Barron Field and the Supreme Court of Civil Judicature: law, personality and politics in New South Wales, 1816–1824

Ronald Coleman Solomon

A thesis in fulfilment of the requirements for the degree of Doctor of Philosophy University of New South Wales School of Humanities

Faculty of Arts and Sciences

Submitted March 2013 PLEASE TYPE THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet

Surname or Family name: Solomon

First name: Ronald Other name: Coleman

Abbreviation for degree as given in the University calendar: PhD

School: Humanities Faculty: Arts and Social Sciences

Title: Barron Field and the Supreme Court of Civil Judicature: law, personality and politics in New South Wales, 1816-1824

Abstract 350 words maximum: (PLEASE TYPE) My thesis traces the progress and selection of a man of middling class, a direct descendant of Oliver Cromwell, to appointment as j udge in the superior court of civil law in the colony of New South Wales in 1816. On arrival in the colony Judge Field chose not to accept the company of Governor Macquarie when he learnt this entailed associating with ex-convicts. Instead Field joined the exclusive society of free settlers dominated by John Macarthur who pursued political beliefs of repression of emancipated convicts. Thereafter, an emancipist attorney commenced a political campaign against exclusivists with Field as their spokesman. This campaign began and ended in the courts as the only venue available for political conflict. The campaign revealed the importance of the role of the courts in colonial society. Not only the free but recently freed and prisoners made use of the courts. As political conflict intensified it was observed by the Royal Commissioner sent out to investigate whether the colony was fulfilling its objective for convicts of being a place of terror. The Commissioner recommended Field's recall. This was acted upon despite Field's achievements in the reform and development of the civil law in the colony. On his return to London he was unable to secure further judicial appointment for some years during which he returned to the Bar. Eventually after he secured a patron again he obtained a posting to Gibraltar. There his tenure was marred by further disputation with the governor. As it happened in New South Wales, he is sued by a litigant in Gibraltar. However the proceedings against him in the Privy Council were dismissed. His retirement followed and he followed his many interests of botany, natural science and Elizabethan literature. For a time he was a noted Shakespearean commentator. His death took place shortly after his retirement.

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FOR OFFICE USE ONLY Date of completion of requirements fo r Award : ABSTRACT

My thesis traces the progress and selection of a man of middling class, a direct descendant of Oliver Cromwell, to appointment as judge in the superior court of civil law in the colony of New South Wales in 1816. On arrival in the colony Judge Field chose not to accept the company of Governor Macquarie when he learnt this entailed associating with ex‐convicts. Instead, Field joined the exclusive society of free settlers dominated by John Macarthur who pursued political beliefs of repression of emancipated convicts. Thereafter, an emancipist attorney commenced a political campaign against exclusives with Field as their spokesman. This campaign began and ended in the courts as the only venue available for political conflict. The campaign revealed the importance of the role of the courts in colonial society. Not only the free but recently freed and prisoners made use of the courts. As political conflict intensified it was observed by the Royal Commissioner sent out to investigate whether the colony was fulfilling its objective for convicts of being a place of terror. The Commissioner recommended Field's recall. This was acted upon despite Field's achievements in the reform and development of the civil law during his period in the colony. On his return to London he was unable to secure further judicial appointment for some years during which he returned to the Bar. Eventually after he secured a patron again he obtained a posting to Gibraltar. There his tenure on the bench was marred by further disputation with the governor. As it happened in New South Wales he is sued by a litigant in Gibraltar. However the proceedings against him in the Privy Council were dismissed. His retirement followed and he pursued his many interests of botany, natural science and Elizabethan literature. For a time he was a noted Shakespearean commentator. His death took place shortly after his retirement.

ii Table of Contents

Acknowledgements iv

Abbreviations v

Introduction 1

Chapter One – Hunt for a career 19

Chapter Two – New Horizons 50

Chapter Three – A court awakes 91

Chapter Four – Emancipist stirrings 125

Chapter Five – Eagar’s challenge to Judge Field 163

Chapter Six – Convict stain 188

Chapter Seven – After New South Wales 226

Conclusion 260

Appendix A – Table of cases 263

Appendix B – Rules of court 296

Bibliography 312

iii

Study to show thyself approved unto God, a workman that needeth not to be ashamed, rightly dividing the word of truth. 2 Timothy 1:15 Authorised (King James) Version.

Acknowledgements

Firstly, I owe my thanks to Dr. John Bennett for inciting my interest in Australian Legal History as a law student in the 1970s. He acted as a mentor, suggesting the path that I have taken to this point. For a time Emeritus Professor Bruce Kercher continued in this role. Finally Dr. Lisa Ford became one of my supervisors. Her patience throughout the writing of this thesis has been infinite and her encouragement and guidance, much needed. Associate Professor Anne O’Brien was equally supportive. In the final stages of preparation I have been greatly indebted to Peter Moore for his editorial skills. To my wife, throughout, I thank her for her understanding during my mental and physical absences and her unswerving belief that our normal lives would one day be resumed.

iv

Abbreviations

ADB – Australian Dictionary of Biography.

BT – Bonwick transcripts, Mitchell Library.

DNB – Oxford Dictionary of National Biography.

E.R. – English Reports.

H.R.A. – Historical Records of Australia.

HTG – Hobart Town Gazette.

LPI – Land and Property Information, a division of the Department of Finance and Services, New South Wales Government.

ML – Mitchell Library, State Reference Library of New South Wales.

NLA – National Library of Australia.

NLS – National Library of Scotland.

SC – Supreme Court of Civil Judicature of the Colony of New South Wales.

SG – Sydney Gazette and New South Wales Advertiser.

SR – The State Records Authority of New South Wales.

SRL – State Reference Library of New South Wales.

TNA – The National Archives.

v INTRODUCTION

This thesis is a biographical study of Barron Field, judge of the Supreme Court of Civil Jurisdiction of New South Wales, hereinafter the Supreme (civil) Court, for the years 1816–1824. I give particular emphasis to the relationship between his judgments and colonial politics. The thesis contributes to legal history, the political role of colonial courts and to judicial biography. Courts were crucially important to a newfound convict colony for many reasons. As Neal has pointed out, ‘litigation was often politics carried on under another name’ in early New South Wales.1 Courts were compelled to resolve social, economic and political conflicts in this strange and unfree society.2 Judges were also central political actors. John McLaren has pointed out that in some colonies, tensions existed between judges and the executive. In this context he refers to the effects of personality and personal relationships in early nineteenth century colonial history.3 If judicial conflicts were endemic in Empire, then they were particularly acute in the convict colony of New South Wales. Field was involved in trenchant social, political and legal conflicts with successive colonial administrations. Barron Field and his court, then, form a key part of the story of the early settlement of New South Wales.

Studies of the transformation of legal practice in the civil courts of the Macquarie period are incomplete. A growing coterie of scholars has examined the interaction of indigenous Australians with criminal courts in colonial Australia. Lisa Ford and Brent Salter reviewed the trial of Mow‐watty and Governor Macquarie’s efforts to bring order and law to New South Wales’ frontiers in 1816. Their purpose was to trace the remnants of an older understanding of sovereignty

1 David Neal, The Rule of Law in a Penal Colony: law and power in early New South Wales (Cambridge, U.K.: Cambridge University Press, 1991), 88. 2 Ibid., 25. 3 John McLaren, Dewigged, Bothered and Bewildered; British colonial judges on trial, 1800–1900 (Toronto: Published for the Osgoode Society for Canadian Legal History and the Francis Forbes Society for Australian Legal History by University of Toronto Press, 2011) – for personality problems see 18, relationships 36.

1 in empire and rudiments of a new ‘territoriality’ in the colony.4 Windeyer made a tepid start on the history of civil jurisdictions in 1938. But his published lectures merely mentioned the existence of the colonial courts and reprints of his work over twenty years did not enlarge on the subject.5 J. M. Bennett and Alex Castles stimulated interest in the study of legal history.6 Bruce Kercher, J. F. Nagle, and C. H. Currey focussed on the informality of law before 1824 and its transformation in the wake of the New South Wales Act 1823.7 Kercher has exhaustively researched the history of civil law until 1814. Bourke and Lucadou‐Wells’ research into civil law in Van Diemen’s Land only focused on debt in the period 1804–1833 drawing on local records.8

This thesis is the first full‐length study of civil law in New South Wales from 1814 until the establishment of the Supreme Court in 1824. Kercher and Brent Salter have published the decisions of the Supreme (civil) Court.9 Castles wrote on the reception of English law and the protracted campaign for jury trial.10 Bennett and Forbes’ general discussion of the courts commenced at 1850.11 Bennett’s most notable contribution to Australian legal history is his study in progress of

4 Lisa Ford and Brent Salter, ‘From Pluralism to Territorial Sovereignty, The 1816 Trial of Mow‐ watty in the Superior Court of New South Wales,’ Indigenous Law Journal 7, no. 1 (2008): 67. Ford and Salter refer to P. G. McHugh, Aboriginal societies and the common law a history of sovereignty, status, and self­determination (Oxford; New York: Oxford University Press, 2004), Chapters 1 and 2. 5 W. J. V. Windeyer, Lectures on Legal History (Sydney: The Law Book Company of Australasia Pty. Ltd., 1938, second edition 1949, second edition revised 1957). 6 J. M. Bennett and Alex C. Castles, selected and edited by, A source book of Australian legal history: source materials from the eighteenth to the twentieth century (Sydney: Law Book Co., 1979); Alex C. Castles, ‘The reception and status of English Law in Australia,’ Adelaide Law Review 2, no.1 (1963– 1966): 1. 7 Bruce Kercher, An Unruly Child: A History of Law in Australia (Allen and Unwin Pty Ltd: St. Leonards, 1995); Debt, Seduction and other disasters (Sydney: The Federation Press: Annandale, 1996); J. F. Nagle, Collins, The Courts and the Colony: Law and Society in Colonial New South Wales (Sydney: University of New South Wales, 1996); C. H. Currey, Sir Francis Forbes (Sydney: Angus and Robertson, 1968); 4 Geo. IV c. 96 (1823). 8 John F. Bourke and Dr. Rosemary Lucadou‐Wells, ‘Debt in Van Diemen’s Land 1804–1833: life’s adversities, the law and an attempt to find a balm,’ University of Notre Dame Australia Law Review 9 (2007) and ‘The Spectre of debt in Van Diemen’s Land 1817–1831 and some ameliorations,’ Macquarie ResearchOnline. http://hdl.handle.net/1959.14/21368. 9 Bruce Kercher and Brent Salter, The Kercher Reports: decisions of the New South Wales superior courts, 1788–1827 (Sydney: Francis Forbes Society for Australian Legal History, 2009). 10 Reception see footnote 4; Alex C. Castles, ‘Judiciary and Political Questions: The First Australian Experience 1824–1825,’ Adelaide Law Review 5 (1973–6). 11 J. M. Bennett and J. R. Forbes, ‘Tradition and Experiment: Some Australian Legal Attitudes of the 19th century,’ University of Queensland Law Journal 7, no. 2 (1970–1).

2 Australian Chief Justices. Chronologically, he commenced with a revision of Currey’s Sir Francis Forbes. Bennett did not revisit this account of the Macquarie years.12 Nor did Bennett intend his analysis of the Bigge reports to be a history of the colonial courts.13 Salter has focused on the colonial Civil Court from the late eighteenth century to 1815.14 Castles’ An Australian Legal History gives little detail about the history of the Supreme (civil) Court.15 This thesis fills the gap in the understanding of the way in which this court addressed the problems it faced of providing justice for a community comprising both free settlers (hereinafter “free”) and those of convict origin. In that process it laid the foundations of civil law jurisdiction for a developing colony.

The Civil jurisdiction was arguably the most important forum for social and economic conflict in Macquarie’s New South Wales not least because Field’s court determined the place in colonial society of convicts and adjudicated over the contest between the free and unfree. The growing commitment among colonial judiciaries to the rule of law, and the effect of personality and personal relationships in early nineteenth century colonial history added to the importance of the jurisdiction. The issue of emancipist legal status was key to the wider question of their status in colonial society. In the colony’s earliest years the population was predominantly transported convicts. When freed, some emancipated convicts (or emancipists) quickly superseded the initial domination in trade and commerce of the military officers of the local garrison.16 Free settlers, an exclusive class, resented the success of those convicts and their increasing wealth. The legal ramifications of conviction and its relationship with colonial politics, however, have been less studied. In Britain, following sentence of death

12 J. M. Bennett, Sir Francis Forbes: First Chief Justice of New South Wales, 1823–1837 (Sydney: The Federation Press, 2001). 13 J. M. Bennett, ‘Day of Retribution–Commissioner Bigge’s Inquiries in Colonial New South Wales,’ American Journal of Legal History 15, no. 1 (1971). 14 Brent Salter, ‘Lachlan Macquarie and the rule of Law,’ Australian Bar Review 33, no. 3 (2010): 224. 15 Alex C. Castles, An Australian Legal History (Sydney: The Law Book Company Ltd., 1989), 90, 105, 106‐7, 110‐11. 16 See D. R. Hainsworth, The Sydney Traders 2nd ed. (Carlton, Victoria: Melbourne University Press, 1981) for the leading account of the military’s role in commerce.

3 after conviction of a capital felony, a person became a convict attaint – the effect was civil death.17 An attainted person was unable to sue but could be sued. Was this common law doctrine to be applied strictly in the colony? Colonial practice on this subject was subject to flux. Since 1788 convicts who remained under sentence of transportation and the important group of emancipist traders who emerged in the early years of colonisation were permitted to sue.18 Yet the question of their status before the law remained unresolved. Were emancipists restored to legal subjecthood by the mere expiration of their terms of transportation, by conditional pardons, or even by the full pardon of the governor of New South Wales? Formal law suggested that they were not. And yet, throughout the 1810s, emancipists appeared unchallenged as litigants before the court. Neal argues convicts had ‘some legal rights’ and that ‘[t]he courts provided an invaluable, strategic and legitimate means of political expression in the colony.’19

In the pages that follow I investigate the breakdown of this tenuous settlement in the late Macquarie period. Governor Macquarie not only tried aggressively to promote emancipists in public office and society, he attempted to force transported attornies onto the roll of practitioners. He did so at an inopportune moment – when the British Government had moved to reform the civil jurisdiction in the colony by appointing J. H. Bent as the first civil judge to a new Supreme Court of Civil Jurisdiction. The British Government recalled J. H. Bent, when he resisted the governor’s interference. London went further, disbarring former convict attornies from practice.

The most important legal contests of the decade took place before Barron Field. Once Field emerged as the leader of opposition to emancipists, the ex‐convict attorney Edward Eagar responded with attacks on his administration of his

17 K. J. Kesselring, ‘Felony Forfeiture in England, c.1170–1870,’ The Journal of Legal History 30, no. 3 (2009) is a general study of attaint; Kercher, Debt, Seduction, and Other Disasters and An Unruly Child, are comprehensive studies of attaint in the colony. 18 Kercher, Debt, Seduction and Other Disasters, 49; An Unruly Child, 22‐3; ‘Perish or Prosper; The Law and Convict Transportation in the British Empire, 1700–1850,’ Law and History Review 21, no. 3 (2003): 545‐7. 19 For legal rights see David Neal, ‘Free Society, Penal Colony, Slave Society, Prison?’ Historical Studies 22, no. 89 (1987): 509; for expression see Neal, Rule of Law, 22.

4 court.20 As a political agitator, Eagar used the courts to advance emancipists’ interests – making it a pivotal theatre for the determination of emancipist legal status in the colony. He began by seeking reforms of Field’s court. Field’s response brought convicts’ legal status to the forefront and mired the courts and the colony in political upheaval. In doing so, Eagar made an enemy of the fractious judge. Field then used the courts to suppress Eagar’s political and personal ambitions. Field’s judicial decisions and his personal conflict with Eagar caused a crisis over one of the most divisive/contested issues in the history of the convict colony – the status in court of the emancipist majority. Their conflict escalated to the point where Field sought to have withdrawn the civil rights of all ex‐convicts, after they had been regarded as having been restored on their emancipation. His actions threatened an economic and social crisis in the colony and influenced the nature of class relations for decades to come.

The importance of the issue of ex‐convicts’ rights in the Macquarie period has been widely acknowledged.21 However, the centrality of Field and his court has yet to be fully explored.22 This thesis also investigates Field’s impact on colonial politics and the development of civil law more generally – an impact that has gone largely unrecognised. In short, the history of the growth of the law in the colony when many of the foundations for rapid expansion were being laid, has yet to be told. This is surprising given the importance of the Macquarie period and its civil courts to colonial history.

20 Noel McLachlan, ‘Edward Eagar, (1787–1866): A Colonial Spokesman in Sydney and London,’ Historical Studies: Australia and New Zealand 10, no. 40 (1963): 435; Paul Edwin LeRoy, ‘The Emancipists, Edward Eagar and the Struggle for Civil Liberties,’ Royal Australian Historical Society Journal 48, no. 4 (1962): 279. 21 Field has been a subject of national biographies. See Peter Balmford, DNB and C. H. Currey, ADB. K. G. Allars wrote a fuller account, ‘Barron Field: his association with New South Wales,’ Journal of the Royal Australian Historical Society 53, no. 3 (1967). Macquarie’s biographers, M. H. Ellis, Lachlan Macquarie (Sydney: Angus and Robertson Publishers, Famous Australian Lives Edition 1978) and John Ritchie, Lachlan Macquarie (Melbourne: Melbourne University Press, 1988) discussed the Eagar–Field conflict also. John Hirst, Freedom on the Fatal Shore: Australia’s First Colony (Melbourne, Vic.: Black Inc., an imprint of Schwartz Publishing Pty. Ltd. 2008) and Neal, Rule of Law have traversed the conflict that arose over the legal effect of the governor’s remission of the time or term of a convict’s period of transportation. 22 Kercher has recognised that the legal conflict between Eagar and Field that arose over the governor’s remission had the potential to create political upheaval – see ‘Perish or Prosper,’ 551.

5 Colonial judges ranked near in importance to the Governor. Military officers were figures of authority, but played no part in the administration of the colony after the overthrow of Governor Bligh in 1808. Landsman notes the growth in importance of English judges from the 1770s, following the development of their ‘dispassionate detachment’ in the ‘growing acceptance of litigation … as a legitimate means of challenging government action … [and] the fundamental right of citizens to speak.’23 Neal agrees, noting that judges received considerable political power because of the rule of law.24 McLaren emphasises the importance of legal institutions and the growing commitment among colonial judiciaries to the rule of law.25

This thesis places new emphasis on Field’s prominence in the development of civil law in the Macquarie era. During Field’s tenure legal practice was modelled on English precedent. Field permitted innovative pleading that suited local peculiarities. Yet Bigge considered him to be a failure as a judge, giving as his reasons that Field was too politically motivated and lacked the temperament for a convict colony.26 Solely on this opinion Field was recalled, tantamount to dismissal, not for his lack of judicial abilities but for his political leanings.27 It was this shortcoming that earned Judge Field official disapproval. The Colonial Office was always aware of the proclivity of judges to be ‘politically suspect and unduly sympathetic to local interests’.28 The Colonial Office believed that Field’s recall would be a step towards allaying the hostility that he had evoked between emancipists and exclusivists. The resultant conflict was both legal and political, best told through a study of the lives and ‘the passions’ of those involved.29

This thesis continues the work of McLaren, Neal and Kercher by focusing in

23 Stephan Landsman, ‘The rise of the contentious spirit: Adversary Procedure in Eighteenth Century England,’ Cornell Law Review 75, no. 3 (1989–1990): 503, 582, 584. Landsman points to the reform movements of the 1760s and 1770s when social reformers used the law to achieve reforms in such areas as the abolition of slavery and freedom of speech. 24 Neal, Rule of Law, 25. 25 McLaren, Dewigged, , Bothered and Bewildered, 44. 26 John Ritchie, Evidence to the Bigge reports vol. 2, The written evidence (Melbourne: Heinemann, 1971), 171. 27 McLaren, Dewigged, , Bothered and Bewildered, 18. 28 Ibid. 29 Neal, Rule of Law, xii.

6 on the political, personal and legal dimensions of one of a pivotal, but relatively neglected figure, and his place in colonial law. The thesis is a study of the development of civil law in this era, and a detailed account of the importance of the Supreme (civil) Court in assisting the growth of colonial commerce. The court assisted in the maintenance of the rule of law even though Field used it for political purposes in suppression of the right of free speech. In his hands the court became a political weapon used by the exclusivist colonists to dominate the convict class. Field used his office to maintain his place in exclusivist society.

Colonial Civil Courts

Civil courts in New South Wales had a fragile legitimacy. Their authority derived from Royal Letters Patent and not from an Act of Parliament. At the commencement of Macquarie’s governance, administration of the civil law continued in the Court of Civil Law as it had done from the founding of the colony. From 1788 until the inauguration of the present day Supreme Court of New South Wales in 1824, a legal officer known as the Deputy Judge Advocate (‘the Judge Advocate’) administered criminal law. From 1814, following the abolition of the Civil Court, civil law was supervised by the Judge Advocate in the Governor’s Court and a judge in the Supreme (civil) Court.30

The Supreme (civil) Court was established in 1814 by the British Government to answer calls for reform of the Civil Court, for demands for trial by jury and for representative government. The colonial economy was becoming more complex by its shift from the harvesting of natural resources for export, to the manufacturing of goods wares and merchandise for local consumption. The government responded to those demands by establishing a court with slightly broader jurisdiction than the court it replaced. The most significant feature of the

30 The Governor’s Court had jurisdiction up to and including £50. Above that sum the Supreme (civil) Court resolved all other matters – Second Charter of Justice – HRA IV, I, 86.

7 reforms was the appointment of a judge to the court, one who possessed, within the limits of the Second Charter of Justice, the powers of a judge of the superior courts of law at Westminster. The creation of the Supreme (civil) Court was very important. It was a partial concession to the demands for self‐government.

The courts of New South Wales until the 1830s were summary.31 Their decisions on questions of fact were reached in the absence of juries. This was not a novel concept for in England courts of summary jurisdiction had developed over many years for the purpose of the speedy and inexpensive disposal of civil complaints. Apart from the criminal court that tried the convicts that came to the colony, the only experience of the law of most persons was a summary court.32 Access to and the cost of legal services have always had implications for the quality of justice enjoyed by individual citizens.33 Providing the benefits of summary justice was the responsibility of the legal officers sent to the colony to constitute its courts.

Kercher and Salter have noted the formalisation of the civil law that began under Judge Advocate Ellis Bent at the commencement of Macquarie’s governance in 1810.34 An important part of this thesis is its account of the increase of formality with the arrival of Field seven years later. One of the free attornies, Frederick Garling, introduced strict pleading into the colony.35 His adherence to the mode of pleading of the superior courts of Westminster was accepted by Field. Field also accepted further innovations from the attornies. One of great assistance to the development of commerce at an important moment was foreign attachment. It was

31 See R. v. Magistrates of Sydney [1824] NSWKR 3; [1824] NSWSupC 20 for the empanelling of juries in Quarter Sessions. By consent of the parties in the Supreme Court after 1824, jury trial was possible in civil matters – Kercher, An Unruly Child, 72. 32 Peter King, ‘Summary Courts and Social Relations in Eighteenth Century England,’ Past and Present 183, no. 1 (2004): 165. 33 Mark Blacksell and Charles Fussell, ‘Barristers and the growth of local justice in England and Wales,’ Transactions of the Institute of British Geographers 19, no. 4 (1994, New Series) 482, 492. 34 Kercher, Debt Seduction and Other Disasters, 1‐4, An Unruly Child, 49; Salter, ‘Lachlan Macquarie and the rule of Law,’ 222. 35 Plaint filed 8 December 1815, Steven and others v. James Underwood and another, SR, SC Cause papers 9/2251.

8 sanctioned by the colonial legislature many years later.36 Field not only approved strict pleading, he introduced arcane court rules, and less often, more strict adherence to precedent.

Importantly, this thesis uses comprehensive analysis of case‐load to track the impact of formalisation and of key decisions on litigation in the colony. Researching court records to analyse the status of litigants is rarely undertaken. Cornelia Hughes Dayton’s purpose in investigating Connecticut cases from 1639 to 1789 was to determine the frequency and nature of litigation that brought women before the courts.37 This present dissertation differs by attempting the classification of every litigant in nearly 1,700 cases before the Supreme (civil) Court to determine whether they arrived free or were transported ( for more information, see Appendix A). This was undertaken because the most important issue in the colony in an environment of growing complexity and formalism was the status of convicts and emancipists before the court. Indeed, the status of emancipists before the court during Field’s tenure precipitated a legal and political crisis.

This analysis shows that, from its inception, Field’s court remained an important place for convicts and emancipists to obtain redress. From 1810, Ellis Bent followed the local custom of ignoring the rule of law that prevented an attainted person from suing.38 His brother, Judge J. H. Bent, who was appointed to the new Supreme (civil) Court in 1814, signalled the antipathy to convict attaint he would show by refusing admission to court of ex‐convict attornies. The issue of attaint also plagued Field’s new civil court. His stance on this issue fluctuated. At first he opened his court to all persons unless an inability to sue from attaint could be immediately proven. He changed his views in time to allow adjournments for the purpose of allowing proof to be obtained of attaint, chiefly for personal and political reasons.

36 HRA, 1, XX, 764. 37 Cornelia Hughes Dayton, Women before the Bar: Gender, Law and Society in Connecticut, 1639– 1789 (Chapel Hill and London: Published for the Institute of Early American History and Culture, Williamsburg, Virginia by the University of North Carolina Press, 1995). 38 Kercher, An Unruly Child, 33.

9 Under Field there was creativity and flexibility. He permitted the adaptation of remedies and the development of new causes of action. In time Field changed his views on attaint and emancipists’ legal rights were severely diminished. However he did not renege on his other positive adaptations.

Biography

This dissertation is a biography of Barron Field as well as his court. Biographies are growing in importance in colonial histories. I set out to prove the value of overlaying a biography on the history of an institution. This is to capitalise on the recent development of biographical study as an important tool in historiography. In a recent study Margot Finn attributes to Edward Thompson’s The Making of the English Working Class the resurgence of importance in the study of biographical interpretation of key figures.39 Finn points to Thompson’s use of ‘the logic of overarching economic phenomena and … the idiosyncrasies of individual life stories’ to combine ‘macro‐ and micro‐historical developments’. Following Thompson’s model the thesis is a study of the place of a judge who for economic reasons sought his appointment in the subaltern society that Britain rapidly constructed in the colony. Finn’s study explains why subjects made their life choices of employment.40 An abundance of material on Field’s early life permits an understanding of why he joined the colonial service. It also explains how family formation shaped this engagement and influenced his relationships in the colony with the criminal class.

Biography involves the decentring of stance and subject matter. Decentring requires the telling of the story of Field not only from the vantage point of the colony but also from a wider scope, socially and geographically, with ‘plural

39 Margot Finn, ‘Anglo‐Indian Lives in the Later Eighteenth and Early Nineteenth Centuries,’ Journal for Eighteenth Century Studies 33, no. 1 (2010): 51. 40 Ibid., 54.

10 voices’.41 It is an important way of researching colonial history because the Macquarie era in New South Wales coincided with what Kathleen Wilson describes as an empire‐wide transition from ‘early modern to modern forms of colonial governance.’42 The similarity of Macquarie’s governance with other colonies is striking, suggestive of a shared network of belief in ‘virtue and manners’ that was intended to control behaviour and impose spiritual guidance both within and without the household.43 Paternalism emerged as a common mode for governing colonial populations. ‘[F]amily and sexual relations’ in the colony were replicated ‘as markers of national affiliation and colonial authority’.44 Macquarie’s ‘paternalism’ is evident in his benevolence to the convicts in his care. He attempted to introduce them into colonial society at government house and favoured them in appointments to official positions. He shortened the period of time in which convicts were granted liberation. Some were speedily granted ‘tickets of leave’ that allowed them to work on their own account, many received in short time remissions of their time or term of transportation.

Field’s biography plays a part in personalising ‘the processes of globalisation that shaped British imperial history …’.45 Since he was ‘caught up in the social, cultural, political and economic upheavals’ of the colony, Field’s actions and responses to the structural changes that people from varying social classes were attempting to bring about, permits an understanding of the class tensions that existed in New South Wales.46 Field’s experiences also demonstrate the stability and malleability of the colony’s class structure. The ramifications of his legal clashes with Eagar over the status of emancipists before the court are well understood but micro‐history reveals ‘factors previously unobserved’.47 By

41 Natalie Zemon Davis, ‘Forum: Holberg Prize Symposium: Doing Decentred History: Decentring History: Local Stories and Cultural Crossings in a Global World,’ History and Theory 50, no. 2 (2011) 190. 42 Kathleen Wilson, ‘Rethinking the Colonial State, Family, Gender, and Governmentality in Eighteenth‐Century British Frontiers,’ The American Historical Review 116, no. 5 (2011): 1297. 43 Ibid., 1298. 44 Ibid., 1319. 45 Finn, ‘Anglo‐Indian Lives in the Later Eighteenth and Early Nineteenth Centuries,’ 52. 46 Ibid. 47 See Hirst, Freedom on the Fatal Shore, 147‐8, Currey, Sir Francis Forbes, 32‐6, Neal, Rule of Law 178, for example.

11 altering the scale of observation these events ‘previously considered to be sufficiently described and understood assume completely new meanings’. The Eagar/Field contest is a ‘micro‐macro link’ of a nature that brings together ‘the deeper, inner structural elements of a larger social whole’. Because the actors were a judge jealous both of his own social status and of the success in trade of a wealthy disbarred attorney, the contest assists in understanding the interrelationship between emancipists’ and exclusivists’ ‘systems of beliefs, of values and representations on the one hand, and social affiliations on another’.48 I use biography to construct the stance of Eagar and Field to each other and their worlds ‘so that they are understandable in terms of the range of values of their day.’49

Biography is also an excellent tool for the study of the history of colonial institutions. Identity studies assist in the understanding of the British Empire as a connected space.50 The personal networks that Field developed were as important as the formal rules of his court. He had little personal patronage after falling out in the colony with Judge Advocate John Wylde. However, because of his position at the head of an institution he developed networks with the officials of the Colonial Office and with elites in the colony, which linked people, places and events.51 Until the British Government sent its own investigator to New South Wales, it was reliant on the networks with officials like Field for communication from it. The information he conveyed did assist in ‘the governance of Britain’s colonies’ that

48 Matti Peltonen, ‘Clues, Margins and Monads: The Micro‐Macro Link in Historical Research.’ History and Theory 40, no. 3 (2001): 349. 49 Joan W. Scott, ‘Forum: Holberg Prize Symposium: Doing Decentered History: Storytelling,’ History and Theory 50, no. 2 (2011): 206. 50 David Lambert and Alan Lester, eds. ‘Imperial Spaces, Imperial Subjects,’ in Colonial Lives across the British Empire: Imperial Careering across the long nineteenth century (Cambridge: Cambridge University Press, 2006), 6. 51 Ibid., 5.

12 relied heavily on this type of source.52 Zoe Laidlaw points out that careers were affected by the information that men like Field communicated to London.53

This thesis does not attempt to be a definitive biography capturing every detail of Field’s life. His many influences on the ‘cultural contexts’ of the colony must necessarily be told elsewhere. Broadly, savings banking, the introduction of Elizabethan dramatists and poets and the flora and (to a lesser extent) fauna of the colony were some of his interests.54 Therefore this thesis is restricted to Field’s part ‘within the broader sweep of events, and within the complex economic and political contexts’ of his time in the colony.55 Biography permits a contrast between Field and John (later Sir John) Wylde, Field’s contemporary in the colony. Although both men were strongly opposed to emancipists’ aspirations for social equality, Wylde did not vie with Field for prominence in colonial politics. It is only because Field was a judge in New South Wales for seven years that his life is important to colonial history. Biography permits understanding of the political, juridical and cultural events of these years.

Field illustrates very clearly the blurred boundaries between institutions and personalities because he abused the institutional power of the court for his own ends. In different hands the courts could have been utilised to bring about assimilation of emancipated convicts into society. Instead, Field sought personal advancement by seeking leadership of exclusivist society and, for a short time, of the government. On behalf of exclusivists Field used the courts to oppose Macquarie’s efforts to transform New South Wales from a penal colony to a free

52 David Cannadine, Ornamentalism, how the British saw their empire (New York and Oxford: Oxford University Press, 2001), 11, quoting Zoe Laidlaw, Colonial Connections 1815–45: Patronage, the information Revolution and Colonial Government (Manchester: Manchester University Press, 2005), 5. 53 Laidlaw, Colonial Connections, 120. 54 Field’s interest in the commencement of Savings Banking in England at the time of his appointment led to his founding of the Convict Savings Bank that about a hundred years later was absorbed into the Commonwealth Savings Bank of Australia. In his judgments Field quoted from Shakespeare and other writers. Field collaborated with English and continental botanists in the discovery and naming of Australian plants. He published at his own expense the first book of poetry in Australia on flora and fauna themes. 55 Miles Ogborn, Global Lives: Britain and the World 1550–1800 (New York: Cambridge University Press, 2008), 9.

13 society.56 Neal made the point that colonial magistrates enjoyed political power.57 Judge Field used his considerable influence on the magistracy to subvert that power so far as he was able for political purposes. Judge Field mired the courts in political controversy by using them to interfere in the governance of convicts. Following Macquarie’s departure, for a time Judge Field ruled the colony as a de facto governor. He soon overreached himself and his downfall followed.

Chapter outline and approach

This is a history of a man and a court in a transformative moment in New South Wales’ history. My portrayal of Judge Field depicts a man none of whose many talents befitted him for the task of administering justice in a penal colony. Field’s struggle to establish a career is the subject of the first chapter. It illustrates the difficulties that Field overcame in making his own way in the world in the early years of the nineteenth century as a member of the large family of a middle class gentleman. At first Field ventured upon a career in the literary world that he soon abandoned for the law. He employed deceit to gain entry to the Inner Temple to qualify as a barrister but as a lawyer whose literary talents were superior to his forensic skills, he failed to establish a practice at the Bar. Employment as a judge in a colony on the other side of the world was an opportunity presented to few fellow practitioners struggling to succeed. Field’s good fortune in obtaining appointment illustrates the degree to which patronage trumped talent and training in the early nineteenth‐century colonial service.

Chapter Two spans Field’s acceptance of the position of judge, his preparations for travel and his arrival in the colony in order to demonstrate how social status was maintained and augmented by colonial officials travelling from the metropolis to the colonies in general, and how Field’s early response to issues of social status laid important ground work for the history of the colony and his court in this period. Field seized the opportunity to advance in society and status.

56 Neal, Rule of Law, 88. 57 Ibid., citing E. S. Hall, 115.

14 The Fields expected to enter the upper class of colonial society and made their arrangements accordingly. When they arrived Judge Field came under the influence of Governor Lachlan Macquarie. Field soon learned that free colonists resented Macquarie’s policy of leniency to emancipists. Field came to realise that the most important political issue in the colony was opposition by the most exclusive of the free colonists to the governor’s policies.

Field was therefore faced with a difficult decision. He had to choose between Government House and his desire to belong to the upper circles of elite colonial society that offered respectability and the highest moral standards. John Macarthur returned to the colony from his long exile some months after Field’s arrival. Field immediately came under his influence and Macarthur induced him to abandon the governor’s society and throw in his lot with the exclusivists. The faction that formed around Macarthur, the Parramatta Party, dominated the course of colonial politics from that time forward. So well was Field converted that he became its public face.

Chapter Three identifies Field’s court as the centre of colonial conflict. The political struggle for admission to court waged by emancipist lawyers had blighted the administration of justice throughout the Macquarie period. The question had crippled the civil courts and was one of the earliest legal issues dealt with by Field and Wylde on their arrival in the colony. This chapter examines the problem of emancipist legal status before the court, in order to provide background for the legal issues in the Field era. It argues that the Supreme (civil) Court’s closure from 1814 to 1816 had only marginal impact on commerce in the colony (suggesting that informal mediation resolved commercial issues while the court was closed). Meanwhile, the barring of emancipist lawyers from court from 1816 onwards laid the groundwork for the legal and political crisis about emancipist legal status that convulsed the colony in 1820.

Chapter Four shows how Field developed the potential of the court to control colonial politics. At first Field favoured Macquarie’s policies of leniency towards emancipists and he facilitated their access to the court. However Field

15 was not pro‐emancipist. To assist creditors he permitted innovative pleadings of which one eventually received legislative sanction. This chapter is based on my examination of each of the cases that have survived. The few law reports that appeared in the Sydney Gazette were those written for publication by the judge. Accordingly only archival court records reveal the extent of the relationship in trade and commerce between the free and the emancipated convicts. Analysis of the litigation demonstrates considerable commercial interaction between these groups. It also reveals the impact of political and social struggle on litigation over the life of the court. This however was of only colonial importance. In London, closure of the courts to emancipists only circulated in the Colonial Office. The tables suggest that locally some types of litigation varied according to political tension.

Chapter Five traces the growing animus of emancipists against the court. Emancipists were disadvantaged by the complex court rules Field introduced and the extent of the court’s fees and attornies’ charges he permitted. These were some of the factors that induced Edward Eagar to enter colonial politics. Possibly Eagar’s ‘democratic ideas and abolition of social distinction’ so inflamed Field that it led to his resistance because it constituted a ‘subversion of the natural order based on rank and wealth’.58 This chapter is an account of Eagar’s rise from obscurity in the colony to his role in challenging Field and his court over its costs and rules. From this point the governor had no control over events. The animosity between Eagar and Field escalated with increasing severity into mutual attacks in the courts. Ultimately Field defended himself by relying on the doctrine of attaint against Eagar, depriving him of the right to sue. This course of action had potential to prevent all attainted emancipists in the colony from suing before the court.

In this chapter I also track the impact of the Field–Eagar controversy on commerce in the colony. Neal concluded that Field’s bias towards Eagar ‘promised to bring the emancipist dominated commerce of the colony to a standstill.’59 My

58 Neal, Rule of Law, 10‐11. 59 Neal, Free Society, 513.

16 investigation of the records of Field’s court proves firstly that free colonists dominated commerce by 1817 and secondly that commerce was affected temporarily but not brought near the point of a standstill by the conflict between Eagar and Judge Field. Commerce soon regained its former vigour and in the long run emancipists recovered the slight setback that the conflict caused.

Chapter Six commences with Eagar’s mobilisation of emancipist support to oppose the catastrophic predicament brought about by Field’s actions. Eagar demonstrated the extent of their disabilities. Macquarie was powerless to intervene in the crisis but assisted emancipists by forwarding their petition seeking remedial legislation to London. Emancipists voted to send Eagar to work for this legislation. Possibly when news of the litigation between Eagar and Field reached England the Colonial Office despaired not only of Macquarie’s pro– emancipist policies but also of Field’s potential as a judge. Macquarie was recalled in 1820 and Field’s recall was decided on soon after.

With the departure of both Macquarie and Eagar the emancipist crisis abated. After the arrival of Governor Brisbane, Macquarie’s successor, Field and Major Goulburn, the colony’s first Colonial Secretary, administered the colony in Brisbane’s name. The importance of emancipists in commerce and trade began to decline. Field continued to use his legal and political power to disadvantage emancipists and, as a result, his influence in government began to wane. The judicial power he employed to punish a political adversary was defeated when his opponent retained the confidence of the colonial government. Field was a spent force in colonial politics by the time that notice of his recall reached him.

Chapter Seven commences with Field’s return to London. He pursued his agendas of further employment, advancing the interests of the colony’s chaplain, the Reverend Samuel Marsden and achieving membership of the Linnean Society, all with gusto. Even with Lord Bathurst’s patronage Field could not gain further judicial appointment. With Bathurst’s retirement Field had no prospects. He received a pension and returned to the Bar. His pension, in effect, revived his prospects of reappointment. The Colonial Office demonstrated that relieving a colony of the financial burden of paying a pension was of more importance than

17 reappointing a known judicial misfit. Field on the other hand was so desperate for employment he would have accepted a humble judicial position. However a late chance patron secured him a post in Gibraltar. Here, once again his faults resurfaced in settling court rules, personal conflict with the governor and ultimately judicial decisions that led to his being sued personally in the Privy Council. The stress of personal conflict induced Field to seek retirement and another pension. He spent his last years improving his reputation as an authority in the study of Elizabethan dramatists.

The significance of this study in combining personal biography with deep analysis of court records is the advancement of our understanding of the role of courts and judges in British colonies in the first quarter of the nineteenth century. From this study we learn of the growth of formality in the civil law, and the uses that both the free and the unfree made of the court. It was central to political as well as legal disputes. One of the main themes of the thesis is to show the role of both judges and the court in adjudicating on these disputes. In this way the thesis adds to our understanding of the deepest question in early colonial history in a convict colony – the status of emancipists in law and society in early New South Wales.

18 CHAPTER ONE

Hunt for a career

From a study of Barron Field’s life we learn that in early nineteenth‐century Britain and its empire, a young man could, with application, opportunity, the right connections and willingness, be appointed to an important colonial posting and achieve status and income far beyond his means in England.

To attain his goals, Field, at this very peculiar moment in history, had to overcome a number of obstacles. Some stemmed from his family’s Puritan dissenting beliefs and modest means. The English law of primogeniture determined that his father’s property descended to Field’s older brother. The opportunities open to the younger son of an apothecary were limited. In place of traditional genteel occupations, Field established a literary career, despite the limitations of connections and prospects. Many of his contemporaries, of far greater literary talent, struggled for years before achieving success.1 Yet Field overcame limitations (connections and prospects) to achieve modest success as a critic and writer of law textbooks.

Longing for greater success and status, Field found a way to read for the Bar, riding a wave of social change to do so. He found, however, that his ambitions were almost too over‐reaching. His connections could not secure him success as a barrister, but by a literary avenue, he met members of the Wylde legal family through whom he gained the patronage of the Colonial Office. Patronage secured an important judicial posting to New South Wales. Field learned at this time the

1 William Wordsworth (1770– 1850) struggled financially until 1816 – Stephen Gill, ‘Wordsworth, William (1770–1850)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, May 2010 [http://www.oxforddnb.com/view/article/29973, accessed 11 Dec 2012]. Field first admired Wordsworth in 1800 meeting him at essayist Charles Lamb’s in 1812 – see Barron Field’s Memoirs of Wordsworth ed. Geoffrey Little (Sydney: Sydney University Press for Australian Academy of the Humanities, 1975, 12, 121. Charles Lamb worked as a clerk until 1825– Peter Swaab, ‘Lamb, Charles (1775–1834)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http:// www.oxforddnb.com /view /article /15912, accessed 11 Dec 2012]; Field and Lamb met in 1809–J. E. Morpurgo, ed. Charles Lamb and Elia (Harmondsworth: Penguin Books, 1948) 275. Leigh Hunt and Field were friends by 1804. As an editor, writer and publisher, Hunt was always in debt–Nicholas Roe, ‘Hunt, (James Henry) Leigh (1784–1859)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Oct 2009 [http://www.oxforddnb.com/view/article/14195, accessed 11 Dec 2012].

19 value of patronage, the importance of which has been well demonstrated by Laidlaw.2 Thus a chance meeting led to the commencement of Field’s future career in the law. He also learned that journalism would never be as rewarding. This chapter will trace Barron Field’s failures and successes in his different fields of endeavour and in the process will show the foundational importance of networks in nineteenth century London. It tells us the Empire was often staffed not by aptitude but by happenstance.

Family, Religion and Class

Impediments imposed by Field’s family background were not insurmountable. The well‐connected Field family was respected in the worlds of science and social service. Its small income and its low social status were burdens to be overcome by seizing opportunities and working hard. Moreover, the difficulties its religion put in Field’s way could be overcome simply by abandoning it.

True to their non‐conformist beliefs, Field’s parents had him baptised in 1786 in the Independent Chapel in Haberdasher’s Hall, London.3 Puritanism had permeated Field’s paternal origins at least from the time of Grandfather John Field’s residence in the village of Stoke Newington and his membership of the Stoke Newington Society. This village was one of the centres of the theological and political battle that engaged many Protestant Dissenters from the 1770s until the early nineteenth century.4 John Field cemented his Puritan connections by marrying Anne Cromwell, granddaughter of Major Richard Cromwell, a grandson of Oliver Cromwell, Lord Protector of England, Scotland and Ireland for five years from 1653.5

2 Zoe Laidlaw, Colonial Connections 1815–45: Patronage, the information Revolution and Colonial Government (Manchester: Manchester University Press, 2005), 14. 3 Barron Field was born on 23 October 1786, to Henry Field and his wife Esther, (nee Barron). 4 Ana M. Acosta, ‘Spaces of Dissent and the Public Sphere in Hackney, Stoke Newington, and Newington Green,’ Eighteenth Century Life 27, no. 1 (2003): 2, identifies the important ideological and symbolic weight of the specified villages in dissent. Stoke Newington was ‘a very Elysian field of nonconformity’, ibid.,12. 5 Dee Cook, ‘Field, Henry (1755–1837)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2008 [http://www.oxforddnb.com/view/article/9386, accessed 11 Dec 2012]

20 Field’s dissenting background explains the family’s belief in the importance of ‘public duty’ and self‐help. John Field founded the London Annuity Society in 1765, a work continued by his son Henry, Barron’s father. It provided annuities to the widows of men who paid premiums to it.6 Hoppit relegates the many persons working in the increasingly important area of annuity and life assurance markets before 1800 to the ranks of ‘second‐rate mathematicians’.7 However the Fields were providing a service to the public that appears to have been voluntary. Its success can be gauged by its having 326 members in 1781.8

Public duty was foremost in Henry Field’s choice of occupation as an apothecary though it was a profession intent on improving its reputation. In the late seventeenth century physicians were gentlemen, while apothecaries were their servants and surgeons were mere craftsmen. By the end of the eighteenth century they were all part of the new professional classes. Apothecaries and surgeons enjoyed equally high reputations and social standing.9 Because of his success in improving the reputation of apothecaries Henry Field was highly respected in Apothecaries’ societies.10 He defeated a rival candidate for the post of apothecary to Christ’s Hospital, London, a school for the education of poor children. His income of £200 annually was modest compared to Barron Field’s £800 per annum in the colony but greater than apothecaries’ salaries in other establishments.11

Field received a thorough education. He was not recorded as a student at Christ’s Hospital, despite his father’s role there. Only the children of the poorest

6 Ibid. 7 Julian Hoppit, ‘Political Arithmetic in Eighteenth‐Century England,’ The Economic History Review 49, no. 3 (1996): 529. 8 Richard Price, Observations on reversionary payments: on schemes for providing annuities for widows, and for persons in old age: on the method of calculating (London: T Cadell and W Davies, 1803), 94. 9 Bernice Hamilton, ‘The Medical Professions in the Eighteenth Century,’ The Economic History Review (New Series) 4, no. 22 (1951), [141]. 10 Dee Cook, ‘Field, Henry (1755–1837)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2008 [http://www.oxforddnb.com/view/article/9386, accessed 11 Dec 2012]. 11 House of Commons Parliamentary Papers Online Public offices employment Session 1830–1, paper no 92, p. 114 – Royal Hospital Kilmainham salary 1797 £55, 1810 £92; General Military Hospital Dublin 1797 £157 1810 £167.

21 families were admitted. Possibly Henry Field’s income was too great or he wished his son to receive a dissenting education. Where Barron was educated is unknown. It is likely to have been in one of the Dissenting Academies, perhaps the boarding school at Leam, Warwickshire, kept by his uncle William Field, a Unitarian minister.12 Although Barron Field was thoroughly grounded in Greek, Latin and French, he could not obtain a university education because there were religious restrictions on entrance to Oxford and Cambridge universities. He would have been required to accept the Articles of the Church of England agreed upon in Convocation in 1562 and ratified in 1571.13 Dissenters were effectively barred from matriculating there.14 It is doubtful that Henry Field, as a ‘Nonconformist father would permit his son to attend a university …’ where he would have to conform to the liturgy of the Church of England as it was established by law. Furthermore, ‘[d]issenting Academies offered wider and better teaching than the established universities in England.’15 Many public offices required an entrant to them to take an oath of one sort or another.16

12 The strong bond between Field and his uncle is evident in Field’s acknowledgment of his uncle’s influence on his education in his introduction to his An Analysis of Blackstone’s Commentaries on the Laws of England: in a series of questions, to which the student is to frame his own answers, by reading that work (London: T. Cadell and W. Davies, 1811). Field based its structure on William Field’s A set of questions, comprising the history of the four gospels and the acts of the apostles. With references to the scriptures instead of answers. Designed for the exercise and improvement of young persons (Birmingham: printed by John Thompson; and sold by J. Johnson, London, 1792). This method of teaching was recommended in the Critical Review June 1794, 221. William Field was the only senior family member to whom Field bequeathed a mourning ring on his death. In his arrangements for the printing and publication of George Evans, A Geographical, Historical and Topographical description of Van Diemen’s Land. (eventually published in London by John Souter, 1822) Field requested that John Murray, publisher, supply a copy to the Reverend William Field of Warwick. In his Memoirs of the life, writings, and opinions of the Rev. Samuel Parr LLD vol. 2 (London: Henry Colburn, 1828) 175, William Field relayed Dr. Parr’s friendly regards for Barron Field and expressed Dr. Parr’s approbation of his constitutional firmness and spirit in his duty, particularly in opposing impositions of the governor of New South Wales not authorised by Parliament. 13 W. M. Mathew, ‘The Origins and Occupations of Glasgow Students, 1740–1839,’ Past and Present 33, (April 1966): 76, 79; for the Articles of the Church of England see the Book of Common Prayer of the Church of England (London: the Syndics of the Cambridge University Press) 335. 14 Timothy Larsen, ‘A.S. Peake, the Free Churches, and modern biblical criticism,’ Bulletin of the John Rylands University Library of Manchester 86, no. 3 (2004): 26. 15 M.D. Stephens and G.W. Roderick. ‘Education and the Dissenting Academies.’ History Today 27, no. 1 (1977): 47, 49. 16 When called to the Bar, Field had to abandon his dissenting principles if he retained them, and swear ‘on the true faith of a Christian’. If he had not done so, he could not have taken his call – see Enid Campbell, ‘Oaths and Affirmation of Public Office under English law: an Historical Retrospect,’ The Journal of Legal History 21, no. 3 (2000): 18.

22 Although Puritan beliefs prevented Field from gaining a university education, cost was another factor. As a younger son of a middling family, Field had to make his own way in the world. The opportunities in employment open to a younger son of a ‘middling’ eighteenth century respectable family were a career in ‘the army, the navy, the church, the bar, or the senate.’17 Accordingly, one of Field’s brothers conformed and rose within the Anglican clergy.18 His elder brother took over his father’s thriving apothecary business in Newgate Street, London.19 These were established professions that had the prospect of ensuring a reasonable income. But Field did not emulate his brothers. As we shall see, he sought much more glamorous career paths in which his family connections were of little help. When Field coupled his social pretensions with a belief in his own abilities he stepped aside from the conventional career paths of his brothers.

Apart from the Cromwellian connection, a further point of distinction lay even deeper in the family’s history. It pointed to intellectual standing, to scholarly and publishing erudition, but it too was problematic. The Fields lay claim to an earlier John – the natural philosopher John ‘Feild’, or ‘Felde’, the sixteenth century astronomer and astrologer.20 Collins defines natural philosophy as ‘a medieval discipline whose subject of study encompassed natural phenomena and the causes of natural effects without recourse to mathematics.’21 Feild was also a compiler of almanacs, and their astrology ran him into trouble. He was arrested it is thought

17 Respectability – Mike J. Huggins argues, ‘The ideology of middle‐class respectability had become dominant by the 1840’s’ in ‘More Sinful Pleasures? Leisure, Respectability and the Male Middle Classes in Victorian England,’ Journal of Social History 33, no. 3 (2000): 586; for a legal career see Michael Miles, ‘‘A Haven for the Privileged’: Recruitment into the Profession of Attorney in England, 1709–1792,’ Social History 11, no. 2 (1986): 198. 18 Joanna Hawke, ‘Field, Frederick (1801–1885)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/9383, accessed 11 Dec 2012]. Frederick Field unlike his brother Barron, went to Christ’s Hospital thence Cambridge where he won high academic honour in biblical studies. After a lifetime of church service he was honoured with a memorial in his church and another in the chapel of Trinity College, Cambridge. 19 Dee Cook, ‘Field, Henry (1755–1837)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2008 [http://www.oxforddnb.com/view/article/9386, accessed 11 Dec 2012] 20 C. W. Sutton, ‘Feild, John (c.1520–1587)’, rev. Stephen Johnston, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/9388, accessed 11 Dec 2012]. 21 David J. Collins, ‘Albertus, Magnus or Magus? Magic, Natural Philosophy, and Religious Reform in the Late Middle Ages,’ Renaissance Quarterly 63, no. 1 (2010): 2.

23 for casting a royal horoscope of Queen Mary (1516–1558). Astronomy and astrology were hardly differentiated according to Hetherington. There was very little astronomy to be found in almanacs.22 Harkness explains that in the transitional period in which John Feild worked, the household bridged the gap between monastery and laboratory as a site for the practice of natural philosophy.23

Barron Field publicised his connections both to John Feild and to Cromwell by using their armorial bearings and crests as bookplates and seals. From about 1450 many persons used and collected bookplates.24 They denoted ownership at a time when books were so valuable they were chained to bookcases to prevent theft. The collecting of bookplates is documented in England from early in the nineteenth century. Because the design of a bookplate had to be drawn by an artist, engraved on copperplate and then printed, the inference was the owner had wealth and status. Field clearly used these crests and seals as a claim to pedigree and status.25 In this way he was no different from members of landed families who changed their armorial plates each time their status changed.26

22 Norris S.Hetherington, ‘Almanacs and the Extent of Knowledge of the New Astronomy in Seventeenth Century England,’ Proceedings of the American Philosophical Society 119, no. 4 (1975): 275. 23 Deborah E. Harkness, ‘Managing an Experimental Household – The Dees of Mortlake and the Practice of Natural Philosophy,’ The History of Science Society 88, no. 2 (1997): 248‐9; John Feild was an associate perhaps a pupil of John Dee, Elizabethan England’s most eminent natural philosopher. Through marriage and the Reformation, natural philosophers were excluded from the two chief medieval sites of knowledge–the monasteries and the universities. They were not yet absorbed by the independent laboratories and academies that would soon take centre stage in scientific culture. It was in Field and Dee’s time that their households bridged the gap. 24 Zella Allen Dixson, Concerning Bookplates – A Handbook for Collectors (London: Wisteria Cottage Press, 1903), xv; for their collection in Australia see Mark Ferson, ‘John Lane Mullins, father of the Australian Bookplate movement,’ Journal of the Royal Australian Historical Society 89, no. 1 (2003) 38. 25 See James Raven, ‘The Representation of Philanthropy and Reading in the Eighteenth‐Century Library,’ Libraries and Culture 31, no. 2 (1996) 508, who argues that libraries and ‘the visual emblems of their design’ upheld distinction; Ferson, ‘John Lane Mullins, father of the Australian Bookplate movement,’ 38, reasons that bookplates were used in the colony by the ‘gentry and those wishing to be considered as such.’ 26 I am grateful to Dr Geoffrey Vevers for his assistance in my understanding of Field’s bookplates and seals. He drew my attention to Edward Potten’s article, ‘‘A great number of Usefull books’: The Hidden Library of Henry Booth, 1st Earl of Warrington (1652–1694),’ Library and Information History 25, no. 1 (2009): 35, which refers to this custom and directed me to Tony Pincott, a compiler of British bookplates, who provided me with scans of a number of Field family bookplates most of which depict an armillary sphere.

24 However, if one’s use of heraldry was to symbolise, represent and identify lineage, scientific distinction and landed gentry background, Field’s bookplates emphasised a strange mix of nonconformity and secularism.27 John Feild received on 4 September 1558 ‘confirmation of his family’s arms as well as the grant of a crest featuring an astronomical motif: an arm issuing from clouds and holding an armillary sphere’ a device that showed the path of the heavenly bodies.28 Barron Field incorporated in his bookplates and seals elements of Feild’s crest, as well as a reference to Cromwell’s arms. In this way Field and his father and uncles created a tribute to their ancestors that he would share with those sufficiently well educated to understand the symbolism. It was not lost on his literati acquaintances.29 Before Field departed for New South Wales, Charles Lamb played a prank on Sir Walter Scott, by using Field’s seal on a letter to Sir Walter. Sir Walter ‘read’ the sign and was puzzled how Lamb had acquired Cromwellian connections.30

Life, Literature and Law

A maturing Field discovered his innate love of literature. At fifteen years of age he subscribed to Juvenilia, an early work of Leigh Hunt, himself a child literary genius. By 1804 a personal relationship had developed between the two young men.31 Hunt recognised Field’s literary talent and ambition and he encouraged Field to consider a career in journalism. Their correspondence over the next ten years reflects the tensions that abounded in their adolescent friendship.32 It also provides insight into the complexities of a literary career in nineteenth century

27 Ottfried Neubecker, with contributions by J. P. Brooke‐Little, Heraldry (Twickenham: Macdonald & Co, 1997), 252. 28 C. W. Sutton, ‘Feild, John (c.1520–1587)’, rev. Stephen Johnston, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http:// www.oxforddnb.com /view/article /9388, accessed 11 Dec 2012]. 29 B. A. Cerf & D. S. Klopfer, The Complete Works and Letters of Charles Lamb (New York: The Modern Library, 1935) 860, Lamb to Bernard Barton, 11 March 1823. 30 Ibid. 31 By 1804 Field and Hunt were constant companions–Ann Blayney, ‘The Courtship of Marianne Hunt,’ Books at Iowa 23, no. 2 (1975): 4. 32 Field to Leigh Hunt, 3 December 1812, British Library Department of Manuscripts Add. Ms. 38108, f. 65.

25 England. Field was never more than a fringe member of the ‘Cockney School’ of literary figures who surrounded Hunt.33

Field’s interest in journalism and literature was fostered at Thomas Hill’s ‘Sydenham Sundays’ and by his coffee shop friendships.34 Another influence was Charles Lamb. His fame rests on Lamb’s Tales from Shakespeare and Essays of Elia.35 Lamb presided over a circle of literary leaders. At the weekly evenings in his rooms Field usually mixed with Samuel Taylor Coleridge, William Wordsworth and other writers of genius.

Leigh Hunt influenced Field’s views on life and literature for a dozen years. As its theatre critic, Leigh assisted his brother John, a printer and publisher, in founding The News in 1805. At this time Field, encouraged by Leigh, secured employment with The Times as its parliamentary and court reporter and its first theatre critic.36 He was probably assisted in obtaining the position by his friendship with John Payne Collier, son of John Dyer Collier who in 1804 joined The Times as a law and parliamentary reporter.37 In 1806 John Payne Collier was also appointed to a position with The Times.38 It is no coincidence that the theatrical notices from 1805 in both The Times and The News became more spirited and candid than previously, because of the involvement of both Hunt and Field in these

endeavours. Field was not writing in the traditional style of journalism. Under Hunt’s influence, Field’s style was more independent and trenchant. Although they wrote anonymously, Richard Brinsley Sheridan accused Field of reviewing his play

33 Jeffrey Cox, Poetry and Politics in the Cockney School: Keats, Shelley, Hunt and their Circle. (Cambridge : Cambridge University Press, 1998), 20. 34 Brian Cowan, ‘The Curious Mr. Spectator–Virtuoso culture and the man of taste in the works of Addison and Steele,’ Media History 14, no. 3 (2008): 275. 35 Lamb’s tales from Shakspeare (sic): designed for the use of young persons (London: Pigot and Co., 1837; The essays of Elia (London: s.n., 1853). 36 No certain date is known but it was believed to be in 1805–6, Philip Howard, We Thundered Out (London: Times Books Ltd, 1985), 134. 37 Friendship with Collier, see Field to Collier, ‘Brighton’ 27 March 1842, signed ‘Your faithful old friend’ NLA, FRM F 738; Arthur Freeman and Janet Ing Freeman, ‘Collier, John Payne (1789–1883)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http:// www.oxforddnb.com /view /article/5920, accessed 11 Dec 2012]. 38 Ibid.

26 The Critic. Although Hunt was the author in Field’s absence, nonetheless the famous playwright threatened Field with libel ‘or worse’.39

Field and the Hunt brothers mingled at Thomas Hill’s with actors, writers and editors.40 The Hunt connection bore Field further fruit when they founded the Examiner in January 1808 for Field was an early contributor. Among his pieces in Theatrical Examiner was a review of ‘Mr Young’s Hamlet’ performed at the Theatre Royal, Haymarket and Outlines of the history of Covent­Garden Theatre.41 Field’s assistance helped the Hunts to bring the Examiner ‘in a few months to a powerful position’.42 By now Field was immersed in the publishing world. In addition to his Times and Examiner responsibilities he accepted the editorial role of The Cabinet, a Monthly Report of Polite Literature in late 1808. This sort of opportunity came from connections made from meeting editors and writers at Sydenham.

Although Field had promising connections with the Hunts and The Times in journalism, he was not satisfied with his rate of professional progress. He was not one of the young Cockney poets who were striving hard to pave their way out of the grime of London.43 Poetic success relied on patrons and genius though at least one had neither, the successful poet Barry Cornwall.44 He hit on a popular style of writing that earned him fame for two years from 1819 after which he fell into obscurity.45

39 Richard D. Fulton, ‘Walter, John (1776–1847)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, May 2007 [http://www.oxforddnb.com/view/article/28637, accessed 11 Dec 2012] For the review that Sheridan believed was written by Field see The Times Friday, 7 August 1807 3a issue 7119. Leigh Hunt covered for Field whilst he was in Hastings–Field to Hunt 11 August 1807, British Library. Department of Manuscripts In Add. MS. 38108, f. 5. 40 www.lewisham.gov.uk/…/ LewishamArchivesCatalogue 1971–1980.pdf. 41 Examiner 26 June 1808, 415a‐b; 25 September 1808, 620b–621a, both signed ‘BF’. The last performance for the season of Mr Young’s Hamlet was 15 September 1807 – see The Morning Post of that date, issue 11411, 2c. 42 Edmund Blunden, Leigh Hunt’s Examiner Examined (London: Cobden, Sanderson, 1928), 3. 43 Christopher Rovee, ‘Trashing Keats,’ English Literary History 75:4 (2008): 993. 44 Barry Cornwall was a pseudonym. See James Sambrook, ‘Procter, Bryan Waller (1787–1874)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, May 2007 [http://www.oxforddnb.com/view/article/22835, accessed 11 Dec 2012]. 45 Richard Marggraf Turley, ‘ “Breathing human passion’: Keats, Cornwall, Shelley and popular romanticism,’ European Romantic Review 19, no. 3 (2008): 270‐1; like Field, Cornwall was a lawyer, unlike Field he inherited a respectable annuity that sustained him till fame gathered.

27 Cornwall’s popularity eclipsed both John Keats who never knew success in his lifetime and Percy Bysshe Shelley.46 Had Field achieved Cornwall’s success, he may have continued to pursue a literary career. However, with a temperament that demanded peremptory results, Field decided on a legal career. As a member of the literary and publishing world, he was aware of the close connections between literature and law. He was a court reporter and journalist and made the leap to law. English history was replete with men who attended the Inns of Court and did not study the law seriously but were prominent in literature.47 Of those who were called to the Bar, many became eminent jurists and were in addition, notable writers.48 Two men who were known to Field, the editors of The Times and The Monthly Mirror, were both barristers. They took their call the year Field entered the Temple.49

46 Kelvin Everest, ‘Keats, John (1795–1821)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, May 2006 [http://www.oxforddnb.com/view/article/15229, accessed 11 Dec 2012]; Michael O’Neill, ‘Shelley, Percy Bysshe (1792–1822)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2009 [http://www. oxforddnb.com /view /article/25312, accessed 11 Dec 2012]. 47 See the following for examples. P. J. Finkelpearl, ‘Beaumont, Francis (1584/5–1616)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Oct 2006 [http://www.oxforddnb.com /view/article/1871, accessed 11 Dec 2012]; Gordon Turnbull, ‘Boswell, James (1740–1795)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, May 2006 [http://www.oxforddnb.com/view/article/2950, accessed 11 Dec 2012]; Douglas Gray, ‘Chaucer, Geoffrey (c.1340–1400)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, May 2012 [http://www.oxforddnb.com/view/article/ 5191, accessed 11 Dec 2012]; H. R. Woudhuysen, ‘Sidney, Sir Philip (1554–1586)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, May 2005 [http://www.oxforddnb.com/view/article/25522, accessed 11 Dec 2012] 48 Allen D. Boyer, ‘Coke, Sir Edward (1552–1634)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2009 [http://www.oxforddnb.com /view/article/5826, accessed 11 Dec 2012]; Michael Lobban, ‘Brougham, Henry Peter, first Baron Brougham and Vaux (1778–1868)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2008 [http://www.oxforddnb.com/view/article/3581, accessed 11 Dec 2012]; Wilfrid Prest, ‘Blackstone, Sir William (1723–1780)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Oct 2009 [http://www.oxforddnb.com/view/article/2536, accessed 11 Dec 2012]; Edith Hall, ‘Talfourd, Sir Thomas Noon (1795–1854)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/26951, accessed 11 Dec 2012]; Vincent Newey, ‘Robinson, Henry Crabb (1775–1867)’, Oxford Dictionary of National Biography, Oxford University Press, 2004[http://www. oxforddnb.com/ view/article /23842, accessed 11 Dec 2012]. 49 Gordon Phillips, ‘Barnes, Thomas (1785–1841)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/1474, accessed 11 Dec 2012] Barnes succeeded Barron Field as The Times theatre critic and eventually became its editor; W. P. Courtney, ‘Dubois, Edward (1774–1850)’, rev. Rebecca Mills, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2008 [http:// www.oxforddnb.com /view/article/8116, accessed 11 Dec 2012]Dubois was the editor of The Monthly Mirror.

28 Field enrolled in the Inner Temple in June 1809, just as his role as editor of The Cabinet ended when it merged with The Monthly Mirror. Field used deceit to enter the Inn. He relied on the inclusion of his name in Clarke’s New Law List for 1808 and 1809, as an attorney in practice at Farrar’s Buildings, Inner Temple.50 Field’s ruse of slipping into the law lists as an attorney without having served articles or being admitted to court was so commonplace that it was of concern to the authorities.51 ‘There was no power to prevent them.’52 The deceit was perpetrated by delivering into the Stamp Duties Office a note in writing containing the name and place of residence of the attorney and stating that he was at liberty to practise as an attorney. On payment of a fee of £12 he received a certificate asserting that he was at liberty to practise ‘if duly admitted or inrolled’.53 On production of the certificate to the publisher of the law list the ‘attorney’ was included with the others.54 There is no record of Field having served articles or of being admitted to court as an attorney.55 Field was therefore an ‘understrapper’ or

50 The legislative basis of admission to court as an attorney after 1729 was set out in (1729) 2 Geo. II c. 23 s. 5. Five year’s service as an articled clerk in an attorney’s office was required. With Field’s name in the published list of attorneys, a presumption arose that he had served his articles and thereby qualified for admission to the Inner Temple. There is no mention of Field in Holden’s Triennial Directory 1805–1807 and supplement 1808. This suggests that Field was not in practice as an attorney at all. Email from Alison Brown, Service Assistant, National Art Library, Victoria and Albert Museum, London to author 25 November 2010; Field did reside in Farrar’s Buildings – see Field to Sir Edgerton Brydges 22 September 1809, NLS Ms. 3873, 267. 51 Practice – P. J. Corfield, Power and the Professions in Britain 1700–1830 (London: Routledge, 1995), 78; Concern – Leonore Davidoff and Catherine Hall, Family Fortunes (London: Unwin Hyman Ltd., 1987), 262. 52 Joyce Burnette, Gender, Work and Wages in Industrial Revolution Britain (Cambridge: Cambridge University Press, 2008), 292. 53 1846 (686) Report from the Select Committee on legal education: together with the minutes of evidence, appendix and index, House of Commons Parliamentary Papers, p. 166 [question 2183] (evidence of Robert Maugham, Secretary and Solicitor to the Incorporated Law Society, 7 July 1846). Later, the Stamp Office was prohibited from granting a stamped certificate until the registrar of attorneys certified that the party was on the roll 54 For a copy of the certificate granted to Thomas Amos see TNA, (PRO) reel 39 CO 201/83, 98. 55 E‐mail from Dr. Clare Rider to author 24 November 2005 – searches in TNA (Common Pleas) CP5 index and CP5/167 affidavits 1713–1837 revealed no trace of Barron Field; further e‐mail 27 April 2006 –searches in King’s Bench Attorney’s Residence Book 1790‐1815 (KB 169/1) and the King’s Bench attorney indexes for the same period (KB 170/15‐160 prove Field was not a King’s Bench attorney; the only other court attorneys and solicitors roll for the period is the Exchequer Court (equity side). A search of the roll covering 1772 to 1843 (E200/1) ceasing at 1810 had no reference to Field. The Exchequer Court (Pleas) employed its own officers as attorneys therefore there are no rolls; Dr. Rider searched the Inner Temple chamber’s rental book for 1803–14 (CHA/2/3) for references to Farrar’s Buildings. Field is not mentioned by name therefore he was a sub‐tenant or an employee of one of the tenants.

29 ‘hedge attorney’ practising irregularly.56 By this stratagem he evaded the premium payable to an attorney for articles of clerkship. In the period 1799–1803 the national average payable was £180.57 As well, £110 in duty was payable on articles of clerkship and other fees to gain admission to the Inner Temple. These amounts were more than most persons earned in a year.58

Field now had to consider how he would support himself during his five years as a student. It was not going to be easy. Most gentlemen students had private incomes and the Inns attempted to exclude men from entering the Bar without independent means. One method was to forbid students from practising as court reporters or journalists: which, in theory, prevented Field from pursuing his former occupations.59 If detected as having a connection with a newspaper he would have had no possibility of being called to the Bar.60 Field had a stratagem that enabled him to continue his law reporting, however. If challenged on why he had a note pad in court he could rely on his being a law student. It was a method of learning the law. He could conceal the fact that he was a paid court reporter for a newspaper.61 Field reviewed his means of subsistence four months after he entered the Temple. He gave The Times notice that he could only continue his court reporting but sought additional work from John Hunt on The News, provided that

56 ‘Hedge‐attorney’ was coined by Jonathan Swift in the eighteenth century –see J. H. Neumann, ‘Jonathan Swift and the Vocabulary of English,’ Modern Language Quarterly 4, no. 2 (1943) 202; Swift used the word hedge as in hedge‐doctor, hedge‐lawyer, hedge‐marriage, to indicate something done under a hedge, in the sense of working at the roadside, done clandestinely, some action or thing that was inferior or paltry. Corfield, Power and the Professions in Britain 1700–1830, 77. 57 Miles, ‘‘A Haven for the Privileged’: Recruitment into the Profession of Attorney in England, 1709–1792,’ 203. 58 R. V. Jackson, ‘The structure of pay in nineteenth‐century Britain,’ Economic History Review 40, no. 4 (1987): 563‐4. 59 Field to John Walter, ‘Temple, Tuesday Novr. 7th 1809’, Stanley Morison, ed. The History of The Times (London: written, printed and published at the Office of the Times, 1935–(2005) vol.1, 95. 60 At the time Field wrote, the society of Lincoln’s Inn refused to call to the Bar any person who had written for hire in newspapers. A person affected, petitioned the House of Commons and the rule was rescinded – The Reflector Vol. 1, no. 1, Art. V 43‐52 ‘The Law Student’ 45; see also T. H. Ford, ‘Brougham as a barrister: Courtroom dilemmas of a notorious radical,’ The Journal of Legal History 5, no. 3 (1984): 112. 61 In 1812 he was still writing law reports for The Times – see Field to Leigh Hunt, Temple 3 December 1812, British Library Department of Manuscripts, Add. MS.38108, f. 65.

30 he could preserve his anonymity.62 However he openly proclaimed authorship of the elegy in memory of a deceased friend, published in the Examiner whilst still a student at law.63 Occasional contributions apparently were overlooked, assumed to originate from noble sentiments.

Field also relied for income on a further opportunity to write anonymously that had come about early in 1809. John Murray (1778–1843), a leading London publisher proposed to establish a new journal to be called the Quarterly Review. Several times, unsuccessfully, Field sought work as one of its reviewers.64 Field tried a different path. He travelled to the 17th century poet Robert Herrick’s place of residence in Devonshire, to research and write a review of his work. Murray withheld Field’s review from publication, until something was needed to make up an issue, because he remained unconvinced that Field had sufficient talent ‘to write in such a Review’.65 Field could not point to his previous literary experience because all his work at The Times and The News was written anonymously and the standard set by Field in The Cabinet did not impress Murray. When Murray’s editor conceded that ‘… Field’s article … is lively and amusing’, Murray gave way and Field’s article appeared in the Quarterly 27 October 1810.66 There is little record of what contributors were paid but Field received income for this and subsequent articles. It was the beginning of a lifelong relationship between Field, John Murray and John Murray junior. Besides publishing further articles of Field’s, Murray would publish works sent to him by Field on behalf of others from the colony.67

In 1810 the Hunts responded to Field’s importuning by offering him an opportunity to collaborate in the introduction of a new era in periodical literature.

62 Reporting only, Field to John Walter, 7 November 1809, Morison, The History of The Times, 95; additional work, Field to Leigh Hunt ‘Temple, Monday’ – British Library, Department of Manuscripts Add. MS. 38108, f. 7. 63 Inscribed to the memory of Daniel Parken Esq – Examiner, 8 November 1812 715a. 64 Field to Murray, 2 February 1809, noted ‘3/2/09 decline’; Field to Murray, 1 March 1809 – Ms. 40401, John Murray Archives NLS. 65 Murray to William Gifford, 25 September 1810, Quarterly Review Archive, no. 112, Article 11, 4, no. 7 Quarterly Review 4, no. 7 (August 1810). 66 Ibid. 67 Field forwarded George Evans’ manuscript of Van Diemen’s Land to John Murray for publication. See Field to Murray, 1 February 1821. Ms. 40401, John Murray Archives NLS ; James Vaux Memoirs see Field to Murray 13 December 1817, 24 August 1819, Ms. 40401, John Murray Archives NLS.

31 After their success with the Examiner they followed with the Reflector. It offered a new kind of miscellany that proved successful in appealing to a newly enlarged reading audience.68 Field and the Hunts effected a revolution in periodical journalism by ‘rendering obsolete the outmoded magazine form typified by the Gentleman’s Magazine.’69 Of all his literary successes, Field made the most serious attempt to preserve his anonymity in the Reflector, with a cryptonym of three daggers, rather than signing his contributions ‘BF’ as he did in the Examiner.

Field’s contributions to the Reflector were more sustained than for the Examiner. For the Reflector he relied on his early legal experiences to write a series of ‘letters from a law student’ that remain highly informative. Overall his contributions varied from interesting to whimsical, droll and puritanical.70 The topics were insanity, wealth, gentle jesting on Shakespeare and the Bible, and writing at the midnight hour. These contributions together with those of the Hunt brothers earned mutual recognition.

Now that he was reading for the Bar and still looking to supplement his income from court reporting and anonymous writing, also in 1810 Field turned his attention to writing on legal topics. He became part of the ‘explosion’ in legal publishing that arose from two recent developments. Firstly, with the end of perpetual copyright in 1774, a lesser period of copyright applied by statute.71 Secondly, the exclusive patent for printing law books (‘law patent’) awarded by the

68 David Stewart, ‘Filling the Newspaper Gap: Leigh Hunt, Blackwood’s, and the Development of the Miscellany,’ Victorian Periodicals Review 42,no. 2 (2009): 156. 69 Periodic journalism view see Howard, We Thundered Out 87; Morison, The History of The Times, 135; outmoded magazine see Stewart, ‘Filling the Newspaper Gap’, 156. 70 ‘Interesting’ – Reflector vol. 1, no. 1, Letter 1, 1810, ‘The Law Student’ 43‐52; Reflector vol. 1, no. 2, Letter II ‘The Law Student’ 1811, 374–380; Reflector vol. 2, no. 3, ‘Letter III, 1811, ‘The Law Student’ 113–122; ‘Whimsical’ – Reflector vol.1 no. 2 ‘What Constitutes a Madman?’ 479–482; Reflector vol. 1, no. 1, ‘On Early and Late Hours’ 107–113; ‘Droll’ – Reflector vol. 1, no. 2, 1811, ‘Effects of Wealth’ 482–484; Reflector vol. 1, no. 1, ‘Shakespeare Sermons’ 29‐35; Reflector vol. 2, no. 4 ‘Character of an Exaggerator’ 448–449; ‘Puritanical’‐ Reflector vol. 1, no. 2, 1810 ‘Is it Justifiable to Reprint the Pruriencies of Our Old Poets?’ 365–370. 71 By (1709) 8 Anne c. 19 s. 1 new works remained in copyright for fourteen years; Tariq A. Baloch, ‘Law Booksellers and Printers as Agents of Unchange,’ Cambridge Law Journal 66, no. 2 (2007): 409.

32 crown to whomever it pleased, came to be regarded as ‘an almost empty privilege that would not be enforced by the courts.’72

Field grasped the opportunity to participate in and profit from the surge of legal publishing. He had also experienced first‐hand the informality of legal education. These circumstances motivated him to write an Analysis of Blackstone’s Commentaries on the Laws of England. By this means, he hoped to earn money while providing a learning tool for law students. Unwittingly, he also set himself a precedent. Blackstone had published his famous commentaries after his lectures on English law and before his elevation to the bench. In this way Field’s career mirrored Blackstone’s, as he too, while still only a law student, published his best‐ known work before taking judicial office.73

Here, Field’s law reporting served him well. He was able to write his Analysis while still only a student at law. He was not the first to write on Blackstone. Abridgements had appeared in 1796 and 1809.74 Field’s innovation was the turning of each of Blackstone’s propositions into a question and then to indicate the page number of his own work where the answer was to be found. He conceived this idea when he read that Blackstone in his introductory lecture as Vinerian Professor in 1758 said that the student had still ‘by a tedious lonely process to extract the theory of law from a mass of undigested learning.’75 Field exploited Blackstone’s labour to make the information contained in his commentary accessible to students.76

Field offered his Analysis in manuscript in 1810 to the original publishers of

72 Baloch, op. cit. 413; Blackstone’s opinion and his own printing of his Commentaries on the Laws of England suggests he was of that view– see Vol. 2 410; however he did sell his copyright in the Commentaries to the law printer William Strahan – see Wilfred Prest, William Blackstone (Oxford: Oxford University Press, 2008), 274. 73 Prest, Blackstone, 205. 74 William Curry, The commentaries of Sir William Blackstone, Knt. On the laws and constitution of England (London: Printed for W Clarke and Son, 1796; 2nd ed. corrected and enlarged 1809). 75 James Bryce, Studies in history and jurisprudence (Oxford: The Clarendon Press, 1901); Elibron Classics series, Adamant Media Corporation, vol. ii. 2006, 491; Barron Field The Reflector vol. 1 no. 1 ‘The Law Student’ –Letter 1, 1810, 48. 76 Philip J. Stern, ‘‘Rescuing the Age from the Charge of Ignorance’: Gentility, Knowledge, and the Exploration of Africa in the late Eighteenth Century,’ in A New Imperial History – Culture, Identity and Modernity in Britain and the Empire, 1660–1840, ed. Kathleen Wilson, (Cambridge: Cambridge University Press, 2004),123.

33 the Commentary.77 After a barrister approved it, Field sought advice from one of the Sydenham literati and another qualified barrister, Edward Dubois, on the payment he should seek for the effort.78 Dubois advised him to ask £50 for the copyright of the first edition, £25 each for the second and third, or £75 for the copyright ‘out and out for ever’. Another suggestion was £50 and a small share of the profits.79 Field took an independent route asking for an immediate advance of £50 against any sum agreed to be paid.80 The Analysis appeared in 1811. A review of it criticised Field’s compendium as an encouragement to idleness. But it was absolved from ‘the imperfections which belong to most catechetical works’ because it obliged the reader to analyse the Commentaries for himself. As a dissection of British constitutional law, its introduction into the higher forms of the public schools was recommended. Nor did its utility stop there. The military, the clerical and mercantile departments would benefit by its study, the reviewer urged: even members of Parliament would find it useful. The juvenile student would be better served by reading Field’s Analysis than by reading the logical technicalities of Aristotle. The review was probably Field’s own work.81 Good sense and high praise made an excellent advertisement.

In 1809 besides entering the Inner Temple Field made a friendship that altered the course of his life. He entered the essayist Charles Lamb’s literary circle.82 Here Field met Thomas Wilde, who chose this variant on the usual form of his family name of Wylde. Wilde, who rose in the law to become Lord Chancellor of England, was an attorney in partnership with Charles Knight at 7 Castle Street,

77 Field to Leigh Hunt 9 September 1810 ‘Rockford House’ (Totnes) – British Library Department of Manuscripts in Add. Ms. 38108. 78 Dubois, barrister and editor of The Monthly Mirror and Field met at Sydenham. 79 Field to Cadell and Davies 1 September 1810 – Bodleian Library, Oxford. Ms. Montagu d.13, fols. 47‐8 ; Field to Leigh Hunt 9 September 1810 – British Library Department of Manuscripts In Add. Ms. 38108, f. 12. 80 Field to William Davies, 24 November 1810 – Trinity College Library, Cambridge, Houghton 8/125. 81 Noticed in the Quarterly Review, May 1811 price 8s. The fuller notice referred to, appeared in The Critical Review or Annals of Literature of August 1811 3rd series vol 23 397‐9 possibly written by Field. 82 Morpurgo, Charles Lamb and Elia 275, believes Lamb and Field met in 1809. Field’s brother worked with Lamb at India House.

34 Falcon Square, London.83 Possibly Field worked for Wilde and Knight, because Wilde’s father, Thomas Wylde, married Mary Anne Knight and Field had a friend ‘Knight’.84

Thomas Wilde introduced Field to his father Thomas Wylde. Thomas Wylde had another son, John Wylde. All three were lawyers. John had been called to the Bar in 1805. He became the Deputy Judge Advocate of New South Wales (hereinafter Judge Advocate) and recommended Field to be the judge of the colony’s Supreme Court of Civil Judicature. Thomas Wylde emigrated to the colony with his son and was appointed its first Clerk of the Peace and Solicitor for the Crown.85

Called to the Bar

Attending the Court of King’s Bench as a Times reporter had been a good grounding in the law for Field.86 In the court, he came into contact with other students who gained auditory instruction by attending law courts. This may have encouraged his interest in a legal career.87 The Bar was an unlikely profession for a man of Field’s means and his experience there tells us much about the changing nature of society, legal education and the legal profession in the early nineteenth century. Until about the middle of the 18th century the Inns of Court were the exclusive province of gentlemen who sought a rounding of their education. It was just as important to become versed in the law as it was to master history, philosophy and languages.88

83 Clarke’s new law list, being a list of the judges and officers of the different courts of justice (London: J. & W. T. Clarke, 1813–4); email from Celia Pilkington to author, 5 March 2009; for Field’s meeting Thomas Wilde see James Beresford Atlay, The Victorian Chancellors vol.1 (London: Smith, Elder, 1906), 430 f.n. 2. 84 Field to Leigh Hunt, 16 February 1816 – British Library, Department of Manuscripts Add. Ms. 38108, f. 151. 85 SG, 4 January 1817, 1b. 86 Field to John Walter, 7 November 1809, Morison, The History of The Times, 95. 87 Paul Lucas, ‘A Collective Biography of Students and Barristers of Lincoln’s Inn, 1680–1804: A Study in the ‘Aristocratic Resurgence’ of the Eighteenth Century,’ The Journal of Modern History 46, no. 2 (1974) 227. 88 Province – David Lemmings, ‘Blackstone and Law Reform by Education: Preparation for the Bar and Lawyerly Culture in Eighteenth‐Century England,’ Law and History Review 16, no. 2 (1998): 212; Ann Wagner, ‘Idleness and the Ideal of Gentlemen,’ History of Education Quarterly 25, no. 1–2 (1985): 43.

35 From about 1750, there was a change in the class structure of those attending the Inns of Court. Young men of middle class origins were now making inroads into the law.89 The merchant class believed they displaced the gentry in political and social dominance because of their economic success and stance on morality. Merchants had increased their wealth much faster than the titled class and the rest of society.90

Whatever the origins of those attempting the Bar, they were presumed to have legal knowledge that came from the enrolment requirement of three years spent as an articled clerk to an attorney or attendance for that number of years at a university.91 William Blackstone lamented this threat to the undermining of the gentlemanly character of the profession. By learning their law at the desk of attornies and not at a university, they brought with them ‘mean careerism that undermined the traditional character of the Bar.’92

Because the Bar had previously been peopled with those who had a classical education, the Inner Temple’s entrance requirement was that the student had classical attainments such as knowledge of Latin and Greek.93 By this means the Inns of Court ensured the gentlemanly character of the Bar. Field could fulfil neither of the requirements that he had attended university or had been articled for three years. But intensive reading of Blackstone’s Commentaries had given him a more thorough grounding in the law than the training given by the Inner Temple for a call to the Bar.

Having bluffed his way into the Inn, all that was now required of Field was to keep twelve terms before taking the degree of Barrister at Law. If a student had previously attended a university, he was permitted his call in three years. Without university qualification, Field had to wait two further years, in effect keeping the

89 John Smail, ‘The Stansfields of Halifax: A Case Study of the Making of the Middle Class,’ Albion: A Quarterly Journal Concerned with British Studies 24, no. 1 (1992): 29‐30. 90 Peter H. Lindert, ‘Unequal English wealth since 1670,’ Journal of Political Economy 94, no. 6 (1986): 1136. 91 ‘The Law Student’ – Letter 1, 43, 46. 92 Daniel Duman, The English and Colonial Bars in the Nineteenth Century (London: Croom Helm Ltd., 1983), 19‐20. 93 1846 (686) Report from the Select Committee on legal education: together with the minutes of evidence, appendix and index, House of Commons Parliamentary Papers, vi.

36 twelve terms over five years. The student studied where and how he pleased, but the usual course was to become a pupil either of a special pleader, if he intended to practise at the common law bars, a pupil of an equity draftsman if at the chancery bar, or a pupil of a conveyancer, if he intended to become a conveyancing counsel. In these cases, only two years pupillage was required at an annual fee of one hundred guineas. The tutors were not necessarily barristers, being entitled to practise their branch of the profession without taking a call to the Bar. Their status in the barristers’ hierarchy was ‘under the Bar’, not being called to it, although their remuneration was possibly greater. The special pleader drew the pleadings on which a suit at law was argued, just as the equity draftsman laid the foundation for the suit in Chancery.94 At the Inner Temple students at law were called to the bars of the common law courts.

The training at an Inn of Court consisted of mooting and debating. It could be avoided by the payment of £5, or gone through as a matter of form. Prior to 1811, whilst still an attorney, Thomas Wilde in company with Leigh Hunt and Barron Field attended one of the many debating societies in which legal and political issues were argued.95 This then was not training at the Inn but extra‐ murally. Students at law attended either the Forensic Society or the New Forensic Society, clubs established especially for practice in the ‘Art of Speaking’ by members of the Inns of Court, to whom they were exclusively confined.96 The clubs attended by Field and Wilde held weekly meetings for the pupils of Joseph Chitty

94 ‘The Law Student’ – Letter 1 (1811) 1 The Reflector 43‐52. 95 See Donna T. Andrew, Introduction to and compilation of London debating societies 1776–1799 (London: London Record Society, 1994), 75; in 1780 a society for debating Cases and Questions in Law and Equity was held weekly at Staples Inn Coffee House, 137; in 1781 Students of Law were invited to attend a room contiguous to the Temple for public debate. A trial evening was held at the Mitre Tavern, Fleet Street, 321; in 1793 ‘Twelve Gentlemen Students of the Law’ intending to establish a Select Society for the discussion of Subjects having a claim to public notice, published in the Morning Herald rules of admission. 96 J. H. L. Hunt, The Autobiography of Leigh Hunt ed. J. E. Morpurgo (London:[SI]:[s.n.], 1949), 147‐8; Leigh Hunt recorded in his autobiography that he was for a short time a member of a club of young men where the art of public speaking was cultivated. He only joined to please his friend Barron Field and soon dropped away. Hunt mentioned that Thomas Wilde then an attorney in Castle Street, Falcon Square also attended. Wilde did not enter the Inner Temple until March 1811 – House of Lords Library HL/PO/LB/1/22

37 the elder at Lyon’s‐inn Hall, London.97 Lamb called them ‘Chitty‐lings’. Points were regularly mooted and the education was given that used to be experienced in readings, lectures and mootings (mock trials) in Inns of Court.98 Legal topics were selected and a few from each side argued before all joined in. It was an excellent system and most students attended.99

Aside from mooting and attending court, progress to the Bar consisted mostly of sitting around and taking part in its pageantry. Life in the Inner Temple was fashioned over hundreds of years. Each day in term time, Benchers (superior court judges) barristers and students were summoned to dinner in their Hall at four. Templars (members of the Inner or Middle Temple) were formerly called by the discharge of a cannon, but this was replaced by Field’s time by the ‘long winding of a horn …’ blown by the pannier‐man.100 It was an impressive sight, from the raised platform at the top of the Hall, at which the masters of the bench, or Benchers in their silk gowns ate in state, with barristers in their gowns eating at a table down the right side and students in their gowns without sleeves, on the other. In the centre blazed large open charcoal fires. Students were required to dine in commons twice in two full weeks. After the meal the Benchers went to their parliament chamber to take wine: the others drank it where they ate. ‘Paying, eating and waiting …’, a cynical Field wrote, were the only qualifications for admission to the Bar.101

With no organised method of teaching, the Inns permitted their members to practise without knowing them to be trained. The public did not suffer however, for unless the law was sufficiently studied a man would seek in vain for reputation and business. A man could practise all his life without taking the degree of Serjeant

97 1846 (686) Report from the Select Committee on legal education: together with the minutes of evidence, appendix and index, House of Commons Parliamentary Papers 166 evidence of Thomas Starkie, 7. 98 Edward W. Cox, The Advocate: his training, practice, rights and duties (London: J. Crockford, 1852), 7. 99 Ibid., 38. 100 The Law Student letter 1‐27 March 1810, 48. 101 The Law Student, letter 1‐27 March 1810, 49.

38 at Law or being appointed King’s Counsel. The custom of the Bar was to call men who did not reach those heights ‘young gentlemen’ no matter what their age.102

The call to the Bar followed completion of the requisite twelve terms.103 Following their call, students became utter barristers or outer barristers standing outside the bar of the court and wearing only stuff‐gowns as distinct from those within the bar, the Serjeants or Benchers (judges). It was not mandatory for a student at law to seek his call to the Bar once he had completed his requisite number of terms. Field was one of a minority who did so as a career rather than the rounding out of a gentleman’s upbringing.104 Field could have deferred his call to the Bar and practised under it as a special pleader or equity draftsman. This would have allowed him to gain experience and make connections before admission to the Bar.105 But, ever impatient and impetuous, Field desired as soon as he was eligible, to be called. Two practising barristers of five year’s standing proposed him on 23 June 1814.106 Field had to take an oath of office acknowledging the principal duties of a barrister, promising to perform them.107 At the time, the Bar was facing a population explosion. The number of barristers more

102 The Law Student, letter 1‐27 March 1810, 51. 103 The Law Student, letter 1‐27 March 1810, 46. 104 Duman, The English and Colonial Bars in the Nineteenth Century, 27. 105 Ibid., 83 106 Five year’s standing – C. M. Rider, ‘The Inns of Court and Inns of Chancery and their Records,’ Archives 24, no. 101 (1999): 32; had it not been for the destruction of many of the records of The Inner Temple in the Second World War, the names of the two barristers who proposed Field would have been ascertainable. Call records of The Inner Temple still exist for barristers called after 1840 – email of Adele Allen (Inner Temple) to author 23 October 2010. 107 The phrase he had to swear ‘on the true faith of a Christian’ was plainly directed at anti‐ episcopalians in the Roman or Free Churches, see U. R. Q. Henriques, ‘The Jewish Emancipation Controversy in Nineteenth‐Century Britain,’ Past and Present 40, (July 1968): 127; Phyllis S. Lachs, ‘A Study of a Professional Elite: Anglo‐Jewish Barristers in the Nineteenth‐Century,’ Jewish Social Studies 44, no. 22 (1982):127; for a full exposition see Campbell, ‘Oaths and Affirmation of Public Office under English law: an Historical Retrospect,’ 18; taking the oath required did not prove whether Field had abandoned his Puritan beliefs for the Annual Indemnity Acts relieved him of obligations under the Test Acts; see also K. R. M. Short, ‘The English Indemnity Acts 1726–1867,’ Church History 42, no. 3 (1973): 370 – ‘the old dissenters (Baptists, Presbyterians and Independents) rarely conformed to the Test Act by receiving the Lord’s Supper according to the rules of the Church of England in order to qualify himself for a place under His Majesty.’

39 than doubled in 35 years.108 The figures Duman provided necessarily could not distinguish practising barristers from those who were not active.

Once a barrister was called, he faced the considerable difficulty of earning a living. The opportunities for advancement were unlimited for one endowed with high intellect and solid industry but to get briefs, he needed connections none the less, true for an attorney and certainly as a barrister.109 The latter had to be briefed by an attorney. It was unethical to chase or tout for work from attornies. It was called ‘hugging’. Barristers at a ball could not even ask the daughters of attornies to dance.110

Following the call, great expense was incurred. Only young men from the wealthiest families could embrace the profession with ease. Several years might pass without a profit, while seeking some lucky opportunity to advance, waiting for the promotion, retirement, or death of a colleague in order to share something of his practice. Fortunate was he who after five or six years covered expenses.111 Connections initially assisted a young barrister, but ultimately, his success depended on his performance in court.112

After his call, Field could practise in most jurisdictions but not all locations. The common law restricted appearances in the Court of Common Pleas at Westminster to Sergeants or King’s Counsel. ‘Young gentlemen’ were permitted to appear in this court only on its circuits at nisi prius the practice of setting down for hearing all civil matters at Westminster.113 Matters were called on early when the judges travelled on circuit nearby to litigants’ homes or places of business. Westminster was reserved for cases argued on motions for new trial before the

108 Daniel Duman, ‘Pathway to Professionalism: The English bar in the Eighteenth and Nineteenth Centuries,’ Journal of Social History 13, no. 4 (1980): 619. In 1785 there were 379 at the bar. By 1790 the number had grown to 424. In 1800 it became 577, in 1810, 708 and by 1820 totalled 840. 109 Duman, The English and Colonial Bars in the Nineteenth Century, 202. 110 Explicitly set out by Dicey in 1867 – see W. Wesley Pue, ‘Exorcising Professional Demons : Charles Rann Kennedy and the Transition to the Modern Bar,’ Law and History Review 5, no. 1(1987): 147. 111 Charles Cottu, On the administration of criminal justice in England (London: R. Stevens, 1822), 141–2. 112 Duman, ‘Pathway to Professionalism: The English bar in the Eighteenth and Nineteenth Centuries,’ 617. 113 Field, The Law Student, letter 1‐27 March 1810, 51.

40 court in banc. As well as appearing in Common Pleas on circuit, Field could appear if briefed, in County Quarter Sessions where he might attract the attention of provincial attornies.114

With the circuit as the only court in which he could appear, Field in August 1815 ‘went the Oxford Circuit’.115 It was the mainstay of most barristers. At the accession of Henry VII in 1485 the path of the Oxford Circuit had become settled on Oxfordshire, Berkshire, Worcestershire, Staffordshire, Shropshire, Herefordshire and Gloucestershire.116 Monmouthshire was added to the modern circuit on which twice a year, for six weeks, in the vacations after Hilary and Trinity terms, Field travelled with the common law circuit Bar. The numbers kept increasing. In 1787 there were 42 members, in 1810, 56 and by 1820 the number had increased by a further six.117 Duman estimated that in 1776 the odds against making a living were 20 to 1 although by 1800 they had improved to 4 to 1. Overall few covered their expenses.118

If barristers could not afford the expense of going the (sic) circuit, their chances of success were restricted. As gentlemanly professionals, they were required to accommodate themselves in a certain style and at some expense. It would have cost at least a hundred guineas for a horse and accommodation, for it was beneath the dignity of the profession to pass a night at a common inn; it had to be town lodgings. A circuit van accompanied them, piled with their books and personal belongings. Field had to keep up the appearance of success in his dress, wearing the obligatory top hat.119 These expenses were a drain on his meagre resources that without replenishment were soon exhausted. He had no financial assistance from his family and extraneous income could only be earned in the time

114 Duman, The English and Colonial Bars in the Nineteenth Century, 84. 115 Charles Lamb to William Wordsworth, 9 August 1815, Cerf and Klopfer, The Complete Works and Letters of Charles Lamb, 801. 116 Not to be confused with the Home Circuit that covered the counties of Essex, Hertfordshire, Kent, Surrey and Sussex. 117 Duman, The English and Colonial Bars in the Nineteenth Century, 51. 118 Daniel Duman, ‘The English Bar in the Georgian era,’ in W. R. Prest ed. Lawyers in Early Modern Europe and America (London: Croom Helm, 1981) 89; The English and Colonial Bars in the Nineteenth Century, 86. 119 Sir Ronald Bosanquet, The Oxford Circuit (Hadleigh, Essex: Thames Bank Publishing Co, 1951), 11.

41 that was available when not on circuit. He attempted to support himself by writing law reports, legal tracts and a Practical Treatise on the Commercial Law of England.120

Circuit custom required evening attendance after the first day of hearings, in all towns but Oxford, at a ‘Grand Night’, or risk being fined. The occasion was presided over by the senior barrister present and the circuit butler waited on those present.121 The intent was to allay animosities, take the edge off forensic strife, promote feelings of esprit de corps and thus preserve a high standard of professional honour.122 Those who were unsuccessful watched jealously the appearances in court of those who were fortunate enough to be briefed.

However, Field failed to make his mark on circuit, and after eighteen months was forced to consider the possibility that he might never succeed in establishing a practice. He was too impatient and impoverished to withstand a long wait for success to arrive. He could join the ranks of those who failed and succeeded in other areas of the law.123 He did not come from a privileged family from which many members of the legal profession sprang. The younger sons of rich landholders, bishops, barristers, bankers and merchants, even the younger sons of peers were the usual stock from which the barrister’s profession was supplied. Field had no family in the law to brief him as did the sons of the elder Thomas Wylde. Field’s only contacts in the law were his friendship with the Wylde family and the possibility of an ongoing relationship with Charles Knight. Field’s

120 After his call to the bar Field wrote Hints to Witnesses in Courts of Justice published by J Butterworth and Son in 1815. The author was only identified as ‘A Barrister’. Of relevance on one point to today’s practitioners, it was reprinted in the Australian Bar Review, 33, no.2 (2010): 160; Field was motivated to write a law tract when the Hunt brothers were prosecuted for a criminal libel. Field was present in court and witnessed their misfortune. Field’s text discussed the definitions of libel, its elements, traced its development and argued for a resumption of the former test of truth or falsehood in criminal libel. His style was colourful, well expressed and showed wide reading; The Eclectic Review vol. 6 (London: Josiah Conder, 1816): 621 reported that ‘Barron Field, esq. of the Inner Temple, is printing, in two octavo volumes, a Practical Treatise on the Commercial Law of England.’ No copy exists. Field refers in his letter to Leigh Hunt 16 February 1816 to the writing of this work see British Library Department of Manuscripts. Add. Ms. 38108, f.151. 121 Bosanquet, The Oxford Circuit, 11. 122 Duman, The English and Colonial Bars in the Nineteenth Century, 53. 123 Albert Venn Dicey did not succeed at the Bar but eventually became Vinerian Professor of English Law at Oxford. Charles Rann Kennedy was unsuccessful in practice and was appointed Professor of Law at Queen’s College – Pue, Exorcising Professional Demons, 140.

42 friendship with Thomas Wilde’s brother John Wylde was by now well established. This network could not sustain him at the Bar but would however get him a lucrative station in a British colony.

Becoming a Judge

Settler colonies were socially and politically insignificant, isolated and dependent on British strength and provision.124 The penal colony of New South Wales especially so. Yet to entrepreneurs colonies were fields of opportunity.125 Catherine Hall argues that the Empire offered men like Field adventures outside England and authority that they would not have been able to achieve at home.126 Accordingly, it was an obvious place for him to go, if he could get an appointment.

Gaining a colonial appointment depended on the importance of the person lobbying on an applicant’s behalf. A non‐governmental lobbyist of sufficient importance could also play a critical part in governmental decision‐making.127 As Zoe Laidlaw observes, lobbying was standard practice in the filling of a colonial post. The applicant’s mental strengths or the ideological basis of a fledgling colony were less important than making the appointment.128 An applicant’s social position was becoming less of a consideration at this time. Field became one of a number of judges who were appointed from the ranks of middle class barristers between 1727 and 1820.129 McLaren points out that Chief Justice of Grenada, George Smith, had as his patron Lord Castlereagh, Secretary of State for War and the Colonies.130 Admiralty Secretary John Wilson Croker had the connections in the Colonial Office

124 Andrew Porter, ‘Britain and the Empire in the Nineteenth Century,’ introduction to The Oxford History of the British Empire, The Nineteenth Century ed. Andrew Porter, vol. 3 (Oxford: Oxford University Press, 1999) 26; Donald Denoon and Marivic Wyndham, ‘Australia and the Western Pacific,’ in The Oxford History of the British Empire, The Nineteenth Century, 559. 125 Donald Denoon and Marivic Wyndham, ‘Australia and the Western Pacific,’ 552. 126 Catherine Hall, ‘Going a Trolloping: imperial man travels the Empire,’ in Clare Midgley ed. Gender and imperialism (Manchester: Manchester University Press, 1998), 180, 197. 127 Laidlaw, Colonial Connections, 1. 128 Ibid., 2. 129 Daniel Duman, ‘The English Bar in the Georgian era,’ 94. 130 John McLaren, Dewigged, bothered, and bewildered: British colonial judges on trial, 1800–1900 (Toronto: Published for the Osgoode Society for Canadian Legal History and the Francis Forbes Society for Australian Legal History by University of Toronto Press, 2011), 220.

