A colonial autocracy, New South Wales under Governor Macquarie, 1810-1821/Chapter 7

by Marion Phillips

CHAPTER VII.

THE STRUGGLE BETWEEN THE EXECUTIVE AND THE JUDICIARY.

Authorities.—Despatches, etc., in Record Office (especially for the years 1814, 1815, 1816). Colonial Office (especially for the years 1815, 1816). Sydney Gazette. P.P., 1819, VII. Historical Records of New South Wales, Vol. VII.

In 1809 the Secretary of State expressed the opinion that, however suitable the judicial arrangements of the Colony had been to its infancy, they had already been outgrown. He therefore instructed both Macquarie and Ellis Bent to report on the changed conditions and the alterations which they considered advisable in the Charter of Justice. Macquarie was ready at that period to accept Bent's lead in such matters, and it is therefore to Bent's letters that most importance attaches. Writing to Lord Liverpool^[1] on the 19th October, 1811,^[2] Bent described in detail the judicial needs of the settlement, laying stress on five main points. In the first place, he advised that Criminal and Civil Courts should be established in Van Diemen's Land. A Deputy Judge-Advocate had been appointed for that settlement and had been paid a salary since 1803, but had never received any patent of justice or commission, and consequently had never held a court.^[3] The New South Wales judicature served very inadequately for the whole settlement.

Turning then to New South Wales, he dealt with the defects of the Civil Court. In the two years during which he had been in the Colony, 1,008 cases had come before him, involving sums amounting to £184,500. The costs of these suits had reached £2,000 and the amounts recovered £59,000. The growing importance and complexity of the work necessitated, he thought, an additional judge, and lawyers to conduct the pleadings.

He suggested also that some restrictions should be laid on the right of appeal from this court to the Privy Council.

In the Criminal Court he urged that Trial by Jury should replace the present system, and that prosecutions should be conducted by a Crown solicitor.

Finally he reviewed the commission, status, and functions of the Judge-Advocate, and recommended a complete change in his position.

His commission was a military one while his duties were civil. It placed him under the orders of the Governor, while at the same time he was sworn to administer the law of England. "… I can assure your Lordship," wrote Bent, "that the comfort and happiness of any Judge-Advocate, nay, even the proper discharge of his duty, must depend entirely upon the personal character of the person in whose hands the executive power of the Colony happens to be vested."

The duties of the office he considered too heavy for one man, and in many ways inconsistent with one another. Thus in the Criminal Court he acted as judge in cases for which he had himself prepared the indictment, and in which he had the conduct of the prosecution.

This letter of Bent's was accepted in its entirety by the Committee on Transportation of 1812, and they embodied its proposals in their Report. But Lord Bathurst, the new Secretary of State, held different views. He described in a letter to the Governor, in 1812,^[4] the reforms which were to take effect in a new Charter of Justice to be issued for the Colony.

He agreed that thorough changes were necessary in the Civil Court, that the cases required "more elucidation than what the parties, as they have no professional assistance, are able to produce," and that the decisions "are frequently too summary, while they are at the same time not sufficiently conclusive, and from most of them an appeal to His Majesty in Council is allowed".

He proposed to "divide the labour" and establish two courts, the Supreme Court and the Governor's Court. In the latter the Judge-Advocate would preside and the court be constituted "as the Civil Court of Judicature now appears to be".^[5] It was to take cognisance only of cases in which the amount at issue was below £50. A similar court was to be established at Van Diemen's Land, presided over by a Deputy Judge-Advocate.

The Supreme Court was to consist of a Chief Judge and two magistrates appointed by precept by the Governor. This Court was to have an equity jurisdiction as well as cognisance of all civil cases in which the amount at issue was over £50.

Procedure in the Governor's Court was to be summary and subject to regulations drawn up by the Judge-Advocate. In the Supreme Court solicitors were to be employed on either side, and for this purpose the Government would encourage their emigration. The rules of this court and the fees of both were to receive the Governor's approval before publication. No appeals were to be entertained against the decisions of the Governor's Court and the judgment of the majority was to be final. From the Supreme Court appeals might go to the Governor, who was to be assisted by the Judge-Advocate. If the amount concerned were over £3,000, an appeal might be taken from the Governor to the Privy Council. There were also to be safeguards with respect to majority decisions in this court. If the Chief Judge were in the majority, the decision was to be binding. If he were in the minority, and protested against the decision, the protest was to be duly recorded, and appeal might then be made to the Governor, who would, as in other appeals, be assisted by the Judge-Advocate.

The Criminal Court was to be left unaltered, and the Court at Sydney to continue the administration of criminal justice for Van Diemen's Land, a settlement six hundred miles away.

In refusing to accept the recommendations of Macquarie, Bent, Bligh, Hunter (both ex-Governors) and the colonists examined by the Committee on Transportation in favour of petty juries, the Colonial Office took a strong step. But the experience of the following seven years, and the lack of unanimity among the colonists when the question was revived in 1819, go far to justify this hesitation, and it is probable that in 1812 much had passed in private conversation and in private correspondence at Downing Street, which made Lord Bathurst slow to accept without further inquiry Macquarie's urgent appeal for the establishment of juries.^[6]

"It is, however," wrote Lord Bathurst, "a question how far in criminal cases the trial by jury may not be advantageously introduced. It is not necessary to dilate on the beneficial effects to be derived by that system of dispensing justice, but before it is adopted in New South Wales, it is very necessary gravely to consider how far the peculiar constitution of that society of men will allow of the application of this distinguished feature of the British Constitution: are there settlers in number sufficient, capable and willing to undertake the duties. In a society so restricted is there not reason to apprehend that they may unavoidably bring with them passions and prejudices which will ill dispose them to discharge the functions of judgment? The great principle of that excellent institution is that men should be tried by their Peers—would that principle be fairly acted upon, if free settlers were to sit in judgment on convicts; and that too in cases where free settlers might be a party? Would it be prudent to allow convicts to act as jurymen? Would their admission satisfy free settlers? Would not their exclusion, etc., be considered as an invidious mark, placed upon the convicts, and be at variance with the Great Principle upon which the institution itself is founded?

"These are questions which it will be very desirable should be well weighed, and on which I shall be happy to have your opinion. The proposed alterations in the (civil) Court of Judicature need not wait for their solution.

"On the contrary it may perhaps be desirable that alterations in so important a part of the internal policy should be gradually introduced."

In his reply Macquarie carried his proposals further than before. He suggested that the Supreme Court should have the power to order Trial by Jury in all civil cases in which they thought "that mode of trial would be best calculated to do justice between the parties".^[7] He again proposed the abolition of the office of Judge-Advocate, substituting an assistant or puisne judge, and leaving one of the solicitors to act where necessary at General Courts-Martial.^[8] Another assistant judge might be appointed to act with the Chief Judge in the Supreme Court and thus relieve the magistrates "of a duty (which they much dislike on account of the great length of time occupied by these courts in civil cases) and the court and the public gain an accession of professional knowledge and intelligence".

Before this despatch reached Downing Street the new charter, on the lines laid down by Lord Bathurst, had received the assent of the Crown and been published as Letters Patent.^[9]

The new Chief Judge of the Supreme Court of Civil Judicature, Jeffery Hart Bent, Barrister-at-Law of Lincoln's Inn, and brother of the Judge-Advocate, had been appointed and had left England early in 1814. At the same time two solicitors, with salaries of £300, had been sent out to conduct the business of the new court.

J. H. Bent arrived in Sydney at the end of July and at once delivered to the Governor the Charter of Justice with which he had been entrusted. He took the oaths of office, and the charter was published on 12th August, 1814. Macquarie wrote that he had every reason to believe "that this gracious measure of His Royal Highness the Prince Regent will prove highly beneficial to His Majesty's subjects in this remote and improving country."^[10]

Ellis Bent, however, was deeply mortified by the scant attention paid to his letters, and hoped that this was due to their late arrival when the charter had already been decided upon.

As the Criminal Court had yet to be reformed he thought it worth while to press his former suggestions, and to point out inconveniences that might yet be removed. Of these the chief was the establishment of two courts of concurrent jurisdiction.^[11] The division of duties between the Chief Judge and Judge-Advocate altogether was confusing, for the former had civil, ecclesiastical and equity, the latter criminal, admiralty and civil jurisdiction. A minor difficulty arose from the fact that the two civil courts would have to sit at the same time, thus requiring two court-rooms and the attendance of four "of the most respectable inhabitants of the Colony".^[12] He was strongly in favour of substituting an assistant judge for these members of the court, who found attendance a burden and were of little assistance to the judge.^[13] They were, indeed, either nonentities or obstructionists. Their lack of legal knowledge placed them at a fatal disadvantage when they disagreed with the judge, with the result that they gave an easy assent to his decisions, or if they persisted in opposition found themselves reduced to mere obstinate reiteration.^[14]

Bent repeated his recommendations for trial by jury in criminal cases, and thought that grand juries also might be introduced. As, however, there were not more than forty persons for this duty, he suggested as a more convenient method the practice followed in Scotland of trying cases on information filed ex-officio by law officers of the Crown.

The provision made for Van Diemen's Land he considered utterly inadequate.

There was one very disquieting feature in this letter. In 1811 the Judge-Advocate had pointed out that under the commission he held difficulties might arise between the executive and judiciary. In 1814 he made it equally clear that those difficulties had arisen. At the beginning of the year Macquarie and the Judge-Advocate had ceased to be on terms of personal friendliness, and at its close they were openly opposed on matters of official concern.

The ostensible cause of the quarrel was a difference in opinion as to the duties of the Judge-Advocate, but the real force pushing them apart, and making both ready to seize on any matter for offence, lay in their entirely different attitudes towards the emancipated convicts.

