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Marginal Contents
I. Powers - necessity. 1.
Power of making
regulations necessary
every where - more
particularly in a
new Colony than
in an old Government.
p.1.
2.
It is power of legislation.
p.1.
3.
In feudal times
the want of it was
felt here — p.1.
4.
1.It is more urgent
in an infant Colony.
p.1.
5.
2. in a community
composed chiefly of
outcasts than in
one ordinarily composed.
p.1.
6.
3. in a dependy thus
distant than in
the Eastern at but
half, in the Western
at but 1/4 the distance.
— p.2.
7.
Founding a Colony
is creating the necessary
assortment
of the powers of
government in it -
No foundation
without it. p.2.
8.
Judicial power is
not sufficient. p.3.
9.
If the existence of
such legislative
power be not necessary,
at any
rate the belief of
it is. p. 3.
10
No legislative power
was created at the
outset nor has
been since. The
only N.S. Wales
Act 27.G.3.c.2.
creates nothing
but judicial.p.3.
---page break---
II. Powers—non-existence 1.
Yet the Governor
went on issuing
Ordinances and
the Council Board
or Secretary of States
Office giving him
instructions for
issuing Ordinances
as if there had
been a power to
that effect. — p.5.
2.
The exercise of that
power must have
been accompanied
with a persuasion
of the right —
1. On the part of the
Governor — p. 5.
3.
2. or of his superiors
at home viz: either
1. of its existence
2. or that it would
be believed to exist.
p.5.
4.
If they had no such
persuasion their
conduct was fraudulent.
p.6.
5.
That any such
persuasion was
really entertained is
not probable —
To shew this here
follows the best
case that can be
made in support
of any such a
right. p. 6.
6.
Admitted that a
right exists to a
certain extent - but
not to the extent
to which it has
been exercised. —
p.6.
---page break---
III. Non-existence proved. 1.
Course taken for
shewing this —
Subject matters of
legislations persons
and things — reviewed
and distinguished
for this purpose.
p. 7.
2.
Classes of inhabitants
enumerated with
reference to the
question of their
subjection to Ordinances:
Expirees defined.
p.7.
3.
Classes in regard
to which it may
be admitted - though
not in every instance
compleat & unquestioned —
Classes 1 & 2 compleat
Class 3 incompleat-
— 4 questionable
— 5. unquestioned
— 6 unquestioned.
p.8.
4.
Classes in regard
to which it is
denied. Classes
7,8,9,10. — p.10.
5.
Things over which
the Governor would
have a power — &
by that means
influence over
persons. — p.10
6.
But this influence
is not legislative
power.— p.10.
7.
All general Ordinances
in omnes are void—
notwithstanding
the influence. —
p.10.
8.
I assume that
whatever power
could be given by
the Crown to make
these ordinances
legal was given.
p.11.
---page break---
III. Non-existence proved. 9
oOn what grounds,
if any, could the
existence of any
such general powers
have been supposed?
The answer must
be mere conjecture.
p.11.
10.
Was it this? that
American Colonies
were founded without
powers from Parliament?
The fact is admitted.
p.11
11
Even in the instance
of Georgia founded
so late as in the
6th of G. 2. Ao1740.
—p.12.
12.
But the practice
may be considered
as being relinquised
and virtually recognized
to be illegal
in 1774 by the
Quebec Act. p.12.
13.
But seven years
after the Georgia Act
the legislative power
exercised in the
Colonies was so far
as it went to restrain
the right of departure
from thence thought
to stand in need
of confirmation here
and confirmed by
13 G.2.c.4. Ao 1740.
p.12.
13. (a)
1. This clause was
understood to be
requisite not merely
to sense the power
in question from
being taken away
by other clauses
in this same Act—
2. It was not necessary
if the American
Acts in
question were
binding upon
America. —p.13.
---page break---
III.Non-existence proved. 14.
This same application
of legislative power
is among the powers
exercised in New
South Wales and
is necessary to
prevent the depopulation
of it.
p.14.
15.
Such power is
repugnant to the
principles of the
Constitution. p.15
16
The practice began
under James 1<hi rend='underline'>st</hi>
p.15.
17.
The exclusive right
of Parliament to
legislative power
was not then
settled as since.
p.15.
18
The want of power
in the King to
establish Ordinances
on pain of imprisonment
was
established tempore
Elizabeth as per
Ld Coke. p.16.
19.
At the time of the
first Charter no
distinction could
have been taken
on the ground of
distance to take
the case out of
Clerks care there
being neither principle
for it nor
precedent. p.17.
20.
How the right remained
unquestioned
because nobody had
sufficient interest
to question it p.17.
21.
If the King could
not legislate over
Englishmen in
England neither
could he elsewhere.
p.18.
22.
No such right
results from the
consent of a part only
of his subjects &
that the objects of
his favour. —p.19.
---page break---
III.Non-existence proved. 23.
—nor yet from any
expediency in the
institution as evidenced
by subsequent
experience.p.21.
. 51, 52, 52 (a)
---page break---
24.
That official precedents
will not stand
against judicial
principles is proved
by the case of General
Warrants — p.21.
25.
In that case the
practice was not
precondemned by
direct adjudication
as here. — p.23.
26.
