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

Speech to Jury [1835] NSWSupC 96

Burton J., attitudes of - jury, speech to - causes of crime - squatting - Forbes C.J., attitude ofSydney Herald towards - Sydney Herald, attitude to judiciary - constitutional reform, petitions for

Supreme Court of New South Wales

Burton J., 18 November 1835

Source: Australian, 24 November 1835[ 1]

CHARGE OF JUDGE BURTON TO

THE JURY ON CLOSING THE

SUPREME COURT.

Supreme Court, 18th November 1835.

All cases for trial this Session having been gone through, Mr. Justice Burton addressing the Jury, said:-

It was now his duty to discharge them from any further attendance this Sessions; but before he did so, he must make to them a few observations, which they might carry with them to their homes, and there give them a calm and serious consideration. -  His own mind was seriously impressed with their importance, otherwise he should not introduce them to their attention.  It had been his lot to preside alternately with his brother Judges in that Court, he might say for three years.  Since with the present Sessions the judicial business of the Court would not meet again in the exercise of its ordinary jurisdiction before the first of January.

It was a period at which, as a Judge, he might himself well pause and enquire what he had been doing during that period - what had been the effect of his labours - and especially, considering the number of capital convicts which had taken place before him, the number of sentences passed.[2 ]  It was fitting that he should ask himself the question what has been the effect of those sentences in the way of example? and he felt that they were equally interested in the same question.  He would, therefore, before they separated, lay before them the conclusions and views to which his own mind had arrived.

It was customary for the Judges at home, when on Circuit, to address the Grand Juries of the respective Counties upon the state of the calendar presented to them.  No such opportunity presented itself to the Judges in this Colony; instead of meeting a Grand Jury, those gentlemen who would constitute that class, and those who would belong to the Petty Jury, were alike on the panel.  He deemed therefore, the observations which it would be his duty to make, if he had the opportunity of addressing a Grand Jury in this Colony, might properly be made to them and it had been his practice in the Colony from which he was removed to this, where the same Constitution in this respect prevailed, to take an opportunity, before he separated from the Jury, of making such observations as occurred to him on the state of crime within their respective districts.

He had requested a return to be made out by the Chief Clerk of the Court of all the capital convictions that had taken place during the late three years, and he thought, when he stated the number to them, they would feel he was fully justified in the course of observations he was about to make:-

In 1833 there had been one hundred and thirty-five capital convictions, on sixty-nine sentence of death had been passed; forty-five of those capital convictions, and fifteen of these sentences of death had taken place upon his judicial responsibility.

In 1834, one hundred and forty-eight capital convictions, in eighty-three of which sentence of death had been passed; forty-eight of which convictions, and thirty-six of which sentences had been before himself.

In 1835, one hundred and sixteen capital convictions, and seventy-one sentences to suffer death; fifty-six of which convictions had taken place before him, and twenty-eight of which sentences he had passed.  In addition to which sentences there are thirty-three prisoners who have been capitally convicted, waiting for sentence.  Whether death might be recorded or passed upon them, the number of capital convictions was a feature sufficiently striking in the administration of justice in this Colony, for it was to be remarked that capital punishment had been taken away from several offences, such as forgery, cattle stealing, stealing in a dwelling house above the value of £5, (those fruitless sources of capital convictions in former times) ever since the 1st August, 1833, so that those which had taken place since that time were all for crimes of violence, murder, rape, robbery, burglary, maliciously stabbing, shooting and wounding, and offences of similar character.

