Regarding the important decision in the case of the woman JANE NEW by the three Judges in the Supreme Court on Saturday last, and by which it is now ruled decidedly – in the first place, that the Governor of this Colony has not the power of revoking any assignment of a prisoner of the crown once made, unless for the benefit of a deserving prisoner, and not expressly to do an injustice to the assignee; secondly, that the Governor of Van Diemen’s Land cannot legally allow a prisoner transported to that Colony to quit his immediate government, and consequently that any prisoner being in New South Wales under such authority, may be considered as illegally at large — regarding, we repeat it, the order of Court, grounded upon the second part of that most important decision, notwithstanding all the respect and veneration which we feel sincerely for the
learning and wisdom of the same Honorable Bench, we cannot somehow avoid entertaining a few misgivings.
These misgivings we shall briefly state. The purport of the order of Court just alluded to was, if we mistake not greatly, that JANE NEW, as a prisoner illegally at large, should be sent back to the factory till some means could be provided by the Government for her transmission to Van Diemen’s Land.
This may correspond pretty nearly with the second part of the Judges’ decision, but it evidently clashes, and appears to us as rather inconsistent with the former part. For instance, to confine the woman to the factory, she must be separated from her husband, who is her acknowledged assignee, and that contrary to his wish and to his interest. But how, under the same decision, can the Governor deprive this assignee of the woman’s services, in which his Excellency has not even the slightest property? or how can she be punished as being illegally at large, when it is admitted on the oath of the Colonial Secretary, that Lieutenant Governor Arthur had so far granted a remission of her sentence, as to discharge JANE NEW from his custody? Or how can she be considered
illegally at large, when LEGALLY assigned to her husband? We are aware that the
case involved points most important to the well-being of society in these Colonies. We are aware also of the difficulties attending their satisfactory solution, and we desire heartily to contribute our humble tribute of applause for the calm, dignified, learned, and impartial reception which the whole case has met with from the Judges; yet on contrasting the profound and sagacious decision on the one hand, with the coercive order of Court on the other, we cannot shut out of consideration a very self-evident inconsistency; nor can we altogether pass over the consequences, which may result to many persons here and at the Sister Colony, with reference to that order of Court. There are doubtless many hundred persons now in the Colony situated, as regards their personal claim to immunities, pretty similarly as JANE NEW is.
Without impartiality, there cannot well be justice; therefore, should the above order of Court be peremptorily acted upon, and the Authorities at Van Diemen’s Land adopt similar steps, it is reasonably to be expected there will issue a second order requiring all prisoners, whether here or there, to return forthwith to their original place of exile :- a removal which would subject many to inevitable loss, perhaps of what little property several may have spent some years in industriously accumulating, besides a painful separation from their respective families; and all this without any perceptible benefit
accruing to either Colony.
That JANE NEW was illegally at large, the learned judges considered— but how was that fact proved? How should it be proved? It could only be proved by a legal process. None but original documents, in cases any way similar, are, except very rarely, attended to in a Court of Justice. There was every reason to believe the woman had been transported from England to Van Diemen’s Land; but the original indent was not produced. The
only evidence forthcoming to prove the woman’s transportation, was a copy of the
copy from a copy of an indent— a copy furnished by the Colonial Secretary of this
The fact is pretty conclusive, and no rational doubt can be entertained upon it that the woman was so transported: still, we are simply going upon facts.
As the learned Judges however, wisely and impartially decided upon the woman’s assignment to her husband being legal, considering the consequences that may ensue to others from the order of Court being peremptorily acted upon, we do not regret that their Honors’ decision has a prospective but also a retrospective tendency.
The Government folks, if we may be allowed to judge from the following Notice, are about getting up a new POST in lieu of the sham thing now in progress. We shall just stop to run over the Notice, and then do our endeavour to eke out its object.
See Original: “No title,” The Australian (Sydney, NSW: 1824 – 1848), Friday 27 March 1829, p.2