Page:History of Australia, Rusden 1897.djvu/549

---

The Solieitor-General, after hinting that the rule was merely sought to get the opinion of the ** Court upon I a most important clause of the Judicature Act," argued on behalf of the magistrates that there was an essential dif- ference between the Courts of the colony founded by special enacitnent, and those existing on the ancient foundations in England. The law expressly directed (for the Supreme Court) trial by a judge and seven officers of the army and 3iaTy, while it gave the King j^ower to introduce trial by jury at a couTenient season. As trial by ordinary jury was not entrusted to the Supreme Court, how could it be con- I tended that Parliament desii*ed to entrust the Courts of Sessions with power to establish such trial ? In sessions, and out of sessions, magistrates exercised divers powers by law, sufficient both for administration and for proof that the formation of juries was not essential. The Attorney- General replied for the Crown, that unless the Court of Sessions could convene juries, fi'ee persons could not bej tried at all ; and that the English practice must be resortedl to unless expressly restrained. Who was to determine the meaning of the qualification in the 19th section of the Act, that it was the Governor's function to appoint Courts of General and Quarter Sessions, with '* power and authorit_ to take cognizance of all matters ... so far as the circum- stances and condition of the said colony shall retpiire and admit ?*' The Court must do so. It meant no more than that they could not deal with laws inapplicable to the colony, excise, poor laws, Slc, The Chief Justice, whose friend Sh' J, Mackintosh had failed to mould the Act in the House of Commons, was, in his own coui^t, master of the situation. The application for the rule was *'a convenient way of raising the question/' He quoted text-books on Com'ts generally, and on Prerogative. At any rate there were ** no expresa negative words restraining trial by jury/* The argument of policy was **at best weak against law/' '* The policy in this case is not only doubtful, but in my opinion the weight is in favour of trial by jmy/' He granted the mandamus. If Sh' J. Macldntosh could have foreseen the facility with J which a defeated draftsman could, as Chief Justice, engraft new principles upon an Act, he might have spai*ed himself some labour in Parliament.