He then stated that the Calendar of the present Sessions, presenting the following facts, had been furnished to him by the Crown Solicitor:-

There had been convicted for murder..........................................3

Stabbing with intent &c., shooting at with intent to kill, cutting and

maiming, assault with intent to do bodily harm...................................6

Manslaughter....................................................................................2

Arson............................................................................................ 1

Piracy and burglary............................................................................ 8

Housebreaking..................................................................................10

Highway robbery..............................................................................  7

Receiving........................................................................................ 1

Forgery........................................................................................... 2

Larceny........................................................................................... 4

Cattle stealing.................................................................................... 1

Piracy only........................................................................................ 1

Robbery........................................................................................... 8

  54

Prisoners, in Gaol on the 18th of November, 1835, who has been in custody

previous to the 2nd November, 1835, viz.:-

 

For trial on the 18th..............................................................................7

Quarter Sessions, 6th December............................................................ 30

Stand for next Criminal Sessions.............................................................13

For discharge......................................................................................3

Consideration....................................................................................19

  72

 

Tried on the 18th................................................................................. 7

Convicted of cattle stealing..................................................................... 2

Robbery and receiving, death recorded.......................................................4

Acquitted..........................................................................................1

  14

 

He further stated that there were still in the gaol untried the number of 74 prisoners, from various causes of delay, as to which it was not now his business to inquire.  They were, however, neither unknown nor unheeded.  With respect to the causes of this state of crime, he had nothing to do with what others might assign - he had formed his own conclusions as to them, which he would lay before the gentlemen of the jury; and beg them carefully to weigh and examine them and judge for themselves; he had thought the number of capital convictions alone enough to point his own and their attention to it, as an indication of the state of the country as to crime; he had not thought it necessary, with so prominent a feature before him to mention the number of convictions before the Supreme Court during the same period, for offences not capital; he would only briefly refer to them, and to all those offences which were tried before the several Court of Quarter Sessions throughout the Colony, in the exercise of their summary jurisdiction and by juries; the mass of offences which were summarily disposed of by the Magistrates, and at the several police offices throughout the Colony, and added to all these, the numerous undiscovered crimes, which every man who heard him, or to whom the report of his words should come, would at once admit to have occurred in his own circle of knowledge.  And then the picture presented to their minds would be one of the most painful reflection; it would appear to one who could look down upon the community, as if the main business of us all wee the commission of crime and the punishment of it; as if the whole Colony were continually in motion towards the several Court of Justice, and the most painful reflection of all must be, that so many capital sentences and the execution of them, have not had the effect of preventing crime by way of example.

In his opinion one grand cause of such a state of things, was an overwhelming defect of religious principle in this community; a principle which he considered as the polar star to guide a man in all his conduct, and without which none other would prevent him from crime.

But that he might not be said to make so grave a charge upon light foundations, he would instance the crimes of violence, the murders, the manslaughters in drunken revels, - the perjuries - the false witnesses from motives of revenge or reward, which in the proceedings before him had been brought to light.  There were some indeed of so atrocious a character which had occurred before him, that he would briefly instance some of them which the time that had elapsed might have caused to pass away from their memory; and he mentioned the case of Mullaly and his wife who were convicted of stealing from the person of Patrick Sherry, by means of some deleterious drug administered to him, which for a time deprived him of sense, and perhaps only the quantity administered prevented the loss of his life; and the case of Armstrong an overseer, who was acquitted upon a false charge brought against him by a convict under his superintendence, of shooting at him with intent to murder him.

He referred to the case of Cowan and his wife who were acquitted of the murder of a man named Kerr, as embodying in itself a picture of those evils with which the colony is visited:- these persons, and one Campbell and the deceased Kerr, lived near Liverpool, and kept an unlicensed still, and a house to which the gangs of prisoners in their neighbourhood resorted for drink, and they were cattle-stealers, (it was no slander to call them such since they have been convicted of it.)  On a Sunday evening their house was visited by a constable or Liverpool, who arrived about eight o'clock in the evening, and found all parties, as he expressed it, ``beastly drunk," and two prisoners of the crown in the same state:- this was the last time Kerr was seen alive by any respectable person.  Information was given on the next day by two of Cowan's servants to the Magistrates of Liverpool against him for cattle-stealing; and it was proved that their having done so was known to Peter Montgomery, a convict employed as overseer at the Liverpool Hospital in the afternoon of the same day - and that he had visited Cowan afterwards - and from expressions made by Cowan during his intoxication that he expected Kerr would give evidence against him: Kerr was murdered by some one on that night - and his body was afterwards found at the distance of 40 or 50 rods, but he blood traced to within 17 or 18 yards of Cowan's door.

