An attainted person becomes "a bane to human society, the law sets a note of infamy upon him, puts him out of its protection" (Note 3). The attaint loses all civil rights unless and until pardoned. The effect of a pardon under the great seal is to make the offender "a new man", giving "a new credit and capacity". A pardon could be conditional, and either by the King or by act of parliament (Note 4).
Until the specified form was complied with, a pardon had no effect, and an emancipated convict remained a convict attaint. This was certainly the law in England. In 1819 the King's Bench held in Bullock v. Dodds (Note 5) that the defendant could plead the attaint of the plaintiff, a person transported for life to NSW and subsequently granted an absolute pardon by the governor of NSW (Note 6). Because the formality of inserting the names of emancipated convicts in general pardons under the great seal had from very early on not been complied with, such pardons were ineffective, and the convicts still attainted (Note 7).
It must not be overlooked that the decision in Bullock v. Dodds was a decision of the King's Bench, dealing with a suit in England. The English laws were said to be the birthright of every subject, carried with them by colonists to uninhabited countries (Note 8). In the 18th and 19th centuries, NSW was regarded as terra nullius by the English (Note 9). However, Blackstone said:
"such colonists carry with them only so much of the English law, as is applicable to their own situation and the condition of an infant colony... The artificial refinements and distinctions incident to the property of a great and commercial people... are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided in the first instance by their own provincial judicature, subject to the revision and control of the King in Council." (Note 10)
It was arguable that in a penal colony attainder was not necessary, and certainly not convenient e.g. all witnesses would be convicts.
The granting of a ticket of leave did not involve any remission of a ticket-holder's sentence. Accordingly under English law he or she was still a convict attaint, with all the disabilities that entailed. Technically, the ticket of leave holder did not have a legal status any higher than any other convict (Note 11). However, from the very first, the local Court of Civil Jurisdiction (Note 12) overlooked attaint in allowing convicts to sue in civil matters (Note 13).
Administrators generally appear to have accepted that attaint did not apply in the colony. The 1806 Muster shows that almost three-quarters of male ticket of leave holders were self-employed, that 20% rented or leased land, and that 3% owned land by purchase (Note 14).
There was some support from England for tempering the convict attaint rule in New South Wales. In 1804 advice was received that evidence from a pardoned convict could be admitted, with due caution, given the colony consisted in great measure of inhabitants who are convicts (Note 15). In 1816 Lord Bathurst seems to have thought that the strict rules applicable in England were not as crucial in NSW, despite his growing concern that transportation was not deterring crime (Note 16).
In 1819 D'Arcy Wentworth gave evidence that the Sydney Bench of Magistrates "take cognizance of claims for wages made by prisoners against their masters and for which they cannot appear in the Higher Courts" (Note 17). However, until 1820 it seems that ticket of leave holders were, along with emancipists, permitted to sue and be sued in the courts (Note 18). The ticket of leave holder must in practice have been treated as having a higher status or claim than other convicts.
West asserted that the Supreme Court had earlier allowed witnesses and plaintiffs the same privilege, whether under attainder or not. Judge Field declared in Doe d. Jenkins v. Pearce "that while the Crown did not interfere, the Court would not touch the property of the convict; nothing but an attested copy of conviction, would be admitted" (Note 19).
In 1819 Macquarie received the legal opinion of His Majesty's Attorney and Solicitor General to the effect that prisoners could not sue, although capable of being sued as defendants, since they cannot take advantage of their own disability (Note 20). Furthermore, Bullock v. Dodds was followed in NSW 1820 in Eagar v. Field (Note 21) and Eagar v. DeMestre (Note 22). If holders of pardons which had not passed under the great seal had civil disabilities then it follows that ticket of leave holders were at least as disadvantaged.
Note 2 Under which the attainted person could neither inherit lands or other hereditaments, nor transmit them by descent: ibid , 388. In 1814 the corruption of blood was taken away for children born after conviction, except in the case of treason and murder: West, op cit , 381, citing Act 54 Geo III, c.145.
