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

Convict Assignment Opinion [1827] NSWKR 5; [1827] NSWSupC 62

convict service, convicts, analogy with slavery, transportation, convict, ticket of leave, legality, felony attaint, right to sit on jury, trial by jury, Forbes C.J. and Governor Darling, conflict between

Forbes C.J., 3 October 1827

Source: Historical Records of Australia, Series 1, Vol. 13, pp 608-612

Remarks upon the present State of the Transportation Laws with reference to the right of property and the remission of sentence of Convicts in New South Wales.[1 ]

In the earlier periods of the Settlement of New South Wales, the supply of Convict labour so far exceeded the demand that questions of property were seldom agitated; of late, since the demand is greater than the supply, the question has been raised, and, as it is of the greatest importance that it should be clearly understood so that a proper remedy may, if necessary, be applied. I have felt it a duty to lay the following remarks before the Governor of the Colony in order that they may be transmitted to His Majesty's Government.

Transportation as a punishment being entirely founded in the Statutes, the manner of carrying it into effect, as well as the consequences attending it, must depend upon the specific provisions of the Legislature.

The 4th Geo. I, Ch. 11, recites the want of servants in the Colonies, and provides that certain Offenders should be liable to transportation; it then goes on to empower the Judges, before whom certain offenders should be convicted, to transfer their Services and contract with certain persons for their transportation; it vests a property in such contractors, or their assigns, for the entire term of transportation; it provides that His Majesty may dispense with such transportation, "paying to the owner or proprietor such sum of money as shall be adjudged reasonable by any two Justices of the Peace," and that, where such offender shall have been transported and served his time according to his sentence, such transportation and service shall have the effect of a pardon to all intents and purposes.

The above Statute applied in terms only to the Colonies in America.  The 19 Geo. 3, Ch. 74 (continued by several Statutes to the passing of the present transportation Act, 5 Geo. 4, Ch. 84) extended its provisions to all other places beyond the seas, to which Criminals might be transported.  The present Act, 5 Geo. 4, c. 84, leaves the general principles of the Act 4 Geo.  I unrepealed; and, as most of the Convicts now in the Colony were transported at a time when the clause, respecting the compensation to be awarded by two Justices of the Peace, was in express operation, it may be a question still whether the right of property, vested under the clause referred to, does not survive the expiration of the Statute, 19 Geo. 3, Ch. 74, as part of the sentence or as incident to the sentence under which the convict himself is still held in bondage.  In this view of the case, it would not be lawful to dispense with the Sentence of Transportation of any criminal under the late transportation laws, except upon paying to the Proprietor a reasonable sum of Money as directed by the Act.

The present Act (5 Geo. 4, Ch. 84, Sect. 8) follows the general principle in respect of property in the services of assigned convicts, laid down in the Act 4, Geo. I.  Omitting the provision respecting the payment of a sum of money to the Assignee of such Convict.  As a general proposition, therefore, there can be no doubt that the Assignee of a person, transported by law to New South Wales, has a legal right of property in the services of such person during the period of his term of transportation, and that he can only be divested of such property by law, or by the act of reassignment to such other person as he may think fit.  The law is the only rule in interpreting this right of property; it is peculiar in itself; it is the creature of Acts of Parliament; and the Acts themselves must be strictly followed; where they are silent, there is no law, and the relative situation and duties of the Convict and his owner or Proprietor can only be understood and regulated with reference to the Acts of Parliament, and such plain consequences arising out of them, as are clearly and indisputably implied consequences of the Acts, such for example as protection, food, clothing, etc., on the part of the master, and performance of the labour imposed by the assigned Servant.  Any limitations upon the free right of assignment conveyed by the Acts of Parliament, any conditions beyond the necessary consequences of such Acts, any reference to tribunals not legally authorized, any thing in short not in the Acts themselves is illegal and void, unless it can be shewn to be derived from the local laws of the Colony, such laws not being an encroachment upon or at variance with the Acts of Parliament.

Such in my opinion is the right of property, which the Assignee of a Convict has in his services by law.  I shall next enquire how far this right of property may be destroyed by the remission of the Sentence of such Convict.

