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

Personal letters of Burton J

Correspondence of Justice Burton of the New South Wales Supreme Court

Source: typescript obtained from the New South Wales Bar Association Library[ 1]

 

SYDNEY  N.S.W.

6th July 1836[ 2]

My Dear Edmund,

It may be well, perhaps, to furnish you with such an authority as that enclosed - you may deliver it or not as you think fit.

We have heard through the Court Journal - extracting paragraphs from the ``London Gazette" of the 23rd August - of Dowling's confirmation as Chief Justice.  I have, however, heard that nothing of your proceedings in consequence, having a paper from Robert (The ``Standard" I think) of the 19th of August, but nothing else.  I wrote to you by the ``Louisa" on the 28th ultimo.

 

Cape of Good Hope

4th October, 1832

My Dear Edmund,

I wrote to you on the 18th or 23rd July informing you of my arbitrary removal to New South Wales and of all the facts and circumstances connected therewith and I told you my intention was upon the arrival of the ``Charter" to proceed to England and lay my complaints before the proper quarters and claim redress. ...  I need do no more now than merely refer to that letter as if it should not have arrived yet the letter to Lord Goderiach which will accompany this will fully appraise you of the same facts.  The ``Charter" has arrived and I have sold all my property except books, plate and linen and have engaged a passage for N.S.W. having thereby altered my intention but not my opinion or wishes.  I have been driven by the extent of my loss which fully equals the highest amount I expected - fifteen hundred pounds to my present proceeding.  The funds of which I have been deprived by Lord Goderiach's assessment might have enabled me to act more independently but whilst my losses disable me from paying to everyone that which I owe I have no right to put my future means in jeopardy.  I am a much poorer man than when I accepted my first appointment; under these circumstances I might indeed obtain by my professional pursuits a maintenance for myself and wife but could scarcely under all the disadvantages of my long absence expect to do more and I think therefore that common honesty compels me to waive my own feelings and take that which is presented to me...  I wish however my friends whom you shall consult especially those of the Bar and you to understand fully that I yield only upon this principle and that if I were rich enough to resist Lord Goderiach's Arbitrary act I should unhesitantly do so to the last extremity; for I think I have reason to complain first that a number of the English Bar who has left his professional pursuits in England for a judicial appointment in one colony should be arbitrarily removed to another thus putting the English Bar upon the footing of military servants. 

2ndly I think if such a proceeding were warrantable in the abstract that in the present case Lord  Goderiach ought not to have selected me for removal but the Junior Judge if it were to be an Arbitrary and compulsory act.

3rdly I think Lord Goderiach has not treated me like a gentleman in not giving me any previous notice of his intention.

4thly I think Lord Goderiach has not treated me like a gentleman in not previously asking my consent (for which he had full time as I have a letter from General Bourke in my possession to how that so long ago as the 21st July 1831, it was contemplated in Downing Street, and General Bourke wrote to Lord Nowich on the subject).

Or he ought to have referred to my friends in England to know whether it would be agreeable or even practicable for me to remove.

5thly, I think I have reason to complain that I am caused to suffer great pecuniary loss in consequence of my removal land of the suddenness of it and from the want of notice of it.

6thly, I complain at the expense of my passage from hence to New South Wales is imposed upon me although I am removed not at my own desire but either for official convenience or public convenience.

The true course indeed of moving me is to save this Colony from granting a pension to the Junior Judge upon his retirement he having served longer and being consequently more entitled to a pension than I.

I wish to impress upon you and all my friends the same heads of grievance and have accordingly written to Goulburn to the same effect and stating the same claims for redress - in order that you may be all unanimous in what you shall do for me.

I claim therefore -

1st, to be remunerated out of the treasury of this Colony for my pecuniary loss.

2nd, That the expense of my passage to New South Wales shall be defrayed out of the Treasury of that Colony.

3rd. That my situation at N.S.W. shall be considered to have been submitted to by me only temporarily and until an opportunity shall occur of giving me an appointment more to my satisfaction.

In order that there may be no doubt for the time to come as to what I will accept I subjoin such appointments as would give me satisfaction in the order in which I would prefer them individually and for any of which by whom so ever obtained for me or on whose so ever gift I will immediately on the intelligence that it is opened for me immediately leave New South Wales unless my appointment be there, first the Chief Justiceship of N.S.W., 2ndly, the Chief Justiceship of the Cape of Good Hope, 3rdly, Chief Justiceship at Ceylon, 4thly, the Chief Justiceship in some other of His Majesty colonies where the pleadings and proceedings of the Court are as here in the English language, 5thly, a Judgeship at any one of the East Indian presidencies.

I hope through the exertions of my friends I may obtain either from Lord Goderiach or some other quarter one of the above appointments instead of that now imposed upon me and I earnestly press upon you my Dear Edmund to endeavour to get Justice done to me which my letter last written to you was too late to obtain.

I am sure that Dwarris and Mr. Phillips and Sir Thomas Denman, and Sergeant Adams would all or some of them assist me.

Dwarris was always a good friend and on him I have great reliance; the party also to which he is politically attached is in office.  I have written to Goulburn and hope he may assist me.  I am sure he will if he can, but I know not how far the political changes in England may have disabled him.

