THE EXECUTIVE AND THE JUDICIARY. 193 



juries, the Colonial Office took a strong step. But the experi- 

 ence 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 corre- 

 spondence 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 judg- 

 ment ? 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 jury- 

 men ? 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- 



1 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, 

 igth April, 1817. R.O., MS. 



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