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

R v Broadbear and Broadbear [1826] NSWKR 1; [1826] NSWSupC 34

reception of English law, date of reception - married women's legal disabilities - supervision of inferior courts - master and servant - schools - education law

Supreme Court of New South Wales

Forbes C.J.,[1 ] 5 June 1826

Source: Sydney Gazette, 7 June 1826

 

Rex v. Broadbear & Wife.[2 ]--- This was an application to set aside a conviction, on the ground of illegality, that took place before certain Magistrates at Parramatta; the proceedings on which it was founded, having been brought before the Court by certiorari.  The charge against the defendants was, that they being servants attached to the Female Orphan School at Parramatta, and paid by Government, did leave their said service without having given due notice; in reply to which, the defendants pleaded, that their contract was made with the Rev. William Walker, the late Master of that Institution, in whose sole employ they considered themselves to be, and upon whose resignation of the office of Master of the said School, they had, according to an express understanding to that effect with him, and as they considered they had the option of doing, given up their employment.  Upon the complaint, however, of the Venerable the Archdeacon, the defendants were summoned to appear before the Bench at Parramatta, when, after hearing the evidence of the Rev. John Espey Keane, who deposed to the fact of the defendants being absent from the Institution, on the one side, and of the Rev. William Walker, who corroborated the statement made by the defendants, on the other, the Magistrates adjudged the defendants guilty of the charge, and sentenced them to be imprisoned for the term of 3 months, in the gaol at Parramatta, as the house of correction, under the provisions of the statute of the 12th Geo. 1st, cap 34.  The proceedings in the above case having been laid before the Court, by virtue of a writ of certiorari.  Mr. W. C. Wentworth stated, that it was an established principle, that summary convictions before Magistrates, being in derogation of common law, were looked upon with considerable jealousy; and that so far from being in any way in their favour, the intendment of the law was directly opposed to them.  In his opinion there were, at all events, ten objections to this conviction, any one of which he was convinced must prove fatal to it.  The statute under which the Magistrates had taken cognizance of this matter, provided by a clause which he had no doubt it would be endeavoured to be shewn applied to the defendants, that whenever any artificer, servant, labourer, &c. who had engaged for a specific purpose, should leave his service before the expiration of his contract, or without giving proper notice thereof that any Justice of the Peace was authorised, upon complaint made on oath by the person with whom he contracted, or by his steward or agent, to issue his warrant for the apprehension of such party, and to examine into the charge; and if it should appear that the contract had not been fulfilled, such justice was empowered to commit the offender for any time not exceeding three, nor less than one month, to the house of correction.  Upon this enactment, the conviction in the present case was grounded; and before he entered upon the question of its applicability, he would briefly state what appeared to him to be substantial objections, arising from the proceedings as they then appeared before the Court.  The first objection was, that it did not appear from the record, that any of those who had taken upon themselves to convict in this case, were of the description meant by the Act.  There was a certain technical form in describing Justices of the Peace, which could not be dispensed with; he contended, that the description which appeared on the record, would not be sufficient in an indictment, and therefore he would state, as his first objection, that the persons before whom this conviction took place, were not properly described.  The second objection was, that it did not appear from the record, that any connection whatever subsisted between the defendants and the complainant.  The record did not in any way shew what business the Archdeacon had with those parties.  The Act expressly provided, that the complaint should be made by the contracting party, or by his steward or bailiff; but in this case, the information stated, that the Archdeacon came before the Justices and informed them, that the defendants were absent from their employ.  Such was not the form of proceeding which should have been adopted, as it was quite clear that no information should satisfy the Magistrates, but an information on oath, and not having been so, he contended was fatal to the proceeding.  The next objection was, that the defendants were not at all distinguished; it was quite clear, that an indictment would be bad for want of some addition.  The defendants might not be persons to which the Act applied, and as he before observed, from the jealousy with which the law looked on such convictions, and as the Court could know nothing of the defendants, it should have been shewn that they came within the purview of the Act of Parliament.  The fifth objection he should make, was, that no warrant had been issued.  The conviction said, that after being duly summoned, the defendants appeared.  But the only way in which they should have appeared, was in charge of a constable; they should have been apprehended.  The sixth objection was, that they had not been convicted upon evidence receivable before the Magistrates.  The Act confined the evidence to be given, to the principal contracting party, or to his bailiff.  It did not appear from the proceedings, that the Rev. Mr. Keane was the complainant, and it was clear he was not the bailiff.  It was also clear that the Rev. Mr. Walker was not the complainant, and therefore the evidence upon which the defendants had been convicted, was in view of the Act, a nullity, as it should not have been received, the complaint being expressly confined to the contracting party, his agent, or bailiff, and the evidence to be given by the same.  The evidence of these parties should not have been received, and was therefore incapable of sustaining the conviction. The eighth objection, was, that even if the evidence had been legal, still it did not warrant the conviction.  The evidence clearly shewed, that the defendants were the servants of the Rev. Mr. Walker, who expressly swore that they were so, and therefore, nothing appearing to contradict that testimony, he contended that even from the evidence, illegal as it was, the conviction should not have taken place.[3 ]  These objections applied generally to both the defendants; but there was one particularly applicable to the woman.[4 ]  It appeared even from the conviction, that she was the wife of the other defendant, and therefore, as against her particularly, the proceedings were wrong.  There were cases of conviction of married women, which might appear analagous to the present, but he contended, that a woman was not in a condition to make any contract during her coverture, which could bring her within the provisions of the Act, under which the conviction had taken place.  The next objection was one which the Magistrates themselves seemed to have been aware of.  The defendants were committed to the gaol, as the house of correction, but in this country there was no house of correction.  A house of correction could only be created by an Act of the Legislature, and the defendants, therefore, were not confined in that only place to which these Justices had power to commit them.  Upon those grounds, he moved that the conviction should be quashed, forbearing to make any comments on the transaction, but reserving them for a more fitting opportunity, which he had no doubt would necessarily and inevitably arise out of the present proceeding.