At the trial, Campbell who had given a statement before the Magistrates, which if he had adhered to on the trial, would have brought home the guilt of that murder to both the prisoners, recanted the whole of his previous statements, and they were acquitted.  It appeared in evidence that this person had been forwarded from Liverpool to Sydney, handcuffed with Cowan, - was confined in the same yard in the gaol with him, and the gentlemen of the Jury have had an instance before them this day, of the effect of such association upon the evidence of a witness.  It further appeared, and it deserves notice as an instance of retributive justice, as well as showing the character of this case, that another dead man was found at the same place within three months before, and that upon that occasion, a coroner's Jury had acquitted the prisoner Cowan, upon the evidence of that man Kerr, and whose deposition after his death was given in evidence in this Court in favour of the same prisoner, when Cowan was subsequently tried before one of the other Judges on that charge, and was the main ground of his acquittal.

The conclusions to he drawn from such a case are manifest; and the Judge stated that he was sorry to say, and those who heard him could bear him out in what he said, that this was not the only case which had recently been before the Court, in which there was the strongest suspicion of an expected witness against a prisoner being made away with to prevent his giving evidence.

In another case, an old man who is now gone to his account, and whose name he would not therefore mention, was acquitted of maliciously shooting at a servant in his employment,, and the means taken to procure that acquittal, were a false charge of felony set up against the principle witness.

In another case as many as ten or eleven persons had successively abused the person of a woman; of course consent in such a case was impossible to be presumed, - but what must be the state of moral degradation of those persons who could consecutively follow one another in the commission of such an act.

These and many other instances to which it would be long now to refer, (but they were upon his notes of evidence in cases tried before him), had brought him to the conclusion that there is an overwhelming defect of religious principle in this Colony.  If he was wrong in this conclusion, his reasoning upon it would fail, the Jury would judge of this; but if he were correct, then it was a state of things which warranted him in calling upon them by all the means in their power to improve it.

He could not but acknowledge there was a deficiency of religious instruction in the Colony.  There was not that number of religious teachers its extent and population required.  He did not intend to impute blame to any one individually.  But when he imputed a want of religious principle, he looked around to see whether there was an adequacy of religious instruction in order to point their attention to this circumstance; so that if they found a deficiency, they might call upon the proper authorities to make such an addition as necessity required.  There were only at present thirty such persons for the whole of this scattered population, independent of a few whom the charity of Societies in England had supplied; a number too scanty to admit of any being spared for the Penal Settlements.  It had been his lot to visit one of those Penal Settlements.  To see them herding together without any chance of improvement, without any religious instruction, was painful in the extreme.  One man particularly had observed, in a manner which drew tears from his eyes and wrung his heart when he was placed before him for sentence-" Let a man he what he will when he comes here, he is soon as bad as the rest; a man's heart is taken from him, as there is given to him the heart of a beast."  He did not impute blame to any one, and he trusted no such motives would be ascribed to him; but in a question of such vital importance, which involved not only the present but the ultimate welfare and security of the Colony, all were interested; and it was the duty of every one to do what he could to ameliorate if possible, its present condition.  He only stated the fact and lamented it.

