being lawfully convicted thereof, shall be disabled from thenceforth to bear any office of trust or profit within the said realm of England: and shall incur and sustain the pains, penalties, and forfeitures . . . provided . . . by the statute of provision and præmunire, . . . and shall be incapable of any pardon from the king.”

To the provisions in this clause there are two exceptions, annexed by so many immediately succeeding clauses:—one, in respect of persons, by their own agreement in writing, contracting to be transported;‡ the other, in respect of persons praying to be transported;∥ as it seems they were allowed to do in some cases, as still in Scotland, to save themselves from severer punishment.

There are also at present as many exceptions as there are posterior statutes authorising transportation, these exceptions having for their extent that of the authority given in each case by each respective statute: but, forasmuch as by a statute authorising the crown to transport offenders for a term therein limited, no authority, either express or implied, is given to “detain” any such offender, in any case, a moment beyond such limited time, the provisions in the Habeas Corpus act remain, in the instance of every convict so detained in New South Wales, in full force and virtue.

The several acts and modes of participation, by and in which a man may be a partaker in the crime of unlawful imprisonment, are here carefully enumerated and distinguished. As to acts, commitment is one; detainer is another. In the instance of the convicts, the commitment has not been unlawful: the detainer, after the expiration of their respective terms, has been, and still is. As to modes of participation, the description given of them will, I believe, be found sufficiently comprehensive. To appropriate them to this or that great person, in or out of office, would at present be an useless labour. The act has done its part: the books of the council board and the treasury—not forgetting the office of the secretary of state for the home department—these, with or without certain documents from the colony, and a little explanatory oral evidence, which need not be wanting, would do the rest.

It is almost superfluous to observe, that in intendment of law, every place, circumscribed or not by walls—every place in which, without sufficient warrant, a man is kept against his will—is, to this purpose—as for all purposes of justice it is most necessary that it should be—a prison.* If an island larger than all Europe were not to this purpose a prison, one of the two equally declared objects of the law would be defeated, and the whole text of it turned into a dead letter.

II.

Repugnancy of such Transgressions to Magna Charta, according to Coke and Comyns.

Thus saith common sense: and—what, fortunately for the present purpose, is much more indisputable and decisive—thus saith Lord Coke; whose comment, though the parliamentary text of it be of so much earlier date, is not here inapposite: since the Habeas Corpus act—an act having Magna Charta for its ground-work, has for its object no other than the affording an additional protection to this part of the rights which, by that sacred trumpet of the constitution, had already been proclaimed. Step by step, the oracles of the legal sage will be found advancing to the point, and at length coming fully home to it.

1. “No man,” says he, “shall be exiled, or banished out of his country; that is, Nemo perdet patriam, no man shall lose his country, unless he be exiled according to the law of the land.†

2. “No man shall be outlawed, made an exlex, put out of the law; that is, deprived of the benefit of the law, unless he be outlawed according to the law of the land.”‡ Their time of lawful punishment being expired, the quondam convict inhabitants of New South Wales, by being kept here against their wills, are they not made “to lose their country?” and, by being thus de facto removed out of the reach of the remedial arm of justice, are they not “put out of the law,” as effectually as if, after a wrongful judgment of outlawry pronounced against them, they had thus been deprived of the benefit of it ipso jure, i. e. falso jure?

3. “By this law of the land, no man can be exiled, or banished out of his native country, but either by authority of parliament, or, in case of abjuration for felony, by the common law.”∥ In the instance of each of these convicts, there is a time for and during which he has been “exiled by authority of parliament,” and so far as it is only for and during this time that he is kept in New South Wales, so far there is no injury. But, after the expiration of this time, all the rest of the time during which he is kept there, he is kept “in exile and in imprisonment, without authority of parliament.” He would be kept in exile, if, with the exception of this his native country, he had the choice of the whole world. But, besides being kept in exile, he is kept even, in most instances, in imprisonment, confined as he is to the insulated, however extended, region of New South Wales.

4. “This” [Magna Charta] “is a beneficial law, and is construed benignly: and therefore the king cannot send any subject of England, against his will, to serve him out of this realm; for, that would be an exile, and he should perdere patriam: no, he cannot be sent against his will into Ireland, to serve the king as his deputy there, because it is out of the realm of England: for, if the king might send him out of this realm to any place, then, under pretence of service, as ambassador, or the like, he might send him into the furthest part of the world, which, being an exile, is prohibited by this act.”§ To send the meanest of these convicts to this “furthest part of the world,” against his will, though it were to be governor there, would thus be an offence: an offence, in the first place, against Magna Charta; in the next place, against the Habeas Corpus act. These men, not one of whom Majesty itself could order to continue there, were it even to be governor there, against his will, these are the men whom, by thousands, his Majesty’s ministers are keeping there still in bondage.

5. If “a felon . . . is under custody of the king’s officer [it] is an imprisonment in law.”§ He that is under lawful arrest is said to be in prison, although it be not intra parietes carceris.¶

6. “Imprisonment doth not only extend to false imprisonment, and unjust, but for detaining of the prisoner longer than he ought where he was at first lawfully imprisoned.”*

7. “If any man, by colour of any authority, where he hath not any in that particular case, arrest or imprison any man, or cause him to be arrested or imprisoned, this is against the act; and it is most hateful, when it is done by countenance of justice.”

Had Lord Coke been a prophet as well as a lawyer, he could not have pointed more surely to the present case.†

III.

Transgressions in Breach of the Petition of Right, 3 C. I. c. 1.

In this statute, among the petitions contained in § 10, after the recital that “commissions” had then of late been “issued forth” “for proceeding by martial law,” is this—“That hereafter no commissions of like nature may issue forth to any person or persons whatsoever, to be executed as aforesaid, lest by colour of them any of your Majesty’s subjects be destroyed, or put to death, contrary to the laws and franchise of the land.”

After this comes the concluding section (§ 11,) which is in these words:—

“All which they most humbly pray of your most excellent Majesty, as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, that the awards, doings, and proceedings, to the prejudice of your people, in any of the premisses, shall not be drawn hereafter into consequence or example; and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, that in the things aforesaid, all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honour of your Majesty, and the prosperity of this kingdom. Quâ quidem petitione lectâ, et plenius intellectâ, per dictum Dominum Regem taliter est responsum in pleno Parliamento, viz. Soit droit fait come est desire.”

