12/04/2007
History of New South Wales From the Records
VOLUME 1 - GOVERNOR PHILLIP 1783-1789G. B. Barton - 1889
PART II
Administration of Justice
HOW little importance was attached in those days to the moral aspect of public questions, may be seen in the provision made for the administration of justice in the colony. It is an ancient boast of English jurisprudence that the meanest subject in the realm is as much entitled to the protection of its laws as the greatest; one of his safeguards being that, when placed on his trial, he must be tried by a jury of his countrymen before a judge whose independence of the Crown is not open to suspicion. But the Criminal Court established in the colony was not a Court of Justice in any sense consistent with legal definitions. The persons tried before it were not tried according to the common law of England. They were tried by a Court invented for the occasion, framed on the model of a Garrison Court-martial, but wanting even the security it afforded for an impartial administration of justice; every trial being conducted on a system originally established for the preservation of military discipline by a rough and ready process of arriving at conclusions - a process well enough adapted to cases in which soldiers were to be tried for petty offences against discipline, but which amounted to a flagrant denial of justice when civilians were arraigned on charges entailing terrible punishment. Where was the moral justification for a law by which people sent out to form a colony were denied a right that could not have been denied them in England? What assurance could there be that any man condemned to suffer death or flogging in the Judge-Advocate's Court had been justly convicted? Even if the right to be tried for any subsequent offence according to the common law had been forfeited on a conviction and sentence to transportation, it would have revived on the expiration of the sentence; yet not only was every convict deprived of it for life, but every free settler was involved in the forfeiture. The vicious system thus established was maintained long after the colony numbered such settlers by thousands, and the right of trial by jury - the birthright of every Englishman - was not conceded until 1828 (1).
Even when a "Constitution" was granted to the colony in 1823 (2), and a Legislative Council composed of five persons, appointed by the Crown, was created for the purpose of tempering the arbitrary authority of the Governor, it was still considered necessary to withhold the right, except in civil cases, of trial by jury. By a Charter of Justice issued in that year, a Supreme Court of New South Wales was created, in place of the several Courts previously existing - known as the Criminal Court, the Governor's Court, the Supreme Court, the Court of Vice-Admiralty, and the High Court of Appeals. The Act required that all issues of fact on the criminal side of the Supreme Court should be tried "by a jury of seven commissioned officers of his Majesty's sea and land forces," nominated by the Governor. The only concession made was the right of challenge on the ground of interest or affection. On the civil side, issues of fact were to be tried by the Chief Justice and two assessors, Justices of the Peace, who were to be nominated by the Governor, and who might be challenged on any ground allowed in the Courts at Westminster. By consent of parties, such cases might be tried before a jury of twelve freeholders. But prosecutions were no longer to be conducted by the person who presided as judge, and that person an officer of marines; a barrister was appointed Chief Justice and another Attorney-General, whose duty it was to draw the indictment in criminal cases and to appear in Court for the Crown, according to the practice of the English Courts (3).
This reform in the administration of the law was the result of an elaborate report made by a special commissioner - John Thomas Bigge - who was sent out in 1819 to report on "the state of the judicial establishments" and other matters in the colony. Early in that year the free settlers had sent home a petition in which they expressed their objections to the existing method of administering the criminal law, and prayed for some measure of reform. Their objections - as stated by Bigge - were principally these:-
1. The combination in the person of the Judge-Advocate of the duties of a magistrate (who commits the prisoner upon investigations conducted by himself), of prosecutor, of juryman, and of judge.
2. The military character of the Court, to the members of which there is no right of challenge, and from whose decisions there is no right of appeal; the military title of the presiding member [Judge-Advocate]; and the occurrence of cases wherein the accuser was a member of the Court.
3. The general unfitness and incapacity of a Court so constituted to administer impartial justice to the free and respectable population of the colony, or to command the respect; the repugnance of its forms and proceedings to the feelings of the petitioners as Englishmen, and to the institutions of their native country (4)
The first of these objections - which was described by the Commissioner as "the principal and most popular" of all - was so forcible that nothing could be urged in reply to it; and he was consequently obliged to recommend the appointment of an Attorney-General," whose duty it should be to receive all depositions from the magistrates, to prepare indictments, and to conduct prosecutions." As to the other members of the Court, the Commissioner was not at all clear that the military jury could be replaced by a better one. While admitting that several of the officers "are frequently too young for that duty," he maintained that "the character, qualifications, and sentiments of the higher ranks of officers are superior to those of the best selected juries in England, and greatly so to those who might be selected for such a duty in New South Wales" - p. 35; and after a lengthy discussion of the subject, he arrived at the conclusion that "the period is not yet arrived at which the system of trial by jury can be safely or advantageously introduced into the civil and criminal proceedings of the colony " - p. 40.
