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

In re Harris [1827] NSWSupC 43

habeas corpus, convict service, Hyde Park Barracks

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 25-26 June 1827

Source: Australian,  27 June 1827



A motion was made in the Supreme Court on Monday, for an habeas corpus, to bring before the Court the body of one William Harris, upon affidavits which were put in, setting forth that the individual so named was a prisoner of the crown, assigned to a settler of the name of Davis, and had been immured in a close cell in the Hyde Park Barracks, in order to his being forthcoming, as the committing warrant stated, to give evidence in a cause to be tried at the next Criminal Court, and that he had been so confined without the knowledge or consent of his said master, and without the prisoner ever having refused or expressed a wish to be excused giving evidence in the cause alluded to, when called upon to do so.  The writ was returned yesterday, and a motion founded therein for the prisoner discharge from custody, on the ground of his detention being altogether illegal.[1 ]

The Acting Attorney General[2 ] opposed the motion; he professed himself unacquainted with the particular merits of the case, but rested his objection on the principle that the man, being a prisoner of the crown, had been returned to government, and put into the Barracks, as prisoners usually were, while in the immediate employment of the government, with this difference, that this man had been put into closer imprisonment than other prisoners were, and that this very probably originated through some mistake.

The Court took the case to be this - a claim was made by the master of an assigned servant for the services of a man who had been taken from him against his will, and against whom no charge of crime had been made.  So much was stated in the affidavits before the Court, and with that state of facts uncontradicted, the man must be discharged out of custody.

The Acting Attorney General replied, it was assumed that all persons in the Prisoners' Barrack were prisoners of the crown, and if the Court entertained the opinion it did, then all prisoners in that Barrack might come before that Court, and claim their discharge.

The Court - And so every prisoner might, if he was an assigned servant.  By Mr. Peel's Act the property of an assigned individual is vested in the master during the period of his sentence, just the same as it did with the government, before the prisoner was assigned.

The Acting Attorney General observed, that he had always understood assigned servants were only assigned promissorily, and that no complete assignments had been made in the Colony since the time of Governor Bligh.

The Court - "Then you mean to say the Act of Parliament is superseded by the Acts of the Colonial Government.  A Governor cannot restrain the operation of an Act of Parliament.  The Act says, the property of the assigned prisoner vests solely in the individual to whom he is assigned.  If the Governor were to take away a servant without the assent of the master, what was to become of Mr. Peel's Act? - the government cannot take a servant away."

Formerly it was understood in the Colony if at any time the settler and his servant became disunited, the Magistrates had the power to take that servant away from the settler and return him to the employ of Government; however, Parliament had thought fit to put the property in the master for the residue of the prisoner's sentence.  There was no magical influence, said his Honor the Chief Justice, in the term of a prisoner of the crown.  The court knew in what circumstances that man was placed.  A prisoner of the crown meant that he should be put under subordination to all the punishment the law affixed, and those punishments were defined.  But to take a man and put him into a cell, merely for the purpose of giving evidence, his Honor considered was going beyond the law altogether.  It was certainly the duty of a good and vigorous police always to enforce good laws, but not to make new ones.

Mr. Justice Stephen said, he had come to a deliberate opinion in his own mind on the subject, and fully concurred in the observations of his Honor the Chief Justice.  Many people entertained most mistaken notions, not only of the duties of that Court, but of the power of Magistrates.  As to servants in the unfortunate situation of this prisoner, it was impossible to suppose, that if it was the duty of that Court to regard persons in possession of their lives, not to suppose that it was also a duty to have a regard to their health.  If the Magistrates had a just cause to keep the man in close custody for the purpose of examination, the Court would not liberate him; but if they arbitrarily sent a man for no offence that appeared against him, how was that Court to act upon the common principle of an Habeas Corpus, which is imperative, otherwise than as the Court has done, and will no doubt continue to do.  The prisoner was ordered by the Court to be released from close confinement; but, at the instance of the Acting Attorney General, not discharged until this day.[3 ]


Forbes C.J., 27 June 1827

Source: Sydney Gazette, 29 June 1827

William Harris, whose case we reporte[d] in our last, was brought up again this morning, together with the original proceedings before the Magistrates, by which as well as from the explanation given by Mr. Love, the principal clerk in the Police Office, it appeared that he had been merely directed to be kept in Barracks, until his testimony was required, and that no orders had been given for the additional restraints to which he had been subjected.  After some observations from the Acting ATTORNEY GENERAL, and Mr. ROWE, the CHIEF JUSTICE observed, that, from what then appeared before the Court, nothing had been done of an improper character as regarded the Magistrates; they had merely directed that the man should be kept in the place to which, as a prisoner of the Crown, they had a right to send him, in order to secure his testimony in a pending investigation.  The right of the master was not at all disturbed thereby; it was not taking away his servant; it was merely calling on him to do that which the master himself might be compelled to do, to give evidence, and whilst the investigation was pending, he was merely prevented from being at large on his own hands, by directing his detention in the barracks; what had occurred beyond that appeared to have originated in some misapprehension.