In full contradiction to this statute, it appears from the journal of the Judge-Advocate, that, in April 1790, in New South Wales, by the governor of New South Wales, martial law was actually proclaimed.‡ In the petition of right, the territory on which the commissions thus branded with illegality had been executed, stands described by words of no greater amplitude, indeed, than the words “this realm.” Of colonies no mention is there made:—good reason why, no such dependencies being at that time in existence.∥ But, if the principles already laid down in this behalf are just, no just reason could be built on this ground, for regarding the petition of right as being in this point of view inapplicable to New South Wales. In the first place, what should hinder that settlement, though at the distance of the antipodes, from being considered as parcel of “this realm?” Not local distance: for this, as we have seen already, did not hinder the whole of the intended plantations in America from being parcel of the manor of East Greenwich. In the next place, among the petitions contained in the concluding section above quoted, is this—“That your Majesty will also vouch-safe to declare that the . . . proceedings to the prejudice of your people in any of the premisses shall not be drawn hereafter into consequence or example;” and moreover. “that in the things aforesaid, all your officers and ministers shall serve you according to the laws and statutes of this realm.”

On this, as on all other occasions of necessity, real or apparent, I impute not any moral blame to the governor: moral blame might, for aught I know, have been imputable to him, had he acted otherwise.§Elsewhere, however—I mean to his Majesty’s “officers and ministers” here at home—I see not how it can be that moral blame should not be imputable: I mean, if, under constitutional blame, moral be included—if a regard for the constitution of their country—for the “laws and statutes according to which” they are thus pledged “to serve” their royal master—have any sort of place among the articles of their moral code. Amongst the documents which composed the legal armature of the governor, was any such power as that of declaring martial law, in that nursery of despotism, included? If so, then has there been, in that behalf, on their part, an open and point-blank breach made in this constitutional and hard-earned bulwark of the constitution. Again, be this as it may, when with or without precedent authority, from these his Majesty’s “officers and ministers,” martial law had actually been proclaimed, was information of such proceeding officially transmitted to them in consequence? That, in one way or other, at one time or other, information of this fact has come to their cognizance, is beyond dispute: if not by the next conveyance, and in the way of official correspondence (an omission not naturally to be presumed,) at any rate it was received by them in 1798, through the medium of the press. It is therefore at any rate with their knowledge that the petition of right has thus been violated. On the occasion of this, any more than of so many other exercises of unconstitutional powers, have they ever condescended to apply to parliament—I do not say for precedent authority—but so much as for an ex post facto indemnity? Not they indeed: no, not in any one of the multitude of instances that have called for indemnity at least, if not for punishment.

IV.

Transgressions in Breach of the Declaration of Rights.*

This statute, so familiar to English ears, and once at least so dear to English hearts, under the name of the Bill of Rights, opens with the recital of twelve heads of transgression, “whereby the late King James the Second, by the assistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert . . . the laws and liberties of this kingdom.”

Of those twelve heads of royal transgression, of which in those days England had been the scene, seven at least present themselves, as having had their counterparts in New South Wales: with this difference, that, in the most material instances, the transgressions that at that time gave birth to the Revolution in this our island were but peccadillos in comparison of the enormities acted on that distant theatre. In England, the subversion was but attempted: at the antipodes it has been completed—complete in design, from the first moment—completed in the execution, so soon as occasion called for it: the subversion of English liberties having been the very object and final cause of the foundation of this English colony. The words of the clause, which it became necessary to copy, present another difference, but happily too striking a one to every loyal eye to require any further mention of it.

No. 1. Transgression the 1st in England.—“By assuming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of parliament.”

Analogous Transgression in New South Wales.—Exercising legislative power by the hand of the governor there, without authority from parliament, in an habitual train of enumerated instances, to the number of sixty or seventy, or upwards, as already exemplified in § 10: besides other instances, not as yet specifically ascertainable. The word analogous requires correction. It is evident enough how inconsiderable the transgression is which consists in the mere act of dispensation or suspension, put upon here and there a law already existing, in comparison of an habitual and positive exercise of an illegal power of legislation, in all cases.

No. 2. Transgression 2d in England.—“Committing and prosecuting divers worthy prelates, for humbly petitioning to be excused from concurring to the said assumed power of suspending and dispensing with laws.”

Analogous Transgression in New South Wales.—Confining within this land of illegal bondage, and even without “prosecution,” punishing by arbitrary power, viz. with whipping—divers persons formerly guilty, but who had been restored, in point of law, to the condition of innocent persons, by the expiration of their terms of legal punishment.†

No. 3. Transgression 3d in England.—“Issuing and causing to be executed, a commission under the Great Seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes.”

Analogous Transgressions in New South Wales.—1. Instituting a court called a civil court, without authority from parliament.‡

2. Punishing divers persons, on divers occasions, in divers manners, by the single authority of the governor, for pretended offences created by so many acts of legislative authority exercised by the governor: for example, in some instances, by destroying stills,* pulling down houses,† destroying oars. These, though on the mention of them presenting the appearance rather of “outrages” committed by individuals, were among the acts done by the governor in the exercise of these illegal powers.

No. 4. Transgression the 4th in England.—“Levying money to and for the use of the crown, by pretence of prerogative, for other time, and in other manner, than the same was granted in parliament.”

Analogous Transgression in New South Wales.—Levying for the use of the crown a tax of 6d. per bushel on corn, and other taxes, applied towards the expense of building a jail at Sydney.‡

No. 5. Transgression the 7th in England.—“Violating the freedom of election of members to serve in Parliament.”

Analogous Transgression in New South Wales.—Legislation, exercised by the governor alone, without authority from parliament at home, or the concurrence of any assembly, standing in the place of parliament, in New South Wales.

No. 6. Transgression the 10th in England.—“Excessive bail . . . required . . . to elude the benefit of the laws made for the liberty of the subject.”

Analogous Transgression in New South Wales.—Married men, whose terms were expired, not suffered to quit the colony, without finding security for the maintenance of their wives and children, if left behind.∥

No. 7. Transgression the 11th in England.—“Illegal and cruel punishments inflicted.”

