how far the Law of England may have provided for the subject matter of them,[1] and they are not regularly registered in any of the Courts of Justice here nor … submitted to His Majesty for approval.
"I hope that I am not presuming too much when I express a humble confidence that it never could be intended that so vast a power should be placed in the hands of any one man without the smallest provision against its abuse; a power which, as far as this Colony is concerned, and under the bare pretence of local circumstances, I will be bold to say sets the Governor of New South Wales above the Legislature of Great Britain, and at once resolves the rule of action here into the mere will of the Governor, a will not subjected to any previous advice or controul."[2]
So far as these considerations affected him as a judge he had no longer any doubts. "I am now convinced," he wrote, "that it is impossible for me, unless some alteration takes place in the opinions and conduct of Governor Macquarie, honestly and uprightly to perform my duties under such a commission without a total sacrifice of my peace of mind and injury to my health, already much broken." He asked that "with the functions of a judge" he should also have the title, and "that independence of the Colonial Government which … is so essential to the upright execution of my office".
Macquarie's exasperation compares badly with Bent's dignity. He wrote that Bent was "insubordinate and disrespectful," and that he would have suspended him or sent him to England had there been any one in Sydney capable of performing his duties.
At the same time the Governor's faith in the Port Regulations had been severely shaken, and he transmitted them both old and new for the opinion of the law officers of the Crown.[3]
- ↑ An instance of this occurred some years later when Macquarie published some Orders increasing the penalties on trespassing. Judge Field pointed out that they went far beyond the English Law on the subject, and persuaded the Governor to revise the Orders. See Appendix, Bigge's Reports. R.O., M.S.
- ↑ 1st July, 1815. R.O., M.S.
- ↑ D. 1, 24th February, 1815. R.O., MS. No opinion appears to have been given, and in 1819 Macquarie, apparently taking silence for consent, gave them to Judge-Advocate Wylde to put into shape. The Judge-Advocate objected to some of them, but Macquarie replied simply that the law officers had allowed them
