Account of an expedition to the interior of New Holland

by Lady Mary Fox; Richard Whately

Mr. Adamson observed, that though any of the company present would be competent to detail to him the particulars of their practice, because it was held a general duty for every respectable person to have a knowledge of this kind; yet that as one of their judges, Sir Peter, was present in the room, it would be, perhaps, more satisfactory that they should seek the information from him. Accordingly, on being introduced to him, they started the subject by saying they were anxious to know whether the Southlanders had retained the trial by jury, as it was practised in England. He replied, that the first settlers had retained the usage in this respect with which they had been familiar; but that, as the settlement advanced, they found it expedient to adopt some modifications of it, which they regarded as very important. These modifications related, he said, chiefly to the selection of jurors, or, as they were termed in the settlement, syndics, and also to the degree in which unanimity was requisite for a verdict. “Our judges,” he said, “found speedily that all men, even in the same rank of life, were not equally to be entrusted with this important function; and also, that requiring perfect unanimity was frequently the cause, either that no verdict was arrived at, or a wrong one,—sometimes, even against the opinion of the majority.

“These inconveniences,” he said, “did not develope themselves for a considerable period. On our first settlement, when the minds of the people were chiefly occupied in providing for their daily wants, we found that the intelligence of each man might be very safely measured by the successfulness of his industry; and we allowed our jurymen to be selected indiscriminately from amongst those who were able to support themselves creditably by their own exertions. But we found, subsequently, that successful industry was not always accompanied by that intelligence and sagacity which would enable men to decide on the merits of conflicting evidence.

“We have instituted, therefore, an examination for the purpose of ascertaining fitness. As each man becomes of age, he may, if he thinks himself prepared, submit himself to the assembled judges, who question him with regard to the laws of evidence; and, if they are satisfied both as to his intelligence and moral character, he is marked as a person capable of discharging this function.”

The English travellers replied with a smile, that few in England would be found, probably, to submit themselves to such an examination; that, though they prided themselves as a nation upon the possession of the right to trial by jury, yet that each man considered the office as a burthen, which he was anxious to roll over upon his neighbour, as interfering with the employment of his time; and that this feeling would certainly be strengthened if an examination were required.

“We,” said Mr. Benson, “have established an order of syndics; and it is considered honourable to be enrolled amongst the number. We have conferred certain privileges on the order; for instance, while we give to every man who has not been disqualified by crime a right to one vote in the selection of parliamentary representatives, we give three votes to each syndic; and this in addition to the increased number of votes which he may have arising from the manner in which we have graduated property. This latter circumstance has, however, nothing to do with the matter in question. What I wish you to remark now is, that we regard any man of sufficient intelligence to be a syndic, as entitled on that account to exercise a greater influence than others in the selection of those who are to frame our laws.”

On being asked whether the examination was really strict, Sir Peter answered that the strictness of course varied with the dispositions and sense of duty possessed by the existing judges; but that rejection was a very common occurrence. If this proceeded from moral objection, it was exceedingly difficult for the person to gain admission afterwards; this could only be effected by very conspicuous and continued good conduct. If, however, the rejection arose from a want merely of adequate knowledge, the individual was always at liberty to submit himself freely for re-examination, when in his own judgment he had acquired it. It was not considered creditable for any syndic to give his daughter in marriage to any one who was not enrolled with himself in the rank of the intelligent. Thus, he said, public opinion has conspired with civil privileges to render it important to each man to acquire this rank.

On being asked whether the number of syndics was considerable, he replied that it was, and that it was found by the periodical census that it was bearing an increasing proportion to the number of citizens generally; that they regarded this, in fact, as one of the tests of increasing civilization,—more especially because their experience proved that the examination became more strict and enlarged, according as the general intelligence of the country was increased. Persons would be rejected now, who, some years back, would have been, on the same acquirements, sure of admission.

“I am describing to you, however,” he said, “the regulations which prevail in this particular state. In the other states in union with us, many variations may be observed, though all agree in selecting syndics by examination. The number of votes, for instance, given to a syndic, as such, is different in different states. Again, in some states, the number of syndics is not left indefinite, as with us, but is limited.”

Sir Peter went on to observe, that the names of all the syndics were regularly arranged on rolls, each of which, in this particular state, contained not less than one hundred and twenty names. These rolls, a day or two before the commencement of the assizes, were presented to the judge, who drew from them a certain number by lot. The persons so drawn were then summoned to attend the court; and when any cause was entered upon for trial, the plaintiff and defendant were each allowed to assign some rule according to which triers should be taken from the roll of attendants summoned for that day,—as, for instance, every third or fifth or tenth individual, commencing from the top or bottom of the list, till the number of twelve was completed. “Thus,” he said, “having taken precaution that none but men of intelligence should have their names enrolled, we must be careful that all packing of juries shall be out of the question. Neither of the interested parties can influence, either directly or indirectly, the selection of those who have to try the case.”

In those states which have a regal (or quasi-regal) form of government, the sovereign has, as with us, the privilege of pardoning criminals, but with one exception; attempts on the life of the sovereign himself cannot receive the royal pardon, except through the means of an address to the throne from the whole legislative body.