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

Anonymous (No 2) [1830] NSWSupC 74

reception of English law, prisons regulations, prisons regulations, clothing of prisoners, Supreme Court, power to regulate prisons, Supreme Court, power over sheriff, Sheriff, source of regulation of

Supreme Court of New South Wales

Dowling J., 11 and 12 October 1830

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 23]

Quere. whether all persons confined in the Sydney Gaol may be placed in Gaol clothing if they have clothes of their own to wear without the sanction of the Judges.


Source: Dowling, Proceedings of the Supreme Court, Vol. 47, Archives Office of New South Wales, 2/3230

Monday 11th October 1830

see Ante

Coram Dowling J

[p. 120]

Gaol Clothing

At the rising of the Court this day, and just as I was directing an adjournment.

Mr Keith addressed me to the following effect.

Before Your Honor adjourns the Court, I beg your attention to a matter which deeply concerns certain individuals confined in Sydney Gaol, and unless some order is made by the Court upon the subject, the parties may suffer great inconvenience, [p. 121]  between this time and the next term, which may be several months.  I have given notice to the Under Sheriff and to the Governor of the gaol, of my intention to bring the matter under the notice of the Court.

The under Sheriff & the Governor of the Gaol are now present and I shall proceed to mention the matters for the purpose of ascertaining whether it has taken place with the sanction of the Judges. -  I am instructed that an order has been issued directing the Sheriff to put all persons confined in Sydney Gaol into Gaol clothing.  This order applies [p. 122] to all persons without distinction,  - convict felons, persons convicted of misdemeanours, confines for non-payment of fines, persons committed for trial, & in short all persons in the gaol, saving and excepting debtors only.  Now as this order may operate with great hardship and inconvenience, upon certain individuals confined in the Gaol, I repectly [sic] beg to be informed whether the order has been issued under the sanction of this Court?

Dowling J I am not aware of any such order, if it exists, nor do I believe that the other Judges are aware of its existence.  Certain rules & regulations are in force for the Government of the gaol [p. 123] which must guide the conduct of the sheriff.  If those rules authorize the putting of all persons confined in the gaol into gaol clothing, they must be observed.  Those rules and regulations were drawn up by the Judges of the Supreme Court pursuant to the directions of the Secretary of State. - I apprehend that by law the Judges of this court have a paramount control over all the gaols in this colony, & that no rule or regulation can be binding without our approbations.  If such an order has been given it is without [p 124] the knowledge of the Judges, and I must assume that no such order would be put in force without previously consulting the Judges.  I persuade myself, however, that there must be some mistake or misapprehension in this matter, which can be easily explained by the Sheriff.

Mr. Prout the undersheriff said that he would leave it to the Sheriff to reply to what had been stated by Mr. Keith.

Here the matter dropped.

Tuesday 12th October 1830

Memorandum of a conversation between Dowling J & Mr. Sheriff McQuoid upon the forgoing subject: -

[p. 125] This morning the Sheriff called upon me at my house.

He commenced by stating that having understood that something had taken place the day before in Court respecting the putting the prisoners in Sydney gaol into Gaol  clothing, he called upon me to ascertain what had taken place.

I acquainted the Sheriff with the substance of what took place.-

He then told me that he had received an order from the Colonial Secretary .  He produced it. & I read it.

I said that the Judges were not aware of the existence of such [p. 126] an order.

The Sheriff said he did not think it necessary to make the Judges acquainted with it, - as it was a mere matter of course; but added that if there was any blame in any quarter upon this subject he must take it upon himself.

I said I did not consider it quite a matter of course to put all persons confined in the gaol, into gaol clothing.

The Sheriff urged in support of the principle of the order, that having regard to the class of persons in the gaol, there was no great harm in putting them into the gaol clothing - for although many of them remained for [p. 127] trial, yet having been originally transported felons, though now free of their original sentence, still they ought to be subjected to the operation of the order.

I told the Sheriff, that as an individual judge, I should not privately give any opinion as to the expediency or inexpediency of the order - it might or it might not be a proper order - but at all events, it seemed to me that there was something like a want of courtesy in proceeding to act upon such an order without previously [p. 128] making the Judges of the land acquainted with it, or taking their opinion as to its propriety.

The Sheriff said he must take the blame of this to himself.  He then proceeded to say that he considered the order was only in conformity with the provisions of the general gaol act in force in England & he apprehended that that act applied to & was in force in this Colony.

I told the Sheriff, that I apprehended that act could not be adapted to the circumstances & condition of the Colony. -

[p. 129] The complicated machinery provided in that act, could not be put into operation in N.S.W. -  I begged to remind the Sheriff, that all the Gaols  of this colony were under the peculiar & paramount control of the Judges of the Supreme Court.  This principle has been expressly recognized & acknowledged by the Secretary of State for the Colonies, who had expressly directed the Chief Justice to draw up such rules & regulations as seemed to him best adapted for the government [p. 130] of Sydney Gaol in particular.  Under that direction, & in obedience to commands from home, I know that the Chief Justice, with my own humble assistance, had drawn up the rules & regulations now in force for the government of the gaol.  We had bestowed great pains and labour upon the subject.  I proceeded to say, that in my apprehension, I know of no authority any where in the Colony, to make any orders & regulations for the gaol without the sanction of the Judges.

The sheriff said he was between two fires, & he [p. 131] was only anxious to do his duty to the best of his ability.  He wished to know what he was to do?

I suggested to him that in all cases of difficulty in matters of this kind, if he were only to consult the Judges, they would give him their best advice & assistance, and relieve him from any anxiety as to this part of his duty.  Speaking individually, I must say that I thought that in common courtesy, independently of a sense of duty, he ought to have made the Judges acquainted with the order he had received.  I said that [p. 132] this was a proceeding which would probably give rise to unpleasant discussions, & give a handle to persons to cavil at & find fault with the administration of government, which of all things ought to be avoided.  Taken by surprize, & being left wholly ignorant of such an order, when the motion was made yesterday, he could not be astonished that the presiding Judge sh.d notice the matter in the way he did.

I asked the Sheriff whether it was contemplated to put all descriptions of persons into gaol clothing?

He said yes, with the exception of debtors.

[p. 133] I said All! Do you mean to put Mr Hall (then in confinement for a libel) into party colored clothing?

He said in the exercise of his discretion he sho.d not put Mr Hall into the clothing.

I said that is this matter depended upon his discretion, it appeared to me that the order ought not to stand on that footing.

I sd., ``suppose the order is disputed in the gaol, & persons resist its execution, how will you enforce it?

A. By the gaol regulations.

I said the power of punishing could only apply to the infraction of such orders as were contained in those regulations [p. 134] & did not extend to an order made without due authority - i.e. the authority of the Judges.

He then said he should suspend the order. -

I told him that I could give him no advice upon the subject. He must use his own discretion in this matter, at his own peril.  I thought however that he had better consult the Chief Justice (though late) upon the subject.

Thereupon we parted.

Published by the Division of Law, Macquarie University