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

Transportation Opinion [1826] NSWSupC 77

Sudds and Thompson case - transportation, convict - convict punishment - Crown prerogative - Crown mercy - press freedom

Forbes C.J. and Stephen J., 13 December 1826

Source: Enclosure to Forbes to Horton, 15 December 1826, Mitchell Library, Reel CY 760; Historical Records of Australia, Series 1, Vol. 12, pp 755-757[1 ]


In answer to your Excellency requiring our opinion as to the powers which are given to you as Governor of New South Wales by Ordinance of the Legislative Council No. 5,[2 ] we beg leave to state our opinion as follows.[3 ]

The best guide to the true meaning of the several clauses under consideration, will in our opinion, be found in the local circumstances which gave rise to the passing of the Ordinance; Transportation as a punishment owes its origins to Statute law and is regulated by a series of acts, which particularly point out the manner in which it shall be carried into effect.  These Acts may be viewed under two distinct heads, vizt. Transportation as a measure of punishment and the manner of carrying such transportation into effect.  In the 19th year of His late Majesty's reign a power was for the first time given to the Court; to award, in lieu of transportation, hard labor in certain Public Works;[4 ] this power has since been continued, under various modifications and forms part of the Criminal code of England at the present day -

In carrying into effect the penal laws of England in New South Wales, serious difficulties presented themselves in the details - the principal of which were, the impracticability of carring [sic] transportation into effect in strict conformity with the Statutes, and the want of a substitute for transportation, by the employment of Prisoners in Penitentiaries or Public Works.  There was a difficulty also, as to assigning Prisoners convicted in the Colony - It was to remedy these defects, that the Ordinance under consideration was passed, as will clearly appear by the following summary  -

(The first clause is immaterial to the present question)  - the second clause indemnifies the Ministers of justice for carrying into effect any sentence of transportation, in a manner different from that pointed out by the Statutes - the third clause authorises the Governor to carry into effect all future sentences of transportation, in such manner as he may think proper - the fourth clause enables his Excellency to assign prisoners convicted of (transportable) offences within the Colony, in like manner as prisoners are assigned, who have been transported from England; and also authorises the Courts in the Colony, in cases where the Courts at home might award imprisonment and hard labor, on the roads - to pass sentence of imprisonment & hard labor but with this proviso, that for a first offence, such hard labor should be within Prison walls only - the Court however may still transport, in its discretion, agreeably to the laws of England, which are not altered or repealed by the Ordinance.  It is discretionary with the Court here, as it is in England, either to pass sentence of transportation or imprisonment and hard labor - but in case it should award the latter, for a first offence, it is limited as to the place in which such sentence shall be carried into effect.  So far the Ordinance in question places the powers of the Courts, and the execution of the laws, in this Colony, in unison with the laws of England. -  In the clause which follows, there is a difference which we shall proceed to notice -  The sixth clause enables the Governor to withdraw persons transported to the penal settlements, and either to work them in irons on the roads, or to assign them to Settlers in the ordinary manner.  This is certainly a wide discretion, and we think not sufficiently defined -  We are of opinion that it will be best interpreted by referring to those well known circumstances which gave rise to it, and which are alluded to in your Excellency's Proclamation on the eighth day of June last.  It has occurred, and in the course of things, will frequently occur again, that persons at the penal settlements, may require the interposition of Government; either to mitigate the condition of those, who by a tried course of regular conduct may be thought fit to be restored to the service of the Settlers; or by a contrary course, have proved the inefficacy of existing restraints upon them; and may therefore require a different mode of punishment.  It was to meet these circumstances, from time to time, that the Governor appears to us to have been invested with a discretionary power given by the clause above mentioned.  It should, we apprehend, be exercised, upon a sound consideration of the circumstances of good or ill conduct on the part of the Prisoner, subsequent to his being sent to a penal settlement.[5 ]



[1 ] There is another copy of this opinion in the Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 88.