43 to assist a friend to obtain appointment as Chief Justice in Ceylon.131 Lambert and Lester emphasise the importance of contacts in making a career.132 Field was offered a colonial judicial appointment as a direct result of his having a network of friendships.

Field’s connection with Thomas Wilde now rewarded him. As noted earlier, through Wilde, Field met his brother John Wylde and he enjoyed the patronage of the Colonial Office. We do not know how Wylde obtained his appointment as judge advocate of New South Wales. Thomas Wylde senior, as a London attorney, may be supposed to have had a network of contacts through which information could be accessed about vacant positions. Perhaps the Wylde family socialised with those who could bestow patronage. Under‐Secretary of the Colonial Office, Henry Goulburn, might propose appointments, but the Colonial Secretary, Lord Bathurst, made the final decision. He alone had the power to appoint to judicial office.133 Therefore the cultivation of contacts was essential, no matter what their form or how tenuous. It is not probable that Field and Bathurst met at any of the Three Choirs concerts although both attended their performances at Gloucester.134

Having befriended Field, John Wylde sought to benefit him by his newly established patronage. Aware that Field was struggling at the Bar, Wylde wrote a begging letter on his behalf to the Colonial Office, one of the many petitions for preferment referred to by Bourne.135 Wylde doubted he would find others of the

131 C. I. Hamilton, ‘John Wilson Croker: Patronage and Clientage at the Admiralty 1809–1857,’ The Historical Journal 43, no. 1 (2000): 63. 132 David Lambert and Alan Lester, eds. ‘Imperial Spaces, imperial subjects’ in Colonial Lives across the British Empire : Imperial Careering across the long nineteenth century (Cambridge: Cambridge University Press, 2006), 11. 133 Under‐Secretary Henry Goulburn to Deputy Judge‐Advocate Wylde, 3 May 1816, HRA IV, 1, 201. 134 Choirs from Gloucester, Hereford and Worcester met regularly at the cathedrals of these cities. Field attended the concert at Gloucester in 1812 – Field to Leigh Hunt, 31 August, 1812, British Library Add. Ms. 38108, f. 49. For details of the 1812 festival see Harold Watkins Shaw, The Three Choirs Festival: the official history of the meetings of the three choirs of Gloucester, Hereford and Worcester c 1713–1953 (London: E. Bayliss and Son, 1954), 36. For Bathurst’s attendance see Noel McLachlan, ‘Bathurst at the Colonial Office, 1812–27,’ Australian Historical Studies 13, no. 52 (1969): 493. 135 Wylde and Field did not know each other all that well, for when Wylde was due to sail he asked for permission to defer his voyage until he and Field could sail together. This would lead to ‘cordiality and acquaintance’– Wylde to Goulburn 24 April, 1816 – TNA (PRO) reel 38, CO201/81, 345; J. M. Bourne, Patronage and Society in Nineteenth­Century England (London: Edward Arnold (Publishers) Ltd. 1986)9, 11.

44 same status and culture as Field in the confined society of the colony.136 Upon Wylde taking up Field’s situation with Under Secretary Goulburn, he referred to Goulburn’s previous remarks that the Colonial Office occasionally experienced difficulty in filling distant appointments. A successful barrister would not usually accept a colonial appointment, particularly one that offered only £800 per annum even if other benefits brought the annual salary to £1,200.137 This was low by comparison with the incomes of leading London barristers, especially coupled with the low status of remote judgeships and unhealthy colonial conditions.138 The lowly importance of New South Wales was clear from the salary on offer compared with the salary paid in 1801 to a puisne (associate) justice in Ceylon of £3,000 per annum.139 Further disincentives peculiar to New South Wales were its nature as a penal colony and its distance from London. On the other hand, the Chief Justice of Newfoundland was only earning £1,000 per annum about this time.140 Colonial judicial positions were lowly paid compared with the income of superior court judges of England.141

Laying much importance on the difficulty of attracting applicants for New South Wales but not presuming to recommend his friend Field, Wylde emphasized in early 1816 that Field was ‘extremely anxious’ to acquire the patronage of the Office and concluded with a confident assessment of his abilities.142 Wylde’s efforts on behalf of Field were persuasive. His professed friendship with Field struck the right note for, above all, the Colonial Office was anxious to ensure harmony between the two judicial officers at Sydney.143 It is not clear how the crown law

136 Wylde to Goulburn, 11 April, 1816, HRA IV, I, 199. 137 For a barrister’s income see 1846 (686) Report from the Select Committee on legal education : together with the minutes of evidence, appendix and index, House of Commons Parliamentary Papers 130. Rations were provided from the government store and the judge received a land grant and retained fees of office. The annual benefit amounted in all to near £2,000 per annum – Field to Twiss, 4 December, 1828, TNA (PRO) reel 936, CO 323/131, 449. 138 Duman, The English and Colonial Bars, in the Nineteenth Century, 126; Duman states that Samuel Romilly in 1815 was earning about £18,000 yearly, 145. 139 1825 (10) (107) (502) Superannuations. Copies of Treasury minutes, superannuating … E. H. Lushington, Esquire. p. 2. 140 J. M. Bennett, Sir Francis Forbes – First Chief Justice of New South Wales, 1823–1837 (Sydney : The Federation Press, 2001), 20. 141 Cottu, On the administration of criminal justice in England, 139. 142 Wylde to Goulburn, 27 January 1816, TNA (PRO) reel 38, CO 201/81, 89. 143 HRA, IV, I, 202, note 104.

45 officers knew of Field but it seemed of some value to the appointment. When, in 1816, Field heard from Goulburn that he was a preferred candidate for a New South Wales appointment, and that the salary was £800 per annum with a house, servants and rations provided and that he kept the fees of office and would receive a generous grant of land, he expressed his interest in accepting the position and then went on circuit as usual.144

As it happened, at the time Wylde informed Field that he had attempted to broker a position for him in New South Wales, the Colonial Office was having no difficulty in attracting applicants for the position of judge. A series of barristers expressed interest though the Colonial Office decided on Field. Ahead of Field, on 5 January 1816, one applicant did not pursue his application because the position was too poorly paid.145 After Wylde’s letter of 27 January, another with five years’ experience enquired, offering testimonials. No reply exists.146 A further enquiry on 9 April was answered with an explanation that his application could not be considered whilst ‘another Gentleman of the profession’ had decided to accept.147 Clearly, Wylde’s intervention on behalf of Field had been sufficient to secure the position for him against all other applicants, though Wylde thought he should put the proposal on an official footing. Thus on 11 April, he offered to write privately or officially to Field to confirm to him the ‘general Circumstances as to Salary, a Residence, etc., as made known to me.’148 The following day Lord Bathurst wrote to Judge Bent in the colony:

144 Part of judges’ incomes were fees paid by litigants to the court until 1825 from which time they were paid into government consolidated revenue–McLaren, Dewigged, bothered and bewildered, 48; Field to Henry Goulburn, 14 May 1816, HRA, IV, I, 202, confirming salary, house and rations. Land grants, convict servants and fees of office were available to other civil officials. J.T. Campbell, secretary to Governor Macquarie retained the fees of his office paid for land grants, marriage licences, vessel registration etc. TNA (PRO) CO 201/120, 236. 145 G. Heath to Goulburn, 5 January 1816, HRA, IV, I, 175; James Moore on behalf of Heath, 9 January 1816, HRA, IV, I, 175. 146 John Wilson, ‘Elm Court, Temple’ 16 February 1816, TNA (PRO) reel 38, CO 201/81, 164. 147 John Prince Smith, ‘Gray’s Inn’, 9 April 1816, soliciting the position as judge in the colony. A note on the letter read that the application cannot be considered whilst ‘another Gentleman of the profession’ has made up his mind to take it – TNA (PRO) reel 38, CO 201/81, 284. Prince Smith eventually obtained a position as second fiscal in Demerara and Essequibo, British Guiana and died at Demerara in 1822 – J. M. Rigg, ‘Smith, John Prince (c.1774–1822)’, rev. Jonathan Harris, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http:// www.oxforddnb.com/view/article/25860, accessed 11 Dec 2012] 148 J. Wylde to Goulburn, 11 April 1816, HRA, IV, I, 199.

46 a gentleman having been appointed to succeed you as Judge of the Supreme Court you will be at liberty to leave the colony at any period best suited to your convenience.149

On 24 April, Wylde had a strong belief that Field was the successful appointee and hoped that he would be able to travel with him on the same vessel to the colony.150

Wylde’s efforts on behalf of Field succeeded. With Field’s return from circuit, the arrangements for his appointment were in the process of being formalised. Field enquired on 2 May for confirmation of his appointment.151 The following day, the position was officially offered.152 On 14 May Field formally accepted and requested immediate appointment confirmation in order that the payment of salary would commence as soon as possible. By convention, as a judge, Field would have to give up his existing practice. He claimed it was his only source of income even though privately he hoped to prosper from the treatise on commercial law referred to previously.153 It was never completed. Because it had been known all along that Field would accept the position, he was commissioned by the Prince Regent on the day of his formal acceptance of the offer.154

Field’s appointment made it clear that connections were more important than suitability. McLaren emphasises that patronage was an all‐important element in judicial appointments in the early nineteenth century.155 Field’s appointment was an example of the neglect identified by McLaren in the selection of young inexperienced barristers to colonial positions. Field had failed to establish a practice at the Bar and his hasty appointment on the recommendation of a new friend who was ill‐equipped to assess Field’s character showed rashness and partiality.156 He was not known for his professional eminence and may never have obtained a brief.

149 Bathurst to J.H. Bent, 12 April 1816, HRA,1, IX, 113. 150 J. Wylde to Goulburn, ‘Temple’, 24 April, 1816, TNA (PRO) reel 38, CO 201/81, 345. 151 J. Wylde to Goulburn, 2 May 1816, HRA, IV, I, 201. 152 Goulburn to J. Wylde, 3 May 1816, HRA, IV, I, 201. 153 Sole source of income, Field to Goulburn, 14 May 1816, HRA, IV, I, 202; See f.n. 117. 154 Field to Henry Goulburn, 14 May 1816; Commission for B. Field as judge of Supreme Court – HRA IV, I, 202–203. 155 McLaren, Dewigged, bothered and bewildered, 49. 156 1846 (686) Report from the Select Committee on legal education : together with the minutes of evidence, appendix and index, House of Commons Parliamentary Papers 166, 108.

47 Further evidence of Colonial Office haste in the appointment of colonial judges was the scant consideration given to Field’s ability to fulfill a demanding and powerful judicial position in the colony. The officer exercised a broad jurisdiction and was expected to fill a wide range of tasks. The court had been closed for a long period and serious consequences would have been expected. The judge’s duty was to be loyal to the Crown, an adviser to the governor and drafter of government orders and proclamations.157 The colony’s unsettled state made its future uncertain. It was in Bathurst’s contemplation that convict transportation might even cease altogether, though no firm decision had been taken as to the colony’s continuance.158 Given these factors it might have been expected that much care would be taken with such an important appointment.

Although the Colonial Office appointed Field over more experienced applicants, a number of factors favoured him. The Colonial Office was wary of choosing a replacement judge with signs of the judicial independence exercised by Judge Bent who, appointed to the Supreme Court in 1814, refused to open it in circumstances that will be gone into in greater detail in a following chapter.159 Suffice to say here, Governor Macquarie urged Bent to admit former convict attornies to the roll of practitioners as only one had reached the colony and therefore insufficient free attornies for the court to function. Bent refused to open the court and the impasse was only resolved by his recall. Bathurst had to be certain that the situation that resulted in Macquarie’s threat to resign if Bent was not recalled did not arise again.160 Hopefully, the appointment of Field, who appeared more tractable, would preclude the situation from recurring. Two other factors assisted Field’s appointment. There was no colonial Bar to keep in check, and an inexperienced Field would not have assertive barristers attempting to take control of the court. His common law experience was sufficient for the cases that would come before him. In this respect, the success of Field’s Analysis of

157 McLaren, Dewigged, bothered and bewildered, 14. 158 John Ritchie, Punishment and Profit (Melbourne: William Heinemann Australia Ltd., 1970), 2. 159 Bathurst to J.H. Bent, 12 April 1816 in HRA, 1, IX, 113 160 M. H. Ellis, Lachlan Macquarie, His Life, Adventures and Times (Sydney, Melbourne: Angus and Robertson: Famous Australian Lives Edition, 1978), 308.

48 Blackstone may also have assisted his candidature.

The Colonial Office could not have anticipated the problems that would arise with Field’s appointment. It could not foresee that divisions in colonial society would become so contentious that they would be played out in his court. In the event, Field fulfilled his role with partiality and intolerance. Could not the Colonial Office in England have foreseen this? Closer scrutiny might have revealed these personality flaws: Field’s egotism and his demand for power and autonomy were precisely the unfortunate character defects the Colonial Office had expected to avoid.

Conclusion

Field’s atypical career choices help us to understand the limits that class, means and connections placed on young men in the British world in the early nineteenth century. Patronage, networks and connections were essential for those desirous of advancement. English society was also very class conscious and few opportunities were open to Field as the younger son of a middle class family. The religious intolerance towards dissenters limited Field’s opportunities. His attempts at earning a living as a journalist and reporter in London resulted in a meagre and uncertain income.

The Bar had been opening up to the middle classes for some time prior to Field’s entry. Once he was called, Field tried to support himself as a barrister and continued to rely on writing and reporting. With limited connections in the law and without other funds, supporting himself whilst waiting to be briefed was difficult. Despite these difficulties, Field gained appointment as a judge. He would have been unsuccessful in obtaining the position, like the other competing applicants. Possibly his was the stronger claim to patronage. Field’s appointment demonstrated that patronage was more important than demonstrated experience and suitability in the Colonial Office.

49 CHAPTER TWO

New horizons

The activities that followed Judge Field’s posting to New South Wales provide insight into the material, social and moral mechanics of colonisation. The material preparations he made before departure show us that Field believed that if he and his wife wished to maintain status at home and to gain status in the colony, they would have to establish a suitable material presence – furnishings, books, and clothes. Letters of introduction were also essential markers of gentility in Britain and, perhaps, more so, in New South Wales. Meanwhile, Field’s incorporation into colonial life lays bare the intersection of political and social life in the colony. Social and administrative life was inextricably intertwined with the growing emancipist‐ exclusivist divide in this formative period in New South Wales’ history. Field’s attempt to make his place in his office and in society forced him to choose sides in this conflict almost as soon as he arrived. His early attempts to navigate the social minefield of early New South Wales thus reflect the high stakes of the conflict, but also exacerbated and changed emancipist‐exclusivist politics in the colony.

Departure activities

Though at this time Britons were ‘largely ignorant of and culturally indifferent towards their empire,’ most people knew enough to consider that New South Wales was a lamentable destination.1 The upper classes endorsed transportation because they believed that the ‘lower classes’, their euphemism for the criminal element, were intent on depriving them of their rights and privileges.2 Atkinson notes that the Transportation Act (1717) 4 Geo. I, c. 11, evoked the belief in American colonies that ‘new levels of crime’ would overwhelm them because of the

1 John M. McKenzie, Introduction, in Zoe Laidlaw, Colonial connections 1815–45, patronage, the information revolution and colonial government (Manchester: Manchester University Press, 2005), viii. 2 Charles Cottu, On the administration of criminal justice in England (London: R. Stevens, 1822), 147.

50 increase of numbers of convicts transported.3 It was incongruous to English society that polite men would move to the ends of the earth, to a penal station, and not lose status and stature.4

In London, news of the intention of founding of the colony appeared in The Times in a satirical light that soon turned to negativity. Initially described as ‘a desert and barren island’, Botany Bay’s reputation was later described as such a

fertile land, that persons actually committed crimes in order to be transported thither – but such an antipathy is now taken to that miserable place of bondage, that those under sentence of death have openly in Court declared they would be hanged sooner than consent to visit such a place.5

Attempts to explain the colony did not fail to stress its penal nature. The reviewer of Watkin Tench’s account of the colony urged his readers not to regard it just as ‘a matter of curiosity’ but to think of its usefulness as a means of punishment and reformation as well as its cost.6 Public negativity to the colony had hardened to cynicism by 1816.7 ‘Botany Bay’ was a derisive term applied to a remote and desolate area of London from the early years of the 19th century.8 Coarse provincial drama was likened to ‘Botany‐bay theatricals’.9 Britons laughed at the account of a grower of hops rewarded with the grant of a cow and of the stilling of the printing press from a shortage of paper.10 The poet laureate, Robert Southey saw no hope for England until the Royal family was expatriated to New

3 Alan Atkinson, ‘The Free‐born Englishman Transported,’ Past and Present 144 (August, 1994): 93. 4 John Hirst, Freedom on the Fatal Shore: Australia’s First Colony (Melbourne, Vic.: Black Inc., 2008), 176. 5 Barren Island, The Times, 19 October 1786, 3a; Ibid., 21 September 1789, 3b. 6 ‘A complete Account of the Settlement at Port Jackson, in New South Wales, including an accurate Description of the Situation of the Colony; of the Natives; and of its natural productions. Taken on the Spot, by Captain Watkin Tench, 4to. 10s. 6s. Boards. Nicol. 1793,’ The Critical Review, or Annals of Literature, vol. 11, (May 1794), 44–52. 7 The Times reported little of the emerging colony. When news reached England of the heavy mortality on the transport Neptune, The Times’ prejudicial account (18 November 1791 3b) was more concerned with the ship’s officers receiving a fair trial than condemning their behaviour towards the convicts. See Charles Bateson, The Convict Ships (Glasgow: Brown, Son & Ferguson, 1959), 31, for an account of the Neptune’s voyage. Nothing further was reported on the colony until the overthrow of Governor Bligh in 1808 – The Morning Chronicle 23 September 1808 2c. 8 Map of Middlesex G. Pringle and Christopher Greenwood (1819). 9 The London Magazine, vol. 1, March 1820, 298. 10 Edinburgh Review, Art. II, vol. 32, 1819, 30.

51 South Wales with a large allowance ‘Such as might stimulate beneficially the industry of a rising colony …

Therefore, old George, by George we pray Of thee forthwith to extend thy sway Over the great Botanic Bay.’11

Thomas de Quincey preferred to call it ‘our ordinary week‐day name Botany Bay, so redolent of thieves and pickpockets.’12

Privately, Field’s friends held the same opinion: the colony ‘was the butt of extra English contempt’.13 Charles Lamb wove Field and New South Wales into his writing whilst at the same time emphasising the colony’s remoteness in The Old and the New Schoolmaster, and its criminality in Distant Correspondents.14 After Field’s departure, Lamb amused English readers with his gentle jesting that he could not ‘form the remotest conjecture of the position of New South Wales or Van Diemen’s Land. They were two Terrae Incognitae.’ Rhetorically, he asked Field if in his extra‐judicial intervals he passed his time going about the streets with a lantern looking for an honest man. He wondered if the population thieved all the time, how did human property stand such continuous battery. Was there anything else done in the colony but stealing?15

Urgency

After Field was offered New South Wales, foremost in his mind was marriage. There was no thought of finding a wife in the colony where it was unlikely there was an eligible woman. There always was the risk, as Zoe Laidlaw points out, that she might still have a connection to the convict stain.16 A well‐born wife was a

11 ‘Lake Reminiscences, from 1807 to 1830. By the English Opium Eater. No IV – William Wordsworth and Robert Southey,’ Tait’s Edinburgh Magazine for 1839 vol. 6, William Tait, Edinburgh 453, 460. 12 Thomas De Quincey, Recollections of the Lakes and the Lake Poets (Edinburgh: Black, 1862), 226. 13 Noel McLachlan, ‘Convicts, Australia and New World Nationalism,’ Bulletin of the Centre for Tasmanian Historical Studies vol. 3, no. 2, (1991–1992): 22. 14 ‘Schoolmaster’ (1821) vol. 3, London Magazine, 492; ‘Correspondents’ (1822) vol. 5, London Magazine, 282. 15 Elia, ‘Distant Correspondents’ (1822) vol. 5, London Magazine, 282, 284. 16 Zoe Laidlaw, Colonial Connections, 19.

52 paramount attribute for any colonial bureaucrat for the reason that he escaped suspicion of an irregular liaison.17 Field proposed marriage to Jane Cairncross whom he had known for some years, niece of the late James Currie, a respected Liverpool surgeon. Her charming disposition and knowledge of the French tongue and its literature suggested to Rose Freycinet, when they met in Sydney, that she was a well‐educated person.18 In Field’s first mention of Jane in 1813 he noted that her mother, Isabella, was a woman of good sense and class.19 She favoured his suit.20 Field was a man of middling class who had failed at the Bar although, due to his appointment could represent himself to Jane Cairncross and her family as a man with potentially significant means despite his immediate circumstances.

During the time Field was given to consider the offer of appointment, Jane accepted his marriage proposal whereupon Field asked for two or three months to prepare for such a long voyage.21 Field’s request for a delayed departure was denied. The colony was in urgent need of him for the judge he was replacing (the infamous Jeffrey Hart Bent) had refused to open the court. Field was informed he must leave on the next ship ‘under despatch’ for the colony.22 This was the Lord Melville whose preparation was in hand at the time.23 The ship was due to depart on 18 July.24 Luckily for the Fields its departure was delayed until 15 September, although the Fields boarded earlier than that date.25

Field partly needed extra time to prepare for his marriage. Jane was in her 25th year when he proposed to her. Amanda Vickery found this to be the very age

17 Penny Russell, Savage or Civilised? Manners in Colonial Australia (Sydney: University of New South Wales Press Ltd., 2010), 127. 18 Marc Riviere, ed. and translator, A Woman of Courage: the journal of Rose de Freycinet on her voyage around the world 1817–1820 (Canberra: National Library of Australia, 1996), 120. 19 Isabella Currie, sister of the highly respected Dr. Currie of Liverpool, Fellow of the Royal Society and friend and editor of Robert Burns, married Andrew Cairncross. Jane was born 16 December 1791, the fourth of seven children. 20 Field to Leigh Hunt, 2 November 1813, British Library, Department of Manuscripts, Add. Ms., 38108, f. 86. 21 Field to Henry Goulburn, 14 May 1816, HRA, IV, I, 202. 22 Goulburn to Field, 15 May 1816, HRA, IV, I, 203. 23 John Macarthur to Elizabeth Macarthur, ‘London’, 22 May 1816, Sibella Macarthur Onslow, ed. Some Early Records of the Macarthurs of Camden (Sydney: Rigby Limited, 1973), 257. 24 Caledonian Mercury 20 July 1816, issue 14766 4c. 25 Bateson, The Convict Ships, 290–1; In John Macarthur’s experience ‘Unexpected causes frequently arise to detain ships, one, two, and even three months, beyond the period originally named…’ John Macarthur to Elizabeth Macarthur, 18 February 1817, Onslow, Macarthur Records, 288.

53 of marriage for the lesser gentry in the period between 1750 and 1799.26 Neither Field nor the woman to whom he proposed marriage was deterred by home attitudes to the colony. There were complexities in arranging his marriage that Field had to overcome. For it to be valid, it had to take place in an Anglican Church.27 There was no place for dissenting beliefs in marriage. Banns had to be read out on three Sundays in his and Jane’s home parishes and in the church where the ceremony was to take place.28 Field, as a dissenter did not have a home parish and he also believed that he did not have the time required to comply. So he swore out an allegation and entered a bond to the effect that that there was no just cause or impediment why he and Jane should not marry, and paid £2 6s. 6d., the fee for a common marriage licence. They were married on 4 July 1816 in the church of Saint Dunstan in the West.29 Its proximity to the Royal Courts of Justice in Fleet Street, London suggests that Field chose it only for that reason. People often applied for marriage licences if they had something to hide, for the device offered anonymity. In Field’s case, it merely offered speed and convenience. His best man was his lifelong friend, Horace Smith, novelist and poet best known for winning the prize given to mark the rebuilding of the Drury Lane theatre after it burnt down.30

After Field and Jane married they needed some time to prepare themselves for the rude state of the colony. Field (and men like him) had to prepare extensively in order to preserve status and the comforts of home whilst abroad. The extent of their preparations illustrated the deprivations both real and imagined that were to be faced in New South Wales. The Fields had to ‘assemble the requisite accoutrements of what might be called vernacular gentility.’31 In

26 Amanda Vickery, The Gentleman’s Daughter: Women’s Lives in Georgian England (New Haven & London: Yale University Press, 1998), 307, f.n. 38. 27 Joseph Beldam, A summary of the laws peculiarly affecting Protestant dissenters (London: Joseph Butterworth and Son, 1827), 35. 28 (1753) 26 Geo. II c. 33 s. 1 (Lord Hardwicke’s Act). 29 See http://www.lambethpalacelibrary.org/files/Marriage Records.pdf 30 The Smith brothers, Horace and James wrote Rejected Addresses. These were their invention in 1812 following the burning down of Drury Lane theatre. Its manager offered a prize for the address chosen to be recited at its reopening. The brothers feigned addresses from the most popular poets and published a volume of their unsuccessful contributions in parody of the styles of these poets, which were so clever that both Byron and Scott could hardly believe they were not the authors of what was attributed to them. 31 Richard L Bushman, The Refinement of America (New York: Vintage Books, 1993), xiii.

54 common with other barristers who accepted colonial postings Field was impoverished. Following settlement of all outstanding liabilities before departure, few funds might remain to purchase the necessary furniture, stores and baggage and pay for its transhipment. The Colonial Office paid passage money but nothing else so that the outgoing official was responsible for his food and beverage on the voyage.

Field requested £400, an advance of six month’s salary. It seems to have been relatively common to apply for wages in advance of departure to pay for preparations. Field’s future colleague, John Wylde, also pleaded impecuniosity and applied for a large advance of salary against travel and provisioning expenses. This suggests that Wylde, like Field, was unsuccessful at the Bar, or worse.32 Wylde, with a much larger family to provide for had estimated his needs for the voyage out at £200 to be paid to the ship’s captain for fresh supplies not including wine, spirits or porter. He estimated he needed a year’s salary of £1200 for furniture and necessities. Both judges’ requests were granted. Usually it was cheaper to equip their household in England for the colony.33 Thereafter initial supplies were augmented periodically by shipments from England.34

32 J. Wylde to Colonial Office undated, setting out he had to find £200 for fresh provisions for the voyage and £1,200 for furniture and necessaries, leaving the sum sought to the discretion of the office, HRA, IV, I, 200. Wylde was always impoverished, a man of ‘low and vulgar habits’ – Kirsten McKenzie, Scandal in the colonies (Carlton, Victoria: Melbourne University Press, 2004), 26; Field to Colonial Office 22 June 1816, requesting an advance of salary of £400, TNA (PRO) Reel 38 CO 201/82 179. 33 Field asked for concessions of duty on a hogshead of port wine in wood, two of port wine in bottles, one of madeira, a puncheon of rum in wood and a piece of brandy in bottles, a chest of tea, a cask of glass and a box of plate about 200 ounces. He wished to obtain Treasury’s approval to pay the same duties and be allowed the same drawbacks and indulgences as if the ship had been duly entered at Customs for the voyage. This concession would allow him a refund of duty and excise paid at that time on any of those goods he brought back to England with him on return. Field to Colonial Office, 22 June 1816, TNA (PRO) reel 38, CO 201/82, 179; 27 June 1816, TNA (PRO) reel 38, CO 201/82 191, 195; 27 July 1816, TNA (PRO) reel 39, CO 201/83, 270. 34 Field imported the luxuries to the colony that his position as a well paid public servant could afford. His first order on Messrs. Charles Prater and Son, included six pounds of mustard, 56 pounds of loaf sugar and similar vast quantities of starch, white pepper, caraway seeds, pimento ginger and currants. As well as six quarts of Lucca oil, a high grade medicinal olive oil, there was muslin, cambric, drill, fustian and ribbons for Jane – Field to Henry Goulburn, 15 July 1819, TNA (PRO) 46 CO 201/95, 411; for a further order, letter from Charles Prater to the Colonial Office, 8 March 1820, TNA (PRO) reel 51 CO201/102, 357; whilst in the colony, Field often asked his father to arrange the shipping to him of household supplies, dress materials and books, at great

55 The Colonial Office accepted the fact that a newly appointed judicial officer might not have the necessary capital required to set up a good establishment and was prepared to assist both of the appointees to New South Wales by agreeing to an advance of salary. In this respect, they differed markedly from other emigrants to the colony. Settlers not taking up administrative or judicial posts were required to provide evidence of their possessing capital in excess of £500 to assist in establishing themselves on arrival.35

Relations with the Colonial Office

Apart from household preparations, Field had to consider provision for his assumption of office in Sydney. Robes and a judicial wig were required. Some court officials had to be exported from Britain and Field’s former chamber’s floor clerk, John Gurner, decided to emigrate with him. Field was now in a position to act as broker and supported Gurner’s request to be appointed as judge’s clerk. The Colonial Office could have directed Field to engage a clerk in the colony, as literacy in the convict population was quite high, but the Colonial Office approved Gurner’s appointment both to please its new judge, to bolster the respectability of legal institutions, and, more generally, to encourage free migration to the colony.36 Thereupon, Gurner too made a hasty marriage.37 The Colonial Office paid for the passage of Gurner and his wife. The Colonial Office had also funded stipends for an

inconvenience in time and effort, in obtaining the approval of the Colonial Office. One year a gig and its appendages came out to Sydney. 35 See The Times 18 January 1822 3c for evidence of capital; see Thomas Sterrop Amos’ statement of compliance – TNA (PRO) Reel 29 CO201/83, 88, 99, 101. 36 Stephen Nicholas and Richard H. Steckel, ‘Heights and Living Standards of English Workers During the Early Years of Industrialization, 1770–1815,’ The Journal of Economic History 51, no. 4 (1991): 943; Manning Clark, A History of Australia From the Earliest Times to the Age of Macquarie, vol. 1, (Melbourne: Melbourne University Press, reprinted 1992) 118, 127, 203‐4, 343; Brian Fitzpatrick, British Imperialism and Australia 1783–1833 (George Allen and Unwin, London, 1939), 216; Brian H. Fletcher, Landed enterprise and penal society (Sydney: Sydney University Press, 1976),17; Michael Roe, Quest for Authority in Eastern Australia 1835–1851 (Melbourne: Melbourne University Press in association with The Australian National University, 1965), 36. Roe states that as early as 1805 the government encouraged settlers of larger means and prestige to emigrate, by 1816 the barriers were lowered. 37 G. P. Walsh, ‘Gurner, John (1792–1882)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/gurner‐john‐ 2137/text2715, accessed 13 December 2012.

56 unlimited period for two immigrant attornies; it now supported the emigration of another respectable officer of the court who would be salaried from colonial revenue.38 Gurner assisted the judge with the management of cases in court, kept the records of the court and wrote out its orders. The Colonial Office received value from the Gurners’ assisted passages as they remained in the colony and produced several eminent lawyers.39

In addition to engaging necessary court officers, Field had to establish a legal library. Apart from his personal books, he assembled a wide selection of law books for there were none to be purchased in the colony. He pointed out to the Colonial Office that as his practice had been in the common law and he would now be sitting in a court with equity and ecclesiastical jurisdictions he would need a set of statutes and a variety of texts covering those disciplines he specified.40 He had looked at the list Wylde was taking to the colony but none of Field’s selections was included. Clearly the two planned to share their law library. The Colonial Office was happy to fund Field’s law library. This set a precedent as his predecessor had not made this request.

Possibly as a signal of a growing investment in uniformity, the gift of a set of statutes was ‘the present usually made to all persons accepting judicial offices on their first appointment’.41 The eagerness of the Colonial Office to oblige Field might also be explained by the fact that it had failed in its first attempt to inaugurate the Supreme (civil) Court under Judge Bent. Believing that he was soon to sail, Field requested urgently a copy of the Charter of Justice and a copy of his warrant. All requests were granted.42

38 Frederick Garling and W.H. Moore arrived in the colony before Field was appointed. 39 Walsh, John Gurner. 40 Annexure, Field to Henry Goulburn, 7 June 1816, TNA (PRO) reel 38, CO 201/82, 127 – ‘Chancery practice texts – Fonblanque’s, Maddock’s, Mitford’s; Chancery cases – Cox’s Peere Williams, Ambler’s, Brown’s, Vesey, Vesey Junior, Vesey and Beame’s, Atkyns, Bridgman’s Digested Index, Index to Vesey’s reports; Burns Ecclesiastical Law, Wentworth’s Office of Executor by Wilson, Swinburne on Wills and Oughton’s Ordo Judiciorum.’ 41 J.H. Bent to Governor Macquarie, 9 January 1816 – Report from the Select Committee on the State of Gaols &c., House of Commons, 579 (1819) 466 – when Bent was recalled he claimed the statutes were his property but relented and relinquished them. 42 Field to Goulburn, 7 June 1816, TNA (PRO) reel 38 CO/82, 126.

57 The only evidence of Field’s seeking official guidance about his role in the colony before his departure is his joint letter with Wylde to the Colonial Office. They asked for guidance on the government’s policy of admittance to court of emancipated convict attornies.43 The official Colonial Office position was to deny admission to ex‐convicts whilst the two salaried attorneys provided by the government were present. However, the Office did not communicate this advice to Field and Wylde before their departure. Instead they were instructed to apply to the governor upon their arrival for official policy.44 In this way the Colonial Office remained aloof from the public debate in the colony and maintained the authority of the governor.45 It was also a time of great increase in the business of the Office.46 After appointing Field and Wylde it hoped that the problems it had faced in New South Wales would not recur for a time.

Before Field sailed, John Macarthur sought him out as someone who would be useful to him in the colony. As one of the central figures in the rebellion against Governor Bligh in 1808, Macarthur well understood the central role of the courts as the true forums for the settlement of disputes, in a colony in which there was no other place to oppose authority.47 Macarthur quit his tour of Europe to return in time to impress upon Field his disapproval of Macquarie’s benign policies towards emancipists.48 Field learned from Macarthur of the opposition Macquarie’s favouritism towards emancipists aroused in the colony. Macarthur was wary of returning to New South Wales whilst Macquarie held instructions to arrest and try him for his role in Bligh’s overthrow. Macarthur was not yet an extreme opponent of the Macquarie regime, however. Indeed, on a personal level Macarthur was grateful to Macquarie for his attentiveness to Mrs Macarthur.49 Macarthur also

43 J. Wylde and Field to Macquarie, 10 March 1817, HRA, IV, I, 226. 44 Ibid. 45 HRA, IV, I, 924, f.n. 105. 46 J.C. Beaglehole, ‘The Colonial Office 1782–1854,’ in Historical Studies. Selected Articles, second series compiled by Margot Beever and F.B. Smith, (Carlton, Victoria: Melbourne University Press, 1967): 20. 47 H.V. Evatt, Rum Rebellion (Sydney: Angus and Robertson Ltd., 1947), 97. 48 John Macarthur to Elizabeth Macarthur, (quitting trip) 29 April 1815, Onslow, Macarthur Records 254; (Macarthur’s views of Macquarie’s policies) 18 November 1812, ibid., 229. 49 John Macarthur to Elizabeth Macarthur, 23 July 1816, ibid., 261.

58 defended Macquarie when Henry Goulburn, Parliamentary Under Secretary for the colonies, made known the rage in London against Macquarie engendered by his secret enemies, the colonial legal figures, W. H. Moore and Judge Bent.50 They complained that Macquarie was a tyrant.51 Their complaint caused some influential figures in London to lose confidence in Macquarie.52 It is likely therefore, that Field left London with a confused picture of colonial politics.

The voyage

At the end of June 1816 the Lord Melville was lying off the Royal Victualling Yard at Deptford where supplies were loaded for the crew and 101 women convicts.53 A month later the ship had moved downstream to one of the many bodies of waters of the Thames called Reaches, – Gallyons Reach in Field’s day, later, Gallions, between Tripcock Point and Woolwich.54 Yet another month passed until 28 August when the Fields boarded at Gravesend with their baggage and provisions. The women convicts boarded whilst the ship was in the Thames.55 Because their

50 Macarthur’s defence of Macquarie, see John Macarthur to Elizabeth Macarthur, 19 August 1816, ibid., 267–8; 18 February 1817, ibid., 290; for Macquarie’s secret enemies see M. H. Ellis, Lachlan Macquarie (Sydney: Angus and Robertson Publishers, Famous Australian Lives Edition 1978), 339– 340. 51 John Ritchie, Lachlan Macquarie (Melbourne: Melbourne University Press, 1988), 152–3. 52 A.T. Yarwood, Samuel Marsden, the great survivor (Carlton South: Melbourne University Press, 1996), 154. William Wilberforce opposed Macquarie’s emancipist policies at the end of 1814; Ellis, Macquarie, 318. 53 The accounts of the number of convicts on board varied. Jackson’s Oxford Journal 14 September 1816 issue 3308 1a states 101. The Morning Chronicle 31 August 1816 issue 14768 4c stated 120; for ship movements see Field to Colonial Office, 27 June 1816, TNA (PRO) reel 38, CO 201/82, 191; typical foods were rice, beef, pork, bread, flour, raisins, wines, oatmeal and Indian pulses callavances and dhall – The Times, 18 January 1816, 2a. 54 Field to Goulburn, 27 July 1816, TNA (PRO) reel 39, CO 201/83, 270 ; A. G. Linney, Lure and Lore of London’s River (London: Sampson, Low, Marston and Co., Ltd., 1932), plates between 234–5. 55 Field to Colonial Office, 27 June 1816, TNA (PRO) reel 38, CO 201/82, 191; for convicts embarking see The Morning Chronicle 31 August 1816 issue 14768 4c; also E. R. Pitman, Elizabeth Fry (New York: Greenwood Press, 1969), 112; women convicts were loaded at Woolwich, ibid., 123; men sometimes by lighter from Blackfriar’s Bridge, The Times, 2 April 1800, 3b; frequently the prisoners were accompanied by their gaoler who delivered them to the ship; The Times, 6 January 1791, 4a – an account of their arrival in Exeter under the care of the gaoler of Bristol who was supervising their removal to Plymouth. See Field to Lord John Russell 15 April 1841 TNA (PRO) CO 91/153 for date of boarding.

59 departure was delayed for such a long period it was thought they would be conveyed to the Penitentiary on Mill Bank instead of going to New South Wales.56

Relocation from London to its farthest periphery was for family and friends a melancholy ritual. Leigh Hunt saluted:

Dear F., my old friend, who love strait‐forward verse, And will take it, like marriage, for better, for worse, – Who cheered my fire‐side, when we grew up together, And still warm my heart in these times and this weather …

When sailing was delayed it was too painful to farewell loved ones all over again. Instead, the Fields, Hunt, his wife, Field’s older brother Henry Cromwell and Horace Smith dined together the day before they left London. Hunt wished:

dear F., and your new‐married lass, A breath from blue heaven your vessel attend, As true to the last, as you’ve been to your friend; And may all meet again to grow young in our joys, And you and I, B…, be happy old boys.57

As it happened, Hunt and Field’s relationship did not survive. It was not resumed after the Fields’ return from New South Wales.58

Travel aboard a convict ship, for a judge, was a levelling experience. The Fields were dismayed to find the ship so confining. Despite initial concessions about the accommodation Field was still dissatisfied upon discovering their cabin, although a ‘private space’, was ‘a small room that serves for parlour and bed‐room, and pantry and store‐room’.59 Outside their cabin, the Fields had little choice but to share public space with sailors, officers, and other passengers. They had to tolerate the proximity of 16 free woman and their 41 children joining convicts already in

56 Caledonian Mercury 19 August 1816 issue 14,779 3a. 57 Leigh Hunt, ‘Harry Brown’s Letters to His Friends,’ Letter VI, The Examiner, 11 August 1816, no. 450, 504a‐b; ‘Epistle to Barron Field’, Foliage: or Poems original and translated (1818) Brewer Library, University of Iowa. 58 Field’s Memoirs of Wordsworth edited by Geoffrey Little (Sydney: Sydney University Press for Australian Academy of the Humanities, 1975), 49. 59 For ‘private space’ see Greg Dening, Mr. Bligh’s Bad Language (Cambridge: Cambridge University Press, 1992), 23; for Field’s dissatisfaction with accommodation see Transport Office to Colonial Office, 1 July 1816, TNA, (PRO) reel 38, CO 201/82, 201; for a description of cabin accommodation see Field, Geographical Memoirs on New South Wales (London: John Murray, 1825), 419.

60 the colony.60 However, in the ‘hell afloat’ that was a female convict ship, they found genteel company in the form of young Edward Grey and his wife.61 Although Grey was a gunsmith, a tradesman, if an upper one, his letter of introduction to Elizabeth Macarthur in the colony from her husband John, satisfied Field that the Greys were acceptable social acquaintances.62

Despite the confines of a small ship, Field was able to avoid the close proximity of convict women. However, on Sundays, he chose to read from the scriptures to them, a custom traditionally undertaken by the surgeon. Field followed his reading with some moral or religious exhortation adapted to their circumstances and the occasion as it arose. We do not know if the weekly sermon on deck evoked an emotional response but it certainly emphasised hierarchical order. All who attended, sailors and prisoners, deferred to the superior status of the judge and his wife.63

There was sexual tension on female convict ships between the prisoners and the crew. Convict ships were usually all male affairs. Few crews were lucky enough to sail with an imprisoned female cargo. Reformers in London had turned a blind eye to the poor conditions on convict ships.64 Most female prisoners on the Lord Melville were not prostitutes although some formed relationships with members of the crew.65 Field was certain that cohabitation had occurred that he labelled as prostitution.66 He believed, when members of the opposite sex were in

60 Under Secretary Beckett to Under Secretary Goulburn, 4 July 1816, HRA, I, IX, 147; for numbers of children and free women see Jackson’s Oxford Journal 14 September 1816 issue 3308 1a. 61 Joy Damousi, ‘Chaos and Order: gender, space and sexuality on female convict ships,’ Australian Historical Studies 26, no. 104 (1995): 351. 62 John Macarthur to Elizabeth Macarthur, 26 June 1816, introducing the Greys to her and asking her to give assistance to them, Onslow, Macarthur Records, 258; Edward Gray was appointed overseer, later superintendent, Orphan School Farm, 30 November 1818, SR, Index to the Colonial Secretary’s Papers, 1788–1825, reel 6040, 4/403, 21. 63 Emma Curtin, ‘Gentility Afloat: Gentlewomen’s Diaries and the Voyage to Australia, 1830–80,’ Australian Historical Studies 26, no. 105 (1995): 643–4. 64 Emma Christopher, ‘The Slave Trade Is Merciful Compared to [This],’ in Emma Christopher, Cassandra Pybus and Marcus Rediker eds. Many Middle Passages: Forced Migration and the Making of the Modern World (Berkeley: University of California Press, 2007): 115–6; usurping the surgeon, see Damousi, Female Convict Ships, 355. 65 Stephen Nicholas, ‘Beyond Convict Workers? Unanswered questions about Convict economy and society.’ In Beyond Convict Workers ed. Barry Dyster, (Sydney: Department of Economic History, Univeristy of New South Wales, 1996), 3‐4. 66 Helen Heney, Australia’s Founding Mothers (Melbourne: Nelson, 1978), 277.

61 such close proximity, to stamp it out would have been impossible. He convinced himself that immorality on board was minimised because of his exhortations to the women and his own exalted presence. ‘I flatter myself that the high Office I was destined to fill … operated as some moral check upon them.’67 Bateson notes that Field’s presence would have acted as an incentive to the officers to attempt to stamp out prostitution as Field was in a position to report their conduct upon reaching the colony.68

To pass the time on the long sea voyage, Field kept a journal that he probably wrote with a broad readership in mind.69 Moreover, it would be original: ‘It comes not within my plan to copy full, true, and particular accounts of countries, from histories, or voyages and travels.’70 At first there was little to fill his pages even as the vagaries of the winds blew his ship off course towards France. Tacking back to the Isle of Wight they waited on shore for a fair wind for twelve days before finally getting under way again. As Land’s End fell away, the Fields made their last sight of England for eight years. The Canary Islands passed and they made only one other stop, at Rio de Janeiro, before reaching the colony.

Rio de Janeiro was 67 days’ sailing and Field was anxious to disembark as soon as possible. From being a traveller Field became a tourist, although as Buzard points out, the words were synonymous at the time.71 The English had been advised since the late eighteenth century to appreciate the beauties of their own ‘Lakes’ area.72 After admiring the scenery of their own country, the English were further motivated to travel to Europe after the cessation of the Napoleonic Wars in 1815. With the peace, the English resumed venturing far afield from home.

67 Field to Macquarie, 1 December 1817, HRA, I, IX, 510, probably phrased to please him. 68 Bateson, The Convict Ships, 190. 69 Field, Voyage to New South Wales in Geographical Memoirs, 401. 70 Ibid., 408. 71 James Buzard, The Beaten Track: European Tourism, literature, and the ways to culture, 1800– 1918 (Oxford: Oxford University Press, 1993), 1. 72 Buzard, op. cit., 19, 20; Katherine Haldane Grenier, ‘Scottishness, Britishness and Scottish Tourism, 1770–1914,’ History Compass 4, no. 6 (2006): 1002, also notes the British fashion for travel.

62 In Rio, Field spent nearly a fortnight seeing the sights.73 He was not Penny Russell’s typical Englishman and would readily talk to strangers and made a number of contacts there.74 He was introduced to Baron von Langsdorff. This Russian Consul and naturalist had been on the first voyage by Russians around the world from 1803 to 1806.75 Together they journeyed to the waterfalls of Tejeuca. Field was scathing of the Portugese as barbaric, petty and unworthy of colonising Brazil.76 Henry Ellis was more moderate, though still highly critical. He visited Rio a few months before Field and found the higher orders of society to be little cultivated and behind the corresponding classes of Europe. They did not like or encourage communication with foreigners. Court etiquette and observance of the Catholic faith were their chief occupations. Outward decorum in the conduct of women was most strict. A married woman could only appear in public with a gentleman of near relation.77

Field, a man of literature with growing interests in the natural world, perhaps began collecting shells during his visit to Brazil.78 Pratt argues that whether or not the traveller was a scientist or the expedition was primarily scientific, ‘natural history played a part in it.’79 Field’s account fell short of Humboldt’s requirement that the acquisition of scientific knowledge was more important than the narration of the journey itself.80 Instead, Field’s account of the

73 Field to Macquarie, 1 December 1817, HRA, I, IX, 510; the actual stay was twelve days, TNA (PRO) reel 107, CO201/119, 401. 74 Penny Russell, Savage or Civilised? 4. 75 G.H. von Langsdorff, Voyages and Travels in Various Parts of the World, during the Years 1803, 1804, 1805, 1806, and 1807 (London: Henry Colburn, 1813). 76 Field, Geographical Memoirs, 409. 77 Henry Ellis, Journal of the Proceedings of the late Embassy to China, vol. 1, (London: John Murray, 1818), 16. 78 When Field believed that he would accept appointment to Ceylon he planned on disposing his collection of fishes and shells – see Field to Swainson, 21, 22 January 1829, Linnean Society. 79 Mary Louise Pratt, Imperial Eyes, Travel Writing and Transculturation (London: Taylor and Francis, 2nd ed., 2007), 26. 80 Ibid., 109–110; Alexander von Humboldt, Personal Narrative of Travels to the Equinoctial Regions of the New Continent (London: 1814–1829), 7 vols.; Nigel Leask, Curiosity and the Aesthetics of Travel Writing 1770–1840 (Oxford: Oxford University Press, 2002), 1, quoting from Alexander von Humboldt, Cosmos 1849; Field quoted frequently from Humboldt during his years in the colony suggesting he had the published volumes in his possession. There were references to his Personal Narrative in papers delivered to the Agricultural Society and Philosophical Society.

63 Tejeuca expedition was more characteristic of romantic exploration, in which travellers penetrated continental interiors.81

Middle class travellers were more than shipboard moralists and travel writers. They were facilitators of commerce and society, carrying letters to acquaintances and loved ones, and transporting business papers, if not always to good effect. Whilst in Rio, Field naively took a power of attorney from a merchant, to recover a debt in Sydney. These instructions had the potential to create a conflict of interest. If the debt was contested it had to come before Field. Thus commenced events that culminated in the death of T. S. Amos, a colonial attorney in 1819, two years after Field reached the colony.

After the mooring at Rio, there was no landfall for another 96 uneventful days. By the end of the voyage three convict women had died, a death rate of nearly 3%. In the House of Commons, the President of the Transport Board stated that deaths on convict voyages amounted to only 53 in 6,409 – far lower than the average death rate on transports which Nicholas and Shergold found to be 1.8% for the period.82 Those on Field’s ship who survived the voyage were inspected on arrival and were pronounced healthy.83 They were rapidly absorbed into colonial life, helping to redress the imbalance between the sexes and helping to stabilise relationships between men and women.84 After 163 days at sea, Field relished the prospect of arriving and taking his place in the upper reaches of colonial society.

81 Field, Geographical Memoirs, 409; Leask, Travel Writing, 3; for a superior account of Tejeuca see Ellis, Journal of the Proceedings of the late Embassy to China, 10. 82 The Times, 27 January 1819, 2b; for Sir T. B. Martin see James Edward Gillespie, ‘The Transportation of English Convicts after 1783,’ Journal of the American Institute of Criminal Law and Criminology 13 (1922): 359, 362; Stephen Nicholas and Peter R. Shergold, ‘Convicts as Migrants,’ in Stephen Nicholas ed. Convict Workers (Cambridge: Cambridge University Press, 1988): 43‐61, 47. 83 TNA (PRO) reel 107, CO 201/119, 401. 84 Bateson, The Convict Ships, 326‐7, states that between 1800 and 1816, 23.87% of the convicts who arrived were women; Alan Atkinson, The Europeans in Australia vol. 1, (Oxford: Oxford University Press, vol. 1, 1997) 307, states that in 1805, in the convict population, men outnumbered women three to one; 309 –the following year of 1430 women, 1035 were unmarried but living in relationships.

64 Arrival

Field was incorporated into the senior levels of colonial administration by virtue of his office. His status as a judge automatically entitled him to the respect of the whole of the colony. Field made it apparent even before he stepped ashore early 1817 that he was intent on claiming his rightful position in the colonial hierarchy. He pompously declaimed that he would not disembark without a command from the governor. This was to ensure that when he landed he would receive the honours afforded to persons of importance.85 Although there is no record of his being saluted when boarding at Gravesend, his welcoming ceremonies were near to the honours accorded a British governor on his colonial posting.86 Formerly a middle‐class failure with few prospects, Field was now transported into what Laidlaw calls the world of the colonial social elite.87

There were very few who arrived in the colony with rank and distinction that was derived from birth. Field enjoyed the status he derived from occupational identity. Others less fortunate had to establish their own credit and reputation.88 When Field arrived he was greeted with the respect that precedent had laid down by regulation:

When any persons of quality or of a Publick (sic) Character embark on board any of His Majesty’s ships they may be saluted at their coming on board and also at their departure with 11 guns.89

Field’s predecessor had refused to land until a salute was fired in his honour.90 Macquarie capitulated and Bent landed as thirteen guns were fired from the saluting base at Dawe’s Battery. Field was accorded this honour without demur. The governor also sent his barge to bring him ashore.

85 Field to Macquarie, 24 February 1817, SR reel 6046 4/1737, 53–4. 86 David Cannadine, Ornamentalism: how the British saw their empire (New York and Oxford: Oxford University Press, 2001), 32. 87 Laidlaw, Colonial Connections, 106. 88 McKenzie, Scandal in the Colonies, 79. 89 The Regulations and Instructions Relating to His Majesty’s Service at Sea – Orders in council, Thirteenth edition, 1790, Article 20, 87. 90 C. H. Currey, The Brothers Bent (Sydney: Sydney University Press, 1968), 100.

65 The public saluting continued as Field, accompanied by Wylde, stepped ashore at the government wharf. Waiting to greet him on this important occasion in the confined society of early New South Wales were the magistrates of the town and several gentlemen. The party walked up to Government House where Field was introduced to Governor Macquarie who swore him into office after his commission was read in the presence of the lieutenant governor, Lieutenant‐ Colonel George Molle, Wylde, the magistrates and the principal civil officers. After the dispute with Judge Bent, the governor had taken care that the judges’ arrivals were marked with every demonstration of respect for their high official situation.91

Field’s posturing amounted to an announcement of his judicial status. This was a declaration of his role as an important official and drew as great a distinction as possible between himself, the free settlers and the emancipist‐convict society. The cannonade was proof of his paramountcy over those exclusivists who greeted him. However, no one stayed aloof from the cut and thrust of New South Wales’ society for long.

The ceremonies welcoming Field concluded with an evening formal dinner in his honour at Government House. The forty guests present were the Fields’ introduction to the upper society of the colony. Women were now present, although excluded from the earlier formalities, for as Catherine Hall points out English middle class culture excluded them from these occasions.92 The guests were present by invitation, the occasion ceased to be public and men and women intermingled freely. Judge Field was the focus whilst society put itself on show in ordered, layered procession.93

Macquarie’s New South Wales

Governor Lachlan Macquarie, who governed New South Wales from 1810 to 1821, had a vision for New South Wales: he was sorrowed by the prejudice against emancipists and aimed to achieve equality for them before the law and in society.

91 Despatch, Macquarie to Bathurst, 4 April 1817, HRA, I, IX, 345. 92 Catherine Hall, White, Male and Middle Class (Cambridge: Polity Press, 1992), 101. 93 Cannadine, Ornamentalism, 15, 32; Governor Macquarie’s diary, ML A773, 88.

66 At the time of Field’s arrival one in every three persons was ‘bond’, the term applied to those who had been transported for life or were completing a term of transportation.94 The balance of the population was emancipated except for the few who comprised the colonial elite. This was the intention of the British Government and the reason there was penal or military‐style but not civil government.

Guided by Scottish Enlightenment principles Macquarie believed that ‘the reformation of the criminal was possible because every individual had the potential for virtue’.95 ‘He overlooked past errors and punished or rewarded future conduct as it deserved.’96 Macquarie insisted on the colony being ‘a place of reclamation as well as punishment, and balanced the demands of exclusives with the needs of the emancipists.’97 The governor made liberal use of the power entrusted in him to ‘pardon’ after which there would be no reference to a convict’s criminal past. He hoped to foster ‘honesty, sobriety and industry … by offering them opportunities to work toward their own material advancement …’ and employed emancipated convicts ‘in roles suited to their qualifications.’98 Accordingly he promoted emancipists to the magistracy, to administrative positions and as trustees of colonial revenue.99 In this way, he reasoned, they would be readmitted to ‘the rank in society which [they] had forfeited’, on equal terms with those who had never been convicts. The governor had a champion in William Wilberforce who shared his views.100 But Wilberforce’s approbation

94 N. G. Butlin, Colonial Statistics Before 1850 (Canberra: Australian National University, 1986): 3 – excluding Van Diemen’s Land the total population of the colony in 1817 was 17,265; of whom 5,795 were ‘bond’ 7. 95 Diane Sylvester, ‘Governor Lachlan Macquarie, Sir James Mackintosh and the Scottish Enlightenment,’ Journal of Australian History 12 (2010): 27. 96 John Gascoigne, The Enlightenment and the Origins of European Australia (Cambridge: Cambridge University Press, 2002), 132. 97 Stuart Macintyre, A Concise History of Australia (Port Melbourne, Victoria: Cambridge University Press, 2009), 50. 98 Sylvester, ‘Macquarie and the Scottish Enlightenment,’ 25, 28. 99 Magistrates – Andrew Thompson, Simeon Lord, Reverend Henry Fulton and Dr William Redfern; Administrative positions – James Meehan acting surveyor, Richard Fitzgerald head storekeeper, Francis Greenway architect and William Hutchinson superintendent of convicts; Trustees – Andrew Thompson and Simeon Lord. 100 Ascribed to William Wilberforce, to Marsden, 21 March 1814, Marsden papers, 1793–1928, ML C244 CY762.

67 meant little in the increasingly divided society of colonial New South Wales. Macquarie’s policies of leniency attracted official disapproval and engendered severe criticism of his excessive expenditure of public monies in the colony.101 His noble sympathies for convicts had the effect of contributing to colonial prejudice against them.

Macquarie defied convention in his bid to integrate convicts into colonial society. Government House was customarily the supreme arbiter of social acceptance.102 However the governor made new rules. Both he and his wife invited large numbers of ‘not very select persons’ to government house.103 Mrs Macquarie attempted to construct a family life for the many convicts who had no family or accommodation until barracks were built for them. She invited them to dine at Government House and shared it with them as their own space.104 Feminine domesticity was ‘central to the construction of middle class identity’.105 Mrs Macquarie’s intention was to include convicts in ‘the concerns of family life and the “private sphere”’.106

With a preponderance of transported persons in the colony Macquarie’s policies in part reflected necessity. Intermarriage between most levels of society was forced on the population in the early years of the colony. There was a ‘general shortage of women, especially marriageable women … in 1790 there were approximately six men for each women over the age of twelve.’ Lieutenant Ralph Clark was typical of men who remained faithful to their wives for a time but eventually succumbed to the colonial custom of co‐habiting with convict women.107 Too few of these relationships ended in the matrimony that Macquarie

101 John Ritchie, Punishment and Profit (Melbourne: William Heinemann Australia Ltd., 1970), 24, 26. 102 McKenzie, Scandal in the colonies, 25. 103 Elizabeth Macarthur to Eliza Kingdon ‘Parramatta’ March 1816, Onslow, Macarthur Records, 305. 104 Ritchie, Macquarie, 135; W. M. Robbins, ‘Spatial Escape and the Hyde Park Barracks,’ Journal of Australian Colonial History 7 (2005): 81. 105 Karen Harvey, ‘Men Making Home: Masculinity and Domesticity in Eighteenth Century Britain,’ Gender and History 21:3 (2009): 523. 106 Ibid., 524. 107 Beverley Kingston, A History of New South Wales (Cambridge : Cambridge University Press, 2006), 23–4.

68 demanded.108 This was so in part because convict women were held in contempt at home, and increasingly in the colony.109 When colonial women were criticised it was a result of the behaviour of female convicts. Sturma points out that this stereotypical view arose from the discrepancy between working‐class behaviour and middle to upper class expectations of female conduct generally.110 The governor saw that the future of the colony depended on its children. He granted women convicts tickets of leave to enable them to care for their children who were becoming increasingly isolated.111

The demographic importance of emancipists and convicts meant that ordinary commerce could not be conducted without them. Availing themselves of the freedom Macquarie offered, emancipists resumed their previous occupations of baker, butcher, tailor, blacksmith or general dealer. Some like Simeon Lord and Samuel Terry accumulated great wealth and built fine houses. Terry became the colony’s principal moneylender. Macquarie as we shall see supported a petition that freed the shipping trade from restrictions on tonnage.112 This was a measure that assisted emancipists as did his policy of allowing the two currency standards of sterling and locally issued promissory notes.113 A number of emancipist trading ventures also received encouragement from Macquarie.114 A new coterie of venture capitalists, the emancipist entrepreneurs emerged successfully in trade and commerce as the domination in this area of the military traders fell away.115 The expansion of the colony depended on this new commercial class. It exploited whaling and sealing and trade with nearby countries.

108 John Slater, a convict, to his wife c. 1817 ‘formerly marriage was not known, but latterly under the influence of Gov. Macquarie now frequent but there was much swapping’ – Ariana Klepac and John Thompson, eds. Australian Voices (Millers Point, New South Wales: Pier 9/Murdoch Books, 2010), 218. 109 See the colony’s opinion of Sarah Wentworth at f.n. 156. 110 Michael Sturma, ‘Eye of the Beholder: The Stereotype of Women Convicts, 1788–1852,’ Labour History 34 (May, 1978): 4. 111 Bigge I, 20. 112 D.R. Hainsworth, The Sydney Traders 2nd ed. (Carlton, Victoria: Melbourne University Press, 1981) 16. 113 Ibid., 61. 114 Ibid., an iron ore mine, 190; a paper‐making venture, 183; a request for shipment of an emancipist’s machinery freight free, 185; hat making, 197; textile manufacturing, 200. 115 Ibid., 36.

69 Macquarie hoped to see a population of peasant farmers develop. He encouraged self‐sufficiency amongst emancipists with grants of land in the hope that cultivation on farms and ‘the founding of small rural villages’ would result.116 His policy of containing settlement to a ‘small controllable area’ concentrated the population.117 Macquarie was following government instructions and he persisted in them although he was aware of the difficulties the grantees faced from lack of capital, experience and application.118 A ‘most singularly constructed society’ was thereby spawned.119

The Exclusivist Standpoint

New South Wales at the time of Field’s arrival was a very odd place for a free man with pretensions to gentility. It was not until 1819 that Lord Bathurst began to encourage migration to the colony. The Times offered its opinion that unless the character of the colony was redeemed it would never be ‘a fit residence for civilized man …’. It was a fact that the tide of moral emigration was going to other shores.120 As Butlin points out ‘a massive flow of people occurred from Britain to North America between 1788 and 1850’.121

Macquarie’s enemies, both inside and outside the colony, blamed him for its poor reputation. Those colonists who desired social standing deeply resented Macquarie’s favouring of emancipists. Their antipathy towards emancipists arose for a number of reasons. The free merchants resented emancipists’ commercial successes. This resentment arose, Macintyre argues, because Macquarie’s favouritism prevented the free from monopolising economic opportunity.122 Exclusivists believed that as the colony expanded its evolving commercial life should remain in the hands of the free settlers. At the same time, however, the two

116 Grace Karskens and Richard Waterhouse, ‘‘Too sacred to be taken away’: Property, Liberty, Tyranny and the ‘Rum Rebellion’,’ Journal of Australian Colonial History 12 (2010): 5. 117 N. G. Butlin, Forming a Colonial Economy, Australia 1810–1850. (Melbourne: Cambridge University Press, 1994), 203. 118 Bigge, I, 172‐3; III, 48. 119 John Macarthur to Walter Davidson, 3 September 1818, Onslow, Macarthur Records, 317. 120 The Times, 2 February 1819, Issue 10586, 3c. 121 Butlin, Forming a Colonial Economy, 19. 122 Macintyre, A Concise History of Australia, 50.

70 groups were bound by thick webs of commerce. The records of the court detail many commercial transactions between the free and emancipist traders. Commercial associations did not injure the dignity of the free. Gentlemen accepted bills of exchange or promissory notes from emancipists and made wholesale purchases of goods from them.123 Hainsworth records the association between emancipists and exclusivists in the short‐lived Commercial Society founded in 1813.124 Although they sent their servants to emancipists to purchase their daily staples they had to attend in person to buy their jewellery, shoes, clothing and furnishings. They borrowed money from Terry.125

Macquarie had created a conundrum for exclusivists. He was attempting to elevate the fallen to respectability. Free people felt they had been exploited in an attempt to unite them with the convict population.126 Why should they, exclusivists asked themselves, respect emancipists particularly when the governor’s policies were frowned upon in England. The free believed that overlooking the ‘moral turpitude’ of emancipists’ crimes was wrong. They believed they were not to be without retrospect and forgotten.127 They opposed Macquarie’s rehabilitation of convicts by granting tickets of leave that allowed them to work on their own account. This, as Beverley Kingston points out, put him at odds with the free by reducing the numbers available to labour for them at next to no cost.128

From the conservatives’ viewpoint Macquarie’s appointment of emancipists to positions of trust and authority was too rapid and they could not air their concerns in the absence of a free press. Ritchie recounts that a woman reproached Simeon Lord whilst acting as a magistrate for being an ex‐convict.129 However, individual discrimination against individuals varied. As we will see in Chapter

123 See for example, Laurie v. Palmer, 10 June 1818 – free defendant, commercial purchase from emancipist plaintiff – SR, SC, judgment rolls 9/2216 #105; Jones and Riley v. White, 1 October 1817 – free plaintiffs, substantial sale to probable emancipist – SR, SC, judgment rolls 9/2216 #84. 124 SG, 27 November 1813, 1a; 11 December 1813, 1c; Bigge II, 77; Hainsworth, Sydney Traders, 60. 125 See Terry v. Amos, SR SC judgment rolls 9/2220 #209. 126 Ellis, Macquarie, 227. 127 Sir John Jamison to Henry Goulburn, 12 December 1817, HRA, IV, I, 253‐4. 128 Kingston, A History of New South Wales, 11. 129 Ritchie, Punishment and Profit, 117.

71 Three, when necessary, conservatives relied on emancipist legal attornies and arbitrators to conduct their legal business.

Social life became one of the few means through which to maintain distinctions between emancipists and free settlers in New South Wales. Macquarie noted that exclusivists kept aloof with sensitivities too proud and feelings too delicate to associate with emancipists.130 Throughout the British Empire, the few fragments of British society that migrated to the colonies spawned ‘a distinctly new civilization.’ It imposed its material culture as ‘the Old World notions of class, status and gender were reworked.’131 In the peculiar society of New South Wales, the social advancement of emancipists applied acute pressure on the recreation of social status. Russell argues that manners were a key to status in the nineteenth society.132 Manners defined social position, mapped the road into the world of elites and assisted in the maintenance of their exclusiveness. Though Russell neglects religion, the English middle classes also brought with them a belief that they owed their economic success and social dominance to their stance on morality.133 Good morals were an important element of good manners. The religious revival that took place after John Wesley began preaching in England in 1739 fostered morality. Manners and morality, of course, could be maintained independently of religion.134 However, religious belief caught the enthusiasm of not only many of the masses but ‘a considerable part of the governing class as well.’ Historians have argued that it prevented instability in England at the time the French Revolution was bringing about scepticism that ‘fully triumphed over revealed religion.’135 Evidence that a sense of moral responsibility was a powerful influence from the colony’s earliest days was the establishment of schools for

130 Despatch, Macquarie to Bathurst, 28 June 1813, HRA, I, VII, 776. 131 Jan Kociumbas, ‘1770–1860 Possessions,’ The Oxford History of Australia (Melbourne: Oxford University Press, 1992), 2: vii. 132 Russell, Savage or Civilised, 3. 133 Peter H. Lindert, ‘Unequal English wealth since 1670,’ Journal of Political Economy 94:6 (1986): 1136. 134 John Macarthur who set high moral standards apparently did not attend church and despised Marsden – see his letter to Elizabeth Macarthur, 11 December 1809, Onslow, Macarthur Records 187. 135 Elissa S Itzkin, ‘The Halevy Thesis – A Working Hypothesis? English Revivalism: Antidote for Revolution and Radicalism 1789–1815,’ Church History 44, no. 1 (1975): 51.

72 orphan girls and boys. Concern for the welfare of young girls in the late eighteenth century, led to the establishment by Governor Hunter of the Orphan Committee whose clerk was a transported convict David Dickenson Mann.136 This was a fore‐ runner of the cooperation that was to be seen in the Macquarie years between the government and emancipists. Exclusivists tolerated it because it was a moral movement.

Upper colonial society aspired to being cultivated and civilised, possessing finish, urbanity and refinement. The upper classes saw their own moral superiority overcoming cultural dislocation.137 Both manners and morality undergirded social distinctions in the convict colony of New South Wales. Military and naval officers were the initial adjudicators of colonial morals. One naval officer even refused to speak to a convict although he had known the convict’s family at home.138 Officers elevated dining to the high point of social behaviour. Accordingly they accused the governor of degrading what should have been the most formal measure of social distinction. Because of the presence of emancipists they made it a rule to refuse invitations to dine at Government House.139 Exclusivists assumed the role of moral arbiters as emancipists challenged them with Macquarie’s encouragement.

As a bulwark against intrusion into their society, exclusivists attempted to impose their moral standards on the lower classes. Critics of colonial morality based their views on the lack of interest convicts had in matrimony. Henry Goulburn, Under‐Secretary of the Colonial Office, believed the colony needed

136 For welfare of young girls see Tina Picton Phillips, ‘Family matters: bastards, orphans and baptisms–New South Wales, 1810–1825,’ Journal of the Royal Australian Historical Society 90, no. 2 (2004): 126; for eighteenth century establishment by Governor Hunter see evidence of Admiral Hunter (Governor of New South Wales 1795–1800), Report from the Select Committee on Transportation 1812 (341), 22; G. F. J. Bergman, ‘Johnston, Esther (1767–1846)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/johnston‐esther‐2276/text2923, accessed 13 December 2012. 137 Christopher S. Nield, ‘Distant Correspondents: Charles Lamb, Exploration and the Writing of Letters,’ Romanticism 10:1 (2004): 91. 138 Account of newly discovered papers of John Septimus Roe, a naval officer in Sydney in 1817, recently purchased by the State Library of New South Wales, The Sydney Morning Herald, 24–25 April 2010, 14. 139 Ellis, Macquarie, 226.

73 instruction in true principles of morality and religion.140 Edward Smith Hall agreed with him. Although an emancipist champion, he was forced to conclude that the colony was ‘a foul sink of moral iniquity’.141 The editors of The Australian agreed.142 Their view was also based on genteel expectations of moral behaviour. Grace Karskens advances a number of reasons why union without marriage was common in the colony. It was widespread in the Old Country, too, and it suited the new.143

At stake for the exclusivists was the need to maintain social and moral standing whilst competing with emancipists in trade and commerce. Macquarie assisted this objective to some extent. He understood that ‘Discipline and reformation required public morality and personal restraint’.144 However, exclusivists were much more extreme in alienating themselves from emancipists. They set themselves as far apart as possible by adopting the most rigid moral standards.

The growing importance of morality and social distinction in the colony in the 1810s is evident in the fate of Lieutenant Thomas Wright who was court martialled for socialising with the colony’s first post‐master, emancipist Isaac Nichols.145 Wright’s offence may have been as innocuous as being in Nichols’ company at George Howe’s public billiard house.146 The verdict on a charge of ‘conduct unbecoming the character of an Officer and a Gentleman’ was later confirmed in London.147

140 Brian Jenkins, Henry Goulburn 1784–1856 (Montreal, Buffalo: McGill–Queen’s University Press, 1996), 105. 141 James Belich, Replenishing the earth: the settler revolution and the rise of the Anglo­world, 1783– 1939 (Oxford; New York: Oxford University Press, 2009), 263. 142 HRA, I, XI, 600, citing The Australian, 7 April 1825, 2b‐c. 143 Grace Karskens, The Colony: a history of early Sydney (Crows Nest, NSW: Allen and Unwin, 2009), 326. 144 Macintyre, A Concise History of Australia, 48. 145 Hannibal Macarthur to John Macarthur, 10 November 1812, Onslow, Macarthur Records, 296; for Isaac Nichols see Arthur McMartin, ‘Nichols, Isaac (1770–1819)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/nichols‐isaac‐2507/text3385, accessed 13 December 2012. 146 See Campbell v. Macarthur SR X1986 257. 147 Robin Walsh, Commissioned Officers of the 73rd Regiment who served in Ceylon 1814–1821. Wright, Thomas. Macquarie University Library.

74 Growing punctiliousness was also evident in the controversy over Lieutenant Governor Sorell in Van Diemen’s Land who defied the military code of honour by living openly with a woman, who although of his own class, was the wife of Lieutenant Kent. Sorell’s alliance with Mrs Kent, a woman with a ‘light reputation’ was worse than marriage to a convict.148 The outward display of their relationship was censored for emboldening similar immoral behaviour in the inhabitants of Van Diemen’s Land.149 Major Druitt’s conduct also outraged polite society. He was present at the wedding of doubtful legality performed by the ship’s captain on the voyage to the colony between stowaway Margaret Lynch and Private Terence Burns. When all three arrived in 1817 Margaret was offered the choice of life with Burns or Druitt. She chose the major and they lived together openly.150

Exclusives were prejudiced against the children of convicts as well as their parents. A relationship between an exclusivist and a convict or child of a convict was regarded as something like racial miscegenation.151 Polite society could adroitly navigate some social niceties, however. The governor’s aide‐de‐camp, Major of Brigade Henry Colden Antill, a firm supporter of the emancipist cause, did not openly marry his bride, Eliza Wills, a convict’s daughter. He applied for a special licence.152 In this way Antill avoided the publicity that followed the reading of marriage banns on three consecutive Sundays.153 Similarly, Captain John Piper’s

148 McKenzie, Scandal in the colonies, 2. 149 Commissioner Bigge’s examination of A. F. Kemp, 9 November 1819, HRA, III, III, 221. 150 M. Austin, ‘Druitt, George (1775–1842)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/druitt‐george‐ 1994/text2431, accessed 13 December 2012; Brisbane to Bathurst, 31 January 1825 – HRA, I, XI, 484. 151 G. F. J. Bergman, ‘Johnston, Esther (1767–1846)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/johnston‐ esther‐2276/text2923, accessed 13 December 2012. was transported for theft, lived with and eventually married Lieutenant George Johnston. She was accepted by exclusivists because she was modest, self–effacing and remained in the background.. 152 SG, 17 October 1818, 3c; in England, a special licence was only available from the Archbishop of Canterbury. In the colony Macquarie took it upon himself to fulfil this function. The fee charged, originally greater than that charged in England was reduced to four guineas, the same as in England – see SG, 26 June 1813, 1a. 153 Helen Heney, Dear Fanny (Sydney: Pergamon Press (Australia) Pty. Ltd., 1985), 38; the curate read out in church ‘I publish the banns of marriage between Henry Colden Antill of Sydney and Eliza Wills of Sydney. If any of you know cause or just impediment why these two persons should

75 marriage to the daughter of a convict should have but did not draw down on him the moral wrath of exclusivists but Piper was ‘so well loved’ that his marriage was amongst the things he was forgiven.154 In contrast, Sarah and William Wentworth were unfortunate in this regard. Society never forgave them for their convict backgrounds and their cohabitation before marriage. Sarah was a ‘damned whore’ to the day she left the colony.155 Moreover, the rules that polite society created did not totally exclude ex‐convicts. The ‘Gentleman convict’ Sir Henry Brown Hayes, sentenced to death for abducting an heiress, was welcomed by the Lieutenant Governor, Sir Maurice O’Connell.156 Hayes by then however had been pardoned by Governor Bligh and was socially superior to O’Connell.157 Convicts who had been transported for killing their opponents in a duel, under the conventions of the day remained gentlemen.158

One of the most contested prejudices against emancipists, however, was exclusivist anxiety about crime in the colony.159 One’s view of the amount of crime in the colony depended on whether one was an emancipist or an exclusivist. As we saw earlier, the governor concentrated convicts in settlements. This was the case with Sydney.160

Exclusivists believed that the gathering of convicts in Sydney caused an increase in crime in the Macquarie years. Jane Field feared travelling at night just

not be joined together in holy Matrimony, ye are to declare it. This the first (second, or third) time of asking.’ (Book of Common Prayer, 175). 154 Marjorie Barnard, ‘Piper, John (1773–1851)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/piper‐john‐ 2552/text3449, accessed 13 December 2012. 155 Carol Liston, ‘The damned whore and the public man: Sarah and William Wentworth,’ in For Richer, for Poorer, ed. Penny Russell, (Melbourne: Melbourne University Press, 1994), 120. 156 N. S. Lynravn, ‘Hayes, Sir Henry Browne (1762–1832)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography /hayes‐sir‐henry‐browne‐2172/text2787, accessed 13 December 2012; Ellis, Macquarie, 227; Hannibal Macarthur to John Macarthur, Sydney, 10 November 1812, Onslow, Macarthur Records, 296. 157 The contrast between the social positions of the two is apparent in their respective biographies in the Australian Dictionary of Biography. 158 Heney, Dear Fanney, 30. 159 Peter King, ‘Newspaper reporting and attitudes to crime in late‐eighteenth and early‐nineteenth century London,’ Continuity and Change 22, no. 1 (2007): 83, 93. 160 Karskens, The Colony, 228.

76 the few miles to Point Piper.161 Mrs Macarthur thought most of the colony was ‘vicious.’162 The amount of crime concerned Macquarie. Robberies became so prevalent that he ordered the magistrates to station four constables to patrol the road between Sydney and Parramatta after dark and advised travellers to be well armed. Governor Brisbane attributed the increase in crime to the great increase of population.163 But he had to concede that crimes ‘in proportion to the population, [were] six times greater than in England.’164 In addition, some colonists thought the police to be ‘in a miserable state’.165

However, these observations seem to have been overstated. In the opinion of a contemporary observer, however, crime declined after 1810.166 From that year also, based on modern research, Braithwaite found violent crime diminished.167 In 1813 an address to Macquarie from a committee, the majority of whom were emancipists or their sympathisers, extolled ‘the quiet and peaceful enjoyment of our Lives and Property, the midnight Robber being scarcely known in our Streets’.168 Even if crime was frequent, colonial recidivism was not common, possibly because most convicts ‘were not professional and habitual criminals, recruited from a distinct class and trained to crime from the cradle.’169 Consequently emancipists resented exclusivist expectations that they would be lawless.

Emancipist resentment was also based on largely false accusations of cruelty to convicts. When emancipists were convicts, they argued, labouring to build fine houses for their masters and tilling the fields that provided their wealth,

161 Jane Field to Captain Piper, undated, Piper papers, ML A255, vol. 2, 503a. 162 Elizabeth Macarthur to Eliza Kingdon, ‘February’ 1821, Onslow, Macarthur Records, 370. 163 Despatch, Brisbane to Bathurst, 3 June 1825, HRA, I, XI, 620; A. G. L. Shaw, Convicts and the Colonies (London: Faber and Faber, 1966), 96, points out that three times as many convicts arrived in the second half of Macquarie’s administration as the first. 164 Despatch, Brisbane to Bathurst, 23 May 1825, HRA, I, XI, 612. 165 SG, 3 February 1825, 2d. 166 D. D. Mann, ‘The present Picture of New South Wales: illustrated with four large coloured views from Drawings taken on the Spot, of Sydney, the Seat of Government: with a Plan of the Colony, taken from actual Survey by public Authority,’ The Critical Review, or, Annals of Literature 23:1 (May 1811): 50. 167 John Braithwaite, ‘Crime in a Convict Republic.’ The Modern Law Review, 64, no. 1 (2001): 39. 168 SG, 2 January 1813, 1c. 169 Braithwaite, ‘Crime in a Convict Republic,’ 32.

77 they had been treated with harshness and cruelty.170 It was a generalisation, made in 1826, four years before the collecting of statistics on floggings. Official figures on corporal punishment give it no support. Historians contend that convicts were not treated badly. Hirst chose 1835, the year when most floggings were inflicted, to demonstrate that fewer than one in four convicts received a whipping. Nicholas concludes that ‘[m]ost Australian historians have overemphasised beatings as a peculiar feature of colonial society …’.171

The Bigge reports

We have seen that colonial exclusivists were waging a relentless campaign against Macquarie in London at the time of Field’s appointment. As the tide turned against Macquarie, an outcome was the appointment of Commissioner J. T. Bigge to enquire into all aspects of the colony, its judicial establishments and its trade and agriculture. Lord Bathurst made it clear to Bigge in his instructions, that the colony was not meeting its objectives of holding out the prospect of terror to transported convicts.172

The objective of making the colony a place of terror, differed, from Laidlaw’s findings of the objectives of further commissions the British Government established in the 1820s. The dominant characteristic of later commissions was an upsurge of humanitarian sympathies for the welfare of Great Britain’s overseas subjects. It became clear that the rule of law was to be imposed along with ideals of religion and morality.173 Remedial legislation followed after publication of Bigge’s first report. The dramas described in this thesis therefore all occurred under the watchful eye of a very new institution: the commission of enquiry.

170 The Monitor, 30 June 1826, 53a. 171 Stephen Nicholas, ‘The Care and Feeding of Convicts’ in Convict Workers Reinterpreting Australia’s Past ed. by Stephen Nicholas (Melbourne: Cambridge University Press, 1988, reprinted 1989), 183. 172 Raymond Evans, ‘Creating ‘an Object of Real Terror’: The tabling of the first Bigge report,’ in Turning Points in Australian History, edited by Martin Crotty and David Andrew Roberts, (Sydney: University of New South Wales Press Ltd., 2009), 51. 173 Zoe Laidlaw, ‘Investigating Empire: Humanitarians, Reform and the Commission of Eastern Enquiry,’ The Journal of Imperial and Commonwealth History 40, no. 5 (2012): 753.

78

Judge Field’s position in society

Field could not long stand aloof from the social morass that existed in the colony. Initially, Field was close to the governor, socially, morally and politically. The governor accorded him the great honour of accompanying him in the vice‐regal carriage to public meetings.174 They exchanged opinions on the addresses to be given at those meetings and corresponded on the news of political developments in London.175 However Field’s status as a judge and his position in society was demeaned by close association with the governor. In this section I will show how Field’s quest to maintain status in each of these spheres led inexorably toward exclusivist sympathies. Meanwhile, the status and social recognition Macquarie gave emancipists by appointing them to high public office created conflict for Judge Field in his first months in the colony.

Field’s association with emancipists was mostly but not always forced upon him. Connection with them in court was inevitable. The governor appointed the magistrates to sit with the judge to constitute the court. In this way Macquarie forced Field into contact with Simeon Lord, one of the first emancipists he had appointed to the magistracy and D’Arcy Wentworth who had voluntarily come to the colony to escape attempts to indict him for highway robbery.176 Field was also obliged, due to lack of alternatives, and subject to Macquarie’s approval, to appoint emancipists to act as court officials.177 Worse, perhaps, Field had to permit the infamous George Crossley, employed by the free attorney T. S. Amos to make chamber appearances before him.178

174 Field to Macquarie, 7 March 1817, SR, reel 6046, 4/1737 288. 175 Field to Macquarie, 11 April 1817, SR, reel 6046, 4/1737 293‐4, 295. 176 J. J. Auchmuty, ‘Wentworth, D’Arcy (1762–1827)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au /biography /wentworth‐darcy‐1545/text3917, accessed 13 December 2012. 177 James Foster as a copying clerk, Bigge, II, 11; Edward Quin, SG, 2 September 1820, 3b, followed by Thomas Edwards as court criers and John Lester as court keeper, New South Wales pocket Almanack: for the year of our Lord and Saviour 1819–1820. Sydney: compiled and printed at Government Press by G. Howe, 1808–1821, 1818; Australasian pocket almanack for the year of Our Lord 1822, (Sydney: Compiled and printed by Robert Howe, 1822); Lester was a Constable paid for his attendance ‘at the Courts of Justice’ in 1819, SR, reel 6054; 4/1758 67, 67a. 178 Bigge to Bathurst, BT 28, 6754.

79 On the other hand, Field voluntarily ignored the social divide when it was to his advantage. When he learned of the literary abilities of the prisoner James Hardy Vaux, Field sought his removal from the penal station of Port Macquarie in order that he could employ him in the court’s office. Over the next year, without Vaux’s knowledge, Field arranged for his memoirs to be published in London.179 In the judge’s residence Field’s servants appear to have been free persons.180 But assigned convicts were working for him on his farm in the country at Cabramatta.181 Field associated with emancipists in various Christian charities. The Auxiliary Bible Society, the Sunday School movement, and the Orphan Schools for boys and girls all had emancipist connections.182 Soon after the Fields’ arrival, Jane, as a vice patroness and Judge Field as a committee member joined in the care of the welfare and education of these children.183 This was considered a suitable activity outside the home for respectable women. Weekly at church, emancipists, convicts and exclusivists were in close proximity but kept apart. Field rented a box pew whilst convicts stood at the rear of the church.184

Field was caught up in a social dilemma from the outset. Towards the end of his first year in the colony he concluded that he was living in ‘a peculiarly‐peopled’ place.185 Whilst Field socialised with the governor there was no escaping from the turmoil created by Macquarie’s advancement of emancipists. It was becoming very difficult for Field to remain Macquarie’s ally and retain affiliation with exclusives. Field’s disaffection with the governor commenced when he learned that dining at Government House meant joining emancipists. He declined invitations and in this way he was able to exert some control over his associates in his social life. As someone intent on social status Field felt he had no alternative. Like all free

179 The Australian, 6 June 1827; Colonial Secretary to Captain Wallis, 2 September 1818, SR, reel 6006, 4/3499, 26. 180 They accompanied him back to England, SG, 8 January 1824 1d. 181 Macquarie allotted Field ten prisoners to work his farm, Macquarie’s diary ML CY301 A773, 99. 182 Beryl M. Bubacz, Thesis, The Female and Male Orphan Schools in New South Wales 1801–1850, chapter four, 124. 183 Jane’s involvement see SG, 25 July 1818 1a; SR, reel 6039, SZ756 609; reel 6047, 4/1740 259– 68; for Field’s connection see Circular re establishment of male institution SR, 13 July 1818; SR, reel 6006, 4/3498 298–9; SG, 26 December 1818, 1c. 184 Bruce Kercher, ‘Establishment, Freedom of Speech and the Church of England: Pew Disputes in early 19th New South Wales,’ Australian Journal of Legal History 6, (2000): 137. 185 Field to Goulburn, 1 December 1817, HRA, IV, I, 251–3.

80 settlers with social aspirations, Field was caught up in the social contradictions of a colonial society in flux.

On the first circuit of his court in Van Diemen’s Land, Field was invited to dine with Lieutenant‐Governor Sorell. Major Thomas Bell, himself a critic of Sorell’s adulterous relationship with Mrs Kent, knowing Field’s sensibilities, suggested to him that she would be present.186 Field excused himself as delicately as he could and dined in the polite company of Mrs Bell and Jane his wife.187 Field’s invitation was renewed on the tacit understanding that Mrs Kent would not be present whereupon the Fields dined at Government House.

The close relationship that developed between the Fields and the Pipers was fragile for the same reasons. As I have already indicated Captain Piper was one of the few who were forgiven for the moral transgression of marrying the daughter of a convict. The Pipers and the Fields dined at each other’s houses frequently.188 Yet on his return to London Field discussed ‘the Piper problem’ with Mrs Macleay before her husband left to take up appointment as Colonial Secretary. Believing that she would ‘be very nice about morals’, a malicious and mischief‐making Field felt duty‐bound to reveal Mrs Piper’s convict antecedents.189 Field recommended Mrs Piper as polite company, but Mrs Macleay did not stomach it.190 This was hypocritical of Field for he had earlier written ‘A new generation has grown up, in no way responsible nor reproachable for the crimes of their parents …’.191

Having abandoned dining at Government House Field was drawn into more socially acceptable company. With Jane he began to dine with Mrs John Macarthur to whom he had letters of introduction from her husband in England.192 In England

186 Ritchie, Punishment and Profit, 143. 187 Field to Bigge, 15 June 1820, BT 23, 4428–9; Sorell was sued in London by Mrs Kent’s husband in an action for criminal conversation, the common law action for adultery. Damages of £3,000 were awarded against him, The Times, 7 July 1817, 3c–d; HRA, III, II, 780, note 128. 188 Jane Field, undated letter to the Pipers, ML Piper papers, A255, vol. 2 2, 503a. 189 Heney,. Australia’s Founding Mothers, 102. 190 Field to Marsden, London, 2 March 1825, ML CYA 1992, 437. 191 Quarterly Review 55, 56 (1820) 24. For a discussion of the attribution to Field of authorship of the anonymous review of W.C. Wentworth’s Description of New South Wales, see http://www.rc.umd.edu/reference/qr/index/47.html accessed 9/16/2005. Dr. Jonathan Cutmore, editor, Quarterly Review project. 192 John Macarthur to Elizabeth Macarthur, 23 July 1816, Onslow, Macarthur Records, 262.

81 both John and Elizabeth Macarthur were persons of no consequence. But in the colony as Beverley Kingston points out, they became the elite. The company of Mrs Macarthur and her children was highly respectable. She ‘did not approve of convict mistresses at social gatherings’ and provided the Fields with friends when they had no other.193 Only months after Macarthur’s return to the colony in September 1817 he and his wife were living ‘on terms of intimacy’ with the Fields.194 Theirs was the family that Macarthur referred to at the time as the only one by whom they were visited or they themselves visited.195

In refined circles Field was known for the exclusiveness of his company and the excellence of his table. The dinner he held in honour of the arrival in 1819 of Commissioner Bigge, met all Bigge’s expectations.196 Thereafter Field entertained the Commissioner and his secretary ‘everlastingly at breakfast, dinner and supper’.197 Field cultivated Bigge’s acquaintance in the hope of favourable mention in his report on the judicial establishments of the colony. Exclusivists held splendid dinners in honour of visiting foreign dignitaries. The Lieutenant Governor, Bigge, and ‘the Honourable the Judges’ were the notables who attended the reception given by Captain Piper for visiting Russian naval officers.198 Following suit, Field, Wylde, Edward Riley and Piper feted the visiting French navigator Louis‐Claude Freycinet and his wife Rose.199

A cultural back­water

Field had more difficulty re‐establishing his social status through intellectual pursuits, however. To overcome their colonial isolation cultured men formed

193 For Mrs Macarthur’s disapproval of convict mistresses at social gathering see Kingston, A History of New South Wales, 24‐5; for Field’s friendship with Macarthur see Field to Marsden, 13 March 1827, CYA1992 460. 194 Elizabeth Macarthur to Eliza Kingdon, 17 May 1818, Onslow, Macarthur Records, 310. 195 John Macarthur to Walter Davidson, 3 September 1818, Onslow, op. cit., 317. 196 George Allen journal, CY 2575 MSS 477/1, 8 October 1819, 4. 197 The Monitor, 20 October 1826, 183a. 198 SG, 11 November 1820, 2c. 199 Louis de Freycinet, Reflections on New South Wales 1788–1839, translated by Thomas Cullity, (Potts Point, Sydney: Hordern House, 2001), 14; Invitation by Captain Piper to the Freycinets, 28 November 1819, ML A255 V2 477a; for Field’s entertainment of the Freycinets see (1820) 2 London Magazine, 186.

82 exclusive clubs and societies. Lambert and Lester argue that for a polite man of letters to make his way successfully within society he needed the good company provided by clubs.200 The Sydney Institution, the Agricultural Society and the Philosophical Society of Australasia were formed for this reason.201 Field and others who established these institutions defended themselves from undesirable company by the practice of blackballing. If emancipists sought membership of the most exclusive club in the colony, the Sydney Institution, whose patron was the governor, they were excluded if three black balls in a ballot were cast against them.202 The Philosophical Society of Australasia, also presided over by the governor, was founded in Field’s library.203 It had fewer members, therefore only one black ball was required to exclude an applicant.204 Kociumbas argues that this was an exclusive group that believed science belonged to it and was not to be used for educating the masses.205 Six exclusivists resolved to meet weekly for the purpose of publishing such information on the capabilities and resources of the colony as would benefit the world at large.206

Macquarie refused to sanction the proposal in 1818 to form an Agricultural Society in New South Wales because it excluded emancipists.207 After his departure, a further attempt in 1822 succeeded. Field played a major role soon becoming President. Governor Brisbane approved rules that facilitated the exclusion of emancipists. An applicant had to be proposed by five existing members. His name then went before a meeting of not less than 20 members. Three quarters of those present had to vote in favour of the applicant.208 Nevertheless, it was one of the few organisations that admitted an emancipist. The

200 David Lambert and Alan Lester, ‘Geographies of colonial philanthropy,’ Progress in Human Geography 28:3, (2004): 323. 201 For the founding of the Sydney Institution see SG, 28 June 1822 1c. 202 SG, 28 June 1822, 1c. 203 In England, clubs of every kind were to be found in taverns or pubs. As there were none suitable in the colony, some societies met in private spaces, Hall, White, Male and Middle Class, 157. 204 Rule 8, SR, SC, reel 6040, SZ 1007, 1. 205 Jan Kociumbas, ‘Science as Cultural Ideology: Museums and Mechanics’ Institutes in early New South Wales and Van Diemen’s Land,’ Labour History 64 (May, 1993), 18. 206 Philosophical Society of Australasia, SR, reel 6040, SZ 1007, 1. 207 Marion Phillips, A Colonial Autocracy, New South Wales Under Governor Macquarie 1810–1821 (London: Frank Cass & Co. Ltd., 1971), 270. 208 Prospectus, list of subscribers and rules and regulations of the Agricultural Society of New South Wales, instituted on 5 July 1822, 15.

83 ex‐convict Reverend Henry Fulton was accepted as a founding subscriber. Marsden had previously written, with Fulton in mind, that an emancipist may be completely rehabilitated but not be received in polite society.209

The rules and regulations of the Bank of New South Wales at its founding in 1817 required its directors to be ‘absolutely and unconditionally free’. Ex‐convict William Redfern qualified and was elected to the board.210 Having passed the examinations of the London Company of Surgeons, he was as near as any in the colony to be recognised as a ‘Gentleman convict’ – having retained his ‘refined sensibility’ he was the more easily rehabilitated, even though his ‘forcefulness and independence of character’ antagonised some exclusivists.211 Edward Eagar, whom Macquarie ‘pardoned’ absolutely and unconditionally to enable him to qualify for appointment, failed in his attempts to join the board. We will see the effect this ostracism had on him in his future clashes with Field.

Valuing his books as a cultured man’s most important asset, Field wrote soon after his arrival in 1817 to a friend in London that of ‘Society I shall have none, but that within my library’.212 Another who shared Field’s cultural isolation was the young articled law clerk George Allen whose education was inhibited without access to libraries. He too wrote to London requesting law books, asking if possible for some more general ones, for in Sydney there was ‘no society, no places of amusements nor libraries.’213 Those with whom Field associated were not widely read. Despite his extensive involvement in private associations, Field found

209 The Reverend Henry Fulton was transported for his part in the Irish rebellion of 1798. He received an ‘absolute pardon’ in 1805 and became resident chaplain and magistrate at Castlereagh and Richmond – SR; Yarwood, Marsden, 121. 210 R. F. Holder, Bank of New South Wales (Sydney: Angus and Robertson [Publishers] Pty. Ltd., 1970) 1:16. 211 For rehabilitation see Russell, Savage or Civilised, 113; for Redfern’s character see Edward Ford, ‘Redfern, William (1774–1833)’, Australian Dictionary of Biography, National Centre of Biography, Australian National University, http:// adb . anu .edu .au/biography/redfern–william‐2580 /text3533, accessed 14 December 2012. 212 Value of books – Ruth Watts, ‘A gendered journey: travel of ideas in England c. 1750–1800,’ History of Education 37, no. 4 (2008): 516; the value of Field’s library – Field to T. N. Talfourd, 22 March 1817, NLA Ms. 1450. 213 Elizabeth Webby, ‘Dispelling ‘The Stagnant Waters of Ignorance’: The early Institutes in context,’ in Philip C. Candy and John Laurent eds. Pioneering Culture: Mechanics’ Institutes and Schools of Art in Australia (Adelaide: Auslib Press, 1994): 29. I thank Tony Earls for bringing this article to my attention.

84 the activities he helped inaugurate a poor replacement for the intellectual stimulation he enjoyed in the company of the best literary minds in London. With others of his class, he judged the colony to be a cultural backwater.214

Judge Field and the rise of the Parramatta Party

When John Macarthur returned to the colony in September 1817 he resumed his attempts to influence Field against the governor and his pro‐emancipist policies. I have mentioned previously that Macarthur sought out Field in London before he sailed for the colony to take up his post as judge. Macarthur had foreseen that with no representative form of government the courts were the only legitimate means to oppose the governor. With the colony under the direct rule of the governor, there was no other means of expressing individual or public grievances. In London Macarthur impressed on Field his views that the governor’s policy of leniency towards convicts was wrong. Macarthur had kept abreast of colonial politics during his exile in London and knew of the criticisms of the governor that were current on the eve of his own departure.215

Macarthur’s resolve only increased on arrival in the colony. On his return he was appalled by the increase in vice and immorality since he left it in 1809 and he respected Judge Field’s stance on morality.216 Moreover, Macarthur returned to a very different colony from the one he had left. Emancipists had increased in numbers as had their wealth and confidence. They would soon own most of the shipping in Sydney.217 Exclusivists feared that their authority in the colony, enjoyed by magistrates and other civil officers, would be lost to the emancipists if they held those positions.218 It brought about in emancipists a rise in expectation

214 Elizabeth Windschuttle, Taste and Science – the Macleay Women (Glebe: Historic Houses Trust of New South Wales, 1988), 12. 215 John Macarthur to Elizabeth Macarthur, 18 February 1817, Onslow, Macarthur Records, 290. 216 John Macarthur to John Macarthur junior, 28 February 1820, Onslow, op. cit., 340. 217 Karskens, The Colony, 170, 173. 218 For a detailed study of the authority of magistrates see Neal, The Rule of Law in a penal colony: law and power in early New South Wales (Cambridge, U.K.: Cambridge University Press, 1991),115, et seq.

85 of respectability and dignity.219 The pressure of ‘Government’ men and women on the consciousness of exclusivists brought fear of contamination.220 They were aware that their expectations of order and deference were in flux and under continual pressure.221

For these reasons, Macarthur opposed Macquarie’s ‘New System’ of advancement of emancipists as magistrates that favoured ‘the regenerated few’.222 He firmly believed that Macquarie went too far in his compassion for convicts.223 Macarthur and his followers did not apply to emancipists the Enlightenment ideals of equality and liberty. They adopted the ‘darker side of Enlightenment theory [on] how to stigmatize forms of political and other behaviour as deviant …’ in defence of their pursuit of mercantilist capitalism.224 They justified their position by a reliance on their respectability.

Macarthur’s disenchantment with Macquarie hardened on his return, when he put his plans forward for the future of the colony as the source of wool for England.225 He demanded land and labourers to implement his schemes but the governor failed to respond with the enthusiasm Macarthur expected. Macarthur resiled from his pledge given as a condition of his return not to embroil himself in colonial politics.226 He did not consider it precluded him from responding to Commissioner Bigge’s invitation to assist his enquiries into the administration of the colony.227 During one of their many discussions that commenced February 1820 on the subject of convicts, Macarthur suggested that they should be assigned to settlers in the country to minimise the opportunity to commit crimes in

219 R. W. Connell and T. H. Irving, Class structure in Australian History: documents, narrative and argument (Melbourne: Longman Cheshire, 1980), 33. 220 Russell, Savage or Civilised, 110. 221 Ibid., 108‐9. 222 John Macarthur to Elizabeth Macarthur, 18 November 1812, Onslow, op. cit., 229. 223 John Manning Ward, James Macarthur, colonial conservative, 1798–1867 (Sydney: Sydney University Press, 1981), 21; Sylvester, Governor Macquarie and the Scottish Enlightenment, 26; Yarwood, Marsden, 183. 224 Kociumbas, Possessions, 1770–1860, x. 225 John Macarthur to his son John, 20 February 1820, Onslow, Macarthur Records, 325. 226 Margaret J. E. Steven, John Macarthur (Melbourne, New York: Oxford University Press, 1968), 21, 22. 227 John Macarthur to his son John, 20 February 1820, Onslow, op. cit., 322.

86 company with others.228 Field had already heard these arguments because they appeared the previous year in his Quarterly Review article that was critical of W. C. Wentworth’s Statistical Account of the colony.229 In the article, Field endorsed Macarthur’s views on the country assignment of convicts.230

For Judge Field, Macarthur’s overtures precipitated a remarkable change of circumstances. A man who only the previous year had been struggling to earn a living now had the choice of the social status of the friendship of either Macarthur, who boasted that he had been the means of sending home every governor to that time, or Macquarie.231 Field was seduced by Macarthur’s ‘long‐cherished scheme of a colonial aristocracy to counter the mounting influence in the colony of the “furious democrats”’.232 Once Field came under Macarthur’s influence he had no chance of resisting Macarthur’s politics for he subjugated every opponent to his views.233 As he had done in London, Field accepted the domination of a man of powerful intellect who, although not of a literary bent, was generally cultured. Moreover, Macarthur’s vision for the colony was inspirational. Field yielded to his pressure and joined the ranks of the governor’s critics. Lieutenant Henry Hemsworth, for example, one of Macquarie’s fiercest detractors, became one of Field’s dinner guests.234

Macarthur’s return greatly influenced Field. Once Field turned on Macquarie he and Macarthur complemented each other in their mutual political ambitions. In each other’s houses and in many visits to Field’s judicial chambers, Macarthur convinced the judge that Macquarie’s policies were not in the colony’s interest.235 Field was attracted to Macarthur’s vision of an English ‘stable,

228 Ritchie, Macquarie, 173. 229 John Macarthur to his son John, 20 February 1820, Onslow, op. cit., 337. 230 For my arguments that Field was the anonymous author of the Quarterly review, (1820) 24 Quarterly Review 55, 56 see internet reference http://www.rc.umd.edu/reference /qr/index /47.html accessed 9/16/2005 Dr Jonathan Cutmore, editor, Quarterly Review project. 231 Steven, John Macarthur, 28. 232 Ibid., 26. 233 Ibid., 29. 234 Invitation to dinner, Field to Piper ‘1821’, Piper papers, CYA 256 245. Macquarie to Duke of York, 25 July 1817, re Hemsworth, HRA, I, IX, 446; Hemsworth and Piper acted as pall bearers at the funeral of Judge Advocate Bent, an opponent of the governor, SG, 18 November 1815, 2b. 235 John Macarthur to Field, 29 January 1824, Onslow, op. cit., 368.

