The legislative foundation for an independent Supreme Court in New South Wales was set by the passage of the New South Wales Act 1823, 4 Geo IV c 96 (‘NSW Act’) on 19 July 1823. The NSW Act was important for another reason, namely that it restored civil and legal rights to pardoned convicts, thereby facilitating the administration of the rule of law by the Supreme Court once it came to be established in 1824.

In Bullock v Dodds (1819) 2 B & Ald 258; 106 ER 361 (‘Bullock’), the King’s Bench Court held that pardons not stamped with the Great Seal of England were without legal effect. The plaintiff was an ex-convict who had been pardoned by Governor Macquarie. In declining to hear his claim, the court held that the pardon was informal as it had only been issued under the seal of the colony and not confirmed, as required, under the Great Seal of England.

In Eagar v Field [1820] NSWSupC 3 (‘Eagar v Field’), Wylde JA held that the decision in Bullock applied in New South Wales. At that time, emancipated convicts greatly outnumbered voluntary colonists. By administrative oversight, their pardons had not been transmitted to England for stamping with the Great Seal. Consequently, in the eyes of the law they had the same civil and legal status as convicts: unable to own or transmit property, sue or be sued. Without such rights, the establishment of an independent Supreme Court would have been an egregious pantomime.

In Eagar v Field, an emancipated colonist named Edward Eagar had commenced an action against Barron Field, who was at the time judge of the Supreme Court of Civil Judicature as constituted under the Governor’s jurisdiction. Eagar’s claim was for slander, as well as for money had and received in respect of allegedly excessive court fees that Field had ordered Eagar to pay in an earlier case. Eagar alleged that in the course of presiding over that case, the judge had used slanderous words against him: that he had ‘made seditious speeches’, ‘reared up the standard of disaffection’ and was ‘a revolutionist’.

At this historical juncture, a high degree of tension existed between two social groups within the colony, ‘exclusives’ and ‘emancipists’ – free colonists and pardoned ex-convicts – and their respective sympathisers. The former strongly believed that they should be preferred, to the latter’s exclusion, for every position of privilege and influence, a belief based on their self-perceived moral superiority. After all, ‘once a convict, always a convict’, as the saying went. Field was known to be firmly exclusivist.

Governor Macquarie, on the other hand, was far more meritocratic in his attitude and approach, routinely elevating to positions of authority ex-convicts who demonstrated ability and good character, offering them generous pardons and even inviting them to dine at the officers’ mess. This practice not only entrenched emancipist influence but also stoked fierce resentment among exclusivists who were forced to compete for positions of influence with their ‘moral inferiors’.

The tensions were sharply displayed in March 1810 when Macquarie appointed Reverend Samuel Marsden to the board of trustees of the Parramatta turnpike road along with some well-heeled ex-convicts named Simeon Lord, Andrew Thompson and D’Arcy Wentworth. Reverend Marsden rejected his appointment in the belief that associating with ex-convicts would derogate from the performance of his sacred functions. Commissioner Bigge was another notable figure who strongly opposed Macquarie’s meritocratic treatment of ex-convicts.

Returning to Eager v Field, in his defence Field pleaded attainder by felony conviction. Attaint, where proven, precluded a person from maintaining any action at law or acquiring, retaining or transmitting any property. In other words, the attainted person had the same civil and legal status as a convict. Field’s counsel submitted:

… he is informed and believes that the Said Plaintiff is a Convict attainted of felony; and he was so Convicted in the part of the United Kingdom of Great Britain and Ireland, called Ireland; and although His Excellency the Governor of this Territory hath absolutely remitted to the said Plaintiff the whole of the term, for which the said Plaintiff was transported hither, yet this Deponent had been informed and believes that the name of the said Plaintiff hath not yet been inserted in any General Pardon, which hath passed under the Great Seal of Great Britain. (italics added for emphasis)^[1]

Field’s counsel sought the indulgence of a 12-month adjournment to enable the record of conviction to be obtained from Ireland to prove the attaint. His submissions recognised that if such indulgence were granted to every defendant in the colony who pleaded attaint without such evidence, ‘as a matter of course, the Doors of Justice would be for the most part closed’. That is, those doors would be closed because Field himself would likely refuse such an adjournment to prove the plea of attainder, having declined to do so in the past. Passing over the irony of that submission, Field’s counsel pressed for the adjournment to allow for the plea to be tried on its merits.

