British Colonial Developments, 1774-1834

By Vincent Harlow; Frederick Madden | Go to book overview

Courts does not deviate from that of the corresponding tribunals in England, further than the peculiar circumstances of the colony may require Now it may be said that, by conferring on the magistracy in the case of servants' wages, a jurisdiction similar to that with which Justices of the Peace are invested in similar cases in England, the Governor was only calling into exercise this branch of the royal prerogative. To this argument I do not know that a satisfactory answer could be given, had the Governor been authorized by his Commission to exercise this power. I conceive, however, that his Commission did not contain any authority to constitute Courts of Justice, and therefore that his Proclamation cannot be successfully defended upon this ground.

Upon the whole, therefore, I incline to think that the statute, 20th Geo. 2nd, c. 19, is not in force in New South Wales, and that the Governor's Proclamation was not valid or binding. I therefore think that the judgment of the Judge Advocate was right. . . .


49
N.S.W.: ADDRESS OF FAREWELL TO GOVERNOR SIR THOMAS BRISBANE, 26 October 18251

. . . While we are bidding Your Excellency farewell, we feel that we can entirely rely upon your watchfulness to embrace all opportunities which may offer, on your return, of suggesting to His Majesty's Government the pressing necessity which exists for the immediate establishment, in this colony, in all their plenitude, of those two fundamental principles of the British constitution, Trial by Fury, and Taxation by Representation. We are not ignorant that, upon both these subjects, Your Excellency's opinion has long been accordant with the general opinion of the colony. Your Excellency cannot but have felt the inconvenience of directing the efforts of a free people, left at large as it were to guide themselves by the analogies and recollections of English Law and English usage, in the absence of their ancient free institutions; a people whose good sense, moral feeling, and patriotism alone have prevented them from a louder expression of their impatience, when their English prejudices have been outraged by the unavoidable vexations of a Government, so anti-British in its structure and operation that it would be difficult to designate it by a just name.

With respect to Trial by Fury, the magistrates of Sydney have already expressed the voice of the people in their answer to the patriotic

____________________
1

H.R.A., Series IV, vol. i ( 1922), pp. 629-31. Sir Thomas Brisbane had served in the West Indies and in the Peninsula. In 1821 he was appointed to succeed Macquarie as Governor of New South Wales, where, in contrast to his predecessor, he encouraged the free emigrants in preference to the emancipists.

-162-

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