87 hierarchical society, in which political and social authority would belong to an elite of educated, wealthy and responsibly‐minded landowners.’236 Field was further disposed to accept Macarthur’s views by the fact that more convicts arrived in their first year in the colony than at any time since the governor’s arrival. The numbers increased steadily thereafter. More noticeable was the increase in the number of convict ships arriving yearly.237

Field also developed a friendship with Macarthur’s nephew, Hannibal, the resident police magistrate at Parramatta, a relationship in which politics and society was intertwined. They were near the same age and associated in the management of the orphan institutions, the Convict Savings Bank, the Agricultural Society, and Field’s occasional sittings with the Parramatta magistrates.238 Field also grew close to Hannibal’s brother‐in‐law, Phillip Parker King, son of the late Governor King. Reverend Samuel Marsden whose hatred of convicts ‘reached obsessive proportions’ was also affiliated with some of these men.239 Marsden, although an arch‐enemy of John Macarthur, relied on Hannibal for support.240 Collectively, this group of persons, with John Macarthur at its centre, but taking no public part in its activities, was known as the ‘Parramatta Party’. Field became its head. They were, according to Currey, ‘guided by no moral restraints in order to achieve their ends’.241

From the time of John Macarthur’s return to the colony in late 1817, Field’s repudiation of the governor’s policies was now more marked. He was on Macquarie’s list of ‘Factions and dissatisfied’ by 1821 and became increasingly voluble in his condemnation of convicts.242 They were a ‘vicious mass of transported people … men still standing as it were on the scaffold’; his mantra

236 Ward, James Macarthur, 2. 237 Bateson, The Convict Ships, 326. 238 Field was born in 1786, Hannibal in 1788; for association of Field and Hannibal in Orphan institutions see SR, 1 January 1819, reel 6040, 4/400 2, 10; for their association on the bench of magistrates see SG, 19 June 1819, 2b. 239 Sandra Blair, ‘The Felonry and the Free? Divisions in Colonial Society in the Penal Era,’ Labour History 45, (November 1983): 10. 240 C. H. Currey, Sir Francis Forbes (Sydney: Angus and Robertson, 1968), 147. 241 Ibid., 65. 242 ML CYA 772, 175.

88 now, was ‘Convict once, Convict forever’.243 Field expected contrition of the transported criminal. What he saw on the streets of Sydney instead, was ‘the yellow‐clad convict’ expressing a ‘hypocritical lour’.244 Eventually these prejudices bled into his judicial decisions.245 Because, by 1820, Field was deemed ‘a complete political Judge’, his rulings accorded with what was to become known as the Parramatta Party view whether or not that meant contravening the laws of England.246 For these reasons he bore much of the responsibility for exacerbating the divisions between the free and the unfree.247

Conclusion

Judge Field’s transition to New South Wales provides an insight into the process of colonisation. We learn how colonists set about replicating but inevitably changing the class structures they had known in their previous lives. Genteel society members relied on material means for respectability such as houses, position and wealth. They constructed a social order that was apparent from their morals, manners and social activities.

Politics was an accretion to respectability. In order to maintain respectability Field was forced to abandon the governor’s policies of favouring emancipists and to sympathise with the exclusivists. Social replication therefore heightened tensions in New South Wales as the polarisation of society became more pronounced as it became more politicised. At stake was social and moral standing. Field was constrained to join the spheres of politics and social life. This was difficult to achieve considering the governor’s policies towards emancipists. It entailed a decisive separation from the governor and all his policies. Once John Macarthur returned to the colony Field was persuaded by him to adopt his

243 ‘Vicious’ –Field to Bigge, 23 October 1820, HRA, IV, I, 869; ‘scaffold’, The Monitor, 16 June 1826, 36b; for Field’s mantra see Eagar to Bathurst, 3 April 1823, HRA, IV, I, 464. 244 Field, Geographical Memoirs, 435; convicts were known as ‘canaries’ in the vernacular of the town. 245 Despatch, Brisbane to Bathurst, 21 January 1824, HRA, I, XI, 199. 246 For complete political judge see The Sydney Monitor, 2 November 1831, 2b; for rulings favouring the Parramatta Party see SG, 1 October 1828, 2a. 247 SG, 1 October 1828, 2b.

89 exclusivist policies. In the following chapters we will see how extreme Field became in his opposition to emancipists.

90 CHAPTER THREE

A court awakes

The importance of the Supreme (civil) Court from its inception in 1814 lay in its role in the provision of the ‘invaluable, strategic and legitimate means of political expression in the colony.’1 This chapter traces the formation of the court under the Second Charter of Justice. A ‘biography’ of the Supreme (civil) Court throws light on its administration under its judges, and the way in which they influenced the legal and political conflicts in which they became involved from the bench. This chapter discusses the reasons for and casts new light on the impact of and the closure of the court under J. H. Bent for a lengthy period. This had an influence on the fate of emancipist attornies under Field, from 1817 onward. These two factors were important because they exacerbated tensions in the colony that exploded later in the court under Field.

In the period of its existence, 1814–1824, the Supreme (civil) Court was a place of politics for a number of reasons. Though the court lacked important physical and legal accoutrements of courtliness, new legally‐trained judges who arrived under Macquarie struggled to introduce formality into court proceedings. These factors combined to make the standing of emancipist lawyers before the court disproportionately important.

The Court of Civil Jurisdiction

A Royal Charter of 1787 known as the First Charter of Justice established the colony’s first Court of Civil Jurisdiction.2 It was administered by a Deputy Judge Advocate with the assistance of ‘two fit and proper persons’.3 These three persons adjudicated on so much of English law as was applicable to colonial circumstances.

1 David Neal, The Rule of Law in a penal colony: law and power in early New South Wales (Cambridge, U.K.: Cambridge University Press, 1991), 22. 2 HRA, IV, I, 77. 3 The Deputy Judge Advocate was always referred to as the Judge Advocate; for administration of the court see HRA, IV, I, 77.

91 The court was an experiment formed in anticipation of the needs of a newly established penal colony. Kercher has been the only scholar to point out that it was modelled on the series of courts established by the Parliament in England to provide cheap, speedy and informal determination of all matters of debt initially not amounting to forty shillings, a sum that was later increased.4 The Court of Requests created in 1750, on which the colonial Civil Court was modelled, aimed at eliminating the ‘vexatious, expensive and dilatory’ proceedings of the Sheriff’s County Court of Middlesex.5 This court was restricted to persons living in a narrow compass around its locality.

Typical of these small debt courts were the Mayor’s Court of London and the Norwich Court of Requests and Mayor’s Court of Equity.6 The Mayor’s Court of London was referred to as a ‘Court of Conscience or Court of Requests’ and was required to give judgment according to ‘equity and good conscience’ as well as law.7 In Norwich, the informal jurisdiction of the Mayor’s Court of Equity’s paid heed to ‘good conscience’.8 The requirement to give judgment according to ‘equity’ and ‘good conscience’ in these pioneering courts of London and Norwich was repeated in the Courts of Requests that Parliament created. The Court of Request of 1750 was required to make its orders ‘just and agreeable to Equity and good Conscience’.9

4 Bruce Kercher, Debt Seduction and other disasters (Sydney: The Federation Press: Annandale, 1996), 13. 5 An Act for preventing Delays and Expences in the Proceedings in the County Court of Middlesex; and for the more easy and speedy Recovery of Small Debts in the said County Court, 23 Geo. II c. 33 s. 3 (1750). 6 For a typical foundational court see 23 Geo. II c. 33 (1750) referred to in the preceding footnote; for the Norwich court see Michele Slatter, ‘The Norwich court of requests – a tradition continued,’ The Journal of Legal History 5, no. 3 (1984): 99. 7 3 Jac. 1 c. 15 (1605), An Act for the Recovering of Small Debts, and for the Relieving of Poor Debtors, in London. In the earliest days of the Mayoral Court, ‘conscience’ referred to the use by the judges and defendants of their knowledge of facts that could not be proved at common law. See Mike Macnair, ‘Equity and Conscience,’ Oxford Journal of Legal Studies 27, no. 4 (2007): 672, for examples. A judge sees a criminal defendant commit the offence charged but there is no other evidence. He may not convict. If matters came up in proof such as the examination of witnesses, which have not been alleged in the pleadings, they are irrelevant. The judge must act on what has been alleged and proved. By the late 17th century this concept of conscience was lost. 8 Slatter, The Norwich Court of Requests, 100. 9 An Act for preventing Delays and Expences in the Proceedings in the County Court of Middlesex; and for the more easy and speedy Recovery of Small Debts in the said County Court 23 Geo. II c. 33 s. 1 (1750)

92 This ‘equitable’ element in the English models posed drafting problems for those responsible for the creation of the Civil Court in New South Wales. The population was mainly composed of convicts. The death sentence imposed on these persons had been commuted to transportation by an extension of Royal Mercy. The British Government believed that they deserved no further consideration of equity and conscience. The ‘equitable’ requirement was not related to the doctrine that a plaintiff seeking equitable relief had to approach the court with clean hands because general depravity was not a ground for exclusion from an equitable court. The misconduct had to have an immediate and necessary relation to the remedy sought.10 Therefore in the colonial Civil Court the requirement to give ‘Judgement and Sentence according to Justice and Right’ replaced the requirement of the Courts

of Conscience or Requests to give judgment according to ‘equity and good conscience’.11

The Civil Court’s powers were exercised summarily in all questions of ownership of land, debt and all other personal pleas. Its rudimentary powers in succession were to grant ‘Probates of Wills and Administration of the Personal Estates of Intestates dying within (the colony).12 Procedure was by summons unless the demand was sworn to be £10 or upwards, in which case a defendant was arrested and released once satisfactory bail was provided. Legislation ameliorating harsh bail law in England that was passed shortly before the drafting of the Charter influenced its provisions in this respect.13

The British government established the courts of the colony with minimal expense. The charge on the British treasury was limited to the judge advocate’s salary.14 The salaries of the Provost Marshal and clerks were colonial expenses.15

10 Heydon Gummow Austin, Cases and Materials on Equity (Australia: Butterworths Pty. Ltd., 1975), 315. 11 HRA, IV, I, 78. 12 Ibid., 77‐8. 13 19 Geo. III c. 70 s. 1(1779). 14 HRA, I, IX, 244. 15 The Provost Marshal was traditionally a military officer who in the colony fulfilled the functions of the sheriff.

93 The Charter made no provision for the appointment of attornies to the court.16 In this way the British government avoided further expense although their absence created many difficulties.

Calls for reform

Indeed, the absence of free attornies prompted calls for reform of the court, by Judge Advocate Bent.17 Bent, who commenced sitting in the Civil Court in early 1810 was deeply vexed by the absence of attornies.18 Litigants, he wrote, who were forced to act for themselves brought their antipathies into court and continued their quarrels before it. The courts did not command

that veneration, awe or respect, which ought ever to attend upon a Court of Justice [and as a result] justice is much obstructed, order subverted, solemnity and decorum set at defiance, and an inconceivable degree of discredit thrown upon the proceedings and authority of the court.19

In fact, in the absence of respectable court officers, emancipated convicts who had practised as attornies in England or Ireland were permitted to act as legal agents of those who could afford them. The earliest appears to have been Lawrence Davoren who reached the colony in 1793, followed by George Crossley in 1799, and John Grant in 1804.20 A further addition to the transported attornies was Edward Eagar,

16 Report from the Select Committee on Transportation (1812) paper 341. Ellis Bent to Earl of Liverpool, 19 October 1811, 94. 17 C. H. Currey, The Brothers Bent (Sydney: Sydney University Press, 1968), 18 Ibid., 44. 19 Report from the Select Committee on Transportation (1812) paper 341. Ellis Bent to Earl of Liverpool, 19 October 1811, 94‐5. 20 For Davoren see Mackaness, George, ed. A New Song –Made in New South Wales on the rebellion by Lawrence Davoren. Australian Historical Monographs (Volume XXXIII, New Series, Sydney, 1951) 5, 9. See Davoren’s part in Civil Court proceedings referred to in SR, SC equity proceedings 1372‐4, Jenkins v West and Crossley v Hook SR, SC cause papers 9/2251 #120; for Crossley see K. G. Allars, 'Crossley, George (1749–1823)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/crossley‐george‐1938/text2317, accessed 14 December 2012; for John Grant see N. S. Lynravn, 'Grant, John (1776–?)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/grant‐john‐2118/text2677, accessed 14 December 2012. J. J. Grant with Davoren was ‘employed by and had done considerable business as Law Practitioners’ see Crossley v Hook SR, SC cause papers 9/2251 #120.

94 who together with Crossley, achieved legal and political prominence.21 The activities in court and role as legal adviser to Bligh undertaken by Crossley had provoked great ire among rebellious colonists in the Rum Rebellion. Their resulting suspicion of emancipist lawyers was confirmed when the political and legal machinations of Eagar in Field’s court resulted in political crises in the colony, as we shall see.

In his criticisms of the justice system of the colony, Ellis Bent advocated the provision of two salaried attornies for the colony to circumvent the reliance of government or the population on convict or emancipist attornies. The association of tainted attornies with the court would end if the British government adopted this suggestion when it reformed the First Charter.

Bent gave as further reasons for reform the failure of the Civil Court to meet the wants of the colony’s increased population and commerce, the lack of proper officers and the summary nature of its proceedings. The British Parliament responded by appointing a Select Committee in 1812 to consider the whole question of transportation to the colony. In weighing up the observations and suggestions of Ellis Bent and the evidence of witnesses, achieving reform at minimal expense to the government seems to have been the committee’s objective.

A further concern of Bent was to stem the flow of appeals to the Privy Council. The First Charter permitted appeal from any decision of the Civil Court to the governor. Because the Charter provided a further appeal from the governor to the Privy Council where the value of the demand exceeded £300, a further and final appeal to London was possible. For this reason, Bent wrote, all debts above £300 were seen as ‘debts of honour’ because few colonists could afford the time and expense of defending appeals to the Privy Council.22 However, wealthy and determined litigants who did appeal could defer for years having to satisfy unfavourable judgments that would bring about ‘ruin of the credit of this colony’, Bent wrote. He suggested that appeals from the Civil Court to the governor be

21 Eagar and Crossley joined attornies William Fleming, George Chartres and Michael Massey Robinson. 22 Report from the Select Committee on Transportation (1812) paper 341, 95.

95 replaced by appeals directly to the Privy Council and only when the amount in issue exceeded £6,000.

When considering the replacement of summary procedure by jury trial the committee had before it the evidence of both former governor William Bligh and Ellis Bent. Bent advocated the introduction of jury trial because of the suitability for it of the ‘state and condition of the colony’.23 In Bligh’s opinion, jury trials were less feasible because, although a convict may be emancipated, ‘a man who had been a convict was always remembered by others as having been such.’24 Despite this evidence of division between convict and free, and the bias that would flow against emancipists that would be carried into the jury box, the committee recommended the introduction of trial by jury.25

The Parliamentary Committee on Transportation turned its attention to emancipated attornies’ participation in the courts. It took evidence over Crossley’s part in advising Governor Bligh at the time of his overthrow. The full story of how Crossley’s conduct led to his transportation to Newcastle by the rebel administration has yet to be told, but he arrived in the colony with a very tarnished reputation and his legal practice was always scandalous to some.26 The Parliamentary Committee’s questioning impliedly criticised Bligh for his reliance on Crossley as a legal adviser. To a question as to what character Crossley was employed in as the law adviser to the government the witness answered: ‘I do not know that he was particularly employed, he has been, upon some occasions, sent for.’ Not satisfied with that answer another witness was asked if Crossley was ever appointed as a Justice of the Peace. The answer was ‘No; he was engaged in merchandise and selling of goods, but he never was in any office till Governor Bligh employed him as a lawyer.’27 The committee’s concern with Crossley’s employment and status was ironic, given that Crossley had been partly responsible for Bligh’s refusal to appoint “transports” to offices such as the magistracy when

23 Ibid., 97. 24 Ibid., Evidence of W. Bligh, Esq. 36. 25 Ibid., 7. 26 Allars, George Crossley. 27 Report from the Select Committee on Transportation (1812) paper 341 – evidence of William Richardson, a transported convict, 57‐8 and John Palmer, Commissary, 64.

96 free men were available to fill the role.28 In the end, the committee concluded that, no matter how satisfactory their conduct, emancipists should not be ‘permitted to hold places of trust and confidence …’.29

The Supreme Court of Civil Judicature

Bent’s call to elevate the respectability of the colony’s judicial system impressed both the committee and the home government. After consideration of the committee’s report on transportation, the home government responded to the calls for reform of the First Charter of Justice. The response was consistent with the emergence of what Kirsten McKenzie identifies as a British culture of respectability. It was, she notes, ‘tied to new models of political culture in both metropole and colony that put forward a new conception of the public sphere.’30 In an act of empire building, reinforcement of the implementation of British jurisdiction was begun in earnest in the Macquarie period. The time had come the home government realised, to create in the colony a court worthy of a British judge. This was the surest way to elevate the respectability of the colony’s judicial structure. However, legal respectability and colonial politics are difficult to unravel in the events that followed the creation of a superior civil colonial court.

British courts maintained their high reputations because of the respectability of their judges. English judges were very jealous of their reputations and their involvement in scandal was rare. Accusing a judge of the Court of Common Pleas of high treason occasioned a state trial of the accuser.31 However, judicial respectability was relatively new by 1817 and, arguably, not assured for another decade or two partly because the abolition of fees c1830 was the true beginning of judicial respectability. Public opinion of English judges was influenced

28 Ibid., evidence of W. Bligh, Esq. 36. Convicts were commonly known as “transports” – for an early example of the usage see The Times 8 February 1786 2b Issue 351. 29 Ibid.,13. 30 Kirsten McKenzie, Scandal in the Colonies (Carlton, Victoria: Melbourne University Press, 2004), 11. 31 Cobbett’s Complete Collection of State Trials vol. 3 (London: R. Bagshaw, 1809). The Trial of Thomas Harrison, Clerk at the King’s Bench, for a Misdemeanor in speaking reflecting words of Judge Hutton: 14 Charles I 1638 (Crown Cases 503) 1370.

97 after 1676 by the belief that they were ever more likely to allow their allegiance to the king to govern their decisions and in the early eighteenth century ‘Respect for judges was hardly an article of popular faith.’32 A contemporary study of sermons found that ‘neither the assizes, the judges nor the law were held in the esteem which in theory was demanded’.33 However, after the upheavals of the Civil War and the Glorious Revolution, the eighteenth century image of the judiciary gradually improved.

Creating a superior court in a penal colony with emerging political tensions peopled by free, unfree and recently‐freed settlers was bound to be fraught with problems. The Civil and Criminal courts stood between the military and the community.34 The argument that the common law prevented convicts from suing was raised over and over in New South Wales’ courts.35 The standing of convicts in the colony following emancipation was more contentious than most other matters that came before the courts.

Notwithstanding these problems and perhaps unaware of them the British government created a superior colonial civil court in 1814. It had not been appropriate to appoint a civil judge to the experimental civil court the home government had created in 1788, the British government’s experiment.36 The committee on transportation believed that legal practice in the colony was irregular. It was under the impression that no convict under servitude could sue, be sued, or be imprisoned for debt. This was only partly correct. The committee was obviously unaware that serving convicts were permitted to bring the first civil

32 For public opinion of judges see Stephan Landsman, ‘The rise of the contentious spirit: Adversary procedure in eighteenth century England.’ Cornell Law Review 75, no. 3 (1989–1990) 499, citing Alfred F. Havighurst, ‘The Judiciary and Politics in the reign of Charles II,’ Law Quarterly Review 66, (1950) part I, 62‐78; part II, 229‐252; for respect of judges see Wilfrid Prest, ‘Judicial Corruption in Early Modern England,’ Past and Present 133, (November, 1991): 91. 33 For esteem of judges see Prest, op. cit., 91; for image of judiciary, 89. 34 Sir Victor Windeyer, ‘ “A Birthright and Inheritance”: The Establishment of the Rule of Law in Australia,’ Tasmanian University Law Review 1, (1958–1963): 665; Alan Atkinson, ‘The first plans for governing New South Wales, 1786–87,’ Australian Historical Studies 24, no. 94 (1990) 37. For an example see the civil action the convict Greenway brought against Captain Sanderson, Greenway v Sanderson SR, SC judgment rolls 9/2211 #19. 35 Report from the Select Committee on Transportation (1812) paper 341, 7; Greenway v Sanderson SR, SC judgment rolls 9/2211 #19. 36 See Kercher, Debt, Seduction, 13.

98 action of the colony.37 Even though the committee was wrong on the first point, as the other two were contrary to the common law, in the view of the committee a ‘subaltern’ legal culture was developing.38 In fact, on all three points, local practice deviated from the common law. The appointment of a judge was intended to correct the situation. The home government wanted to ensure that it did not become entrenched as aberrant colonial law. Alternatively, the committee was responding to the notion that there was not an appropriate forum for commercial disputes.

Nor could a British judge preside in a court in which disgraced attornies pleaded before him. Pleading was the task of barristers who enjoyed the status of gentlemen. The home government did not provide barristers for the colony but it did adopt Bent’s suggestion and appointed two attornies who were intended to plead before the court in the place of barristers. The judge was a burden on the British Treasury but the attornies were partly funded by colonial revenue. The private practices it was expected that they would establish would compliment their modest stipends. In this new scheme of things there was no place for emancipated attornies to derogate from the respectability of the courts and to compete with the free attornies for business.

A Second Royal Charter was granted to reform the colony’s judicial structure in 1814.39 Criminal jurisdiction remained untouched but the balance of Bent’s proposals was adopted. The new charter abolished the old Civil Court as it had been found insufficient in meeting the needs of an increasing population.40 The Civil Court’s jurisdiction and administration were replicated in the Governor’s Court save for its powers in succession. Bent recommended the erection of a Supreme Court of Judicature consisting of a judge and two magistrates having full power to exercise all civil, criminal and ecclesiastical jurisdiction.41 The Second

37 For convicts suing for debt see Report from the Select Committee on Transportation (1812) paper 341, 7 and Kercher, Debt, Seduction, 49‐50, Cable v. Sinclair. 38 Lauren Benton and John Muth, ‘On Cultural Hybridity: Interpreting Colonial Authority and Performance,’ Journal of Colonialism and Colonial History 1, no. 1 (2000): 1. 39 Granted 4 February 1814. 40 Letters Patent to establish Courts of Civil Judicature in New South Wales, HRA, IV, I, 83. 41 Report from the Select Committee on Transportation (1812) paper 341, 96.

99 Charter did not extend reform as far as Bent proposed. A Supreme Court of Civil Judicature was created, consisting of a judge assisted by two magistrates. Its jurisdiction extended to all civil matters and expanded powers in succession were conferred.42 The Second Charter made provision for preservation of matters not concluded at the time of the abolition of the Civil Court. Matters commenced in the Civil Court prior to its abolition in which above £50 was claimed were assigned to the Supreme (civil) Court for finalisation. If below that sum, they were assigned to the Governor’s Court.43

Bent proposed a Supreme Court that was ‘enabled to act as a court of equity’ modelled on the Court of Exchequer of England.44 The Court of Exchequer had an equity side as well as being a court of common law.45 The British Government went further than Bent’s proposal of Exchequer’s bi‐jurisdiction. It empowered the Supreme (civil) Court

… to administer Justice in a summary manner according or as near as may be to the Rules and Proceedings of our High Court of Chancery in Great Britain …46

The Supreme (civil) Court developed an equity side distinct from the other areas of its jurisdiction. The way it came to judgment therefore on all matters that came before it differed from the previous Civil Court and the Governor’s Court – it gave ‘Judgement and Sentence according to Law and Equity’.47

However, it was in the exercise of further powers given to the Supreme (civil) Court under its charter, that the court became the centre of colonial politics. It was given authority to nominate and appoint its officers and settle its rules and costs as well as the fees of its attornies all of which actions were subject to the

42 Letters Patent to establish Courts of Civil Judicature in New South Wales, HRA, IV, I, 85‐7. 43 Ibid., 93. 44 Report from the Select Committee on Transportation (1812) paper 341, 97. 45 William Hamilton Bryson, ‘Exchequer Equity Bibliography,’ The American Journal of Legal History 14, no. 4 (1970): 341; Samuel Turner, An epitome of practice on the equity side of the Court of Exchequer (London: W. Clarke and Sons, 1806), 92. 46 Letters Patent to establish Courts of Civil Judicature in New South Wales, HRA, IV, I, 91. 47 Ibid., 87.

100 governor’s approval.48 The success of emancipated attornies’ attempts to gain admission to court would depend on achieving the nomination of the court and ultimately the governor’s approval. The emancipist attornies had supporters in both emancipist and free colonist ranks. However, the attitude of the judge appointed to the Supreme (civil) Court to emancipists would also determine the fate of emancipist attornies. Consequently court rules became one of the most important issues in colonial politics.

Bent’s proposals for reforms of the appeal structure were only partly implemented. The decision of the Governor’s Court was made final. Appeal from the Supreme (civil) Court where the amount in issue exceeded £300 could be made to the governor assisted by the judge advocate. A final appeal from the governor to the Privy Council was allowed where the amount in issue amounted to or exceeded not the £6,000 Bent recommended but £3,000.49

For a time it seems that jury trials were planned for the new Supreme Court of Civil Jurisdiction. Lord Bathurst appears to have been persuaded by Bent’s recommendation that jury trial be introduced into the colony. Perhaps the evidence given to the Transportation Committee that the number of respectable people in the colony was sufficient to constitute juries influenced Bathurst.50 But Bathurst’s plan was ignored, for the executive government believed the colony was not ready for implementation of trial by jury.51 Party politics were at play on this subject. Exclusivist bias discerned by William Bligh towards emancipists had been aggravated by Macquarie’s policies of redemption and rehabilitation of emancipists directed to bringing about reconciliation.52 The first complaints against Macquarie’s regime had already been circulated among London elites, and

48 Ibid., 91‐2. 49 Ibid., 88. 50 Report from the Select Committee on Transportation (1812) paper 341, 7. 51 For Bathurst’s plan to introduce jury trial see his letter of 15 November 1813 to the Attorney‐ General and Solicitor‐General, HRA, IV, I, 73; for the advice of the Attorney and Solicitor General that the court should have non summary jurisdiction see their letter 6 December 1813 to Bathurst, HRA, IV, I, 74. 52 Currey, The Brothers Bent, 66.

101 as Judge Field noted sometime later, exclusivists would prefer to do without a jury system rather than have emancipists sitting in judgment upon them.53

Admission to court under Judge Bent

Jeffery Hart Bent, appointed first judge of the Supreme (civil) Court in 1814, was the brother of the judge advocate and therefore fully aware of his brother’s reasons for calling for reform of the colony’s legal system. Judge Bent had been apprised by his brother of Governor Macquarie’s advancement of emancipists to positions of respect and arrived determined to exclude emancipated attornies from his court. The judge’s views on emancipists induced dissension and agitation and his actions brought the civil jurisdiction to a standstill for a considerable period of time

The inauguration of a new judicial era in the colony looked to be fraught with difficulties from the very arrival of Judge Bent. He arrived surly: the knighthood he craved befitting his rank had not been granted. The colony was the loser he declared. His sensibilities were immediately offended, moreover, because there was no cannonade to greet him, no judicial residence in which he would reside nor a Court House in which he could sit. He refused to leave the ship without an official salute and Macquarie ordered that he be gratified on this point at least.54

Judge Bent arrived in the colony at the end of July 1814 and was sworn into office soon thereafter. The British government had not provided accommodation for the new courts nor the judge of one of them and Bent was obliged to accept a room in his brother’s house. However, the judge refused to sit until respectable court accommodation was provided.55 When a ward in the Sydney hospital was allocated for the purpose, Judge Bent claimed that it was ‘an unnecessary degradation of my character and Office, and the injury it must sustain in the public opinion’ by such an arrangement.56 He demanded that the separate imposing

53 See Field’s views – HRA, IV, I, 869. 54 Currey, The Brothers Bent, 99, 100. 55 John Ritchie, Lachlan Macquarie (Melbourne: Melbourne University Press, 1988), 145. 56 Judge Bent to Macquarie, 5 December 1814, HRA, IV, I, 116.

102 building at the northern end of the new General Hospital in Macquarie Street used partly for medical purposes and as a surgeon’s residence, be appropriated to the law establishment. Bent proposed that two of its rooms be utilised as courtrooms and the remainder become his residence, a retiring room for him and an office for court clerks.57 Macquarie sensibly refused as Bent’s proposed courtrooms were inadequate. Over both Bents’ protests, Macquarie ordered that half the northern end of the central hospital building be turned over to the courts and two rooms of the surgeon’s quarters be allocated to Judge Bent as chambers.58

A prolonged and serious confrontation now developed between the governor and Judge Bent that led to his recall and eventually brought the colony to a crisis. They clashed over admission of emancipated attornies to court. With courtrooms ready for occupation by the end of 1814 and one free attorney, W. H. Moore arriving at the end of January 1815, Macquarie expected Bent to ‘begin to earn his salary’.59 The other free attorney, Frederick Garling was not to arrive for another seven months. In his absence Macquarie reasonably urged Judge Bent to open his court and until the arrival of Garling, admit emancipated attornies.

For a time the Bents refused to open their courts because Garling had not arrived. Apart from magistrates’ sittings, the colony had been without civil jurisdiction since the abolition of the Civil Court in August 1814. Although Garling had not arrived, the Bents opened their courts in May 1815.60 In the Governor’s Court, Ellis Bent permitted emancipists as a matter of necessity to appear as agents on the understanding that when Garling arrived, this concession would cease. To emphasise the point he made a rule that none but free attornies would be admitted to court.61

Judge Bent was not as accommodating as his brother when in May he also opened his court. After attorney Moore’s application for admission was granted,

57 Bigge, III, 106. 58 Ibid. See also J. T. Campbell to contractors, 1814, ML, A 752 128. 59 Currey, The Brothers Bent, 101. 60 The ‘two fit and proper persons’ to sit with the judge advocate were appointed 22 April 1815, SG, 22 April 1815, 1a; opening date reported in the same issue, 2c; Bigge, II, 2, incorrectly states the Governor’s Court opened January 1816. 61 Currey, The Brothers Bent, 89‐90.

103 Bent refused to admit the emancipists Crossley, Eagar and Chartres.62 The two magistrates, William Broughton and Alexander Riley, who sat with Judge Bent would have admitted them on a conditional basis until Garling arrived to allow the court to function.63 Bent however was adamant and remained resolutely opposed to their arguments. Riley believed it was too harsh to deprive men of their living, who had been until that time of good conduct.64 The difference in opinion between Bent and the magistrates led to the judge refusing to sit again in court.65 The Supreme (civil) Court remained closed.

There were a number of reasons for Bent’s decision. He had arrived without having received an answer to his query to the Colonial Office regarding the admission of emancipists, and felt free to act as he did.66 The British government must share some of the blame for Bent’s position. Its policy, it later made known was to approve the admission of emancipated attornies if only one of the attornies it sent to the colony was present.67 However it had not communicated this policy to Bent. If it had made this known to him before he sailed, he may have acted differently towards emancipist attornies and admitted them.

In refusing emancipists Bent took his first step in adherence to strict legal formalism. In Benton and Muth’s words, he was protecting ‘procedural purity’ and reflecting British honour, influenced by the view that criminally convicted attornies were morally reprehensible and disgraced the honour of the court.68 There was more to Bent’s actions, however. He also desired to suppress the ambition of emancipists to rank equally with free colonists and aligned himself with Macquarie’s enemies.69 He read into the appointment of free attornies at the

62 Ibid., 108. 63 Evidence of Alexander Riley, Report from the Select Committee on the State of Gaols, &c., (1819) paper 579, 52. Riley was one of the magistrates who advocated the admission of emancipist attornies and later regretted supporting their applications because of their subsequent unscrupulous behaviour. 64 Ibid., 53. 65 Currey, The Brothers Bent, 109. 66 J. H. Bent to Lord Bathurst, 5 April 1817, HRA, IV, I, 241. 67 Macquarie to Wylde and Field, 11 March, 1817, HRA, IV, I, 856. 68 Benton and Muth, Cultural Hybridity, 18. 69 J.H. Bent to Edward Lord, 6 October 1816 – Dixson Library Manuscripts 15.4 Add. 282; see Thea Rienits, 'Lord, Edward (1781–1859)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/lord‐edward‐

104 time of the granting of the Second Charter that the era of ex‐convicts acting in court had ended. He was using the court as a vehicle to pursue exclusivist politics. He took into account that until his brother assumed his office as judge advocate in 1810 there had been no one of good legal standing associated with the courts. All but David Collins, the first to fill the office of judge advocate, had poor reputations.70 Judge Bent believed that his own appointment charged him with elevating the respectability of the court. He took the view that not only was he appointed to determine cases but to restore and maintain the status, reputation and respectability that now had to attach to the courts.

Purity and honour influenced Bent’s view that criminally convicted attorneys were morally reprehensible and disgraced the honour of the court.71 He recoiled from the prospect of having Crossley, who had been imprisoned for contempt of court, plead before him.72 Crossley’s infamy was well known.73 He was convicted under the common law offence of wilful and corrupt perjury with the superaddition under the Act 2 Geo. II c. 25 (1729) of a sentence of transportation. Perjury was not a felony and Crossley was therefore not attainted. However his offence was associated with the opprobrium of perpetual infamy that was part of the punishment of a perjury conviction under the Act 5 Eliz. 9 (1562).74 Though as a witness he would be competent, he would never be allowed to practise law in the United Kingdom.75 As part of his punishment for his conviction for perjury, he was sentenced to stand in the pillory for one hour at any time between 12 midday and 2 pm, in the Palace Yard, opposite the Hall Door of Westminster Hall. This part of

2370/text3113, accessed 14 December 2012, and C. H. Currey, 'Bent, Jeffery Hart (1781–1852)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/bent‐jeffery‐hart‐2228/text1985, accessed 14 December 2012. 70 J. F. Nagle, Collins, the Courts and the Colony: Law and Society in Colonial New South Wales (Sydney: University of New South Wales Press, 1996), 43. 71 Report from the Select Committee on the State of Gaols, &c., (1819) paper 579, 443 – J.H. Bent to Bathurst, 1 July 1815. 72 The King v. George Crossley (20 June 1797) 7 Term Reports 315; 101 E.R. 994‐5 (Lord Kenyon CJKB). 73 See for example The Times where his many appearances on charges of forgery, debt and perjury are to found – 26 April 1787, 2d; 5 June 1788, 3a; 10 January 1789, 3a; 31 May, 1796, 3d; 3 June 1796, 3c; 23 November 1796, 3c; 15 February 1797, 3b; 29 May 1797, 3c. 74 SG, 29 August, 1818, 2b‐c, Doe, on the demise of Jenkins, v. Pearce and Wife. 75 Report from the Select Committee on the State of Gaols, &c., (1819) paper 579, 125 – Mr. Justice (sic) Bent to Bathurst, 1 July 1815, 125.

105 the punishment was exquisitely crafted by the Court of King’s Bench to expose his disgrace to all the members of the legal profession against whom he had offended as they moved to and from the Royal Courts during the midday recess.

Bent resisted Macquarie’s pressure to open his court. He placed his own and the court’s respectability above any urgency to do so.76 Bent weighed up the factors in Crossley’s application for admission.77 He accepted that ‘persons of long‐ tried good conduct should be restored to society’.78 Bent also reasoned that, had he admitted Crossley, attornies would flock to the colony after having been struck off the rolls in England or Ireland. How then, he asked himself would it have been possible to refuse to admit them?79

Judge Bent looked beyond the law in deciding on Crossley. In 1801 Crossley’s time or term of transportation was remitted but Bent considered paramount the higher standards of conduct expected from a legal practitioner. He was not prepared to allow that Crossley’s good conduct for the time he had been in the colony should have been a factor in deciding whether or not to admit him to court. Bent intended that ex‐convict attornies should always remember that they were morally reprehensible. This was an early indication of his commitment to the emerging exclusivist cause.

Bent blamed Macquarie for the desire of the emancipists to practise. He claimed that the ex‐convicts would have accepted their exclusion had not the governor intervened on their behalf. Macquarie, Bent alleged, sent for Crossley, the month before the court opened in May 1815 and urged him to petition for admission ‘and he [the governor] would place the matter on a right footing …’. Bent claimed that the petitions requesting the governor’s interference were encouraged by the governor’s actions.80

76 Judge Bent to Bathurst, 1 July 1815, HRA, IV, I, 144. 77 For a detailed study of Crossley’s activities in the colony see Bruce Kercher, ‘A Convict Conservative: George Crossley and the English Legal Tradition,’ in Misplaced Traditions Rob McQueen and W. Wesley Pue eds. Law in Context 16, no. 1 (Leichhardt, NSW: The Federation Press, 1999) 17. 78 Report from the Select Committee on the State of Gaols, &c., (1819) paper 579, 119. 79 Ibid., Mr. Justice Bent (sic) to Bathurst, 1 July 1815, 442. 80 Judge Bent to Bathurst, 4 November 1815, HRA, IV, I, 166.

106 Admission of attornies was governed by rules of court. The Second Charter gave the Supreme (civil) Court a rule‐making power but markedly curtailed its independence. Rules proposed had to be submitted to the governor for approval.81 Macquarie had the right to overrule Bent on this question, thus Bent made none. He feared that if he sat again with Riley and Broughton they would overrule him as the charter permitted, and admit emancipated attornies. This he would not tolerate for it would be derogatory to him and the respectability of the court.82 Bent refused to sit again and without a judge the court could not function.

Bent’s refusal to admit ex‐convicts inflamed the emerging differences between emancipists and exclusivists more than his refusal to open the court. The issue of emancipist admission spilled out into the public domain. The emancipist attornies attempted to hold a meeting of inhabitants to adopt resolutions disapproving of Bent’s conduct. Simeon Lord and others (mostly ex–convicts) signed a requisition for this purpose.83 Freedom of association was restricted and Macquarie deemed the names not sufficiently respectable. He indicated that if other more respectable persons subscribed he would authorise the meeting.

Macquarie approved a further requisition. However, at that point it became clear that both the free and emancipist community was divided on the issue. The requisition received little support from free settlers and even those who had been emancipated and had acquired considerable property declined to sign. Attempts to procure requisitions in other parts of the colony failed also. Judge Bent’s desire to protect the purity of his court was thus shared by a cross‐section of the colony. Most exclusivists and some emancipists believed that excluding emancipists from

81 Second Charter of Justice, HRA, IV, I, 91. 82 Report from the Select Committee on the State of Gaols, &c., (1819) paper 579, 439 – Judge Bent to Bathurst, 1 July 1815. 83 Ibid., 444‐5. Of those who signed the requisition, eight came as convicts, the remaining five came free, but of their number, one accompanied a brother who was a convict and another was the husband of a convict. The other three were under the influence of Eagar. ‘P. Crook … unstable and rash’ was a missionary – Niel Gunson, 'Crook, William Pascoe (1775–1846)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/crook‐william‐pascoe‐1935/text2311, accessed 14 December 2012. ‘Hoskins’ (John Hosking) and (Thomas) ‘Bowden’ signed their names as the authors of a letter Eagar wrote to the Methodist magazine that was critical of Samuel Marsden. See BT 28, 7082, BT 12, 439.

107 the court improved its public perception. The free attorney W. H. Moore had no doubt that all respectable persons in the colony would feel fully compensated for any further delay in opening the court by having the question properly determined. Moore of course had a financial interest in the exclusion of the emancipists but his assessment of the majority’s feelings was borne out by the failure of the emancipists to secure more than a few signatures to a petition. Moore balanced the consequences of delay to the colony in opening the court against setting a precedent for its future practice that would be deemed illegal and unconstitutional by the laws of England and tend to the subversion of all justice.84 It seems that the colonial elite, free and freed, considered that it was an advantage to the colony that emancipist attornies be prevented from practising. Many felt safer, in regard to their persons and their property, in the hands of gentlemen of respectability.

Bent rejoiced at ‘the great pleasure felt by most at the exclusion of the persons in question from practising’ and decried the lengths that they would go to, to achieve their ends.85 His summary of the polling and the failure of the petitions distorts the complexity of colonial legal practice, however. There were free persons who chose to utilise Crossley’s superior legal ability. Bligh sought his advice at the time of his overthrow and one of Bligh’s opponents, the exclusivist John Macarthur, engaged Crossley to defend him in an equity suit.86 Also, Crossley’s and the other ex‐convicts’ clients felt more comfortable in instructing fellow ex‐convicts. They found the attention given to their matters more satisfactory and the emancipist attornies acted for them on a contingency basis.87 When a client succeeded they were paid a proportion of the sum recovered.88 This was not the English practice, but was emerging as a North American one.89 If the

84 W.H. Moore to Judge Bent, 12 June 1815, SRL, Digital Order No a2292018. 85 Report from the Select Committee on the State of Gaols, &c., (1819) paper 579, 445. 86 Kercher, George Crossley, 23; Campbell v. McArthur and Oxley (1820) NSWKR 12; on 1 September 1819, Thomas Bidwell Child, clerk to Crossley swore that on 21 8 1819 he served a document in the proceedings on W. H. Moore, the plaintiff’s attorney. SR unprocessed equity papers. 87 Bigge, II, 12. 88 Ibid. 89 Peter Karsten, ‘Enabling the Poor to have Their Day in court: The Sanctioning of Contingency Fee Contracts, A History to 1940,’ De Paul Law Review 47 (1997–1998): 231, 234.

108 verdict went against an attorney’s client, those clients were liable only for their opponent’s costs and their attorney received nothing.

In some respects, the outcome of Lord’s requisitions was surprising. The people of New South Wales failed to support the application of emancipated attornies to practise. In this way they accepted a period without access to a civil court until the Governor’s Court opened in May 1815. There were many litigious persons in the colony. As evidence of their hunger for litigation, in 1803 the Civil Court was overwhelmed and refused to accept new claims till the backlog was cleared.90

There was disagreement about the effects on colonists of prolonged closure of the Supreme (civil) Court. Bent was adamant that economic life in the colony did not suffer but John Oxley and Commissioner Bigge disagreed. In Oxley’s pessimistic view the colony was doomed because of the closure. All credit would be destroyed, he argued because there was no remedy available against those who chose not to pay their debts.91 His own affairs, however, seem not to have suffered unduly, though his name appears on several occasions in the court when it opened in 1817 but not more frequently than others.92 His misfortunes were brought about by financial misjudgements, the effects of which would not have been alleviated had the courts been functioning.93 Bigge believed some years after the event that the injury sustained by the closure of the court was very great.94 He gave no evidence for his opinion. There were economic consequences that ‘complicated the finances of merchants beyond expectation.’95 Like Oxley, a court could not have fixed these underlying problems.

90 Kercher, Debt, Seduction, 92. 91 Margaret J. E. Steven, ‘The Changing Pattern of Commerce,’ in Economic Growth of Australia 1788– 1821, ed. G. J. Abbott and N. B. Nairn (Melbourne: Melbourne University Press, 1969), 181. 92 SR, SC cause papers 9/2251, #’s 46, 135, 168. John Macarthur refused his suit for his daughter partly because of his monetary problems. D. R. Hainsworth, Sydney Traders (Carlton, Victoria: Melbourne University Press, 1981), 107. 93 Hainsworth, Sydney Traders, 101. 94 Bigge II, 5. 95 Margaret J. E. Steven, ‘The Changing Pattern of Commerce in New South Wales, 1810–1821’, Business Archives and History 3, no. 1 (1963): 146.

109 Judge Bent made many arguments to substantiate his claim that the colony was not seriously affected by his actions. He pointed out that there was little business waiting for the Supreme (civil) Court on its opening. Not one matter claiming above £50 was referred to it from the old Civil Court under the transitional provisions of the charter. Not one complaint was made to Bent.96 In support of his arguments there are a number of observations to be made.

Most matters awaiting hearing before Judge Advocate Ellis Bent in the Civil Court were resolved at the time of its closure. There is no evidence available that indicates whether the impending closure of the court was well publicised, but the colony must have been aware, judging by the rush to conclude litigation.97 There were four emancipist attornies who acted as legal agents and with the judge advocate they disposed of the huge number of cases finalised in the old civil court’s final year.98 The great majority were ‘rotten causes, being undefended and heard ex parte’ in the absence of the defendant.99 From January 1814 until its closure the following August, the Civil Court heard 594 cases. For the whole of the previous year the number of cases heard was 505.100 However, Eagar, it will be seen in Chapter Five claimed that he had 25 causes commenced and waiting on the opening of the Supreme (civil) Court.

Secondly, although the numbers are hard to assess, evidence suggests that Judge Bent concluded some of the legal business of the colony from his chambers.101 Few records have survived and some data – testimony of the evidence are anecdotal. An application for a writ of Habeas Corpus was made to him after his arrival on 28 July 1814 but he declared he had no power to grant it.102 However, two weeks after the Charter was promulgated on 12 August, Joseph

96 J. H. Bent to Henry Goulburn, 25 July 1818, HRA, IV, I, 309. 97 The first reference to the changes to the civil courts was the announcement in the Sydney Gazette of the arrival of Judge Bent, 30 July 1814, 1a. 98 The emancipist attornies were, George Crossley, Michael Massey Robinson, Edward Eagar and George Chartres – evidence of Alexander Riley to Gaols Report, (1819) 52. 99 Gaols Report, (1819) Judge Bent to Bathurst, 1 July 1815, 441. 100 Kercher, Debt, Seduction, 93. 101 On the power of the judge of the Supreme (civil) Court to act alone see J.H. Bent to Field, 13 March 1817, BT 16, 1841–3. 102 J.H. Bent to Bathurst, 4 November 1815, HRA, IV, I, 166; Wylde agreed that he had no power to issue a writ of Habeas Corpus – letter to Bigge, 16 July 1821, HRA, IV, I, 371.

110 Maum was the first to avail himself of a power that now existed in the Charter to petition for letters of administration as principal creditor of two estates. There is no recorded reply, perhaps because Bent considered that as the two deceased persons were murdered on board a sloop of which Maum owned a half share, other issues might be involved.103

In other probate matters, however, Bent showed himself willing to do important work regarding the property of deceased colonists – an essential jurisdiction in the colony.104 Thomas Howell made a chamber application for relief against the alleged defalcation of two executors of an estate. As the court was closed no accounts could be examined and Judge Bent was asked to preserve the property and take control of it. He advised Howell to file a bill in equity against the executors and such parties that his advice nominated. Howell suggested the judge did not understand his needs. Bent replied that if Howell was afraid he would lose the evidence of a material witness he should perpetuate it by recording the evidence of the witness. If the witness was available at the time of trial then the recorded evidence was not useable.105 Bent did not want to hear any more of the matter and wrote: ‘to the rest of this petition which is irregular in every way no other answer is necessary than what has before been given.’106 Howell took Bent’s advice and, on Field’s arrival filed a bill in equity but the matter went no further after an answer was filed.107

103 SR, Miscellaneous Probate Papers 1790, 1814, reel 391, 2256. 104 English succession law was so important that when British citizens died intestate in foreign countries, their consuls would oversee the settlement of their estates according to British Law. In treaties such as those between the United Kingdom and Brazil, British citizens retained the freedom to dispose of personal property of all descriptions by ‘Testament’ without hindrance. On intestacy, until 1844, British consuls could administer the estate. The greatest importance was placed on British rights to freely dispose of property by will. Only in this way could British law of curtesy and dower be applied – see Muriel Nazzari, ‘Widows as Obstacles to Business: British Objections to Brazilian Marriage and Inheritance Laws,’ Comparative Studies in Society and History 37 (1995): 782‐3, 788, 790. It was imperative that uniform succession law applied to British citizens throughout the world as well as in their colonial possessions – see Chandra Mallampalli, ‘Meet the Abrahams: Colonial Law and a Mixed Race Family from Bellary, South India, 1810–63,’ Modern Asian Studies 42, no. 5 (2008): 966. 105 This was an equitable remedy known as de bene esse. 106 SR Probate case papers 6/4185 – Thomas Howell, petition to Judge Bent, 16 May 1816 5; answer 21 May 1816 ; Thomas Howell to Judge Bent, 28 May 1816 ; answer, 28 May 1816, 11. 107 SR, unprocessed equity papers.

111 Another sign that the court was not dormant under Bent was the notice published in the Sydney Gazette signed by his clerk, William Roberts. It warned that executors and administrators who had not filed their inventories and current accounts of the effects and property belonging to the respective estates in their charge within the time specified in the probate or Letters of Administration by the first of the following month would be cited.108 The costs that followed would be personal and could not be recovered from the estate.109 In a show of independence, but without authority, Judge Bent altered a government order of 1802 that assignments were not judicially recognised unless drawn up and registered at the Judge Advocate’s office.110 Bent advertised that he would not recognise matters above £50 in value unless they were first ‘registered or enrolled’ in his court.111

In only one other matter is it known that Judge Bent made orders, referred to in The Sydney Monitor and Commercial Advertiser.112 Bent ordered a man to pay damages for land he sold, under the operation of English law applicable to the colony. Possibly it related to Lydia Benn’s application to Bent in January 1816 praying for advice on a grant of administration of her late husband’s estate. Bent ordered that her application for administration of the estate advertised in The Sydney Gazette 16 December 1815, ‘be held to stand for the usual notices required’. A grant of administration was made to her following Field’s arrival.113 Litigation followed for many years.

There is a third and most important reason why the colony did not suffer from Bent’s actions. The Second Charter provided that all matters under £50 were to be heard in the Governor’s Court. Judge Advocate Ellis opened this court 8 May

108 A citation was a summons to appear, applied particularly to process in the spiritual court. See Giles Jacob, with corrections and enlargement by Thomas Edlyne Tomlins, The Law Dictionary: Explaining the Rise, Progress and Present State of the British Law 2nd ed., vol. 1 (London: J. Butterworth and others, 1809), under entry ‘citation’. See also William Cockburn, The clerk’s assistant in the practice of the ecclesiastical courts; containing the method of proceeding therein …4th ed. (London: S. Sweet, 1800), 138. 109 SG, 1 June 1816, 1d. 110 New South Wales Pocket Almanack and Colonial Remembrancer 1806 (Sydney: The Trustees of the Public Library of New South Wales, Facsimile Edition, 1966), 37. 111 SG, 8 June 1816, 1b. 112 8 March 1839 2c. 113 SG, 21 June 1817, 1c.

112 1815.114 The colony now had a court with powers no different from the Supreme (civil) Court in all matters up to and including £50 except for equitable relief. Judge Advocate Ellis Bent, when opening the Governor’s Court, made a rule that no convicted attorney would be admitted. However, it seems that he permitted them to act as agents of their clients as they had done in the old Civil Court. This follows from the evidence of James Foster that when he was clerk of the Governor’s Court 200 causes every quarter were set down for hearing until October 1815, just prior to Ellis Bent’s death on 10 November.115

Following Ellis Bent’s death, Frederick Garling who had arrived in the colony in August 1815, was appointed Judge Advocate and commenced hearings in the Governor’s Court from January 1816. He suspended Ellis Bent’s earlier rule and permitted Crossley and Eagar to practise as admitted attornies.116 The cases Garling heard until he was replaced by the arrival of Judge Advocate Wylde in October 1816 have not been researched. However a summary of the activity of the Governor’s Court from the arrival of Wylde to the end of the Easter sittings in 1820 was prepared for Commissioner Bigge. In that period of approximately 3.5 years, 1728 summons were issued.117

Regardless of all these factors, the fate of civil suits during J. H. Bent’s closure of the court remains somewhat of a mystery. Estimates of the litigation that theoretically could have accrued while the court remained closed can be made from the detailed information relating to the Governor’s Court that was provided to Commissioner Bigge. Judge Bent estimated that three quarters of all suits in the old Civil Court were under £50.118 Therefore 165 summonses would have been expected to have been filed in the Supreme (civil) Court yearly.119 As the Supreme

114 The ‘two fit and proper persons’ to sit with the judge advocate were appointed 22 April 1815 – SG, 22 April 1815, 1a; opening date same issue 2c. 115 Evidence of James Foster TNA (PRO) reel 113, CO 201/125; HRA, I, VII, 327; Foster was taken up by the Supreme Court 29 April 1817, SR, reel 6046, 4/1737 299‐301. 116 Currey, The Brothers Bent, 118. 117 Bigge, II, 3. April sittings ended 25th of the month. 118 Report from the Select Committee on the State of Gaols, &c., (1819) paper 579, 441 – J.H. Bent to Lord Bathurst, 1 July 1815. 119 Where 1728 is the dividend and 0.75 is the divisor, the quotient is 2,304. One quarter of that number is 576. From October 1816 to 25 April 1820 is a period of approximately 3.5 years. 576 summonses filed over 3.5 years is approximately 165 summonses issued yearly.

113 (civil) Court did not open as anticipated in August 1814 until early 1817, a period of about 2.5 years, in excess of 400 summonses should have been awaiting the opening of the court.120 This was not the case. As Table 1 indicates, only 206 summonses were issued over the whole of 1817.121 New and accrued business of the court for 1817 was not very great. It seems that Judge Bent was correct: there was little business waiting on the Supreme (civil) Court when it opened in February 1817. The reason may have been the depression in the colony, the effects of which worsened each year until 1816.122

Thus far I have examined the summonses issued in the Supreme (civil) Court. To turn now to the number of cases expected to be heard in the court in 1817 I return to the statement above of James Foster, the former clerk of the Governor’s Court, that 200 cases were set down for hearing every quarter until October 1815. Applying Judge Bent’s belief that three quarters of all suits were less than £50, less than 270 causes above £50 arose in the Supreme (civil) Court for hearing annually.123 From the time that the Civil Court was abolished there was no venue for claims above £50 until February 1817. It would be expected that 667 cases approximately would have awaited hearing in the Supreme (civil) Court on its opening in February 1817.124 Only 595 common law cases were heard in the Supreme (civil) Court during its existence.125

120 165 summonses over 2.5 years amounted to approximately 413 cases. 121 See Table 2. 122 C. J. King, ‘The First Fifty Years of Agriculture in New South Wales,’ in Review of Marketing and Agricultural Economics, August, 1948–December, 1949 (Sydney: Dept. of Agriculture, Division of Marketing and Agricultural Economics, 1950), 683, attributed the damage to any hope of general economic security, to the gluts and scarcities between 1810 and 1821 that ruined many of the small farmers; Hainsworth, Sydney Traders, 99, argues that the depression occurred 1811–1816; D. E. Fifer, ‘Man of two worlds, the early career of William Charles Wentworth,’ Journal of the Royal Australian Historical Society 70, no. 3 (1984):155, gives the period 1812–1815 and suggests there was slow agricultural growth because of drought and reduced transportation of convicts during the Napoleonic wars led to reduced labour. For the best study of the depression between 1810 to 1815 see T. G. Parsons, ‘Governor Macquarie and the Economic Crisis in New South Wales, 1810–1815,’ New Zealand Journal of History 2, no. 2 (1968) where English financial difficulties during the Napoleonic Wars leading to a crisis of confidence in the colony (p. 184) and the floods followed by severe droughts from 1812–1815 (p. 195) are identified. 123 Where 200 is the dividend and 0.75 is the divisor, the quotient is 266.67. 124 From August 1814 when the Civil Court was abolished until February 1817 when the Supreme (civil) court opened was a period of approximately 2.5 years. 266.67x 2.5=667 cases. 125 The last common law case heard by Field was #595 SR SC judgment rolls 9/2240 Campbell v Cox.

114 There is another way of verifying Judge Bent’s opinion that few matters awaited the opening of the Supreme (civil) Court. Bigge was informed that 1,107 hearings took place in the Governor’s Court from October 1816 to the end of Easter sittings 1820.126 Applying the former reasoning that three quarters of all suits in the Civil Court were under £50, the Supreme (civil) Court would have heard a yearly average of 105 cases.127 Field himself informed the Colonial Office that in 1817 he heard and disposed of only 29 matters.128 Table 2 indicates that the court’s workload started to diminish by March 1818.

126 Bigge, II 3. 127 Where 1107 is the dividend and 0.75 is the divisor, the quotient is 1476. 1476 divided by 4=369 cases over 3.5 years or 105 yearly. 128 Field to Goulburn, 1 December 1817, HRA, IV, I, 251; analysis of Supreme (civil) Court judgments suggest the figure was 36. Probably Field did not include warrants of attorney.

115 Table 1

Cause Arose Summonses Summonses issued in 1817 issued in 1818

1801 ‐ 3

1805 2 ‐

1806 ‐ 1

1807 3 2

1808 2 2

1809 3 1

1810 2 1

1811 1 1

1812 3 7

1813 6 3

1814 17 6

1815 11 4

1816 27 20

1817 21 35

1818 ‐ 42

Unknown 108 25

Totals 206 153

The 206 actions filed in 1817 were mostly filed in the first half of the year. This pattern is seen in the following year.

116 Table 2

Month 1817 1818

January 2 39

February ‐ 26

March 45 7

April 15 13

May 46 7

June 17 10

July 18 3

August 18 9

September 9 14

October 9 16

November 22 5

December 5 4

Totals 206 153

The results of Judge Bent’s refusal to admit convicted attornies were not as severe as his critics made out. It may not have caused the economic crisis that stemmed from the depression that prevailed in the colony until 1816.129 Colonial merchants and small traders like Oxley blamed the closure of the court for hardships caused by their own errors in investing in stock that could not be sold in the colony because of droughts and crop failures. The closure of the courts did not ameliorate the difficulties colonists were experiencing at the time. But neither did it cause them.

129 See foot‐note 122.

117 Admission to court under Field

Nevertheless, in 1816 Judge Bent was duly recalled for his obduracy. Lord Bathurst made it clear that he was not recalled for expressing his opinions of ex‐convicts, but for denying the colony of resort to justice.130 And yet the issue of emancipist attornies was still unresolved when Wylde and Field arrived, though they, at least, had early advice from the Colonial Office to help resolve the issue with less contention. The Colonial Office decided the question of admission to court of ex‐ convicts. After it relayed its instructions to the governor, its directive bound both the governor and the judges. The issue, however, having been raised from the earliest days of the colony, remained a source of discontent.

Field and Wylde were both aware before they left London of the crisis that followed Judge Bent’s closure of the court. They could not fail to appreciate that it was the reason for both their appointments. In order to put the case for admission to court of emancipist attornies, two days after Wylde received his commission as judge advocate in London, an unsigned letter purportedly from Sydney appeared in The Times.131 The emancipist sympathiser complained that though emancipated attorneys had always been permitted to practise in the colony provided they remained of good character the Bents had refused to admit them. The writer referred to the impossibility of the only free solicitor being in two courts at once and appearing for both parties. The timing of this publication suggests that it was a political sally that originated in London and was an attempt to influence Wylde before he sailed, to open his court to emancipist lawyers. The author remains unknown. It was not the radical Whig Henry Grey Bennet M. P. who, although calling for parliamentary reform of the transportation system, attacked Macquarie amongst other things for urging emancipated attornies onto the courts.132 Grey

130 Currey, The Brothers Bent, 146. 131 3 January 1816, Issue 9721, 3d. 132 See A letter to Earl Bathurst on the condition of the colonies in New South Wales and Vandiemen’s Land (London: James Ridgway, 1820), 14. Grey Bennet attacked the British Government on many aspects of transportation and the colony, on information supplied by opponents of the governor. It was believed that Judge Field sent him copies of the Sydney Gazette that were used for the review in the London Magazine vol II no. VIII, August 1820. Possibly Field was the author as there was a reference to Charles Lamb’s farce Mr. H. that was performed only once. Field was present and few in London would have recalled an insignificant theatre piece that failed thirteen years previously.

118 Bennet was a visionary whose ‘efforts “to diminish the sum of human misery” …, adorn the history of English criminal law.’ He argued that no penal colony ‘adequately combined punishment with reformation …’.133

The Colonial Office responded to the anonymous letter in The Times by informing Wylde shortly before he sailed that Frederick Garling, the attorney who had been delayed, had arrived in the colony. Wylde connected this advice with the status of ex‐convict attornies in colonial courts. He remembered reading the letter in The Times and sought urgent instructions from the Colonial Office the day before he was due to sail, asking specifically whether convict attornies could plead in the courts over which he was to preside.134 He was advised to apply to the governor for official policy. In this way the Colonial Office kept itself free of the public debate and preserved the authority of the governor.135

When Wylde arrived in the colony he did not raise with Macquarie the question of admission of convicted attornies, preferring to wait for the arrival of Field. Wylde permitted the convicted attornies to complete their outstanding matters.136 Field had an open mind on the issue because on his arrival he and Wylde jointly sought the governor’s instructions on the disposal of the outstanding emancipists’ petitions for admission. The British government had made it clear to Macquarie that whilst the attornies it had provided for the colony were present no ex‐convict would be permitted to act as an officer of the court. Macquarie therefore advised the judges that he had been instructed that whilst the two salaried

Governor Macquarie responded to Grey Bennet’s attack refuting accusations of ‘zeal for the convict’ (3) and defending his policy of restoring men to their previous rank in society (33) by pointing out those who had prospered. 133 Roland Thorne, ‘Bennet, Henry Grey (1777–1836)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2008 [http://www.oxforddnb.com /view/article /37179, accessed 14 Dec 2012]. 134 Marion Phillips, A Colonial Autocracy, New South Wales Under Governor Macquarie 1810–1821 (London: Frank Cass & Co. Ltd., 1971), 231. 135 Wylde to Under Secretary Goulburn, 20 May 1816, in HRA, IV, I, 203; Ibid., 924, note 105. 136 Petition of George Crossley to Bathurst, 18 December 1817, HRA, IV, I, 268, 270; when Field commenced his first sittings in Van Diemen’s Land in 1819 he admitted the ex‐convict attorney William Adams Brodribb as the free attornies Amos and W. H. Moore had not arrived in time to commence the sittings. See Janette Finch and Ruth Teale, 'Brodribb, William Adams (1789–1861)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http:// adb.anu.edu.au /biography/brodribb‐william‐adams‐3060/text4511, accessed 14 December 2012.

119 attornies Garling and W. H. Moore were in the colony, no convict attornies could be admitted.137

Field opened his court on 1 May 1817 with the two magistrates Macquarie appointed to sit with him. The court unanimously dismissed the ex‐convicts’ petitions for admission whilst admitting Garling and a free immigrant attorney, Thomas Sterrop Amos. Ironically one magistrate was the emancipist Simeon Lord. The other was D’Arcy Wentworth who as indicated in the previous chapter had a dubious reputation. Field and the magistrates had no choice. London had made it clear that ex‐convict attornies were not to be admitted while the two stipendiary attornies were present in the colony.

Despite the constitution of the court, its formality and its respectability were now elevated to levels previously unknown. The responses of the emancipist attornies who were denied admission varied. Chartres who had been clerk to the Superintendent of Police continued in that office and also undertook minor legal work and general dealing.138 Despairing of ever again practising as an attorney, he left the colony later that year.139 Eagar made no further attempts to be restored to the roll of the attornies of court. He turned to politics and his involvements resulted in the colonial crisis that centred on the courts. George Crossley never gave up the hope of acting once more as an admitted attorney. His machinations for readmission are discussed below. Judge Field opened his court to what seemed would be an unremarkable future. For over two years only free attornies pleaded and the court seemed to have a future as honourable as any colonial superior court.

Suddenly, however, the question of emancipist admission was raised again. To the astonishment of the colony and the delight of many emancipists, in 1819 Field ignored the directive of the Colonial Office and attempted to impose Crossley unconditionally on the court. After his non‐admission, Crossley formed a business

137 Wylde and Field to Macquarie, 10 March 1817, HRA, IV, I, 226 ; Macquarie to Wylde and Field, 11 March, 1817, ibid., 856. 138 SG, 6 April 1816, 1b. 139 SG, conveyancing, 6 September 1817, 1c; sale of stock in trade, 8 November 1817, 1c; departure, 8 November 1817, 4c.

120 arrangement with Amos, by which Crossley posed as Amos’ clerk in order to plead matters in chambers (this was not irregular, for clerks appeared in judges’ chambers in London) and sat by Amos as the latter pleaded matters before the court.140 Moreover, Amos’ legal office was conducted in Crossley’s house. Field thus had reasons to suspect that Amos and Crossley were illegally associated and that Amos was a mere proxy for Crossley. This was contrary to law.141

Field likely acted against the arrangement in 1819 for a number of reasons. Firstly, Commissioner Bigge was due to arrive in the colony imminently, charged with the investigation of the administration of the colony with particular emphasis on its courts. It is probable that Field had advance knowledge of his coming.142 It would reflect badly on Field if Bigge uncovered the association between Amos and Crossley. Another illegal association between a convict non‐lawyer and a free attorney, just as illegal as Amos’ arrangement with Crossley, ended abruptly at this time.143

Secondly, Field acted to gain personally from intervention. Amos had failed to account for a Rio merchant’s debt that he had collected from a client – the matter that Field had undertaken to pursue on his journey out to the colony in 1816.144 Learning of Amos’ difficulties, Crossley seems to have made a deal with Field who was increasingly embarrassed about his failure to collect the debt for his Brazilian contact. Crossley brought his agreement with Amos to Field’s notice and

140 BT 28, CY 1546. Bigge’s Appendix, Commissioner Bigge’s despatches 1819–1823, 6754/68130. 141 If a sworn attorney suffered his name to be used by an unqualified person to enable him to act as an attorney or solicitor his name would be struck off the roll – section 11 of 22 Geo. II c. 46 (1749). At this very time facts similar to the Amos/Crossley association brought the same result – a partnership had permitted the attorney’s name to be used to the account and profit of the unqualified person – see Tench v. Roberts (1819) 6 Maddock 145; 56 E.R. 1047 (Vice‐chancellor’s Courts [1815–1865]). Subsequent English decisions illustrated the seriousness with which the English courts viewed the offence – see In the Matter of George Jacques (1822) 2 Dowling and Rylands 64 (Abbott CJ KB ); In the Matter of Thomas Jackson and John Wood (1823) 1 Barnewall and Cresswell ( 1823 ) 270 ; 107 E.R. 101 ( Abbott CJ KB ). 142 Bigge’s departure was announced in The Times 17 February 1819, 3f Issue 10599; the report stated he was deputed by government to ‘ascertain the present state of the colony, and every branch connected with it…invested with the most ample powers to inquire into the situation of the convicts, etc’. English newspapers were read avidly in the colony. The Sydney Gazette filled its pages with extracts from them. 143 After Amos was struck off, the salaried attorney W. H. Moore broke off a similar relationship with the convict Robert Lathrop Murray, G. Allen, Journal, 29 August 1819, ML CY2575 MSS 477/1, 23. 144 BT 28, CY 1546. Bigge’s Appendix, Commissioner Bigge’s despatches 1819–1823, 6726/68100.

121 suggested that Amos should be disbarred, and that he (Crossley) should be admitted. In return, Crossley agreed to repay Amos’ debt to the court.145

Field was so anxious to be paid the court fees that he assisted Crossley in every way possible. Field attempted to persuade the two magistrates sitting with him to agree to admit Crossley unconditionally, although he kept from them Crossley’s agreement to repay Amos’ debt.146 The magistrates had no objection to striking off Amos but refused to agree to Field’s arguments on behalf of Crossley.147 Crossley’s integrity was so tarnished and the rule against admitting emancipists so entrenched that the magistrates would only agree to admit him to finish Amos’ current matters in hand.

Field could have imprisoned Crossley in addition to disbarring Amos, but there were clients to be considered. Field did not order an examination of the books of the practice to determine whether there was evidence of sharing of the profits to constitute the offence. This was standard practice in England, where an enquiry by the Master was ordered for this purpose.148 Had Field ordered an examination it would have revealed if in fact the allegations were made out. The only presumed evidence before Field was an agreement that was alleged to be illegal. If the parties had never acted as if bound by it no penalty could be imposed. Moreover, as Crossley had been struck off the roll of the courts to which he had been admitted in England, by acceding to his plea for admission in Sydney, Field was complicit in a breach of his own court’s rules.149

145 BT 19, CY 1558. Bigge’s Appendix, vol. 126, appendix papers 1819, 3005/61267. 146 John Piper’s evidence to Bigge, 22 November 1819, HRA, IV, I, 759. 147 M. H. Ellis, Lachlan Macquarie (Sydney: Angus and Robertson Publishers, Famous Australian Lives Edition 1978), 317. 148 See for example ex parte Whatton (1822) 5 Barnewall and Alderson 824; 106 E.R. 1391–2 ; for a full discussion of this subject see Maugham, A Treatise on the Law of Attornies, Solicitors and Agents, with Notes and Disquisitions (London: J. & W.T. Clarke, 1825), 148, et seq. 149 An attorney was not permitted to apply for admission to a court after having been struck off the roll of another. Until a rule of court in England, prohibited it, this had been the practice in England where there had been no central supervision of the conduct of attornies. Prior v. Moore (1814) 2 Maule and Selwyn 605; 105 E.R. 507 (King’s Bench) discussing R.M. 1654 § 1 KB. It was considered in this case however that the rule may not be current yet see William Tidd, The practice of the Courts of King’s Bench and Common Pleas vol. 1 (London: Joseph Butterworth and Son, 9th ed., 1828), 74.

122 Bigge was present in the colony when these events took place. His comments on this episode were restrained. He criticised Field only so far as saying that Crossley’s readmission was not founded on any absolute necessity nor did it bring about any prospect of his reformation and improvement.150

Field’s perfidy on behalf of Crossley did not cause long‐lasting harm to the reputation of the courts nor did Crossley represent a threat to the free attornies when he resumed practice. Most of Amos’ clients whose instructions Crossley retained were emancipists and only a few free persons remained his clients.151 Crossley moreover was nearing the end of his life – he had barely four years to live – and was nowhere near as active as formerly.152 Table 3 represents Crossley’s career after his admission in 1819. After Amos was struck off that year, Crossley finalised his matters and filed three further in his own right. In 1820, Crossley filed two cases, one of which he took over after Amos’ death. In 1821 Crossley again received only one of 169 filings. Only one of the instructions he was given in 1820 and 1821 Crossley finalised. Emancipated attornies were now a spent force and did not ever again represent a serious challenge to the free attornies.

Table 3

Year Number of Filed by Continued by actions 1817 1 Amos Crossley 1818 3 Amos Crossley 1819 16 Amos Crossley 1819 3 Crossley Crossley 1820 1 Crossley T. Wylde 1820 1 Crossley Crossley 1821 1 Crossley Garling Conclusion

150 Bigge, II, 5. 151 Crossley retained the instructions of emancipists William Fielder, Thomas Gilberthorpe, Robert Waples, Lawrence Butler, Thomas Clarkson and free colonists Thomas Palmer, Henry Antill. 152 Crossley died in 1823.

123 In a penal colony with no other legitimate place to challenge authority, its courts were bound to be the centre of political dissent. Emancipist attornies attempted to use the courts to advance their own interests. They were able to earn income as agents of their clients until an increase in formality in the court that prevented their acting as attornies took away even the right to act as law agents. They had grounds for dissent and it will be seen in subsequent chapters how they used the courts as venues for discontent. While emancipated attornies were present in the colony their activities were always bound to cause tension.

Judges were in a stronger position to play an important role in colonial politics. The governor had attempted to influence Bent and to a lesser extent Field, by associating him with an emancipist magistrate. Field soon learned the power of the position he held and became increasingly independent. His actions soon became known publicly and his role as judge would subject him to attempts to influence him to one side of politics.

Admission of emancipists to court was a recurring issue because they remained associated with the law. Chapter Five explains how Edward Eagar turned his intellect and energies into advancing the emancipist cause by attacking Field’s prominence in the exclusivist faction. Eagar exploited Field’s vulnerability over court rules and fees. Field denied that he received fees personally and responded with a public personal attack on Eagar. In the major political crisis that resulted, serious doubts were raised on the validity of the governor’s power to remit the time or term of transportation.

This chapter exposes the importance of the admission of emancipist attornies as a legal and political issue in the early Macquarie period. It demonstrates that the closure of the court of 1814 was not nearly as disastrous as it could have been and suggests that informal arbitration of suits was likely. It is apparent that the issue of admission of emancipist attornies was not completely decided against them because, when it suited Field for his own purposes, had he not been opposed by the other members of his court, he would have admitted Crossley unconditionally.

124 CHAPTER FOUR

Emancipist stirrings

This chapter shows how Judge Field favoured mechanisms that fostered certainty in commercial situations. His initiatives ranged from giving emancipists access to the court to allowing innovative pleadings that ameliorated the consequences arising from the mobility and immorality of the population. A number of these mechanisms facilitated the engagement in commerce of emancipists. Despite this assistance, a comprehensive analysis of court records reveals that the former dominance in trade and commerce of emancipists declined as they encountered greater competition from free colonists. This decline was aided by other developments in court. In contests between emancipist and exclusivist, the emancipist was usually but not always vanquished. Most mechanisms favoured creditors of all backgrounds. However most creditors were free people. The chapter will examine these complexities by identifying the plaintiffs who used the court, by investigating the ways Field actively aided emancipist access and by examining a range of novel pleadings that minimised costs. Creditors obtained greater security by the implementation of warrants of attorney, domestic attachment and flexible application of the statute of limitations.

Field’s impressions of emancipists as they passed through the court brought about a change in his sympathies. As he learned how successful some of them were competing with free colonists in trade he formed the impression that emancipists used any means to prosper. As emancipists achieved financial superiority, exclusivists looked on with envy and displeasure. Field therefore increasingly took on the role of legal adjudicator on behalf of the exclusivists. He played a leading part in the unexpected tensions that were to erupt between emancipists and exclusivists.

125 Convicts and the right to sue

The extent to which the common and statute law of England applied to the colony at its founding troubled those with the responsibility of deciding the question of whether convicts had a right to sue before the Civil Court. Whether or not the doctrine of attaint applied was a question of the first importance. Under the doctrine, persons who had been sentenced to death for their crimes lost their civil rights.1 Amongst the consequences, they were disabled from suing in the courts. Strict application to the colony would have deprived capital convicts of this right. Yet convicts under servitude commenced the colony’s first civil case.2 A Select Committee of Parliament on Transportation was itself unsure of the factual situation for, after hearing evidence in 1812, it concluded that prisoners still under servitude were not permitted to sue.3 Throughout the existence of the Civil Court, however, convicts were permitted to sue.4 Bigge found that the emancipists’ right to sue was never denied up to the time of his investigations.5 However, to say (as Bigge did) that the emancipist right to sue was unquestionably restored once their time or term of transportation was remitted overlooked the difficulties Eagar encountered in April 1820 when he sued Field (discussed in subsequent chapters).6

Following the reforms of the Second Charter the newly‐appointed judges Wylde and Field were uncertain of the position of convicts before their courts. They conferred when a convict attempted to sue in the Governor’s Court and jointly sought guidance from Crown Law authorities.7 Until they received advice they put their doubts aside and followed custom. They allowed convicts to sue if they held the dispensation from government work of a ticket of leave, a concession

1 Kercher Debt, Seduction, 49. 2 Cable v Sinclair [1788] NSWKR 7; [1788] NSWSupC 7. 3 Report from the Select Committee on Transportation (1812) paper 341, 7. 4 Kercher, Debt, Seduction, 19‐20; see Wylde’s evidence to Bigge, HRA IV, I, 802. 5 Bigge, II, 9. 6 Governors under 30 Geo. III c. 47 (1790) had a power to remit the time or term of transportation either conditionally or absolutely. 7 ‘Case’ of Wylde and Field submitted for consideration to Henry Goulburn, 5 April 1817, HRA, IV, I, 246‐7.

126 that did not restore civil rights.8 Bigge rationalised the practice on a mixture of dubious principles of ‘equity and convenience’:

… for, as the convict is allowed by his ticket of leave to appropriate the fruits of his industry to his own benefit, and to enter into dealings with others in the exercise of that industry, it is considered only just that he should be allowed the means of securing what he has earned, as well as of recovering what he has lent.9

This does not mean that suits by convicts were never controversial. In early 1817 a suit brought by a ticket of leave holder against a military officer created a scandal. It was an event that justified the exclusives’ belief that the governor’s benign attitude to convicts would bring ruin to the social order. From a legal aspect it was a test of the judges’ response to a determination of the rights of convicts in a penal colony. Francis Greenway, the colonial architect, holding only a ticket of leave, alleged he had been assaulted by the military officer Captain Sanderson. Wylde and Field had to consider whether he should be permitted to bring both criminal and civil proceedings against his alleged assailant. It is likely that the judges allowed Greenway’s suits because of local custom, but also, in part, because of the governor’s sympathies for emancipists in general and for Greenway in particular. At the time they were probably overawed by Macquarie. After all, they owed their appointments to the struggle that had taken place between their predecessors in office and Macquarie. Another indication of Field’s passivity towards the governor was Field’s meek acceptance of Macquarie’s constitution of the court at that time. As previously observed Field was compelled to sit with an emancipist and a colonist of dubious reputation. Field’s antagonism towards the governor was yet to crystallize. Finally, Greenway was a particular favourite of the governor, who had the potential of fulfilling the governor’s dream of building a sandstone empire. He was encouraged to practise as an architect immediately on his arrival and was granted his ticket of leave as soon as he had proven himself. 10

8 Examination of J. Wylde, 1820, Ticket of Leave men were ‘constantly admitted as suitors in the former Courts without objection’, HRA IV, I, 802. 9 Bigge, I, 131. 10 Morton Herman, 'Greenway, Francis (1777–1837)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography /greenway‐ francis‐2120/text2681, accessed 15 December 2012.

127 Greenway was commissioned by Sanderson to ornament his Masonic apron. The result displeased Sanderson who expressed his dissatisfaction with Greenway’s work. Greenway thereupon charged Sanderson with an absence of ‘goodness of heart and manliness of conduct’.11 Sanderson sent for Greenway and publicly horsewhipped him. Greenway then took the extraordinary step of commencing criminal proceedings against Sanderson. At the trial the military officers who comprised the court resented the judge advocate permitting cross‐ examination on the truth of Sanderson’s evidence. This outraged officers who expected that their word would be accepted by the court. Sanderson was found guilty of assaulting Greenway and fined £5.12 This conviction was very important. It was extraordinary for an officer defending military honour against a convict’s actions, to be found guilty of a criminal offence.

Greenway sought further vindication before the civil court, seeking damages for assault. In the criminal action, Greenway was the informant and the suit was brought in the name of the Crown. In the civil action Greenway was the plaintiff. Field permitted him to proceed. If Greenway succeeded, Sanderson would be held to account for his conduct in maintaining his position at the apex of the social hierarchy.13 This humbling of a military officer by a convict was unprecedented.

The case was similar in some respects to earlier Sydney proceedings in which a free man sued military personnel for assaulting and beating him.14 Sanderson claimed the right to preserve a peace predicated on honour and hierarchy.15 In effect Sanderson was claiming that Greenway, a convict, was disturbing the peace by daring to speak to him as an equal.

11 M. H. Ellis, Francis Greenway (Sydney: Angus and Robertson Publishers, Famous Australian Lives Edition 1978), 65. 12 Eagar to Bathurst, 3 April 1823, HRA, IV, I, 448. 13 Michael Roe, ‘Colonial Society in Embryo,’ Historical Studies: Australia and New Zealand 7, no. 26 (1956): 153‐4. 14 Lisa Ford, “The Pig and the Peace – Transposing Order in Early Sydney” in Law and Politics in British Colonial Thought, ed. Shaunnaugh Dorset and Ian Hunter, (Basingstoke: Palgrave Macmillan, 2010). 15 Ibid., 174.

128 Both cases showed that the military domination of colonial life could be outrageous but was not absolute.16 However, as Greenway was a convict, his suit challenged the honour of the regiment to a much larger degree. It seemed in the new judges’ first years in office that they were above politics and that their courts might remain free of class prejudice and conflict.

Although Field was unsure that Greenway as a ticket of leave holder could sue, he permitted him to proceed in the Supreme (civil) Court for damages. Later, Field was to state that convicts had to complain to magistrates for ‘any civil cause of action.’17 As it transpired Greenway was fortunate in the composition of the court. When giving judgment, Field correctly overruled Sanderson’s argument that as he had been found guilty of assault, Greenway should not be permitted to commence further proceedings. Where a wrong was a crime and a tort, both civil and criminal actions were permissible.18 Sanderson also argued that as Greenway was attainted, even though he held a ticket of leave, he should not be permitted to sue. Field overruled this objection too. It seems that there was no discussion of whether or not the doctrine of attaint was applicable to the circumstances of the colony.

For a second time the assault and battery were proved and Greenway was awarded on 30 June 1817, not the £200 he claimed but £20 with costs taxed and allowed at £31 10s. 3d.19 Field’s giving a verdict for less than £50 eventually became a matter for contention between the two judges. Wylde argued that Field only had jurisdiction when the verdict exceeded £50.20 Finally, as often happened and was the subject of complaint, the costs exceeded the verdict. Judge Field published his judgment but observed social propriety by not naming the parties.21

16 Ellis, Francis Greenway, 70. 17 Field to Bathurst, 15 January 1823, HRA, IV, I, 423‐4. 18 Jones v. Clay (1798) 1 Bosanquet and Puller 191, 126 E.R. 853; Sir Francis Buller, An introduction to the law, relative to trials at nisi prius, ed. R.W. Bridgman (London: R Pheney and S. Sweet, 1817) 15, foot note (a). 19 Field’s permitting a convict to sue, see testimony of Wylde in BT 7, 2912‐15 and Wylde’s evidence to Bigge in HRA, IV, I, 792; for report of the civil judgment see SR, SC judgment rolls 9/2212 #19 and NSWKR 2; noted by Bigge, II, 33. 20 The so called ‘concurrent jurisdiction’ argument. See Field’s judgment SG, 28 February 1818, 3a‐c, 4a. Gurner prepared a return of the 19 verdicts Field gave under £50 for Bigge. TNA (PRO) reel 113, CO201/125, 451. 21 SG, 5 July 1817, 3a.

129 In this way he ameliorated for Captain Sanderson the ignominy of having been successfully sued by a convict and one holding only a ticket of leave at that because suing an officer was considered a scandal in polite circles.

The following year Field further departed from the common law by allowing a convict to acquire property by operation of law. This was a departure from the usual consequences of attaint of which one of the notable features was divestiture of property. Once sentence of death was recorded, land and its rents and profits were forfeited to the Crown for a year and a day and then escheated to the lord of the fee who in most cases was again the Crown.22 There was also a doctrine of relation back. Once a person was attainted, all his or her lands were forfeited from the moment of the offence. ‘Any conveyance or alienation made between the date of the offence and the attainder was then null and void.’23 Kesselring argues that this doctrine of relation back did not apply to personal property. However, he himself discovered that there had been a great deal of activity in eighteenth and nineteenth century England in the recovery of chattels forfeited to the Crown following attainder.24 Moreover, his assertion that ‘relation back’ did not apply to personal property is at odds with one of the reasons for decision in the leading case of Bullock v. Dodds that assumed the greatest importance in the colony:

by attainder, all the personal property and rights of action in respect of property accruing to the party attainted, either before or after attainder, are vested in the Crown without office found …25

‘Office found’ imposed on the Crown the inescapable burden of proving that it was entitled to the real property of an attaint.26 I explain in greater detail the procedure in Chapter Six. Office found however was utilised in the case of personal

22 K. J. Kesselring, ‘Felony Forfeiture in England, c.1170–1870,’ The Journal of Legal History 30, no. 3 (2009): 203. 23 Ibid., 207. 24 Ibid., 220. 25 Kesselring, op. cit., 207; Bullock v. Dodds (1819) 2 B. and Ald. 258; 106 E.R. 361; Court of King’s Bench Abbott C. J. 26 For application of the doctrine of office found to the colony see Enid Campbell, ‘Conditional Land Grants by the Crown,’ Sydney Law Review 5, (1965–7): 267‐277.

130 property to uncover assets that were liable to seizure. The Sydney Gazette reprinted an English account in 1819 of the procedure.27

The effect of attaint on the colonial economy would most likely be disastrous.28 Without the right to sue emancipists could not protect their property. It seems that they could still contract but if a breach arose their remedy was temporarily suspended during their attaint.29 The consideration given when accepting negotiable instruments could not be recovered until their attaint ceased. Rights to real property were more secure after the passage of English legislation in 1814. Until that time an attaint ‘did not forfeit his freehold so long as he lived until office found or entry by the king.’ ‘Until this entry was made, a grant by one under attainder bound all persons, but the king and the lord, of whom the lands were held.’ Subsequent to 1814 only the profits of real estate were forfeited to the Crown during the life of the attainted person.30

These legal issues came before Field in 1818. The facts presented to Field related to a convict attaint, Thomas Pearce, who was sued for possession of land at Parramatta that had been leased to his wife Mary Ann. Under the common law a lease was regarded as personalty rather than real property.31 Robert Jenkins claimed a superior title to the land and brought proceedings before Field specifying Thomas as the party to be ejected from it. Mary Ann’s attorney, Frederick Garling, applied to the court for leave to join her as a defendant.32 Garling anticipated that Jenkins would argue that the lease vested in Thomas by operation of law and was forfeited to the Crown.

By the common law, on the marriage of a woman, all her property vested in her husband by operation of the law of coverture. After marriage husband and wife became one entity. The wife’s legal existence was suspended during the

27 SG, 10 July 1819, 3b‐c; R v. Thomas and R v. Newman. 28 Rosemary Hunter, ‘Australian Legal Histories in Context,’ Law and History Review 21, no. 3 (2003): 611. 29 Anonymous, ‘The Right of a Convict to Contract,’ 468. 30 (1814) 54 Geo. III c. 145. See Forbes’ view on the effect of this statute, HRA, IV, I, 419. 31 J. H. Baker, An Introduction to English Legal History 2nd ed. (London: Butterworth & Co [Publishers] Ltd,1979), 193‐4. 32 Doe dem. Jenkins v. Pearce (1818) NSWKR 4.

131 marriage.33 If a husband was banished his wife’s legal existence was restored.34 In the colony this practice was adopted despite the presence of her attainted husband, and approved by the Supreme Court in 1847.35 This followed from Blackstone’s observation that ‘the wives of attainted men were treated as if they were free, as if feme sole rather than feme covert.36

Field pondered whether he should allow Mary Ann to be joined as a defendant. The rule of law that all persons interested should be joined was persuasive.37 Field considered whether Mary Ann should have been sued alone. In support of that line of reasoning he referred to the case of a married woman who had been regarded as a feme sole in England where her husband was banished from England and could not be sued.38 That argument, however, was defeated by the presence in the colony of both husband and wife. Accordingly, cases in which a wife was the sole defendant where her husband was beyond the seas did not assist.39

Field could have relied on the Civil Court’s ruling of 1812 that allowed the wife of a serving convict to be sued.40 But he refused to do so and would not permit Mary Ann to be joined as a defendant. Field therefore accepted that the lease vested in the convict husband by operation of law until the Crown reclaimed it. Field took the opportunity to express his opinion in the Gazette at this time that until an allegation of attaint was strictly proven in court, all persons were considered to be free.41 The conclusion to be drawn from this argument, was that the law of convict attaint was not applicable to the colony because, as he put it, of

33 Sir William Blackstone, Commentaries on the Laws of England vol. 1 (Oxford: Clarendon Press, 1765–69), 442. 34 Kercher, Debt, Seduction, 66. 35 Ibid., 70. Kercher refers to the decision of the New South Wales Supreme Court in 1847, Doe dem. Tugwell v. Farrell in which ‘the wife of an attainted prisoner had the same freedom as unmarried women.’ 36 Kercher, Perish or Prosper, 565. 37 Geoffrey C. Hazard, ‘Indispensable Party: The Historical Origin of a Procedural Phantom,’ Columbia Law Review 61, (1961): 1285. 38 Newsome v. Bowyer (1729) 3 Pere Williams 37: 24 E.R. 959 (Chancery) cited by Hazard, ‘Indispensable Party,’ 1261. 39 See cases cited by Hazard, ‘Indispensable Party,’ footnote 36. 40 Kercher, Debt, Seduction, 70. 41 SG, 29 August 1818, 2c.

132 the ‘necessities of justice in a Colony composed like that of New South Wales.’42 However, he deferred a clear decision on the applicability of attaint, arguing that strict proof of conviction and Crown action to reclaim property were preconditions of its operation. Avoiding a public pronouncement on the applicability of convict attaint left it open to Field to argue very strenuously that the doctrine did apply to the colony when it came to his conflict with Edward Eagar.

Judge Field’s discovery

Field permitted Greenway to sue and Thomas Pearce to acquire his wife’s legal interest by operation of the law of coverture, because in his opinion, no convict was attainted until strict proof of the allegation was tendered. His reasoning was based on the ‘strict rules of British law, which do not turn a witness away from the box, unless such proof be produced.’43 If convicts were permitted to give evidence, contrary to the common law, then Field reasoned, they should be allowed to sue until it was proven that they were attainted. This argument validated his earlier decisions and promised to open the courts to every convict. He reasoned that when a defendant argued that his opponent was a convict attaint and therefore unable to sue, strict proof of the allegation was required before the convict was barred from suing. As Field put it at first, ‘nothing can be done in the courts without the record of conviction and judgement, or an attested copy thereof’.44 In practice, this evidence had to be obtained from London together with an affidavit that the plaintiff’s name was not to be found in a search of pardons under the Great Seal. Both steps entailed considerable time and expense. This policy could cut both ways. It could favour free defendants by allowing them to defer emancipist litigation pending investigation of their status in London. However, as in Pearce’s case, it could also favour emancipists: their claims were not struck out on the mere allegation of attaint. In giving his judgment in the Pearce case, disregarding the facts, Field wrote:

42 Doe dem. Jenkins v. Pearce (1818) NSWKR 4. 43 Ibid. 44 SG, 29 August 1818, 2c.

133 Before [his] time … no convict was allowed to sue in the Courts. It was he that discovered a legal principle, upon which they could not be prevented from suing.45

There was merit in Field’s argument, although his successor Francis Forbes disagreed.46 Both judges would have agreed that proof of any judgment was necessary if reliance was to be placed on it.47 The plaintiff who attempted to recover on a judgment of the Court of King’s Bench in England did not succeed before Field in the absence of proof of that judgment.48 Likewise, when defendants in the colony alleged that plaintiffs were attainted, Field required strict proof of their attaint.

The basis of Field’s argument was that attaint did not apply to every person transported. There were many persons transported without having been sentenced to death. Many in the colony had been charged under the Transportation Act of 1717 with the offences of grand or petit larceny or felonious stealing from the person or house of another.49 Over many years a legal fiction had evolved that permitted most first offenders to claim that they were members of the clergy and should be treated more liberally. Upon conviction a lesser punishment of transportation for seven years was inflicted.50 As sentence of death was not recorded attaint did not follow.

Repeat offenders upon conviction of any crime whatsoever were transported for fourteen years if the King extended to them his royal mercy. For repeat offenders attaint could only be proven if the conviction was for a capital felony. The Transportation Act then provided the benefit of a pardon under the Great Seal. Where persons served their terms of transportation, it had the effect of

45 SG, 11 August 1821, 2c. 46 Comments on Field to Bathurst, 15 January 1823, by Forbes on 12 June 1823, in which Forbes thought it a ‘very uncourtlike’ device, an evasion of the law. HRA, IV, I, 483, 484. 47 Fisher v. Lane (1772) 3 Wilson, King’s Bench 297, 303; 95 E.R. 1065, 1068 (Lord Chief Justice). 48 Robbins v. Drennan, plaint filed 27 August 1821, SR, SC judgment rolls 9/2233 #457; perhaps the only other attempt to enforce a foreign judgment in 1823 did not proceed because of the failure of this action – see Colvin and others v. Ritchie, an attempt to enforce a judgment of the Supreme Court of Judicature at Fort William, Bengal recovered in 1822, SR, SC cause papers 9/2258 #968. 49 4 Geo. I c. 11 50 Baker, An introduction to English Legal History, 423.

134 a pardon to all intents and purposes as for the crime or crimes for which they were transported and as a result their right to sue was restored.51

Some persons were transported for misdemeanours for which attaint did not accrue like George Crossley, who was ordered to be transported on 20 June, 1797, for seven years following his conviction for perjury.52 Another example was the Act that penalised the stealing of fish, the poaching of European rabbits known as conies and for damaging sea banks. If convicted of any of these offences the accused was transported for seven years. As that Act did not make the offence a felony, it was therefore a misdemeanour and proof of transportation did not prove attaint.53 By this means, Field found a way to continue allowing emancipists and tickets of leave men standing in court despite the law of felony attaint. The mechanism of requiring strict proof of capital conviction provided Field with the means to do so. In Greenway’s case there was no suggestion that an adjournment was sought to prove his attaint.

Field’s argument raised the possibility of ridding the courts of the doctrine of convict attaint as inapplicable to colonial circumstances. Whether Field had altruistic intentions or was motivated by greed over the fees he might lose if emancipists were barred from court, is uncertain. However, he accepted that whenever a defendant claimed, as Sanderson had done, that his opponent was a convict attaint and therefore lacked standing before the court, strict proof of this allegation was required.

Warrants of attorney

Field’s liberal treatment of attaint encouraged transported persons to engage in commerce. Another way that Field facilitated trade between all classes of people was by permitting the wide use of Warrants of Attorney. The free were creditors in greater numbers in warrants of attorney than emancipists, yet these warrants

51 4 Geo. I c. 11 s. 1. 52 Evening Mail, 19‐21 June 1797, 3b. 53 5 Geo. III c. 14 (1765) An Act for the more effectual Preservation of Fish in Fish ponds and other Waters ; and Conies in Warrens ; and for preventing the Damage done to Sea Banks, within the County of Lincoln, by the Breeding Conies therein.

135 were also important devices for emancipist creditors. Conversely, emancipists feature in the court records as debtors in warrants of attorney in greater numbers.

Warrants were of vital importance to commercial life because they safeguarded emancipist creditors from attacks on their former convict status. Until the crisis of 1821, in part because of Field’s liberal approach, the argument that an emancipist continued to be attainted and could not sue had not been raised. As a consequence emancipists remained vulnerable on this issue. If the argument was raised that emancipists were disabled it threatened to bring down the legal edifice that underpinned their participation in colonial commerce. If the argument succeeded it would have been disastrous for emancipist creditors.

Warrants had their origins in the instructions given to an attorney to act for his client in court. Their predominant colonial use was in money lending transactions by emancipist and free creditors. The primary need of credit providers was to be assured that they would recover their loan with the interest that the borrower had agreed to pay. Real property mortgages could not be relied upon because the registration of title to land in the early years of the colony was disorganised and this form of security was rarely utilised.54 On default of repayment, a mortgagee’s remedy of acquiring the mortgagor’s right of redemption by foreclosure in equity was a far lengthier and more expensive procedure than suing at law for debt.55 Warrants of attorney became the instrument of choice in money‐lending transactions.

They worked simply. Credit contracts required a debtor to give to an attorney chosen by the creditor instructions to act on his or her behalf in any subsequent litigation. The debtor undertook to instruct the attorney nominated by the creditor that if he was sued by the creditor for default in repaying the loan, the attorney would accept service of the summons on behalf of the debtor, say nothing in bar or preclusion of the claim and inform the court that he was not informed of any answer to be given to the claim. In this way a defendant would find it very

54 See Kercher, Debt, Seduction, 122‐131; Warrants of Attorney became a collateral form of security in real property morgages –see Ellison v. Kirk [1834] NSWSupC 109 Macquarie University Faculty of Arts, case index. 55 Blackstone, Commentaries, Book 2, chapter 10, 159.

136 difficult to open the judgment to judicial scrutiny and raise the defence that the plaintiff creditor had been or was still attainted and therefore unable to sue.

Warrants thus made it very easy for all creditors – free and convict – to obtain judgment on default of repayment. The execution of a warrant of attorney was not an acknowledgment or confession of indebtedness. They have been described, however, as ‘the loosest way of binding a man’s property that was ever devised in any civilized [sic] country.’56 With the need to serve the defendant eliminated, the possibility that the defendant might attempt to evade service was removed. Under the common law, if the defendant could not be served the plaintiff had to proceed to outlawry.57 In the colony, plaintiffs relied on domestic attachment if a defendant was absent, a remedy that will be discussed shortly. Following acceptance of the summons by the nominated attorney, judgment was automatic and immediate because no proceedings followed. The alternative to the simple procedure of warrants was more expensive and slower. Once the defendant was served, appeared and filed a plea in defence and then decided to accept judgment he or she was required to sign a cognovit.58

The instrument did have some weaknesses, however. Death of either creditor or debtor occurring before finalisation of the loan transaction, acted as a countermand of a warrant of attorney just as today death causes a vacancy in the office of an attorney.59 Where judgment was sought in the colony on a warrant of attorney more than a year after its execution, the attorney filing it had to swear that the debtor who executed it was still alive.60

Warrants appeared in the court, first, in 1816 and seem to have been introduced by the astute George Crossley. It seems that Crossley foresaw the

56 Anonymous, ‘Confessions of Judgment,’ University of Pennsylvania Law Review 102, no. 4 (1954): 524. 57 William Tidd, The practice of the Court of King’s Bench in personal actions: with references to cases of practice in the Court of Common Pleas, 3rd ed. vol. 1 (London: J. Butterworth, 1803), 125. 58 Anonymous, ‘Confessions of Judgment,’ 526. 59 For death of a party see Anonymus (sic) (1726) 1 Vent. 310 ; 86 ER 200. This judgment cited by Tidd, King’s Bench Practice, 1803, 495, only pertained to the debtor; for modern law see NSW Powers of Attorney Act 2003 s. 5 ss. (c). 60 English authority – Tidd, King’s Bench Practice, 1803, 495; Colonial application – Oxley v. Horsley (1818) SR, SC judgment rolls, 9/2218 #135; Terry v. Finnigan (1822) SR, SC judgment rolls, 9/2236 #513.

137 dangers to emancipist creditors in the increasingly formal practices of the courts. Crossley and other ex‐convict attornies were excluded from court but could act as legal agents of their clients. Though he was unable to act as a warranted attorney, Crossley overcame the difficulty by utilising the general powers of attorney granted to him by the debtors of his client’s creditors.61 This instrument, in practice, if not in theory, seems to have allowed a legal agent to accept service of an initiating summons, and say nothing in bar to a claim. The power of attorney, however, had an inherent weakness. It was revokable at any time whereas a court would not permit revocation of a warrant of attorney.62 So, when Crossley was admitted to court in January 1816, he began to use warrants of attorney on behalf of his clients.63 When he and the other emancipist attornies were refused admission to practise in the reformed courts under Field and Wylde the free attornies admitted in their stead continued the use of warrants.

Thereafter, Field set a standard charge of £3 on giving judgment on warrants and processed them quickly.64 Warrants therefore minimised the cost and uncertainty of obtaining judgment while providing a sure revenue stream for Field. After obtaining judgment, however, lenders were now in no better a position than any other judgment creditor. They had to apply to the court for the process to commence by which land and the other possessions of the debtor were sold. If they failed to recover the whole of the debt creditors could apply for arrest and imprisonment of the debtor.65 Warrants were a more cumbersome form of lending for Van Diemen’s Land creditors, as their proceedings had to commence and be finalised in Sydney unless they waited till Field went on circuit.66

61 See for example Crossley v. Hook SR, SC cause papers (1817) 9/2251 #120; however judgment on a warrant of attorney of 21 March 1815 was recorded in 1817. The attorney for the defendant was T. S. Amos who had acquired Crossley’s clients – O’Connor v. Mountgarrett SR, SC judgment rolls 9/2211 #2. 62 Tidd, King’s Bench Practice, 1803, 495. 63 For examples of warrants of attorney given 2 November 1816 to Crossley see Terry v. Salter SR, SC judgment rolls 9/2211 #1; Terry v. Keaughran #3 ‘Warrant of attorney to George Crossley, agent’. 64 Eagar v. Norman S.R., SC judgment rolls 9/2219 #175. 65 Kercher, Debt, Seduction, 181. 66 Field made circuits in 1819 and 1821. He signed judgments on warrants of attorney at those times.

138 Whilst the colony was in a severe depression from 1810–1815 the demand for capital had lessened.67 One of the reasons the colony emerged from this slump was the liberalisation of migration.68 The capital that emigrants brought and the increase in transportation at the end of the Napoleonic wars stimulated commerce.69 A study of the use of warrants in the years to 1824 provides an insight into the patterns of trade and commerce between free colonists and emancipists. The method employed in recording judgments on warrants entered in the Supreme (civil) Court makes analysis complex. Judgments were recorded very often without stating a reason why the warrant had been executed. For example, terms of settlement of diverse types of litigation sometimes included a warrant of attorney given by the submitting party to his or her opponent to secure payment of the ensuing judgment debt.70

Table 1 comprises judgments on warrants of attorney whatever the reason for judgment. The importance of warrants of attorney can be gauged from the yearly increase in judgments. Tables 2 and 3 suggest a number of conclusions. Free colonists remained the greater providers of credit (as they had been since 1800 when most of the population of the colony was in economic subjection to two dozen military officers).71 Emancipists were in greater need of capital than free colonists although an exception was the dominance of the wealthy emancipist Samuel Terry in lending: Macquarie had commented in 1817 that he was a ‘wealthy trader’.72 William Baker, an emancipist at Windsor was for a short time a significant credit provider.73 Credit was always in demand in the colony.

67 See chapter three, footnote 122. 68 Brian Fitzpatrick, British Imperialism and Australia 1783–1833 (London; George Allen and Unwin, 1939), 217. 69 Attorney Thomas Sterrop Amos, brought £600‐700 in ‘effects’ in 1817, HRA, IV, I, 212; Hainsworth, Sydney Traders, 108. 70 See for example Riley v. Devoy et anor. SR, SC judgment rolls (1817) 9/2211 #26. 71 D. R. Hainsworth, ‘The New South Wales Shipping Interest,’ Australian Economic History Review 8, no. 1 (1968): 22, citing Fitzpatrick, British Imperialism and Australia, 93. 72 Gwyneth Dow, 'Terry, Samuel (1776–1838)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/terry‐samuel‐2721 /text3833, accessed 15 December 2012. 73 SR, SC judgment rolls 9/2219 #194‐8.

