Bent Bents
Okay, so much for the military. What about the judiciary? Well, Macquarie had some real luck there. A bloke called Ellis Bent had been appointed as New South Wales's Deputy Advocate General.
It's not entirely clear who he was deputy to, but his role was to act as a magistrate in the civil and criminal courts. Unlike anybody else in the colony, he was an experienced and qualified barrister. Well, unlike anyone else who had not been disqualified after being sentenced for whatever crime they were convicted of.
Bent travelled to Australia on the same ship as Macquarie, and the two became good friends. Ellis came up with a number of proposed reforms that Macquarie thought were pretty much the bees knees.
But there were warning signs. What a surprise! Lachlan doesn't seem to have been a very good judge of friends. Upon his arrival, Ellis refused to move into his designated house. It was, according to Ellis, no better than a pigsty.
So Macquarie arranged for him to move into a grand colonial house. But Ellis hated that, too. So Macquarie involved Ellis in the design of a third house, to be combined with a courthouse. Ellis moved into his great mansion, with the tiny attached courthouse, but then complained about that as well.
Bent demanded another, but by this time Macquarie's expenditures were being reduced by the London nabobs. But Bent blamed poor old Macquarie, and told him he was a turd, and he, Bent, didn't show respect for turds, although perhaps not in quite those words. He even stopped standing when everyone else stood when Macquarie walked into church on Sundays. Goodness!
In the meantime, while difficult about houses, he had agreed to allow three former barristers to act as "representatives" of their clients in court. There was, after all, no other way to organise representation, no other way for proper justice to operate in the good old English way. Or as close to it as they could get.
Ellis further, quite rightly, argued that he should not be subject to the governor's authority. But Macquarie, equally rightly, pointed to his commission as governor, where it said quite plainly that a person in Bent's position was to be subject to the governor's authority.
Such an instruction was quite contrary to the British constitutional concept of the separation of powers, although noting that this was nowhere near as clear or defined in Britain as it was in the United States. In theory, this concept provides for the executive (president, or prime minister, or in this case governor, and cabinet), the legislature (parliament, or congress, or in this case the imperial government), and judiciary (courts, or in this case Ellis) be as separate as possible so that one can't order the other to do anything, and one doesn't outrank the other.
But this was hardly Macquarie's fault. He was no constitutional expert, and besides he had his orders and was required, as a good military man, to follow them. Mind you, that wouldn't have done him any good at Nuremberg, not that that was any of his concern. And in a frontier community with a small free population and a high convict population, it's arguable that the separation of powers was fine in theory, but not practical in New South Wales. Especially as the British government was not completely enamoured of the idea anyway.
One of the reforms Ellis suggested was for the establishment of a Supreme Court, and for properly qualified barristers to be encouraged to sail for the colony. Following conversations with Bent, Macquarie recommended Bent for appointment to the court. Not Ellis Bent, but his elder brother Jeffrey.
This was more than a little silly of Ellis, however, as there was a consequent reduction in his caseload, with the inevitable following disaster of a drop in the part of his income made from charging fines. A great way to ensure the honesty and fairness of the court, that, giving the magistrate/judge part of the earnings from fines. I don't think. And Ellis was having financial difficulties.
The British government agreed to the court's establishment, and Macquarie's recommendation. And boy oh boy, what a disaster this was to be. Jeffrey (sometimes Geoffrey) Bent, was a total, unadulterated arsehole, with an extremely over-developed sense of his own importance. And that of his position as a judge. His first act was to proclaim long and loud upon his appointment that he should have been knighted. So he was in a foul mood about New South Wales before he even left London. Mind you, there's a very strong possibility he was in a foul mood all the time.
After this fuss, his next act was pretty inevitable. Upon his arrival in Sydney, he refused to get off the ship unless a proper cannonade salute was fired. If Macquarie had known what Jeffrey was going to do, he might have ordered the guns be turned on the ship.
Macquarie had ordered that part of the hospital be turned into a courthouse. But a larger area had been provided to the army. And Jeffrey just hated the greater deference shown the army over the law. And him. So he refused to use that place as a court. This must almost have seemed like a spot of déjà vu for Macquarie after Ellis and his houses.
And, of course, it got worse. Jeffrey exerted his influence over the younger Bent, and now Ellis began refusing to allow emancipist former barristers to appear in his court. While the British had managed to inveigle two barristers to travel to Sydney, only one had arrived so far. Macquarie pointed out that justice couldn't possibly prevail when only one party to a case could be represented. Bent said they would have to await the arrival of the other lawyer.
Jeffrey hated the fact that the army didn't have to pay road tolls, but he did. In the end, he refused to pay a toll, threatened the toll keeper with various consequences, and ended up appearing in the magistrate's court of D'Arcy Wentworth, who issued a fine. The matter appears to have been swept under the carpet.
In the year that followed, Jeffrey and Ellis made Macquarie's life hell. And Jeffrey only heard one matter before his court, an application by the three emancipist former lawyers to be permitted to appear before the Supreme Court. Almost needless to say, Jeffrey refused.
In the end, after that year, Macquarie had to tell London that either they went or he did. Perhaps unfortunately for Lachlan in the long run, the Bents were recalled. Except before the order arrived, Ellis died, leaving his wife and several children pretty much without a penny. Macquarie, despite his feelings about Ellis, asked that she be given a pension, which she was. Of course, Jeffrey blamed Macquarie for Ellis's death by giving him substandard accommodation.
Jeffrey, of course, took the opportunity not only to write letters complaining about Macquarie, but upon his return to London, he blackened Macquarie's name wherever he, Bent, went. Oh, and he insisted Macquarie be sacked and he, Bent, be appointed in his place. Bathurst, the Secretary for War and the Colonies, must have been building up quite a file on Macquarie. Or, roomful of files. But he wasn't silly enough to swap Lachlan for Jeffrey.