Analogous Transgression in New South Wales.—Perpetual exile, accompamed with perpetual confinement and perpetual slavery, inflicted on his Majesty’s subjects, altogether without cause; whatever offences they had been convicted of, having been previously expiated by appropriate lots of punishment, marked out by law. Of the mere endeavour to escape from this combination of illegal and cruel punishments—the humble and peaceable endeavour without anything like force—an additional lot of illegal punishment, illegal whipping, was the appointed consequence.

Under this head, the enormities imputed to James the Second were mere peccadillos, in comparison of the more palpably “illegal,” more “cruel,” and above all prodigiously more numerous enormities of the like complexion, committed under—My pen refuses to complete the sentence.§

After the statement of the several heads of transgression by which the rights in question had been violated, the act proceeds to declare the rights themselves in certain articles, the first of which is in these words: “The pretended power of suspending laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.”—But, if simple suspension or dispensation—(i. e. abrogation for a time in individual instances) be thus illegal, how much more flagrant must be the illegality of positive enactment, and that without any limitation as to the nature of the case?

In § 64, after declaring the rights and liberties in question to be “the true ancient and indubitable rights of the people of this kingdom,” the act concludes with “declaring and enacting,” that “all officers and ministers whatsoever shall serve their Majesties and their successors according to the same in all times to come.”

The wretches in question, whatever may have been their crimes, were they not—are they not still, and as truly as the very best of their betters, so many individuals of “the people of this kingdom?” And thus it is, then, that his present Majesty, the venerable and beloved successor of the royal founders of these rights and liberties, has been “served” by “the officers and ministers of his time:” thus it is, that the “ancient and indubitable rights” of this helpless and defenceless portion of his people, have been respected and protected by these his “officers and ministers.”

IV.

Transgressions in breach of the several Transportation Acts, by which that Punishment has been appointed for limited lengths of time.

It would be a double charge of the same article, to state these as so many acts of delinquency, distinct from, and over and above those already referred to, in their character of transgressions against the Habeas Corpus act. It is by these several statutes, that the limits of legal punishment are marked out, in the several respective instances; it is in the transgression of those limits in each instance that consists the violation offered to that sacred law.

It would, moreover, be a waste of paper to give, by a string of references, a specific list of the several particular laws thus transgressed: it would be making so many useless transcripts, from the already existing indexes and abridgments.

In this complicated body of enormity, perspicuity requires that the distinction between the two main branches be kept in view. The one consists in the system of groundless, as well as illegal punishment; the other in the system of illegal legislation and government:—the former, in the oppression exercised upon individuals; the latter, in the usurpation exercised by the servants of the crown over the authority of parliament:—the former, in the wound given to the penal branch, and through that alone to the constitutional branch of the law; the other in a system of delinquency, striking more directly against the constitutional branch. The relation of the latter system of transgression to the former, is that of a means to an end: it was for the purpose of the oppression exercised upon individual subjects, that the authority of his Majesty in parliament was thus usurped by his “officers and ministers.”

One thing, in regard to the question of law, requires particularly to be observed: which is, that though the right of the crown to legislate in this new-founded colony, without the concurrence, either of the two other estates of the supreme legislature in the mother country, or of a subordinate assembly of states in the colony, were as clear as, I flatter myself, the contrary has been made out to be, the stain of illegality would not even thus be cleared away: for, admitting, on the part of the King’s governor of New South Wales, the right of legislating to every other effect imaginable, even then no such supposition could be entertained, consistently with any sort or degree of supremacy on the part of parliament, as that of a right of making ordinances in New South Wales, in direct repugnancy to the several acts of parliament, by which express limitations stand annexed to the several lots of punishment respectively appointed by those acts. And as to the Habeas Corpus act, should even the letter of that sacred charter be (as I can scarce conceive it to be) deemed not to have been violated, the violation of the spirit of it would still remain as plain and palpable, as it could have been in any of the cases, the experience of which may be supposed to have given occasion to the law.

As to everything that concerns motives and extenuations—motives by which any of the transgressors may be supposed to have been led into transgression—extenuations that may be supposed capable of being grounded on those motives—discussions on any such topics as these, might in the present state of the business be regarded as premature. The essential subject of solicitude is the Constitution: the essential operation is the healing the wound that has thus been given to it: that object being accomplished by the requisite votes and laws, everything else may in comparison be deemed of light importance; and may without much danger be left to float upon the tide of popular and party favour. The object on no account to be lost sight of is futurity: that being provided for at any rate, it is a matter of little comparative moment what degree of indulgence may accompany the retrospect, which cannot altogether be omitted to be taken of the past. The fact of transgression, declared, then would come the consideration of the censure, if any, and the deductions or set-offs to be made, on the score of motives, intentions, or past services, real or supposed, in other lines. All would be lost—the constitution would be betrayed and sacrificed—if, dazzled by the lustre that circles the head of this or that arch-delinquent, the eye of parliament were to show itself insensible to the distinction between right and wrong, and the quality of the criminal were to be accepted as a warrant for the crime. It was not in the case of James the Second—it was not in the case of that misguided, yet most religious, though so unhappily religious king: it saved him not from forfeiture, much less from verbal censure. It remains to be seen, whether the constitution, which, in the seventeenth century, even a king was punished and expelled for violating, is to be complimented away, and made a sacrifice of, to the pride of this or that domineering subject, in the nineteenth century—in this maturer age, in this supposed period of constitutional improvement, and more firmly established rights.

Compare the case of this immense, yet too real, because uninspectable Bastile, with that of the scene of kindred abuse in miniature,—the home-jail thus hyperbolized and stigmatized—in Coldbath Fields. See what was the conduct of parliament in the one case, and from thence say what it ought to be—what, if consistency be the rule, it cannot but be in the other. Information to parliament of mismanagement in a prison—a lawful prison—employed as such under the law for the suspension of the Habeas Corpus act. No principle of the constitution violated—no authority setting itself up to make ordinances repugnant to the laws, and subversive of the authority of Parliament. The alleged cause of the abuse, malpractices on the part of a single jailor, negligence or connivance on the part of certain magistrates, his official superiors. On this ground—on this single ground—an address is presented to his Majesty by the House of Commons, for an inquiry into the management of this jail; an address presented with the express concurrence of the chancellor of the exchequer; and a commission of inquiry is issued accordingly—issued by the crown,* and executed.†

On the present occasion, his Majesty’s subjects kept by hundreds, ere now, perhaps, by thousands, in a state of exile and bondage, without end and without cause: the four grand bulwarks of the constitution all broken through, for the very purpose of this causeless and endless punishment; the authority of parliament treated by the servants of the crown with a contempt already become habitual and rooted:—is the supposition so much as an endurable one, that after information thus exhibited, though it be by so obscure a hand, parliament should sit still and silent, exactly as if nothing amiss had ever happened?