139 Emancipists borrowed surprisingly large amounts of money from other emancipists and were more likely to default.74

The tables also reveal the impact of the Eagar and Field controversy in 1821 on credit in the colony. 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. Sometimes years passed before creditors sought judgment on their warrants.75 The absence of judgments on warrants in 1823 suggests that lending on warrants ceased after the crisis. The announcement of Field’s recall in 1823 may also have disrupted commercial certainty.76 Colonists recalled the closure of the court before his arrival. There was a rush to finalise warrants before Field sailed. In a few weeks of early 1824 he signed judgment on 42 warrants. Wylde signed the remainder after he was sworn in as Field’s replacement until Francis Forbes arrived 5 March 1824 to inaugurate today’s Supreme Court.77 These events are analysed in subsequent chapters.

74 Terry v. Salter – chattel mortgage on the Mary Ann for £400 2 November 1816 S.R., SC judgment rolls 9/2211 #1. 75 Terry v. Larra – judgment given 26 May 1821, on a warrant dated 5 November 1816, S.R., SC judgment rolls 9/2232 #435; Terry v. Hampson judgment 1 February 1822, on a warrant dated 27 November 1817, S.R., SC judgment rolls 9/2235 #498. The due date for repayment is unknown. 76 SG, 20 February 1823, 3b. 77 SG, 11 March 1824, 2a.

140 Table 1 – Judgments given for debt on warrants of attorney during the existence of the Supreme (civil) Court 1817 – 1824. Year Total number of Number of Percentage of actions judgments on those warrants of commenced actions that arose attorney of the from warrants of number of actions attorney commenced yearly

1817 206 18 8.74 1818 153 28 18.30

1819 182 50 27.47 1820 205 61 29.76

1821 169 60 35.51

1822 137 51 37.23

1823 49 ‐ ‐ 1824 58 57 98.28

Total 1159 325 ‐

Tables 2 and 3 – Warrant of attorney actions 1817 – December 1823

Table 2 – Yearly summaries of warrants of attorney

Year Terry Terry Emancipist Emancipist Free Free Total v v v v v v emancipist free emancipist free emancipist free 1817 1 5 2 4 3 3 18 1818 3 1 7 2 5 10 28 1819 ‐ 3 12 7 18 10 50 1820 3 1 15 7 25 10 61 1821 1 ‐ 16 6 23 14 60 1822 2 2 13 9 19 6 51 1823 ‐ ‐ ‐ ‐ ‐ ‐ ‐ Total 10 12 65 35 93 53 268

141 Table 3 – Summary of warrant of attorney actions 1817 – December 1823

Emancipist plaintiffs 122 45.52% Free plaintiffs 146 54.48% Total 268 100%

Emancipist defendants 168 62.69% Free defendants 100 37.31% Total 268 100%

Litigation arising from warrants of attorney also reveals that emancipists were subject to harsher terms in their loan agreements, likely because they were considered at greater risk of defaulting on repayment. In 1817 the emancipist Joseph Salter borrowed from the free merchant Alexander Riley £114 for one month at 8% interest. The rate of interest was not punitive but Salter was forced to agree to repay double that sum if he did not repay it on the due date.78 He defaulted and judgment was entered against him on a warrant of attorney for the larger amount.79 Salter had a remedy in equity in the colony for relief of a penalty. In England a statute of 1697 prohibited the provision of this term in warrants and in its place required the sheriff to summon a jury to decide the extent of the damages suffered by the creditor.80 If the debtor paid those damages and costs further proceedings were stayed. The statute did not apply to the colony, however, for it had no sheriff or jury system. Salter did not apply for equitable relief.

In contrast, some emancipists used the opportunity that warrants afforded to act fraudulently. The widow Elizabeth Powell borrowed money from the emancipist Anthony Best. After Elizabeth repaid the principal and interest Best obtained a judgment against her because she failed when discharging her debt to retrieve the warrant of attorney she had executed. When an execution against her was falsely initiated by Best she applied to the court to have the execution stayed

78 This was not an uncommon rate of interest. See MacDonald v. Levy (1833) 1 Legge 39; [1833] NSWSupC 47. 79 Riley v. Salter (1817) SR, SC judgment rolls 9/2211 #4. 80 8 & 9 W. III c. 11 s. 8 (1697).

142 and judgment set aside. Her application was granted.81 Best was in contempt of court for lodging fictitious proceedings. The Supreme (civil) Court had an inherent power to punish him for this reason, but did not proceed against him.82

Warrants of attorney were therefore a temporary salve for emancipists who participated in a court system that was becoming increasingly formalised. They offered emancipist creditors certainty at a time when the traditional forms of credit, promissory notes and bills of exchange, were so frequently dishonoured. By allowing their use in his court, Field facilitated commerce in the colony.

Commercial confidence

Both Field and Wylde were well aware of the need for the emancipist and free colonists who comprised the commercial classes of the colony to have confidence in the courts.83 Merchants relied on the courts for debt recovery. Simple debt, judgment debts and debts that arose on promissory notes and bills of exchange were financial obligations that arose in a society that from its inception had no monetary system.84 Whilst the effects of the closure of the courts were overstated, free colonists were short of capital by 1816.85 Emancipists whose credit had been lost on transportation often evaded debt and many only discharged their debts when it could not be avoided.86 In early colonial days convicts were imprisoned for debt.87 The need for their labour, however, led to an order that they were immune to imprisonment for debt.88 Imprisonment of other debtors was frequent with

81 English authority – Fell v. Riley ( 1775 ) 1 Cowper 281, 98 E.R. 1086 ( Court of King’s Bench ) ; Colonial application – Anthony Best v. Elizabeth Powell ( 1819 ) S.R., reference 9/2219 #187. 82 Sir John Comyns, A Digest of the Laws of England 4th ed. vol. 1 (London: T.N. Longman and O. Rees, 1800), 575. 83 Wylde and Field to Henry Goulburn, 5 April 1817, HRA, IV, I, 243. 84 S. J. Butlin, Foundations of the Australian Monetary System 1788–1851 (Melbourne: Melbourne University Press, 1953, reprinted Sydney University Press, 1968), 13. 85 Margaret J. E. Steven, ‘The Changing Pattern of Commerce in New South Wales, 1810–1821,’ Business Archives and History 3, no. 1(1963): 139. T. W. M. Winder wrote in 1820 of the disastrous state of commerce. 86 Field accused Simeon Lord for instance of never paying his debts if he could avoid it – see evidence of Field to Bigge, 1820, HRA, IV, I, 780. This harsh assessment was not correct. Lord was sued twice in 1818 and 1819, once in 1820 and 1823 other wise not at all. 87 Report from the Select Committee on Transportation (1812) paper 341, 43, evidence of W. Bligh, ‘I have known 6 or 8 or more debtors imprisoned at the same time’. 88 See chapter three p. 98.

143 more than twenty to thirty at the one time in gaol.89 Categories of persons such as sailors could not ‘be trusted beyond a shilling’.90 Evasion of debt by appealing against judgment debts to higher authority was still as ruinous to creditors in 1819 as it had been eight years previously.91 The number of debtors imprisoned remained constant during the closure of the courts. Judge Bent refused to hear applications for discharge.92 For all these reasons, evasion of debt was systemic in the colony.

Evasion of debts was further facilitated by the issuing of a bill of exchange in currency‐starved colonies, known as an accommodation note, when there were no funds to meet it. A bill of exchange circulated as currency until the drawer was called upon to honour it. Any party to it was liable for payment of it.93 Bills of exchange were endorsed many times before presentation and possible refusal of payment.94 If a colonist failed to pay on presentation of his bill or note for payment his credit was prejudiced. Often when word spread that a person had defaulted and recovery proceedings had commenced against him or her, one claim led to many.95

Finally, defaulting debtors could evade service of a summons for repayment of debt by hiding or leaving the colony. Port regulations were intended to defeat the escape of debtors by requiring persons intending to depart to advertise their intention to depart.96 No one was permitted to leave the colony without a certificate that they were not detained for debts, claims or demands. If a creditor was not aware of the departure of his debtor he stood to lose recovery of his debt.

It is in this last sphere that Field’s court again encouraged innovation. Colonial (professional) attornies had to develop strategies on behalf of their clients

89 Report from the Select Committee on Transportation (1812) paper 341, 63, evidence of J. Palmer. 90 Report from the Select Committee on the State of Gaols, &c., (1819) paper 579, 141, evidence of Richard Jones. 91 Ibid., 148. 92 Ibid., 435, Macquarie to J.H. Bent, 29 May 1815. 93 As an example see Frazier v. The President and Company of the Bank of New South Wales SR, Appeal cases 9/2234 #469; 2/8143 99‐130; 4/6604 57‐64. 94 The most I have discovered was eight endorsements – SR, SC judgment rolls Jones and Riley v. Laurie 9/2219 #190. 95 See for example the claims against Garnham Blaxcell who escaped to Batavia in 1817. Howe v. Blaxcell SR, SC cause papers 9/2251 #9; #31; Brooks v. Blaxcell 9/2251 #34. 96 SG, 6 February 1819, 1a. Regulation 42 ‐ for a full discussion of detains see Chapter Six.

144 to defeat absconding debtors. In the early months of taking office Field and Wylde entertained doubts whether persons could sue or be sued unless they were resident in the colony at least at the time the action commenced. They arrived at this view from an overly narrow reading of the Second Charter of Justice. They were aware, however, that this was a question of the utmost importance to the commercial classes and a different practice had prevailed. The objection had not been taken to parties not being resident at the time of commencement of suit but they anticipated the possibility. They received advice from the law officers of the Crown that the defendant should be resident in the colony at the time of the commencement of the suit but the plaintiff need not be.97

With the need to maintain commercial confidence in mind, and despite the advice of law officers, Field overcame his caution. He approved adaptation of the law to assist the needs of the colony and permitted suits to be conducted against defendants absent before and throughout the proceedings against them. These actions were taken under the Supreme (civil) Court’s jurisdiction in foreign attachment that had been conferred on the civil courts of the colony by the first two charters of justice.98

The power of proceeding against property of the defendant in the hands of another was unknown to the common law and was not available in the superior courts of England.99 Kercher does not mention domestic or foreign attachment in connection with the Civil Court of Judicature.100 Domestic attachment was a proceeding against a defendant present in the jurisdiction whose property was in the hands of another. The English attornies who came to the colony were familiar with its availability in the Admiralty Courts, the Courts of Requests and its use throughout Scotland where it was known as arrestment.101 An affidavit of debt was

97 Shepherd and Gifford to Bathurst, 13 May 1818, forwarded to Macquarie, 22 July 1818, HRA, I, IX, 820. 98 HRA, IV, I, 79, 85, 87. 99 1831–32 (239) Copy of the fourth report made to His Majesty by the commissioners appointed to inquire into the practice and proceedings of the superior courts of common law, evidence of J. G. Meymott, 115D. 100 Kercher, Debt, Seduction. 101 1831–32 (239) Copy of the fourth report made to His Majesty by the commissioners appointed to inquire into the practice and proceedings of the superior courts of common law, 82; for Courts of

145 sworn in England. In Scotland, attachment, or arrestment, was not founded on an affidavit of debt. In the colony the safeguard that the action be founded on an affidavit of debt was also adopted. Where the movements of the defendant could not be identified, the action could have been either domestic or foreign attachment.102 This assisted attornies acting for creditors where debtors could not easily be traced.

Foreign attachment was a remedy that was particularly valuable to the colony because it extended the reach of the court to persons and their property outside its territory. It was a summary remedy that assisted creditors who obtained judgment against debtors outside the jurisdiction. The remedy permitted creditors to proceed against the ‘Goods, Debts and Effects’ of debtors ‘in the Hands or Possession of other Persons’ resident in the colony.103

The conferral of foreign attachment jurisdiction supports the argument that colonial courts drew powers from various sources. Attachment procedure in the Supreme (civil) Court differed completely from the superior courts of England that followed the common law in always requiring the defendant to have notice of the proceedings against him.104 In the colony, foreign attachment actions proceeded in the defendant’s absence without actual notice to him. The procedure derived from the custom of the Mayor’s or Sheriff’s Court of London that relied on garnishment, ‘a statutory remedy unknown to the common law.’ The remedy relied on the existence of a garnishee, a person who held funds and who was ‘not interested in the ultimate disposition of [those] funds’. In garnishment proceedings the garnishee was warned of ‘the fact that … other parties … [had] an interest or right in the funds.’105

In the Mayor’s or Sheriff’s Court, if a plaint was entered against a defendant

Requests practice see William Hutton, Courts of Requests: their nature, utility and powers described, with a variety of cases determined in that of Birmingham (Birmingham: Knott and Lloyd, 1806), 127. 102 Kemp v. Jones, garnishee Birch, 20 October 1817, SR, SC cause papers, 9/2252 # 175. 103 Ibid. 104 Fisher v. Lane ( 1772 ) 3 Wilson, King’s Bench 297, 303 ; 95 E.R. 1065, 1068 (Lord Chief Justice ); Cavan and another v. Stewart (1816) 1 Starkie 525; 171 E.R. 551 (Lord Ellenborough CJKB) citing Buchanan v. Rucker (1807) 1 Campbell’s Reports 63; 170 E.R. 877 (Lord Ellenborough CJKB) 105 Philip I. Beane, ‘The Garnishee – A Historical Background,’ Commercial Law Journal 73 (February, 1968): 42.

146 A, who could not be found, and the plaintiff suggested that another person B (the garnishee) within the confines of London was indebted to A, then B was warned that the debt would be attached in his hands. In practice, proceedings in civil execution would commence against B to recover his debt to A for the benefit of the plaintiff if B did not deny the existence of the debt..106

The plaintiff in foreign attachment commenced by filing a summons alleging that A was indebted to him. A court official went through the fiction of attempting service on A of a summons. He called A’s name outside the court on four separate days. If A did not answer and the plaintiff suggested that the garnishee B was indebted to A, the plaintiff was then permitted to proceed against B. The plaintiff applied to the court for a writ of scire facias that was served on B who was informed that he was required to show cause why the plaintiff should not have the advantage of the record that by now comprised the plaintiff’s claim against A and the attempts to serve him.107 The plaintiff was given judgment once conditions were satisfied. B had to acknowledge his debt to A, the plaintiff had to swear A’s debt was due to him and the plaintiff found persons (pledges) who gave security that they would make good any obligation that the plaintiff undertook to return the money attached if A disproved the debt in a year and a day. The plaintiff then proceeded against B by attachment, that is, by way of civil execution.

By 1817 procedure in foreign attachment had been simplified. No longer was it relevant where A’s debt to the plaintiff arose. The debt followed the debtor and if attempts had been made to serve A in a given jurisdiction it was assumed his debt was within that jurisdiction. The essence of the remedy was to compel A to appear and disprove his liability to the plaintiff.108 Field made no rules regulating the practice of foreign attachment in his court and it was left to the attornies to devise their pleadings. Foreign attachment had de facto force and was eventually formalised by colonial legislation in 1840.109

106 Seizure of his goods and if their value was insufficient to satisfy a judgment debt, his arrest and imprisonment until the debt was satisfied. 107 Thomas Blount, A law–dictionary and glossary (London: D. Browne and others, 1717) literally ‘Let him know’. 108 Andrews v. Sir Robert Clerke (1689) Carthew 25, 26 ; 90 E.R. 619, 620. 109 Sir George Gipps to Lord John Russell, 18 August 1840, HRA, I, XX, 764.

147

Foreign attachment permitted action against an absent defendant. Domestic attachment was an extension of foreign attachment developed by colonial attornies. It permitted attachment against the garnishee B even when the defendant A was present in the colony. Domestic attachment did not develop from Karsten’s customary sources of law nor was it an order or proclamation of the governor.110 It was an important jurisdictional innovation devised by colonial attornies with Field’s approval to assist trade and commerce.

Unlike foreign attachment, in domestic attachment the defendant was resident at the commencement of the proceedings. If attempts to serve him were unsuccessful, the court permitted attachment proceedings to commence against a garnishee. The court issued a scire facias and the garnishee was warned of the outcome if he did not deny that he held property of the defendant or owed him money. This mechanism was particularly useful in the colony, where a defendant may have left the colony, or merely moved to one of its distant peripheries.

The twin proceedings in attachment were great facilitators of trade in a distant colonial court. Should a debtor conceal property with a garnishee, the creditor had a remedy. This gave comfort to those trading and investing in the colony by minimising the risk of losing their capital. Merchants in London knew that if their debtors absconded from the colony, their assets in the colony provided a form of security, even if they were in someone else’s care. Debtors were more likely to be wary of encumbering themselves with unmanageable debt. If they were forced to make a hurried departure from the colony it was difficult to remove their assets from the colony immediately. This was so chiefly because men of business were likely to be creditors themselves. If the defendant/debtor left the colony without first recovering their monies owed to them, their creditors could recover. They simply had to attach the debts owed to the fleeing defendant/debtor.

In practice, the distinction between domestic and foreign attachment was ignored in the colony. The flight of Garnham Blaxcell from the colony to Batavia in 1817 to escape his creditors and the movements of the Van Diemen’s Land trader

110 Peter Karsten, Between Law and Custom (Cambridge: Cambridge University Press, 2002), 3.

148 Rowland Loane in and out of the colony, were examples of the garnishment in the colony of property of defendants in others’ hands.111 Goods of the profligate Lieutenant Governor of Van Diemen’s Land, Thomas Davey were seized whilst he was present in the colony as were Rowland Loane’s.112

Because service on the defendant was not essential, colonial creditors could utilise the remedy not only against fleeing debtors but against deceased debtors. Foreign attachment proceedings were commenced in the Supreme (civil) Court against former governor William Bligh the year after his decease, Richard Atkins, the former Judge Advocate who had departed the colony in 1810 and this life in London in 1820, and the executors of the late governor Philip Gidley King.113 After the flurry of activity following Blaxcell’s escape the use of foreign attachment lessened. Of the many actions commenced, only three were prosecuted to judgment probably because of settlement, or perhaps due to the difficulty of proving ownership of assets alleged to be in the hands of the garnishee.114 In all, 1817 was the busiest year for these actions when nine actions were commenced. In following years, fourteen were filed. As proof of the usefulness in the colony of attachment of debtors, their merit appealed to the attorney who sought their use throughout the whole of England in a petition to the commissioners appointed to inquire into the practice and proceedings of the Superior Courts of Common

111 Blaxcell escaped to Batavia 9 April 1817 and died there later that year – E. W. Dunlop, 'Blaxcell, Garnham (1778–1817)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/blaxcell‐garnham‐ 1794/text2029, accessed 15 December 2012. Representative of the many suits in foreign attachment filed in the Supreme Court were Terry v. Blaxcell, garnishees Sir John Jamison, John Harris and Simeon Lord, SR, SC cause papers, 9/2252 #124; Moore v. Blaxcell, garnishee John Harris, SR, S.C. cause papers, 9/2252 #125. 112 Sindrey v. Davey, plaint and award of attachment filed 30 May 1817, Allan garnishee, SR, SC cause papers, 9/2251 #104; Townson v. Loane, garnishees, Jenkins, Lowe and Birch, 1 May 1817, SR, SC cause papers, 9/2213 #43. 113 For the death of Atkins see – J. M. Bennett, 'Atkins, Richard (1745–1820)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http:// adb.anu.edu.au/biography/atkins‐richard‐1723/text23945, accessed 8 February 2013; John Pennington v. William Bligh, plaint filed 8 June, 1818 SR, SC cause papers, 9/2253 #285, probably as a prelude to moving against a garnishee if and when assets were located, amount in dispute £200; Simeon Lord v. Richard Atkins, garnishee John Thomas Campbell ordered to appear 20 May 1817, SR, SC cause papers 9/2251 #50, amount in dispute £614; John Palmer. v Ann Josepha King and Barnard Cobbe, plaint filed 30 June 1817, SR, SC cause papers, 9/2252 #130, amount in dispute £190. 114 See Appendix A.

149 Law.115 The combination of enterprising attorneys and a co‐operative judge gave the colony a remedy that was not available in England. The certainty of debt recovery was thus assisted in a colony of vice.

Statute of Limitations

Field was sympathetic to the problems colonists faced from the distances of the court from the various settlements in the colony, and also the closure of the courts for an extended period under J. H. Bent. For both reasons, many actions for debt fell foul of the English Statute of Limitations that required them to be brought within six years of their arising. He showed a willingness to assist creditors to escape the rigours of this statutory bar.116 While he contended that the statute did apply in the colony, he applied it flexibly on the grounds of the three‐year closure of the civil court. In this way he acted to relieve hardship arising from strict adherence to form. However, his flexibility had its limits. While Field made allowances for the crisis caused by J. H. Bent in New South Wales, he did not resolve the larger problem of applying the statute to debt in the colonies. When a debtor defaulted on repayment in the colonies, English merchants expended much of the six years allowed by the statute for suit in locating the debtor and proving the existence of the debt.

The facts in Field’s first incursion into the Statute of Limitations concerned the English endorsees of a bill of exchange of 1808 drawn on Sydney merchants. The endorsee creditors were liable to be out of time to sue their debtors because of the closure of the Supreme Court under Judge Bent. Garling was instructed to act for the creditors before the claim became statute barred. He approached J. H. Bent explaining his client’s predicament. Bent authorised the filing of plaints but ordered them to be rejected a few days later. When Field arrived, the claims were

115 Copy of the second report made to His Majesty by the commissioners appointed to inquire into the practice and proceedings of the Superior Courts of Common Law, 1830, paper 123, Appendix B, 78; Judgment in the colony recovered against a garnishee in Richard Brooks v. Rowland Walpole Loane and Edward Smith Hall, Robert Jenkins, garnishee, plaint filed 25 March 1817, S.R. SC judgment rolls, 9/2211 #14; John Townson v. Rowland Walpole Loane, garnishees Robert Jenkins, Robert Lowe and Thomas Birch, plaint filed 1 May 1817, S.R., SC judgment rolls, 9/2213 #43. 116 21 Jac. I c. 16 s. 3 (1623); Mitchell v. Walford (1821) NSWKR 5.

150 in theory barred because they were filed too late. More than six years had elapsed after the cause of action arose by the time Field opened his court. Garling swore that Bent accepted the claim before its expiry but then rejected it. Field revived the claims by ordering that the plaints be restored to the file of the court as of a date prior to their expiration.117 There is no record of the action having then been litigated.

In a judgment on the application of the Statute of Limitations to the colony, Field was asked to find for the plaintiff Mitchell on a deed of 1807 made on Norfolk Island. It was an assignment to Mitchell of the defendant Walford’s real and personal property as security for the payment of monies advanced to him. The court held that the assignment was ineffective because the acknowledgment of debt was only in recital and did not contain covenants to repay it. If the document was a valid debt on a bond, the Statute of Limitations did not bar the plaintiff’s claim because, in this instance, it allowed a period of 20 years to pass before the debt was barred.118 The document was clearly not a debt on a bond with the result that the plaintiff’s claim should have been barred by the six‐year rule. The defendant had borrowed the money and if the court did not assist the plaintiff the defendant would escape his obligation to repay it.

Once again Field avoided having to rule on the applicability of the Statute of Limitations to the colony. He found a way to assist by ruling that the recitals of the deed were a valid acknowledgement of the existence of the debt. Although more than six years had passed since the date of the deed, Field held, as he had done in the first case discussed above, that the debt was not statute‐barred because there was no jurisdiction to try the action from 1815 to 1817 and it had been brought as soon as the court made a circuit to Van Diemen’s Land.119 As a result, Mitchell did not get the security intended of a transfer of all of Walford’s property, but he could attempt to recover the sum owed to him. This and the previous case are instances of Field’s ability to be flexible and not be bound by adherence to the Statute of

117 Steven and others v. Underwood SR, SC cause papers 9/2251 #1. 118 Tidd, King’s Bench Practice, 1803, 19. 119 Mitchell v. Walford ( 1821 ) NSWKR 5.

151 Limitations that would have barred the claims as being brought more than six years after the debt was incurred.

A number of actions in which it could have been argued that the causes were statute‐barred had they been commenced in England were lodged each year after the court was founded. In 1817, of the eleven filed, none went to judgment. In 1818, of the eight commenced, only one went to judgment and resulted in a verdict for the defendant.120 The plaintiff appealed to the governor in the colony’s appeal process where he failed again, then the Privy Council affirmed the prior decisions. The reasons for Field’s decision in the Supreme (civil) Court did not refer to the Statute of Limitations. The defendant argued that the plaintiff was not the holder of the bills of exchange on which the case centred, that the governor had correctly decided not to receive fresh evidence and that the plaintiff’s account of the balance due between the parties, was incorrect. All these arguments were upheld.121 In 1819, of ten actions commenced on grounds arising more than six years before the date of filing, three judgments were awarded to the plaintiff, four were not adjudicated, two were awarded judgment on warrants of attorney and one on a cognovit.

Field’s decisions in cases on the Statute of Limitations turned on the plaintiff being unable to sue in the period allowed because of the closure of the court. He demonstrated a willingness not to be deterred by matters of form and was prepared to act decisively to remedy hardship. His decisions maintained confidence in the court that it would give certainty to business relations.

Animal trespass

Field’s innovation in commercial law worked fairly neutrally to benefit commerce in the colony. However some of his legal opinions clearly harmed the emancipists’ cause. This was most clearly apparent in his intervention in animal trespass cases,

120 Robert Campbell the elder v. William Cox, plaint filed 6 June 1818 on dealings from 25 March 1801 SR, SC judgment rolls, 9/2240 #595. 121 Campbell v. Cox – Printed Cases in Indian and Colonial Appeals Heard in 1828 Part I 445‐465; Unreported Judicial Decisions of the Privy Council, on Appeal from the Australian Colonies before 1850, 9 February 1828 – published by the Division of Law, Macquarie University, Sydney.

152 and related to the severe damage emancipists suffered when animals trespassed on their crops. Poor farmers (most of them emancipists) could not afford to fence out their neighbours’ animals nor were they obliged to do so under the common law in order to claim damages. Field supported Macquarie’s proclamation that altered the common law. It ordered that emancipists could no longer claim compensation for damage from trespassing animals unless they fenced them out.

Most emancipists became settlers in the first decades of the colony.122 They began farming with very limited means. Most borrowed on their land or sold out to creditors. Bigge found that by 1819 only 301 free persons out of 15,432 resided on their own land.123 As Higginbotham has shown, in the 1828 census ‘the concentration of the tenure of land and stock [was] in the hands of a tiny proportion of the population.’124 This finding agrees with the surprisingly small listing by 1817 of those colonists who tendered meat and grain to the Commissariat Store.125

As small, struggling farmers, emancipists were particularly susceptible to damage done by trespassing animals. Animal trespass had blighted farmers since the colony’s founding and the common law position that animal owners were liable for damage caused by unfenced animals was restated in early colonial ordinances. This was quite different from the situation in early American colonies, where colonial legislation required crops to be fenced in.126 In New South Wales it will be seen that on the subject of cattle trespass the common law divided society. Grain was more important than cattle to colonial food supply. For a considerable time after Macquarie’s arrival in 1810 there was such a great scarcity of wheat that it

122 Bigge, I, 140. 123 John Ritchie, Punishment and Profit (Melbourne: William Heinemann Australia Ltd., 1970), 172– 3; for the number of free persons see N. G. Butlin, Colonial Statistics Before 1850 (Canberra: Australian National University, 1986), 5. 124 Edward Higginbotham, ‘The 1828 Census and the Analysis of Rural Settlement in New South Wales,’ Australasian Historical Archaeology 11, (1993): 56. 125 See for example, SG, 30 November 1806, supplement, 1: 10 December 1814, 1d; 15 March 1817 1a. 126 William Cronon, Changes in the land: Indians, colonists, and the ecology of New England (New York: Hill and Wang, a division of Farrar, Straus and Giroux, first revised edition 2003 ), 134; for the earliest relevant colonial ordinance, see New South Wales Pocket Almanack and Colonial Remembrancer 1806 (Sydney: The Trustees of the Public Library of New South Wales, 1966) 48‐9.

153 had to be relieved by importation from Bengal.127 The farmer whose crops were damaged could drive the animals to a pound. To obtain their release their owner had to pay heavy fees (poundage) to the pound‐master. This was a deterrent but did not compensate farmers for the damage done. Emancipist small holders were particularly susceptible to damage by animals.

In England the remedy of replevin evolved to achieve justice between the parties in these cases. The injured farmer could detain the trespassing animals as a pledge against the payment of compensation for damages. The owner of the animals could replevy by applying orally to the sheriff for their return. In place of his animals, their owner substituted two ‘gages and pledges’, persons of substance who accepted liability to pay for the damage caused by the trespassing cattle if their owner was found liable.

Replevin did not appear as a cause of action in the Court of Civil Jurisdiction.128 Macquarie’s 1811 solution to protect farmers was to order that stray cattle be impounded. By setting very high pound charges ‘as a kind of protecting law’, the governor hoped that, in order to minimise their losses, stockowners would fence in their cattle. And indeed, they began to fence in their stock and called for pound charges to be reduced.129 This system produced a number of abuses, however. Because at common law, farmers were not obliged to fence out trespassing cattle to be in a position to claim damages, profiteers drove cattle from unfenced public lands onto private unfenced property.130 When cattle were impounded, inflated claims for damage were then made against the government.131 Stockmen and farmers colluded to receive the fines paid to informers.132 Without the obligation to fence, settlers were profiting at public

127 Bigge, III, 20. 128 Kercher Debt, Seduction, Tables 4.2, 4.3, 96. 129 J. T. Campbell to Thomas Moore, Magistrate, Liverpool 25 November 1819, SR, reel 6007, 4/3501, 78; there is a discrepancy between the opinion of Campbell and Bigge who wrote of the districts of Richmond and Windsor ‘the fields are without fences’ – quoted by John Pickard, ‘The First Fences: Fencing the Colony of New South Wales, 1788–1823,’ Agricultural History 73, no. 1(1999): 64. 130 SR, reel 6039, SZ 756, 309‐10; see also SG, 22 April 1820, 1a. 131 John Pickard, ‘Trespass, common law, government regulations, and fences in colonial New South Wales, 1788–1828,’ Journal of the Royal Australian Historical Society 84, no. 2 (1998): 135. 132 Report of Wylde to Macquarie, 23 October 1818, SR, reel 6046, 4/1738 200; see New South Wales Pocket Almanack, 1806, 49.

154 expense.

In 1818 Macquarie sought legal advice on the problem of fraud in animal trespass from his magistrates.133 After several meetings they proposed that they be given the power to hear claims and estimate damages up to £5. If a party was dissatisfied with their ruling he or she could appeal to the superior courts. Their stock would be returned to them on giving security to pursue their appeal and satisfy any adverse verdict by the adaptation of replevin bonds found in an English statute that replaced ‘gages and pledges’.134

Magistrates were adamant that damage should not be allowed if lands remained unfenced.135 They were aware of the burden this imposed on poor farmers as they acknowledged that ‘in the present state and means of the colony’ it was impossible for proprietors to enclose all cultivated land. Their approach advantaged themselves for they were primarily graziers and were more likely to have to pay compensation under the old scheme.136 Macquarie now acted responsibly to create certainty and reduce fraud. But his actions were uncharacteristically anti‐emancipist. He accepted the magistrates’ advice and intervened on the side of the wealthier colonists. He composed the order published in the Gazette on 15 April 1820. It reversed the common law by ordering that no compensation was payable for animal trespass unless farmers fenced their lands. This together with reduced pound charges defeated those profiting from animal trespass.137 If it were to be conceded that the governor was provided with a power to legislate for the colony, it could be argued in defence of his proclamation that the common law on fencing was not applicable to the colony because fencing was

133 SG, 10 October 1818, 1a. 134 Advice of magistrates – the judges were included in their capacity as magistrates. Field took no part but Wylde reported to Macquarie, 23 October 1818 –SR, reel 6046, 4/1738, 203; English statute –11 Geo. II c. 19 s. 23 (1738). This statute empowered the sheriff to take bonds ‘in every replevin of a distress for rent’, James John Wilkinson, The Practice in the Action of Replevin (Philadelphia: J. S. Littell, 1834), 5. 135 Reel 6047, 4/1741, 3, 10, 21 Report of Wylde to Macquarie, 23 October 1818, SR, reel 6046, 4/1738, 204; 136 See payments made by the Commissariat for meat in the Sydney Gazette, 2 October 1819, 1a. 137 SG, 15 April 1820, 1a; John Pickard, ‘Post and Rail Fences,’ Agricultural History 79, no. 1 (2005): 29, argues that settlers preferred a post and rail fence because ‘it was relatively cheap, stock‐proof, used available material, and would last at least twenty years.’

155 expensive and very few could afford it.138 Those landowners who were too poor to fence out their neighbours’ trespassing cattle suffered as a result of the governor’s order. Whether their neighbour inadvertently allowed cattle to stray on their land thereby causing damage or wilfully drove cattle on it their claims were thereby excluded.139

Macquarie’s order was published only days after Field had vanquished Eagar in the Governor’s Court. Field was now hostile to the emancipist cause. He had played no part in the magistrates’ meetings on trespass. Upon reading the order, Field spurned the opportunity to advocate the emancipist cause and made a political issue out of animal trespass. He fully supported the governor’s action against emancipists. He fulfilled any duty he had to advise the governor on the law by pointing out to him privately that his order was contrary to the common law.140 Bennett wrongly credits the governor with agreeing ‘to immediate rescission of his proclamation changing the common law on fencing following representations made by Field.’141 After Macquarie received Field’s private advice that his proclamation was contrary to the common law he did not rescind his proclamation. Political feeling motivated Field’s public support of the governor. Previously he had not shirked from opposing the governor when he believed his actions to be illegal.142

Macquarie ordered that his proclamation of 15 April be reprinted with Field’s proclamation that was published as a Government Order on 22 April.143 Field’s proclamation justified Macquarie’s earlier order by reciting the grievous harassment of the stock proprietors of the colony by the impounding of their cattle. It then elaborated on the public good that would come if trespasses and

138 SG, 15 April 1820, 1a; T. G. Parsons, ‘Governor Macquarie and the Economic Crisis in New South Wales, 1810–1815,’ New Zealand Journal of History 2, no. 2 (1968): 190‐1, confirms Macquarie’s assessment that on inspections in 1810 and 1815 there was little fencing being done. 139 Blackstone, Commentaries, Book III, ch. 12, 211. 140 Oral examination of Field by Bigge, 1820, ‘F no 8’, HRA, IV, I, 779. 141 J. M. Bennett, ‘Day of Retribution – Commissioner Bigge’s Inquiries in Colonial New South Wales,’ American Journal of Legal History 15, no. 1 (1971) 90, 104–5. 142 Shepherd and Gifford to Bathurst, 15 February 1819, HRA, IV, I, 330. Field had advised that the governor’s actions to recover unpaid port duties were illegal and that he would have to rule against him. 143 SG, 22 April 1820, 1a.

156 distresses were more frequently tried and determined in the ‘respective Courts of Judicature’ of the colony. Bigge agreed with Field that the governor’s order remained in force notwithstanding its deviation from the common law.144 Macquarie’s and Field’s proclamations reappeared on 29 April.145

Here Field was acting in the interests of substantial landholders – including himself – by his approval of the governor’s orders. Macquarie had granted Field 2,000 acres of land and assisted him with an advance of government cattle.146 We saw in Chapter Two that Field was an associate of the exclusivists in the Parramatta Party by 1820, and, by the time the proclamation was drafted, he had commenced his long dispute with Edward Eagar. The proclamation should arguably be read as a symbol of Field’s new antipathy to emancipists. As a result Eagar’s campaign on behalf of emancipists intensified.

Participation in litigation

Convicts transported to the colony did not wait to be emancipated before engaging in trade and commerce.147 In strict legal theory attaint did not remove their ability to contract, only the right to sue.148 The grant of a ticket of leave allowed convicts the freedom to compete as they wished in all lawful activity. In fact, the holder was expected to contract for his or her labour in order to lessen the cost of the Crown in maintenance. In the analysis of litigants that follows, the few ticket of leave holders who litigated in the Supreme (civil) Court are included with emancipists.

144 Bigge, II, 47. 145 SG, 29 April 1820, 1a‐b. 146 L.P.I. Grants of land, town grants and leases. 1810–1819 Book 2//6 #163; ML CY 301, A773, 99, Governor’s diary. Field called his grant Hinchinbrook perpetuating in Australia his Cromwellian connections. Hinchinbrook was the fruitful nunnery granted by Henry VIII to Sir Richard Cromwell see Antonia Fraser, Cromwell, Our Chief of Men (London: Methuen Ltd., 1985), 11. 147 See Bruce Kercher, Debt, Seduction, and other disasters (Sydney: The Federation Press, 1996), 51, for an account of convict commercial activity in various settlements. 148 ‘M.C.B.’, ‘Comment on Recent Cases – Civil Death: Capacity of a Convict to Contract,’ California Law Review 2, (1913–4): 401. A statute to annul civil rights of a convict did not expunge a right to contract for legal services and pay for those services by giving a promissory note secured by a mortgage; Anonymous, ‘The Right of a Convict to Contract,’ Columbia Law Review 5, (1905): 468. The author concludes that the ‘right to contract would seem to survive’. Bruce Kercher refers to ‘obtaining a magistrate’s approval for entry into a contract’, see ‘Perish or Prosper; The Law and Convict Transportation in the British Empire, 1700–1850,’ Law and History Review 21, no.3 (2003): 535, 537.

157 Ticket of leave holders joined emancipists in the competition with officers that had commenced before 1800.149 Under the social rules of the day it was acceptable for officers to be merchants but not retailers. There were no such social restrictions on emancipists. Neal and Hainsworth argue that emancipists controlled commerce in the era of the Civil Court.150 However, the preponderance of free suitors both as plaintiffs and defendants suggests that by 1817 the free dominated trade and commerce. Emancipists no longer predominated in commerce but were a significant part of commercial activity.

The competition between emancipist and free in trade and commerce is evident in the following analysis of the surviving records of the Supreme (civil) Court. In many cases identification of the litigants as either emancipist or free is uncertain. Appendix A records the decisions I made on the evidence available. The information that resulted is called the participation rate.

Table 4 – Analysis of 206 summons filed in the first year of the functioning of the Supreme (civil) Court.151 1817 Suitors Filings Participation Rate Free Plaintiffs 125 60.68% Emancipist Plaintiffs 81 39.32% Total plaintiffs 206 100% Free Defendants 141 68.45% Emancipist Defendants 65 31.55% Total defendants 206 100%

The participation rate of free and emancipists for 1817 can be contrasted with the percentage of free and emancipist settlers in the population, designated as the representation rate. As representation rates are only known with precision for

149 D. R. Hainsworth, Sydney Traders (Carlton, Victoria: Melbourne University Press, 1981), 36. 150 David Neal, The Rule of Law in a penal colony: law and power in early New South Wales (Cambridge, U.K.: Cambridge University Press, 1991), 19; Hainsworth, Sydney Traders, 35, The Emancipist Emerges. 151 ‘Emancipist’ includes any person transported to the colony.

158 1820, the 1820 figures are used to approximate the representation rates for 1817. The representation rates for 1820 are drawn from the information supplied to Commissioner Bigge in Table 5.152

Table 5 Representation rates for free settlers and emancipists in New South Wales and Van Diemen’s Land for 1820. Emancipists (expirees and 4,969 remitted convicts) Came free 2,021 Total population 29,407 Emancipists (expirees and 16.89% remitted convicts) Came free 6.87%

Both the rates of exclusivist and emancipist participation in litigation for 1817 were far greater than their representation rate in the colony. John Macarthur’s allegation that ‘the Convict gentry’ was litigious can also be applied to exclusivists.153 He may have made this remark when considering the participation of convicts in the Governor’s and magistrates’ courts. Those figures are not available for comparison. A further set of figures drawn up for Commissioner Bigge suggests that Macarthur’s observation was incorrect. From the opening of the Supreme (civil) Court in 1817 to the end of 1820, 616 persons sued. Of these, 196 were emancipists and only six were still convicts.154 These 202 persons averaged 32.79% of the plaintiffs in the period 1817–1820. This is lower than the percentage (39.32%) of emancipist plaintiffs found in Table 4. Emancipist plaintiff participation therefore was high in 1817 but declined thereafter as seen in Table 6 (below). When the number of emancipist plaintiff suits in 1817 is adjusted by reducing the number of suits filed by the four most litigious emancipist plaintiffs to

152 Bigge, I 1,40; III, 80. 153 John Macarthur senior to John Macarthur junior, 20 February 1820, Sibella Macarthur Onslow, ed. Some Early Records of the Macarthurs of Camden ( Sydney: Rigby Limited, 1973), 339. 154 TNA (PRO), reel 114, CO 201/125 651.

159 two suits each the emancipist participation rate would drop to 22.36%.155 This participation rate is still greater than the estimated emancipist representation rate of 16.89% (Table 5).

Table 6 indicates that fewer emancipists defaulted on their obligations in debt than free and the amount of their debt was less than the debt of the free. When considering emancipists as defendants only two in 1817 featured regularly. Crossley and Surgeon Redfern were sued in four suits each, Redfern as the executor of a deceased estate.156 Two emancipists were sued three times, ten were sued twice, the remainder were sued only once. In 1817 far more emancipists were defendants (31.56%: Table 6) than the adjusted figure for emancipist plaintiffs of 22.36%.

It can be seen from Table 6 (see next page) that the total sum sued for in 1817 was £130,754. Table 4 demonstrates that 60.68% of plaintiffs were free. Therefore free plaintiffs could have been expected to sue for 60.68% of £130, 754 or £79,342. In fact, they sued for £104,305 an over‐plus of 31%. Overall the free controlled the flow of capital by 1817. A few free litigants in 1817 dominated trade and commerce. Their participation rate as plaintiffs (60.68%: Table 4) was far greater than their representation (6.87%: Table 5) in the colony. In 1817 emancipists were in a greater state of indebtedness to free colonists than to their fellow emancipists. Emancipists sued the free for a greater sum than the sum for which they sued their fellow emancipists. Emancipists were significant participants in trade and commerce both among themselves and with the free.

Emancipists were significant participants in trade and the economy of the colony. Trade between emancipists and the free was commonplace by 1817. In that year emancipists who were trading more with the free sued the free more frequently. Field’s policy in 1818 induced greater participation in trade and commerce by emancipists. Knowing they might seek the court’s aid to assist in recovery of their debts, emancipists were emboldened to borrow from free

155 Crossley filed 13, a reduction of 11. Howe filed 15, a reduction of 13. Lord filed 3, a reduction of 1. Terry filed 21, a reduction of 19. Chartres filed 3, a reduction of 1. Total reductions, 45. Total convict filings therefore become 81‐45=36. Total filings are reduced to 206‐45=161. 36/161=22.36%. 156 Estate of the late William Hobart Mansel.

160 colonists and venture into trade. Emancipist participation in litigation, particularly as defendants in the period 1818–1823, was greater than their representation in the colony.157 Trade was affected by colonial politics. The reason, explained in greater detail in the following chapter, was that the judges of the colony ruled that convicts emancipated by the governor were unable to sue. Before class conflict reached the heights of 1820–1 that was brought about by this inability the classes traded with each other.

Table 6 – Internecine nature of litigation in the years 1817–1819 (before the colonial crisis of 1821) Free Free Emancipist Emancipist Total v v v v Free Emancipist Free Emancipist 1817 87 38 54 27 206 Number 42.23% 18.45% 26.21% 13.11% of suits Quantum 54,013158 50,292 21,094 5,355 130,754 of suits £ 41.31% 38.46% 16.13% 4.10%

1818 65 31 26 31 153 Suits 42.48% 20.26% 17.00% 20.26% £ 48,713 8,876 11,578 2,736 71,903 67.75% 12.34% 16.10% 3.81%

1819 55 63 38 24 180 Suits 30.56% 35.0% 21.11% 13.33% £ 27,250 13,307 29,938 16,166 86,661 31.44% 15.36% 34.55% 18.65%

157 See table 5, chapter 6, at p. 159, and table 2, chapter 6, at p. 192. 158 This figure includes suits taken out by the governor for £7,400 for penalties under Port Regulations.

161 Conclusion

The early interaction between emancipists and the free in trade and commerce was maintained throughout the duration of Field’s Supreme (civil) Court. Accordingly the court played an important part in the commercial life of the colony. Field’s policies favoured mechanisms that fostered certainty in commercial situations by facilitating the recovery of debts. However, as free settlers tended to be creditors, these innovations favoured the free more than emancipists. The free dominated credit transactions concerning which they were in the minority as defendants. Debtor default was mostly emancipist, but defaulting debtors of all classes were disciplined through use of the powers of the court.

While innovative pleading only indirectly favoured the free, Field’s advice to the governor on replevin was an ominous sign of his shift to intolerance of the emancipist interest. In the following chapters we see that Field’s conflict with Eagar led to the judge’s abandonment of impartiality and the adoption of harsher attitudes to emancipists that tended to close the court to the needy. Once Field became aware of the low standards of commercial morality of many emancipists his sympathies for emancipists turned to antipathy. The needy were even more disadvantaged when the effects of the struggle between Field and Eagar impacted on the colony.

162 CHAPTER FIVE

Eagar’s challenge to Judge Field

This chapter demonstrates the importance of the court as a theatre of colonial politics. Using Eagar and Smith Hall’s attack on Field as a case study, I will show that judges were vulnerable to public criticism by a politically motivated attack on their administration of the court. Following Edward Eagar’s disbarment from legal practice he channelled his prodigious energies into becoming predominant in the politics of the colony. With first hand knowledge of the widespread dissatisfaction with court rules and procedures that resulted in increased cost of litigation, he sought to democratise the courts. He acted first through the Bigge Commission, then used the court as a public forum for his growing personal dispute with Field. Eagar’s activism had the potential to bring about much bigger and more important political issues in the colony. As a result the courts became a tremendously important site of political challenge in which an acute crisis in the legal life of the colony developed. This series of political disputes, in short, demonstrates the significance of the Supreme Court of Civil Judicature, and, more importantly, of its judge, in the economic, social and political life of the colony of New South Wales.

Edward Eagar

McLachlan has provided an account of Eagar’s early life.1 Transported in 1811 after his death sentence for uttering a forged bill was reprieved, Macquarie ‘conditionally pardoned’ him two years later. His unbounded energies and abilities soon brought him to notice. His legal business took off. Now eligible to act as a legal agent from Henry Marr’s building in Castlereagh Street, Sydney, Eagar accrued clients in Calcutta, the Cape of Good Hope, London and the colony who

1 Noel McLachlan, ‘Edward Eagar (1787–1866): A Colonial Spokesman in Sydney and London,’ Historical Studies: Australia and New Zealand 10:40 (1963) 431–456.

163 gave him upwards of 150 powers of attorney to conduct their affairs.2 Accordingly, Eagar was severely affected by Judge Bent’s refusal to admit emancipist attornies to court in 1815; he stood to lose the court fees for which he had become responsible and an income amounting to nearly £1,000 yearly.3 In 1815 he had about a hundred causes in the prior Civil Court waiting satisfaction of judgment and 25 causes commenced but waiting to be transferred to the Supreme (civil) Court.4

As noted in Chapter Three, the reforms of the Second Charter of Justice had created uncertainty for emancipist attornies. Once the founding Civil Court was abolished in August 1814 the courts did not function until Ellis Bent opened the Governor’s Court the following May and permitted emancipist attornies to act again as legal agents.5 Although Garling, who had become judge advocate after Ellis Bent’s death, admitted emancipists to the Governor’s Court at the beginning of 1816, Eagar could not force his way into Judge Bent’s court even with the governor’s assistance.

Eagar was thus forced to forsake the law and invest his energies in the commercial life of the colony. He became an important player in a number of spheres of colonial policy – including some spearheaded by exclusivists. He opened retail premises in Sydney, as emancipists were not stigmatised for keeping shop, he purchased the office of Deputy Provost Marshal and subscribed to Frederick Fisher’s offer of £5 shares in a papermaking mill (an investment taken up by a mix of the free and unfree).6

The founding of the Bank of New South Wales in 1817 was a make or break opportunity in Eagar’s hopes to enter exclusivist commercial circles. He had sufficient capital and public confidence to become the largest shareholder in the

2 SG, 30 October 1813, 1b. 3 A fee was payable on the filing of every document in court. An attorney ran an account that he was required to settle each month. See Amos’ financial difficulties discussed in chapter three. 4 Petition of Edward Eagar, 11 April 1815, HRA, I, VIII, 493. 5 See chapter three. 6 Eagar advertised for sale in O’Connell Street, Sydney, a range of general merchandise, SG, 15 July 1815, 2d; Gore v Eagar (1818) SR, SC cause papers 9/2253 #261; Carol Mills, ‘Frederick Fisher's materialisation in Australia: convict, papermaker, murder victim and ghost.’ [online] Margin (Canberra, ACT), no. 72, (July‐Aug 2007): 14.

164 Bank.7 At the outset, in company with other emancipists he was appointed to the committee that drew up its rules and regulations.8 His nomination for office as a director of the Bank was rejected, however. This was so notwithstanding that he complied with the requirement for office by being ‘absolutely and unconditionally free’ once Macquarie obligingly granted him an ‘absolute pardon’. Eagar’s ambition was not realised because of the high standards the Bank set for its officers. Only persons of the highest moral probity were accepted and Eagar’s offence told against him. He was one of Sandra Blair’s white‐collar criminals who were the fraudsters of the age.9 He had been sentenced to hang for a financial peculation – hardly a good commendation for the director of a bank. However, another emancipist, Dr. Redfern, whose crime was his part in the mutiny at the Nore was elected to the board.10 Newspaper man, Edward Smith Hall was appointed cashier and secretary of the Bank when it invited applications for the position from ‘persons of good character’. He had come under the favourable notice of William Wilberforce who recommended his application to migrate to the colony.11 Smith Hall arrived a few months after Eagar with references that were a better recommendation for appointment to the board of directors of a bank than Eagar’s sentence for dubious investments.12

Eagar did not achieve political prominence until Sir John Jamison called a meeting to formulate demands for democratic government in January 1819.13 Eagar was appointed secretary of the meeting. The committee that was formed comprised thirteen ‘Gentlemen’ of whom Sir John was the most socially prominent

7 R. F. Holder, Bank of New South Wales vol. 1 (Sydney: Angus and Robertson (Publishers) Pty. Ltd., 1970), 20. 8 George Howe, printer of the Sydney Gazette and Simeon Lord – Bigge I, 150. 9 Sandra Blair, ‘The Felonry and the Free? Divisions in Colonial Society in the Penal Era,’ Labour History 45, (Nov. 1983): 4. 10 Edward Ford, 'Redfern, William (1774–1833)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/redfern‐ william‐2580/text3533, accessed 16 December 2012. 11 M. J. B. Kenny, 'Hall, Edward Smith (1786–1860)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/hall‐ edward‐smith‐2143/text2729, accessed 16 December 2012. 12 Holder, Bank of New South Wales, 27‐8; McLachlan, Edward Eagar, 434. 13 Brian H. Fletcher, ‘Sir John Jamison in New South Wales 1814–1844,’ Journal of the Royal Australian Historical Society 65, no. 1 (1979): 16.

165 but it included the emancipists Simeon Lord and Dr. Redfern. For this reason John Macarthur disparaged it as ‘Sir John Jamieson’s (sic) ragtag and bobtail’ committee.14

Edward Smith Hall and Edward Eagar were the most active committee members. They believed that the economic woes of the colony would be relieved by self‐governance and drafted the resolutions on which the committee pinned so much hope. These were written on an animal skin as a petition that was circulated throughout the colony for signature to be passed to Macquarie for submission to the Crown. The reforms proposed were essential to the economic advancement of trade and commerce in the colony. They demanded relief from restrictive limits on shipping tonnages and the heavy duties imposed in England on exports from the colony. The mercantile resolutions argued that because shipping from Britain was restricted to vessels of 350 tons or more, few colonial merchants were willing to venture the capital necessary for speculation on the necessarily large cargoes. Lowering that restriction to 150 tons would overcome this disincentive. A renewed call was made to allow the distillation of spirits from grain that at times was produced to excess. While grain was not produced in sufficient quantities for export, oil, skins, wool and timber were.15

On a different note the petition called for a great advance of the civil rights of all colonists by the introduction of trial by jury in the civil and criminal courts of the colony. This was ‘a cherished gaol’ of reformed, successful businessmen who were to be the progenitors of a nation of free citizens.16 Eagar reasoned that juries composed of emancipists and free colonists symbolised a cohesive society. Such juries, giving just verdicts to both emancipist and free, would heal divisions that existed in society. It was an objective dear to the heart of most of the colonists who were united in ‘praying the redress of their grievances’.17 Eagar boldly claimed that

14 John Macarthur senior to John Macarthur junior, 20 February 1820, Sibella Macarthur Onslow, ed. Some Early Records of the Macarthurs of Camden (Sydney: Rigby Limited, 1973) 339; Bigge, II, 9; SG, 30 January 1819, 2a. 15 SG, 2 January 1813, 2b. 16 Paul Edwin Leroy, ‘The Emancipists, Edward Eagar and the Struggle for Civil Liberties,’ Royal Australian Historical Society Journal 48, no. 4 (1962): 278. 17 Ritchie, Punishment and Profit, 103.

166 in all the activity that led to the petition there was no hint of division between emancipist and free, among the signatories.18 He ignored the conservatives of the colony who wanted trial by jury, but not emancipist jurors. Conservatives feared that emancipists sitting in judgment on them would allow revenge to motivate their verdicts. Conservatives also raised doubts whether there were sufficient free colonists to constitute juries.

Judge Field, an exclusivist, consistently opposed the introduction of jury trial. In his opinion the call for its introduction was consonant with the American colonies’ revolt over taxation.19 Those such as Wylde and Jamison who signed the petition with reservations were typical of the middle view of politics. They informed Bigge that they did not support trial by jury on ‘any other principles than those upon which it exists in England.’20 Neal suggests that their concerns were influenced by divided legal opinion in England on the efficacy of a pardon under the Great Seal in restoring capacity to serve as a juror.21 If these concerns prevailed, emancipists would never serve as jurors. Neal observed that those who called for caution in introducing jury trial believed that appointing emancipists as jurors would have been too rapid an advancement of civil status. The home government preserved the ‘status quo’ and exclusive dominance was not disturbed because the call for jury trial went unanswered.22 In summary the petition’s demand for jury trial was too radical for most residents of the colony and certainly too radical for the home government.23

Wylde and Jamison were not the first colonial elitists to call for tempered liberty in the colony. An earlier petition to Parliament drawn up by more

18 Eagar to Bathurst, 3 April 1823, HRA, IV, I, 441. 19 Field to Bigge, 23 October 1820, HRA, IV, I, 858, 868. 20 Bigge, II, 36‐7. 21 David Neal, ‘Law and Authority: The campaign for trial by jury in New South Wales,’ The Journal of Legal History 8, no. 22 (1987): 119; Opinion of Francis Forbes, 1 January 1823, HRA, IV, I, 420. 22 Neal, ‘Law and Authority: The campaign for trial by jury,’ 120. 23 The divisions in the colony generated over this issue were apparent in 1824 when the magistrates refused to summon juries for the general sessions they were required to hold. They were of the opinion that Parliament when it framed the New South Wales Act 4 Geo. IV c. 96 did not intend that civil juries be constituted in general sessions. The litigation that followed settled the issue. Questions of fact were to be decided by juries but the attempt to force emancipists onto juries failed.

167 conservative legal men, Judge Bent and attorney W. H. Moore, attacked Macquarie for ordering a whipping of free and convict men without trial for entering the Government Domain after hours. Leroy identifies their petition as the ‘first signs of the rumblings for liberty and political reform.’ But he also discerned the emancipists’ adoption of 26 January as a symbol and expression of their hopes for liberty ‘with anniversary dinners mobilizing [sic] popular support for political institutions and voicing feelings akin to nationalism.’24 It was alternatively characterised by Atkinson as ‘finding a voice.’25

For Eagar, the petition was a triumph. His appointment as secretary of the movement signalled long‐sought public recognition. His name was prominent atop the list of 1,260 persons ‘including (with a few exceptions) all the men of Wealth, Rank or Intelligence throughout the Colony’ who signed the petition.26 His prominence gave him the opportunity to engage with exclusivists of the colony like Jamison who had a great interest in public affairs and were sufficiently impressed with his abilities to overcome their antipathies to emancipists in order to accept his assistance. In this way, Eagar’s public activities furthered his private interests. They improved his reputation in business and private society. His intellect and energy influenced the gentry in favour of the emancipists’ cause. He devoted considerable time and energy to meeting daily with the committee members probably in his house and perhaps in theirs for a considerable period of time. His confidence and his powers in organising and marshalling public opinion increased.27 Respectable colonists accepted his company for Eagar was working for the ‘extension of civil and other rights to the free inhabitants’ and for ‘a removal of the disabilities under which they thought [they] lived’.28 It seems that even the arch‐enemy of emancipists, the Reverend Marsden, forgave Eagar’s past.

24 Leroy, ‘Edward Eagar,’ 273. 25 Alan Atkinson, The Europeans in Australia (Oxford: Oxford University Press, 1997) vol. 1, 4. 26 McLachlan, ‘Edward Eagar,’ 435. 27 Eagar to Bathurst, 6 November 1822, BT 28 6888. 28 McLachlan, ‘Edward Eagar,’ 435.

168 They corresponded regarding the obtaining of signatures to the petition to the Crown.29

Eagar’s political calls signalled the start of a new advocacy on behalf of all colonists. They joined other stirrings, including W. C. Wentworth’s Statistical, Historical and Political Description of the Colony of New South Wales, which also called for self‐government and trial by jury and was published in London in 1819.30 In the Quarterly Review Field severely criticised Wentworth as ‘a beardless Solon of the new world … [a] stripling Australian … [with] a considerable share of ingenuity in the fashionable occupation of constitution‐mongering … author of the inflated and convict‐party Description of New South Wales.’31

Field’s first response to Wentworth’s publication was to reject the call for trial by jury and self‐government in a letter to Bigge.32 Field’s Geographical Memoirs on New South Wales, discussed in greater detail in Chapter Seven seems to have been written in response to Wentworth. Field did not rebut Wentworth but took advantage of the interest in the colony aroused by Wentworth’s publication.33

Eagar and Smith Hall attack Judge Field

The arrival of Commissioner Bigge stimulated Eagar to appoint himself as a ‘colonial spokesman’.34 His foray into political commentary was made on the basis of his authority as secretary for the 1819 petition. He wrote the Commissioner a long memorial on ‘the political state and economy of the colony.’ Eagar’s memorial addressed the ills of the colony. Because he was the first to write, his arguments

29 Marsden to Eagar, 18 March 1819 – BT 18 2514. 30 W. C. Wentworth, A statistical, historical, and political description of the colony of New South Wales and its dependent settlements in Van Diemen's Land: with a particular enumeration of the advantages which these colonies offer for emigration, and their superiority in many respects over those possessed by the United States of America (London : G. and W.B. Whittaker, 1819). 31 Solon was an Athenian statesman, lawmaker and poet; for my arguments that Field was the anonymous author of the Quarterly Review article on Wentworth’s book see Quarterly Review Archive, Dr Jonathan Cutmore, Editor, vol. 24, no. 47 (October 1820) #559 article 2. 32 Field to Bigge, 23 October 1820 – HRA, IV, I, 869. 33 See the article in the Edinburgh Review, article 2, vol. 32 1819 p. 28. 34 McLachlan, ‘Edward Eagar,’ 431.

169 impressed the Royal Commissioner.35 In his desire to bring about reform Eagar canvassed a wide range of colonial issues. In addition to reiterating much of the 1819 petition formulated earlier in the year, Eagar was the first to propose the establishment of an elective bicameral legislature for the colony.36 His intention was to limit the uncontrolled authority of the governor, that, he argued, had resulted in the suppression of free speech, arbitrary taxation and the oppression of individuals.37

In his memorial Eagar continued the statesmanlike tone of the petition. He did not specifically address the desire of emancipists to be included in society. He attempted to achieve this, however, in a subtle way by emphasising the role of the courts and their judges as bastions of exclusivist authority. By the time of Bigge’s arrival Judge Field’s social connections proclaimed his exclusivist sympathies. The courts thus became an important object of political challenge.

Eagar’s broad protest against colonial ills to Commissioner Bigge and subsequently Lord Bathurst included a detailed analysis of the faults of the Supreme (civil) Court.38 Eagar’s attack was more severe on Field than on Wylde.39 Eagar also had reason, explained shortly, to challenge magisterial corruption as well. Eagar saw the court as a central site of forum of justice for all emancipists and Field as an enemy not just of himself but of the common good. A number of political battles were soon to be waged in court between Eagar and Field because Eagar realised that Field was most vulnerable to attack in the public arena of the courts.

Eagar wrongly accused Field of introducing strict pleading into the colony. This statement of the plaintiff’s claim, the defendant’s reply and all the associated steps that led to a joinder of issue, were in the language of the superior courts of England, and came to the colony with Frederick Garling, one of the two salaried attornies appointed by the British government. Eagar, however was on surer

35 Ritchie, Punishment and Profit, 111. 36 Mc Lachlan, ‘Edward Eagar,’ 431. 37 Ritchie, Punishment and Profit, 112. 38 Eagar to Bathurst, 3 April 1823, HRA, IV, I, 441‐476. 39 Eagar to Bigge, 19 October 1819, BT 19, 3016, 3042‐3, 3045‐9.

170 ground with his criticism of ‘complex and difficult’ court rules introduced by the judge. His specific complaint focussed on Field’s rule requiring parties to employ attornies, thus making litigation expensive for poorer litigants, who were usually emancipists. Eagar also criticised the high level of fees taken in the courts and the costs allowed to attornies. He considered this was the more serious defect and dwelt on it at length.40 Costs were a heavy burden on colonists and flowed directly from the fees Field charged. They also deterred the poorer emancipists from using the court. Eagar contrasted the present state of fees in the courts with the charges made in the former Civil Court. In the former court, he pointed out, total costs of a matter, for court fees, attornies’ charges, and witnesses expenses were less than £6, usually not amounting to £4 ‘and in many not to £3.’ Eagar alleged few suits were commenced in Field’s court because of the level of fees. The costs of an assumpsit (contract) matter ranged from £50 to £100. A trivial equity matter cost £300‐£500. The Governor’s Court, Eagar continued, was a court of conscience, in which the fees, although too high, when compared to the Supreme (civil) Court ‘are as nothing’.41 He alleged that, as a result of high fees, few suits were commenced in the Governor’s Court and the Supreme (civil) Court, the courts that resulted from the reform of 1814.

Field’s fees were, indeed, open to criticism. He may have set them so high because he was inexperienced and had little knowledge of how extensive his income would be. Nor did he share these fees among court staff; he parted with only a sixth to his clerk John Gurner. The judge thus benefited from all the miseries of litigation. Eagar claimed that the extent of the charges taken by the court for every step from initiation of the claim to its finality and the accompanying charges of attornies resulted in enormous sums. He gave instances where the combination of those charges amounted to more than the sum recovered by litigants for damages.42

40 Eagar to Bathurst, 3 April 1823, HRA, IV, I, 455‐7; The high fees were contrasted by An Old Emigrant (possibly Edward Smith Hall) with the moderate charges of Crossley, Eagar and Chartres in the Civil Court, The Sydney Monitor, 7 August 1830, 2c. 41 Eagar to Bigge, 19 October 1819, BT 19, 3043, 3045, 3048. 42 Eagar to Bathurst, 3 April 1823, HRA, IV, I, 455.

171 Bigge informed Field of Eagar’s criticisms of his court. In this way Bigge breached the specific instructions Lord Bathurst gave him not to divulge any opinion on his investigations lest it would ‘exacerbate existing resentments and disturb the colony’s tranquillity’.43 Bigge, however, felt it his duty to inform Field of Eagar’s activities. Although Bigge was impressed with Eagar’s analysis of failings in the colony’s administration he was concerned that Eagar would foment discontent amongst emancipists. Eagar soon deduced that Bigge had indeed passed his comments to Field because Field’s behaviour to him thereafter was markedly hostile.44 Eagar’s resentment about this breach of faith likely fuelled his determination to challenge Field’s fees in court.

Whether out of personal animus or deep commitment to the importance of court reform, Eagar (with Smith Hall) took his protest against the new court rules to the court in November 1819. They chose as a forum Field’s court because, as Neal has noted, ‘the courts presented the only way in which disputes over political authority could be mediated … (between) those groups who wanted to contest … for authority amongst themselves.’45 The attack was made in proceedings over an unpaid bill of exchange before Field in which Smith Hall was a defendant.46 Those proceedings had no connection with the application Smith Hall intended to make to change court rules. Eagar and he only used them as an opportunity to make the application. Procedure in the superior courts of England allowed any party in an action to seek a rule by ‘Judge’s fiat’ even if it was ‘not necessarily connected’ with the action.47

As Field’s rule stood, parties had to instruct an attorney who signed the pleadings and appeared on the hearing. Smith Hall’s attorney courageously moved the court for a change of rule to allow parties to sign their own pleadings and to appear in court without the need for representation. The argument for the change

43 Ritchie, Punishment and Profit, 63. 44 Eagar to Bathurst, 3 April 1823, HRA, IV, I, 455, 463. 45 Neal, ‘Law and Authority: The campaign for trial by jury,’ 108. 46 SR, SC judgment rolls, 9/2221 #219. Berry v Loane and Smith Hall. 47 Copy of the third report made to His Majesty by the commissioners appointed to inquire into the practice and proceedings of the superior courts of common law. 1831, paper 92. I am grateful to Professor Shaunnaugh Dorsett for drawing this aspect of court rules to my attention; Tidd, King’s Bench Practice, 1803, vol. 1, 445.

172 arose from the wording of the Charter that permitted a complaint to be made ‘by or on the behalf of’ any person.48 He argued that the rule as it existed was unfair for putting parties to extra cost. Eagar was present as an observer in the court, and Field saw him there. Surmising that Eagar was behind the application Field accompanied his judgment on the application to amend the rule with ‘a very great degree of personal warmth of temper … mak[ing] use of some unrecorded extremely invidious personal remarks’.49 Field partly conceded the application because Bigge was in the colony and he wished to appear conciliatory. From that time forward, Field permitted litigants to act for themselves but retained that part of the rule that required an attorney to sign the initiating pleading. Shortly afterwards a rule of court appeared in the Gazette permitting parties to appear for themselves.50 The concession allowed Eagar to represent himself in future contests with Field.

After Eagar and Smith Hall forced a change of court rules on Field, the Bigge Commission began to summon people for examination. During Eagar’s examination Bigge restricted himself to questioning over Field’s striking the disgraced Amos from the roll of attornies for allowing the disreputable Crossley to practise under his name. Rumour had it that the events led to Amos’ death.51 Eagar’s account was factual and not judgmental.52 Realising that his prior communication of Eagar’s testimony to Bigge had harmed relations between Field and Eagar, Bigge did not divulge Eagar’s further commentary to Field. His discretion backfired, however. Field assumed that whatever Eagar said to Bigge continued the criticism of him and further aroused his ire against Eagar.53

48 Second Charter of Justice, HRA, IV, I, 86; Eagar to Bathurst, 3 April 1823, HRA, IV, I, 441, 454; the original rule was to be found in SR, SC Rule 1, – TNA (PRO) reel 114, CO 201/126, 25. 49 Eagar to Bathurst, 3 April 1823, HRA, IV, I, 455, 463. 50 SG, 27 November 1819, 1b; Bigge, II, 5. On 26 November 1819, Field announced the rule was changed, G. Allen Journal, ML CY2575 MSS 477/1 74. The change to the rule appeared in the Gazette the following day. The 1820 rules were published – see note in Appendix 2 for their location. 51 J. Amos, 27 Hoxton Square, London, to Bathurst, 27 July 1820, HRA, IV, I, 339. 52 Examination of Eagar, 9 December 1819, HRA, IV, I, 766‐70. 53 Macquarie to Bathurst, 22 October, 1821 – HRA, I, X, 557.

173 Eagar mounts an attack on the Parramatta Party

Eagar’s attack on Field’s rules about representation prompted Field to retaliate – showing the very permeable boundary between the public and personal in the court. When Field learned that Eagar intended to lead a campaign to damage Hannibal Macarthur, a member of the Parramatta Party and nephew of John Macarthur, Field used his office as magistrate on the Parramatta bench to join the fray. Hannibal Macarthur was Parramatta’s police magistrate.54 In this role he disposed of the charges brought by the police of the town and exercised ‘a very powerful influence over the administration of justice especially outside the metropolis.’55 It was widely alleged that Hannibal illegally sold spirits but, because of his position, locals believed purchasing spirits from him would not result in arrest.56 Francis Oakes, Parramatta’s chief constable, attributed the increase in sale of spirits in the town and the ensuing drunkenness and riotous behaviour to Macarthur and enlisted Eagar’s help to expose his wrongdoing.57 Eagar and the ex‐ missionary Oakes were acquainted through evangelical association. Eagar likely relished the opportunity to humble Macarthur, a very prominent exclusivist, a close associate of Field and the public face of the Parramatta Party.

Eagar’s involvement in the Parramatta proceedings began after the town constable one night accosted a group of roisterers demanding to know ‘who came there?’ Upon answering ‘ask my arse’ they were locked up.58 When they sobered up, prior to Macarthur dealing with them in court for their crimes, Beale the town gaoler used his office to solicit a bribe from them. Beale promised to give them ‘characters’, known today as ‘references’, attesting to their past good behaviour in return for money. Oakes suspected that Hannibal shared the fees and bribes that

54 Bede Nairn, 'Macarthur, Hannibal Hawkins (1788–1861)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography /macarthur‐hannibal‐hawkins‐2388 /text3149, accessed 17 December 2012; Bigge, I, 80. 55 Michael Roe, Quest for Authority in Eastern Australia 1835–1851 (Parkville, Vic.: Melbourne University Press in association with The Australian National University, 1965) 41. 56 Evidence of Francis Oakes, BT1, 297; Edward Eagar, BT25, 5533; Philo Umbrae substantiated those claims, SG, 10 October 1825, 4a; see also Ritchie, Punishment, 174, 191‐2. 57 Niel Gunson, 'Oakes, Francis (1770–1844)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/oakes–francis– 2513/ text3397, accessed 17 December 2012. 58 Evidence of Constable Edward Dillon, BT 20, 3187–8.

174 Beale extorted from prisoners on their release. If that surmise was correct the charade in court went thus – Macarthur asked prisoners when they came before him for punishment ‘What have you say for yourself?’ Each replied: ‘Beale will speak well of my past behaviour’. Macarthur then had grounds for lenient treatment and discharged them. Before Beale restored their freedom he demanded gaol fees and payment for the giving of ‘characters’.59

Probably on Oakes’ initiative, these prisoners complained about the bribe and Beale allegedly answered ‘damn your freedom, I’ll squeeze you like a cat’.60 Beale returned the prisoners to court and a number of parties joined in the hubbub of noises that Atkinson called the ‘courtroom babble’.61 The infuriated Hannibal responded to accusations of corruption by siding with Beale. He remonstrated with Oakes who had admonished Beale for the part he had played. Those who knew that the prisoners were habitual drunkards offered their opinion in court. The court became uncontrollable with everyone shouting and the proceedings broke up in uproar. The prisoners were returned to gaol.

Oakes brought the prisoner’s plight to Eagar who agreed to act as a public advocate. Although he was not permitted to act as an attorney in the superior courts of the colony there was no impediment to his appearing in magistrates’ courts.62 Oakes and Eagar proposed an action against Beale. They refrained from attacking Macarthur directly for corruption in his office as magistrate as it might have resulted in an action for libel.63 With Eagar’s collaboration Oakes brought charges against Beale for corruptly demanding fees. Commissioner Bigge was residing in Parramatta at the time these events took place and Eagar encouraged the revellers to complain to him about Beale’s attempt to collect a bribe in return for a character reference. It was public knowledge that Eagar was involved for he drew up the charges against Beale and agreed to act on them for the prisoners and

59 See SG, 10 April 1803, 1c, for use of the term ‘character’. 60 Memorial of William Parkes to Bigge, 14 December 1819, BT 20, 3356. 61 Atkinson, The Europeans in Australia, vol. 1, 5. 62 See my arguments in n’s. 74 and 75. 63 Thomas Starkie, A treatise on the law of slander, libel, scandalum magnatum and false rumours (London: W. Clarke, 1813), 115‐7.

175 Oakes.64 Eagar interviewed the complainants against Beale for the purpose of taking statements of the evidence they would give in court in support of Oakes’ charges.

Judge Field now became involved in the dispute. He had been sworn in as both judge and a magistrate and he now applied to Macquarie for and was granted permission to sit as honorary President of the Bench of Magistrates at Parramatta.65 It was not usual for Field to attend magistrates’ courts. He only did so on matters of interest to him.66 Field suggested that the hearing take place on New Year’s Day 1820 because a public holiday had been declared and it suited his convenience to preside in court that day. Commissioner Bigge attended the proceedings. Bigge rarely attended court so it is likely that Field advised him to do so. Bigge and Field had been seen in company in Parramatta before the trial.67 The other magistrates sitting with Hannibal Macarthur were John Harris and William Lawson. Whilst they were free settlers, Harris and Lawson were not known for their antipathy to the emancipist cause.

Before the court proceeded to hear Oakes’ charges against Beale, Macarthur prejudiced the proceedings with a biased statement against Oakes, who was in poor regard with the Macarthur family.68 Macarthur informed the bench that Oakes had been disrespectful to him and that he had refused to apologise for his behaviour. Macarthur then referred to the charges handed to him by Eagar and expressed himself to be at a loss to know why Eagar had brought them. Perhaps, he speculated, it was ‘for the purpose of misleading other men from the line of their duty’ in combination with the vindictive feelings of Oakes, under the pretence of

64 Deposition of William Stabler, BT 20, 3403. 65 See J.T. Campbell to the Sydney Gazette, 12 February 1824, 2d; in the list of magistrates published SG, 1 April 1820, 1a, there was no mention of Field’s name. 66 Field sat on the Sydney Bench 8 July 1819 when the convict schoolteacher brought charges against Field’s friend Captain Lamb, SR, reel 6048, 4/1742, 126‐37; the first mention of Field’s sitting at Parramatta was with Macarthur. Field sat at Liverpool 3 and 24 December 1822 on a criminal matter SR, reel 6058, 4/1769, 40; Parramatta, 8 August 1821, on the question of postal charges payable by female prisoners SR, reel 6051, 4/1750, 30‐1; Sydney, 15 August 1821, on a breach of port regulations SR, reel 6051, 4/1750, 48‐50. 67 SG, 1 January 1820, 3a, it was reported that Field and Bigge attended the annual Aborigine meeting held 28 December 1819. Bigge was living in Parramatta at the time, Bigge I, 41. 68 Francis Oakes had been sent to arrest John Macarthur, later sympathising with the deposed Governor Bligh. Gunson, Francis Oakes.

176 redressing injuries of which the parties themselves did not complain. Macarthur clearly understood the political basis of the proceedings by announcing to the court that he wanted the charges determined, to prove that

Oakes had betrayed the trust of his office, by lending himself to the vindictive designs of certain criminals, and of a factious party in the colony …69

Only then, Macarthur continued, would the correctness of his finding the prisoners guilty of drunkenness and riotous behaviour be established. However, he urged the bench not to proceed to investigate the preservation of good order in the town, for he claimed to have proof of the attempts made by both Eagar and Oakes to incite the prisoners to complain.70

Following Hannibal’s prejudicial statement, the course of the proceedings was clear. Even before Eagar had got to his feet, he was accused of maintaining quarrels, that is, of being guilty of the common law misdemeanour called barratry. The first and only witness to be sworn deposed that ‘Mr. Eagar had taken his case up … and sent for him …’ to learn the details of his allegations against the gaoler.71 The witness was not asked to clarify whether he had asked Eagar to act for him or Eagar had urged him to complain. The meaning given to the evidence was that Eagar and Oakes had initiated and maintained the proceedings against the wishes of the witness. The evidence of another of the prisoners, if it had been admitted, would have exonerated Eagar from the accusation that he sought out the witness in order to incite him to complain. The evidence suppressed was the affidavit of William Parkes who was asked

Did you apply to Mr. Oakes to bring forward your complaint before the Magistrates of having been put in jail by Beale and confined there two days?

Answer – No, I did not. Q. To whom did you apply. A. To Mr. Eagar.

69 Bigge I, 133. 70 Bigge, I, 132. 71 Bigge I, 133.

177 Q. Have you not declared since you have been in this room that Mr. Eagar sent for you? A. I had seen Mr. Eagar in the Street and afterwards he did send for me. Q. What had you applied to him for? A. For redress against Mr. Beale and the constables Dillon and Kelly. Q. Where did you first see Mr. Eagar? A. In George Street in Parramatta.72

After hearing from only one witness, who was not cross‐examined on his evidence, the court decided that Eagar should not be heard. Field called Eagar forward and announced that the magistrates had already decided that the charges were improper, that Eagar acted improperly in preferring them, that he had no right to prefer them and the Bench would neither receive nor entertain them. Field went on to say, Eagar complained later:

that he considered [the charges] really as an attack upon the resident Magistrate Mr McArthur [sic] although nominally against [the gaoler]; that my conduct was highly improper in preferring such charges; that I had made seditious speeches; that I was a Revolutionist; that I had reared up the standard of disaffection and party; that I was a promoter and Instigator of disputes; that I was guilty of Common Barratry; and if I could not be Convicted of that, he Mr Field did not know, but the Bench would recommend His Excellency the Governor to ship me out of the Colony.73

After making this speech, Field, now in a most violent and unbecoming rage, threw the writing containing the charges back at Eagar, who was refused permission to answer anything said to him and warned that unless he was silent he would be immediately committed to gaol. From that moment implacable enmity between Eagar and Field was inevitable.

Bigge reported the proceedings, making no mention of an attack on Hannibal Macarthur but broadly substantiating Eagar’s account of what was said when Field:

delivered the judgment of the bench, and took occasion to animadvert with great severity of language upon the conduct of Eagar … that his interference in the vindication of the pretended injuries of poor and dissolute men, who had been justly punished for their offences, was as illegal as it was uncalled for; that he had incurred the penalties of being a common barrator; and

72 Memorial of John (also known as William) Parkes BT 2, 677 (vol 121 B14) undated. 73 Eagar to Bigge, 4 January 1820, BT 21, 3747‐8 (50690‐1).

178 that, by encouraging emancipated convicts to resist the authority of the gaoler in apprehending them, merely because he was a convict clothed with that authority for beneficial purposes, and from the difficulty of finding free persons to execute it, he had made an attempt to raise the standard of sedition and to excite rebellion in the Colony; crimes for which he might be justly committed for trial, or be sent out of the Colony by the Governor.74

Despite the manifest irregularity of the proceedings, Eagar’s participation in the case was open to suspicion. He had not practised law since Field refused him admission to court nor did Field refuse him audience for that reason.75 Eagar’s appearance that day heightened the perception that he used the opportunity to attack Hannibal Macarthur for he acted pro bono publico, for charitable purposes. Eagar was wealthy and did not need to appear for the small fee such an appearance would have brought. It is likely that Eagar’s motives for participation were moral reform rather than political one‐upmanship. He and Oakes had altruistic aims for reform of the colony and were dismayed by the ruin that excess consumption of alcohol brought about amongst emancipists, particularly in Parramatta.

Though Eagar was shaken by the viciousness of Field’s attack on him, a few days later his spirits had revived. He wrote to Bigge to complain that he was incensed that he had drawn down upon himself the ‘furious wrath of Mr. Field’. He stated:

I trust bad as we are said to be in New South Wales – low as we are rated by Mr. Field and those who think with him in the scale of morality, character and honour, we are not as yet fallen so low as that a man shall be publicly stigmatised for advocating the cause of the injured poor man’.76

After acknowledging ‘I am a person of no public consequence’, Eagar debased himself no further. He claimed that he would stake his character whilst in the colony against Field:

74 Bigge, I, 133; the illegality referred to may have been practising in an inferior court when not an attorney of a superior court. See Evans v. P— (1768) 2 Wilson King’s Bench 382; 95 E.R. 874, but see the following footnote. 75 The Act 25 Geo. III c. 80 (1785) prohibiting attorneys from practising without a certificate of admission was not applicable to the colony as it referred to courts in England, but no certificate was required for practise in that country’s County Court. See Hodgkinson v. Mayer (1837) 6 Adolphus and Ellis 194; 112 E.R. 73 (Williams J., KB). 76 Eagar to Bigge, 4 January 1820, BT 21, 3753.

179 When I consider the acerbity of Mr. Field’s attack, I look for the cause, not in my bringing the charges against Beale … [for] … it is well known, that I have made certain statements … which I have never concealed; that I have been examined on a certain inquiry affecting Mr. Field, that I have been advising a certain application lately made with regard to the rules of the Supreme Court – [and] – I am at no loss to conceive what has been the real cause of Mr. Field’s attack upon me.77

These events were not reported in the Gazette. However, they were much talked about in town. J. T. Campbell, Macquarie’s secretary, wrote of Field’s ‘very active and warm part in the examinations and discussions’ and Bigge noted that the proceedings ‘not only attracted much notice but afterwards became the subject of a very unpleasant discussion in the colony’.78 In a later exchange of letters that followed Field’s departure, attacking and defending him, Campbell referred to the ‘subsequent importance in the Courts of Law’ of these Parramatta events in the political struggle between exclusivists and emancipists.79

Eagar utilises a further opportunity to attack Field

Before these ‘subsequent’ events took place, however, Eagar mounted a further attack on Field, by challenging his right to exact court fees. Eagar’s opportunity arose when The Bank of New South Wales commenced proceedings against him. The Bank’s summons against Eagar was returnable in Field’s court 15 February 1820 on a promissory note that Eagar had accepted and endorsed to the Bank.80 Eagar was not the drawer of the note but the last of a number of persons who had accepted it. As the Bank had given valuable consideration for the note, it presented it to the drawer when it became due for payment. The note was dishonoured, the Bank accordingly gave Eagar notice of the dishonour and sued him for payment of the value of the note as the most solvent person of all those persons who had accepted and then passed it on.

77 Ibid., 3757. 78 J.T. Campbell to the Editor, Sydney Gazette, 12 February 1824, 2d; Bigge I, 133. 79 J.T. Campbell to the Editor, Sydney Gazette, 12 February 1824, 2d. 80 SR, SC judgment rolls, 9/2225 #296 President and the Company of the Bank of New South Wales v. Eagar.

180 Eagar provocatively refused to pay the fee demanded by the court on filing his notice of appearance, in default of which he was unable to proceed with his defence. When the court dealt with the matter, Eagar used the new right to act for himself (secured by Smith Hall the previous November) to protest that the court illegally demanded fees and it was contrary to the common law for the judge to receive them. Only Parliament, Eagar argued, could create a new judicial office that received fees and he was not required to pay them. Eagar then addressed a motion to the court ‘relative to the amount of the fees’.81 It was Edward Smith Hall’s turn to observe, and he saw Field ‘turn pale as death’ and capitulate once more, suggesting ‘that the members of the court would confer with the governor on the subject.’82

Eagar suffered judgment to be entered against him only to provide a platform from which he could renew the attack on Field. As the judgment exceeded £300, Eagar exercised his right of appeal to the governor assisted by the judge advocate and in this way had a further opportunity to attack Field on the subject of fees. He intensified his attack by traversing his former arguments that court fees were illegal, their amount was oppressive and that Field received them when in fact they were to be paid to the clerk of the court.83 On the subject of fees Eagar claimed that:

It not only subjected the character of the Judge to no small degree of odium, but that it excited so universal a dislike to him, such suspicion of the purity of the Court over which he presided, and such distrust of the administration of Justice therein, as to render both the one and the other in a great measure useless, and to a great degree hateful and odious to the Inhabitants, and to raise an universal outcry from one end of the Colony to the other against such a system of arbitrary, selfish and oppressive extortion.84

The governor, no doubt taking Wylde’s advice, dismissed Eagar’s appeal. Eagar would then have appealed to the Privy Council but for the fact that the

81 Bigge, II, 10. 82 Field’s pallor – The Monitor, 30 June 1826, 5b; Bigge, II, 10. 83 Bigge, II, 10; Eagar to Macquarie, 17 February 1820, BT 21, 3948‐71. 84 Eagar to Bathurst, 3 April 1823, HRA, IV, I, 456.

181 judgment did not amount to £3,000.85 Eagar’s vigorous attacks brought reforms, however. Macquarie approved the slight alterations to fees that Field proposed. The governor also acceded to Field fulfilling other court duties – examining witnesses by interrogatories and taxing bills of costs. These were usually the task of the Master and Examiner of the court. There was no barrister to call upon to act in either capacity.86 Eagar’s gains from this series of attacks on Field outweighed his losses. Eagar soon recovered the judgment debt entered against him by suing the endorser to him of the promissory note.87

Eagar sues Field in the Governor’s Court

Eagar’s next step in his campaign against Field had never been taken before in the colony nor was it ever taken again. In litigation that could only have been politically motivated, Eagar sued Field for damages in the Governor’s Court for slandering him in Parramatta Court and thoughtfully added a count for wrongfully demanding court fees.88 This direct challenge by an emancipist to an exclusivist exceeded cultural bounds. Because a judge was not protected from suit Eagar could not be prevented from bringing a case attacking judicial discourse.89 However, he could not succeed in his suit: the law extended immunity for words said during the conduct of proceedings to one who was acting in a public duty in any court of law.90 Eagar was too astute a lawyer not to expect that Field would

85 Second Charter of Justice, HRA, IV, I, 88. 86 Bigge, II, 10. Field had been acting as Master and Examiner unofficially since his arrival. On this subject he deserved some sympathy. Those functions had to be exercised and no other legal officer would undertake them. The fees were slight and amounted to very little. 87 Eagar v. Hankinson and anor (1820) SR, SC judgement rolls 9/2226 #315. 88 Brendan Gogarty and Benedict Bartl, ‘Tying Kable down: The Uncertainty about the Independence and Impartiality of State Courts Following Kable v DPP (NSW) and Why it Matters,’ University of New South Wales Law Journal 32, no.1 (2009): 81, footnote 34, citing Neal’s comment on political activism masquerading as litigation, The Rule of Law, 88. 89 The Bengal and Ceylon Charters of Justice left civil officers open to sequestration in civil suits after their resignation, Field to Bigge, 23 October 1820, HRA, IV, I, 858, 861. 90 Starkie, A treatise on the law of slander, libel, scandalum magnatum and false rumours, 210; E.J.H. Schrage, ‘The Judge’s Liability for Professional Mistakes,’ Legal History 17, no. 2 (1996): 101, observes that the defence of judicial immunity is not an easy one to rebut. Recent English authority has not disturbed Starkie’s broad exculpation, see Sirros v. Moore (1974) 3 WLR 459 and before that Law v. Llewellyn (1906) 1 King’s Bench Division 487, ‘a defamatory statement made by a

182 defend himself by using the cover of judicial immunity. When Eagar complained to Bigge that Field had scandalised him in court, Eagar had pointed to Field’s ‘mode of conduct he would not dare to have pursued but under the protection of the judicial Chair he then sat in.’91 Because Eagar expected that Field might rely on judicial immunity to defend himself he added a count for recovery of allegedly wrongly exacted court fees. Field realised his vulnerability on this charge. It would be highly embarrassing to him to disclose intimate details of his income from court fees. Examination of his bank records would reveal that monies paid to the court were paid into his bank account.92

Eagar therefore prompted Field into taking a radical step that provoked an acute crisis having severe consequences for emancipists. We saw in Chapter Four that Field had overruled a plea that a convict holding only a ticket of leave was still attainted and was therefore unable to sue. Field soon advanced on this position. A few years later he repeated the declaration that I alluded to in Chapter Four, that no one was barred from suit until an allegation of attaint was proven.93

However, that fragile edifice came crashing down when Eagar sued Field for slander in Wylde’s court. Field applied for an adjournment to prove that Eagar was attainted, and therefore had no standing before the court. The defect on which Field relied was the news of the decision of the Court of King’s Bench in Bullock v. Dodds.94 It had been assumed that, following the remission of a convict’s sentence the right to sue was restored. The origins of Bullock v. Dodds lay in the transportation to the colony of James Bullock for the capital felony of fraudulent bankruptcy.95 Soon after his arrival he received a governor’s ‘absolute pardon’ that enabled him to travel in the service of Simeon Lord to India from where he made

magistrate while sitting in the course of his duties … was held not to be actionable, even though it was alleged that the statement was made falsely and maliciously and without reasonable cause.’ 91 Eagar’s petition to Bigge, 4 January 1820, BT 21, 3752‐3, 3757. 92 Edward Smith Hall was the secretary and manager of the Bank of New South Wales and knew to the penny Field’s income from court fees. Cheques payable to the court were paid into Field’s account, see Westpac Banking Corporation Ltd. Archives. First ledger A1121/1 524/OB/5/1, 77, 200, 289, 290. 93 Field to Bathurst, 15 January 1823, HRA, IV, I, 424. 94 (1819) 2 Barnewall and Alderson 258; 106 E.R. 361 (Abbott CJ). 95 The Times, 31 October, 1818, issue 10502, 3c.

183 his way to England.96 In 1818 he commenced civil proceedings against Dodds as the endorsee of a bill of exchange. In his defence Dodds argued that Bullock had no capacity to sue because he was still attainted. This argument turned on the exercise by Macquarie of the power vested in him by the Act 30 Geo. III c. 47 (1790) to remit the time or term of Bullock’s transportation. Section 2 of this Act required Macquarie to send a copy of Bullock’s remission of transportation to a Secretary of State in order that his name would be passed beneath the Great Seal of Great Britain. A search revealed that this requirement had not been complied with and Bullock therefore remained attainted and was unable to sue.

Eagar might have argued that Bullock v. Dodds only affected convicts who had returned to England and had no bearing on litigation in New South Wales, but did not do so. Perhaps he wanted Field’s defence to be successful because of its potential to mobilise emancipists in the colony to call for reform. In what Field described as an act of madness, presumably enragement, for both Wylde and Field suspected Eagar of fomenting rebellion, Wylde agreed to Field’s application for a year’s adjournment.97 By doing so, Wylde accepted that the doctrine of attaint was applicable to the colony. It is important to note that long adjournments to obtain evidence from England were not uncommon.98

Field here reversed the practice he himself had instantiated in the civil court (see Chapter Four). Since Greenway’s assault suit, six convicts and nearly two hundred emancipists had sued before the court.99 Not one defendant sued by them applied for an adjournment for the purpose of obtaining proof of attaint, until Field himself applied for this leave. This was the basis for the resistance that Wylde had already noted. It seemed to Eagar that Field was subverting past colonial practice for his own ends.

96 Bigge, I, 134; Bullock advertised his intention to leave the colony in the Gazette, 14 and 21 July 1810, 2a. 97 Field to Bathurst, 15 January 1823 – HRA, IV, I, 424. 98 Wylde to Macquarie, 1 September 1820 – HRA, 1, IX, 1820. Wylde noted that at the time, several actions had been adjourned for periods of 12, 18 months even two years and that in the Court of King’s Bench in London an adjournment of 2 years had been allowed for the purpose of obtaining necessary evidence from the colony. 99 TNA (PRO) Reel 114, CO 201/125 651.

184 Application to the colony of the decision in Bullock v. Dodds was slavish acceptance of British precedent. Through its adoption, Kercher argues that successive judges ‘lost the opportunity to make a careful assessment of the common law’s rule on the reception of English law and to decide whether felony attaint was applicable in the circumstances of the colony.’100 Wylde did not always take a closed approach to the reception of English law for he had given a sign that he was not bound to accept precedent if it was not applicable to colonial circumstances. This was not the ‘cringing deference’ that Bruce Kercher suggests was the alternative to ‘adolescent rebellion’ in decisions on reception.101 Wylde’s reasons for accepting Bullock were influenced by ‘dominant discourses’ on colonial politics at this time.102 Although not a member of the Parramatta Party, Wylde was sympathetic to exclusivist opposition to emancipist ambitions. Field had expressed exclusivist sentiments openly in court when Smith Hall proposed reform and when Eagar attempted to humble Hannibal Macarthur in Parramatta. Wylde interpreted these events as public disquiet. Eagar’s political attack on Field in the Governor’s Court convinced Wylde of the necessity of approving Field’s application. He believed that there was ‘a certain party’ of the colony having a ‘litigious spirit of resistance’ and it should be suppressed.103 Bullock’s case promised to subdue an emancipist faction that showed every sign of overreaching itself. Political motivation was the basis of Eagar’s campaign and was the basis of Field’s defence and of Wylde’s acquiescence.

Field was aware of the disastrous consequences that would follow the use of this defence. He anticipated that much alarm would be caused ‘amongst the emancipist class who had thought themselves entirely free men restored to all civil rights.’104 He sought Bigge’s opinion on the wisdom of his seeking protection from Eagar’s suit against him by a reliance on Bullock’s case.105 The Commissioner was

100 Kercher, ‘Perish or Prosper,’ 550. 101 Bruce Kercher, ‘Many Laws, Many Legalities,’ Law and History Review 21, no. 3 (2003): 621. 102 Rosemary Hunter, ‘Australian Legal Histories in Context,’ Law and History Review 21, no. 3 (2003): 614. 103 Wylde to Macquarie, 1 September 1820 – HRA, I, IX, 362‐4. 104 J. M. Bennett, ‘Day of Retribution – Commissioner Bigge’s Inquiries in Colonial New South Wales.’ American Journal of Legal History 15, no. 1 (1971): 103. 105 Bigge, I, 137.

185 in Van Diemen’s Land. Bigge disapproved of Field’s actions for he believed that emancipists should have the right to sue and possess property for it encouraged reformation and was consistent with ‘the principles of humanity’.106 Parliament held out to convicts the prospect of rewarding good behaviour by providing remission of their term of transportation. Ever hasty, Field did not wait to hear this reply from Bigge and proceeded without it.

By seeking to apply the doctrine of attaint in the colony, Field effectively attacked the civil rights of the majority of colonists. Curiously however, the ramifications of the dispute did not filter into public consciousness for some time. As most convicts were under some remission of sentence, the application of Bullock v. Dodds threatened to upend the colony. Title to all emancipist property would be placed in jeopardy and the courts would be closed to them. Other incapacities would be the inability to fulfil all manner of civil offices. No longer could emancipists act as magistrates, arbitrators, bailsmen, and executors or trustees, to name a few. Attaint also rendered ex‐convicts unable to act as jurors and disabled them from giving evidence in court. This was the basis of Eagar’s argument against granting Field the desired adjournment.107 The labour, industry and exertions of the colony’s 30 years of existence would be ruined at one stroke. As it happened, Eagar’s prediction that the home government would intervene to protect emancipists from injustice was borne out. For now, their heirs could succeed to real property but personal property continued to be forfeited on conviction of a capital felony as before without office found.108 Eagar resolved to bring these injustices to the attention of Parliament. How he did so is the subject of the next chapter.

106 Ritchie, Punishment and Profit, 228. 107 Arguments of Eagar against granting Field an adjournment to prove Eagar’s incapacity, BT 21, 4113. 108 See the headnote to Bullock v. Dodds in E.R. 106, 361.

186 Conclusion

Eagar was the most outspoken of those whose ambitions for the colony were accompanied by high personal aspirations. The arrival of the Royal Commissioner led to a great deal of colonial political agitation. Eagar used his considerable political skills to influence the Commissioner to advocate the establishment of a legislature and the democratisation of the court. When the Commissioner seemed to ally himself with Field, Eagar used the court itself as a site of political challenge both to the court and its rules and to magisterial corruption. Eagar also utilised the court as a theatre for personal animosities. These became the driver for larger and more important political issues in the colony.

The worsening of relations between exclusivist and emancipist in court demonstrated the degree to which these animosities fuelled colonial political division. Eagar’s and Smith Hall’s efforts to advance the emancipist interest were interpreted by the judges as incitement to induce an uprising against the colonial administration. The judges believed they were suppressing political unrest. The events that unfolded in this chapter were moulded by the adoption of English law and precedent in a time of crisis. The judges used Bullock v. Dodds as an expedient precedent without questioning its applicability to the colony. The court continued to be a vital part of colonial life in the Macquarie era because of its centrality to the maintenance of the rule of law, but also because of its potential to serve as a theatre for personal conflict and political contest. Its authority ensured that it would be a theatre for political dissent and its judge therefore was attacked in the course of attempts to democratise its procedure.

187 CHAPTER SIX

Convict stain

In this chapter I argue that the activities of Judge Field in the last period of his tenure of office served to illustrate the importance of the judge and the court in the social, political and legal constitution of the colony. This chapter traces the eruption of public turmoil after Field’s attempt to introduce the doctrine of attaint into the courts, resulting in a public meeting that elected Eagar to seek legislation to overcome the legal disabilities faced by emancipists. It describes Field’s importance in colonial politics in the gubernatorial interregnum in the colony. Despite his imminent removal from office, he wielded tremendous power under Governor Brisbane through his temporary coalition with the newly appointed Colonial Secretary, Frederick Goulburn. This chapter also describes Field’s public and professional self‐destruction in the months before his recall. Even as his tenure in the colony illustrated the importance of the court and its judge in New South Wales’ colonial life, Field’s activities also demonstrated the need to reform the institution. The political scandals that marred the court helped to produce the first Supreme Court of New South Wales – which decisively separated judicial from magisterial authority, and subjected the new Chief Justice to the scrutiny of a professionally staffed bench and bar.

Bullock’s case entrenched

The ramifications of the adjournment of Eagar’s case against Field were unclear. Some argued that the case merely closed the court to emancipists suing for libel – as a former convict could not be slandered, having ‘lost all character’ on account of their conviction. Eagar contended that the decision closed the courts to emancipists for every matter – on the grounds that convicts attaint had no standing to sue. He set out to mobilise emancipists in defence of their livelihood and their civil rights.

188 In the month that followed his defeat at the hands of Wylde and Field, Eagar resorted again to the courts to test the meaning of Wylde’s adjournment. As usual Eagar was motivated by primary and secondary objectives. He would become the first in English colonial history to bring a trade protection action by bringing suit against American competitors in the colonial tea trade. If successful he would secure the trade for himself.1 If unsuccessful he would achieve a prime political purpose of convincing emancipists that every court in the colony was closed to them by testing whether Field would extend the barriers placed on emancipist litigants by the application of Bullock v. Dodds beyond actions of libel.

Under the Navigation Act 1813, colonists were prohibited from importing tea from China.2 Americans were not affected and commandeered the Sydney market but, if resident in the colony, they were liable to prosecution for trading as aliens under the Act.3 The Act provided that if the merchant was found guilty of breaching the act, his goods and chattels were forfeited and went equally to the King, the governor of the plantation in which the alien merchant had traded and the informant. Suits to enforce this provision were known as Qui Tam suits because an informant’s declaration included the words Qui tam pro domino rege quam pro se ipso sequitur – ‘who as well for the lord the king as for himself sues’. The Navigation Act did not specify that the informant had to have suffered a wrong.4 Informer actions were very common under English law.5 Never before in any British colony had trade protection been attempted in British courts.6

Eagar brought Qui Tam actions against three Americans he alleged were involved in the colonial tea trade. Only one suit had any chance of success as only

1 Bigge, I, 134. 2 The East India Company had a monopoly on trade with China established by (1813) 53 Geo. III c. 155 s. 40. 3 Bigge, III, 60; (1660) 12 Car. II c. 18 s 2. 4 Anonymous, ‘The History and Development of Qui Tam,’ Washington University Law Quarterly (1972): 84. 5 M. W. Beresford, ‘The Common Informer, the Penal Statutes and Economic Regulation,’ The Economic History Review 10, no. 2 (1957): 226. The most active period for informer actions in England was 1550–1616. Beresford points out that this type of action was only abolished in England in 1951. 6 Field’s judgment in Eagar v. de Mestre, TNA (PRO) reel 114, CO201/126, 317.

189 one defendant, Prosper de Mestre, was clearly in trade in Sydney.7 The other suits against Charles Izard Manigault and Captain Rollo were more speculative.8 Eagar drove the three into reliance on Bullock’s case by the quantum of penalties he claimed. Eagar claimed a penalty of £20,000 from Manigault and £10,000 from each of the other two. De Mestre reacted as Eagar expected. He pleaded not guilty to acting as an alien merchant and applied for a year’s adjournment to enable him to obtain proof of Eagar’s incapacity as a convict attaint unable to sue. Field granted the application in September 1820. His ruling was biased at the outset. He now regarded Eagar as a vexatious litigant and thwarted his suit by attacking his emancipist status. Field

foamed at the mouth, smote his fist on the desk, and demanded to know whether it was to be endured that men, ‘still standing on the scaffold’ were to bring such ‘actions as the one under consideration?’9

Bigge observed this choleric outburst. It sealed Field’s fate and led to his recall. Bigge decided that Field’s temperament was unsuited to the colony.10

When granting de Mestre an adjournment, Field did not give final judgment against Eagar. However, he did make clear that he would dismiss the action on the erroneous basis that his court lacked jurisdiction. He pointed out that the court was established for the recovery of debts and determining of causes between party and party and had no jurisdiction to entertain Eagar’s claim. In signalling his attempt to reject the action for want of jurisdiction, Field ignored the provision of the Navigation Act that provided any court of record with jurisdiction to hear the claim.11 Field was also influenced by the fact that the governor had not authorised Eagar to bring his action. The Court of King’s Bench, however, had held that ‘qui tam actions are never considered as the King’s causes.’12 An informer was at

7 See SG, 8 September 1821, 1s, de Mestre was paid for supplying tools to government. 8 Manigault was a supercargo in charge of the trading concerns of a vessel, Rollo the captain of a vessel. 9 The Monitor, 16 June 1826, 36. 10 John Ritchie, Punishment and Profit (Melbourne: William Heinemann Australia Ltd., 1970), 190‐1. 11 For constitution of the court as a Court of Record see Second Charter of Justice HRA, IV, I, 85. 12 Britten, who as well, &c. against Teasdaile (1751) Barnes 48; 94 E.R. 800, (KB).

