taxes without being warranted by his commission to do so—even supposing such a power could have been legally granted to him by the King. The position was at the moment rather peculiar. Shortly before, the Colonial Office had received a despatch from Macquarie conveying important news.[1]
"… I have to observe," he wrote, "that a serious and weighty difficulty has been started by our present Judge of the Supreme Court in regard to the legality (of the colonial duties) … which until obviated by some measure from Home will necessarily tend to render the raising of a revenue in this country, by the present mode, at once precarious and dangerous. A letter from Mr. Justice Field … on this subject being in my mind very full and clear, although I cannot altogether accede to the expediency or even propriety of our Law Courts acting thereon at this time, I do myself the honour to transmit your Lordship a copy of it. …"
The Judge's letter (dated 23rd February, 1818) had been called forth by the Governor's intention "to institute several suits in the Supreme Court for the recovery of customs duties". On considering the question, Field decided that as he could not "cherish the least doubt that we must (and as I understand that we soon shall) have an Act of Parliament for the purpose of legalising those duties which your Excellency had thought it expedient to impose, may I be forgiven if an anxiety to prevent the public discussion of a question, in which I might perhaps be forced to give an official opinion against the present legality of such duties, induces me to request your Excellency to instruct the solicitor for the Crown to forbear to proceed in the suits in question for the present.
"I am informed that the payment of these duties has never yet been attempted to be legally enforced in the Colony, and that your Excellency is so satisfied that there ought to be an Act of Parliament for them, that you have hitherto only reported defaulters home, and not felt yourself justified in arresting their flight from the Colony.[2] I have not the least doubt that the