Writing to Commissioner Bigge in 1819, Macquarie gave the following account of his feelings towards them: "At my first entrance into this Colony," he wrote, "I felt as you do, and I believe I may add every one does—at that moment I certainly did not anticipate any intercourse but that of control, with men who were or had been convicts. A short experience showed me, however, that some of the most meritorious men of the few to be found, and who were most capable and most willing to exert themselves in the public service, were men who had been convicts! I saw the necessity and justice of adopting a plan on a general basis which had always been practically acted upon towards those people."^[15] The plan was that once free, whether by servitude or pardon, no retrospect should be held into any convict's former history, but that the emancipist should be placed on precisely the same footing as any other inhabitant of the settlement. Macquarie subscribed to this doctrine early in 1810^[16] and the Committee on Transportation gave him their hearty support.^[17] But they did so in ignorance of the practical deductions Macquarie had already drawn from it. Although he had spoken of Lord, Thompson and Redfern as "deserving emancipists," he had said nothing of the appointment of Thompson to the magistracy in January, and delayed announcing Lord's appointment in August^[18] Macarthur, who was in England, was astounded by the news. Until then he had been very favourably inclined towards Macquarie and was still ready to absolve him from blame.

"I urge," he wrote to his wife, "that the Governor has been misled, and involved in a mist through which it is impossible he yet can see, by the artifice and falsehood of some persons by whose opinions he would naturally be guided on his first arrival."^[19]

He laid the blame on Foveaux, who steadily denied any responsibility, saying that he cautioned Macquarie against both men.^[20] Bigge heard in 1820 that Foveaux had recommended Thompson, then Chief Constable at Windsor, as "a useful man," a recommendation not inconsistent with cautious treatment, and in no way implying that he would make a good magistrate.^[21] The appointment was a precipitate and remarkable one for which the whole responsibility belonged to the Governor.

In the case of both Lord and Thompson the measure was counter to colonial opinion. Reference has already been made to Marsden's views^[22] and those of Riley were similar. He declared "that there was no person capable of reflecting on the measure, who did not regret that the Governor had taken so premature and unexpected a step; and I think this sentiment has equally prevailed on the minds of the discriminating proportion of those who had originally been prisoners themselves, as among the inhabitants who came free into the Colony. The appointment^[23] unquestionably lessened the respect of the inhabitants towards the magistracy; it was viewed by the mercantile connections of the Colony abroad, and by every stranger who visited it, in the same light."^[24]

Thompson died just after his appointment, and beyond a supposition that "the Governor had formed too sanguine an expectation, and that it was unlikely he could have commanded the respect of the district,"^[25] there was nothing to be said of his magisterial capabilities. But Lord, though not lacking in natural sagacity, was ignorant and illiterate, and followed the trade of auctioneer and retail shopkeeper. These means of earning a livelihood were thought to be derogatory to the office of magistrate. His convict origin also was sometimes recalled by prisoners brought before him, and on such occasions unseemly reproaches passed between the Bench and the dock.^[26] Finally the irregularity of the private lives of both Thompson and Lord was notorious.

The circumstances of these two men have been thus discussed in detail because it was by their appointment to the magistracy that Macquarie first made known to the settlement the policy he intended to pursue. Had he selected more suitable men probably no opposition would have been roused. No complaint was ever made against the inclusion of the Rev. Henry Fulton in the Commission of the Peace, although he had been transported to the Colony. His crime had been suspected complicity in the Irish Rebellion, and he had borne himself in New South Wales with quiet self-respect. His convict origin seems to have been forgotten—that of Lord never was. The other emancipists who were most favoured by the Governor and were admitted to his table on public as well as private occasions, were Redfern, an assistant surgeon; Robinson, chief clerk in the Secretary's office and unofficial poet to the Government; Meehan and Evans, assistant surveyors; Lord and one or two others. Redfern, who had a large private practice, was on intimate terms with a few of his patients, but none of the others were ever invited to the houses of the "more respectable settlers".^[27] In 1812 Macquarie asked for the support of His Majesty's Ministers, and particularly for the opinion of the First Gentleman of Europe.

"Some men," he wrote, "who had been convicts, have been appointed magistrates by me;^[28] some of the same description of men have been honoured with his Majesty's Commission,^[29] which in my mind is alone sufficient proof of the eligibility of these persons to any society."^[30] He had found them zealous and faithful officers and ready to assist the Government on all occasions.

In 1813 he pressed the matter once more, and made the first of his bitter attacks upon those who opposed his policy. It was, he said, his invariable opinion "that once a convict has become a Free Man … he should in all respects be considered on a footing with every other man in the Colony according to his rank in life and character^[31] …; on the other hand, while a man is under the sentence of the law he is not eligible to be employed in any place of trust; he is incapable of holding a grant of land, and it would be highly indecorous to employ him as a juryman or in any other public situation of respectability. Persons may be found who … may say: 'Is not the man equally to be trusted as a convict, who can be trusted, having ceased to be one?' To this I answer that independent of the merits of the man … it is a disrespect to the Laws …. It is a necessary respect to the Laws that the sentence should be acted upon as long as it exists. No doubt many of the Free Settlers (if not all) would prefer (if they had their choice) never to admit persons who had once been convicts to any situation of equality to themselves. But … in coming to New South Wales, they should consider that they are coming to a Convict Country, and if they are too proud or too delicate in their feelings to associate with the population of the country, they should consider it in time. … No country in the world perhaps has been so advantageous to adventurers as New South Wales. The Free Settlers who have come out as adventurers have never felt their dignity injured by trading in every way with convicts … but further than it suits their interest to have intercourse with them, they would rather be excused. I must, however, in justice to the original Free Settlers, observe that … they are not all of one mind in this respect. Amongst them some few liberal-minded persons are to be found who do not wish to keep those unfortunate persons for ever in a state of degradation."^[32]

The Secretary of State agreed in cautious terms with the general principle, for he thought "perpetual exclusion" would be an obstacle to the reform of the convicts of the settlement. "But this principle," he continued, "may be carried too far, and I confess that I am not as yet prepared to say that it would be judicious, unless under very peculiar circumstances, to select convicts for the office of magistrates. The illiberal, though not unnatural, prejudice which you have had to encounter in your endeavour to restore meritorious convicts to their former rank in society would be still more violently excited by their elevation to the magistracy; and the hostile spirit which prevails between the two classes … if it did not influence the conduct of the magistrate himself, would at least diminish the respect and deference which ought to be paid to his decisions. A failure also in an experiment of this kind would not only render it difficult to recur to it again, but would confirm those prejudices against associating with convicts which I trust that time and a proper exercise of discretion on your part will ultimately overcome."^[33]

Before he left for New South Wales, J. H. Bent, in conversation with Goulburn, suggested that Lord Bathurst had not expressed his disapproval of the appointment of convict magistrates with sufficient distinctness, and received the answer that as "Governor Macquarie had adopted this policy without acquainting His Majesty's Government that he had done so, Lord Bathurst thought that those words would be a sufficient hint to him to withdraw from it, and that it would be fair to give him that opportunity of silently altering his system".^[34] Bent rightly doubted "from Governor Macquarie's known obstinacy of character, whether anything less than a positive command would be attended to," for Macquarie treated Lord Bathurst's letter as giving unequivocal approval to his policy.

"It has," he said, "afforded me the most sincere gratification to find … that your Lordship approves of my motives and conduct in regard to the re-admission to society of certain persons who had formerly been convicts. …" He proposed to be "particularly cautious" not to advance to the magistracy any person "who shall not appear … fully and respectably qualified". He considered that he had heretofore acted on this principle.

He thought at this time that the "illiberality of sentiment" of which he had complained was growing weaker, though those who still felt it were to be found in the higher class, "where a more enlightened and liberal sentiment might have been reasonably expected to be cherished".^[35]

It was unfortunate for the peaceful administration of the Colony that he placed Ellis Bent within this unenlightened class.

Macquarie made the protection of the emancipists his great work. He was their special providence, visiting with swift displeasure all who looked at them askance or were even indifferent in their cause. He was as zealous for them and for all that concerned them as ever a man could be for his own children. In every sense "respectable" himself, stiff and unbending in conduct,^[36] he easily condoned in this favoured class vices which would have deeply shocked him in others. He had, as it were, "discovered" the emancipist, and he had all the eager advocacy of a pioneer in the cause. Because Bent did not go so far as the Governor, the real liberality of his opinions was overlooked. He felt that "such persons ought not to be forced forward into office or society contrary to the current of general feeling; and that the early received and honest prejudices of others … are entitled to much regard and consideration". He disapproved of Simeon Lord's appointment because Lord had neither the respectability nor influence to make him useful as a magistrate, and Bent considered that his elevation "was as contrary to publick opinion as it was painful to my own feeling as a member of the English Bar".^[37]

To the Governor, on fire with the vision of leading the lost lambs of society back within its bounds, the Judge-Advocate's sentiments appeared in quite a different light. Macquarie declared himself "particularly hurt by the illiberal manner in which he had always treated persons who had at any time been convicts, however remote the period of their offences, and however meritorious their subsequent conduct may have been". From this course Bent had only deviated "in a few particular instances, where he found his pecuniary interest and other personal accommodation concerned, and on such occasion he is not at all scrupulous … which conduct shows that his motives in the one case or the other are not those arising from a strict sense of propriety."^[38]

The justification for this statement was probably the fact that Bent distinguished between friendly and business relations, and considered the latter separable from the former. Macquarie, however, made no such distinctions. He held a very exalted notion of his position as the head of New South Wales society, and had neither the education nor the natural good taste which would have induced him to distinguish one man from another in the ranks below him. But Ellis Bent was something of a scholar, and, with a delicacy of mind probably heightened by ill-health, shrank from intercourse with ignorant men of doubtful character such as Lord or Thompson.