It's not entirely clear who he was deputy to, but his role was to act as a magistrate in the civil and criminal courts. Unlike anybody else in the colony, he was an experienced and qualified barrister. Well, unlike anyone else who had not been disqualified after being sentenced for whatever crime they were convicted of.
Bent travelled to Australia on the same ship as Macquarie, and the two became good friends. Ellis came up with a number of proposed reforms that Macquarie thought were pretty much the bees knees.
But there were warning signs. What a surprise! Lachlan doesn't seem to have been a very good judge of friends. Upon his arrival, Ellis refused to move into his designated house. It was, according to Ellis, no better than a pigsty.
So Macquarie arranged for him to move into a grand colonial house. But Ellis hated that, too. So Macquarie involved Ellis in the design of a third house, to be combined with a courthouse. Ellis moved into his great mansion, with the tiny attached courthouse, but then complained about that as well.
Bent demanded another, but by this time Macquarie's expenditures were being reduced by the London nabobs. But Bent blamed poor old Macquarie, and told him he was a turd, and he, Bent, didn't show respect for turds, although perhaps not in quite those words. He even stopped standing when everyone else stood when Macquarie walked into church on Sundays. Goodness!
In the meantime, while difficult about houses, he had agreed to allow three former barristers to act as "representatives" of their clients in court. There was, after all, no other way to organise representation, no other way for proper justice to operate in the good old English way. Or as close to it as they could get.
Ellis further, quite rightly, argued that he should not be subject to the governor's authority. But Macquarie, equally rightly, pointed to his commission as governor, where it said quite plainly that a person in Bent's position was to be subject to the governor's authority.
Such an instruction was quite contrary to the British constitutional concept of the separation of powers, although noting that this was nowhere near as clear or defined in Britain as it was in the United States. In theory, this concept provides for the executive (president, or prime minister, or in this case governor, and cabinet), the legislature (parliament, or congress, or in this case the imperial government), and judiciary (courts, or in this case Ellis) be as separate as possible so that one can't order the other to do anything, and one doesn't outrank the other.
But this was hardly Macquarie's fault. He was no constitutional expert, and besides he had his orders and was required, as a good military man, to follow them. Mind you, that wouldn't have done him any good at Nuremberg, not that that was any of his concern. And in a frontier community with a small free population and a high convict population, it's arguable that the separation of powers was fine in theory, but not practical in New South Wales. Especially as the British government was not completely enamoured of the idea anyway.
One of the reforms Ellis suggested was for the establishment of a Supreme Court, and for properly qualified barristers to be encouraged to sail for the colony. Following conversations with Bent, Macquarie recommended Bent for appointment to the court. Not Ellis Bent, but his elder brother Jeffrey.
This was more than a little silly of Ellis, however, as there was a consequent reduction in his caseload, with the inevitable following disaster of a drop in the part of his income made from charging fines. A great way to ensure the honesty and fairness of the court, that, giving the magistrate/judge part of the earnings from fines. I don't think. And Ellis was having financial difficulties.
The British government agreed to the court's establishment, and Macquarie's recommendation. And boy oh boy, what a disaster this was to be. Jeffrey (sometimes Geoffrey) Bent, was a total, unadulterated arsehole, with an extremely over-developed sense of his own importance. And that of his position as a judge. His first act was to proclaim long and loud upon his appointment that he should have been knighted. So he was in a foul mood about New South Wales before he even left London. Mind you, there's a very strong possibility he was in a foul mood all the time.
After this fuss, his next act was pretty inevitable. Upon his arrival in Sydney, he refused to get off the ship unless a proper cannonade salute was fired. If Macquarie had known what Jeffrey was going to do, he might have ordered the guns be turned on the ship.
Macquarie had ordered that part of the hospital be turned into a courthouse. But a larger area had been provided to the army. And Jeffrey just hated the greater deference shown the army over the law. And him. So he refused to use that place as a court. This must almost have seemed like a spot of déjà vu for Macquarie after Ellis and his houses.
And, of course, it got worse. Jeffrey exerted his influence over the younger Bent, and now Ellis began refusing to allow emancipist former barristers to appear in his court. While the British had managed to inveigle two barristers to travel to Sydney, only one had arrived so far. Macquarie pointed out that justice couldn't possibly prevail when only one party to a case could be represented. Bent said they would have to await the arrival of the other lawyer.
Jeffrey hated the fact that the army didn't have to pay road tolls, but he did. In the end, he refused to pay a toll, threatened the toll keeper with various consequences, and ended up appearing in the magistrate's court of D'Arcy Wentworth, who issued a fine. The matter appears to have been swept under the carpet.
In the year that followed, Jeffrey and Ellis made Macquarie's life hell. And Jeffrey only heard one matter before his court, an application by the three emancipist former lawyers to be permitted to appear before the Supreme Court. Almost needless to say, Jeffrey refused.
In the end, after that year, Macquarie had to tell London that either they went or he did. Perhaps unfortunately for Lachlan in the long run, the Bents were recalled. Except before the order arrived, Ellis died, leaving his wife and several children pretty much without a penny. Macquarie, despite his feelings about Ellis, asked that she be given a pension, which she was. Of course, Jeffrey blamed Macquarie for Ellis's death by giving him substandard accommodation.
Jeffrey, of course, took the opportunity not only to write letters complaining about Macquarie, but upon his return to London, he blackened Macquarie's name wherever he, Bent, went. Oh, and he insisted Macquarie be sacked and he, Bent, be appointed in his place. Bathurst, the Secretary for War and the Colonies, must have been building up quite a file on Macquarie. Or, roomful of files. But he wasn't silly enough to swap Lachlan for Jeffrey.