acting there by instructions and without instructions and against instructions; all these things there may be and there will be in abundance. But of charters …; of constitutions …; of lawful warrants, unless from Parliament; from the present day to the day of judgment there will be none."[1]
No blame, however, was to be attached to the Governor. "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."[2]
The Home Government were the real culprits, and either they had knowingly persevered in an illegal course or had ignorantly blundered. The latter theory seemed unlikely, for the power of Parliament had been invoked to give New South Wales a Criminal Court, and "wherefore apply to Parliament for powers for the organisation 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?[3]
After closer discussion Bentham concluded, "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 at all from anybody, or at most without any authority but from the King; and all along they have been, as was most fit they should be, placed and displaced at His Majesty's pleasure."[4]
In 1803 New South Wales enjoyed some amount of notice, for Collins' book was reviewed in April by Sydney Smith in the
