Note 248 — FROM 1847 TO 1852

The council derived their powers from the Act 9 of George IV., c. 83. They were permitted to enact ordinances "for the good government of the colony," but they were forbidden to impose taxes, except for local purposes; and they were ordered to state "distinctly and particularly in the body" of every law the purposes to which the tax should be applied; and thus to prevent the evasion of the prohibitory clause intended to protect the subject. It was not worth while to enquire whether the view of the judges of the legality of the act in the case of Symons v. Morgan was in harmony with the parliamentary act, because the question merged in one of much greater importance—Whether they could take that act into consideration at all? It was of far more consequence to know whether the colony had a remedy against the usurpation of the legislative council, than to decide whether Messrs. Horne and Fleming were better lawyers than Sir John Pedder and Mr. Justice Montagu. "The powers of a subordinate legislature," says a distinguished writer, "are expressly or tacitly delegated by the supreme government. In order, therefore, to determine whether an act of the legislature has a binding force, it is necessary to look at the extent of the delegation. If the act be not within the scope of the delegation, it is without binding force, and can be annulled before a competent tribunal" (Lewis on Dependencies). Sir Wm. Denison stated that the silence of the Judges for fourteen days after the act was passed,—whatever might have been the cause of that silence—ignorance, indolence, sickness, or corruption,—rendered the most unlawful stretch of power on the part of the council, including the total subversion of all the limitary clauses, binding upon the colony, and if sanctioned by the Queen, through the same ministerial inadvertence or corruption, binding for ever. Judging of the intentions of parliament by the general character of colonial legislation and by the cautious wording of this act, it could scarcely be imagined that they suspended the public safety on such a thread. That Englishmen should be deprived of their rights, without the possibility of appeal, by the inadvertence of a judge—not sitting in a court of justice, but in his own chamber—would be to legislate by accident. Sir Wm. Denison relied on the despatch of Sir George Murray (1828), which accompanied the Act 9 Geo. IV., known as the "Huskisson Act." The former practice was to require the governor to submit to the judge the draft of a bill before it was laid upon the table of the council chamber, no principle of colonial law being more "firmly established than that a colonial legislature cannot enact statutes repugnant to the law of England." The judge (he said) "might have found himself often required in open court to deny the validity of a colonial ordinance, on the ground of repugnancy." By the Act in question "provision was made for fully learning the views of the judges upon the law, and for preventing their refusing to execute any law that may be passed after a full consideration of their objections." Thus it was intended to "combine, as far as possible, the advantage of a strict observance of a general rule, and a harmony between the judges and the legislature." It was therefore clear that the power given to the judges to stop the enforcement of any illegal ordinance continued until their objections—whenever and wherever they might arise—had been "fully considered."—Hobart Town Courier.