nished your Excellency with my observations on the proposed Port Regulations, and beg leave to say that some of these deviate so much from the known laws of the realm that I do not think they can be legally enforced on your Excellency's authority alone. … If your Excellency … chooses to take … the responsibility of acting contrary to my opinion, I think it becomes a delicacy due to my judicial character to select some other person to draw them up; for … I cannot in the due discharge of my duty to my Sovereign or to my conscience consent to attempt to give legal form to that which is illegal, or to frame or draw up regulations many of which in the due exercise of my functions as a judge, and with proper regard to my oath to administer justice according to law, I cannot enforce in my judicial capacity. … Your Excellency will excuse me for saying that your orders would be no justification to me in my own eyes or in the opinion of His Majesty's Ministers, more particularly if I am right in my opinion that it is no part of my official duty to draw up your Excellency's Regulations.'[1] Macquarie had no answer to make, and could only refer the matter home.[2] A few months later Bent also appealed to His Majesty's Ministers, reviewing very fully the Governor's exercise of legislative powers and making a powerful plea for its restraint. "My Lord," he wrote, "I feel it my duty humbly to offer my opinion … that when there is reason to suppose that local circumstances require extraordinary deviations from the Laws of England, that the Governor should first point out those circumstances to His Majesty's Ministers, and that the remedy should come from that quarter which can alone give it legality. But that a Governor of New South Wales of his own authority, implied from but by no means granted by the words of his Commission, should make laws imposing penalties of £500, or hard labour at the coal mines for three years, upon free British subjects, to be inflicted at the discretion of magistrates, … is a circumstance which I cannot but consider to be wholly unknown to His Majesty's Ministers[3] … in far the greater number of cases this power is exercised without the smallest reference to His Majesty's Law Officer and without any inquiry
