against whose decision the appeal itself was made.[1] In the second place, if either side wished to appeal further and to carry the case to the Privy Council, the expense and delay were such as to make a creditor ready to accept any compromise, and thus to put a premium on sharp practice and vexatious proceedings.[2]
In early days the Civil Court had been occupied by small matters only, and to such a summary procedure was applicable. But by 1810 the causes had grown in complexity and in amount. Trained lawyers were necessary to expound the suits brought before it. But the Colony could only provide attorneys from the convict ranks. At first Ellis Bent, with the horror of a man who held high the honour of his profession, had determined to bring to an end their pollution of his Court. Realising, however, that such a course would have inflicted real injury on the parties, he gave way,[3] and drew up a Rule by which a special permission to plead might be given by the Court in each case. The attorney had, however, to exhibit a written instrument "duly executed by the person in whose behalf he shall be authorised to appear," and to lodge with the chief clerk a certificate from the Governor's Secretary declaring him a free inhabitant of the territory.[4] Under this regulation some emancipists, of whom George Crosley was the most prominent, engaged in lucrative practices.
In this Court a convict could neither sue nor be sued. According to Bligh this was one of "the old-standing regulations of the Colony".[5] It imposed a real hardship, for many of the convicts, and especially the ticket-of-leave men, entered freely into business contracts. Indeed it cut both ways, as may be seen from Crosley's case. When Dr. Harris was
- ↑ Of course the two magistrates in the Civil Court could have given a verdict in which the Judge-Advocate did not concur. In practice, however, this never occurred.
- ↑ D., 13, 23rd November, 1812, Bathurst to Macquarie. R.O., MS.
- ↑ See his letters of 1814 and 1815 to Lord Bathurst, especially that dated 1st July, 1815. R.O., MS.
- ↑ Rule of the Court of Civil Jurisdiction, S.G., 5th October, 1812. "Free inhabitant" included those free by servitude or pardon. Parties might still appear in person if they wished to.
- ↑ Evidence before C. on T., 1812. There is no such regulation to be found in the colonial records. It was, however, the accepted custom of the Courts—and founded on the law of England.