It was on the recommendations contained in this Report that the Government framed the Act of 1823, giving the colonists the forms of English procedure, but still withholding the substance. Bigge's Report appears to have been written mainly for the purpose of providing the Government with certain specific reasons for continuing the system of which the colonists complained so often and so persistently. When, for instance, he stated that the military jurors in the colony were superior to the best selected jurors in England, he knew that no one in that country would listen to such an argument in support of a proposal to substitute military juries there for the existing system. If it was no argument in England, it was none in New' South Wales; the simple question being, whether the colonists were entitled to trial by jury according to the laws of England.
For some years before the Chief Justice arrived in the colony, the pressure of business in the Judge-Advocate's Court led to a curious modification of the original practice. Owing to the increase of crime, the judge, according to Wentworth, found himself unable to dispose of all the cases, civil and criminal, set down for hearing in his Court; and business was therefore distributed in the following fashion: - offenders already under sentence were dealt with in a summary manner by the benches of magistrates and the Superintendent of Police; while the Judge-Advocate reserved himself for respectable cases, the persons brought before him being either free persons or emancipists. The convicts were punished
either by transporting them to the Coal River, by putting them in the gaol gangs, by sending them (if they happen to be females) to the factory, or by simply ordering them corporal punishment, unless they are charged with murder, or some capital felony; and even in this latter case, they [the magistrates] frequently inflict some summary punishment (5).
This system meant trial by Court-martial for free settlers, and summary punishment for convicts.
From the foundation of the colony to the year 1824, when the Supreme Court began its sittings with Francis Forbes as Chief Justice, every criminal trial in the colony took place, or was supposed to take place, before the Judge-Advocate and the six officers who sat with him. The system on which the administration of justice was conducted during that period would form a curious chapter in the history of English law. Writing in 1819 - when the country was comparatively prosperous and largely populated, numbering many free settlers among its inhabitants - Wentworth wrote of the Judge-Advocate's Court as follows - p. 365:-
The bare appearance of this tribunal has long been odious and revolting to the majority of the colonists. It is disgusting to an Englishman to see a culprit, however heinous may be his offence, arraigned before a Court clad in full military costume; nor can it indeed be readily conceived that a body of men, whose principles and habits must have been materially influenced, if not entirely formed, by a code altogether foreign to the laws of this country, should be able on such occasions to divest themselves of the soldier and to judge as the citizen.
If the appearance of the military Court was disgusting to Wentworth - who at the time he wrote was reading for the Bar in London - it seems to have made a similar impression on the Chief Justice, when he found himself administering the law of England in the new Supreme Court with seven officers, in full uniform, serving as jurors. A criminal trial could not take place in his Court without a military jury; but as the law provided that Courts of Quarter Sessions should be held, without specifying the kind of jury to be empanelled in them, Forbes determined that the common law should fill up the gap left by the statute. A rule nisi for a mandamus was accordingly directed to the magistrates, requiring them to show cause why they should not proceed to the trial of crimes and misdemeanours according to the law and practice of England. The rule was argued by the Solicitor-General for the magistrates and the Attorney-General for the other side; and judgment was given by the Chief Justice in favour of the common law. His ruling held good until the second Constitution Act came out in 1828. It was then found that the military juries were to be continued as before, in Quarter Sessions as well as in the Supreme Court; and thus Forbes found his well meant effort to introduce trial by jury quietly extinguished.
No stronger condemnation of the military system could be imagined than that implied in the course he had adopted. It amounted to a public declaration that although he could not grant prisoners on trial in the Supreme Court a jury of twelve good men and true, he would avail himself of a loophole in the Constitution Act for the purpose of securing it at the Quarter Sessions. That Act, by the way, had been drafted by him, under instructions from the Home Government, before he came out to the colony, and he may consequently be supposed to have understood its intention. For five years, from the time he issued the writ of mandamus to the day when the second Constitution Act became law in the colony, a jury of twelve, empanelled according to the practice of the English Courts, heard and determined every case brought before the magistrates at Quarter Sessions. The contrast between the trials in that Court and those in the Supreme Court, where the Chief Justice sat with a military jury, furnished a spectacle which had never been witnessed before in the British dominions.