He felt, however, bound to say, that Masters of Convicts were not sufficiently attentive to the morals of their men; defective as our means of religious instruction might be, it had been proved before him, that highly respectable persons residing near to a Church, in the same town, and within a few miles, not only neglected to oblige them to attend the Church, but actually suffered them to spend the Lord's Day amidst scenes of drunkenness and debauchery.  Nor was that all.  It had been further proved, that the Lord's Day by some masters was made a day of labour - and that some other day was allowed to them as an equivalent.  But what equivalent he would ask could a master give for the loss of that moral instruction which the security of society required?  There were doubtless many who being under the necessity of attending a distant service could not take their servants.  But he would ask, whether in such situations they did all which they could?  He would ask, what was the example which had been set by them?  What instruction did they give them?  It was in every man's power to set an example of moral conduct, and observance of the Lord's Day, in his own person, and to gather his family and servants together for divine worship, whether a Church was near or distant.  And he would further beg to impress upon their minds that they were not in a situation to blame others for want of moral instruction so long as they did not avail themselves of such means as were already within their powers.  He was sorry to say that many of the worst crimes which had been brought under his notice were committed on the Lord's Day, and he was led to apprehend that there was a very general disregard and desecration of it.

There were other causes which led, in his opinion to crime in this country.  With respect to them there might be a difference of opinion - He could only say, that he had formed his own; and as he was prepared to give it to the Governor, he should be wanting in candour if he did not state it to them.

He had been induced by what had been proved before him in that Court, gravely to consider the question of Convicts working in gangs out of irons, and felt convinced that it was one of the most fruitful sources of crime to be found in the Colony.  He had before him a return, from which it appeared that the number of Convicts at this time employed upon the roads is two thousand two hundred and forty, of whom eleven hundred and four ate out of irons!  And (he continued) when they, the Jury, considered who these latter men were, and what they had been, placed under the guardianship of a Convict overseer, that they left their huts in any number, armed or unarmed as they pleased.  In short, from the evidence he had upon is notes respecting the conduct of road parties of the Colony, it would appear that those establishments were like bee hives, the inhabitants busily pouring in and out - but with this difference, the one work by day, the other by night - the one goes forth to industry, the other to plunder.  To the carelessness or worse conduct of overseers, he did attribute a vast proportion of the burglaries and robberies that were committed in the Country Districts.  It had been proved in a recent case (he spoke from his notes), that a party of these men had committed a robbery, under such circumstances of aggravation that sentence of Death had been passed upon four of them.

He must, however, say that the settlers were themselves to blame for many of the crimes committed by Convicts belonging to road parties; they too frequently appear to have employed these men in their leisure or working hours, or on a Sunday, paying them for their labour in money which was spent in drink, and so prepared them for the commission of crimes.  And it appeared to him that they frequently, after using their services at harvest time, remunerated them for their labour by granting them passes for several days more than was necessary to return to their gangs; and during that time the whole country they pass through is laid under contribution by their depredations.  If there must be road parties, then the settlers ought to keep themselves aloof, and abstain from improperly employing them them, and from giving them improper indulgences.  And if they should receive their assistance occasionally for harvest, they ought to take especial care they were sent securely to their gangs under an overseer or constable; for, although the depredation might not be committed upon the settler himself, yet he was in some measure bound to protect his neighbours.

Another source of crime, he thought, to be the occupation of the waste lands of the Colony by unauthorised and improper persons, both bond and free; whom, commencing with nothing, or a very small capital, soon after acquire a degree of wealth which must lead every reasonable man to the conclusion they do not get it honestly.  Another cause, he considered, was the congregating of large numbers of Convict servants in the town of Sydney; to which he attributed a vast proportion of the burglaries and robberies committed there; the master allowing his Convict servants to wander about where and when they please after his work is done, or on the Lord's Day, instead of keeping over them that vigilant watchfulness it was his duty to do; and the premises of respectable and unsuspected persons furnishing them with means of concealment.

Another source of crime was, the allowing improper persons to have licensed public houses.  It had been proved that a great many robberies were concocted at such houses, and the proprietors of many of those low houses being persons who were not far removed from the class of life in which the prisoners were themselves placed, undoubtedly such houses would be the most frequented by improper characters; but if none but respectable persons were allowed a license, such characters would not dare to enter their houses.

