In ten years, from 1810 to the end of 1819, only eleven pardons had been granted or confirmed by His Majesty, and a minority of these had been passed under the Great Seal. As the Governor's pardon was effective in the case of crimes which did not carry legal incompetencies, Field succeeded in somewhat alleviating the hardship of the new doctrine. Thus when attorneys, being hard-pushed, took the "objection of attaint" against witnesses, Field said that he "never allowed the witnesses to answer the question, as I think it a dilemma too hard to place any witness in, as if he tells the truth he disgraces himself. I always tell the party who produces the witness to exhibit the office copy of the record of the conviction. In cases of this kind I have consulted the members of the court as to the general character of witness produced.
"Nor," continued Field, "can a man be examined himself in those things, for he may not say anything to injure or incriminate himself.
"The sting of the law is therefore, in this remote Colony, where it would only sting itself to death, well and wisely taken away by the law itself."[1]
This rule he applied throughout, but it was clearly one which "gave to the judicial authorities, the great power of determining how long and in what cases they may exercise that right".[2] This power "may equally be applied," wrote Bigge, "to the convict whose term of service is expired, and who to all intents and purposes is a free man, as to the convict whose term of service has been remitted by the Governor of the Colony, and who stands in the situation of a person holding a sign-manual pardon".[3]
Under these circumstances the emancipists were naturally uneasy, and two decisions, one by Wylde in the Governor's Court, and one by Field in the Supreme Court brought their anxiety to a head.
In the Governor's Court, Eager proceeded against Mr. Justice Field on a charge of slander contained in a rebuke administered by Field when acting as Chairman of the Bench of Magistrates at Parramatta. Field pleaded that Eager could not bring a personal action, having been convicted of forgery and not having
