1787 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 larency, 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 Court may 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. order trans portation. Order-in Council may appoint place of 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 terms 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 Court may lawful for any Court, having proper authority, to allow such order trans- 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. fer of convicts to contractor. Council Wales. And whereas his Majesty, by two several Orders-in-Council, 1787 bearing date respectively on the sixth day of December, 1786, hath Order-injudged fit, by and with the advice of his Privy Council, to declare appointing and appoint the place to which certain offenders, named in two New South 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. Court for And whereas Sir James Eyre, Knight, and Sir Beaumont Order of Hotham, Knight, two of the Barons of his Majesty's Court of transportaExchequer of the degree of the coiffe, according to the authority tion. 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 Colony and 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 Juris- Criminal diction 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. civil govern ment Court. may convene 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 Commission under the Great Seal, authorise the person to be appointed Governor, or the Lieutenant-Governor in the absence of the Gover- Governor nor, at such place as aforesaid, to convene from time to time, as occasion may require, a Court of Judicature for the trial and Criminal 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, How to be appointed in and for such place, together with six officers of composed. his Majesty's forces by sea or land: Court. procedure. 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 Method of 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 1787 them) guilty of the charge, and by pronouncing judgment therein Judgment of (as upon a conviction by verdict) of death, if the offence be capital, death or or of such corporal punishment not extending to capital punishpunishment. ment, 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. corporal Provost- In capital cases five must concur, Court to be a Court of Record. 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 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 hint 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. LETTERS PATENT CONSTITUTING THE COURTS OF LAW. 2 April. George the Third, by the Grace of God, King of Great Britain, France, and Ireland, Defender of the Faith, &c. To all to whom these presents shall come, greeting : Orders-in- Colony Civil Court. WHEREAS by virtue of an Act of Parliament passed in the twentyfourth year of our reign Wee have judged fit, by and with the advice of our Privy Council, by two several orders bearing date respectively on the sixth day of December [and the twenty-second day of December] one thousand seven hundred and eighty-six, to declare and appoint the place to which certain offenders should be transported for the time or terms in their several sentences mentioned to be the eastern coast of New South Wales, or some or other of the islands adjacent. And whereas Wee find it necessary that a colony and civil government should be established in the place to which such convicts shall be transported, and that sufficient provision should be made for the recovery of debts and determining of private causes between party and party in the place aforesaid. Wee, taking the same into our Royal consideration, and being desirous that justice should be administered to all our subjects, have of our especial grace, certain knowledge, and meer motion thought fit to grant, ordain, direct, and appoint, and by these presents do for us, our heirs and successors, will, grant, ordain, direct, and appoint that there shall be within the place aforesaid a Court, to be called the COURT OF CIVIL JURISDICTION. 1787 2 April. Court-its And that such Court shall consist of the Judge-Advocate for The Civil the time being, together with two fit and proper persons inhabiting constitution the said place, to be appointed from time to time by our Governor, or in case of the death or absence by our Lieutenant-Governor for the time being, or of any two of them (whereof the Judge-Advocate to be one), to which Court Wee do hereby give full power and authority to hold plea of and to hear and determine in a summary and jurisway all pleas concerning lands, houses, tenements, and heredita- diction." ments, and all manner of interests therein, and all pleas of debt, account, or other contracts, trespasses, and all manner of other personal pleas whatsoever. And Wee do further will, ordain, and grant to the said Court full power and authority to grant probate of wills and administra- Probate tion of the personal estates of intestates dying within the place or settlement aforesaid. and adminis tration. And our further will and pleasure is, and Wee do by these presents for us our heirs and successors direct, ordain, and appoint that, upon complaint to be made in writing to the said Court by Procedure. any person or persons against any other person or persons residing or being within the said place of any cause or suit, the said Court shall or may issue a warrant in writing under the hand and seal of the said Judge-Advocate for the time being, to be directed to the Provost-Marshall, or such other officer as shall be appointed by our Governor to execute the process thereof, which warrant shall contain shortly the substance of the complaint, and shall either appear. command such officer to summon the defendant or defendants to appear. Summons to Or in case the value of the demand be ten pounds or upwards (of which oath shall first be made), command him to bring his, her, or their body or bodies, or take bail for his or their appearance Bail for before the said Court at a certain time or place therein to be appearance. named, to answer to the said complaint and to find sufficient security for his, her, or their performance of such judgment, sentence, or decree as shall be pronounced thereupon or finally given upon an appeal. in Court. And upon appearance, arrest, or non-appearance, or return by the officer that the defendant or defendants cannot be found, Wee do hereby, for us, our heirs and successors, ordain, direct, and authorize the said Court to proceed to the examinatiou of the Proceeding matter and cause of such complaint, and upon due proof made thereof, either upon the oath or oaths of any witness or witnesses in writing, to be by him, her, or them subscribed (for which purpose Wee do by these presents empower and require the said Court to administer an oath to such witnesses as shall be produced 1787 2 April. Execution. Imprisonment in default. Costs to defendant. Appeal to the Governor and Privy Council. Time of appeal. Attachment. by either party, plaintiff or defendant), or by the voluntary confession of such defendant or defendants, to give judgment and sentence according to justice and right. And to award and issue out a warrant or warrants of execution under the hand and seal of the said Judge-Advocate for the time being, for levying the duty adjudged or decreed to the party or parties complainant, together with costs of suit, upon the goods and chattels of such defendant or defendants, and to cause sale to be made of the said goods and chattels, rendering to the party the overplus, if any be. And for want of sufficient distress, Wee do hereby for us our heirs and successors give full power and authority to the said Court to imprison the defendant or defendants until satisfaction be made by him, her, or them, to the plaintiff or plaintiffs of the duty decreed, together with the costs; and in case judgment shall be given for the defendant or defendants, Wee do hereby likewise give full power and authority to the said Court to award costs to such defendant or defendants, and to issue like process of execution for the same as in cases where costs are awarded to any plaintiff or plaintiffs. And if either party shall find him or themselves aggrieved by any judgment or decree to be given or pronounced by the said Court, our will and pleasure is that he, she, or they shall and may appeal to the Governor of the eastern coast of New South Wales and the parts adjacent, or in case of his death or absence to the Lieutenant-Governor for the time being, whom Wee do hereby empower and authorize to hear and determine the same, and to issue process of summons to answer to such appeal and the like process of execution as the said Court is hereby directed and empowered to issue. And if either party shall find him, her, or themselves aggrieved by the judgment or determination of the said Governor in any case where the debt or thing in demand shall exceed the value of £300, and not otherwise, our will and pleasure is that such party so aggrieved may appeal to us or our heirs and successors in Council. And Wee do further will and ordain that no appeal shall be admitted from the judgment of the said Court, unless the same shall be interposed within eight days after the said judgment, nor from the judgment of the Superior Court unless the same shall be interposed within fourteen days after the judgment of such Superior Court; And further, that the said Court may proceed in a summary way by foreign attachment of goods, debts, and effects of debtors in the hand or possession of other persons residing in the place aforesaid. And Wee further will and ordain that all complainants at whose suits any persons shall be imprisoned shall make an allowance |