The division of opinion between the Governor and the Judge-Advocate existed from the beginning, but for long Bent preserved a studious discretion and kept the subject in the background. In all that concerned the Charter of Justice they agreed, and in 1811 Macquarie urged that Ellis Bent should be at the head of the new judiciary. He spoke of him as having "most happily blended the mildest and gentlest disposition with the most conciliating manners, great good sense and accurate legal knowledge".^[39]

It was Macquarie also who recommended Jeffery Hart Bent, the Judge-Advocate's brother, to the Colonial Office.^[40]

In 1813 several causes for friction occurred. The Judge-Advocate complained unavailingly of the small size of his court-room.^[41] The Governor complained that the Judge-Advocate failed to rise with the rest of the congregation when he, the representative of the Crown, entered the church. In November a Government and General Order, signed by the Major of Brigade, forbade "any officer on the civil or military staff of the Colony residing at head-quarters … ever to absent himself from thence for a whole day or night without previously obtaining the Governor's permission".^[42] Bent, not considering that he was comprehended in such an Order, took no notice of it. Macquarie sent for him, and an angry interview was the result. The Governor said it was Bent's duty to wait every morning at Government House to receive his commands, and "unequivocally informed him that he considered him as an officer on the Civil Staff".^[43] Bent replied that he was not bound to obey the Order and "that he was not subject to military discipline".^[44] He was indignant that he should be treated merely as a "subaltern officer—a mere cypher—a person sent out simply for his (Macquarie's) convenience and merely to execute his commands".^[45]

Such was the state of their relations when the tempestuous presence of Jeffery Bent tore them further asunder.

He was younger than his brother and had been six years at the Bar. He was hot-tempered, abusive when roused, and quick to resent a real or fancied slight. During the three years he remained in New South Wales he waged unceasing war, and his behaviour was scarcely that of a normal man. Loyalty and affection for his brother appear to have been the only gentle aspects of this enraged judge, and never had any Governor to deal with so angry an official. Before he left the Colony every spark of opposition in the length and breadth of the land had been fanned into flame. Under his malevolent eye no abuse could slumber, and under his watchful care was fostered a fresh growth of political activity which bore plentiful fruit in succeeding years. Yet he was moved by no high ideal nor steadfast principle. He was not in any way a vicious man. In all the disputes in which he engaged, wherein many hard things were said or implied against either side, there was never an accusation against his honesty or his sobriety. The primary elements of his character were a domineering temper, an overweening conceit and a love of opposition. If he did in fact give his support always to the weaker side, this was not so much because he hated oppression as because he breathed hot enmity against the Governor and the Government.

He had scarcely left England before his troubled spirit found an inattention of which to complain. He was disappointed that he had not been presented to the Prince Regent and received "the honour usually conferred upon professional gentlemen filling similar positions to the one I now hold". He had desired the honour not for himself but in order that "the character of the Colony might be raised a little in the eyes of the world".^[46] The reply was that the honour of knighthood was not usually conferred in such cases, and that as the Judge-Advocate was "for various reasons" to remain the head of the judicial establishment, there would in this case have been particular objections to such a course.^[47] Thus a grievance existed before the new judge reached land, and he was not long in finding another. "Mr. Jeffery Bent applied to me on his arrival," wrote Macquarie, "to furnish him with a house in Sydney at the expense of the Crown^[48] … considering himself entitled to that accommodation by virtue of his commission as judge".^[49]

The Governor knew that Indian judges were not furnished with houses, and refused Bent's request. But he offered to hire a house for him and await the decision of the Colonial Office if the judge would promise to refund the rent paid by the Government in the event of the decision being unfavourable. "Mr. Bent," wrote Macquarie, with an abruptness which suggests that the battle between them had already been joined, "has declined these terms." The judge took up his quarters at Ellis Bent's house (which was provided by the Government) and remained there for the next two years. His next demand was for chambers, which he said were always allowed to English judges in distant settlements; Macquarie acceded to this request, "in order," he said, "to accommodate him as far as I felt myself justifiable". After that the Governor doubtless expected to carry his plans for the court-house without further opposition. In 1813 it had become clear that if another court was to be established, the Judge-Advocate's office would not provide sufficient space. Macquarie proposed to build a court-house, and a voluntary subscription list was opened which the Government headed with £500. The cost of the materials Macquarie calculated at £5,000, and he wanted a Parliamentary grant of £2,000 to help out the subscriptions. The labour was to be supplied by the convict gangs. Although tenders were called for and accepted, the whole project was abandoned in November, very much to the disgust of Ellis Bent, who blamed Macquarie for not "withdrawing the artificers and labourers from other public works".^[50]

In 1814 the Governor put forward a new plan. The hospital was almost completed and was on a scale far too extensive for present needs. It consisted of a main building containing four large wards, and two detached wings of considerable size intended for the residences of the chief surgeon and his two assistants. Macquarie thought that half of the main building—what he called "a wing of the hospital," should be appropriated for the sittings of the courts. The Colonial Office, as well as the Bents, took this to mean one of the detached wings, and agreed that the arrangement was a suitable one. But when the judges discovered that Macquarie meant to use two of the hospital wards they were very indignant. After a long discussion the matter was referred home, but it was of course too late to make any alteration in Macquarie's plans, and His Majesty's Court of Justice were "compelled to sit in the wards of a common hospital".^[51] Goulburn, writing to Bent in 1815, hoped that this minor matter would not disturb his "cordial relations" with the Governor.^[52] Alas, their cordial relations have long been broken past repair.

Close upon the court-rooms dispute had followed the Judge-Advocate's retirement from the Magisterial Bench and his quarrel with Macquarie over the Port Regulations.

"From the earliest establishment of this Colony," wrote Macquarie, "it has been the invariable custom for the Judge-Advocate to preside (when his health permitted) at the Bench of Magistrates at Sydney, and Mr. Bent continued to do so from the time of his arrival until the 31st of December last."^[53]

When the Book of Proceedings was laid before Macquarie on the 31st of December he read the following entry: "On this day the Judge-Advocate stated to the magistrates that a due attention to his leisure, his health, and the other functions of his office, rendered it necessary for him to decline presiding at their meetings in future". He had told the Governor nothing of his intention to withdraw, though he had probably formed it some time beforehand. "Notwithstanding it has greatly interfered with my other functions," he wrote to Lord Bathurst, "and was in my opinion improper that the Principal Judge of the Criminal Court should perform the ordinary duties of a Police Magistrate, a wish to render myself as useful as possible has induced me till of late to preside at the weekly meetings of the magistrates."^[54] He was, however, thoroughly dissatisfied with the position assigned by the Governor to the magistrates, and with the fact that he was not consulted as to their appointments or in reference to Orders concerning them published in the Gazette.^[55] The Order of the 10th December, 1814, had deeply offended him.^[56] He had indeed made a fruitless protest to the Governor, who "seemed to consider that my feelings were too acute, and added that he would cashier any magistrate who would not attend to his Orders".^[57]

The office in which the Bench met was small, the time mid-summer, and the Judge-Advocate in bad health. It was natural enough that he should wish to give up this extra duty, though his manner of doing so could hardly help giving offence to Macquarie. But Bent was afraid that, should he mention his intention, the Governor would "misconstrue the communication and consider me as applying for permission to do that which I conceive His Majesty's Charter placed within my own discretion".^[58] His retirement was followed by a stormy but resultless interview, and an Order was published in the Gazette which announced that the Judge-Advocate had thought fit to decline presiding for the future at the weekly meetings of the Bench.^[59] This announcement, curt and unfriendly in tone, was the first public indication of the strained relations between them. On the day on which he ceased to preside on the Bench the Judge-Advocate sent to the Governor his Observations on the Port Regulations.

These Regulations formed the special Trade and Navigation Laws of the Colony. In October, 1810, Macquarie had re-issued those of his predecessors, but in 1814, in view of the opening of the ports, he decided to issue a new edition. He sent a rough draft to the Judge-Advocate for his "revisal and correction". For nearly twelve months pressure of work and illness delayed the task. But on the 31st December the Governor received from Bent a Report on the Regulations which was little likely to please him. Instead of a corrected proof wherein exact legal point was given to the layman's English, he received a criticism condemning practically all the new clauses in the draft.

After considering each clause and noting its defects, Bent proceeded to add some "General Observations".

"Having given much attention to this subject," he wrote, "I may venture to express my opinion thus: the laws enacted at different times by the British Legislature for regulating the trade with the plantations, should be the basis of the Port Regulations here. That they are supposed to apply to this Colony is sufficiently clear, because every Governor, previous to assuming his Government, is commanded by his Commission, to take an Oath for the due execution of them; and I may further add that they cannot be legally altered or dispensed with by any authority short of that of the British Legislature.^[60] … Those laws are much more ample in their provisions on almost all points mentioned in these regulations themselves—which if they are considered as comprehending the whole law of the Colony on this subject are very defective, as they totally omit several important matters, and from the unavoidable looseness with which they are worded afford but too many loopholes through which offenders may escape, as it is a known principle of our laws that all penal laws must be construed strictly, and no offender punished unless he is brought within their very letter. To introduce an abbreviation of the laws relative to the plantations in the Port Regulations would be a work of great labour, would swell them to an enormous size, and might be attended with the mischievous consequences which would result from any inadvertent omission. For these reasons I consider it more advisable simply to notify the masters of ships that in their trade and intercourse with this Colony they must govern themselves by those laws of which they cannot plead ignorance. The local purposes of the Colony undoubtedly demand consideration, but in providing for them the liberties and conveniences of others, should be as little restrained as the nature of the case will admit. Local circumstances, so far as they are connected with this subject, seem to be confined to the provisions necessary to adopt to prevent the escape of convicts and the indiscriminate importation of spirituous liquors; and excepting such provisions as may be necessary on these accounts, I see no reason why the intercourse with the Colony should not be on the same footing as the rest of His Majesty's foreign dominions. I know of no Act of the Legislature which directs otherwise."^[61]

Macquarie attempted to combat Bent's legal argument by the usual resort to "the peculiar circumstances of the Colony". If it should happen that any of the regulations were contrary to a statute, then "the Port Regulations should be considered as the Warrant of Authority".^[62]

As Bent persisted in his refusal to correct the draft, Macquarie began to lose his temper. On the 9th January he wrote, "I was very much chagrined and disappointed to find on conversing with you this day on the subject of the Port Regulations of this Territory, that you were unwilling to frame them in the manner and on the principle proposed by me in the manuscript draft I had some time since the honor to submit for your revisal and correction, on the plea that you did not conceive the proposed regulations were warranted by the law. In this opinion I must beg leave to differ from you …; and as you are the only Law Officer now here belonging to the Crown, I must still call upon you, in this official manner, to revise and frame the proposed Port Regulations … so as to enable me to publish them with as little delay as possible. … Trusting you will see the propriety on more mature reflection of complying with my present request, and thereby prevent my being compelled to resort to the unpleasant alternative of making a reference to His Majesty's Ministers on this subject,

"I am, etc.,"^[63]

Bent took a rather high line in reply—

"His Majesty," he wrote, "has been graciously pleased to confer upon me the offices of Judge of the Court of Vice-Admiralty and Judge-Advocate in this Territory. By virtue of the first office I have to exercise various and important judicial functions. By virtue of my office as Judge-Advocate I am a magistrate throughout this Territory, and have to officiate at general Courts-Martial whenever called upon by your Excellency, to preside at the Chief Criminal Tribunal in the Colony, at one of the Civil Courts of the Territory, and judicially to assist at the Court of Appeal. To these duties I may also add that of giving my legal opinion to your Excellency on such matters as you may think fit to submit to me for that purpose. These various duties are as much as one man can properly perform, and I hope are sufficiently laborious to excuse my declining other labours not distinctly attached to my office and which I never did or could imagine would be required of me.