The 5 Geo. 4, Ch. 84, Sec. 9 Provides that nothing in that Act shall affect His Majesty's Prerogative of Mercy.  His Majesty, therefore, by his Royal Pardon granted in the regular way, may remit the term of a transported Convict, and thereby destroy the right of property vested in his Assignee.[2 ]

It is clear that the Governor of the Colony could not in any manner interfere with Sentences passed upon Criminals in England; it was not even supposed that the power of mitigating such sentences could be delegated by the King; and therefore the Statute, 30th Geo. 3, ch. 47, was passed, by which his Majesty was enabled, by commission under the Great Seal, to authorise the Governors of New South Wales, by "instrument under the Seal of the Government,"  to remit either absolutely or conditionally the whole or part of the term, for which offenders had been transported from Great Britain, such remissions to be included in the first general Pardon, which shall pass the Great Seal of Great Britain, and in the mean time to have the effect of a sign manual pardon.

The general power of pardoning offences committed in Great Britain, thus conveyed to the Governor of New South Wales, being found inconvenient, it was restrained by the 4 Geo. 4. Ch. 96, Sect. 35, and His Majesty's approval or allowance was made a condition precedent to the benefit of a pardon granted by the Governors.  So stands the law at present.

A practice has prevailed in New South Wales of granting what are called Tickets of Leave, are not "remissions of sentence" within the meaning of any of the Acts; they amount to nothing more than allowing a Prisoner to labor for his own benefit, his person being in all respects subject to the summary jurisdiction of the Magistrates like other Convicts, and his ticket of leave being resumable at the pleasure of the Governor.  I am of opinion that these instruments are unlawful for the following reasons.

1.The Governor's authority to mitigate the judgement of one of His Majesty's Courts in  Great Britain is entirely derived from the 30th Geo. 3, ch. 47; and any extension of mercy, beyond the express authority and not in the manner pointed out by that Act, is void.

2.By the 4 Geo. I, Ch. 11, Sect. 2, service for the entire term of transportation, according to the order of the Court, that is, the order of transportation and servitude, is made a condition precedent to the restitution of Civil rights and obligations.  It is of great importance to society that the person, who is to be restored to his plenam et liberam legem, should not be exposed to legal objections as a witness, etc.; and it is clear that pardons upon condition are only valid upon the performance of such condition.  How far then does not the exemption of a Convict from "serving his time, according to the order of the Court," place him out of the consequences of the quasi pardon directed by the Statute 4 Geo. I?

3.The holder of a Ticket of Leave is not within the benefit of the 5 Geo. 4, Ch. 84, Sect. 26; he does not hold a "remission either conditional or absolute," within the meaning of any other Act.  For, in the first place, a remission must be under the Seal of the Government (30 Geo. 3, Ch. 47, Sec. 1), and in the next persons, whose sentences have been "remitted," are no longer liable to the summary jurisdiction of the Magistrates (4 Geo. 4, Ch. 96, Sect. 19).  From hence, it follows that a holder of a Ticket of Leave remains still an ex lex, incapable of suing in any Court of Justice, of receiving or transferring any legal right.  The inconveniences attending such a state may be easily presumed (See Bullock vs. Dodd, 2 Barn. and Ald. 258).

4.A right of property being vested in the Assignee of a transported offender cannot be taken away but by law; any regulation, not derived from law and trenching upon this right, is illegal and void, as in other cases of private property.[3 ]

5.By the 4 Geo. 4, Ch. 96, Sect. 35, it is directed that all instruments, whereby the Governor of New South Wales shall remit or shorten the term of any transported offender, shall be sent to England for the allowance or disallowance of His Majesty's Government.  The reason of this provision was stated by His Majesty's Ministers in the House of Commons to be to afford the Government an opportunity of looking into the previous character of the individual and the circumstances, which caused his transportation; it was intended to prevent that reaction upon the morals of the lower orders in England, which an indiscriminate clemency, exercised in New South Wales without reference to the conduct of the offender in England, was said to have produced.  Tickets of Leave are not within the regulations prescribed by the statute above mentioned; they take effect immediately, and without reference to His Majesty's Government; they are issued upon a Scale of mere time, with reference to the conduct of the individual in this Colony only, and without any retrospect to the crimes, which may have caused his transportation.  Under given rules, the sentence of Seven Years is reduced to four years of servitude; that of fourteen, to six years; and that for life to eight years.  So that, as a general proposition, the sentences pronounced by the Courts in England are nominal, and by an Order of the Governor are reduced to a mitigated scale of punishment.  It appears, therefore, that the rules and regulations of the local government, in respect of granting tickets of leave, are opposed to the specific provisions and the entire policy of the Statutes for transportation.

I believe that the system of granting limited indulgences to Prisoners is practically speaking founded in wise principles; but it is opposed to the law, and requires to be legalized; and, in this view, I have felt it a duty to lay my opinions before the government in such a form as to call their attention to the subject, in order that such alternations may be made in the existing laws, as the nature of the case may require.

