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

In re Jane New (1828) NSW Sel Cas (Dowling) 549, 551, 874; [1829] NSWSupC 11

Jane New's case - convict service - convict rights - Female Factory - convict punishment - Dowling J., attitude to government - Bushranging Act - statutory interpretation - appeals to Crown law officers

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 6 March 1829

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

 

[p. 145] [Habeas Corpus granted to the Matron of the Female Factory at Parramatta commanding her to bring up the body of a prisoner confined in her custody.]

In re Jane New

F Stephen moved for a habeas Corpus to be directed to Ann Gordon Matron of the Female Factory[1 ] at Parramatta commanding her to bring up the body of Jane the wife of James New, now unlawfully detained in confinement there.  He moved on the affidavit of the husband which stated that the prisoner had been assigned to him at Van Diemans Land, and had there resided with him for 4 years; that in February last she had been tried and convicted of felony in this Court [p. 146] and had sentence of death recorded against her; that since then the Governor had ordered her to be discharged from prison; that accordingly he went to the gaol for the purpose of receiving her body when he was informed that he [sic] had been removed to the Female Factory at Parramatta where she was now confined.  Under these circumstances it was moved that a habeas corpus do issue in order that it might be shown on what grounds she was now detained in custody. [2 ]

Sampson S.G. objected first that notice of this motion ought to have been given; and second that it could not be granted in the face of a valid subsisting conviction which had been disposed of by a conditional pardon under which the prisoner was now in confinement.

Dowling J.  May I ask whether Parramatta Factory is a Gaol or what is it?

Sampson SG.  I don't know what it is.  It is a [p. 147] place of confinement.  It is considered as such.  He cited the local ordinance 4 G 4. No. 5.

The Court thought this was not a case in which notice of motion ought to have been given.

Stephen J. said it must appear that the prisoner was lawfully detained in the factory, the judges had given their opinion that the conviction; on which Judgment of death had been rendered was not valid in as much as it had taken place on a statute not applicable to her case.  It was necessary therefore by what authority she was now detained in custody.

Dowling J.  I happen to know officially that the prisoner is now not in custody on the conviction alluded to, and as it is sworn that the prisoner is unlawfully detained.  I think a habeas corpus ought to issue.  The return thereto will raise the question as to the legallity [sic] of her detention.  This is a common law writ and by the Habeas Corpus act we are bound to grant it.

Forbes CJ  this is a high prerogative writ, and so much the right of the subject, as to render it compulsory on the Judges by the Habeas Corpus Act [p. 148] in a case of alleged unlawful detention, to grant it.  Since I have had the honor of a seat on this bench, I have been very tender in granting this writ on the application of prisoners of the Crown. - I have granted it very reluctantly from a sense of tenderness towards the prisoners themselves, and not from any reluctance to discharge my duty. Prisoners of the Crown in this Colony are placed in a very different situation from the Mass of the Kings subjects in the Mother Country.  I have been fearful to let it go abroad in a community where so many persons are under legal disability and restraints by reason of sentences passed upon them at home that they had a right to be brought up for the purpose of seeing why and wherefore they were kept in confinement.  I believe I have granted this writ in only one or two instances.  From a feeling of tenderness towards the prison population themselves.  I have looked with more than ordinary vigilance to the circumstances of the case before [p. 149] I granted the writ, and I have been rather inclined not to allow than allow it.  As it comes within our Judicial knowledge that the conviction against this prisoner has been pronounced illegal, and as it is now alleged that she is unlawfully detained, I should like to look into this case and as certain on what grounds the prisoner is detained in custody.  She has a right to be informed of the grounds of detention she may be confined under some other valid sentence for ought we know.  It is however not to be forgotten that persons in this country under sentence of transportation from home are liable to be assigned to servitude.  In this respect transportation is a conditional pardon and servitude is the condition.  So long as they perform that condition, they are not liable to any restraints inconsistent with the due performance of that condition unless guilty of some offence rendering them liable to punishment in this Colony.  In this case under the circumstances sworn to, we are bound to look into the circumstances under [p. 150] which the woman is detained in custody.

Writ granted

returnable on Saturday next

 

Forbes C.J., Stephen and Dowling JJ, 16 March 1829

Source: Sydney Gazette, 17 March 1829

Habeas Corpus.

The Court sat in Banco this morning, for the purpose of hearing the arguments of Counsel, in the case of Jane New, who was brought up by writ of Habeas Corpus, on the ground of her being illegally detained in the female Factory, at Parramatta.

The Attorney General, having handed in the return to the writ, which set forth that the individual therein named was received into the Factory by virtue of an order under the hand of the Deputy Sheriff of the Colony. 

Mr. Francis Stephen moved that Jane New be discharged from custody, on the grounds that the Deputy Sheriff, of himself, had no power to commit; that no authority had been set out, and that it did not appear on what charge she had been committed.  Mr. Stephen cited from Chitty's Criminal Law, that a return to a writ of Habeas Corpus must set out the authority on which the prisoner was committed, and of what cause. 

The Attorney General moved for time to amend the return, and that the prisoner, in the mean time, be remanded. 

Mr. Wentworth stated that the document before the Court was the most extraordinary return to writ of this nature that he had ever met with in his life.  It appeared to him, that the Court could no possess any knowledge that the Factory had a legal existence.  It was true that the Honors might, as individuals, know that there was such a place as the Factory at Parramatta, wherein the Government disposed of prisoners sent to this country from England, in whom they have a property, to treat them like other masters.  But the individual before the Court was already assigned; and had either committed some offence, or had not.  If she had, there were proper places provided by law in which she could be confined; but the Factory, he contended, was nothing in the eye of the law.  The question for the Court was, whether the individual before it, was in a legal state of restraint.  The affidavit on which the writ had been obtained, stated that she was an assigned servant, and there was nothing whatever on the return to shew either that she was legally in duress, the nature of the warrant or writing under which she was detained, or, in fact, that she was even a prisoner of the Crown.

The Attorney General, in reply, observed that the Factory was the common assylum [sic] for Female Prisoners, in the same way as the Prisoners' Barracks for the male.  The individual before the Court had not been sent there for punishment, and was subject only to the same measure of restraint as the other prisoners who were employed there. 

The Chief Justice. -- The return laid before the Court, is defective --  it shews nothing.  The object of requiring a return to the writ, was not to ascertain why and wherefore this individual was detained, in order, if her detention was illegal, that she might be discharged, if legal, that she might be remanded.  The return laid before us, simply states that she was received into the Factory by virtue of an order under the hand of the Deputy Sheriff, and the question for the Court now is, whether it will discharge the party on this return, or whether it will remand her and allow it to be amended.  We are inclined to think, notwithstanding extra time has already been given to make this return, that substantial justice will be best atained [sic] by allowing it to be amended, which may be done instanter by appending to it a document which the sheriff had just now handed privately to the Court, and which will raise the substantial question for our consideration. 

In arguing this case, it is the wish of my learned Brethren on the Bench, and of myself, that the gentlemen who conduct it, on both sides, would confine themselves as near as possible to the immediate matter at issue.  We feel, that in this Colony, we are necessarily divested of many of those safeguards that surround the subject in England, and it is therefore, the more imperative that the laws should be strictly administered.  For myself, and for my learned Colleagues, whom I am happy to have on my right hand and on my left, I declare that it is the far[t]hest from our heats to desire to compromise the liberty of the subject.  We will do justice according to law and to our oaths; but as it is necessary in cases of this nature that all parties interested should equally be made aware of the law on the subject, we request it as a matter even of personal favour to ourselves, that gentlemen will argue the case on its merits, temperately and calmly, divested of all ill-feeling and personal allusions. 

The Attorney General, after a few minutes, handed in the former return with a slight alteration, having appended, as part of it, a letter from the Hon. the Colonial Secretary to the High Sheriff, directing him, by command of the Governor, to transmit the prisoner, Jane New, then in custody, to the Female Factory, at Parramatta, she being a prisoner of the crown; His Excellency having been pleased to remit the sentence passed on her for felony by the Supreme Court. 

Mr. Wentworth stated, that it was a pity, after the changes and amendments which have been made, that the case was hardly now in a condition to admit of that argument which was desired by their Honors, being raised, without a variety of admissions being made both on one side and on the other.  Upon reference to the return,  and to the letter annexed to it, no legal grounds for the detention of the prisoner could be found; all that was to be collected being, that the person before the Court was confined by warrant from the Under Sheriff, whilst the fact of her being so confined, was most strangely negatived by the letter from the Colonial Secretary.  It was impossible therefore to argue the case, as then presented on its merits.  It was quite clear that there had been an omission in this case.  The letter before the Court, though it might, perhaps, serve as an authority to the Sheriff or his deputy, was clearly no authority to Mrs. Gordon, the Matron of the Factory, whose detention of the prisoner, under such circumstances, was most decidedly illegal.  But, it was impossible that he could argue the case as it stood, it not being before the Court, for what or under what law the prisoner received the sentence of that court.  If it were admitted by the Crown Officers that it was in the interregnum, if he might so term it, of the law in this Colony, that is, subsequent to the repeal of the statute, relative to shop-lifting and previous to the coming into operations of Mr. Peel's Act here, it was quite clear that the sentence passed upon her was a nullity.  The Learned Counsel was proceeding in his argument when

The Chief Justice stated, as the Court was anxious that this case should receive the fullest investigation, and as it appeared, even from the affidavit of which the writ had been issued, that a claim of right of property in the prisoner was to be made, and as something had been said about Van Diemen's Land being the place to which she was originally transported, upon which, also, a question might arise, the Court did not think that all the circumstances of the case were sufficiently before it, to enable it to pronounce a decision.  It was the opinion of their Honors, therefore, that the case should stand over to Wednesday, in order that affidavits might be put in on both sides containing all the circumstances connected with the case.  In the mean time, the prisoner would be remanded, merely for safekeeping, and be brought again before the Court, on Wednesday morning.

 

Forbes C.J., Stephen and Dowling JJ, 16 March 1829

Source: Australian, 20 March 1829[3 ]

 

So singular in its character, and so important in its bearings, do the learned Judges of our Supreme Court consider the case of the woman Jane New, that they have again deferred pronouncing upon its merits definitively.

This woman was brought before the Court on Monday, for the second time, upon her habeas corpus.  Arguments were heard for both sides of the question, and the learned Chief Justice postponed a further hearing till the Wednesday following. -  In doing so, his Honor observed, "the singularity of this case arises from the peculiar circumstance of the party being a prisoner of the Crown  a situation unknown to the laws in England.  The principal difficulty appears to hinge on the right of property possessed by the Government in persons of that description.  This argument would be best deferred for a future consideration of the case."  Mr. Wentworth suggested that the matter had best be carried on by affidavits on both sides, as to the dry facts of the case - in which the Attorney-General concurred.

