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

In re Foster [1827] NSWSupC 45

habeas corpus, convict service, convict rights, Crown prerogative, delegation, transportation, convict, convict punishment, Stephen J. and Governor Darling, conflict between - Forbes C.J. and Governor Darling, conflict between - judicial independence

Supreme Court of New South Wales

Forbes C.J., 23 July 1827

Source: Sydney Gazette, 25 July 1827


Mr. ROWE moved for a writ of Habeas Corpus, to bring up the body of John Foster, who stated himself, in the affidavit on which the motion was grounded, to be an assigned servant to Mr. John Dixon, under the following circumstances.  It appeared that the deponent was transported to this Colony, from England, for the term of seven years, which term expired on the 10th of July instant.  On Tuesday, the 6th of July, 1826, the deponent was brought before two of His Majesty's Justices of the Peace for the Territory, at Molle's Main, for an offence cognizable by the Magistrates, and sentenced to have his original sentence extended for the period of three years.  On the 18th of the present month, however, the term for which he was transported from England having expired some days, the deponent made application at the Office of the Colonial Secretary, for his certificate of freedom, and was there told, that his original sentence had expired, but that he had still three years to serve under a Colonial sentence by the Magis[t]rates, and his certificate was accordingly denied to him.  That the sentence passed by the Justices was illegal, formed the ground of Mr. Rowe's application to the Court.  By the 19th section of the Act of the 4th Geo. IV. it was provided, "that Courts of General or Quarter Sessions shall be holden in New South Wales and Van Diemen's Land, and their Dependencies, at such times and places as the Governor or Acting Governor of New South Wales, shall by his Proclamation appoint."  By virtue of the authority so delegated to him, the then Governor, Sir THOMAS BRISBANE, in July, 1824, did issue a Proclamation, appointing certain places whereat the Magistrates were to hold their General Sessions, on the Tuesday in each week, until other times and places should be appointed, amongst which Molle's Main, the place where this sentence was passed, was not specified, and which sentence was also in contravention of the Proclamation, inasmuch as, supposing the Magistrates had a power to hold their General Sessions at Molle's Main, they had been held on Friday, and not on Tuesday, as directed by the Proclamation of Sir THOMAS BRISBANE.  Mr. Rowe admitted, that there was a subsequent Proclamation issued in the month of November, in the same year, which gave a general power to the Magistrates for the greater furtherance of public convenience to hold their General Sessions, on other days and at other places than those specified in that of July; but this latter Proclamation, he (Mr. Rowe) contended was null and void; because those o[t]her places and days were not set forth in the Proclamation as provided by the Act of the 4th Geo. IV. and because the Governor could not delegate an indefinite authority to the Magistrates, when he himself had only a definite authority by the Act.

The CHIEF JUSTICE enquired, whether there was not an English Act subsequent to that of the 4th Geo. IV. which authorised the exercise, by any two Justices, in a summary way, of those powers that, by the latter Statute, were formerly vested only in the Courts of General or quarter Sessions?

Mr. ROWE admitted, that the Act of the 6th Geo. IV. c. 69, contained such a provision but that provision was contingent; for the third section, after enacting that all and every the powers, authorities, and jurisdiction which in and by the 4th of Geo. IV. were vested in the Courts of General or Quarter Sessions, shall be, and are vested in any one or more Justice or Justices of the Peace, in and for the said Colony, or in and for any district or county thereof to be by such Justice or Justices exercised in a summary way; it was also provided, that such jurisdiction should not be exercised in any case where any Court of General, or Quarter Sessions should be appointed to be held within one week after the complaint should be preferred against any offender, at any place not more than twenty miles distant from the place at which the offence should be charged to have been committed; and that Liverpool, where General Sessions were by the Proclamation appointed to be held, were within the distance specified by the Act, he (Mr. R.) was prepared with an affidavit to shew.

The CHIEF JUSTICE certainly thought the last a fatal objection.  His Honor was of opinion, that the matter resolved itself into a very small compass.  The whole question was, whether the Magistrates, had a power to hold their sittings, wherever they thought fit, at their own houses, for instance, independent of the provisions of the Act which directed certain places to be appointed.  This was the only question, and one which he thought easy of being resolved.  It was pretty evident that an object was contemplated in the appointment of particular places at which General or Quarter Sessions were to be held; inasmuch as, the Act of the 6th of Geo. IV. rehearsed the provisions of the 4th of the same King, and only authorised a deviation under particular circumstances which were therein expressed.  He would, however, look into the case, and as sufficient had been raised before the Court to warrant his granting the application, he would direct the writ to issue, and be made returnable on the first day of the Criminal Sessions (the 1st of August), when he should be prepared to give his decision on the subject.

Mr. ROWE observed, that no improper motive whatever was charged against the Gentlemen who had passed sentence; he considered it merely as an error in judgment.

The writ was accordingly directed to be issued.


