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

Personal letters of Burton J - Cape Colony

Letter by W.W. Burton to his fellow puisne judge, William Menzies, of the Supreme Court of the Cape Colony

 

Grahams Town Novr 1st 1829

My dear Menzies,[ 1] - I arrived here yesterday at about 11 in the morning, having been prevented from doing so the evening before by an accident to the old Hartebeest, [?] which fell into a hole about an hour from Somerset & broke an axle - I was therefore obliged to wait for another wagon - leave her to be repaired:- I found here a very clean and respectable Hotel - Moodie and Campbell had prepared a very excellent breakfast for me & I soon made myself quite comfortable - but not finding so much business as to make it necessary that I should immediately open the Court, I did not go to Court yesterday - intending to commence [tom]orrow morning:- I have had a very arduous circuit - the travelling has been more disagreeable than before - & the duty much heavier: In the Karoo, I found it very cold - the rain which has fallen with so much advantage to this part of the country & which therefore one blesses whilst it pelts him most pitilessly, yet makes a journey through the Karoo very - cold.  I have travelled usually very early - & have also gone into Court at seven in the morning; an arrangement which may be made at this time of the year, altho' at no other - & I think it suits the people better who are in the habit of early rising, than keeping them late at night.

There were two bad cases of Murder at Graaft Reivet - & quite as bad a Jury - the pannel were chiefly summoned from the Haustain [?] & remote parts of the District & after shifting & drawing them out of the box the whole of my first Day, Tuesday, I found them so utterlyincompetent to distinguish the point of evidence applicable to the different charges contained in one indictment & so utterly at a loss what verdict to return that I should have conceived it Murder to convict a man by such a Jury - & then I ordered a new pannel to be returne[d] by the Sheriff - when I got a most [illegible] & intelligent jury indeed - & with them tried the remaining cases -

At Somerset I grieve to say there were also three convictions for Murder - two at least of which & the two at Graaft Reivet must be executed: unless you and my brother Judges should think I did wrong in ordering a new Jury upon being perfectly satisfied, as well as the whole of the byestanders - that the Jury first returned by the Sheriff were utterly incompetent - If I did wrong - & therefore illegally, of course the two lives must be spared - but I am of opinion that I did right: however do not talk about the point to any one - until it formally be referred foryour opinion which I intend it should be -

I hear from Mrs Burton that you and Mrs Menzies have been twice to see her, which I consider very kind in you: she writes quite jealously of your little boy, & says he is a sweet creature:- I sincerely hope he may be a blessing to both of you -

You will have thought it strange that I did not alter the book in the passage relating to Registration after your kind suggestion - the fact [w]as that I waited so long & so late, expecting a decision that I had no time - & therefore preferred giving a notice at the end of the work that the point had been disputed & was still sub judice - the decision of the Court if against the doctrine there laid down I propose to give in a separate sheet to each holder of a book gratis - but I must still say that I do not expect your decision to be against it; I still continue to think that the law must be as I have state it - if however upon my [10 words illegible due to defective photocopy] necessity of Registration: I will give myself the trouble of endeavouring to undeceive myself, & shall not have the [?] ache at signing a recantation -

You will be glad to hear a good account of Kinnear - he is doing his business remarkably well - & appears to be much liked at Beaufort.  I have no doubt that he will both desire to do well & will succeed -

I have now reached my greatest distance from home - but shall not consider the circuit half performed until I leave Graham's Town next Monday morning - there is a delight in travelling homeward - which perhaps made the Karroo more sufferable on my former journey than on this - but this Circuit is a sad draw back upon one's happiness - to leave your wife almost alone for 10 long [?] a time - & yourself exposed to accident which might keep you apart for many months is a hardship which ought to be summed up in our favour at the end of the case but which you must not be expected [to] be at all thought of - I cannot beli[eve] that there is any colony where the Puisne Judges have so arduous a duty as the Circuit imposes upon them here - & the remuneration if it end with 1500 a year - is wholly inadequate   But all this you know & feel as well as I   it is but malicious to remind you that you are yet to endure what I am enduring

I shall feel it my duty to represent to the Governor the necessity there exists for providing more efficient interpreters throughout the circuit than are at present to be found - it is not fair that the Judge should be obliged to request persons to perform such an arduous duty - nor that their courtesy should be so heavily taxed - Yet I have been driven to do this at every place except Worcester - I find a greater difficulty in getting persons who can understand & be understood by the witnesses than in conveying my charge: - in the examination of a witness there is a great deal depending upon the mode of putting the questions - & whereby an ignorant person is often confused & perplexed & a great deal of vexatious question & answer sometimes goes on between the witness & interpreter - before the latter can understand him - & makes me at least out of patience & insist upon another interpreter - but in conveying the Judge's charge to the Jury, he is a mere conduit pipe putting into Dutch what is delivered in English - & of the meaning of the judge he can never be in doubt - a man will therefore be very capable of interpreting the Judge's charge & of being understood by the Jury who is quite incompetent to examine the witnesses - I have found this to be true.

I am writing this last half sheet on the 6th of Novr having finished all my criminal cases - & the civil roll also, except three or four cases in which postponements have been requested until Saturday morning on account of the absence of witnesses - I shall scarcely expect to hear from you as I shall so soon follow this letter on my way home - My chief object - for you see I have nothing interesting to communicate, is to shew you that I do not forget you - & to assure you that I always remember you with regard & esteem - & desire to cultivate the same feelings in you towards myself -

Believe me therefore to be My Dear Menzies

very sincerely yours

W.W. Burton

 

Notes

[ 1] This document is in the National Archives of South Africa, A 750.  I am very grateful to my colleague Dr Malcolm Voyce, for his generous work there on behalf of this project.

The first page of this document also includes a postscript dated 6 November, concerning the health of a person called Dundas.  The document is in the distinctive handwriting of Burton.

Burton's career at the Cape is recounted in the South African Dictionary of Biography; and in (1935) 52 South African Law Journal 257.  This document was written on what appears to have been his second circuit while he was on the Cape bench.  His first circuit was controversial, because he held then that any person who did not understand English was ineligible to sit on a jury.  Only Menzies of the other three judges supported Burton's stance, which was settled in 1831 when his position was overturned in favour of those who spoke only Dutch.  Burton had studied the Dutch language and Roman-Dutch law for six months before travelling to the Cape.

Burton's complaints about the salaries paid to colonial judges were continued once he travelled to New South Wales, as his letters from there show.

The self-confidence evident in this document is despite his having been at the bar for five years at the time it was written.

Published by the Division of Law, Macquarie University