Accordingly this strange case was again mooted before the three Judges who sat together in banco for the purpose on Wednesday, and again postponed!  Having taken care to present our Readers in another column of the present publication with a condensed report of the legal proceedings on that day, we shall not here attempt going over the same ground a second time.  From a perusal of that report, it will be evident to any person in the least disinterested, there must shortly be an end to the case of Jane New.  We consider the matter now to be as good as settled, and that the ultimate decision of the Judges on Saturday will be --- a peremptory order to the Sheriff, in whose custody the woman has been twice remanded, though upon her habeas corpus, to discharge Jane New from further incarceration.  This discharge then, if such should be ordered, will of course be a virtual acknowledgment of the woman's recent conviction having been illegal; and consequently, her subsequent punishment, by confinement in the female factory at Parramatta, cannot be less so.  How the prime agents and abettors in the transaction will manage to shelter themselves from responsibility, we shall shortly be enabled to see.

From the affidavits and other writings put in during the course of this long-pending question, it has been ascertained that Jane New, by virtue of an assignment to her husband, under the hand of certain authorities at Van Diemen's Land, and in consideration of her uniform good conduct for several years together, was specially authorised by Lieutenant Governor Arthur to leave that Colony, and to accompany her husband to Sydney.  To Sydney the woman accordingly came with her husband.  After residing here for some time, Jane New was fully committed to take her trial before the Criminal Court on a charge of stealing silk goods to the value of 5l. and upwards, from the dwelling house of Madame Rens, in George-street, twelve months antecedently.  Jane New was accordingly indicted under a statute of Mr. Peel's, which made shop-lifting or stealing from a dwelling house, a capital felony.  The prosecutrix being a native of France, or some dependency of that Kingdom, the evidence given was explained to the Court through the medium of sworn interpretors.  Jane New upon this evidence, and the direction of the learned Judge, Mr. Justice Dowling, before whom the case was tried, was found guilty, and had judgment of death recorded, which, according to the common course of law, was changed to transportation for life.  From the Court, Jane New was accordingly transmitted to gaol, in order to be dispatched with other attainted persons to Moreton Bay, in pursuance of her sentence.  But it subsequently appeared that Jane New had been indicted under a repealed statute - a statute that has no existence.  Her conviction under that statute consequently was null and void.  It was an illegal conviction.  Further it appeared to many who were present at the trial, as well as many acquainted with Jane New, that the prosecutrix had been mistaken in the person of the prisoner; or that the evidence had been misinterpreted, and that Jane New, independent of her having been indicted under a statute non-existent, was not convicted upon clear and conclusive testimony.  Seventeen affidavits, corroborative of this fact, and setting forth the innocence of Jane New in the matter, were put in, and a petition on her behalf, (signed by a number of respectable persons to whom she was known, and amongst others by fourteen Magistrates,) accompanied the affidavits.  The matter was again turned over by the Judges, and referred to the Governor and Council.  The conclusion was that the woman had been illegally and wrongfully convicted.  On this persuasion the woman was of course entitled to her pardon and discharge.  This it would seem was the opinion of the Governor and the Colonial Secretary, and others the authorities, as well as the opinion of the Judges, and people in general.  Accordingly a letter, under the hand of the Colonial Secretary, was dispatched from the Colonial Secretary's Office, ordering the discharge of Jane New from his Majesty's gaol of Sydney.  But what follows this?  O strange, O unaccountable fatality ---

"O (imperii) sacra fames, quid

Non mortalia pectora cogis!

Jane New obtains her discharge from the gaol, and by a sort of writ under the hand of the Sheriff's Deputy --- not the Sheriff, but "the Sheriff's Deputy" is --- is --- dispatched and confined to ---- the female factory!

This it appears, is done by order of the Governor.  Now having been illegally, and it would appear by affidavits wrongfully convicted, was the woman entitled to her discharge? or was she not?  If she were, then her subsequent confinement to the factory could not be deemed lawful.  If she were not --- still the mode of her transfer from one prison to another was informal and unconstitutional.  Jane New also was an assigned servant to her husband, and de facto a sort of property with her was vested in her assignee.  Could the Governor then rightly arrogate to himself the power of depriving this assignee of such property, because that it appeared the woman, his assigned servant, had been illegally convicted of an offence there were (we think) seventeen affidavits to shew she was not guilty of; and in order to "COMMUTE" a punishment, which though pronounced upon her evidently through misapprehension, could'nt [sic], the conviction being mull and void, be by law inflicted?  or could he not?  If the Governor could do all we have inferred, he should do so on the authority of some Act of Parliament extant.  If the Governor could not do so under any such Act of Parliament, but did so quite au discretion, then his Excellency has left the propriety of his doing so open to investigation, and to dispute.

The Governor's crown officers allege that the Act of Parliament relating to these Colonies now in existence, or supposed to be in existence, the IX. Geo. IV. cap. LXIII. sec. 2, gives to his Excellency the right of revoking any former or future assignment at will; that is to say, without giving any reason whatever, but that such is his Excellency's supreme will and pleasure.  Conceding this delightful dogma for a moment to the crown officers, and admitting also they may have given a proper turn to the expression of the sec. aforesaid, - has the Governor of New South Wales, or has he not, any right and title to revoke an assignment or a conditional pardon (for such to all intents and purposes was the permission to Jane New to accompany her husband to Sydney) made by the Lieutenant Governor of Van Diemen's Land?  If he have such a right, - why then Van Diemen's Land can no longer be the separate and independent State it once was made by the British Government!  and therefore must it follow that the Lieutenant Governor of Van Diemen's Land is a mere ministerial officer under the Governor of New South Wales, subject to be displaced from, or continued in office, just as it may suit his supreme will and pleasure, and not an independent Governor or Lieutenant Governor, as since the arrival of General Darling he was considered to be.  If otherwise, we know not how Colonel Arthur may feel disposed to treat any infringement upon his prerogative in the case of Jane New, now before us.

But the crown officers say this woman is a convict attaint.  Enough we consider has already been shewn to prove that independent of any formal pardon, the Colonial Secretary's letter, ordering her discharge from gaol, is quite sufficient to settle that point: and if so, what shall be said for the subsequent duress of imprisonment which the woman is even now undergoing?  But we have already shewn enough of this case to anticipate what some part of the result will be.  On Saturday (to morrow) the learned Judges, it is to be hoped, will make known their final decision.  Then the public will be enabled to form a conclusive opinion of the whole of this most important case.

Owing to the way it has been opposed and protracted from day to day, the expenses must already be very weighty.  Such expenses may come light and easy enough upon the side of the crown, but on that of the subject they seldom fail to be most grievous.  Still we cannot applaud the Judges for the mature deliberation and patient attention thus bestowed by them.  Saturday we trust will put a finish to the business.  We shall then see who has the greater reason for congratulation, "the powers that be," or the subject.

 

Forbes C.J., Stephen and Dowling JJ, 18 March 1829

Source: Australian, 20 March 1829[4 ]

 

The three Judges again sat in banco, to hear further arguments of counsel in the case of this individual.  Mr. Wentworth suggested that the affidavits filed on both sides should be read; and they were accordingly by Mr. Gurner, clerk of the Court.  The first affidavit was one of the husband of Jane New, deposing to the fact of his wife's good conduct to her assignment, and discharge from the sentence of the Supreme Court and gaol, and immediate commitment to confinement in the factory, by which deponent was deprived of her services, &c.; and the second affidavit of Mr. Thomas Pratt, of Sydney, proving the hand-writing of J. Burnet, Esquire, Colonial Secretary of Van Diemen's Land; with a letter from Mr. Burnett to Mr. McLeay - sent from Hobart Town with Jane New - stating her assignment to her husband; the third was an affidavit of A. McLeay, Esquire, Colonial Secretary, that Jane New never was assigned by this government to any person - that it was his Excellency's pleasure to revoke the assignment made by the Government of Van Dieman's Land - and to order he said Jane New to the factory - as an establishment appropriated for the reception of female prisoners of the Crown.  The record of conviction of Jane New, before the Supreme Court in January last, for stealing certain goods in the dwelling-house of Madame Rens, to the value of 5l., was then read by the clerk of the Court.  The fourth was an affidavit of Mr. John Gurner, certifying Jane New, so convicted, as the same party mentioned in the writ of habeas corpus.

Mr. W. Rose. - The learned Gentleman would first proceed to read over that part of the New South Wales Act which gives power to the Governor of these Colonies to assign the services of prisoners.  The assignment proved to have been made of Jane New, evidently implied an assignment for the term of her transportation, which term, the learned Counsel contended, will not expire until April 1831.  By the ninth section of the 9th Geo. IV. c. 83, power is given to the Governor to revoke the assignment so made of any prisoners, and to extend either temporary or partial remission of the sentence under which they may labor.  This, said the learned Counsel, evidently couples with such power to revoke an intention to commute, or change for the better the situation of the prisoner.  Such an intention, he conceived, must be gathered from the wording of the clause cited.  Again, the transportation of this prisoner was to Van Diemen's Land; and it was to the Governor of that Colony only that the right of assignment had been delegated.  His client, the learned Counsel contended, was as free from all restraint in this Colony as any other of his Majesty's subjects.  Van Diemen's Land is independent of New South Wales - and vice versa.  If therefore any power of revocation does exist, that power, the learned Counsel ruled, must be vested in the Governor of Van Dieman's Land.  It was judiciously known to the Court, he considered, that the Act under which the woman New had been convicted in January last, was among the number of those repealed by Mr. Peel's Act in July 1827.

An interregnum then ensued of several months; during which no laws being in operation having reference to the particular offence of which Jane New had been convicted, her conviction, the learned Counsel contended, must be considered a nullity.  Courts of oyer and terminer in England, have power to correct any error which may have crept into their proceedings, and at any time during the sessions to remit or reverse any sentence they may have passed.  Those courts are merely temporary - being appointed by writ or commission from time to time.  That Court being established by Act of Parliament, and, as he (Mr. W.) would term it, a standing Court, continually sitting, it appeared clear that the Judges of that Court could, if they saw cause, at any time remedy an error, by annulling their sentence.  This was a strong ground for urging the Court to quash the conviction of this woman.  Then, as to the right of property in her services, he (Mr. W.) would contend no such right was vested in the Governor, and cited various passages from the late Acts, in support of his argument.

The Attorney-General, in reply, undertook to shew, from the direct reading of the Act, that the power of assigning prisoners transported from England, and also of such as may be convicted in the Colony, of revoking and re-assigning them lays with the Governor.  The learned Gentlemen quoted the same sections and words of the same Acts as had been before quoted on the other side by Mr. W. - but endeavoured to deduce from them a different meaning - the learned Attorney General's object appearing to be chiefly to prove, to the satisfaction of the Court, that the woman New had been legally detained.  It was already proved, he contended, she had been convicted of a capital charge in the Colony, and judgment of death recorded - that such sentence was afterwards commuted by the --

Mr. Judge Stephen - I must request you will confine yourself to the facts before the Court.  What evidence have we had that her sentence has been commuted?

