having the previous sanction of His Majesty's Government for their construction, or without being enabled to prove most clearly and satisfactorily that the delay of reference would be productive of serious injury to the public service."[1]
With regard to the Governor's legislative powers, his right to regulate the lives of the convicts was, of course, beyond question. But the regulations issued from time to time by each successive Governor and upheld by the Colonial Courts, dealing with all subjects from illicit distilling to observance of the Sabbath, touched all the inhabitants—free, freed, and in servitude. The claim to this right was based on the words of the Governor's Instructions,[2] the needs of a penal settlement and the status of a military Governor. The last claim had neither validity nor logic. For though in name a "military Governor" he ruled through a civilian staff with a judicial establishment appointed under Act of Parliament. The Criminal Court itself with all its military appurtenances and its summary procedure was a Court of Record and administered the law of England. It was this law which the Judge-Advocate was sworn to administer, yet by his Commission he was brought under the orders of the Governor.[3] It was an impossible position. If the Governor promulgated orders which were opposed to law, was the Judge- Advocate to enforce them in the Court? Bent protested that he was bound by his oath not to do so—the Colonial Office held that he was bound by his Commission to obey the Governor.[4] The magistrates might be placed in an equally difficult dilemma. An instance occurred under Governor King in 1806. He had reissued an Order of Governor Hunter's and enjoined the magistrates to enforce it more rigorously. The Order, intended to put an end to illicit distilling, prescribed the punishment of "banishment" for all free persons convicted of the offence. A Bench of seven magistrates refused to pronounce
- ↑ D 20, 4th May, 1812. R.O., MS. Shortly after this, Lord Bathurst and Henry Goulburn replaced Liverpool and Peel at the Colonial Office. In financial matters they were less exigent than their predecessors.
- ↑ The terms in the Instructions were very general, contained in the duty "to pursue such measures as are necessary," for the peace and security of the Colony. See H.R., VII., p. 133, par. 2.
- ↑ See Commission, H.R., VII., dated May, 1809.
- ↑ See correspondence of Bent with Colonial Office, 1814 to 1815, R.O., MS.. See also Chapter VII..
