JB_116_134_002.xml

Title: [26 June 1802 12 N. S. Wales 6 The]

Description: 26 June 1802 12 N. S. Wales 6

The persons over whom the authority in a power of a legislative

nature appears to have been exercised — and exercised by the

Governor alone sole authority of the Governor may be distinguished

into classes.

7 1.5 Convicts still in a state of legal Bondage — their

respective terms of transportation being unexpired.

6 2.6 Wives and Children of Convicts in a state of Bondage

7 3.7 Officers and Privates

Expirees Convicts after the expiration

of their respective terms.. their Wives and Children. Thus if [+]

[+] if these condition in

point of fact had been really corresponded exactly with what it ought

to have been in point of law, might have been termed emancipated

Bondsmen: But as that does not appear to have been the

case the appellation would be productive of misconception and is

therefore can not be employd

unfit for use.

8 4.8 Independent Free Settlers: including Officers and privates in

both branches of the Kings military service and Officers

in the Civil branch of the Kings service, establishing

themselves after discharge from their respective situations.

1 5 1 Officers and privates of the military class in the land services

2 6.2 Officers and privates of the military class in the Sea service.

The power of legislation as to

these will stand on a different footing, according as they are considered

as remaining on Ship board or as having come on shore.

3 7.3 Commanders and crews of British Vessels in private

service. Same distinction as between the several periods of their remaining

on ship-board, or being

on shore.

4. 8.4 Commanders and Crews of Foreign Vessels — Same distinction as

between Ship board and land.

Among these eight descriptions the 2 d, 3 d and 4 th thru last may

be stated as those over whom

neither the Governor nor

any body else possessed any authority by law: so that all Orders

addressed to them by any body in any political

capacity and particularly by the Governor alone, even ipso

facto void: is also, under a certain exception all

orders addressed to persons in general or whereby any power was undertaken

to be exercised over persons in general were void, so far as

concerns persons not subjected to the power of the Governor

by trial

law belonging to not any the of these three classes.

JB_116_451_001.xml

Title: [1. Legislative power. none]

Description: 1.

Legislative power. none

created.

2.

Cause. Two powers

were meant to be exercised.

neither of them

fit to be named -

1. Power of amending

all the transportation

laws

3.

2. Power of legislation

in a single hand.

4.

Pitt was then upon

his good behaviour

having lately stood

his ground against

the House of Commons

upon Constitutional

grounds -

5

There was a rage

for colonizing somewhere

- this furnished

a pretence for the

expence

6

To create the necessary

legislative power the

only way was to

create the necessity

for it by

7.

As by the first Pitt

Lord Camden had been

done by negligence.

8

Evil consequences

1 st Unconstitutional

example

2. Insecurity of the

Colony.

9.

The seditionists if at

any time they should

have lawyers among

them may subvert

the government without

incurring any

legal penalty.

10

Regulations

1 st what legal

11

2. what illegal.

12.

Cases put of illegal

regulations for which

in point of utility

there may be a

demand.

13.

Capt n Collins not

considering this

want of power to

make regulations

speaks with surprize

of the spirit

of careless independance

among

the emancipated

bondsmen.

1

Though the design was

to prevent the return of

Convicts, no plan was

formed for the execution

of it - neither

at the outset, nor for years. p.18

2

A just one would

have provided for

their return of emancipees

and made it

as easy as under

the old system. p.19

3.

An unjust one would

have taken measures

against the return

of emancipees from

the first.

4

At first they had

no plan for prevention

of the return either

of emancipees or

non-emancipees.

5.

When they had any

it was directed as

much against the

one as the other.

6

and this the legitimate

object of the establishment

or not their

conduct is equally

indefensible.

7.

When they put emancipated

bondsmen

under this

illegal restraint

they put all freemen

under the same

restraint.

9

It appears in the

same document authority (Collins)

that Convicts who had

no more than 3 year

remaining was sent

out in the design

of their never returning.

p.26.