It is necessary to glance at the course of events in this direction up to the period when trial by jury was thus let in at the back door, in order to appreciate the character of the system which the adventurous Chief Justice endeavoured to break down. The language used by Wentworth with respect to it was very emphatic; but it was language which would naturally rise to the lips of an Englishman when confronted with a method of administering justice which seemed to violate every principle of English law. To secure a just and impartial verdict on a criminal trial, where the power of the Crown is arrayed against the prisoner at the Bar, it was held essential in England that both judge and jury should be independent of it; but in the Judge-Advocate's Court, both were in its pay, dependent on it for promotion and liable to removal by it at any moment. It was also considered essential that the judge and the jury should be independent of each other; each having a separate province, one for questions of law, the other for questions of fact. But in the Judge-Advocate's Court, both sat together and deliberated as one body over questions of law and fact; so that while the jurors were liable to be unduly influenced by the judge, he in his turn was in danger of being induced to modify his own opinion in deference to theirs (6).
A third principle recognised in English practice was that the judge and the prosecutor should know nothing of each other; and that so far from the former being in any manner identified with the prosecution, or being supposed to have any concern in it or any leaning towards it, he was, by a pleasant fiction of law, habitually regarded as of counsel for the prisoner. But in the Judge-Advocate's Court, the judge and the prosecutor were practically one and the same person; for although it was usual to leave the conduct of simple cases in the hands of the person who made the charge, the indictment was drawn up by the Judge-Advocate, and the evidence to support it had to be considered by him before he could determine whether or not a prosecution ought to take place. A fourth principle which regulated the practice of the English Courts required that the established rules of evidence should be adhered to and applied in all cases; and for that purpose it was the especial function of the judge to see that those rules were strictly observed, and that no question was asked or answered, and no evidence allowed to go to the jury, which, was not technically admissible according to the reported rulings of the judges. But in the Judge-Advocate's Court that principle was altogether ignored, because the judge, not being a lawyer, could not know anything about the law of evidence. There was consequently no means either of checking the admission of evidence which would have been held inadmissible in England, or of presenting it to the jury in such a shape as would have enabled them to discriminate between truth and falsehood, to gauge the credit of a witness, and to arrive at their conclusion by some better process than that of mere conjecture.
There was a still more characteristic principle which was not recognised in this Court. The law of England abhorred secresy in the administration of justice, and the most essential of all features in a trial was that it should be public. The accused was entitled to hear every word that was alleged against him in evidence, or urged against him either in the addresses of counsel or the remarks of the judge. But in the Military Court the Judge-Advocate and the other members "retired to an adjoining room," when the evidence was closed, in order that they might discuss the various questions of law and fact that had arisen during the hearing of the case. Neither the prisoner nor the public knew anything of what passed while the discussion was going on, and consequently there was no opportunity for correcting mistakes or removing misapprehensions. The practice on these occasions is described in Bigge's Report as follows, p, 13 :-
The members had here an opportunity of discussing the questions that had arisen, of hearing the opinion of the Judge-Advocate, and of deciding upon their verdict and sentence. "Upon their return to the Court, the Judge-Advocate resumed the open consideration of the case, made reference to the questions of law and fact that had already been decided by the Court, and in doing this he sometimes read the evidence from his notes.
The impression made upon Bigge's mind by this method of conducting a trial, may be seen in the suggestions for its improvement which he felt called upon to make :-
I suggested to the Judge-Advocate the expediency of summing up the evidence from his notes in the form of a charge, and of stating all questions of law and fact, as well as his own view of them, to the members of the Court before they retired, in the presence of the prisoner and the public.
The object of that suggestion was to give the proceedings the appearance of a public trial. The Judge-Advocate was good enough to take the hint, and from that time - 1820 - he ceased to retire with the other members until he had said all that he had to say in public. It was the first time for thirty-two years that the Criminal Court had been ventilated; and some credit is due to Bigge for having let in the fresh air of public criticism on its proceedings.