The case of the American
Colonies applies
not here because
there the power
was not exercised
without
1. Consent of inhabitancy
& subjection -
2. Irrevocability of
the privilege granted.
p.23.
27.
1. Irrevocability though
distinct from
consent is a condition sine qua non
of its being given.
p.24
28.
2. Another condition
to the validity of
such powers was
that they should
be irrevocable.
29. 28
The irrevocability
of powers for colonization
derived
from the Crown
has been all along
recognized by the
judicial power.
p. 24
30. 29
Consent though not
necessary to subjection
under an old government
is under
a new one in
point of utility —
and thence in
English law.p.24.
---page break---
III.Non-existence proved. 320
In New South Wales
no such consent —
the very object of
the foundation was
to legislate against
consent. p. 25.
321.
Nor any revocability
of prividlege —there
being no privilege.
p. 26.
332
All these Constitutions
were by
Charters , here there
was no Charter.
p.26.
34. 33
In a Colony obtained
by conquest
legislative power
may perhaps be
exercised by the
Crown otherwise
than by Charter —
but this is not
the case here.
p.27.
354.
Nor ever can be.
p. 28.
36. 35
The founders of
New South Wales
were satisfied of
this : as appears
by their recurring
to Parliament for
powers to establish
the Court of Judicature
there. — p.29
37 36
Ordinances issued
in New South Wales
besides being void
in themselves, could
have no force for
want of a Court to
try for breaches of
them the Court
created under the
Statute having
no power to punish
for any offences
that would not
be so if committed
"in this realm"
p. 29.
---page break---
III.Non-existence proved 36 37(a)
Specimens of the uncertainties
and
deficiencies in the
provision made in
the Act for the
establishment of
the necessary body
of laws in N.S.Wales.
1. "This realm"
2. Civil injuries.
3. Laws turning
upon names of things
and persons not
in N.S. Wales —
4. Ecclesiastical
offences. — p. 31.
38. 37
So far as the Council
Board were parties
to then illegalities
they were probably
surprized as well
as Parliament, by
the Minister and Secretary of State.-
though this makes
no difference as to
legality. — p. 35.
39.38
Error on the part
of the Crown lawyers
not impossible —
Proof their error
in the Grenada case
Ao 1764 decided
1774 — p. 37.
40 39
Inferences deducible
from the Grenada
case of the illegality
of the King's legislation
in New South
Wales — p. 38
410
1. At that time (17
no decision affirming
the right as
to Colonies in
general. p. 38.
421.
2. That decision
affirming the right
as to conquered
Colonies disaffirms
it as to all others.
p.49.
---page break---
III.Non-existence proved. 432
The sort of affirmance
it gives in the
case of conquered
Colonies applies
not to N. S. Wales.
p.49.
44.43
Proof oth of the above
propositions —
1. Ld Coke's dictum
in Calvin's case 1688.
2. Yorke & Wearge
opinion in the
Jamaica case in
1722. p.49.
445.
The dictum in
Calvin's case as
cleaned by L<hi rend='superscript'>d</hi>
Mansfield. p.40
46. 45
Opinion of Yorke
and Wearge as
cited by him.p.40
47 46
It negatives the
right of the king
alone in any but
a Colony obtained
by conquest. p.41
48. 47
Upon the whole the
King's right to legislate
without Parliament
is negatived as to
Colonies not acquired
by conquest by the
St Albans case: as
to conquered Colonies
by that and by the
Bill of Right art4&6.
p.41.
49. 48
Similar opinion
maintained by
George Grenville
according to Edmund
Burke. p.42.
50 49
Had the colonization
powers been granted
from the first by
Parliament the
American war
would probably have
been saved. p.42.
---page break---
510
The S<hi rend='superscript'>t</hi>. Albans case
saying nothing of
Colonies was never
applied to them
by lawyers. — p.43.
---page break---
III.Non-existence proved. 521
Yet in the grant
of the first Colony
it was made parcel
of Dart Greenwich
and subjected to
English tenures. —
p.43.
521(a)
Another example
to shew how much
these Charters are
against decisions
in the character of
precedents — Power
given by a Charter
A<hi rend='superscript'>o</hi>. 1609 to any two
men here to send
a man to America
to be dealt with at
the pleasure of one
other. — p.44.
---page break---
532
What is sufficient to
render all ordinances
void that have been
issued in New South
Wales and the acts
done in execution of
them so many injuries
is their having
been made without
consent of an assembly
there or authority
from Parliament.
Whether a Charter
for the formation
of such an assembly
would have been
valid is immaterial
there : but material
as to Trinidad.p.44.
54. 53
Better to establish
all these points by
authority of Parliament
than leave
them in uncertainty.
p. 45.
554
Conclusion. Either
there is no legislative
authority in New
South Wales or the
Constitution is at
an end and there
is none in Britain.
p. 45.
Others as to all that part of the argument which disaffirms their right even in case of an Assembly might it not be to postpone it to the whole tract (facts & Case argument together) and so make it an Appendix — or isue it altogether?
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panopticon versus new south wales |
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marginal contents |
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i powers - necessity / ii powers - non-existence / iii non-existence proved |
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marginal summary sheet |
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john herbert koe |
cw 1799 |
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c. abbit lees |
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1799 |
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