The practice of the Sydney Supreme Court had long virtually rejected such distinctions. The mixed considerations of convenience and equity induced the judges to allow the witnesses and plaintiffs the same privilege, whether under attainder or not. Judge Field[126] declared, that while the crown did not interfere, the court would not touch the property of the convict: nothing but an attested copy of conviction, would be admitted as evidence of conviction. Nor would the proof of transportation, of itself, as the law then stood, prove the incompetence of a witness. His time might have expired; his expatriation might have been the condition of his pardon, or his offence might have been a misdemeanour, and not involve the corruption of blood;[127] and, except for perjury or subornation of perjury, the King's pardon might restore his competency to give evidence, or hold property. On these grounds the courts of New South Wales were enabled to evade the plea of attainder in bar of a just action.
But the decision of the King's Bench discovered a serious omission in the forms of pardon issued by Macquarie, and further enquiry even threw doubt on his power to grant them at all. The Act of Parliament empowered the crown to delegate the authority to remit a sentence of transportation, to the Governor of New South Wales; but the commission of Macquarie said nothing of this power, except the criminals were colonially convicted, when he could grant reprieves and pardons. His instructions authorised the pardons to British offenders, and those instructions were warranted by parliamentary enactment; but the royal commission gave no such power: and thus all his pardons were legally void.
Another essential condition was neglected: to give effect to the pardon of the Governor, it was required that he should transmit to the Secretary of State the names of the persons whose sentences he remitted, to secure their insertion in the next list of general pardons. This course had never been taken: no list of remissions had been furnished to Downing-street.
Among the extraordinary omissions of the government at home, was in many instances the place of trial, and even the sentence of the transports; to save the labour of penmanship, "ditto," was sometimes the sentence found under another name, in the line of which 7, or 14, was written; not at full length, but in numerals. Some "indents" exhibited erasures: in one, a sentence of seven years had been converted to "life." More strange than all, some were sent without even their names, and others without any sort of information of their crime or sentence; and the authorities felt justified in gaining by artifice, from the unsuspecting prisoners themselves, what the ministers had neglected to furnish.
An Irishman, who could give no information, was suited to a sentence by a process of analogy: he was set down, in compliment to his comrade, for "life."[128] The regular transmission of this kind of information was neglected, chiefly, by the Irish executive; ever slow to perceive the obligation of reason and justice. The longevity of abuses is among the most instructive lessons of history. The first fleet left their lists with the owners of the transports: soon after their arrival, several prisoners declared their sentence was completed; this, the government was unable to affirm or deny, and therefore did nothing; but one of the claimants, having expressed his discontent in a manner disrespectful to the Lieutenant-Governor, received 600 lashes, and six months in irons![129] Such atrocious neglect of the first principles of equity, is a sad set-off against the license of indiscriminate pardons. The Roman judge was a far better casuist: "For it seemeth to me unreasonable, to send a prisoner, and not withal to signify the crimes laid against him."[130]
A quarrel between Mr. Justice Field and Mr. Eagar, an emancipist attorney, displayed more forcibly the effect of the decision of the English Chief Justice. Judge Field presided at a session of magistrates at Parramatta, when Eagar attempted to act as counsel: this was prevented by the court; and the judge, as chairman, expressed himself, in reference to Eagar, in terms of severe disapprobation and contempt, stigmatising him as a common barrator, or mover of quarrels, whom the Governor might justly prosecute for sedition, or banish from the colony. Eagar, not daunted by the philippic of the judge, resolved to sue him in a secondary court for slander, and to recover back fees paid in the Supreme Court, and which he alleged the judge had levied illegally; but Judge Field ordered his solicitor to file an affidavit of his belief that Eagar was under attainder, and prayed for time to obtain an office copy of his conviction: this course was allowed, and the action defeated.
Not long after, Eagar attempted to recover certain penalties imposed by the Act of Charles II. on foreign merchants trading in the British plantations: the penalties were enormous, and the law was obsolete. The particular object of Eagar was, to suppress the competition in the sale of tea, which the superior trading connection of Messrs. L. Mestre and Co. enabled them to offer. The French merchant very fairly pleaded the attaint of the plaintiff, and Judge Field, in giving judgment, insisted on the obvious injustice of the suit; that men, whose trading was permissive—themselves the creatures of indulgence—and who, by connivance, were allowed to become wealthy and prosperous—should endeavour to rouse forgotten and restrictive statutes, to put down useful commerce, and abuse privileges conceded by the clemency of the court; to force the court to become the instrument of oppression: he therefore allowed the plea of the merchants to bar the action of the plaintiff.
All this, on the face of it, was just; but the emancipists saw that it gave to the judge a discretion which laid them helpless at his mercy: the same plea might be offered, to cover a fraudulent debtor, or deprive a large majority of traders of legal protection. Nor was it a competent answer, that the policy of the colony had been of an opposite description: to stand on suffrage, was to stand in peril.
Prompted by this feeling, the emancipists formed themselves into committees at all the settlements, and obtained the countenance of the Governor to a plan for moving the British legislature, to correct the anomalies of the law. At a public meeting, Mr. Redfern presiding, the administration of Governor Macquarie was the subject of their glowing eulogy. They predicted, that his name would be immortalised by the gratitude of their descendants, who would remember his policy with veneration. Against this meeting the judges protested, and professed to foresee great peril to the dignity of their tribunals, and to the public safety; but the calm and guarded proceedings of the emancipists avoided the scandal, and gained their cause some support. The indignation of the judges was unreasonable: in the administration of justice they had usually protected the equitable rights of the emancipists; but it was no reason for astonishment, that a large trading interest felt uneasy in holding by indulgence privileges of so great importance, and were anxious to obtain, by a declaratory statute, the remedy of their grievances. Mr. Eagar was nominated secretary to their body, and instructed to obtain parliamentary support: in this he was successful.