In criticising the constitution of this Court, Wentworth asked, "What motive existed for excluding the civil officers? Were they either less competent to be members of a Court whose decisions ought to be founded solely on the laws of England, or were they less respectable than the military and naval (7)?" They were not excluded for either reason; but simply because, the Court being virtually a Court-martial, civil officers could not properly have a seat in it. Nor would it have mended matters in the least if they had not been excluded. The Court would still have been open to the same objections, seeing that civil officers were just as much under the influence of the Crown as military and naval men; they were appointed by it and removable by it. Moreover, their presence in such a Court would have been objectionable for two reasons; first, because they would have felt out of their element in it; and secondly, because while the military members would necessarily have had some knowledge of the law and practice of their own tribunals, the civil officers would have had none; and it is obviously better that a Court, whatever its constitution, should be composed of men who understand their business than of men who do not. As to the decisions of the Court being founded solely on the laws of England, that was true only in the sense that the laws were to be interpreted and applied according to the practice of the Courts-martial. The plain fact was that, to all intents and purposes, the colony was placed under martial law, in the manner of a disturbed district; and the laws of England - as we understand them - were not in force within its borders until the practice of the Courts at Westminster was substituted for that of the military tribunal.
The method of trial established by the Act of 1787 might be very fairly described in the language applied by Burke to the trial of American rebels in England under an Act passed during the War of Independence, founded on a statute of Henry the Eighth providing for the trial in England of treasons committed out of the realm. By that Act, wrote Burke in his letter to the Sheriffs of Bristol (1777) - "almost all that is substantial and beneficial in a trial by jury" was taken away from the American subject; "for to try a man under it is, in effect, to condemn him unheard. A person is brought hither in the dungeon of a ship's hold; loaded with irons, unfurnished with money, unsupported by friends, where no one local circumstance that tends to detect perjury can possibly be judged of; such a person may be executed according to form, but he can never be tried according to justice." It should not be forgotten that trial by military jury was not confined to convicts; all persons in the colony were subject to it. The free settler had no more privilege in that respect than the felon working in a chain-gang; the law being no respecter of persons (8).
A singular case which occurred in 1789 serves to show how the administration of justice was carried on under this system. In March, of that year, six marines were tried on a charge of having robbed the public store of liquor and provisions, were found guilty and; of course executed. The principal evidence against them was that of an accomplice; but there was another witness, a woman named Mary Turner, whose evidence was unsatisfactory to the members of the Court, After she had left the witness-box, the judge directed the Provost-Marshal to detain her in custody - presumably with a view to instituting proceedings against her for perjury. This matter gave rise to a warm correspondence between the Judge-Advocate and Captain Campbell, one of the jury, which soon after involved all the other officers, as well as Major Ross and the Governor, in an exciting discussion. The first letter of the series was addressed by the Judge-Advocate to Captain Campbell: -
I understand by the Provost-Martial, who has just been with me, that you imagined Mary Turner was in custody; I have to acquaint you that Mary Turner is forthcoming at any time she may be wanted, but that I myself have at present no thoughts of calling on her, as I do not think, on mature consideration, there would be sufficient proof to affect her, either as an accessory in the late business, or for perjury at the trial. However, if you are of a different opinion and wish to have her tried, she may be brought before the Criminal Court that is to assemble on Tuesday or Wednesday next. In such case, I should wish to have timely notice of the charge to be exhibited against her, and what witnesses are to be called to support it, that the necessary steps may be taken.
In the present day this would be considered a peculiar letter for a judge to write to a juryman. It was evidently written in a most obliging spirit. Collins was under the impression that Campbell wished to prosecute the woman for reasons of his own, and although the judge could not see any ground for a prosecution himself, he was willing to oblige the would-be prosecutor by indicting her at the next sitting of the Criminal Court, to be held a few days afterwards. To appreciate the state of things disclosed in this letter, we should have to imagine a case occurring in the present day, in which a judge, acting also as a Crown Prosecutor, having satisfied himself that there was no foundation for a charge of perjury against a woman who had given evidence at a recent trial before him, had notwithstanding written a letter to a juryman offering to lay an information and to have her tried before himself at the next sittings of his Court - with his friend in the jury-box. If we imagine, further, that such a letter had not only been written but published in the newspapers, there would be no difficulty in understanding the impression it would have made on; the public with respect to the administration of justice. It is quite clear that the Mary Turner of 1789 was as much entitled to the protection of the English laws as any Mary Turner of the present day would be, in a similar case. But it is equally clear that, in the eye of the law as administered by her judges, she was not entitled to any more protection than might suit their own view of the matter.
The Judge-Advocate's letter to Captain Campbell provoked a very different sort of reply from that which he expected. So far from reciprocating his kindly offer and expressing his grateful sense of the judge's condescension, the captain lost his temper and sent back a letter on the same day, as deliberately insulting as he could make it:-
In answer to your letter of this day, I have to say that I perfectly well remember, at the last Criminal Court held in this island, when Mary Turner was ordered to withdraw from the Court, she was by yourself ordered into the custody of the Provost. I do not by this mean to say that it was entirely an act of your own, for myself among others desired it might be so, as we then appeared to be unanimously of opinion that she was a very proper object to make an example of.
