The Solicitor-General, after hinting that the rule was
merely sought to get the opinion of the "Court upon
a most important clause of the Judicature Act," argued on
behalf of the magistrates that there was an essential difference between the Courts of the colony founded by special
enactment, 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
navy, while it gave the King power to introduce trial by
jury at a convenient season. As trial by ordinary jury was
not entrusted to the Supreme Court, how could it be con-
tended that Parliament desired 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, free persons could not be
tried at all; and that the English practice must be resorted
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 authority
to take cognizance of all matters. . . so far as the circumstances and condition of the said colony shall require 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, &c. The Chief Justice, whose friend Sir
J. Mackintosh had failed to mould the Act in the House of
Commons, was, in his own court, master of the situation.
The application for the rule was "a convenient way of raising
the question." He quoted text-books on Courts generally,
and on Prerogative. At any rate there were "no express
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 jury." He granted the mandamus.
If Sir J. Mackintosh could have foreseen the facility with which a defeated draftsman could, as Chief Justice, engraft new principles upon an Act, he might have spared himself some labour in Parliament.
