DARLING TO MURRAY. We have also to acknowledge the honor of receiving the Copy

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DARLING TO MURRAY. 765
We have also to acknowledge th ehonor of receiving the Copy
1829
of an Extract of a Despatch addressed to Your Excellency by The 20 May.
Right Honble. The Secretary of State, under date 31st July, 1828,
on the subject of the above mentioned Act.
In transmitting herewith the Report of our Opinions delivered in
the case alluded to, we venture most respectfully to submit for Your Proposal for
Excellency's consideration whether, instead of pressing the subject legislation by
upon the attention of The Right Honble. The Secretary of State, counclL
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 inten
tion of Parliament, and at the same time sustain the general
analogies of the Law in like cases.
Adverting to the notice of the Right Honble. The Secretary of Error in
State that, in the Printed Copy of the 9th Geo. 4, C. S3, the 9th i^ertion of
Section is inserted by accident in a place where it should not have §j § w^iil.
been introduced; and presuming as we do, that its proper place is
between the 33rd and 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. We have, &c,
F. FORBES, C. Just.
JOHN STEPHEN.
JAMES DOWLING.
[Enclosure No. 4.]
Ex PARTE JANE NEW.
Supreme Court, New South Wales, 21st March, 1S29. Opinion by
THE Chief Justice delivered his opinion to the. following effect:— F- Forbes ex
This is an application to the Court to enlarge the Prisoner, Jane parte Jane New'
New, upon the ground -that she is unlawfully detained in the Fac
tory 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 Confine
ment, may upon sufficient grounds bring his ease 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 obligation 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,
transcendant as it is in its nature, has been temperately 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 abov*e N otther 2e1e9 .c ases 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.
766 HISTORICAL RECORDS OF AUSTRALIA.
9. The few facts, to which it will be necessary to advert in delivering
182
20 May. my opinion upon the application now before the Court, are as fol-
. low :—Jane New was tried at the assizes held at Chester in England
FPForbes ez in 1824, and convicted of larceny, for which she was sentenced to
parte Jane New. 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 affadavits, was
afterwards remitted by the Governor in pursuance of His Excel
lence'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 Sen
tence, 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 the Colony; or secondly, assuming such sentence to hav ebeen
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 anothe rperson, 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 affadavits and the documents annexed
to them, to satisfy the Judges of afact, which they cannot but be
presumed to know, that His Excellency the Governor had, in conse
quence 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 Grea tSeal; 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 conse
quences of attainder, or to restore the party attaint to h ipslenam
et liberam legem in any case, where the effect of a pardon is the
immediate subject matter of enquiry before the Court; such instru
ments, however, are held sufficient to induce the Court to admit a
Prisoner to Bail, and to liberate him from personal restraint ( 4Bl.
Com. 400). Even a conditional promise of mercy, held out b yJus
tices of the Peace to induce a party to give Evidence which may
criminate himself, has been held sufficient to authorise th eCourt 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
DARLING TO MURRAY. 767
for such removal, that "the Governor had been pleased to remit 1S29.
the sentence passed upon Jane New," and that it is further stat ed 20May.
in the affadavit of the Colonial Secretary, in explanation of t hoepinion by
circumstances under which the Prisoner was subsequently detained F. Forbes ex
in the Factory, " that His Excellency had been pleased to revoke Parte Jane New-
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 befor eus, 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 raised for the decision of the
Court, namely, how far this woman, having been originally trans
ported to Van Diemen's 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 Gov
ernor 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.
The clause* of the Act under consideration is certainly expressed
in an ambiguous manner, and is capable of two distinct 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 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 tem
porary or partial remissions of their sentences as may seem best
adapted for their reformation. 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, whic hfol
lows, of granting temporary remissions of thei rterms; that -they
are distinct and substantive powers conferred b ythe 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's being within the limits of this Colony
places such Prisoner within the exercise o fthis discretionary power
of the Governor.
