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

Transportation Opinion [1829] NSWSupC 5

transportation, convict - transportation, secondary - hulk

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 22 January 1829

Source: Chief Justice's Letter Book, 1824 - 1835, Archives Office of New South Wales, 4/6651[1 ]

[p. 210] The following opinion sent by order of the Honors the Judges to Mr. Baxter His Majesty's Attorney-General January 22nd 1829.

At a meeting of the Judges of the Supreme Court, held at the Chambers of The Honorable The Chief Justice Forbes on Wednesday the 7.th January 1829 the Petitions of certain persons seeking relief from Confinement on board His Majesty's Prison Hulk, Phoenix, on the ground of unlawful detention, were taken into consideration

In disposing of these cases the Judges directed their attention generally, to the law respecting offences committed in New South Wales and its Dependencies, for which the punishments of detention, -- extending the time of primary transportation, -- removal to other parts of the settlement, and Colonial transportation might be respectively inflicted; and the Judges agreed upon the following exposition of the law:-- 

 

Preliminary Positions

 

1.st Transportation, being a punishment annexed by Statutes to particular offences, the Statutes must be strictly pursued.

[p. 211] 2nd Since the establishment of penal places for local transportation, such places must be considered in the same light, with reference to the Colony of New South Wales , as places of transportation are considered generally with reference to the United Kingdom; and consequently, transportation to such penal places, must be regarded in every respect, in New South Wales generally, as transportation from the Mother Country is there regarded.

3rd Where the punishment of transportation is awarded by the sentence of one of the Colonial Courts, such punishment is cumulative upon, and concurrent with, any original sentence of transportation from the United Kingdom; it superadds confinement in a penal settlement and had labour to the original state of simple exile.

Practical Expositions

 

The Statute 4 Geo. 4. c. 96[2 ] commonly called the New South Wales Act, introduces four different degrees or modifications of the general sentence of transportation: videlicet.

1st[3 ] By Section 36.th any offence committed in the Colony, which by law might be punished by transportation in England may be punished in New South Wales by adjudging the offender to be detained within the Colony, for the period for which he might have been transported from England, such detaining to take effect from the time of the expiration of the English Sentence.

NB.  This clause does, in effect nothing more than allow the Courts to superadd the Colonial Sentence to the English Sentence, and to detain a transported prisoner in statu quo in this Colony until his local sentence is satisfied.

The 19th Section[4 ] authorizes the Justices in Sessions in a summary way to[5 ] take cognizance of all offences not capital, and to punish the same, either

2ndly[6 ] By extending the time for  a period not exceeding three years, or

3rdly[7 ]  By transportation and hard labour for any time not exceeding three years-

The first of these summary punishments, is superadded to the original sentence; the second is concurrent with such original sentence.

4thly[8 ] The Justices in Sessions are authorized in like summary way to punish certain offences committed by Crown prisoners, by removal and hard labour in some other part of the Colony.

This punishment of removal resolves itself into transportation, - only that it leaves a latitude as to the place of such removal so as to enable the justices to send [p. 211 sic] offenders into the interior, or other parts of the Colony, although such parts might not be penal settlements within the Act of Parliament and His Majesty's Order in Council, and the ordinance of the local Legislature,

In[9 ] administering the summary powers given the Quarter Sessions by the 19.th Section, the Justices will note the following observations.

The ``Crimes and Misdemeanours not punishable with death," in that section mentioned, are such only, as by the law of England subject the party to transportation, if committed in England.

If the times or term of the offenders original sentence of transportation is to be extended for any time not exceeding three years, the record of the sentence should shew, that the extended time is to be computed from the  expiration of the original sentence.

If the offender is to be transported for any term not exceeding three years, the sentence (as before observed) is concurrent with the prisoner's original term of transportation; for the Justices have no power to extend the time, and also to transport in the  case of the same individual. For example: Suppose a convict transported to New South Wales from England for seven years, and at the end of four years he is found guilty of a crime or misdemeanour which renders him liable to Colonial transportation for three years, and he is transported accordingly to a penal settlement, he is at the end of that time, in judgment of law entitled to his certificate of freedom; - for he has then been transported from England to New South Wales for seven years, with the additional coercion of the penal settlement for thee years.

At whatever time during the continuance of home sentence, the Colonial Sentence of transportation is imposed, it is concurrent with the home sentence so far as one interferes with the other, & the time occupied by the Colonial Sentence is not to be tacked on to the original sentence. In short the prisoner is to have credit in the expiration of his original sentence of exile, for such time as he serves in a penal settlement under a Colonial Sentence-

 

Notes

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

Chief Justice Forbes wrote a further opinion on transportation and the governor's power over convicts on 10 January 1834: see Chief Justice's Letter Book, 1824 - 1835, State Records of New South Wales, 4/6651, p. 367.  That was included in a very lengthy report on the subject by Governor Bourke, as to which see Bourke to Stanley, 15 January 1834, Historical Records of Australia, Series 1, Vol 17, p. 313.  In a further report to Stanley dated 20 January 1834, Bourke said that it was no longer lawful since the passing of 2 and 3 Wm 4 c. 62 to assign convicts to their wives: p. 341.  See also pp 365-366, 600-606, 653-654, 685.

[2 ] Marginal note in original: "4 Geo. 4 C. 96. "

[3 ] Marginal note " Detaining Sec. 36"

[4 ] Marginal note "Sec. 19"

[5 ] punish

 

[6 ] Marginal note "Extending"

[7 ] Marginal note "Transporting"

[8 ] Marginal note "Removing"

[9 ] Marginal note "Note"

Published by the Division of Law, Macquarie University