When on that occasion the motion was made for the address, the delicacy of the chancellor of the exchequer of that day would not suffer him to refuse his declared concurrence with it.‡ Would the supposition be so much as a decent one, that the Chancellor of the Exchequer of the present day would show so little respect to the precedent thus set by his predecessor, as to refuse to the very vitals of the constitution that attention which it was then not thought decent to refuse to the police of one of the prisons.∥

[* ]Letters to Lord Pelham, giving a comparative view of the system of Penal Colonization in New South Wales, and the Home Penitentiary System, &c.

[† ]Letter I. p. 90.

[‡ ]43 Geo. III. c. 15, 29th December 1802.—“An act to facilitate and render more easy the transportation of offenders.”

“Whereas it is expedient that provision should be made for transferring the services of offenders transported in his Majesty’s ships or vessels, in cases where no contract is entered into, or security given in respect of such transportation, and that his Majesty should therefore be empowered to nominate and appoint persons to have a property in the service of such offenders . . . . be it enacted . . . . . that whenever his Majesty shall please to give orders for the transportation, in any ships or vessels belonging to his Majesty, of any offender or offenders, who already have, or hereafter may be sentenced to be, transported to any place or places within his Majesty’s dominions beyond the seas, it shall be lawful for his Majesty, by any order under his royal sign manual, to give, if he shall think fit, to any person or persons nominated and appointed for that purpose, in such order, a property in the service of any such offender or offenders, for such term or terms of life or years, or any part thereof respectively, for which such offender or offenders was, or were ordered to be transported, as to his Majesty shall seem fit; and on such nomination and appointment, such offender or offenders may be delivered to the person or persons so nominated and appointed, without any security being required or given for the transportation of such offender or offenders; and every person so nominated and appointed, and his or their assigns, shall have the like property in the service of such offender or offenders, as if such person or persons had contracted and given security to transport such offender or offenders, in the manner required by the act of the twenty-fourth year of his Majesty’s reign, intituled, An act for the effectual transportation of felons and other offenders, and to authorize the removal of prisoners in certain cases, and for other purposes therein mentioned, or any other law now in force; any thing in the said act, or any other act or acts, to the contrary notwithstanding.”

[* ]Letters to Lord Pelham, &c.

[* ]Letters to Lord Pelham, &c.

[* ]Speaking of space, I measure it here by time: for, of the two quantities, time—quantity of it necessary for intercourse—is the only one of intrinsic importance with a view to practice.

[* ]13th May 1787. Collins, I. 3.

[† ]27 Geo. III. c. 2.

[‡ ]Outrages? What a word for the basis of a system of legislation! “Outrages,” too, as well as “misbehaviours:” when the import, vague and declamatory as it is, it is at any rate included in misbehaviours.

[∥ ]“And whereas it may be found necessary, that a colony and a civil government should be established . . . . And that a court of criminal jurisdiction should also be established . . . . . with authority to proceed in a more summary way than is used within this realm, according to the known and established laws thereof . . . . . .” Section I. Preamble.

[§ ]“This realm?” What realm? Of the impropriety and inexplicability of the term, notice will be taken a few pages farther on.

[* ]24 Geo. III. sess. 2, c. 56, § 1, 13: which it may have been till of late; but could not have been in the case of the ship Glatton, which, having sailed in September or October, with about 400 convicts, without any legal power for consigning them to bondage, gave occasion for the act passed in December, by which legality has been intended to be given (and therefore I conclude, without having yet seen it, was given) to the transaction, by an ex post facto law. [Not given: see Preface.]

[† ]Letters to Lord Pelham. Letter I. p. 190.

[‡ ]II. Collins, 286, 295.

[§ ]I. Collins, 159, 488; II. 33.

[* ]27 Geo. III. c. 2.

[† ]6 Geo. III. c. 25, §7.

[‡ ]1787.

[∥ ]14 Geo. III. c. 83.

[§ ]13 Geo. II. c. 4, § 20. No. 1740.

[¶ ]The words “are hereby determined to be subject” might, if they had stood alone, have been taken for words of mere adjudication. . . . But before these come words of enactment “shall . . . . be subject.” From the non obstante clause it might again be argued, that nothing more was meant by this provision, than to save those colonial laws from being overruled by the other provisions in the same statute: and therefore, that the effect of this section in it was nothing more, than to leave the legality of these colonial regulations upon its own bottom. But upon examining the act it will be found, that there is not any part of it to which the provision in this section bears any specific or effectual repugnancy. It is only from some perfectly vague and inconclusive inferences that any such apprehension could arise. But it requires little acquaintance with our statute law to have observed, how ready such apprehensions are to present themselves, and how ready the draughtsman is to quiet them with the customary non obstante opiate. Seven years had at this time scarce elapsed, since parliament, in the very act of supplying with money the embryo colony, sat still and saw the crown monopolize the supplying it with the powers of government. But at this latter period (1740) the tide, it seems, had already turned: and the wonder will be the less, that 34 years afterwards, when a new constitution was to be given to Quebec, parliament exercised the whole authority, and took upon itself the whole management of the business.

Will it be said—the confirmation of these colonial laws was necessary, so far and so far only, as they undertook to bind others of his Majesty’s subjects, natives of the mother country, visiting the colonies for a time only in the course of office or of trade? I answer in the words of the court of King’s Bench in a case that will presently be mentioned.a Among the “propositions, in which both sides seem to be perfectly agreed, and which indeed are too clear to be controverted,” is “The 4th, that the law and legislative government of every dominion equally affects all persons and property within the limits thereof; and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the law of the place. An Englishman in Ireland, the Isle of Man, or the Plantations, has no privileges distinct from the natives.” So far Lord Mansfield. If, then, these American laws were binding upon anybody—were binding upon Americans, they were already binding upon Englishmen. They needed no act of parliament, to confirm them in their application to Englishmen and so forth.

