The practice of the Sydney Supreme Court had long virtually rejected such distinctions. The mixed considerations of convenience and equity induced the judges to allow the witnesses and plaintiffs the same privilege, whether under attainder or not. Judge Field[126] declared, that while the crown did not interfere, the court would not touch the property of the convict: nothing but an attested copy of conviction, would be admitted as evidence of conviction. Nor would the proof of transportation, of itself, as the law then stood, prove the incompetence of a witness. His time might have expired; his expatriation might have been the condition of his pardon, or his offence might have been a misdemeanour, and not involve the corruption of blood;[127] and, except for perjury or subornation of perjury, the King's pardon might restore his competency to give evidence, or hold property. On these grounds the courts of New South Wales were enabled to evade the plea of attainder in bar of a just action.
But the decision of the King's Bench discovered a serious omission in the forms of pardon issued by Macquarie, and further enquiry even threw doubt on his power to grant them at all. The Act of Parliament empowered the crown to delegate the _authority to remit_ a sentence of transportation, to the Governor of New South Wales; but the commission of Macquarie said nothing of this power, except the criminals were colonially convicted, when he could grant reprieves and pardons. His _instructions_ authorised the pardons to British offenders, and those instructions were warranted by _parliamentary enactment_; but the royal commission gave _no such power_: and thus all his pardons were legally void.
Another essential condition was neglected: to give effect to the pardon of the Governor, it was required that he should transmit to the Secretary of State the names of the persons whose sentences he remitted, to secure their insertion in the next list of general pardons. This course had never been taken: no list of remissions had been furnished to Downing-street.
Among the extraordinary omissions of the government at home, was in many instances the place of trial, and even the sentence of the transports; to save the labour of penmanship, "ditto," was sometimes the sentence found under another name, in the line of which 7, or 14, was written; not at full length, but in numerals. Some "indents" exhibited erasures: in one, a sentence of seven years had been converted to "life." More strange than all, some were sent without even their names, and others without any sort of information of their crime or sentence; and the authorities felt justified in gaining by artifice, from the unsuspecting prisoners themselves, what the ministers had neglected to furnish.