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

Speech to Jury (2) [1841] NSWSupC 94

Burton J., speech to Jury - jury, speech to

Supreme Court of New South Wales

Burton J., 15 September 1841

Source: Sydney Herald, 18 September 1841[1]

BERRIMA CIRCUIT COURT.

WEDNESDAY. - FIRST DAY.

            THE Court was opened with the usual ceremonies by His Honor Mr.JUSTICE BURTON, at twelve o'clock.

            The Crown cases were conducted by the Attorney-General; the other barristers present [were Messrs.] Purefoy and Hustler. The Criminal Crown Solicitor and Mr. Nichols were the only attorneys in attendance on the Court.

            The proclamation against vice and immorality was read by Mr. Edmund Burton, the Clerk of Arraigns.

            In calling over the Jury it was discovered that several gentlemen had been summoned from Goulburn and other places, exceeding the distance of thirty miles prescribed by the Act. His Honor directed them all to be discharged.

            His Honor then delivered the following address:-

            GENTLEMEN, - Before proceeding to the ordinary business of the session, I will address to you a few observations on the solemn duty which we have to perform. This you are aware is a practice which is in accordance with that pursued in the Mother Country, where Judges at the Assizes always charge the Jury upon the nature and extent of their duties, and the changes that may have occurred in the law. It is true, that we have not here a Grand Jury to whom in England [t]he observations are addressed, but I see about me those on whom the duties of Grand Jurors would devolve were there a Grand Jury, and therefore the observations which I am about to make cannot be considered inapplicable. You have heard by the proclamation which has been made, that the Queen commands her Judges at all assizes to charge those who are assembled, and the absence of a Grand Jury does not do away with that command; but whether the duty were imposed upon me or not, it is a practice which I approve of, and shall always pursue, for there are many things which may occur to the mind of a man who performs the functions of a Judge, which it may be advantageous that he should address to the public, more particularly with respect to the laws, for the Legislative Council of this Colony is but a small body appointed by the Crown, and the laws passed by it cannot be considered as emanating from the people. The laws passed by the Legislative Council are such as they always believe to be for the welfare of the community, but the public know little of them until they are promulgated, and then do not study them as they ought to do: and unless we make ourselves acquainted with the laws, how can we avoid offending them. It is for these reasons that I am induced to address you on subjects which, if not immediately connected with the duty before us, are still pertinent to the great cause which we have in hand. In England, the first matter on which the Judge delivers his sentiments is, the state of the district, but on the state of this district, I see no reason at present, to make any remark, should I do so, or see any reason to charge the magistrates with remissness in their duty, I shall not fail to do so. There is, however, one striking feature which I cannot avoid noticing; we are here assembled at an assize town, and I should think, the only town in which, within the memory of man, assizes have been held, in which there was not a Church; this is an anomaly which I do not think I shall be doing my duty, if I did not point out to the Christian world this is an assize town, and there is no place set apart for Divine Worship. Much as we may boast of the constitution of England, there is one feature of our system of Colonization hitherto, which we cannot but regret. About twenty-five years ago, a band of settlers went to the Cape of Good Hope in the same way as many have come here. They had been settled ten or twelve years, when I went there as a British Judge, which was the first opportunity they had had of attending the worship of God in a consecrated building; - the Church was opened on the day of my arrival. At the time these emigrants went to South Africa, a son of the house of Beaufort, Lord Charles Somerset, was the Governor, a magnificent house was built at Graham's Town for the residence of the Chief Magistrate of the district, the weight of whose roof caused it to fall down before it was inhabited: a large goal was also erected as one of the first buildings required for our free country, but no Church raised its spire at Graham's Town for ten years. Strange that a goal should be erected for the punishment of evildoers, but that no Church should be erected to prevent men from committing crime. This remark would not be applicable to the system of any other country. England s a great commercial country, and has seen many other countries go to decay: it was not so with her elder brother in commerce, the Dutch, nor with the Portuguese, nor the Spaniards; they first erected Churches to restrain men from crime, and then provided means to punish them. But although we have not a Church, we do not come to the performance of our solemn duties unblessed by the sanction of religion, this place having been recently occupied by a minister of the Gospel, with whom some of us, although not so many as I could have wished, have in this place worshippped God. Indeed I could not think of entering upon the solemn duty without the sanction of religion, for the administration of justice is a religious duty, and all who have any thing to do with it, would do well to wash their hand in innocency by making confession of their own sins before they judge the sins of others.