"I have," he continued, "to the utmost of my ability, furnished your Excellency with my observations on the proposed Port Regulations, and beg leave to say that some of these deviate so much from the known laws of the realm that I do not think they can be legally enforced on your Excellency's authority alone. … If your Excellency … chooses to take … the responsibility of acting contrary to my opinion, I think it becomes a delicacy due to my judicial character to select some other person to draw them up; for … I cannot in the due discharge of my duty to my Sovereign or to my conscience consent to attempt to give legal form to that which is illegal, or to frame or draw up regulations many of which in the due exercise of my functions as a judge, and with proper regard to my oath to administer justice according to law, I cannot enforce in my judicial capacity. … Your Excellency will excuse me for saying that your orders would be no justification to me in my own eyes or in the opinion of His Majesty's Ministers, more particularly if I am right in my opinion that it is no part of my official duty to draw up your Excellency's Regulations.'^[64] Macquarie had no answer to make, and could only refer the matter home.^[65] A few months later Bent also appealed to His Majesty's Ministers, reviewing very fully the Governor's exercise of legislative powers and making a powerful plea for its restraint. "My Lord," he wrote, "I feel it my duty humbly to offer my opinion … that when there is reason to suppose that local circumstances require extraordinary deviations from the Laws of England, that the Governor should first point out those circumstances to His Majesty's Ministers, and that the remedy should come from that quarter which can alone give it legality. But that a Governor of New South Wales of his own authority, implied from but by no means granted by the words of his Commission, should make laws imposing penalties of £500, or hard labour at the coal mines for three years, upon free British subjects, to be inflicted at the discretion of magistrates, … is a circumstance which I cannot but consider to be wholly unknown to His Majesty's Ministers^[66] … in far the greater number of cases this power is exercised without the smallest reference to His Majesty's Law Officer and without any inquiry how far the Law of England may have provided for the subject matter of them,^[67] and they are not regularly registered in any of the Courts of Justice here nor … submitted to His Majesty for approval.

"I hope that I am not presuming too much when I express a humble confidence that it never could be intended that so vast a power should be placed in the hands of any one man without the smallest provision against its abuse; a power which, as far as this Colony is concerned, and under the bare pretence of local circumstances, I will be bold to say sets the Governor of New South Wales above the Legislature of Great Britain, and at once resolves the rule of action here into the mere will of the Governor, a will not subjected to any previous advice or controul."^[68]

So far as these considerations affected him as a judge he had no longer any doubts. "I am now convinced," he wrote, "that it is impossible for me, unless some alteration takes place in the opinions and conduct of Governor Macquarie, honestly and uprightly to perform my duties under such a commission without a total sacrifice of my peace of mind and injury to my health, already much broken." He asked that "with the functions of a judge" he should also have the title, and "that independence of the Colonial Government which … is so essential to the upright execution of my office".

Macquarie's exasperation compares badly with Bent's dignity. He wrote that Bent was "insubordinate and disrespectful," and that he would have suspended him or sent him to England had there been any one in Sydney capable of performing his duties.

At the same time the Governor's faith in the Port Regulations had been severely shaken, and he transmitted them both old and new for the opinion of the law officers of the Crown.^[69]

The Colonial Office had to deal with this dispute together with the difficulties arising over the emancipist attorneys, and their action must be considered with a knowledge of both.

By February, 1815, all but official intercourse between Governor and Judges had come to an end. The court-rooms at the hospital were ready for use, and that fact "had been officially signified to Mr. Justice Bent."^[70] The Governor had taken that opportunity to suggest "the expediency and necessity of appointing an early day for the opening of the Supreme Court". Bent declined to do this until Mr. Garling, the solicitor, arrived, a reason which Macquarie characterised as "very frivolous and ridiculous … as it is very possible that Mr. Garling may never arrive at all in this Colony, and as there are several attorneys (exclusive of Mr. Moore, the solicitor, already arrived) here who have hitherto practised before the former courts … but," he added ruefully, "as I have no control over Mr. Justice Bent, in virtue of the new patent, I can only remonstrate with him … which I have already done more than once without effect".

The pretext was not really a frivolous one. The presence of the two solicitors sent out by Government would have been invaluable to Bent in the coming struggle. But Garling's arrival was so long delayed that finally the opening of the courts could be no longer postponed.^[71]

It was true that there were other attorneys in the Colony, and the conditions under which they practised have been already described.^[72] Moore and Garling had been encouraged to emigrate, and given salaries by the Government for no other reason than to bring to an end the employment of these convict attorneys.

The chief was George Crosley, who had for a long time held the whole of the law business of the Colony in his hands. But a year before J. H. Bent's arrival, Eager, another convict, had entered into competition with him, and in the last term of the old Civil Court, Chartres had appeared for the first time. J. H. Bent thus described the three men.

"George Crosley was struck off the rolls of the court of King's Bench and transported to this Colony for perjury. …^[73] Eager has been transported here within the last six years for forgery, and has never, as far as I can learn, been admitted an attorney of any court. And Chartres has been sent here for a species of the crimen falsi within the last five years, and at the moment keeps a public house, and both,^[74] are under the sentence of the law."^[75]

The new judge had heard of these men from his brother before he left England, and had endeavoured without success to obtain a definite statement from Lord Bathurst "with regard to the practice of the convict attorneys".^[76] In the Colony the divergent views of the Governor and the Bents were well known, and trouble was probably anticipated. On the 22nd April the first sittings of the new courts were summoned, and the Governor's precept appointing Hook and Brooks as members of the Governor's Court, Broughton and Riley as members of the Supreme Court, was published on the same day. The Supreme Court was to meet on the 1st May and the Governor's Court on the 8th.

The emancipist attorneys decided that to appeal straight to the courts was dangerous. They looked upon the Governor as a higher authority and sought his support first. Macquarie explained the situation in an official letter to J. H. Bent dated 18th April, 1815.

"I have," he wrote, "lately received memorials from some of those attorneys who have hitherto been allowed to practise in the line of their profession in the Courts of Civil Jurisdiction … who being now apprehensive that it is in contemplation to exclude them from that indulgence in the courts about to be opened under the new patent, solicit my interference in their behalf." He supported their claim on two grounds. One was that their exclusion would bear hardly on those of their "constituents" who were out of the Colony and whose causes were pending. The attorneys would suffer too, for they asserted that they had already advanced large sums in these cases. The other reason was that exclusion without specific cause would cut them off from all means of obtaining a livelihood by the practice of the profession in which they had been brought up.^[77]

Macquarie thus altogether ignored the real point at issue, which was whether men struck off the rolls in England could properly continue in an English Colony to practise the profession they had disgraced. Bent, of course, was furious.^[78] Though in comparison with later correspondence the tone of his answer is calm, there is in it no sign of yielding. "As I am under the necessity," he wrote, "of seeing the subject in a very different light from that in which it is viewed by your Excellency, and therefore of withholding my assent to the application of those petitioners, the respect which I entertain for your Excellency makes me feel it desirable to lay before you the reasons by which I am influenced."

By the Governor's support of the petitions he felt himself "placed in a most unpleasant and delicate situation, and the other members of the court, in coming to a judicial decision, will be subjected to the operation of an influence which ought never to be applied to, and is inconsistent with the independent deliberation of an English Court of Justice. I mean the open, avowed and direct communication of the opinion of the Executive Government on a point under judicial discussion. I am perfectly alive to the importance of a candid union between the Executive and Judicial Departments in this Colony, but I must observe that the functions of each are distinct and should be exercised without collisions, and therefore I cannot but think the conduct of the Petitioners most blameable, highly disrespectful to the courts of which they wish to be admitted as attorneys, and calculated to occasion divisions between the Executive and Judicial Departments, by requesting your Excellency in a most unprecedented and unprofessional manner to exercise undue influence in their favour with the Supreme Court; thereby insinuating most unworthily and manifestly that the court would grant to the recommendation of your Excellency what they would not grant to the merits of their respective cases."^[79]

This description of the facts was perfectly accurate, and Bent proceeded to drive home his points in workmanlike fashion. The petitioners (and by implication the Governor) appeared to be ignorant of the law which gave to each court "the discretion to admit or strike off the roll of their attorneys such persons as they may think worthy or unworthy". Were men so ignorant of their profession to be allowed to practise it?

But that was a small matter in comparison with others. There was, for example, the fact that the petitioners omitted the important fact that they had been transported for the crimes of perjury and forgery. Yet these were the facts on which the whole case turned. Crosley and Eager (and again, by implication, Macquarie also) had disingenuously omitted all mention of them.