190 liberty to bring his case and was solely liable for costs if he failed to succeed.13 Finally, Field pointed out Eagar’s actions were of a highly penal nature against ‘the perfectly inoffensive … alien merchants’ of the colony.14 Subsequently, Eagar conceded that he could not prove that de Mestre was an alien. He had not anticipated that Field would accept this fact. For this reason Eagar claimed that the imposition of penalties was not his objective and if the three Americans pleaded guilty he would accept only a farthing from each in compensation. His purpose was to set at rest a ‘great and important Question of Commercial Law’ and he claimed he acted only for the public good.15

Field’s adjournment finally made the public sensible of the threat posed to the colony by Bullock v. Dodds. The adjournment led to

some sensation amongst the leading members of the remitted and pardoned convicts, who had never contemplated till then the operation of such disabilities.16

They had been encouraged by all governors to the end of the Macquarie period, to believe in ‘reciprocity of advantages between governors and governed’. They had been provided with ‘something to lose’.17 Their toil as assigned servants, their resistance to bad behaviour of masters, their rewards for good behaviour, years of anticipation of release from bondage: all this was for nothing. The root cause, a case in far off England was remote; the application of it by courts that had hitherto protected their interests was the immediate cause of their loss.

The effect of the colonial crisis is seen in the following tables. The participation rate of plaintiff emancipists fell (Table 1). There was a decrease in suits against emancipists (Table 2) as they withdrew temporarily from trade and commerce. For the numbers of plaintiffs and defendants for the period 1817—

13 John Ilderton Burn, The attorney’s practice of the Court of King’s Bench, (London: J. Butterworth, 1805), 191. 14 TNA (PRO) reel 114, CO201/126, 317. 15 SR, SC cause papers, Eagar v Manigault 9/2255 #547; in the commentary on The Governor v. Riggs, [1820] NSWKR 5; [1820] NSWSupC 5, resentment against Americans who used the port of Sydney was noted. The Anglo‐American war only concluded just over five years earlier. Perhaps Eagar relied on this resentment. 16 Bigge, I, 134. 17 W. Nichol, ‘Ideology and the Convict System in New South Wales, 1788–1820,’ Historical Studies 22, no. 86 (1986): 13.

191 1819 see Table 6 Chapter 4 page 161. For this information for the period 1820— 1823 see Table 3 herein at page 194.

Table 1 – Emancipist plaintiff participation 1817–1823.

1817 1818 1819 1820 1821 1822 1823 39.32% 37.26% 34.44% 34.47% 29.51% 43.28% 38.55%

Table 2 – Emancipist defendant participation 1817–1823.

1817 1818 1819 1820 1821 1822 1823 31.56% 40.52% 48.33% 54.85% 45.18% 50.75% 27.71%

The conflict between Field and Eagar heightened class conflict and trade was diminished by it. Table 2 suggests that as emancipists borrowed and bought from the free, their participation as defendants rose to a high point in 1820 and fell away the following year. As a result of the conflict in 1820 emancipists traded more with other emancipists and they sued each other more (Table 3). However, most matters were settled after summonses were served. It seems that emancipist defendants did not wish to apply for adjournments to prove their emancipist opponent disabled from suing. Perhaps emancipists were unsure whether Eagar’s misfortunes applied generally or whether they were specifically directed against him because of his provocative attacks on Field. Emancipists had fewer dealings with the free in 1820 and sued them less. When the conflict between Eagar and Field heightened, the suits of the free increased as they sued emancipists to recover capital as credit tightened. The granting of adjournments was in the discretion of the court. Few emancipist defendants would risk the costs of applying for this remedy against free plaintiffs. The court would not grant it against free plaintiffs who were so few in number that their status was common knowledge. The Eagar–Field conflict unsettled traders and merchants. Emancipists encountered difficulties as the confidence of free colonists in trade with emancipists was shaken.

192 Neal argues that emancipists had grown in wealth and influence by about 1820 but Table 3 suggests that their importance in trade and commerce remained in decline.18 In 1820 free plaintiffs commenced more suits (135) than emancipists (71). Emancipists were participating as plaintiffs in litigation less in 1820 (34.47%). Free plaintiffs commenced slightly more suits against emancipists (72‐ Table 3) than the remainder of free colonists (63‐Table 3). Table 3 indicates that the total sum sued for in 1820 was £104,310. Of that sum, Eagar accounted for £40,000 in suits against three free persons as part of his political campaign.19 The adjusted sum sued for in 1820 therefore was £64,310, the lowest annual sum sued for since 1818. Free colonists who commenced 135 suits dominated litigation. Commerce was now more confined along class lines. Excluding Eagar’s three suits for £40,000, the monetary value of free colonists’ litigation was far greater than the sum sued for by emancipists. This was so despite the free suing slightly more emancipists than other free persons. Emancipists disputed with each other more than with the free. This was attributable to the colonial crisis.20

18 David Neal, The Rule of Law in a penal colony: law and power in early New South Wales (Cambridge, U.K.: Cambridge University Press, 1991), 80. 19 Eagar v. de Mestre, Manigault and Rollo, 1820 SR, SC cause papers 9/2255 #552, 547, 551 respectively. 20 All these conclusions are drawn from court records. The data is quite indirect. Plaintiffs inflated their claims which were reduced when they swore affidavits of debt. As well, the judgment amount was regularly less than the quantum claimed. Annexure A assists with a comparison between the sum sued for and the judgment handed down.

193 Table 3 – Internecine nature of litigation in the Supreme (civil) Court in the years 1820–1823. Free Free Emancipist Emancipist Total v v v v Free Emancipist Free Emancipist

1820 63 72 30 41 206 Suits 30.58% 34.95% 14.56% 19.91% £ 33,823 17,083 44,826 8,578 104,310 32.43% 16.38% 42.97% 8.22%

1821 73 44 18 31 166 Suits 43.98% 26.51% 10.84% 18.67% £ 72,246 21,266 6,452 16,893 116,857 61.82% 18.20% 5.52% 14.46%

1822 39 37 27 31 134 Suits 29.10% 27.62% 20.15% 23.13% £ 14,275 8,141 15,786 8,115 46,317 30.82% 17.58% 34.08% 17.52%

1823 39 12 21 11 83 Suits 46.99% 14.46% 25.30% 13.25% £ 16,174 4,411 6,338 1,965 28,888 55.99% 15.27% 21.94% 6.80%

The Field­Goulburn axis

Frederick Goulburn, appointed as the first Colonial Secretary arrived in the colony in December 1820 with instructions ‘to revolutionize the plan of Government that

194 had been so long adhered to by Macquarie …’.21 His other task was to ensure that ‘transportation to New South Wales should be a severe punishment for crime and an object of real terror to all classes’.22 Because the Colonial Office did not approve the governor’s policies towards convicts, Goulburn was advised to be independent of him.23 These were difficult instructions for Goulburn who had no guidance on how they should be implemented.

Goulburn’s arrival came at an opportune time for Field. He welcomed Goulburn and his instructions with delight. Goulburn’s instructions assisted Field in his ambition to suppress emancipists. Field readily formed a brief but fragile alliance with Goulburn who knew nothing about Field before he arrived in the colony. What little Goulburn knew about the judge’s political leanings he had gleaned from his brother Henry, Under Secretary to Lord Bathurst, Secretary of State for the Colonies. Neither Frederick nor Henry was certain about Judge Field’s sympathies towards Macquarie’s administration. There was nothing in either the judge’s or the governor’s frequent correspondence to the Colonial Office to allow conclusions to be drawn about their mutual antagonism.

Goulburn rapidly became a member of the Parramatta Party. With Field ‘warmly coalescing’ with Goulburn’s instructions, Goulburn was ‘a tower of strength for a season, to Judge Field and his adherents’ and between them there was ‘every appearance of decided cordiality’.24 The reasons Goulburn and Field first formed an association are diverse. Goulburn acted under instruction. Here he was a consummate professional. He respected colonists ‘as a body’ and never trampled on emancipists’ rights.25 As a soldier of many years’ experience perhaps he had seen too much of life to be shocked by crime.26 Goulburn likely saw merit in

21 Parsons, Vivienne Parsons, 'Goulburn, Frederick (1788–1837)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au /biography/goulburn‐frederick‐2110/text2661, accessed 17 December 2012; Instructions – SG, 3 October 1828, 2c. 22 Ritchie, Punishment and Profit, 62; SG, 3 October 1828, 2c‐d. 23 SG, 3 October 1828, 2c‐d. 24 Ibid. 25 Ibid. 26 Goulburn joined the army in 1805 and fought in the Peninsular War and at Waterloo. He was promoted to Major in 1816, placed on half pay until appointment to New South Wales in 1820. Vivienne Parsons, 'Goulburn, Frederick (1788–1837)'.

195 a relationship with a superior court judge who was strongly antipathetic to convicts. Goulburn anticipated cooperation from Field in implementing his instructions to reverse Macquarie’s system of convict management. As well, there were few houses in the colony, other than Field’s, in which he would find genteel company befitting his standing as Colonial Secretary. Goulburn resided in Sydney, while Bigge, for example, when not residing in Parramatta was taking evidence in Van Diemen’s Land. However, Field and Goulburn had little in common. The judge was too middle class for Goulburn whose maternal grandfather was an aristocrat.27 Goulburn’s father though indebted at death was possessed of sugar plantations and maintained English town and country properties.28 Goulburn was a bachelor with the patronage of his parliamentarian brother. Field’s father, as we saw in Chapter One was an apothecary– a respectable man, but with limited means and networks.

Goulburn arrived after Field adjourned Eagar’s suit against de Mestre. No doubt Field gave him a biased account of the proceedings and Commissioner Bigge explained the ramifications of the case. It enabled Goulburn to read the political temperature of the colony. The events were so recent that Goulburn could not have been prepared for the depth of emancipist hostility over Field’s ruling against Eagar. The colony remained in a state of high agitation over the closure of the courts to emancipists. Feelings were running high as Eagar canvassed support throughout New South Wales and Van Diemen’s Land for the holding of a public meeting to petition the Crown for legislative relief of the emancipists’ predicament.29

After the case, Eagar began agitating for permission to hold a public meeting to discuss the plight of emancipists in the wake of his defeat at Field’s hands a few months previously. Eagar had first to obtain Macquarie’s approval for

27 Kirsten Mackenzie, Scandal in the Colonies (Carlton, Victoria: Melbourne University Press, 2004), 4. 28 G. F. R. Barker, ‘Goulburn, Henry (1784–1856)’, rev. David Eastwood, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2008 [http:// www.oxforddnb.com /view/article/11148, accessed 17 Dec 2012] 29 John West, The history of Tasmania ed. A.G.L. Shaw (London, Sydney: Angus and Robertson, 1981), 383.

196 the meeting. Simeon Lord sought leave with eight others in early January 1821 to convene the first meeting to petition His Majesty and both Houses of Parliament for legislative relief.30 Before the governor granted approval on an issue of such magnitude he consulted Bigge. The Commissioner’s first concern was to maintain the tranquillity of the colony. Bigge felt Field had to be protected. He believed that if motions condemning Field’s actions were passed he did not know how far emancipists would go. There was a possibility they might seek physical reprisals on the judge, his house or the court. Bigge therefore advised granting approval for the meeting but required any of its resolutions to be shown to him and that no mention was made of Field.

The judges expressed their concerns to Goulburn about the anarchy that might follow if the meeting was allowed to proceed. Field had already accused Eagar of making seditious speeches, being a revolutionist and rearing up the standard of disaffection and party. Wylde saw a litigious spirit of resistance that had to be suppressed. They feared an uprising by convicts and that the maintenance of law and order was imperative. They tried to convince the governor that there was no need for the meeting because the fears of the emancipists were baseless.31 Field went so far as to agitate for Eagar’s banishment. If he was expelled from the colony, Field believed, agitation would subside. He urged the Commissioner to prevail upon the Home Government to deprive Eagar of the privilege of settling in the colony because of his activities in stirring up sedition and exciting discontent amongst the convicts.32 Though Goulburn thought that fears about a convict uprising were misplaced, he was concerned that allowing

30 SG, 6 January 1821, 1a‐b. 31 Wylde and Field to Macquarie, 7 January 1821, BT 25, 5602. 32 Possibly Field was aware of a similar provision in the Sedition Act of Upper Canada. His attempt to have Eagar banished was favourably considered by Bigge. Accordingly, Forbes drafted a provision in the New South Wales Bill empowering the governor to banish the promoter of turbulence or disorder despite the colony being the supposed receptacle of the worst classes. It did not survive parliamentary scrutiny. Field to Bigge, 8 January 1821, BT 25, 5615; John McLaren, ‘Reflections on the rule of law: the Georgian colonies of New South Wales and Upper Canada, 1788– 1837,’ ed. Diane Kirkby and Catharine Colebourne, Law, History, Colonialism (Manchester: Manchester University Press, 2001), 56; Currey, Sir Francis Forbes (Sydney: Angus and Robertson, 1968), 36.

197 former convicts to meet and elect representatives to agitate on their behalf in England ran counter to the tenor of his instructions.

However, despite the concerns of Goulburn, Field and Wylde, and with Bigge’s approval, Macquarie permitted a meeting of colonists. It was set down for 23 January 1821 and was advertised each Saturday until that day. Dr. Redfern was in the chair but Eagar dominated the proceedings. It ‘was very respectably attended, and a more numerous, orderly, and well‐conducted [meeting was] never witnessed in the Colony’.33 Eagar moved the adoption of five resolutions, all unanimously agreed upon. Because of Bullock’s case, in summary, emancipists were …

exposed to infinite prejudice and danger, and their restoration to their rights, as citizens, protracted beyond the period that either justice or policy can require.34

A committee of prominent emancipists was formed to wait on the governor. Those in the country formed district committees that were expected to finalise their proceedings after six months.35 Eagar managed the business of the Sydney committee that met in his house every Tuesday and Friday evening. The petition to the King on behalf of nearly 8,000 emancipists was circulated to country districts and eventually signed by 1,368 individuals, although only a fifth of their number in the 1819 muster were landholders and settlers.36 Clearly, not just the wealthy emancipists were alarmed.

The petition recited every aspect of emancipists’ achievements – the building of towns, their efforts in clearing and cultivating the acres under pasture, and their part in the foundation of commerce and agriculture.37 The petition asserted that emancipists dominated all areas of economic activity in the colony. It was only as pastoralists that free colonists were in the ascendancy, proving only that they had been granted more land than they deserved. Emancipists’

33 SG, 27 January 1821, 3c. 34 Ibid. 35 SG, 28 July 1821, supplement, 1a. 36 Jayne Bisman, ‘Accounting Concepts in the Construction of social status,’ The Australasian Accounting Business & Finance Journal 1, no. 4 (2007): 5. 37 The text of the petition is set out in HRA, I, X, 549‐556.

198 achievements came solely from their efforts. Their capital invested in foreign and domestic trade was fifty per cent greater than the free and they owned twice as many vessels.

In summary the petition pleaded that because the judges of the colony permitted the adoption of Bullock’s case, all the material achievements of emancipists were at risk. Emancipists’ rights to their property were at risk, their civil capacities and privileges subverted. The incentive to behave well and achieve prosperity was thus destroyed. The petitioners threw themselves on the mercy of the Crown. Their beginnings may have been dark but they argued that, with encouragement, they would blossom into a worthy and vigorous country of hope and freedom. All this was threatened by the decisions of the courts. Free inhabitants of the colony had ‘the rights and liberties of Englishmen … who dwelt under the shadow of St. Paul’s’, an allusion to Englishmen in England.38 Emancipists’ rights were in a state of dependence upon the sole discretion of the courts.39 The petitioners also raised money to send Eagar and Redfern to London to agitate for a change in the law.

Both judges were on circuit in Van Diemen’s Land when the emancipists met. They were still there when the emancipist resolutions were published in the Gazette and the petition began to circulate throughout the colony for signature.40 On his return from circuit Field described the resolutions as ‘false and ridiculous’ misrepresentations and declared that he would have ‘punished [Eagar] for a contempt of Court’ for making them had he not been on circuit at the time of their publication.41 He also sought to downplay emancipists’ fears in his decisions. In a judgment published in the Gazette, he firstly discussed the existence of the Crown’s rights over forfeited property.42 In the suit under discussion, the plaintiff applied to be relieved from the provisions of a contract for the sale and purchase of land in Sullivan’s Cove, Van Diemen’s Land. The plaintiff argued that ‘by reason of the non‐

38 H. V. Evatt, ‘The Legal Foundations of New South Wales,’ The Australian Law Journal 11, (1938): 420. 39 Eagar to Bathurst, 3 April 1823, HRA, IV, I, 464‐5. 40 SG, 27 January 1821, 3c‐4a. 41 SG, 26 May 1821, 3b. 42 SG, 7 April 1821, 3b.

199 performance of the conditions of the grant … the estate was forfeited to the Crown.’ Field decided the case on other grounds but took the opportunity to declare the law on forfeiture of land to the Crown. As I have pointed out in Chapter Four, the Crown could not seize forfeited land without ‘office found’, a mandatory step it had to take before seizing the real property of an attainted person. The Crown could not regrant forfeited land without first instituting this procedure. In England, an Exchequer writ issued to the Sheriff to empanel a jury. Its task was to inquire into the attaint of the owner and the facts of his or her ownership of the land. The machinery provisions of ‘office found’ were not available in the colony, but as Campbell has pointed out, upon the governor applying to the Exchequer a Commission of Escheat issued to him to initiate the procedure.43 In his judgment Field attempted to allay fears that the Crown would exercise its rights over convicts’ or emancipists’ property by outlining the legal impediments it faced in ‘office found’ before seizure of property. Field inferred that the process was so involved the Crown would not go to the lengths required. Accordingly, emancipists’ real property was safe, notwithstanding the doctrine of attaint.

Field had other reasons for publishing these views on forfeiture, in addition to his desire to quell emancipist fears for their property. He sought recognition for his learning in the law, and he courted popularity, even with emancipists. He also had an eye to the appearance of Bigge’s report on the colony. Although Bigge had left by the time Field published his remarks on forfeiture, he anticipated that Bigge would read the Gazettes when they reached England. Field hoped, in vain, that his remarks would influence Bigge to write favourably on him in his forthcoming report.44

More importantly, Field only granted adjournments against Eagar. After the granting of adjournments to those defendants sued by Eagar in Field’s court, no other defendant ever sought to prove his opponent was attainted. Request for adjournment in Eagar’s 1820 cases were proffered by W. H. Moore, a forthright

43 Enid Campbell, ‘Conditional Land Grants by the Crown,’ Sydney Law Review 5, (1965–7): 274. 44 An account of Eagar’s action against Manigault, although it took place after Bigge’s return to England, appeared in his First Report,136.

200 anti‐emancipist, who acted as attorney for those sued by Eagar. Field and Moore were close.45 Field’s deep antipathy towards Eagar made it likely that Field and Moore conferred and it was agreed that if Moore raised attaint against Eagar and applied for an adjournment to prove the allegation it would be granted. Whether or not they conspired, no other litigant during the remainder of the court’s existence, a period when Eagar was absent from the colony, challenged the plaintiff’s ability to sue on the grounds of attaint. Thus, though, as Forbes pointed out, Field’s use of the discretion to adjourn Eagar’s action was inappropriate it did not have a lasting, negative impact on emancipist litigation because no further adjournments were granted after Eagar left the colony.46

Indeed, three years after granting adjournments to prove Eagar’s attaint, Field seemed to return to his earlier view that court proceedings should not be adjourned to allow time to prove convict attaint. In 1823, he observed to Bathurst that if ‘the courts should be mad enough’ and so ‘indiscreet’ as to allow adjournments to obtain proof of attaint then the alleged attaint had time enough to procure the King’s pardon.47 Currey believed it to be ‘amazing’ that Field should have written those words after he had sought and granted adjournments.48

Field further downplayed his adjournments in his comments on Bigge’s proposals for the coming New South Wales Act. Bigge proposed that existing remissions by the governor of the time or term of transportation be effective in the colony but not outside it unless ratified by the Crown. Field submitted that it was irrelevant whether ratification took place or not because he permitted everyone to sue until it was proven that he or she was an attainted convict.49 As we have just seen the ability to prove attaint depended on the discretion of the court.

Goulburn and Field were united by Macquarie’s permitting emancipists to petition for legislative relief. Goulburn was aware that Macquarie’s resignation had

45 Moore acted for Field in the recovery of over‐due court dues owed to him from Amos’ estate. See Gurner v. Terry, SR SC 9/2254, 9/2223 #261. 46 HRA, IV, I, 483‐4. 47 Field to Bathurst, 15 January 1823 – HRA, IV, I, 424. 48 Currey, Sir Francis Forbes, 33. 49 See Field’s judgment in Doe dem. Jenkins v. Pearce [1818] NSWKR4.

201 been accepted and that he expected to hold office under him for a very short period. News of his replacement by Brisbane was general knowledge in the colony by May 1821.50 This was a time when Field was ‘on the worst terms with [Macquarie] and [had] publicly condemned’ his measures.51 During this time, an opportunity arose for Field that month to repeat his anti‐emancipist convictions. Eagar had sued Manigault under the Navigation Act the previous year but had not prosecuted his action. Manigault applied to strike out the action and Eagar appeared in court to oppose it. Field granted the application, on the basis that he had no jurisdiction to hear the claim.52 Field sourly observed that Eagar was a convict of ten year’s standing. Emancipists, ‘creatures of remission and indulgence’, had become wealthy and prosperous through trade. They did not deserve the right to avail themselves of penal actions such as were contained in the Navigation Act.53 Field decided that it was more important to block Eagar’s right of suit than to allow a worthwhile action that could have benefited colonial trade.

Goulburn was also indifferent to the consequences of holding differing opinions from Macquarie on the administration of the colony. When Macquarie’s departure was announced and he was on a farewell tour of Van Diemen’s Land, Field and Goulburn ventured on a show of independence.54 They collaborated on the issue of a proclamation, a public expression of government administration. Goulburn did not have a ‘high opinion’ of Macquarie as an administrator.55 He requested Field to draw up a Government and General Order controlling the use and storage of gunpowder.56 This was a sound measure but there was no urgency in its passing.57 Never before had a proclamation been issued in anybody’s name but Macquarie’s, and the proposal led to a bitter dispute between Field, Macquarie

50 Carol Liston, New South Wales under Governor Brisbane, 1821–1825 Ph.D. Thesis, Sydney University, 1981, 26. 51 Lieutenant Governor James Erskine to Bathurst, 15 September 1821, HRA, IV, I, 396. 52 SG, 26 May 1821, 2b. 53 Bigge, I, 134. 54 John Ritchie, Lachlan Macquarie (Melbourne: Melbourne University Press, 1988), 182. 55 Hazel King, ‘Frederick Goulburn: The Man and his Office,’ Australian Journal of Public Administration 38, no. 3 (1979): 235. 56 Field to Bathurst, 1 August 1821, HRA, IV, I, 389; SG, 5 May 1821, 1a‐c. 57 In 1814 a gunpowder explosion on the Three Bees in Sydney Harbour hurled debris against houses on the waterfront, SG, 21 May 1814, 1d.

202 and Lieutenant Governor James Erskine in whose name Field and Goulburn sought to issue the proclamation. When the governor in Van Diemen’s Land became aware of his subordinate’s actions he immediately ordered that the proclamation be rescinded.58 The dispute made it back to London, on the important point whether the Lieutenant Governor had the power in the absence of the Governor, to issue proclamations.59 The rescission of the order caused both Erskine and Goulburn, and to a lesser degree Field, immense embarrassment. Goulburn and Field hastened to avenge themselves for their discomfiture once Macquarie’s authority ceased.

Following Macquarie’s rescission of the proclamation, relations between Field and Lieutenant Governor Erskine ebbed low. Yet Field had to make another request to Erskine on behalf of Reverend Marsden. Field requested Erskine to act again as Macquarie’s surrogate in a matter in which Eagar was involved. It was not a political contest but a commercial dispute in which not even public scrutiny could restrain Field from punishing Eagar with a decision so adverse that it had to result from the blurring of public duty and private interest.

Eagar had attempted to encroach on Marsden’s trading monopoly with King Pomare of Tahiti. Eagar contracted with S. P. Henry, a missionary’s son, to sail Eagar’s vessel to Tahiti, barter it with the King for a cargo of pork and then sail the pork back to Sydney in the same vessel now leased from the King.60 When Henry returned with the pork he informed Eagar that the King had refused Eagar’s terms and accordingly the pork remained the property of the King. Eagar asserted that the ship’s mate would give evidence that the King had traded the vessel for the pork, and that Henry had to account for the profits of the trade. Eagar seized the cargo of pork to force Henry into giving an accounting of the venture. Marsden, it seems, had convinced Henry to pursue this course of action to protect his monopoly in the Polynesian trade. He was, according to Governor Brisbane,

58 SG, 1 September 1821, 2b. 59 See foot note 69. 60 See A.T. Yarwood, Samuel Marsden, the great survivor (Carlton South: Melbourne University Press, 1996) 245, for Brisbane’s bias towards Marsden’s part in the affair.

203 Henry’s ‘abettor and adviser’.61 Marsden consulted Field who advised Henry to lay an information in the Criminal Court against Eagar for the theft of the pork. The prosecution failed, however, as ownership of the pork could not be determined beyond reasonable doubt.62

Field then advised that Henry should commence proceedings against Eagar in his court claiming damages for Pomare’s loss of the value of the cargo of pork.63 Eagar cross‐claimed in his own proceedings against Henry although without any prospect of success before Field.64 After commencing the proceedings, Henry advertised his intention of leaving the colony. Superficially, it seemed it would not benefit Eagar to restrain Henry’s departure as neither of them, being parties to the action were permitted to give evidence against each other.65 If Eagar was sufficiently determined to restrain Henry from leaving he could have applied to Field for the equitable writ ne exeat regno available for that purpose.66 However Eagar saw another way of harassing Field who had arrogated to himself Wylde’s role of adjudicating on applications to leave the colony.

Judge Advocate Wylde was the legal officer granted the power to adjudicate on Eagar’s demand that Henry not be allowed to depart. Wylde had drawn up rules of practice for this sort of claim. He required that a person who was restrained from departure should seek the issue of a summons requiring the person who wished to delay departure to show cause why the detainer should not be discharged. If the claim was unjust or unreasonable it was dismissed with costs, but Wylde reserved to himself, if he thought appropriate, the authority to allow the person wishing to depart to leave on giving security to appear and answer any suit

61 Brisbane to Bathurst, 31 August 1822, HRA I, X, 725. 62 SR, SC appeal papers 2/8143 187, 227. 63 Henry v. Eagar [1821] NSWKR 11, reported SG, 25 August 1821, 3a‐c, 4a‐b. 64 Eagar cross‐claimed against Henry, 29 June 1822 but the suit lapsed for want of prosecution two years later, SR, SC cause papers, 9/2257 #786. 65 Detainers were imposed by regulation 42 of the port regulations and proclaimed SG, 6 February 1819, 1a – see Port Regulations established by proclamation, bearing date sixth February, 1819, to be duly observed by all masters or commanders of vessels … at Port Jackson… (Sydney: 1819). Field urged Erskine to assume Macquarie’s authority and authorise him to act on detainers. Second Charter of Justice, HRA, IV, I, 86‐7. 66 Edward Chitty, Index to cases in equity and bankruptcy (London: Saunders and Benning, 1831), 1158.

204 in the civil courts or to pay any debts where a prima facie case was made out, that may be recovered.67

Wylde was in Van Diemen’s Land with Macquarie when the civil dispute arose. So Field sought to assume Wylde’s jurisdiction to hear the matter. Field claimed that Wylde’s office asked him to officiate in granting certificates to allow persons to depart from the colony. For Field to assume Wylde’s authority he had to obtain Lieutenant Governor Erskine’s approval. Field assured Erskine that in Macquarie’s absence he had the power to authorise Field to act, advice that was only partly correct.68 Erskine refused to give Field the power he sought but Field continued without authority.69

Eagar reasoned that if he applied to Field and was unsuccessful he had grounds to attack Field for unlawfully assuming a jurisdiction over which he had no authority. Eagar therefore sought to restrain Henry and was served with a summons to appear in the Supreme (civil) Court on 26 June 1821 to show cause why the detainer preventing Henry from leaving the colony should not be discharged. Eagar complied and found Field sitting with two regularly appointed magistrates. Eagar objected to the short notice he had been given to appear. Field agreed to adjourn the proceedings only because it gave him more time to try again to obtain Erskine’s approval. Marsden was present and sitting on the bench even though he was not a magistrate. He was present at Field’s invitation as an observer. Field then ordered a fresh summons to be prepared for service on Eagar and announced that he would dispose of Eagar’s detainer against Henry the following day in Wylde’s chambers and excused the magistrates from further attendance in the matter.70

67 See SG, 30 June 1821 3b; SR, SC 9/2257, judgment rolls, miscellaneous process papers. 68 James Stephen junior, advised that only while the governor was at sea could the Lieutenant Governor deputise for him, HRA, IV, I, 415‐7. Stephen echoed Field’s suggestion that if there was doubt about the powers of the Lieutenant Governor to act in the Governor’s absence, this should be clarified by Parliament. 69 Field to Erskine, 27 June 1821, HRA, IV, I, 1821. 70 SR, SC 9/2257, judgment rolls, miscellaneous process papers.

205 Field had overreached himself.71 Anticipating Eagar’s challenge to his authority Field made a final attempt to obtain approval. Erskine, still smarting from Macquarie’s recent rebuke over the gunpowder proclamation, refused. Field proceeded nonetheless. He began by asking Eagar to show cause. Immediately, in a vitriolic exchange, Eagar challenged Field’s authority to sit. Field proposed a further adjournment of a few hours in which Eagar should prepare an affidavit. Eagar refused as Wylde did not require evidence on oath when he adjudicated on detainers.72 Field cut Eagar short by discharging the detainer.73 Field published an account of the proceedings in the Gazette and Henry left the colony.74

After having his claim for a detainer rejected, Eagar responded by exploiting Field’s vulnerability to criminal action.75 On Wylde’s return Eagar applied to him to exhibit an information against Field and file it in the Criminal Court. Eagar alleged Field was guilty of the misdemeanour of unlawfully and without any authority taking it upon himself to hear and determine a matter of detainer where he had no jurisdiction, or such other proceedings as to him seemed meet and the nature of the case required. He alleged that Field’s action was illegal, unprecedented and oppressive to him.

On this claim sworn before him in his chambers on 24 July, Wylde wrote:

No sufficient grounds appear suggested to warrant any charge for misdemeanour to be exhibited to the Court of Criminal Jurisdiction established in New South Wales the only procedure by which the office and functions of the Judge‐Advocate of the territory could immediately give effect in any mode or degree to the object of the memorial.76

Even if Wylde had agreed to proceed by information against Field, Eagar could not have succeeded. At law it had been held:

[T]hat even where a justice acts illegally … yet if he has acted honestly and

71 Field to Erskine, 27 June 1821, HRA, IV, I, 392. 72 Bigge, II, 50. 73 SR, SC 9/2257, judgment rolls, miscellaneous papers. 74 SG, 30 June 1821, 3b; Henry departed 4 July 1821 for New Zealand and Otaheite (Tahiti), SG, 7 July 1821 2b. 75 When responding to Bigge’s request to provide defects in the Charter of Justice on 23 October 1820, Field urged that the governor, his deputy and the judges be exempted from arrest or criminal trial, HRA, IV, I, 861. 76 SR, SC 9/2257, judgment rolls, miscellaneous process papers.

206 candidly, without oppression, malice, revenge, or any bad view or ill intention whatsoever, the Court will never punish him in this extraordinary mode by an information, but leave the parties complaining to their ordinary legal remedy or method of prosecution, by action or by indictment.77

For Eagar to succeed on this authority he would have had to prove that Field acted corruptly. He had no proof of this. The alternative was to take civil action in the Governor’s Court – a futile act given the events of the preceding months.

Eagar’s attempt to have Field dealt with criminally suggests that Eagar was intent on provoking Field into a further display of bias, antagonism and emancipist suppression. These would be additional grounds for his recall. No doubt Wylde apprised Field of Eagar’s demand for criminal action. So when Henry’s action against Eagar on behalf of Pomare, was heard, Field refused to grant an adjournment until Eagar’s witness, his ship’s mate, returned to Sydney to give his evidence that Pomare had accepted Eagar’s vessel in exchange for the cargo of pork. Eagar’s appeal from Field’s decision to the governor sitting as the colony’s appeal court was unsuccessful. However, he was so driven and determined to expose Field’s bias and injustice that he made a final appeal to the Privy Council. He was eventually vindicated when Field’s judgment was reversed.78

Field proved that even when the litigation did not involve him personally, he still used the court to pursue his vendetta against Eagar. The conflict that had raged between the two ended with Eagar’s imprisonment. A week after ruling against Eagar on the Henry claim, Field ordered Eagar to be arrested, gaoled for a day and dealt with the following day for ‘contemning’ (scorning) him. Behind this malevolent abuse of power was retaliation for Eagar’s attempt to have Field tried for a criminal misdemeanour. Field only had power to imprison without trial for contempt committed in the face of the court, for when charged with behaviour

77 Richard Burn, The justice of the peace, and parish officer rev. George Chetwynd vol. 3 (London: T Cadell and W Davies, 1820), 138, citing The King against Jackson and Another (1787) 1 TR 653; 99 E.R. 1302, Court of King’s Bench. 78 Macquarie Law, Unreported Judicial Decisions of the Privy Council, on Appeal from the Australian Colonies before 1850, Eagar v. Henry [1827] appeals Committee of the Privy Council, 1827.

207 outside the courtroom Eagar had to be given the opportunity to defend himself.79 On the day of Eagar’s arrest, Field relented and ordered his discharge six hours later.80 Imprisonment without trial was as grave as the whipping of free men without conviction.81 Two months after this final indignity Eagar sailed for England to continue agitating for emancipist advancement.

As the emancipist mobilisation engineered by Eagar occurred in Macquarie’s last days we must examine its consequences before turning to the political consequences that followed Governor Brisbane’s arrival in the colony. When Eagar arrived in London he maintained the emancipist agitation that Field’s reliance on Bullock v. Dodds had caused. In part, his intervention led to the adoption in the New South Wales Act of 1823 of Bigge’s proposals, confirming the effect of colonial pardons, and securing the rights of emancipists in the colony.82

Field on the other hand argued hard that there was a flaw in the pardoning process. He wrote to Lord Bathurst at the time that Eagar was lobbying for changes beneficial to emancipists, before the passage of the New South Wales Act 1823.83 Field argued that in the Act 30 Geo. III, c. 47, the Act of 1790 mentioned below, a right had been reserved to the Crown to review the conduct of the person who had been granted by the governor a remission of the time or term of transportation. This review was to take place before his or her name was passed beneath the Great Seal to effect a pardon. Yet Field tempered this attack on emancipists’ rights with

79 William Tidd, The practice of the Court of King’s Bench in personal actions: with references to cases of practice in the Court of Common Pleas, 3rd ed. vol. 1 (London: J. Butterworth, E. Brooke and J. Clarke, 1803), 149, 437. 80 SR, SC judgment rolls, 9/2257, miscellaneous process papers. 81 Paul Edwin Leroy, ‘The Emancipists, Edward Eagar and the Struggle for Civil Liberties,’ Royal Australian Historical Society Journal 48, no. 4 (1962): 273. 82 See p. 210 for the remedial effects of the New South Wales Act. 83 See Field to Bathurst, 15 January 1823, HRA, IV, I, 424. The New South Wales Act was passed on 11 July 1823 and received Royal Assent eight days later.

208 the observation that ‘His Majesty’s Secretary of State for the Home Department would not refuse [the King’s pardon] to any expiree’.84

Currey has argued that there was ‘nothing in the Act of 1790, 30 Geo. III c. 47 or the Letters Patent (authorising the governor to remit the time or term of transportation) to support this alleged power of review.’ Currey believed Field misinformed himself and ‘misled others’ by referring to the ‘precarious nature’ of governors’ pardons.85 Field was relying on the last clause of section 1 of the governor’s remission act for the basis of his argument. That clause gave the remission the effect of the ‘Royal Intention of Mercy under [the] Sign Manual’ which was the King’s promise to pardon and was personally signed by the King.86 Field had in mind judicial statements on the procedure under a Sign Manual pardon.87 In The King v. Beaton it was held that the correct form of a Sign Manual should state that the prisoner should give security for good behaviour for a period of years and enter into a recognizance to comply with conditions in the Sign Manual.88 A Sign Manual might issue stating that no conditions were applicable.89 Finally, a Sign Manual could be revoked.90 For these reasons, Field maintained, the governor’s pardon was precarious.91

Field’s argument was deeply influential in the Colonial Office circles. It accorded with an acknowledgement in the Colonial Office that the Crown’s power to withhold grace and favour in the act of pardoning had to be preserved.92 That power could only be curtailed if clearly stated in legislation or by custom.93 The

84 Field to Bathurst, 15 January 1823, HRA, IV, I, 424. 85 Currey, Sir Francis Forbes, 33; ‘precarious nature of pardons’, Bigge, I, 134. 86 30 Geo. III c.47 s.1; Sign Manual pardon see The King v. Maximilian Miller (1772) 2 W.Blackstone 797; 96 ER 468 (KB). For the affixation of the King’s signature see Hansard The Royal Sign—Manual Bill, HC Deb 27 May 1830 vol. 24 cc1148‐55. 87 The King v. Maximilian Miller (1772) 2 W.Blackstone 797; 96 ER 468 (KB). 88 The King v. Beaton (1764) 1 W.Blackstone 479; 96 ER 277 (Lord Mansfield, CJ KB). 89 See The King v. The Inhabitants of Haddenham, (1812) 15 East 463; 104 ER 918 (Lord Ellenborough, CJ KB). 90 The King v. Maximilian Miller (1772) 2 W.Blackstone 797; 96 ER 468 (KB). 91 Bigge, I, 134. 92 Observations by Mr. Wilmot upon the Papers drawn up by Mr. Forbes and Mr. Eagar, HRA, IV, I, 422. 93 Anonymous, ‘The Royal Clemency,’ The Solicitor’s Journal and Weekly Reporter 54 (1910): 534, citing the Habeas Corpus Act of 1679 s. 11 that enacted that certain offenders shall ‘be incapable of any pardon from the king, his heirs or successors’.

209 Crown’s power to grant or refuse a pardon could not be withdrawn after a judge who condemned a prisoner to death, recommended him or her as a proper object of Royal mercy.94 Royal Warrant Pardons did not issue from the Crown in response to recommendations from a trial judge. The few that were granted did not issue until after transportation to the colony.95

Bigge was dubious about Field’s proposals and only partly agreed with them. He was clearly mindful of the ramifications of the granting of adjournments and the potential for disorder. Eagar was on hand to impress on Bigge the need for remediation of the injustice to emancipists. Bigge chose a path between Field and Eagar’s proposals. Bigge recommended that the Crown have a reserve power to revoke the governor’s remission and, if the Crown did not exercise that power within two years, the remission should be confirmed.96 This reasoning, if it was adopted, James Stephens successfully pointed out, violated the ‘solemn pledge of His Majesty and the Two Houses of Parliament’ to confer an absolute pardon on a remitted convict.97 Bigge also proposed that the governor’s remission of sentence should confer at once all the rights that a pardon under the Great Seal could confer so long as the person in receipt of the pardon remained in the colony and conformed to the condition stated in the pardon.98 His proposal was not adopted.

The New South Wales Act 1823 provided that former remissions of the governor that had not been transmitted to England were deemed to have the same effect in the colony as if they had been passed under the Great Seal. Emancipists now had access to colonial courts and their property rights were secured. Future remissions of the term of transportation were to be sent to England for

94 See (1768) 8 Geo. III c. 15, for example. 95 See for example, Robert Bostock – granted a Royal Warrant Pardon, 31 January 1816, after arrival in the colony in 1815, SR, reel 772, page 006‐008 4/4495; six were recorded between 1810 and 1818, TNA (PRO) reel 106, CO 201/118, 201‐6. 96 Bigge, I, 174. 97 List of points of Francis Forbes 1 January 1823, for consideration in the New South Wales Bill, HRA, IV, I, 417‐22; Opinion of Richard Wilmot, Parliamentary Under Secretary of the Colonial Office, ibid. 422‐3; Currey, Sir Francis Forbes, 34; Mr James Stephen’s Criticism of New South Wales Bill 10 May 1823, HRA, IV, I, 476. 98 Bigge, I, 174.

210 approbation by the Crown. If it was forthcoming, this had the effect of a pardon under the Great Seal, but in the colony only.99

The Colony under Governor Sir Thomas Brisbane

Bigge left the colony on 14 February 1821. He did not return to London in time to discuss Field’s unsuitability for the post of judge in a penal colony with Sir Thomas Brisbane, who was going out to replace Macquarie.100 The two had no opportunity to discuss the politics of the colony. Upon Brisbane’s arrival, Field demonstrated quite independently, the political potency of his post and the need for its immediate reform. Under Brisbane, as under Macquarie, he repeatedly demonstrated the power of the court to aggravate social discord in the colony, and its capacity to serve private interests rather than the public good. Under the lax reign of the new Governor Brisbane, the already discredited Field wielded enormous administrative power in the colony. The inexperienced governor and his new Colonial Secretary, Frederick Goulburn, relied extensively on Field’s legal knowledge and his political acumen. True to form, Field wielded this power to advance exclusivist interests. In the process, he demonstrated the need to contract and refine the role of colonial judges in politics outside the court.

Class relationships

Field was a pivotal figure in the public expression of hostility between the classes by the time of Macquarie’s departure. A public meeting was proposed for the purpose of formulating addresses to the outgoing and incoming governors. Field refused to be associated with the requisition to hold the meeting because emancipists, euphemistically referred to as ‘other Free Inhabitants’, were invited to sign it. Instead of ignoring this bigotry and publishing one requisition, out of

99 New South Wales Act, (1823) 4 Geo. IV c. 96 ss. 34, 35. 100 Bigge’s return was noted in The Times, 12 March 1822, 4a issue 11503; for Sir Thomas Brisbane’s embarkation for New Holland see Caledonian Mercury, Edinburgh, 21 June 1821, 4d issue 15569.

211 respect to Field’s office, two were published. Field did not sign the ‘Macquarie’ requisition but his name appeared in the ‘Brisbane’ requisition.101

At the meeting the proposed address to Macquarie was read and approved. Field then moved that the address he had taken upon himself to compose, be delivered to Brisbane. Much altercation ensued after it was suggested that words flattering to Macquarie be added. Field argued strongly against any positive references to Macquarie’s administration. After some ‘very illiberal observations’ were made on both sides, the amendment was lost and Field’s address was approved.102 Who should bear the addresses to the governors provoked even more contention. Sir John Jamison commented publicly on the ‘lamentable want of unanimity’.103 Only by excluding the possibility that emancipists could be included in the addresses would those persons who signed the requisitions agree to deliver the addresses to both governors. Emancipists were included in the address that was delivered to Macquarie but remained excluded from Brisbane’s. Macquarie’s reply touched on the deep divisions in the colony when he abjured the ‘separate Classes’ to show ‘forbearance to each other’.104

Field’s insult to Macquarie was no surprise to the governor. The day before Macquarie made his farewell speech to his Fellow Citizens of Australia, he wrote ‘Marsden’ and ‘Judge Field!’ heavily underscored in a list of names of those he identified as ‘Factions and dissatisfied in N S Wales on 30 November 1821’.105 Macquarie referred to them the following day:

I am well aware that every man in public life must have enemies, and perhaps it would be unreasonable, in me, to expect to be totally exempted from the virulent attacks of party and disaffection; – But buoyed above the fear of base calumny, vindictive slander and malicious reproach … [I defend myself by] the purity of my motives and the rectitude of my actions …106

101 SG, 1 December 1821, 1c. 102 Allen, George, Extracts from the journal of George Allen, 1800–1877 [By] George Wigram Dundas Allen (Sydney: Angus &Robertson, 1958), 160. 103 SG, 8 December 1821, 1c. 104 SG, 15 December 1821, 3a‐b‐c. 105 Macquarie papers – memoranda and related papers ML CYA772, 175. 106 SG, 1 December 1821, 2a.

212 Field’s determined insult and Macquarie’s speech introduced Brisbane to the colony’s politics of party and faction. Macquarie briefed Brisbane privately on the subject and expanded on his beliefs that emancipists should be treated as equals with exclusivists. Macquarie singled out Judge Field, the Parramatta Party and its sympathisers as the members of a faction that so strenuously opposed him. Brisbane learned something of the obstruction Macquarie had also suffered in the past year from the ‘arrogant, mutinous’ Goulburn.107

There had been a great deal of speculation about changes to the administration of the colony’s penal system in the wake of Bigge’s investigation, Goulburn’s appointment and Macquarie’s departure.108 D’Arcy Wentworth’s son William hoped that Goulburn’s appointment, through his influence on his brother Henry, Under Secretary of the Colonial Office, would ‘procure a relaxation of the system of oppression under which [the colony] is labouring.109 Exclusivists anticipated changes to the contrary after Judge Field conveyed to them the instructions Goulburn had received. Colonists who employed convict labour wondered if alterations to the assignment system would affect them. However, Brisbane arrived with instructions that would dash the young Wentworth’s hopes. Brisbane was ordered to introduce a system that would induce terror in the convict population. It took some time to implement.110 Prisoners for their part speculated that the ready path to the grant of a ticket of leave or emancipation they enjoyed under Macquarie might alter.111

The standing of emancipists at Brisbane’s arrival was far more complex than it had been under Macquarie. Macquarie had been so obviously sympathetic to them, spurning the attitude of ‘high and mighty’ aristocrat from Government

107 M. H. Ellis, Lachlan Macquarie (Sydney: Angus and Robertson Publishers, Famous Australian Lives Edition 1978), 457, 503. 108 Ritchie, Punishment and Profit, 73‐79; the pamphlets of Henry Grey Bennet, in Ritchie, Punishment and Profit, 303; Parliamentary debate –The Times, 19 February 1819, 2c, Issue 10601. 109 W.C. Wentworth to D’Arcy Wentworth, 1 May 1820, quoted by King, ‘Frederick Goulburn: The Man and his Office,’ 234. 110 Raymond Evans, ‘Creating ‘an Object of Real Terror’: The tabling of the first Bigge report,’ in Turning Points in Australian History, ed. Martin Crotty and David Andrew Roberts (Sydney: University of New South Wales Press Ltd., 2009), 111 Bigge noted without comment the number of tickets of leave and ‘pardons’ Macquarie granted, see Report, I, 120.

213 house.112 From the beginning of Brisbane’s administration, Field and Goulburn sought to make the colonial administration much more hostile to emancipists – Goulburn through his independence and Field through his obsequiousness to Brisbane.113 To emancipists this appeared ominous. They presumed that these public attacks were a prelude to a new, anti‐emancipist regime under Brisbane. Ritchie argues that under Parramatta Party oppression, emancipists were rendered ‘desperate’ and their agitation was stifled.114 With the arrival of a new governor and Eagar’s departure, emancipist activity ceased to be as combative. In Eagar’s absence, litigation was far less spectacular than it had been between Eagar and Field. Table 1 indicates that during 1821 there was only a temporary abatement in the number of emancipists suing. In the following years however, they litigated in numbers not seen since the opening of the court in 1817. Emancipists clearly re‐engaged with the courts. Their concerns about Field’s exclusivism abated when it became clear that Field would not bar them from appearance before the court. As previously observed, after Eagar’s departure, no allegation of attaint was raised. Also, as with the last change of court structure, they may have litigated in greater numbers for the reason that the new courts promised by Bigge’s reforms would be more uniformly closed against them. Their plaintiff participation rate in the court in 1822 was the greatest in the court’s history, their defendant rate the second highest.115

Brisbane and Field in conflict

Field was assiduous in attempting to sway Brisbane to his views that emancipists should be suppressed and he became ‘the most sycophantic’ in the new governor’s

112 Ritchie, Macquarie, 223; Ian Duffield, ‘Billy Blue: Power Popular Culture and Mimicry in Early Sydney,’ Journal of Popular Culture 33, no. 1 (1999): 10; Margaret Steven, 'Palmer, John (1760– 1833)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http ://adb.anu.edu.au/biography /palmer‐john‐2533/text3437, accessed 18 December 2012; Margaret Steven, 'Palmer, George Thomas (1784–1854)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au / biography / palmer‐george‐thomas‐2532/text3435, accessed 18 December 2012. 113 SG 3 October 1828, 2c. 114 Ritchie, Macquarie, 223. 115 See Table 1 – p. 192.

214 train of admirers.116 Within weeks of Brisbane assuming office Field and Jane invited the Governor and Lady Brisbane to visit their residence in Sydney and they stayed overnight.117 Goulburn and the other civil officers were present at dinner.118 Afterwards, in Field’s library, in one of the earliest cabinet meetings of colonial government, Field used the opportunity to attempt ‘to poison [the governor’s] mind’ against emancipists.119 When the conversation turned to the Philosophical Society of Australasia, Goulburn and Field who had been closely associated in its formation the previous year invited Brisbane to accept office as its president at its next meeting, to be held the following month.120

These social events symbolised the early days of the new administration. Goulburn and Field had the reins of government with Brisbane as its nominal head. Before his appointment, the Colonial Office suggested ‘that Brisbane was too fond of astronomy and would not devote his full attention to the civil government of the colony.’ Speculation was it resulted in his recall.121 Brisbane relied on his subordinate, Goulburn to correspond with the Colonial Office.122 Goulburn had already turned to Field in relation to the gunpowder proclamation and blamed Macquarie, not Field for the embarrassment that followed.

Despite social overtures, differences between Brisbane and Field soon emerged. They could not agree over the resumption of land by the Crown for non‐ compliance of the conditions in the grant.123 Field believed that a long procedure of enquiry was required before the Crown could resume the land that had not been cleared and cultivated in accordance with the terms of the grant. Field had already fallen out with Macquarie over this issue. Macquarie had warned Brisbane that Field required the correct procedure to be followed but had ruled that it was unavailable in the colony. Brisbane therefore believed that the conditions in grants

116 SG, 3 October 1828, 2c. 117 Macquarie did not vacate Government House in Sydney until his departure. 118 SG, 22 December 1821, 3a. 119 SG, 3 October 1828, 2c. 120 Brisbane had accepted the presidency –SR, reel 6040, SZ 1007, 19; SR, reel 6040, SZ 1007, 37. 121 Liston, New South Wales under Governor Brisbane, 1821–1825 Ph.D. Thesis, 23, 459. 122 Ibid., 32. 123 For Field’s decisions on land grants see p. 200.

215 were inoperable.124

A larger rift in relations between Brisbane and Field began with the enquiry into Major George Druitt’s financial speculations whilst the civil engineer of the colony. Druitt was the unfortunate victim of the factional infighting that constituted the politics of the first days of the new administration. He had been an enthusiastic supporter of Macquarie’s pro‐convict policies. After Macquarie’s resignation, Druitt was brought to account for his support of Macquarie’s policies and his disregard of the exclusivists’ strict moral beliefs. Field headed the proceedings against Druitt in an attempt (The Gazette alleged) to bring about Druitt’s ruin and disgrace. If Field could succeed in persuading Brisbane to repudiate Macquarie’s policies, then an attack on Druitt would bring Field favourable attention from exclusivists during Brisbane’s administration.125

Statements from various quarters alleged that Druitt was defrauding the public.126 The charges were excessive expenditure in the Engineer Department and the use of government animals and labour for his own purposes.127 The enquiry that resulted heard allegedly perjured evidence by ‘fellows of the vilest description … from the most degraded penal settlements.’128 This was ironic given that the enquiry was an exclusivist stitch‐up. Macquarie had warned Brisbane that the allegations against Druitt resulted from party politics. The day before Field and the other members of the enquiry commenced their deliberations on the charges Druitt faced, Brisbane requested the committee of enquiry members to meet in his chambers. Brisbane required the members to acquaint him with the facts so that he could determine whether their enquiry was free from prejudice and above

124 Governor Brisbane to Lord Bathurst, 8 February 1825, HRA, 1, XI, 495, 497; for conditions in grants see Alan W. Williams, ‘Colonial Origins of Land Acquisition Law in New South Wales and Queensland,’ The Journal of Legal History 10, no.3 (1989): 354; HRA, I, I, 441; grants were ‘conditioned not to sell or alienate the same for the space of five years from the date hereof and to cultivate (a number of) acres within the said period’; for Macquarie’s actions over unfulfilled conditions, see Bigge, III, 37. 125 SG, 25 June 1827, 2b. 126 M. Austin, 'Druitt, George (1775–1842)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/druitt‐george‐1994/ text2431, accessed 17 December 2012. 127 Brisbane to Major‐General Sir Herbert Taylor, 4 March 1822 – HRA, I, X, 626,627. 128 SG, 25 June 1827 2b.

216 partiality.129 Even though Druitt was satisfied with Field’s conduct of the proceedings, Brisbane concluded that the object of the enquiry was to avenge exclusivist resentment against Druitt’s political leanings. Field took offence when the governor announced his opinion. Field argued that he had conducted the proceedings fairly and consequently withdrew ‘in a pet’.130 Indeed, Brisbane should not have interfered with a judicial proceeding and Field had grounds for resenting his actions. Field complained at once to Lord Bathurst and blamed Macquarie for Brisbane’s bias against him.131 Field turned on Brisbane from that moment forward though Brisbane did not understand either Field’s reaction or his change of attitude. Their dislike of each other eventually became mutual.132 Field, who was the first to introduce Brisbane to the colony became the first to ‘unfurl the banner of opposition’ to his administration.133 Dr. Henry Grattan Douglass completed the enquiry after Field’s resignation and Douglass’ ascent in the administration of the colony commenced.

A series of petty slights now passed between the judge and the governor – demonstrating the increasing importance of manners in colonial politics. As Penny Russell has noted, ‘manners … [underpinned] … social status … and set [those who possessed them] … firmly apart from others less worthy.’134 After Field entertained Brisbane at his table early on in his administration, Brisbane offered Field a return invitation to Government House at Parramatta. Possibly the occasion was the anniversary dinner of the Philosophical Society in June 1822.135 However, Brisbane did not offer to provide Jane Field with accommodation overnight.

Field was offended as he felt that accommodation had been promised, and was suitable recognition of his status in the colony.136 He resolved never to set foot in Government House at Sydney or Parramatta. Lord Bathurst perhaps was being

129 SR, reel 6008, 4/3504A, 338. 130 SR, reel 6053, 4/1755, 414, 473. 131 Field to Bathurst, 4 February 1822, HRA, IV, I, 404. 132 SG, 25 June 1827, 2b. 133 SG, 3 October 1828, 2c. 134 Penny Russell, Savage or Civilised? Manners in Colonial Australia (Sydney: University of New South Wales Press Ltd., 2010), 8. 135 SR, reel 6040, SZ 1007, 67. 136 Mackenzie, Scandal in the Colonies, 5.

217 ironic when he raised the matter on Field’s recall and accepted that ‘Mrs Field couldn’t travel 16 miles to dinner to dress and sleep at an inn and always had a bed when Lachlan Macquarie was Governor.’137 It was not prejudice against the Fields – all visitors to Government House at Parramatta had to pay for accommodation locally.138 Brisbane’s desire for privacy and economy was to blame. The governor wanted as little interruption to his scientific work as possible.139 Brisbane’s international reputation as an astronomer may have been another basis for Field’s resentment.140 Both in and out of court politics and personality reigned.

Goulburn as Colonial Secretary

It took a little longer for Field to fall out with Goulburn. The Colonial Secretary wielded enormous power under Governor Brisbane. His office ‘was not one known to the law of England, and had no “definite duties, rights or emoluments attaching to it”.’141 Moreover, Brisbane was a very hands‐off administrator, who left much to his Colonial Secretary. For some months, Field continued to influence Goulburn greatly. Goulburn had the gunpowder proclamation, disallowed by Macquarie, promptly reissued after Macquarie’s departure.142 Field’s influence was also evident in Goulburn’s issue of a commission of the peace. The 26 justices named in this commission reflected exclusivist networks. Despite his claim to the contrary,

137 Field to Marsden, 28 June 1824, ML, CYA 1992, 411. 138 Carol Liston, ‘Sir Thomas Brisbane in New South Wales,’ Journal of the Royal Australian Historical Society 71, no. 2 (1985): 99. 139 Liston, New South Wales under Governor Brisbane, 1821–1825, 47. 140 Shirley Saunders, ‘Sir Thomas Brisbane’s legacy to colonial science: colonial astronomy at the Parramatta Observatory, 1822–1848,’ Historical Records of Australian Science 15, no.2 (2004): 182; Field’s amateur observations appeared in the Sydney Gazette, 7 April 1821, 3a; 22 September 1821, 3a; my thanks to assistance from Dr. Nick Lomb, Curator of Astronomy, Sydney Observatory in identifying the comet Field observed; The Australian Magazine 1 May 1821 vol. 1, no. 1, ML CY 1096, 376‐7; Field published Rumker’s paper in his Geographical Memoirs in 1825 and appended a note to it (266) in which he referred to his own sighting of this comet. In a letter to Bode’s Astronomisches Jahrbuch published in Berlin in 1826, Rumker published Field’s observations of its ‘mean place’ but noted there were errors; see SG, 19 December 1827 2c for Brisbane’s overshadowing of Field in astronomy. 141 King, ‘Frederick Goulburn: The Man and his Office,’ citing James Stephen to Lord Bathurst, 20 March 1823, 237; the London Morning Chronicle 21 August 1824 2c alleged Goulburn administered the colony. 142 SG, 8 December 1821, 1b.

218 Brisbane could not have known the magistrates named so early in his administration.143

Tensions between John Macarthur and Reverend Marsden erupted over their desire to be appointed to the bench of magistrates at this time. Marsden had been dismissed from the bench by Macquarie in 1818. Only Macarthur was nominated. Both lived in Parramatta and would therefore be appointed to the bench of that town. As there was great antipathy between them there would be little harmony on the bench.144 Marsden was influenced in political matters by Field who wished to see Marsden reappointed.145 In this way, Field would continue to exert influence over the bench. Possibly Marsden and Field thought of urging Goulburn to write to the judges asking for advice on Macarthur's nomination. The judges obliged with a recommendation against Macarthur pointing out that he was almost the sole cause of the overthrow of Governor Bligh and that a poor relationship existed between Macarthur and the magistrates.146 As it transpired this was not the opinion of the British Government that approved of Macarthur’s appointment and as we shall see, subsequently cast a pall over Field‐Goulburn relations.

Field now had put relations with Macarthur in peril. Macarthur suspected that Marsden was behind the opposition to his appointment and demanded to know who was responsible for his failure to be appointed to the magistracy. Goulburn informed Macarthur that Field and Wylde recommended against him. Field did not know that Goulburn had done so and lied to Macarthur about his part in the proceedings.147 At this point Field lost the support of a key exclusivist ally. Field did not have the diplomatic skill necessary to retain workable relations with Marsden, Macarthur and the Goulburn factions. He was compelled to cast aside one out of the two. Field played his cards badly. Before Field lost influence with

143 Despatch ‘No 8 for 1822’, Brisbane to Bathurst, 27 February 1822, HRA, I, X, 624. 144 For the state of relations between Macarthur and Marsden see A T Yarwood, Samuel Marsden (Carlton South, Vic.: Melbourne University Press, 1996), 45. 145 For the belief that Field influenced Marsden see SG, 9 January 1828, 2a. 146 Wylde and Field to Brisbane, 19 January 1822, HRA, I, X, 625. 147 John Macarthur to Field, 29 January, 1824, Sibella Macarthur Onslow, ed. Some Early Records of the Macarthurs of Camden (Sydney: Rigby Limited, 1973), 367.

219 Goulburn he obtained Marsden’s appointment to the bench in a further commission of the peace some months later.148 It was Field’s last act of nepotism. Thereafter Marsden remained Field’s only close friend and confidante.

Field’s influence over Goulburn was lost by mid‐1823 when the Ann Rumsby scandal hit the colony. Despite his formal instructions to repress emancipists, Goulburn’s professionalism probably led him to recoil from Field’s unethical behaviour in this matter. At this time Goulburn and Brisbane acted decisively though probably wrongly to bring Field and the magistracy to heel. Goulburn was confirmed in his decision to sever ties with Field when the reaction of the British Government to the judges’ opposition to the appointment of Macarthur to the bench was received. Surprisingly, the home government approved of Macarthur’s appointment. But as Macarthur no longer desired the honour, Bathurst authorised one of his sons to be appointed in his stead.149 This further soured the relationship between Macarthur and Field.

In this increasingly factional colonial environment, Douglass had risen in Brisbane’s and Goulburn’s esteem as a moderate and sensible magistrate in the colony. The problem was that Douglass had enjoyed Macquarie’s patronage and had played a key role in controlling exclusivist agendas in the Druitt enquiry. This lost him favour with exclusivists who increasingly dominated the courts as magistrates. With this one exception exclusivists now comprised all colonial courts.150 However, Douglass’ relationship with a young convict girl, Ann Rumsby came to notice of the Parramatta Bench. When the colony heard allegations that Dr. Douglass had taken a convict girl as a mistress, Marsden and Field used the shocking news to attempt to destroy him. They were horrified for, as McKenzie points out ‘it was deemed unacceptable for a magistrate to take a convict mistress. The Governor acknowledged as much by deciding to interview … [Ann]’.151 Douglass refused a request to attend the bench for examination about the

148 SG, 1 March 1822, 1a. 149 Bathurst to Brisbane, 26 March 1823 – HRA, I, XI, 61. 150 SG, 8 December 1821 1a; Reverend Henry Fulton, an emancipist was considered by exclusivists to have regained his place in their society. 151 McKenzie, Scandal in the colonies, 145.

220 allegations. The magistrates took offence and informed the governor they would not associate with Douglass. In Brisbane’s name, Goulburn advised he would not remove Douglass from office and said that, if the magistrates held to their view, they should resign from office. The judges joined the magistrates to formulate a response. It was an opportunity to express personal grievances. Field no longer had the once enormous power he had in government administration and Wylde was probably aware that Brisbane had urged his recall.152 The two Palmer magistrates, father and son, had grievances concerning land grants.153 Goulburn kept to his word and the bench was dismissed.

Douglass soon retaliated. He had overcome the negativity that had been associated with his closeness to Macquarie. With the authority that came from his appointment to the bench of magistrates, he was presented with the opportunity to sit in judgment on Marsden. Currey’s account sets out Marsden’s employment of the convict James Ring.154 Douglass discovered that, contrary to a government order Marsden had permitted Ring to work on his own behalf. When Marsden was required to explain why he had breached the order he agreed that Ring ‘was on his own hands.’ Douglass and another magistrate decided that Marsden was in breach of the order, fined him over his protestations and ordered seizure of his property to satisfy the judgment. Marsden’s attorney and Field, obliquely referred to as ‘other high legal authority’, advised him to bring an action of trespass against the magistrates. Norton, the attorney advised Marsden proceed before a full bench of magistrates. Field advised Marsden to bring an action before him in the Supreme (civil) Court.155 Interpreting this advice as an assurance of victory, Marsden proceeded in the Supreme (civil) Court. Field’s conduct was disgraceful. He held that the government order under which Douglass fined Marsden was outdated and obsolete. Field knew his recall was imminent and he would suffer no adverse consequences. It was Field’s last case of note and brought to an end an

152 Despatch, Brisbane to Bathurst, 2 May 1822, HRA, I, X, 634. 153 Steven, John Palmer, George Thomas Palmer. 154 Currey, Sir Francis Forbes, 135. 155 Marsden to Brisbane, 24 May 1823, HRA, 1, XI, 769.

221 inauspicious judicial interlude.156

Judge Field is recalled

Before he returned to England, Bigge had decided that Field was unsuitable for appointment as a Chief Justice administering both criminal and civil matters in a penal colony. Bigge advised Lord Bathurst that Field ‘lacked both the temper and deliberation necessary to conduct the judicial business of New South Wales.’157 In addition to the defects in his personality, he argued that the judicial office as it was constituted provided opportunities for abuse. While Bigge did not formally advise against Field’s appointment until September 1822, Field’s situation was declared to be vacant in August of that year.158 Clearly Bigge’s opinion was conveyed unofficially to Lord Bathurst soon after his return. Field did not even consider the possibility of his recall until the end of 1822 when a rumour was ‘confidently buzzed about town, that a great change in our Judicial Administration will very shortly take place.’159 Field’s official recall came eight months later.160 We do not know if Field had prior knowledge of his recall before news of it reached the colony, but to avoid the disgrace of being recalled Field apprised the colony that he had ‘resigned’.161 In August 1823 Lord Bathurst wrote to both Governor Brisbane and Field to acquaint them of Chief Justice Forbes’ appointment.162

The Supreme (civil) Court was least active in 1823, Field’s final year. Emancipists had been most active the year before though there were few hearings. Field’s last day of sitting was 23 December. When the court rose Field remarked that it would never sit again. As Forbes had not reached the colony, Field again

156 Marsden v Lawson and Douglass [1823] NSWKR 4;[NSWSupC] 4; HRA, 1, XI, 775‐780. 157 Ritchie, Punishment, 190‐1. 158 For Bigge’s advice see his letter to Bathurst, 9 September 1822, Ritchie, Evidence to the Bigge reports, the written evidence, (Melbourne: Heinemann, 1971), 2:171; for the vacancy of Field’s office see Currey, Sir Francis Forbes, 21. 159 For Field’s knowledge of his recall see SG, 6 December 1822, 2c; for rumour see Currey, Sir Francis Forbes, 22. Dr. Redfern had written from London, 3 September 1822, to Wentworth of Forbes’ appointment. 160 Field to Bathurst, Bahia, 21 April 1824, TNA (PRO) reel 136, 443. 161 SG, 27 February 1823, 2a. 162 Currey, Sir Francis Forbes, 21; Field to Bathurst, Bahia, 21 April 1824, TNA (PRO) reel 136, 443.

222 subjected the colony to a period without civil jurisdiction in claims above £50. Field did not know until the following month that the New South Wales Act that constituted the new Supreme Court had provided that the existing courts were to continue until the new court’s judges entered into exercise of their jurisdiction.163

For now, Field bade those in the courtroom farewell. He thanked the magistrates who assisted him in the trial of ‘more than 300 causes’. Field then took the credit for the changes to the administration of justice that were shortly to take place. In conclusion Field thanked the solicitors for their respectful attention and wished them well in the new jurisdiction. Garling thanked the judge on their behalf for the courtesy with which he had invariably treated them and wished his honour a safe and speedy voyage home.164 Wylde was sworn in to Field’s office until Forbes arrived on 5 March 1824.165

On Field’s departure not all of the magistrates and solicitors signed the traditional adulatory public addresses of farewell.166 By this time, even the Parramatta magistrates loathed him. Not one signed the address.167 Field replied to the addresses in gracious terms, again designating his recall as his resignation. He promised to work on his return for the good of the colony.

Meanwhile, Goulburn thwarted the Agricultural Society’s desire to praise Field’s ‘upright and impartial manner’ in executing the high judicial trusts reposed in him. With Field’s recent biased judgment against Douglass at the suit of Marsden in mind, Goulburn refused to allow publication of the Society’s panegyric.168

A spate of mostly anonymous letters attacking and defending Field in the

163 News that Forbes had sailed reached the colony, SG, 22 January 1824, 2b; the same issue of the Sydney Gazette contained an analysis of the New South Wales Act 4 Geo IV c. 96. It received Royal Assent 19 July 1823. Section 18 provided that when the new judges entered upon exercise of their jurisdiction the old courts ceased to exist, SG, 22 January 1824, 2d. 164 SG, 1 January 1824, 2b. 165 C. H. Currey, 'Forbes, Sir Francis (1784–1841)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/forbes‐sir‐ francis‐2052/text2545, accessed 18 December 2012. 166 Frederick Garling and George Allen refused to sign. Charles Henry Chambers signed but then withdrew his name. 167 J. T. Campbell to the Editor, Sydney Gazette, 12 February 1824, 2d. 168 Morning Chronicle, 21 August 1824, 2c.

223 Gazette ensued for weeks after his departure. It was suggested that Field wrote the addresses as well as the replies.169 Campbell pointed to the lack of unanimity in the addresses and Field’s arrogance in donating his portrait to the Agricultural Society.170 Observator commenced his letter with a quotation equally damming of Field:

With vain attempts some aim their names to raise And madly hunt for undeserved praise and tailored all his criticisms to suit.171

John Macarthur had suppressed his hostility for the part Field played in opposing his appointment as a magistrate until his departure. He now gave vent to his feelings over Field’s treachery. In a note delivered as Field’s ship was leaving Port Jackson, Macarthur accused Field of lying to him whilst sheltering ‘under the sacredness of the judicial character utterly regardless of his own honour’.172 Brisbane rejoiced to hear of it.173 Under the pseudonym Scaevola, Macarthur joined in the letter writing.174 He hoped for the sake of British justice that Field would not find a further judicial situation in any other part of the British Empire. Marsden’s letter defended Field by denying the factual allegations of his detractors and asked who was more worthy – himself designated as an Old Ram, or Macarthur, a Black

169 SG, 12 February 1824, 2c. 170 It now hangs in the State Reference Library of New South Wales. 171 For Observator’s comment see SG, 12 February 1824, 2c; for quotation see Samuel Wesley, the Reverend, The Life of Christ, ed. Thomas Coke LL.D. vol. 1 (London : Printed for Dr. T. Coke, 1809), 225. 172 The Monitor, 28 June 1828. 173 ML CY 956 A2962, 190 ‘Minutes of a conversation between Sir T. Brisbane and William Macarthur, 5 February 1824.’ 174 Scaevola (left‐handed) was an allusion to Caius Mucius, a legendary Roman figure who suffered the burning of his hand to demonstrate his willingness to undergo torture – Brewer, The Dictionary of Phrase and Fable (Hertfordshire: Wordsworth Editions Ltd., 1993) 1107. John Macarthur is seen in his portrait in the State Reference Library (DG 222) holding a letter in his left hand. In Scaevola’s letters attacking Barron Field on his departure (SG, 19 February 1824, 2d) in response to the wish of the colony’s solicitors that Field on his return achieve ‘the highest professional honours’, Scaevola scoffed that Field had as much chance of being crowned as he did of becoming Lord Chancellor of England. Macarthur made a similar comment about John Oxley, D. R. Hainsworth, Sydney Traders (Carlton, Victoria: Melbourne University Press, 1981), 107. James, son of John Macarthur in a speech also once said ‘he would rather suffer his right hand to be consumed in fire – John Manning Ward, James Macarthur, colonial conservative, 1798–1867 (Sydney: Sydney University Press, 1981), 96.

224 Sheep?175

Conclusion

Barron Field’s period of tenure demonstrates the importance of judicial office in the social, political and legal constitution of the colony. He was responsible for a great upheaval in its affairs when he entrenched the doctrine of attaint in colonial law. When Eagar brought the consequences to the attention of emancipists, the petition he organised eventually procured remedial legislation. Once Eagar left the colony there was no further retributive action against emancipists.

For a time, Field shared in the governance of the colony with Goulburn and controlled the magistracy. Field’s downfall came when Dr. Douglass usurped his place in governance. When Douglass was involved in a scandal Field and Marsden attempted to bring him down. Field exceeded his powers until Goulburn and Douglass in the governor’s name asserted final authority over the judiciary. Field brought about his own recall with a display of temperament unsuitable to the peculiar constitution of a penal colony. His faults proved that the courts needed further reform. The scandals of his term in office led to the formation of a new Supreme Court that separated judicial from magisterial authority, and with a Chief Justice susceptible to the scrutiny of a professional bench and bar.

175 SG, 19 February 1824, 2d‐3a‐b.

225 CHAPTER SEVEN

After New South Wales

This chapter traces Field’s trajectory after his departure from New South Wales. It investigates his role as an expert and partisan in New South Wales’ politics in London. It explores his efforts to make a living at the Bar in the United Kingdom. Finally, it tracks his, ultimately successful, efforts to secure reappointment in the process. In the process, it offers a case study in the flaws of imperial bureaucracy that tended to redistribute dysfunctional officers to avoid the expense of paying their pensions, rather than finding more appropriate staff.

London

When Field reached London his first task was to continue the cause of colonial politics. Field became mired in controversy at the Colonial Office over Brisbane’s administration. Henry Douglass – of Ann Rumsby fame – had reached London just ahead of Field, with a letter of introduction in which Governor Brisbane praised his knowledge of the colony and its peculiarities. Officially Douglass came to seek Bathurst’s opinion on proposed appeals from magistrates to a commissioner of a court of conscience, but his real object in coming was as Brisbane’s emissary to deflect any harm from whatever mischief Field was able to cause the governor.1 Brisbane wrote to a friend thus

as Field is going home with the avowed intention of venting all his spleen against me as he has done here, although in my life I pledge my honour I never said a word to him or an act toward him that could have given him the least offence[,] he has spared no pains to asperse me with the most ruthless rage and animosity and I am so particular in order to prevent you and my other friends being misled by his statements as every thing coming from him is prejudiced …2

1 Brisbane to Bathurst 21 February 1824, HRA, I, XI, 230. 2 Brisbane to Bruce, 31 December 1823, 17 April 1824, FM 4/1626.

226 To Lord Bathurst, Brisbane complained that Field tried to prejudice the officers of the garrison and respected people of the colony against him. He had used every opportunity of ‘falsely and foully slandering me and my government as Contemptible …’. Brisbane imputed this to Field ‘having allowed himself to become the head of a faction, with which he has been identified the whole of this period, who seemed guided by no moral restraints in order to accomplish their ends.’3 Brisbane therefore accused Field of being the author of the anonymous letter from the colony of 19 February 1824 that was so critical of his administration. I have identified Sir John Jamison as the author.4 Field did not learn of the letter until early 1826 and he at once disclaimed authorship.5 At about the same time in Sydney the Gazette gave Field a ‘certificate of freedom’ from the allegation that he was the author.6

Field’s energies were not directed against Brisbane by name. He sought instead to vilify Douglass, for his part in the removal of Marsden and Hannibal Macarthur from the magistracy and in fining Marsden for employing a convict servant improperly. Field was received at the Colonial Office for that purpose.7 His report helped to prompt an enquiry into the fine imposed on Marsden by Douglass. The enquiry exonerated Douglass from all accusations of wrongdoing. However, Field’s verdict on Marsden’s subsequent action was condemned.8 The man chosen to lead the new Supreme Court, Sir Francis Forbes, gave his opinion that Field ruled in error in giving judgment for Marsden. By letting James Ring work for wages, Marsden had broken the law as well as its policy of making transportation an object of terror.9 Nevertheless, the Colonial Office also invited Field to give his views on Douglass’ fitness for appointment as Clerk to the newly formed Legislative Council.10 Field’s expertise on colonial controversy was also sought after in other spheres. Field visited William Wilberforce and read Marsden’s letters

3 C. H. Currey, Sir Francis Forbes (Sydney: Angus and Robertson, 1968), 65. 4 See The Sydney Monitor 26 October, 1831 3a. 5 Field to Bathurst, 12 February 1826, HRA, I, XII, 187. 6 SG, 16 January 1826 2d; 20 September 1826, 2e. 7 Field to Marsden, 28 June 1824, ML CYA 1992 411. 8 Currey, Sir Francis Forbes, 148. 9 Ibid., 147. 10 Colonial Office diary note 28 December 1824, TNA reel 136 CO 201/155 460.

227 to him.11 Wilberforce lost confidence in Marsden because of the unfairness of the conviction of Ann Rumsby and wrote to Field seeking his knowledge of the truth of the James Ring case.12 Field used every opportunity to advance the interests of the members of the Parramatta Party and he wrote to Marsden frequently, promising that he would never lose sight of their cause.13 However, his efforts were not always successful.

Colonial politics, however, could not pay the bills of a middle class, married man. On his return to London, Field had some low points in his legal career. He applied for a pension from the Colonial Office.14 There was no automatic entitlement to a pension. On retiring from colonial appointments one had to apply in every instance. The salary paid and years of service influenced the pension granted. When Field was appointed he had hoped a pension would be allowed on the grounds of his meritorious service.15 In the meantime, he joined the ‘refuse of the bar’ in applying for the position of a London police magistrate. Parliament had approved an increase in yearly salary of Police Magistrates to £800.16 He hoped for Lord Bathurst’s recommendation though, whether or not it eventuated, he did not gain the post.17 Bathurst assured him of a County Court appointment if Parliament passed the necessary legislation, but it did not. After they became established in the year of Field’s death, judges of the County Court were infamous for being failed barristers, reaching the bench with no professional ability.18

11 Field to Marsden, 28 June 1824 ML CYA 1992 411. 12 Wilberforce to Field, 28 December 1824, ML Af 23/3 13 Field to Marsden, 28 June 1824, ML CYA 1992 411, 413. 14 Field to Bathurst, 8 July 1825, TNA Reel 143 CO 201/166 391; Field was fortunate to receive an annual pension of £400 from the date he left the colony. This was the usual Colonial Office practice of granting a pension of half the yearly salary paid at the time of retirement. Yet see Sir Francis Forbes superannuation payment, foot‐note 24. 15 See 1825 (10) (107) (502) Superannuations. Copies of Treasury minutes, superannuating … E. H. Lushington, Esquire. Minute dated 16 July 1824, superannuating E H Lushington, Esq., Chairman of the Colonial Audit Board, House of Commons p. 2; pension sought on the grounds that the Ceylon Charter of Justice did not stipulate payment of a pension to a retiring judge. 16 See the speech of Mr Peel as he then was to the House of Commons 21 March 1825 reported in The Times 22 March 1825 2a. 17 Field to William Swainson, 13 October 1825, Linnean Society Archives. 18 Daniel Duman, The English and Colonial Bars in the Nineteenth Century (London: Croom Helm Ltd., 1983) 102.

228 Without employment, restlessness took Field off to France in 1825. In Sydney, gossip of his doings still interested readers. His journey, during which he spent several days at Rouen studying its antiquities led to a report in the colony that ‘Judge Field has been visiting France, where he had some thoughts of residing. He has published another work, called his tour to the continent, and His late Honour is cut up and reviewed without mercy.’19

News of a pension of £400 a year payable from the date of Field’s leaving the colony reached him while he was in Paris.20 Once again the lowly status of judicial appointment to New South Wales was made apparent. The Chief Justice of Ceylon in the early 1800’s received an annual pension of £1,200 on retirement.21 A garbled account of this sinecure reached the colony where it was reported that Field also had a County Court appointment. The news was met with the ‘universal censure of the Australian Public’ as it was seen as a further burden on colonial revenue.22 For Field, however, the pension was a handsome payment, representing half his annual salary. On his retirement, Forbes received far less a proportion of his salary.23 Most importantly, though Field did not realize it at the time, the pension virtually guaranteed future employment in the colonies – it was a burden on colonial public funds that the Colonial Office would seek to alleviate through redeployment.

Field was recognised in Paris as an important visitor. Old Sydney links with French explorers brought him to the fore. During his visit, Bernard Germain Étienne de La Ville, Comte de Lacépède died and Field assisted at the funeral.24 He disapproved ‘of the masses, “chaunts”, candle burning and roarings, but

19 Rouen report, Field to Dawson Turner, 5 February 1832, Trinity College Library, Cambridge. O 14. 8. 133; Colonial gossip, SG, 19 April 1826, 2d. 20 R. W. Hay to Field, 8 September 1825, TNA Reel 143 CO 201/166 400 ; Field to Marsden, 27 February 1826, CYA 1992 452. 21 1825 (10) (107) (502) Superannuations. Copies of Treasury minutes, superannuating … E. H. Lushington, Esquire. House of Commons, p. 3. 22 Sinecure, SG, 27 October 1825 2c; The Monitor, 14 January 1828 6a; see also The Hobart Town Courier, 15 August 1829, 1d. 23 Sir Francis Forbes received only £700 despite his salary being £2,000 – John McLaren, Dewigged, bothered and bewildered, British colonial judges on trial, 1800–1900 (Toronto: Published for the Osgoode Society for Canadian Legal History and the Francis Forbes Society for Australian Legal History by University of Toronto Press, c. 2011), 35. 24 Professor at the museum of natural history in Paris and famed naturalist.

229 appreciated that the Éligis by the President of the Institut de France, was a little flowery but in good taste’. Field’s friendship with Louis Freycinet was the means of introduction to the Baron de Ferrusac, editor of the Universal Journal, who told Field that his literary fame preceded him.25 Field attended a meeting of the Institute and saw the famous Humboldt, Cuvier and Latreille.26 The public had to stand, but as a distinguished visitor, Field was honoured with a high seat. It was all so French he thought.27

On his return to London, Field gave up hope of further appointment and returned to the Bar whilst still retaining an interest in colonial affairs. Taking chambers again in The Inner Temple he returned to the Oxford Circuit for a month and despite negative views of his prospects of succeeding after an absence of ten years he was initially content with the income it brought him.28 While at the Bar he renewed his meddling in New South Wales’ affairs. He renewed previous attempts to sway Wilmot Horton, Goulbourn’s replacement as Under Secretary of State for War and the Colonies, against Douglass.29 He called on Lord Calthorpe, an ardent supporter of the cause of lunatics and their asylums, who was interested in Marsden and the Church Missionary Society.30 James Dowling wrote to him asking for advice upon his appointment to the bench of the Supreme Court of New South Wales. Field congratulated the colony on its acquisition of a judge of his ‘law temper and integrity’. Dowling asked how he might avoid Chief Justice Forbes’ growing unpopularity in the colony. Field advised him to keep his own counsels, but then proceeded to discuss the divisions in the colony, the emancipists clamorous to be restored to society, their jealousies inflamed by the press and the

25 Baron de Ferrusac ( 1786–1836 ) was a famed conchologist who co authored with Deshays a three volume natural history of molluscs (Paris 1819–1851). 26 Alexander von Humboldt (1769 – 1859) famed naturalist and explorer ; Georges Cuvier (1769– 1832 ) naturalist and zoologist ; Pierre Andre Latreille ( 1762–1833) entomologist. 27 Field to Swainson 13 October 1825, Linnean Society Archives. 28 Field to Marsden, 27 February 1826, CYA 1992 452, 456. 29 Wilmot Horton replaced Henry Goulburn as Under Secretary. Eric Richards, ‘Horton, Sir Robert John Wilmot–, third baronet (1784–1841), Oxford Dictionary of National Biography, Oxford University Press, 2004: online edn, Jan 2008 [http://www.oxforddnb.com/view /article/13827, accessed 6 Feb 2013. 30 Field to P.P.King, Temple, undated, CY 1186 A 697, 39.

230 local aristocracy, ever proud to avoid them. Field recommended the Bigge Reports and the Parliamentary papers as the surest guide.31

Field found London so expensive, the Bar so blocked up and the Oxford Circuits so costly, that he finally yielded to the arguments of Jane’s brother in law, one of the first attorneys in Liverpool and agreed to reside in that town and practise as a provincial barrister. There were thirteen barristers practising in Liverpool around 1825.32 He would attend the Lancaster Sessions and Assizes and attend the Northern Circuit. Field travelled from London through Liverpool to the Lancaster Assizes to go on the Northern Circuit in 1826.33

It was not until 1827 that Field’s hopes of a new judicial appointment were rekindled. He was offered a posting to the Cape of Good Hope to be under John Wylde as Chief Justice. Having regained confidence at the Bar, and feeling some antipathy for Wylde, he declined the post.34 In any case, there were rumours of the retirement of a Gibraltar judge and Field was promised the support of his friend Henry Brougham in his application for the position.35 Field was dismayed to find that Lord Bathurst would not support his application nor intervene in his favour unless his opinion was requested by his successor in the Colonial Office.36 In February 1828 Field believed he had the appointment and it was announced in New South Wales the following September as ‘an increase of law patronage … about to take place’.37 But Gibraltar still eluded him.

31 Field to James Dowling, 30 July 1827, A3947 57. 32 Duman, The English and Colonial Bars in the Nineteenth Century, 88. 33 The Northern Circuit took in Lancaster, York, Durham, Northumberland, Cumberland and Westmorland. 34 John Wylde was knighted on receiving his appointment as Chief Justice of the Cape of Good Hope. Field declined a puisne judgeship under Wylde see SG, 1 October 1827, 2b. 35 Michael Lobban, ‘Brougham, Henry Peter, first Baron Brougham and Vaux (1778–1868)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Jan 2008 [http://www.oxforddnb.com/view/article/3581, accessed 18 Dec 2012]. Brougham was appointed Kings Counsel in 1827. Field certainly had contact with Brougham when Brougham defended the Hunt brothers in the Prince of Wales libel action; Field’s application to the Colonial Office – TNA (PRO) reel 935, CO 323/126, Internal memorandum ‘6563’ 28. 36 Field to Bathurst, Bathurst to Field, 14 January 1829; Field to Sir George Murray, 19 January 1829, TNA (PRO) CO 91/103. 37 Field to William Jackson Hooker, 38 Rodney Street, Liverpool, 8 February 1828, Royal Botanic Gardens, Director’s correspondence, vol. 1, 142; SG, 10 September 1828, 2d

231 Instead, Field was offered the position of Fiscal in Ceylon in December of 1828. He asked his friend Horace Twiss to increase the salary from £1,200 to the near £2,000 he received in New South Wales.38 If these negotiations were successful he expected that, come the spring of 1829, he would quit Liverpool.39 On 13 December Field wrote to Sir George Murray, Colonial Secretary, mentioning that he was willing to serve in any judicial post of equal nature to his last except the West Indies and Sierra Leone but the post in Ceylon, considering his previous salary, was too poorly paid and he declined it. He applied instead for a position in Mauritius and prepared to live in London ready to take appointment abroad. The Chief Justiceship at Tobago was also available if Sergeant Rough declined it.40 Whatever it was that Twiss offered, Field was persuaded to accept the Fiscal office in Ceylon at the original salary.41 Two days later, he wrote to William Wordsworth that:

[A]t last it is settled that I am to go to Ceylon … [as Attorney or Solicitor‐ General to] … replace Matthews the Invalid Diarist … [and perhaps would] … have the honour of being the first to teach your poems to the Cinnamon Groves …

He planned for Jane to accompany him and hoped that Wordsworth would visit them.42 On Christmas Day 1828 Field advised the Colonial Office that he accepted the posting to Ceylon in the ‘hope that my zeal and diligence, in the service of His Majesty as the Deputy Advocate Fiscal at Ceylon will promote me to the first seat on the Bench of that Colony’s judicature that may become vacant.’43

However, on 21 January 1829 Gibraltar suddenly became available. The Colonial Office found it expedient to accept Judge Toye’s retirement from the Court of Civil Pleas of Gibraltar and to appoint Field to his position thus alleviating the burden of his pension on New South Wales.44 It was offered to Field and after

38 Field to Twiss, Liverpool, 4 December 1828, TNA (PRO) Reel 936 CO 323/131 449. 39 Field to Swainson, 1 December 1828, Linnean Society. 40 TNA (PRO) Reel 936 CO 323/131 451‐2. 41 TNA (PRO) CO 54/103 215. 42 Field to Wordsworth, 19 December 1828, The Wordsworth Trust, WLMS A3. 43 Field to Twiss, 25 December 1828, Liverpool, TNA (PRO) CO 54/103 215. 44 See Sir George Don 3 April 1829 acknowledging despatch no. 42 20 February, reporting appointment of Barron Field as Civil Judge in place of W. Toye Esq. resigned – CO 714/59

232 deliberating for three days he accepted it as closer to relatives and friends no matter how humble the station.45 There he demonstrated the importance of courts and personalities even in a military outpost of the British Empire. Official appointment came two days later together with the advice that he was expected to leave in the first week of March by the Mediterranean Packet.46 But it was to be some time before Field appeared for he wrote that he could not reach Gibraltar until the end of April – notwithstanding instructions that, no matter what the personal inconvenience, he must enter the discharge of his duties by the beginning of April.47

Although reappointment was not automatic, as McLaren has shown, despite Field’s failure in New South Wales, he was reappointed because he had the qualities the Colonial Office sought in a judge.48 What counted was experience in colonial judicial work, ability, gentlemanly mien, and a shortage of judges for a particular situation. A further persuasive characteristic was the ability to resist the actions of an over‐strong governor. Finally, patronage and networks assisted.49

Literature and Science

While in England, Field did more than scheme, seek sinecures and plead at the Bar. He also renewed some of his old literary contacts, extended his science networks and published material from New South Wales. Within days of reaching England he anonymously announced his return in The Morning Chronicle under the heading ‘New South Wales’.50 He conveyed a strong sense of the rising importance of the

Governor’s correspondence vol 1; see also ‘W. Toye Esq. Judge of the Court of Civil Pleas, Gibraltar, from 1817 to 1828’ ‐ House of Commons Accounts and Papers Relating to Colonies et cetera vol. 26 1833 p. 2 45 Offer – Field to William Swainson, 21,22 January 1829, Linnean Society; Acceptance – Field to Horace Twiss, 24 January 1829, TNA (PRO) CO 91/103. 46 Hay to Field, 26 January 1829, TNA (PRO) 92/9 Vol. 3. 47 Hay to Field 20 February 1829, TNA (PRO) CO92/9 Vol.3. 48 McLaren, Dewigged, bothered and bewildered, 3 – John Walpole Willis was not reappointed after recall for example. 49 Ibid., 291‐2. 50 The Morning Chronicle, 21 June 1824 issue 17,215 2c‐d ; reprinted with additional material indicating Field was the author in The Philosophical Journal Magazine and Journal, 30 June 1824

233 colony and its increasing self‐sufficiency with accounts of advancements in agricultural and manufacturing, Bell’s new route from Richmond to the Blue Mountains, and the commencement of the running of stagecoaches to Parramatta, Liverpool and Windsor.51 He included an account of the experiences of convicts who following their shipwreck off Moreton Island lived for six months with aborigines.52

A narrative of his voyage of return soon appeared in the London Magazine.53 It contained little of interest and was written in the vein I referred to in Chapter Two of Field’s atypical travel writing. It served chiefly as a teaser for Field’s master‐work Geographical Memoirs on New South Wales, for which he is justly remembered. This work was foremost an opportunity to capitalise on the swelling interest in the colony and an answer, as I argued in Chapter Five, to Wentworth’s ‘convict party’ Statistical and Historical Account of the Colony. I have referred to some of the accounts of explorations in the colony and its natural resources. In addition Field looked forward to further discoveries of the colony’s resources and its zoology. Once in London, Field gained the necessary approval to publish a full account of Oxley’s discoveries and his maps.54 Bathurst also permitted dedication of the Memoirs to himself. He was impressed with the significance of the discovery of the Brisbane River as the most valuable acquisition the country had brought to light.55

The eminent ‘King John’ Murray of Albemarle Street, London, agreed to publish Geographical Memoirs. Field and Murray had an association going back to

459, 30 September 1824 311; the mention of Field’s river, now an obscure watercourse known as the Mooki, suggests the identity of the author. 51 Agricultural – Hannibal Macarthur’s success with the growing of the olive, tobacco and bee keeping, the results of the clearing gang’s labor; manufactures – distillation of spirits, John Blaxland’s salt works, Lord’s clothing manufacture at Botany, tanning, saddlery, tinware, soap and candles, a small foundry for cast iron, hat making, two potteries, ploughs, carts, waggons and all farm utensils. 52 See J. H. Hornibrook, 'Pamphlett, Thomas (1789–1838)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography /pamphlett‐thomas‐2536/text3443, accessed 18 December 2012. 53 London Magazine, vol. X, no. LVII, September 1824, 251‐6. 54 Field to Bathurst, 1 July 1824, TNA (PRO) Reel 136 CO201/155, 447,449. 55 Ibid.

234 1809, when Field as a law student sought work as a literary reviewer.56 From the colony, Field had acted as both Murray’s and colonial authors’ literary agent, forwarding works for publication.57 Field’s reward was Murray’s interest in his own work as a contributor to the Quarterly Review.58 Field presented elegantly bound copies of Geographical Memoirs to Lord Bathurst for himself and for presentation to the King.59

Geographical Memoirs did not have ‘Englishness’ associations of ‘fertility, beauty and productivity.’60 Field was critical of the Australian bush, overall saw ‘unpicturesqueness’ in the foliage and ignored economic activity in the colony.61 However his work ran to a second printing in 1828 retitled as New South Wales. It was not hailed in the Edinburgh Review where it was thought to be ‘of a very miscellaneous character, but contains some authentic and curious documents.’62 The reviewer agreed with Field in wondering why so few discoveries were made in the exploration of the colony. A private opinion of the time agreed that it contained some interesting things but expressed surprise that few of its plants were brought to England.63

Publication of Geographical Memoirs made little impact in the colony because it was too preoccupied with Field’s alleged role in perpetuating scandal in London about the colony. The continuing dispute between Douglass and the

56 Field to Murray, 2 February 1809, 1 March 1809, John Murray Archives, National Library of Scotland. 57 George William Evans, A geographical, historical, and topographical description of Van Diemen’s Land, with hints to emigrants, and information respecting the application for grants of land … Embellished by a correct view of Hobart Town; also a large chart of the island etc. (London: 1822); the convict James Hardy Vaux’s Memoirs of his life by himself (London:1819) – for Field’s connection with Vaux’s work see The London Magazine (1827) vol 9 33, 55. 58 Field’s review of Michael Howe, the last and worst of the Bush rangers of Van Diemen’s Land appeared in the Quarterly Review 27 May 1820, vol. 23 #45 article 535 73‐83. 59 Presentation copies – Field to John Murray, 29 April 1825 – John Murray Archives, National Library of Scotland; Presentation to the King, Field to Bathurst, 14 May 1825 – TNA (PRO) Reel 143 CO201/166 384. 60 Katherine Haldane Grenier, ‘Scottishness, Britishness and Scottish Tourism, 1770–1914,’ History Compass 4, no. 6 (2006): 1006. 61 ‘Journal of an excursion across the Blue Mountains of New South Wales,’ 423. 62 Edinburgh Review, 1828, Article IV, vol. 47, 87–99. 63 Fourth Earl of Ilchester to his nephew the inventor of photography William Henry Fox Talbot, Florence, 30 November 1825, University of Glasgow, Fox Talbot correspondence, collection number LA 25 (MW)‐068, document number 01328.

235 Parramatta Party made its way into English newspapers. The Times printed accounts of the charges and counter‐charges of the parties.64 Field was believed to be responsible because of his support for Marsden.65 In Sydney The Monitor alleged that the accounts of the controversy although stated to be from New South Wales were ‘really written by the late Judge Field, and who by means of this fiction thinks to screen his friends, and to impugn his successor in office, whose shoes‐ latchet he is not worthy to unloose.’66 The Gazette then confessed:

We hear it asserted that the infamous production, which was copied into the Morning Chronicle, and which graced the last Australian, is attributed to BARRON FIELD, Esquire, Ex‐Judge of New South Wales, the author of [a poem whose opening lines were] “Kangaroo – Kangaroo! Spirit of Australia!” and the Gentleman who had the distinguished honour of being universally disliked in these Colonies; but, bad as we believe Mr. FIELD to be, who has rendered himself increasingly notorious in the publication of a compiled work on this Colony, we do not think that his heart is so detestably black as to cogitate such a hellish piece. No, no; the merit of that exquisite morceau must not be taken from the celebrated clan of Botany‐ bay, whose deeds, we mean those of an evil cast, will live when their bones are lost amidst the wreck of ages. Mr. Field never wrote the letter in question.67

The following year The Gazette changed its mind:

Mr. BARRON FIELD, of Kangaroo celebrity, and unfortunately long the Judge of the Supreme Court in this Colony, has, it is said, purchased a share in The Morning Chronicle. The very long, preposterous, and, in many parts, lying letters, which have appeared regarding these Colonies, are now said to be written by that Prince of most miserable Poets.68

Field dismissed all the colonial newspaper reports with contempt. Edward Smith Hall was a hypocrite, his Monitor ‘ten times worse and more dangerous than Wentworth and Wardell’s (Australian)’. The pro‐Government Gazette of ‘poor vermin Howe … [was] … so ill‐written that nobody could read it, and it is innoxious’. Wardell was an

64 The Times, 1 May 1826, 2a‐b; 2 May 1826, 3a. 65 SG, 16 September 1826 3b. 66 The Monitor, 22 September 1826, 147, 3b‐c. 67 SG, 20 September 1826, 2e. 68 SG, 15 June 1827, 2c.

236 open honest, free‐thinker, and man of this world – very baneful in such a community and among such a rising generation, and a fit subject for the censorship of the press in such a state, but Hall is the man to foment rebellion in the Colony and would prostitute the name of religion as liberty.69

No matter what the contemporary opinion of Geographical Memoirs, today it is well regarded. It is a frequently used source of reference to the colony.70 Moreover, the Memoirs helped Field to expand the scientific networks he had made while in New South Wales and become an authority on the colony. James Atkinson, former principal clerk in the New South Wales’ Colonial Secretary’s Office sought Field’s assistance with An Account of the State of Agriculture and Grazing in New South Wales he was writing. Field lent him Marsden’s paper on the soils of the colony and artwork for this work.71 When Atkinson’s book was published its frontispiece was a ‘watercolor view of Port Jackson and part of the town of Sydney from a drawing in the possession of Barron Field Esq. by Richard Read senior.’72

Field also consolidated his growing reputation as a man of science in his stay in the United Kingdom. During his years in the colony, Field had been an important figure in scientific interest in its botany, collaborating with international botanists in the collection and naming of a variety of flora. Upper class collectors of British fauna, flora, rocks and soils, imported their interest in natural history into the colony, along with manners and breeding.73 Field’s interest was attributable to his father, Henry, who was president and treasurer of the Apothecaries’ Company.74 Field added to his father’s prestige by sending plant specimens that

69 Field to Marsden, 13 March 1827 ML CYA 1992 462. 70 D.F. Branagan and D.T. Moore, ‘W.H. Fitton’s geology of Australia’s Coasts, 1826,’ Historical Records of Australian Science 19, no. 1 (2008): 40, 44; Peter Olde, Australian Native Plants Society (Australia), Rediscovering Grevillea rosmarinfolia Newsletter of ANPSA’s Grevillea Study Group, March 2000. 71 Field to Marsden, 27 February 1826, Temple, NLA MS3300. 72 James Atkinson, An Account of the State of Agriculture and Grazing in New South Wales (London: J. Cross, 1826). 73 Elizabeth Elliot, Taste and Science – the women of the Macleay family, 1790–1850 (Glebe, New South Wales: Historic Houses Trust of New South Wales, 1988), 50. 74 Henry Field was the author of Memoirs historical and illustrative of the Botanic Garden at Chelsea belonging to the Society of Apothecaries of London (London: 1820). Apothecaries were licenced to both practise medicine and supply drugs. Anyone could deal in drugs and poisons. Anyone wholly illiterate and uneducated could describe himself as a physician or surgeon. But from the middle of

237 were in high demand by collectors all over the world. He also furthered the interests of empire, which formally collected specimens from the colony.75 In 1819 Field sent five cases of ‘Botanical drawings, sundry manuscripts and roots and seeds …’ intended for the Apothecaries Society’s garden at Chelsea. Henry Field sought permission from Lord Bathurst to land this consignment warning that the severe weather in London would endanger the specimens if they were not promptly delivered.76 They arrived at Chelsea on a Sunday morning shortly before 13 January the following year, the day William Anderson, the garden’s curator wrote to thank Lord Bathurst for the 108 specimens of Botany Bay seeds.77 The Company of Apothecaries was led to believe that Bathurst should take the credit for the gift.78

While in the colony, Field had forged contacts with Sir William Jackson Hooker and a network of botanists.79 Field kept Hooker informed of his colonial discoveries and supplied him with a valuable collection of New Holland plants and many excellent drawings. In Hooker’s Exotic Flora, the last plant in the final volume was Fieldia australis.80 Also known as New Holland Fieldia, didynamia angiospermia, it was named by botanist Allan Cunningham in honour of Field whom he described as ‘a gentleman who has in his judicial capacity much aided the advancement of the Colony of New South Wales to its flourishing state.’ Cunningham then attributed to Field the value of important research in various branches of physical science which would in due time confer interest in the colony.

the 18th century in London, no one could both practise medicine and supply drugs unless licenced by the Society of Apothecaries, becoming the forerunner of today’s general medical practitioner. 75 Jim Endersby, ‘A Garden Enclosed: Botanical Barter in Sydney 1818–1839,’ The British Journal for the History of Science 33, no. 3 (2000): 319. 76 Henry Field to Goulburn 16 December 1819 – TNA Reel 46 CO 201/95 439. 77 Ray Desmond with the assistance of Christine Ellwood, Dictionary of British and Irish botanists and horticulturalists (London : Taylor and Francis and The Natural History Museum, London, 1994), 16. 78 William Anderson to Bathurst 13 January 1820 – TNA Reel 49 CO 201/101 4. 79 Zoe Laidlaw, Colonial Connections 1815–45: Patronage, the information Revolution and Colonial Government (Manchester: Manchester University Press, 2005), 31; Sylvia FitzGerald, ‘Hooker, Sir William Jackson (1785–1865)’, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, May 2009 [http://www.oxforddnb.com/view/article/13699, accessed 18 Dec 2012], Regius Professor of Botany in the University of Glasgow, 1820–41. 80 Sir William Jackson Hooker, Exotic Flora, 3 vols. (Edinburgh, printed for W. Blackwood, 1823– 27).

