This article was published in Australian Dictionary of Biography, Volume 1, (MUP), 1966
This is a shared entry with Jeffery Hart Bent
Ellis Bent (1783-1815), deputy judge advocate, and Jeffery Hart Bent (1781-1852), judge, were sons of Robert Bent, an associate of Charles James Fox. The family estate in Surrey, England, was Moulsey, the name later given by Ellis Bent to his land grant in the Bringelly district. Ellis roomed in Peterhouse, Cambridge (B.A., 1804; M.A., 1807), was called to the Bar in 1805, practised on the Northern Circuit, and was appointed deputy judge advocate in New South Wales as from 1 January 1809, being referred to by Castlereagh as 'a barrister of some eminence'. He sailed with his wife and son in H.M.S. Dromedary, the ship carrying Lachlan Macquarie to his command, and the two men became firm friends; but Ellis's letters and journal tell of the sickness which was to prove fatal to him in the colony.
After their arrival Bent prepared for Macquarie a proclamation pursuant to the governor's instructions concerning William Bligh with which the governor 'was quite delighted and I was all in all with him'. As the judge-advocate deemed the residence occupied by his predecessor, Richard Atkins, 'a perfect pigstye', Macquarie had another built for him. When completed in June 1812, Macquarie thought it superior to Government House. In the meantime the Bents had occupied Andrew Thompson's furnished, 'very comfortable', two-storied house in Macquarie Place.
For some time Ellis adjudged the omens most auspicious. He stood well with the governor. The fees of his court, which he insisted should be paid in sterling and which he profitably converted into currency, agreeably augmented his salary of £800. He was able to furnish his new house from the profits of brandy and wine which he had brought with him as a speculation. With government servants and horned cattle, which accompanied the 1265 acres (512 ha) which Macquarie granted to him and the 800 acres (324 ha) adjacent to it which were added for the ultimate benefit of his two infant sons, Ellis and Robert, he reckoned that from stock-breeding alone he would be receiving £1000 a year by the end of 1813.
His official duties as judge-advocate were diverse, extensive and exacting. He presided over the Civil and Criminal Courts. For the former, he stated in writing the cause of action, issued all processes and, in many cases, prepared the evidence; for the latter, he discharged the functions that would now be performed by the committing magistrate, the attorney-general and the crown prosecutor. He also presided over the Vice-Admiralty Court and, until 31 December 1814, at the meeting twice a week of the bench of magistrates. In addition, he drew proclamations for the governor and otherwise assisted him. By common consent Bent did all these things faithfully and competently, impressing those with whom he was thus brought in contact by 'the mildness of his manners and his uniform urbanity'.
His lucid and thoughtful reports on the judicial system of the colony, as it was and as he considered it should be, rank him high amongst its law reformers. He proposed the establishment of a supreme court of judicature, the introduction of a jury system and the abolition of the existing right of appeal to the governor. To effectuate the business of the court, he suggested the appointment of an attorney-general and appropriate ministerial officers. He was most insistent on the deletion from the judge's commission of the words in his own which were incompatible with his judicial independence. These required him 'to observe and follow such orders and directions as he might be given by our Governor or any other [his] superior officer'. He made this submission, without, as he emphasized, any reflection on Macquarie whom, he declared, 'it [was] a pleasure to serve'. In general, Macquarie endorsed his proposals and in June 1813 recommended that, in recognition of his 'great legal abilities and service', Ellis Bent should be appointed chief justice of the supreme court of judicature contemplated.
At this time there was not an attorney in the colony who had come there free. There were several who had been struck off the rolls when convicted of the offences which had led to their transportation. To prevent litigants bringing their personal enmities and passions into the court, Bent permitted three of these ex-convict lawyers to practise in the Court of Civil Jurisdiction; but he admitted them, as he was careful to tell them, not as attorneys, but only as the specially appointed agents of those who might see fit to employ them. To meet the situation for which he was obliged thus temporarily to provide, he recommended that a few attorneys of good repute should be encouraged by the government to translate themselves to New South Wales; if and when they arrived, he made it clear, he would withdraw the tentative permission given to the ex-convict attorneys to appear before him as agents.