But there was another cause which comes home to all, which is the almost total want of superintendence of masters over their assigned servants.  It had been proved to him that many robberies had been committed, which are attributable to this alone; where there had been either no overseer at all, or else a very inactive one.  In such a matter every man's respectability was concerned; the reputation of himself and family required that he should keep his servants under just restraint.  It had been proved before him, that Convict servants, six or seven in number, armed with muskets - a weapon not capable of much concealment - and masked, had committed various robberies upon all their adjoining neighbours; one of them attempted a robbery even in the middle of the day, on a Sunday, in the high road from Sydney to Parramatta, armed with a musket, another person being in his company.  How, he would ask, could such things be, if masters would exercise a just superintendence?  Why could they not keep them to their own farms by devising some innocent and rational English amusement for the occupation of their minds after the hours of labour, or the hours of worship on the Lord's Day?  They would then not have to accuse themselves of being the means of causing depredations to be committed on others.

Further, as many robberies were committed through Convict servants being left too much at liberty to roam where they please during the hours of sleep, it was well worth the consideration of all parties whether Convict servants might not, during those hours, be placed under such restraint as to put it beyond their power either to injure their masters property or that of his neighbour's.  He felt himself that some such measure was called for, at least in and near populous towns.  He knew that no individual could do it, but he spoke of recommending it as a public measure.

He had now made to them such observations as presented themselves to his mind after three years of his judicial life in this Colony.  He might have detained them longer than usual, but that was because he considered this to be the proper time for him to bring them to their notice; and long as he might have detained them, he trusted they would consider his observations of sufficient importance to warrant him in doing so.  When they calmly looked at, and gravely considered the vast amount of crime which was passing around them, could they feel otherwise than convinced so lamentable a circumstance must seriously retard the establishing, in this Colony, of those free institutions which were the pride and the boast of the parent country.  He could assure them he had equally an English heart with them, and was dearly attached to the freedom of the laws; but he must press upon their attention, what, considering the nature of the population of this Colony, the fact that men are passing daily from one class to another, must be the effect upon those institutions, of men passing from one class to another without moral improvement?  To himself it appeared that it must be the total corruption of them all.  In that point of view alone the subject was well worthy their grave attention.  Free institutions could only be appreciated and enjoyed by the virtuous; coercion was for the depraved; and a vicious people have never continued to be free.  He stated, that he felt he need do no more to impress upon all their minds the necessity there was for exercising all their influence to procure the moral improvement of those persons who are committed to their trust, and their utmost vigilance and superintendence over them to restrain them from crime, than draw their attention to the comparative numbers of the Free and Convicts in this Colony, and to the fact that the tide of Convict population still sets strongly here, whilst that of Free Emigration appears feebly to reach our shores.  He stated, that it appears from the census taken in September, 1833, published in the next Government Gazette after the 31st December, 1833, that it was there estimated that there were in this Colony-

Free Males, above 12 years of age .......................17,578

Convict Males .............................................. 21,845

and that he had been informed that the number of Free Emigrants since arrived up to November, 1835, has been 2,800, of whom 900 are men, the rest being women and children; and that the number of Convicts arrived since the same time, has been 8,167, of whom 7,357 are males.  He trusted they would take with them to their homes the facts he had stated, and the opinions he had expressed, and communicate to their neighbours, so that each might judge for himself as to the justness of his views.  The facts themselves he had drawn from what had come before him in evidence, and as such he put them.  He sincerely hoped they would have proper weight upon the minds of every one to whom they were stated; and that as he had taken this opportunity of inquiring on his part what he had done during the last three years, each one of them would also consider what he has been doing during the same period. - ``Sydney Monitor."[ 3]

Notes

[1 ]  The Sydney Herald, 23 November 1835, also published this account of the statement of Burton J., taken from the pages of the Sydney Monitor.