The Attorney-Gen. proceeded - This prisoner then, after having been so convicted, was ordered by the Governor to be kept in the Factory, until arrangements could be made by the Magistrates for determining on some means of punishment for the offence she had committed - in short, for her safe keeping.

Mr. Judge Stephen again observed, that the Court could have no judicial knowledge of what the Governor had done.  We can (said his Honor) only give our opinion from the facts before us.

Mr. Attorney-General concluded, by submitting that he trusted he had shewn the woman to be a prisoner of the Crown - that she had been taken in custody as such - and was properly dealt with, as the only means of confining her within the proper bounds of jurisdiction.

Mr. Solicitor-General followed on the same side.  The learned Gentleman quoted a passage from Blackstone - from which he contended, that admitting the statute under which this party was convicted, to have been imperative, yet that her conviction was good under the common law.  Having gone over nearly the same ground with the Attorney-General, Mr. Solicitor-General contended, finally, that the woman must be in one of these two situations: either a felon attaint, or a prisoner of the Crown, illegally at large.

Mr. Wentworth rejoined. -  He contended that that the attainder on which so much stress was laid, had been done away with by the remission; under the authority of the Executive Government, as set forth in Mr. McLeay's letter.  It was in proof that the woman had been actually ordered to be discharged from the goal.  In every point of view, he contended, she was entitled to her liberation.

The Chief Justice. - The Court will reserve its judgment until Saturday morning.

On Mr. Judge Stephen asking the Solicitor-General if he had any objection to the prisoner being bailed, the latter replied that he should object.  Mr. Judge Stephen expressed his opinion, that the woman was illegally detained, and therefore would incline to allow of her being admitted to bail. The learned Judge spoke in a low voice; but we heard sufficient to collect that his opinion was meant to be delivered with the delicate sense of deference towards his learned brethren, and with a feeling of justice towards the party whose case was the object of discussion.

Upon the order of the other two learned Judges, the prisoner was then remanded in custody.

 

Source: Forbes Papers, Mitchell Library, A 742[5 ]

 

"In the Matter of Jane New.  Minute of the proceedings in the Supreme Court of New South Wales, on a motion for a Habeas Corpus to discharge the body of Jane New, a prisoner of the crown, from the factory at Parramatta - Extracted from the contemporaneous Note Book of James Dowling Esqre. one of the assistant Judges of the Court - vol. 15 fol. 93. 

First Term, 10th Geo. 4th.  Wednesday, 18th. March 1829.

Present, Forbes C.J.

Stephen J.

Dowling J.

Ex parte Jane New.

Mr. Sidney Stephen had on a former day in this Term obtained a Writ of habeas Corpus to bring up the body of Jane the wife of James New, from the female factory at Parramatta, where it was alleged she was unlawfully detained -

The Prisoner was this day brought into court, and the writ of Habeas Corpus and return thereto read -

Other documents and papers were read -

The principal circumstances of the case admitted on both sides were these:- The Prisoner had been tried and convicted before Dowling J. at the last criminal Session of a capital felony.[6 ]  It appearing afterwards that her conviction had proceeded upon a Statute not in force in this Colony at the time the offence was committed, the Judges were of opinion that here conviction was void.  The Prisoner had been originally convicted of felony at the Chester Sessions, and ordered to be transported from England for seven years, and was accordingly transported to Van Dieman's Land.  After her conviction in this Colony was declared void, the Sheriff, by the direction of the Governor, removed her from the common Gaol at Sydney, as a prisoner of the crown, to the Factory at Parramatta.  Whilst the Prisoner was a transported felon at Van Dieman's Land, the Lieutenant Governor of that settlement assigned her to James New, a free subject there residing, and allowed her to marry him.  The Prisoner was afterwards permitted to accompany her husband to Sydney and whilst residing here she committed the offence of which she was afterwards erroneously convicted.  Before she was removed to the factory at Parramatta, His Excellency  the Governor of New South Wales revoked the  assignment executed by the Lieutenant Governor of Van Dieman's Land of the Prisoner to her husband, under the 9th. sec. of the Statute 9th. Geo. 4th. c: 83. - Under these circumstances,

Mr. Wentworth and Mr. S. Stephen now moved on the part of the husband James New that the prisoner Jane New be discharged and delivered over to her husband and master, on the ground - first, that the Governor of this Territory had no power under the 9th. sec: of the Statute to cancel the assignment to a master, of any prisoner of the crown, except for the purpose of granting a temporary or partial remission of the original sentence; and secondly, that at all events he could not cancel the assignment of a prisoner who had been transported from England to Van Dieman's Land, that being a separate and independent Colony, not within the government or jurisdiction of the Governor of New South Wales.  These points were urged at some length-

Mr. Attorney General (Baxter) and Mr. Solicitor General (Sampson) appeared on the part of the crown, and contended that the Governor of New South Wales had the absolute right at his pleasure, to cancel the assignment, to a master, of a prisoner of the crown, without reference to the remission of the original sentence.  It is admitted that the prisoner now before the court is a transported felon, whose sentence is unexpired, and therefore she cannot be discharged, if the Governor may revoke her assignment under the 9th. sec: of the New South Wales Act.  After pressing this point at some length - "I am instructed" (said the Attorney General) "to pray the decision of the court upon this point, not so much for this particular case, as to guide the discretion of the executive government in other cases now under consideration".

Forbes, C.J. May not this case be disposed of on another point?  Is it necessary that we should give any opinion upon the effect and meaning of that important section, involving as it does so many consequences?  It is a question of considerable delicacy, and we wish to avoid the discussion of it unless in a case where no other question arises -

Mr. Attorney General.  I apprehend the question is necessarily involved in this case, and although your Honor suggests that there is another point on which the case may be disposed of, yet I must respectfully press for the decision of the Court upon the general question in order to guide the discretion of the executive government.  It has been considered a doubtful point, and for the guidance of the government it is most desirable that the matter should be set at rest -

Forbes, C.J.  Then in that point of view, and understanding that our decision is for the purpose of informing the government of our views of the clause and guiding its discretion in other cases, we shall take the matter into consideration, and give our opinion upon it, on an early day, although we think, as at present advised, that the case may be disposed of on another point-

Curia advisare vult.[7 ]

 

Forbes C.J., Stephen and Dowling JJ, 21 March 1829

Source: Mitchell Library, Forbes Papers,  A 1267 - Part 11, Reel CY 902, pp 610-641[8 ]

Supreme Court of New South Wales - 21st March 1829.

[No. 61, of 20.5.29]              EXPARTE JANE NEW

The Chief Justice delivered his opinion to the following effect.-

This is an application to the Court to enlarge the Prisoner, Jane New, upon the ground that she is unlawfully detained in the Factory at Parramatta. It were superfluous to offer any remarks upon the nature of the remedy which is now sought at our hands - the Writ of Habeas Corpus is the great constitutional process, by which every subject of His Majesty being in a state of Confinement, may, upon sufficient grounds, bring his case before the Court, and demand his liberation as matter of right, if his confinement be contrary to Law - We, as the Judges of this Colony, are expressly invested, by Act of Parliament, with the same powers as the Judges of the King's superior Courts at Westminster, and we are equally bound with them, by the obligations of our Office and the heavy penalties to which we are subjected, to award this process at our peril, and to investigate every case in which a probable ground may be laid for our interposition - That the writ of Habeas Corpus, transcendent as it is in its nature, has been temporarily used in this Colony, may be inferred from the fact, that during the five years which have passed since the first opening of the Supreme Court, I do not recollect above three cases which have occurred of this Writ having issued, to enlarge any person upon the ground of being illegally imprisoned; and the present instance I believe to be the first, in which the discharge of the party applying for the Writ has been contested by the Officers of the Crown.

The few facts to which it will be necessary to advert, in delivering my opinion upon the application now before the Court, are as follow - Jane New was tried at the Assizes held at Chester, in England in 1824, and convicted of larceny for which she was sentenced to be transported 7 years.- the Prisoner was accordingly sent to Van Diemen's Land, and as appears by the Affadavits was in the Year 1826 married to James New, by the permission of the Governor of that Colony, and subsequently by the same authority, suffered to accompany her husband to New South Wales - At the last Criminal Sessions of the Supreme Court, the Prisoner was convicted under the statute 12th Ann C:7 (the Statute which takes away benefit of Clergy from the offence of stealing in a dwelling house above the value of forty shillings) and judgement of Death was recorded against her - This sentence, as it is stated upon the affidavits was afterwards remitted by the Governor, in pursuance of His Excellency's commission from the Crown; and the assignment of the Prisoner to her husband was revoked; and her person ordered to be delivered over from the Gaol to which she had been committed under the judgement of the Supreme Court, to the Superintendent of the Factory at Parramatta, there to be detained in like manner as other Female Prisoners, being under unexpired sentences of transportation.

Upon this state of facts two questions have been raised at the bar, for the determination of the Court - First, Whether the Sentence passed upon Jane New in this Colony, is to be considered, upon the facts before us, as a good subsisting sentence, and as placing her at the disposal of the Governor, in pursuance of the local laws of this Colony - or secondly, assuming such sentence to have been remitted, Whether the Governor is enabled by the New South Wales Act, to revoke the original assignment of Jane New, to her husband, and either to reassign her to another person, or to retain her in the service of the Crown.-

Upon the first point, I am of opinion that sufficient evidence is before the Court, upon the affidavits, and the documents annexed to them, to satisfy the Judges of a fact, which they cannot but be presumed to know, that His Excellency the Governor, had in consequence of their own opinion, communicated in another course of proceeding, been pleased to remit the sentence passed upon Jane New, for her Offence within this Colony - I accede to the argument of the Attorney General that a pardon is not perfected in due form of law, until it has passed the Great Seal - that the signet or sign manual, or any less formal mode of granting a pardon, cannot be pleaded, or even adduced in evidence, to reverse the legal consequences of attainder or to restore the party attaint to his plenam et liberam legem, in any case, where the effect of a pardon is the immediate subject matter of enquiry before the Court - such instruments, however, are held sufficient to induce the Court to admit a Prisoner to Bail, and to liberate him from personal restraint (4 Bl. com: 400) - Even a conditional promise of mercy, held out by Justices of the Peace to induce a party to give Evidence which may criminate himself, has been held sufficient to authorise the Court to bail, although it appeared that the Justices had exceeded their power, and the promise so held out by them was strictly void (Cowp: 331) - When we consider therefore, that the letter from the Colonial Secretary to the Sheriff, as his warrant for discharging the prisoner from the common Gaol, expressly stated as the ground for such removal, that "the Governor had been pleased to remit the sentence passed upon Jane New", and that it is further stated in the Affadavit of the Colonial Secretary, in explanation of the circumstances under which the Prisoner was subsequently detained in the Factory, "that His Excellency had been pleased to revoke the assignment of such Prisoner "we cannot reasonably doubt the fact, that His Excellency the Governor had been pleased to remit the Colonial Sentence passed upon Jane New; and upon such fact, we should be bound to admit the Prisoner to Bail, in order to her obtaining her full pardon in due form of law - I think, therefore, from the state of facts before us, as well as from our own judicial knowledge of the grounds upon which this Prisoner was considered as entitled to a Pardon, we may lay out of the case her Colonial Sentence, and pass to the examination of the other and more important point which has been revised for the decision of the Court - namely, how far this woman having been originally transported to Van Diemens Land, and assigned by the Governor of that Colony, is subject to the laws and Regulations applicable to Convicts transported to this Colony, and to the power of the Governor of New South Wales to revoke the assignment, by force of the Statute 9th Geo: 4th c: 83. or any other power with which, as the Governor of this Colony, His Excellency may be clothed.[9 ]

The clause of the Act under consideration is certainly expressed in an ambiguous manner, and is capable of two readings. It recites the Act passed for the transportation of Offenders, in the 5th Year of His present Majesty, by which a property in the service of transported offenders is vested in the Governor of the assignees of such offenders, and then goes on to restrain such assignments, without the previous consent of the Governor, and further to enable the Governor to revoke any assignments, and to grant to any Offenders such temporary or partial remissions of their sentences as may seem best adapted for their reformation.[10 ]  It is affirmed by His Majesty's law Officers, that the power of revoking assignments of Convicts to Settlers, has no necessary connection with the clause which follows, of granting temporary remissions of their terms - that they are distinct and substantive powers conferred by the Act, and that the Governor may revoke the assignment of a Convict servant made to A. and reassign him to B. at His Excellency's discretion; and that the fact of a Prisoner being within the limits of this Colony, places such Prisoner within the exercise of this discretionary power of the Governor.

