•     In 1801 the courts had developed a rule that assigned convicts could only sue or be sued in the magistrates courts. (Ticket-of-leave and pardoned convicts (known as ‘emancipists’) had the same rights as free ppl.)
•    In 1820 the Supreme Court held that convicts and even ppl that had been pardoned did not have civil rights  the court referred to the case of Bullock v. Dodds (1819) which had held that pardons were not effective in England unless they were issued under the Great Seal.
•    The NSW pardons had not been issued with the correct procedure and had therefore not removed the attaint.
•    The Eager cases held that convicts and ticket-of-leave holders, and those who had been pardoned by the governor before their sentences were complete were subject to the full rigour of the law of attainder  rather than emancipists increasing their rights they were losing them.
•    In 1889, in Cooper v Stuart, the Judicial Committee of the Privy Council confirmed that, in the eyes of the common law, Australia had been settled  this introduced, not only British sovereignty, but also English law.
•    There are three common ways that international law recognizes a country can acquire new territory by; Conquest, cession/ceding and settle.

Powers of the governor

•    From 1788 to 1823 the colony experienced personal rule of the governor which was limited only by directions from Britain through the Secretary of State for the colonies, this could take 6 months  governor was very powerful since there was not even a rudimentary legislature to counter them.
•    The governor was the sole source of legislative and executive power and the final court of civil appeal  although the governor could be sued after he completed his term of office, he was otherwise very much like an absolute monarch.
•    Governors slowly had their powers removed and given to the other arms of govt. – the courts and the legislature.
•    In 1814, the second Charter of Justice, by Letters Patent, established a Supreme Court with Civil, Criminal and equitable jurisdiction with a judge and two magistrates. Parties could appeal to the governor or if over 300 pounds to the Privy Council.
•    The Lieutenant-Governor’s court was established in Van Dieman’s land  these were courts in which political battles about power were fought out in the colonies.

Emancipists v Exclusivists

•    According to David Neal there were three main groups of ppl in the new colony:

1.    Aborigines
2.    exclusivists: mostly ppl that had come to the colony as military officers and free settlers.
3.    emancipists: ppl that had come to the colony and had later been freed; they included the children of such ppl, also included free settlers who sympathized with their aims and felt abused by the military dominance in the colony.

•    The latter 2 groups fought both with each other and against the governor and Britain, struggling to gain ascendancy in the colony  the exclusives wished to dominate and to have certain institutions remain in their hands; the emancipists wished to extend their own power and to be allowed to be involved in the organs of power in the colony – such as participation of jurors, voting and so on; increase level of protection of civil rights in the colony.
•    Many emancipists became quite wealthy; the land grant system meant that they owned amounts of land which would have been quite impossible in England, they also became dominant business figures; they became a lot richer than what they would have ever been had they remained in England.
•    Both groups argued for their ‘birthright’ as British, campaigning to move the colony from a penal to a free colony, with trial by jury, and representative govt  this battle was mostly fought in the courts because there was no political arena for disputes and deliberation, so the courts provided this arena.
•    All colonies benefited from the fight for trial by jury and representation  it was significant because it was carried out by ppl using arguments about the rule of law.
•    Neal argues that the concept of the rule of law (which he defines as having at least three elements: general rules laid down in advance, rational arguments from those principles to particular cases, and, at least in a developed form, a legal system independent of the executive for adjudication of disputes involving the general rules) was deeply imbedded in the colonists minds.
•    David Neal, The Rule of Law in a Penal Colony: Law and power in early NSW, 1991: [p24], Kables’ case introduced a change into the inherited legal framework convicts in NSW would enjoy the right to hold property and to sue in the colonies courts to protect that property, they would not have been able to do so in England. The judges needed to decide just how far perculiar circumstances of the colony would justify further departures from English law; this committed considerable political power to their hands.