FRANCIS FORBES, Ch. Justice, N. S. Wales.

Sydney, 3rd October, 1827.

Notes

[1 ] On 10 February 1827, Earl Bathurst wrote to Governor Darling about this subject (acknowledged by Darling on 3 August 1827, Historical Records of Australia, Series 1, Vol. 13, pp 115-116).  Bathurst referred to 5 Geo. 4, ch. 84, the then Transportation Act.  He said that there was doubt in Van Diemen's Land about whether s. 8 of that Act was in conflict with a local Regulation made by Governor Macquarie which prohibited settlers from re-assigning the services of their assigned convicts.  Section 8 appeared to make it legal for settlers to reassign their prisoners at their pleasure.  Bathurst sent Darling a copy of the legal advice forwarded by Hobhouse on the issue.  The advice was that the section did not preclude local Regulations on convict labour.  It merely made clear the legality of any reassignments which might otherwise have been doubted.  It went on: "The whole property in the Convict's Service is in the first Instance vested in the Governor; and the Governor, who is empowered to assign that Service, is fully competent to modify his Assignment in such manner, as Justice and good Policy may require.  There is nothing in the Act to prevent the full Operation of Governor Macquarrie's Order of the 24th July, 1813, if care be taken that the Assignee be apprized of the condition under which he accepts the Convict's Service."

In sending Forbes' Convict Assignment Opinion to Bathurst on 8 November 1827, Darling emphasised that Forbes had declared the ticket of leave system to be illegal: Historical Records of Australia, Series 1, Vol. 13, pp 604-607, and see pp 622-625, showing that the Solicitor General and Attorney General disagreed with Forbes.  Tickets of leave, an early version of parole, were introduced by Governor King in about 1801, and were a cornerstone of convict management from that time onwards: see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 51-52.

See also Darling to Bathurst, 1 March 1827 (Historical Records of Australia, Series 1, Vol. 13, pp 135-140), in which Darling claimed that Forbes C.J. had advised him that settlers who received assigned convicts had the same power as the governor had previously had, and that the governor could only assign convicts, not lend them out for temporary periods.  This, claimed Darling, meant that governors could not issue tickets of leave to assigned convicts.  Once assigned, the governor lost control of the convict.  Darling returned to this theme when writing to Huskisson on 1 March 1828 (Mitchell Library, A 1202, Reel CY 535, pp 3-21; Historical Records of Australia, Series 1, Vol. 14, pp 4-8), but broadened it into a general attack on the Chief Justice.  He claimed that Forbes had failed to perceive that the governor needed to remain in control of convicts even after they were assigned to private masters.  Darling linked this to a claim that in drafting the replacement for the New South Wales Act (4 Geo. 4 c. 96, replaced by 9 Geo. 4 c. 83), Forbes had tried to place more power in the hands of the judiciary: "All men like power and it may be very convenient to a person of Mr Forbes's Character, to be entrusted with the interpretation of the Laws - I therefore take the liberty of recommending, whoever the Judges may be, that this power may not be extended."  Discussing the reform of the courts, he claimed, indirectly, that Forbes was "a person of American principles and American feelings - This observation did not originate with me".  He continued attacking Forbes, saying that he, the governor, had never had a reliable Attorney General to assist him against the Chief Justice and his allies, Wentworth and Wardell.

Murray replied to Darling on 31 July 1828 (Mitchell Library, A 742; Historical Records of Australia, Series 1, Vol. 14, p. 270) that "The power of the Governor of New South Wales to issue Tickets of Leave, or to withdraw assigned Convicts from their Masters, is so obviously essential to the good Government of the Colony, that Parliament has, in the present Act, been induced to place it beyond dispute."  The context was a discussion of the new constitution of the colony, (1828) 9 Geo. 4 c. 83.  On this occasion it was Governor Darling, not Forbes C.J., who gained the approval of the British government.

See also In re Foster, 1827; In re Harris, 1827; and on the conflict between Forbes C.J. and the governor in 1828, Ex parte Raine (No. 1), 1828;  R. v. Howe, 1828; R. v. Mackaness, 1828.

