1-172 (Original)

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(i) An Opinion of Messrs. Shepherd and Gifford. We have had the honor to receive your Lordship's letter of the 23rd December, 1818, transmitting for our consideration the copy of a dispatch received from Governor Macquarie, enclosing an opinion of Mr. B. Field, the Judge of the Supreme Court in New South Wales, relative to the illegality of raising the taxes, which have from time to time been imposed in those settlements; and your Lordship is pleased to request that we would report to you our opinion, whether the Governor can legally enforce the payment of those taxes, which have been heretofore paid in that colony almost from its first establishment, and whether he can, under the instructions of His Royal Highness the Prince Regent, acting in the name and on the behalf of His Majesty, impose from time to time such additional duties as may be necessary to defray the internal expenses of the colony; your Lordship is also pleased, upon this point, to call our attention to the distinction drawn by Mr. Field between what he has denominated "King's duties," and those which he describes as port duties, or market and turnpike tolls with a view of ascertaining the specific duties, the levy of which Mr. Field asserts to be free from objection; and your Lordship is pleased further to request that, in the event of our considering the levy of duties as heretofore by the Governor under His Majesty's Instructions to be illegal and unauthorized. we would report to you our opinion, as to the form in which it would be proper to legalize the duties which at present exist, and those which it may be thought necessary hereafter to impose. [264] 
We have taken the several questions stated in your Lordship's letter into our consideration, and beg to report to your Lordship; that the part of New South Wales possessed by His Majesty, not having been acquired by conquest or cession, but taken possession of by him as desert and uninhabited, and subsequently colonized from this country, we apprehend His Majesty by his Royal Prerogative has not the right either by himself or thro' the medium of his Governor to make laws for the levying of taxes in such colony; but that such taxes can only, under the present circumstances of that colony, be imposed by the Parliament of the United Kingdom. Even if the power of imposing such taxes were in the King, or in those to whom he should delegate such power, the imposition of them by the Governor (in this case) was not warranted, because his commission does not invest him with any such authority. If however his Majesty had a right by virtue of his prerogative to impose taxes in a colony of this sort, the defect in the present imposition might speedily have been remedied by an Order of his Majesty in Council; and future taxes (when thought advisable) might be imposed by a similar order. But we think, as we have before observed, that the only mode of legalizing the taxes in this colony is by an Act of the United Parliament, and that future taxes can only be imposed by the same authority, as the law now stands, the colony having no representative assembly of its own by which such taxes can be imposed.
Whether considering the peculiar circumstances of this colony, and the nature of a large portion of its population, Parliament would invest His Majesty in Council with a power to impose such duties, as might be deemed necessary for the better support of the expenses of the colony, or for the attainment of the beneficial objects stated in the Governor's letter, is a question on which we cannot venture to form a conjecture; but, if it will not, the United Parliament appears to us to be the only constitutional authority, which can legalize the past or impose future imposts.
With respect to the distinction taken by Mr. Field between duties which he denominates King's taxes and port duties or market and turnpike tolls; we apprehend that, if the King erects a new port, or a market, or fair, or opens a highway in or over his own soil, he may, as owner of the soil, legally demand and receive from the persons availing themselves of the advantage thus open to them, a reasonable sum for anchorage, or toll, in order to compensate him for the expense he has been at in making the port and keeping it in repair, and for the use of his land, etc., for the purposes of a market or fair, or of a highway; so as such reservation of duty or toll be coeval with the erection of the port, market, or fair, or with the original opening or use of the highway; but even in such cases we think the right should be cautiously exercised.
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