Bent's decision in this matter was of a piece with his general attitude to the emancipist controversy. He was prepared to admit to the jury box 'the more respectable and affluent of those who, [having] been transported to this country, had either satisfied the full sentence of the law or received a free pardon'; but he thought that the appointment of an emancipist to any of the more important offices should be decided, 'not on any theoretical grounds, but on a sober and minute consideration of its most remote practical consequences'. He disapproved, for example, of the elevation of Simeon Lord to the magistracy.
Bent's proposed reforms were regarded with disfavour in Downing Street, though in 1823 a number of them were incorporated in the New South Wales Act, 4 Geo. IV, c. 96. But, for the moment, the Colonial Office had lively recollections of the 'Rum Rebellion' and was disinclined to limit the governor's powers. Bathurst thought there were 'many advantages' in 'the continuance of a judicial officer who bore a commission exclusively military'; the provision made in 1787 for the administration of the criminal law was unchanged, its administration remained with Ellis Bent, whose title of judge-advocate was unaltered. For civil cases, a Supreme Court was established composed of a judge and two assessors, with a jurisdiction in equity, probate, and all common law matters except where the cause of action did not exceed £50; when the amount involved was less, cases were to be heard by a tribunal called the Governor's Court, over which the judge-advocate was to preside. These changes Bent adversely and acutely criticized.
By the time these Letters Patent were promulgated on 12 August 1814, the governor and the judge-advocate had become estranged because of their opposed views on the status of the judiciary vis-à-vis the executive in New South Wales. Macquarie took the words of Bent's commission, 'you are to observe and follow such orders and directions from time to time as you should receive from our governor', to mean precisely what they said. Apart from his strong views on the independence of the judiciary, Bent interpreted these words as requiring obedience to lawful orders, and he refused, 'whatever the consequences', to comply with directions that he considered involved his doing, or officially concurring in, an illegal act.
Their relations were exacerbated by Ellis Bent's physical disorders and Macquarie's choler if his authority was challenged or his motives impugned. The rheumatism and pleurisy which had afflicted Bent on the voyage out recurred; he developed 'dropsy of the chest' and admitted that he did not 'stand well on [his] pins'. He was no longer fit to attend to some matters outside the ambit of his office as he had hitherto done, or to observe some courtesies in respect of which he had previously been punctilious. So, to the indignation of the insensitive governor, he forebore. By this time he had fallen completely under the mischievous influence of his elder brother, Jeffery.
Jeffery had graduated from Trinity College, Cambridge (B.A., 1804; M.A., 1807), and was called to the Bar of the Middle Temple in 1806. Informed by Ellis that Jeffery was 'a man of considerable eminence as a lawyer, of good sense and conciliatory manners', Macquarie thought that he would be 'a great acquisition to the Colony' if he were appointed a puisne judge in the proposed supreme court, Ellis being made chief justice of the same. On 7 February 1814 Jeffery was appointed a judge, not of a court such as the governor had envisaged, but of 'the Supreme Court of Civil Judicature', created by the Letters Patent dated 4 February 1814. His salary was £800. Before leaving England, Jeffery nominated William Moore and Frederick Garling as two attorneys willing to migrate to New South Wales in view of Bathurst's guarantee to each of a retainer of £300.
He reached Sydney Cove on 28 July 1814, having, after leaving England, expressed to Bathurst in sharp terms his disappointment at not receiving a knighthood to emphasize his status. He refused to land and proceed to Government House unless greeted with a formal salute. Macquarie authorized the appropriate gunfire, and Bent was sworn in on 12 August 1814.
