this sentence. The Governor demanded an explanation, and they replied that they considered it their duty to enforce to the utmost of their power the Order which "the executive power has issued for the public weal, but at the same time they do not think themselves vested with sufficient authority to send every person out of the Colony for any disobedience of a colonial order, which they conceive would be infringing the power of the Governor; and they further are of opinion that it is a matter of great delicacy for them to pass any judgment on orders issued by the executive authority; that the power of the magistrates extends no further than finding the culprit generally guilty of Governor Hunter's Order … leaving it to the Governor to inflict the prescribed penalties".[1]
In other words "we think your Order is illegal and refuse to take the responsibility of breaking the law". To plead the orders even of a military Governor would not have availed in an English Court.
There was, however, a middle path which, more often than not, remained open. So long as the Governor's regulations were within reasonable bounds, supplementing and not conflicting with the law, the necessities of the Colony formed a sufficient justification for the colonial judges and magistrates.[2] This was the view generally held in the settlement. An address to Macquarie in 1812, for example, thanked him for "the considerable approaches already made under your Excellency's Government, to model the laws that rule us after their revered original, the blessings of which we sanguinely look forward to your paternal efforts procuring us (in) all the plenitude we may deserve".[3]
The Colonial Regulations took the form of Government and General Orders or Proclamations. "At all times," wrote Bent, "they emanate from the sole authority and will of the Governor, and are made, revoked, altered or partially dispensed with as that will directs."[4] But the Governor sometimes required the