Forbes C.J. and Stephen J., 1 August 1827

Source: Sydney Gazette, 3 August 1827

In the case of George Forster, prisoner of the crown, assigned servant to Mr. John Dixon, in whose behalf a writ of habeas corpus, returnable this day, was obtained some time since, Mr. ROWE stated that the prisoner was then in attendance, and submitted that he was entitled to his discharge, on the grounds which he had already laid before the Court, when moving for the habeas, a return to which had been made this day.  Mr. ROWE then recapitulated the circumstances of the case, as they have already appeared before the public.

The CHIEF JUSTICE enquired whether a certiorari had been issued to the Magistrates by whom the prisoner had been convicted, calling on them to make a return of the proceedings before them.

Mr. ROWE stated, that a certiorari had not been directed to issue, nor was he of opinion, that in this case, it was necessary, as enough had been already shewn, to entitle the prisoner to his discharge.  If, however, the Court thought differently, he had no objection to extend the period of the return of the writ, to allow sufficient time for a certiorari to be issued, and for the Justices to make a return of their proceedings.

The CHIEF JUSTICE, after consulting with Mr. Justice STEPHEN, observed that, as the case was one of importance, it would not be going too far, to travel a little out of the ordinary course, by extending the period for the return of the writ, and issuing a certiorari to the Magistrates, in order that the Court might have the whole of the facts before it.  At present there was only an exparte statement.

Mr. ROWE acquiesced, and the writ was ordered to be made returnable on Wednesday, the 15th instant.


Forbes C.J., 19 November 1827

Source: Sydney Gazette, 23 November 1827

A man, named Foster, late an assigned servant to Mr. Dixon, for the Steam Engine, was brought up before the CHIEF JUSTICE on Monday last, pursuant to an order of the Court in that case, obtained on the motion of Mr. ROWE, under the following circumstances:-d  Foster was a prisoner of the Crown, under sentence for seven years, and, as we have already stated, assigned to the service of Mr. Dixon.[1 ]  A short time before he would have become free by servitude, he was brought before two Magistrates at Molles' Main on a charge of stealing some wool, the property of his master, and sentenced to have his original sentence extended for three years.  The man, however, we suppose, being advised that the conviction by the Magistrates was not according to law, applied, on the expiration of his original term, at the Colonial Secretary's Office, for his certificate, but was refused, the clerk informing him that he had still three years of a Colonial sentence hanging over his head.  Application was then made to the Supreme Court for a writ of Habeas Corpus to bring up Foster, in order to his being liberated, on the following grounds: - By the 19th section of the New South Wales Act, it was urged, the Magistrates were empowered to hold Courts of General or Quarter Sessions in the Colony, at such times and places as the Governor or Acting governor may, by his proclamation, appoint.  In pursuance of the power so vested in the Governor, His late Excellency, Sir THOMAS BRISBANE, aid issue his proclamation appointing the various places and times where and when Courts of Sessions should be holden, amongst which Molles' Main, the place at which the man Foster had been tried and convicted, was not specified; nor was the day on which the conviction occurred, even if Molles' Main had been a place pointed out in the proclamation at which the Magistrates were authorised to hold a Sessions, that day on which they might lawfully be holden.  It was admitted that a subsequent Act of Parliament, the 6th of Geo, IV. c. 69, ยง 3, vested all and every the powers, authorities, and jurisdiction given by he 19th section of the New South Wales Act, to Magistrates in General Sessions, in any one or more Justices of the Peace for the Colony, or any district or county thereof, to be by them exercised in a summary way; but then, it was contended, that the applicant's case did not come within the provisions of that Act, inasmuch, as such powers were vested in Justices of the Peace to be exercised by them only at such places as were at a greater distance than twenty miles from any place at which General Sessions were appointed to be held, and where such Sessions should not be held within one week after making the complaint.  That Molles' Main was not a place at which such summary jurisdiction might be exercised, inasmuch as, that it was not 20 miles distant from Liverpool, where General Sessions are held every week, affidavits were handed in to shew, and upon these grounds a writ of Habeas Corpus, to bring Foster before the Court, was prayed for.  The Court, however, at that time declined granting habeas, but directed a certiorari to issue to the convicting Magistrates, calling on them to bring up the proceedings before them, on the return of which, a few days since, the Court decided on the grounds urged by Counsel, that the conviction was illegal, and it was quashed accordingly.  The CHIEF JUSTICE, however, did not order the immediate discharge of Foster, as there was no other proof before the Court that his original sentence had expired, except his own affidavit, but directed a rule to be served on his master, to shew cause why the man should not be discharged from his service.  The certificate from the Secretary's Office, however will decide that question.  The case being one of novelty, we deemed it of sufficient importance to deserve particular notice; inasmuch as the provisions of the Act of the 6th Geo. IV are liable to be misapprehended, from the supposition that they entirely supercede the 19th section of the 4th Geo. IV. whereas the summary powers vested in one or more Justices, by the former statute, are only conditional.[2 ]


[1 ] See also Monitor, 29 November 1827.

