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Decisions of the Superior Courts of New South Wales, 1788-1899

R v Sheriff of NSW [1825] NSWKR 1; [1825] NSWSupC 2

trial by jury - emancipists - convict rights - mandamus - reception of English law

Supreme Court of New South Wales

Forbes C.J., 10 January 1825

Source: Australian, 13 January 1825



This important case came on for argument this day.[1 ]  The Solicitor General[2 ] appeared on behalf of the Sheriff to shew cause against the Rule being made absolute.  The learned Gentleman commenced by reading a passage from Blackstone, describing the nature of a Writ of Mandamus.

He then observed, that this was not an application to restore to the applicants, any suspended privelege; but to impose upon them a burthensome duty, from which, according to the tenor of various provisional clauses in acts of Parliament, it would be clearly shewn, persons generally were anxious to be exempted.

He then adverted to the reasons which exempted persons from serving the office of jurors, and proceeded to state, that a mandamus did not lie where the party had a specific remedy: as was held in the case of "the King v. Bishop of Chester." The parties in this case were complaining without any ground.  They were presuming that they would be excluded. 

They were calling on the sheriff to do that, which they only feared he would not do.  Now, the Sheriff might think it prudent, or even necessary to include their names in the next pannel; that such might be for the public good  he might from such an opinion, from even the present argument.  In the old edition of "Buller's Nisi Prius", fol. 199, the Court will not grant a writ, till there was a default.  No fault had yet been shewn: therefore it could only be by anticipation  he would contend that the Court had no right to presume, that the Sheriff would not do his duty ---- it was not because he was once in fault, that he was always to continue in error.

He would admit, for the sake of argument, that a writ of mandamus would lie; and he would also shew, that even in that case, they were not in a situation to apply for it.  They must not speak on belief, but swear to facts.  The parties, besides, had not shewn themselves entitled to this privelege.  The statute required them to be freeholders ---- they might be so, but they may not be such as the law required ---- they must remember that a larger freehold qualification was necessary here, than in England.  Fifty acres of cleared land, or a substantial tenement, was necessary.  He would notice one particular point, which went to impute to the Sheriff, very dishonourable and even disgraceful conduct towards the Emancipists ---- (a designation technically unknown) in intentionally and wilfully omitting the names of the deponents; if such had been the case, he was liable to an action at law ---- and consequently there was one special remedy, which would prevent a mandamus lying[.]  They complained of an intention to degrade them in the general estimation of society ---- a degradation he thought might be implied from an inclusion, rather than from an exclusion.  He would contend, however, that this was not the proper mode of proceeding.  A mandamus was a high prerogative writ --- not to be applied for on all trifling occasions --- if this were granted on the present occasion, he should expect to hear of persons applying for a mandamus to be sent to the tread mill, or to direct gentlemen to attend that Court completely accou[t]red; to compel them to wear wigs; and to be completely a l'Anglaise at the bar.

The learned Solicitor General then contended that the names of several persons could not be included in the same writ; and concluded by moving, that as the rule could not be supported, it should be discharged with costs.

Dr. Wardell replied briefly to these arguments of the Solicitor General, on the points of form; he regretted that the question had not been discussed on the merits, in order that it might be at once decided whether the parties who were some of the most respectable gentlemen in the Colony, now applying to the Court had, or had not, a right to be returned as jurors.  He contended that the duty of a juror being of a burthensome nature, did not render the fulfilment of that office the less a right; and that it was a right, was evident, from the original constitution of juries ---- indeed its being a burthensome duty, made his clients the more entitled to praise, for making the present application.  With regard to the alleged defectiveness of the affidavit, he stated that the parties had sworn that they verily believed, they were wrongfully and wilfully excluded from the pannel, and where persons could only swear to the best of their belief  to do that, he considered in law sufficient.  As to the clause in the 4th. of Geo. IV. respecting the qualification of a Juror, it was evident from the words, as well as from the manner in which they were introduced, that this qualification only had reference to cases in the Supreme Court, where parties agreed between themselves to have a Jury impannelled.  The learned Gentleman then proceeded to argue, that a writ of mandamus was the only remedy left to open to the applicants, for the Acts of Parliament which gave other remedies, clearly had no applicability to the Colony, and if they had, still the writ of mandamus was the most convenient mode of bringing the question before the Court for discussion, and it had been held frequently, that, when parties applying had even another and a specific legal remedy, the Court would grant this writ; in support of which position, the learned Gentleman cited several authorities, and among the number 2 Mauk and Selwyn, the King v. the Commissioners of Dean Enclosure, where it was admitted, that when an indictment would lie, the Court would not therefore refuse to interfere by mandamus; for an indictment was only a proceeding in poenam[3 ] for the past, and not a remedy for the future.  The learned Gentleman was then proceeding to shew that the emancipists really possessed the right to be returned, as they had sworn in their affidavit; ---- when he was interrupted by the Solicitor General, who begged to remind the learned Counsel that he had not gone farther in his argument than the points of form, and must object to any departure from that subject.

