might be a party? Would it be prudent to allow convicts to act as jurymen? Would their admission satisfy free settlers? Would not their exclusion, etc., be considered as an invidious mark placed upon the convicts, and be at variance with the great principle upon which the institution itself is founded?
These are questions which it will be very desirable should be well weighed, and on which I shall be happy to have your opinion.
The proposed alterations in the Court of Judicature need not wait for this solution. On the contrary it may be perhaps desirable that alterations in so important a part of the internal policy should be gradually introduced.
The attention of His Majesty's Government has in the next place been directed to those restrictions which it may be proper to impose upon the authority of the Governor, and on this point they so far concur with the opinion expressed by the Committee as to consider the powers with which he is at present invested of granting real or conditional pardons as unnecessary and in some instances extremely inconvenient. The manner in which you have exercised this branch of your authority sufficiently evinces your opinion of the very great discretion with which it should be used; and I have therefore the less hesitation in discontinuing a power which, at the same time that it is liable to great abuse, is not necessary to the good government of the colony. It is however by no means intended to withhold altogether this mode of encouraging the convicts to endeavour by good conduct to ameliorate their condition. . . .
To the recommendation which the Committee have made of assisting the Governor by a Council, His Majesty's Government feel no disposition to accede. The difficulty of selecting proper persons for the situation of members of the Council; the dissensions and disputes to which their opposition to the Governor, or their protest against his conduct, must give rise; the parties which would thence arise in the colony, the length of time during which the public tranquillity would be interrupted before a communication could be received from home; the danger of weakening the higher authorities in a society composed of such discordant materials, are all causes which have more or less influenced the determination of His Majesty's Government to leave the Governor unfettered by a Council. . . .
N.S.W.: OPINION BY JAMES STEPHEN ON THE POWERS OF A GOVERNOR, 18221
...The question respecting the validity of the Governor's Proclamation is more important than the former, in proportion as the____________________
H.R.A., Series IV, vol. i ( 1922), pp. 414-15. J.Stephen, legal adviser to the