[* ]See Lind’s Remarks on the acts of the 13th parliament relative to the colonies, 1775.

[† ]2d Inst. 54.

[* ]Coke’s Reports, part 5, p. 64. Case of the corporation of St. Alban’s, called by him Clark’s Case.

[† ]There was something more in this than in ordinary cases. A snake was seen, or thought to be seen, in the grass. Even in that age of general abjection and judicial dependence, the judges spied it out, and took fire at it. What little constitutional blood a man could at that time find in his veins, it called up in their cheeks. More is meant (say they) than meets the ear. This is an attack upon Magna Charta: that peculiar and inestimable security of Englishmen, which (so often has it been broken into) has more than thirty times been confirmed. “C’est ordinance est encounter le statute de Magna Charta, cap. 29. Nullus liber homo imprisonetur. Quel act ad estre confirm, et estably oustre 30 foits, et lassent le plaintiff ne poit alter la ley in tiel case.”

[‡ ]See Lind on the Colonies, p. 94, 1775.

[* ]The documents printed in that list would not be found all of them to come within this description: but of one sort or other there are 136. The title of the book in my possession is—“Copies taken from the Records of the King’s Bench, of Warrants by Secretaries of State,” &c. 4to, 1763. No bookseller’s name.

[* ]See Lind, Remarks on the Acts of the 13th Parliament, 1775.

[† ]27 Geo. III. c. 2.

[* ]Collins, p. 251.

[† ]Letter I. to Lord Pelham, p. 193.

[* ]Obliged to copy from the act the words, “this realm,” it is impossible to avoid noticing, to what a degree even the scanty scrap of power undertaken to be created by it, is torn in tatters by these two words:—a proof how little of the mind of the legislature was bestowed upon this business, and how slight any inference that can be drawn from what was actually done by it, to what was intended or in contemplation to be done. “This realm”—what realm? against the law of what realm must an act be an offence, triable under the court so constituted? Against the law of England? of Scotland? or of Great Britain, i. e. of both together?—If an act, being an offence—not against any law passed since the Union, but only against the law of England, as it stood before the Union;—if such an act be an offence triable in this court, so must an act which, though not an offence against the English law, is an offence against the Scottish law. To point out the confusion, is the only thing to the present purpose: to attempt to clear it up would take a volume.

Injuries purely civil, might, for aught I know, be “misbehaviours,” but are they “misdemeanours?” I mean in the legal sense of the word, according to the law of England. Take for example acts purely negative. Non-payment of debts: non-performance of contracts, &c. &c. Blackstone, at least, is as decided as possible in the negative. [B. IV. ch. 1.] And how stands this matter under the law of Scotland?

England, I take for granted—England alone—was looked to as the standard of everything that was to be done: into Scotland, not so much as the mind of our legislators had ever travelled.

Offences, involving, in the description of them, denominations common or proper—names of places, persons, and things—things real, things incorporeal, i. e. fictitious—such as offices, &c. &c., may not improbably be found to be incommissible (i. e. acts, though of like tendency, may not be offences, or not punishable) in territories where such places, persons, things, &c. are not to be found. Even in England, Burn speaks of English laws rendered in this way inexecutable:—instancing those “which appoint an offender to be whipped by the common hangman—where perhaps there is no such officer.” [Burn’s Justice, Conclusion.] Instances are innumerable: I give this as most likely to be familiar. Offences punishable in England by an ecclesiastical court only—are they “misdemeanours” in New South Wales?

Points like these might be started, enough to fill a volume: all unresolved, and many unresolvable. The whole act is but a vast mine of nullities and jeofails. Found a colony out of an act like this? Build a house as well out of a load or two of brick-bats.

[* ]Collins, II.

[† ]I mean legal power, and under the constitution, while it stands: If indeed it falls, and despotism rises in the place of it, then indeed such power as that in question exists at any time, without difficulty: and è converso, if such power exists, the constitution is at an end, and despotism stands in the place of it.

[* ]Campbell, v. Hall, Cowper’s Reports 1783.

[* ]Pronouncing the laws of every infidel (i. e. non-christian) country void in the lump, and so forth: Turkey, Hindostan, and China, for example. Whenever the khan of the Tartars sounded his trumpet after eating his dinner, it was to allow other princes to eat theirs. When this christian barbarian thus sounded his trumpet, it was to prohibit other potentates from eating their dinners: at least from eating them in peace and quietness. All infidels (he says) are perpetual enemies.

[† ]Speech upon American taxation, 19th April 1774; 3d edition, 1775, p. 54.

[* ]‘All the lands within the precincts of the colonies (viz. between 34 and 45 degrees of latitude) were on petition to be granted by the king,’ “to be holden of the king, as of his manor of East Greenwich, in Kent, in free and common soccage only, and not in capite.” Lind, Remarks on the Acts relating to the Colonies, p. 94.

[† ]Another example may help to show the force and virtue of such exercises of regal power, in the character of precedents. On the 23d of March 1609, about three years after the first charter, a second is granted to the same company, with additional powers. Among these is a power to any two of the council of the company resident in England, to send out of England—to send out to their colony—“there to be proceeded against and punished, as the governor, deputy, or council there shall think meet”—any persons who, after engaging in the service of the company, and having received earnest-money, shall either have refused to go out thither, or have returned from thence.a

What cared these men (I mean the crown-lawyers who drew this charter) about the St. Alban’s case, and the court of judicature that decided it? As little as about Magna Charta which it expounded: as little as their successors, who drew the New South Wales Act for Mr. Pitt.

[* ]Paley.

[* ]In whatever sense the word this realm be understood. Vide supra, p. 264.

[* ]Letter I. to Lord Pelham, p. 175 to 177.

[† ]Ib. p. 190 to 195.

[* ]Collins, I. p. 74: July 1789.—“Notwithstanding little more than two years had elapsed since our departure from England, several convicts about this time signified that the respective terms for which they had been transported had expired, and claimed to be restored to the privileges of free men. Unfortunately, by some unaccountable oversight, the papers necessary to ascertain these particulars had been left by the masters of the transports with their owners in England, instead of being brought out and deposited in the colony; and as, thus situated, it was equally impossible to admit or to deny the truth of their assertions, they were told to wait till accounts could be received from England; and in the meantime, by continuing to labour for the public, they would be entitled to share the public provisions in the store. This was by no means satisfactory; as it appeared they expected an assurance from the governor of receiving some gratuity, for employing their future time and labour for the benefit of the settlement.”