When the Provost informed you this morning of my having desired him to speak to you about the woman, he should have likewise informed you that I had, immediately after the Court was dissolved, and on my seeing the woman at liberty, desired him to make my compliments to you, and to know from you whether he had not misunderstood the orders you gave in Court - to take her into his custody - as I had myself been one of the members who desired it; nor could I till this morning possibly account for my not having been acquainted with your opinion.
Having this morning, by accident, heard that a Criminal Court would be assembled the beginning of next week, I judged it a discharge of a part of my duty to the publick to know what was to be done with Mary Turner, sensible that no power on this island could liberate her till she had undergone a trial.
I therefore sent for the Provost, who, to my great surprise, had the assurance to tell me that he never delivered my message to you, upon which I ordered him to go and do it without loss of time.
Now, sir, you have the cause of your being troubled with any message from me this morning. How far such a message might authorize you to call upon me as a prosecutor, I know not, nor shall I at present comment upon it. One point you have certainly gained by it, that you have effectually precluded Captain Campbell from sitting as a member of any Criminal Court that it may be necessary to assemble here, and of which you are a part.
As this business may undergo future investigation, I beg leave to recommend it to you to keep copies of such letters as you may choose to write upon the occasion, as I assure you I shall of mine. I at the same time think it proper to inform you that this is the only letter you will receive upon this subject.
There was some ground for the indignation expressed in this letter, but there was none for the display of so much bad temper. The writer was justified in resenting the idea that he might be called upon to undertake the responsibility of a prosecution, but he should not have forgotten that he had placed himself in the position he complained of by communicating with the judge in an irregular manner. If he conceived it a part of his duty to the public to ascertain what was to be done with Mary Turner, his obvious course was to wait until the Criminal Court was assembled, and then to make his inquiry in Court. His idea that no power could liberate her until she had undergone a trial, was a mistaken one; because it was quite competent for the judge who had ordered her into custody to discharge her from it.
The peculiar tone of Campbell's letter can be understood when we recollect the relations existing between him and Major Ross. They were personal friends before they left England, and the consciousness that he had the Commanding officer at his back is apparent throughout his correspondence. Knowing that the avowal of his determination not to sit again in the Criminal Court would be made known to the Governor, and that he would consequently be called upon for an explanation, he lost no time in taking up a safe position. Two days after he had written to the Judge-Advocate, he addressed Major Ross on the subject:-
As I have always understood that you are not in possession of any power to compel the officers of the detachment under your command to sit as members of the Criminal Court established in this colony, contrary to their own inclinations, I have to request that you will please to direct the adjutant, so as that my name may not for the future appear in your orderly book as a member of that Court, as I shall be extremely concerned to be reduced to the very disagreeable necessity of objecting to any order of yours, or any other my superior in command.
I am sensible it may be said of me that I have hitherto volunteered or acquiesced in being, in my turn, a member of that Court, from my being likewise sensible that in the present situation of this colony, such power could not, with any degree of propriety, be vested in any other hands but that of the navy and army. I have farther to say, that I would still continue the same line of conduct did I think it consistent with either my character as a gentleman or my feelings as a man. You were, yourself, an ear-witness of the message sent by me by the Provost to the Judge-Advocate on the 25th instant, to which message I very soon after received the enclosed (in my opinion) most insulting letter. I had ever been taught to understand that the person officiating in his character at such Courts, was the person to carry on the prosecution. How far, or even, how it was possible for him to construe my message into a belief that I was become the prosecutor I know not, nor can I possibly imagine why he should call upon me individually for that purpose, as in his letter he certainly does, unless that he had some reason to suppose me of a more sanguinary and persecuting spirit than any other member of the Court, who wished the woman to be taken into custody for her having (evidently to all then present) perjured herself. The consequence of not using every possible means to prevent so dangerous a crime from getting to a head among the present inhabitants of this colony is too obvious to require any farther remarks upon it, and I am convinced that the wish of exerting every means in their power to prevent it, was the motive of that Court for desiring the woman to be taken into custody.
With the Judge-Advocate's letter, I take the liberty of inclosing for your perusal the copy of my answer to him, with the humble request that you will please to communicate the whole to the Governor, to the end that he may be convinced that I never had, nor ever will have, a wish or desire of impeding the publick service, and I have no doubt but that both him and you will do me the justice to say that I have used every means to promote it.