Charles Burton and Betsy arrived at the Cape a few days ago - we shall said before them - the ``Leda" is being appointed to sail on the 13th instant.  They bring neither letter nor intelligence from anyone on the subject of my removal.  I am obliged therefore to act upon the circumstances which have presented themselves to me not knowing your wishes.  My next letter will be from N.S.W. if God will.

I am well but have undergone great anxiety; Margret is not so well as I could wish her for such a voyage, she has suffered much but surrendered all her little comforts with cheerfulness.  What has distressed her is the loss we sustain and the miserable prospect which there is before us at N.S.W. - viz, the going 6,000 miles further from England with less means and less prospects and as to comforts of residence none as compared with the Cape.  In every respect we are deteriorated and I can conscientiously say I have not deserved it.

The ``Leda" on board which we have taken our passage is a small vessel only one hundred an fifty tons Burthen and carries one surgeon but it is the only one sailing from or likely to touch here which presents to me an opportunity of avoiding the greater evils of a convict or emigrant ship.  I prefer a small vessel to ourselves and she is too small to carry any other person (we have taken up all her accommodation) to a larger ship and disgusting companions.

I hope to be able, although I have many letters to write of the same tenor with this, and many arrangements to make for my departure, to write again to my Dear Mother before we sail. May God bless you and yours, I remain My Dear Edmund, Mr Dear affectionate brother.

E. S. BURTON[ 3]

 

Downing Street

10th January, 1833

My Dear Sir,

I have had the pleasure of receiving your letter dated from the Cape, the 4th October last in which you announced that you are on the point of embarking for New South Wales in pursuance of the arrangement by which on the reduction of the third Judge at the Cape your services were to be transferred to the Bench at New South Wales.

Lord Goderiach has learnt with extreme regret that an arrangement which proceeded no less from an anxious desire to consult what were conceive to be your personal wishes as well as those of General Bourke should have occasioned to you so much inconvenience in a pecuniary as well as in other points of view.

On General Bourke's appointment to the Government of New South Wales he intimated to the Secretary of State the great satisfaction which he would derive from the benefit of your services if it should be found practicable at any subsequent period to transfer them to his Government; and as it so happened that at the particular moment when this wish on the part of General Bourke was expressed the reduction of one of the Judges at the Cape was under consideration and that one of the puisne Judges at New South Wales had signified a wish to retire, Lord Goderiach was happy to seize the opportunity which thus offered of uniting so many advantages as were expected to result from your removal to the later colony the more especially as those amongst your friends at home who were supposed to be acquainted with your views and whom the secretary of State consulted expressed themselves confidently as to the satisfaction which you would derive from being again called upon to exercise your Judicial functions in a Government under the administration of an officer with whom you had before lived on terms of intimacy and who had so high an opinion of your character and abilities.  It was under these circumstances that your change of destination was decided upon and so many considerations seemed to offer in favour of the arrangement that it did not appear necessary to consult any of your immediate family or connections previously to its adoption.  Whilst the distance of the Cape from England rendered it doubtful whether, had a reference been made to you on the subject, an answer could be received previous to the time when it might be necessary to complete it.

After the terms in which Lord Goderiach has already expressed his sense of the value of your labours and services at the Cape it would be needless for me to convey to you any further assurances on that head; but I can not abstain from observing that the importance of your future services in New South Wales can only be appreciated by those who have ha the opportunity of becoming acquainted with the peculiar frame of Society which exists there.

Lord Goderiach has further directed me to express his satisfaction at the determination announced in your letter to his Lordship of the 28th September of embarking by the earliest conveyance for Sydney and he has only to hope that your change of residence from the Cape to that station will not be productive of any permanent inconvenience to you.

With reference to those parts of your letters both to Lord Goderiach and to myself which relate to pecuniary matters I have his Lordships directions to acquaint you that he fully admits the justice of your claim to be reimbursed the expenses of the passage of yourself and family to New South Wales and instructions will be given to the Governor to being the subject before his counsel with a view to your reimbursement.  In addition to their payment he will be directed to issue to you half salary as puisne Judge of New South Wales from the date of your embarkation at the Cape the other half of your salary until your arrival at Sydney.

With respect to future promotion Lord Goderiach has no difficulty in admitting that your services at Cape have given you a fair right to look to advancement and his Lordship authorises me to state that he will feel himself called upon to assist your views as far as may be in his power with a due regard to the claims of others.  He is unwilling however to enter into any engagements in regard to the appointments which you had specially named; I am my Dear Sir your most obedient humble servant.

(Signed) R.W. HAY

P.S. Sir Lowray Cole has been apprised that you will draw a bill upon him for the amount of the half salary which under the above circumstances will be charged upon the revenues of the Cape.

 

 

SYDNEY, N.S.W.

29th November, 1833.

Mr Dear Edmund,

Although I wrote yesterday to my dear mother and this letter will go by the same opportunity, I cannot resist my earnest desire of writing to you also to thank you for your generous exertions in my behalf which whether they prove effectual or not serve to bind me if possible closer to that kind friend and brother who lifted me up in a world and still is busy to advance me in it.