[† ]See Collins, II. 22, 131, 267, 331.

[‡ ]Voyage, Appendix, p. lv.

[* ]Quere, At what time, and by what means, and by whom, were these facts ascertained at last, for the purpose of their insertion in the abovementioned printed list. In the printed voyage, the date on the title-page is 1789: the date in the dedication is the 25th of November in that year. Among the materials of which the publication is composed, all the other articles at least were transmitted from New South Wales. If it was from New South Wales that this document was transmitted with the rest, the time of its being sent from thence must have been considerably anterior to the time in question. On this supposition, they must actually have been in New South Wales, at the very time when “it was found that they were left by the masters of the transports with their owners in England” Collins, I. 74.

[† ]I cannot take upon myself to affirm with absolute certainty, whether the sense, in which the passage presented itself to me, be in all parts correct. To keep clear of misrepresentation, I here transcribe it at full length—

“The convicts, whose terms of transportation had expired, were now collected, and by the authority of the governor informed, that such of them as wished to become settlers in this country should receive every encouragement; that those who did not, were to labour for their provisions, stipulating to work for twelve to eighteen months certain; and that in the way of such as preferred returning to England no obstacles would be thrown, provided they could procure passages from the masters of such ships as might arrive; but that they were not to expect any assistance on the part of government to that end. The wish to return to their friends appeared to be the prevailing idea, a few only giving in their names as settlers, and none engaging to work for a certain time.” Collins, I. 169.

[* ]See Letters I. and II. to Lord Pelham. “And, (on the occasion just mentioned (No. 21,) of the expirees “who having withdrawn themselves from the public work immediately upon the expiration of their terms of legal servitude, were punished and ordered again to labour”)—“they seized,” says the historian immediately after, “the first opportunity of running away.” “We were well convinced,” it is added, “that by these people and those who harboured them” [viz. the expiree settlers in general] “every theft was committed.” I. p. 474.

[* ]It is almost the first discovery of the kind mentioned, and I believe quite the last: unless it be that in the instances of the few permissions of departure granted to expirees, the recognition of such a change may, as far as those instances go, be supposed to be included.

[† ]“Because, these courts having no more jurisdiction over these crimes than private persons, their proceedings thereon are merely void, and without any foundation.”

[‡ ]Exile, confinement, and bondage—inflictions perfectly distinct—are the ingredients of which (as already noted) the complex punishment styled transportation is composed. It has been so at all times, and under both systems: though under the new system the two last-mentioned ingredients possess a degree of inflexibility, strongly contrasted with their laxity under the old. When the transportation was to America, the bondage might be bought off or begged off, in the whole or in any less proportion, by agreement with the assignee of the property in the convict’s service:—the bondage, which was the principal infliction of the two; and with it all the accessory accompaniments. Under the new system, neither the one nor the other is remissible, but by the act of the agent of the crown, nor therefore (regularly at least) but upon public grounds. Under the new system, again, over and above the extraordinary degree of tension thus given to these two secondary branches of the punishment, the primary branch, the exile, has received a still more decided enhancement, by the addition made to the duration of it. For, supposing the confinement in the penal colony to be continued, as it always has been, to the legal end of each penal term (with or without the bondage, according to the fluctuating decision of the local despot,) it follows, that under the new system, by the mere change of local situation—I mean by the substitution of the superlatively distant, and comparatively inaccessible, territory of New South Wales, to the so much nearer and more accessible coasts of British America—an addition has thus been made to the exile—an addition which can never have been so little as four months, and may have amounted to years: and in future instances may at all times amount to any number of years.

In the case of those whose offences were prior, in point of time, to the year 1787, (the date of the act for the foundation of this colony,) this addition, though by that act rendered conformable to law, yet, not having anything like necessity for its justification, could not by any act be rendered conformable to natural justice.

Even in all subsequent instances, though the injustice was at an end, an addition of no small magnitude has been made, in this obscure and indirect mode, to the severities of the penal system. The severer the additional inflictions thus irregularly introduced, though in a manner not absolutely repugnant to law, the stricter, one should have thought, should have been the caution observed, to avoid adding, to the imputation of legal severity, the reproach of wanton and oppressive illegality and injustice. That the eyes of men in power were really more or less open to the distinctions thus confounded by their practice, is evidenced by the discriminations reported in the text.

[* ]31 C. II. c. 2, § 12.

[† ]To the applicability of the habeas corpus act to the present case, the words “sent prisoner,” “such imprisonment,” and “being so imprisoned,” furnish an objection, which it is easy enough to see, and, from the other words of the act, not very difficult to refute. The discussion has been drawn out at length, but would be too long for the present purpose.

[‡ ]§ 13.

[∥ ]§ 14.

[* ]Inst. 46, 589.

[† ]Inst. 46.

[‡ ]Ibid.

[∥ ]II. Inst. 47.

[§ ]Ibid.

[¶ ]II. Inst. 589.

[* ]II. Inst. 53.

[† ]“Every restraint of the liberty of a freeman” (says the Abridgment of Chief Baron Comyns) “will be an imprisonment,”—“though it be in the high street, or elsewhere, and he be not put into any prison or house.” Besides the authority of Lord Coke, as above, he quotes two others (Cro. Car. 210; per Thorpe: Fitzh. Bar. 310.) I have them not at hand, nor is it material. Comyns is a channel that adds to the authority of the original source, instead of weakening it. And (what, if there could be a doubt, would render his interpretation a still more apposite one than any that could have been given by Lord Coke) Comyns wrote after the Habeas Corpus act.

They would both of them have expressed themselves more fully, though scarcely more intelligibly, if they had said—Every restraint of the liberty of locomotion, will be an imprisonment: every restraint upon the liberty of locomotion, on the part of a freeman, i. e. of a man free from such restraint by law, will be an act of false imprisonment.

[‡ ]“The Lieutenant-governor, immediately after the loss of the Sirius, called a council of all the naval and marine officers in the settlement, when it was unanimously determined that martial law should be proclaimed; that all private stock, poultry excepted, should be considered as the property of the state; that justice should be administered by a court-martial to be composed of seven officers, four of whom were to concur in a sentence of death . . . . The day following, the troops, seamen, and convicts, being assembled, these resolutions were publicly read, and the whole confirmed their engagement of abiding by them, by passing under the king’s colour, which was displayed on the occasion.” Collins, I. 104.

