11/04/2007
History of New South Wales From the Records
VOLUME 1 - GOVERNOR PHILLIP 1783-1789G. B. Barton - 1889
PART III
The Act of Parliament Establishing the Colony
THE Orders-in-Council were followed by the Act 27 Geo. III, c. 2, passed in the year 1787, "to enable his Majesty to establish a Criminal Judicature on the eastern coast of New South Wales and the parts adjacent."
Whereas by an Act made and passed in the twenty-fourth year of his present Majesty's reign, intituled - An Act for the effectual transportation of felons and other offenders, and to authorise the removal of prisoners in certain cases, and for other purposes therein mentioned, it is enacted that, from and after the passing of that Act, when any person or persons at any Sessions of Oyer or Terminer or Gaol Delivery, or at any Quarter or other General Session of the Peace to be holden for any county, riding, division, city, town, borough, liberty, or place, within that part of Great Britain called England, or at any Great Session to be holden for the County Palatine of Chester, or within the Principality of Wales, shall be lawfully convicted of grand or petit larceny, or any other offence for which such person or persons shall be liable by the laws of this realm to be transported, it shall and may be lawful for the Court before which any such person or persons shall be convicted as aforesaid, or any subsequent Court holden at any place for the same county, riding, division, city, town, borough, liberty, or place respectively, with like authority, to order and adjudge that such person or persons so convicted as aforesaid shall be transported beyond the seas for any term of years not exceeding the number of years or terms for which such person or persons is or are or shall be liable by any law to be transported; and in any such case it shall or may be lawful for his Majesty, by and with the advice of his Privy Council, to declare and appoint to what place or places, part or parts, beyond the seas, either within his Majesty's dominions, or elsewhere out of his Majesty's dominions, such felons or other offenders shall be conveyed or transported: And such Court as aforesaid is thereby authorised and empowered to order such offenders to be transferred to the use of any person or persons, and his or their assigns, who shall contract for the due performance of such transportation:
And when his Majesty, his heirs and successors, shall be pleased to extend mercy to any offender or offenders who hath or have been, or shall be convicted of any crime or crimes, for which he, she, or they is or shall be by law excluded from the benefit of clergy, upon condition of transportation to any place or places, part or parts, beyond the seas, either for term of life, or any number of years, and such extension of mercy shall be signified by one of his Majesty's Principal Secretaries of State, it shall be lawful for any Court, having proper authority, to allow such offender or offenders the benefit of a conditional pardon, and (except in cases where such offenders shall be authorised by his Majesty to transport himself, herself, or themselves) to order the transfer of such offender or offenders to any person or persons who shall contract for the due performance of such transportation, and his or their assigns, for such and the same term of years for which any such offender or offenders shall have been ordered to be transported, or for such term of life or years as shall be specified in such condition of transportation:
And whereas his Majesty, by two several Orders-in-Council, bearing date respectively on the sixth day of December, 1786, hath judged fit, by and with the advice of his Privy Council, to declare and appoint the place to which certain offenders, named in two lists to the said several Orders-in-Council annexed, should be transported for the time or term in their several sentences mentioned, to be the eastern coast of New South Wales, or some one or other of the islands adjacent:
And whereas Sir James Eyre, Knight, and Sir Beaumont Hotham, Knight, two of the Barons of his Majesty's Court of Exchequer of the degree of the coiffe, according to the authority to them given by the said statute, did, on the thirtieth day of December, 1786, order that the said several offenders, in the said several lists to the said several Orders-in-Council annexed, should be transported to the place and for the time and terms aforesaid:
And whereas it may be found necessary that a colony and a civil Government should be established in the place to which such convicts shall be transported, under and by virtue of the said Act of Parliament, the said two several Orders of Council, and other the said above-recited Orders, and that a Court of Criminal Jurisdiction should also be established within such place as aforesaid, with authority to proceed in a more summary way than is used within this realm, according to the known and established laws thereof :
Be it therefore enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same, that his Majesty may, by his Comission under the Great Seal, authorise the person to be appointed Governor, or the Lieutenant-Governor in the absence of the Governor, at such place as aforesaid, to convene from time to time, as occasion may require, a Court of Judicature for the trial and punishment of all such outrages and misbehaviours as, if committed within this realm, would be deemed and taken, according to the laws of this realm, to be treason or misprision thereof, felony or misdemeanor, which Court shall consist of the Judge-Advocate, to be appointed in and for such place, together with six officers of his Majesty's forces by sea or land;
Which Court shall proceed to try such offenders by calling such offenders respectively before that Court, and causing the charge against him, her, or them respectively, to be read over, which charge shall always be reduced into writing, and shall be exhibited to the said Court by the Judge-Advocate, and by examining witnesses upon oath, to be administered by such Court, as well for as against such offenders respectively, and afterwards adjudging by the opinion of the major part of the persons composing such Court, that the party accused is or is not (as the case shall appear to them) guilty of the charge, and by pronouncing judgment therein (as upon a conviction by verdict) of death, if the offence be capital punishment or such corporal punishment not extending to capital punishment, as to the said Court shall seem meet; and in cases not capital, by pronouncing judgment of such corporal punishment, not extending to life or limb, as to the said Court shall seem meet.
II. And be it further enacted that the Provost-Marshal, or other officer to be for that purpose appointed by such Governor or Lieutenant-Governor, shall cause due execution of such judgment to be had and made under and according to the warrant of such Governor or Lieutenant-Governor in the absence of the Governor, under his hand and seal, and not otherwise:
Provided always that execution shall not be had or done on any capital convict or convicts, unless five persons present in such in capital Court shall concur in adjudging him, her, or them, so accused and tried as aforesaid, to be respectively guilty, and until the proceedings shall have been transmitted to his Majesty and by him approved.
III. And be it so enacted by the authority aforesaid that the said Court shall be a Court of Record, and shall have all such powers as by the laws of England are incident and belonging to a Court of Record (1).
NOTES:
1. The Act is silent about the Court of Civil Jurisdiction; post p. 531
11/04/2007
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