The
Fight for Trial by Jury

•    In 1819, a petition to the monarch was made by the emancipists (in the form of 1300 landholders) asking for trial by jury for civil as well as criminal matters.
•    In England property qualified a person to serve on a jury, vote and to stand for office, and ppl with equivalent wealth could do these things  the issue was so important to the emancipists that they actually sent representatives to London to argue it for them.
•    Criminal courts in NSW use military panels instead of juries, governor had commanding right to choose the panel but in practice this was done by the commanding officer in garrison  there was no right to challenge the choice which proved to be a problematic issue especially in issues concerning the military  colonists objected to this as well as military officers because they did not want to be drawn to civilian life in this way.
•    A petition in 1821 sought to reverse the Eager decisions about felony attaint  trial by jury was important because the right to serve on a jury was regarded as symbolic of citizenship.
•    The 1823 NSW Act (4 Geo IV c 96) followed – it provided that the governor’s pardon was to have the effect of a pardon under the Great Seal (thus reversing the effect of the Eager cases) and it statutorily defined the institutions of gov’t including a legislative council of seven ppl nominated by the governor, and a Supreme Court, but it did not provide for trial by jury in criminal cases, and it provided for juries in civil cases only if both parties agreed.
•    The Act established intermediate courts without mention of juries, governor made proclamation allowing trial of trial by jury to those courts  Attorney- General obtained an order from the Supreme Court to compel them: R v Magistrates [1824].
•    Magisrates then published a list of jurors-which excluded emancipists.
•    Colonial officer persuaded the Imperial Parliament in the Australian Courts Act of 1828 to abolish jury trial in the immediate courts until it was established in the Supreme Court.
•    Jury trials were left to the judge to decide in civil cases and the governor and council were given the power to introduce trial by jury.
•    Magistrates continued to exclude emancipists, on the basis that they were attained, until the Jury Act 1829 (NSW) was amended in 1830.
•    Jury trial in criminal cases was finally won in 1833.

The Governor's Powers and the Evolution of an Independent Court

•      Civil courts were established by Letters Patent (letters from the Crown containing public instructions or directions)  royal prerogative, not by statute.
•    Governor court hear appeals from the civil court and was final in a matter valued less that 300 pounds, for a matter valued more there could be appeal to the Privy Council.
•    In 1814, the second Charter of Justice set up 3 civil courts by Letters Patent  the Governor’s Court of the Deputy Judge- Advocate and 2 members appointed by governor could hear civil pleas valued at less than 50 pounds; Lieutenant- Governors Court est. in Tasmania-no appeal; Supreme Court with judge and 2 magistrates appointed by the governor  heard all civil matters, it could review governor’s actions.
•    In response, in 1818 the British Government appointed John Bigge to investigate the situation in NSW, he issued 2 reports which were favourably received in England, and in 1823, the Imperial Parliament passed legislation to enact many of their recommendations.
•    The 1823 New South Wales Act (Imp) (4 Geo IV c 96) – est. a new Supreme Court with equity and full civil, ecclesiastical and admiralty jurisdiction (except for divorce) and in which judges were paid salaries instead of fees for the first time.
•    The act emphasized the power of the new Supreme Court by requiring by s29 that no law could be laid before the new Legislative Council of residents before the Chief Justice of the Supreme Court had certified that the law was not repugnant to the laws of England.
•    From the Supreme Court, an appeal in civil matters lay to the governor (who could call on the chief justice for advice), and from the governor to the Privy Council.
•    The criminal jurisdiction of the Supreme Court continued to have a jury of seven military officers and also had the power to review magistrates’ decisions.
•    The Act however did not introduce trial by jury which was one of the emancipists’ chief concerns  this was introduced 5 years later by the Australian Courts Act.  
•    These court arrangements continued after the 1828 Australian Courts Act (Imp) (9 Geo IV, c 83) except that for the first time there was no appeal to the governor from the Supreme Court and in its place was a direct appeal to the Privy Council  within the colony, the judiciary had become completely separate from the executive for the first time.
•    The Act of Settlement of 1701 had conferred independence on the judiciary in England, judges were appointed by Royal Commission and therefore at the pleasure of the British govt; although the courts were not independent of the British govt, the courts became independent of the governor.

Conbtinued on page 2