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,