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

Doe dem Jenkins v. Pearce [1818] NSWKR 4; [1818] NSWSupC 4

felony attaint - land law, title on marriage - married women's legal disabilities

Supreme Court
Field J., 27 August 1818
Source: Sydney Gazette, 29 August 1818[1]

In this case, the learned Judge (Field) gave it as his opinion, that a Government Lease to the wife of a convict transported hither, invested in the husband, and that no power, but that of the Crown, could take away from a person who had been attainted of felony, either real or personal estate; and that, in case of real estate, the utmost the Crown could do, in attainders since the 27th of July, 1814, was to take the profits of it during the convict's life; for the late humane [?] the 54th of His present Majesty, c. 145, had abolished corruption of blood in all cases, but those of treason and murder. As long as the Crown left the convict's property untouched, his Honour should therefore hold him entitled to Dominion over it, and leave the Crown to set aside any disposition of it which may deprive the King of his rights.*
Mr. Garling for the defendants contended, that the Government of this Colony meant to treat the wife as a feme sole, and to give this lease to her, and not to her husband.
But the learned Judge held, that unless the lease had been made to trustees for the wife's separate use, no power could prevent the chattel from becoming the husband's by operation of law; and that the husband might dispose of it without the wife's consent. Where a transport's wife remains in England, she has there been considered as a feme sole for the purpose of selling and being sued, but that was by reason the husband's necessary absence. There was only one case, and that was in a Court of Equity in which the wife of a transport had been permitted to retain personal property, devolving upon her since the marriage, as a feme sole. That was the case of Newsome v. Bowyer, 3 Peere Williams 37, in which the husband was attainted of felony, and pardoned upon condition of transportation for life. Afterwards, upon the death of the wife's father (who was a freeman of London), a share of the orphanage part came to her; and the Lord Chancellor (King), ordered the money to be applied to her maintenance until further order; and afterwards, the husband dying, and the wife marrying again, it was ordered to be paid to the second husband but even in that case, all that equity did was to suspend the money till the death of the transport, till when, as the pardon was a conditional for transportation for the whole term of his life, the Crown might have claimed it as the husband's property. Here the husband is present, and takes, by the operation of law, against all but the Crown, which may make forfeit of the chattel, if it pleases to take away with one hand what it gives with the other.
* And nothing can be done in the Courts here, without the record of conviction and judgement, or an attested copy thereof. For this reason, the inhabitants of this Colony have always been admitted as witnesses in its Courts of Justice, whether convicts or not, whatever different degrees of credibility Courts may have attached to their testimony, when considered as bond or free: And this, not less from the necessities of justice in a Colony composed like that of New South Wales, down from the strict rules of British law, which do not turn a witness away from the box, unless such proof be produced. And it is essentially just that nothing less should be required; or perhaps the witness may have been transported hither by stat. 4.Geo. 1 c. 11, substituting transportation for burning in the hand; and his time may have expired; in which case the statute restores him both to his competency as a witness and to his purity of blood; perhaps he may have been sent hither for a term of years as the condition of receiving the King's pardon, and the term may have expired; the King's pardon would then restore him to the same rights. Perhaps he had been transported hither for a misdemeanour, which does not involve the penalties of corruption of blood and in competency to sue and attest. Till the record of the witnesses conviction and judgement is put in, all these things cannot be known. The King's, or the Governor's absolute pardon would of course restore him to his competency, unless his conviction before perjury, or subordination of perjury, on the stat. 5 Eliz. c. 9, and to his blood, as to after-acquired property, or after-born children.

Note

[1] This is one of the most important decisions by Judge Field. In it, he struggled with the legal position of a free wife of an attainted husband. Wives could not hold property after marriage, but nor could those who had been condemned to death for felony. So who held the property in such a marriage in the penal colonies? The common law allowed temporary freedom to wives in that situation. In New South Wales, a new set of rules was developed, beginning with Cable v. Sinclair, 1788. See B. Kercher, "Perish or Prosper: the Law and Convict Transportation in the British Empire, 1700-1850" (2003) 21 Law and History Review 527-584.
This decision was republished in the Sydney Gazette on 11 August 1821. The following editorial comments were made after the republication of the decision: "Before the time of Judge Field no convict was allowed to sue in the Courts. It was he that discovered a legal principle, upon which they could not be prevented from suing. Upon another point of vital importance to the Colony, we'd transcribed the different judgments of Judge Advocate Atkins and Judge Field from the Sydney Gazette of August 26, 1804..." In fact, convicts frequently sued in the courts before Field arrived in the colony, commencing with Cable v. Sinclair, 1788.

See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2217 (no. 112); Sydney Gazette, 11 August 1821. And see Eagar v. Field, 1820; and on the local development of the law of attaint, see B. Kercher, "Perish or Prosper: the Law and Convict Transportation in the British Empire , 1700-1850" (2003) 21 Law and History Review 527-584; B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996, chap. 3.

Published by the Division of Law, Macquarie University