Ellis Bent
Encyclopedia
Ellis Bent was the deputy judge advocate between 1810 and 1815 of the Australia
n colony of New South Wales
, which was eventually to become an Australian state. The deputy judge advocate was the senior legal officer of the colony and functioned in many ways as a Chief Justice
. Bent was the first barrister
to be appointed to a judicial office in the infant colony in an era when military officers were commonly appointed to the position.
Bent Street in Sydney
, Bent's Basin
and Ellis Bent Road, Greendale
near the Warragamba Dam
are named after him.
. He grew up in Surrey
, England
on the family estate Moulsey.
He was educated at Peterhouse, Cambridge
and was awarded a Bachelor of Arts in 1804 and a Master of Arts in 1807. He was called to the Bar in 1805 practising in England for a number of years. He was described as a tall and rather heavy man, and his health was poor.
as the deputy judge-advocate of the colony of New South Wales
as from 1 January 1809. He arrived at Sydney
on 1 January 1810 on board the HMS Dromedary, which happened to be carrying the new Governor of New South Wales, Lachlan Macquarie
. Bent took over from his predecessor Richard Atkins who was generally regarded in the colony as incompetent.
The role of deputy judge-advocate (commonly referred to as the "judge-advocate") placed Bent as the primary judicial member of the colony. He presided with six military officers in the Court of Criminal Jurisdiction
, which was the only criminal court of colony which dealt with serious criminal crimes and was the only court which could sentence a person to death. He also presided with two nominees appointed by the governor in the Court of Civil Jurisdiction
, which was the principal civil court of the colony. He held a commission to preside in the Vice-Admiralty Court to deal with admiralty issues that arose from time to time. He lastly presided with another magistrate as the Bench of Magistrates to deal with less serious criminal matters in Sydney.
Bent was well regarded by Macquarie initially, and set about his role of judge-advocate with vigor and good faith. In recognition, Macquarie had a new residence built for Bent, which was completed in June 1812.
in the colony and the creation of a new superior court to deal with civil matters. For this latter court, he proposed that a judge be appointed to sit with two magistrates.
Macquarie recommended that the plan be adopted and suggested to the English authorities that Bent should be made the first judge of any such court created. Bent was passed over for the position, and instead it was offered to his brother Jeffrey Bent. The establishment of this latter court, the Supreme Court of Civil Judicature (commonly referred to as the Supreme Court) lessened the workload of Bent as the Court of Civil Jurisdiction over which he presided was abolished as a result of the establishment of that Supreme Court.
Bent was quite progressive for the time. He allowed ex-convict lawyers to appear before his court when such a course was not possible in England under English law. He did this was allowing them to appear as agents of the parties, rather than formally admitting the lawyers as officers of the court. This met with general approval in the colony as it was a practical solution which facilitated the application of justice in the colony at a time when the colony was in its infancy. It has to be remembered that Bent was the first lawyer to emigrate to the colony of his own free will.
countries. Macquarie took the view that Bent's commission required him to obey the orders and directions of the governor in all times. Bent took the view that he should only obey the "lawful" instructions of the governor.
Secondly, Bent came under the influence of his brother. Unfortunately, Bent's brother proved to be the opposite of Bent and was obstructive at every possible time. Whilst Bent had been initially progressive in allowing convict lawyers to appear in the Court of Civil Jurisdiction
to assist litigants as agents, he sided with his brother that they should not be allowed to appear in the newly created Supreme Court of Civil Judicature to which his brother had been appointed. This raised Macquarie's ire as it impeded the ability of the new court to function.
Lastly, Bent clashed with Macquarie over the introduction of new shipping rules for the colony. Bent had initially concurred with Macquarie's shipping rules in 1810. However, in 1814, when Macquarie provided a draft set of revised rules, Bent found them to be unnecessary and some to be illegal.
Bent left a widow and four children, and a fifth child was born subsequently to his death. Unfortunately, he left no estate to his wife and children on his death. Macquarie graciously wrote to Lord Bathurst recommending the payment of a pension to widow in view of Bent's services to the colony. Bathurst approved, and a pension of £
200 a year was granted to Mrs Bent in 1817. She subsequently returned to England.
Later in 1825, when Brevet-Major John Ovens died, Bent was re-interred with him at Garden Island in accordance with Bent's earlier wishes.
Later, his sandstone tomb was transferred to the Rest Park in St Thomas' Cemetery. His headstone is located at the Botany Cemetery, Eastern Suburbs
of Sydney
. where many of the headstones from the old Devonshire Street cemetery were relocated.
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n colony of New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
, which was eventually to become an Australian state. The deputy judge advocate was the senior legal officer of the colony and functioned in many ways as a Chief Justice
Chief Justice
The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth or other countries with an Anglo-Saxon justice system based on English common law, such as the Supreme Court of Canada, the Constitutional Court of South Africa, the Court of Final Appeal of...