In exercising the discretion, his Honour considered the counterfactual that if the trial proceeded and the plaintiff obtained judgment in his favour, ‘a great encouragement would be given to the litigious Spirit of resistance, that then seemed not only in the Plaintiff but in a certain party of the Colony to prevail’. There was no doubt in his Honour’s mind that the pleaded defence based on Bullock v. Dodd had merit, and, when balanced against the relative weakness of Eagar’s claim, an adjournment was justified.

The decision in Eager v Field sent a wave of uncertainty through the colonial economy:

In 1821, as a result of doubts over the validity of the governor’s ‘pardons’ the civil courts of the colony appeared to be closed to anyone of convict origin. It caused a crisis that shook commercial confidence. The status of emancipists in commercial transactions was uncertain. The fact that the greatest percentage of judgments on warrants for any year was sought in 1822 suggests that creditors panicked for fear that they might not have access to the courts.^[2]

In 1821, Eagar sailed for England bearing the emancipists’ petition to the King to recognise their pardons. On his arrival, he set about vigorously lobbying for an amendment to the New South Wales Bill (‘NSW Bill’) to remedy the situation. Eagar was an Irish-born lawyer, successful merchant, member of the establishing committee of Australia’s first bank (the Bank of New South Wales) and founding member of the first Methodist church in Australia, which houses the Wesley Mission today. All that in addition to seditionist and revolutionary.

He was accompanied by his co-petitioner and emancipated convict, Dr William Redfern. Dr Redfern was Macquarie’s family physician and one of the first directors of the Bank of New South Wales. His report into the high mortality among convicts on transport ships and its recommendations was a major contribution to public health.

On 12 June 1823, (Sir) Francis Forbes wrote to Lord Bathurst in support of legislative intervention to restore emancipist rights, countering Barron Field’s objections. He described the situation:

Some hundreds if not thousands, of persons are at this moment in the colony of New South Wales, who have received instruments of remission of sentence of transportation, which instruments … should have been transmitted to England, in order that the names of the parties, receiving such remissions, should be inserted in a general pardon under the great seal. It is understood that no general pardon under the great seal has been issued … and that in fact the remittees stand in no better condition, in respect of property and civil right, than if no such remission had ever been granted to them.^[3]

Ultimately, an amendment to the NSW Bill was passed into law with the NSW Act that relevantly provided:

… if the several instruments by which such times or terms of transportation were remitted have not been regularly transmitted to England and the names of the felons or other offenders respectively therein contained have not been inserted in any general pardon under the great seal of Great Britain Be it further enacted that all instruments in writing made in conformity with the said act … whereby any governor or lieutenant governor of New South Wales for the time being hath remitted or shortened … the time or term of transportation of any felons or offenders as aforesaid shall have and shall be deemed and taken to have had within New South Wales and its dependencies from the days of the respective dates of such several instruments such and the like force and effect in the law to all intents and purposes as any general pardon if passed under the great seal …

Eagar also advocated for trial by jury, which was partially implemented in the NSW Act. His biography summarises the fruits of his labours:

In London Eagar proved a persistent advocate of the emancipists’ cause. The validation of pardons and the modest instalment of trial by jury granted in 1823, and the comprehensive recognition of ex-convicts’ rights included in the Transportation Act of 1824 probably owed much to his zealous lobbying and correspondence with the Colonial Office.^[4]

The ability of an independent Supreme Court to administer the rule of law in the colony would have been severely weakened without people such as Eagar and Forbes successfully advocating for legislative intervention to restore the civil and legal rights of emancipated convicts.

^ENDNOTES

^{[1] Eagar v Field [1820] NSWSupC 3}

^{[2] Ronald Soloman, ‘Barron Field and the Supreme Court of Civil Judicature: Law, personality and politics in New South Wales, 1816–1824’, (PhD Thesis, University of New South Wales, 2013) <https://doi.org/10.26190/unsworks/16189>.}

^{[3] James Frederick Watson et al, Historical Records of Australia: Series IV, Vol I (Library Committee of the Commonwealth Parliament, 1922) 483.}

^{[4] ND McLachlan, ’Edward Eagar (1787–1866)’ in Douglas Pike (ed), Australian Dictionary of Biography, Volume 1 (National Centre of Biography, Australian National University, 1966) <https://adb.anu.edu.au/biography/eagar-edward-2013>.}