The latter part of this doctrine appears to me to be clearly unten
able. 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 from England, or some other part of the
King's dominions to this Colony. Van Diemen's 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 Ma
jesty's Crown. The mere cir*c Nuomtset 2a1n9c.e 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 enact
rmeefnetr,s otro iats sciagnnnmoetnt sex imsatd.e Nboyw ththee r ecslpaeucstei,v eu nGdoevre rcnoonrssid eorfa tNioenw,
768 HISTORICAL RECORDS OF AUSTRALIA.
South Wales and Van Diemen's Land, in pursuance of the trans-
lg29
20 May. portation Act,* which enables them respectively to revoke such
. assignments; that is, each of the said Governors may revoke any
'PForbes M assignment, made by himself or his predecessors, of any Prisoner
%rte Jane New. 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 sustain
able 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 toe
held securely, are assigned Prisoners. If I correctly understand
the Attorney General, he contends that the Governor may, at dis
cretion, 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. That His Excellency will not exert
such a power may he 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 estab
lished 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
Actsf have two specific objects in view, the punishment of Criminals,
and the supply of the Colonies with labor. 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 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 Magis
trates 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. 3rd, c. 15, 24th Geo. 3rd, c. 56, 56th Geo. 3rd,
c. 27, all reorganise and confirm this right of property in the ser
vices 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 ap
pears to have been generally considered as having introduced the
* Note 104. t Note 220.
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
DARLING TO MURRAY. 769
the Colony, who consequently could only remit the Sentence o fan
1829
assigned Prisoner by granting him a conditional pardon under the 20 May.
provisions of former statutes. Tickets of Leave were in the nature „ . .
of a temporary and resumable indulgence, which exempted the ser- F^TbesL
vant from the control of his Master and permitted him to enjoy the parte Jane New.
profits of his own labor. These instruments were in some respects
preferrable 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 labour, this practice of granting Tickets of Leave was tacitly
submitted to by the Settlers; but, in latter times, its legality has
been called in question, and this circumstance gave rise to the pro
vision 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 indulgences, 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 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, " tem
porary 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 neces
sary first to 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 ";
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. 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 Parlia
ment, after having created this right in the assignee of a Prisoner
in the most express and formal manner, and having carefully pre
served 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 proceeding 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. As then the Clause in question will admit of a dif
ferent 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 aSmER .a Iw.a rVeO Lt.h XaItV i—3t Ci s open to argument, in support of the con
struction 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 restrain
ing such: abuses and of putting an end, in extreme cases, to the
770 HISTORICAL RECORDS OF AUSTRALIA.
1829. relation between the Master and his assigned servants. An
20 May. authority of this sort has in fact been exercised by the Justices
.—- within' the several districts of the Colony after the manner of dis-
FFort^esez solving the union between Master and apprentice; and I am not
•parte Jane New. 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 as
signee 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 disso
lution 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 sus
tain the naked power which has been claimed on behalf Of the Gov
ernor. If His Excellency be indeed invested with this power by the
high authority of Parliament, it cannot be delagated to other
hands; it must be strictly pursued and exercised at the pure re
sponsibility of the Grantee (Cowp. 29) and thus the penal conse
quences, 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, with
out complaint or hearing or trial, or in short any one recognized
form of judicial investigation.
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 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 argu
ment, 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. It is admitted by James New, indeed the
Whole facts before the Court shew that the Prisoner is a trans
ported 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
DARLING TO MURRAY. 771
Excellency to extend this indulgence to the Prisoner, it is a duty 9.
182
which I owe to the seat in which I am placed, to state my opinio n .20 May.
freely and fully upon this important question of pena llaw. . .—r
Q
The Acts of Parliament for the transportation of convicted felon sFPForbes ea
are the only guides to be followed by the Court. Now these Act Psarte Jane Xew-
authorize 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 disci
pline and to the summary jurisdiction of th leocal authorities; and,
in order to prevent thei rescape, it is made a misdemeanour in any
person to aid or assist in suc hescape. 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
and Aid. 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 o fthe Acts of Parliament; he is
not transported to such other Colony, and consequently not subject
to the summary jurisdiction of th eMagistrates; he has never been
assigned to the Governor of suc hColony, and consequently the Gov
ernor 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 thei rdetails; 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 thi sColony; and however she may not be
subject to the local authorities, to be dealt with in all respects as a
Prisoner 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
A.cts for the transportation of Offenders to these Settlements, we
feel ourselves bound to remand her to the custody of the Govern
ment for the purpose of being sent back to Van Diemen's Land, the
place of her original and unsatisfied term of transportation.
FRANCIS FORBES.
Ex PARTE JANE NEW.
MR. JUSTICE STEPHEN delivered his opinion to the following effect:— concurrence of
I entirely coincide in the view taken of this case by His Hono ^r"j^pln'jon
the Chief Justice. by F. Forbes.
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.
JOHN STEPHEN.
Ex PARTE JANE NEW.