10

It was with the

Penitentiary Act

of 1799 before them

the Act so anxious

to distinguish between

degrees of punishment

that they thus confound

them.

Though this gives them

the power (as well as

1704) they avoided

it.

8

Effect of this event of

plan

1. While as yet there was no

plan formed for preventing

the return of

non-expirees, expences

were provided, by the

neglect, not accidental

or wilful, if not speeding

out the process evidencing

the lengths of the terms. n.25

1

On what ground rests

the Governor's power over

the Convicts?

2.

Under the Acts the

transportation must

be by contract and the

convict is transferred

to the use of the

contractor and his

Assignees

3.

Under this provision

there is nothing to

hinder the Contractor

from assigning the

Convict to his (the

convicts') use) unless in

the Contract he be

restricted to assign

him to the Governor.

4.

Though a provision to

this effect should be

in one Contract yet

it may be omitted

in any other.

5.

As the transportation

cannot be performed

without the intervention

of a Contract, how can

it be performed in

a King's ship .gr.

the Glatton? not without

a fiction.

6.

In the case of a

Convict, pardoned on

condition of transportation

for life, power is given

to the Crown to allow

him to transport

himself.

7.

By this means the

bondage is pardoned

without speaking of it.

8

Origin of this clause

unclergyable felonies

in some instances

gentlemen's offences.

9.

This power not being

given in the case

of a clergyable offence

hence the greater

criminal has an

indulgence refused

to the less By law

clergyable felons may

be permitted to buy

off the bondage (as

above) if the Crown

does not oppose it:

although not the transportation.

10

But in the transportation

to New

South Wales they

can not now do

either.

11.

The obscurity and

uncertainty of the

fate of the Convicts

in these important

particulars under

such legislation and

management is a

sufficient proof of

its being blameable.

about

claiming from trust

management to contract

management in the

case of the Parliamentary

House.

Mala fides

In the case of Cold

Back Fields prison.

Parliament orders and

enquiry and Mr

Pitt has makes no objection

to it. Will he ever

move for the enquiry

of these abuses &

if there were any he

was not the author.

JB_116_140_001.xml

Title: [23 July 1802 N. S. Wales 6 "the laws]

Description: 23 July 1802 N. S. Wales 6

"the laws of the Infidel are abrogated .... But if a King hath a kingdom by

title of descent, then, seeing by "the laws of that

kingdom he doth inherit the kingdom,

"he cannot change those laws of himself without consent "of

Parliament.'

In all this which together with about 50 folio pages of such matter is the

gratuitous effusion of the learning and eloquence of the reporting Judge,

there is no more has no more in it of law of binding law capable

of standing, 4 are but dicta, not binding like Clarks case

against any in case of repugnancy

1 or either against any single decision,

or acknowledged constitutional principle, than there is in the

torts out of Virgil and Aristotle and every body

in that are mixed up with it. 5 If binding, so much the

better —

negates the right in all but conquered Colonies

I give this This observation I give not as a position in the

establishment of which I

have my interest. — but on the contrary as an

admission: an an acknowledgment

concession of which the antipathy I feel for every thing that

savors of [jargon and fraud and] imposition is the cause. For if it were

all clear law, nothing could be more favorable short of a

opinion on the very point to my opinion nothing more fatal to the

opinion of any one should

M r Pitt, supposing

have really to fancy himself capable of maintaining saying any

thing in defence of the right of the

to his assumed in the name of the Crown to legislate in New South

Wales.] In that only one of Lord Cokes two cases, with which

in point of fact the case of New South Wales agrees has

any agreement is not the very opposite

in point of fact, the King can not " change" " laws" — Lord Coke expressly assures

us he can not do any thing in the way of legislation, " without consent of Parliament." The proposition

is in the form of it one indefinite and, (if a

King hath a kingdom) which as such is

equivalent to a

universal