            I will now advert to the proclamation which has been read, by which magistrates would hear that it is their duty to impose its provisions; and this is not a mere matter of form, although, like many other venerable forms, it has, in some degree, fallen into disuse and contempt; partly, perhaps, because it has often been repeated by gabbling lips, who did not care about what they were reading; and heard by many with listless ears, who would rather have listened to something else. Let all obey the proclamation, in the first instance in their own persons, and then enforce and enjoin it upon others. There is but little that human legislation can do, and still irrelig on; and what they do is rather with a secular object than for the glory of God. We boast that the Christian religion is part of the law of the land; but when the Jews declared that their religion was part of their law, they made it so in realty, and punished offences, such as blasphemy, adultery, and sabbath-breaking, because they were against the law of God; but now we are told that such matters should not be interfered with by the law, but be left to ministers of religion. All this would be very well if this were not a Christian community. But legislators only follow the course of public opinion - the spirit of the age. Legislators, even the legislators of this Colony - grave, sedate men, do not go further than they think the spirit of the age will bear; and this requires but little. I hold in my hands a proof of this in the Act to prevent Shooting, for Sport or Pleasure, on Sunday; we all know what arguments were made use of to prevent this Bill from being extended further, and to make it really essential to prevent the profanation of the Lord's Day. The preamble of the Act recites indeed that the intention is to put a stop to shooting on Sunday, because it is "to manifest dishonor of religion;" but to vindicate the honor of religion it might have gone much further: for there are many things of which that could be predicated, but the real reason was, that this shooting disturbed some particular congregation or persons, and the Act was passed for that particular object. Is this community so refine that they require to have no irreligious practice put down but shooting on a Sunday. But if legislators can do so little, how incumbent is it then for us to do something more, and each to put down irreligion as much as possible; we should not make pleasure or gain our idols, nor consider that we do sufficient if we keep within the letter of the law, or avoid visiting those places which are denounced by the proclamation, and those practices which are prohibited by this Act.