The injury, he proceeded, to distant clients was materially lessened by recalling that under the rule of 1812 the emancipist attorneys had practised on sufferance, only until other provision might be made. There might even be a doubt whether any such clients existed, for their names had not been given.^[80] The story of the money which had been advanced he treated with frank scepticism. Was it likely, he asked, that Eager, for example, who had been in the Colony less than six years, should be in a position to advance large sums? But if he had done so, he had done it knowing how small were the probabilities of his being allowed to practise when free attorneys had come out under the sanction of the Government. His concluding words were decisive.

"In a word," he wrote, "it is my object and my duty to render the Supreme Court of Judicature in this Territory as respectable as possible, in the eyes not only of the Colony, but of the world—an object which must be defeated by my compliance with the Petitioners' request. In no other part of His Majesty's dominions would they be allowed to practise as attorneys, and whatever reason may have existed before this time for extending such an indulgence to them, none can be now pretended to exist after the liberal provision which His Majesty's Government have made for this purpose by the appointment of respectable solicitors at a considerable expense to the Crown—an appointment which would be rendered wholly unnecessary by granting the Petitioners' application."^[81]

The Governor made no reply to this letter, and when the court met on 1st May he was making a tour in the Blue Mountains from which he did not return until the 19th of the month. He thought that the admission of the emancipists was assured, for whatever Bent might think, the two magistrates who were to sit with him had seen the Governor's letter and stated their agreement with its contents.^[82] However, matters did not go as smoothly as he had anticipated.

At its first meeting the court decided to hear the petitioners on 6th May. On that day Crosley and Chartres were heard, but Eager was ordered to prepare a new petition, his first one not being properly drawn.

On 9th May, Bent held a consultation with the other members of the court and attempted in vain to bring them over to his view. He argued that "If … those who had been convicts were admitted, how would it be possible to refuse to admit any persons coming from England or Ireland struck off the rolls at home, or of bad conduct and with the fear of it before them. Such would naturally flock here; and if it is not possible for the judges at home, with the assistance of an honourable and learned Bar, and every means that attorneys and officers habituated to correctness in business can give, to prevent the frauds and mischiefs which individuals suffer from the mal-practices of those who are a disgrace to the profession and a menace to the public, how could judges here without such assistance or means of prevention guard against the chicanery and the never-ceasing tricks of those who have been expelled their profession and transported here in punishment of their misconduct." He did not, however, desire to give the two solicitors sent by the Crown a perpetual monopoly. "The rule I should have proposed to adopt was the rule in India, viz., that all admitted attorneys in England or Ireland, or articled clerks to such, bringing with them their certificates of good conduct, and all persons who had been articled clerks to attorneys admitted here, should be admitted attorneys of the respective courts; and that without any limitation as to number. …"^[83]

Broughton and Riley, the two men whom he tried to convince, were of very different calibre, but alike in knowing little of the law. Riley, who has been frequently mentioned, and who was the chief witness before the Committee on Gaols in 1819, was a successful merchant and an honest, straightforward and intelligent man. He was not in any respect dependent on the Governor's favour, but did in this case hold the same opinion. He had sat many times with the Judge-Advocate in the Civil Court, and had not once dissented from his views.^[84] Broughton, who had begun his colonial career very low down on the Commissariat Staff and slowly risen to be Deputy-Commissary General,^[85] was a burly, blusterous man, ignorant and blunt, but nevertheless a great favourite with Macquarie. Riley was under no obligations to the Governor and was soon afterwards sharply opposed to him in a matter of trade,^[86] but Broughton was very much under Macquarie's influence.

On neither could Bent make any impression. "The statute 12 Geo. I., cap. 29, s. 4" and "the case ex-parte Brownsall," they passed over to dwell upon the Report of the Committee on Transportation which set forth Macquarie's principle "that long tried good-conduct should lead a man back to the rank of society he had formerly filled," leaving out, said Bent, the next words, "as far as the case could admit".

"Without inquiring," he wrote, "what shall be the marks by which to discover long tried good-conduct, or whether the mere circumstance of not having been brought before a Criminal Court in the Colony is a proof of it—I may safely assert that the good-conduct of the persons in question, … had neither been long nor tried."

The two magistrates told him that the local circumstances of the Colony made it necessary to deviate from the strict custom of other countries. "The local circumstances of this Colony," he replied caustically, "have from its first formation been an excuse for every illegality that caprice or ignorance could dictate. …"

Finding them immovable in their opinion, Bent felt himself "obliged to come to a determination to refuse to admit or swear in persons so circumstanced, and to declare that if the attempt were persisted in to force them upon me, till His Majesty's pleasure should be known, I should be compelled to discontinue the sitting altogether".^[87]

Riley and Broughton declared that Bent wished to make a rule of general application altogether excluding emancipists from practice.^[88] Bent on his side declared that it was the magistrates who "endeavoured to mix a general abstract principle with the case before the court". The fact was that Bent placed before them the general principles by reason of which he proposed to reject the petitions in question, and that the magistrates confused the premises and the conclusion.^[89]

The court met again on 11th May without having agreed upon their course of action. W. H. Moore, one of the Government solicitors, as he and Garling were called in the Colony was admitted, and Bent administered the oaths. Crosley then attempted to address the court. The judge declared that he had been heard already, and after a hot dispute he was forced to desist. Bent then pointed out to the court that the petitions of Eager and Chartres were inadmissible as neither of them had ever been admitted as attorneys. The issue was thus narrowed and the case of Crosley alone remained in question. Bent stated his determination not to admit him or any persons of his description. Broughton was undecided about Crosley, but would not exclude all such persons. Riley concurred in this. The judge made a violent speech, flinging accusations against the good faith and the characters of the two magistrates on the Bench beside him. As soon as the court adjourned Riley and Broughton drew up a report of the whole affair for the Governor. They refused to sit with Bent again, and resigned their appointments as members of the Supreme Court. But the Governor refused to accept their resignation and the court met again on 25th May. A few minutes' talk in the judge's chambers showed that no essential change had been brought about by the adjournment. Broughton was more eager than before to express his views, and signified his intention of making a speech in court. Bent proposed that further discussion should cease until His Majesty's pleasure be known. The case of Crosley, which the magistrates had considered a doubtful one the week before, might stand over, and as Garling would soon arrive no inconvenience need be suffered. The compromise was a fair one and should have been at once accepted. The fact that it was not was due to Bent's violence on the 18th May, and Macquarie's zealous encouragement of the magistrates after his return from the country.^[90]

When this moderate proposal was refused and Broughton persisted in his intention to address the crowd in the courtroom, Bent refused to open the proceedings at all and sent his clerk to adjourn the sitting, for without the chief judge the court could do nothing. At first the two members declined to adjourn and threatened to commit the clerk to gaol. Finally they gave in, and the ridiculous scene came to an end.

The Supreme Court never again sat under the presidency of Jeffery Hart Bent. For two years the judicial interregnum lasted, and Bent, the first Supreme Court Judge of Australia, never heard a cause nor delivered a judgment.

It is difficult to say what other course he could have followed. Diplomacy and conciliatory speech might have done much, but the Governor would only have been satisfied by Crosley's admission, and it was the Governor who was Bent's real antagonist. Had the judge given way and admitted Crosley, the principle of the admission of emancipist attorneys would have been established, and there is no reason to believe that the Colonial Office would have interfered afterwards to reverse it.^[91] Yet even Riley saw that he had committed an error of judgment. "I am compelled to admit," he said, "that during this period^[92] I had occasion to observe that numbers of the very class of men [whose cause] I had strenuously advocated, acted with so little consideration towards each other during the suspension of the law, and took such advantage of the merchants and those to whom they were indebted, that I could not but regret the line I had pursued."^[93] He would not say definitely that the admission of emancipists would have been actually mischievous, but only that it was "advantageous to the territory that there are sufficient free solicitors … to enable the courts to proceed without resorting to that necessity," and that it was "desirable that not any persons should now officiate in the courts, who have not gone free to the Colony".

Amongst the convict and emancipist population the emancipist attorneys had considerable popularity. This was born partly of long intimacy and private association, but it was increased by the mode they adopted of charging their clients. The emancipist attorney took a percentage on the amount recovered in place of ordinary fees, and was therefore willing to undertake risky suits at no expense to his clients. So long as the fees of the courts went to the judges this practice was to their advantage also, for certainly it augmented the number of cases brought before them!^[94]

In the Governor's Court matters took a different turn. As the procedure there was summary, and suitors were not called upon to employ solicitors, and as the amounts recoverable were below £50, the emancipist attorneys were less eager for admission and did not seek the Governor's intervention. They knew too that the Judge-Advocate was opposed to them, and when the court met after a short postponement on 15th May, there were no petitions for admission brought before it. Associated with Ellis Bent were Richard Brooks and Charles Hook, both respectable and undistinguished colonists. They agreed at once to the adoption of the rules proposed by the Judge-Advocate, of which the first ran as follows:—

"It is ordered by this court that no person whatsoever who has been struck off the rolls of attorneys of any Court of Justice in any part of His Majesty's dominions for any offence for which such persons are liable by the Laws of England to be transported, shall on any account be admitted to practise as an attorney of this court."^[95]

The court then proceeded to hear suits brought before it. A month afterwards Macquarie asked for a copy of the Rules and Regulations, "conceiving myself entitled," he wrote, "to such information from you according to the tenor of the new patent".^[96] Since the 22nd of April he had known that the Judge-Advocate concurred in his brother's opinion,^[97] and had of course heard of the rule which had been passed in the Governor's Court.