[2 ] 7 Geo. IV No. 5, an Act of the  New South Wales Legislative Council.

[3 ] This was an advisory opinion, but the distinction between legislative, judicial and administrative actions was unclear under (1823) 4 Geo. 4, c. 96, the colony's constitution.  Forbes C.J. was a member of the Legislative Council as well as the Executive Council, and was also required to give opinions as to the consistency of colonial Acts with the laws of England.  See B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995,  pp 70-71.

The opinion was given in response to the following letter from Darling to Forbes and Stephen, a copy of which is attached to the opinion in Mitchell Library, Reel CY 760.  "A difference of opinion being entertained with respect to the powers vested in the Governor of this Colony by the 6th Section of the Act of the Legislative Council, dated the 16th day of August last, No. 5; I am to request that you will take the said Act under your consideration, and favour me with your opinion as to the powers given to the Governor by the 6th Section as above referred to."

[4 ] The reference is to (1779) 19 Geo. III c. 74, and to hard labour by those who were confined in the hulks in England.  See A. Frost, Botany Bay Mirages: Illusions of Australia's Convict Beginnings, Melbourne University Press, Melbourne, 1994, ch. 1.

[5 ] The document was then signed by Forbes C.J. and Stephen J., after which in Reel CY 760 (Mitchell Library) is a further note:  "Note this opinion was given after the case of Sudds had happened - the Governor does not appear to have had any doubts about his powers, until the occurrence of that case, and the question which was raised by it - F.F."  This is a note from Forbes to Horton, to whom he was sending a copy of this advisory opinion.  The covering letter to Horton is in Reel CY 760 and in Historical Records of Australia, Series 4, Vol. 1, pp 669-679.

In the letter, Forbes told Horton that in giving effect to the penal laws of England, he and Pedder (Chief Justice of Van Diemen's Land) used to pass sentence of transportation and leave it to the Governor to carry the sentence into effect.  The new colonial Act (7 Geo. IV No. 5) gave the Governor power to withdraw prisoners from penal settlements, and either to work them in irons on the roads or to assign them to settlers.  The aim was to allow the Governor to send people into private service as a reward for good behaviour, and to punish others with work on the roads.  Governor Darling misread his powers in the case of Sudds and Thompson, according to Forbes.  Sudds and Thompson were soldiers who had been convicted of larceny and sentenced to transportation.  Their aim, apparently, was to commit a minor crime and so obtain a discharge from the army.  To discourage this, the Governor issued a garrison order, under which Sudds and Thompson were taken from gaol, dressed in chains, paraded before the regiment and drummed out of it.  They were then returned to gaol.  A few days later, Sudds died, "apparently from a sense of shame operating upon a diseased body" said Forbes.  The case deserved exemplary punishment, said Forbes, but the Governor acted "in error" in increasing the sentence.  The chains weighed almost fourteen pounds, and were on him for fourteen hours, though Forbes did not think that they contributed to the death.  He also said that he thought that Darling did not intend to act illegally, nor with cruel intention.

Darling ordered the two to be sent to work on the roads: "I am directed by His Excellency the Governor to request that the Prisoners named in the margin [Joseph Sudds and Patk. Thompson] may be forwarded in irons by water to Parramatta immediately accompanied by a proper escort and delivered over in that Town to the assistant Inspector of Roads. ... The Master Attendant will provide a conveyance - and the Major of Brigade will order a Military Guard to attend them to the boat."  (Source: McLeay to MacKaness, 24 November 1826, Archives Office of New South Wales, Reel 624, Copies of Letters to the Judicial Establishments.) The irons ordered by Darling included an iron ring around the neck and small chains leading from it to the leg irons.  Thompson was sent to an iron gang to work in his unusual irons, and from there to Moreton Bay. This was illegal because the Act allowed the governor only to withdraw a prisoner from transportation, not to send him directly to work on the roads.  (See C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 18, which contains a lengthy account of the case, although it does not include the material from Forbes' personal papers which is discussed in the next paragraph.)