            Since the learned Judge who preceded me was here several Acts have been passed, one of them being for the amendment of the Circuit Court Act, of which I think it right to apprize you. One of the alterations is, that of constituting this Court a Court of Gaol Delivery; this is a very important alteration: for there are several powers that are exercised by Courts of gaol delivery which cannot be exercised by other Courts; by the Habeas Corpus Act, which has been called the second Magna Charta, no man can be detained in gaol more than a certain time without being tried, but they can be discharged by a Court of Gaol Delivery only; a Circuit of Oyer and Terminer, that is a court to hear and determine cases, such as the Court of Sessions, has not this power, and I mention this more decidedly, because mistakes have been committed, which I hope I shall not heard of being repeated, prisoners having been discharged without trial by the Court of Quarter Sessions: when a magistrate has committed a man for trial there is no power to deliver him without trial except in a Court of Gaol Delivery; there are other powers belonging to a Court of Gaol Delivery which are important, as in case of a defeat on the jury panel, the judge can amend it, and he has a special and summary power over the sheriff and the magistrates in case they do not perform their duty. Another power given by the amended act is to assess damages in undefended cases. It is also enacted that the court shall have the same power to sentence prisoners as the Supreme Court or Quarter Sessions. This might appear a strange enactment to some, because a court formed expressly to deal with crimes would be considered to have the necessary powers, but without this enactment there would be great inconvenience, for by the Colonial Act, 3rd William IV., the Supreme Court and the Court of Quarter Sessions are authorised in cases where convicts are contivced of transportable offences, to sentence them to be worked for certain periods in irons, and unless this clause had been passed, the Circuit Courts would not have that power. Another amendment is allowing trial by assessors, which was omitted evidently by an oversight in the original act, and having been a judge in this colony for eight years, I must say that the trial by a judge and two assessors is well adapted, both by economy and despatch, for civil cases, and that the public think so is evident from the fact that one hundred cases are tried by assessors to one by a jury. The next amendment is a very important one; by the original act the jury must be summoned from the place in which the court is held; but in this particular the act has been amended, and it is now enacted that the jury shall be summoned from within thirty miles of the place where the court is held, and I would here remark how carelessly the jury lists for this district must have been made up: for it appears that persons have been summoned fifty and even sixty miles; this is not an unimportant error, and magistrates must bear with me while I say let this be avoided in future, for those who make such mistakes are punishable. The sheriff has just explained to me that there are three lists of jurors made at Berrima, Goulburn, and Bungonia, and that the error has been occasioned by their being amalgamated into one list, and if this be so, the blame is taken from the magistrates, and lies at the sheriff's door; the reason for having thirty-six jurors on the panel is, that the prisoner may have his right of challenge, and if there are not that number, or jurors are summoned that cannot sit, the prisoner is defrauded of his rights. The next alteration authorising the Attorney-General, or Solicitor-General, or such other person as may be appointed to prosecute is a most important one: for if a court is constituted with certain jurisdiction, and nothing is said about prosecuting, the only way in which cases can be brought before the Court is by the presentment of a Grand Jury. There is another bill, which was framed by the Attorney-General with the assistance of my brother Judges and myself, now before the Council, and onerous and lengthy as their duties have been, I hope they will not rise until they have passed it or rejected it: for I believe it is essential for the interests of the community that it should pass into law. There is, however, another proviso in the amended act, upon which I must comment, it is that which provides for the appointment of additional sheriffs. The office of Sheriff is one of great importance; he has the custody of all the money recovered by the suitors of the court; he is the responsible officer of the Court, and is the only officer the Court has to look to for protection, or to enforce the attendance of jurors or witnesses. By the law of England, the sheriff is one of the first men in the country, and I hope it will be so here. It is impossible that the sheriff of the Colony can perform the duties of the Circuit Court; no one man can do it; neither is it right that the present respected sheriff should be called upon to bear the expenses which he must undoubtedly be put to if he is compelled to attend the Circuits. Yet, until other sheriffs are appointed, I shall always require his presence. There are undoubtedly magistrates here, particularly the chief magistrate in the district, who would do much to assist the Court in courtesy, but Courts should not depend upon courtesy, and as there is no sheriff of the district, I must require the attendance of the sheriff of the Colony, and I hope that when a district sheriff is appointed, he will be equally responsible with the sheriff of the colony. Another subject of great importance is, what is to be the fate of those who are sentenced to be punished, and to this I would particularly call the attention of the magistrates. There are many crimes which, notwithstanding the present human laws, are punishable with death; but there are many which are punished by transportation; and last year there were between 250 and 300 persons transported in this colony; a vast proportion of these being unhappy persons who had been previously convicted. When prisoners were sent to Norfolk Island, we knew that they were treated with great severity. It was my lot to visit that island in 1834, and I saw that the system was a very severe one, with I trust, due regard to other principles: in this colony it operated to prevent crime, but now it has almost ceased to be an object of dread; and I should be reluctant to send prisoners to Norfolk Island if its terrors to the wicked had ceased; but by the recent determination of Her Majesty's Government, we can send no more convicts there. Van Diemen's Land has been substituted as the place of transportation in future; and by the Act of Parliament 5th Geo. IV. cap. 84, all persons transported are to be [LINE OMITTED] ment, assignment being now done away with; and I do ask, gentlemen, how effective they think this will be with those who are already transported? With a view of amending this, a Bill is now before the Legislative Council, by which persons sentenced for transportation are to be detained in such places as the Governor may appoint, and may afterwards send them to such penal settlement as may ultimately be appointed. If this act is passed, I hope it will not be longer than for one year, the term to which it appears to be estimated: for when a Court of Juctice has once passed a sentence it should not be rendered uncertain. These are all the observations I have to make before proceeding to the duties of the session, which, from the state of the calender, will, I fear occupy us some days.

