The constitution of the Criminal Court needed revision.
"To propose a promiscuous, or indeed a restricted, selection of jurymen from among the present inhabitants, exclusive of officers, does not appear at all advisable, although I have no doubt that in twenty or thirty[1] years that extension of English jurisprudence must be necessarily carried that far. . . . At present a Criminal Court consists of the Judge-Advocate and six officers of His Majesty's sea or land forces, who act both as judge and jury, most certainly the wisest mode for administering justice in the very infant state of the colony. But as it has increased in numbers and jarring interests have (as in every other part of the world) shown the necessity of those trials being composed of different orders, I humbly presume it would be advisable, instead of the Judge-Advocate and six officers of His Majesty's sea or land forces, to introduce into the patent the Judge-Advocate and six members to be composed from among the officers of His Majesty's sea and land forces, officers of the civil department, or respectable merchants, or other inhabitants who came to the colony free. . . . As our Criminal Courts, that are to decide on the life of His Majesty's subjects, are at present composed entirely of one description of persons, it certainly will be more satisfactory to the inhabitants and colony at large to see every advance towards complete Trial by Jury. The arrangement I have the honour to propose would be gratefully received, and I humbly conceive that the knowledge and abilities of a professional man will be thought as necessary for the president of the Criminal Court, which has to decide on the life of the subject, as for the same person who, in the Civil Court, has to decide on his property."
To prove the necessity of having a professional president, and some admixture in the composition of the court, he cited a recent case, in which an assistant-surgeon applied for a court-martial upon the principal surgeon for assault. King declined to grant it, alleging that the matter might be tried in the ordinary court as an offence against statute. The complainant brought his case into a Criminal Court composed of officers of the New South Wales Corps. The prosecutor's witness proved that the prosecutor was the aggressor. The defendant proved that he acted in self-defence. The court acquitted the defendant, and without any reason assigned sentenced him to find security to keep the peace for three years, or be committed to gaol.
"So extraordinary a sentence being attached to a committal, where the accused ought to have been the prosecutor, would have been sufficient grounds for me to have extended the powers delegated to me by exonerating Mr. Jamison, which I did not choose to do." . . . "But it has operated with me as a very sufficient reason for thus respectfully suggesting the necessity of a professional man being placed here as Judge-Advocate,
- ↑ Singularly enough the Act 4 Geo. IV. cap. 96 providing that, on the application of plaintiff and defendant, cases should be tried by jury, was passed twenty years after this written anticipation.—Proviso to §6.