I have received on the 3rd inst. Two letters, one from Robert dated the 24th of June, and the other from Mr. Austin of the 2nd July informing me of your call upon Mr. Kay - Robert stating the heads of your conversation with him, and Robert also informs me of your letter to Lord Goderiach on the subject of my removal.  I perceive that you and Robert are both impressed with the opinion that my removal here was intended by the colonial office to be for my advantage and that it will shortly appear to be so; as to which I will remark that this by Mr. Kay is altogether inconsistent with the arbitrary tenor of Lord Goderiach's first dispatch of the 29th March, 1832 No. 75 (a copy of which was annexed to my letter to you of the 18th to 23rd July) in which my removal from one Bench to the other was announced as an official arrangement made without reference to my interest in any way - also with the reasons given for my removal by Lord Goderiach in his dispatch of the 16th June, 1832 (an extract of so much as related to me I annexed to my letter to you of the 4th October) in which the removal is justified, and I am told that my new appointment is an equivalent for the former without one word of any prospect of future promotion in consequence.  It is also inconsistent with a letter which I have received from Mr. Kay himself in answer to one I wrote to him on the 4th October, (a copy of which I will annex to this).  Therefore the new tone expressed by the Secretary is not the expression of an intent which had existed when I was removed.  But it is the result of the interference of my friends.  It would never have been heard of if it had not been discovered that I have personal friends who like yourself will not permit a wrong to be done me - or will at least make a talk about it and it became necessary to put forward a new motive for my removal - to say it was done to serve me which could not at least be contradicted for some time.  I hope it may turn out to be true, but I am sure that there is no prospect of promotion for me here and that if such intention concerning me is sincere it can only be accomplished by another removal of me for which I shall keep myself prepared, and trust to your continued interference, to procure.  I will state to you why I am convinced that nothing but one if not two death vacancies must occur before I can with justice to two worthy men be promoted here.

The Chief Justice is a remarkably clever well informed man on particularly good terms confidentially so, with the Governor highly popular with the majority - having his mother and brother and family and a property increasing in value about him - intending when age and infirmity compel him to retire, to make this country his home, not likely therefore so long as he can told two thousand pounds a year (which is his salary - with a house to live in) to relinquish it for one thousand.  The objections against him are only those of Church and King, people - who are a very small minority here and do not enter into the composition of the ministry at home - therefore without his consent not likely to be displace - such a proposition is monstrous, or (as old Clarke used to say in every speech he made upon the circuit) ``No man is safe" he is not intending to remove -for he conversed confidentially with me on the subject a short time since and told me his views which are as I have stated about - he may indeed visit England for twelve months upon leave and probably has within the last few months written for a years leave of absence but of this I am not certain - he spoke of doing so to me for the object he said of renewing his friendships in England and preventing his enemies amongst whom are the late Governor and all his late friends in this colony from injuring him with the Government.  I scarcely think he has done even this for I know he is intended to ask the Governor's advice about it and I think the Governor would on many accounts dissuade him and I have heard no more about it; and there is now a plan on the               of sending his two boys aged 16 and 14 to England with their mother which does not look very like the intending to follow them shortly himself else he would stay then to go with them; if he were to go he would return at the end of his twelve or ten months leave of absence.  As to Dowling he is a hard working industrious man - not a bright man or of a high order at the Bar, nor fit for a Chief Justice certainly but whom it would be difficult and disrespectful to pass over especially by his junior on the same bench.  I do not believe such a thing ever was intended it is precisely the case of Menzies at the Cape against whom I had the strongest claim who was originally a junior and for whose sake I was robbed of my seniority.  If there were a difficulty in passing him by, it is increased here.

As to death vacancies it is true that both my colleagues have been nearly destroyed in constitution by their laborious duties and by the small construction of one Court; that is a circumstance which throws a greater share of work upon the only healthy Judge and I am certainly sitting in consequence having now had scarcely any respite since the first of August last; whoever else sits, I am one - if no one else, still I; one or both of my colleagues are very frequently ill in fact a weeks constant work always knocks them up ....  But what an un-Christian like foundation would this be to build upon and if I were witted enough to do so how likely is it that I might have to witness some such prolonged illness as old Mr. Marriott of               and certainly be myself worn out in waiting for this termination.  But I look for no such thing.  I still add here to my opinion that I must have promotion if at all else - where and I wish you to be in full possession of my views.  And I trust to your brotherly and friendly zeal still to urge my promotion - and I wish you would whenever you visit London see Mr. Kay yourself writing to him before hand to make an appointment with him and pressing upon him that I am not satisfied with my station here, that it is not worth my holding, that I only consent to hold it for a very short period until an opportunity offers of promoting me and that if such an opportunity does not soon occur I shall relinquish it at my own convenience.  If my services are worth having it must be in the station of Chief Justice - if not I will hold no other after I am out of debt.  I know that I can assume to this tone because I know my services are valued only they will hold me at as cheap a rate as I can.