For lengthy commentary, see editorial pages of the Australian, 24 November 1835, and seeSydney Herald, 30 November 1835; and the editorial of the Sydney Herald, 3 December 1835.  It is obvious from the latter that Burton J. was the Herald's favourite.  Burton later appeared to change his mind on the supposed increase in crime, according to Bennett because of his aspirations to replace Forbes as Chief Justice: see J.M. Bennett (ed.), Some Papers of Sir Francis Forbes: First Chief Justice in Australia, Parliament of New South Wales, Sydney, 1998, p. 242.  However, this speech to the jury was later used in London to oppose the extension of jury trial: Forbes to Bourke, 1 May 1837, p. 258.  Burton could not hide his sympathies for the conservative cause.  On trial by jury, see also Forbes to Grey, 17 May 1837, p. 260.

By contrast, the Sydney Herald was very hostile to Forbes C.J.  See its issue of 10 December 1835, referring to him as a ``political judge"; that article (by a ``Correspondent") was followed by an attack on Roger Therry, who was later appointed to the Supreme Court bench.

For an editorial on highway robbery, the police and the convict system, see Australian, 5 May 1835; and see the comment in the same issue on a letter signed by ``Shoemaker."  See also, further comment in Australian, 8 May 1835; and a letter from ``Another Shoemaker" in the issue of 8 May 1835.  See also Australian, 8 March 1836.

In early 1836, there were two important petitions for constitutional reform, raising some of the issues examined in this speech to the jury: see Opinion on Juries, 1836.

There was a similar controversy over Burton's charge to a jury in 1837: see Sydney Gazette, 14 October 1837.

[2 ] For a comment on the greater number of executions in New South Wales than England, seeAustralian, 5 June 1835.  See also Australian, 24 May 1836.

[3 ] Governor Bourke sought the advice of Forbes C.J. on receiving this.  Forbes made clear in reply (Forbes to Bourke, 7 December 1835, in J.M. Bennett (ed.), Some Papers of Sir Francis Forbes: First Chief Justice in Australia, Parliament of New South Wales, Sydney, 1998, pp 239-240) that he disagreed with Burton's view of convict discipline.  He thought that the work gangs were under better control than in the past.  He thought that Burton had raised the ``old war cry" of a lack of convict discipline, which was often done by those who were dissatisfied.  Sometimes this was done by a ``convict master [who] apprehends the loss of his interests by the idleness of insubordination of his convict slaves."  At others, it was raised by those concerned to keep transportation as a deterrent.  This cry was a ``stale party trick" sometimes used merely because men's wives had been precluded from attendance at a ball.

As Bennett says (p. 240), Burton had no ground for treating an ordinary jury as if it were a grand jury and foisting his opinions on them.  Chief Justice Forbes set out the circumstances of this address in a letter to the Colonial Secretary (McLeay) on 13 April 1836.  He said he had had no communication with Burton J. about this before the speech was made to the jury.  Forbes thought that Burton seemed to have regarded himself in making this address rather like a Judge on circuit at home, in addressing Grand Juries on the state of the Calendar presented to them and so did not need the concurrence of rest of court.  He said to them that he did this because there was no grand jury and in conformity with what he used to do in the Cape, addressing the petit jury on the state of crime within their districts. (This and other papers are at the end of Forbes Papers, Governor Darling and the Judges, Mitchell Library, A 746.)

Bourke then wrote to Lord Glenelg (18 December 1835), responding to what were, in effect, Burton's criticisms of his administration (Historical Records of Australia, Series 1, Vol. 18, pp 228-232). See also Bourke to Glenelg, 10 June 1836, Historical Records of Australia, Series 1, Vol. 18, pp 436f.  For Glenelg's reply, dated 21 October 1836, see Historical Records of Australia, Series 1, Vol. 18, p. 576.

At this time, the British government was seeking to increase the severity of transportation: see Earl of Aberdeen to Bourke, 4 March 1835, Historical Records of Australia, Series 1, Vol. 17, p. 685.  He enclosed a copy of the advice by the Crown lawyers that it was legal to employ convicts in chains on the roads, but the chains could only be used to prevent escape.  See also Glenelg to Bourke, 11 July 1835, Historical Records of Australia, Series 1, Vol. 18, p. 23.

Published by the Division of Law, Macquarie University