juries, the Colonial Office took a strong step. But the experience of the following seven years, and the lack of unanimity among the colonists when the question was revived in 1819, go far to justify this hesitation, and it is probable that in 1812 much had passed in private conversation and in private correspondence at Downing Street, which made Lord Bathurst slow to accept without further inquiry Macquarie's urgent appeal for the establishment of juries.[1]
"It is, however," wrote Lord Bathurst, "a question how far in criminal cases the trial by jury may not be advantageously introduced. It is not necessary to dilate on the beneficial effects to be derived by that system of dispensing justice, but before it is adopted in New South Wales, it is very necessary gravely to consider how far the peculiar constitution of that society of men will allow of the application of this distinguished feature of the British Constitution: are there settlers in number sufficient, capable and willing to undertake the duties. In a society so restricted is there not reason to apprehend that they may unavoidably bring with them passions and prejudices which will ill dispose them to discharge the functions of judgment? The great principle of that excellent institution is that men should be tried by their Peers—would that principle be fairly acted upon, if free settlers were to sit in judgment on convicts; and that too in cases where free settlers might be a party? Would it be prudent to allow convicts to act as jurymen? Would their admission satisfy free settlers? Would not their exclusion, etc., be considered as an invidious mark, placed upon the convicts, and be at variance with the Great Principle upon which the institution itself is founded?
"These are questions which it will be very desirable should be well weighed, and on which I shall be happy to have your opinion. The proposed alterations in the (civil) Court of Judicature need not wait for their solution.
"On the contrary it may perhaps be desirable that altera-
- ↑ Cf. e.g., the statement of Atkins, late Judge-Advocate of New South Wales, in regard to settlers at the Hawkesbury: "I think, Sir, that except a very few, a glass of gin would bias them". (Johnston's Trial, p. 17, 1811). Again Dr. Townson in 1814 thought "jury tryal" dangerous at a time when "corruption by spirits was so easy". Enclosure in letter from Wilberforce to Colonial Office, 19th April, 1817. R.O., MS.
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