Front Page Titles (by Subject) SECTION VI.: NULLITY OF LEGISLATION IN NEW SOUTH WALES, FOR WANT OF AN ASSEMBLY TO CONSENT. - The Works of Jeremy Bentham, vol. 4
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SECTION VI.: NULLITY OF LEGISLATION IN NEW SOUTH WALES, FOR WANT OF AN ASSEMBLY TO CONSENT. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 4 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 4.
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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?
[* ]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.