He did not open his court for the first four months and a half because, in his opinion, there was no place in Sydney befitting his conception of his dignity in which he could sit. He thus had ample leisure in which to quarrel with the governor and denounce him to the Colonial Office because of their conflicting views as to the part of the general hospital that was to be used temporarily as a court-house. He and Ellis asked for the whole of the southern wing, but this had already been allocated to D'Arcy Wentworth, the principal medical officer. Macquarie agreed to make two rooms in this southern wing available to J. H. Bent as his chambers and half the central wing as a court-house for him and Ellis until better provision could be made, but beyond this he would not go. Downing Street ruled that it was a matter for the governor to determine, and the Bents had to lick their self-inflicted wounds.
At the end of 1814 when the new Court House was ready for use, Macquarie suggested to J. H. Bent that he might begin to earn his salary. The latter had decided, however, not to open his court until the two attorneys whom he had nominated reached the colony. Moore arrived on 27 January 1815 but Garling whose ship had been intercepted by an American privateer did not arrive until August. Macquarie, anxious to have the court functioning and exasperated by the judge's reasons for keeping it closed, reminded him of the provisional arrangements made by his brother in somewhat similar circumstances; but in no circumstances and on no terms would Jeffery agree to admit 'convict attorneys' to practise before him. In his judgment, they were barred both by the statute, 12 Geo. I, c. 29, and the decision in 1778 of the King's Bench in ex parte Brounsall. On 11 April 1815 George Crossley and Edward Eagar, two of the 'convict attorneys' who had appeared before the judge-advocate, submitted to Macquarie their case for admission by the Supreme Court, with the prayer that he would commend it to that tribunal. This he did, and received a blistering reply from J. H. Bent, who rebuked him for attempting 'to bias the Court' by such 'interference'. As the judge was commissioned to hold his office during the pleasure of His Majesty and his own residence in the colony, and was not required, as was the judge-advocate, to obey the orders of the governor, Macquarie could only fume and report the whole matter to the Colonial Office.
Then, for some reason not disclosed, Jeffery decided to open his court on 1 May. Thereupon, as the Letters Patent required, the governor nominated two magistrates, William Broughton and Alexander Riley, to complete its composition. The court could not function without the judge, but, subject to his right of protest, with a resulting appeal to the governor, he could be overruled by his two lay associates. They were of opinion that, apart from the fact that the operation of 12 Geo. I, c. 29 was limited to England, fairness to litigants dictated that, in the absence of Garling, 'convict attorneys' should be admitted, at least on the same footing as they had been by Ellis Bent in 1810. Several stormy sessions followed, in the course of which the judge, furious that two laymen should set themselves against 'a barrister of near ten years' standing', grossly insulted the magistrates, and finally refrained from taking his seat rather than be faced by a majority decision of his court. The Supreme Court remained closed, though Jeffery continued to draw his salary. The ailing Ellis, who now subscribed to Jeffery's doctrine of exclusion, was more fortunate in his two associates in the Governor's Court, Richard Brooks and Charles Hook, who, like Broughton and Riley, had also been nominated by Macquarie; on 15 May 1815 it unanimously adopted a rule that no attorney who had been struck off the roll should be admitted to practise before it.
Jeffery's influence over his sick brother was also illustrated by the latter's attitude to the port regulations which governed the landing and departure of persons and the import and export of goods, and had been found necessary since the earliest days of the colony. With Ellis Bent's concurrence, Macquarie had issued a set of rules in 1810. Early in 1814 he asked the judge-advocate to check a revised set, with a view to their expression 'in the appropriate technical language'. Ellis did not reply until 31 December 1814, by which time he had had his bachelor brother under his roof for five months; when he did reply, he claimed that most of the rules were unnecessary and some were illegal. When Macquarie ordered him to do as he was instructed, Ellis, supported up to the hilt by Jeffery, refused to be a party to framing rules which he could not lawfully enforce if they should be brought to his attention in his judicial capacity. These mounting differences led to Macquarie's request to Bathurst to accept his resignation if the Bents were not removed; but, with all the data before him, Bathurst decided in January 1816 to uphold the executive arm and remove the judges. They seemed, he wrote, 'too much disposed to resent the authority of the Governor and to withhold from him that cordial co-operation without which the business of the colony could not be satisfied'. Bathurst based his dismissal of Jeffery on the latter's closing of his court, for though he approved the judge's attitude to convict attorneys as a general principle, he thought that in the circumstances they might have been admitted temporarily as agents. In any event, 'the evil of the suspension of justice' was 'too serious … to permit of any justification'.