My views then are - a Chief Justiceship either here or at the Cape or at Ceylon or at Jamaica or at Barbadoes or any other not decidedly unhealthy climate as the coast of Africa or of the South American continent.  If I cannot attain either or these when I would quit the colonial service for an Indian Judgeship if my friends can procure one for me.  Here it is nor worth my remaining I would rather return at my own expense to my old station at the Cape.  In a pecuniary point of view I find it worth at least three hundred pounds a year less arising from the not having a salary for my clerk but yet he compelled by the number of reports I have to make and by the drafts of new enactments which I have to prepare (out of desire to assist the Governor) to maintain a clerk at an expense of not less than one hundred pounds a year to myself (viz salary forty pounds and board lodging washing etc.), secondly in house rent which for a very moderate house without grounds to it I pay one hundred pounds a year more than West Brooks) at the Cape cost me after paying the interest of my purchase money and insuring my house against fire; thirdly not so little difference as one hundred pounds more in the greater rate and price of all articles of consumption here except a very trifling one tea which in the interest of English produce a more than double and in the articles of clothing, household linen and furniture extravagantly disproportionate to prices in England;              in the roguery extortion and tricks of the dealers and servants which are I believe the worst in the world.

In point of society I am worse off than at the Cape for in consequence of my loss and of the sacrifice which I was compelled by Lord Goderiach's unprecedented conduct towards me to make I can keep none; not having it in my power to receive visitors I have declined all invitations but at Government House; in comforts - I have none and no carriage - I walk to and from church and Court frequently in the midst of summer, midst of winter (keeping but one horse and that at this moment standing with a broken head and knees) and I frequently suffer in consequence from the extremity of heat and from the wet.  I never hire a carriage excepting when Margret can go to church (the distance being two miles) which is unhappily very seldom or when we go to Government House - the only place at which we visit - in my house I have not only just furniture enough for common decency.  In Court there is such filth and looseness of proceedings and want of all order and all convenience that I am disgusted.

 

SYDNEY, NEW SOUTH WALES

18th January, 1834

My Dear Edmund,

I wrote to you on the 29th of November and to Robert on the 5th December thanking you for the kind exertions you have made for me.  I am now about again to draw upon your zeal as I think an opportunity offers for doing so effectually.  I told you in the two above mentioned letters that the Chief Justice (Forbes) was apparently unresolved upon his plans connected with visiting England.  He has now informed me (confidentially and therefore I must bet you to treat it as such) that he has determined to ask for leave of absence to visit England and his application either has already gone home or will go about this time.  He has formed this resolution because Mrs. Forbes health requires her to visit England and she is too ill to part with her two boys who are also going for their education - and he is also desirous of renewing some of his old acquaintances.  His intention is to return and settle himself as Chief Justice for as long as his bodily strength will admit of his performing his duty then to retire to his country property.  But he will be absent for eighteen months or two years during which time if I am appointed Chief Justice pro tempore something more permanent may offer for me but at all counts the addition of five hundred pounds per annum to my income for that period will make up for my losses at the Cape and enable me to pay all I owe, and by that time my ten years will nearly have expired and I shall be anxious to revisit England.  The Governor here has not the power to grant leave to so important a function and as the Chief Justice accordingly his application must go home to the Secretary of State and arrangement will be made of the sending out someone either as acting Chief Justice during his absence or as acting puisne Judge during the time that one of us holds the Chief's appointment.  Of course it would be unjust to us that a new man should be put over both of us but someone must be sent for it will never do to throw the whole burden upon two Judges; as it is the weak state of both Dowling and Forbes is such that I have scarcely ever more than one of them acting with me at the same time and if one is removed even temporarily the other cannot take the additional labour and I shall not choose to take the whole - indeed I should fall ........ it.  If therefore there be any trust to be placed in our expectation arising from the expressions used to you in Downing Street, Mr. Kay will have an opportunity of forefilling them by sending out an acting P. Judge and sending out an order to the Governor to appoint me Chief during Forbes' absence.

My request to you now is that you would take the opportunity of seeing Mr. Kay and state to him that I am not yet promoted and displeased at being kept here as a Puisne Judge that in fact it is not worth my holding and urge that no opportunity may be lost of appointing me.  Do not mention that Forbes intended asking for leave but make him promise if you can that if he should ask for and obtain it I will be promoted and interim.  Urge my claims rising from my hopes show him how I thus be reimbursed without additional expense to the treasury; it is probably I think that the object will be gained.

I continue well in health Margret very ailing as usual it could be a comfort to me if I could have afforded to visit England with her but circumstances put that out of my power.  I find my income worse here than at the Cape in every way - all I have not spent in actual housekeeping and current expenses during the year I have been here has been one hundred and fifty pounds for furniture and two hundred and ten pounds reimbursed to England so that the appointment literally affords only a simple maintenance whilst the sacrifice of all my friends is to be endured for it.

We have at present no Clerks allowed to us as at the Cape but we have made a strong remonstrance on the subject which is going home to the Secretary of State and there is little doubt that next year we shall have them allowed - If we so long live - The Governor has offered me an appointment for Harry of a Clerkship in the surveyor general's office, one hundred and twenty pounds a year which I shall probably accept for him but at present I hesitate for some reasons.  If he showed any predelection for a country life I would rather put him with a grazier and let him work his way to opulance?  Or if for accounts - with a bench - as presenting the most independent modes of life.  But he does neither and I fear whether a government clerkship is not most adapted to his views.  I have indeed lately been trying without success to get some of the merchants? to take him in a counting house.  But none with whom I would trust him are willing to do so unless as a learned without salary of any kind and scarcely that ....... Also ...... he is willing poor boy to do anything I recommend to him.  I will write more fully in a day or two as there are several vessels now about to sail and tell you what I resolve upon.

