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Decisions of the Superior Courts of New South Wales, 1788-1899

Admission of Convict Attorneys [1815] NSWKR 1; [1815] NSWSupC 1

first Supreme Court, judge refuses to sit - convict attorneys

Admission of Convict Attorneys [1815] NSWKR 1; [1815] NSWSupC 1
Supreme Court
J.H. Bent J., 11 May 1815
Source: Enclosure in Ellis Bent to Bathurst, 1 July 1815, Historical Records of Australia, series 1, vol. 4[1]

[159] ... It is with considerable regret I have to state that the undue steps resorted to with regard to these petitioners [ Eagar and Crossley ] has in some degree prevailed; and that gentlemen have been found who have thought proper to differ from me on a point of pure professional feeling and practice, and to say that those persons whom they confess it a disgrace to admit to their tables, or to suffer any part of their families to associate with, are fit and proper persons to be admitted to the situation of attorney in his Majesty's Supreme Court notwithstanding gentlemen have been sent out by the Crown for that purpose.

           Since gentlemen have thought right to pay so little deference to my opinion in points of law and practise and to hold the feelings and honour of the Judge, the dignity and respectability of this court of so little account, I have come to a determination on this subject which I will shortly state; for I will never suffer my honour and my character to be trifled with by any set of men whatsoever. It is my intention to state the whole of this transaction to his Majesty's government, and to forward the names of those persons who would so completely disgrace his Majesty's courts of justice, and I do not doubt that measures will be taken to prevent such insulting applications or so derogatory to the charter of any court, in future. In the mean time that the petitioners may not be vain enough to imagine that they will be permitted to practise, do now [160] solemnly declare that I will not admit as attornies of this court nor administer the oaths to persons who have been transported here as felons. It is contrary to law, and no circumstances and no necessity can exist so strong in my mind as to induce me to it.

           I will not submit to have persons of that description foisted in upon me contrary to my feelings and opinion; and, if any attempt should be made by these petitioners to practice directly or indirectly, I shall know how to punish it; and, if any steps are taken to force them upon me, I will close the Supreme Court altogether.

           I had hoped to have been able to lay before the court rules and orders to govern its future proceedings; but, harassed as my mind has been by the unexpected opposition I have met with, and on a point which so intimately involved my character and feelings, and on which as a Judge I had a right to expect implicit deference on the part of those appointed to sit as members of the court, I am under the necessity of adjourning the court to Thursday next.

Note

[1] The Court of Civil Jurisdiction ceased operating in 1814 when the Second Charter of Justice (Letters Patent, 4 February 1814) replaced the first. Under the new Charter, a Supreme Court became the colony's superior court of civil jurisdiction. The first Judge of the Supreme Court was Jeffery Bent, brother of Judge Advocate Ellis Bent. Jeffery Bent would not hear convict attorneys. George Crossley was the most prominent lawyer or "agent" in the Court of Civil Jurisdiction, but Jeffery would not allow such disgraced characters to be admitted to legal practice. The other members of the court wanted to admit them, so Bent deliberately boycotted it, forcing the court's closure. The new Supreme Court did not sit until 1817, when Jeffery Bent's replacement, Barron Field, arrived in the colony in his place. Jeffery Bent had been recalled. See Castles, Australian Legal History, 106-108; C.H. Currey, The Brothers Bent, Sydney University Press, Sydney, 1968 , 99-117; J.M. Bennett and A.C. Castles, A Source Book of Australian Legal History, Law Book Company, Sydney, 1979, 31.

Published by the Division of Law, Macquarie University