238 The recipient of this honour supplied excellent dried specimens from which illustrations were made. Field sought advantage by supplying the Vice President of the Linnean Society, Aylmer Bourke Lambert, with new species of Grevillea first described by Allen Cunningham when Field quoted him in Geographical Memoirs on New South Wales.81

Probably through his association with Sir William Hooker, Field’s international connections extended to collaboration with the Italian jurist, senator and botanist, Luigi Aloysius Colla. Together they named Acacia visneoides. Colla recorded in his Hortus Ripulensis published in 1826 that Field had collected this plant.82 Colla honoured Field in the naming of Cassia Barrenfieldii, [sic], later renamed variously, Cassia fieldii, Cassia australis and Cassia odorata. In 2005 the botanical name Senna barronfieldii (Colla) Hewson comb. non was proposed.83

On the basis of his scientific work, Field was elected to the Linnean Society on 19 April 1825, as ‘a gentleman much attached to Natural History, particularly Botany.’ His recommendation was signed by William Swainson, 1789–1855, a member of the Linnean Society, who had left for Brazil about the time the Fields set out for New South Wales. He has a reputation today as a first rate naturalist but is not well regarded as a botanist.84 Others who signed Field’s Linnean recommendation were W. J. Broderip, and N. A. Vigor, respected naturalists, whose reputations were founded on many learned publications, and Phillip Parker King and John Caley, antiquary and secretary of the Record Commission. 85

81 William T. Stearn, ‘Lambert, Aylmer Bourke (1761–1842)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/15931, accessed 18 Dec 2012]; Hortense S. Miller, ‘The Herbarium of Aylmer Bourke Lambert: Notes on its Acquisition, Dispersal, and Present Whereabouts,’ Taxon 19, no. 4 (1970): 522. 82 Field provided the Gazette with a long excerpt from William Cobbett’s American Gardener (London: published by C. Clement, 1821) and discussed various thorny acacias – signed ‘BF’ – Sydney Gazette 28 August 1823 1S–2Sa. 83 Aloysii Colla, Illustrationes et icones rariorum stirpium quae in ejus Horto Ripulis florebant, [annis 1827–28] : addita ad Hortum Ripulensum, appendice 1 – [appendice IV]. Plant 11 p. 167; Helen J. Hewson ‘Justice for Justice Barron Field’ Telopea, 11, (2005): 97. 84 R.M. Barker and W. R. Barker, ‘Botanical contributions overlooked: the role and recognition of collectors, horticulturalists, explorers and others in the early documentation of the Australian flora,’ in Philip S. Short (ed.) History of Systematic Botany in Australasia (Melbourne: Australian Systematic Botany Society Inc., 1990) 37‐85, 65. 85 The Record Commission was founded in 1801, its purpose to preserve public records. See Sir Harris Nicolas [sic], ‘Record Commission. A Letter to the Right Hon. Lord Brougham and Vaux, Lord

239 Field also expanded his intellectual connections in other spheres. While working at the Liverpool Bar from 1826, Field was elected to the committee of the Liverpool Philosophical Society. He busied himself in legal writing and also re‐ entered journalism. He attempted to publish a long book review in the Quarterly Review. After it was rejected, Field submitted it for publication to his friend John Murray with a note that it would ‘do me good to put my name to it’ and enclosed a notice to be sent to the newspapers of its publication.86

Field remained a corresponding member of the Liverpool Philosophical Society and submitted a paper to it on the origins and treatment of Gibraltar Fever.87 He noted that when little rain fell there, its incidence was reduced.88 When in Gibraltar, Field developed a typical southern end of Europe garden in which he raised fine specimens of geraniums, cacti and other beautiful plants in a natural setting.89 He corresponded with Sir Joseph Dalton Hooker, the botanical scholar, sending him specimens and drawings.90 Dawson Turner, banker, botanist and antiquary, Sir Joseph’s grandfather, noticed Field’s name in a little collection of Irish mosses. Field thanked him for the attention but confessed that he did not cultivate that very minute and curious branch of botany for it was too hot in Gibraltar, although after the rains, shrubs and flowers and even mosses might be found there.91

Chancellor, on the Constitution and Proceedings on the Constitution and Proceedings of the present Commission for the Public Records’ (London: William Pickering, 1832), 4. 86 Field to Murray, 14 March 1827; 19 June 1828. Murray published the arguments as a pamphlet at 2s. 6d. per copy A Vindication of the practice of not allowing the Counsel for Prisoners accused of Felony to make speeches for them by Barron Field Esq. of the Inner Temple, Barrister at Law; also published by Butterworths in 1828; Field’s arguments were severely criticised in the London Magazine August 1828 and this was joyfully followed in Sydney by the Gazette 15 January 1829 2f; 17 January 1829 2e. 87 Commonly called Yellow Fever see Constantine, ‘The Pirate, the Governor and the Secretary of State: Aliens, Police and Surveillance in Early Nineteenth‐Century Gibraltar,’ 1171. 88 Dated 26 October 1829 – The Wellcome Trust MS/6905/15; the fever is now understood to be brucellosis, a bacterial disease transmitted by contact with infected animals or infected meat or milk products. 89 See Field’s obituary in Proceedings of the Linnean Society vol. 1, 24 May 1846. 90 Son of Sir William Jackson Hooker – Norman Hall, Botanists of Australian Acacias (Melbourne: CSIRO, 1984), 18. 91 Field to Dawson Turner 6 May 1831 Trinity College Library, Cambridge O 14 7 57; I cannot locate the reference to Field’s article on Irish mosses.

240 Finally, throughout his stay in England, Field re‐established some of his social contacts in the literary world, notably, with William Wordsworth. He corresponded with Wordsworth about poetry and believing that he was leaving for Ceylon, asked Wordsworth to have a copy made of his bust.92 Wordsworth promised to contact the sculptor Francis Chantry for this purpose. The poet, not intending to travel to Liverpool the following spring, intimated he would be unable to see Field before he left to take up his post in Ceylon. Its proximity to India prompted Wordsworth to ask for Field’s opinion on several topics that he believed had poetic possibilities.93 Field sought some lines from the famous poet in Jane’s album. After the younger brother Edmund Field completed an etching in Jane’s book, Wordsworth wrote ‘some witchery of inky words’. Field could not resist the temptation of adding to those words:

Words inky. They’re worth more than that I can’t let that go forth: The line that would detract from words Itself shows a Word’s worth.

Gibraltar posting

Once again, in Gibraltar Field was associated with a judicial system in transition. In 1830 Britain changed the status of Gibraltar from a garrison town to a Crown Colony, administered by the Colonial Office.94 Field was at first appointed to the Court of Civil Pleas of Gibraltar, prior to the establishment of a Supreme Court.

The Royal Charter establishing the Supreme Court at Gibraltar to open on 25 October 1830, appointed Barron Field its first justice. He was to assume his jurisdiction 25 January 1831.95 His appointment as judge of the Court of Vice

92 Field to Wordsworth, 19 December 1828, The Wordsworth Trust, WLMS A 3. 93 Wordsworth to Field, Liverpool, 20 December 1828 – letter 390, Ernest De Selincourt, ed., revised, arranged and edited by Alan G. Hill, The Letters of William and Dorothy Wordsworth vol. 4, Part 1 (Oxford: Oxford University Press, 1978), 694‐6. 94 Peter Gold, Gibraltar: British or Spanish? (London; New York: Routledge, 2005), 9. 95 Given at Gibraltar 18 October 1830 – TNA (PRO) CO 91/109 vol. 3.

241 Admiralty, that was to cause Field such discomfort, followed.96 Field’s demand for a raise in salary, following appointment to these positions, was refused.97

He also attracted similar criticisms for his organisation of the court. When Field drafted new rules, orders and regulations for practice in the new Supreme Court he suffered the same criticisms as in New South Wales. The rules of the court of the Cape of Good Hope, drawn by Sir John Wylde were forwarded as a guide for Field. The governor considered the amendments Field now made to be so defective that he deferred sending them to London until he could get advice from those better qualified.98 Field was criticised for not simplifying the rules of pleading. The judges at the Cape of Good Hope, New South Wales, Newfoundland and other dependencies, the Colonial Secretary, Lord Goderich pointed out, acted on the principle of simple methods of trial. Field’s rules, for instance, stipulated that where no provision was made for mode of trial, Westminster practice should prevail. But he did not indicate which practice of the four courts of Westminster was intended. Whether any particular rule was applicable to Gibraltar or not left a party in jeopardy. However, Goderich ordered that Field’s proposals for new court rules be observed for the present until their complexity and likelihood of causing delay could undergo the revision they demanded.99

Field immediately set to and drafted a new set of rules that he sent to London for approval. He was:

mortified to think that [Goderich] should have found my Rules less simple and easy to be understood and practised than those of the Cape of Good Hope, New South Wales, or of Newfoundland. I had flattered myself that the rules, which I by the advice of the long experience of the legal practitioners here, had prepared, were so simple, that I had the vanity to send a copy of the principal of them to Lord Brougham [then Lord Chancellor] with whose acquaintance I am honoured.100

96 Ibid., no. 4539 6 December 1830. 97 Murray to Don, 6 December 1830, TNA (PRO) CO 92/10. 98 Sir William Houston to R. W. Hay, 13 December 1831, TNA (PRO) CO 91/116 Gibraltar, 1831 Vol. 5. 99 Lord Goderich to Sir William Houston 4 November 1831, TNA (PRO) CO 92/10 No. 32. 100 Despatch of Houston to Goderich 6 January 1832 TNA (PRO) CO 91/120 no. 6.

242 Fees and charges caused disagreement in Gibraltar as they had done in New South Wales. Soon after Field’s arrival he amended the table of fees that existed by increasing the fees of the marshal on sale of real property. The Colonial Office would have deferred discussion on the subject as the establishment of a Supreme Court was contemplated. But as a member of the Office objected to the increase in the marshal’s fees, it was thought wise to defer approval of the increase until an explanation was given for its application.101

The Charter of Justice framed for Gibraltar did not make clear whether court fees were to be paid to the Collector of Revenues as before. Field decided to withhold those moneys, until ordered otherwise by the Treasury Lords, in order to pay salaries to officials, clerks, and constables.102 The governor expected Field to pay the surplus to the credit of the garrison absolutely. Field refused, agreeing only to deposit it with the Collector as a trustee. A heated discussion with the Military Secretary, Colonel Moir, followed. The governor wrote to complain to the Colonial Office lamenting the lack of a proper Code of Rules of court. In reply, Under Secretary Hay hoped that the court could function without the many fights and mischief surrounding Field’s court in New South Wales (euphemistically referred to as ‘elsewhere’). Hay was sorry to say he had received a letter from Field about the dispute and ordered the governor to terminate it.103

Field did make some positive contributions to law in the British Mediterranean. A number of circumstances led Field to play a part in the revision of the laws of Malta. He knew that island’s Chief Justice, Sir John Stoddart, from their association with The Times.104 Great Britain decided not to introduce the common law of England into Malta and deferred reformation of its legal system. In 1830 its governor decided to finalise a revision of its Criminal Code that had

101 Field to Sir George Murray, 22 February 1830, followed by a memo – To Mr. Hay signed GS‐ TNA (PRO) CO 91/111 Gibraltar. Public Offices and Miscellaneous 1830. 102 Field to Civil Secretary, George Adderley, 6 December 1831, TNA (PRO) CO 91/116. 103 R. W. Hay to Houston, 29 December 1831, TNA (PRO) CO 92/10. 104 G. C. Boase, ‘Stoddart, Sir John (1773–1856)’, rev. Nilanjana Banerji, Oxford Dictionary of National Biography, Oxford University Press, 2004; online edn, Oct 2009 [http:// www.oxforddnb.com /view/article/26551, accessed 19 Dec 2012]. John Stoddart was associated with The Times from 1810, becoming its editor in 1814 until 1816.

243 lapsed. Stoddart issued a commission for an enquiry to be made by himself, Field, and the Chief Justice of the United States of the Ionian Islands, John Kirkpatrick, assisted by two Maltese lawyers. The Colonial Office approved Field’s travel there at the expense of the Maltese revenue.105 Whilst there, Field enjoyed the company of Maurice O’Connell, William Bligh’s grandson. He had been appointed Acting Lieutenant Governor of Malta after service at Gibraltar where he and his wife were very close to the Fields.106 After confinement in quarantine in a comfortless Maltese lazaret for nine days, Field wrote that there was much to be done and learnt before the arrival of the Commission although he took no further part in the work of revision. Pressure of judicial business required his immediate return to Gibraltar and Field did not return to Malta.107

In Gibraltar, Chief Justice Field grew much surer of his judicial independence than ever before. His actions over smugglers imperilled the good relations the British Government was anxious to maintain with Spain. On seizing Gibraltar in 1704 the British authorities declared it a free port. Merchants were allowed to ship in goods that were smuggled over the border into Spain.108 The activities of smugglers had proliferated after 1815 and that, in turn, deprived the Spanish crown of revenue.109 Smuggling of British cotton goods into Spain through Gibraltar and Portugal competed with the expansion of Catalan textile production.110 Knowles demonstrated the enormous effect of smuggling on the economy of Spain.111

105 Goderich to Field, 30 June 1831, TNA (PRO) CO92/10 289‐90. 106 Field to James Macarthur, 16 April 1830, CY972 A2922 vol. 26 36‐9. 107 Field to Hay, 27 August 1831; to Goderich, 14 October 1831, TNA (PRO) CO 91/118; Hay to Houston 27 November 1831, TNA (PRO) CO 92/10 437. 108 Stephen Constantine, ‘The Pirate, the Governor and the Secretary of State: Aliens, Police and Surveillance in Early Nineteenth‐Century Gibraltar,’ English Historical Review 123, no. 504 (2008): 1170. 109 Raymond Carr, Spain, a history (Oxford: Oxford University Press, 2000), 203. 110 L.P. de la Escosura, The loss of colonial empire and its economic impact on Spain (Leuven University Press, 1990) http://hdl.handle.nwet/10016/4784 85. 111 L. C. A. Knowles, Economic Development in the 19th Century: France, Germany, Russia and the United States (Oxford: Routledge, 1932), 131, note 2 – in 1805 the value of foreign trade from Spain was £186,660. In 1811 it was £1,495,865. For those years the values for Gibraltar, Malta, Sicily, and the Levant were £1,574,156 and £7,393,390 respectively.

244

The Spanish authorities inhibited smuggling into Spain by preventing the landing of goods in Gibraltar. Don Francisco Serafin, a Spanish smuggler turned revenue officer, almost succeeding in eradicating this activity, becoming the terror of Gibraltar smugglers. Before Field’s arrival in 1829, Serafin disabled the British vessel Lord Rawdon within cannon shot of Gibraltar and towed her into Spanish waters. An international incident resulted between Great Britain and Spain. The ‘facts’ depended on whether one was reading a French or English account of the events that took place. The official French version claimed that the Gibraltar administration ignored smuggling activity and only ordered it to cease after complaints by the French. Economic factors in France prior to its 1830 Revolution led to extensive anti‐British feeling. With an upsurge of Napoleonic sentiment there was a fear that France’s enemies might invade her.112 The French maintained that the Lord Rawdon was ordered to destroy a Spanish vessel and only the heroic bravery of Serafin led to its defeat and detention at Cadiz.113

The Examiner printed a letter from Gibraltar that set out the criminal history of Serafin and his willingness to suppress smuggling following his appointment by the Spanish Government as a ‘Preserver of the Rights of the Coast’.114 From that time forward Serafin supplemented his official income with private speculation. Eventually the Spanish Government acted against him and he was sent to Madrid under a strong escort for trial on a variety of charges including murder. Field issued an arrest warrant for Serafin while he was still in prison. It involved the Gibraltar government, in its governor’s opinion, in much difficulty and expense ‘without any salutary result’.115

112 Pamela Pilbeam, ‘The Economic Crisis of 1827–32 and the 1830 Revolution in Provincial France,’ The Historical Journal 32, no. 2 (1989): 327‐8; for Napoleonic sentiment see Pamela Pilbeam, ‘The Economic Crisis of 1827–32 and the 1830 Revolution in Provincial France.’ The Historical Journal 32:2 (1989): 838, 839‐40. 113 The Morning Chronicle 19 September 1827 issue 18101, 1e; 28 September 1827 issue 18109, 2a‐ b; The Morning Post 19 September 1827 issue 17711, 3b. 114 The Examiner 27 July 1828, issue 1069, 488a . 115 Serafin – see Edward Mason Crossfield, The Note Book of an Oxonian, by a late member of Brazen Nose College (Privately printed s. n. 1831), 117; in Gibraltar a civil police magistrate was present but did not have the power to issue an arrest warrant outside the town – Constantine, ‘The Pirate,

245 The correspondence between Governor Houston of Gibraltar and the Colonial Office does not throw any light on Serafin’s activities or why Field in the Governor’s eyes repeated an earlier mistake by issuing another arrest warrant. The first Houston knew of it was seeing the captain and the crew of the Spanish coast guard vessel Guerrera march by Government House on the way to prison.116 Houston acknowledged that in this latter incident the British flag was again insulted but that Field’s actions made a diplomatic end to the incident difficult. Field was requested to call on the governor who told him that his right to act was not in question, but he expected Field to inform him of his intentions, given that the previous case had caused such difficulties. Field’s manner was ‘perfectly disrespectful, and is generally so far removed from that to which my situation entitles me’ that the governor asked the Colonial Secretary to check Field’s hasty and petulant manner which involved him in endless disputes with himself and the officers of government. The Attorney‐General, James Cochrane, and Field had not been on speaking terms for months. Under those circumstances, the governor called for the removal of his Chief Justice as he was in a position to thwart and cause difficulties in the path of his government and to cause embarrassment apart from his marked want of courtesy. He asserted that he felt justified in unilaterally removing him from his office, though he preferred to submit his conduct for the decision of the Secretary of State.117 The British Minister at the Spanish Court in Madrid was certain that by his acting authoritatively where the merits were doubtful, Field may have led to very serious discussions and disagreements between the two Crowns.118 The Spanish government’s view was that Great Britain was protecting British interests at the expense of Spanish customs duties that were being avoided by smugglers.

The Fields returned to England on leave of absence early November 1833 as his mother was ill. She died early in the New Year. The governor wrote to the

the Governor and the Secretary of State: Aliens, Police and Surveillance in Early Nineteenth‐Century Gibraltar,’: 1178; for Governor Houston’s criticism of Field’s actions over Serafin see Houston to Hay, 27 February 1833 CO 91/124 vol.1. 116 Houston to Hay, 27 February 1833 TNA (PRO) CO 91/124 vol. 1 Private). 117 Ibid. 118 Enclosure to no. 22, 24 March 1833 TNA (PRO) CO 91/124.

246 Colonial Office in an attempt to prevent Field’s return.119 The Fields made many visits to family and friends. Starting at Leamington in Warwickshire, where uncle William Field lived in an old‐fashioned country house, they journeyed to Liverpool. Their return was to London and Woodford Green where Field’s father Henry had retired. The Horace Smiths, introduced in Chapter Two, were visited at Brighton and then William Swainson and his wife Mary at Tyttenhanger Green, St Albans. Field and Swainson had been friends for many years. Charles Lamb had feelings for Jane Field that he only dared to express in an acrostic at this time:

To Mrs F— on her return from Gibraltar. Jane, you are welcome from the barren Rock, and Calpe’s sounding shores. Oh do not mock, Now you have rais’d our greetings; nor again Ever revisit that dry nook of Spain. Friends have you here and friendships to command, In merry England. Love this hearty land. Ease, comfort, competence – of these possess’d, Let prodigal adventurers seek the rest: Dear England is as you, – a Field the Lord hath blest.120

With a hunger for recognition driven by feelings of self‐importance, Field demanded that his office as judge be respected. In preparation for his return to Gibraltar, Field requested that the Colonial Office ensure that he be accorded the honours on landing, for the honour of his profession, which he had enjoyed in his last colonial posting. He had applied to the governor of Gibraltar and was informed that the regulations did not admit of a compliance with his request. Field argued that his status was outside precedent because he was the first judge of a Supreme Court of Gibraltar. Ultimately his request was granted.121 Perhaps Field’s request was, as well, a political statement directed at the governor, forcing him to publicly acknowledge Field’s status, even as their official relationship was in tatters. It was part of a concerted effort by Field to reinstate himself into public life.

119 Houston to Hay 7 November 1833 TNA (PRO) CO 91/125 vol. 2. 120 E. V. Lucas, ed. Poems and Plays by Charles and Mary Lamb, vol. 4 (London: Methuen and Co. Ltd., 1912), 105. 121 Field to Stanley 19 April 1834 TNA (PRO) CO 91/129 vol. 3.

247 On his return Field called on Governor Houston to state that he was the only officer, military or civil, who had been for two years excluded on private or public occasions, from Government House. Field proposed an amnesty but was not asked to sit down. He would have complained ‘but that the remedy of being forced into his society would have been worse than the evil of being shut out.’ A year later, when Houston was departing the garrison, Field wrote to R. W. Hay, Under Secretary of the Colonial Office, asking for his successor Sir Alexander Woodford to be appraised of Houston’s prejudices against him.122 His relations with the new governor were tranquil by comparison.

Once again Field has to defend himself

Notwithstanding his better relationship with the new governor of Gibraltar, the worst moments of Field’s legal career came when proceedings were brought against him for attachment for contumacy and contempt in disregarding an Inhibition of the Privy Council that had been issued against him. A number of his judgments had gone on appeal to the Council from Gibraltar where most were dismissed. In one, involving complex issues of law of citizenship and dower, it was held that his judgment was well founded and should be affirmed with costs.123

However, in 1835 Field had the misfortune to be the first British judge before whom actions were brought under the Slave Abolition Act, passed to amend and consolidate the laws relating to the abolition of the slave trade.124 They caused him great difficulty in the Privy Council. The first case arose from the investigation by the port authorities of the activities on board the ship Cazador, following its arrival in Gibraltar, during the night of 29 March 1835, bound for Africa and subsequently Havannah (Cuba). The authorities found that William Sherwill, with permission, loaded on board 32 cases of muskets and 600 barrels of gunpowder, for the account and to the order of Pedro Martinez. Before the Cazador sailed she

122 Field to Hay 19 April 1835 TNA (PRO) 91/133 vol. 4. 123 Jephson v Riera (1835) 3 Knapp 130; 12 ER 598. 124 (1825) 5 Geo. IV c. 113; Sherwill v The King (1836) 2 Moore’s Reports 1,9; 12 ER 902,905 per Sir William Follett KC.

248 was seized for having been illegally fitted out and equipped in Gibraltar for the slave trade. The captain of the port of Gibraltar swore that after minute inspection of the vessel, there was no other purpose for which it could be used but as a slave transport.

Proceedings were commenced under section seven of the Act in the Vice Admiralty Court of Gibraltar against Sherwill and Martinez, and Riera, master of the Cazador, and Campo its owner, who received the goods on board. Pending hearing of these proceedings, Sherwill was also arrested, committed and indicted under section ten for having

piratically, feloniously and unlawfully fitted out, equipped, despatched and used the said ship Cazador, to accomplish the object of shipping, embarking, receiving, detaining and confining on board slaves and other persons, for the purpose of their being carried away and removed in order to their being dealt with as slaves.

By design Field heard the criminal charge against Sherwill the day before the hearing of the proceedings in the Vice Admiralty Court. The evidence against Sherwill was used in the civil proceedings. The procedure was criticised by the Privy Council because the evidence in the criminal case was not to be considered in the hearing of the civil proceedings. It regretted ‘that the two cases have been mixed up together’, an oblique criticism of Field’s management of them.125

All the defendants denied having any knowledge of the objects for which the vessel was fitted up or of the matters charged against them. Field rejected their claims and imposed the full penalties claimed and condemned the ship to be forfeited.126 In addition, Field convicted Sherwill and sentenced him to imprisonment for three years.

From Field’s judgment in the Vice Admiralty Court the defendants appealed to the Privy Council. The civil authorities in Gibraltar submitted to the Privy Council that Sherwill, having been sentenced to imprisonment, was legally incapable of appealing. The Privy Council observed that Sherwill, having forfeited

125 Sherwill v The King (1836) 2 Moore’s Reports 1,11; 12 ER 902, 906 per Lord Wynford. 126 Sherwill v The King (1836) 2 Moore’s Reports 1,6; 12 E.R. 902,904; Campo and another v The Queen (1837) 2 Moore’s Reports 15; 12 ER 907.

249 all his goods and chattels following his conviction of a criminal offence, would never be in a position to pay the penalties imposed in the civil suit. But in deciding the appeal in favour of Sherwill the Privy Council ruled that to render a party liable to the penalties for shipping goods to be employed in the slave trade, he must be shown to have had a guilty knowledge of the object of the vessel.127 This was not proved and Sherwill’s term of imprisonment was remitted.

The appeals of Campo and Martinez were successful. Field’s judgment that Martinez’s goods be forfeited was reversed because he was not the owner of the vessel, and was therefore not liable under the Act to be penalised. Campo, the owner of the vessel, could have been penalised if he owned the goods but he did not, as they were the property of Martinez. However, as the owner of a vessel fitted and equipped for slaving, the Privy Council affirmed Field’s decision to order forfeiture of the Cazador and the penalty imposed. But Field went too far. He had imposed a penalty of £10,000 on each of Campo and Riera, the master of the vessel. The Privy Council ruled that the two men were jointly liable for the one penalty for receiving goods on board.128

One of the worst moments in Field’s judicial career arose from his actions in the case of the Winwick. Just over two years after the Cazador proceedings began, the Winwick sailed from Trieste, bound via Gibraltar for Bahia. She was seized in Gibraltar on the allegation that three persons on board, two males, José and Candido, and a female, Laurianna, although described in the muster roll of the ship as passengers, were in fact slaves. Their passports appeared to have been issued at Vienna and contained visas issued by the British Vice‐Consul at Trieste.129

These three persons gave evidence before Field that they considered themselves slaves because they had never received their passports or letters of freedom. The owners of the Winwick tendered evidence of the law of Brazil banning the slave trade. But ‘Brazilians resorted to all manner of trickery to conceal illegally imported Africans from the British and thus deny them the

127 Campo and another v The Queen (1837) 2 Moore’s Reports 15; 12 ER 907. 128 Campo and another v The Queen (1837) 2 Moore’s Reports 15, 18; 12 ER 907,908. 129 Miles Barton and others v William Henry Sherriff and Ilted Nicholl (1837) 2 Moore’s Reports 19; 12 ER 909.

250 freedom … promised them.’130 Field gave judgment on 20 July 1838 against the owners and ordered that the ship, her tackle and the slaves be forfeited to the Queen and pronounced penalties of £100 for each of the slaves against the master, first mate and owners, jointly. Field therefore did not repeat the error he had made in the Cazador that each person be penalised in the sum of £100.131

Two weeks after Field gave judgment the defendants appealed to the Privy Council. A week after the appeal was lodged, acting on the petition of the civil authorities that the ship’s stores, articles and provisions were in a perishable state, Field ordered that they be sold and his decree was executed.

Field now knowingly disobeyed the Privy Council. When the appeal from Field’s judgment of 20 July 1838 reached the Privy Council, it ordered in the following December, that nothing be done to the prejudice of the vessel’s owners. This order was served personally on Field on 9 January 1839. On 8 February following, the civil authority applied to Field for an order that the Winwick be sold, relying on an affidavit of a ship builder that it had decreased in value and would continue to decrease. Contrary to the order of the Privy Council, Field over ruled the objections of the owners and ordered the vessel be sold. On 14 March it realised 7050 ‘dollars’ (£1591) and the funds were paid into court.132 The ship owners again appealed to the Privy Council.

With funds now available to pay the Crown’s costs and Field’s, as well as the Registrar’s and Marshal’s fees, in breach of the court’s rules to give notice to the owners, a bill of costs was taxed at £965 10s 10d and was paid out. As soon as these events came to the notice of the Privy Council, it ordered Field to transmit the sale proceeds to England.133 Field transmitted to England all that was left of the sale proceeds. The Privy Council next ordered that the sum withheld be remitted to England. Field and the other officers submitted that the order to remit the sale

130 Matthew Mason, ‘Keeping Up Appearances: The International Politics of Slave Trade Abolition in the Nineteenth‐Century Atlantic World,’ The William and Mary Quarterly 66, no. 4 (2009): 817. 131 Campo and another v The Queen (1837) 2 Moore’s Reports 15, 18; 12 ER 907, 908 132 Moore’s Reports does not specify the country of issue of the ‘dollars’. The medium of currency of Gibraltar at the time was Spanish – see The Star 28 January 1893 1c. 133 Miles Barton and others v William Henry Sherriff and Ilted Nicholl (1837) 2 Moore’s Reports 19; 12 ER 909.

251 proceeds was received after the payment of the costs and fees and further that under the state of the existing law, the ship owners were not required to give a security for costs which could not therefore be recovered from them personally. As no salary was attached to the offices of judge, registrar and marshal of Vice Admiralty, they were forced to look to the sale of condemned shipping for their fees. This was a common misapprehension of vice‐admiralty judges and led to a belief that they were eager to condemn to create a fund from which they would be paid.134 Meanwhile, Field’s health deteriorated and he sought retirement with the case of the Winwick pending against him in the Privy Council.

The Winwick’s owners claimed costs and damages in the Privy Council against Field incurred by the illegal sale of the ship. The proceedings were not disposed of for another two years. When they were, Field was exonerated. The Council ruled that more than an error of judgment had to be committed by a judge before he became liable for the penal consequences sought. If an error, it had to be proved wilful and had proceeded from corrupt or improper motives. It appeared that Field acted to the best of his judgment under all the circumstances. He had to form an opinion of the true effect of what was served on him and this was evidently a difficult question. It appeared there was no wilful culpability and the order sought was not granted.135

Retirement

Colonial judges’ pensions, at least in Field’s case, depended on the amount claimed during his term of service, his years of service, and reasons for retirement but, primarily, on the ability of the state of the revenues of the colony or territory liable for their payment. Field’s first application to retire was unsuccessful. His application for an annual pension of £500 was based on declining health brought

134 See James E. Pfander, ‘Judicial compensation and the definition of judicial power in the early Republic,’ Michigan Law Review 107, no. 1 (2008): 10. 135 ON APPEAL FROM THE VICE‐ADMIRALTY COURT OF GIBRALTAR, In the matter of the Petition of MILES BARTON, and Others, against BARRON FIELD. The Ship Winwick [Feb. 14,1842, and Nov. 27 and 28, 1843] IV Moore, 273; 13 ER 307 (Lord Cottingham, Lord Campbell, the Vice‐Chancellor Knight Bruce, and the Right Hon. Dr. Lushington).

252 on by long residence in warm climates. He offered to obtain a medical certificate attesting to his long subjection to gout and pointed to his many years of service for the Crown. He confessed that he only made the claim because he had been unable to save sufficient money for his retirement. He believed no other judge of the Crown could equal his years of service.136 However, the state of the revenues of Gibraltar would not allow the pension sought.137 A year passed and Field applied again. From about July 1840 he had ‘scarcely ever been free from Gout, having had six fits thereof, in foot and hand’. Twice he had to postpone the sessions of the Criminal Court and more often that of the civil. Enclosing Dr. Mitchell’s medical certificate he wrote to Lord John Russell that he had 20 years’ service to his credit. By the death of the previous recipient of a pension, ₤500 per annum had now become available he pointed out, giving details to the day of his service. He hesitated long before adding the circumstances of his descent from Oliver Cromwell for the purpose of pointing out that none of his family had ever received a pension from the Crown, but if the fact was of no relevance he conceded it could be treated as a nullity. It was, being deleted in pencil.138 Field embarked for England 12 August 1841 once his successor was installed, his legal career at an end. Field discovered that his pension could only be paid in Gibraltar to him or his attorney there and had to request it be paid to the Agent‐General in London for remission to him there. The expenses incurred were deducted from Field’s and other recipients’ remittances.139

At the outset of his retirement Field was certain that he could not afford to live in London.140 He settled in Brighton for a time until his last move to Meadfoot House at Torquay to live cheaply in a mild climate.141 Retirement offered the

136 Field to Marquis of Normanby, 4 July 1839 (enclosure in Sir A. Woodford to Marquis of Normanby, 4 July 1839, No. 71) – TNA (PRO) Reel CO91/146. 137 Normanby to Woodford, 23 August 1839 – TNA (PRO) CO 92/14 No. 33 194‐6. The Colonial Secretary, the Marquis of Normanby replied that Field should have submitted the usual statement of his age and infirmity. 138 Field to Lord John Russell, 15 April 1841 – TNA (PRO) CO91/153. 139 See CO 91/156 Field to Lord Stanley, 3 December 1841; CO 92/15 157‐8 J. Stephen to C.E. Trevelyan 11 December 1841; CO 91/156 [Stephen] to Woodford, 31 December 1841. 140 Field to Crabb Robinson, 1 March 1839 – Dr. Williams’ Library 80. 141 Field to Sir (Jonathan) Frederick Pollock, Lord Chief Baron of the Exchequer, 19 April 1844, Cambridge University Library Add. MS 7564/227. See J. M. Rigg rev. Patrick Polden DNB for

253 opportunity for full‐time writing, something that had had to take second place to the responsibilities of judicial office. Field reverted to topics similar to his interests before his appointment to New South Wales. The study of William Wordsworth and Shakespeare was a major occupation along with, and to a lesser degree, much miscellanea.

His interest in Elizabethan dramatists led to his election to the council of the Shakespeare Society founded in 1840. It published a number of Field’s contributions. But Field did not approve of Shakespeare societies although he became a member of one, because ‘They vulgarize genius by reducing it to the level of the stomach, and can only propose to ascend the highest heaven of a wonderful imagination by help of eating and drinking, by legs of mutton, and dainty viands’.142 Field’s Confessions of William Shakspeare [sic] was published in four parts in the New Monthly Magazine in 1835 although written some years earlier.143 Field embarked on a study of Shakespeare’s sonnets, considering what could be gleaned of the personalities of both the author and the veiled characters introduced in them. Field introduced, without acknowledgement, the first essay with lines written in 1827 by Wordsworth, containing the hypothesis upon which Field founded his arguments: ‘With this key/Shakspeare unlock’d his heart …’.144 It was not an attempt to analyse the sonnets as works of art or point out their beauty. Field ranged over the few biographical details of his subject pointing out that Shakespeare had told his readers ‘of his loves and his friendships, and of those inner thoughts that alone stamp the character’. Field rhetorically asked his readers if he had unlocked the secrets of Shakespeare’s heart. Their opinions, if they expressed any, are not known. However, his labours suggested an article on the sonnets … to an accomplished French writer and he thanked an able critic in the

biographical details of Pollock. In his letter of congratulations to Pollock on his elevation to Lord Chief Baron on 15 April 1844, Field referred to their ‘very old acquaintance’. 142 New Monthly Magazine vol. 45 September 1835 47‐69, 54. 143 New Monthly Magazine vol. 26 577‐583. Thomas Campbell, the editor of New Monthly Magazine quoted from Field’s Confessions. Field’s lines that appear in the New Monthly Journal Vol. 43 January 1835 p. 7 are reproduced in Campbell’s work in the same journal Vol. 26 p. 577. 144 William Wordsworth, Poetical Works, vol. 2 (London: Longman, Rees, Orme, Brown and Green, 1827), 305.

254 Morning Herald for an admirable notice of the subject.145

Field wrote a study of Thomas Heywood’s Edward the Fourth for the Shakespeare Society.146 His remarks on the origins of the well‐known lines from King Richard III ‘a horse, a horse, my kingdom for a horse’ were an authoritative source for Notes and Queries. This work is still today engaged in the asking and answering of reader’s questions, devoted mainly to English language and literature, lexicography, history and scholarly antiquarianism.147 Field edited Heywood’s The Fair Maid of the Exchange, a comedy, in 1845 with an introduction that is conspicuously in the style of The Times theatre critic of 40 years previous.148 Fortune by Land and Sea, a tragic‐comedy by Heywood and W. Rowley, was his other subject that year.149 The slight introduction consisted of a biographical note of Rowley. The copious notes to both plays were based on the widest reading. An amalgamation of them was printed the following year in one volume.150 The Dramatic Works of Thomas Heywood with a Life of the Poet and Remarks on his Writings appeared after Field’s death, based on these published writings.151

Field retired from the Shakespeare Society in 1845, but under his hand in

145 The New Monthly Magazine and literary journal vol. 44 no. 175 July 1835 p. 336. 146 Edward the Fourth: A Historical Play in two parts, by Thomas Heywood, was ordered for printing, to be edited by Barron Field Esq. from impressions in the library of a Vice‐President of the Society, Lord Francis Egerton, commencing in 1600. Field’s introduction had no inspired thought, it referred to other compilers of Heywood and was more a study of the editions in which the play had appeared. It was printed at the end of 1842. 147 Notes and queries 1869 Vol. 3 4th series (68) 373; NLA FRM F738. Field to Collier. Undated letter bound with First Fruits of Australian Poetry. He did not enforce the metre or modernise the orthography as he had done in Edward the Fourth and he acknowledged the assistance of his brother Frederick, with one emendation. Modern scholarship indicates his work was a transcript of a single manuscript containing nearly a thousand errors which could have been avoided had he consulted other manuscripts available to him. One he dismissed as a bad imitation of Legge and he confused words written in red ink in his working copy for a copyist’s name today believed to be the name of the author of the argument. He argued that no Elizabethan playwright reached the incomparable heights of Shakespeare, but did not appreciate that The True Tragedy of Richard the Third was a source for Shakespeare. For an outline of Notes and Queries see Oxford Scholarly Editions Online. 148 The Fair Maid of the Exchange: a comedy by Thomas Heywood ed. Barron Field Esq. (London: Printed for the Shakespeare Society, 1845). 149 Fortune by Land and Sea: a Tragi­comedy by Thomas Heywood and William Rowley ed. Barron Field (London: Printed for the Shakespeare Society, 1845). 150 The Fair Maid of the Exchange: a comedy … ; and Fortune by land and sea ed. Barron Field (London: Printed for the Shakespeare Society, 1846). 151 The dramatic works of Thomas Heywood: with a life of the poet, and remarks on his writings by J. Payne Collier (London: Printed for the Shakespeare Society, 1850–1851).

255 that year, it published Conjectures on some of the corrupt or obscure passages of Shakespeare with his promise to continue the study in a future volume.152 It was all new work, not drawn from his three articles on the same subject in The Cabinet published in 1809. It was intended for the Westminster Review but was rejected.153 The editor used one emendation, however, in March 1845, acknowledging in a footnote the debt he had incurred to Field.154 The Shakespeare Society printed another article by ‘the late Barron Field Esq.’ in 1847.155 Three were intended in all.156 Field was recognised as an authority on Shakespeare for some time.157

Towards the end of his appointment to Gibraltar Field had written Memoirs of Wordsworth. As I pointed out earlier in this chapter, Field pursued Wordsworth’s friendship. He tried hard to induce Wordsworth to visit him in Gibraltar when he learned of Wordsworth’s impending continental visit, even offering to pay his expenses. Wordsworth rejected the offer. Field was also unsuccessful in obtaining the poet’s permission to publish his Memoirs.158 When Field learned that Wordsworth had written a sonnet On the Projected Kendal and Windermere Railway he was aghast at Wordsworth’s entry into politics. On reading of Wordsworth’s desire to retire Field responded that he could ‘no more pretend to

152 The Shakespeare Society’s Papers, vol. 2 (London: Printed for the Shakespeare Society, 1845), Art. VII, 40–61. 153 Field to Crabb Robinson, Meadfoot House, 8 June 1844, Dr. Williams’ Library 50a. 154 Westminster Review, vol. 43, March 1845, 55 – a speech of Bottom in A Midsummer Night’s Dream. 155 The Shakespeare Society’s Papers, vol. 3 (London: Printed for the Shakespeare Society, 1847) Art. XV, 131–42. 156 Field to Crabb Robinson, Meadfoot House. 16 November 1845, Dr. Williams’s Library 115b; The Shakespeare Society – Vol. 8 pp. 3, 5, 8; Vols. 9, 14. Vol. 16 pp. 4,6. Vols. 20, 21. Vol. 22 p. 15. Vol. 23. Vol. 24 p. 40. 1847; p. 131, 1851. 157 Vol. 74 p. 468; Act 5 Scene 2 Line 103; In Blackwood’s Edinburgh Magazine of October 1853 an author agreed with his emendation to Antony and Cleopatra that stands today; The Reverend Alexander Dyce in his Remarks on Mr. J. P. Collier’s edition of Shakespeare of 1844 quoted from Collier’s discussion of Field’s commentary on Cymbeline. Field was accepted as a sound source. The Shakespeare Society published a supplement to Dodsley’s Old Plays in 1853, edited by Field, with J. Payne Collier, Rev. A. Dyce, J.O. Halliwell and others, of four volumes of reprints of previous editions of its publications of Thomas Heywood, Dr. Legge and others. 158 Wordsworth to Edward Moxon, Rydal, 10 January 1840 – Ernest De Selincourt, ed., revised, arranged and edited by Alan G. Hill, The Letters of William and Dorothy Wordsworth, vol. 7 (Oxford: Oxford University Press, 1978), second edition, The Later Years, Part 1, 1840–1853, vol. 7, 5; Wordsworth to Field, Rydal Mount, 16 January 1840 – Ernest De Selincourt, ed., revised, arranged and edited by Alan G. Hill, The Letters of William and Dorothy Wordsworth (Oxford: Oxford University Press, 1978), second edition, The Later Years, Part IV, 1840–1853, vol. 7, 6‐7.

256 “retirement” than the Queen. They have both bartered it for fame.’159 Stephen Gill wrote that Field’s arguments ‘in his long and passionate remonstrance’ could be answered, but that they represented a common‐sense point of view.160 Field respected Wordsworth’s refusal of approval for publication of his Memoirs and they were acquired, still unpublished, by the British Museum in 1926. Wordsworth respected Field’s emendations of his poetry and provided accommodation to him when Field visited England. But Wordsworth’s insistence that his Memoirs not be published seems to have brought the friendship to a less cordial level. Geoffrey Little edited the Memoirs in 1975 to bring to light details of Field’s acquaintance and guidance to Wordsworth.161

Turning to Field’s miscellanea he accepted commissions to write the biographies of Charles Lamb and Samuel Taylor Coleridge following their deaths. As pointed out in Chapters One and Two Field was a close friend of Lamb.162 Field sought out Coleridge on his return from New South Wales.163 It is likely the visit inspired Coleridge to write The Delinquent Travellers for it had the lines ‘Rogues, rascals, sharpers … fraudulent bankrupts, knights burglarious … [were the] … elected Gentry … [of] … Diemen’s Land … and founders of Australian Races … .’ New Holland was ‘Old England with some elbow‐room … [to] hunt the black swan and kangaroo.’164

When a reprint of Field’s Spanish Sketches issued in 1843 Murray thought Field competent and sufficiently knowledgeable about Spain to undertake a revision of the manuscript of Richard Ford’s Handbook for Travellers in Spain.165 With the ‘long harassment with the law suit in which I have just succeeded’ out of

159 Field to Crabb Robinson, 16 February 1845, Dr. Williams Library 18. 160 Stephen Gill, William Wordsworth, A Life (Oxford: Clarendon Press, 1989), 414. 161 Barron Field, Memoirs on Wordsworth, ed. Geoffrey Little (Sydney: Sydney University Press for Australian Academy of the Humanities, 1975). 162 For the obituary of Coleridge see Annual Biography and Obituary vol. 19 (London: Longman, Rees, Orme, Green & Longman, 1835), 320; for Lamb see op. cit., vol. 20, 1836, 1. 163 Little, Memoirs of Wordsworth, 8. 164 For the date of writing The Delinquent Travellers see Roger Clark ‘Threading the Maze: Nineteenth‐century Guides for British Travellers to Paris,’ in Parisian Fields, ed. Michael Sheringham (London: Reaktion Books Ltd., 1996) 15. 165 Barron Field, Spanish Sketches (London: Printed for private distribution, 1843); Richard Ford, A Handbook for Travellers in Spain vol. 1 (London: J. Murray, 1845).

257 the way, Field started on this work. It was acknowledged as ‘a literary achievement … never before performed under so unpretending an appellation …’.166 Field wrote himself into the Handbook at the description of Palos:

[N]ow … a poor fishing port, a thing of decrepid Spain, and well has Mr. Barron Field in his Spanish Sketches which we trust will not always remain printed for private distribution contrasted ‘these anchor’d fish‐boats with the Docks/Of Liverpool …’ and referred to himself as an ‘upright judge’.167

Other literary efforts of Field were the Stanley Crest and a revision of Lord Campbell’s Lives of the Chancellors.168 More important was Field’s study of The Songs and Sonnets of Dr. John Donne completed in 1843 that he intended to enlarge to be a complete edition of Donne.169 Field took up this work following his becoming a member of the Percy Society founded to encourage the study of Early English Poetry and Ballads.170 The month after his death the Percy Society in its annual report announced amongst works for future publication, in an advanced state of preparation was ‘The Songs and Sonnets of Dr. Donne to be edited by Barron Field Esq.’.

Field died 11 April 1846 after suffering a fit of apoplexy for 15 minutes. His will was dated 6 August 1839. The bequest of a mourning ring to each of the many persons named was extraordinary. One could understand a gift to brothers and sisters and their respective husbands and wives and to friends made over a

166 The Times, 4 September 1858 issue 23090 6a. 167 Ford, A Handbook for Travellers in Spain vol. 1, 239, 343. 168 The Stanley Crest appeared, signed ‘Gibraltar 11th September, 1837’. Its facts, if facts, Field took from his copy of Seacombe’s Memoirs of the House of Stanley, 1767. A Chaucer‐like story, it was set in the time of Edward III and was the tale of Sir Thomas de Lathom’s illegitimate son. The title of the ballad reflected hostility between two families and concluded with a reconciliation. Printed quarto on a sheet of foolscap, he used the blank 3rd and 4th page as notepaper. With a letter to Collier of 1842, a copy is bound with First Fruits of Australian Poetry; for Campbell’s Lives of the Chancellors see Field to Crabb Robinson, 13 November 1845, Dr. Williams’ Library 113b, 114a. Field was still working on a revision of this work at his death. He may have been responsible for some of its many faults. See Baron John Campbell (1779–1861) Encyclopaedia Brittanica 9th ed. vol. 4 (Edinburgh: Adam and Charles Black, 1876), 759. 169 Field to Crabb Robinson, 14 August 1844, Dr. Williams Library, 73a. 170 See Arthur Freeman and Janet Ing Freeman, ‘Phillipps, James Orchard Halliwell – (1820–1889)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http:// www.oxforddnb.com /view/article/12020, accessed 23 Dec 2012] for the founding of the Percy Society in 1840.

258 lifetime, but provision for ‘the clerical and medical gentlemen who may attend me at my death and funeral’ was a final piece of theatre. The residue of the estate went to Jane, for her life, to pass to their godson Edwin Swainson, on trust for his maintenance and education until he attained his majority, when he took it absolutely.171 S. Leigh Sotheby and Co at his death sold by auction the items of Australian interest that he retained together with further acquisitions. The quantity of books and newspapers at that time prove that Field retained a genuine interest in the colony.172

Conclusion

Field’s career after New South Wales mirrored his earlier experiences. He continued to build his reputation as a man of science and letters until his death. He continued to be active in colonial politics in London, though not as active as the New South Wales press imagined. He continued to struggle at the Bar, and on his appointment to Gibraltar, he demonstrated again his proclivities for letting personal prejudice disrupt public office.

From adulthood to death, Barron Field’s trajectory provides important insight into the construction of middle class identity in Britain and its colonies, the role of empire in social mobility, and, most importantly, the combination of personality and politics in the legal construction of the British Empire after 1800.

171 The Fields adopted Edwin Swainson, youngest child of William Swainson on the death of his wife. 172 Items of Australian interest were James Atkinson’s Account of the State of Agriculture in New South Wales, George Grey, Journals of two Expeditions of Discovery in Australia, 1837–39, P. P. King, Survey of the Coasts of Australia in 1818–22, T. L. Mitchell, Three Expeditions into the Interior of Eastern Australia 1838, Matthew Flinders, Voyage to Terra Australis in 1801–3, Brisbane, Table of Equations for Sidney (sic) 1822, John Oxley, Journals of two Expeditions in the Interior of New South Wales 1820, Phillip (Governor) Voyage to Botany Bay 1798, First Fruits of Australian Poetry 1819, J. E. Smith, Specimen of the Botany of New Holland, 1793, Jo. White, Journal of a voyage to New South Wales, 1790, Botany of the Blue Mountains of New South Wales, with dried specimens of the plants n.d., Wm. Lewin, Natural History of the Birds of New South Wales 1822, J. Lycett, Views in Australia 1824, The Australian 1824–1828, the Sydney Gazette and New South Wales Advertiser, 1810–1827, Chas. Sturt, Two Expeditions into the Interior of Southern Australia in 1828–31, Rob. Sweet, Flora Australiasica, 1827–8, W. C. Wentworth, Account of the British Settlements in Australasia, and Description of New South Wales, 1819–24.

259 CONCLUSION

This study of the life of Barron Field employs biography for the insight it provides into the Empire’s relations with its colonies. Studies of colonial legal history have overlooked his period of tenure served partly under Governor Macquarie. Relations between the two affected the government of the colony and the administration of the civil law.

The formative events in the life and career of a man who rose to become a judge are revealed. His personality and the development of his talents were influenced by the circumstances of birth, family, friends, and education. Thus Field’s early life was the struggle of a man of middle class origins and scant legal ability to obtain appointment as a judge. In law, as in other professions in the early nineteenth century, in the absence of outstanding ability, professional advancement depended on patronage and connection. Field’s appointment suggests that the Colonial Office had difficulties in filling the office of judge in the colony. If it knew of Field’s dismal attempt to succeed at the Bar, it was not deterred from appointing him to the post. A hasty marriage, his preparations for the voyage and his planning for a household in the colony illustrate the expectations of a middle class gentleman in the colony.

My account of Field’s years in the colony is a study of its hardening class divisions in the 1810s. A coterie of free immigrants held themselves aloof from those of convict origins. Field’s immediate gravitation towards this group helps us to understand that nothing less than social standing, both in the colony and at home, was at stake in colonial social distinctions. On arrival Field sought Governor Macquarie’s friendship only to learn that he would join emancipated convicts at the vice‐regal table. The friendship he had made with John Macarthur in London also hardened Field’s views towards emancipists. Macarthur and his family dominated colonial polite society. As a middle class official on the make, Field’s status depended on joining them. Field was a ready convert to their political objectives of elitist superiority and emancipist suppression.

260 This study of Judge Field’s administration of the Supreme Court of Civil Judicature changes our understanding of the development of colonial law in New South Wales. As one of a few trained lawyers to run a colonial court in the colony’s history, at a time when colonial legal uniformity was becoming an imperial preoccupation, Field brought a great deal of unwelcome order to court proceedings. Meanwhile, Field’s actions in the court demonstrate its centrality, not just to commerce and law, but also to society and politics in this period. His greatest influence on that development was in the association of convicts with the court. Before Field’s alignment with Macarthur, the judge devised a stratagem to avoid convicts’ legal incapacity. However, once he came under Macarthur’s influence Field allowed personal interest to predominate over colonial good. Unlike some of the judges who followed him, who acted as a counterweight to the governors’ autocratic powers,1 Field was a reactionary judge who opposed a benevolent Macquarie. Field opposed emancipists’ efforts to advance themselves and the courts became embroiled in political and social disputes.

My analysis of the business before Field’s Supreme (civil) Court yields extensive information about the court’s centrality to the political, social and commercial life of the colony. It reveals the co‐operation and the competition between emancipists and exclusivists in commerce. Edward Eagar’s experience in the court demonstrates that those associations between emancipists and exclusivists in commerce did not extend to the social sphere. Commercial causes were the mainstay of the court’s business. Emancipist activity in commerce and litigation rose and fell according to the intensity of the political struggle waged in the courts. Judge Field assisted commerce by tolerating novel remedies introduced by the attornies. Field brought the practice and procedure of his court to so closely resemble the Superior Courts of Westminster, that when today’s Supreme Court was established, apart from different personnel, the change was imperceptible.

1 Stefan Petrow,’Policing in a penal colony: Governor Arthur’s police system in Van Diemen’s Land 1826–1836,’ Law and History Review 18, no. 2 (2000): 351.

261 Finally, however, Judge Field’s exclusivism and his unsuitable personality brought about his downfall in the colony. His conflict with emancipist lawyer Edward Eagar in the court publicly demonstrated its propensity for judicial bias, his opportunism, and his lack of concern for the public good. They did so at an inauspicious moment, when Commissioner Bigge was in the colony cataloguing its legal and administrative failures for the English Government. Field’s assumption of political power in the vacuum caused by the weakness of Governor Brisbane, meanwhile, demonstrated a marked failure to balance judicial independence against political ambition. These excesses showed the fragility of the rule of law in the colony and again, the centrality of the court to colonial law, commerce and politics. Once again demonstrating the Colonial Office’s lack of judgment in making judicial appointments, Field eventually received further appointment, where his poor relationships with another governor echoed his pugnacious behaviour in New South Wales, this time putting Britain’s relationship with Spain in jeopardy. This study of the mixing of personality and politics in the court, demonstrates the importance of overlaying biography on the history of a colonial institution.

262 APPENDIX A

Investigation of the records of the Supreme Court of Civil Judicature

My initial investigation of the court records commenced with reading of the surviving papers of the court. These have been divided by the State Archives Authority of New South Wales into cause papers and judgment rolls. The cause papers contain the records of cases commenced but that did not proceed to judgment. They contain the initiating declaration and summons and subsequent records of service of those papers and all subsequent records of preparation for trial.

The judgment rolls papers include the same records as cause papers but contain a record of the court’s judgment signed by Judge Field. Judge Field also acted as Master of the court and taxations of costs were finalised by him. Costs became part of the judgment debt. In many instances the process issued for recovery of the judgment debt is present in these records. Very detailed summaries of the court’s proceedings were also prepared for Commissioner Bigge and are preserved in the National Archives of Great Britain. Those records were not continued after Bigge’s departure. A Process Book (SR series number 13720) has also survived. I did not cross check process papers against the process book as it did not contain the nature of the action.

I used the available records to compile yearly tables of all known matters. In most cases the earliest document that has survived is the originating summons signed by Field together with the declaration signed by the attorney acting for the plaintiff. The date of these documents determined the yearly table in which they are included. However this meant that occasionally a matter commenced in say 1817 and was not heard until several years later. Where no summons or declaration has survived the earliest date on surviving documents has been used to determine in which yearly table they should be included. Where matters have several points of entry in the historical record such as further proceedings against garnishees or other parties, I have cross referenced them. Where as frequently

263 happened, appeals from Field’s judgments were lodged they also are cross‐ referenced.

I assigned a code letter to each type of matter. Where a matter commenced and was finalised with a warrant of attorney the origination cause of action was given priority in classification. The code for warrants was included however where applicable. Where judgment on a warrant of attorney was the only information given, those proceedings are recorded separately. I classified judgment on a warrant of attorney for debt or covenant, as actions for debt or covenant. Actions for recovery of monies loaned are classified separately from debt. Debt on a covenant is classified separately.

I recorded the names of the parties and where possible identified them as free arrivals or as transported persons. The primary sources as determinants for status are the Indexes prepared by State Records of New South Wales. Most useful are the Index to the Colonial Secretary’s Correspondence 1788‐1825 and the Convict Indexes. A contemporary record prepared for Commissioner Bigge’s use was the status of plaintiffs from the opening of the court until the end of 1820.1 Occasionally Bigge referred to a person’s status.

Further status information is available from secondary sources. The Sydney Gazette was the next most important source. I did not routinely pursue validation of information but in same cases it was possible. William Collins Burke Jackson was identified as a convict by his plea for mitigation of his period of transportation.2 This was confirmed by an anecdotal reference to his being a prisoner holding a ticket of leave 12 June 1816 in an account of Macquarie’s refusal of a marriage licence to Philip Connor.3 Other status sources are modern works such as Hainsworth’s Sydney Traders. I relied on the author’s statement of the status of a person. There are many litigants whose status cannot with certainty be classified. Also, with many persons in the colony with the same name, identification was impossible. Inconsistency of spelling of names required the

1 TNA (PRO), reel 114, CO 201/125 651. 2 SR fiche 3178 4/1851 186‐186a. 3 HRA IV, I, 207.

264 making of assumptions. I made decisions in these cases on factors such as a possible link between the facts stated in the declaration and the occupation of the persons involved in the action. Frequently there are multiple plaintiffs and defendants. I used the status of the first person named in the action for the purpose of categorisation of free or transported. I classified litigants as free, emancipated, sentence expired, ticket of leave holder, royal warrant pardon and prisoner. I did not change that status even if a ticket of leave holder for example became emancipated. I stated the capacity of the parties to actions. For example, ‘widow of …’, ‘agent of …’, ‘executor of …’ etc.

In some cases only a single document survives. I used its date as the date of commencement of the proceedings. I have recorded the amount claimed, the attornies involved, the outcome where known, and any further proceedings such as the joining in the action of garnishees, bailors and an interpleader. Where the amount of costs awarded is stated I have recorded the quantum separately.

As the Kercher Reports contain Supreme (civil) Court reports published in the Sydney Gazette I have not repeated the details of the publication.

A Note on Colonial Currency in the Tables

From the founding of the colony in 1788 the basis of its currency was sterling in the traditional English form of pounds, shillings and pence, designated as £, s, d. Thus three pounds two shillings and six pence was written as £3 2s 6d or £3/2/6. For reasons of space and ease of presentation this information is presented in the following court records as £3.2.6.

In 1822 the “dollar system” was introduced into the colony.4 The first appearance in the Court’s records of decimal currency was an action on a

4 S.J. Butlin, Foundations of the Australian Monetary System 1788–1851 (Melbourne: Melbourne University Press, 1953; Sydney: Sydney University Press, reprinted 1968), 143.

265 promissory note dated 24 August 1822 for $240 and filed 29 January 1823.5 In the only contested decimal currency action before Field he held for the defendant.6

Relationship between these tables and the Kercher Reports

My research uncovered the fact that for some cases for which Field wrote judgments that appeared in The Sydney Gazette, no documents exist. As the cases were heard in Field’s last year in the colony it suggests he retained the papers for the purpose of writing his judgments and did not return them to the court’s registry.

The cases were:

Howe v. Forbes [1823] NSWKR 6; [1823] NSWSupC 6

Underwood v. Ogburn, and Warren’s Executrix [1823] NSWKR 1; [1823] NSWSupC 1. William Warren’s executrix was Mary Brown, a plaintiff in proceedings 9/2257 #838 that may have had a connection with this reported case.

The Supreme Court of Civil Judicature sitting in equity

As stated in the main body of the thesis the Court had equitable jurisdiction. Parties in common law actions at times had to seek equitable relief. The court treated these applications for relief as separate actions. By 1820 Field had heard and decided eleven cases in equity.7 I have summarised below the records that were available for inspection when I conducted my research. The cases are not included in the Table of Cases in this annexure. The outcome of these cases is unclear.

1. Berry, Alexander v. Loane, Rowland Walpole and Hall, Edward Smith. Taking of accounts.

5 Jemima Jenkins v Charles Weaver, 9/2258 #870. 6 Underwood v Dickson, Underwood v Noble. After his return from the colony Field was reversed in these cases on appeal 20 April 1824. The papers are not included in the Court’s records but are found with the appeal papers see SR 2/8143 83 7 Bigge, II, 12.

266 2. Cooper, Ann v. Reddington, Michael, Reddington, Connor, Fitzgerald Ritchard and Chisholm James, executors of John Reddington, deceased, a claim for a legacy under the will of the deceased.

3. Mileham, James v. Campbell, Robert senior, taking of accounts.

4. Midwood, Thomas Haigh v. Towers, James, partnership dispute.

5. Giels, Andrew v. Gordon, James, Piper, John and Miller, Edward, taking of accounts.

6. Campbell, John v. Kable, Henry, Palmer George Thomas, Gore, William and Hibbs, Peter, taking of accounts.

7. Lord, Simeon v. Townson, John, seeking of an injunction and subpoena.

8. Campbell, William v. McArthur, John and Oxley, John. [1820] NSWKR 12; [1820] NSWSupC 12

9. Lord, Simeon v. Street, Thomas and Campbell, Robert the younger and Raine, Thomas. Title to goods and injunction.

10. Blaxland, Gregory v. Blaxland, John. Bill illegible.

11. Lord, Maria, by her next friend, W. H. Moore v. Wells, Thomas, injunction to restrain, appointment of receiver.

12. Middleton, Thomas William v. Frazier, Andrew, injunction for a stay of common law proceedings.

13. Riley, Alexander, Birnie, James v. Frazier, Andrew, order sought that the defendant be joined as a party in further proceedings.

14. Crossley, George v. Terry, Samuel, claiming equitable relief from a corrupt contract.

15. Crossley, George v. Amos, Thomas Sterrop, order for the administering of interrogatories, appointment of a receiver and an injunction.

267 16. Shortt, Francis v. Berry, Alexander and Wollstonecraft, Edward, taking of accounts, and injunction.8

17. Wentworth, D’Arcy v. Gore, William and McMahon, Mary, bill of complaint to redeem a mortgage or foreclose.

18. West, Absalom v. Jenkins, James, Wentworth, D’Arcy and Saunders, Mary, bill of complaint seeking the release of the equity of redemption of a mortgage.

19. Wheelwright, Joseph v. Underwood, James. An answer sworn 22 November 1817 is the only surviving document. Possibly related to common law proceedings 9/2216 #81.

20. McNanimy, Owen v. O’Neil, Thomas and Smith, George, taking of accounts.

21. Kirman, George v. Duggan, Michael and the President and Directors of the Bank of New South Wales. Order sought for conveyance of land purchased.

22. Jenkins, Robert v. Bowden, Thomas and Hargraves, James, partnership dispute.

23. Hook, Charles, sole surviving executor of Thomas Abbott, deceased v. Gilberthorpe, Thomas, inquiry into payments of a judgment debt.

24. Campbell, Robert v. Singleton, William, taking of accounts.

25. Hovell, William Hilton v. Charters, George, seeking issue of a writ of ne exeat Regno (restraining departure from the colony).

26. Throsby, Charles v. Campbell, John Thomas, bill to restrain common law proceedings.

27. Gore, William v. Eagar, Edward, bill to restrain common law proceedings.

8 See D. R. Hainsworth, Sydney Traders (Carlton, Victoria: Melbourne University Press, 1981), 90, f.n. 21.

268 28. Best, Anthony v. Swinton, Anthony, claim for an agent to account for wrongful transactions.

29. Campbell, Robert the elder v. Campbell, Robert the younger, taking of accounts.

30. Howell, Thomas v. Hook, Charles, Redfern, William, Jones, Richard, and Rea, Margaret, executor of William Hobart Mansell, taking of estate accounts.

31. Crossley, George v. Allan, David, Deputy Commissary General and Palmer, John, assistant Commissary General, taking of accounts.

32. Jones, Richard and Riley, Edward v. Palmer and others. Only an answer exists, relating to the execution and attestation of a power of attorney.

33. Ritchie, Thomas v. Terry, Samuel, Underwood, Joseph, Campbell, Robert the younger and Winder, Thomas. Discharge of a writ of ne exeat regno.

34. Styles, James Richard v. Inch, Joseph, taking of estate accounts.

35. Palmer, George Thomas v. Wheeler, Samuel, taking of accounts.

36. Palmer, John v. Hook, Charles, application for tracing of funds.

37. Moore, Thomas v. Antill, Henry Colden, taking of estate accounts.

269 Explanatory notes

Causes commenced and judgments of the Supreme Court of Civil Judicature of the Colony of New South Wales 1814–1824, common law division

Source:‐ New South Wales State Records.

Cause papers, commenced but not proceeding to judgment:‐ 9/2251 – 9/2258.

Judgment rolls:‐ 9/2211 – 9/2240.

Abbreviations used for the nature of the action:‐ A assault AG agreement C chattel mortgage CC criminal conversation (adultery) CV conversion D debt DC debt on a covenant DL debt for monies loaned DU dues/duties due EJ ejectment EX bill of exchange FA foreign attachment FI false imprisonment FP false pretences G goods, wares and merchandise, sold and delivered J judgment earlier recovered L libel, slander P promissory note R recognizance SC scire facias TC trespass on the case T trover W warrant of attorney

Abbreviations for status:‐

A came to the colony a free person B emancipated with either a conditional or absolute pardon C sentence of transportation expired D ticket of leave granted P prisoner RW Royal Warrant Pardon

270 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1817

Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, solicitor, Sum claimed Cause heard Judgment Judgment Costs SR Reference first mentioned party first mentioned party case notes signed for

Steven, Joseph Cecil and A EX 1808.10.18 1815.12.08 F Garling Underwood James C £1,000 9/2251 #1 Robert the younger Lang, Elizabeth, widow of G 1817.01.10 TS Amos Lascelles, Thomas Allen A 1821.02.15 P £500 9/2229 #383 Walter Lang A O'Connor, John Richard, J 1815.03.21 1817.03.01 T Wylde Mountgarrett, Jacob A TS Amos P £6,015.9.4 9/2211 #2 Agent of Palmer & Co. A Howe, George B EX 1817.03.10 " Collins, William A " 1817.11.28 P £950 9/2213 #45 Lord, Simeon C EX " " Atkins, Richard A Campbell, J.T., garnishee, A, TS Amos £614 9/2251 #50 Crossley, George B D 1817.02.28 Short, Francis and Berry, A Marsden, Samuel, Hall, Edward Smith £300 £53.15.3 9/2213 #43 Alexander and Piper, John, garnishees, A Ingle, John AP " " Mountgarrett, Jacob A £500 9/2251 #2 Jones, William Townsend A D " " Hogan, Phillip or Patrick A £500 9/2251 #3 Jones, William Townsend A D " " Gunning, George Weston A £306.18.2 9/2251 #4 or William Howe, George BP " " Mitchell, James A £236.15.0 9/2251 #5 Jamison, John, Knight A G " " O'Brian, Thomas A £130 9/2251 #6 Executor, Thomas Jamison " AU " " Edmunds, William and A £500 9/2251 #7 Collins, William A Campbell, Robert, junior A P 1817.03.11 F Garling Mitchell, James A £164.5.5 9/2251 #83 " AP " " Lascelles, Thomas Allen A £100 9/2251 #84 Lord, Simeon CP 1817.03.15 T Wylde Collins, William A £1,505.6.4 9/2251 #8 Terry, Samuel CD 1817.03.25 " Bowden, Thomas A P £220 9/2211 #5 Terry, Samuel CP " " Wentworth, D'Arcy A £150 9/2251 #19 Terry, Samuel CG " Palmer, George Thomas A £150 9/2251 #27 Terry, Samuel CD " " Connelly, Michael A P £240 9/2211 #8 Howe, George B EX " " Blaxcell, Garnham A £879 9/2251 #9 Terry, Samuel CD " " Miller, Thomas A P £480 9/2211 #7 Brooks, Richard AP " " " Loane, Rowland Walpole A Jenkins, Robert, garnishee, A £500 1817.06.02 1817.07.02 P £303.4.0 £49.6.0 9/2211 #14 and Hall, Edward Smith Brooks, Richard AG " " Butler, Laurence B £120 9/2251 #10 Terry, Samuel CD " " " May, Laurence A £600 9/2216 #92 Brooks, Richard AP " Neale, William A £63 9/2251 #11 Terry, Samuel CP " " Blaxland, John A " £64.13.0 9/2251 #16 Terry, Samuel C P 1814.01.05 " " Keaughran, Patrick A £80 P 9/2211 #3 Jamison, John, Knight A EX 1813.07.03 1817.03.26 " Throsby, Charles A " [1817]NSWKR 6;[1817]NSWSupC 6 £1003.7.4 1817.06.21 D £16 18.0 9/2211 #17 Executor, Thomas Jamison WH Moore " " EX 1809.03.23 " " Antill, Henry Colden and A £300 9/2214 #56 Moore, Thomas, executors of Andrew Thompson Loane, Rowland Walpole " P " " McCarty Dennis B £1,000 9/2251 #25 " " P 1814.07.02 " " Lascelles, Thomas Allen A G Cartwright £100 1821.02.01 P 9/2229 #384 Grono, John " G 1815.12.02 " " Benn, Lydia, executrix of A F Garling £200 9/2251 #44 John Benn Roberts, William BG " " " £600 1817.06.02 1817.07.02 P £376.12.8 £52.7.4 9/2211 #9 Howe, George B EX 1814.03.31 " " " " £100 " P £100 £30 9/2211 #11 Terry, Samuel CG " " Laurie, John C £84.17.9 9/2251 #28 Crossley, George BP " " Gunning, George Weston A 1820.04.21 P £224.1.10 9/2225 #285 Loane, Rowland Walpole AG " " Wade, John A £367 9/2251 #29 Terry, Samuel CP 1817.03.29 " Norman, John C £168.1.6 9/2251 #39 Terry, Samuel CP " " Roe, Robert and C £100 9/2251 #38 Smith, Mary U Howe, George B EX 1817.03.31 " Blaxcell, Garnham A Lord, Samuel (sic) garnishee C £127 9/2251 #31 Terry, Samuel C P 1814.12.01 " " Benn, Lydia, executrix of " £100 1817.06.02 1817.07.02 P £68 £28.10.0 9/2211 #10 John Benn, A Brooks, Richard A EX " " Riley, Alexander A " £250 9/2251 #32 Brooks, Richard AP " " Hall, Edward Smith A £313 9/2251 #33 Brooks, Richard AP " " Blaxcell, Garnham A £1039.0.2 9/2251 #34 Terry, Samuel CP " " Phelps, Joseph B £67.3.0 9/2251 #35 Terry, Samuel CP " " Stokes, James A P £210 9/2211 #6 Forster, Samuel BP " " Blaxcell, Garnham A £1,000 9/2251 #40 Jamison, Sir John AP 1817.04.01 " Jeffreys, Charles A £600 9/2251 #43 Underwood, Joseph AW " " Bunker, Captain Eber A £1,000 1817.11.06 P £1,000 9/2213 #39 Underwood, Joseph AP 1817.04.03 " Oxley, John A £200 9/2251 #46 Loane, Rowland Walpole A P 1813.09.13 " " Hayes, Michael B WH Moore 1817.07.02 P £172.18.0 £26.19.2 9/2211 #13 Howe, George BP " " Lord, Simeon C £500 9/2251 #47 Loane, Rowland Walpole A P " "" C £300 9/2251 #48 Terry, Samuel C P 1814.01.21 1817.04.06 WH Moore Blaxcell, Garnham A Jamison, Sir John, Harris John and £600 9/2252 #124 Lord, Simeon, garnishees, A, T Wylde

Page 271 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1817

Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, solicitor, Sum claimed Cause heard Judgment Judgment Costs SR Reference first mentioned party first mentioned party case notes signed for

Underwood, Joseph AG 1817.04.10 T Wylde Redfern, William and Jones, B F Garling £1,000 9/2251 #52 Richard and Rhea, Margaret executors of William Hobart Mansel Hook, Charles, executor A D 1817.04.14 " " B " £20,000 9/2251 #53 of Thomas Abbott Howe, George B EX 1815.05.13 " " Webb, James A £110 9/2251 #54 Howe, George BP 1817.04.15 " Crossley, George B WH Moore £100 9/2251 #51 Terry, Samuel C D 1814.03.22 1817.04.16 " Connell, John A £1,000 9/2251 #56 Howe, George B AG 1817.04.18 McCarr, James A £100 9/2251 #57 Terry, Samuel C EJ 1816.09.29 1817.04.19 TS Amos Denston, David A £10 1817.05.23 D 9/2219 #168 Terry, Samuel C EJ " " T Wylde Cluer, William B F Garling £10 1818.12.22 D £16.13.9 9/2211 #20 Townson, John A D 1817.01.01 1817.05.01 WH Moore Loane, Rowland Walpole A Jenkins, Robert, Lowe, Robert, Birch, £1,500 1817.11.25 P £374 £47.9.0 9/2213 #43 Thomas, garnishees A Shone, Thomas, surviving A EX 1808.09.28 " " Underwood, James B £609.3.6 1818.03.18 1818.04.16 D 9/2215 #80 partner of John Lloyd Wheelwright, Joseph, Lloyd, AG " " Underwood, James and B T Wylde £15,000 1818.03.18 D £83.19.5 9/2216 #81 Richard and Langston, Kable, Henry Thomas, assignees of Bull, John and Banks, William Divine, Nicholas A P 1812.12.04 1817.05.03 TS Amos Whitehead, Andrew A £300 9/2251 #115 Bunker, Eber A EX 1809.07.17 " T Wylde Underwood, Joseph & James A £846.5.6 9/2251 #60 Loane, Rowland Walpole A D " " Lowe, Robert A £1,000 9/2251 #66 " A D 1814.03.01 " "" A £950 9/2251 #65 Hook, Charles, surviving A G 1812.07.10 1817.05.05 WH Moore Crossley, George B TS Amos £1,500 1817.06.11 1817.07.14 P £1,500 £35.3.4 9/2211 #15 executor of Thomas Abbott Campbell, Robert, the elder A P 1805.02.21 " WH Moore Crossley, George B " £3033.19.6 9/2251 - Riley, Alexander A P 1814.08.12 1817.05.06 F Garling Devoy, Patrick and Wood, B " £66 1817.09.25 P £52 9/2212 #26 John T Wylde Riley, Alexander AP " F Garling Wiseman, Solomon B £350 9/2251 #69 Riley, Alexander A EX 1816.02.03 " " Hovell, William Hilton A TS Amos £85 1817.08.29 P £94.9.3 £25.5.9 9/2212 #23 Riley, Alexander A P 1816.01.02 " " Blaxland, Gregory A £200 9/2251 #71 Campbell, Robert the younger AD 1817.05.07 " Cribb, George B T Wylde 1817.08.15 1817.09.24 P £513 9/2212 #27 Johnson, Richard AG 1817.05.08 WH Moore Gandell, John B £200 9/2251 #73 Howe, George and Sarah B P " T Wylde McIntosh Charles A WH Moore £300 9/2251 #75 Howe, George BD " Gore, William A 1817.10.02 P £400 9/2212 #31 Walker John B AW 1814.06.14 " WH Moore Reibey, Mary C F Garling 1817.06.03 P £40 £51.16.4 9/2211 #12 McDonald, Catherine B T 1817.05.08 1817.05.09 " Gore, William A TS Amos £200 9/2251 #76 Gandell, John BG 1817.05.13 " Cribb, George B £200 9/2251 #77 Terry, Samuel C C 1816.11.02 1817.05.14 F Garling Salter, Joseph C T Wylde P £400 9/2211 #1 Greenway, Francis Howard D A 1816.12.20 1817.05.15 " Sanderson, Edward A WH Moore [1817] NSWKR2; [1817] NSWSupC 2 1817.06.30 1817.07.04 P £20 £31.10.3 9/2211 #19 O'Connor, John Richard, A P " " Feen, Charles A £75 9/2251 #86 Agent of Palmer & Co. O'Connor, John Richard A P " " Gunning, George Weston A £206 9/2251 #88 O'Connor, John Richard A P " " Mitchell, James A £140 9/2251 #90 Birch, Thomas William A P 1811.12.28 " F Garling/ Reardon, Bartholomew A G Cartwright £15 1821.02.27 P £19.1.0 9/2230 #398 WH Moore Campbell, Robert junior A P " F Garling Mitchell, James A £164.5.5 9/2251 #83 Terry, Samuel CP 1817.05.16 WH Moore Reynolds, Edward C £100 9/2251 #79 Terry, Samuel, surviving C G 1817.04.01 1817.05.22 " Hudson, William Miles P £250 1817.08.29 1817.11.04 P £92.11.6 £30.18.6 9/2212 #24 partner of William Hobart Mansell O'Connor, John Richard A G 1817.05.24 F Garling Collins, William A £18,982 9/2251 #111 Agent of Palmer & co. Wentworth D'Arcy AP F Garling Gilberthorpe, Thomas C £400 9/2251 #92 Riley, Alexander A D 1817.04.03 Salter, Joseph C 1817.05.23 P £226.16.0 9/2211 #4 Berry, Alexander A EX 1814.03.04 1817.05.22 Hall, Edward Smith A 1817.10.30 P 9/2212 #38 Rogers, Thomas A AG 1817.05.23 WH Moore Underwood, Joseph A T Wylde £1,000 9/2212 #95 Stanton, James A AG 1817.05.23 " Underwood, Joseph A " £300 9/2212 #96 Hunter, Thomas A AG 1817.05.23 " Underwood, Joseph A " £300 9/2212 #97 Goodenough, Ann, executrix B AG 1817.05.23 " Underwood, Joseph A " £1,000 9/2212 #98 Phillip Goodenough

Rex D 1817.05.27 T Wylde Birnie, James A £300 9/2251 #102 Allan, David AP 1817.05.28 WH Moore Pear, Matthew A £400 9/2251 #94 Sindrey, Edward A AW 1817.05.30 TS Amos Davey, Thomas A Allan, David, attachment, A, F Garling £500 9/2251 #104 Riley, Alexander A P 1816.03.26 1817.05.31 " Williams, Barnard and B, A £131 9/2252 #138

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Crossley, George B AG 1814.06.22 1817.05.31 " Hook, Charles A WH Moore £200 9/2252 #120 Riley, Alexander A D 1817.04.30 1817.05.31 F Garling Campbell, Murdoch A " confirmed 2/8142 p. 169 £900 1817.11.28 1818.03.23 P £500 £29.12.0 9/2213 #47 Collins, William AG 1817.05.31 TS Amos Humphrey, Adolarius Henry A £2,000 9/2251 #116 Serjeant, Mary, executors of Matthew Bowden Wentworth, D'Arcy A P 1815.05.04 1817.05.31 WH Moore Hall, Edward Smith A £97 1817.10.30 P 9/2212 #37 Stewart, William A A 1817.04.30 1817.05.31 F Garling Campbell, Alexander A TS Amos 1817.08.29 1817.09.25 P a farthing a farthing 9/2212 #25 Jenkins, Robert A G 1817.04.01 1817.06.02 WH Moore Walton, James B £200 1817.10.30 P £200 9/2212 #36 Cuddie, William BP 1817.06.09 F Garling Blaxland, Gregory A £52 9/2251 #113 O'Connor, John Richard EX 1815.03.25 1817.06.09 " Campbell, Robert the A T Wylde £165.4.7 1818.03.03 1818.03.16 D 9/2215 #72 Agent of Palmer & Co. TS Amos younger Collins, William A P 1810.04.23 1817.06.11 " Barnes, John A £200 9/2251 #117 Collins, William A P 1807.10.03 1817.06.12 " Lynch, Humphrey and C £150 9/2251 #118 Stokes, Anne Devine, Nicholas A P 1813.02.15 " TS Amos/ Gunning, George Weston A WH Moore 1821.05.22 P 9/2229 #373 G Crossley Ploughwright, Mary B D 1816.06.12 TS Amos Blower, William A " £96 1817.06.13 P 9/2211 #16 Collins, William and A G 1815.02.27 1817.06.11 " Hayes, Mary B £300 9/2251 #119 Mountgarrett, Jacob and Williams, Francis, partners Williams Mountgarrett & Co. Crossley, George B AG 1817.06.14 TS Amos Campbell, Robert the elder A " £1,000 9/2252 #121 Crossley, George B AG 1817.06.17 " Blaxcell, Garnham A Brooks, Richard, and Harris, John, £1,000 9/2252 #123 garnishees, A, T Wylde Crossley, George B P 1814.11.14 1817.06.20 " Allan, Joseph B " 1817.11.10 P £105.3.0 £41.7.1 9/2213 #41 Moore, Thomas A FA 1817.04.01 1817.06.21 WH Moore Blaxcell, Garnham A Harris, John, garnishee, A £300 9/2252 #125 Chartres, George B P 1816.01.03 1817.06.24 T Wylde Purcell, John A £200 P 9/2212 #32 Whitaker, Matthew James A A 1817.04.23 1817.06.25 " McCarty, Dennis B £500 9/2252 #126 Bigg, Joseph B G 1817.05.07 1817.06.30 TS Amos Fisher, John B £100 9/2252 #128 Cribb, George B P 1816.10.15 1817.06.30 " Lander, Christopher B " 1818.03.06 P £57.12.0 9/2215 #73 Palmer, John A D 1805.04.05 1817.06.30 " King, Ann Josepha, Cobbe A Hassall, Rowland, garnishee, A £190 9/2252 #130 Barnard, executors of A Philip Gidley King Crossley, George BW 1817.07.12 " Divine, Owen and Higgins B £266.13.4 1817.11.12 P £266.13.4 9/2213 #40 John Chartres, George B D 1816.09.12 1817.07.14 " Hutchinson, John B £169.6.8 1817.07.16 P £169.6.8 9/2211 #21 Brooks, Richard A D 1816.07.01 1817.07.19 " Mitchell, James A £100 9/2252 #131 Riley, Alexander A P 1816.07.09 1817.07.19 " Miller, Thomas A £100 9/2252 #132 Riley, Alexander A P 1817.04.01 1817.07.19 " Miller, Thomas A £150 9/2252 #133 and Jones, Richard McCarty, Dennis BG 1817.07.20 " Triffith, James A £70 9/2252 #164 Lord, Simeon C P 1816.02.05 1817.07.21 T Wylde Smith, John A £69.6.0 9/2252 #136 Birch, Thomas William A G 1817.07.22 F Garling Serjeant, Maria A £300 9/2251 #110 Campbell, Robert the AG 1817.07.22 " Collins, William A £372 9/2251 #82 younger Birche, Thomas William A P 1817.07.22 " Mountgarrett, Jacob A £115 9/2251 #85 O'Connor, John Richard A P 1817.07.22 " Lascelles, Thomas Allen A £280 9/2251 #87 Agent of Palmer & Co. " AP 1817.07.22 " Gunning, George Weston A £140 9/2251 #89 Howe, George B EX 1815.06.27 1817.07.24 T Wylde Graham, Captain Robert A £590 9/2252 #134 Chartres, George B EX 1817.05.12 1817.07.26 TS Amos Gore, William A 1817.10.02 P £150 £15.13.10 9/2212 #29 Crossley, George B D 1814.03.11 1817.07.28 " Pendergrass, John A T Wylde £200 1817.12.17 P £104 £27.2.6 9/2213 #46 Duggan, Michael A P 1814.06.29 1817.07.31 WH Moore Kerman, George A £75 1817.12.01 P £60 £39.11.9 9/2213 #49 Salter, Joseph C G 1816.03.01 1817.07.31 " Benn, Lydia, Administratix, A F Garling £15.11.10 9/2214 #53 John Benn Wentworth D'Arcy A P 1816.11.28 1817.07.31 " Cubitt, Daniel B T Wylde £130.4.0 9/2252 #141 Sindrey, Edward A EX 1816.11.08 1817.08.14 TS Amos Davey, Thomas A WH Moore prior proceedings 9/2251 #104 £620 9/2252 #146 Campbell, Robert junior A P 1816.06.19 1817.08.14 T Wylde Laurie, John C £50 9/2252 #147 Howe, George B D 1817.08.01 1817.08.14 Bell, James Thomson A appealed and annulled 1820.06.27 £600 1820.03.03 9/2252 #148 Greenway, Francis Howard B AG 1817.08.14 Gore, William A £200 1817.12.12 P £73 £27.11.0 9/2214 #55 Wood, John B G 1817.04.25 1817.08.14 TS Amos Allen, Joseph B T Wylde £100 1818.03.03 P £82.3.3 £35.12.8 9/2215 #69 Moore, Thomas A P 1815.02.27 1817.08.15 F Garling Hore, John B £450 9/2252 #149 Moore, Thomas A P 1814.06.28 1817.08.15 " Prentice, Thomas A £155 9/2252 #150 Wilshire, James A P 1816.08.10 1817.08.15 " Howe, John A £200 9/2252 #151 Purcell, John A G 1817.04.30 1817.08.15 " Nettleton, Joseph B £150 9/2252 #152 Fisher, John B G 1817.01.01 1817.08.19 WH Moore Chartres, George B F Garling £150 9/2217 #121 Sindrey, Edward A P 1817.05.15 1817.08.20 TS Amos Wilshire, James A £50 9/2252 #155 Wright, Edmund C P 1812.04.09 1817.08.20 WH Moore Goldsmith, John C 9/2216 #107 Reibey, Mary C D 1817.04.30 1817.08.20 F Garling Moore, William Henry A £800 9/2252 #157

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Rose, Thomas B AG 1817.07.07 1817.08.21 TS Amos Gandell, John B WH Moore 9/2212 #28 Jones, Richard, Redfern, A G 1816.02.28 1817.08.26 " Manning, John C £800 9/2252 #158 William and Rea, Margaret executors William Hobart Mansel Jones, John Francis A EX 1817.07.01 1817.08.26 " Davey, Thomas A " £200 9/2252 #159 Jenkins, Robert A P 1816.10.08 1817.08.26 " Hardwick, Charles A £238 9/2252 #160 Birch, Thomas William A P 1817.08.28 F Garling Stanfield, William A £200 9/2252 #135 Underwood, Joseph A P 1817.06.28 1817.09.01 J Norton Williams, Bernard, Morley, B F Garling/ warrant of attorney filed 1820.06.08 9/2225 #301 Joseph and Cooper, Robert WH Moore Moore, Joshua John A P 1817.02.28 1817.09.04 T Wylde Gore, William A WH Moore £77.10.11 9/2212 #33 Moore, Joshua John A P 1817.02.28 1817.09.04 Crossley, George B prior proceedings 9/2212 #33 " 1817.10.18 1817.10.18 P £77.10.11 £12.11.3 9/2212 #34 Leith, William Elliott A A 1817.06.09 1817.09.08 TS Amos Stewart, James A £1,000 9/2252 #165 Jones, John Francis A EX 1817.07.01 1817.09.08 " Lord, James, Clarke, John C £80 9/2252 #166 Oxley, John A G 1817.08.01 1817.09.11 WH Moore Maum, William B £300 9/2252 #168 Quin, Edward B AG 1817.07.14 1817.09.17 F Garling Gore, William A TS Amos £400 1817.12.11 P £136.18.3 £29.18.9 9/2214 #54 Sindrey, Edward A G 1817.09.20 TS Amos Morley, Joseph C £100 9/2252 #181 Wiseman, Solomon B P 1816.09.08 1817.09.30 F Garling Hawsford, William and A £145 9/2252 #171 Church, Sarah Wentworth D'Arcy A P 1816.04.23 1817.10.07 WH Moore Butler, Laurence B £125 9/2252 #173 Storer, Thomas B G 1816.01.01 1817.10.08 T Wylde Redfern, William, Jones, B " £300 1817.11.29 D £18 9/2213 #48 Richard, Rea, Mary exectrs. William Hobart Mansel Amos, Thomas Sterrop A AG 1817.10.18 Drake, John A T Wylde £300 9/2252 #174 Kemp, Anthony Fenn A D 1817.09.26 1817.10.20 TS Amos Jones, John Francis A Birch, Thomas William, garnishee,A £244 1819.01.28 9/2252 #175 Antill, Henry Colden, Moore A P 1809.07.05 1817.10.22 TS Amos/ Arndell, Thomas A 9/2220 #210 Thomas executors Andrew G Crossley Thompson Jeffreys, Captain John Paul A EX 1813.05.24 1817.10.22 TS Amos Cole, Henry A £100 9/2252 #176 Crossley, George B P 1816.01.15 1817.10.22 " Gore, William A F Garling 1817.11.14 1817.11.20 P £118.5.3 £26.7.11 9/2213 #42 Crossley, George B AG 1815.01.18 1817.10.23 " Redfern, William, Jones, B £300 9/2252 #179 Richard, Rea, Mary exectrs. William Hobart Mansel Crossley, George B AG 1817.10.24 " Palmer, Jo. Ass. Comm. Genl A T Wylde £800 1817.11.28 D £17.4.0 9/2213 #44 Birnie, James A P 1817.02.26 1817.11.01 F Garling Horsley, John A " £60 1819.04.24 9/2218 #163 Jones, John Francis A EX 1817.07.01 1817.11.01 TS Amos Davey, Thomas A F Garling £80 9/2252 #169 Marsden, Samuel A L 1817.01.04 1817.11.01 WH Moore Campbell, John Thomas A " [1817]NSWKR 7;[1817] NSWSupC 7 £5,000 1817.12.01 1818.03.02 P £200 £108.15.4 9/2214 #50 Marsden, Samuel A L 1817.01.04 Howe, George B " [1818]NSWKR 2;[1818] NSWSupC 2 1818.02. 1818.02 P £46.3.9 9/2214 #51 Campbell, Robert junior A P 1817.11.01 TS Amos Stewart, William A " 1818.09.26 1818.11.13 D 9/2217 #118 Howe, George B G 1817.10.01 1817.11.04 T Wylde McKenna, Thomas B £400 9/2252 #185 Howe, Geo. Sarah Howe late B D 1810.02.29 1817.11.04 " McKenna, Thomas B £600 9/2252 #186 Wills, widow Edward Wills Campbell, Robert junior A P 1817.01.22 1817.11.04 " Pear, Mathew A TS Amos £55 9/2252 #188 " A P 1813.05.25 1817.11.01 " Lang, Eliz. Extrx Walter Lang A " £124.8.8 9/2252 #189 " A D 1815.08.21 1817.11.04 " Johnson, Andrew A £800 9/2252 #190 Roberts, William B G 1817.10.30 1817.11.04 TS Amos Jackson, Henry B £70 9/2252 #191 Laurie, John C EX 1814.10.27 1817.11.07 F Garling Terry, Samuel C T Wylde £90.13.6 9/2252 #192 Pexton, William A G 1817.11.05 1817.11.07 T Wylde Dickson, John A TS Amos £500 9/2252 #193 Hook, Charles, surviving A P 1807.10.03 1817.11.08 WH Moore Gore, William A £1,000 9/2252 #194 executor Thomas Abbott Moore, William Henry A AG 1817.10.30 1817.11.08 James, Joseph A " £50 9/2252 #182 Terry, Samuel surviving part- C G 1816.03.01 1817.11.21 T Wylde Waples, Robert and Sarah D " £1,000 9/2252 #197 ner of William Hobart Mansel his wife, extrx Wm. Packer Gore, William A D 1817.11.24 WH Moore Chartres, George B " £70 9/2252 #199 Rex D 1817.08.01 1817.11.26 T Wylde Lack, Robert B £200 9/2252 #200 Bland, William B 1817.11.28 F Garling Drake, Richard A T Wylde [1818] NSWKR 3; [1818] NSWSupC3 £2,500 1818.03.03 1818.05.18 P £2,000 £37.12.11 9/2215 #70 Jones, Richard and Riley, A G 1817.10.01 1817.11.29 TS Amos White, Japhet A £300 9/2216 #84 Edward Lang, Eliz. Extrx.Walter Lang A EX 1814.07.02 1817.11.29 WH Moore Davey, Thomas A £200 9/2216 #96 Palmer, John A EX 1807.09.11 1817.11.29 TS Amos Lord, Simeon C F Garling 1818.06.10 1818.08.28 D 9/2216 #104 Crossley, George B D 1817.08.22 1817.12.01 Gore, William A £160 9/2214 #52 Jones, Richard, Redfern, A G 1816.03.01 1817.12.06 T Wylde Waples, Robert and Sarah D, A TS Amos £1,000 9/2252 #198 Wm., Rea, Marg. Executors his wife, extrx Wm. Packer William Hobart Mansel Crossley, George B AG 1817.01.01 Short, Francis, Berry, Alexr. A WH Moore £300 1817.12.12 P £200 9/2214 #57 Wentworth D'Arcy A P 1813.09.15 1817.12.13 WH Moore Mitchell, James A £120 9/2221 #229 James, Joseph A W 1817.05.08 1817.12.19 Gore, William A £520.6.0 1817.12.19 P 9/2214 #58

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Ayres, Nathaniel and A P 1813.07.01 1818.01.05 T Wylde Evans, George William A £300 9/2252 #201 McCarty, Dennis Redfern, William B P 1807.12.24 1818.01.06 " Fowler aka Fowles, Thomas C £53 9/2252 #205 " B P 1808.05.14 " Wylde/Amos Thompson, William A £120 9/2252 #206 " B P 1808.05.13 " T Wylde Normington, Luke B £37.18.1 9/2252 #207 " B D,G 1817.01.01 " Wylde/Amos Cham, James " £59 9/2252 #208 " B P, G 1806.10.10 " " Boyle, John A £142 9/2252 #209 " B P 1807.12.17 " T Wylde Conn, Rum John " £275.15.9 9/2252 #210 Boulton, Thomas, junior, A D 1809.06.30 " " Douglas, Thomas B £100 9/2253 #211 administrator, Thomas Boulton, senior " A D " " Campbell, Robert A WH Moore £500 1818.03.03 1818.03.09 P £175 9/2215 #71 Hamilton, Solomon and A D 1812.01.25 " WH Moore Collins, William " TS Amos £1,500 9/2253 #213 Hamilton, George Alexander, James, Dupse, A D 1817.11.01 1818.01.09 TS Amos Gordon, James " £800 1819.02.05 P 9/2219 #166 Josias, Fullerton, Alexander and John Campbell, Robert junior A P 1816.05.18 " " Gordon, James " 1819.05.20 P 9/2219 #165 Underwood, Joseph A D,G 1817.12.01 " T Wylde Stocker, Thomas " £100 9/2253 #214 " A P 1817.05.03 " " Salmon, Thomas " £113.13.8 9/2253 #216 TS Amos Mountgarrett, Jacob A G 1814.12.12 " " Geils, Andrew " Thrupp, Alfred, garnishee, A £300 9/2253 #221 Mitchell, James A P 1816.03.18 " T Wylde Lascelles, Thomas Allen " G Cartwright 1821.02.13 P £136.19.0 9/2229 #381 Lang, Elizabeth, executrix, A G 1816.03.25 1818.01.10 TS Amos Jellette or Gillette, Robert " £148 9/2253 #222 Walter Lang " " D, G " " " Gunning, George Weston " F Garling £192 9/2253 #223 " " " " " " Newby, Thomas B £150 9/2253 #224 " " " " " " Peters, Thomas " £600 9/2253 #226 " " " " " " Humphrey, Adolarious A £200 9/2253 #227 William Henry " " " " " " Burchall, John B £53 " " " " " " Reardon, Batholomew A £150 9/2253 #230 " " " " " Fisk, Arnold " £200 9/2253 #231 " " " " " " Nash, Robert B £150 9/2253 #232 " " D " " " Mitchell, James A WH Moore £1,400 1819.02.06 P £98.8.4 9/2218 #147 " " D, G " " " Maum, William B £134 9/2253 #233 Lord, Simeon C AG 1813.05.01 1818.01.12 T Wylde Fowler, Samuel A £2,000 9/2253 #234 " " AG " " Collins, William " £2,000 9/2253 #235 Murray, Robert Lathrop B W,D 1817.03.31 1818.01.13 WH Moore Hart, Thomas B 1818.01.13 P £86 9/2214 #59 Jones, Richard and Riley, A W 1818.01.16 TS Amos Collins, William A 1818.01.16 P £20,000 9/2214 #60 Edward Eagar, Edward B AG 1818.01.17 Gore, William " 9/2253 #238 Simpson, James B P 1817.01.04 1818.01.21 Welsh (Welch or Walsh), WalterB £100 9/2253 #240 Collins, William A EX 1813.06.24 " F Garling Blaxcell, Garnham A Williams, John Thomas, garnishee, A £990 9/2253 #242 Cook, William A P 1817.06.21 1818.01.23 T Wylde Wood, Dulcibella " F Garling £138.3.0 9/2253 #241 Terry, Samuel C J 1816.07.10 1818.01.29 TS Amos Gore, William " WH Moore £200 9/2253 #245 May, Lawrence " " 1814.07.06 " " " " WH Moore £49.2.4 1818.02.24 P £49.15.10 9/2215 #67 Crossley, George B " " " " " WH Moore £146.7.0 1818.02.24 9/2215 #68 Bevan, David " D, G 1818.01.02 1818.01.30 " Raphael, Joseph B Terry, Samuel, Ann Clements £60 9/2253 #247 Foreign attachment Antill, Henry Colden, Moore, A TC 1818.02.03 " Johnson, George, John Harris A WH Moore £100 9/2253 #250 Thomas, executors, Andrew executors Thomas Rowley Thompson Sindrey, Edward " D, G 1817.11.01 " " Cooper, Robert, Williams, B F Garling £200 9/2253 #252 Bernard and Morley, Joseph Sindrey, Edward " D, G 1817.11.01 " " Morley, Joseph C F Garling £100 9/2253 #253 Brooks, Richard " D, G WH Moore Lamb, Edward A £160 1818.02.03 P 9/2214 #61 Townson, John " P, D 1812.12.09 1818.02.05 " Lord, Simeon C T Wylde restraint sought in equity £250 9/2253 #274 Wayham, Thomas B P 1816.02.17 1818.02.10 " Wheeler, Thomas B £300 9/2253 #255 Terry, Samuel C W T Wylde Thurston, Robert " 9/2214 #64 Terry, Samuel " W 1818.02.10 1818.02.11 TS Amos Wood, Archibald D 9/2214 #63 Clarkson, Thomas B EJ 1818.01.14 1818.02.12 " Smith, Charles B WH Moore 1818.03.24 P £23.7.0 9/2216 #85 Squire, James C G 1818.02.11 " " Mumford (Cassidy) Elizabeth A £500 9/2253 #257 Thompson, Charles B EJ 1817.05.30 1818.02.14 " Fogarty, Owen B WH Moore 1818.03.24 D 9/2216 #86 Joseph, James " EJ 1817.12.25 1818.02.16 T Wylde Simpson, Judith A F Garling 1818.06.09 1818.07.01 P one shilling £35.2.0 9/2216 #102 Moore, Joshua John A DL " " Moore, William Henry " £500 1818.05.29 P £315 9/2216 #93 Riley, Alexander " D 1817.11.06 1818.02.17 Wood, Archibald Balfour " £70 9/2253 #258 Campbell, Robert the younger " P 1816.04.02 1818.02.18 TS Amos Cribb, George B £300 9/2253 #260