In the meantime adieu.  Believe me to by my Dear Edmund, your ever affectionate brother.

W.H  BURTON.

 

SYDNEY, NEW SOUTH WALES

17th February 1834

My dear Edmund,

I write a few lines, not having time at this moment to do more, to inform you that - from what the Chief Justice has said to me this day - I think that it is by this opportunity he is sending home his request for leave of absence.  He told me that he has forwarded it to the Governor stating as the ground of his application his declining health.  My earnest request to you is that at the moment of receiving this letter to urge my claims for a Chief Justiceship upon the Secretary of State through whatever channels you may be able and at all events endeavour to obtain the promise that in the event of the C.J. leaving this country, either permanently or temporarily, that I shall be appointed to the office.  We shall have an early opportunity of proving whether Mr. Hay was sincere or not in his expressions and whether the Department are just or evil in their intentions towards me.  It will be worth my while to have the appointment even temporarily, in as much as it will give me an increased income and enable me in a short time to free myself of all difficulties, and either to assist those who have a right to expect it from me or to avail myself on Forbes return to this Colony of a light leave of absence - which will give me time and opportunity to urge my claim in person to some fixed reward in my own country for my labours out of it.  That Forbes will return - if he lives - I have no doubt and in that event I should ask for leave immediately afterwards.

I have no late letters from you.  My last to you was on the 10th January.  I then told you of the Governor having offered Harry a clerkship in one of the officers.  Since then the Chief Justice offered him one more eligible - both in money and situation - in the Supreme Court office - £160 per annum.  He accepted and was appointed on the 8th or 9th of this month.  I still keep him under my roof.  That, of course, I should under any circumstances do out of regard to my duty as a parent towards him, but I have thought it fair to stipulate with him that in consideration of my so doing he shall pay his grandma £30 a year for his sister's board which he can well afford to do as he does not pay for his own, and shall also give his sister £30 a year for her clothes - which I shall take care he does.  The first remittance of £15 will be made very shortly as I stipulate for the first produce of his labour being remitted home, which he can also afford to do as he had received from me his quarterly allowance for his own clothes the previous month to receiving his appointment.  There is no doubt of our being allowed salaries for our own clerks next year but I shall continue Harry in the Registrar's office - he is better there than with me.  I would therefore offer my clerkship to Lowdell's eldest boy if it were worth his acceptance and he would send him out to me by the month of January next.  If he declines then I would give it to Robert's friend Bowney's brother, of whom he wrote to me two years ago, on condition of his coming out forthwith to join me.  And if he declines than I think my old clerk Allen, if he has maintained a good character hietherto, ought in justice to have it.  I shall write to Lowdell and in the event of declining I shall be much obliged to you to inform Robert of it and if he declines I shall be still further obliged if you will tell Francis, who may probably be aware of Allen's address, to offer it to him.  But I must make the appointment in January next.  It will lead, after service with and tuition under me, to a resident magistracy of £250 to £300 per annum and which may be held together with the practice of a Conveyancer but not Attorney.

I request you to give my love to our dear mother and Maria and all your little ones, little Anne and all my dear brothers, and believe me to be, my dear Edmund, ever your affectionate brother.

W.H. BURTON

 

SYDNEY, N.S.W.

25th December, 1837

Mr Dear Robert,

I believe a vessel is to sail for England tomorrow and being anxious to communicate with you I take the opportunity of doing so after Divine Service on Christmas Day - many and happy may be yours my dear Robert and each bringing with it as I hope you enjoy on this peace and comfort.

I received your two letters of 28th June and 21st July both by the same ship on the 23rd inst., and thank you and Edmund and Mr. MacArthur and all my friends through you, for the lively and constant interest you have taken in my welfare.  You have found I am confident nothing in my cause to make you ashamed of it and whether you succeed or not I am thankful to you all.  I cannot restrain the expression of my mortification my disgust at what you tell me, Lord Glenelg's ignorance of my letters on the subject of my removal arising apparently from the suppression of them in the colonial office.  I have been surprised at no notice being taken of them having been quite confident that they were sent from hence I transmitted them in duplicate to the Governor, a mode in which officials in the colony are commanded to address the Secretary of State on pain of the delay which would arise from their being referred to the Governor for his report before answer.  The Governor wrote to me that they were transmitted but had been for his departure a number of times enquiring of me if I had any answer and wondering that he had none except on the simple points approving of Dowlings temporary appointment.  I will get a certificate from the private secretary of their transmission and send it to you.