Mr. Wentworth hereupon rose and said, he was sorry to see such pitiful points of form resorted to, to effect a delay in the decision of a great public question, in which the great mass of the community were interested deeply ---- a question which had caused so much anxiety throughout the Colony.  The question could not be protracted above a week or a fortnight ---- and eventually the right of the emancipists must be conceded.

Here a desultory conversation ensued, and the Chief Justice at length decided, that it would be better that the argument should be confined to the points of form.

The Chief Justice then said there were two sorts of mandamus, one to inforce public rights, the other to assert private.  There were certain requisites, however to be observed in both.  The applicants must shew that they had sustained some particular wrong upon the right or title claimed, for which there was no specific remedy.  It was stated, in this case, that the parties were freeholders; but the annual value of that freeholds was not mentioned.  He could not help thinking the affidavit somewhat defective in this respect.  The qualification of Jurors in England was well known; and, even if that qualification did not extend to this Colony, which he collected from the argument of the learned Counsel, who moved for the rule, to be their opinion, the affidavit still should have stated that the applicants possessed the common law qualification, that they were "probi et legales homines."[4 ]  He had some doubts, also, as to the propriety of the joinder of these parties in one common affidavit; for, although they all claimed the same right, they might not all have the same title to it.  However, not to dwell on points of objection, it was evident that the writ of mandamus would not lie where there were other remedies.  Now, various remedies were pointed out by the statutes of 3 & 4 Anne, c. 18.; the 7 and 8 William III. c. 32.; and the 3 Geo. II. c. 25.  It was ingeniously contended, however, that these were remedies only for the past; that they were not prospective, and that they were not calculated to procure the insertion of the names of these parties in the Jury list.  It was further contended, that the statutes above named, did not apply here; and, if they did not, ---- that would, he confessed, involve the question in a grave difficulty.  With respect to what statutes did, and what statutes did not apply here, --- it was impossible to lay down any general rule.  It was in the breast of the Magistrate to act on those statutes which he thought applicable, and to reject those which he thought not so.  In either case there would be a mode of mooting their applicability, or inapplicability by the party feeling aggrieved by Magistrates' decision.[5 ]  With reference to the statutes in question, however, he was decidedly of opinion that those statutes did apply.  He did not attach much weight to the Solicitor General's argument as to the rule of practice which had been established for the Sessions, under the Act of Parliament.  He thought that argument had been sufficiently answered by the Counsel on the other side.  His principal reason for dismissing this rule was, that there was another and a specific remedy for the wrong complained of, to which the applicants could resort.

After His Honor had pronounced his decision, some conversation arose with respect to the costs of the motion, and it was agreed that the rule must be discharged with costs.[6 ]



[1 ] This is another in a series of cases in which emancipated convicts sought to have trial by jury, and to be added to the jury lists.  Their opponents, the exclusives, wanted the colony's government and courts  free of the taint of convicts, and dragged their feet on every point of the jury question.