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Riley, Alexander " W 1817.08.16 " F Garling Larra, James B T Wylde £100 1818.02.18 P 9/2215 #65 Gore, William " D 1817.08.01 " TS Amos Eagar, Edward " £2,000 9/2253 #261 Chalker, Mary (William her B D 1815.04.29 " WH Moore Beasley, Charles " £80 9/2253 #262 husband in Gurner's list?) Hazard, Robert Brady A P 1817.10.22 " " Clarkson, Thomas " £100 9/2253 #263 Winder, Thomas " AG 1817.08.12 1818.02.20 F Garling Williams, John Thomas A TS Amos £200 1818.03.17 P £151.17.11 9/2215 #79 Redmond, Edward B P 1817.09.30 " " Devoy, Patrick B £150 9/2253 #266 McMahon, Mary, administx. " DC 1815.01.18 1818.02.21 WH Moore Gore, William pro A TS Amos £300 9/2253 #267 Patrick McMahon Provost Marshal Campbell, Robert senior A J 1818.02.23 T Wylde " " 9/2216 #94 Rex R 1818.02.10 " " Wood, Archibald and Isaac D F Garling £300 9/2253 #264 Palmer, Thomas A T 1818.02.23 1818.02.25 " Laurie, John C £500 9/2253 #268 Waples, Robert D P 1817.12.05 1818.02.28 TS Amos Collett, Robert B WH Moore 1818.06.01 P 9/2216 #101 Terry, Samuel C AG, G 1815.09.27 1818.03.03 T Wylde James, John " F Garling £200 9/2253 #270 Waples, Robert D P 1817.07.03 1818.03.09 TS Amos Warby, John " £115 9/2253 #271 Lees, John A W 1817.12.17 " White, Japhet A 1818.03.16 P £380 9/2215 #76 Laurie, John B EX 1814.10.27 F Garling Terry, Samuel C T Wylde £90.13.6 1818.03.17 P £99.15.2 9/2215 #78 Eagar, Edward B W 1817.12.09 1818.03.19 T Wylde Hovell, William Hilton A £250 9/2216 #82 Waples, Robert D EJ 1818.02.02 1818.03.26 TS Amos Maund, Joseph B F Garling £200 1818.09.26 1818.10.05 P (partial) £22.12.0 9/2217 #116 Darcy, James A AG 1816.12.01 1818.03.27 T Wylde Campbell, William A WH Moore £300 9/2253 #273 Devoy, Patrick and Mary B EJ 1817.12.25 Byrne, Michael " TS Amos £10 1818.04.02 D £15.6.3 9/2215 #77 Jenkins, Robert A W 1818.01.05 1818.04.08 TS Amos Kitchen, Henry " £1,200 9/2215 #75 Hazard, Robert " W 1818.04.09 Shutt, Walter C £300 9/2216 #90 Eagar, Edward B W 1818.04.11 T Wylde Bayliss, John B £300 9/2216 #91 Eagar, Edward B W 1818.04.09 1818.04.11 Hovell, William Hilton A 9/2216 #89 Moore, Joshua John A W 1818.04.17 Kitchen, Henry " 9/2216 #109 Loane, Rowland Walpole A P, D, G 1812.10.16 1818.04.22 " Mountgarrett, Jacob " £1,147 9/2253 #275 " A P 1811.09.10 " " Jillet, Robert and Elizabeth, his "wife £403.8.6 9/2253 #277 " A D, G 1818.04.01 " " Gunning, George " £100 9/2253 #304 " A P 1812.08.09 " Wylde/Amos Smith, James " 1819.08.07 P 9/2219 #185 Jones, Thomas B P 1814.04.25 " T Wylde Gore, William " TS Amos 1818.11.24 P £122.6.10 9/2217 #126 Underwood, Joseph A P 1817.05.03 1818.04.23 " Peters, Thomas B £119.10.0 9/2253 #217 Watkins, William B P 1817.12.12 1818.04.25 " Collett, Robert " 9/2216 #100 Jenkins, Robert A EJ 1818.04.30 1818.05.01 TS Amos Pearce, Thomas and Mary Ann, "his wifeF Garling £100 1818.08.27 P £2 £21.16.9 9/2217 #112 Williams, George A P 1818.03.03 1818.05.13 T Wylde Davey, Thomas A TS Amos £65 9/2253 #281 Hazard, Robert A P 1817.03.29 1818.05.27 T Wylde Warby, John B £66.4.9 9/2253 #272 Laurie, John C A 1818.02.23 1818.05.30 F Garling Palmer, Thomas A T Wylde 1818.06.10 1818.08.28 P £20 9/2216 #105 Jones, Richard and Riley, A W 1818.05.30 TS Amos Davey, Thomas " 1818.05.30 9/2216 #97 Edward Sindrey, Edward A EX " Davey, Thomas " 9/2216 #98 Jones, John Francis A EX 1817.07.01 " Davey, Thomas " 1818.05.30 9/2216 #95 Campbell, Robert junior A W 1817.09.30 T Wylde Mileham, James " 1818.06.01 9/2216 #99 Loane, Rowland Walpole A 1818.06.03 " Gunning, George A £76.7.0 9/2253 #276 Campbell, Robert the elder A EX 1801.03.25 1818.06.06 WH Moore Cox, William, Paymaster NSW " F Garling £4,800 1822.12.16 D 9/2240 #595 Corp- upheld in the Privy Council Fielding, Elizabeth, admtrx. C AG 1814.11.26 " " Underwood, Joseph " T Wylde £200 9/2253 #283 John Cleomens Pennington, John B D, G 1817.09.15 1818.06.08 TS Amos Bligh, William " £2,000 9/2253 #285 Macarthur, Hannibal A EJ 1817.12.10 " Weir, Mary " F Garling 1818.06.11 P a shiling 9/2216 #103 Wentworth, D'Arcy A P, D, G 1817.05.15 1818.06.15 WH Moore Gilberthorpe, Thomas C £300 9/2253 #286 Terry, Samuel C W 1818.02.26 1818.06.25 White, Andrew A 9/2216 #108 Bevan, David and Johnston, B P 1818.02.17 1818.06.29 T Wylde Cribb, George B £70 9/2253 #292 George, trustees Mary Wood Howard, John A D, G 1818.06.01 1818.06.30 WH Moore Hankinson, James " £600 9/2253 #291 Cribb, George B EX 1816.06.10 1818.07.10 TS Amos Jackson, William Collins Burk D £100 1818.10.02 P 9/2217 #122 Howe, George B 1818.07.16 T Wylde Graham, Robert A £1,000 9/2253 #279 Howard, John A D, G 1818.06.01 1818.07.29 WH Moore Laycock, Thomas " £300 9/2253 #294 Waples, Robert D AG 1818.08.03 TS Amos Bromfield, Joseph " 1818.08.27 1818.10.03 D 9/2217 #113 Stewart, William A DT 1818.08.10 WH Moore Campbell, Robert junior " Amos/Garling 1818.09.08 P £65.15.0 9/2217 #115 Lang, Elizabeth, executrix A G 1816.03.25 1818.08.15 TS Amos Hogan, Philip Gould " WH Moore £600 1819.02.06 P £194.11.10 9/2218 #146 of Walter Lang Fielder, William B EJ 1818.08.23 " Amos/Crossley Eagar, Edward B T Wylde 1818.11.06 9/2217 #123 Waples, Robert D CV " TS Amos Edwards, Edward A T Wylde 1818.09.26 1818.10.05 P 9/2217 #117 Campbell, Robert junior A G 1818.08.01 1818.08.18 F Garling Gilberthorpe, Thomas C TS Amos £1,000 1818.09.29 P £349 9/2217 #120 Howard, John A D, G 1818.08.21 WH Moore Laurie, John " £60 9/2253 #298 Brooks, Richard A W 1818.06.26 1818.08.22 T Wylde Butler, Laurence B 1818.08.22 P 9/2217 #111 Waples, Robert and Sarah D W 1818.01.24 1818.08.29 TS Amos Freebody, Simeon " 1818.08.29 P 9/2217 #114 Bridge, Joseph D EJ 1818.08.10 1818.09.07 T Wylde Dalton, Francis " TS Amos 1818.12.11 P a shilling 9/2218 #131

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Wood, Archibald and Mary B P 1810.05.08 " " Throsby, Charles A £149 9/2253 #301 Hall, Walter " AG 1818.07.01 1818.09.11 F Garling Marsden, Samuel " WH Moore £200 1818.11.20 P £51.12.10 £33.2.7 9/2217 #124 Loane, Rowland Walpole A DT 1818.10.12 1818.09.15 TS Amos Eagar, Edward B T Wylde £2,000 1818.11.24 1818.12.03 P 1., farthing £23.2.10 9/2217 #128 " " G 1816.07.25 " " Birch, Thomas William A Garling/Moore £600 1819.02.02 D 9/2218 #141 Clarkson, Thomas B P 1815.11.21 " " Beasley, Charles B T Wylde 1818.11.24 D 9/2217 #127 Loane, Rowland Walpole A FP 1818.01.26 1818.09.25 " Smallman, John and Beamont P see 9/2239 #394 £290 9/2253 #307 John " A A 1818.06.29 1818.09.28 " Lord, Edward A see 9/2218 #143 £2,000 1819.01.05 P £50 9/2253 #305 " A Ingle, John A Wylde/Moore see 9/2229 #374 9/2253 #308 " " EX 1812.03.28 " "" " T Wylde see 9/2253 #308 9/2229 #374 " executor Nathaniel Ayres " G 1817.12.15 1818.09.28 " Humphrey, Adolarious A F Garling/ £800 1819.01.30 D 9/2218 #138 William Henry WH Moore " " AG 1812.12.28 1818.09.28 " Humphrey, Adolarious A F Garling/ 1819.02.03 P £270 9/2218 #142 William Henry WH Moore " " EX 1812.03.28 " " Ingle, John " Eagar, Edward B G, W 1818.06.10 1818.09.29 T Wylde Davis, Solomon C see 9/2217 #125 £600 1818.09.29 P 9/2217 #119 Loane, Rowland Walpole A D, G 1818.09.10 1818.10.03 TS Amos Bostock, John A £140 9/2253 #311 Loane, Rowland Walpole " D, G 1818.10.12 1818.10.03 " Simpson, John otherwise A WH Moore £400 9/2253 #312 George Gatehouse " administ Nathaniel Ayres " G 1817.12.15 " " Stocker, William Thomas A Garling/Moore £400 1821.03.09 D 9/2231 #411 Palmer, Thomas " P 1818.08.16 1818.10.19 Amos/Crossly Murray, Robert Lathrop B? £100 9/2253 #324 Loane, Rowland Walpole " CV 1818.04.02 " T Wylde Gunning, George Weston A " see 9/2234 #478 1821.10.31 D £13.8.0 9/2234 #479 " "D " " £100 " 9/2234 #480 Williams, John A AG 1818.03.02 1818.10.20 TS Amos Lord, Edward A £360 9/2253 #327 Crossley, George B AG 1817.06.01 1818.10.21 May, Lawrence A T Wylde £200 9/2253 #323 Loane, Rowland Walpole A CV 1818.04.02 " T Wylde Gunning, George Weston A WH Moore see 9/2234 #479 1821.10.31 D £13.8.0 9/2234 #478 Howard, John " G 1818.08.01 1818.10.23 WH Moore Palmer, Thomas A £5,000 1819.09.25 P £1,394.15.0 9/2220 #206 Berry, Alexander " EX 1814.03.04 " " Loane, Rowland Walpole A TS Amos 1818.12.11 9/2217 #130 Jones, Richard and Riley, " P 1818.07.15 1818.10.24 TS Amos Davis, Solomon B? £330.15.6 9/2253 #318 Edward G Crossley Jenkins, Robert " DC 1817.08.04 " TS Amos Pierce, Thomas B? £200 9/2253 #326 Campbell, Robert senior " P 1818.06.02 " Amos/Norton Smith, James A WH Moore £244.12.4 1818.12.19 P 9/2218 #132 Campbell, Robert junior " P 1818.03.02 " TS Amos Croaker, John B £25 1818.12.19 9/2218 #133 Loane, Rowland Walpole " " Wylde/Amos Gunning, George Weston A Garling/Moore 1819.02.05 D 9/2218 #145 Raphael, Joseph B 1818.11.12 TS Amos Gore, William and Eagar, EdwardA, B T Wylde see 9/2217 #119 1818.11.24 1818.12.05 D 9/2217 #125 Waples, Robert DP 1818.11.18 " Turner, Thomas B? £60 9/2253 #330 Roberts, William B DC 1818.11.24 " Lord, Simeon C 9/2253 #325 Lang, Elizabeth, executrix A 1818.11.30 " Mason, Thomas A? WH Moore £163 9/2254 #339 Walter Lang Barker, Richard "L " Norton/Brodr'bJemott, William B WH Moore 1819.02.02 D 9/2218 #140 Tims, Martin "D 1818.12.04 TS Amos Kemp, Anthony Fenn and A £100 9/2253 #331 Gatehouse, George Hazard, Robert B W 1818.07.17 1818.12.10 Parland, Patrick B £160 9/2217 #129 Campbell, Robert junior A " 1818.11.04 F Garling Lyons, Cornelius C? TS Amos 1818.12.24 9/2218 #134 Oxley, John " DC, W 1817.04.04 WH Moore Horsley, John A £188 9/2218 #135

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Fhlute, Charles B D 1819.01.05 1819.01.20 TS Amos Field, William C £296 9/2254 #333 Lang, Elizabeth, executrix A G " " Nicholls, William B £140 9/2254 #338 of Walter Lang " " " " Normington, Luke " £266 9/2254 #341 Lascelles, Thomas Allen B " J Norton Kemp, Anthony Fenn and A TS Amos 9/2218 #139 Brodribb Gatehouse, George Rex R 1818.02.07 1819.01.22 WH Moore Williams, John Thomas, A " £900 9/2254 #337 Birch, Thomas William and Mitchell, James Hart, Patrick A D 1817.07.22 TS Amos Hore, John U 1819.01.23 P 9/2218 #136 Jemott, William agent of B G 1819.01.25 " Edmonds, William A £50 9/2254 #335 William Redfern Lang, Elizabeth, executrix A " Gavin, Roger B WH Moore £230 9/2254 #340 of Walter Lang Lord, Edward " A 1818.11.18 1819.01.27 WH Moore Loane, Rowland Walpole A TS Amos see also 9/2253 #305 1819.02.04 D 9/2218 #143 Piper, John, Naval Officer " P 1816.04.06 " " Kemp, Anthony Fenn A " £241.4.0 9/2254 #342 Mitchell, James " G 1818.10.30 " " Tatchfield, John U £200 9/2254 #345 " " " 1807.02.05 " " Walford, Barnard C Amos/Wylde [1821]NSWKR 5;[1821]NSWSupC 5 1821.02.13 P £2,400 9/2229 #379 Rice, Henry " FI 1818.09.28 1819.01.28 " Tims, Martin Provost Marshal A " P £205.7.4 9/2254 #347 Harris, Ann June " " 1818.11.09 " "" A TS Amos £1,000 9/2254 #350 Gavin, Roger B " 1818.11.16 " "" " " [1821]NSWKR 7;[1821]NSWSupC 7 1821.03.08 P £5 9/2231 #405 Rice, Henry " " 1818.09.28 "" " " " £50 £51.5.4 9/2231 #406 Humphrey, Adolarious A " " "" " Amos/Wylde " 1821.03.24 " £25 9/2231 #407 Harris, Ann June " A 1818.06.01 1819.02.01 WH Moore Loane, Rowland Walpole A £500 9/2254 #354 Rice, Henry B A, DT " " "" " " £1,000 " " £100 9/2231 #408 Gavin, Roger " DT " " "" " " [1821]NSWKR12;[1821]NSWSupC 12 1821.03.09 " £30 9/2231 #410 Campbell, Robert junior A EX 1818.10.13 1819.02.15 T Wylde Clarkson, Thomas B 9/2222 #250 Forbes, Francis Ewen " EJ 1819.02.17 F Garling Hart, Thomas U T Wylde 9/2219 #169 9/2218 #156 Murray agent associated proceedings Terry, Samuel C" 1819.02.22 Cluer, William B £100 1819.06.10 9/2220 #192 Lord, Simeon " AG " T Wylde Barnard, George William A see 9/2218 #154 reported 1819.03.30 D 9/2218 #154 HTG 1819.07.03 Barnard, George William A " 1818.09.10 1819.02.24 J Norton Lord, Simeon C 9/2218 #154;[1819] NSW 1819.03.30 P 9/2218 #153 KR2; [1819] NSWSupC 2 Gilberthorpe, Thomas C DT 1818.12.19 " Amos/Crssly Hobbs, Robert A J Norton £800 1819.03.12 D 9/2254 #359 Pickett, Mary B AG 1816.03.14 1819.02.26 T Wylde Birnie, James A £223 1819.03.30 P £223 9/2218 #155 Granger, Robert A A 1819.01.09 1819.02.25 F Garling Beamish, Bernard A T Wylde £1,000 P 9/2218 #152 Oakes,Francis and Rouse, " P 1815.07.27 1819.03.01 " Hall, Edward Smith A £37 9/2254 #362 Richard Hammant, Thomas " AG 1816.01.20 1819.03.05 J Norton Nichols, Isaac A 1819.05.26 P £25.18.0 9/2219 #167 Hazard, Robert B P 1818.11.20 " T Wylde Croaker, John B £80.13 9/2254 #363 Middleton, Thomas William " G " " Williams, George A £240 9/2254 #364 Cooper, Robert " DL " J Norton Lowrie, John A? WH Moore £250 9/2254 #366 Lewin, John William AD 1819.03.11 T Wylde Birnie, James A £500 9/2254 #367 " "" " " Bevan, David B £500 9/2254 #368 Minchin, William " W 1818.02.11 " Ikin, William A 9/2218 #150 Lewin, John William "D " " Brooks, Richard A £500 9/2254 #369 Jones, Richard and Riley, " P 1819.03.12 J Norton Croaker, John B 1819.04.05 P 9/2218 #158 Edward Hazard, Robert B W 1819.03.15 1819.03.17 T Wylde Croaker, John B 1819.03.17 P 9/2218 #151 Eagar, Edward " " 1819.02.23 " B 1819.04.05 P 9/2218 #157 Waples, Robert D " 1818.11.09 1819.04.05 Cross, John C? 1819.04.05 P 9/2218 #159 Macvitie, Thomas A P 1818.12.31 1819.04.08 " Smith, James A J Norton £69 5s 8d 9/2254 #374 Crossley, George B W 1819.03.12 1819.04.14 TS Amos May, Lawrence C 1819.04.14 P 9/2218 #161 " " " 1819.02.20 1819.04.14 " Hammant, Thomas A 1819.04.14 P 9/2218 #160 Donohue, Joseph " P 1810.05.08 1819.04.14 T Wylde Throsby, Charles A TS Amos 1819.06.10 P £173.17.0 9/2219 #173 Boulton, John A " 1814.06.22 1819.04.14 " Burne or Byrne, Michael A TS Amos £125 1819.06.09 P £63.4.1 9/2219 #172 Campbell, Robert junior " W 1818.07.11 1819.04.16 Singleton, Benjamin A 9/2218 #162 Terry, Samuel, Underwood, C DC 1819.04.22 TS Amos Ritchie, Thomas A WH Moore [1819]NSWKR4;[1819]NSWSupC 4 £10,000 1819.06.12 P one farthing 9/2219 #174 Joseph, Campbell, Robert, judgment confirmed on appeal junior, Winder Thomas Hosking, John A CV 1819.04.01 1819.04.23 T Wylde Riley, Edward, Dawson, John, A J Norton see 9/2220 #193 £5,000 1819.06.09 D 9/2219 #171 Brooks, Alexander A Eagar, Edward B SF 1817.08.05 1819.05.01 " Norman, John C 1817.10.02 £2,003 9/2219 #175 Forbes, Francis Ewin A BC 1817.10.17 1819.05.01 F Garling Clarkson, Thomas B WH Moore see 9/2218 #156 £500 1819.05.28 P £213.13.0 9/2219 #169 Hart, Patrick A? W 1817.06.25 Tyson, William A 9/2219 #170 Birnie, James A P, G 1813.09.11 1819.05.01 Crossley, George B £130 9/2254 #381 Hutchinson, William B W 1818.10.15 Lander, Christopher C 1819.05.04 P 9/2219 #164 Middleton, Thomas William B G 1819.05.22 1819.05.04 T Wylde Hankinson, James B £5,000 1819.11.20 P 9/2221 #224

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Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, Sum claimed Cause heard Judgment Judgment for Costs SR reference first mentioned party first mentioned party solicitor, case notes signed

Murray, Robert Lathrop " W, D 1819.07.12 WH Moore Clarkson, Thomas B J Norton 1819.11.22 P 9/2221 #225 Campbell, John Thomas A SF 1812.10.13 Hook, Charles and Cripps, A 1819.11.26 D 9/2221 #226 administr. Robert Murray Thomas " " " " G Crossley Hook, Charles and Cripps, A 1819.11.26 P £735.12.8 9/2221 #227 Thomas Shannon, James " EJ 1818.04.28 1819.05.08 TS Amos Fleming, Henry A T Wylde £200 1819.08.16 P 9/2219 #186 Broughton, William " P 1814.09.15 1819.05.15 Amos/Crssly Gilberthorpe, Thomas C 1819.09.14 P £159.4.0 9/2220 #199 Murray, Robert Lathrop B FA, W WH Moore/ Howard, John A £1,000 1819.06.02 P 9/2221 #217 agent of John Howard F Garling Howard, John A G 1819.06.01 1819.06.07 WH Moore Kent, Thomas A £1,500 9/2254 #384 Howard, John " G 1819.06.01 1819.06.07 WH Moore Ashton, William D £100 9/2254 #385 Hosking, John " AG 1819.04.05 1819.06.14 T Wylde Dawson, John and Brooks, A 9/2219 #171 1819.09.07 P £3,108 9/2220 #193 Alexander Bacon, Matthew " W 1819.06.03 1819.06.18 TS Amos Ramsay, John A 1819.06.18 P 9/2219 #177 Hazard, Robert B W 1819.05.17 1819.06.18 T Wylde Lucas, John A 1819.06.18 P 9/2219 #176 Campbell, Robert, junior A W 1819.06.29 1819.06.29 TS Amos Gilchrist, John A £680 1819.06.29 P 9/2219 #178 Butler, Lawrence B G 1818.06.10 1819.07.14 Amos/Crssly Allan, David A £60 1819.09.24 P £16 9.0 9/2220 #204 Lord, Samuel C G 1819.01.01 " WH Moore Plummer, Thomas, Thomas, A F Garling £8,000 1821.01.08 D 9/2229 #371 William and John, Barham, John Foster and Coombe, Matthew Paine, William Fitz and Tyrer, A WA 1819.01.01 1819.07.14 T Wylde/ Dixon, John Poore A Garnishees, Bell Archibald & £300 9/2254 #388 Edward Howe F Garling deceased SG 1819.04.24 Loane, Rowland Walpole " A WA 1819.01.01 1819.07.14 " Carr, William A " £500 9/2254 #389 Underwood,James & Richard B G 1819.07.20 T Wylde Underwood, Joseph A J Norton £3,500 9/2254 #391 Waples, Robert D W 1819.03.09 1819.07.20 TS Amos O'Neill, James C 1819.07.20 P 9/2219 #180 Wylde, Thomas A D 1819.07.21 Underwood, Joseph A J Norton £250 9/2254 #392 Antill, Henry Colden " AG 1810.10.26 1819.07.22 TS Amos/ Kable, Henry the U T Wylde P £414 8.11 9/2223 #253 executor Andrew Thompson G Crossley elder " " G 1811.03.01 " TS Amos Grono, John A £400 9/2254 #397 " " " " " Amos/Crssly Fielder, William C £200 9/2254 #398 " " D 1813.03.25 " " Woodbury, Richard C £100 9/2220 #211 " " AS 1819.08.12 " " Cavanough, Owen A £190 9/2220 #212 " " G 1811.02.01 " " Ridge, Richard A? 1819.10.15 P 9/2220 #213 " " " 1812.09.02 " TS Amos Beals, Charles A? £200 9/2220 #214 " " " " Amos/Crssly Painter, James A T Wylde £200 9/2223 #253 Crossley, George B W 1818.02.21 1819.07.23 TS Amos Mannix, William A 1819.07.23 P 9/2219 #181 Moore, Thomas A W 1819.03.03 1819.07.24 TS Amos Clarkson, Thomas B 1819.07.24 P 9/2219 #182 Oxley, John and Garling, A W 1819.07.01 9/2219 #183 Frederick Mason, William C D 1819.07.29 TS Amos Dargon, Thomas A £60 9/2254 #401 Middleton, Thomas William B EX 1819.07.30 T Wylde Smith, James A £157 3s 2d 9/2254 #406 Hazard, Robert B W 1819.05.26 1819.07.30 T Wylde Smith, James A 1819.07.30 P 9/2219 #184 Jones, Richard and Riley, A EX 1819.04.02 1819.07.30 J Norton Laurie, John C £250 1819.09.01 P £65.1.6 9/2219 #190 Edward Antill, Henry Colden, A G 1819.04.01 1819.07.30 TS Amos/ Cribb, George B £190 9/2221 #228 executor Andrew Thompson G Crossley " A SF 1811.11.00 1819.07.30 " Masterson, John U? P 9/2222 #241 " A G 1811.03.01 1819.07.30 " May, Laurence A? T Wylde £200 P £45.7.0 £60.15.9 9/2223 #253 Winder, Thomas White A W 1818.11.18 T Wylde White, Japhet U? J Norton £120 9/2223 #253 Melville Antill, Henry Colden A SF 1819.08.03 TS Amos/ Forester, Robert C 9/2225 #284 executor Andrew Thompson G Crossley Lord, Samuel (sic) C G 1819.07.01 1819.08.06 Norton/G'ling Howell, George A T Wylde £600 1820.11.22 P 9/2227 #346 Murray, Terrence, paymaster A EX 1819.06.26 1819.08.07 T Wylde James, Joseph A See 9/2254 #426, 429, 464 £254 3s 9/2254 #425 48th Regiment of Foot Bell, William D D 1819.07.01 1819.08.07 T Wylde Loane, Rowland Walpole A £100 9/2254 #410 Loane, Rowland Walpole A P 1818.04.17 " TS Amos Thrupp, Alfred A WH Moore record certified 1836.02.16 1821.03.06 P £379 9/2230 #402 Mileham, James and A D 1819.07.30 1819.08.10 J Norton May, Laurence A T Wylde £200 1819.09.01 P £20 9/2220 #191 Parmeter, Thomas Riley, Alexander, Birnie, A D, BC 1817.03.20 1819.08.10 J Norton Lord, Samuel (sic) C T Wylde associated equity suit 1820.02.23 P £1,927.10.7 £26.15.8 9/2223 #255 James and Frazier, Andrew Venman, John, heir of Wm. A BC 1815.09.04 1819.08.10 J Norton Gilberthorpe, Thomas C 1819.09.14 P £200 9/2220 #200 Venman, alias John Benn Antill, Henry Colden A SF 1813.08.00 1819.08.16 TS Amos/ Hobby, Thomas A 9/2222 #242 executor Andrew Thompson G Crossley Macquarie, Lachlan A DC 1818.06.08 1819.08.17 T Wylde Ritchie, Thomas A WH Moore 9/2254 #416; [1819] NSW £1,500 1819.09.15 P £2 9/2220 #202 KR 6; [1819] NSWSupC 6 Best, Anthony B W 1819.05.11 1819.08.25 WH Moore Powell, Elizabeth A T Wylde 9/2219 #187

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Terry, Samuel C W 1818.11.03 1819.08.25 J Norton Stokes, James A? 1819.08.25 P 9/2219 #188 Crossley, George B TS Amos Barnard, George William A J Norton 9/2219 #189 Macquarie, Lachlan A AS 1819.08.01 1819.08.27 T Wylde Browne, William A J Norton 9/2218 #154; [1819] NSW KR 5; NSWSupC£1,000 5 1819.09.14 D 9/2220 #201 Berry, Alexander A EX 1814.03.04 1819.08.27 WH Moore Loane, Rowland Walpole and A 1819.11.17 D 9/2221 #219 Hall, Edward Smith Brooks, Richard A W 1818.02.11 Lambe, Edward B 9/2221 #220 Middleton, Thomas William B EX T Wylde Laurie, John C 1819.11.19 P £315 9/2221 #221 Campbell, William A G 1819.07.31 1819.08.28 WH Moore Throsby, Charles A £1,000 9/2254 #419 Williams, George A P 1818.01.12 1819.09.01 J Norton Wade, John A £100 9/2254 #421 Parr, Thomas William B D 1819.08.14 1819.09.01 F Garling May, Laurence A? T Wylde £100 9/2254 #420 Baker, William A W 1819.04.17 1819.09.09 T Wylde Parland, Patrick B 1819.09.09 P 9/2220 #194 Baker, William A W 1819.04.20 1819.09.09 T Wylde Gaffney, Patrick D? T Wylde 1819.09.09 P 9/2220 #196 Baker, William A W 1819.04.28 1819.09.09 T Wylde Connor, Timothy B 1819.09.09 P 9/2220 #195 Baker, William A W 1819.04.19 1819.09.09 T Wylde Hoy, Patrick U? 1819.09.09 P 9/2220 #197 Baker, William A W 1819.04.28 1819.09.09 T Wylde Forster, Robert U? 1819.09.09 P 9/2220 #198 Macquarie, Lachlan A DC 1818.06.08 1819.09.10 T Wylde Ritchie, Thomas A WH Moore see 9/2220 #202 9/2254 #416 Terry, Samuel C W 1818.10.09 1819.09.16 Gunning, Jane and Thomas A 1819.09.16 P 9/2220 #203 Terry, Samuel C SF 1819.09.17 TS Amos/ Whiting, Sarah, Admintrx. B J Norton 1820.01.13 P 9/2222 #248 G Crossley Francis Whiting Campbell, Robert junior A EX 1819.10.01 J Norton Clarkson, Thomas B WH Moore 9/2222 #249 " A W 1819.09.23 1819.09.24 T Wylde Driver, James B? 1819.09.24 P 9/2220 #205 " A EX, W 1819.03.11 1819.09.25 T Wylde Horsley, John A 9/2223 #262 Terry, Samuel C D, W 1816.11.01 Crossley, George B £1,270 9/2223 #263 Cooper, Daniel B W 1819.09.29 1819.09.30 T Wylde Driver, James B? 1819.09.30 P 9/2220 #207 Hazard, Robert B W 1818.11.06 1819.09.30 T Wylde Cribb, George B 1819.09.30 P 9/2220 #208 Murray, Terrence, paymaster A EX 1819.06.26 1819.10.07 T Wylde Armytage, Charles B see 9/2254 #425, 429 £254 3s 9/2254 #426 48th Regiment of Foot Cooper, Robert B P 1819.05.24 1819.10.10 J Norton Smith, James A T Wylde 1819.11.30 P £60.13.6 9/2222 #237 Gurner, John, Clerk of the A D 1819.08.14 1819.10.11 WH Moore Amos, Thomas Sterrop A £500 9/2254 #427 Supreme Court Levey, Solomon B P 1819.06.29 1819.10.12 J Norton Byrne, Michael A £100 1819.11.20 P 9/2221 #222 Underwood, James B W 1819.11.01 T Wylde Armytage, Charles B 9/2221 #223 Murray, Terrence, Paymaster A EX 1819.10.14 T Wylde Levy, Solomon B J Norton see 9/2254 #425 426 £254 3s 9/2254 #429 48th Regiment of Foot Campbell, Robert junior A EX 1819.07.01 1819.10.14 T Wylde Hankinson, James B see 9/2254 #431 £150 12s 6d 9/2254 #430 " A EX 1819.07.01 1819.10.14 T Wylde Armytage, Charles B see 9/2254 #430 £150 12s 6d 9/2254 #431 Terry, Samuel C W 1819.08.19 1819.10.15 F Garling Amos, Thomas Sterrop A T Wylde £2,000 1819.10.15 P 9/2220 #209 Campbell, Robert junior A P 1819.07.10 1819.10.16 T Wylde Leverton, William A £102 9/2254 #432 Antill, Henry Colden A W 1819.09.19 1819.10.16 G Crossley Lambe, Edward A 9/2220 #215 Williams, George A EX 1819.07.02 1819.10.16 T Wylde Cribb, George B £146 6s 6d 9/2254 #433 Waples, Robert D D, G 1819.10.14 1819.10.16 F Garling Kent, Thomas A £89 9/2254 #434 Antill, Henry Colden and A P ,W 1811.03.05 1819.10.17 TS Amos Mason, William B 9/2220 #216 Moore, Thomas Murray, Robert Lathrop B W 1819.06.02 WH Moore Howard, John A F Garling 9/2221 #217 Atkinson, John A EX 1819.07.13 1819.10.21 J Norton Middleton, Thomas William B £254 3s 9/2254 #435 Brady, Thomas A AG 1818.05.01 1819.10.22 WH Moore Ward, Edward A J Norton £150 P £40 £34.18.8 9/2224 #273 Berry, Alexander and A P 1819.07.06 1819.10.25 J Norton Hankinson, James B T Wylde see 9/2254 #438-40 £195 1s 4d 9/2254 #437 Woolstonecraft, Edward Berry, Alexander and A P 1819.07.06 1819.10.25 J Norton Cooper, Robert B T Wylde see 9/2254 #437, 439, 440 £195 1s 4d 9/2254 #438 Woolstonecraft, Edward Berry, Alexander and A P 1819.07.06 1819.10.25 J Norton Hazard, Robert Brady B T Wylde see 9/2254 #437, 438, 440 £195 1s 4d 9/2254 #439 Woolstonecraft, Edward Berry, Alexander and A P 1819.07.06 1819.10.25 J Norton Williams, George A T Wylde see 9/2254 #437-9 £195 1s 4d 9/2254 #440 Woolstonecraft, Edward Campbell, Robert junior A D, W 1819.07.22 1819.11.03 J Norton Freeman, William C £300 1819.11.03 9/2221 #218 Campbell, Robert Junior A EX 1819.07.12 1819.11.08 J Norton Garrigan, Patrick B see 9/2254 #443 £144 18s 9/2254 #442 Campbell, Robert Junior A EX 1819.07.12 1819.11.08 J Norton Croaker, John B see 9/2254 #442 £144 18s 9/2254 #443 Underwood, Joseph A EX 1819.11.08 J Norton Armytage, Charles B 1819.11.29 P £256.13.9 9/2221 #232 Stocker, William Thomas A? FA 1818.02.25 1819.11.08 WH Moore Howe, Robert A Dickson, John, garnishee, A £70 9/2254 #450 Clarkson, Thomas B G 1819.11.01 1819.11.08 J Norton Laurie, John C WH Moore upheld on appeal 2/8142 £1,500 1819.11.30 P £446.7.8 9/2222 #235 369 1820.06.27 Underwood, Joseph A EX 1819.07.13 1819.11.08 J Norton Middleton, Thomas William B T Wylde 1819.12.30 P 9/2222 #244 Campbell, Robert Junior A EX 1819.07.27 1819.11.09 T Wylde Armytage, Charles B £300 9/2254 #446 Jenkins, Robert A G 1819.10.01 1819.11.09 T Wylde Gilberthorpe, Thomas C £200 9/2254 #447 Leverton, William A DL 1819.10.30 1819.11.09 T Wylde Armytage, Charles B £200 9/2254 #449 Underwood, James B G 1819.07.01 1819.11.09 Twylde Underwood, Joseph A J Norton £500 1819.11.30 D 9/2222 #236 Williams, George A P 1819.07.05 1819.11.10 J Norton Laurie, John C WH Moore £104 14s 6d 1819.11.29 P £156.7.8 9/2222 #233 Lord, Simeon C G 1819.11.01 1819.11.11 J Norton Mileham, James A WH Moore £600 9/2254 #455 Williams, George A P 1819.07.07 1819.11.12 J Norton Laurie, John B WH Moore £50 1819.11.29 see above 9/2222 #233

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Dry, Richard B P 1815.10.10 1819.11.13 WH Moore Smith, John A £189 9/2254 #456 Williams, George A EX 1819.08.10 1819.11.15 J Norton Armytage, Charles B £275 10s 9/2254 #457 Campbell, Robert Junior A EX 1819.08.09 1819.11.16 J Norton Armytage, Charles B £154 6s 8d 9/2254 #458 Wylde, Thomas A D 1819.10.01 1819.11.16 Howe, George B £300 9/2254 #462 Cooper, Daniel B EX 1819.07.12 1819.11.16 J Norton Armytage, Charles B T Wylde £123 12s 4d 9/2222 #234 Cooper, Daniel B EX 1819.07.12 1819.11.16 J Norton Laurie, John C WH Moore £123 12s 4d 1820.02.23 P a shilling £20.15.8 9/2223 #256 Jamison, Sir John A P 1818.06.20 1819.11.18 WH Moore Gibson, David B £110 9/2254 #461 Levy, Solomon B EX 1819.06.26 1819.11.20 J Norton Armytage, Charles B see 9/2254 #425 £254 3s 9/2254 #464 Levey, Solomon B EX 1819.06.26 1819.11.20 J Norton Hankinson, James B T Wylde 9/2222 #245 Hibbert, Joseph Junior A EX 1813.07.26 1819.11.26 T Wylde Brooks, Richard A F Garling £1608 9/2254 #465 Wylde, Thomas A CV 1819.11.22 " " Jordain, John A J Norton £1,000 1821.09.15 P £428.15.0 9/2233 #465 Berry, Alexander and A P 1819.09.01 1819.11.30 J Norton Hankinson, James B T Wylde £82 2s 8d 9/2254 #482 Woolstonecraft, Edward Harris, John A G 1817.08.01 WH Moore Mitchell, James A J Norton £300 1819.11.01 9/2221 #230 Arndell, Thomas A W 1819.11.22 1819.12.10 G Crossley Croaker, John B 1819.12.10 P 9/2222 #239 Briggs, John A W 1819.11.05 1819.12.11 J Norton Hankinson, James B £300 9/2222 #243 Williams, George A P, G 1819.05.18 1819.12.14 J Norton Waddle, John A £300 9/2254 #468 Crossley, George B D 1819.09.01 1819.12.16 Terry, Samuel, executor of C T Wylde £5,000 9/2254 #467 Thomas Sterrop Amos Berry, Alexander and A P 1819.08.12 1819.12.20 J Norton Hankinson, James B 1820.03.08 P £576.4.10 9/2223 #264 Wollstonecraft, Edward Levy, Solomon B G 1819.02.23 1819.12.24 J Norton Murray, Robert Lathrop B £100 9/2254 #470 Hook, Charles, surviving A W 1817.03.11 1819.12.31 WH Moore Gordon, James A 9/2222 #246 executor of Thomas Abbott

Page 281 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1820

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Gurner, John, Clerk of the A D 1820.01.01 Terry, Samuel, executor, C previous proceedings 9/2223 #261 9/2254 #473 Supreme Court Thomas Sterrop Amos Williams, George A EX 1819.08.16 1820.01.07 J Norton Armytage, Charles B £115.12.0 9/2254 #474 Jones, Richard and Riley, A P 1819.04.14 1820.01.07 J Norton Eagar, Edward B see 9/2254 #476, 499 £112.10.0 9/2254 #475 Edward " A P 1819.04.14 1820.01.07 J Norton Smith, James A T Wylde previous proceedings 9/2254 #475 £112.10.0 9/2254 #476 see 9/2254 #499 " A EX 1819.09.23 1820.01.07 J Norton Hankinson, James B T Wylde £162.1.3 9/2254 #478 " A EX 1819.09.23 1820.01.07 J Norton Middleton, Thomas William B T Wylde previous proceedings 9/2254 #478 £162.1.3 9/2254 #479 Campbell, Robert, junior A P 1819.09.25 1820.01.07 J Norton Armytage, Charles B £209.10.0 9/2254 #480 Campbell, Robert, senior A EX 1819.05.18 " " Smith, James A £114 1820.06.13 P £244.12.4 £3 9/2225 #307 Clarkson, Thomas B W 1819.05.08 1820.01.08 Amos/Crssly Crabtree, Hugh B 9/2222 #247 Berry, Alexander and A EX 1819.06.23 1820.01.10 J Norton Armytage, Charles B see 9/2254 #498 £300 9/2254 #481 Wollstonecraft, Edward Palmer, Thomas A G 1819.10.30 1820.01.17 WH Moore Lord, Simeon C T Wylde £1,500 9/2254 #484 Bevan, David B G 1820.01.01 1820.01.17 T Wylde Cooper, Robert B J Norton £100 9/2254 #485 " "" " " " Levey, Solomon B F Garling £200 9/2225 #299 Hankinson, James B EX 1819.08.23 1820.01.17 T Wylde Smith, James A £76.5.4 9/2254 #487 Underwood, James B P 1819.12.07 1820.01.17 T Wylde Barnard, George William A J Norton £150 9/2254 #488 Hankinson, James B W 1819.11.05 1820.01.18 " Driver, James U 9/2222 #251 O'Niel, Thomas B D 1819.07.31 1820.01.20 WH Moore McNanimy, Owen A £100 1820.02.25 P £54.2.0 9/2223 #257 Raine, John AJ 1820.01.24 " Briggs, John " " £254 1820.10.18 D £127 9/2227 #332 Campbell, Robert, junior A P 1819.08.25 1820.01.27 J Norton Howe, George B T Wylde 1820.03.13 P £212.19.0 9/2224 #268 Terry, Samuel C EX 1820.01.01 1820.01.28 T Wylde Purcell, John A Eagar, Edward, B, Garnishee £110 9/2254 #491 Park, Thomas Josiah A EX 1818.08.11 " J Norton Drennan, Frederick A WH Moore £500 1820.03.03 P £526 9/2223 #260 Campbell, Robert, senior A EJ 1819.10.21 " WH Moore Waples, Robert D F Garling 1820.03.15 P 9/2224 #272 Leverton, William A P 1819.09.13 1820.01.30 J Norton Hankinson, James B T Wylde previous proceedings 9/2254 #471 £110.6.4 9/2254 #472 Wentworth, D'Arcy and Lord, A D 1818.06.29 1820.02.01 WH Moore Clarkson, Thomas B previous proceedings 9/2223 #258 £155 1820.03.15 P £155.1.0 £35 9/2224 #271 Simeon, turnpike trustees " "" " " " Boulton, John A see 9/2224 #271 " 1820.02.25 P £155.1.0 9/2223 #258 Berry, Alexander and A EX 1819.06.23 1820.02.03 J Norton Williams, George A previous proceedings 9/2254 #481 £300 9/2254 #498 Wollstonecraft, Edward Wilford, Thomas A P 1819.09.13 1820.02.04 J Norton Hankinson, James B T Wylde £110 9/2255 #502 Cooper, Robert B G 1820.02.01 1820.02.04 J Norton Williams, Bernard B £1,600 9/2254 #500 Williams, John Thomas A A 1820.01.28 1820.02.04 T Wylde Underwood, James B £1,000 9/2255 #501 Hart, Patrick B P 1815.12.11 1820.02.05 WH Moore Love, John A J Norton £100 P £124 9/2229 #370 Campbell, Robert junior A P 1819.04.14 1820.02.05 J Norton Cooper, Robert B previous proceedings 9/2254 #475-6 £112.10.0 9/2254 #499 Allan, David A P 1819.07.24 " WH Moore Middleton, Thomas William B TD Rowe duplicate filed 1822.02.18 1822.03.12 P £379.5.0 9/2236 #515 Jenkins, Robert A W 1819.11.15 1820.02.07 " Gilberthorpe, Thomas C T Wylde 1820.02.07 P 9/2222 #252 Moore, Thomas A P 1819.05.05 1820.02.08 " Terry, Samuel, executor of ThomasC S Amos" £55 1820.03.15 P £56.16.0 9/2224 #270 Hazard, Robert Brady B P, G 1819.06.29 1820.02.09 T Wylde Beasley, Charles B £272.7.10 9/2255 #506 Terry, Samuel C DL 1820.01.01 1820.02.10 T Wylde Cooper, Robert B J Norton £500 9/2254 #491 Wentworth, D'Arcy, agent of A BC 1815.06.09 WH Moore Kable, Henry the younger A £202 10s 9/2254 #493 William Balmain estate Lord, Simeon C P, EX 1819.07.09 1820.02.12 T Wylde Terry, Samuel, executor of ThomasC S Amos £300 1820.03.10 P £206.0.0 9/2224 #267 President & Company of the P 1819.05.22 1820.02.12 T Wylde Hankinson, James B £300 9/2255 #508 Bank of New South Wales " " " " " Middleton, Thomas William B previous proceedings 9/2255 #508 " 9/2255 #509 " " 1819.09.18 " " Levy, Solomon B see 9/2255 #525 £249.7.6 9/2255 #510 " " 1819.07.07 " " Eagar, Edward B see 9/2226 #315 £221.10.0 1820.05.26 P £1,000 9/2225 #296 Dixon, Francis A AG, DL 1819.09.07 " WH Moore Gallaher JP A £21 9/2255 #513 Wild, James B P 1814.02.04 1820.02.12 T Wylde Crossley, George B 1820.05.24 P £61.6.8 9/2225 #295 Williams, George A EX 1819.08.10 1820.02.15 J Norton Johnstone, George, junior; A £275.10.0 9/2255 #514 Piper, John;Campbell, Robert senior;Howe, George; Jenkins, Robert A P 1819.09.20 " " Executors Isaac Nicholls B £100 9/2255 #515 Birnie, James AG " " Wilshire, James A £500 9/2255 #516 Loane, Rowland Walpole A P 1819.08.06 1820.02.16 WH Moore Williams, Robert B 9/2226 #329 Ritchie, Thomas A G 1820.02.14 1820.02.17 WH Moore Jones, Richard and Riley, A £1,500 1820.03.15 P £1,500 £41.18.4 9/2224 #275 Edward Wentworth, D'Arcy A D 1816.05.01 " Lack, Robert, Collector of B £140 P £162.10.0 £40.3.2 9/2224 #276 Commissioner of roads tolls and duties Cooper, Robert B W 1819.12.09 " Clarkson, Thomas B J Norton £100 9/2224 #277 Levy, Solomon B AG 1819.12.14 1820.02.18 WH Moore Kermode, William A [1820] NSWKR 1;[1820] NSWSupC 1 £63.2.3 9/2255 #519 see also 9/2223 #253 Gurner, John, Clerk of the A D 1820.02.21 " Terry, Samuel, executor of C T Wylde previous proceedings 9/2254 #473 9/2223 #261 Supreme Court Thomas Sterrop Amos Terry, Samuel C D, W 1816.11.01 Crossley, George B £1,270 9/2223 #263

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Williams, George A J 1819.12.10 1820.02.22 J Norton Campbell, John Thomas, A F Garling £156.7.8 1820.03.14 P £84.0.0 9/2224 #269 Provost Marshal Smith, James A D 1820.01.01 1820.02.23 " Hutchison, John B WH Moore £100 9/2255 #522 Sindrey, Edward A G 1820.02.11 " J Norton Hankinson, James B T Wylde £200 9/2255 #523 Campbell, Robert the A D, W 1819.11.23 " G Crossley/ Laurie, John C £1,700 9/2223 #254 younger and Hazard, Robert T Wylde Smith, James A D 1820.02.01 " Jones, Richard A J Norton 1820.03.15 P £165.1.7 9/2224 #274 Berry, Alexander A DL 1820.02.01 1820.02.24 J Norton Marsden, Samuel and Hall, A WH Moore confirmed on appeal 4/6604 61 £6,000 P v Hall only 9/2228 #349 Edward Smith President and Company of P 1819.09.18 1820.02.28 T Wylde Bevan, David A previous proceedings 9/2255 #510 £249.7.6 9/2255 #525 the Bank of New South Wales Levey, Solomon B W, P 1819.05.28 1820.03.04 " Clarkson, Thomas B 1820.05.12 P 9/2225 #290 Brydone, James Marr A D 1820.02.14 1820.03.07 F Garling Hunt, Francis A J Norton £200 1820.03.10 P £96.10.0 9/2224 #265 Rosso, Louis Antonia AA " "" " " " P £10.0.0 £35.2.0 9/2224 #266 Cooper, Robert B P 1819.11.15 1820.03.09 J Norton Howe, George B £80.12.0 9/2255 #529 Campbell, Robert, junior A W, D 1819.11.16 1820.03.18 Croaker, John and Garrigan, B £300 9/2224 #278 Patrick " " W " 1820.03.22 T Wylde Gilberthorp, Thomas B 1820.03.22 P 9/2224 #279 " " " 1819.03.13 " " Croaker, John B " " 9/2225 #281 Underwood, James B " 1819.12.14 " " Clarkson, Thomas B " " 9/2224 #280 Campbell, Robert, junior A P 1819.07.05 1820.03.27 T Wylde Christie, William A £51.18.4 9/2255 #530 " " W 1819.10.28 1820.03.28 " Laurie, John B 1820.03.28 P 9/2225 #282 President and Company of " 1820.02.26 1820.03.30 " Hankinson, James and B 1820.03.30 " 9/2225 #283 the Bank of New South Wales Middleton, Thomas William Wylde, Thomas A D 1820.03.04 " Eagar, Edward B previously filed 1820.03.30 £200 9/2225 #297 Crossley, George B G 1820.02.11 1820.04.05 Palmer, Thomas A T Wylde £290 9/2255 #533 Sindrey, Edward A W, D 1820.03.10 1820.04.21 J Norton Hankinson, James B " £300 1820.04.21 " 9/2225 #287 Williams, George A EX 1819.06.23 1820.04.25 J Norton Armytage, Charles B £300 9/2255 #536 Greenway, Francis Howard B P 1819.12.24 1820.04.26 J Norton Bevan, David A £276.14.6 9/2255 #535 Berry, Alexander and A P 1819.05.18 " " Raphael, Joseph B 1820.08.30 " 9/2226 #321 Wollstonecraft, Edward Gore, William A DT 1818.12.01 1820.05.03 " Rowley, Samuel C " £100 1820.06.24 " 9/2225 #298 Middleton TW B P 1819.08.31 " T Wylde McIntosh, Charles A £59 1820.05.12 " 9/2226 #314 Bevan, David A W, D 1820.04.29 1820.05.03 Hankinson, James B £600 1820.05.03 P 9/2225 #289 Jones, Richard and Riley, A W, D 1820.03.08 1820.05.03 J Norton Hankinson, James and B £330 1820.05.03 " 9/2225 #288 Edward Middleton, Thomas William Chisholm, James A P 1819.08.28 1820.05.04 T Wylde Murray, Robert Lathrop B? WH Moore £100 9/2255 #539 Dickson, John A P 1820.02.07 1820.05.05 WH Moore Sommers, Charles A £114.6.0 9/2255 #541 Wentworth, D'Arcy A P 1817.04.03 " " Hutchinson, John B 1820.11.11 " 9/2227 #342 Wylde, Thomas A EX 1820.01.03 1820.05.06 Eagar, Edward B previous proceedings 1820.03.30 £150 9/2225 #297 Saintsbury, John Davis B W 1819.06.16 1820.05.12 Gore, William A TS Amos £108 1820.05.12 " 9/2225 #291 Terry, Samuel C W, D 1820.05.11 " T Wylde Robinson, Edward B £1,000 1820.05.12 " 9/2225 #292 Levey, Solomon B " 1820.05.01 " " Ward, William Gordon A £600 " " 9/2225 #293 Berry, Alexander A P 1818.03.04 1820.05.16 J Norton Cribb, George B 1820.08.28 " 9/2226 #318 Campbell, Robert, junior A " 1819.10.15 1820.05.17 " Allen, John A £100 1820.05.17 " 9/2225 #294 Rex BC 1819.06.04 1820.05.18 T Wylde Riggs, Abimelek A F Garling see 9/2255 #545, 9/2226 #326 £100 9/2255 #544 [1820] NSWKR 5; [1820] NSWSupC 5 " " 1819.06.04 " "" " " previous proceedings 9/2255 #544 £800 9/2255 #545 Macquarie, Lachlan A " 1819.07.27 " "" A " previous proceedings 9/2255 #544-5 £6,500 1820.09.15 P £6,079.16.0 9/2226 #326 Eagar, Edgar B QT 1820.05.19 WH Moore Manigault, Charles Izard A " [1821]NSWKR8;[1821]NSWSupC 8 £20,000 Williams, Francis A P 1820.02.12 1820.05.22 J Norton Cribb, George B £100 9/2255 #548 Campbell, Robert, junior A EX 1818.11.18 1820.05.23 " Middleton JW B 1820.08.29 P £345 9/2226 #320 Eagar, Edward B QT 1820.05.24 Rollo, John Wallis A £10,000 9/2255 #551 " B QT 1820.05.24 de Mestre, Prosper A F Garling [1820]NSWKR4; [1820]NSWSupC 4 £10,000 9/2255 #552 Berry, Alexander and A P 1819.09.02 1820.05.27 J Norton Cooper, Robert B T Wylde £113.5.6 9/2255 #550 Wollstonecraft, Edward Levey, Solomon B W 1820.03.04 1820.06.03 Byrne, Michael B 1820.06.03 9/2225 #300 Cooper, Robert B W 1820.03.06 1820.06.08 J Norton Croaker, John B 1820.06.08 9/2225 #302 Underwood, Joseph A W 1820.03.06 1820.06.08 J Norton Williams, Robert B WH Moore different defendants filed 1817.09.01 9/2225 #301 Terry, Samuel C W 1819.12.17 1820.06.10 T Wylde Raphael, Joseph B 1820.06.10 P 9/2225 #303 Campbell, Robert, junior A W, D 1820.03.25 WH Moore " B 1820.06.10 P £2,000.1.0 3.16.0 9/2225 #304 Clarke, Joseph C W 1820.06.10 1820.06.12 T Wylde Smith, James A 1820.06.12 P 9/2225 #305 Terry, Samuel C W 1820.04.25 1820.06.13 " " " 1820.06.13 " 9/2225 #306 Smith, John A W 1820.06.13 " WH Moore " " " " 9/2225 #308 Cooper, Robert B W 1820.05.08 1820.06.15 J Norton Howe, George B 1820.06.15 " 9/2225 #309 Jones, Richard and Riley, A W, D " " "" " £250 " " 9/2225 #310 Edward Barnard, George William A P 1819.07.05 1820.06.16 J Norton Mountgarrett, Jacob A £133 9/2255 #553 Campbell, Robert, junior A W " T Wylde Devlin, Hugh B 1820.06.1820 " 9/2226 #311

Page 283 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1820

Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, Sum claimed Cause heard Judgment Judgment for Costs SR reference first mentioned party first mentioned party solicitor, case notes signed

Cooper, Robert B W 1820.05.12 1820.06.24 J Norton Middleton, TW B 1820.06.24 " 9/2226 #312 Underwood, James B G 1820.06.01 1820.06.26 T Wylde Raphael, Joseph B F Garling £100 9/2255 #554 Williams, Francis A P 1820.02.12 1820.06.26 J Norton Cribb, George B £330 9/2255 #555 " " W 1820.05.24 " "" " 1820.06.26 " 9/2226 #313 Eagar, Edward B W 1820.05.26 1820.07.03 Hankinson, James and B previous proceedings 9/2225 #296 1820.07.03 P £1,000 9/2226 #315 Middleton TW Murray, Robert Lathrop B P 1819.08.28 1820.07.03 T Wylde Laurie, John C WH Moore £100 9/2255 #556 Hunt, Francis A AG 1820.07.18 J Norton Loane, Rowland Walpole A see 9/2233 #465, 9/2227 #347, £3,000 9/2255 #557 9/2228 #354 [1820] NSWKR 13; [1820] NSWSupC 13 Crossley, George B P 1819.08.07 1820.07.26 Grono, John A £7.9.4 9/2255 #558 Smith, James A P 1819.04.14 1820.07.27 Laurie, John C 9/2255 #559 Lord, Samuel C G 1819.07.01 1820.08.06 Norton/G'ling Howell, George A T Wylde £600 1820.11.22 " 9/2227 #346 Campbell, Robert A W 1819.11.09 1820.08.11 T Wylde Bayliss, John B 1820.08.11 " 9/2226 #316 Campbell, Robert junior " G 1820.08.01 1820.08.14 J Norton Mileham, James A WH Moore £100 1822.08.05 " 9/2238 #550 Cooper, Robert B AS 1820.08.15 " Underwood, Joseph A 1820.09.08 P £40.0.0 9/2226 #322 Ritchie, Thomas A G 1820.08.14 1820.08.17 WH Moore McQueen, John A? TD Rowe £50 9/2255 #564 Brooks, Richard A P 1812.09.18 " " Trotter, Thomas A? £100 9/2255 #565 Wentworth, D'Arcy A D 1819.04.30 " " Gray, Elizabeth, Yeomans, A £1,000 9/2255 #567 John and Bushell, Paul Loane, Rowland Walpole A EX 1819.07.16 " " Piper, John & Campbell, Robert,A senior, £270 9/2255 #568 Executors of Isaac Nichols " "" " " " Middleton, Thomas William B T Wylde 1820.11.01 P £276.0.0 9/2227 #339 " "" " " " Armytage, Charles B see 9/2233 #453 £270 1821.08.30 9/2233 #452 " "" " " " Hankinson, James B previous proceedings 9/2233 #452 £270 " " 9/2233 #453 Lord, Edward " EJ 1820.08.14 " " Campbell, William A J Norton 1821.11.30 P £2.0.0 9/2235 #487 Johnstone, Robert A AG 1820.08.01 1820.08.21 J Norton Birnie, James A £300 9/2255 #570 Jones, Richard, Riley, Edward A P 1820.06.17 1820.08.22 " Raphael, Joseph B £95.3.6 9/2255 #574 and Walker, William Ennis, Phillip C EJ 1820.08.14 1820.08.22 WH Moore Conway, Mary A? F Garling [1822]NSWKR2;[182]NSWSupC 2 £60 1822.03.15 P one shilling £21.4.7 9/2236 #521 Mackey, John A EX 1820.05.27 1820.08.23 WH Moore Raine, John A £2,028 9/2255 #572 Lord, Simeon C P 1820.03.28 " J Norton Raphael, Joseph B £91.19.3 9/2255 #575 Stocker, William Thomas A P 1819.01.11 " WH Moore Thrupp, Henry A £74 1821.03.14 " 9/2231 #419 Sindrey, Edward A W 1820.08.07 1820.08.24 " Williams, Robert B 1820.08.24 " 9/2226 #317 Loane, Rowland Walpole A G 1820.08.14 1820.08.26 WH Moore Raine, John A T Wylde/ £800 9/2255 #579 WH Moore Oxley, John A D 1820.08.14 " " Burke, Martin A £90 1821.10.09 P £90.0.0 £15.13.10 9/2234 #476 Barnard, George William A P 1819.08.13 1820.08.28 J Norton Armytage, Charles B £55.12.0 9/2255 #580 Smith, James A DC 1818.08.25 " WH Moore Druitt, George A £1,240 9/2255 #581 Williams, Francis A W 1820.06.29 1820.08.29 J Norton Cribb, George B 1820.08.29 P 9/2226 #319 Packer, William James A P 1820.01.29 1820.08.30 F Garling Murray, Darby B £100 9/2255 #582 Armytage, Charles B D 1820.08.21 " T Wylde Laurie, John C Cooper, Robert, B, Garnishee £100 9/2255 #583 Middleton, Thomas William B G 1820.08.01 1820.09.01 " Armytage, Charles B £300 9/2255 #585 Hankinson, James B G 1820.08.21 " " Palmer, Thomas A " £200 1821.09.11 P £104.4.3 9/2233 #458 Mackey, John A P 1820.05.29 1820.09.13 WH Moore Loane, Rowland Walpole A F Garling 1820.11.14 P £1,442 10. 9/2227 #344 Campbell, Robert junior A W 1820.06.01 1820.09.14 Byrne, James B 1820.09.14 P 9/2226 #324 Campbell, Robert A W 1820.01.22 1820.09.15 Freeman, William C 1820.09.15 " 9/2226 #325 Riley, Alexander and Jones, A W 1817.07.11 1820.09.16 TS Amos Miller, Thomas A 1820.09.16 " 9/2226 #327 Richard " " P 1820.06.30 1820.09.20 J Norton Stilwell, John A 1820.10.17 " 9/2227 #331 Campbell, Robert junior " P 1819.10.19 " " Hume, Andrew Hamilton A 1821.01.05 " 9/2228 #367 Jones, Richard and Riley, A G 1820.09.18 1820.09.23 J Norton Bradley, Samuel A £100 9/2255 #589 Edward " " P 1818.07.15 " " Davis, Solomon D? £330.15.6 9/2255 #590 Campbell, Robert junior A W 1820.05.31 1820.009.25 TS Amos Halllihan, Maurice D 1820.09.25 " 9/2226 #328 Armytage, Charles B G 1820.09.01 1820.09.28 " Scholes, William C? £100 9/2255 #591 Crossley, George B W 1820.04.08 1820.10.10 Armytage, Charles B 1820.10.10 " 9/2226 #330 Rose, Thomas A BC 1820.01.04 1820.10.14 " Smith, James A £200 9/2255 #593 Lord, Edward A EJ 1820.04.01 " T Wylde Davey, Thomas A WH Moore 1821.02.09 P £2.0.0 9/2229 #376 Loane, Rowland Walpole A G 1819.08.09 1820.10.16 T Wylde Heaney, Richard A see 9/2255 #594 9/2255 #594 Middleton, Thomas William B " 1820.10.01 " " Armytage, Charles B see 9/2227 #337 £200 9/2255 #595 Cullen, Patrick B P 1820.05.01 " J Norton Fisher, John U £133.10.0 9/2255 #598 Armytage, Charles B G 1820.10.01 " " Klensendorlffe, William A £200 9/2255 #599 Lambe, Edward B G 1820.01.01 " T Wylde Jubb, George or Thomas C WH Moore £200 1821.03.02 P £80.0.0 9/2230 #400 Hunt, Francis A AS 1820.05.22 " J Norton Loane, Rowland Walpole A F Garling previous proceedings 9/2255 #557 1820.11.24 P £331.15.0 9/2233 #465 Loane, Rowland Walpole A DL 1820.10.01 1820.10.17 " Carr, William A Bell, Archibald, A, Garnishee £2,000 1821.06.29 P £1,500.0.0 £9.9.0 9/2232 #440 Heaney, Richard A D 1819.09.10 1820.10.18 " Loane, Rowland Walpole A T Wylde previous proceedings 9/2255 #594 £300 9/2255 #601 Cooper, Daniel B W 1820.10.05 1820.10.19 WH Moore Cunningham, Andrew C " 1820.10.19 P 9/2227 #333 Loane, Rowland Walpole A P 1811.09.10 " T Wylde Jillett, Robert and Elizabeth A WH Moore 1821.02.06 P £186.14.0 9/2229 #375

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" " FP 1818.01.26 " " Beamont, John A " previous proceedings 9/2253 #307 1821.02.27 D 9/2230 #394 " " D 1820.01.01 " " Bate, Samuel A " £200 1821.03.10 P £90.13.6 9/2231 #415 Jones, Richard and Riley, EdwardA W 1820.09.09 1820.10.28 J Norton Christie, William A 1820.10.28 P 9/2227 #334 Jones, Richard and Riley, EdwardA W 1820.02.17 1820.10.28 J Norton Smith, James A 1820.10.28 P 9/2227 #335 Cooper, Robert and Levey, B " 1820.03.22 " " Clarkson, Thomas B " " 9/2227 #336 Solomon Middleton, Thomas William B W 1820.10.27 1820.10.30 T Wylde Armytage, Charles B previous proceedings 9/2255 #595 1820.10.30 P £113.10.0 9/2227 #337 Crossley, George B SF, J 1820.10.31 Singleton, William C £105.5.0 9/2227 #338 Crossley, George B P 1817.02.15 1820.11.01 Rose Thomas and Thompson CharlesA J Norton £163.11.6 9/2255 #607 Terry, Samuel C AS 1820.11.06 T Wylde Leverton, William A 9/2255 #610 " "J " Robinson, Ann, executrix, EdwardU Robinson £1,023 1820.12.16 P one shilling 9/2228 #352 Loane, Rowland Walpole A EJ " " Stubbs, John A £100 9/2256 #611 Gibbs U" " " Connell, John A £100 9/2256 #612 Terry, Samuel C AS " " Raine, John A WH Moore 1821.02.23 P £137.10.0 9/2230 #389 Rose, Thomas A BC 1817.04.14 1820.11.09 J Norton Barnes, Richard A 9/2256 #614 Waples, Robert DP " F Garling Murray, Darby B J Norton £100 1820.12.19 D 9/2228 #353 Lord, Samuel C AS 1820.06.05 " " Tompson, Charles C? WH Moore 1820.11.28 D 9/2228 #348 Jones, Richard and Riley, A W 1820.11.06 1820.11.10 " White, Japhet A 1820.11.10 P 9/2227 #341 Edward Howe, George B G 1820.11.01 1820.11.11 " Reibey, Mary C £200 9/2256 #616 Jones, Richard, Redfern, A P, D, G 1816.03.01 " " Eagar, Edward B £948 9/2256 #617 William, Hodges, William, husband of Margaret, formerly Rea, executrix of William Hobart Mansel " " P 1816.08.21 1820.11.13 " Cooper, Robert B £109.12.0 9/2256 #618 Hart, Patrick B AG 1819.09.08 " WH Moore Terry, Samuel C 9/2256 #620 Cooper, Daniel B W 1820.08.08 1820.11.14 J Norton Webb, John B 1820.11.14 9/2227 #343 Terry, Samuel C D 1820.10.01 1820.11.15 T Wylde Raine, John A Lord, Simeon, C,Garnishee £200 9/2256 #621 Foster, James, clerk to B D 1820.08.01 J Norton Campbell, Robert, junior and Terry,A Samuel T Wylde £300 1820.11.16 P £106.17.0 9/2227 #340 William Gore trustees of William Gore Crossley, George B W 1820.05.13 1820.11.17 Palmer, Thomas and Hankinson,A James 1820.11.17 P 9/2227 #345 Hunt, Francis A AS 1820.05.22 " Loane, Rowland Walpole A previous proceedings 9/2255 #557 1820.11.24 " 9/2227 #347 Wylde, Thomas A EX 1820.02.01 1820.11.20 Moore, William Henry A £152 5s 1820.12.15 P £61.3.2 9/2228 #351 Campbell, Robert junior A EX 1818.11.18 1820.11.23 " Middleton, Thomas William B " £300 1820.12.15 P £301.7.6 9/2228 #350 Randall, William A AS 1820.10.05 1820.12.16 WH Moore Loane, Rowland Walpole A F Garling 1820.12.30 D 9/2228 #355 Minchin, William "L " T Wylde Drennan, Frederick A WH Moore " P £200.0.0 9/2228 #356 Loane, Rowland Walpole A BC 1820.05.22 F Garling Hunt, Francis, agent of Joshua ReevesA and previous proceedings 9/2255 #557 1820.12.29 1821.01.05 P £321.19.0 9/2228 #354 George Faith previous proceedings 9/2233 #465 Levey, Solomon B EX 1819.07.12 1820.12.19 Wylde/G'ling Jackson, William Collins Burke B £250 1821.04.09 P £260.0.0 9/2231 #425 Loane, Rowland Walpole A P 1820.05.29 1820.12.23 WH Moore Raine, John A £1,420 1821.03.12 P£2243.10.10 9/2232 #420

Page 285 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1821

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Wentworth, D'Arcy A W 1820.11.25 1821.01.03 J Norton Wiseman, Solomon B 1821.01.03 P 9/2228 #357 Jenkins, Robert " " 1819.12.06 " " Gray, Elizabeth B 9/2228 #358 Berry, Alexander and " " 1820.09.30 " " Byrne, Andrew " " " 9/2228 #359 Wollstonecraft, Edward Levey, Solomon B " 1820.11.23 " Garrigan Patrick B " " 9/2228 #360 Rose, Thomas B " 1820.11.15 " " Barnes, Richard A " " 9/2228 #361 Murray, Robert Lathrop B " 1820.04.05 1821.01.05 WH Moore Clarkson, Thomas B 9/2228 #362 Campbell, Robert junior A " 1820.06.28 " Jones, Mary B? 1821.01.05 " 9/2228 #364 " " " 1820.09.22 " Stoodley, John A? 9/2228 #365 " " " 1820.07.28 " Bowler, Ann B? " " 9/2228 #366 Smith, John " " 1820.05.03 " J Norton Lentz, George P " " 9/2228 #368 Waples, Robert D" " " Crssly/G'ling Ashcroft, John B? J Norton " " 9/2228 #369 Croaker, John B " 1820.06.13 1821.01.10 T Wylde McEwen (McQuon), John B " 1821.01.10 " 9/2229 #372 Hamilton, George Frederick A? A, FI 1821.01.22 T Wylde Watson, Joseph Thomas A WH Moore 9/2256 #631 Lascelles, Thomas Allen A BC 1818.05.07 1821.01.26 G Cartwright Kemp, Anthony Fenn and A " [1821] NSWKR 14;[1821] NSWSupC 14 £1,000 1821.02.13 D 9/2229 #380 Raine, John A P 1820.08.05 1821.01.29 WH Moore McDonnell, Charles U 1821.02.13 P £109 9/2229 #378 Lord U EJ 1821.01.30 WH Moore Young, Mary U £50 9/2256 #636 Piper, John A P 1817.05.24 1821.01.30 " Thrupp, Henry A 9/2256 #637 Loane, Rowland Walpole A P 1820.01.08 " T Wylde Fitzgerald, Michael " £50 9/2256 #638 Wells, Thomas B DT " " Mountgarrett, Jacob A " Field, William & Hodges, John, bailors C £200 1821.02.23 P £88 9/2230 #390 " " " 1821.01.01 " " Naylor, Richard B £100 " P £51.4.0 9/2230 #391 Loane, Rowland Walpole A P 1819.01.11 " " Thrupp, Henry A " £74 " P 95.3.0 9/2230 #393 Lord, Edward A EJ 1820.09.30 " WH Moore Maum, William B £50 1821.08.23 P one shilling £27.3.0 9/2231 #413 Murray, Robert Lathrop B G 1821.01.31 WH Moore Fryett, Richard William A T Wylde £225 9/2256 #643 Administrator John Howard Dickson, John A P 1820.04.27 " " Palmer, Thomas " £25 P 9/2233 #448 Salter, George B G 1820.10.02 1821.02.02 WH Moore Loane, Rowland Walpole A 1821.02.13 P £177.5.5 9/2229 #377 Manby, John B EX 1816.07.17 1821.02.03 G Cartwright Maum, William B T Wylde £60 9/2256 #648 White, Thomas U D 1820.11.01 1821.02.05 " Pritchard, Price A " £100 1821.03.09 P £45.5.6 9/2231 #412 Ferguson, Joshua A? P 1819.08.03 " " Mountgarrett, Jacob " WH Moore 1821.03.10 P £237 9/2231 #414 Loane, Rowland Walpole A G 1821.02.01 1821.02.09 T Wylde Mountgarrett, Jacob A £300 9/2256 #651 " (Administrator Nathaniel A G " " Gordon, James A WH Moore £2,000 9/2256 #655 Ayres) Loane, Rowland Walpole " EJ " " McKay, David A 9/2256 #656 Dry, Richard BP " " Thrupp, Henry " " 1821.02.23 P £406 9/2230 #392 Clapson, John A D 1821.01.01 " " Reardon, Bartholomew " " £300 1821.02.27 D 9/2230 #395 Loane, Rowland Walpole " AS 1818.11.17 " " Heywood, Henry " WH Moore £7,000 1821.03.06 P £726.16.3 9/2230 #401 " "P 1811.02.10 " Gunning, George Weston " £3,000 1821.03.10 P £416.8.11 9/2231 #413 Heywood, Henry A AS 1818.11.17 1821.02.10 WH Moore Loane, Rowland Walpole A T Wylde £9,000 9/2256 #658 Bacchus, George and Green, " EX 1817.02.03 1821.02.10 G Cartwright Murray, Robert Lathrop B WH Moore 1821.02.21 P 9/2230 #385 Joseph executor, John Howard Kinder, Thomas and Harper, " P 1817.03.10 T Wylde " " " " " 9/2230 #386 William Raine, John " W 1821.02.15 1821.02.15 " Lascelles, Thomas Allen A £200 P £200 £3 9/2229 #382 Gavin, Richard " T 1820.10.31 " WH Moore Gordon, James " T Wylde 1821.02.27 D 9/2230 #396 Howe, George B EJ 1819.01.03 1821.02.16 T Wylde Bent, Andrew B WH Moore " " 9/2230 #397 Nokes, Benjamin B AS 1817.12.29 " WH Moore Hayes, Thomas the younger A T Wylde [1821] NSWKR 15;[1821] NSWSupC 15 1821.03.12 P £462 9/2231 #417 Loane, Rowland Walpole A G 1821.02.01 1821.02.17 T Wylde Davey, Thomas A WH Moore £300 1821.03.12 9/2256 #662 " " " 1821.01.01 " " Jubb, George and Woolley, C £500 9/2256 #663 Edward Harper, Alexander " P 1817.03.26 1821.02.19 " Murray, Robert Lathrop B " " P 9/2230 #387 executor, John Howard Hoffman, James Rix and " G 1819.10.01 " "" " " £300 " P £208 9/2230 #388 Martha Raine, John " P 1820.12.13 1821.02.19 WH Moore Wilson, Robert U £45 9/2256 #665 Morris, Augustus B? " 1820.06.12 " T Wylde Waddle, John A? " 1821.03.22 P £280 £3 9/2232 #422 Loane, Rowland Walpole " " 1819.10.22 1821.02.23 T Wylde McKay, David A £25.12.7 9/2256 #667 Palmer, Thomas A G 1821.02.01 1821.02.27 " Mountgarrett, Jacob " £200 9/2256 #668 Peters, Thomas B AS 1818.03.27 1821.02.28 WH Moore Williams, James B 9/2256 #669 Michell, James, A EJ 1821.02.28 1821.03.01 T Wylde Newby, Thomas B £100 1821.03.07 P £2 9/2230 #403 Administrator, Edward Guest Loane, Rowland Walpole A D 1821.03.01 T Wylde Humphrey, Andelarious A £214.5.10 9/2256 #670 William Henry Cummings, John A CV 1819.06.01 " " Sindrey, Edward " " £200 9/2256 #671 Loane, Rowland Walpole " D 1820.01.01 " Bate, Samuel " Humphrey, Adolarious, garnishee, A £200 1821.03.01 9/2230 #399 Abbott, Charles " A 1820.11.14 " " Nolbrow, Samuel " 1821.03.10 P £10 9/2231 #416 Gunning, George Weston and A FI 1818.09.28 1821.03.02 WH Moore Tims, Martin " 1821.03.08 P £5 £46.6.6 9/2230 #404 his wife, Ann Jane " " " " Loane, Rowland Walpole " T Wylde 1821.03.09 P £240 9/2231 #409

Page 286 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1821

Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, Sum claimed Cause heard Judgment Judgment for Costs SR reference first mentioned party first mentioned party solicitor, case notes signed

Howe, George BP 1821.03.06 " Cawthorne, John Henry A £200 9/2256 #676 Lascelles, Thomas Allen and A, B T 1820.03.21 " " Jemott, William B " £1,000 9/2256 #677 Mary, Administratrix Dennis McCarty Loane, Rowland Walpole A D 1820.01.01 1821.03.09 T Wylde Bate, Samuel A WH Moore previous proceedings 1820.10.19 £200 1821.03.10 P £90.13.6 9/2231 #415 Curr, Edward " W, P 1821.02.17 WH Moore Raine, John " 1821.03.13 P £400 9/2231 #418 " " W 1821.02.07 " Lascelles, Thomas Allen " £129 1821.03.15 P 9/2232 #421 Gillett, Robert A G 1821.03.20 1821.03.22 " Sindrey, Edward A " £200 9/2256 #681 Pickett, Mary B P 1817.08.14 1821.03.23 " Salter, George B £400 9/2256 #682 Loane, Rowland Walpole A G 1821.03.01 1821.03.24 " Mitchell, James A £1,000 9/2256 #683 Campbell, Robert junior " P 1819.04.10 1821.03.27 " Ryan, Michael B 9/2228 #363 " " W 1820.06.21 J Norton Allen, John A T Wylde £400 1821.04.09 P 9/2232 #423 " " " 1819.11.25 " McAvoy, Hugh C " £300 " P 9/2232 #424 Cooper, Robert B " 1821.03.01 " White, Thomas A F Garling " P £991.14.0 9/2232 #426 Street, Thomas A " 1821.02.09 " Topping, William C T Wylde " P £131.10.0 9/2232 #427 Howe, George B P 1817.09.08 1821.05.01 J Norton Jackson, William Collins B F Garling £16 9/2256 #684 Burke Loane, Rowland Walpole A EX 1819.07.16 " " Middleton, Thomas William " £270 9/2256 #685 President of the Bank of P 1820.11.25 1821.05.02 T Wylde Mathew, Daniel Dering A £111 9/2256 #686 New South Wales Loane, Rowland Walpole " W 1821.05.02 J Norton Armytage,Charles B T Wylde 1821.05.03 P £500 9/2232 #428 " "" " " Hankinson, James " " " P £500 9/2232 #429 Josephson, Jacob B" " " Jackson, William Collins " F Garling " P £1,000 9/2232 #430 Burke Campbell, Robert junior A " 1820.04.08 " Solomon, John D T Wylde £500 1821.05.07 P 9/2232 #432 Cooper, Robert B G 1821.05.01 1821.05.05 " " " £250 1821.05.31 P £89 9/2232 #436 Middleton, Thomas William B P 1820.07.12 1821.05.08 " Parmeter, Thomas B £60.11.2 9/2256 #688 Jones, Richard and Riley, A W 1820.09.29 " Davis, Solomon B? F Garling 1821.05.08 P £2,000 9/2232 #433 Edward Howe, George B W 1821.04.02 " Speed, William John B " 1821.05.09 P £200 9/2232 #434 Chisholm, James A G 1821.05.01 1821.05.15 " Larra, James " £200 9/2256 #690 Cooper, Robert BG " 1821.05.16 J Norton Byrne, Andrew B £100 9/2256 #691 Terry, Samuel C W 1816.11.05 T Wylde Larra, James " J Norton Underwood, Joseph, garnsihee, A £1,000 1821.05.26 P £2,441.14. 9/2232 #435

Lord, Simeon C " 1821.05.25 J Norton Larra, James " T Wylde £2,000 1821.06.18 P 9/2232 #438 Nockells, Christopher A AS 1820.08.19 1821.06.19 WH Moore Meredith, George and A [1823]NSWKR7;[1823]NSWSupC 7 £5,000 9/2256 #693 Archer, Joseph Lord, Simeon C G 1821.06.01 " J Norton Scott, Thomas B WH Moore further proceedings 1822.06.04 £2,000 1822.06.01 P £833.4.2 9/2237 #539 Campbell, Robert junior A W 1821.06.19 J Norton Cribb, George B F Garling £1,600 1821.06.20 P 9/2232 #439 Crammond, Walter " " 1821.06.02 Fisk, Arnold A £2,000 1821.06.30 P 9/2232 #441 Henry, Samuel Pindar " T 1821.06.01 1821.07.11 " Eagar, Edward B [1821]NSWKR11; [1821]NSWSupC 11 £10,000 1821.08.24 P £1208.6.6 9/2233 #449 President of the Bank of DC 1821.07.19 T Wylde/ Williams, Francis, Terry, A WH Moore/ [1821] NSWKR 13; [1821]NSWSupC 13 1821.09.21 P £6,000 9/2234 #468 New South Wales F Garling Samuel and the executors of J Norton George Howe " 1821.07.21 T Wylde Frazier, Andrew B £500 9/2256 #699 " P 1818.12.19 " T Wylde Frazier, Andrew " WH Moore [1821] NSWKR 16;[1821] NSWSupC 16 " D 9/2234 #469 Campbell, Robert junior " " 1821.04.23 J Norton Williams, Robert " " 1821.07.26 P 9/2232 #442 Kemp, Anthony Fenn " G 1821.08.06 1821.08.11 " Raine, John A F Garling £500 1822.03.12 P £390 9/2236 #516 executor, Edward Sindrey Underwood, Joseph and A DT 1821.05.01 1821.08.17 Howe, Sarah A? £4,000 1821.09.15 1822.02.21 D 9/2234 #467 Robinson, Michael, executors, George Howe Waples, Robert D " 1819.09.10 " Dunnington, John A? " 1821.08.17 P 9/2232 #443 Campbell, Robert junior DL 1821.08.01 1821.08.20 " Williams, George A £500 9/2256 #702 Eagar, Edward B W 1821.01.22 " Jackson, William Collins B WH Moore 1821.08.23 P £5,000 9/2232 #444 Burke Kemp, Anthony Fenn and A " 1821.06.04 WH Moore Cawthorn, John Henry A 1821.08.23 P 9/2232 #445 Barker, Richard O'Connor, John Richard A " 1821.02.07 " Blyth, William " " " 9/2232 #447 Kemp, Anthony Fenn A G 1821.04.01 1821.08.25 G Cartwright Loane, Rowland Walpole " £400 9/2256 #704 Administrator Edw. Sindrey Crammond, Walter A BC 1821.05.03 1821.08.27 J Norton Hobbs, James; Marsh, Henry A WH Moore £2,000 9/2256 #705 Robbins, Thomas "J " " Drennan, Frederick " " £15,215 1821.09.11 D 9/2233 #457 Elliott, William " CV 1821.08.27 1821.08.28 WH Moore Brown, William and O'Brien " £52.10.0 9/2256 #707 Henry Campbell,Robert junior " W 1821.07.28 J Norton Williams, Robert B T Wylde 1821.08.28 9/2233 #450 Jones, Richard, Riley, Edward A " 1820.12.01 "" " F Garling £1,000 " 9/2233 #451 and Walker, William Chippendall, William " G 1821.08.20 1821.08.29 T Wylde Mathew, Daniel Dering A £200 9/2256 #708

Page 287 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1821

Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, Sum claimed Cause heard Judgment Judgment for Costs SR reference first mentioned party first mentioned party solicitor, case notes signed

President of the Bank of EX 1818.01.01 " Hankinson, James B see 9/2239 #573 £138 12s 9/2256 #710 New South Wales Cooper, Daniel B W 1821.08.27 J Norton Kennedy, Thomas B " 1821.09.04 P 9/2233 #454 Hart, Thomas Henry "" " " Rutherford, Joseph P T Wylde 1821.09.05 P 9/2233 #455 President of the Bank of EX 1818.01.01 1821.09.07 T Wylde Middleton, Thomas William B previous proceedings 9/2256 #710 £138.12.0 1822.11.05 D 9/2239 #573 New South Wales Levey, Solomon " " 1821.09.06 " Jelly, James P F Garling 1821.09.11 P 9/2233 #456 " " " 1821.09.01 1821.09.12 " Pigott, Matthew B? WH Moore £300 1821.09.12 P 9/2233 #459 Underwood, Joseph A " 1821.09.11 "" " " " " 9/2233 #460 Wylde, Thomas " 1820.10.27 1821.09.12 " Gibbons, Matthew A £1,000 9/2257 #714 Hart, Thomas Henry B " 1821.09.10 " Pigott, Matthew B? " 1821.09.13 " 9/2233 #461 Cooper, Daniel " " 1821.08.22 " Chippindall, William A F Garling £800 " " 9/2233 #462 Terry, Samuel C J 1821.05.25 1821.09.14 " Campbell, John Thomas " J Norton £515.11.6 9/2257 #715 Provost Marshal Cooper, Daniel B W 1821.09.15 " Chippindall, William " F Garling £1,600 1821.09.15 " 9/2233 #463 Reibey, Mary C D 1821.09.17 1821.09.20 F Garling Birnie, James " 1822.02.15 P £65.18.4 £38.1.6 9/2236 #503 President of the Bank of P 1819.03.17 1821.09.24 " Eagar, Edward B TD Rowe £361.15.0 9/2257 #717 New South Wales Campbell, Robert junior A W 1821.09.14 " Shutt, Walter C £150 1821.09.26 " 9/2234 #471 Roberts, Peter A W 1821.09.15 WH Moore Roberts, George Frederick A £2,000 1821.09.26 " 9/2234 #470 Charles Jenkins, Robert " " 1820.07.11 J Norton Fenton, William B WH Moore 1821.10.02 " 9/2234 #472 Lord, Edward " " 1821.09.15 WH Moore Whitfield, Joseph A 1821.10.03 " 9/2234 #473 " " " 1821.09.14 " Roberts, George Frederick " " P £619.11.0 9/2234 #474 Charles Winder, Tom White Melville " " 1821.07.04 J Norton Lucas, John A? £140 1821.10.04 P 9/2234 #475 Blackburn, Benjamin " A 1821.10.02 1821.10.11 F Garling Harper, Thomas A J Norton 1821.11.15 P £50 9/2235 #483 Miller, Edward " DL 1821.08.14 1821.10.15 WH Moore Crossley, George B £250 1822.05.15 P £180 9/2236 #504 Underwood, Joseph " G 1821.10.01 1821.10.16 J Norton Watson, Joseph Thomas " WH Moore 120 1821.11.30 P £77.10.0 9/2235 #488 Campbell, Robert junior " W 1820.11.21 WH Moore Cribb, George B 1821.10.17 P 9/2234 #477 Loane, Rowland Walpole A P 1819.07.13 1821.10.18 WH Moore Hall, Edward Smith A F Garling £1,290 " " " 1814.03.29 1821.10.19 Lord, Edward " Lord, Maria, garnishee C 1821.09.15 D 9/2233 #468 Harris, John B " 1816.05.01 1821.10.24 WH Moore Fisk, Arnold " £331.10.5 9/2257 #724 Birch, Thomas William A D 1821.01.01 " " Luttrell, Edward " £500 9/2257 #725 Jenkins, Robert "J 1821.10.29 T Wylde Campbell, John Thomas " J Norton £233 9/2257 #727 Bloodworth, James " P 1820.10.11 " " Croaker, John " £130 1822.01.08 P 9/2235 #493 Macvitie, Thomas " G 1821.10.01 1821.10.30 J Norton Crammond, Walter " Randell, Robert, garnishee A £300 1821.11.20 P £287 £21.11.9 9/2235 #484 Hobbs, James " DC 1821.05.07 " WH Moore " " £1,000 1821.12.10 P £20.19.1 9/2235 #489 Loane, Rowland Walpole " P 1814.09.01 1821.11.01 " Jenkins, Robert " " £534.18.0 9/2257 #730 Turner, James; Lee, William; P?, P, D 1821.10.31 1821.11.02 T Wylde/ Baldwin, Henry B " £100 P £38.10.6 9/2237 #538 Perkins, William and B? TD Rowe Jenkins, David P Blackett, John and Walker, A 1821.11.04 J Norton Apsey, John A £1,200 9/2257 #736 David Cooper, Robert B W 1821.10.31 " Cribb, George B T Wylde £3,000 1821.11.05 P 9/2235 #481 Cartwright, Robert A CV 1817.01.01 1821.11.06 " Redfern, William B F Garling £100 1822.03.12 P £65 £45.3.7 9/2236 #519 Jenkins, Robert A G 1821.11.01 1821.11.08 J Norton Loane, Rowland Walpole A £200 9/2257 #733 Underwood, Joseph " AS 1821.09.05 " " Klensendorlff, William " F Garling 1821.12.17 P £350 9/2235 #490 Levey, Solomon B CC 1821.04.01 " " Badgery, Henry " " 1822.03.15 D 9/2236 #523 Blackett, John and Walker, A DL 1821.11.01 1821.11.10 " Apsey, John " T Wylde £1,200 1822.03.05 P £563.3.3 9/2236 #510 David Jones, Richard and Riley, " " " 1821.11.12 " Allan, David " Oxley, John, garnishee, A £5,000 9/2257 #737 Edward Levey, Solomon B P 1820.10.01 1821.11.14 " Terry, Samuel-Administrator C T Wylde £60 1822.02.26 D 9/2236 #508 John Hutchinson Middleton, Thomas William B W 1819.04.10 " Croaker, John B T Wylde £1,000 1821.11.14 P 9/2235 #482 Cooper, Robert " AS 1821.11.03 1821.11.16 " Williams, Bernard " TD Rowe 1822.02.26 P £436.0.9 9/2236 #507 Lord, Edward A P 1817.05.17 1821.11.21 WH Moore Hogan, Patrick Gould A G Cartwright £145.9.10 9/2257 #741 Palmer, Thomas " G 1821.10.30 " " Lucas, Nathaniel " £400 9/2257 #742 Oxley, John " L 1821.08.25 1821.11.22 J Norton Hall, Edward Smith " 1822.03.15 P £100 9/2236 #522 Holligan, Morris B RV 1820.12.28 1821.11.23 F Garling Cullen, John B J Norton £150 1822.11.19 D 9/2239 #580 Jones, Alexandrina Sinclair A D 1818.03.02 1821.11.23 " Hogan, Patrick Gould A G Cartwright £480 9/2257 #745 Administratrix William Townsend Jones de Mestre, Prosper " W 1821.05.21 J Norton Bostock, Robert B T Wylde 1821.11.27 P £400 9/2235 #485 Cooper, Robert B " 1821.11.27 " Kelly, Richard A " P 9/2235 #486 Loane, Rowland Walpole and A AS 1821.08.18 1821.11.30 T Wylde Sutherland, George A J Norton £300 9/2257 #746 Hervel, Antoine Wilshire, James " G 1821.12.01 1821.12.03 J Norton Loane, Rowland Walpole " T Wylde £1,200 9/2257 #747

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Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, Sum claimed Cause heard Judgment Judgment for Costs SR reference first mentioned party first mentioned party solicitor, case notes signed

Berry, Alexander and " " 1821.12.01 " " Hervel, Antoine " £200 9/2257 #748 Wollstonecraft, Edward Campbell, Robert junior " P 1821.08.29 1821.12.20 " Mathew, Daniel Dering " £58.13.4 9/2257 #749 " " W 1820.04.25 " Foran, Thomas D WH Moore £55 1821.12.20 " 9/2235 #491 Buckles, John William, " AS 1821.04.30 1821.12.26 F Garling Campbell, John and Macleod, A £5,000 9/2257 #750 Bagster, William and Archibald Buchanan, Walter Kemp, Anthony Fenn " AS 1819.08.05 1821.12.28 G Cartwright Mountgarrett, Jacob " £159.12.0 9/2257 #751 " Administrator Ed. Sindrey " G 1821.04.01 " " Hill, Robert Keate " £150 9/2257 #752 Lord, Edward " D 1821.10.30 1821.12.31 WH Moore Meredith, George " G Cartwright £2,000 9/2257 #753

Page 289 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1822

Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, Sum claimed Cause heard Judgment Judgment for Costs SR reference first mentioned party first mentioned party solicitor, case notes signed

Eagar, Edward B W 1821.10.01 F Garling Hall, Edward Smith A J Norton 1822.01.07 P £2,500 9/2235 #492 Middleton, Thomas William " " 1821.06.02 TD Rowe Armytage, Charles B " £200 1822.01.11 P 9/2235 #494 Lord, Edward AT 1822.01.11 WH Moore Campbell, John Thomas A " [1822]NSWKR1;[1822]NSWSupC 1 1822.03.05 D 9/2236 #511 Provost Marshal Williams, George A G 1822.01.18 1822.01.18 TD Rowe Perkins, Richard B £200 9/2257 #756 Cooper, Robert B P 1821.10.13 1822.01.19 J Norton Middleton, Thomas William " £57.12.0 9/2257 #757 " " " 1821.07.12 " " White, Japhet A £52.10.0 9/2257 #758 Todd, Joseph; Morrison, A G 1821.12.31 " " Dalley, Edward Hogard also P? £1,500 9/2257 #759 James; Todd, John Edward known as Bayley Levey, Solomon B W 1821.11.01 " Williams, Robert B F Garling £916 1822.01.23 P 9/2235 #496 Powditch, William " AS 1821.12.14 1822.01.28 " Raine, Thomas A £700 9/2257 #760 Moore, William Henry A D 1822.01.26 " Frazier, Andrew B £90 9/2257 #761 Frazier, Andrew B PN 1818.12.19 1822.01.29 WH Moore Middleton, Thomas William " TD Rowe 1822.09.13 P £543 9/2238 #565 Terry, Samuel C W, D 1818.01.26 J Norton Crabtree, Hugh and Wilson, A WH Moore 1822.02.01 P £125.16.0 9/2235 #497 Ann " " " 1817.11.27 " Hampson, Thomas C " " P £128 9/2235 #498 Hart, Thomas Henry B " 1822.01.16 " Croaker, John B " 1822.02.02 P £100 9/2235 #499 Jones, Richard and Riley, A " 1820.11.27 " Bradley, Samuel A T Wylde 1822.02.05 P £150 9/2235 #500 Edward Cooper, Robert B " 1822.01.22 " Clarkson, Thomas B WH Moore 1822.02.06 P £450 9/2235 #501 Jones, Richard and Riley, A G 1822.02.01 1822.02.07 " Garling, Frederick A £250 1822.09.10 P £57.14.0 9/2238 #561 Edward Cooper, Robert B W 1821.04.06 " Tyndall, Daniel A F Garling 1822.02.08 P 9/2235 #502 Campbell, Robert junior A W, D 1822.02.14 " Horsley, John A WH Moore 1822.02.18 P £1,000 9/2236 #505 Allan, David " P 1819.07.24 1822.02.18 WH Moore Middleton, Thomas William B TD Rowe previous proceedings 1820.02.05 1822.03.12 P £379.5.0 9/2236 #515 Brooks, Richard " G 1822.02.01 1822.02.19 J Norton Western, Thomas A " £200 1822.08.15 P £150.10.4 9/2238 #553 Harper, Thomas B G 1822.02.20 1822.02.22 J Norton Randall, Robert A £500 9/2257 #767 Terry, Samuel C W, D 1819.09.16 " May, Lawrence C " 1822.02.23 P £1,420 9/2236 #506 Winder, Thomas White A W, D 1821.10.11 " Kable, Henry, the elder C F Garling 1822.02.28 P £300 9/2236 #509 Melville Hart, Thomas Henry B P 1821.08.21 " " McDonald, George, Smith, A TD Rowe 1822.03.15 P £128.5.3 9/2237 #526 James, executors Alexander McDonald Jones, John "A 1822.02.28 TD Rowe Corlett, William A J Norton 1822.03.15 P £25 £44.17.0 9/2236 #524 Roberts, Jane A? D 1822.03.01 1822.03.04 " Levey, Solomon B J Norton £300 " P £88.16.6 9/2237 #525 Wilson, David " " 1822.03.01 1822.03.05 " Cribb, George B £150 9/2257 #770 Clarkson, Thomas B P 1814.12.09 " WH Moore Singleton, Benjamin and A TD Rowe £100 P £156 9/2236 #512 William Terry, Samuel C W, D 1819.09.08 J Norton Finnigan, Christopher A WH Moore 1822.03.12 P £300 9/2236 #513 " "" " Finninghan, Christopher " " " P £300 9/2236 #514 Lord, Simeon " G 1821.06.01 " Kent, Thomas A G Cartwright £1,500 1822.03.12 P £316.6.11 9/2236 #518 Lord, Edward A W, D, L 1822.02.08 WH Moore Knopwood, Reverend Robert " F Garling [1821]NSWKR6; NSWSupC 6 £2,000 1822.03.13 P 9/2236 #520 Meredith, John A " 1822.01.01 1822.03. G Cartwright Lord, Edward A WH Moore £250 9/2257 #771 Corbett, Arthur " P 1822.02.16 CH Chambers Ralph, William D? £72 9/2257 #774 Shaughnessy, Thomas B W, D 1822.01.14 TD Rowe Dalton, Francis B J Norton £150 1822.03.25 " 9/2237 #527 McQueen, John A? D " Hill, Robert Keate A " £1,000 1822.04.01 " 9/2237 #528 Stubbs, Joshua " P 1821.11.24 1822.04.10 WH Moore Middleton, Thomas William B see 9/2257 #776 £70 9/2257 #775 " "" " " " Garrigan, Patrick " previous proceedings 9/2257 #775 " 9/2257 #776 Campbell, Robert junior " W 1821.07.02 J Norton Pugh, Samuel and Ann B F Garling £657.5.6 1822.05.07 " 9/2237 #529 " " " 1821.12.21 " Widgett, William D WH Moore £397.11.10 1822.05.07 " 9/2237 #530 " " " 1821.10.01 " Stinson, James B WH Moore " " 9/2237 #531 " " " 1821.11.29 " Lyons, John B " " " 9/2237 #532 " " " 1821.08.10 " Riley, John C F Garling " " 9/2237 #533 " " " 1821.12.21 " Foran, Thomas B? WH Moore " " 9/2237 #534 Middleton, Thomas William B P 1820.07.12 1822.05.09 TD Rowe Parmeter, Thomas " £60.11.2 9/2257 #778 Craft, Samuel C D 1822.10.03 " " Marr, Henry A J Norton £300 1822.06.01 D 9/2237 #541 Hart, Thomas Henry B EJ 1822.04.14 " Couney, Jeffrey U 1822.08.14 9/2238 #552 Cooper, Robert " W 1822.05.10 J Norton Johnston, John A? F Garling 1822.05.11 P 9/2237 #535 Street, Thomas A " 1822.05.15 " Rushton, Richard B WH Moore 1822.05.16 " 9/2237 #536 Levey, Solomon B " 1822.05.16 " Cluer, William " " 1822.05.27 " 9/2237 #537 Wylde, John, executor of A D 1822.05.00 F Garling President of the Bank of A J Norton £500 1822.06.01 P £234.15.2 9/2237 #540 Thomas Wylde New South Wales Wilshire, James " EX, W 1822.02.11 1822.06.03 J Norton Laycock, Samuel " F Garling 1822.08.30 P 9/2238 #555 Lord, Simeon C G 1822.06.01 1822.06.04 " Scott, Thomas " J Norton previous proceedings 1821.06.19 £1,000 1822.06.01 P £833.4.2 9/2237 #539 Murray, Robert Lathrop " EX 1821.05.03 1822.06.05 WH Moore Margetts, John A £93.3.0 9/2257 #783 Levey, Solomon B P 1822.02.06 1822.06.11 J Norton Waples, Robert D WH Moore Waples, Sarah, A, interpleader, £400 1822.08.05 P 9/2237 #548 T D Rowe Campbell, Robert junior A W 1820.06.13 J Norton Rowley, John " F Garling £800 1822.06.13 " 9/2237 #542

Page 290 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1822

Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, Sum claimed Cause heard Judgment Judgment for Costs SR reference first mentioned party first mentioned party solicitor, case notes signed

Campbell, Robert junior A P 1822.03.09 J Norton Matthew, Daniel Deering D WH Moore 1822.06.20 " Campbell, Robert junior A P 1821.07.10 1822.06.28 J Norton Byrne, Andrew B £104.0.1 9/2257 #785 Eagar, Edward B AS 1820.12.01 1822.06.29 TD Rowe Pindar, Samuel Henry A see 9/2233 #449 £5,000 9/2257 #786 Broadbent, Joseph C G 1822.06.01 " " Penson, Charles " J Norton £100 1822.07.02 " 9/2237 #544 Harper, Thomas A? G, W 1822.06.01 " " Williams, Robert B " " 1822.09.17 " 9/2239 #567 Cooper, Robert B EX 1821.07.24 1822.07.04 J Norton Espie, George A £531 9/2257 #790 Levey, Solomon " G 1822.07.01 " " Batman, John " TD Rowe £100 1822.11.26 P £10 9/2240 #583 Cooper, Daniel " W 1822.06.01 WH Moore Pendergrass, Patrick B " 1822.07.13 P 9/2237 #545 Frazier, Andrew " " 1819.11.13 1822.07.15 WH Moore Laurie, John C TD Rowe £70 9/2257 #792 Hart, Thomas Henry " " 1822.01.10 J Norton Woodford, George B? F Garling £300 1822.07.18 " 9/2237 #546 Levey, Solomon " G 1822.07.25 1822.07.25 J Norton Singleton, Benjamin A £100 9/2257 #794 Munro, Hugh A CV 1822.04.21 1822.07.26 " Gordon, Peter " WH Moore 1822.08.15 D 9/2238 #554 Levey, Solomon B W 1822.06.01 " Morgan, Thomas C? " £510.4.0 1822.07.27 P 9/2237 #547 Cape, William A AG 1821.09.26 1822.07.31 TD Rowe Welsh, John A F Garling £1,000 1822.09.10 P £388 9/2238 #560 Underwood, James B W, D 1822.07.30 J Norton Powell, Edward A WH Moore £1,000 1822.08.05 P 9/2238 #549 Ashmore, Samuel A EX 1822.04.29 1822.08.06 " Williams, George " £487.10.0 9/2257 #797 Shroud, Ann A? EJ 1822.05.17 1822.08.14 TD Rowe Dwyer, Michael B? 9/2238 #562 James, Joseph A L 1821.11.07 " " Dillon, Peter A [1822]NSWKR 7;[1822]NSWSupC 7 1822.11.30 D 9/2240 #589 Roberts, Jane A? D 1822.08.01 1822.08.14 TD Rowe Levey, Solomon B J Norton see 9/2237 #525 £300 1822.08.30 P £152.10.11 9/2238 #556 Harper, Thomas " G, W " " " Croaker, John " " £100 1822.09.17 P £150 9/2239 #566 Lord, Simeon CD " " Barker, Richard and Norris, A £500 1822.11.19 P £283.6.8 9/2239 #581 John Campbell, Robert junior A " 1822.05.15 1822.08.21 J Norton Barlow, Edward A £80 9/2257 #804 Douglass, Henry Grattan " L 1822.07.16 " " Druitt, George " " notice of appeal dated and filed 1822.11.26 D 9/2240 #584 1822.12.09 Terry, Samuel C EJ " " Lyons, Cornelius C? 9/2239 #570 Bushel, Paul and Yeoman, C DL 1822.08.01 1822.08.23 TD Rowe Gray, Elizabeth B £100 9/2257 #807 John The King W 1822.08.15 F Garling Slade, George Milner A J Norton £3,300 1822.08.31 P 9/2238 #557 Howe, Sarah " G 1822.08.01 1822.09.02 G Allen Allen, Joseph and Ford, Mary B " £200 9/2257 #809 Day, John, Master Glory A DT 1822.09.03 TD Rowe Griffths, Jonathan, owner A F Garling " 1822.09.12 P one shilling 9/2238 #563 Glory " "D "" " " £100 D 9/2238 #564 Cooper, Robert B W, D 1822.01.21 J Norton Middleton, Thomas William " WH Moore £500 1822.09.04 P 9/2238 #558 Levey, Solomon " " 1822.05.16 "" " " £200 " " 9/2238 #559 Campbell, Robert junior A PN, W 1821.10.20 1822.09.05 " Dwyer, Michael B F Garling £300 1822.12.09 " 9/2240 #593 Wilshire, James A " 1822.09.07 1822.09.07 J Norton Townsey, Alexander A? £200 9/2257 #814 Douglass, Henry Grattan " L " WH Moore Hall, James A F Garling 1824.02.02 P £2 9/2240 #591 Icely, Thomas A " 1822.02.11 1822.09.17 G Allen Stocker, William Thomas " WH Moore £215.18.11 9/2257 #815 Garrigan, Patrick B W, D 1822.07.16 WH Moore Croaker, John B TD Rowe £100 1822.09.17 P 9/2239 #568 Leverton, William A W 1822.06.20 " Pigott, Mathew B? " " " 9/2239 #569 Dry, Richard B P 1821.04.01 1822.09.18 WH Moore Fellows, William U? £100 9/2257 #816 Gibbon, William Forbes A AS 1822.07.12 1822.09.19 " Presnell, William A G Cartwright £200 9/2257 #817 Williams, George " G 1822.08.14 1822.09.20 G Allen Ridge, Richard C £300 9/2257 #818 Mobbs, William C P 1821.11.06 1822.10.02 J Norton Mathew, Daniel Dering A £30 9/2257 #819 Underwood, Joseph and A " 1819.06.24 " " Cawthorn, John Henry " £50 9/2257 #821 Robinson, Michael, executors of George Howe Brodie, James B D 1822.09.27 " Fisher, John B £100 1822.11.19 P £63.15.2 9/2239 #579 Underwood, Joseph A " 1821.11.22 1822.10.07 " Williams, Robert B £53.6.1 9/2257 #827 Garrigan Patrick B W 1822.05.26 " Tully, Phillip " WH Moore 1822.10.07 P 9/2239 #571 Campbell, Robert, junior A P 1820.12.01 1822.10.22 " Naylor, Richard B £60 9/2257 #823 Jenkins, Jemima, executrix A G 1822.08.14 1822.10.25 G Allen Duncan, John A £200 9/2257 #825 Robert Jenkins Underwood, Joseph " PN 1822.07.12 " Dickson, John " £153.15.0 1822.11.29 1824.02.02 D 9/2240 #588 Underwood, Joseph " PN 1822.07.12 1822.10.26 J Norton Noble, William A " notice of appeal dated and filed 1822.11.29 1824.02.02 D 9/2240 #587 1822.12.09 Garrigan, Patrick B W 1822.10.26 J Norton Sargeant, James and Curl, U 1822.11.04 P 9/2239 #572 Thomas Forbes, Francis Ewin A W 1822.06.07 G Allen Matthews, Daniel Dering A J Norton £232 1822.11.06 " 9/2239 #574 Vacher, Thomas and Davies, " D 1815.00.00 1822.11.07 Underwood, Joseph and A £300 1822.11.22 P £167.5.9 9/2239 #582 James Elizabeth, his wife, widow of Walter Lang Stroud, Ann, executrix of " EJ 1819.03.11 " TD Rowe Dwyer, Michael B? " £100 1822.12.16 1823.01.02 P £100 9/2240 #594 John Hawley Stroud Panton, George, postmaster " L 1822.09.27 " J Norton Howe, Robert, SG publisher A F Garling 1822.11.29 P £35 9/2240 #585 Brown, Mary, executrix of A G 1822.07.04 " TD Rowe Nettleton, Joseph B J Norton £100 1822.11.30 P £58.9.5 9/2240 #590 William Warren Cooper, Daniel B W, D 1822.10.31 WH Moore Middleton, Thomas William B TD Rowe £1,200 1822.11.08 P 9/2239 #575