I was surprised to hear that I have an enemy in the Colonial Office and especially in the person of a gentleman of whom I never heard before but I think the mystery is unmasked.  You are aware perhaps that a new Puisne Judge has come out, Mr. Willis.  He was anxious to be Chief Justice but he has informed me this very day over tiffin with him that was quite impossible that Dowling had been a long time in the Colony and had a claim to the office which could not be got over but that possibly he might not hold it long; that as to quote Burton I was expected home and there was no doubt I should come home thus clearing the way for Willis to become first senior Puisne Judge (which in spite of them I can             ) and then in the event of a vacancy Chief Justice, he said moreover I was quite sure of a pension if I applied for it that I should get seven hundred and fifty one pounds a year that the person there whom to apply was Mr. Gardner, I asked pray tell me who is Mr. Gardner and he answered he is Chief Clerk at the Colonial Office, and it was through him Forbes negotiated his business - there is a Clerk to each Colony and Mr. Gardner was charge of the Australian colony.  I asked if he was intimate with Forbes and was answered quote, ``Oh yes quite intimate" - then who would have charge of my letters on the subject of my removal in Sept. 1835? answer quote Mr. Gardner thus is unmasked the cause of my letter not being forthcoming - Steven and Gardner - both intimates of Forbes - both favouring him - both in favour of Dowling - he having charge of my letters - thus is fully explained the absence until June the 26th 1837 of the Governor's recommendation of me.  I am indeed thoroughly disgusted.  There is no contending against intrigues of this description.  It is by such means the colonies are governed.  A gross injustice has been done me and if I do as you suggest write at all on colonial affairs one of my heads shall most unquestionably be the Government of the colonies.

You will probably be aware of the close intimacy before this reaches and with              at the grounds of Mr. Gardner's enmity to me;  In anything emanating from me to him it is impossible he could even have any cause - but he may easily have adopted the prejudice and ill will of another.  It has been then through him that Dowling has got a copy of Sir Richard Roukies letter recommending me for the appointment in the event of a permanent vacancy occurring.  I quite approve of and am thankful for your determination to tender my resignation.  The tricks of Dowling Street make me particularly tired of ....... therein I shall accept any terms my friends accept for me.  Only I hope to have a few months warning to enable me to sell off my furniture, pay my debts before my salary is reduced to a pension.  My future course will then depend upon considerations which are not yet right.  Two courses open the first, my immediate return to England and engaging in practice as a barrister.  The second staying here for five years longer and engaging like my neighbours in a pastoral pursuits.  I should get well started by my friends the MacArthurs and Doctor Bowman also an ally of theirs, and Mitchell my medical friend and I should also have paid from an old friend lately gain that is an old man lately made my friend who will assist me financially, I could thus by obtaining a couple of thousand sheep, a station and some cattle add a thousand a year to my income in a short time and could make a little provision for Francis and for Henry's family and then return to England with enough to be independent all my life.  I am not saying anything now about which course I include to.  I shall determine on neither without serious consultation but I must pardon Mr. Johnston's remaining debt before I return to England and that makes me anxious to know my fate as soon as possible.  You will readily perceive that whilst I hold office, or until I am certain of quitting it, I must keep house as hitherto, but when I once know that at a certain affixed time I may quit office I am at liberty to dispose of my furniture, discharge my servants, and live where I like.  Some later arrival will, I hope, soon inform me of the result of your ulterior proceedings.  At latest I presume the decision of Lord Glenelg will be made known by the new Governor.  I am sorry to observe by one of the papers that he will not sail before the end of October which will delay his arrival here until March.  I may possibly, however, hear from you on the subject before then.

I am much gratified at hearing that our dear mother continues so well - it would be indeed a great blessing to me to embrace my dear beloved mother once more and anything which would make my giving up the prospect of that happiness              would be a great sacrifice to me.  I pray God to direct me for the best.

I have sometimes thought a path of duty lies here which I may be exerting if too anxious to leave, and the members of the Capitol Di-ocesan Committee - especially the Bishop and the clerical members - appear to regret such a prospect and some tell me I ought not.  But I think there is a way still open for serving them in England which only varies in degree and that, perhaps, a higher degree from that in which I am able to serve their cause here, viz. if I publish anything it will be greatly on their side and I may possibly, by my residence here and at the Cape, have gained a right to be heard, both in print an at the meetings of the two Societies.  I may perhaps have been already one means, under God's direction, of pointing the public's attention in England towards the destitution here of religious means and I may again be enabled by the same blessing to do so.  Here I am maintaining silence until called forth then I shall be under no restraint. However He, in whom I trust, will direct me and if He accepts my service anywhere in His holy cause will make it acceptable where He will, and so I leave the disposal of myself where it really is best for me to live in.  Whilst I write I am probably disposed of.

I sympathise with you, my dear Robert, on the loss of your friend Rawson, well knowing your affectionate heart would be shocked at losing your dearly loved friend.

I had some brief letters from Clarke telling me of his severe illness and of his annoyances - for which I grieve - but how he has involved himself pecuniarally I cannot conceive, without supposing that his ``Free Masonary" is an expensive movement to him.  I sent him £200 in October last to pay the law sum with the interest for which he was surety for me.  He has never sent me any account of anything beyond this, having been expended for me, but he must have it if there be anything and ought to have sent it, for early after I came here he wrote ``You owe me £300" but I imagine he has not set against that sum an allowance which by agreement he was to make me of £100 a year for his living with me - after he was confirmed in his appointment, viz. according to my recollection July 1828.  I think it probable he has an account of sums expended by him but amidst this material it is a bit off.  However I have repeatedly asked him to send me his accounts, together with my letters left at the Cape, and he has not done it.  He has in his bureau all my personal letters -  such as Stevens a vast deal of sureties to me etc. and memorials of departed friends.  Before I trouble myself about paying him I shall certainly desire to see how his account is but if I owe him anything he shall be paid the last shilling.

