Forbes correspondence

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In 1826, the privates Joseph Sudds and Patrick Thompson deliberately committed theft in the expectation that they would be transported, a fate they believed to be preferable to continued service in the army. Lieutenant Governor Ralph Darling, Governor of N.S.W., commuted their sentence to a flogging and assignment of seven years hard labour in the chain gang. This collection includes reports, notes and correspondence with and from Francis Forbes, the first Chief Justice of the Supreme Court of NSW, that relate to the Sudds and Thompson cases, the transmission of charges by Captain Robison against Governor Ralph Darling, and Robison's trial and court martial.

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ill at the end of some weeks, he refused to work any longer, alleging that his sentence was illegal. He was removed to the Gaol at Penrith, from thence to the hulk, and ultimately sent to Moreton Bay, in compliance with his sentence - the first part of the punishment being contrary to his sentence, and also to law, and added by the sole fiat of the Governor.

Arbitrary conduct in encreasing [increasing] Punishments of Individuals in situations too humble to admit of their obtaining protection or redress.

See case of the Pirates – "Sydney Gazette, Feb.y 24. 1827–"

Under this head, any other cases of Individual oppression.

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(in margin – 3.W. 4. No.3).

Sect. 3 = enables court to sentence offenders convicted of transportable offence, to be kept to labor in irons Roads or Public Works of the Colony =

Sect 4 = every sentence of transportation passed in due course of law – and every order of transport’n made by Govr. in lieu of capital punishment, subjects the offender to be transported to such penal settlement within the Colony as Govr. shall appoint –

Sect. 7 – Every offender so transported to a Penal Colony shall be under the management of a Superintendent appointed by the Governor – and every such Superintendent shall have power as incident to the office of Sheriff or Gaoler – and such Commandant or[original text has been crossed out] Superintendent shall keep every offender in his custody to labor subject to such[original text has been crossed out] Rules and Regulations to be made for the management and discipline of such penal settlement by the Governor with the advice of the Executive Council –

Regulations made by the Governor in July 1829, still in force.

(In margin – Vide Sessional Paper No. 335 - 12th March 1832 Sess. Paper – No. 814 14 August 1834)

Despatch of Sir R. Bourke upon Secondary Punish ment – states that there are various grades of punishment at Norfolk Island – and the Convict sentenced in Syd. [Sydney] to confinement on Norfolk Isld. [Island] will be considered in the same light as an offender transported from the colony of N.S.W. and subject in every respect to the treatment prescribed by the Regulations

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The prisoners upon arrival at N. [Norfolk] Island, are placed on what is termed the second Class – they[original text has been crossed out] these are obliged to be kept to hard labor from sun rise to sun-set with stated hours for refection[original text has been crossed out] meals –

(in margin [indecipherable] 48th.)

The prisoners of the first class have certain indul– gences, which make their condition hardly dis. –tinguishable from ordinary servitude in N.S.W. "None are compelled to wear irons except such as are considered turbulent disorderly[original text has been crossed out] and dangerous charac– –ters and for whose safe-keeping the use of irons is necessary, and such as by special order of Govt. [Government] in cases of commutation from capital punishment" –

(in margin - Session Paper)

the rule of the Gov. [Governor] & the Executive Council, being to im– pose irons on criminals whose offences have been accompanied with violence" - The Sections of the local act 3.W 4 No 3 which relate to the Penal Settlements are borrowed from the act of Parliament 5 Geo.4 C.84 Sections 13-14-15 =

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A

Read the correspondence – is it the calm, the temperate, the decorous application of one high officer, calling upon another, in the exercise of a [original text has been crossed out] deliberate and independent duty, to perform what he is required by law to do – or is it the mandate of a superior, [original text has been crossed out] to an inferior – pointing out what he is required to do, intimating the risk that he runs by refusal? [original text has been crossed out] is it the act of the Governor, calling upon the Judge to certify his opinion upon a point of law – or is it the order of the Commander in Chief, conveying his commands, and [original text has been crossed out] a Court Martial in the event of disobedience – Subsequent conduct – refuses to go again to Council – no, the judge was that saddled with [indecipherable] responsibility - [indecipherable] [indecipherable] the [indecipherable] govts. of V.D.L. & the Council of N. S. W. upon his back – (Analyse Council)

The governor determined to bring down the Supreme Court – in defiance of the section of the Charter, in defiance of his own com– –mission, publicly read on his assuming the government, he de–termined to lower the Supreme Court – See Hume on the [indecipherable] – How has it happened that the officers of the Court should have been rather popular – that the Court should have [indecipherable added above the line] stood so high in the confidence of the public, [indecipherable crossed out] which for meritorious [indecipherable and several crossed out] "bought golden opinions from [original text has been crossed out] all sorts of people, [original text has been crossed out] should change its character alone to the govt - [original text has been crossed out] In the time of Sir G. B. and during the first [original text has been crossed out] year of Govr D's admin ? The community are too deeply interested in the character and conduct of their Supreme Court, to be deceived in their estimate of its virtue – How then has it happened that the governor has contrived to have some difference with every person holding any ostensible situation in the Court, from the [original text has been crossed out] lowest to the highest – By a regular climax His Excellency has proceeded upwards – he commenced with the Sherriff, and concluded with the C. J. and winds up by clearly intimating his entire want of confidence in the admin

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[Page 30]

of justice, so that (as he informed me) he had written to the Secretary of State to say that he had been so sickened with the delays of the Court, that he had determined to bring no more prosecutions for libel. Permit me to ask – is there no latent motive in this de– claration – is no practical [crossed out] argument involved in it – His Excellency restrained the late Atty Genl [Attorney General] from prosecuting the Australian, until it attacked himself – His Excy [Excellency] (became sensitive)[crossed out], then felt the awkward– ness of instituting prosecutions, in his own case, which he had refused to allow in others. Bills to suppress the papers became more convenient, and they were pressed on me – My reason was enforce existing laws - why have you neglected them, until by your own confession the press has become alarmingly limitless?[crossed through] the press of the Coly [Colony] has been disturbed by the licentiousness of the press? This argument was conclusive, it involved within it a silent censure on the laxity of local govt – it was necessary to must be [crossed through] get rid of it, and how so dextrously as by shewing that the Courts are insufficient [indecipherable] the press.

Now I affirm – first that the charge is groundless, and the report of the state of those pressing trials, which I [indecipherable], and a copy of which I have sent the Governor, will shew that the delay has been with the Crown officers, who do not scruple to say they have been goaded into prose– cutions which they thought they could not support – and secondly, that even badly as they have been managed, the pending prosecutions have had a most salutary effect – There has been no libel, to my apprehension; now the presnt Atty Genl came into office, & avowed his intention of pro– ceeding in every case of libel on the Government – Had the same steps been taken at an earlier period, then would have been no occasion for severity of measures now, and we should have been spared the perplexity of the bills restraining the press.

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