The latter part of this doctrine appears to me to be clearly untenable - The very power that is claimed to belong to the Governor, is derived from the positive provisions of an Act of Parliament, and the same Act which gives the power, confines it to Prisoners transported directly[11 ] from England, or some other part of the King's dominions, to this Colony - Van Diemens Land is now, to all intents and purposes, a distinct Colony from New South Wales; and the Governor of the latter, can no more revoke any act of the former, than of the Governor of any other Colony under His Majesty's Crown - The mere circumstance of the Prisoner being under sentence of transportation from England, and being found within the limits of His Excellency's Government, cannot confer the power contended for - it must derive its force from some positive enactment, or it cannot exist - Now the clause under consideration, refers to assignments made by the respective Governors of New South Wales and Van Diemens Land, in pursuance of the transportation Act, which enables them respectively to revoke such Assignments  that is, each of the said Governors may revoke any assignment made by himself or his predecessors, of any Prisoner transported in pursuance of that Act to the Colony under his Government; but it does not enable the Governor of one Colony to cancel assignments made by the Governor of the other.-

But it appears to me that this power of revocation is not sustainable under any circumstances, in the large and discretionary form in which it has been claimed by the law Officers of the Crown - It involves a question of vital importance to the Colonists - the tenure by which they held their servants, and by consequence, the value of their estates and the security of their property - for without labor, land in this Colony is useless, and the only laborers which can be held securely, are assigned Prisoners -[12 ]  If I correctly understand the Attorney General, he contends that the Governor may, at discretion revoke the assignment of the whole of the Prisoners in the service of the settlers, and as a consequence render their estates comparatively of no value - [13 ] That His Excellency will not exert such a power may be assumed - but it is upon the existence of such power, not the exercise of it, that we are called upon to express our opinions - and before the bare abstract claim of such a power can be sustained, by the adjudication of this Court, it must be established to its entire conviction, upon the clearest manifestation of the intention of Parliament - Now the act as I have already stated, is ambiguous in its form of expression, and in endeavouring to define its true meaning, the safest course will be to see how the law stood before the passing of the Act, and what alterations appear to have been intended.-

Transportation was unknown to the common law of England; it derives its origin from Acts of Parliament - The transportation Acts have two specific objects in view, the punishment of Criminals, and the supply of the Colonies with labor - [14 ]  In the accomplishment of these objects, the first Act of Parliament 4th Geo: 1st c. 11 affixed the punishment of transportation to certain Offences; and enabled the Judges to transfer such offenders to some person who should contract to convey them beyond seas; and vested in such contractor and his assignees, a property in their services during the entire term of their transportation - The Act reserved the to His Majesty, the power of allowing the return of any transported felon, but it provided that the owner or proprietor should receive an equivalent for the loss of his services, to be assessed by two Magistrates of the province or Colony, to which such felon had been transported - the provisions of this Act have served as the ground work for all the transportation laws which have subsequently passed - The 8th Geo: 3d.c.15. 24th Geo. 3d.c.56 - 56th Geo. 3d.c.27, all recognise and confirm this right of property in the services of a transported offender. The last transportation Act 5th Geo: 4th c. 84 - follows the same course - it repeals all the former Acts, and consolidates their provisions into one law - this Act appears, to have been generally considered as having introduced the right of transfer from one assignee of a Prisoner to another, and as vesting such a property in the assignee, as could not be affected by any Act of the Governor, in granting what in this Colony, are called Tickets of Leave - The Act had expressly saved His Majesty's power of mercy, but it contained no such reservation to the Governor of the Colony; who consequently could not only remit the sentence of an assigned Prisoner, by granting him a conditional pardon, under the provisions of former statutes - Tickets of Leave were in the nature of a temporary and resumable indulgence, which exempted the Servant from the control of his Master and permitted him to enjoy the profits of his own labor - These instruments were in some respects preferable to remissions - they acted as a stimulus to reformation, and at the same time, by being resumable, they served as the best guarantee for future good behaviour - In the earlier state of the Colony, when the number of Prisoners greatly exceeded the demand for labor, this practice of granting Tickets of Leave was tacitly submitted to by the Settlers - but in later times, its legality has been called in question, and this circumstance gave rise to the provision of the Act under consideration - it was to legalize tickets of leave, or as they are described in the Act of Parliament, temporary and partial remissions of the terms of transported offenders - The best expositors of the law, are the circumstances which called it forth - viewing it with reference to the practice of granting these temporary indulgencies it clearly and primarily had in view the enabling the Governor to cancel the previously vested right of the assignee in the services of the Prisoner, and to extend the grace of mercy in such a temporary and resumable form, as might at serve at once to reclaim a lost Member of Society, and to guarantee his continued reformation. The Act of revocation was a necessary preliminary to granting any temporary or partial remission - "temporary or partial", suppose a limit, a part of the term unremitted and the residue would consequently remain vested in the assignee in order therefore to give full effect to the clause it became necessary to first cancel the Assignment, and destroy any residuary right of property in the assignee - the Act says "it shall be lawful for the Governor to revoke any such assignments of Offenders, and to grant to any Offenders such temporary or partial remissions of their sentences as may seem best adapted for their reformation" - and had it intended to enable the Governor to revoke the Assignment to one person, and to reassign to another, I think it would have been clearly and distinctly so expressed -[15 ] The right of private property, when once acquired, is held so inviolable by the Laws of England, that I cannot easily suppose it to have been the intention of Parliament, after having created this right in the assignee of a Prisoner, in the most express and formal manner, and having carefully preserved it through the successive provisions of a Chain of Statutes, to take it away by a word; and that, without any cause alleged, or any previous enquiry, or any definite course of proceed directed for the exercise of so strong and anomalous a power - a power which would be, perhaps, without a precedent in the records of Parliament -[16 ] As then the clause in question will admit of a different construction, I am bound to put that interpretation upon it, which will best effectuate the apparent intentions of the legislature, without violating the analogies of Law, or disturbing the vested rights of property.

I am aware that it is open to argument, in support of the construction contended for, that cases may occur, and have occurred, in which the Assignees of Prisoners have abused the power they possessed over their Prisoner Servants, and that it is expedient that a controlling authority should be lodged somewhere, of restraining such abuses, and of putting an end, in extreme cases, to the relation between the Master and his assigned servants.- An authority of this sort has in fact, been exercised by the Justices within the several districts of the Colony, after the manner of dissolving the union between Master and apprentice; and I am not prepared to say that some law may not be found, sufficiently wide to admit the exercise of this very equitable jurisdiction - Every Act of Assignment performed by the Governor, is a public Act - it is a partial execution of the laws of the Land - it is presumed like every other public trust, to be exercised for the benefit of the whole community - as between the Government on one side, and the assignee on the other, it raises an implied contract, by which the assignee is bound to use the Prisoner with kindness, and to provide him with food, clothing and protection - the rights of the Prisoner, and the interests of the Public demand the most exact observance of this implied stipulation; and any breach of it on the part of the Master, should upon every sound principle, be considered as a dissolution of the Contract - But such dissolution should be preceded by some course of legalized enquiry, in which the parties may be heard, and the penalty of revocation, if awarded, deliberately adjudged - Whether this authority, so exercised by the Justices, be well or ill founded, it is now not necessary to enquire - if their Jurisdiction have no stronger ground to rest upon, than the silent acquiescence of the public, it proves the necessity of resorting to the legislature of the Colony. But I cannot discover how a fair argument can be raised upon any defect in the jurisdiction of the Magistrates, to sustain the naked power which has been claimed on behalf of the Governor - If His Excellency be indeed invested with this power by the high authority of Parliament, it cannot be delagated [sic] to other hands - it must be strictly pursued & exercised at the pure responsibility of the Grantee (Cowp. 29) and thus the penal consequences which, under the unlimited power contended for, would place the whole of the estates and fortunes of the settlers at the discretion of the Government, may be enforced at mere will, without complaint, or hearing or trial, or in short any one recognised form of judicial investigation.-[17 ]

 

From this review of the arguments which have been used at the bar, it will be collected as my opinion, that the latter part of the 9th Section of the Act of Parliament, must be taken as one entire clause, and as conferring upon the Governor of the Colony, the single power of revoking the Assignment of a Convict servant, for the purpose of remitting his sentence - I do not think however that the decision of this point of the law, which has been incidentally raised, is essential to the final disposal of the case - there is another and more conclusive point, which has been lightly touched in argument, but which appears to me to be imperative upon the Court as to the course which under the circumstances in evidence before us, it is bound to pursue -[18 ] It is admitted by James New - indeed the whole facts before the Court shew, that the Prisoner is a transported felon - transported to Van Diemen's Land from England, and that her sentence has neither expired, nor been remitted - she is therefore, a transported felon, found at large in New South Wales - It is true that she has been permitted to follow her husband and master to this Colony, by the Governor of Van Diemen's Land; but I am constrained to hold, that such permission was not within the power of the Governor of that Colony to grant, and while I am anxious to do justice to the humane intentions which induced His Excellency to extend this indulgence to the Prisoner, it is a duty which I owe to the seat in which I am placed, to state my opinion freely and fully, upon this important question of penal law.