The Attorney-General, in reply, observed, that he did not appear to support the conviction, but the merits of the case.  He would be glad had the case been carried farther, but as it was not so, it would have been better had the threat of ulterior proceedings with which the Learned Gentlemen concluded been spared, as he was at all times ready to meet the case in any way upon its substantial merits.

With the first objection which had been taken, he did not agree, namely, that it was necessary to set forth the description of the Justices more clearly, as he did not apprehend that where the law authorized a summary conviction, that such conviction should be drawn up in any way further than fully to shew the case, and where an Act gave Magistrates power to act summarily it was enough to shew that they acted upon that commission.  With regard to the second objection, the Acts creating a summary tribunal for the entertaining of domestic disputes were much connected with the poor laws, but whether the King's Representative might or might not have acted conscientiously, he was free to admit that they did not let in that officer.  The third objection was, that the complaint had not been made on oath, and this was connected with the fifth objection, that no warrant had been issued.  The Act gave the Magistrates a power to compel an appearance, but when persons heard they were charged with an offence, in order to avoid expense and to meet the complaint, they would come into Court without any warrant being issued, and surely where the statute gave a power to compel a defendant if he was unwilling, it was absurd to say that if he was willing to come forward he was obliged to pay the same expense.   The fourth objection was, that the defendants were not designated in the record as being within the description of persons mentioned in the Act, but that they came under the description of labourers or other persons he was prepared to argue.  A wide construction was given to those words.  Where it was shewn that parties owned a menial service, as domestic servants, they were within them, and from the evidence of the Reverend Messrs.  Keane and Walker, it appeared that their character as such was fairly before the Magistrates.  The question was whether the Court could see upon the record that the Magistrates considered them as the servants of the Institution.  The sixth objection was, that the evidence was not legal under the terms of the Act.  In this objection, he was inclined to think, there might be some weight, and he would therefore prefer supposing the question to turn upon that point, to leave it to the grave consideration of the Court.  The seventh objection arose out of the sixth, and the answer to it would be found in the answer to the sixth.  The eighth objection was, that the evidence, even if legal, did not warrant a conviction.  This was a material part of the case, and he was here obliged to admit that the Magistrates disbelieved the positive testimony of Mr. Walker, in opposition to a chain of circumstances and to the characters of the defendants as they appeared before them.  The Magistrates say to Mr. Walker, "We do not say that we would disbelieve you as to a positive fact, but we disbelieve your notions on your conclusions."  They say, "Give us some explanations how the defendants are your servants?"  And under these circumstances, if the Magistrates presented to the Court evidence to shew a conclusion drawn from some part, and rejecting another, he contended, that the Court could not review that weighing of evidence.  If only one character could be attributed to the evidence, and that the Magistrates drew a conclusion contrary to that character, then the Court would restrain them, but when it presented two characters, one upon the assumption and opinion of A. B. and another of a description of a transaction upon which the Magistrates or any other persons might draw a conclusion, then they were at liberty to draw a conclusion from one part and reject the other.  In the evidence of Mr. Walker, there were a solitary assertion that the defendants were his servants.  There was a conclusion that they were the servants of Government; paid and adopted by it into the Institution, a pledge having been given that the Master should not be out of pocket.  What was the nature of that pledge?  The Master felt a want, a very natural one, of more assistance than himself and his wife over 120 girls.  It was inconsistent that any Government would expect they could undertake the care of so many without assistance, or a proportionate salary to provide it.  The servants were engaged, and the moment that the want was made known they were immediately adopted into the Institution.  Such was the feelings of the Magistrates opposed to one assertion.  They judged from a train of facts, and if it was a rule of law to yield to a man's assertion, there could not be had in this country one conviction in a hundred.  People would say any thing, they would yield to all errors; and certainly, in this case, a most erroneous impression had been entertained, as how Mr. Walker could think the defendants his servants in a crown establishment, and paid by the Government, he was at a loss to think.  The ninth objection, particularly applied to the woman.[5 ]  Upon this objection, a point of law might turn upon her capacity to contract, as taking it to be law, that a wife cannot enter into a contract; and looking at the words of the Act itself, which expressly mentioned his contract, seeming as if it did not mean to visit females under its summary jurisdiction, he was disposed to admit that the Act did not contemplate females, though he still was not surprised that the Magistrates should have fallen into an error on that point.  The tenth objection, relative to the house of correction, involved a question on the municipal laws of England, and their applicability to this Colony.  He was of opinion they did not apply.  It was a question of considerable importance, and one upon which he had lately thought it necessary to write to England,  Upon this subject, though he was aware that it was unusual for English lawyers to refer to foreign authorities, still he would briefly notice, that in a report of the Judges of Pensylvania, in the year 1800, as to what statutes did apply to America, and what did not, it was decided that the labourant Act, of the 5th of Elizabeth, was never in force there, and that upon the principle, that the labourant laws were so connected with the pool laws, and with the local condition of England, that there would be an absurdity in fettering the country with provisions which did not apply there.  In reply, therefore, to the last point, he considered it should be looked at as merely technical, and not as substantially an objection.  With these observations he would leave the case with the Court, merely remarking that whenever those other proceedings which were threatened, should be adopted, he was perfectly ready upon the substantial merits of the case, to fight the battle over again.