. Bent was the first barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
to be appointed to a judicial office in the infant colony in an era when military officers were commonly appointed to the position.
Bent Street in Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...
, Bent's Basin
Bent's Basin
Bents Basin is a State Conservation Area near Wallacia, New South Wales, Australia within the Sydney basin geographical region. The site of a natural lake formed in an erosion basin banked by sandstone outcrops, Bents Basin SCA is a popular swimming location with a camping area and an education...
and Ellis Bent Road, Greendale
Greendale
-Places:In Australia:*Greendale, New South Wales, a suburb of Sydney, Australia*Greendale, VictoriaIn Canada:*Greendale, British Columbia*Greendale, Alberta on Lac La Nonne* Greendale Elementary School in Chilliwack, British Columbia...
near the Warragamba Dam
Warragamba Dam
Warragamba Dam is the primary water source for the Australian city of Sydney. It is approximately to the west of Sydney on the Warragamba River, a tributary of the Hawkesbury River, and impounds Lake Burragorang.- Overview :...
are named after him.
Early years and education
Bent was born in 1783 although his birthdate is sometimes recorded as 1779. He was the second son of Robert Bent and the younger brother of Jeffery BentJeffery Hart Bent
Jeffery Hart Bent, occasionally known as Geoffrey Hart Bent was the first judge in the colony of New South Wales, Australia.-Early life:...
. He grew up in Surrey
Surrey
Surrey is a county in the South East of England and is one of the Home Counties. The county borders Greater London, Kent, East Sussex, West Sussex, Hampshire and Berkshire. The historic county town is Guildford. Surrey County Council sits at Kingston upon Thames, although this has been part of...
, England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
on the family estate Moulsey.
He was educated at Peterhouse, Cambridge
Peterhouse, Cambridge
Peterhouse is a constituent college of the University of Cambridge, England. It is the oldest college of the University, having been founded in 1284 by Hugo de Balsham, Bishop of Ely...
and was awarded a Bachelor of Arts in 1804 and a Master of Arts in 1807. He was called to the Bar in 1805 practising in England for a number of years. He was described as a tall and rather heavy man, and his health was poor.
Judge-advocate
He was appointed by Lord BathurstHenry Bathurst, 3rd Earl Bathurst
Henry Bathurst, 3rd Earl Bathurst KG PC was a British politician.-Background and education:Lord Bathurst was the elder son of Henry Bathurst, 2nd Earl Bathurst, by his wife Tryphena, daughter of Thomas Scawen...
as the deputy judge-advocate of the colony of New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
as from 1 January 1809. He arrived at Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...
on 1 January 1810 on board the HMS Dromedary, which happened to be carrying the new Governor of New South Wales, Lachlan Macquarie
Lachlan Macquarie
Major-General Lachlan Macquarie CB , was a British military officer and colonial administrator. He served as the last autocratic Governor of New South Wales, Australia from 1810 to 1821 and had a leading role in the social, economic and architectural development of the colony...
. Bent took over from his predecessor Richard Atkins who was generally regarded in the colony as incompetent.
The role of deputy judge-advocate (commonly referred to as the "judge-advocate") placed Bent as the primary judicial member of the colony. He presided with six military officers in the Court of Criminal Jurisdiction
Court of Criminal Jurisdiction
The Court of Criminal Jurisdiction was a criminal court established in 1787 under the auspices of the First Charter of Justice in the British Empire of New South Wales, now a state of Australia. The Court of Criminal Jurisdiction was the first criminal court in the colony...
, which was the only criminal court of colony which dealt with serious criminal crimes and was the only court which could sentence a person to death. He also presided with two nominees appointed by the governor in the Court of Civil Jurisdiction
Court of Civil Jurisdiction
The Court of Civil Jurisdiction was a court established in the late 18th century in the colony of New South Wales which subsequently became a state of Australia. The court had jurisdiction to deal with all civil disputes in the then fledgling colony...
, which was the principal civil court of the colony. He held a commission to preside in the Vice-Admiralty Court to deal with admiralty issues that arose from time to time. He lastly presided with another magistrate as the Bench of Magistrates to deal with less serious criminal matters in Sydney.
Bent was well regarded by Macquarie initially, and set about his role of judge-advocate with vigor and good faith. In recognition, Macquarie had a new residence built for Bent, which was completed in June 1812.
Legal reform in the colony
Bent made recommendations to Lord Bathurst concerning the administration of justice in the colony. Some of these related to the introduction of jury trialJury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
in the colony and the creation of a new superior court to deal with civil matters. For this latter court, he proposed that a judge be appointed to sit with two magistrates.
