EL LIBRO DE HERMES

Macarthur, December 1864, Macarthur papers, vol. 3^> pp.361-8

ML.

It is perhaps surprising that with things m o v i n g towards a solution to the p r o blem of cattle stealing, P lunkett should have allo w e d h i m self to become party to a prosecution that could only result in bitterness, suspicion and a general w i d e n i n g of the gap b e t w e e n the exclusive and the emancipist parties. J o h n Bingle,

a settler on the H u n t e r where he ha d amassed considerable wealth, was one of those w h o m Bourke had struck from the list of

magis t r a t e s in I836 because of his ‘unfitness* . He w a s , together w ith an accomplice sent for trial on a charge of cattle stealing by Plunkett in M a y

1837.

thought the prose c u t i o n was simply an act of political expediency against him. Plunkett, in reply, spelt out his attitude to the p o w e r of the Att o r n e y - G e n e r a l and his concept of its use %

N o man would more rejoice than he w o u l d at the Att o r n e y - G e n e r a l b e i n g relieved from acting as G r a n d J u r y

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This disavowal was to little avail because P l u n k e t t was already considered an ‘irresponsible public officer* by the

H e r a l d which asked, ’D o e s John Hubert Plunkett desire to i m m o r t a l ­ ise his name?* and said that the public simply did not believe him when he stated that he had no political motives. To their verdict of N o t Guilty the jury had added a rider that the

prisoners had acted 'with great impropriety* w h i c h the Herald said was of no consequence because it was the product of one single juror, E d w i n Atwell Hayes, * an obsequious government

1. Bourke to Glenelg, 14 May 1837* H R A , 1, XVIII, 7 5 0 “ 1 and, for previous impressions on Bingle see B o u r k e to Goderich,

2k

p a r a s i t e ’ . Plunkett tried, u n s u c c e s s f u l l y to prosecute the editor f'or a libel on the jury, but failed, allegedly through h i s ’p r e c i p i t a n c y and want of k n o w l e d g e ’ „ The paper then ran a

letter that deplored the lack of delicacy and justice to others 1

in one ’so sensitive' himself.

On another charge, however, Plunkett's activity as G r a n d Jury was not questioned, at least in public. Six men 'all of

substance' were charged with conspiracy on land sales, in that whilst only one of them h a d bid at the sale they had afterwards met together and p a r c elled out the land at a much hi g h e r price

to each other. The case n a t u r a l l y e x c ited great interest and it drew a crowded Court to watch the proceedings. The main defence was that there could be no question of conspiracy as 'it was n o t h i n g more than, was constantly done* . The conspirators were

found guilty, but Plunkett was not present in court when they were sentenced. Rog e r Therry, acting on his behalf, explained

that Plunkett did not press for severity, m a k i n g it plain that the A t t o r n e y - G e n e r a l ' s m o t i v e was to 'prevent the continuance of a great public evil ! so] hi g h l y injurious to the C o l o n y * . The 'system had been checked already* so the conspirators were fined £100 . 0 . 0 each. T h erry said that 'the thanks of the public were

2 due to the Attorne y - G e n e r a l for conducting the p r o s e c u t i o n * .

D u r i n g this same p e r i o d Plunkett had to continue to foster the operation of the normal legal processes in the Courts. The frequent breakdown in the system between the centre of authority in Sydney and the o u tlying districts meant that people were often held in gaol for periods of up to twelve m o nths before b e i n g

brought to trial. At the adjournment of the Criminal Court in

1. To Bourke the i m p u t a t i o n that the prisoners had acted 'with great impropriety* was 'more than justified*« See Bourke to Gl en. e 1 g , 14 May 1837, H R A , 1, XVIII, 751. For the case see SH, 15, 22, 25 Mayj 5, 6, June 1837.

May 1 8 3 6 the re were 150 cases s t i l l u n t r i e d , some from the previous September, and Plunkett t r i e d to explain away a

s i t u a t i o n t h a t he f e l t could not be l a i d at h i s door as he was not r e s pons ible f o r ’ twelve years of n e g l e c t ’ . He spent the

ensuing months well, so t h a t by November he was able to express h i s d e l i g h t t h a t a l l cases but one had come up f o r t r i a l ,

des pit e the f a c t t h a t 2 0 3 0 p r i s o n e r s had been received i n t o the Sydney gaol i n 1 8 3 6 . The lack of Ci r c u i t Courts threw the whole r e s p o n s i b i l i t y onto the Crown Law o f f i c e r s i n Sydney, and the manifest a p p e t i t e f o r l i t i g a t i o n on the p a r t of the p o pulation, together with the mass of work engendered by the amount of l o c a l crime, a l l added to the burden of an o f f i c e already subject to overwork by the a b o l i t i o n of the p o s i t i o n of S o l i c i t o r - G e n e r a l . This same s i t u a t i o n was heightened by the seemingly unbounded i n t e r e s t of the ordinary c i t i z e n s i n a l l the d e t a i l s of court proceedings. Cases, e s p e c i a l l y c i v i l cases, were r epor ted at wearisome length in the p r e s s , and the courts were normally f u l l with persons come to view the constant stream of Crown versus the p r i s o n e r , or c i t i z e n versus c i t i z e n .

As l e a d e r of the Bar Plunket t had to accept r e s p o n s i b i l ­ i t i e s f o r h i s colleagues t h a t u l t i m a t e l y he found excessive and he thus i n 1837 recommended the formation of a Law Society f o r

2

Attorneys. At the same time he continued to work i n t h e i r

i n t e r e s t , moving that William a ’Beckett be admitted as an advocate before the Supreme Court, t h a t John Moore Dillon be admitted as an a t t o r n e y , and, unsucces s f ul l y, on the same matter, f o r George Milner Stephen, when Dowling i n s i s t e d t h a t Stephen would have to serve f i v e years before he could be admitted. He was concerned that at torneys be examined ’with respect to char acter as well as a b i l i t y ’ when they applied f o r admission to p r a c t i s e , and .wont 1

1. I b i d . , 26 May, 17 November 1 8 3 6 . 2 January 1837.

2. J.M, Bennett, A History of the New South Wales Bar , notes t h a t a Law Society was founded i n 1 8 4 3 , b u t t h a t i n e a r l y co l o n i al times the i n t e r e s t taken by the Attorney-General i n the members of the Bar compensated somewhat f o r the lack of a Society, p.139* See also SH, 13 J u l y 1837*