Give my kind love to our dear mother and brothers and their children and accept the same idea of it of

Your ever affectionate

W.A. BURTON

Harry is quite well, Margaret's ailing as usual.

 

WEDNESDAY

Mr Dear Burton,

The original despatch transmitting your letter went by the ``Spence" which sailed the 27th October and the duplicate by the ``Florentia" which sailed the 15th November.  I have letters announcing the arrival of the latter in March but the ``Spence" had not reached, as I am informed by the same means.  My latest despatch from Downing Street is dated the 2nd March at which time I believe neither of those ships had arrived.

I have a letter from Richard on the 29th, who was well, thank God, and fagging with Mr. Espinasse the special Pleader of whom he speaks highly.  Richard professes to like his vacation and from all accounts is exerting himself very considerably.  Fanny has had two slight attacks of inflammation of the lungs whilst in Dublin but had reached London in very good health, on the way to the Isle of Wight where she is to stay some time and, I hope, settle Jebb as an English parson.

Yours, dear Burton, very faithfully

RB

 

 

SYDNEY

27th December 1837

Mr Dear Judge Burton,

I perfectly remember your transmitting to Lord Glenelg, Sir Richard Bourke, the letter respecting your position on the Bench of this Colony, dated 2nd September 1835.  Although I cannot imagine what doubt can have arisen as to its receipt in due course, I have referred, for your satisfaction, to the memoranda which, as Sir Richard's private secretary, I made at the time.  From these it appears that your letter was made the enclosure of a despatch dated the 3rd October 1835, the original of which went to England by the ship ``Spence" on the 27th of that month and the duplicate by the ``Florentia" on the 15th November following.

Believe me, my dear Judge Burton,

Yours very faithfully,

N.K. HOLDEN

 

SYDNEY

28th December, 1837

Mr Lord,

I had the honour of addressing a letter to your Lordship on the 2nd of September 1835 on the subject of my position as a Judge of this Colony, which letter I forwarded on the same day in duplicate to His Excellency, Sir R. Bourke, for transmission, in compliance with the regulations of the Colonial Department.  I was afterwards informed by His Excellency that he did forward my letter to Your Lordship, one part by the "Spence" which sailed from hence on the 27th October and the other by the "Florentia" which sailed on the 15th November.

Both these vessels arrived in England in due course and therefore I might presume that my letters have reached Your Lordship, were it not that I have not been honoured with any notice of it, and I am led to an apprehension which I do not entertain without peculiar disappointment and pain, based, as I have been by the command of his late Majesty, at so great a distance from the seat of Government and addressing the head of my Department of a subject of vast importance to myself that my letter was not brought under Your Lordship's notice.

Under this apprehension I have instructed my brother, Edmund Singer Burton, Esquire, of Daventory, to lay my case before Your Lordship and to implore in my name for such a relief as may be in your power to recommend Her Majesty to grant me.

It is only necessary, therefore, for me now to state to Your Lordship that my brother is fully authorised by me to act for me in my absence and that I shall be satisfied with any arrangement he shall assent to on my behalf.

I have the honour to be Your Lordship's obedient servant,

W.H. BURTON

Judge of the Supreme Court of New South Wales.

 

 

SYDNEY, N.S.W.

28th December, 1837

Mr Dear Edmund,

I think it advisable in consequence of the suspicion entertained and communicated to me by my brother Robert that my letter of the 2nd September 1835 was never brought to Lord Glenelg's notice - to furnish you with a letter to the Secretary of State to be read by you if you require it and I think proper and also I enclose an original note from the late Governor here and another from his late private secretary, the former received by me in July or August 1836 and the latter yesterday in proof that my letter was forwarded from hence. 

I hope however that the necessity for this proof will have ceased and that such arrangements made may have been made for me although I am yet ignorant of them as will be satisfactory.  I can only express my thankfulness to your and my other friends for their kind and friendly zeal in my behalf coupled with my chagrin that so much exertion should become necessary.  A reflection which is not very consoling to one who really feels he has a right to say that his exertions in the public cause have been even beyond this duty.  It affords not much stimulus to the future zeal to learn that not only can those services be [u]nknown but stifled by underlings in the office of the colonial department.

Mr. Gardner of whom Robert writes that he is an enemy of mine is altogether unknown to me.  I have never given him any harm of which I am conscious, but he is a friend of Forbes which may account for his enmity tome -although this letter has no right to feel so towards me.  I have twice supported him in this colony when without me he must have very greatly fallen.  I have acted towards him as I wish he had acted towards me - supporting him whenever it was in my favour and never availing of any opportunity to injure him.  My words and deeds may have strongly contrasted with his own and may have been in that way prejudicial to him; but only incidently and in the discharge of my duty; which could not have been conscientiously performed had I not said and done as I have.