Macquarie recommended that the plan be adopted and suggested to the English authorities that Bent should be made the first judge of any such court created. Bent was passed over for the position, and instead it was offered to his brother Jeffrey Bent. The establishment of this latter court, the Supreme Court of Civil Judicature (commonly referred to as the Supreme Court) lessened the workload of Bent as the Court of Civil Jurisdiction over which he presided was abolished as a result of the establishment of that Supreme Court.
Bent was quite progressive for the time. He allowed ex-convict lawyers to appear before his court when such a course was not possible in England under English law. He did this was allowing them to appear as agents of the parties, rather than formally admitting the lawyers as officers of the court. This met with general approval in the colony as it was a practical solution which facilitated the application of justice in the colony at a time when the colony was in its infancy. It has to be remembered that Bent was the first lawyer to emigrate to the colony of his own free will.
Later years
Macquarie and Bent were to be at loggerheads in the later years of Bent's appointment. They firstly disagreed over the independence of the judiciary, something that is taken for granted today in common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries. Macquarie took the view that Bent's commission required him to obey the orders and directions of the governor in all times. Bent took the view that he should only obey the "lawful" instructions of the governor.
Secondly, Bent came under the influence of his brother. Unfortunately, Bent's brother proved to be the opposite of Bent and was obstructive at every possible time. Whilst Bent had been initially progressive in allowing convict lawyers to appear in the Court of Civil Jurisdiction
Court of Civil Jurisdiction
The Court of Civil Jurisdiction was a court established in the late 18th century in the colony of New South Wales which subsequently became a state of Australia. The court had jurisdiction to deal with all civil disputes in the then fledgling colony...
to assist litigants as agents, he sided with his brother that they should not be allowed to appear in the newly created Supreme Court of Civil Judicature to which his brother had been appointed. This raised Macquarie's ire as it impeded the ability of the new court to function.
Lastly, Bent clashed with Macquarie over the introduction of new shipping rules for the colony. Bent had initially concurred with Macquarie's shipping rules in 1810. However, in 1814, when Macquarie provided a draft set of revised rules, Bent found them to be unnecessary and some to be illegal.
Closing days
The mounting differences between Macquarie, Bent and Bent's brother led Macquarie to write to Lord Bathurst offering to resign unless both Bents were removed from office. Bathurst did so in January 1816, siding with Macquarie rather than the Bents. Before notification of Bent's dismissal arrived in the colony, Bent had died on 10 November 1815.Bent left a widow and four children, and a fifth child was born subsequently to his death. Unfortunately, he left no estate to his wife and children on his death. Macquarie graciously wrote to Lord Bathurst recommending the payment of a pension to widow in view of Bent's services to the colony. Bathurst approved, and a pension of £
Pound sterling
The pound sterling , commonly called the pound, is the official currency of the United Kingdom, its Crown Dependencies and the British Overseas Territories of South Georgia and the South Sandwich Islands, British Antarctic Territory and Tristan da Cunha. It is subdivided into 100 pence...
200 a year was granted to Mrs Bent in 1817. She subsequently returned to England.
Burial
Bent was buried at Devonshire Street Cemetery, now the site of Central Railway in Sydney. He was buried there rather than at Garden Island (upon which Bent had a lease) because of his earlier disagreements with Macquarie.Later in 1825, when Brevet-Major John Ovens died, Bent was re-interred with him at Garden Island in accordance with Bent's earlier wishes.
Later, his sandstone tomb was transferred to the Rest Park in St Thomas' Cemetery. His headstone is located at the Botany Cemetery, Eastern Suburbs
Eastern Suburbs
Eastern Suburbs is a term used to refer to the eastern part of a city, or things associated with such a region. In particular, it may refer to*Eastern Suburbs , a region of Sydney, Australia**Eastern Suburbs railway line-Rugby union:...
of Sydney
Sydney
Sydney is the most populous city in Australia and the state capital of New South Wales. Sydney is located on Australia's south-east coast of the Tasman Sea. As of June 2010, the greater metropolitan area had an approximate population of 4.6 million people...
. where many of the headstones from the old Devonshire Street cemetery were relocated.
Sources
- C. H. Currey, 'Bent, Ellis (1783 - 1815)', Australian Dictionary of BiographyAustralian Dictionary of BiographyThe Australian Dictionary of Biography is a national, co-operative enterprise, founded and maintained by the Australian National University to produce authoritative biographical articles on eminent people in Australia's history....
, Online Edition, Copyright 2006, Australian National University - Alex CastlesAlex CastlesAlexander "Alex" Cuthbert Castles was an Australian historian and author who specialized in Australian legal history. He is the author of a number of published books in Australia as well as the author of numerous articles written for various journals.Castles was born in Melbourne, Australia...
, An Australian Legal History, Law Book Co, 1975.