Page:History of Australia, Rusden 1897.djvu/521

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|to order freemen to be flon:ged — ^was proof of his unfitneBS, 311 1 liis offence was not known in En<^land for some time [after its i)erpetration. In days of tardy coHimunication the consequences of liis illegal acts recoiled slowly upon Mac- quarie.*** One of bis favourites was engaged in mercantile enter* prise, and deemed his profits encroached upon by the com- petition of an American resident named l)e Mestre. The East India Company's charter prevented an English subject frojii importing:; tea direft from China » and it reached him tcircnitously from Benfjjal, The American was under no r Buch restraint, Bnt Maequarie had declared that the colony was a field for iiroflt of the convict class. The ex-convicfc brought an action against the American (under a Statute of Charles II.) for trading in the colonies. The Ameri- can applied to the Court for twelve months' tinie to plead, in order to produce proof of the conviction of his antagonist, alleging at the same time that he had a good defence in the action, which (he averred) was prompted only by malice- Judge Fiehl granted the application,^^ and the proceedmgs against the American ignominiously perished ; as did similar proceedings taken at a later date against a French- man. The Court declared that before they applied thu highly penal statute of 1^ Charks IL cap. 18, in '* favour of itradesmen who were themselves only the creatm*es of re- 'mission of sentence, they ought to be fully satisfied that they bad power to try a tpa tarn action, a public penal action, two- thirds of the fruits of which are to go to the King and the Governor, under a charter, the object t4 which is to make sufficient provision for the recovery of debts and determining of private causes between party and party in New Houth Wales." There was bo reason, the Judge said, to believe that the Governor had authorized the action, and therefore he gave time to procure a certified •* Mr, (ioulbuni'a aubsequeiit apology fot' Mauqaarie was inane, He 'said tliftt a Select Cominittee of the Houae of Connnons harl, tn 1812, rcpoptetl ill such ttirma as to show that Biieh punisliments were extant, .and that '*a3 no ob?^ervation was made on that report, it was oatiiral for jovernoi' MatxiuariB to coacliide that there was no objection to the practice. " He relied upon a case, Bullock against Dodda, tried before the Kisy^** Qch, ill ISiy, as to the efl'ect of attainder.