Governor King, it is believed, first established customs.[100] Hunter had assessed the property of the colonists, upon obtaining the consent of several, for the erection of a gaol.[101] The poorer inhabitants refused to comply with the levy, and were threatened with vengeance: they knew that however useful, such taxes were illegal though otherwise just. Thus, although legislation was not shadowed by the parliamentary act, the governors assumed it in its amplest form. Among the earliest were orders respecting the production and sale of spirits: to this, the oriental penalty was attached--"his still shall be destroyed, and his house pulled down." Infraction of this law was subsequently punished by imprisonment and transportation.
Of torture, to extort confession, we have ample proof, both written and traditional: of one Collins observes, "when he trifled he was punished again; he then declared that the plunder was buried. He went to the spot, but could not find it; he was then taken to the hospital." Another was tortured in the same form; but, adds the judge, "the constancy of the wretched man was astonishing:"[102] he was in consequence acquitted! This practice continued for twenty years, and in 1825 a prosecution was instituted against a magistrate for attempting to extract confession by torture.
The tendency of undefined power to run into tyranny, is illustrated by Macquarie himself. He had prohibited the entrance of strangers within the government grounds, and to detect the offenders stationed constables on the spot, who lay in ambush: three men and two servant girls were captured and committed. The next morning, the men each received twenty-five lashes, by the written order of the governor: the women were detained in the cells for forty-eight hours. There was no appeal to law; and the sole actors were the governor and the gaoler. A process so simple was no longer to be tolerated: the public were alarmed.[103] The assumption of magisterial powers was not compatible with the office of the governor; but to authorise the flagellation of free men without trial, for a perhaps innocent trespass, was both dangerous and unjust.
This was, perhaps, the last instance of such extravagant despotism, and it exposed Macquarie to much inquietude during his life. That a person so humane in his general character should forget the precautions due in equity and in law, and punish arbitrarily for imaginary offences, proved that no power is safely bestowed, unless its objects and extent are minutely defined.