[2 ] In a despatch to Hay, 24 March 1827 (Historical Records of Australia, Series 1, Vol. 13, pp 187-189, and see p. 191), Governor Darling reported that Forbes C.J. had announced that he thought the governor could not order a convict to a penal settlement or to be worked in chains.  According to one newspaper, Justice Stephen agreed: quoting the Monitor, Darling indicated that Stephen J. had said on the bench "that he wished it to be understood that the sentiment, uttered by the Acting Attorney General, namely that the Magistrates, knowing the Applicants to be Prisoners of the Crown, considered their being put into the Watch House as an Act which, as Prisoners of the Crown, the said Justices could take a greater liberty of doing than if they had been Free Men, was erroneous.

"The learned Judge then, with infinite satisfaction to the Auditors, and honour to himself, deprecated such a principle, and begged it to be understood that the rights of Prisoners were as sacred in the Eye of the Law as those of Free Men; and, while he had the honor of sitting where he did, he would never allow them to be impugned of treated carelessly."  Darling thought that Stephen was wrong in law, and that this view would make it impossible to control convicts.

Darling wrote to Stephen to see whether this was accurately reported, and Stephen replied that he thought the governor desired to interfere "between the Supreme Court and the other tribunals of justice, ... to teach the Justices of the Peace that they are to look to the Government as the Director of their proceedings, and to lessen that deference which the Law requires from the inferior to the Supreme Courts."  Darling denied this, and criticised Stephen for sending the correspondence to the press.  He thought Forbes C.J. was doing the same.  Darling included a copy of Stephen's reply, which denied the accuracy of the Monitor's report of what he had said in court.  "In making this explanation, however, to Your Excellency, I feel that I am bound, in duty to your Excellency as well as to myself, candidly to state the manner, in which your Excellency has called upon me to correct the mis-statement of a Newspaper, appears to me to be no less objectionable in itself, than in the object which your Excellency appears to have contemplated, namely, of instructing the Justices of the Colony in the exercise of their duty, appear to be irregular.  Such an interposition of the head of the Government between the Supreme Court and the other Tribunals of Justice is, I think, calculated to weaken the confidence, which should prevail between the several Courts of the Colony, to teach the Justices of the Peace that they are to look to the Government as the director of their proceedings, and to lessen the deference which the Law requires from the inferior to the Supreme Courts."  He said he would not have pressed this, had it not been the second time Darling had told Stephen to explain his conduct on the bench.  He thought the Law Officers in London should be asked for an opinion as to whether the governor could call on a judge to explain what the newspapers claimed he had said in court.  Source: Darling to Hay, 27 March 1827, Historical Records of Australia, Series 1, Vol. 13, pp 206-210.  See also In re Byrne, 1827.

In a despatch to Bathurst on 18 April 1827 (Historical Records of Australia, Series 1, Vol. 13, pp 259-263), Darling rehearsed these events, and placed greater emphasis on the judges' leaking of material to the press.  Referring to Forbes C.J. and Stephen J., Darling said "It is obvious, if Men filling the highest stations, whose Duty it is to afford support to the Government (and support can no where be more necessary than it is here), become instrumental to the abuse and degradation of that Government through the means of the opposition Papers, though it may answer one object to ensure their own popularity amongst certain classes of Society, it must destroy that Confidence which the people generally ought to place in the Government, and in a Colony composed, as this is, produce, if not checked, anarchy and revolt."  This passage contains the essence of the conflict between the governor and the judges.

This time, London supported the governor.  Huskisson wrote to Darling on 21 September 1827, saying that the governor had a right to enquire of a judge whether he had been properly reported in a newspaper.  Huskisson also regretted that Stephen did not clarify what he had expressed in the case.  Huskisson decided to let the matter drop, but said if Stephen acted that way again, he would advise the King "to mark in a decided manner his disapprobation of the spirit, by which this communication appears to have been suggested."  Huskisson could not believe, however, that Stephen had played a role in publicising the correspondence in the Australian. Source: Historical Records of Australia, Series 1, Vol. 13, pp 516-517, and see 581-582.

This was not the only complaint Darling had about Stephen J.  In a despatch to Goderich on 10 October 1827, he said that the Stephen allowed Wentworth and Wardell to use their appearance in libel cases to attack the governor.  He suggested that Stephen was in the habit of allowing the court to be "made a theatre for vilifying the Governor and Government of the Colony, and holding up both to the Contempt and hatred of the Public."  The words "Tyrant," "Monster," and "Scoundrel" had been used in court.  Source: Historical Records of Australia, Series 1, Vol. 13, pp 547-548.  Eventually, Murray ordered the governor and judges to stop their dispute, threatening to dismiss them all if they did not.  Not knowing of that order, Darling continued to attack Stephen J., even in letters to his nephew, the influential James Stephen.  He claimed that the old judge was a dupe of Forbes C.J. and his friends, the radical newspaper proprietors.  See Darling to Stephen, 16 December 1827, Historical Records of Australia, Series 1, Vol. 13, pp 650-652; and see Newspaper Acts Opinion, 1827 and R. v. Wardell (No 3), 1827, for details of this lengthy conflict.  On Steohen J., see A Halloran, "Some Early Legal Celebrities (Third Series)" (1926) 12 Journal of the Royal Australian Historical Society, 41, at 41-46.

Published by the Division of Law, Macquarie University