[∥ ]Charters had been obtained, as above, and in a certain degree acted upon; but any settlement, understood to be a permanent one, had scarce as yet been made.

[§ ]In a passage in the third Institute, written without mention of the petition of right, and therefore it may be presumed before the passing of it, “If a lieutenant,” says Lord Coke, “or other that hath commission of martial authority, in time of peace, hang, or otherwise execute, any man by colour of martial law, this is murder; for this is against Magna Charta, cap. 39. . . and here the law implieth malice.” The law and Lord Coke may imply malice as they please: in a case such as that before us, God forbid I should be malicious enough to imply it!

[* ]1 W. III. Sess. 2, c. 2.

[† ]Supra, § 12.

[‡ ]Coll. I. p. 7.

[* ]Coll. I. 450.

[† ]Ib. 300, 471, 482.

[‡ ]Coll. II. 41, 214, 283, 297.

[∥ ]The reasonableness of the obligation, supposing the imposition of it had been guarded from abuse by proper checks, and warranted by law, can never amount to a justification of such an act of coercion, limited as it was by no such checks, and sanctioned by no such warrant. And whence came the pretence for imposing it? From the very act of those who, in bringing forward any such plea, must take advantage of their own wrong, ere they could avail themselves of it. By that conjugal affection, by which these poor females were in a manner compelled to avail themselves of the means afforded them for sharing in the exile of their husbands, they were enticed into this cage; and, out of the physical bar, which there opposed itself to the return of the females, a legal bar was thus constructed, for preventing the return of both sexes, males as well as females.

[§ ]The most striking, of the few instances of inordinate punishment that could have been alluded to in this article of the bill of rights, was the whipping (certainly a most severe one) of Titus Oates. But the crime for which Oates thus suffered was but one, in a system of murders of a most terrific and atrocious complexion,—murder by the hand of justice, though left out of that denomination in the early and dark ages of our law. It would have required the united enormities of a dozen or a score of the most guilty among the colonists of New South Wales, to make up a mass of guilt equal to that which issued from this one murderous tongue.

In point of illegality, the utmost that can be alleged, against the penal inflictions thus condemned by the Bill of Rights, is an excess—on the side of severity indeed, but in the exercise of a power plainly discretionary, and having by law no specific limits: in the case of the modern system of illegal punishments, the legal portion had in every instance been marked out by the clearest limits: and it is by the palpable transgression of these limits, and by a course of contempt, as direct and pointed as it is possible to manifest, towards the repeatedly declared will of the supreme power by which these limits had been marked out, that the enormities, thus censured by the ancient constitution, have been committed in these our days.

In point of multitude of transgressions, for every instance of punishment, in respect of which illegality could thus have been imputed to the penal system of that time, a hundred at least might be found, of the more cruel and more palpably illegal masses of punishment, with which the administration of penal justice has thus been stained.

[* ]2d September 1800; printed by House of Commons. Order dated 18th December 1800.

[† ]Report of commissioners, dated 1st November 1800; printed as above.

[‡ ]Parliamentary Register, 22d July 1800.

[∥ ]Without a thought of any application to existing circumstances, I happened but now to open the reign of Charles I., in Hume. If prejudices of any kind be deemed imputable to that prince of historians, they will hardly be of that cast, which would dispose a man to exaggerate the mischief resulting from a transgression of the limits prescribed by the constitution to the power of the crown. Whether to that dispassionate, acute, and comprehensive mind, the wounds given to the constitution on the ground of the penal colony would have presented themselves as matters of indifference—as incidents in which the body of the people have no concern—is a question, the answer to which may be read, I should suppose, without much difficulty, in the following passages:—

Vol. VI., 8vo, p. 316, anno 1637. Speaking of ship-money, “What security,” say the arguments which he exhibits as conclusive, “what security against the further extension of this claim? . . . Wherever any difficulty shall occur, the administration, instead of endeavouring to elude or overcome it by gentle and prudent measures, will instantly represent it as a reason for infringing all ancient laws and institutions: and if such maxims and such practices prevail, what has become of national liberty? What authority is left to the great charter, to the statutes, and to that very petition of right, which in the present reign had been so solemnly enacted by the concurrence of the whole legislature?” So far Hume. The breach of those two constitutional safeguards constituted in those days, according to the historian, the superlative of tyranny. The Habeas Corpus act and the Bill of Rights have since been added. To triumph over those more ancient laws, the violation of which cost Charles the First his crown and life, was not enough: the violation of the Habeas Corpus act, and the Bill of Rights—a course of systematic violation persevered in for fourteen years—has accordingly been added to the triumphs of ministers in these our times.

Along with those two fundamental laws, other “statutes” are mentioned by the historian in general terms: and, as an aggravation of the tyranny, the then present reign is noted as the period that gave birth to the Petition of Right, one of those two fundamental laws. Statutes of inferior account, in crowds, contribute to swell the triumph obtained over law (with grief I say it) in the now present reign: and among them the several transportation acts, to which, in numbers too great for reference, this same reign has been giving birth.

Ib. p. 314, anno 1637.—“It was urged,” . . . continues the historian, “that the plea of necessity was in vain introduced into a trial at law; since it was of the nature of necessity to abolish all law. . . .” p. 315. “And as to the pretension that the king is sole judge of the necessity, what is this but to subject all the privileges of the nation to his arbitrary will and pleasure? To expect that the public will be convinced by such reasoning, must aggravate the general indignation, by adding, to violence against men’s persons, and their property, so cruel a mockery of their understanding.”

Ib. p. 421, anno 1641.—“In those days,” observes the historian, “the parliament thought”—and according to him—“justly thought that the king was too eminent a magistrate to be trusted with discretionary power, which he might so easily turn to the destruction of liberty. And in the event it has hitherto been found, that, though some sensible inconveniences arise from the maxim of adhering strictly to law, yet the advantages overbalance them, and should render the English grateful to the memory of their ancestors, who, after repeated contests, at last established that noble, though dangerous, principle.” Established it? So they thought (it seems) in their times: so Hume thought (it seems) in his time. In these our times, does that valuable principle remain established? or, after having been overthrown and trampled upon for these fourteen years, is it now finally to be abandoned, and to remain lifeless and extinct for ever?