Mr. ROWE observed, that the party against whom his evidence was required, had been already committed for trial, previous to hav[ing] been brought before the Bench at Sydney.

The CHIEF JUSTICE thought, in that case, that the Magistrates had discharged themselves of the matter altogether, and suggested to Mr. MOORE the propriety of returning the man to his master.  The trial would, of course, come on before the Supreme Court, and it was to be assumed that he was liable to be compelled in the ordinary way to be brought forward to give his evidence. If there was any charge likely to be preferred against him, the Court would not interfere; but as it appeared he was merely detained as a witness, it must direct his being returned to his master, who, it was to be supposed, would be answerable for his appearance.  If the ATTORNEY GENERAL thought proper, it was in his power to institute a fresh proceeding before the Magistrates, and have Harris' deposition taken and recorded against him.  The whole matter, he was of opinion, had originated in a mere misapprehension somewhere.


[1 ] The Sydney Gazette reported this case on 27 June 1827, and stated that the application was based principally on an affidavit of William Davison.  He said that Harris was a convict who was assigned to him in 1822 or 1823.  He had been removed from him, not on a criminal charge, but in order to give evidence in court.  Harris was not allowed to leave the watch house at the barracks, even though all other prisoners there were free to do so on Saturday and Sunday.  Mr Rowe acted for the applicant.  He said magistrates had no power to commit any person to give evidence, unless in case of refusal to do so, and even then could only issue a recognizance.  See also Monitor, 28 June 1827.

On this subject, see also Convict Assignment Opinion, 1827.

[2 ] W.H. Moore.

[3 ] The Sydney Gazette's account ended as follows: "After some observations from Mr. Rowe on the state in which the man had been kept since the 23d of June, it was suggested by the Chief Justice that he should be remanded with a direction for the removal of all unnecessary restrictions, and be brought up this day, whilst, in the mean time, the Attorney General would have an opportunity of ascertaining from the Magistrates, whether he was committed on some charge, or merely to give evidence."  The Gazette said that on the second day of the trial, the return to the writ of habeas corpus was shown to state that the prisoner was to be detained on a charge of driving stolen cattle to Sydney.  The Attorney General said he had absconded to avoid giving evidence, and had been connected with a person who had committed the felony of cattle stealing.

In its commentary on this case, the Australian, 29 June 1827, said that it was important as it gave the masters some certainty that their servants would not be stripped from them arbitrarily.  On 4 July 1827, the Sydney Gazette commented further on its impact on ticket of leave holders.  It explained that the rights of the master continued only so long as the sentence continued, and that was in the control of the crown.  This contrasted with the transportation of prisoners to North America in the eighteenth century, when the services of the prisoners were sold to private people, and it was a breach of contract to end the service early.  See B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, pp 23-24.

Governor Darling responded to this case by issuing a Government Notice stating the principles under which an assigned convict would be removed from a master.  The magistrates could do so on proof of inadequate food or clothing, improper treatment, or being allowed to work out or be absent from work.  Secondly, no person may reassign a convict.  Thirdly, the Governor reserved his right to grant tickets of leave or other indulgences.  The Australian, which published the notice on 3 August 1827, said that it was full of error.  In a heavily satirical analysis of the notice, the paper stated that it was simply wrong to say that masters could not reassign convicts; the legislation said they could.  The preamble to the notice ignored the case of In re Harris, and the fact that the Supreme Court had settled the law in it.  On the Australian's view of the law, the Governor could only issue a ticket of leave with the consent of the master. 

Forbes C.J. complained to Governor Darling that the governor had purported to make law here.  He said that the New South Wales Act (4 Geo. 4 c. 96, s. 19) authorised magistrates to hear civil cases against prisoners, but not to allow prisoners to take similar actions there against their masters.  It was not for the governor to grant new jurisdiction to the magistrates: Forbes to Darling, 1 August 1827, Historical Records of Australia, Series 1, Vol. 13, p. 489, and see pp 487-489 for this correspondence generally.

The governor then escalated the conflict by removing assigned prisoners from the office of the Monitor, one of his main critics.  He claimed that he had only lent the prisoners to those at the newspaper, rather than assigning them.  The Australian reported on this on 17 August 1827.

Published by the Division of Law, Macquarie University