This was an advisory opinion, but the distinction between legislative, judicial and administrative actions was unclear in (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 judges sometimes refused to give advisory opinions of this kind.  See Forbes and Stephen to Darling, 19 January 1828, (Historical Records of Australia, Series 1, Vol. 13, 737-739; Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, pp 132-133) refusing to give an opinion on whether former convicts could sit on juries.  The appropriate procedure, they said, was to hear a special case stated by the Quarter Sessions magistrates once the issue was raised before them.  On the same day, however (pp 738-739), Forbes wrote a private letter to Darling saying that in his view, both those who had received a free pardon and those whose term of transportation had expired were eligible to sit as jurors.  He based this on the interpretation of Mr Peel's Jury Act (which he said was 5 or 7 Geo. 4) and the Transportation Act (4 Geo. 1).  Darling had raised the issue in a letter to the judges, dated 18 January 1828 (Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, p. 132).  He asked for an opinion as to "whether attainted Felons who have served the period of their Transportation, not having received a free pardon, are eligible, under the existing laws, to serve as Jurors".

Forbes C.J. wrote about tickets of leave in a letter to Horton dated 6 February 1827 (Historical Records of Australia, Series 4, Vol. 1, pp 684-685; Mitchell Library, Reel CY 760), without hinting at their illegality.

Forbes returned to the subject of property in the service of convicts in his letter to Horton of 6 March 1827 (Historical Records of Australia, Series 4, Vol. 1, pp 695-699).   He said that the new transportation Act aimed to clarify the property held by masters in their convict servants' labour.  When the governor assigned a servant, he lost his own property in the person's services.  The new master obtained the power the governor previously had, but neither the master nor the governor could send a convict to a penal settlement, because the legislation required local convictions for that to happen.  This lay behind the piracy case, when a number of convicts were sent from Port Macquarie to Norfolk Island, merely because their skills were needed there.  The convicts seized the ship on the way to the island, and argued that they were held on it illegally.  (The implication is that the governor was responsible for the piracy; see R. v. Flanagan et al., 1827, footnote 4; and see R. v. Walton, 1827.)  In Forbes' view, transportation was a mild punishment in itself, involving merely a change of country and loss of the right of free labour.  The governor could not worsen it by sending the convict to a penal settlement.

Forbes had long held this opinion about the mildness of transportation: commenting on one of his first cases as Chief Justice of Newfoundland in 1817, he declared that it was a greater punishment to be kept in gaol for 12 months, including a Newfoundland winter, than to be transported for 14 years: R. v. Edmund Gahan, discussed in Forbes' report to the island's governor, 26 October 1817, Letter Books of the Colonial Secretary's Office, Provincial Archives of Newfoundland, GN/2/1/28, Vol 28, 1817-1818, p. 49.

Forbes wrote to Darling again on 1 August 1827 (Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, p. 104): "I have read in the Sydney Gazette of this days date a Government Notice intended to remove a doubt which appears to have been raised by some individual as to the Jurisdiction of a bench of Magistrates over the case of Prisoners assigned to settlers under the circumstances set forth in the notice and I beg leave to state to Your Excellency that the doubt in question is one of law which the Courts of the Colony only are competent to determine. The question is whether by any law in force the Magistrates can take cognizance of the complaints of prisoners in the service of Settlers for any of the causes specified in the first Article of the Government Notice and whether there is any law authorising them to remove such prisoners from the service of their Masters - the New South Wales Act authorises the Magistrates to take cognizance of complaints in certain cases of a civil nature against prisoners but is silent as to [105] complaints of a similar kind by or on behalf of a prisoner against their Masters; and I do not think it is in the power of the Government to supply the defect of the Act of Parliament and to give the Magistrates of this Colony a jurisdiction unknown to the Laws of England, and not sanctioned by any Ordinance of the local legislature. This point has been incidentally determined by the Supreme Court and I am sure that it was not your Excellency's intention to oppose to the decision of the Court the opinion of the Government upon a fine point of law namely the Jurisdiction of the Magistrates of this Colony."  He recommended the passage of a local Act to clarify the law.

This Convict Assignment Opinion is also in Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, pp 114f. On 10 September 1827, Governor Darling sent Forbes C.J. the following extract from a despatch by Earl Bathurst to Lieutenant Governor Arthur of Van Diemen's Land (despatch No. 50, 1 November 1826) (source: Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, pp 111-112):

"It now becomes necessary that I should advert to the question of Law to which you have directed my attention in that Despatch

"It appears that the Acting Attorney General of Van Diemans land is of opinion that the Statute 30 Geo 3rd Cap 47 is still in force and that in pursuance of that Stature all remissions of the sentences of Convicts which may be granted by the Governor or Lieut Govr of the Colony must be included in the next general pardon which may pass under the Great Seal

"It must of course be admitted that the Statute 30 Geo 3rd Chap 47 is in force since it is recognised and referred to in the Section 35 of the 4 Geo 4 Cap 96 as the Act under the authority of which all remissions of sentence are to be issued but it does not therefore follow that the method of proceeding prescribed by the 20 Geo 3rd Chap 47 is not to be followed, and it may therefore be convenient to enter into the following explanation of the reasons by which Parliament were influenced in passing the recent Statute.

