The proclamation of martial law, was to relieve the government from the restraints of forms. The facility with which justice could be administered by it, was illustrated at the Castle Hill insurrection: no life being lost on the government side, the victorious troops arranged that every third man convicted should be hanged. They drew the names of the sufferers by lot, and were proceeding with great vigour, when the appearance of the governor suspended the execution.[84] The dangerous usurpation in both Norfolk Island and Van Diemen's Land, led to the hasty sacrifice of life.
The scarcity of corn was once deemed a sufficient justification, when there was no appearance of sedition: at these times the government seized boats, or whatever was deemed useful for the public service, and imitated the most irregular actions of the Stuarts.
The subordinate authorities were supposed to partake the license of their superiors. One commandant, Colonel Geils, fixed a spiked collar on the neck of a free woman; another flogged a female through Hobart Town for abusive language; and another tied up a free man on the spot, for placarding a grievance, when as yet there was no press.[85] Davey, having ordered a person to the triangles, answered his remonstrances with a pleasant jest: the sufferer reminded him that he could not flog him; the governor answered that "he would try," and the flagellator soon determined the problem in favor of authority. Indignant exclamations of free men were deemed preposterous by a body of officials, who regarded the diffidence of civil government as absurd, and considered power as the standard of right.
The administration of justice is described by a work of the times:—"I have known," wrote a contemporary witness, "men, without trial, sentenced to transportation by a single magistrate at his own door: free men, after being acquitted by a court of criminal judicature, banished to another of the dependant settlements. I have heard a magistrate tell a prisoner (then being examined for a capital offence, and who had some goods, supposed to be stolen, for which he would not account), that were he not going to be hanged so soon, he (the magistrate) would make him say whence he got them. I have known depositions destroyed by the magistrate."[86]
The courts were limited by the laws in force within the realm, but the realm was not defined;[87] and thus what portion of the law was applicable, was left in thirty years' doubt, until the commissioner royal stated that the omission had prevented several executions.[88] The same number of years were required to ascertain whether laws passed in Great Britain subsequent to the era of colonisation were the laws of the colony.
Law officers of the crown were permitted to define authoritatively the import of acts of parliament, and on their official decisions the colonial judge convicted, and the governor executed a criminal.[89]
The persons commissioned as justices constituted a court in avowed conformity with such tribunals in England, but they adjudicated on the orders of the governor, and inflicted the penalties he appointed; though the supreme court, sitting concurrently with these "benches," rejected the legislation of the governor as invalid, when the basis of an action: one judge supported them by his moral countenance, although he knew them to be without legal authority.[90] Judge Advocate Wylde, however, declared the legislative authority of the governor equally binding with acts of parliament—a doctrine never surpassed by the most subservient advocates of an unlimited monarchy.[91]
The crown authorised the governor to grant remissions, but while he omitted the formalities requisite to perfect those pardons, the minister neglected to require them. For thirty years the error was undetected, and until a fraudulent creditor evaded a bill due to an emancipist; but several years were allowed to pass, even when the mistake was discovered, before it was fully corrected.
The ministers authorised the governors to grant land to settlers. For forty-six years these delegates divided the domain of their sovereign, as if it were his personal property, and without the consent of parliament, when a court of this colony decided that all such titles were void in law, whether acquired by purchase or under the old quit-rent tenure.[92]
Above two hundred thousand pounds had been levied by successive governors since the illegality of taxation was first submitted to the notice of the cabinet. In gathering this money, not only had property been seized, destroyed, and confiscated, but many persons had been imprisoned, and suffered all the miseries of felon bonds: yet when arrears, which the indulgence of the government had permitted to accumulate, were made a subject of legal procedure, the whole fabric of taxation and legislation by the governor's will, fell down.[93]