The Acts of Parliament for the transportation of convicted felons, are the only guides to be followed by the Court - Now these Acts authorise His Majesty's Secretary of State, to appoint a place to which transported felons may be sent, and provide for such felons being conveyed to such place, and there subjected to a certain discipline, and to the summary jurisdiction of the local authorities; and in order to prevent their escape, it is made a misdemeanour, in any person to aid or assist in such escape. The whole of the provisions of the Acts, have a clear and exclusive reference to the original place of transportation, selected by the Secretary of State - (2 Barne: & Ald: 262) - When therefore a Prisoner, who is transported to one Colony, is permitted to remove to another Colony, such Prisoner is no longer within the Provisions of the Acts of Parliament - he is not transported to such other Colony, and consequently not subject to the summary jurisdiction of the magistrates, he has never been assigned to the Governor of such Colony, and consequently the Governor can transfer no property in his services - he is not within the Acts of Parliament, as with reference to the Colony to which he has removed - The fact of his being a convicted felon, does not in itself subject him to the legal consequences of the transportation Acts  those Acts are very particular in their details; they must be strictly followed; and where they are silent, there is no law - I feel therefore no difficulty in holding that the Prisoner Jane New is unlawfully at large in this Colony - and however she may not be subject to the local authorities, to be dealt with, in all respects, as a Prisoner transported from England to this Colony, yet as the Supreme Judges of the Land, and the Administrators of the laws of the Empire, against which we find this person offending by being at large in this Colony, contrary to the provisions and the whole policy of the Acts for the transportation of Offenders to these Settlements, we feel ourselves bound to remand her to the custody of the Government, for the purpose of being sent back to van Diemens Land, the place of her original, and unsatisfied term of transportation.-

Signed FRANCIS FORBES

 

EXPARTE JANE NEW

Mr. Justice Stephen delivered his opinion to the following effect.

I entirely coincide in the view taken of this case by His Honor the Chief Justice -

He has gone so fully into the subject that I think it unnecessary to add any thing to what has fallen from him - I think that the Prisoner Jane New under the circumstances must be remanded.

Signed JOHN STEPHEN.

 

EXPARTE JANE NEW[19 ]

Mr. Justice Dowling Delivered his Opinion to the following effect.[20 ]

On a former day in this Term, the Court at the instance of the Prisoners Husband, granted a writ of Habeas Corpus directed to the Matron of the Female Factory at Parramatta Commanding her to bring up the body of Jane New into this Court. - The body of the Prisoner having been brought into Court on Wednesday last it appeared from the Documents and Evidence then produced, that she had been tried by the Name of Jane Henrie, alias Maria Wilson, at the Chester Quarter Sessions in April 1824 and Sentenced to Seven Years transportation, and was accordingly transported to Van Diemen's Land, at which Island she arrived in 1825.  On the 24th of July 1826, she was married to James New with the consent of the Lieut: Governor of that Settlement, by whom, she was duly assigned to the same James New, as his Servant.  On the 28th of September 1827, the Lieut. Governor granted permission to the Prisoner to proceed with her husband to Sydney.  On the 5th of January last, she was tried in this Court for a Capital Offence committed in Sydney on the 18th December 1827, and Sentence of Death was ordered to be recorded, and there upon she was remanded to Sydney Gaol:-  The Judges of this Court know Officially that an objection was afterwards made to the validity of the Conviction in point of Law, and after due deliberation they felt themselves bound to declare the conviction void.

It appears now that the Prisoner on the 19th of February last, was, by virtue of an Order of His Excellency the Governor, removed by the Sheriff from Sydney Gaol to the Female factory at Parramatta in which place she was in confinement at the time of the issuing of the writ of Habeas Corpus. - In an Affidavit made by the Honble. the Colonial Secretary, it was stated that the Prisoner had never been Assigned by His Excellency the Governor of New South Wales, to any Individual whatever, and that she having been transferred by the Government of Van Diemens Land to this Colony, His Excellency the Governor had been pleased to revoke the assignment previously made of her to her husband by the Lieut: Governor of Van Diemen's Land, and had directed her to be sent to the Female Factory at Parramatta, a Government Establishment appropriated to the reception of Female Prisoners of the Crown.-

Under these circumstances the question is, whether the Court has any Authority to discharge the Prisoner.-

I am clearly of Opinion that we have no Authority to discharge the Prisoner, and that by virtue of the paramount ministerial jurisdiction of this Court, we are bound to remand her as a Prisoner of the Crown, at large without lawful Authority, and to direct that she be removed to Van Diemen's Land whence she came, there to be dealt with according to Law.-

It is admitted on all hands that this Prisoner is a Convict of competent authority in the Mother Country to be transported to such place beyond Seas, as His Majesty by and with the advice of his Council should direct an appoint for the Term of Seven Years. - It appears that His Majesty had appointed Van Diemen's Land as the place to which the Prisoner should be transported and thither she was transport [sic] accordingly.  Her home sentence will not have expired until the 26th April 1831. - Whilst at Van Diemen's Land, she was allowed to intermarry with James New, to whom the Lieut. Governor of that Island had authority to Assign her as a Servant by virtue of the transportation Act, 5 G. 4. cap: 84. s. 8. and it is sworn that she was duly assigned to the Husband accordingly. - On the 26th September 1827, the Lieut: Governor gave the Prisoner permission to accompany her Husband to Sydney. Doubtless this permission was given from motives of mercy to the Prisoner, but I apprehend, that the Lieut:  Governor of that Island had no Authority by Law to grant such permission.  The Prisoner was indented as a Convict transport to Van Diemen's Land, there to remain until her Sentence should expire.- By the 44th Sect: of the 4. Geo. 4. C. 96. Authority was given by Parliament to His Majesty to erect the Island of Van Diemen's land into a separate Colony independent of the Government of New South Wales.  It is known as matter of history, that such separation has taken place and that the jurisdiction of the two Colonies are separated to all intents and purposes.  Therefore, although the Lieut: Governor of Van Diemen's Land had Authority to assign the Prisoner to her Husband as his Servant, yet it appears to me he had no power to allow her to accompanying [sic] him to New South Wales, a place entirely out of his Government.  Her coming here, was in Law an escape from Van Diemen's Land, and the Lieut: Governors permission would be no defence in Law, to an Indictment for such escape, altho' it would certainly be a good reason for exempting her from punishment.  The practice of allowing Prisoners of the Crown to go from one Colony to the other, were it generally sanctioned would lead to the greatest possible inconvenience.  As the Magistracy of both Colonies have each a separate and exclusive jurisdiction   There would be no power of dealing summarily with persons of this description, guilty of Offences in the Colony to which they did not properly belong, and consequently that system of discipline provided by the Legislature for the Government of the prison population would become inoperative in such cases.  There are other reasons not necessary now to point out, which would further prove the inexpediency of sanctioning such a practice -  It appears to me however, that as the removal of this Prisoner to this Colony was not lawful, she may be treated as a Runaway Prisoner of the Crown from Van Diemen's Land and returned to that Colony until her original Sentence shall have expired.

Viewing the case in this light it is unnecessary to give any Opinion as to the sufficiency of the return to the Habeas Corpus and Affidavits thereon, to authorise her detention in the Factory at Parramatta, on other grounds -  It does not appear that she has been treated there with any degree of unnecessary restraint, and for anything that appears to the contrary, she may have been sent there for better accommodation than the Gaol of Sydney would afford until she could be removed to Van Diemen's Land, whither I am clearly of opinion, she may be sent for the reasons I have stated.-

In the course of the discussion of this Case, a question incidentally arose of very great importance, namely, as to the construction to be put upon the 9th Sect. of the New Act 9th Geo: 4th C.83. touching the Governors power of revoking assignments of Crown Prisoners made under the 5th G. 4. Cap. 84 Sect: 8.-

In this particular case the construction of that Section of the Statute does not distinctly arise, because I take it to be perfectly clear, that at all events it is not within the power of the Governor of New South Wales to revoke it at Sydney an assignment made at Hobart Town by the Lieutenant Governor of Van Diemen's Land, of a Prisoner of the Crown transported from the United Kingdom to that Settlement.  Such a revocation I conceive could only be made at Van Diemen's Land by the Lieut: Governor of that Colony.-[21 ]

 

In this case I should have been strongly disinclined to give any Opinion upon the construction generally of the 9th Sec. of the Statute alluded to because it does not properly arise; but inasmuch as the question has been pressed upon our attention on both sides, and the Opinion of the Court urgently sought for by the Law Officers of the Crown, I feel no hesitation on giving my present views upon it, although it is a matter which may possibly require hereafter more advised Consideration.[22 ]

Before however, I address myself to the consideration of the particular provisions of this Section, it may not be amiss to advert generally to the nature and consequences of the punishment of Transportation from the Mother Country to these Settlements.  I take it to be perfectly clear from all the Statutes passed upon this subject, that two leading consequences flow from this punishment, first, to subject the Offender during the period of his banishment to ordinary Labor, but to no greater degree of restraint than is necessary to the due performance of such Labor, and Secondly, to vest absolutely the property of his Labor in the Governor of the Colony for the time being or in his (the Governors) Assignee, for such time as the punishment of Transportation is to continue. - These results are to be collected from the Statutes 4 Geo. 1st. C. 11 - 8th Geo. 3. C. 15 - 43. Geo: C. 15-56 Geo: 3rd C. 27. and 5th Geo: 4. C. 84. - By the 8th Section of the last mentioned Act, it is enacted, that, "as soon as the Offender shall be delivered to the Governor of the Colony, the property in the Services of such Offenders shall be vested in the Governor, and it shall be lawful for the Governor, whenever he shall think fit to assign any such Offender to any other person, for the then residue of his or her term of Transportation, and for such Assignee to Assign over such Offender; and soon as often as may be thought fit: and the property in the Service of such Offender, shall continue in the Governor for the time being, or his Assignee during the whole remaining term of Life or Years for which such Offender was sentenced or ordered to be transported."

Until the passing of the late Act of Parliament 9th Geo: 4th Cap: 83, S. 9. the Governors Assignee of a transported Convict had an absolute indefeasible property in the Services of the Transport, a long as the remainder of his original Sentence endured.  I know, until then of no Authority anywhere in this Colony to cancel such Assignment without the Assignees Consent.  The Service of a Convict would indeed, be suspended, during the operation of a Colonial Sentence for punishment, for an Offence here committed, but the legal effect of the Assignment would remain untouched.  Then what alteration in the Law had the 9th Geo: 4th Cap. 83 S. 9 made? -  Looking to the spirit of that clause, it is quite obvious that one important object of the Legislature was to meliorate the condition of the transport, and to endeavour by lenient means to effect a reformation in his habits.  It is a matter of history that in former times it was not an uncommon thing for the Assignee of a Convict to sell his Services or Assign them to another person for pecuniary consideration; It often happened that a Convict Servant was Assignee to a harsh, immoral or otherwise improper Master.  Hence arose the Ticket of Leave system - a system which had no Legislative Authority for its support, but which was certainly productive of much good in improving the Condition of the Prisoner, and holding out to him to a strong incitement to good behaviour.  I venture to presume however, that it never could have been the intention of the Legislature in passing this Section to give an absolute and indisputable power without cause Assigned and adjudicated upon, of divesting the Assignee of a Convict Servant of the property in his Services vested by the Act of Parliament.-

Before proceeding further I shall advert to the terms of the Enactment.-

It first recites the 8th Section of the transportation Act 5. Geo: 4. C. 84 to which I have already referred, and then proceeds to make two distinct alterations in the Law, first, it Enacts "That any Offender who hath heretofore been, or shall hereafter be Assigned to any person or persons within the said Colonies respectively, under and in pursuance of the said Act shall not by any such Assignee or Assignees, be Assigned over to any other person or persons, except with the written consent and License of the Governor of such Colonies respectively."

