Page:History of Australia, Rusden 1897.djvu/548

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of Quarter Sessious to be held, but was silent as to in panellmg juries thereat. As Sir J, Mackintosh had been defeated in an attempt in Parliament to substitute common for military juries in the Supreme Court it was plain that in the inferior Courts the Parliament had not desired to substitute them* But as the 19th clause provided no specific machinery, Forbes resolved to torture its silence into con- sent. He made known his opinion, that under these cir- cumstaneea civil juries could be impanelled for purposes of the Quarter Sessions* The magistrates recoiled from a position which would confound the emancipist class with the free in criminal trials, and vainly protested to the Governor. The dispute occupied some time, but {Oct, 1824) Forbes decided to issue a mandamus to command the magistrates to hold sessions and summon a jury- He urged that although magistrates' commissions sprang from the Crown, their duties were prescribed by common law, and the statute being silent as to Quarter Sessions practice, the principles of common law ought to be resorted to* His friends argued that he was consulted in drafting the Bill, and ought to Imow what was intended to be included in it ; but his decision was an evident straining of the letter to coerce the spirit in order to suit his own views. The 8th section of the Act, which provided that the King might further extend the system of trial by civil jury, clearly proved (even if Sir J. Mackintosh's amendment had not been rejected), the manner in which Parliament intended to legislate. The Chief Justice was not the King, and if he had any hand in framing the 8th section he did his work clumsily there, if he provided that the authority of the King was needed to do what he was himself prepared after- wards to do as CI lief Justice, The magistrates were called upon (14th Oct, 1824) ito show cause (the King r. the Magistrates of Sydney) why they should not issue their precepts, l^c, and proceed to take cognizance of crimes and misdemeanours accordmg to the law and practice of England, and trying the same by jury.^ " Through the kiiidnesa of the late H. F. Giirner, Kaq., of Victoria, whose valuable collection of colotiial publications ajud MS8. was celebrated,^ and whose liberality in iniparting their cooteotv^ was imbouuded, the author has been able to quote from the MS. notes of FoibcBj of which Mi Gurncr had A copy^ n 4