In a document among Forbes' personal papers, headed "Sketch of Defensive Operations" and apparently written by Forbes, it is claimed openly that the sentence of work in irons was illegal and "added by the sole fiat of the Governor".  This hints at what was apparently Forbes' true view of the matter, rather than the one he told to Horton.  The document lists the autocratic actions of Darling, and is apparently Forbes' defence of his own actions in his developing conflict with Darling.  Another document in the same collection, in what appears to be Forbes' handwriting, says: " Sudd's case - Thompson's case - vindictive and cruel; under plea of necessary discipline-  pretends to take Thompson from iron gang, on account of his good conduct, & then sends him into exile - the only punishment he was legally liable to."  (Source: Forbes Papers, Sudds, Thompson and Robison, Mitchell Library, A 743.)

Two despatches from Darling to Bathurst dated 4 December 1826 (Historical Records of Australia, Series 1, Vol. 12, pp 715-725) gave the governor's side of the story.  At that stage, he still thought he had acted legally.  He enclosed a number of documents, including the General Order, and the articles from the Australian dated 25 and 29 November 1826.  He also claimed that the irons were "light in the extreme," failing to mention that he had ordered their special manufacture for these prisoners.  "As to the fate of Sudds, it can hardly be supposed that a Man, who could deliberately commit such an Act with so base an intent, could possess any sense of shame, or really feel the degradation, to which he had wantonly and wilfully subjected himself."  In a despatch dated 4 December 1826, Darling enclosed the medical report which he thought would be published in the London Morning Chronicle, which so often published articles on New South Wales (Historical Records of Australia, Series 1, Vol. 12, pp 730-731.)  Darling wrote again to Bathurst on 12 December 1826 (Historical Records of Australia, Series 1, Vol. 12, pp 741-749).  This time he strengthened his view that the fault lay in the hospital.  This despatch includes the minutes of an Executive Council inquiry into the death of Sudds.  The council backed the governor's version of the events. Showing extreme sensitivity, Darling sent another despatch to Bathurst on 15 December (pp 749-761) and to Horton on the same day (pp 761-766).  The despatch to Bathurst reiterated Darling's view of the legal position, and said that the newspaper articles were part of a political campaign against him.  His  despatch to Horton shows that Darling saw this event as the turning point in his relationship with the Australian, which linked it to the cause of press freedom and political reform.  He enclosed a Memorandum from Forbes on the subject (pp 763-764).  The memorandum stated that the conduct of the soldiers deserved exemplary punishment for the example it held to other soldiers.  Forbes carefully answered only the question whether the punishment would have been worse than Darling ordered had the offence occurred in England; he concluded that it would not.  In England, they would have been worked at hard labour on the docks before transportation, then transported in irons, and finally put to labour in a penal settlement, in irons for security if necessary.  (He cited 5 Geo. 4 c. 8, ss13, 18.)  The press outcry over the Sudds case occurred, he said, as a focus for the campaign for political reform; a new constitution bill was then being drafted.  It was all "a political juggle" said Forbes.  This undated memorandum avoids the question of the legality of the governor's actions, and appears to hide Forbes' real attitude to the affair. The series of despatches ends with one from Darling to Hay, dated 16 December 1826 (pp 765-766), in which Darling concentrated on the press.  The Monitor had been immoderate for some time, he said, and now the Australian had joined it.  Wardell was unprincipled and Wentworth a mere demagogue.  They were campaigning for political reform, but there was no agreement in the colony.