Ellis Bent sent the copy asked for, but added, "I respectfully beg leave to be understood as by no means admitting a right on the part of your Excellency to controul that court in the adoption of such rules as it may think proper to form as the basis of its practice".^[98]

The closing of the Supreme Court created great commotion. The emancipist attorneys proposed to hold a public meeting, and brought a requisition to the Provost-Marshal. But when it was laid before the Governor, he felt that the signatures were not of sufficient weight to justify him in allowing the meeting to take place. Simeon Lord was the only magistrate who had signed the requisition, and of the eight others five had been convicts. An attempt was made to secure the support of "more considerable persons," but without success, and no meetings were held. The purpose of the meeting as described in the first requisition was "to inquire into the circumstances which had taken place in the Law Courts". In the second it was more obscure, for the meeting was "to inquire into the Judicial, Commercial and Agricultural state of the Colony". Meanwhile a very extraordinary correspondence took place between Macquarie and Jeffery Bent. It was commenced by the former on the 29th May, ten days after his return to headquarters. He had been surprised at not receiving a personal communication from Bent, but had learned of the differences which had arisen, and of the closing of the court, from the other members. As a Civil Court had not sat for ten months,^[99] "the security of persons and property, and the best interests of the Colony" both internal and external, were being seriously affected. These matters had apparently escaped his attention while he had allowed "points of minor importance" to frustrate the great design "for which," added Macquarie, in a sentence admirably suited to inflame the temper of the judge, "I had assembled the Supreme Court".

"I cannot," he proceeded, "forbear to express to you that I feel much surprise, mingled with sentiments of regret" (a constant combination of sensations in Macquarie), "that you have not made me as Governor of this Territory any official or other communication on this very important occasion, the publicity of which could leave no doubt of its existence. If official duty had not imperiously demanded a prompt communication, I should have been disposed to expect it even as a point of courtesy … in our relative situation in this country." He felt bitter chagrin that he had himself to open a correspondence which he had hoped would "long ere this have commenced on your part, as well from a sense of personal respect as from the more distinct feeling of its being a duty incumbent on the Principal Judge of the Supreme Court to make me a report on an event wherein the Colony at large is so deeply interested".^[100]

Bent replied with considerable zest. If the Governor had to complain of discourtesy, Bent also had to lament the "unprecedented disrespect and indignity with which as one of His Majesty's Judges" he had been treated. It was not a matter of minor importance "whether persons so peculiarly circumstanced as George Crosley, Edward Eager and George Chartres should be solemnly accredited, not to this Colony but to the whole world, as in every respect fit persons to be entrusted with the management of all legal concerns whatever … when I well know that it is an object of numerous Acts of Parliament, and of the regulations of all His Majesty's Courts of Justice, to do all that lies in their power not to admit as attorneys those whose characters were disreputable or suspicious". But this matter had been already discussed, and he turned from it to a more particular criticism of the Governor's communication. It was not his duty, and he had not considered it expedient, to report the differences which had arisen on a subject which the Governor had already prejudged. "My functions," he continued, "are entirely distinct from those of your Excellency, and in the exercise of them I am not accountable to any but to those to whom your Excellency is also accountable; I am not placed under your Excellency's command either by the tenor of my commission, by His Majesty's charter, or by any official instruction from His Majesty's Ministers". Macquarie had assumed a superiority and a right of command over him which he did not legally possess and to which Bent refused to submit. The only effect of such a tone and language, he went on, was to produce a useless irritation of his feelings. The Governor had, by the charter, no legal right to assemble or adjourn the court, nor had he any right to refer to Bent as the "Principal Judge of that Court". He was, on the contrary, the only judge, and was denominated "The Judge" in his commission and in the charter. In that connection the Governor had been guilty of a grave discourtesy in not addressing him as "The Honourable" which was as much his title as "His Excellency" was the Governor's.

"Can your Excellency," he continued, "really expect that I should under these circumstances make a communication to you from motives of cordiality and courtesy, which I am not bound to do officially, on the very point wherein your Excellency's conduct towards me has been so deficient in the delicacy, the etiquette, and the courtesy due to my rank and station? or that I should make an appeal to you^[101] on a matter in which you not only formed but publicly expressed an opinion so opposite to my own? I have felt that on this subject, tho' from my commission I am peculiarly entitled to your Excellency's confidence, I am wholly without your Excellency's support; although I have every reason to believe that the steps which your Excellency has taken were without the knowledge and against the wishes of His Majesty's Ministers.

"Feeling it to be inconsistent with my dignity and independence as a judge to submit to any interference, or investigation, into my judicial conduct on the part of the Executive Government of this Colony, I shall decline entering into any further discussion with your Excellency on this subject except we are understood to meet on terms of equality and independence of each other: and have only to add that I have submitted to the magistrates in question such terms of accommodation as they may accept without compromising their own opinions, and which, if they refused, I shall be justified in considering that an improper attention to the interests and feelings of Mr. George Crosley (my own feelings being considered as a matter of minor importance) is the sole cause of the mischiefs and inconveniences which will result from the interruption of the proceedings of the Supreme Court. I beg to assure your Excellency that I shall be always anxious to evince my personal respect and to do all in my power that can contribute to the welfare of your Excellency's Government, and sincerely lament that any difference should have arisen to disturb our cordiality, which I shall be happy to restore in any way not inconsistent with my own honour, that of my profession and my station."^[102]

In reply Macquarie proposed to discontinue a correspondence which would probably subject him to further insult. While thus securing the last word he referred very shortly to Bent's letter as being in many parts inconsistent and containing many insinuations "as unjust as they were illiberal".^[103]

Both judges and the Governor immediately referred the whole correspondence to the Secretary of State, each adding to the enclosures characteristic explanations and comments. Ellis Bent put the whole position with such lucidity and moderation as to be well worth quoting.

"It must also be considered," he wrote, "that offices are not made for the individuals who may be selected to fill them, but for the benefit of the publick; and to answer the purpose of their institution the respectability of their characters must be supported; it is not sufficient to them that the habits of a person convicted of felony have been so far improved as to qualify him to exercise the office of magistrate or the duties of an attorney with propriety, but it is necessary also to be satisfied in the one case that the character of the office, in the other that that of the court, may not be injured by the introduction of persons so circumstanced. A long exercise of the duties of a magistrate in this Colony enables me to say that the character of the magistracy has been much injured by the introduction into it of persons who came out as transports to this Colony; and I am sure that respectability of the Courts of Justice will be utterly destroyed if a similar class of persons be admitted as attorneys."^[104]

The estrangement between Macquarie and the Bents remained complete. In October the Judge-Advocate became so ill that Macquarie agreed to allow him leave of absence in order to try the effects of a long sea voyage. Jeffery Bent at once offered his services as Judge in the Criminal Court. He was willing to act under the Governor's warrant, but as he might incur a heavy responsibility by so doing he proposed certain restrictions. The principal one was that the sentence of death should not be executed until the pleasure of the Prince Regent should be known.^[105]

Macquarie refused his offer. "The disposition you have so openly manifested to counteract my public measures," he wrote, "and treat my authority with marked disrespect, would of itself be a sufficient objection to my appointing you to that office, but independent of so strong an objection I should consider it as highly irregular as well as illegal, your officiating as Judge-Advocate; the duties of that office being in my opinion quite incompatible with those of the office you hold as Judge of the Supreme Court of Civil Judicature."^[106]

To the Colonial Office the Governor wrote that the postponement of the execution of death sentences would have rendered altogether nugatory the purposes of a Criminal Court.^[107]

No arrangement had been made for holding the Criminal Court when Ellis Bent's departure was first postponed and then put off altogether. By the end of October his disease so much increased that all thought of the voyage was given up. On the 10th November, 1815, he died at Sydney in his thirty-second year. Macquarie would not forgive him, but he tried to be just. "I still feel," he wrote to Lord Bathurst, "that I should write to your Lordship in those terms which his administration of the law in his official capacity here seems to me to merit."^[108]

Jeffery Bent wrote in a strain of sadness not without dignity, and the Colony mourned sincerely the loss of the young Judge-Advocate. Poems to his memory were printed in the Gazette, Marsden preached a sermon in his praise, and was reprimanded by the Governor for a simile which he deemed blasphemous.^[109] "I the more particularly remember it," said Riley, "from my surprise at the circumstances, as I considered the Governor had respected Mr. Bent, whose memory was revered throughout the Colony."^[110]

Another colonist wrote of him: "He was mild and merciful, in all legal decisions firm and just. No power could bias him to act contrary to his convictions. His life was an example of every public and private virtue. His death is deeply lamented and this Colony most sincerely feels his loss."^[111]

In these sad circumstances an acting Judge-Advocate had to be appointed. Macquarie's choice fell upon Garling, who was the senior "Government" solicitor, and had arrived a few months before. He needed much persuasion before he would accept a position of such responsibility, and it was not until the 11th of December that he consented. "Recollecting the enlightened mind, profound erudition, and vast legal knowledge that distinguished the late Judge-Advocate, whose persuasive eloquence and peculiar suavity of manner adorned his character on the judicial seat and endeared him to all ranks of society in this Colony," he felt natural diffidence in his own powers. He felt, too, that so long as Jeffery Bent was in Sydney the position would be a difficult and delicate one.^[112]

Bent indeed was very angry, and the humiliation was the keener because it was he who had originally recommended Garling to the Colonial Office. He could now do no more than declare that he had been wholly mistaken in Garling's character and acquirements. He said also that his appointment as Judge-Advocate was a piece of bribery, and had been made in order to admit the emancipist attorneys once more to practice.^[113] In 1820 Garling denied this altogether, and stated that the Governor never even mentioned the matter to him.^[114] They were admitted, however, and probably Bent's opinion, though unfounded, was the one generally held. Macquarie approved of Garling's behaviour as Judge-Advocate so much as to recommend that his appointment should be made permanent.^[115]

He had, however, neither the standing nor education to fit him for such a post, and in any event other circumstances had made such a course impossible.

Ellis Bent's letter criticising the new patent and Macquarie's administration^[116] reached England in June, 1815. In December the Governor's despatch of February, 1815, which described the dispute over the Port Regulations, was received. The Secretary of State addressed a reply to Bent on the 11th December, 1815.

"I should," he wrote, "willingly have taken your observations into consideration if there had been any intention … of remodelling the charter … so lately promulgated." Bent's commission also must remain unaltered, for "The Colony did not appear to His Majesty's Government sufficiently advanced to admit of withdrawing that appearance of military restraint which had been found necessary in its first foundation, and which the composition of its population had rendered it indispensable subsequently to maintain. The continuance therefore of a judicial officer who bore a commission exclusively military, and who, though a military officer, was by the charter placed above the civil judge, appeared to have many advantages with a view to the maintenance of that due subordination in the settlement upon which its welfare depends."^[117]

Bent's proposal to register the Governor's regulations in the courts was opposed as "tending to give but little if any additional publicity … while it tends to encourage an opinion that the sanction of the court is necessary to give validity to the acts of the Governor".