As I have no copy of any of the papers now sent to you, I request that you will please not to part with any of them unknown to me, or without my consent.
Campbell's remark with respect to the position of the Judge-Advocate shows clearly how it was regarded in the colony at that time. "I had ever been taught to understand a that the person officiating in his character at such Courts was the person to carry on the prosecution." That was undoubtedly the case, according to the practice in England; and the appearance of a Judge-Advocate on the bench might well have occasioned surprise to those who had seen a Court-martial sitting in the old country. Familiar as Campbell and his brother officers were with the practice there, they probably felt something more than surprise when they saw the prosecutor actually installed as the judge; and if his objection to take part in the proceedings of the Court had been grounded on a protest against the violation of principle involved in them, it would at least have been creditable to his sense of justice. But there is nothing to show that his conduct in the matter was influenced by any such consideration.
If the captain looked to his superior officer for support, Collins also had a powerful friend to whom he could appeal in time of trouble. The offensive language used by the former, coupled with his flat refusal to sit again in the Criminal Court, made such an impression on the judge that he wrote to Phillip on the day the hostile letter reached him. He thought it as well to lose no time in placing the Governor in possession of the facts from his own point of view - especially as he foresaw that Campbell's intimation with respect to his sitting in the Criminal Court would be certain to set his excellency in motion.
Having this day received a message from Captain Campbell respecting Mary Turner, one of the evidences on the late trial of the soldiers for robbing the store-house, I beg leave to lay before your excellency the following particulars of that affair:-
It appearing to the members of the Court, as well as to myself, on the examination of the said Mary Turner, that she had not sworn the truth in giving her testimony, on her being told to: withdraw, the Provost-Martial was ordered to detain and keep her apart from the other witnesses. The conviction and condemnation of the six prisoners very shortly followed, and the Court dissolved.
On maturely weighing and considering the whole of Mary Turner's depositions, and comparing it with those of the other witnesses, since the trial, I was of opinion there was not sufficient: proof to affect her on an indictment for perjury; and as I have always wished to avoid lightly grounding a prosecution against the convicts, from the bad effect it might have - in pointing out to them how far they might offend if they but withhold sufficient proof - I had dropped, for the present, any thoughts of calling on Mary Turner for trial; neither have I at any time since then heard it was the opinion or wish of any member of that Court to bring her to trial until this morning, when I was informed by the Provost-Martial that Captain Campbell, one of the members of the late Court, had enquired of him if she was in his custody, and expressed some surprise and anger on being told that she was not. As to this latter circumstance, I must observe to your excellency that, having no place of confinement or custody for female offenders, they have always been suffered to go at large until wanted for trial.
In consequence of the above message, I wrote to Captain Campbell a letter, wherein I informed him "that I did not think myself there was proof sufficient to bring her to trial, either for perjury, or as an accessory; but, nevertheless, if he was of a different opinion, and would let me know what charge should be exhibited against her, and what witnesses could be brought to support it, it should be done"; for as I did not myself know of any proof sufficient to establish a charge against her, I was not certain but Captain Campbell might be informed of some that I was unacquainted with. I beg leave to trouble your excellency with a copy of my letter, and of Captain Campbell's reply, which I received this afternoon; and have now only to add that, though I think the conviction of her being guilty of perjury may be clear in the breast and opinion of every individual of the late Court, yet still there is not sufficient proof of it to convict her in the eye of the law; nevertheless, as Captain Campbell considers her as a prisoner by order of the late Court, and thinks she ought to be delivered by a due course of law, I propose to bring her before the Court that is to assemble in the next week, and try her on a charge of wilful and corrupt perjury at the late trial.
How lightly the sense of judicial responsibility weighed upon Collins is apparent from the concluding sentence of his letter. He repeats his opinion that there was not sufficient evidence to justify a prosecution; but, nevertheless, because Captain Campbell thought she ought to be prosecuted, he proposed to bring her before the Court in the following week on a charge of wilful and corrupt perjury. Such an intimation appears to imply that, as he was prepared to waive his opinion so far, he would not object to waive it at the trial. By bringing the prisoner before the Court on an indictment drawn by himself, he would have given its members to understand that in his opinion there was a case against her; but if it had become known that the prosecution had been instituted by him in deference to Captain Campbell's views, in what sort of position would he have placed himself? The excitement of the discussion seems to have blinded him to the obvious interpretation of his act; for evidently he did not see that it laid him open to a charge of trifling with the jury, playing with the prisoner's life, and exhibiting a degree of weakness in the discharge of his duty, both as a prosecutor and a judge, which would render it difficult to place any confidence in his administration of justice. There is no reason to doubt his purity of intention; the case against him is that, not being sufficiently mindful of the responsibility attaching to his position, he weakly yielded his opinion at the first appearance of pressure; forgetting that in such circumstances weakness becomes iniquity.
