Research Brief 12
In 1837, wealthy landowner and ex-magistrate James Mudie returned to London and published a book entitled The Felonry of New South Wales. In it, he described the law courts and the legal profession in New South Wales as “a sink of corruption and iniquity, detestable profligacy and disgusting filth”. Did Mudie’s apparent bitterness arise from the loss of his magistrate’s position and the disgrace of a formal investigation into his treatment of convicts? Or might it point to a peculiar characteristic of the development of the New South Wales justice system?
Ex-convicts played a critically important role in this system. They did not appear in early colonial courtrooms only in the role of criminal defendants. In fact, Australia’s first legal practitioners were emancipists: convicts transported to New South Wales, and subsequently ‘emancipated’ or pardoned, often within a year or two of arrival in the colony. For the first thirty years of European settlement, emancipated convicts were the only legal practitioners. As the colony expanded logistically and economically, they advised wealthy settlers and equally wealthy emancipists. Most importantly, their legal advice was sought by Governors and the early colonial courts. In England, convicted lawyers were disqualified from practice. Yet in New South Wales, they thrived.
The early colonial penal system was very different to the English court system. There were two courts, the Courts of Criminal and Civil Jurisdiction. The Court of Criminal Jurisdiction was ostensibly a military court. There were no judges or juries such as those that sat in London’s Old Bailey. A Judge-Advocate, usually a military officer, oversaw the proceedings, but adjudicated criminal cases with two other military officers who could overrule him on points of law at any time. There were no grand juries to decide whether a prosecution’s case should go to trial, and no petit juries of twelve men to adjudicate the facts of a case during trial. In the early decades of the colony, the jury consisted of five, then later seven, military officers. Yet the Judge-Advocates and the military officers had very little knowledge of the law, and often lacked legal texts to advise them. Those texts they had were often unsuitable to colonial conditions. This lack of legal knowledge and training led to a unique development in colonial law, that is, the refutation of the law of felony attaint. An early court decision opened the gates to privilege and position for emancipated convicts, including the lawyers.
In July 1788, convict couple Susannah and Henry Kable successfully sued ship’s captain Duncan Sinclair for the theft of their property during the voyage. Under English law this case, Australia’s first civil case, should not have made it into court. The felony attaint rule directed that anyone sentenced to death was forever ‘dead’ in the eyes of the law, even when that sentence was transmuted to transportation. Prisoners lost all rights to property, and could not give evidence or represent another person in court. The first Judge-Advocate, David Collins, although likely aware of the rule of felony attaint, found in favour of the Kables. This ruling subsequently enabled emancipated convicts with legal training to practise in the courts.
One of these emancipated convicts was lawyer George Crossley. Crossley, born in 1751, was a London solicitor with a somewhat shady history who was convicted of perjury in a professional malpractice suit. He spent time in the pillory in London, being pelted with rotten fruit and other missiles, before his sentence was transmuted to seven years transportation. Crossley arrived in Sydney in 1799, and like many other convicts with desirable skills, was pardoned by Governor King within two years of his arrival.
Crossley advised three Governors in his capacity as legal practitioner, although the outcomes did not always prove favourable to Crossley himself. He had a profitable relationship with Governor King, who actively sought his legal advice after Crossley’s emancipation and subsequent return to legal practice in 1803. He also advised the infamous Governor Bligh. In 1808, Bligh asked Crossley to write up a bill of indictment charging controversial Rum Corp lieutenant John Macarthur, with sedition. This triggered Australia’s only military coup d’état, colloquially termed ‘the Rum Rebellion’. Macarthur and his fellow military officers arrested Governor Bligh, returned him to London, and ruled the colony for the next two years.
The arrest of Governor Bligh, 1808. Courtesy of the State Library of New South Wales, a128113.
Macarthur applied the felony attaint rule, and prosecuted Crossley for practising as a lawyer. He was sentenced to seven years transportation at Coal River penal colony in Newcastle. Crossley remained there until the newly-arrived Governor Macquarie released him in 1810. Crossley returned to Sydney, and successfully sued the rebel officers for trespass and false imprisonment.
He then continued his legal practice, advising Governor Macquarie, representing some of the wealthiest people in the colony, and even recovering debts owed to the Crown. This happy situation ended in 1814, however, following the arrival of Judge Jeffery Bent. By this time, legally trained judges were appointed as Judge-Advocates, rather than military officers. Bent ruled that felony attaint did indeed apply in the colony, and the ex-convict lawyers were banished from the court.
The Philp trial, painted by Edward Charles Close – sketchbook of New South Wales views, c. 1817. Courtesy of the State Library of New South Wales, a2821047.
This seemed to spell the end of emancipated lawyers in the courtroom. Crossley, however, devised a plan. He began work as a law clerk to recently emigrated attorney, Thomas Amos. In reality Crossley continued his legal practice with Amos as the ‘front man’. Other ex-convict lawyers copied this model, working behind the scenes and thus avoiding the felony attaint ruling. Although George Crossley died in 1823, other emancipated lawyers continued in their ‘employment’ as law clerks up until 1838. In that year, a New South Wales Supreme Court decision effectively barred emancipated lawyers from holding even these positions.
Perhaps the Supreme Court was influenced in this ruling by the publication of James Mudie’s book the year before, in which he alluded to the courts’ corruption. The book did not, naturally, impress many of the colonists. The emancipist newspaper, The Australian, (no relation to the current national paper) scathingly dismissed Mudie’s views. It reminded readers that Mudie had little cause to complain; he had arrived in poverty, yet left the colony “with the snug little sum of £10,000 in his pocket”. Whatever Mudie’s opinions on the quality of criminal justice in New South Wales, however, ex-criminal lawyers were integral to the early Australian legal system. Their contribution to the development of that system is worth remembering.
Author: Lisa Durnian, PhD candidate
To cite this research brief: Lisa Durnian, ‘Criminals in the courtroom’, The Prosecution Project, Research Brief 12, https://prosecutionproject.griffith.edu.au/criminals-in-the-courtroom (29 April 2015, viewed 19 July 2016).