Mr. Wentworth having risen to reply, His Honor observed, that there was no necessity for so doing.  The objections taken were, in point of number formdable.[sic] There were also substantial objections, supposing the statement made by Counsel to be correct, and he would therefore reserve the case to look into its merits.  He was anxious not to rest the case upon a point of form, and to see whether the Magistrates had authority over the matter upon which they had undertaken to decide.  He would therefore defer judgment to Friday morning.

 

Forbes C.J., 9 June 1826

Source: Australian, 10 June 1826

The King against Richard Broadbear and Mary his wife.

 

Broadbear and his wife had been committed at the instance of the Archdeacon, by the Bench of Magistrates of Parramatta, (some of the Magistrates never having been present on any former occasion.)  The conviction was alleged to be illegal on various grounds.  The defendants had a situation at the Female Orphan School, and the offence charged against them was, that they had left their service without due notice.  This case was mentioned in "the Australian" some weeks since.  The proceedings of the Magistrates were brought into the Supreme Court, and the merits of the conviction argued on Monday last.  Yesterday the Chief Justice gave his decision in the following terms:[6 ]The conviction made by the Magistrates in this case, has been objected to on many grounds.  Some of the objections rest upon the form of the conviction, and others proceed upon the more solid basis of the want of jurisdiction.  I intimated at the close of the arguments of Counsel, that assuming the defects upon the face of the conviction itself, to be as stated, they appeared formidable; but I deferred expressing any decided opinion on them until I should be able to look into the whole case, and see if the Magistrates were substantially right in what they did  although they might have erred in the manner of stating it; and I do not hesitate to declare, that, if upon a careful examination of the whole facts of the case, I could have discovered a legal foundation for the summary interference of the Magistrates, I would have strained hard to support their jurisdiction.  Adhering to the same principle, I shall dispose of the case upon its merits, observing by the way that the summary form of conviction pointed out by the Act 3, Geo. 4, chap. 23, which appears to have been followed by the Magistrates, gets rid of many of the formal objections made by the defendant's Counsel.  The case then substantially raises two questions - whether the law under which the conviction was made applies to the Colony; and, supposing the law to apply, whether the situation of the parties brought them within it?  What Statutes, or parts of the Statutes of England, are to be received as part of the law of this Colony, cannot be exactly defined.[7 ]  As a general proposition, it is laid down by text writers on the subject, that if a new country be settled by English subjects, all the laws then in being are transported there as the birth-right of every subject.  "But this," says Judge Blackstone, "must be understood with very many and very great restrictions; such Colonists carry with them only as much of the English law as is applicable to the condition of an infant Colony."  It is upon this point, the applicability of the Statute, that the difficulty always presents itself: sometimes in the form of objections to the policy of the law itself; and sometimes to the want of the necessary machinery to set it in motion.  One of the objections taken by the defendants goes to the latter point - viz. that the penalty of the law is commitment to the house of correction, and that there is no house of correction in the Colony.  But the same objection may be raised to other statutes, which unquestionably do apply - for example, the Statute 2, Geo, 2, chap. 36. is expressly directed by the New South Wales Judicature Act (sect. 40) to be enforced in this Colony; and that Statute (sect. 4) contains a provision for punishing refractory seamen by commitment to the house of correction.  In the absence of positive law, it is always a relief to find the concurring opinions of able lawyers, and to see what has been considered applicable to the condition of other Colonies.  