This is a material qualification of the right of property of the Master in the Services of the Convict, but a most salutary alteration, in order to prevent the abuses arising from the previously unlimited power of transferring the Services of a prisoner from person to person as a matter of Sale, barter or letting.  There is here a positive position prohibition of that system.- It is founded on a spirit of humanity and justice towards that class of persons, whom the policy of the Law has laid under the restraints of obligatory servitude, but which has, at the same time, considered reformation as an important object of punishment.-

Secondly - It enacts "that it shall and may be lawful for the Governors of the said Colonies respectively, from time to time, as to them shall seem meet, to revoke any such Assignments of Offenders as may have been or as shall hereafter be made in pursuance of this Act, and to grant to any Offender or Offenders transported to the said Colonies, such temporary or partial remissions of their Sentences, as to such Governors may seem best adapted for the reformation of such Offenders, and such temporary or partial remissions from time to time to revoke and renew, as occasion may require".-

I apprehend that this second branch of the Clause, is to be construed and considered, by reason of its punctuation, as one substantive Enactment, having one common object in view, that is, to give a power of revoking Assignments for the merciful purpose of granting such temporary remissions of Sentence as may seem best adapted for the reformation of Offenders.- A very wide discretion is certainly thus given but mercy and tenderness with a view to the Amendment of the transported Offender, being apparently the sole object of the Legislature -  it is a discretion, the exercise of which, might be safely and beneficially entrusted to those who are called upon to act upon it -  At the same time, this discretion, I apprehend to be analagous in principle to the discretionary power of a Court of Justice, which, as Lord Mansfield says in the King v. Willis 4: Burr: 2539. means, "Sound discretion guided by Law - It must be governed by rule, not by humour, it must not be arbitrary, vague, fanciful, but legal and regular"; and again by Lord Kenyon in Wilson V. Rastall 4 Term Reports 737.  "The discretion to be exercised by a Court or a Judge, is not wild, but a sound discretion, and to be confined within those limits, within which an honest man, competent to discharge the duties of his Office ought to confine himself."-

I cannot collect from this branch of the Section, that the power of revoking Assignments was intended as a means of punishing the Master, or visiting him without cause, suggested with the loss of his Assigned Servant's Services - If this had been the object of the power it is highly probable that the Legislature would in its cautionary wisdom have introduced some provision to that effect; especially when we consider the jealousy with which the Legislature invariably protects the private property of the King's subjects from invasion by means not recognised by the Common Law of England - The Legislature, I apprehend, regards the property of the Master in the Services of his Assigned Servant, as inviolable, and not to be divested without reasonable cause.  What that cause is, must be left to the honest and sound discretion of those who are to judge of it; but looking to the spirit of this section, it must when exercised, always have reference, as I conceive, to the reformation of the transported Offender.-

Parliament having given this Authority to the Governor, it appears to me that from its very nature it ought to be exercised sub-modo - that is, in such a way as is consentaneous with the rights of the subject - It implies, solemn enquiry and adjudication by means known to the Law of the Land - The Authority is created, but must be exercised in a manner agreeably with the scope and principal of municipal Law; I take it to be a sound legal principle, that all powers of this nature, so deeply affecting private property should be exercised by persons who are responsible to the Law for any abuse or misuse to which they may be exposed.  His Excellency the Governor's high Office, I apprehend to be purely executive, and not judicial.  Parliament has devised an obvious as well as easy mode of placing the exercise of this power upon a proper constitutional footing, which, whilst it relieves His Excellency from the very great difficulty  not to say unseemly odium, which the personal exercise of such a power would necessarily subject him, at once reduces its exercise to legal certainty, regularity and responsibility.  This means I allude to are in the hands of the Local Legislature.  By passing an Ordinance in Council, this jurisdiction may with great propriety be cast upon the Magistracy, who under proper Regulations may constitutionally and legally carry the intentions of Parliament into effect.-

In order to shew the good faith of the Legislature with respect to the effect of an Assignment of the Services of a transported Offender - this provision will be found in the transportation Act  4.G. 1st C.11.S.2. (now repealed) namely "that His Majestymay at any time dispense with such transportation, and allow the Offender to return, he paying his Owner a reasonable Sum to be adjudged by two Justices of the place where his Owner dwells."-[23 ]

This shows that the Legislature at that time considered that the Assignee of the Governor had an absolute right of property in the Services of the Prisoner, not to be divested without compensation.-

Although the former transportation Acts have been repealed by the 5th Geo: 4. C. 83, yet I apprehend we are at liberty to look at them, as being in paru materia with the Section of the Act now under consideration, and that we are bound to give such an interpretation as is most consistent with the wisdom and justice of the Legislature. -  It is a maxim in the Construction of Acts of Parliament affecting private as well as public rights "that where the object of the Act is to impose a burthen or to take away a right, such language must be proved to have been used, as shews most unequivocally that it was the intention of the Legislature that the burthen should be imposed and the right taken away" - Rex v. the Dudley Canal Company, - 7. Dowl. and Ryl. 476.[24 ]

There may be cases in which an inconsiderate exercise of the power thus given would be productive of great hardship and injustice. -  Suppose the Master of an Assigned Servant has taken unusual pains in instructing his Servant in a difficult art, requiring great skill, with a view to have the future benefit of his industry, I apprehend that before the assignment could be cancelled, it ought to be made manifest, that the reformation of the Servant was the Sole purpose to be effected, or that the Master had done something that ought to subject him to the forfeiture of his Assigned Servant  - It is however unnecessary to point out other instances in which hardships or injustice might be produced through an indiscreet and irresponsible exercise of the power thus given, Injury to the Master appears not to have been contemplated by the Legislature, for it can not be supposed that the right of the Master to the Services of his Assigned Servant was meant to depend upon an arbitrary and undefined discretion, governed by no certain Rules of conduct, and guided by no avowed cause.  To hold such a doctrine would be pregnant with the most serious inconvenience, both to the Master and to the Servant by leaving uncertainty and insecurity, that bond of protection on the one hand, and of dependence in the other, which is so essential to the well being of domestic life.-

As at present advised I entertain a very clear Opinion upon the construction to be put upon this Section, but should the question be hereafter brought under the Consideration of the Court in a more formal shape, I reserve to myself the opportunity of a more deliberate judgement, than this case has afforded me of forming.  I have, however, felt myself at liberty to take this general view of the subject, in consequence of our attention being invited to it by the learned Counsel on both sides.-

With respect to the case of the Prisoner now before the Court, I am of Opinion, for the reasons already given, that she must be committed to the Custody of the Sheriff, until she can conveniently be returned to Van Diemen's Land, the place of her original Transportation.-

Signed JAMES DOWLING.[25 ]

 

Dowling J., June 1829[26 ]

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

 

[p. 204] [Where an original letter which came as a public document from the office of the Colonial Secretary, had been filed with certain Affidavits in this case; the Court ordered the Letter to be restored on motion to the proper office on substituting a certified copy upon the files of the Court.]

In re Jane New

Sampson SG moved that an original letter from Mr. Barnett the Colonial Secretary of this Colony, setting forth the indent of Jane New, and which was attached to the affidavits in this persons case and filed on the records of this Court, might be taken off the files, and a certified copy of the same substituted.  He suggested that this being a public official paper it was necessary that it should be restored to the Colonial Secretary's office to which it properly belonged.  If any ulterior proceedings were intended, he contended that a certified Copy would be sufficient  Wentworth said he appeared on behalf of Mr. Jno Stephen Jnr who he said was a party to this case for the purpose of resisting the application this document being now filed on the records of the Court, a very strong case of necessity should be made [p. 205] out to authorize the Court in directing that it should be taken off.  He produced an affidavit of Mr. Jno Stephen Jnr stating that on the 28th June he had been cited before the Executive council, and there alleged that the paper in question was not a genuine document, but had been fabricated in a certain part, and that believing Mr. McLeay, wishing to relieve himself from the imputation of having fabricated, wished to have the same taken off the files of the Court.[27 ]  Mr. W. therefore prayed that the paper might be impounded on the principle that where the Court was informed of an offence it would in the Ministerial exercise of its jurisdiction cause the paper to be retained for the purposes of public JusticeForbes CJ said it appeared to him that this was a very anomalous proceeding and was at a loss to know upon what principle the affidavit produced could be received.  The paper alluded to had performed its functions, and it being stated to be an original document there was no reason prima facie [p. 206] why it should not be restored to the proper depositing namely the Colonial Secretarys office, it being suggested that it was the only record of Jane News Indent.  This was now a mere incudal  application and the Court could not receive in this way any suggestion of fraud.  If an offence had been committed it ought to be brought before the Court in  regular way.

The Solicitor General prayed that Mr. Stephens affidavit.

The Court however, said that it being in no cause it would not be filed.  The Court had been taken quite by surprize, for had they been aware that an affidavit of this kind was to be produced in this irregular manner they should not have suffered it to have been read.

Dowling J.  It is very much to be regretted that this irregular course has been taken.  I shall always resist any [p. 207] attempt to make this Court the place for the publication of libellous insinuations: but the Court having been taken by surprize in this circumstance it cannot now be helped.  The affidavit if filed, not being in nay cause would lead to the most inconvenient result and we should be inviting discussions which it would be highly improper for us to hear.  In this instance this affidavit has been most improperly and unfairly introduced in as much as it contained an insinuation of the most improper kind and without any opportunity to the other side to answer the imputation.  If any offence cognizable by the Court has been committed by any body there is a regular and proper cause open, without these indirect insinuations to the prejudice of a high Civil Office.  I dont see how we can impound this document, unless there is some legitimate foundation laid for such a proceeding.  I do not find that the Solicitor General's motion is supported by any affidavit to warrant us in acceding to his application.

[p. 208] The Solicitor General said he would produce an affidavit on Monday.

 

Forbes C.J., Stephen and Dowling JJ, 29 and 30 June 1829

Source: Australian, 3 July 1829

 

IMPORTANT MOTIONS.

SUPREME COURT.