A review of these proceedings gives rise to a suspicion that the functions of judge and prosecutor may have been improperly combined in the same person, through a misinterpretation of the Act and the Letters Patent by which the Court was established. It is clear that Collins looked upon it as part of his duty to act as prosecutor, and there is no doubt that he acted as judge when the Court sat. If, for instance, he had carried out his intention to bring Mary Turner before the Court, he would have prepared the charge and collected the evidence for the trial; and when the trial came on he would have examined the witnesses and addressed the Court, at the same time taking notes, arguing questions of law and fact, and finally, passing sentence after conviction (9)." In addition to all that, he would have retired with, the jury and given his vote as one of them. A Court so constituted presents such a violent contrast with an English Court of justice, that one is tempted to ask whether it was really the intention of the Legislature that law should be administered in that fashion. So far as its express words are concerned, there is little or nothing in the Act to show that the Judge-Advocate was intended to perform any other duties than those which belonged to his office in England. That the regimental or garrison Court-martial was taken as the model of the Court is shewn by the person's appointed to compose it; and it is a fair inference, therefore, that it was intended to follow the usage of such Courts (10).
If, on the other hand, it was intended that the practice of the Court-martial should not be followed as regards the functions of the Judge-Advocate, but that a Court should be created of an entirely novel character, it is reasonable to suppose that the intention would have been more clearly expressed than it was. It is difficult to believe that Parliament intended to introduce a method of administering justice for which there was no precedent, which had nothing to recommend it in the shape of convenience, and which would naturally provoke suspicion as to its impartiality. But whatever conclusion may be come to on this point, the fact that no care was taken to prevent misconception on the subject, is a singular instance of the negligent manner in which the business was conducted. The Act and Letters Patent were so worded as to bear the interpretation put upon them by Collins; they were equally open to a very different construction. Putting that question aside, something might have been done to make their provisions known to the officers concerned before they left England, As it was, two only of them had seen the Act before the Fleet sailed. The others made their first acquaintance with it when it was read out at the proclamation of the colony. The Judge-Advocate being the only person in it holding a legal appointment, every question of the kind was left in his hands; and it is not surprising if, without any experience or training to fit him for his task, he so interpreted the Act as to place himself in the extraordinary position of a judge, a prosecutor, and a juryman combined (11).
NOTES:
1. By the second "Constitution" Act - 9 George IV, c. 83 - which enlarged the Legislative Council of the colony from five to fifteen members, and empowered it to "extend and apply the form and manner of proceeding by grand and petit juries," as it might think fit. Under that authority, the right of trial by jury in civil cases was granted, in an optional form, by the local Act 10 George IV, No. 8 (1829), and in criminal cases, in the same manner, by the Act 4 William IV, No. 12 (1833). Trial by jury was made absolute in all cases by the Act 11 Victoria, No. 20 (1847), which consolidated the local jury laws.
2. 4 George IV, c. 96(1823).
3. A Court called the Supreme Court of Civil Judicature was established in 1814, the first Judge of which was Jeffrey Hart Bent, who arrived in that year, and was summarily removed by Governor Macquarie two years afterwards. Bent's brother, Ellis, came out as Judge-Advocate with that Governor in 1809, and died in 1815. The last Judge-Advocate was John Wylde, who came out in 1816. He was appointed a temporary Judge of the Supreme Court in 1824, and left the colony in the following year.
4. Report of the Commission of Inquiry on the Judicial Establishment of New South Wales and Van Diemen's Land, p. 19. In his Report on the State of Agriculture and Trade in New South Wales, Bigge stated (p. 80) that the total number of inhabitants in the colony in 1820 was 23,939; of whom 1,307 persons had come free; 1,495 "had been born in the colony; 159 had been absolutely pardoned; 962 had been conditionally pardoned; 3,253 were free by servitude and expiration of sentence; 1,422 held tickets of leave; 9,451 were convicts; 5,668 were children; and 220 were serving on board colonial vessels.