In a report to Wilmot Horton on the history of their conflict, Forbes C.J. called the two parties in the colony the ``convicts and settlers": Forbes to Horton, 6 February 1825, Catton Papers, Australian Joint Copying Project, Reel M791.  His personal view was apparent in this description.  In describing the emancipists, he said ``These gentlemen regard convicts precisely in the same way as a planter in the West Indies regards his slaves.  I am you know, a West-Indian, and I can truly say that the assigned convicts appear to me to be considered, and treated by the generality of settlers, in precisely the same way that the slaves are considered and treated in the West-Indies."  He went on to discuss the jury question, describing the policy behind his decision in R. v. the Magistrates of Sydney, October 1824 as an experiment: ``I anticipated no evil beyond a little warm, perhaps angry discussion, among the few who taken any interest in such subjects within the colony ... the question in itself does not disturb the minds of more than a score of persons in this colony".  He said he stood outside the politics of the colony, ``keeping an open court, and a close house".  In his letter to Wilmot Horton of 24 March 1825, he declared the experiment a success: see R. v. the Magistrates of Sydney, October 1824, footnote 17 and see Historical Records of Australia, Series 4, vol. 1, p. 584.  For the view of Attorney General Bannister, see Bannister to Horton, 8 February 1825, Historical Records of Australia, Series 4, vol. 1, p. 583.

On juries, see also R. v. the Magistrates of Sydney, October 1824 and footnotes therein; R. v. Cooper, February 1825; R. v. Wentworth, Campbell and Dunn, June 1825.  On emancipist membership of a jury, see also Australian, 24 March 1825, p 2, arguing that juries were an essential part of English law. 

The Sydney Gazette, 13 January 1825 gave a brief summary of the arguments and decisions rather than a full report, claiming that the proceedings were too ``dry and uninteresting" to be of interest to its readers.  A week later (20 January 1825) it took the opportunity of attacking the pretensions of Wentworth and Wardell, while claiming to be sympathetic to the emancipists' arguments.  It continued that it was confident that emancipists would soon be satisfied by London's decisions on the question; on this, the Gazette was wrong because the jury question rumbled on for a long period.  In the latter commentary, the editor of the Gazette made one of his admissions that he knew very little law.

On the campaign for trial by jury, see D. Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, Cambridge University Press, Cambridge, 1991, chap. 7.

[2 ] John Stephen, later a Justice of the Supreme Court.

[3 ] Penalty or punishment.

[4 ] Honest and legal men.

[5 ] On 8 February 1825, Governor Brisbane wrote to Earl Bathurst to ask him to refer legal questions to the Crown lawyers in London.  One question asked was what was the date of reception of the statute law of Great Britain to New South Wales, unless the colony were named in the Act in question.  Two opinions were held on the point, he said, either 1788, the date of foundation of the colony, or 1823, the date of introduction of a legislature: Historical Records of Australia, Series 1, vol. 11, p. 495. Bathurst replied unhelpfully.  He said that the question had recently been raised in Newfoundland as well, but gave no answer.  He also left open the issue of the impact of 4 Geo. IV c. 96, noting that a new Act was in the course of preparation: Historical Records of Australia, Series 1, vol. 12, p. 54.  In doing so, he relied on the advice of James Stephen; see  Stephen to Horton, 15 August 1825,  Historical Records of Australia, Series 4, vol. 1, p. 614.  (Eventually the question was settled by legislation; see (1828) 9 Geo. IV c. 83, s. 24, which provided a new date for reception of 1828.)

Forbes C.J. and Attorney General Bannister disagreed on this question.  Forbes thought that in the absence of a colonial legislature, Acts of Westminster were automatically applicable until a local legislature was established, while Bannister thought that the correct date was 1788: see A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, p. 378.  Once again, Forbes C.J. showed a flexibility about colonial law which others lacked.

[6 ] The emancipists' barristers, Wentworth and Wardell, put their view of this case in an editorial in their newspaper, the Australian, on 13 January 1825.  They said that the case turned primarily on the applicability of the jury lists legislation to New South Wales.  No alternative remedy to mandamus was available, they had argued before the Supreme Court, because the statutes providing the other possible remedies were inapplicable in the colony.  Even if they had been applicable, mandamus should still have been available.  Forbes C.J. rejected these arguments, but this merely postponed the question of whether emancipists could serve on juries.  The next step, the editorial said, was to try one of the statutory remedies.  The most suitable of these was a summary prosecution in the magistrates' courts of the constables who omitted emancipists from the jury lists

Published by the Division of Law, Macquarie University