In one point, indeed, at least according to the view given of it by this historian, the parallel would be found to fail. “The imposition of ship-money, independent of the consequences,” (viz. the anti-constitutional consequences above spoken of) “was a great and evident advantage to the public,” viz. “by the judicious use which the king made of the money levied by that expedient.”

Ib. p. 319, anno 1637.—So far as to the unconstitutional impost of that day. As to the anti-constitutional system of the present times, what degree of “judiciousness” there was, either in the design of it or in the “use” made of it, may be seen in the Letters to Lord Pelham, by any man when conscience will permit him to look the subject in the face.

Ib. p. 360, anno 1640.—“The lawyers had declared, that martial law would not be exercised, except in the presence of the enemy; and because it had been found necessary to execute a mutineer, the generals thought it advisable, for their own safety, to apply for a pardon from the crown.”—So much greater was the respect paid to the constitution by the king’s servants—Strafford of the number—in those days, than in these. See above.

Ib. p. 319, anno 1587.—The cause of the unfortunate pertinacity on the part of the misguided king, and the deceitful ground on which it rested, are thus delineated. “Though it was justly apprehended, that such precedents, if patiently submitted to, would end . . . . in the establishment of arbitrary authority; Charles dreaded no opposition from the people, who are not commonly much affected with consequences, and require some striking motive to engage them in a resistance to established government.”

Such at that time had been the reliance, but now follows the result.

Ib. p. 317, anno 1637.—“Hampden, however,” observes the historian, “obtained by the trial the end for which he had so generously sacrificed his safety and his quiet: the people were roused from their lethargy, and became sensible of the danger to which their liberties were exposed. Then national questions were canvassed in every company; and the more they were examined, the more evidently did it appear to many, that liberty was totally subverted . . . slavish principles, they said, concur with illegal practices; . . . and the privileges of the nation, transmitted through so many ages, secured by so many laws, and purchased by the blood of so many heroes and patriots, now lie prostrate at the feet of the monarch. What though public peace and national industry increased the commerce and opulence of the kingdom? This advantage was temporary, and due alone, not to any encouragement given by the crown, but to the spirit of the English, the remains of their ancient freedom. What though the personal character of the king, amidst all his misguided counsels, might merit indulgence, or even praise? He was but one man; and the privileges of the people, the inheritance of millions, were too valuable to be sacrificed to his prejudices and mistakes.”

Ib. p. 375, anno 1640.—The jealousy of the people was roused; “and, agreeably to the spirit of free governments, no less indignation was excited by the view of a violated constitution, than by the ravages of the most enormous tyranny.” Such was the language—such the spirit—of the people of that day: such their language and their spirit, when both as yet were temperate, and had not burst forth into the wild explosions that ensued. In the case of New South Wales, both provocations—the “violated constitution,” and the “enormous tyranny”—go hand in hand: the tyranny, the end; the violation of the constitution, the means. What will now be the spirit of a British parliament? what will now be the spirit of the British people? It remains to be seen in what degree, if in any, the people of this day retain the virtues of their ancestors.

They must be degenerate indeed, if they are to be lulled into any such persuasion, as that the constitution will be capable of retaining for their benefit its protecting force, after it has been made apparent, that, with ultimate impunity, it may thus be trampled upon in the most vital parts of it, for such a course of years.

[¶ ]The words “are hereby determined to be subject” might, if they had stood alone, have been taken for words of mere adjudication. . . . But before these come words of enactment “shall . . . . be subject.” From the non obstante clause it might again be argued, that nothing more was meant by this provision, than to save those colonial laws from being overruled by the other provisions in the same statute: and therefore, that the effect of this section in it was nothing more, than to leave the legality of these colonial regulations upon its own bottom. But upon examining the act it will be found, that there is not any part of it to which the provision in this section bears any specific or effectual repugnancy. It is only from some perfectly vague and inconclusive inferences that any such apprehension could arise. But it requires little acquaintance with our statute law to have observed, how ready such apprehensions are to present themselves, and how ready the draughtsman is to quiet them with the customary non obstante opiate. Seven years had at this time scarce elapsed, since parliament, in the very act of supplying with money the embryo colony, sat still and saw the crown monopolize the supplying it with the powers of government. But at this latter period (1740) the tide, it seems, had already turned: and the wonder will be the less, that 34 years afterwards, when a new constitution was to be given to Quebec, parliament exercised the whole authority, and took upon itself the whole management of the business.

Will it be said—the confirmation of these colonial laws was necessary, so far and so far only, as they undertook to bind others of his Majesty’s subjects, natives of the mother country, visiting the colonies for a time only in the course of office or of trade? I answer in the words of the court of King’s Bench in a case that will presently be mentioned.a Among the “propositions, in which both sides seem to be perfectly agreed, and which indeed are too clear to be controverted,” is “The 4th, that the law and legislative government of every dominion equally affects all persons and property within the limits thereof; and is the rule of decision for all questions which arise there. Whoever purchases, lives, or sues there, puts himself under the law of the place. An Englishman in Ireland, the Isle of Man, or the Plantations, has no privileges distinct from the natives.” So far Lord Mansfield. If, then, these American laws were binding upon anybody—were binding upon Americans, they were already binding upon Englishmen. They needed no act of parliament, to confirm them in their application to Englishmen and so forth.

[† ]Another example may help to show the force and virtue of such exercises of regal power, in the character of precedents. On the 23d of March 1609, about three years after the first charter, a second is granted to the same company, with additional powers. Among these is a power to any two of the council of the company resident in England, to send out of England—to send out to their colony—“there to be proceeded against and punished, as the governor, deputy, or council there shall think meet”—any persons who, after engaging in the service of the company, and having received earnest-money, shall either have refused to go out thither, or have returned from thence.a

What cared these men (I mean the crown-lawyers who drew this charter) about the St. Alban’s case, and the court of judicature that decided it? As little as about Magna Charta which it expounded: as little as their successors, who drew the New South Wales Act for Mr. Pitt.

[a]Campbell and Hall, Cowper’s Reports, p. 208.

[a]Lind. Part II. § 1, p. 100.