Burton J., 29 September 1841

Source: Sydney Herald, 1 October 1841

BATHURST CIRCUIT COURT.

MONDAY, SEPTEMBER 29.

THE Court opened this morning at 10 o'clock. The Solicitor-General appeared as public prosecutor, besides whom there were present of the Sydney Bar, Messrs. Foster, Windeyer, Cheeke, and Purefoy. The Criminal Crown Solicitor attended, and Mr. Daintry was Clerk of Arraigns; Mr. Keck, jun., was present as Deputy Sheriff. Several persons were fined 40s. for non-attendance as jurymen. The Court was crowded the whole day, and we were glad to see the learned Chief Justice supported by the Magistrates of the district.

            The proclamation against vice and immorality having been read, silence was called, and the Chief Justice delivered the following charge.

THE JUDGE'S CHARGE.

The assemblage, on any occasion, of a large number of Her Majesty's subjects in this remote part of the British dominions, would within a very few years back, have been regarded as an improbable event.

            Scarcely twenty years have elapsed since the spot on which we stand was first trodden by European feet. Isolated by an extensive range of lofty and rugged mountains, it then seemed destined to remain for ages in deserted solitude, - the dominion of a few wandering children of the woods, and the abode of animals as harmless as themselves! contrasted with its present state, the transition awakens emotions of wonder and astonishment. The seemingly impervious wilderness has yielded to the enterprise of civilized man, and in a region where the limited wants and relations of savage life were severally supplied and regulated by the spontaneous bounty, and by the simple laws of nature, have been established the artificial refinements - the various complicated associations, and the diversity of ordinances incident to humanity in its highest cultivations. Institutions, the growth of ages in another hemisphere, have been transplanted, and taken root in the hearts and affections of people severed by oceans from the common fraternity [of home] kindred. Gradual in attainment, though precocious in emulation of other branches of the British family - in seeking the benefits of constitutional British rights. The inhabitants of the district in which we are assembled have now the appointment of an institution, for what may be regarded as the consummation of all political government - the due administration of justice: for in the language of a distinguished and enlightened philosopher of the present age, "Everyone must admit, that if we view the whole establishment of the country, - the government by the King, and the other states of the realm, the entire system of administration, whether civil or military - the vast establishments of land and of naval force by which the state is defended - our foreign negociations, intended to preserve peace with the world - our domestic arrangements, necessary to make the Government respected with the people - or our fiscal relations, by which the expense of the whole is to by supported, - all shrink into nothing, compared with the pure, prompt, and cheap administration of justice throughout the community." "I will indeed," says the same eminent person, "make no such comparison; - I will not put in contrast things so inseparably connected; for all the establishments formed by our ancestors and supported by their descendants, were invented, and are chiefly maintained in order that justice may be duly administered between man and man. And in my mind, he was guilty of no error, - he was chargeable with no exaggeration, - he was betrayed by his fancy into no metaphor, who once said, that all we see about us, King, Lords, and Commons, the whole machinery of the State, all the apparatus of the system, and its varied workings, end in simply bringing twelve good men into a box. Such, - the administration of justice, is the cause of the establishment of Government - such is the use of the Government: it is this purpose which can alone justify restraints on natural liberty it is this only which can excuse constant interference with the rights of the property of men!"

            Without affecting to trace the progress of the Bathurst settlement, from a single bark hut, to its present condition, - the central point of an extensive district, provided with sufficient accommodation for the comfort and convenience of civilised man, adorned with edifices dedicated to the worship of Almighty God, and indicating elements of wealth and prosperity, (despite the present temporary pressure of the times), I cannot on this my first turn of judicial duty amongst you, forbear reiterating the gratifications of the honorable and learned person who preceded me in April last, on the institution of this Circuit Court.

            The inhabitants of this district are now on equal terms with their fellow-sub[jects in the] earlier settlements of the Colony. Justice is now brought as nearly as possible to their doors, and the administration of the law for the assertion of right, and the redress of wrong, has now all the appliances adequate to the present wants of your community.