Motion having been made on Monday last on the part of Mr. Alexander McLeay.  Colonial Secretary, for leave to take off the files of the Court, a certain document purporting to be a letter from Mr. Burnett, Colonial Secretary at Van Diemen's Land, containing an indent of the conviction and transportation of Jane New, and the ship by which she came to Van Diemen's Land, there being counter affidavits offered to be put in, setting forth a difference in the year of Jane New's conviction, that the year was 1822, not 1821, and also a different ship by which she arrived at Van Diemen's Land --- and consequently impugning the faith of what professed to be an original copy of the indent.  The Judges deferred their decision upon the motion till the day following.  Mr. Chief Justice Forbes left the Court to attend, it was said, some meeting of the Executive Council. ...[28 ]

Upon motion subsequently, that the document, the removal of which from the files of the Supreme Court had been prayed for the previous day, on behalf of Mr. Alexander McLeay, and impeached by affidavits on the other side, the Court granted the motion - one of the Judge's expressing his surprise at the appearance of an erasure on the indent, and desiring to be informed how it had occurred.

 

Notes

[1 ]The reference is to the Female Factory, which was simultaneously a prison, a barracks for female convicts, a factory, and a marriage bureau.  See A. Salt, These Outcast Women: the Parramatta Female Factory 1821-1848, Hale and Iremonger, Sydney, 1984. On the management of the factory, see Historical Records of Australia, Series 1, Vol. 12, pp 524-528.

The Sydney Gazette reported this hearing on 10 March 1829, and the Australian at greater length on 10 March 1829.  It was also reported in the Van Diemen's Land newspapers: Australian, 8 and 14 May 1829.

John Stephen was sacked over a false certificate concerning Jane New's Case: Darling to Goderich, 27 April 1831, Historical Records of Australia, Series 1, Vol. 16, pp 247-254.  The case was still alive in 1834, when Governor Bourke wrote to Lord Stanley to say that the Executive Council inquiry into the supposed identity of Jane New and Frances Dixon had concluded that they were not the same person: Historical Records of Australia, Series 1, Vol. 17, p. 483. On the Jane New case and the fate of the principal actors, see Carol Baxter, An Irresistable Temptation: the True Story of Jane New and a Colonial Scandal (Allen and Unwin, 2006).

Assignment of convict services had long been in issue.  See for example, Sydney Gazette, 15 August 1828.  See also In re Harris, 1827.  The issue gained extra prominence when the law reporter for the Australian, an assigned convict, was removed from court by the verbal command of the Principal Superintendent of Convicts: see In re Hayes, 1829.  The Monitor was also harassed by the removal of convict printers: see In re Tyler,, 1829.  See also Hall v. Hely, 1830.

[2 ] On 6 January 1829, Jane New was sentenced in Sydney to death recorded for stealing in the dwelling house of Madame Renns: Sydney Gazette, 8 January 1829; Australian, 9 January 1829.  According to the Australian, 6 February 1829, she was then detained in gaol on a new presumption of her innocence, and awaited a decision of the Executive Council as to whether she would receive Crown mercy.  The Sydney Gazette of 24 February 1829 said that she was subsequently liberated after consideration by the Executive Council.  According to the Gazette of that date, depositions were strongly presumptive of her innocence; it seemed that the cloth she supposedly stole in Sydney was stolen previously and sent to Van Diemen's Land, where she bought it before coming to Sydney.  Still, however, she was sent to the Female Factory.  On 26 February, the Sydney Gazette withdrew the story about her supposed innocence.  It said that she addressed a petition to the governor, signed by magistrates and gentlemen, but that it was not laid before the Council.  The Gazette's new version of the case was that the governor did not doubt her guilt, but found that she had been convicted of a crime under a statute which judges found not to be in force in the colony.  Shortly before the conviction in the Renns case, she was convicted before the magistrates of a similar offence and her original sentence was extended.  Because she was considered fully although not legally convicted of robbery, she was sent to the factory.

For an account of the Jane New case, see C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, ch. 31.  In 1824, she was originally transported to Van Diemen's Land for seven years.  Having married her assigned master, James New, in 1826, she gained permission in 1827 to sail to Sydney.  This action was taken when Governor Darling revoked the assignment to her husband after the Renns conviction was found to be unlawful.

[3 ] The Australian's less formal report is included here in addition to that of the Sydney Gazette, to show the difference in tone between the two.

 

[4 ] See also Sydney Gazette, 19 March 1829.

[5 ] Both this and the newspaper account of this day's proceedings are included because of the importance of Jane New's case.  This account was prepared by Dowling J. for transmission to England, and was accompanied by his certificate of its accuracy as an account of the proceedings.

[6 ] Marginal note: "6 Jan '29".

[7 ] Curia advisari vult: the court wishes to be advised, or wishes to consider its decision.  This means that the judgment was not delivered immediately.

[8 ] This version of the judgments is taken from the private papers of Francis Forbes, held in Mitchell Library among the Forbes Papers,  A 1267 - Part 11, Reel CY 902, pp 610-641; and see Historical Records of Australia, Series 1, Vol. 14, pp 762-777 (judgment at 765-771). It is also printed in Historical Records of Australia, Series 1, Vol. 15, pp 670-671.  On 20 May 1829, Forbes sent a package of documents to Governor Darling concerning Jane New.  The first was a letter to the governor on behalf of the judges dated 7 February 1829, stating that in their opinion the conviction of Jane New in Sydney fell within the rule of law laid down by the judges on 1 April 1828.  That rule stated that prisoners could not be convicted of crimes after the repeal of the criminal statute under which they were charged.  (See Applicability of Criminal Laws Opinion, 1828.)  This letter concluded by stating the case on that point: "The prisoner Jane New was tried and convicted on the 5th day of January 1829 of the Offence of Stealing in a Dwelling House, goods above the value of Five Pounds - the Offence was laid as done on the 18th day of December 1827, against the form of the Statute in such case made that is to say the Stat. 12th Ann Chap. 7. which Statute was not in force on the 18th of December 1827, having been repealed, and not re-enacted in this Colony until April 1828."   (This correspondence is also in Chief Justice's Letter Book, 1824 - 1835, Archives Office of New South Wales, 4/6651, pp 209-210, and see pp 237-238.)

After they delivered their decision on 21 March 1829, Governor Darling wrote to the judges as follows (4 April 1829, same reference for this and subsequent correspondence):

"Understanding that the view taken by Your Honors of the 9th Section of the 9th Geo. 4. C. 83 is contrary to the intentions of Parliament, as signified to me in a despatch addressed to me by The Right Honorable The Secretary of State, on the subject of the above Act: an Extract of which I do myself the Honor to enclose herewith - I request you will be pleased to furnish me with a Report of the Opinions which you severally expressed in the case of Jane New, on the 21st of last month, as far as relates to the powers of the Governor of this Colony, to grant Tickets of Leave to Convicts, or to withdraw Assigned Servants from their Masters, it being my intention to transmit your Report to the Secretary of State, in order, if the Act be inconsistent with the intentions of Parliament, that the subject may be again brought under its consideration."

Forbes C.J., Stephen and Dowling JJ replied on 25 April 1829, enclosing the copies of the judgments which are reproduced here.  They noted that the governor intended to send their judgments to the British government.  They continued as follows:

"In transmitting herewith the Report of our Opinions, delivered in the Case alluded to, we venture most respectfully to submit to Your Excellency's consideration whether, instead of pressing the subject upon the attention of the Right Honorable The Secretary of State the more expedient and direct course to be adopted, may not be, to lay the matter before the Legislature of the Colony as soon as practicable, in order that some Act may be passed, so suited to the exigency of the occasion, as not to compromise the assumed intention of Parliament, and at the same time sustain the general analogies of the Law in like cases.

"Adverting to the notice of the Right Honorable The Secretary of State, that in the Printed Copy of the 9th Geo. 4. C. 83, the 9th Section is inserted by accident, in a place where it should not have been introduced; and presuming, as we do, that its proper place is between the 33rd and the 34th Section, we would take the liberty of observing, that if the 9th Sect: be read in connection with the 32nd and 33rd Sections, the construction we have put upon the Section in question, will be found in accordance with the intentions of the Legislature upon a matter, which, to say the least, is of doubtful import."

These, then, are undoubtedly authentic versions of the judgments, so far as the judges intended.  This day's proceedings were also reported by the Sydney Gazette, 24 March 1829, and the Australian, 24 March 1829.  The Gazette gave a verbatim account of the judgment of Forbes C.J., but little on the decision of the other judges.

The Australian, 24 March 1829, welcomed the decision (though see its misgivings expressed on 27 March).  It also reported the following on 24 March: "Shortly after the Judges had pronounced their important decision on Saturday, Mrs. New, with a constable or two left the Court.  On her way into town, she stepped into a shop, and the constables waited and waited, but no Mrs. New appeared  the bird had flown and we have not heard if she has since been captured."  She was recaptured on 28 March, and sent to the factory on the order of the Supreme Court: Sydney Gazette, 31 March 1829; Australian, 31 March, 8 April 1829.  According to the Australian, 8 April 1829, and Sydney Gazette, 9 April 1829, she escaped again once she arrived at the factory.

There was further controversy in 1831, when John Stephen, Registrar of the Supreme Court, denied any impropriety in granting a certificate of freedom to Mrs New after this decision was made.  Another allegation was that he assisted her to escape.  This led to inquiries and extensive documents: see Mitchell Library, Enclosure with the Despatch No. 36 - 12th April 1831, A 1208, CY 541, pp 1343-1367; Historical Records of Australia, Series 1. Vol. 15, pp 28f, and see 678-701, 712-713.  It even drew in James Stephen jnr, of the Colonial Office in London, a relative of John Stephen.  James denied allegations that he was involved in a committee of enquiry into the affair, and that he had said that the governor had been recalled.  This controversy cast further doubt on John Stephen: Historical Records of Australia, Series 1, Vol. 15, pp 282-283.  Some of the original papers from 1829 are in Chief Justices' Letter Book, Archives Office of New South Wales, 4/6651, pp 237-240.

The Sydney Gazette, 24 March 1829, said that the case was "so utterly at variance with our pre-conceived opinions" that it delayed making editorial comments until 26 March.  It then said that the key question was whether the governor had power to revoke the assignment of prisoners of the crown.  The judges said no, but the Gazette thought yes.  Predictably, the Gazette supported the governor.  See also Sydney Gazette, 28 March 1829 (editorial and letter), 31 March 1829 (editorial and letter), 2, 4 and 7 April 1829.

The Australian subsequently sponsored a subscription list to assist the prisoner's husband in meeting the legal costs.  It promised that the list of those subscribing would be kept secret: Australian, 3 April 1829.