His conclusion conveyed a warning. "There could not exist a greater misfortune," he wrote, "to a settlement of so peculiar a nature … than a spirit of resistance, or anything more calculated to produce such a calamity than an appearance of misunderstanding between the Governor and yourself, or a suspicion that you were disposed to question or disobey his orders."

In fine, the Secretary of State preached endurance, patience and submission on the part of all officials, and expected peace to be maintained under the contradictory and incomprehensible system of civil Government by military officers.^[118]

Soon after this letter was despatched arrived the reports of the emancipist attorney's difficulty. The recall of the Bents was at once decided upon, and by the end of January, 1816, John Wylde and Barron Field were appointed respectively Judge-Advocate and Chief Judge of the Supreme Court.^[119] Wylde had started as a solicitor and been called to the Bar in 1805, but Field, although he had been entered at the Inner Temple in 1809, had not been called until 1814. In character Wylde was a typical respectable attorney with plenty of public spirit and a strong wish to conciliate all parties.^[120] His most noticeable fault was inability to write plain, straightforward English, or indeed to speak it.^[121] Field, on the other hand, was a lawyer with a love for the humanities, a considerable amount of youthful impetuosity, a sense of humour and a hot temper.^[122]

The Secretary of State had for some time thought that this step would prove necessary, and though he had little sympathy with Jeffery Bent, he intended to offer Ellis Bent a post elsewhere.^[123] There was no hope of reconciliation between the Bents and Macquarie, and there was no alternative but to recall them. Macquarie's forbearance in not exercising his power of immediately suspending in extreme cases the officers under his command was highly commended, but not the policy he had advocated.

"It is not," wrote the Secretary of State, "against the opinions entertained by them, but against the manner in which they were brought forward and acted upon, that the displeasure of His Royal Highness is directed; it was certainly competent to the Judge-Advocate to express any legal doubts which he might entertain as to the propriety of the new Port Regulations; feeling those doubts, it was equally his duty to have lent his assistance in rendering the regulations finally determined on by you as free from objection as possible. The remonstrances of Mr. Jeffery Hart Bent against the employment of convicts in the confidential situation of attorneys was equally proper, nor am I disposed to sanction their employment in the Colony under any other circumstances than those which existed at the time, namely, there being but one other attorney in the Colony."

"Both gentlemen had clearly a right to protest against any act of yours which they conceived to be illegal or improper, and to transmit that protest to His Majesty's Government; but they were not authorised, on the ground of difference of opinion, either to withhold from you the legal assistance which you required or to interrupt the course of judicial proceedings."

At the same time the Governor was reminded that "the Laws which regulate trade are, generally speaking, as applicable to New South Wales as to any other British colony, and all additional restrictions not heretofore observed must derive their justification from the necessity of the case, from their expediency with a view to the security of the convicts or the maintenance of public tranquillity. The internal government of the Colony must equally be guided by the English Laws, modified by the usages which have always subsisted there, nor can I perceive the necessity of applying to the present state of the Colony any more restrictive measures of police than those which were adopted in its infancy. You will therefore regulate your future conduct as far as possible on this principle."^[124]

To Ellis Bent, Lord Bathurst wrote in a tone of moderate rebuke. Recent correspondence had pointed out "too clearly that your uneasiness is excited … by the feeling that the system of government … and the nature of the situation which His Majesty's Government have thought it advisable that you, as its principal judicial officer, should continue to hold, render it impossible for you to discharge your duty with advantage to your country or to the Colony".^[125]

The despatch to his brother was curt and uncompromising.

The Judge-Advocate was no longer alive when his letter of recall was written. Wylde thus filled an office left doubly vacant when he and Field left England in May, 1816. Shortly before their departure Wylde happened to see a newspaper paragraph referring to the emancipist attorneys in New South Wales. This was the first time he had heard of the matter, and at once he and Field pressed Goulburn to give them instructions how to act if further attempts were made to allow these attorneys to practise. Goulburn then told them that the Governor knew Lord Bathurst's opinions, and they must apply to him when they reached New South Wales. This they did, addressing to Macquarie a joint letter requesting to be furnished with instructions "in conformity with the directions and pleasure of his Majesty's Government as made known to your Excellency".^[126] Macquarie quoted in reply a passage from Lord Bathurst's despatch of 9th April, 1816.^[127] This he said was the only instruction on the point with which he had been honoured.

He gave, however, no publicity to this despatch, and to Riley and Broughton he stated simply that Lord Bathurst "did not confirm the practice of the men we had supported.^[128] But for a few years after the arrival of Wylde and Field the question remained in the background, and the emancipists no longer appeared in the courts as attorneys.^[129]

Jeffery Bent was furiously indignant at being recalled and protested hotly against his treatment. Until the beginning of 1817 he remained in New South Wales, harassing the Governor and stirring up discontent. He arrived in England after a long voyage by way of India in May, 1818, and began an attack on the Colonial Office. His first demand, for a refund of the expenses of his homeward voyage, was successful, but he failed in the next. This was a request for a clear acknowledgment that he had been recalled for political reasons, and also for a temporary provision till he should regain his position at the Bar. He also suggested that he should be appointed Civil Governor of New South Wales. Finally his persistency was rewarded by the Chief Justiceship of Grenada.^[130] From that time he passed altogether out of the history of New South Wales. But during the period between the closing of the Supreme Court in 1815 and his departure in 1817 he had by no means been idle, nor had his zeal been altogether fruitless.

