Account of an expedition to the interior of New Holland

by Lady Mary Fox; Richard Whately

“It is,” say they, “very indelicate at least, to let the king be placed in so invidious a situation as that of having to decide on the fate of one who assailed his life.”

“And now,” said Sir Peter, “having given you such preliminary information as you could not obtain by merely attending our courts, I would propose to you to defer any further enquiries respecting our modes of trial. These you can best judge of by actually witnessing them for yourselves. Come with me to-morrow: I will take care that you shall have a convenient seat. Observe narrowly for yourselves, and, when the business of the day is over, put any questions you please to me on any point in which you perceive our customs differ from yours, and I will explain to you our reasons for such changes.”

The travellers thankfully availed themselves of this offer; and next morning, accordingly, they accompanied Sir Peter to the court. Immediately on his taking his seat, general silence was proclaimed, when the regular officer read from a paper the character of the suit to be tried, the names of the parties, and of the witnesses whom each party had summoned to give evidence. The witnesses were then called forward, and placed under the care of an officer, whom they accompanied out of court. Sir Peter whispered to the travellers, that in no case did they permit one witness to hear the testimony given by another.

The jury were then selected in the manner already pointed out by Mr. Benson on the previous evening. On their taking their seats the trial immediately proceeded; but, as the travellers were surprised to observe, without any administration of oaths. They remarked also, as each witness was called, it was stated whether he was a syndic or not. In case he was a syndic, the examination proceeded at once; but when a witness not a syndic was called upon, the judge urged on him, in a brief but solemn manner, to remember, in giving his testimony, that his thoughts and words were known to the Searcher of hearts.

As each witness concluded his evidence, the judge asked the opinion of the triers as to whether that witness had shown a wish to prevaricate. In one instance it happened that an affirmative answer was returned, when the witness was immediately given over to the custody of an attending officer.

When the evidence had been all heard, and commented on by counsel, the names of the twelve triers were written on slips of paper, and four names were drawn by lot. The four triers who answered to these names were then separated from the rest, and the judge required them to declare their decision within half an hour. They were then allowed to retire.

Before the termination of the allotted time they returned into court, and declared that they were agreed. In one, however, of the trials which subsequently took place, it happened that, at the end of the half-hour, they announced that the votes were divided. Four names of the remaining triers were then selected by lot, as before; and the judge informed them that he would expect their decision in twenty minutes.

At the expiration of the time they came forward, and pronounced a decision in favour of the defendant. They were then called upon to state whether, in their opinion, any witness had given testimony which he must have known to be false. They replied, none. The witness charged with prevarication was then called forward, and allowed to plead what he thought fit in his own defence. He failed to clear himself; and thereupon, having been very solemnly reprimanded by the judge, was declared suspended for a twelvemonth from exercising any vote for a representative, or holding any civil employment during that time.

The travellers remained in court, on this and some subsequent days, to witness other trials, and perceived that the same process was gone through, with such variations in the results as might be expected. They remarked, for instance, that one witness, who was a syndic, was declared guilty of prevarication, and that he was instantly pronounced to be degraded from this office for ever; but it did not happen during three days that the triers denounced any witness as having been guilty of deliberate falsehood.

On joining Sir Peter in the evening of the last day, the travellers observed to him that they had been very much pleased with the orderly arrangements of the court, and the quiet attention of the spectators. “We need scarcely,” they observed, “make any remarks with respect to your not requiring unanimity in your juries. The inconvenience of this requisition has been fully acknowledged amongst ourselves, though our practice has been suffered to remain unchanged. We hope, indeed, that our poet goes too far in saying that ‘wretches hang, that jurymen may dine!’ Still, a suspicion even that this, or, more probably, the converse may be the case, is very injurious to the respect which ought to be entertained for legal decisions. And we must admit, also, we have heard of one juryman complaining that no verdict was arrived at because he was associated with eleven obstinate men who would not agree to his opinion. We strongly suspect, therefore, that you are justified in the change which you have made. We would wish to know, however, whether it does not sometimes happen that the discrepancy of opinion, which we perceived to have occurred on one occasion in the first section of your jury, may not take place also in the second, and even in the third. Amongst us, when a discrepancy of this kind takes place, the only remedy we have discovered is to throw as much punishment and ridicule as we can upon the whole jury. We lock them up for as long a time as their constitutions can endure without actual loss of life; and when our judge is leaving the county, we order that the jury shall be placed in a cart, and drawn out after the judge to the boundaries of the district. This certainly does not remedy the evil arising from want of unanimity in the particular case; but it may operate upon the minds of jurors in other cases, and induce each of them to yield somewhat of his own opinion, not always to the majority or the wisest, but to the most stubborn.”