It is said by Pemberton, in arguing the case of Blankard v. Galdy (4 Mod. 9th[8 ]) that the Statutes of Usury and Labourers[9 ]are not used in Jamaica; and, with some experience in other Colonies, I can say that I have never known them applied in any of those with which I am acquainted.  Indeed, the whole principle of labour is different from what it is in the Mother Country.  In most, perhaps in all of the older English Colonies labour, properly so called, is forced either by a system of slavery or penal discipline; in England it is free  the difference in the two systems requires a corresponding difference in the law; in the one, it is regulated by the will of the master, under a few humane restraints; in the other, in the great divisions of husbandry and manufacture, it is made the subject of a very large and particular body of enactments, proceeding on a principle of reciprocal lights[10 ] [sic] and duties.  Looking to the policy the whole context of these Acts, I do not think they apply to this colony.

But whatever doubt may exist as to the applicability of the Act under consideration, it is clear that the case before the Magistrates at Parramatta, did not come within its operation.  The Act (6. Geo. 3, chap 25,) recites that "it frequently happens that artificers, calico printers, handicraftsmen, miners, colliers, keelmen, pitmen, glassmen, potters, labourers, and others, who contract with persons for certain terms, do leave their respective services before the terms of their contract are fulfilled; for remedy whereof, the Act goes on to provide, that if any such artificer &c. or other person, shall absent himself from his service, before the term of his contract it shall be lawful for any Justice of the Peace to inquire into the complaint, and if it shall appear that such artificer &c. or other person, shall not have fulfilled such contract, to commit such person to the house of correction for any time not exceeding three months.  The question then is, whether by the words "or other person," are meant every person who may have contracted in any manner to serve another, or only persons of a class or description similar to those particular persons, who have been before specified.  If the words are to be taken in their general sense, then there was no occasion for any specification whatever, and a great part of the Statute becomes nugatory; for it carefully particularizes a variety of artizans, and concludes with the use of general words, which comprehend every one of the persons it had just before been at the pains of specifying, and which, by a very easy gradation, might be made to extend to every person who contracts to serve another person for a given time, in the capacity of a clerk, a steward, or a factor. - That it was never the intention of the Legislature to subject such persons to the degrading punishment of a house of correction, is too clear to be doubted.  Upon the reason of the thing, as well us [sic] by the analogy of decided cases, the general words of the Statute must be restrained to artificers, labourers, and persons ejusdem generis.[11 ]  Among such persons, domestics, or menial servants are not included; they form a distinct class of persons, from what the law terms artificers, or labourers, and are regulated by a distinct law.  It has been decided, that the Statute, 5th Eliz. chap. 4, does not apply to them, and they are not within the policy of the provisions of 6th Geo. 3.  I cannot find any instance of a domestic servant being sent to the house of correction for a breach of his contract; and considering the frequency of the occurrence, we should have found some cases in which the law would have been put in force, if it had been thought to apply; the silence of the books carries an argument of some weight, but I rule the point, upon the broad principle, that I do not think that house servants are within the intention of the Act, 6. Geo. 3, c 26.  In looking into the conviction before the Court, I collect that the defendants were menial servants in the Orphan School at Parramatta; whether engaged for the use of the general establishment, or retained for the especial service of the Superintendent and his wife, is of little consequence; they were domestics, properly so speaking, and as such they were not subject to the provisions of the act under which they were convicted.

