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

R. v. Dargan and Wildred [1824] NSWSupC 27

Court of Quarter Sessions - appointment of magistrates - supervision of inferior courts

Supreme Court of New South Wales
Forbes C.J., 31 December 1824
Source: Australian, 6 January 1825 [1]


In the case of Dargan and Wildred, two persons convicted before the General Quarter Sessions, [2] holden at Windsor, the conviction, it was contended, was undue and illegal, on two distinct grounds. First, because the gentlemen who sat on the bench were not legally magistrates, with he [sic] exception of one only, and the law positively required that there should be two at the least; that at the present time there were no more than two magistrates in the colony, namely, John Stephen, Esq. and William Carter, Esq. [3] For by a commission, dated the 1st of November, 1824, the names of those gentlemen only were specifically mentioned, and by that commission only could magistrates be constituted; also by 2 Hen. 5 st. 1. c. 4 it is directed that one or more of the justices, empowered to hold Quarter Sessions, shall be of the quorum, as also by 3. Hawkins, p. 57. pleas of the crown, which added that unless one or more were of the quorum, the proceedings would be coram non judice. The only magistrate therefore present, was Mr. Stephen, and he was not of the quorum. The second ground was the validity of the commissions, dated the 27th of April, and the 26th of May. In Comyn's digest, v. 4. p. 656, and 1st. Blackstone, p. 353. it was stated that the new commission superceded the old one. It was held by the best authorities that two commissions could not be in existence at the same time, and the last could be the only legal one; the conviction ought therefore to be quashed. In reply the argument on these commissions was confined by the Attorney General to the questions of law, no other topic seeming proper in such a case. The reasons which led to the alteration of the old forms, he said, were stated at the Quarter Sessions, where the subject was fully discussed in November. It was then shewn that the ancient practice, which introduced the word "quorum" into the commission had for many years ceased in England, [4] and that the substance of the present English practice was studiously adhered to here; but that a repetition of names approaching to an absurdity was avoided. This supposed improvement was at variance with no law, and was thought to be admissible, because a prudent simplifying of public documents seemed to be an object of great importance[.] The reasons which in England might require strict adherence to venerable forms, were thought to be sufficiently yielded to in new establishments, if so much of them should be preserved, as would give to the colony the full benefit of ancient and approved institutions. The second commission the Attorney General referred to the former, which he would contend was still in force, as would appear by 15 Viner, and was to be judged of by sufficiency of expression. The authority of Blackstone might be very good, but it is too general in its application. The King might make two or three commissions all valid, unless specifically repealed. The doctrine of cancelling appeared to him rather extraordinary; he should not consider it as well grounded without a direct revocation, he therefore considered the arguments on the opposite side sufficiently answered.

The Chief Justice gave judgment on Friday. [5] He would explain the meaning of the term quorum; it was a word now disused. Formerly the magistrates were greatly inferior in point of authority and knowledge, to the gentlemen who composed that body at a subsequent and more enlightened period; in the former case their jurisdictions only extended to apprehension of felons, and sending them to trial; but that power was afterwards augmented, enabling them to try and determine offences; it was then deemed necessary to give additional weight and security to their proceedings, by appointing certain of those learned in the law to act, on these occasions, and these were named of the "quorum." The crown is required to appoint conservators of the peace; but under present circumstances it did not appear to him to be indispensable, that there should be a special nomination, and therefore the omission would not invalidate the proceedings. [6] He would next consider the effect of the preceding commission. It was laid down in authorities that a new commission destroyed the old one by implication; but this he did not conceive applicable to magistrates. The last commission, dated Nov. 1, was clearly an affirmation of the former. He would ask how was he to arrive at any other conclusion, when the instrument was before him, directly referring to the old one; he should therefore overrule that objection also.

The Solicitor General [7] hoped that his Honor would give costs in dismissing the rule, particularly as the application had been frivolous and vexatious, and had been attended with much personal inconvenience to magistrates. The Chief Justice stated that he would make an order on the next court day.


[1] This report is from the Australian. The Sydney Gazette, 6 January 1825 called the parties Dargon and Windred, and noted that Mr. Rowe was the counsel for Dargan/Dargon.

[2] On the constitution of these courts, see also R. v. Magistrates of Sydney, 1824. On the supervisory and appellate jurisdiction of the Supreme Court, see J.M. Bennett, A History of the Supreme Court of New South Wales, Law Book Co., Sydney, 1974, 170-171, 178-182.

[3] These were, respectively, the Solicitor General and the Master in Chancery. The Attorney General at this time was Saxe Bannister.

[4] The Sydney Gazette's report of this case, 6 January 1825, p. 2, col. 5, noted that the Attorney General said that the when 18 Ed. 3 was passed, the commissions of the peace were in Latin, and that the word "quorum" had since been retained.

[5] 31 December 1824.

[6] Forbes C.J. made just this argument when he was in England in 1823. D'Arcy Wentworth and Oxley, two magistrates, had raised the issue of whether a "quorum clause" was necessary for appointments to the magistracy. Forbes said that as the commission as magistrate was not "part of the Common Law nor framed by Parliament, [it] is I think, open to variation according to circumstances. It may not be expedient to change antient forms at home; but in a Colony, whatever tends to simplicity, if legal, seems to be advantageous. The repetition of the names in the old Commission having become a mere formality, I thought it desirable to adopt an instrument shortened in this respect." Forbes to Bathurst (apparently), 4 August 1823, Mitchell Library, A1381, pp 5859.

[7] John Stephen.

Published by the Division of Law, Macquarie University