1. Castlereagh was Secretary of State until October, 1809, and was followed by Liverpool, who held office until June, 1812.
2. See H.R., VII.
3. According to Rusden, History of Australia, vol. i., p. 503, Collins, Lieutenant-Governor of Van Diemen's Land, considered the commission of the Deputy Judge-Advocate related only to Port Phillip. He says that he had been appointed to act in that district, where an attempt at settlement was made in 1803.
4. D. 13, 23rd November, 1812. R.O., MS.
5. He was not quite accurate. The Civil Court in 1812 consisted of the Judge-Advocate and two magistrates. The Governor's Court consisted of the Judge-Advocate and two respectable inhabitants.
6. Cf. e.g., the statement of Atkins, late Judge-Advocate of New South Wales, in regard to settlers at the Hawkesbury: "I think, Sir, that except a very few, a glass of gin would bias them". (Johnston's Trial, p. 17, 1811). Again Dr. Townson in 1814 thought "jury tryal" dangerous at a time when "corruption by spirits was so easy". Enclosure in letter from Wilberforce to Colonial Office, 19th April, 1817. R.O., MS.
7. D. 2, 28th June, 1813. R.O., MS.
8. From 1810 to 1814 only three General Courts-Martial were held.
9. 13 & 14 Geo. III., Roll of Letters Patent.
10. D. 11, 7th October, 1814. R.O., MS.
11. He suggested that a better principle of division might be founded on the nature of the relief sought.
12. Bent to Bathurst, 14th October, 1814. R.O., MS.
13. See also letter of 19th October, 1811. H.R., VII.
14. See, e.g., J. H. Bent's description of Riley and Broughton. Letter to Lord Bathurst, 1st July, 1815. R.O., MS.
15. Macquarie to Bigge, 6th November, 1819. R.O., MS.
16. D., 30th April, 1810. H.R., VII. See above.
17. R. on T., 1812.
18. See Chapter III.
19. Macarthur to his wife, 21st April, 1811. H.R., VII., p. 524.
20. Ibid.
21. Bigge's Report, II.
22. Bigge shared this view of Riley's, Report II.
23. i.e. of Lord.
24. Riley, C. on G., 1819. When Macarthur heard of Thompson's will he wrote to his wife, 21st April, 1811, H.R., VII.: "How, how could Governor and Mrs. Macquarie be imposed upon as they have been? I think the last stroke, of leaving the Governor part of his property, is by far the deepest he ever attempted, whether I view it as an act done in contemplation of death or in expectation of raising himself to higher favours should he live."
25. Ibid.
26. See Evidence of Harris, Appendix to Bigge's Reports. R.O., MS.
27. Redfern had been transported for complicity in the mutiny at the Nore. Robinson's crime was the writing of threatening letters. He was called the Poet Laureate, and used to recite odes, etc., of his own composition, on the King's birthday, at the Governor's leveé and on similar occasions. These effusions may be read in the Sydney Gazette.
28. This was the first official intimation of these appointments.
29. i.e., Fulton, Redfern, Evans and Meehan.
30. D. 6, 17th November, 1812. R.O., MS.
31. He forgot this when he asked Lord to dinner, for neither his rank nor character entitled him to mix with "respectable" men.
32. D. 2, 28th June, 1813. R.O., MS.
33. Bathurst, D. 24, 8th February, 1814. C.O., MS.
34. J. H. Bent to Goulburn, 25th June, 1818, recalling a conversation held in 1813. R.O., MS.
35. D. 11, 7th October, 1814. R.O., MS.
36. Macquaries's ideal of a man and a gentleman would probably have been Sir Thomas Bertram of "Mansfield Park".
37. Bent to Bathurst, 14th October, 1814. R.O., MS.
38. D.1, 24th February, 1815. R.O., MS.
39. D., 18th October, 1811. H.R., VII.
40. Ibid.
41. It was an office attached to his house.
42. The object of the Order was to prevent officers going up to their farms in the country and spending "several days there to the neglect of their public duty". Macquarie did not even pretend to think that Bent neglected his.
43. Bent to Bathurst, 1st July, 1815. R.O., MS.
44. See above, 1st July, 1815. R.O., MS.
45. Ibid.
46. Letter to Bathurst from Corunna, 21st February, 1814. R.O., MS.
47. Goulburn to Bent, 1814. C.O., MS. The Judge-Advocate's four years' service and his success in the office, as well as the fact that he had a military commission, were the chief reasons. Some acquaintance with Jeffery Bent may have supplied others.
48. D. 11, 7th October, 1814. R.O., MS.
49. Ibid.
50. D. 1, 24th February, 1815. R.O., MS. There is no reason given for abandoning the scheme. Perhaps the subscriptions came in too slowly.
51. Bent (J. H.) to Goulburn, 16th December, 1814. R.O., MS. The wards were used exclusively as court-rooms and fitted up as such. In 1820 at Bigge's suggestion the plan originally advocated by the Bents was carried out with Macquarie's full concurrence, and one of the surgeons' residences turned into a court-house. D. 12, 28th February, 1820. R.O., MS.
52. Goulburn to J. H. Bent, 11th December, 1815. C.O., MS.
53. i.e., December, 1814. Macquarie's D. 1, 14th February, 1816. R.O., MS.
54. 1st July, 1815. Bent to Bathurst. R.O., MS.
55. See Chapter III.
56. Ibid. The Order censured the magistrates for the careless way in which they granted certificates for pardons.
57. 1st July, 1815. R.O., MS.
58. 1st July, 1815. R.O., MS.
59. G.G.O., 28th January, 1815.
60. He gives as authority for this statement 49 Geo. III., cap. 17, section 1.
61. Enclosure to D.1, 24th February, 1815. R.O., MS.
62. Enclosure to same.
63. Enclosure to same.
64. Enclosure, D. 1, February, 1815. R.O., MS.
65. Ibid.
66. This was penalty for taking away convicts from New South Wales.
67. An instance of this occurred some years later when Macquarie published some Orders increasing the penalties on trespassing. Judge Field pointed out that they went far beyond the English Law on the subject, and persuaded the Governor to revise the Orders. See Appendix, Bigge's Reports. R.O., M.S.
68. 1st July, 1815. R.O., M.S.
69. D. 1, 24th February, 1815. R.O., MS. No opinion appears to have been given, and in 1819 Macquarie, apparently taking silence for consent, gave them to Judge-Advocate Wylde to put into shape. The Judge-Advocate objected to some of them, but Macquarie replied simply that the law officers had allowed them to pass and their authority was higher than Wylde's. After that Wylde said no more, and the Regulations, with some alterations from those submitted to Bent, were published in 1819. See Appendix, Bigge's Reports. R.O., MS.
70. D. 4, 24th March, 1815. R.O., MS.
71. Garling came in the Frances and Eliza, a male and female convict transport, which was captured by an American privateer and afterwards recaptured. He arrived after many adventures late in 1815.
72. Chapter III.
73. See Chapter II. for reasons why King pardoned Crosley.
74. i.e., Eager and Chartres. Both held tickets-of-leave. Eager received an emancipation a few years later and a free pardon in 1819. Chartres' license must have been in his wife's name.
75. Bent to Goulburn, 1st July, 1815. R.O., MS.
76. Letter to Goulburn, 25th June, 1815. R.O., MS. See also earlier in this Chapter.
77. 18th April, 1815. Enclosure to Bent (J. H.) to C.O., 1st July, 1815. R.O., MS.
78. In 1819 many colonists who had known Bent intimately told Bigge that it was this interference on Macquarie's part with the business of the court that "first excited resistance" in Bent against the Governor's measures; but, as has already been seen, it did not create it. See, however, Bigge's Report I., and Harris' Evidence, in Appendix to Reports. R.O., MS.
79. The petitions forwarded by Macquarie were those of Crosley and Eager, not Chartres.
80. Their names never were given.
81. 22nd April, 1815. Enclosure to Bent's letter, 1st July, 1815. R.O., MS.
82. This is quite clear from Bent's letter, 1st July, 1815. R.O., MS.
83. See Bent, 1st July, 1815. R.O., MS. This rule would not have necessarily excluded convicts who had become articled clerks in the Colony and had not previously been attorneys in England or Ireland.
84. Bent, 1st July, 1815. R.O., MS.
85. It is significant that, although Macquarie several times urged Broughton's claims, he never reached a higher rank than this.
86. The trading ventures on transport vessels. See Chapter V.
87. 1st July, 1816. R.O., MS.
88. Report to Macquarie in his D. 4, 24th March, 1815. R.O., MS.
89. Bent's letter, 1st July, 1815. R.O., MS. See rule suggested by Bent above which shows clearly that he did not wish to exclude all emancipists indiscriminately.
90. This is quite clear from the despatches of Macquarie, especially D. 4 of 1815, Bent's letter of 1st July, 1815. R.O., MS.
91. They would probably have acted as they did in regard to the first convict magistrates. See above.
92. i.e., while the court was closed.
93. C. on G., 1819.
94. See Evidence of Wylde, Appendix, Bigge's Reports. R.O., MS. Business in the Governor's Court fell off when emancipists were excluded.
95. Enclosure to Macquarie's D. 5, 22nd June, 1815. R.O., MS.
96. Macquarie, D. 5, 1815. See above.
97. Bent (J. H.) stated the fact on his brother's authority in his letter of 22nd April, 1815. R.O., MS.
98. Letter to Macquarie, 18th June, 1815. Enclosure, D. 5, 1815.
99. i.e., since the publication of the new charter.
100. Macquarie to Bent, 29th May, 1815. Enclosure, D. 5, 1815. R.O., MS.
101. According to the charter, when the Judge of the Supreme Court was in a minority, the party against whom judgment was given might appeal to the Governor. But in such a case as this, of admission to practise, it is difficult to see how this cause could have been put into action.
102. Bent to Macquarie, 31st May, 1815. Enclosure, D. 5, 1815. R.O., MS.
103. Macquarie to Bent, 2nd June, 1815. Enclosure, D. 5, 1815. R.O., MS.
104. Bent to Bathurst, 1st July, 1815. R.O., MS.
105. Bent to Macquarie, 24th October, 1815. Enclosure, D. 1, 1815. R.O., MS.
106. Macquarie to Bent. Enclosure, D. 1, 1819. R.O., MS.
107. D. 1, 20th February, 1816. R.O., MS. It is quite clear, however, that Macquarie's real objection was Bent's behaviour towards him. The Supreme Court was not likely to sit for another six months at the earliest, and the delay in regard to death penalties was not of much importance.
108. D. 1, 20th February, 1816. Lord Bathurst recommended Bent's widow and four young children for a pension, and one of £200 a year was granted. Later she was given £200 to help in educating the boys. See Correspondence in R.O. and C.O.
109. There is some confusion in this matter. Marsden and Riley both gave the same account, but Macquarie said that Marsden's report was not true, that his reprimand had nothing to do with the part about Bent. See Appendix, Bigge's Reports, Evidence of Marsden. R.O., MS. Also Marsden's Memoirs.
110. Riley, C. on G. 1819.
111. Bayly to Bunbury, 13th March, 1816. R.O.
112. Garling to Macquarie, 11th December, 1815. Enclosure to D. 2, R.O., MS., 1816. Macquarie had no power under the charter of appointing an acting judge or a permanent judge in case of a sudden vacancy. It was one of the omissions pointed out by Field in 1820 (Appendix, Bigge's Reports). R.O., MS. The general powers of the Governor's Commission and the necessities of the case in this instance amply justified his action in making such an appointment.
113. Bent to C.O., 1st March, 1816. R.O., MS.
114. See Evidence, Appendix, Bigge's Reports. R.O., MS.
115. D. 2, 24th February, 1821. R.O., MS.
116. i.e., letter of October, 1814. R.O., MS.
117. It appears from the foregoing pages that the military commission of Judge-Advocate had so far created nothing but confusion, and had not in the least fulfilled the objects for which, according to Lord Bathurst, it was retained.
118. Bathurst to Bent, 11th December, 1815. C.O., MS.
119. The Colonial Office found it difficult to procure suitable men for these appointments, and had more than one refusal. The commissions of Wylde and Field are dated 1st and 25th May, 1816. See C.O., MS., 1816.
120. Wylde's father, who was a solicitor, went out with him to New South Wales and became Clerk of the Peace, and practised in the courts. Wylde's younger brother, who spelt his name Wilde, became Lord Chancellor of England with the title of Lord Truro. He also entered the legal profession as a solicitor.
121. See Bigge's Correspondence with C.O., 1822 to 1823. R.O., MS. Wylde's confused speech was an especially great drawback owing to the peculiar constitution of the Criminal Court. His expositions of the law were very difficult to follow.
122. Field was a schoolfellow and friend of Charles Lamb. Before he went to New South Wales he published an edition of Blackstone and occupied himself in journalistic work. He wrote for the Reflector and was dramatic critic on The Times.
123. Letter to R. Bent, 31st January, 1816. C.O., MS. He was the father of the judges.
124. Bathurst to Macquarie, D. 66, 9th April, 1816. C.O., MS.
125. Goulburn to Wylde, 20th May, 1816. C.O., MS.
126. See letter in Appendix, Bigge's Reports. R.O., MS.
127. Macquarie to Field and Wylde, 11th March, 1817. Appendix, Bigge's Reports. R.O., MS. Macquarie says 18th April, but the despatch is dated 8th April. See extract above, p. 230.
128. Riley, C. on G., 1819.
129. The question arose again in 1819. Crosley and a free settler, who was a solicitor, entered into a partnership, the former to do the real work, the latter to appear in court. The compact coming to the knowledge of Field, he crossed the free solicitor off the rolls of his court. There was much discussion in the Colony upon the matter. The free solicitor died soon after—some said from a broken heart, others from injuries received in a fall from his horse owing to his great corpulency. There were few free attorneys left, and Crosley and Eager were allowed to practise occasionally under the same terms as previously before Ellis Bent. Crosley was a rascal but competent, and one of the few attorneys who understood court business. See Appendix, Bigge's Reports, R.O., MS. and Report II.
130. See Colonial Office Correspondence, 1818 to 1820, R.O. Major-General Bayly to Goulburn, 3rd January, 1820, R.O., MS., speaks of him as Chief Justice for Grenada.