The Crown law officers in England took a contrary view to that of the Supreme Court judges.  Horace Twiss, Under Secretary of State, began a document dated 1 December 1829 (Mitchell Library A 742) by saying that the decision in Jane New's Case would be popular among the opposition press in the colony, but that the statements about the governor's power to revoke assignments were merely obiter.  Twiss said that he had carried the Bill through parliament, and that the intention of the provision was plainly the opposite of that assumed by the judges.  This was confirmed by Murray in a despatch to Darling on 30 January 1830 (Historical Records of Australia, Series 1, Vol. 15, pp 346-353).  He said that the opinion of the Attorney General and Solicitor General was that "We are clearly of opinion that, under the 9th Section of the 9th Geo. 4, Cap. 83, a Governor can revoke the Assignment of a Convict, of whose sentence it is not intended to grant any remission; and we think that there is nothing, either in the context or the apparent policy of the Act, which militates against this construction."  Murray also noted that the Supreme Court judgments in Jane New's Case were destitute of authority.  Murray instructed Darling to follow the advice of the Crown lawyers and not the decision of the Supreme Court.  If challenged in court, he hoped the Supreme Court would change what was merely an extra-judicial opinion.  If it did not, then Darling was to abstain from further revocations and refer the matter to London, for decision by the Privy Council or rectification by parliament.  He criticised Forbes C.J. for having made such a decision, especially when it was not necessary for the outcome in the case.  Murray concluded, however, by stating that the governor had no power to alter the destination of convicts unless they were transported for new offences in the colony.  He enclosed a long paper by Twiss on the subject, which was to be referred to the judges if necessary.  See also Murray to Darling, 6 April 1830, Historical Records of Australia, Series 1, Vol. 15, p. 391, confirming that the British government had decided to grant limited power to the governors to move convicts.

In effect then, the Crown lawyers acted as a court of appeal on points of law, if not in reversing the outcome of decisions.  Certainly Dowling J. felt that way.  On 10 July 1830 (Mitchell Library, A 1297, CY 540, pp 165-184; and see Historical Records of Australia, Series 1, Vol. 15, pp 709-711), he wrote to the British government via Murray, almost apologising for having reached a different result from that of the Crown lawyers.  He said that all the judges had been reluctant to decide the case in terms of the governor's right to alter assignments, but had been pressed to do so by the Attorney General and Solicitor General.  He also said he had expressed misgivings about the opinion given in Jane New's Case, but decided to defer to the seniority and experience of his fellow judges.  He made clear that he would follow the advice of the English lawyers.  The judge explained that the judges had not had a copy of the British government's views of the intention of parliament in s. 9 of the Act until a few days after the delivery of the judgment.  He denied courting popularity through the judgment, and remarked in passing on the extraordinarily litigious nature of the community.

In April 1829, before receiving the opinion of the Crown lawyers in London, Forbes C.J. displayed a stronger view of the independence of the judiciary from government influence (draft letter to Governor Darling, Mitchell Library, A 742).  Omitting the material which Forbes crossed out, this letter said: " The construction of acts of Parliament is not a matter of mere discretion in the judges - there are certain rules by which the courts are guided in the interpretation of all new statutes, which are presumed to enter into the contemplation of the legislature, and to form an implied part of their enactments; so that when such statutes come to be applied, they must be taken with reference to the pre-established rules of exposition.  These rules are part of the law of the land, and are binding upon our judgments  and after a renewed and anxious considerationof the act in question, we cannot arrive at any other satisfactory conclusion, than that which we have already expressed in the case alluded to.  If our interpretation of the act be unfortunately at variance with the intention of Parliament, and it be deemed expedient that the governor should possess the powers of divesting the right of property which the inhabitants had previously acquired in their assigned servants, it will, we apprehend, become necessary to resort to the legislature, in order that a power which may involve in its exercise, such important consequences to the inhabitants, should be expressly defined, and placed beyond all possibility of doubt."  He then revisited the judgment, expanding on some points.  This included the following quotation: "'The power of construing statutes is in the judges; who have authority over all laws, and more especially over statutes, to mould the according to reason and convenience to the best and truest use  judges have sometimes expounded the words of an act of Parliament contrary to the text, to make them agree with equity and reason the best rule of construing acts of Parliament, is by the common law, and by the course which that observes in other cases' (Hob. 346.  Plow. Com. 109. 1. P. Wms. 252.  Bac. Ab. Stat. H. bin Ab. Stat. E. 6.  3. Barn. & Ald. 270.)"

After receiving the opinion of the British government on the case, Forbes replied to Murray on 19 July 1830 (A 742; Historical Records of Australia, Series 1, Vol. 15, pp 664-669).  He said he assumed that Murray wanted the judges to revisit the subject rather than send it on appeal to the Privy Council, or have it amended in parliament.  Forbes conceded that the opinion of His Majesty's Law Officers "is decisive upon the point that the Governor may, under the authority of the Act, revoke the assignment of a convict, whose sentence there is no intention to remit, either generally or partially.  This view of the law certainly differs from that which the Judges of the Colony had previously entertained, but as the point has never been solemnly determined by the Supreme Court, (the question respecting the Governor's power of revocation, not having  been substantively raised in any case which has since come before us) and we now have the benefit of the opinion of His Majesty's Law Officers, whose official situation necessarily affords them the means of accurately informing themselves of the intention of Parliament, we shall feel no difficulty in deferring to their superior judgment.  In thus yielding up my own opinion, I am influenced by a sense of duty, and a sincere desire to do justice.  Errors in judgment are too frequent among the ablest lawyers, to require any excuse from me; and it is rather a source of consolation to know that there is a power which may correct any errors into which I may have fallen."  He rejected, however, any notion of courting popularity in reaching the decision he had.  He had long held that opinion, as the Convict Assignment Opinion, 1827, showed.  Only after reaching the decision in Jane New's Case, did he and  the other judges find that the British government held a contrary view of the intention of parliament.  He implied that it was quite unfair of Twiss to attack the judges for having given an obiter opinion, since the colonial government had pressed them to do so.  Showing something of his judicial character, Forbes went on: "it used to be a frequent maxim of Lord Mansfield, (than whom, no English judge was ever more free from popular bias) that, 'in deciding upon question which admitted of doubt, arguments drawn from convenience and public utility, might fairly be called in to turn the balance'."  What was proper for the courts at Westminster, a strict avoidance of matters which were not necessary to decide a case, was not appropriate in a colony.  The judges' opinion in Jane New's case "was given in good faith, and with a sincere desire to preserve harmony in the Colony ".    Forbes concluded by saying that he had taken to heart the British government's desire for harmony between himself and the governor.  Since being reprimanded over that, he had cooperated fully with the governor's legislative program, to the extent of allowing legislation to be enacted which "have armed the government with larger powers, than are known to any other portion of His Majesty's dominions".  The latter reference was probably to the Bushranging Act which was passed on 21 April 1830 (11 Geo. IV No. 10).  According to John Macarthur, Forbes wrote the first draft of the Act (John Macarthur to his son, John, 10 April 1830, Mitchell Library, Macarthur Papers, Vol. 3, A2911, Reel CY 752B, p. 181b).  The initial Act was in force for a limited period, and on one of its renewals Forbes C.J. and Darling J. thought it valid, while Burton J. thought it repugnant to the liberty of English law: see B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, pp 106-107.  For further details of this legislation, see R. v. Smith and McCormick, 1830.

Darling sent this letter to Murray on 9 August 1830 (Historical Records of Australia, Series 1, Vol. 15, pp 662-664) with his own comments on the issue.  The British government's reply was based on the assumption that the judges had agreed to act in all future cases on this point "in a manner agreeable to the view already taken of it by the Law Officers in this Country" (Goderich to Darling, 13 January 1831, Historical Records of Australia, Series 1, Vol. 16, p. 26).

[9 ] A marginal note in pencil was inserted in the manuscript here: "Are we then to understand that the remission of her Colonial Sentence was an unconditional one?"  These words were apparently written by Governor Darling or one of his officials.  They are a commentary on the decision, not part of it, and do not appear in the Sydney Gazette account of the judgment.

[10 ] Another marginal note in pencil: "This branch of the alternative is omitted by the C.J.  But it is most material to the argument, & can hardly have been omitted without design."

[11 ] Marginal note in pencil: "Where does that word occur? or how is this inference raised?" 

 

[12 ] Marginal note in pencil: "The Judges had no business with this question, except to get themselves a little undue popularity. If the bar pressed them to decide it, they shd. have overruled that suggestion.  What they say about this is mere obiter dictum."

[13 ] Marginal note in pencil: "It might as well be argued that the arrival of old Michas Day depreciates all the estates in England because most contracts with farl servants expire at that time."

[14 ] Marginal note in pencil: "This is like Mr. Brindley who thought the end for which rivers had been created was to find navigable canals. Parlt. never though about providing settlers with labor; their object was to get felons transported and maintained without cost to the public." 

 

[15 ] Another marginal note in pencil: "If the Governor can revoke, for the purpose of giving the convict a month's or a day's remission, the assignment. is at an end. Then the property reverts on the Govr., & what is to hinder him from making a new assgnt. to another master, even on the narrowest construction of the words?"

[16 ] Another marginal note in pencil: "It is no right! It is a mere indulgence, a temporary revocable loan of a Servant for whose labor the grantee gives no consideration. It is, like many offices & other benefits held at the pleasure of the Crown."

[17 ] Another marginal note in pencil: "Nor is there any injustice in this, if it be true that the asst. of a convict to a settler is a mere favor & indulgence to such a Settler, & not, as the C.J. would have it, a vested right which once granted would be [?] & irrevocable. Besides, if the Govr. cannot take a convict from a master who is incapable of managing him properly and transfer him to fitter hands, both the reformation of a bad convict and the happiness of a good one, may be most unduly affected."

[18 ] Marginal note in pencil: "And therefore it was highly improper to entertain so agitating a question in such a Colony".

[19 ] This was marked "enclosure 4" in the manuscript.

[20 ] Justice Dowling recorded the court's decision in his Select Cases, Vol. 2 (Archives Office of N.S.W., 2/3462, p. 168) as follows:

"March 21st 1829

"Rex v Jane New

"The Governor of Van Diemans Land has no authority to permit a convict transported from Great Britain to that Settlement to come to New South Wales with the Assignee of such servant, and may be remanded by this Court to V.D.L. to be dealt with as a runaway the Governor of New South Wales has no power of cancelling the assignment of a convict transported to V.D.L. and there assigned to a master By 9 G 4.C.83.s.9.  The Governor of N.S.W has no power of cancelling the assignment of a Convict Servant, except for the purpose of remitting the sentence with a view to the reformation of the offender."

[21 ] Marginal note in pencil: "Then the Court ought not to have dealt with it".

[22 ] Marginal note in pencil: "Very indiscreet".

[23 ] Marginal note in pencil: "But when the charge of Transportn [sic] was removed from private Indls. to the Govr. the Legre. changed this view & the provision is now struck out accordingly".

[24 ] Marginal note in pencil: "It is no right".

[25 ] Eventually, Jane New sailed to the Bay of Islands, New Zealand, and from there to another island 2000 miles to the north, supposedly to escape the attention of the British Resident in New Zealand.  See Australian, 22 November 1833.

[26 ] From its position in the Select Cases, this hearing is likely to have taken place between 27 and 30 June 1829.

[27 ] On this allegation, see R. v. Hall (No. 3) , 1829 and R. v. Hall (No. 8), 1829.

[28 ] After reporting another case, the Australian continued as follows.

Published by the Division of Law, Macquarie University