Governor Darling did not give up immediately in the face of the formal opinion from Forbes C.J. and Stephen J.  On 6 December 1826 he sent Forbes an opinion written by Acting Attorney General Moore (which is at Historical Records of Australia, Series 1, Vol. 12, pp 753-755).  He told Forbes that he wanted to talk to him about it.  Forbes added a note to Darling's letter: "Memorandum - I answered immediately, that the opinion of Mr Moore was correct, as to the sentence passed by the Justices in Sessions voy [sic] transportation - but I intimated a doubt whether the power given by the ordinance of the 16th August to the Governor to "withdraw" persons from transportation, was intended to give a general authority to work in irons on the high roads, until the person had been actually transported and had committed some act of misconduct, to call for added punishment."  (Source: Mitchell Library, AD 27/3.)  The judges' advisory opinion which is published here was written in response to this opinion of Moore.  Moore wrote another opinion on 15 December 1826, two days after that of the judges (Historical Records of Australia, Series 1, Vol. 12, pp 759-761).

As the participants said in their despatches and letters, the treatment of Sudds and Thompson caused an outcry in the opposition newspapers, such as the Australian and the Monitor; see, for example, Monitor, 24 November 1826.  Ultimately, the editor of the Australian, the barrister Dr Wardell, was prosecuted for seditious libel over his comments on this and other issues.  See R. v. Wardell (No. 3), December 1827.  That year saw regular prosecutions for libel against the editors of the Australian and the Monitor.

Ultimately officials in London agreed that Darling had acted illegally, and ordered the release of Thompson: Historical Records of Australia, Series 1, Vol. 13, pp 439-441; A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, p. 160.  For the parliamentary papers on the matter, see Sydney Gazette, 10 January 1829; and see its commentary on 13, 17 and 22 January, 21 and 28 March, and 2 April 1829; and that of the Australian, 20 January, 20 March, 23 October, 4 November 1829.  Thompson was eventually ordered to rejoin his regiment (Sydney Gazette, 28 March 1829) and was sent back to England in October 1829 (Australian, 23 October 1829).

The Sudds and Thompson case became one of the key points in the controversy over the allegedly autocratic tendencies of Governor Darling.  Eventually Darling learned the immediate lesson from the case.  In 1829, two more soldiers were found guilty of a property crime, and Darling ordered that they be treated solely according to the ordinary criminal law.  The Australian used the new case to revive the Sudds issue, and this was one reason Darling gave for not interfering again.  He also said that his treatment of Sudds and Thompson had had an effect, because for the succeeding two years, no other soldiers committed crimes in order to get out of the army.  Now, however, Darling said, the controversy surrounding it meant that soldiers thought that this was a safe route out of the army.  His fingers having been burnt, he would leave the matter to the British government.  It is obvious from the correspondence about the new case that Darling was sensitive to the criticism he had received over the Sudds incident.  It had been discussed in parliament, and more than two years later Darling rehearsed his defences over it, saying that he had been unaware of Sudds' illness, and blaming the doctor who had attended him.  (Source: Darling to Murray, 29 January 1829, Mitchell Library, A 1204, Reel CY 537, pp 83-99; A 1204, Reel CY 537; Historical Records of Australia, Series 1, Vol. 14, pp 618-621.  Ultimately, W.C. Wentworth tried to impeach Governor Darling over his treatment of Sudds and Thompson.  The papers are in Historical Records of Australia, Series 1, Vol. 14, pp 793-899.)

By 1829, the Australian was no longer owned by Dr Wardell, but by A.E. Hayes, and its 1829 articles on the Sudds case led to his prosecution for seditious libel before a military jury.  Hayes served his sentence of six months imprisonment and a fine of £100, and later found that his convict servants were withdrawn by Governor Darling.  Darling also refused to make land grants to Hayes and his wife.  (Source: Memorial from A.E. Hayes, 8 January 1832, Mitchell Library, A 1267-13: Reel CY 773,  pp.1103-1108.)  See also Australian, 7, 14 and 21 January 1831, showing that the controversy lasted many years.

Attorney General Bannister also delivered an opinion on transportation: see Bannister on Transportation, 1825.

Published by the Division of Law, Macquarie University