            The brief space allotted to me for general observations on this event, will not admit of any lengthened details of the social, moral, and fiscal advantages, arising to the inhabitants from the establishment of such a Court.

            It must occur to every one, that the effect of periodically bringing together, in contact, the scattered population of a widely extended rural district, must be most salutary in cementing social relations and sympathies, and awakening attention to interests which are apt to slumber from a too sequestered and detached state of existence. Community of feeling and of knowledge, and the devotion to the great bond of civilized life are, in the first instance, some of the most obvious advantages resulting from these meetings. Prominent as these advantages are, however, the moral effect of having justice communicated in the very bosom of your community, is of paramount consideration and importance, and needs no elucidation. Added to these, it cannot but be a subject of deep congratulation, that the Circuit Court thus instituted has the virtue of promising the pure, the prompt, and the cheap, distribution of justice. No longer is it necessary for suitors, prosecutors, and witnesses to be separated from their homes, to traverse inhospitable and rugged roads - to be exposed to the discomfort, loss, and injury arising from absence, or to incur the expense of time and money incident to the pursuit of justice in a scene of great remoteness. In a fiscal point of view the effects are at least commensurate with the social and moral advantages. All these are gained by the itinerant visits of her Majesty's Judges, and I persuade myself that the community upon whom these boons are conferred have a deep sense of their importance. Upon the Judges certainly new duties have been cast, not originally contemplated by the crown; but these are cheerfully performed by them, even at many personal sacrifices, and I cannot but believe that their exertions will be appreciated by the public of this colony in a spirit, and with a feeling, commensurate with the respect which is due to their important offices. On this solemn occasion, it now behoves us all to have our attention aroused to the purpose of this institution, and to have our memories refreshed by a recurrence to the defined duties cast upon us severally in the discharge of functions essential to the preservation and good order of society.

            To this end, the activity of the magistracy - the incorruptibility of inferior officers of justice - the veracity of witnesses - the unprejudiced impartiality of jurors, and last, not least, the fearless integrity of the Judges, must be united. Unless these several essentials tend to the same common object, the administration of justice would be brought into contemptuous mockery.

            Knowing, [as I do that the peace] of this district is committed to the hands of a numerous body of intelligent magistrates - and presided over, as they are, by a gentleman of great judgment and experience, it would be superfluous in me to remind them that whilst they should be a terror to evil-doers in the exercise of the extensive powers conferred upon them by law, they are invoked, by the sacredness of their office, to a vigilant, careful, discreet, and impartial administration of their functions. Co-relatively with the observance of these qualities will their offices and the administration of law be respected.

            It would be vain however for the magistracy thus to give direction to the interests of justice, if inferior ministers were unmindful of their duties. To them are committed trusts intimately connected with an efficient execution of magisterial authority, and in the proper discharge of which the practical operation of the law must mainly depend. These functionaries must be sensible that they are mere subordinate ministers in carrying out the orders of a higher authority, and that they are expected to yield a strict obedience to the letter of their limited instructions, and have no discretion, to relax on the one hand in the faithful discharge of their duty, nor on the other to render their brief authority subser-vient to purposes of unnecessary harshness, severity or oppression.

            Next in the importance to the purposes of justice, is a strict observance of truth on the part of those who are called upon to aid in the ministration of her rites. It is the essence of justice that she should be led into the way of truth, otherwise her name may be prostituted to purposes of iniquitous cruelty and oppression. Witnesses, therefore, cannot be too solemnly adjured on all occasions, to speak the truth, the whole truth, and nothing but the truth, when called upon to bear testimony. They cannot be too deeply impressed with a sense of the solemn obligation under which they are placed, or too sensitive of the danger, the scandal, and the disgrace they may bring upon the cause of truth, and upon themselves, by a careless indifference or a malignant strain upon their consciences, in profaning God's holy name in the witness-box. Persons unmindful of their duty in this respect, must alike be hardened to the solemn commands of the Divine law, and the stringent severity of secular punishment. In the catalogue of human crime none is so odious as wilful and corrupt perjury; polluting the stream of justice, it violates the sacred compact which binds man to man in the social state. On this occasion, therefore, now that we are entering upon the solemnities of this season, it is my province to proclaim, in a tone of commination the atrocity which characterises such an offence.

