Historical Records of New Zealand
The Legality of Government and General Orders
The Legality of Government and General Orders.
In a conversation between Mr. McArthur and myself respecting the free introduction and sale of spirits, which he defended the legality of, and which from experience and a thorough knowledge of the baneful effects of a small quantity being allowed to be landed while its influence lasted, I objected to in the most decided manner. He introduced the subject of some counsel’s opinion of the illegality of all local Regulations, and that no Order or Regulation given by a Governor could be binding or legal unless sanctioned by an Act of Parliament. This subject was brought about on his urging the propriety of the distilling peaches into a spirit for the use of the inhabitants, and my testifying a wish to coincide, but that I felt a repugnance to doing it as the Judge-Advocate had said that he considered the introduction of the excise laws as a stretch of authority, and without adopting some of them I did not consider it possible to allow of that or any other distilling.
As Mr. McArthur was not possessed of that authority, or chose to mention the name of the counsel who gave the opinion, I could only observe that this was the first time I ever heard of such an objection, as all the local Regulations were regularly sent [to] the Minister for the Colonies, who had never made any exception, but had, in some instances, testified his approbation of the general part; a proof of which was my Lord Hobart’s directing Lieut.-Gov’r Collins to comply with those Orders, with most part of which he was furnished with copies for his guidance. And as most of the Orders I have given have been as near as possible conformable to the existing laws of England, allowances being made for the descriptions of persons they were to govern, and rendered necessary by the local state of the colony and the precedents of former Governors, I most certainly have considered myself warranted in framing these Regulations, without which no human being could have preserved any degree of regularity or order.page 262
If it is urged that the laws of England are sufficient for the government of this colony, experience has fully shown the falacy of such reasoning. Were the generality of the inhabitants of that mixed description that composes society in an English town and county, such reasoning might be allowed; but when it is considered that three-fourths of the inhabitants have been spared from an ignominious death by the humanity of the laws of England, and that the greater part of that number are so rooted in wickedness and vice, which can never be changed by any time or place (at least as far as respects the present generation), joined to the very little amendment that is seen in those who have either expiated their crimes, either by having served their terms or become emancipated—the necessity of these restrictive local Regulations must be visible to everyone who is, or ever has been, acquainted with the depravity of those which they govern in, and of the established law of England, which is lost sight of on no occasion whatever, and in those instances when a deviation is necessary for the security of persons and property, they are invariably adhered to as much as circumstances admits of it; nor in many cases does these deviations exist beyond the term that any exigency renders them absolutely necessary.