Page:History of Australia, Rusden 1897.djvu/626

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NEW CONSTITUTION, 1828. JURIES. his personal effects on board the ship which was to carry him from the colony, spoke (20th Oct.) for nearly six hours in a case in which he prosecuted Howe, the editor of the Sydney Gazette^ for libel; fought a duel with Dr. Warden on the 21st, and departed on the 22nd from a wondering society. The New Constitution Act of 1828 removed the short- lived institution which in 1825 constrained the Chief Justice to resort to an ex post facto law. No grand jury was continued or established by the Act 9 Geo. IV. cap. 83. The fifth section enacted that "until further provision be made as hereinafter directed for proceeding by juries, all crimes, misdemeanours, and offences cognizable in the said Courts respectively, shall be prosecuted by information in the name of His Majesty's Attorney-General." Thenceforward grand juries were withdrawn from the land until their reappearance in the youthful South Australia in 1837.^^ The administra- tion of justice became a department of State. The safeguard which Englishmen had fondly cherished as their heritage from the days of Alfred, — which Blackstone believed to be obtaining his appointment by undue favour, fought his duel with WardeU. It is just to state that in a letter to Darling, written at sea, Bannister regretted that he had not had ** courage to refuse" Wardell's challenge* James Macarthur (son of John Macarthur), writing to his brother in England at this period, said: — *' Bannister's speech (at Howe's trial) seemed to petrify his enemies, the chief of whom, I need not tell you, ia Mr. Forbes. He gave a luminous outline of his public conduct from the first moment of his application for the office until the day of his retire- ment, in which he clearly showed the punctilious correctness of all his actions, and contrasted them most ably with the conduct of Forbes. On the Torture Indemnity Bill he was most happy both in clearing himself from imputation and in turning the tide of public indignation upon the Chief Justice. There seemed to be but one feeling on this subject in the minds of the audience." (The speech was made two days after the appear- ance of the already-quoted article in the Australian, which admitted that the ex post facto law to indemnify tortures was the '* most desperate of all desperate powers of legislation. ") '" South Australia afterwards (1852) abolished them by special enact- ment. The convenience of administering the law by means of a depart* mental officer outweighs with an executive government the wider but less visible advantage of interesting the people in every branch of its administration. At a later date the late Mr. Justice Fellows caused per'* missive provision to be made in a Crimes Act in Victoria, by whicn a grand jury can be resorted to, but it has been so little used that even the mode of recourse to it has been made a subject of contention. The roots oi ancient justice failed to infuse their virtues into the branches of AdminiBtration.