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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 nor 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.
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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.
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III. Non-existence proved. 1.
Course taken for
shewing this —
subject matters if
legislations persons
and things — reviewed
and distinguished
for this purpose .
p.7.
2.
Classes of inhabitants
enumerated with
reference to the
question of that
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.
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III . Non-existence proved. 9
On 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.
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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 1st
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 case there
being neither principle
for it nor
precedent . p.17.
20 .
How the right remained
unquestioned
because nobody how
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.
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Identifier: | JB/116/270/001"JB/" can not be assigned to a declared number type with value 116. |
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1-10, 1-6, 1-36, 36a, 37-51, 51a, 52-54 |
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116 |
panopticon versus new south wales |
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270 |
marginal contents |
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001 |
i powers - necessity / ii powers - non-existence / iii non-existence proved |
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marginal summary sheet |
2 |
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recto |
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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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37803 |
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