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1-207 (Text)

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addressee author,male,Stephen, James,un
Legal Document
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Government English
Legal English
Clark, 1977
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1-207-plain.txt — 2 KB

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The question respecting the validity of the Governor's Proclamation is more important than the former, in proportion as the consequences involved in it will be the more extensive. In support of the right of legislation thus asserted by the Governor, it is argued that the constitution of the Colonies depends upon the Commissions issued by the King to the Governors, and upon the Instructions accompanying them; that the King has in many cases delegated to the Governors of Colonies the power of making local Ordinances, not repugnant to the laws of England, and that what has been done in other cases may legally be repeated in that of New South Wales.  
To these arguments, it is answered that, according to the first principles of the Constitution, the King cannot make laws binding on his subjects, except with the consent of Parliament; that the only exceptions to this rule are, first, the case of foreign Settlements acquired by His Majesty's Arms, where he excercised a legislative power as conqueror, and Secondly the case of Settlements ceded to the Crown, in which, at the time of the Cession, there existed a lex loci adapted to the habits and wants of civilized Society, in which case, it is s-aid, the King succeeds to the legislative rights, whatever they may have been, of the former Sovereign. It is denied, however, that New South Wales falls within either of these exceptions, Since that colony was acquired neither by conquest nor cession, but by the mere occupation of a desert or uninhabited land.
It is insisted that His Majesty's subjects settling in a country thus acquired, carry with them the Law of England, so far as it is adapted to their peculiar circumstances; that the invariable usage in all such cases has been to require the Governor to convene an Assembly elected by the freeholders within the Colony; that thus the Colonists have lived under the constitution of England, varied only, so as to meet the new circumstances in which they have been placed; and that for His Majesty to confer a legislative power on the Governor alone, and without the controul of a local Assembly, would be to deprive the Colonists of the constitution and laws which, it is admitted, they are to carry with them.
To the best of my judgment, this reasoning is well founded; and supposing the present question confined to the single point, whether the Governor of New South Wales has or has not the power to make laws binding on the King's subjects within that Settlement, I should venture to express my opinion that in general he has no such authority.