To Protect the Interests of the Crown
The Sydney Morning Herald
13 February 1845
Although the above letters have already appeared in our journal (of the 29th ultimo), we again insert them, because the case involves a principle of general application, and therefore calls for the comments of the Press.
A very intelligent letter on the subject will be found in another part of this morning's paper, with the signature of "M. G."
We are sorry that truth compels us to say, that in almost every instance that has come to our knowledge, in which Sir George Gipps has had to adjudicate upon private rights as against the Crown, no matter how clear the evidence upon which the rights were established, His Excellency has decided against the appellant.
His favourite maxim - and, applied as we fear it is too often applied, an abominable maxim it is- that he was sent here "to protect the interests of the Crown," has in these cases made him a partisan instead of a Judge.
The province of a Judge is not to "protect interests," but to administer justice.
It would sound rather strange were our worthy Chief Justice, in charging a jury, to declare that he and they were placed in their relative situations to "protect the interests" of the defendant!
And yet this monstrous outrage on judicial rectitude and impartiality is actually perpetrated by a Governor, when, in the investigation of claims upon the Government, he permits his mind to be swayed by the aforesaid maxim.
In fact, so long as he clings to that maxim, he has no business to receive such claims at all. A
s an honest man, His Excellency ought to tell the appellants at once that they must not appeal to him, inasmuch as he represents the party appealed against, and feels himself bound to "protect the interests" of that party.
To pretend to hear and determine claims under such circumstances, is but a mockery of justice, and an insult to common sense.
But the maxim is as false as it is pernicious. Governors are not sent to protect the interests of the Crown, except in so far as those interests may be invaded by unjust or unconstitutional pretensions.
When, by any of those accidents to which the proceedings of the best conducted Governments are liable, the interests of the Crown happen to clash with the rights of the subject, it is the obvious duty of a Governor to protect the latter. Fiat justitia, ruat ecelum.
He is just as much bound to see that the rights of the subject are not damnified by the interests of the Crown, as to see that the rights of the Crown are not damnified by the interests of the subject.
The brightest jewels of the British diadem are its integrity, its honour, its impartial care for all classes and for all individuals within the realm, from the heir-apparent down to the beggar.
In his adjudication upon the Gundagai case, His Excellency does not avow his ultra maxim, though there can be no doubt that had the maxim been discarded from his mind, a very different decision would have been given.
The case is this: The Government selects a tract of land for the site of a township; it is officially chartered and announced as such; it is parcelled out into convenient building allotments; these allotments are put up for sale; they are bought and paid for; they are built upon, and occupied as dwelling-places; a flood comes, sweeps away the tenements, destroys valuable property, and even endangers human life.
The official resident in the district hereupon examines the. locality, and discovers that a great mistake has been made by the Government in selecting such a spot for the site of a township, inasmuch as it will be always liable to a repetition of the like disasters.
He reports the circumstances to head quarters; points out the necessity of abandoning the present site, and choosing another "on moderate high ground," beyond the reach of periodical inundation; and recommends that the allotments in the abandoned township be exchanged for others in the new one.
The official answer to this official communication is that new allotments in the situation described will indeed be marked out, but that "His Excellency cannot sanction the proposed exchange of the flooded allotments, as he considers that what a man buys he buys for better or worse!"
Such is the case, and such the judgment.
A case of grievous hardship and manifest injustice; a judgment worthy of the wretched maxim above referred to. Here, however, we are treated to a new maxim. "What a man buys, he buys for better or worse."
A bargain is a marriage; a thing bought can no more be repudiated or exchanged than a wife. But is this the truth?
Are the transactions of everyday life, between buyer and seller, always conducted on this "pig in a poke" principle?
Is there not, on the contrary, in all ordinary purchases, a settled understanding that the thing bought is what it is said to be, and will answer the purpose for which both vendor and vendee intended it?
If you buy a coat from your tailor, and it falls to pieces the first time you put it on; a loaf from your baker, and it proves to be half sand; a pipe of wine from your merchant, and it turns out to be a pipe of water- would any of these sellers have the impudence to tell you, in answer to your demand for a genuine article, that "he cannot sanction the proposed exchange" of the rotten coat, of the sandy loaf, or of the pipe of water, "as he considers that a what a man buys, he buys for better or worse?"
If he did, he would soon be marched to the Police Office, and be hooted from society as an audacious knave.
And what difference is there, in point of principle, between these hypothetical cases and the actual case of the sufferers at Gundagai?
They bought their allotments, and the Government sold them, as building allotments, and as portions of a permanent township.
But land subject to periodical floods is no more fit for building purposes, especially for the building of a town, than the heart of a lagoon or the bed of a river.
The Gundagai allotments prove to be so subject: ergo, they are not what they were pretended to be; they are not fit for either of the two purposes for which they were marked out and offered for sale by the Government, and for which they were bought and paid for by the people.
That part of the contract which treated these lands as building allotments, and that also which treated them as town allotments, have both been broken.
The contract is therefore doubly void; and the vendee has an incontestable claim upon the vendor for compensation.
The coat is rotten-the loaf is sand-the nominal wine is nothing but water.
In each of the cases, the purchaser did not buy "for worse," but "for better."
He bought the coat to wear, the loaf to eat, the wine to drink - not to throw away.
And so with the townsfolk of Gundagai: they bought portions of a town, not of an irreclaimable wilderness; they bought ground to build habitations in which they might dwell, and not wherein they might be in constant danger of perishing by floods.
They therefore assuredly did not buy for the worse, but for the better.
We join with our correspondent in recommending the sufferers on no account to give up their claim; but, rather, if the Governor persist in denying them redress, to represent their case to the Home Government.