            Adverting now to the next and no less important actors in the grave functions of justice, the province of the Jury, invites attention.

            [He ?? who has a just sense] of what is due to society and to himself can regard the office of a Juryman otherwise than as one of privilege, and of honour. It may be burthensome; but like all other social obligations, which are more or less onerous, it is compensated for by a sense of usefulness, of duty, and of honourable distinction. Is it not a distinction, - and one peculiarly of British origin, - to be permitted to share, and to take a prominent part in the administration of the justice of one's country - to sit in judgment upon the rights and wrongs of our fellow men? The paltry considerations of loss of time, distance of travelling, and separation from home, sink into insignificance when these advantages are borne in mind.

            I need scarcely on this occasion indicate to the gentlemen appointed for the important duty of Jurymen, what the plain duties are which they have to perform - integrity of heart and purpose - freedom from bias or prejudice an earnest desire to do impartial justice - a deep and solemn sense of the oath taken to find a true verdict according to the evidence - constitute the obligations under which the juror is to enter into judgment on the matter in issue. He is to determine the credibility, weight, and effect of the evidence, and in performing that process, he is to apply his good sense and experience, and without, fear, favour, or affection, find a verdict according to the dictates of his conscience, remembering always, that his decision is conclusive of the facts to which the law is to be applied by the Judge. Contrasting the province of the Juryman with that of the Judge, there is th[i]s distinction - that the errors of the former may in most cases be remediless, whilst those of the latter can be reserved for correction in cases of doubt or difficulty.

The Judge is the last integral functionary in the several processes by which justice is to be attained. `Tis his province to hold the scales - to balance the cases of the prosecutor and the accused - the complainant and the defendant - and to see that the law is expounded to the intent for which all human legislation is ordained. To him is committed an anxious responsibility, in guarding against error and mistake. He is the conduit through which the pure streams of the law ought to flow, and happily the free constitution under which we live, affords his fellow subjects redress for lapses, either of the head or the heart.

            Having made these general observations, which have been invited by the practice of judges in the mother country, and by the precedents which have been established by my learned brethren of the bench, in this and other places, I now venture very shortly to call attention to the leading points of [LINE OMITTED] ordained by the wisdom of our local legislature for the administration of justice in this court.

            The time, it seems, has not yet arrived in which the circumstances of the colony will admit of the establishment of Grand Juries. Indeed, until the colony shall have been prepared by the adoption of municipal as well as country fiscal regulations, very little practical good could be expected to arise from some most important functions of the "Grand Inquest." So long as the public purse remains in the hands of the executive for general government its contents cannot be expected to be distributable for all the local wants and exigencies of a population so widely scattered as ours. Until the inhabitants are prepared for, and are willing to submit to self-taxation - for the maintenance of public hospitals, prisons, roads, bridges, and the numerous other local requisites for the convenience and necessities of a complicated state of society, I fear that the institution to which I allude, even if established, would remain ineffectual for the exercise of many of the superintending and controlling powers inherent in the Grand Juries of the mother country. Gravely as the doubts have been expressed, of the utility of the Grand Jury for purposes of criminal law, it is difficult for an Englishman to eradicate from his heart, affection for an institution which he has been taught to regard as a vital organ in the administration of justice. If there be magic in the principle, which requires twelve concurring voices to condemn there seems little ground for hallucination in requiring thirteen to accuse. Anomalous, however, as the mode of proceeding adopted in this colony is, of ordaining a public prosecutor, without the intervention of a Grand Jury, it is not without strong arguments of practical utility in its favor. It has the merit of economy of expense, and rapidity in the dispatch of business; and notwithstanding the extensive discretionary powers vested by law in the office of Attorney-General, it is a gratifying fact to recognise, that since the system has been pursued, there is not one authentic instance recorded, in which the trust reposed has been violated.