5. Description of New South Wales (1819), pp. 232-3. Wentworth gives another illustration of the manner in which the criminal law was administered in his time. The herd of wild cattle found at the Cowpastures in 1795 had been left to increase, under the impression that they would ultimately stock the country with cattle. At the time Wentworth wrote, they had disappeared, and he accounted for the fact by the "exterminating incursions of numerous poor settlers who had farms in the neighbourhood," and who supplied themselves with fresh meat by a raid on the Cowpastures, in the fashion of Scott's Highland borderers. Every possible effort was made to suppress this kind of robbery, but without any success. For a long time it was thought beyond the power of the Courts to hold the robbers in check; because although the cattle were originally the property of the Crown, they had subsequently become intermixed with cattle belonging to private owners, the result being that it was impossible to identify any particular animal. On trials for cattle stealing, evidence of identification was required by the Judge-Advocate who administered justice from 1809 to 1815, and without sufficient evidence on that point, he would not convict; but his successor, who held office from 1816 to 1824, dissented from his ruling on that point, and would not be bound by it. Convictions then became easy. - Ib., pp. 50-51.
6. Judge-Advocate Wylde, speaking in 1824, described his position in the following terms: - "The Judge-Advocate is only one of the seven jurors who compose, and have committed to them as a Court of Record, the whole jurisdiction as to law and fact, determining both, it is known, by the opinions of a majority of its members. The Judge-Advocate has in truth no especial or other power than any other juror of the Court."
7. Description of New South Wales (1819), p. 364.
8. Holt's report of the proceedings against him in the Judge-Advocate's Court, in 1804, throws some light on the method of conducting business in it. - Memoirs, vol. ii, pp. 206-216. The terror excited among the convict population by the summary proceedings of the Criminal Court was so great that several instances are recorded of suicide having been committed in order to escape from the certain result of a trial. Thus Collins relates (p. 25) that in April, 1788, "an elderly woman, a convict, having been accused of stealing a flat-iron, and the iron being found in her possession, the first moment she was left alone she hung herself to the ridge-pole of her tent, but was fortunately discovered and cut down before it was too late" - ? to try her. Those who did not take their own lives generally fled to the bush, where they perished miserably, or escaped death by starvation only by returning and giving themselves up. Many of the wild attempts to escape by sea were no doubt attributable to the same cause. The convicts in such cases were probably habitual thieves, unable to restrain their propensity for picking up other people's property, and frightened out of their wits when they saw the Provost-Marshal. One man was supposed to have been driven mad by fright; Collins, p. 80.
9. "The Judge-Advocate is the judge or president of the Court; he frames and exhibits the charge against the prisoner, has a vote in the Court, and is sworn, like the members of it, well and truly to try and to make true deliverance between the King and the prisoner, and give a verdict according to the evidence." - Collins, p. 11.
10. Speaking of the regimental Court-martial, Tytler says (p. 177):- "The usual practice is to appoint a captain as president and four subalterns." If Phillip had thought fit to appoint a president whenever he convened the Court, there was nothing in the Act to prevent him; and he might have reasonably come to the conclusion that the usage of the Court-martial should be followed as far as it was practicable. As a matter of fact, it was followed in several points - as, for instance, (1) the keeping of a roster by the adjutant; "it is customary in every regiment for the adjutant to keep a regular roster for their instruction in this as well as in all other regimental duties "; (2) the presence of the officers in Court in full uniform, and (3) the order in which the votes were given - "the youngest members of the Court being required to give his opinion first, and the rest following in progressive seniority up to the President, who votes last;" ib., p. 152 ; Tench, Narrative, p. 70. These rules were adopted without any express instructions, and they show that the Court was guided in its practice by the usage of the Court-martial. It might also have been argued that the use of the term Judge-Advocate in the Act, without any words of definition as to his duties, implied that it was intended to mean in the colony what it meant in England; just as the word Provost-Marshal was interpreted on the same principle.
11. The constitution of the Criminal Court was strongly condemned in the Report of a Committee of the House of Commons, published in 1812. Referring to the evidence given by the witnesses examined on the subject - among whom were Governor Hunter and Governor Bligh - the Report said: - "Your Committee have to observe that all the evidence examined on the subject, unequivocally condemns the manner in which the Criminal Courts are thus established... Your Committee are of opinion that the manner of administering criminal justice may be altered with great advantage to the colony. It is not to be expected that the inhabitants should view, otherwise than with jealously and discontent, a system which resembles rather a Court-martial than the mode of trial the advantages of which they have been accustomed to see and to enjoy in their own country."
12/04/2007
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