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]
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