            Shorn of this important adjunct of a Court of Assive in England, we are met on the threshold by the fact, that all criminal prosecutions must be conducted in this court, in the name of Her Majesty's Attorney General. The right of trial by Jury in this branch of jurisdiction, is however, confirmed intact, and I pray God! may never be impeached. All the other arrangements for the distribution of justice are similar to those of the Supreme Court, saving the jurisdiction of offences committed on the high seas. It is not only, a Court of Oyer and Terminer, but also of Gaol Delivery, for the district. The latter function is one of the deepest importance, in guarding against delay, injustice, or unnecessary severity. The powers of the Court are also similar to those of the Supreme Tribunal of the Colony, in awarding punishment for the different classes of offenders amenable to the criminal law.

            On the Civil side our proceedings are now precisely analogous to those of the Court at Sydney. Causes are to be [viewed by the Judge] and two Magistrates of the district as assessors; but not to the exclusion of the right of trial by jury, if the suitors are minded to claim that mode of dispensing justice. The first mentioned system is more compendious, and after the experience of nearly half a century, it has been in general found to satisfy the ends of law and justice, although to an English mind it would seem a wide departure from the institutions of the mother country. Guarded provision, however, is made by the laws for trial by jury, if it is, in due time, simply demanded.

            I forbear making any observations upon the provision lately made by the legislature for discharging the important duties of Sheriff in Circuit districts, because I am persuaded that ere long the authority vested in His Excellency the governor for supplying the present defect, will be adequately exercised. Without an executive officer, the functions of a Court of Justice would be utterly inoperative. In the early settlement of the Colony, which twenty years since was almost limited to the County of Cumberland, one stipendiary Sheriff was deemed, and was in fact then found, sufficient for the ordinary purposes of the Supreme Court. The circumstances of the Colony, both in extent of settlement and the multiplication of inhabitants, distributed over a territory nearly as large as the three United Kingdoms, have since rendered further provision in this department indispensably necessary. We are all aware that the office of Sheriff is not only one of honorable distinction, but of great pecuniary responsibility. In England it is often held by persons of the highest station and fortune, and I should deeply regret to see such an office even in this remote part of Her Majesty's dominions fall into the hands of persons less eligible in point of character, if not in wealth. It must be obvious that the Sheriff of New South Wales cannot now discharge all the various functions incident to the office of Sheriff in districts remote from Sydney . Unless gifted with ubiquity, it would have been impossible for him to perform his duty in attending upon this Court; but knowing that his presence is required elsewhere, I am constrained to excuse his non-attendance. He has doubtless made the best arrangement that circumstances will admit in appointing a temporary deputy, but it is a fact, which cannot fail to be noticed, that this, a branch of the Supreme Court, is without the presence of its proper officer for protection, and for the execution of its judgments.

            I fear I shall be thought to have exceeded the bounds properly limited to this occasion, but I persuade myself that the charge I have thus delivered will be regarded by the inhabitants of this district as evidence of deep anxiety, that the trust committed to my hands shall not be unavailing; and in expressing my sense of gratification at the respectful manner of my reception into your township, I am assured of the devoted attachment of Her Majesty's loyal subjects in this district to those principles of action, which distinguish the British character all over the world.

            I cannot, however, conclude without observing with great satisfaction, that the criminal calendar for this Assize is comparatively light with the last, and that the most serious case arose during the preceding year. This favorable aspect of the district, I am led to hope, is as much attributable to the amelioration of public morals, by the pious energies of the Clergy of the different denominations in this important settlement, as to the zeal of the Magistracy in the vig[i]lant and active administration of the law. I am rejoiced to find that one fruitful source of crime is almost extinct in your district the illicit practice of sly grog selling. In the entire suppression of this, and the public discountenance of intemperance, efficient proportion will be made to receive with full benefit the exhortations of those whose peculiar province it is to inculcate moral and religious principles.

            I have now to invite all persons present to proceed to the dispatch of business in a frame of mind befitting this solemn occasion.

Notes

[1]              See also R. v. Davidson, 1841.

Published by the Division of Law, Macquarie University