Page 291 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1822

Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, Sum claimed Cause heard Judgment Judgment for Costs SR reference first mentioned party first mentioned party solicitor, case notes signed

Campbell, John Thomas A W 1820.10.30 J Norton " " 1822.11.09 " 9/2239 #576 Mobbs, William C " 1822.10.08 " Mathews, Daniel Dering A WH Moore £100 " " 9/2239 #577 Campbell, Robert junior A " 1822.11.08 1822.11.09 J Norton Ruse, James C £250 9/2257 #833 " " " 1822.11.06 " Tully, Phillip B " " " 9/2239 #578 Levey, Solomon B P 1822.07.18 1822.11.16 " Adcock, Henry B £146.4.7 9/2257 #837 Brown, Mary, executrix of A CV 1822.07.01 TD Rowe Hutchinson, William " J Norton £500 9/2257 #838 William Warren Kemp, Anthony Fenn and A G 1822.11.01 1822.11.25 G Cartwright Headlam, John A £150 9/2257 #840 Barker, Richard Ovens, John " DT 1822.11.09 " F Garling Jamison, Sir John " J Norton 1822.11.29 P one shilling 9/2240 #586 Jacob, Vicars or Vickers " " 1822.10.31 " F Garling Solomon, Joseph and Judah D? £200 9/2257 #841 Harper, Thomas " " 1822.11.01 1822.11.29 TD Rowe Randall, Robert A £500 9/2257 #844 Stone, William A? DL " " " Adcock, Henry B £100 9/2257 #845 Harper, Thomas AG " " J Norton Powell, Edward A £200 9/2257 #846 Crossley, George B J 1812.10.23 1822.12.03 TD Rowe Ruse, James C £137.9.0 9/2257 #848 Bacon, Matthew A W 1822.07.31 1822.12.04 J Norton Ramsay, John " WH Moore 1822.08.08 P £128 9/2238 #551 Forbes, Francis Ewin B EX 1822.02.13 1822.12.05 G Allen Cooper, Robert B J Norton £187.6.1 9/2257 #851 Campbell, Rober junior A W, D 1822.12.06 J Norton Nettleton, Joseph B F Garling £500 1822.12.07 " 9/2240 #592 Davidson, James junior A P 1819.06.09 TD Rowe Kemp, Anthony Fenn, A 9/2257 #853 Administrator Edw. Sindrey de Mestre, Prosper A P 1822.07.31 1822.12.13 G Allen Dunn, John C £100.1.3 9/2257 #855 Sutter, George " " 1822.05.22 1822.12.14 J Norton Thorn, John A £100 9/2257 #856 Wentworth, D'Arcy, trustee " DC 1821.09.29 1822.12.16 WH Moore Howell, Thomas B £220 9/2257 #857 for roads, markets, bridges " "" " " " Holt, Joshua A " 9/2257 #859 Broughton, Bartholomew " DL 1822.11.01 1822.12.00 G Cartwright Luttrelll, Edward " £700 9/2258 #862

Page 292 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1823

Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, Sum claimed Cause heard Judgment Judgment for Costs SR reference first mentioned party first mentioned party solicitor, case notes signed

Marsden, Samuel A Lawson, William and Douglass A [1823]NSWKR 4; [1823] NSWSupC 4 £250 1823.00.00 P Henry Grattan Russel, William " EX 1819.05.21 1823.01.17 J Norton Kemp, Anthony Fenn, " £635.1.1 9/2258 #865 Administrator, Edw. Sindrey Williams, George " PN 1822.09.23 1823.01.25 G Allen Browne, John William " £53.9.6 9/2258 #867 Parr, Thomas William B " 1822.10.02 1823.01.28 " De Arrieta, John Baptist Louis " £68.13.6 9/2258 #868 Forbes, Francis Ewin A " 1822.07.13 1823.01.29 " Hovell, William Hilton " £58.17.2 9/2258 #869 Jenkins, Jemima " " 1822.08.24 " " Weavers, Charles B? $240 9/2258 #870 Cooper, Robert B G 1823.01.29 1823.01.31 Byrne, Andrew B £300 9/2258 #871 Shaughnessy, Thomas B EX 1822.04.18 1823.02.13 Still, Alexander A £50 9/2258 #873 Parr, Thomas William B G 1823.02.14 1823.02.18 " Horsley, John " WH Moore £100 9/2258 #874 Cooper, Robert B " 1823.02.15 1823.02.21 J Norton Ruse, James C £150 9/2258 #878 Underwood, Joseph A PN 1822.10.19 1823.02.21 " Cutter, George A $602 9/2258 #879 " " EX 1822.05.01 1823.02.26 " Hassall, Jonathan " £100 9/2258 #880 Campbell, Robert junior " PN 1822.09.16 1823.02.26 Wilshire, James " £90/$380 9/2258 #881 Josephson, Jacob B " 1822.10.29 1823.03.08 G Allen Peisley, John B £150/$269.40 9/2258 #885 Bayley, Nicholas, Cashier, A " 1822.12.02 1823.03.13 J Norton Williams, George A $480 9/2258 #886 Bank of New South Wales Williams, George " G 1823.02.14 1823.03.14 G Allen Gray, John " £100 9/2258 #887 Bayley, Nicholas, Cashier, " PN 1823.01.11 1823.03.15 J Norton Printz, Herman L B $316.50 9/2258 #888 Bank of New South Wales " " " 1822.12.07 1823.03.18 " Holden, William C $272.80 9/2258 #890 Dickson, John " " 1821.08.27 1823.03.22 WH Moore Heaney, Richard A £75.9.0 9/2258 #891 Salter, George B G 1822.08.31 " " Florance, Thomas " G Cartwright £250 9/2258 #892 Cooper, Daniel " PN 1822.01.12 1823.03.26 G Allen Blackman, William " £100 9/2258 #893 Ogilvie, James A " 1822.03.23 1823.04.15 G Cartwright Hames, John " £70 9/2258 #894 Cooper, Daniel B " 1822.12.10 1823.04.18 G Allen Holden, William B £64.4.0 9/2258 #895 Honnor (Honner), Robert A DC 1822.11.30 1823.05.13 WH Moore Meredith, George A TD Rowe £500 9/2258 #904 Williams, George " G 1823.04.30 1823.05.14 Platt John L " £100 9/2258 #905 Levey, Solomon B PN 1820.09.01 " J Norton Eagar, Edward B £100 9/2258 #906 Berry, Alexander and A G 1823.05.14 " " Munroe, Hugh A Cartwright £500 9/2258 #907 Wollstonecraft, Edward and Ross Jenkins, Jemima " CV 1823.01.26 " " Cooper, Robert B £1,000 9/2258 #908 Aspinall, Richard and " EX 1822.12.10 1823.05.17 WH Moore Cutter, George A CH Chambers $708 9/2258 #910 Browne, Warham Jemmett Rainer, William A? AS 1822.06.24 1823.05.21 TD Rowe Espie, George A Cartwright 9/2258 #912 Barry, Agnes Ellen U " 1819.04.21 " G Cartwright Thrupp, Alfred " WH Moore 9/2258 #913 Brodribb, William Adams B " 1823.01.02 " TD Rowe Lord, Edward " £110 9/2258 #914 Cartwright, George A " 1823.04.01 " " Reardon, Bartholomew " 9/2258 #916 Dignam, Patrick U A 1823.03.30 1823.05.22 " Williams, George " G Allen £100 9/2258 #917 Garling, Frederick A PN 1817.07.21 1823.05.23 Collicott, Thomas A? £33 9/2258 #918 Redfern, William; Jones, B " 1815.10.10 " " Lascelles, Thomas Allen and A Cartwright £752 9/2258 #919 Richard; Hodges, William & Mary Ann, his wife ex'trix of and Ross Margaret, his wife, formerly Dennis McCarty Rea; executors Wm. Mansel Clarkson, Thomas BJ " " Brash, Robert A T. Icely, A, garnishee £60 9/2258 #920 Cooper, Robert " G 1823.04.30 1823.05.24 G Allen McHenry, John " £100 9/2258 #921 Williams, George A PN 1823.03.20 1823.05.27 " Rapsey, Thomas " J Norton $126/£31 10s 9/2258 #922 Mackenzie, Alexander " " 1822.11.27 1823.06.20 J Norton Pendray, William B $1,013.78/ 9/2258 #924 Kenneth, Cashier, Bank of £253 8s 3d New South Wales Kemp, Anthony Fenn and " G 1823.06.24 F Dawes Stocker, William Thomas A? Cartwright £500 9/2258 #926 Barker, Richard and Ross Terry, Samuel C PN 1822.12.26 1823.07.01 J Norton Forbes, Francis Ewin A $552 9/2258 #928 Corney, Matthew A " 1822.03.01 1823.07.15 C'wright/Ross Coulston, Augustus William A? £60 9/2258 #929 Norton, agent Scott, James " " 1822.06.17 " " Kearney, Thomas A £117 9/2258 #930 Cavenagh, Philip " EJ 1823.06.17 1823.07.21 WH Moore Larkin (sic) Larken, Samuel B TD Rowe £60 9/2258 #931 " "" " " " Blaker, George D " £60 9/2258 #932 " "" " " " Armstrong, Robert A " " 9/2258 #933 Levey, Solomon B G 1823.07.25 1823.07.28 J Norton Carter, William B £200 9/2258 #935 Jenkins, Jemima A PN 1823.01.01 1823.08.01 " Williams, George A $324.90/£81 9/2258 #938 Levey, Solomon B " 1822.02.08 1823.08.06 " White, George U? £133.7.3 9/2258 #940 " " G 1823.04.30 1823.08.15 WH Moore Lowe, Robert A J Norton £300 9/2258 #942 " "" " " " Brown, David A " 9/2258 #943 Antill, Henry Colden;Wills, A PN 1821.05.01 " G Allen McKenna, Thomas B J Norton £70 9/2258 #945 Thomas, extrs. Sarah Howe

Page 293 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1823

Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, Sum claimed Cause heard Judgment Judgment for Costs SR reference first mentioned party first mentioned party solicitor, case notes signed

Gregory, Robert A AS 1823.10.01 1823.08.16 C'wright/Ross Reardon, Bartholomew A £200 9/2258 #948 Norton, agent Gordon, Alexander "" " " " Rose, David " £1,000 9/2258 #949 McDonald, Alexander " DL " " Shout, John " £200 9/2258 #950 Martin, George U" " " " Reardon, Bartholomew " £500 9/2258 #951 Jacob, Vickers A EX 1823.05.10 " J Norton Read, George Frederick and " £100 9/2258 #954 Bethune, Walter Angus Solomon, Joseph and Judah D? G 1823.08.14 1823.08.18 C'wright/Ross Roadknight, Thomas " £300 9/2258 #955 Norton, agent Bridge, James A PN 1820.10.26 " " Thornton, Nathaniel " £66.19.6 9/2258 #956 Murray, Robert Lathrop B EX 1822.01.02 " "" " £1,000 9/2258 #957 Samuel, Phineas Moses A " 1820.12.24 " C'wright/Ross Corney, Robert " £1939.18.2 9/2258 #958 Riseley, John " " 1823.03.26 " " Reardon, Bartholomew " £100 9/2258 #959 Levey, Solomon B PN 1822.11.18 " WH Moore Wiseman, Solomon B $1,672.50 9/2258 #961 Solomon, Joseph and Judah D? DL 1823.08.01 1823.08.20 C'wright/Ross Clarke, Joseph C? £200 9/2258 #962 Norton, agent Munro, Hugh A G 1823.10.01 1823.08.20 C'wright/Ross Cummings, John the younger A £600 9/2258 #963 Rose, Thomas;Walker, Chas. B PN 1819.10.05 1823.08.25 J Norton Lucas, Nathaniel " £590 9/2258 #967 ex'rs Robert Brady Hazard Colvin, David & James; A J 1822.00.00 " " Ritchie, Thomas " £7,400 9/2258 #968 Bazett, Richard Campbell; Corser, John; Colvin, Alexrd. junior Robert Campbell junior " G 1823.08.15 " " Lord, Simeon C £2,000 9/2258 #969 Kelly, David D " 1823.08.01 1823.09.13 TD Rowe Hervill, Anthonio A £100 9/2258 #976 Connell, John A PN 1822.03.20 1823.10.10 G Allen Lord, Simeon C £300 9/2258 #995 Raine, Thomas and Ramsay, A G 1823.08.14 1823.10.11 WH Moore Laurie, John C £200 9/2258 #979 David Solomon, John D " 1823.10.09 " G Allen Duncan, William A £300 9/2258 #980 Bell, William D BC 1821.03.01 1823.10.13 " Pitt, Elizabeth A £500 9/2258 #981 Loane, Rowland Walpole A G 1823.10.15 C'wright/Ross Peevor, John " £300 9/2258 #984 Aspinall, Richard and A EX 1823.06.11 1823.10.17 WH Moore Macleod, Alexander A $573 9/2258 #987 Browne, Warham Jemmott Raine, Thomas " PN 1821.05.24 1823.10.18 Macleod, Archibald " £111.7.0 9/2258 #989 Levey, Solomon B " 1821.10.13 1823.11.05 J Norton Kent, John R " £219.2.3 9/2258 #992 Harper, Thomas A? G 1823.10.01 1823.11.08 TD Rowe Underwood, William D? J Norton £200 9/2258 #994 Johns, Samuel C T 1823.06.02 1823.11.18 J Norton Allen, John " £150 9/2258 #997 Dwyer, Michael B? " 1823.01.00 1823.11.21 TD Rowe Garrigan, Patrick B " £100 9/2258 #999 Lord, Simeon C J 1823.11.20 1823.11.26 " Welsh, John and Heylin, A £500 9/2258 #1001 Harper, Thomas A? G 1823.10.01 1823.11.08 TD Rowe Underwood, William D? J Norton £200 9/2258 #994 Johns, Samuel C T 1823.06.02 1823.11.18 J Norton Allen, John " £150 9/2258 #997 Dwyer, Michael B? " 1823.01.00 1823.11.21 TD Rowe Garrigan, Patrick B " £100 9/2258 #999 Lord, Simeon C J 1823.11.20 1823.11.26 " Welsh, John and Heylin, A £500 9/2258 #1001

Page 294 SUPREME COURT OF CIVIL JURISDICTION Causes commenced and judgements For the year 1824

Plaintiff and capacity of Status Cause Cause arose Action filed Solicitor Defendant and capacity of Status Solicitor Further parties, status, Sum claimed Cause heard Judgment Judgment for Costs SR reference first mentioned party first mentioned party solicitor, case notes signed

Dickson, John A PN 1822.10.03 1824.01.06 WH Moore Printz, Harman Lucas B £95.7.6 1824.01.06 1824.01.20 D 9/2258 #883 Williams, George " G 1823.01.15 1824.01.17 G Allen Lane, Elijah " £100 9/2258 #1002 Levey, Solomon B PN 1823.08.15 1824.01.19 J Norton Garrigan, Patrick " $300/£75 9/2258 #1003 de Mestre, Prosper A " 1823.06.13 1824.01.23 G Allen Pennington, Joseph A $528.2 £200 9/2258 #1004 Levey, Solomon B " 1823.11.13 1824.03.25 TD Rowe Campbell, John " J Norton £200 9/2258 #1006 Raine, Thomas and Ramsay, A " 1823.12.17 " WH Moore Middleton, Thomas William B $250 9/2258 #1007 David Wilson, Christopher U G 1824.03.23 1824.03.27 G Allen D'Arrieta, John Baptiste A CH Chambers £250 9/2258 #1009 Lehemas Josephson, Jacob B PN 1824.01.01 1824.03.29 J Norton Child, Thomas Bidwell B $291.20 9/2258 #1011 Cooper, Robert " G 1824.02.23 1824.03.30 WH Moore Gibbons, Matthew A? G Allen £100 9/2258 #1012 Hill, John U EX 1821.07.27 1824.04.20 TD Rowe Hawkins, Thomas A £120 9/2258 #1016 Millage, Richard " CC 1823.01.01 " " Arkell, Thomas " £1,000 9/2258 #1017 de Mestre, Prosper A PN 1824.04.05 1824.05.12 G Allen Cribb, George B £62.10.0 9/2258 #1020 Farmer, William and Crichton, A 1824.05.14 TD Rowe Underwood, Joseph A £540.6.0 9/2258 #1021 Benjamin Thomas Gale, James the elder and A EX 1820.06.28 1824.05.15 " " " J Norton 9/2258 #1023 younger Murphy, Ellen C 1824.05.15 " President of the Bank of A 1824.07.24 P £500 9/2258 #1024 New South Wales Cape, William A TC 1821.11.20 Foreman, John " SR7/3411

Page 295 APPENDIX B

The following is a transcription of the 1817 Court Rules handwritten by Field and signed by Governor Macquarie to signify his approval. The only copy that exists is located in TNA (PRO) Reel 114 CO 201/126. Judge Field wrote the rules in two columns on each page. Some text is lost and where possible I have attempted replacement. Rule 1 commences page 25, Rule 34 commences page 29 and is continued on page 21 and is followed on the latter page until completion. In deciphering the rules, I gained some assistance from the 1820 Rules referred to below.

The 1817 Rules were followed by a Table of Fees of the Supreme Court in the Ordinary Jurisdiction. They have not been reproduced as they were included with little variation in Rules of Practice and Table of Fees in the Supreme Court of Civil and Ecclesiastical Jurisdiction for the Territory of New South Wales and its dependencies 31st May 1820 (Sydney: Printed by G. Howe, Government Printer, 1820) – TNA (PRO) Reel 114 CO 201/126 33.

The 1820 Rules were settled by Field and published after Eagar’s attack that has been discussed in Chapter Five. Immediately after Field partly conceded to Eagar’s demand for a rule change to allow litigants to represent themselves, a Regula Generalis appeared in the Sydney Gazette 27 November 1819 1b.

296 Rules of the Supreme Court in the Ordinary or Common Law Jurisdiction

1. That the Pleadings in every suit shall be signed by one of the attornies of the Court; and that every suit in the said Court shall be conducted at the Trial by one of the said attornies.

2. That every plaint filed in Term time shall be entitled of the same Term in which the same is filed and if filed in vacation shall be entitled of the Term preceding the vacation when it is filed.

3. That the Plaint to be filed in the Judge’s office shall stand for and be in the nature of a Declaration of the Party’s cause of action,: and that no count shall be inserted therein to which the evidence afterwards to be given at the Trial may not apply:- And that in all plaints for breaking and entering the Plaintiff’s Close, to prevent the necessity of any new assignment the place where the trespass was committed shall be mentioned precisely and that the Defendant may plead as many different matters as he shall be advised without applying to the Court for leave.

4. That there be four Terms or sittings in each year and that the same be fixed as follows viz.,

The first Term to commence 15th Feby. and end 15th March.

Second Term to commence first May and end 31st May.

Third Term to commence 15th Augst and end 15th Sept.

Fourth Term to commence 1st Nov. and end 31st Nov.

and if any of the above days shall fall upon a Sunday, the term shall commence the day following or end on the day preceding.

297 5. That every Plaintiff upon entering application for any suit shall file a short note or praecipe of the parties and nature of the action and of the writ required thereupon.

6. That the office be open daily both during Term time and in vacation for the filing of Plaints and the issue of Process and that all summonses, writs, praecipes, rules, orders or other mandatory process which shall issue in Term time be taken or dated on the first day of the term in which the same shall issue and if the same shall issue in vacation then on the last day of the preceding term and shall in every case (excepting the writ of summons) be made returnable on any day in term time.

7. That in all writs, summonses, or other process to compel the appearance of any Deft. there shall be such time between the issue and return of such writs as (respect being had to the distance or local circumstances of the place where this is to be executed) may be required for the execution thereof, and as the Court or the Judge shall order.

8. That all persons served with summonses shall accordingly attend by an attorney of the Court at the Judge’s office and duly enter there an appearance thereto, as of the next Term, if the summons be returnable in vacation, and (upon affidavit filed on behalf of the Plaintiff of the amount of the debt or demand) give security to abide the Judgment of the Court as hereinafter mentioned (provided that if they reside within the town of Sydney or within eight miles thereof they shall have 3 days after return day of the summons. If they reside within the distance of the Townships districts of Parramatta and Liverpool 4 days. If they reside within the distance of the Townships or Districts of Wilberforce, Windsor, Richmond and Pitt Town eights days. If they reside within distance of the Districts of Castlereagh, Portland-head, Appin, Airds, Minto, and Bringelly, Ten days, If they reside at a still greater distance within the Territory of New

298 South Wales fourteen days, and in Van Diemen’s Land Twentyone days and provided the Judge or the Court shall have made no special or particular Order in that respect

9. That if upon search the Defendant shall be found not to have entered his appearance to the Summons the Plaintiff shall be at liberty (upon the Summons being returned as served by the Provost Marshal and affidavit made before the Judge of the amount of the debt or demand) to sue out a capias commanding the Provost Marshal to take the Deft. and bring him before the said Court to give security to abide the Judgment of the said Court.

10. That when any Defendant shall appear to the Summons of the Court when his body shall be brought before said Court upon arrest, therefore shall not be delivered to bail unless he shall have given notice in writing to the Plaintiff or his attorney of such person as he proposes to put in as bail as aforesaid together with their additions and place of abode and the day on which the Defendant’s appearance is to be entered and such Bail are to be put in at least two days before the day mentioned for putting in the same, and shall also produce the persons of such Bail as aforesaid, and that no rule of Court to bring up such prisoner to be bailed be granted untill affidavit made of the due service on the Plaintiff or his attorney and that the same rule and order be taken as to proceeding in relation to such Bail as is directed in cases where the Defendant is not in custody.

11. That every Bail-piece, taken and acknowledged in the Court or before the Judge shall be fairly drawn and engrossed on parchment or paper in the form following –

“Sydney New South Summons (or Capias)

Wales

“against A. B. of ------, at the suit of C.D. for £----upon promises returnable

299 “on the ---day of ---

“Bail as by order £---

“Bail E.F. of---

“ G.H. of ---

“ Each of the Bail in £---

“Taken and acknowledged L.K. Attorney for defendants

on the --- day of ----before

And that in taking all recognizances from Bail to the action, these words

or words to the like effect, shall be used :-

“You, and each of you, acknowledge

“to the Plaintiff (naming same) the

“sum of £---on condition that --- and ---

“That you do jointly and severally undertake the Defendant (naming him)

“ shall abide and perform the final order of this Court, or such final order and Judgment as shall be given upon any appeal to be brought in this cause, or to surrender him to the said Court to be charged in execution till the said Judgment shall be satisfied.

12. That as soon as the Defendant has appeared and (if required by the Plaintiff) given security to abide the judgment of the Court, or shall be in custody for want of finding such security, the Plaintiff may, upon lodging with the Judge’s Clerk a copy of the complaint filed in the nature of a declaration, have in Term time a rule of Court for the Defendant to Plead in four days endorsed thereon for the purpose of being served upon the Defendant or his attorney, and for want of such plea the Plaintiff shall be entitled to record the Defendant’s default and thereupon the Plaintiff shall be at liberty, upon giving eight days notice to the Defendant or his attorney, to set down the cause for the Court to enquire what damage the Plaintiff has sustained and upon the

300 examination of the matter and cause of complaint upon the oath or oaths of any Witness or Witnesses to give Judgment and sentence.

13. That if the Plaintiff shall omit or neglect to file a copy of his Plaint in the nature of a Declaration and give a rule to plead thereon in the Term in which the writ of Capias is made returnable (provided such writ of Capias shall be returned four days before the end of the term), or in, or of, which any Defendant or Defendants shall have entered appearance to any Writ of Summons (provided such appearance shall be completed four days previous to the end of the term) then the said Defendant shall be entitled to take an office copy of the Plaint and plead to the matter of such plaint, and entitled to a four day rule for the Plaintiff to reply to such plea, and for want of such replication the Defendant be entitled to a Judgment of non pros to the said action.

14. That in all cases after the Plaintiff shall have delivered a copy of his Plaint in the nature of a Declaration, with a rule to plead endorsed thereon, or of [?] which the defendant shall have taken an office copy of the said plaint and pleaded thereto unless the Plaintiff shall proceed to trial or final judgment thereupon within two terms next after such plaint or declaration delivered, office copy taken, and the Defendant has pleaded thereto (if by the leave [?] of the court the Plaintiff can so proceed [?] of which two terms the term wherein such plaint or declaration delivered or pleaded shall be taken to be one) or in case of a surrender in discharge of bail after the said plaint or declaration delivered or office copy taken and plea pleaded, unless the Plaintiff shall proceed to trial or final judgment thereupon within two terms next after such surrender and due notice thereof (if by….[illegible] the course of the court the Plaintiff can so proceed) of which two terms the term wherein such surrender shall be made shall be taken to be one, the defendant, if a prisoner, shall be discharged out of custody by writ of supersedeas, upon filing a common appearance, provided upon notice given to the Plaintiff”s attorney good cause be not shown to the contrary – and in all cases where such trial shall be had or

301 final judgment obtained against any prisoner unless the Plaintiff shall cause such prisoner to be charged in execution within two terms next after such trial shall be had of final judgment obtained (of which two terms the term in which such trial shall be had or final judgment obtained shall be taken to be one ) in case no writ of injunction be obtained for stay of proceedings, and if any writ of injunction be obtained then within two terms next after the dissolution of such injunction or in case of a surrender in to discharge of bail after trial had or final judgment obtained, unless the Plaintiff shall cause the defendant to be charged in execution within two terms next after such surrender and due notice thereof (of which two terms the term wherein such surrender shall be made shall be taken to be one), in case no injunction shall be obtained for stay of proceeding and (if any injunction obtained) then within two terms next after dissolution including the term of dissolution the prisoner shall be discharged out of custody by supersedeas on entering a common appearance, provided upon notice given to the Plaintiff’s attorney good cause be not shown to the contrary.

15. That every summons or writ be after execution, duly returned by the provost marshal on the return day mentioned therein into the judge’s office or in open court, if in term time, to be filed in the said court and if the same shall not be returned on such day the party shall be entitled to compel the provost marshal to return the same in two days after he shall have been served with a rule for that purpose.

16. That when a Writ of Capias shall be directed to the Provost Marshal authorising him to arrest the Defendant and the Defendant shall be arrested and continue in custody in pursuance of and under such Writ, and be desirous of giving security to the Court as before mentioned he shall have the power to do so; and when such Bail shall have been put in and completed, he shall be entitled to an order of discharge; but in the case of no such Bail having been put in and completed before the return of the said Writ if the Provost Marshal

302 shall return corpus therein and the defendant shall not on the return day of such writ have put in Bail, or the Provost Marshal shall not have the Defendant in custody in one of the gaols of the territory he shall be chargeable as for an escape of the Defendant but if such Bail shall have been put in on such return day without due notice thereof having been previously given to the Plaintiff’s attorney the Plaintiff’s attorney shall be entitled to a four day rule to bring into court the body of the Defendant, and if the Defendant shall not have put in and completed the said Bail in manner before stated before the expiration of such rule, or the Provost Marshal shall not have the Defendant in custody in one of the gaols of the territory, he shall be chargeable not only as for an escape but as for a contempt of court.

17. That when any Defendant shall be in the custody of the Provost Marshal by virtue of any mesne process for want of Bail, the Plaintiff shall be at liberty to serve him with a copy of the plaint and a rule to plead thereon at any time after the writ is returned; and if the Defendant shall neglect to plead thereto within four days after such service, the Plaintiff upon affidavit of such service shall be at liberty to set down his cause to be heard in the same manner as is directed by the twelfth rule.

18. That if any Defendant be in the actual custody of the Provost Marshal he may be proceeded against at the suit of any other person by such other person filing a plaint against such Defendant, describing him therein as a prisoner of the court, and serving him with a copy of such plaint and a rule to appear and plead and the Defendant shall enter his appearance and plead thereto within four days after such service but if the plaint be not filed and the copy delivered four days exclusively before the end of the term, or be filed and delivered in vacation the defendant may imparl until the next term.

19. That no plaint shall be a sufficient cause for detaining any prisoner unless an affidavit of the amount of the plaintiff’s debt or demand shall be first made 303 and filed before the Judge, and the sum sworn so endorsed on such plaints before the same or the copy thereof is served on the prisoner.

20. That the service of all rules, notices and process whatever, on the gaoler or turnkey of the gaol, where any Defendant be imprisoned shall be deemed good service on such Defendant, and he shall take notice of the same accordingly and be answerable for all defaults by him committed and that every gaoler turnkey or other person who shall have the charge and custody of such Defendant do immediately upon such receipt of such rule, order, notice or process, deliver and explain the same to such Defendant.

21. That where any Defendant shall appear, or where the Plaintiff shall have delivered his pleading in the cause answer to any plea rejoinder or any other pleading of the Defendant to the Judge’s Clerk and shall have entered and also served the Defendant or his attorney with a rule to put in his plea, rejoinder or other pleading as the state of the case may require, before the fourth last day of any term, the Defendant shall put in such pleading as the state of the cause may require, within such time and will not be entitled to any other time to plead (except otherwise ordered by the Court) and if such appearance be not entered or such pleading be not delivered as aforesaid or such rules respectively be not served before the fourth day (to be computed from the end of the term) then the Defendant shall be entitled to an imparlance of course to the first day of the next term.

22. That if either party do in his pleadings make prosert in Curiam of any deed or writing and the other party shall pray oyer thereof he shall have as many days to put in his plea or other pleading, after oyer shall have been granted to him (which shall be granted without motion), as he had to plead at the time oyer was demanded and that in actions for Debt, Covenant for payment of money or assumpsit, where either party shall demand particulars of the sum or sums claimed in set-offs (which demand shall be enforced by the Judge’s order) he 304 shall have as many days to put in his pleading after particulars given as he had at the time of demanding particulars, and shall at the end of such time deliver such pleading as the case may require without any further rule or notice whatever.

23. That no plea in abatement, plea of tender or any dilatory plea, be received after an imparlance, except the defendant be entitled to an imparlance of course; and in such case that the plea be received on the continuance day, and that no dilatory plea be received without affidavit first made before the Court or Judge of the truth thereof, and if so that the Plaintiff be at liberty to proceed as if the Defendant had put in no plea.

24. That except upon a plea of tender no money be paid into Court without the leave thereof or of the Judge first had and obtained. That whenever a tender shall be pleaded or leave obtained to pay money into Court, the money shall be deposited with the Judge’s Clerk who shall write a receipt on the back of the defendant’s plea for the same, and shall pay it to the Plaintiff or his attorney on demand which Plaintiff or attorney shall likewise write a receipt on the back of the said plea and if the Plaintiff or his attorney shall accept the same in full satisfaction and discharge of his suit he shall by his said receipt acknowledge that the same was so received and where the money is paid into court under a plea of tender and is taken out by the Plaintiff in full satisfaction of his demand the Plaintiff shall pay to the Defendant his costs and where the money is paid into Court on the general issue only and the Plaintiff shall take out the same in full satisfaction of his demand the Defendant shall pay to the Plaintiff his costs to the time of paying the money into Court, and in both cases on payment of costs as aforesaid all further proceedings in the suit shall be stayed - : and if the Plaintiff after the money so paid into Court as aforesaid shall proceed in his action (otherwise than for costs) and shall not at the trial of the Court prove to the satisfaction of the Court that more money was due to

305 him than the money so paid into Court then judgment shall be entered for the Defendant with costs.

25. That if the Plaintiff take issue on any fact in any part of the pleadings of the Defendant he may immediately join the issue and whenever issue is joined in any cause the Plaintiff may set down his cause for trial and proceed to trial on giving eight days notice to the Defendant’s attorney but if the Plaintiff shall omit for one clear term to proceeding to trial, after issue joined, the Defendant shall be at liberty to set down the cause by proviso, giving the like notice of trial to the Plaintiff’s attorney.

26. That after the trial of any action, tried either in term or the sittings after term, the Plaintiff’s attorney shall in the event of judgment or sentence being given for the Plaintiff, or the Defendant’s attorney, in the event of judgment or sentence given for the Defendant, give a four day rule for the affirmance of the said judgment or sentence before the Plaintiff or Defendant shall be at liberty to tax his costs, and thereon sign a final judgment, or an affirmance of the said judgment or sentence in such action and if the said action shall have been tried in term four days previous to the end of term, in which such action shall have been tried, and the Plaintiff or Defendant ( as the case may happen) shall be dissatisfied with the judgment or sentence given, and shall wish to move for or apply to the Court for a new trial or to vacate the said judgment or sentence, such application or motion shall be made within the term in which such action shall have been tried, and within the four day rule given for the affirmance thereof: but if the action shall have been tried at any subsequent period of the said term, or at the sittings after the said term, by which the parties to the action (the Plaintiff or the Defendant) shall be precluded the opportunity of making any such motion or application, and shall be desirous of making the same, the Plaintiff or Defendant as the case may be may at any time within the four day rule given for the affirmance of the judgment or sentence apply to the Judge for discussions to suspend the affirmance of the

306 said judgment or sentence and … hearing at the said summons the Judge may in his discretion on good cause given or shown suspend the affirmance of the said judgment or sentence and the signing of a final judgment thereon, until after the first day of the then next succeeding term, and the Plaintiff or Defendant (as the case may be) shall and may on such first day of the succeeding term make such motion or application.

27. That before any Judgment or sentence shall be given in Ejectment against the Casual Ejector, an affidavit shall be made on the behalf of the Lessor of the Plaintiff in such Ejectment that the Tenant or Tenants in possession of the premises, sought to be recovered or the wife of any such Tenant or Tenants respectively has or have been served with a true copy of the plaint filed in such action of Ejectment and a notice of the intent thereof and of the day or time limited for making an appearance thereto has been read to him her or them previous to the day limited for making or entering such appearance and the Lessor of the Plaintiff shall thereupon move for and obtain a four day rule for judgment or sentence against the Casual Ejector, if the premises be within three miles of the town of Sydney; a six day rule if they are within the distance of the township or districts of Parramatta or Liverpool; an eight day rule if they lie within the townships or districts of Wilberforce, Windsor, Richmond, and Pitt Town and a ten day rule if they lie at a greater distance within the territory of New South Wales; and that no judgment or sentence against the said Casual Ejector shall be given or signed until the expiration of the said respective rules, and if at the time the said application or motion shall be made for Judgment or sentence against the Casual Ejector any attorney of the court shall have entered in a book (to be kept at the office of the judge for such purpose) that he has been retained by any person or persons whomsoever to defend the said Ejectment by entering an appearance and entering into the usual consent rule for confessing Lease, Entry and Ouster, until four days after such attorney shall have been served with a copy of the rule for Judgment or sentence against the said Casual Ejector but if no person shall within the said four days enter into the usual consent rule to be made Defendant instead of the 307 said Casual Ejector, and enter an appearance thereto accordingly, and to confess at the trial lease, entry and ouster, and also plead to the Ejectment, Judgment or sentence shall be given for the Plaintiff in the said Ejectment; and he shall be thereupon entitled to his Writ of possession – and that upon entering into such rule and filing such appearance and plea the Plaintiff shall and may make up an issue and proceed to the trial of the said Ejectment on giving notice as before mentioned.

28. That no two writs of Execution to issue at the same time (except upon special order of the Court) and that no Writ of Execution against the Effects do issue in any cause in which a Capias ad Satisfaciendum shall have first issued unless non est inventus shall have been returned to such capias.

29. That every writ of Capias ad Satisfaciendum, fieri facias, and venditioni Exponas, be indorsed or underwritten by the party or his attorney suing out the same with the sum to which the real debt shall amount, before the said writ be delivered to the Provost Marshal.

30. That the Provost Marshal do make out and enter in a book to be kept by him for that purpose a true inventory of all goods seized by him by virtue of any process of this court and do deliver a true copy of every such inventory subscribed with his name to the party or his attorney requiring the same and paying the fee allowed.

31. That where any costs shall be awarded, such costs shall be taxed by the Judge upon notice given by the party requiring the same to the opposite party to be present, if he think fit, and that the Judge shall give a certificate of such taxed costs which costs and no more shall be added to the debt or damages awarded by the Judgment and such writ or writs of execution may issue thereupon as may be required to enforce the judgment.

308

32. That the Bail and each of them shall be liable for the amount of the Judgment recovered, provided it do not exceed the amount of the sum acknowledged in their recognizance of bail.

33. That copies of all subpoenae (shewing at the same time the original to the party required to attend) be served by the party suing them or his attorney and not by the Provost Marshal as heretofore, and that no more than four names shall be inserted in one subpoena.

34. That no attorney or party shall be compellable to pay the Provost Marshal’s bill of costs until such bill shall have been taxed by the Judge who shall examine and correct the same and certify on the bill the amount allowed and affix his signature thereto;- and that all notices of the sale of Houses Lands or Goods by the Provost Marshal be inserted only once in the Sydney or Hobart Town Gazettes, (as the situation of the property may be) and that on the day week subsequent to the publication of such notice the property be publicly sold if at Sydney or Hobart Town or within Ten Miles of each or if elsewhere on the day fortnight after such notice, and that one written Copy of the printed Notice of Sale be put upon the door or some conspicuous part of the house or other premises to be sold and another in the Market place of the Town at or near which the sale is to take place and that no fee be charged or received by the Provost Marshal or by his bailiffs or officers, except such is specified in the Table of fees: and that on the first day of every term the Provost Marshal do personally deliver in open court and the Provost Marshal of Van Dieman’s Land do transcribe a statement in writing signed by himself specifying what has been done in execution of all writs of fieri facias or venditioni Exponas since the date of his last return.

309 35. That any Defendant imprisoned by the process of the Court may be brought before the Judge or Judge Advocate of Van Dieman’s Land (if the defendant shall be in the Custody of the Provost Marshal of that Island) by a rule for that purpose either in term time or in vacation and upon making affidavits to the satisfaction of the Judge or Judge Advocate of Van Dieman’s Land that he hath not any estate or effects sufficient to maintain himself or herself with necessaries in prison, the Judge or Judge Advocate of Van Diemen’s Land may issue an order in writing signed with his name directing such Plaintiff to pay or to cause to be paid such allowance as the Judge or Judge Advocate shall think reasonable, weekly and every week to such Defendant during his continuance in gaol at the suit of such Plaintiff and if such Plaintiff after such order has been duly served upon him shall make default in the payment of such allowance to the said Defendant for the space of one week such Defendant shall be discharged out of custody at the suit of the said Plaintiff upon application made to the Court or to the Judge and verifying the fact by affidavit and giving reasonable notice to the Plaintiff of his intention to apply for his discharge.

In the Equity and Ecclesiastical Jurisdiction

That the practice shall conform as near as may be to that of the High Court of Chancery and the Prerogative Court of the Archbishop of Canterbury.

Notes:-

For an explanation of the writs of fieri facias (fi fa) and capias ad satisfaciendum (ca sa) see Bruce Kercher, Debt, Seduction and other disasters (Sydney: The Federation Press, 1996) 181. For an explanation of the writ venditioni exponas see Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown (London: Joseph Butterworth and Son, 1820) 307.

310

The term profert in curiam refers to the production of a deed in court.

Imparl meant to obtain time to attempt negotiation of a settlement. Imparlance meant an extension allowed to obtain a response in pleading.

311 BIBLIOGRAPHY

Archival Sources AUSTRALIA

1 – NATIONAL LIBRARY OF AUSTRALIA, CANBERRA

FRM F 738 Ms 1450 Barron Field correspondence 2 – STATE RECORDS NEW SOUTH WALES, KINGSWOOD NRS 897, main series of letters received, 1788–1826 *ARK

NRS 898, Special bundles, 1794–1825 *ARK NRS 899, Memorials to the Governor, 1810–26 * ARK NRS 900, Petitions to the Governor from convicts for mitigations of sentences, 1810–26 *ARK NRS 901, Copies of letters sent and received, mainly within the Colony, or ‘Document Books Nos. 1–3, c. 1817–27 *ARK NRS 903, Lists of memorials, letters etc. received, 1822–25 *ARK NRS 938, Copies of letters sent and received, mainly within the colony, or ‘Document Books’ Nos. 1–3, c. 1817–Oct. 1827 Supreme Court of Civil Judicature 1814–1823

13719 – Cause papers 9/2251–9/2258 – Judgment rolls 9/2211–9/2240 13724 – Equity proceedings 1 January 1817 – 31 December 1824 3 – MITCHELL LIBRARY, STATE LIBRARY OF NEW SOUTH WALES, SYDNEY

A772–3: Macquarie Papers (Governor), 1762–1824 A1992–A1999: Reverend Samuel Marsden papers, 1794–1837 C244: Marsden papers 1793–1928

Ap 26: Papers relating to Captain John Piper, 31 March 1810–10 April 1823 CYA256: Piper papers FM4/1626: Brisbane Papers 1812–1837 (Microfilm of the Nan Kivell Collection)

312 Mss 477/1 George Allen journal

GREAT BRITAIN

1 – BRITISH NATIONAL ARCHIVES: PUBLIC RECORDS OFFICE, KEW CO 201: Colonial Office: New South Wales Original Correspondence, 1783–1825 CO 91: Colonial Office: Gibraltar Original Correspondence

CO 92: Colonial Office: Gibraltar Correspondence, entry book of letters from Secretary of State 2 – BRITISH LIBRARY

Department of Manuscripts. Additional Ms. 38108 3 – NATIONAL LIBRARY OF SCOTLAND Ms. 40401: John Murray Archive

Ms. 3873: Sir Egerton Brydges papers 4 – THE LINNEAN SOCIETY OF LONDON William Swainson papers 5 – THE WORDSWORTH TRUST

William Wordsworth correspondence 6 – JOHN RYLANDS UNIVERSITY LIBRARY OF MANCHESTER English Ms. 345/106

7 – TRINITY COLLEGE LIBRARY, CAMBRIDGE Houghton papers 8/125 Dawson Turner papers O 14.7.57 8 – DR. WILLIAMS’ LIBRARY, LONDON

Henry Crabb Robinson correspondence 9 – BODLEIAN LIBRARY, OXFORD Ms. Montagu d.13 fols. 47‐8

313

Printed primary sources Annual Biography and Obituary. London: Longman, Rees, Orme, Green & Longman, 1835–6. [Anon.]. The Critical review, or Annals of literature, May 1794, vol. 11, 44–52, ‘A complete Account of the Settlement at Port Jackson, in New South Wales, including an accurate Description of the Situation of the Colony; of the Natives; and of its natural productions. Taken on the Spot, by Captain Watkin Tench, 4to. 10s. 6s. Boards. Nicol. 1793.’

Atkinson, James. An Account of the State of Agriculture and Grazing in New South Wales (London: J. Cross, 1826).

Australasian pocket almanack for the year of Our Lord 1822. Sydney: Compiled and printed by Robert Howe, 1822. Beldam, Joseph. A summary of the laws peculiarly affecting Protestant dissenters. London: Joseph Butterworth and Son, 1827. Bennet, Henry Grey. Letter to Lord Sidmouth, Secretary of State for the Home Department, on the transportation laws, the state of the hulks and of the colonies in New South Wales. London: J. Ridgway, 1819. Bigge I – Report of the Commissioner of Inquiry into the state of the colony of New South Wales, 1822.

Bigge II – Report of the Commissioner of Inquiry on the judicial establishments of New South Wales and Van Diemen’s Land, 1823.

Bigge III – Report of the Commissioner of Inquiry on the state of agriculture and trade in the colony of New South Wales, 1823.

Blackstone, Sir William. Commentaries on the Laws of England. Vol. 1. Oxford: Clarendon Press, 1765–69. Blount, Thomas. A law­dictionary and glossary. London: D. Browne and others, 1717.

Buller, Sir Francis. An introduction to the law, relative to trials at nisi prius. 7th edition. With copious annotations by R.W. Bridgman. London: R. Pheney and S. Sweet, 1817. Burn, John Ilderton. The attorney’s practice of the Court of King’s Bench. London: J. Butterworth, 1805.

——, Richard. The justice of the peace, and parish officer. Revised by George Chetwynd. Vol. 3. London: T Cadell and W Davies, 1820.

314 Chitty, Edward. An Index to all the Reported Cases, Statutes and General Orders, in or relating to the Principles, Pleading and Practice of Equity and Bankruptcy in the several Courts of Equity in England and Ireland, The Privy Council, and The House of Lords, from the earliest period down to the year 1831. Vol 2. London: Saunders and Benning, 1831. — —, Joseph. A Treatise on the Law of the Prerogatives of the Crown. London: Joseph Butterworth and Son, 1820. Clarke, (W.) and Sons. Clarke’s new law list, being a list of the judges and officers of the different courts of justice. London: Clarke, 1813–4. Cobbett, William. The American Gardener. London: C. Clement, 1821. Cobbett’s Complete Collection of State Trials. Vol. 3 London: R. Bagshaw, 1809.

Cockburn, William. The clerk’s assistant in the practice of the ecclesiastical courts; containing the method of proceeding therein … 4th ed. London: S. Sweet, 1800. Colla Aloysii. Illustrationes et icones rariorum stirpium quae in ejus Horto Ripulis florebant. Anno 1825.

Comyns, Sir John. A Digest of the Laws of England. 4th ed. vol. 1. London: T.N. Longman and O. Rees, 1800. Cottu, Charles. On the administration of criminal justice in England. London: R. Stevens, 1822. Cox, Edward W. The Advocate: his training, practice, rights and duties. London: J.Crockford, 1852. Crossfield, Edward Mason. The Note Book of an Oxonian, by a late member of Brazen Nose College. Privately printed s. n. 1831. Curry, William. The commentaries of Sir William Blackstone, Knt. On the laws and constitution of England 2nd ed. corrected and enlarged. London: Printed for W. Clarke and Son, 1809. De Quincey, Thomas. Recollections of the Lakes and the Lake Poets. Edinburgh: Black, 1862. Ellis, Henry. Journal of the Proceedings of the late Embassy to China. Vol.1. London: John Murray, 1818. Evans, George. A Geographical, Historical and Topographical description of Van Diemen’s Land. London: John Souter, 1822. (Field, Barron). Hints to Witnesses in Courts of Justice. London: J. Butterworth and Son, 1815. ——, A Review of the late publications on libel, of Messrs. George, Holt, Starkie, & Jones. London: Reed and Hunter, 1815.

315 ——, ‘Narrative of a voyage to New South Wales,’ London Magazine 5 (1822) 221.

——, First Fruits of Australian Poetry (Sydney: privately printed, 1819). Field, Barron. Geographical Memoirs on New South Wales. London: John Murray, 1825. ——, Memoirs of Wordsworth. Edited by Geoffrey Little. Sydney: Sydney University Press, for Australian Academy of the Humanities, 1975.

Field, William. A series of questions, comprising the history of the four Gospels and the Acts of the Apostles, with references to the Scriptures instead of answers. 5th ed. signed W. F. William Field, 1768–1851 Warwick, 1816. ——, Memoirs of the life, writings, and opinions of the Rev. Samuel Parr LLD. vol. 2. London: Henry Colburn, 1828. Ford, Richard. A Handbook for travellers in Spain. Vols 1–2 London: John Murray, 1845. Grey Bennet, H. A letter to Earl Bathurst on the condition of the colonies in New South Wales and Vandiemen’s Land. London: James Ridgway, 1820. House of Commons. Report from the Select Committee on Transportation (1812) paper 341. ——. Report from the Select Committee on the State of Gaols, &c., (1819) paper 579. ——. Copy of the second report made to His Majesty by the commissioners appointed to inquire into the practice and proceedings of the Superior Courts of Common Law, 1830, paper 123.

——. Copy of the third report made to His Majesty by the commissioners appointed to inquire into the practice and proceedings of the superior courts of common law. 1831, paper 92. ——. Copy of the fourth report made to His Majesty by the commissioners appointed to inquire into the practice and proceedings of the superior courts of common law. 1831–32 paper 239.

——. Superannuations. Copies of Treasury minutes, superannuating … E. H. Lushington, Esquire. 1825 (10) (107) (502)

— —. Accounts and Papers Relating to Colonies et cetera. vol. 26 1833 ——. Report from the Select Committee on legal education; together with the minutes of evidence, appendix and index. 1846 (686). Humboldt, Alexander von. Personal Narrative of Travels to the Equinoctial Regions of the New Continent. 7 vols. London: 1814–1829.

316 Hunt, Leigh. ‘Harry Brown’s Letters to His Friends.’ The Examiner, 1816, no. 450, Letter VI, 11 August 1816. ——, Foliage: or Poems original and translated ‘Epistle to Barron Field’ (1818)

Hutton, William. Courts of Requests: their nature, utility and powers described, with a variety of cases determined in that of Birmingham. Birmingham: Knott and Lloyd, 1806. Jacob, Giles, with corrections and enlargement by Thomas Edlyne Tomlins. The Law Dictionary: Explaining the Rise, Progress and Present State of the British Law. 2nd ed. vol. 1. London: J. Butterworth and others, 1809.

Langsdorff, G.H. von. Voyages and Travels in Various Parts of the World, during the Years 1803–7. London: Henry Colburn, 1813.

Macquarie, Lachlan. ‘A letter to the Right Honourable Viscount Sidmouth: in refutation of statements made by the Hon. Henry Grey Bennet, M.P.’ in a pamphlet On the transportation laws, the state of the hulks, and of the colonies in New South Wales. London: Richard Rees, 1821.

Mann, D. D. ‘The present Picture of New South Wales: illustrated with four large coloured views from Drawings taken on the Spot, of Sydney, the Seat of Government: with a Plan of the Colony, taken from actual Survey by public Authority.’ The Critical review, or, Annals of literature 23:1 (May 1811) 45–53. Maugham, Robert. A Treatise on the Law of Attornies, Solicitors and Agents, with Notes and Disquisitions. London: J. & W.T. Clarke, 1825.

New South Wales Pocket Almanack and Colonial Remembrancer 1806. Sydney: The Trustees of the Public Library of New South Wales, Facsimile Edition, 1966.

New South Wales pocket almanack: for the year of our Lord and Saviour 1819–1820. Sydney: compiled and printed at Government Press by G. Howe, 1808–1821. Nicholas, Sir Harris [sic]. Record Commission. A Letter to the Right Hon. Lord Brougham and Vaux, Lord Chancellor, on the Constitution and Proceedings on the Constitution and Proceedings of the present Commission for the Public Records. London: William Pickering, 1832.

Port Regulations: established by proclamation, bearing date sixth February, 1819, to be duly observed by all masters or commanders of vessels … at Port Jackson … (Sydney: printed by G. Howe, Government Printer, 1819) Price, Richard. Observations on reversionary payments: on schemes for providing annuities for widows, and for persons in old age: on the method of calculating. London: T. Cadell and W. Davies, 1803.

Rules of Practice and Table of Fees in the Supreme Court of Civil and Ecclesiastical Jurisdiction for the Territory of New South Wales and its dependencies 31st May 1820

317 (Sydney: Printed by G. Howe, Government Printer, 1820) – TNA (PRO) Reel 114 CO 201/126 33. Starkie, Thomas. A treatise on the law of slander, libel, scandalum magnatum and false rumours. London: W. Clarke, 1813. Tidd, William. The practice of the Court of King’s Bench in personal actions: with references to cases of practice in the Court of Common Pleas. 3rd ed. Vol. 1. London: J. Butterworth, E. Brooke and J. Clarke, 1803.

——.The practice of the Courts of King’s Bench and Common Pleas. 9th ed. Vol. 1. London: Joseph Butterworth and Son, 1828.

Turner, Samuel. An epitome of practice on the equity side of the Court of Exchequer. London: W. Clarke and Sons, 1806.

Vaux, James. The Memoirs of Mr Hardy Vaux. London: John Murray, 1819. Wesley, the Reverend Samuel. The Life of Christ, edited by Thomas Coke LL.D. Vol. 1. London : Printed for Dr. T. Coke, 1809.

Wilkinson, James John. The Practice in the Action of Replevin. Philadelphia: J.S. Littell, 1834

Published sources

A

Acosta, Ana M. ‘Spaces of Dissent and the Public Sphere in Hackney, Stoke Newington, and Newington Green.’ Eighteenth Century Life 27:1 (2003): 1–27. Allars, K.G. ‘Barron Field: his association with New South Wales.’ Journal of the Royal Australian Historical Society 53:3 (1967): 173–195. ——, George Crossley ADB. Allen, George. Extracts from the journal of George Allen, 1800–1877 [By] George Wigram Dundas Allen. Sydney: Angus &Robertson, 1958. Andrew, Donna T. London debating societies 1776–1799. Introduced by, and compiled by. London: London Record Society, 1994. Anonymous. ‘The Right of a Convict to Contract.’ Columbia Law Review 5, (1905): 468–9. ——. ‘The Royal Clemency,’ The Solicitor’s Journal and Weekly Reporter 54 (1910): 534.

318 ——. ‘Legislation.’ Harvard Law Review 50 (1936–1937): 968–977.

——. ‘Confessions of Judgment.’ University of Pennsylvania Law Review 102:4 (1954): 524–538.

——. ‘The History and Development of Qui Tam.’ Washington University Law Quarterly (1972): 81–115. Antill, J.M. H. C. Antill ADB.

Atkinson, Alan. ‘The first plans for governing New South Wales, 1786–87.’ Australian Historical Studies 24:94 (1990): 22–40.

— —. ‘The Free‐born Englishman Transported.’ Past and Present 144 (August, 1994): 88–115.

——. The Europeans in Australia. Vol. 1. Oxford: Oxford University Press, 1998. ——. Vol. 2. Oxford: Oxford University Press, 2004. Atlay, James Beresford. The Victorian Chancellors. Vol. 1. London: Smith, Elder, 1906. Auchmuty, J.J. D’Arcy Wentworth ADB.

Austin, M. George Druitt ADB.

B

Baker, J.H. An introduction to English Legal History. 2nd ed. London: Butterworth & Co [Publishers] Ltd, 1979)

Balmford, Peter. Barron Field DNB. Baloch, Tariq A. ‘Law Booksellers and Printers as Agents of Unchange.’ Cambridge Law Journal 66:2 (2007): 389–421. Barker, G.F.R. Henry Goulburn DNB. Barker, R.M., and W.R. Barker, ‘Botanical contributions overlooked: the role and recognition of collectors, horticulturalists, explorers and others in the early documentation of the Australian flora.’ In History of Systematic Botany in Australasia, 37–85, edited by Philip S. Short. Melbourne: Australian Systematic Botany Society Inc.: Melbourne, 1990. Barnard, Marjorie. John Piper ADB.

319 Bateson, Charles. The Convict Ships. Glasgow: Brown, Son & Ferguson, 1959.

Beaglehole, J.C. ‘The Colonial Office 1782–1854.’ In Historical Studies, Selected Articles, second series compiled by Margot Beever and F.B. Smith: 170–189, 1:3, 1941. Beane, Philip I. ‘The Garnishee – A Historical Background.’ Commercial Law Journal 73 (February, 1968): 42–3. Belich, James. Replenishing the earth: the settler revolution and the rise of the Anglo­ world, 1783­1939. Oxford; New York: Oxford University Press, 2009. Bennett, J. M. ‘Day of Retribution‐Commissioner Bigge’s Inquiries in Colonial New South Wales.’ American Journal of Legal History 15:1 (1971): 85–106. ——. J.T.Bigge ADB. ——. Sir Francis Forbes – First Chief Justice of New South Wales, 1823–1837. Sydney: The Federation Press, 2001. ——. 'Atkins, Richard (1745–1820)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/atkins‐richard‐1723/text23945, accessed 8 February 2013. Bennett, J. M. and A. C. Castles. A source book of Australian legal history: source materials from the eighteenth to the twentieth century. Sydney; Lawbook Co, 1979. Bennett, J. M. and J. R. Forbes. ‘Tradition and Experiment: Some Australian Legal Attitudes of the 19th century.’ University of Queensland Law Journal 7:2 (1970–1): 172–195.

Benton, Lauren and John Muth. ‘On Cultural Hybridity: Interpreting Colonial Authority and Performance.’ Journal of Colonialism and Colonial History 1:1 (2000): 1–53. Beresford, M. W. ‘The Common Informer, the Penal Statutes and Economic Regulation.’ The Economic History Review 10:2 (1957): 221–238. Bergman, G.F.J. Esther Johnson ADB. Bisman, Jayne. ‘Accounting Concepts in the Construction of social status.’ The Australasian Accounting Business & Finance Journal 1:4 (2007): 1–15. Blacksell Mark and Charles Fussell, ‘Barristers and the growth of local justice in England and Wales.’ Transactions of the Institute of British Geographers 19:4 1994, New Series: 482–493.

Blair, Sandra. ‘The Felonry and the Free? Divisions in Colonial Society in the Penal Era.’ Labour History 45 (Nov. 1983): 1–16.

Blayney, Ann. ‘The Courtship of Marianne Hunt.’ Books at Iowa 23:2 (1975): 3–10.

320 Blunden, Edmund. Leigh Hunt’s Examiner Examined. London: Cobden, Sanderson, 1928. Bosanquet, Sir Ronald. The Oxford Circuit. Hadleigh, Essex: Thames Bank Publishing Co, 1951.

Bourke, John, F. and Rosemary Lucadou-Wells. ‘Debt in Van Diemen’s Land 1804– 1833: life’s adversities, the law and an attempt to find a balm.’ University of Notre Dame Australia Law Review 9 (2007): 147–164. ——. ‘The Spectre of debt in Van Diemen’s Land 1817–1831 and some ameliorations.’ Macquarie ResearchOnline http://hdl.handle.net /1959.1 1/21368. Bourne, J.M. Patronage and Society in Nineteenth Century England. London: Edward Arnold (Publishers) Ltd., 1986. Braithwaite, John. ‘Crime in a Convict Republic.’ The Modern Law Review, 64:1 (2001): 11–50. Branagan, D. F. and D. T. Moore. ‘W. H. Fitton’s geology of Australia’s Coasts, 1826.’ Historical Records of Australian Science 19:1 (2008): 1–51.

Brewer, The Dictionary of Phrase and Fable. Hertfordshire: Wordsworth Editions Ltd., 1993.

Bryce, James. Studies in history and jurisprudence. Vol. 2. Oxford: The Clarendon Press, (1901). Elibron Classics series, Adamant Media Corporation (2006).

Bryson, William Hamilton. ‘Exchequer Equity Bibliography.’ The American Journal of Legal History 14:4 (1970): 333–348. Bubacz, Beryl M. Thesis, The Female and Male Orphan Schools in New South Wales 1801–1850. Burnette, Joyce. Gender, Work and Wages in Industrial Revolution Britain. Cambridge: Cambridge University Press, 2008. Bushman, Richard L. The Refinement of America. New York: Vintage Books, 1993.

Butlin, N. G. Forming a Colonial Economy, Australia 1810–1850. Melbourne: Cambridge University Press, 1994. ——. Colonial Statistics Before 1850. Canberra: Australian National University, 1986. Butlin, S.J. Foundations of the Australian Monetary System 1788–1851. Melbourne University Press, 1953. Reprinted Sydney University Press, 1968. Buzard, James. The Beaten Track: European Tourism, literature, and the ways to culture, 1800–1918. Oxford: Oxford University Press, 1993. Byrnes, J.V. Andrew Thompson ADB.

321

C

Campbell, Enid. ‘Conditional Land Grants by the Crown.’ Sydney Law Review 5 (1965‐7): 267–277. ——. ‘Oaths and Affirmation of Public Office under English law: an Historical Retrospect.’ The Journal of Legal History 21:3 (2000): 1–32. Cannadine, David. Ornamentalism: how the British saw their empire. New York and Oxford: Oxford University Press, 2001. Carr, Raymond. Spain, a history. Oxford: Oxford University Press, 2000. Castles, Alex. ‘The reception and status of English Law in Australia.’ Adelaide Law Review 2:1 (1963–1966): 1–32. ——. ‘Judiciary and Political Questions: The First Australian Experience 1824– 1825.’ Adelaide Law Review 5 (1973–6): 294–318. ——. An Australian Legal History. Sydney: The Law Book Company Ltd., 1989. Cerf B. A. & D. S. Klopfer. The Complete Works and Letters of Charles Lamb. New York: The Modern Library, 1935. Christopher, Emma. ‘The Slave Trade Is Merciful Compared to [This].’ In Many Middle Passages: Forced Migration and the Making of the Modern World edited by Emma Christopher, Cassandra Pybus and Marcus Rediker, 109–128. Berkeley: University of California Press, 2007. Clark, Manning. A History of Australia. Vol. 1. Melbourne: Melbourne University Press, 1992. Clark, Roger. ‘Threading the Maze: Nineteenth‐century Guides for British Travellers to Paris.’ In Parisian Fields, edited by Michael Sheringham, 8–29. London: Reaktion Books Ltd., 1996.

Collins, David J. ‘Albertus, Magnus or Magus? Magic, Natural Philosophy, and Religious Reform in the Late Middle Ages.’ Renaissance Quarterly 63:1 (2010): 1 – 44. Connell, R. W. and T. H. Irving. Class structure in Australian History: documents, narrative and argument. Melbourne: Longman Cheshire, 1980. Constantine, Stephen. ‘The Pirate, the Governor and the Secretary of State: Aliens, Police and Surveillance in Early Nineteenth‐Century Gibraltar.’ English Historical Review 123:504(2008): 1166–1192.

Cook, Dee. Field, Henry DNB.

322 Corfield, P.J. Power and the Professions in Britain 1700–1830. London: Routledge, 1995. Cosgrove, Richard A. Review of Duman ­The Judicial Bench in England, 1727–1875: The Reshaping of a Professional Elite. London: Royal Historical Society, 1982. Albion 15:2 (1983): 153–4. Cotterrell, Roger. ‘Common Law Approaches to the Relationship Between Law and Morality.’ Ethical Theory and Moral Practice 3:1 (2000): 9–26.

Courtney, W. P. Dubois, Edward revised by Rebecca Mills DNB. Cowan, Brian. ‘The Curious Mr. Spectator–Virtuoso culture and the man of taste in the works of Addison and Steele.’ Media History 14:3 (2008): 275–292. Cox, Jeffrey. Poetry and Politics in the Cockney School: Keats, Shelley, Hunt and their Circle. Cambridge : Cambridge University Press, 1998. Cronon, William. Changes in the land: Indians, colonists, and the ecology of New England. New York: Hill and Wang, a division of Farrar, Straus and Giroux, first revised edition, 2003. Currey, C.H. Sir Francis Forbes. Sydney: Angus and Robertson, 1968.

——. ‘The Supreme Court of New South Wales – the first three Chief Justices.’ Journal of the Royal Australian Historical Society 19:2 (1933): 73–110.

——. Barron Field ADB. ——. J.H. Bent ADB. ——. Sir Francis Forbes ADB. ——. The Brothers Bent. Sydney: Sydney University Press, 1968.

Curtin, Emma. ‘Gentility Afloat: Gentlewomen’s Diaries and the Voyage to Australia, 1830–80,’ Australian Historical Studies 26:105 (1995) 634–652.

D

Damousi, Joy, ‘Chaos and Order: gender, space and sexuality on female convict ships.’ Australian Historical Studies 26:104 (1995): 351–372. Davidoff, Leonore and Catherine Hall. Family Fortunes. London: Unwin Hyman Ltd., 1987.

Davis, Natalie Zemon. ‘Forum: Holberg Prize Symposium: Doing Decentred History: Decentring History: Local Stories and Cultural Crossings in a Global World.’ History and Theory 50:2 (2011): 188–202.

323 Dayton, Cornelia Hughes. Women before the Bar–Gender, Law and Society in Connecticut, 1639–1789. Chapel Hill and London: Published for the Institute of Early American History and Culture, Williamsburg, Virginia by the University of North Carolina Press, 1995. de Freycinet, Louis. Reflections on New South Wales 1788–1839. Translated by Thomas Cullity. Potts Point, Sydney: Hordern House, 2001. de la Escosura, L.P. The loss of colonial empire and its economic impact on Spain. Leuven University Press, 1990. Dening, Greg. Mr. Bligh’s Bad Language. Cambridge: Cambridge University Press, 1992. Denoon, Donald and Marivic Wyndham. Australia and the Western Pacific (546– 572). Vol. 3 of The Oxford History of the British Empire, The Nineteenth Century, edited by Andrew Porter. Oxford: Oxford University Press, 1999.

De Selincourt, Ernest. Editor, The Letters of William and Dorothy Wordsworth. The Later Years, Part 1, 1821–1828. Revised, arranged and edited by Alan G. Hill, 2nd ed. vol. 4. Oxford: Oxford University Press, 1978. Desmond, Ray, with the assistance of Christine Ellwood. Dictionary of British and Irish botanists and horticulturalists. London: Taylor and Francis and The Natural History Museum, London, 1994. Dixson, Zella Allen. Concerning Bookplates – A Handbook for Collectors. London: Wisteria Cottage Press, 1903.

Donagan, Barbara. ‘The Web of Honour: Soldiers, Christians, and Gentlemen in the English Civil War.’ Historical Journal 44:2 (2001): 365–389.

Dow, Gwyneth M. Samuel Terry ADB. Duffield, Ian. ‘Billy Blue: Power Popular Culture and Mimicry in Early Sydney.’ Journal of Popular Culture 33:1 (1999): 7–22.

Duman, Daniel. ‘Pathway to Professionalism: The English bar in the Eighteenth and Nineteenth Centuries.’ Journal of Social History 13:4 (1980): 615–628.

——. The English and Colonial Bars in the Nineteenth Century. London: Croom Helm Ltd., 1983.

——. ‘The English Bar in the Georgian era.’ Lawyers in Early Modern Europe and America edited by W.R. Prest, 86‐107. London: Croom Helm, 1981. ——. ‘Pathway to Professionalism: The English bar in the Eighteenth and Nineteenth Centuries.’ Journal of Social History 13:4 (1980): 615–628. ——. The Judicial Bench in England, 1727–1875: The Reshaping of a Professional Elite. London: Royal Historical Society, 1982.

324 Dunlop, E. W. Garnham Blaxcell ADB.

E Edgely, Michelle. ‘Criminals and (Second‐Class) Citizenship – Twenty‐First Century Attainder?’ Griffith Law Review 19:3 (2010): 403–437. Elliot, Elizabeth. Taste and Science – the women of the Macleay family, 1790–1850. Glebe, New South Wales: Historic Houses Trust of New South Wales, 1988.

Ellis, M.H. Lachlan Macquarie. Sydney: Angus and Robertson Publishers, Famous Australian Lives Edition 1978. First published 1947.

——. Francis Greenway. Sydney: Angus and Robertson Publishers, Famous Australian Lives Edition 1978. First published 1949.

Encyclopaedia Brittanica. 9th edition, vol. 4. Edinburgh: Adam and Charles Black, 1876. Endersby, Jim. ‘A Garden Enclosed: Botanical Barter in Sydney 1818–1839.’ The British Journal for the History of Science 33:3 (2000): 313–334. Evans, Raymond. ‘Creating ‘an Object of Real Terror’: The tabling of the first Bigge report.’ In Turning Points in Australian History, edited by Martin Crotty and David Andrew Roberts, 48–61. Sydney: University of New South Wales Press Ltd., 2009. Evatt, H. V. ‘The Legal Foundations of New South Wales.’ The Australian Law Journal 11 (1938): 409–423. ——. Rum Rebellion. Sydney: Angus and Robertson Ltd., 1947. Everest, Kelvin. Keats, John (1795–1821) DNB.

F

Ferson, Mark. ‘John Lane Mullins, father of the Australian Bookplate movement.’ Journal of the Royal Australian Historical Society 89:1 (2003): 38–52. Fifer, D. E. ‘Man of two worlds, the early career of William Charles Wentworth.’ Journal of the Royal Australian Historical Society 70:3 (1984): 147–170. Finch, Janette and Ruth Teale. William Adams Brodribb ADB. Finkelpearl, P.J. Beaumont, Francis (1584/5–1616) DNB.

Finn, Margot. ‘Anglo‐Indian Lives in the Later Eighteenth and Early Nineteenth Centuries.’ Journal for Eighteenth Century Studies 33:1 (2010): 49–65.

325 Fitzgerald, Percy, ed. The Life, Letters and Writings of Charles Lamb, vol. 1. London: John Slark, 1875. Fitzgerald, Sylvia. Sir William Jackson Hooker DNB.

Fitzpatrick, Brian. British Imperialism and Australia 1783–1833. London: George Allen and Unwin, 1939. Fletcher, Brian H. Landed enterprise and penal society. Sydney: Sydney University Press, 1976. ——. ‘Sir John Jamison in New South Wales 1814–1844.’ Journal of the Royal Australian Historical Society 65:1 (1979): [1]–29. Ford, Edward. William Redfern ADB.

— — Lisa. ‘The Pig and the Peace – Transposing Order in Early Sydney’ in Law and Politics in British Colonial Thought. Ed. Shaunnaugh Dorset and Ian Hunter, (Basingstoke: Palgrave Macmillan, 2010), 169‐186. Ford, Lisa and Brent Salter. ‘From Pluralism to Territorial Sovereignty: The 1816 Trial of Mow‐watty in the Superior Court of New South Wales.’ Indigenous Law Journal 7:1 (2008): 67–86.

Ford, T. H. ‘Brougham as a barrister: Courtroom dilemmas of a notorious radical.’ The Journal of Legal History 5:3 (1984): 108–129.

Fraser, Antonia. Cromwell, Our Chief of Men. London: Methuen London Ltd., 1985. Frawley, K.J. ‘An ancient assemblage: The Australian rainforests in European conceptions of nature.’ Continuum: Journal of Media and Cultural Studies 3:1(1990): 137–167. Freeman, Arthur Freeman and Janet Ing Freeman. Collier, John Payne (1789–1883) DNB. Fulton, Richard D. Walter, John (1776–1847). DNB.

G

Gascoigne, John. The Enlightenment and the Origins of European Australia. Cambridge: Cambridge University Press, 2002. Gill, Stephen. William Wordsworth DNB.

——. William Wordsworth, A Life. Oxford: Clarendon Press, 1989.

326 Gillespie, James Edward. ‘The Transportation of English Convicts after 1783.’ Journal of the American Institute of Criminal Law and Criminology 13 (1922): (359)–381. Gogarty, Brendan and Benedict Bartl. ‘Tying Kable down: The Uncertainty about the Independence and Impartiality of State Courts Following Kable v DPP (NSW) and Why it Matters.’ University of New South Wales Law Journal 32:1 (2009): 75– 105. Gold, Peter. Gibraltar: British or Spanish? London, New York: Routledge, 2005. Grenier, Katherine Haldane. ‘Scottishness, Britishness and Scottish Tourism, 1770‐ 1914.’ History Compass 4:6 (2006): 1000–10023. Gunson, Niel. William Pascoe Crook ADB.

——. Francis Oakes ADB.

H

Hainsworth, D.R. Sydney Traders. Carlton, Victoria: Melbourne University Press, 1981.

——. ‘The New South Wales Shipping Interest.’ Australian Economic History Review 8:1 (1968): 17–30. Hall, Catherine. White, Male and Middle Class. Cambridge: Polity Press, 1992.

——. ‘Going a Trolloping: imperial man travels the Empire.’ In Gender and imperialism edited by Clare Midgley 180–199. Manchester: Manchester University Press, 1998. ——. Norman. Botanists of Australian Acacias. Melbourne: CSIRO, 1984.

Halloran, Aubrey. ‘Some early legal celebrities.’ Royal Australian Historical Society Journal and Proceedings 10:6 (1924): 301–347. Hamilton, Bernice. ‘The Medical Professions in the Eighteenth Century.’ The Economic History Review (New Series) 4:2 (1951): 141–169. Hamilton, C. I. ‘John Wilson Croker: Patronage and Clientage at the Admiralty 1809–1857.’ The Historical Journal 43:1 (2000): 49–77. Harkness, Deborah E., ‘Managing an Experimental Household‐ The Dees of Mortlake and the Practice of Natural Philosophy,’ The History of Science Society 88:2 (1997): 247–262.

327 Harvey, Karen. ‘Men Making Home: Masculinity and Domesticity in Eighteenth Century Britain.’ Gender and History 21:3 (2009): 520–540 . Havighurst, Alfred F. ‘The Judiciary and Politics in the reign of Charles II.’ Law Quarterly Review 66 (1950): part I, 62‐78; part II, 229–252. Hawke, Joanna. Field, Frederick (1801–1885) DNB. Hazard, Geoffrey C. ‘Indispensable Party: The Historical Origin of a Procedural Phantom.’ Columbia Law Review 61 (1961): 1254–1289. Heney, Helen. Australia’s Founding Mothers. Melbourne: Nelson, 1978.

——. Dear Fanny. Sydney: Pergamon Press (Australia) Pty. Ltd.,1985. Henriques, U.R.Q. ‘The Jewish Emancipation Controversy in Nineteenth‐Century Britain.’ Past and Present 40: (July 1968): 126–146. Herman, Morton. Francis Greenway ADB. Hetherington, Norris S. ‘Almanacs and the Extent of Knowledge of the New Astronomy in Seventeenth Century England.’ Proceedings of the American Philosophical Society 119:4 (1975): 275–279.

Hewson, Helen J. ‘Justice for Justice Barron Field.’ Telopea 11: (1) (2005): 95–98. Heydon, Gummow, Austin. Cases and Materials on Equity. Australia: Butterworths Pty. Ltd., 1975. Higginbotham, Edward. ‘The 1828 Census and the Analysis of Rural Settlement in New South Wales.’ Australasian Historical Archaeology 11 (1993): 52–75.

Higgins, D. ‘Writing to Colonial Australia: Barron Field and Charles Lamb.’ Nineteenth Century Contexts 32:3 (2010): 219–233.

Hirst, John. Freedom on the Fatal Shore. Melbourne: Black Inc., an imprint of Schwartz Publishing Pty. Ltd. 2008.

Holder, R.F. Bank of New South Wales vol. 1. Sydney: Angus and Robertson (Publishers) Pty. Ltd., 1970. Hoppit, Julian. ‘Political Arithmetic in Eighteenth‐Century England.’ The Economic History Review 49:3 (1996): 516–540. Hornibrook, J.H. Thomas Pamphlett ADB.

Howard, Philip. We Thundered Out. London: Times Books Ltd., 1985. Huggins, Mike J. ‘More Sinful Pleasures? Leisure, Respectability and the Male Middle Classes in Victorian England.’ Journal of Social History 33:3 (2000): 585– 600.

328 Hunt, J. H. L. The Autobiography of Leigh Hunt, edited by J. E. Morpurgo. London: [SI]: [s.n.], 1949. Hunter, Rosemary, ‘Australian Legal Histories in Context,’ Law and History Review 21:3 (2003): 607–614.

I

Itzkin, Elissa S. ‘The Halevy Thesis – A Working Hypothesis? English Revivalism: Antidote for Revolution and Radicalism 1789–1815.’ Church History 44:1 (1975): 47–56.

J

Jackson, R.V. ‘The structure of pay in nineteenth‐century Britain.’ Economic History Review 40:4 (1987): 561–570. Jenkins, Brian. Henry Goulburn 1784–1856. Montreal, Buffalo: McGill‐Queen’s University Press, 1996.

K

Karskens, Grace. G. The Colony: a history of early Sydney. Crows Nest, NSW: Allen and Unwin, 2009. Karskens, Grace and Richard Waterhouse. ‘‘Too sacred to be taken away’: Property, Liberty, Tyranny and the ‘Rum Rebellion’.’ Journal of Australian Colonial History 12 (2010): 1–22. Karsten, Peter. Between Law and Custom. Cambridge: Cambridge University Press, 2002. ——. ‘Enabling the Poor to have Their Day in court: The Sanctioning of Contingency Fee Contracts. A History to 1940.’ De Paul Law Review 47 (1997– 1998): 231–260. Kenny, M.J.B. Edward Smith Hall ADB. Kercher, Bruce. An Unruly Child. Sydney: Allen and Unwin, 1995.

329 ——. ‘Perish or Prosper; The Law and Convict Transportation in the British Empire, 1700–1850.’ Law and History Review 21:3 (2003): 527–584. ——. ‘Commerce and the development of contract law in Early New South Wales.’ Law and History Review 9:2 (1991): 269–325. ——. ‘Establishment, Freedom of Speech and the Church of England: Pew Disputes in early 19th New South Wales.’ Australian Journal of Legal History 6 (2000):135– 157.

——. ‘Resistance to Law under Autocracy.’ Modern Law Review 60:6 (1997): 779– 797.

——. ‘A Convict Conservative: George Crossley and the English Legal Tradition.’ In Misplaced Traditions, edited by Rob McQueen and W. Wesley Pue, 17–30. Law in Context 16:1. Leichhardt, NSW: The Federation Press, 1999. ——. ‘Informal Land Titles: Snowden v Baker (1844).’ Victoria University of Wellington Law Review 41:3 (2010): 605–21. ——. Debt Seduction and other disasters. Sydney: The Federation Press, 1996. ——. ‘Many Laws, Many Legalities.’ Law and History Review 21:3 (2003): 621–622.

Kercher, Bruce and Brent Salter. The Kercher Reports: decisions of the New South Wales superior courts, 1788–1827. Sydney: Francis Forbes Society for Australian Legal History, 2009. Kesselring, K.J. ‘Felony Forfeiture in England, c.1170–1870.’ The Journal of Legal History 30:3 (2009): 201–226. King, C.J. ‘The First Fifty Years of Agriculture in New South Wales.’ Review of Marketing and Agricultural Economics, August, 1948–December, 1949. Sydney: Dept. of Agriculture, Division of Marketing and Agricultural Economics (1950): 669–721. King, Hazel. ‘Frederick Goulburn: The Man and his Office.’ Australian Journal of Public Administration 38:3 (1979): 233–245. King, Peter. ‘The Summary Courts and Social Relations in Eighteenth Century England.’ Past and Present 183:1 (2004): 125–172. ——. ‘Newspaper reporting and attitudes to crime in late‐eighteenth and early‐ nineteenth century London.’ Continuity and Change 22:1 (2007): 73–112. Kingston, Beverley. A History of New South Wales. Cambridge : Cambridge University Press, 2006.

Klepac, Ariana and John Thompson. Editors, Australian Voices. Millers Point, New South Wales: Pier 9/Murdoch Books, 2010.

330 Knowles, L.C.A. Economic Development in the 19th Century: France, Germany, Russia and the United States. Kociumbas, Jan. ‘1770–1860 Possessions,’ vol. 2. The Oxford History of Australia. Melbourne: Oxford University Press, 1992. ——. ‘Science as Cultural Ideology: Museums and Mechanics’ Institutes in early New South Wales and Van Diemen’s Land.’ Labour History 64 (May, 1993): 17–33.

L

Lachs, Phyllis S. ‘A Study of a Professional Elite: Anglo‐Jewish Barristers in the Nineteenth‐Century.’ Jewish Social Studies 44:2 (1982): 125–134. Laidlaw, Zoe. Colonial Connections 1815–45: Patronage, the information Revolution and Colonial Government. Manchester: Manchester University Press, 2005.

——. ‘Investigating Empire: Humanitarians, Reform and the Commission of Eastern Enquiry,’ The Journal of Imperial and Commonwealth History 40:5 (2012) 749–768. Lambert, David and Alan Lester. ‘Imperial Spaces, imperial subjects.’ In Colonial Lives across the British Empire : Imperial Careering across the long nineteenth century, edited by David Lambert and Alan Lester, 1–31. Cambridge: Cambridge University Press, 2006. ——. ‘Geographies of colonial philanthropy.’ Progress in Human Geography 28:3 (2004): 320–341. Landsman, Stephan. ‘The rise of the contentious spirit: Adversary procedure in eighteenth century England.’ Cornell Law Review 75:3 (1989–1990): 497–609. Larsen, Timothy. ‘A.S. Peake, the Free Churches, and modern biblical criticism.’ Bulletin of the John Rylands University Library of Manchester 86:3 (2004): 23–53. Leask, Nigel. Curiosity and the Aesthetics of Travel Writing 1770–1840. Oxford: Oxford University Press, 2002. Lemmings, David. ‘Blackstone and Law Reform by Education: Preparation for the Bar and Lawyerly Culture in Eighteenth‐Century England.’ Law and History Review 16:2 (1998): 211–255.

LeRoy, Paul Edwin. ‘The Emancipists, Edward Eagar and the Struggle for Civil Liberties.’ Royal Australian Historical Society Journal 48:4 (1962): 270–301. Lindert, Peter H. ‘Unequal English wealth since 1670.’ Journal of Political Economy 94:6 (1986): 1127–1162.

331 Linney, A.G. Lure and Lore of London’s River. London: Sampson, Low, Marston and Co., Ltd., 1932. Liston, Carol. ‘Sir Thomas Brisbane in New South Wales.’ Journal of the Royal Australian Historical Society 71:2 (1985): 91–106. ——. New South Wales under Governor Brisbane, 1821–1825. Ph.D. Thesis, Sydney University, 1981. ——. ‘The damned whore and the public man: Sarah and William Wentworth.’ In For Richer, for Poorer, ed. Penny Russell, 114–134. Melbourne: Melbourne University Press, 1994.

Little, Geoffrey, Editor, Barron Field’s Memoirs of Wordsworth. Sydney: Sydney University Press, for Australian Academy of the Humanities, 1975.

Lobban, Michael. Henry Brougham DNB. Lucas, E.V. The life of Charles Lamb. Vol. 1. London: Methuen, 1905. ——. Editor, Poems and Plays by Charles and Mary Lamb. Vol. 4. London: Methuen and Co. Ltd., 1912. Lucas, Paul. ‘A Collective Biography of Students and Barristers of Lincoln’s Inn, 1680–1804: A Study in the ‘Aristocratic Resurgence’ of the Eighteenth Century.’ The Journal of Modern History 46:2 (1974): 227–261.

Lynravn, N.S. Sir Henry Brown Hayes ADB. ——. John Grant ADB.

M

McGregor, R. ‘Protest and progress: Aboriginal Activism in the 1930s.’ Australian Historical Studies 25:101 (1993): 555–568. McHugh, Paul. Aboriginal Societies and the Common Law: A History of Sovereignty, Status and Self­Determination. Oxford and New York: Oxford University Press, 2004. Macintyre, Stuart. A Concise History of Australia. Port Melbourne, Victoria: Cambridge University Press, 2009. Mackaness, George. Editor, A New Song – Made in New South Wales on the rebellion by Lawrence Davoren volume 33. Australian Historical Monographs, New Series, Sydney, 1951.

McKay, R.J. William Henry Moore ADB.

332 McKenzie, Kirsten. Scandal in the colonies. Carlton,Victoria: Melbourne University Press, 2004. McKenzie, John M. Introduction, in Zoe Laidlaw, Colonial connections 1815–45: patronage, the information revolution and colonial government, 1–12. Manchester: Manchester University Press, 2005 McLachlan, Noel. ‘Edward Eagar (1787–1866): A Colonial Spokesman in Sydney and London.’ Historical Studies: Australia and New Zealand 10:40 (1963): 431–456.

——. ‘Bathurst at the Colonial Office, 1812–27.’ Australian Historical Studies 13:52 (1969): 477–502.

——. ‘Convicts, Australia and New World Nationalism.’ Bulletin of the Centre for Tasmanian Historical Studies, 3:2 (1991–1992): 22–34.

McLaren, John. ‘Reflections on the rule of law: the Georgian colonies of New South Wales and Upper Canada, 1788–1837.’ In Law, History, Colonialism, edited by Diane Kirkby and Catharine Colebourne, 46–62. Manchester: Manchester University Press, 2001.

——. Dewigged, bothered, and bewildered: British colonial judges on trial, 1800– 1900. Toronto: Published for the Osgoode Society for Canadian Legal History and the Francis Forbes Society for Australian Legal History by University of Toronto Press, 2011. McMartin, Arthur. Isaac Nichols ADB. McQueen, H. ‘Convicts and Rebels.’ Labour History 15 (November, 1968): 3–30. Mathew, W.M. ‘The Origins and Occupations of Glasgow Students, 1740–1839.’ Past and Present 33: (April 1966): 74–94. Macnair, Mike. ‘Equity and Conscience.’ Oxford Journal of Legal Studies 27:4 (2007): 659–681. Mallampalli, Chandra. ‘Meet the Abrahams : Colonial Law and a Mixed Race Family from Bellary, South India, 1810‐63.’ Modern Asian Studies 42:5 (2008): 929–970. Mason, Matthew. ‘Keeping Up Appearances: The International Politics of Slave Trade Abolition in the Nineteenth‐Century Atlantic World.’ The William and Mary Quarterly 66:4 (2009): 809–832.

M.C.B. ‘Comment on Recent Cases – Civil Death: Capacity of a Convict to Contract.’ California Law Review 2 (1913–4): 401–2. Miles, Michael. ‘‘A Haven for the Privileged’: Recruitment into the Profession of Attorney in England, 1709–1792.’ Social History 11:2 (1986): 197–210.

Miller, Hortense S. ‘The Herbarium of Aylmer Bourke Lambert: Notes on its Acquisition, Dispersal, and Present Whereabouts.’ Taxon 19:4 (1970): 489–553.

333 Mills, Carol. ‘Frederick Fisher's materialisation in Australia: convict, papermaker, murder victim and ghost.’ [online] Margin (Canberra, ACT), 72 (July‐Aug. 2007): 4– 16. Morison, Stanley. Editor, The History of The Times. Vol. 1. London: Written, printed and published at the Office of the Times, 1935–(2005). Morpurgo, J. E. Editor, Charles Lamb and Elia. Harmondsworth : Penguin Books, 1948.

N

Nagle, J.F. Collins, the Courts and the Colony – Law and Society in Colonial New South Wales. Sydney: University of New South Wales Press, 1996. Nairn, Bede. Hannibal Hawkins Macarthur ADB.

Nazzari, Muriel. ‘Widows as Obstacles to Business: British Objections to Brazilian Marriage and Inheritance Laws.’ Comparative Studies in Society and History 37 (1995): 781–802. Neal, David. ‘Free Society, Penal Colony, Slave Society, Prison?’ Historical Studies 22: 89 (1987): 497‐518. ——. ‘Law and Authority: The campaign for trial by jury in New South Wales.’ The Journal of Legal History 8:2 (1987): 107–128. The Rule of Law in a penal colony: law and power in early New South Wales. (Cambridge, U.K.: Cambridge University Press, 1991. Neubecker, Ottfried, with contributions by J.P. Brooke‐Little. Heraldry. Twickenham: Macdonald & Co, 1997. Neumann, J.H. ‘Jonathan Swift and the Vocabulary of English.’ Modern Language Quarterly 4:2 (1943): 191–204.

Newey, Vincent. Robinson, Henry Crabb (1775–1867) DNB. Nichol, W. ‘Ideology and the Convict System in New South Wales, 1788–1820.’ Historical Studies 22:86 (1986): 1–20. Nicholas, Stephen. ‘The Care and Feeding of Convicts.’ In Convict Workers Reinterpreting Australia’s Past, edited by Stephen Nicholas, 180–198. Melbourne: Cambridge University Press, 1988, reprinted 1989.

——. ‘Beyond Convict Workers? Unanswered questions about Convict economy and society.’ In Beyond Convict Workers, edited by Barry Dyster, 3–20. Sydney: Department of Economic History, University of New South Wales, 1996.

334 Nicholas, Stephen and Peter R. Shergold. ‘Convicts as Migrants.’ In Convict Workers, edited by Stephen Nicholas, 43–61. Cambridge: Cambridge University Press, 1988. Nicholas, Stephen and Richard H. Steckel, ‘Heights and Living Standards of English Workers During the Early Years of Industrialization, 1770–1815.’ The Journal of Economic History 51:4 (1991): 937–957. Nield, Christopher S. ‘Distant Correspondents: Charles Lamb, Exploration and the Writing of Letters.’ Romanticism 10:1 (2004): 79–94.

O

O’Brien, Eris M. The Foundation of Australia. 2nd ed. Sydney, London: Angus and Robertson, 1950. Odgers, W. Blake. The Legal Quarter of London­ Literary Men connected with the Inns of Court and of Chancery. London: Macmillan and Sons, Ltd. 1912. Ogborn, Miles. Global Lives – Britain and the World 1550–1800. New York : Cambridge University Press, 2008. Olde, Peter. Australian Native Plants Society (Australia), Rediscovering Grevillea rosmarinfolia, Newsletter of ANPSA’s Grevillea Study Group, March 2000. O'Neill, Michael. Shelley, Percy Bysshe (1792–1822) DNB. Onslow, Sibella Macarthur. Editor, Some Early Records of the Macarthurs of Camden. Sydney: Rigby Limited, 1973.

P

Parsons, T.G. ‘Governor Macquarie and the Economic Crisis in New South Wales, 1810–1815.’ New Zealand Journal of History 2:2 (1968): 178–200. Parsons, Vivienne. David Dickenson Mann ADB. ——. Frederick Goulburn ADB.

Peltonen, Matti. ‘Clues, Margins and Monads: The Micro‐Macro Link in Historical Research.’ History and Theory 40:3 (2001): 347–59.

Petrow, Stefan. ‘Policing in a penal colony: Governor Arthur’s police system in Van Diemen’s Land 1826‐1836.’ Law and History Review 18:2 (2000): 351–395.

335 Pfander, James E. ‘Judicial compensation and the definition of judicial power in the early Republic.’ Michigan Law Review 107:1 (2008): 1–51. Phillips, Gordon. Barnes, Thomas (1785–1841) DNB.

Phillips, Marion. A Colonial Autocracy, New South Wales Under Governor Macquarie 1810–1821. London: Frank Cass & Co. Ltd., 1971. Phillips, Tina Picton. ‘Family matters: bastards, orphans and baptisms‐New South Wales, 1810–1825.’ Journal of the Royal Australian Historical Society 90:2 (2004): 122–135. Pickard, John. ‘The First Fences: Fencing the Colony of New South Wales, 1788 – 1823.’ Agricultural History 73:1(1999): 46–69. ——. ‘Post and Rail Fences.’ Agricultural History 79:1 (2005): 27–49. ——. ‘Trespass, common law, government regulations, and fences in colonial New South Wales, 1788–1828.’ Journal of the Royal Australian Historical Society 84:2 (1998):130–139.

Pilbeam, Pamela. ‘The “Three Glorious Days”: The Revolution of 1830 in Provincial France.’ The Historical Journal 26:4 (1983): 831‐844.

——. ‘The Economic Crisis of 1827–32 and the 1830 Revolution in Provincial France.’ The Historical Journal 32:2 (1989): 319‐338.

Pitman, E.R. Elizabeth Fry. New York: Greenwood Press, 1969. Porter, Andrew. ‘Britain and the Empire in the Nineteenth Century.’ In The Oxford History of the British Empire, The Nineteenth Century, edited and introduced by Andrew Porter, 1–28. Vol. 3. Oxford: Oxford University Press, 1999. Posner, Richard A. ‘Blackstone and Bentham.’ Journal of Law and Economics 19:3 (1976): 569–606. Potten, Edward. ‘ “A great number of Usefull books”: The Hidden Library of Henry Booth, 1st Earl of Warrington (1652–1694).’ Library and Information History 25:1 (2009): 33–49.

Pratt, Mary Louise. Imperial Eyes, Travel Writing and Transculturation. 2nd ed. London: Taylor and Francis, 2007.

Prest, Wilfred. William Blackstone. Oxford: Oxford University Press, 2008. ——. ‘Judicial Corruption in Early Modern England.’ Past and Present 133 (November, 1991): 67–95. Pue, W. Wesley. ‘Exorcising Professional Demons: Charles Rann Kennedy and the Transition to the Modern Bar.’ Law and History Review 5:1(1987): 135–174.

336 Q

Quarterly Review Archive. Dr. Jonathan Cutmore, editor, vol. 4, no. 7 (August 1810) 112 Article 11 165‐76. Barron Field and William Gifford. ‘Select Poems from the Hesperides, or Works both Human and Divine, of Robert Herrick, Esq. with occasional Remarks; A Selection from the Poetical Works of Thomas Carew; Headley’s Select Beauties of Ancient English Poetry.’

R

Raven, James. ‘The Representation of Philanthropy and Reading in the Eighteenth‐ Century Library.’ Libraries and Culture 31:2 (1996): 492–510. Richards, Eric. Sir Robert John Wilmot 1784–1841. DNB.

Rienits, Thea. Edward Lord ADB. Rider, C.M. ‘The Inns of Court and Inns of Chancery and their Records.’ Archives 24:101 (1999): 27–36. Rigg, J.M. revised by Patrick Polden, Sir (Jonathan) Frederick Pollock DNB. Ritchie, John. Lachlan Macquarie. Melbourne: Melbourne University Press, 1988.

——. Punishment and Profit. Melbourne: William Heinemann Australia Ltd., 1970. ——. Evidence to the Bigge reports. The written evidence. Vol. 2. Melbourne: Heinemann, 1971.

Riviere, Marc. Editor and translator, A Women of Courage : the journal of Rose de Freycinet on her voyage around the world 1817–1820. Canberra: National Library of Australia, 1996. Robbins, W.M. ‘Spatial Escape and the Hyde Park Barracks.’ Journal of Australian Colonial History 7 (2005): 81–96. Roberts, David. ‘‘The valley of swells’: ‘Special’ or ‘educated’ convicts on the Wellington Valley settlement, 1827–1830.’ History Australia 3:1 (2006) 11.1–11.21 DOI: 1O.2104/ha060011.

Roe, Michael. ‘Colonial Society in Embryo.’ Historical Studies: Australia and New Zealand 7:26 (1956): 149–159.

——. Quest for Authority in Eastern Australia 1835–1851. Melbourne University Press in association with The Australian National University,1965. Roe, Nicholas. Leigh Hunt, DNB.

337 Rojek, Chris and John Urry (eds.). Touring Cultures. (London: Routledge, 1997).

Rovee, Christopher. ‘Trashing Keats.’ English Literary History 75:4 (2008): 993– 1022.

Russell, Penny. Savage or Civilised? Manners in Colonial Australia. Sydney: University of New South Wales Press Ltd., 2010.

S

Salter, Brent. ‘Lachlan Macquarie and the rule of Law.’ Australian Bar Review 33:3 (2010): 222–238. Sambrook, James. Procter, Bryan Waller (1787–1874) DNB.

Saunders, Shirley. ‘Sir Thomas Brisbane’s legacy to colonial science: colonial astronomy at the Parramatta Observatory, 1822–1848.’ Historical Records of Australian Science 15:2 (2004): 177–209. Schrage, E.J.H. ‘The Judge’s Liability for Professional Mistakes.’ Legal History 17:2 (1996): 101–129. Scott, Joan W. ‘Forum: Holberg Prize Symposium: Doing Decentered History: Storytelling.’ History and Theory 50:2 (2011): 203–9. Shaw, A.G.L. Convicts and the Colonies. London: Faber and Faber, 1966. Shaw, Harold Watkins, The Three Choirs Festival: the official history of the meetings of the three choirs of Gloucester, Hereford and Worcester c 1713–1953. London: E. Bayliss and Son, 1954.

Short, K.R.M. ‘The English Indemnity Acts 1726–1867.’ Church History 42:3 (1973): 366–376.

Slatter, Michele. ‘The Norwich court of requests – a tradition continued.’ The Journal of Legal History 5:3 (1984): 97–107. Smail, John. ‘The Stansfields of Halifax: A Case Study of the Making of the Middle Class.’ Albion: A Quarterly Journal Concerned with British Studies 24:1 (1992): 27– 47. St. Clair, William. Thomas Bruce (1766–1841) DNB. Stephens, M.D. and G.W. Roderick. ‘Education and the Dissenting Academies.’ History Today 27:1 (1977): 47–54.

Stern, Philip J. ‘‘Rescuing the Age from the Charge of Ignorance’: Gentility, Knowledge, and the Exploration of Africa in the late Eighteenth Century.’ In A New

338 Imperial History­ Culture, Identity and Modernity in Britain and the Empire, 1660– 1840, edited by Kathleen Wilson, 115–35. Cambridge: Cambridge University Press, 2004. Steven, Margaret, J. E. ‘The Changing Pattern of Commerce in New South Wales, 1810–1821.’ Business Archives and History 3:1 (1963): 139–155. ——. ‘The Changing Pattern of Commerce.’ In Economic Growth of Australia 1788­ 1821 edited by G. J. Abbott and N. B. Nairn, 176–187. Melbourne: Melbourne University Press, 1969. ——. John Macarthur. Melbourne, New York: Oxford University Press, 1968.

——. George Thomas Palmer ADB. ——. John Palmer ADB. Stewart, David. ‘Filling the Newspaper Gap: Leigh Hunt, Blackwood’s, and the Development of the Miscellany.’ Victorian Periodicals Review 42:2 (2009): 155– 170.

Sturma, Michael. ‘Eye of the Beholder: The Stereotype of Women Convicts, 1788– 1852.’ Labour History 34 (May, 1978): 3–10.

Sutton, C.W. Feild , John (c.1520–1587), revised by Stephen Johnston. DNB. Sylvester, Diane. ‘Governor Lachlan Macquarie, Sir James Mackintosh and the Scottish Enlightenment.’ Journal of Australian History 12 (2010): 23–38.

T

Thompson, Joseph Conan. ‘Toward a More Humane Oppression: Florida’s Slave Codes, 1821–1861.’ The Florida Historical Quarterly 71:3 (1993): 324–338.

Thorne, Roland. Henry Grey Bennet DNB. Turley, Richard Marggraf. ‘‘Breathing human passion’: Keats, Cornwall, Shelley and popular romanticism.’ European Romantic Review 19:3 (2008): 253–273.

V

Vickery, Amanda. The Gentleman’s Daughter: Women’s Lives in Georgian England. New Haven & London: Yale University Press, 1998.

339 W

Wagner, Ann. ‘Idleness and the Ideal of Gentlemen.’ History of Education Quarterly 25:1/2 (1985): 41–55. Walsh, G.P. Gurner, John (1792–1882) ADB.

Walsh, Robin. Commissioned Officers of the 73rd Regiment who served in Ceylon 1814–1821, Wright, Thomas, Macquarie University Library. Watts, Ruth. ‘A gendered journey: travel of ideas in England c. 1750–1800.’ History of Education 37:4 (2008): 513–530. Ward, John Manning. James Macarthur, colonial conservative, 1798–1867. Sydney: Sydney University Press, 1981. Webby, Elizabeth. ‘Dispelling ‘The Stagnant Waters of Ignorance’: The early Institutes in context.’ In Pioneering Culture: Mechanics’ Institutes and Schools of Art in Australia, edited by Philip C. Candy and John Laurent, 29–60. Adelaide: Auslib Press, 1994. West, John. The history of Tasmania, edited by A. G. L. Shaw. London, Sydney: Angus and Robertson, 1981. Williams, Alan W. ‘Colonial Origins of Land Acquisition Law in New South Wales and Queensland.’ The Journal of Legal History 10:3 (1989): 352–364. Wilson, Kathleen. ‘Rethinking the Colonial State: Family, Gender, and Governmentality in Eighteenth‐Century British Frontiers.’ The American Historical Review 116:5 (2011): 1294–1322. Windeyer, Sir Victor. ‘ “A Birthright and Inheritance”: The Establishment of the Rule of Law in Australia.’ Tasmanian University Law Review 1 (1958–1963): 635– 669. Windeyer, W. J. V. Lectures on Legal History. Sydney: The Law Book Company of Australasia Pty. Ltd., 1938; 2nd ed. 1949, 2nd ed. revised, 1957.

Woudhuysen, H.R. Sidney, Sir Philip (1554–1586) DNB.

Y

Yarwood, A.T. Samuel Marsden, the great survivor. Carlton South: Melbourne University Press, 1996.

340