I know not my Dear Edmund what may be within the short future of a few days - but we ought by this time to know if Dowling be confirmed Chief Justice or who else and what is the result to me.  The ships however at this season have been long delayed - one which sailed from England in July had only arrived a few days ago.  The Governor (Sir Geo.,Gipps) cannot be expected before March and I fear I shall be kept in suspense until then - unless as I hope you will be aware of what is transacted and I shall hear of it from you earlier.

The last two years have thoroughly disgusted me with the Public Service and I shall be glad to escape from it upon any terms which you think proper.  The last communication from Robert was on ............

Give my love to my dear mother my brothers ........ the children and all who love me .........and informed you of having received Roberts letters of 20th June and 18th July which informed me of your intention to apply for my retiring pension if Dowling should be confirmed I cannot however act upon that intermation until I hear what has been done in consequence.

My expectation is that you will obtain my retiring pension and if no that you will have by ......... letter or its ...... what I shall do; whether ask leave and go home or remain ....... I sincerely thank you and Robert and all my excellent friends for your and their zeal in my behalf only regretting that their labours as at present seems to be the case have been so fruitless.  Give my love to all, accept the same yourself and believe me to be my dear Edmund ever your affectionate brother.

W. BURTON.

Original of the enclosed duplicate was transmitted by the ``Luisa" which finally sailed having once put back three days ago.

 

 

SYDNEY, N.S.W.

23rd July, 1838

 

My Dear Edmund,

Robert will have told you that in my letter to him of 4th instant, I communicated the disagreeable intelligence that I shall not be able to leave this country for another year.  Nothing has since occurred either to alter that determination or to make it more tasteful, but what a man cannot accomplish it is vain to repine at.  Be sure that if it please God to allow me to follow my own choice it is to be with you; but I must not do so against principle and it would appear to me at the present to be so if I were to leave either in debt or without a reasonable supposition that I am in the performance of my duty in leaving.

Whilst I am here if an opportunity should offer of putting me into a very eligible situation I do not doubt you will avail yourself of it.  I was ......... apprehension that my being supposed to be on my way home may have the effect of impelling the exertions of my friends but do not let this be the case - else I shall be doubly injured by the last wrongful act of the Whig ministry towards me.  I am exerting myself for the public good and as much as ever I did having again taken up my labours after Sir R......... departure - and I do not doubt that Sir Geo. Gipps report of me and the public estimation of my services when I do leave will make those who have kept me back from the post I have a fair and acknowledged right to.  I have proposed an Insolvent Law which I think you would consider a great improvement upon the two English systems, Bankruptcy and Insolvency and it will not be amiss that I should stay a little time to set it working and not to let others who have had nothing to do with it reap the laurels, a Newspaper sent herewith will show that I am doing all I can to support the church against her opponents.  There are some stupid mistakes in the report which I cannot take the trouble to correct - thus the word ``few" is substituted for the actual number of churches which I quoted from Sir R......... despatch - but if you feel interest in matter you will find the original despatch alluded to in the appendix to the Report of the Transportation Committee.

I am sorry to say that Arthur has got through all his money and having one so chiefly by intemperance and profligacy is the less fitted to give any more.  My situation is a disagreeable one respecting him - he is upwards of two hundred pounds in debt to various trades men about the town (not larger than ......) so that everything is known - and as he is of course known to be my relation and supposed to be nearer than he is - his disgrace reflects itself upon me.  I have done all I could in every way to save him but he has gone his own way and I am not in the remotest degree responsible for it.  The mode in which he invested his money and the mode in which he has lost it were neither upon my advice, I have assisted him with a little money from time to time when he wanted it from actual distress but have never had through my hands a shilling of his.  I must never the less be the sufferer by his profligacy.  I had hoped to be out of the country before the crisis ..... I had not cared so much for it for having done all I could to keep him in the right way and failed I thought only for my own reputation.  I shall be dunned for his debts and my name will be about Sydney linked with my nephew as he is called; It is laid upon me whom as neither his nearest relation nor as the occasions of bringing him here.  Could you if you think it proper apply to his Aunt Mrs. Marshall who is rich enough to give him a little money to pay his debts or for me to invest ....... etc., for his support in some measure.  She is his nearest relation and if any ought at least his discredit ought not to fall upon me.  If she will give him anything I will faithfully apply it.  It not why all I can do is to pay his passage to England where he may apply to her himself.

 

Notes

[ 1] This text has been proofread against the typescript, not the original manuscript.

William Westbrooke Burton was appointed to the Supreme Court of New South Wales on 1 March 1832.  He was sworn in on 22 December 1832 but did not begin hearing cases until 1833.  The footnotes to Macdonald v. Levy, 1833 contain material concerning his judicial character.

[ 2] This date must be 1836, given the context.  Chief Justice Forbes left Sydney in 1836, and his official retirement from office was in 1837.  The typescript gives the date as 1830.

[ 3]This must be a typing error.  It is clear that the letter was from William Westbrooke Burton, the Supreme Court judge.

Published by the Division of Law, Macquarie University