"The 3 Geo 3rd Chap 47 by requiring that the remissions of sentence granted by the local Government should be perfected in the next general pardon under the Great Seal had given rise to great difficulties.

"The habit of issuing general pardons having latterly fallen into disuse the pardons granted by the Governors of New South Wales continued in many cases incomplete from the want of this additional solemnity the Convict consequently remained an attainted person and laboured under all the legal disabilities incident to that condition.

"From this cause embarrassing questions had arisen [112] respecting the titles to land and the power of a numerous body of persons to hold certain Civil offices and even to given evidence in Courts of Justice.

"The object of the 35 Section of the Statute 4 Geo 4 Cap 96 was therefore to provide a simple and convenient method by which persons pardoned in New South Wales and Van Diemans Land might within those Colonies be restored to the enjoyment and exercise of all civil rights notwithstanding any previous attainder in England.

"That method is the signification of His Majestys pleasure through one of the principal Secretarys of State and that course had therefore been pursued at present and will be followed on all future occasions.

"Considering the great importance of preserving an authentic record of the names of all persons who may thus receive a complete remission of their sentences you will transmit a copy  of my despatch of this date No 50 to the Chief Justice of the Colony with an instruction conveying my desire that it should be deposited and preserved in the Registry of the Supreme Court."

Forbes replied to the governor on 3 October 1827, pp 114-115 as follows:

"I should have done myself the honor to acknowledge your letter of the tenth Ultimo before but as it inclosed an extract from a dispatch of Earl Bathurst upon the subject of remitting the sentences of Prisoners under sentence of transportation - a Subject upon which I had it in Contemplation to address some remarks for the consideration of His Majestys Government - I deferred Answering your excellency's letter until the close of the term - would enable me to fulfil my intention. I now beg leave to inclose for your Excellency's Consideration the accompanying remarks upon Certain Points of the law for Transporting Convicts, which appear to me to be of great importance to the Colony; and further to request that your Excellency will take an early Opportunity of transmitting them to Lord Goderich.

"I have caused the extract alluded to be entered upon the minutes of the Court -- I never entertained any other view of the subject -- than that which is taken in Earl Bathurst's despatch the closing paragraph of which however, I do not quite apprehend. His Lordship appears to have contemplated the preserving an authentic record of the names of all persons restored to their civil Rights, by a [115] remission of their Sentences.  But I do not perceive how that measure will be either effected or facilitated by depositing his Lordships dispatch in the office of the Supreme Court - With deference I beg to state that I think it must have been contemplated to record the remission of sentence among the records of the Supreme Court."  The next entry in the Chief Justice's Letter Book is the Convict Assignment Opinion, which is reproduced here.

Governor Darling's Regulations concerning the assignment of convicts, dated 9 March 1826, are at Historical Records of Australia, Series 1, Vol. 12, pp 252-253.  See also Beale v. Raine, 1829.

In the version of the Convict Assignment Opinion which is in the Chief Justice's Letter Book, Archives Office of New South Wales, 4/6651, there is a different marginal note here: "In Sect. 29 by ``unrepealed" see note, the 4th Geo 1 Ch. 11 was repealed by 7 & 8 Geo 4 Chap 27 passed 21st June 1827 but not received in this Colony, on the 3rd Oct when this opinion was written."

[2 ] On 10 March 1826, Lord Bathurst informed Governor Darling that prisoners above the condition of the labouring class were to receive pardons only if they agreed immediately to quit New South Wales, and not to travel to Van Diemen's Land.  The regulation was modified in 1828, so that these prisoners only had to agree to quit the colony at any time when the governor required them to do so.  The reasoning behind the initial policy was that educated people, once pardoned, were more likely to cause trouble than "the more ignorant class of offenders".  See Murray to Darling, 29 October 1828, Historical Records of Australia, Series 1, Vol. 14, pp 409-410.

[3] The famous liberalism of Forbes C.J. seems more directed at the rights of masters here than those of their convict servants.  In Somersett's Case (1772) 20 St. Tr. 1, p. 82, Lord Mansfield famously said that slavery "is so odious that nothing can be suffered to support it, but positive law".  It is Forbes' view of convict status which makes it closer to slavery than the view of Governor Darling.  On Somersett's Case, see A.R. Blackshield and G. Williams, Australian Constitutional Law and Theory: Commentary and Materials, 2nd ed., Federation Press, Sydney, 1998, p. 88.

Published by the Division of Law, Macquarie University