The proceedings of the Magistrates, therefore, must be quashed.  I will not conclude, without availing myself of this occasion to suggest to the Magistrates of the Colony the necessity of stating in every conviction the substance of the charge, and such a description of the person complained of, as may enable the party himself, as well as this Court, to see what is the nature of the offence with which he is charged.  This conviction merely states that Richard Broadbear, and Mary his wife, did leave their employ at the Female Orphan School, without any further description of what that employment was, or how far it came within the law.  The form of conviction I have already alluded to, and a similar form adopted in the rules of practice for the Justices in and out of Sessions in this Colony, have provided an easy form of conviction; but both forms expressly require, that the facts for which the information is laid should be set forth - that is, should be set forth in a short but at the same time substantial manner, so as to shew that some offence in law has been charged.[12 ]

 

Notes

[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826.  In the meantime, Forbes C.J. sat alone.

[2 ] For other 1826 cases involving education, see Walker v. Scott (No. 2), January 1826; Halloran v. Hall, May 1826.  These arguments were also reported by the Monitor, 9 June 1826.  The Broadbears later sued the magistrates for false imprisonment, see Broadbear and wife v. McArthur, McAlister, and Bowman, March 1827.

The cases concerning the Broadbears and Scott are discussed by C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 17. 

Forbes described these cases to Horton in a letter on 27 March 1827, Historical Records of Australia, Series 4, Vol. 1, pp 711-713.  He found it interesting that the only times magistrates had been accused of acting according to their own personal feelings had each concerned the same family, the Macarthurs.

[3 ] According to the Monitor, 9 June 1826, W.C. Wentworth here referred to "7 Term Reports 152 - 6 do. 178-8 do. 580 - case Burrows, 1166 and 2063".

[4 ] According to the Monitor, 9 June 1826, this objection was simply as follows: "The woman was a feme covert, and the proceedings of the magistrates, on this account, were invalid as to Mrs. Broadbear. "

[5 ] The Monitor,9 June 1826, put this as follows: "The old law of Fitzherbert was mis-quoted by Burns, which accounted for the justices falling into the course they pursued in convicting the wife of the defendant, though a feme coverti.  The law was as old as Edward III. which declared, that when a man and his wife contract to serve, they shall serve, &c."

[6 ] The Sydney Gazette, 10 June 1826, gave an identical report of the judgment, except for minor matters of punctuation and one different reference, as noted below.  It is probable, then, that the Chief Justice handed down a written copy of his judgment to the press, to ensure that it was accurately reported.  See Walker v. Scott (No. 2), January 1826, footnote 3.

[7 ]The statute Forbes C.J. has just referred to, 3 Geo. 4 c. 23 was passed after 1788, and so, on conventional theory, should not have been operational in New South Wales unless the legislature said so explicitly or by necessary implication.  Forbes had a different theory, however.  In his view, when a colony had no legislature, the general statutes of England, even if passed after the colony commenced, were part of the new colony so far as they were applicable to the condition of the colony.  The key date of reception was the date of the establishment of a colonial legislature, according to Forbes.  See Forbes to Horton, 15 December 1826, Historical Records of Australia, Series 4, Vol. 1, p. 678, and see cl. 4 of his draft bill, p. 649.  See also A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, pp 394-396, showing that Forbes had developed this theory in Newfoundland, which went without a legislature for centuries.

[8 ] The Sydney Gazette, 10 June 1826, gives this reference as 4. Mod. 225.

[9 ] On the reception of English usury law, see Macdonald v. Levy (1833) 1 Legge 39.

[10 ] The Gazette and the Australian both printed "lights" rather than rights; the error must have been in the document handed down from the bench.

[11 ] Of the same kind or nature.

[12 ] The Broadbears subsequently sued the magistrates for false imprisonment: Broadbear and wife v. McArthur, McAlister, and Bowman, March 1827.

Forbes had shown the same eagerness to review the decisions of amateur justices in Newfoundland: see B. Kercher, "Law Reports from a Non-Colony and a Penal Colony: the Australian Manuscript Decisions of Sir Francis Forbes as Chief Justice of Newfoundland" (1996) 19 Dalhousie Law Journal 417, pp 420-421.

Published by the Division of Law, Macquarie University