MR. JUSTICE DOWLING delivered his opinion to the following effect:— opinion by
On a former day in this Term, the Court, at the instance of the ^elamXew
Prisoner's Husband, granted a Writ of Habeas Corpus directed t vo
the Matron of the Female Factory at Parramatta Commanding her
to bring up the body of Jane New into thi sCourt; The body of the
•Prisoner having been brought into Court on Wednesday last, it
772 HISTORICAL RECORDS OF AUSTRALIA.
appeared from the Documents and Evidence then produced, that
1829
20 May. she had been tried by the name of Jane Henrie, alias Maria Wilson,
. at the Chester Quarter Sessions in April, 1824, and Sentenced to
>PDowling ex Seven Years' transportation, and was accordingly transported to-
arte Jane New. 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 26th 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 com
mitted in Sydney on the 18th December, 1S27, and Sentence of
Death was ordered to be recorded, and there-upon she was re
manded to Sydney Gaol. The Judges of this Court know Officially
that an objection was afterwards made to the validity of the Con
viction in point of Law, and after due deliberation they felt them
selves bound to declare the Conviction void.
It appears now that the Prisoner on the 19 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 Governor of Van Diemen's Land to this Colony, His Excel
lency 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 Fac
tory 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 juris
diction 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 Felon,
having been sentenced by a Court 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 and
Appoint for the Term of Seven Years. It appears that His Ma
jesty had appointed Van Diemen's Land as the place to which the
Prisoner should be transported, and thither she was transport
accordingly. Her home Sentence will not have expired until the
26th of April, 1S31. 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
of September, 1827, the Lieut. Governor gave the Prisoner permis
sion to accompany her Husband to Sydney. Doubtless this permis
sion was given from motives of mercy to the Prisoner; but I appre
hend that the Lieut. Governor of that Island had no Authority by
DARLING TO MURRAY. 773
Law to grant such permission. The Prisoner was indented as a 1829.
Convict transport to Van Diemen's Land, there to remain until her 20 May.
Sentence should expire. By the 44th Sect, of the 4 Geo. 4, C. 96,„- ~j~
0 ni
Authority was given by Parliament to His Majesty to erect the j.Dowling ex
Island of Van Diemen's Land into a separate Colony, independent parte Jane New.
of the Government of New South Wales. It is known, as matter
of history, that such separation has taken place and that the juris-
rdiction of the two Colonies are separated to all intents and pur
poses. 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
accompany 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. Governor's 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, pro
vided by the Legislature for the Government of the prison popula
tion, would become inoperative in such cases. There are other rea
sons 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 A'an 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 restaint, 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 Governor's 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 at Sydney an Assignment made at
Hobart Town by the Lieuten*a nNott eG o21v9e.r nor of Van Diemen's Land,
of a Prisoner of the Crown transported from the United Kingdoin
to that Settlement. Such a revocation, I conceive, could only be
made at Van Diemen's Land by the Lieut. Governor of that Colony.
In this case, I should have been strongly disinclined to give any
opinion upon the construction generally of the 9th Sect, of the
774 HISTORICAL RECORDS OF AUSTRALIA.
1829. Statute alluded to, because it does not properly arise; but, inas-
20 May. much as the question has been pressed upon our attention on both
;—~ sides, and the Opinion of. the Court urgently sought for by the
jPDowiin» ex Law Officers of tlie Crown, I feel no hesitation in giving my pre
pare Jane°New. sent views upon it, although it is a matter which may possibly re
quire hereafter more advised consideration.
Before, however, I address myself to the consideration of the par
ticular 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 Labour, but to no greater degree of restraint than is neces
sary to the due performance of such Labour; and, Secondly to vest
absolutely the property in his Labour in the Governor of the Colony
for the time being, or in his (the Governor's) 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, 8tb
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 so on 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
assigns 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 Governor's Assignee of a Transported Convict
had an absolute indefeasible property in the Services of the Trans
port as 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 Assignee's consent. The Service of a
Convict would indeed be suspended during the operation of a Colo
nial Sentence for punishment for an Offence here committed, but
the legal effect of the Assignment would remain untouched. Then
what alteration in the Law has 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 condi
tion of the transport, and to endeavour by lenient means to effect
a reformation in his habits. It is matter of history that, in former
times, it was not an uncommon thing for the Assignee of a Convict
Servant 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 pro
ductive of much good in imp*r Noovtien g22 0t.h e condition of the Prisoner,
and holding out to him a strong incitement to good behaviour. I
venture to presume, however, that it never could have been the in
tention of the Legislature in passing this Section to give an absolute
and indisputable power, without cause assigned and adjudicated