Before he received notice of his dismissal, Ellis Bent had died on 10 November 1815. By that time he had become financially embarrassed; he was very ill, and, though his salary had been raised from £800 to £1200 a year, he had lost the bulk of the fees, amounting to about £2000 a year, which he had received from the civil actions, now transferred to his brother's jurisdiction. Reflections by Macquarie upon him, when the two men had become completely estranged, have been invoked to support the allegation that the judge-advocate abused his office to his pecuniary advantage by disregarding the regulations governing promissory or 'currency' notes. No proof has been adduced that he did so but, if he did, it could only have been with the concurrence of his court in its civil jurisdiction in respect of one regulation, and in its criminal jurisdiction in respect of another. An Order of 1810 prescribed that the greater part of notes for £5 or less should be printed; another of 1813 prohibited the issue of any such notes by convicts. Otherwise everyone in the colony was at liberty to meet a debt with a promissory note and the practice was general. As 'currency' was normally at a substantial discount in terms of 'sterling', it was material for a busy traffic in which Bent, like other gentlemen of standing in the community, may have participated, in his case perhaps to his discomfiture.
He left his wife and five children (all under eight) in a 'very unprovided and destitute state'. This induced Macquarie with characteristic magnanimity, to commend them and the merits of the deceased to Bathurst, who in turn authorized the grant to Mrs Bent of a pension of £200 a year. The judge-advocate's death not only 'excited universal regret', but gave Samuel Marsden an opportunity to inveigh, in scarcely veiled terms, against Macquarie's administration in the course of the panegyric he delivered on the deceased at the ensuing memorial service. Bent was buried in the graveyard now occupied in part by the Sydney Town Hall, whence the remains were removed in 1825 to Garden Island, of which he had been given a lease by Macquarie, and later to St Thomas's, North Sydney.
Meanwhile the long interval that separated the dispatch of a London letter from the receipt of it in Sydney, joined to Jeffery Bent's decision to remain in office until the arrival of his successor, gave him a spell of salaried leisure in which he could exploit to Macquarie's disadvantage several ill-judged measures which the governor saw fit to adopt. The residence of the deceased judge-advocate became a cave of Adullam. Judge Jeffery gave comfort and advice to Moore and Benjamin Vale in the Traveller case. He drafted the petition of Philip Connor and others to the House of Commons, craving relief from Macquarie's 'oppressions'. He gaoled the magistrate, William Broughton, for alleged contempt of court, in respect of a matter that arose out of Broughton's employment of John Harvey, convict, a cook by trade, who had once been assigned to Ellis Bent. This action was deemed so flagrant an abuse of authority by the lieutenant-governor, the acting judge-advocate, and every magistrate in the colony except Marsden that they adjudged Jeffery Bent guilty of having 'acted contrary to the spirit of the British Constitution, repugnant to all the feelings of a gentleman, militating against the acknowledged rights of a free British subject, highly disrespectful to the governor and Government of the Territory, and tending to produce distrust and alarm in the minds of all His Majesty's subjects residing therein'.
Meanwhile, pursuant to his resolve to exercise the jurisdiction of his court, when he saw fit to open it, until his successor arrived, Bent decided that the advent, on 5 October 1816, of John Wylde, Ellis's successor, would enable him to resume his judgment seat, since the acting judge-advocate, Frederick Garling, could then return to his practice, and there would be two free attorneys in the colony. Indifferent, however, to his lengthening cause list, he deferred such reopening until 1 December 1816. Macquarie, sizzling over Bent's advertised intention to resume the seat from which His Majesty had removed him, cancelled the appointments of Riley and Broughton, and very properly declined to appoint others in their stead. Bent now stated that the governor could lawfully relieve of their duties those already nominated for such service only by simultaneously appointing two others to take their places; though Broughton was in Van Diemen's Land, Bent declared that he would compel Riley to attend, and, to this end, he issued his warrant to William Gore, the provost-marshal; when he refused to execute it, Bent directed the coroner, John Lewin to attach Gore, whereupon Macquarie issued a Government Order on 11 December 1816 which declared Jeffery Hart Bent to be 'positively and absolutely removed from his appointment as Judge of the Supreme Court in, and a magistrate of this Territory', proclaimed that he had 'no jurisdiction or authority whatever in it', forbade him 'at his peril … to assume or exercise' any such authority, absolved every person in the colony from any regard for, or obedience to, any orders or process the judge thus removed might presume to issue, and strictly prohibited any action by anyone to enforce such orders.