Note 3 Blackstone, op cit, IV, 380.
Note 4 A pardon by act of Parliament was more beneficial than by the King's charter, because inter alia , it was the only pardon which could purify the blood once corrupted: ibid , 400-2.
Note 5 King's Bench, (1819) 2 B & Ald 258; 106 ER 361.
Note 6 Ibid , 106 ER, at 367.
Note 7 Ibid , at 368. The defects in these early pardons were overcome by the Imperial Act 4 Geo. IV, c.96, s.34 (1823), which made such pardons by the governors of NSW immediately effective retrospectively within NSW, as if they had in fact passed under the great seal; and if ratified by His Majesty, would have effect retrospectively in England and throughout the Empire.
Note 8 Blackstone, Commentaries , I, 108. See also the Privy Council Determination, in Case 15- Anonymous (1722) 2 Peere Williams' Reports 75; 24 ER 646, extracted in J.M. Bennett & Alex C. Castles, A Source Book of Australian Legal History , Law Book Co, Sydney, 1979, 247.
Note 9 See e.g. Forbes CJ in R v. Magistrates , reported in The Australian , 24 October 1824, extracted in Bennett & Castles, op cit , 267-8. The Privy Council confirmed the position adopted by the colonists in Cooper v. Stuart (1889) 14 App. Cas. 286, extracted in Bennett & Castles, 287-9. On the other hand, see Henry Reynolds, The Law of the Land , Penguin Books, Ringwood, Victoria, 1987, for persuasive argument that the legal position assumed by the English was inconsistent with the facts. Now see the High Court decision in Mabo v Commonwealth
Note 10 Blackstone, Commentaries , I, 108. For an example of the Privy Council finding English law inapplicable, see Cooper v. Stuart, supra , 289.
Note 11 Until briefly in 1832, and later in 1843. See below.
Note 12 Constituted by the First Charter of Justice, Letters Patent of 2 April 1787, and operative until abolished in 1814.
Note 13 See e.g. Kable v. Sinclair , the first civil case heard in NSW: details in Neal, The Rule of Law in a Penal Colony , 1-7; cf. Castles, op cit , 6. The reason for this decision is not clear, but the Kable's caused a great deal of public interest in England, and the decision may have been made to avoid further notoriety (the property in question was obtained by charity). See the letter of Rev. Richard Johnson to Under Secretary Nepean, 12 July 1788: HRNSW, I (Pt.2), 181.
Note 14 See Appendix 4.
Note 15 Sir Charles Morgan to King, 4 Jan 1804, in response to a request for advice of 9 May 1803: HRA , I, 4, 452-3.
Note 16 Whether convicts (meaning emancipists) be allowed to practice in the Supreme Court was "a question of little importance" when compared with the consequences of closing the Court for a year: Bathurst to Macquarie, 18 April 1816, HRA , I, 9, 112, cited by Neal, op cit , 104.
Note 17 D'Arcy Wentworth, Principal Superintendant of Police, and member of the Sydney Bench of Magistrates, evidence to Bigge, in Ritchie, Evidence , I, 41-2.
Note 18 Castles, op cit , 112.
Note 19 West, op cit , 381-2.
Note 20 Opinion dated 13 May 1818, prior to Bullock v. Dodds , forwarded by Earl Bathurst to Macquarie 22 July 1818. Macquarie was asked that it be communicated to the Judge Advocate and Judge of the Supreme Court. Macquarie acknowledged same on 24 March 1819: HRA , I, 9, 820-1. Deputy Judge Advocate Wylde and Mr Justice Field requested the opinion on 5 April 1817: HRA , IV, 1, 243-7.
Note 21 A decision of the Governor's Court, 4 April 1820: see HRA , I, 10, 533; Castles, op cit , 113.
Note 22 Supreme Court of Civil Judicature, Field J presiding, 15 September 1820: ibid.