Bent was by this time in general disfavour. He had made himself the laughing stock of many Sydney residents when, in September 1815, he had refused to pay toll-bar fees which he held erroneously to be illegal, and had so conducted himself at the toll gates that he was fined £2 by D'Arcy Wentworth, J. P. He had ignored the summons to appear before the Court of Petty Sessions since, 'as Judge of the Supreme Court, he was by no means amenable to any criminal jurisdiction in this Territory'. As the alleged offence was not committed by him in his judicial capacity in a court of justice, there would seem to have been no firm basis for this claim to immunity.
Having returned to England, Bent addressed himself to securing another judicial appointment and to encompassing Macquarie's recall. He assured Marsden in November 1819 that, if Macquarie came to England, 'I shall prosecute him, and he will find [Connor], the men who were flogged, Mr Vale and myself ready to pounce on him within six hours after his arrival'. Meanwhile he had pursued his other objective with undiminished self-righteousness and self-applause. The Colonial Office ignored his suggestion that he be appointed governor of New South Wales, and intimated, after a period of sufferance, that it did not wish to hear further from him about his removal from the bench, but it did say that it would not consider him 'ineligible to some other legal situation in the Colonies when proper opportunity offers', and in April 1819 he was appointed to an impending vacancy in Grenada as chief justice. Assured of this post, he tarried in England for another twelve months in the hope that he might secure a more attractive one in India. Having failed in that endeavour, he betook himself to the West Indies where he spent his remaining years.
There too he caused trouble after his decision in a case in 1829 in which the slavery issue was dominant. Though he was correct in law, the action he took to enforce his judgment, his air of conscious superiority and his unmeasured expression of his opinion of his critics and opponents, led to his suspension, reinstatement on orders from London, and then his suspension once more. 'Peace and tranquility can never be restored to this once happy and united Colony, while Mr Bent is suffered to preside on the Bench of Justice', wrote the governor. James Stephen opined that Bent had 'in his public capacity, an ill-regulated temper and an unusual degree of indiscretion', but when the judge appealed to the Privy Council, it found in his favour. Bent was accordingly restored to his judgment seat on 11 April 1832, but the local assembly refused to provide his arrears of salary and the chief justice had to sue the colonial treasurer for them.
'For his own comfort and to terminate disputes in Grenada', the Colonial Office transferred Bent to a puisne judgeship in Trinidad. He thereby suffered in salary, but gained in health since proximity to the lake of pitch relieved him of the asthma which had long troubled him. On 3 February 1833 he was appointed chief judge of St Lucia. Here again, he was soon at odds with the local authorities, a precipitating factor being his failure to secure the appointment of his nephew Ellis as attorney-general of the island. The governor and council did not try to get rid of him, but ignored him when the judicial system of the colony was under revision. Bent outspokenly resented this slight and sought yet another more congenial judicial post. In 1836 he was appointed chief justice of British Guiana, and he died at George Town on 29 June 1852.
C. H. Currey, 'Bent, Ellis (1783–1815)', Australian Dictionary of Biography, National Centre of Biography, Australian National University, http://adb.anu.edu.au/biography/bent-ellis-1772/text1985, published first in hardcopy 1966, accessed online 31 March 2015.
This article was first published in hardcopy in Australian Dictionary of Biography, Volume 1, (MUP), 1966