390 TRIAL BY JURY. 1788-1828 been forfeited on a conviction and sentence to transport- ation, it would have revived on the expiration of the sentence; yet not only was every convict deprived of it for life^ but every free settler was involved in the forfeiture. The vicious system thus established was maintained long after Trial by the colouv numbered such settlers by thousands, and the ceded. right of trial by jury — the birthright of every Englishman — ^was not conceded until 1828.* Even when a ^' Constitution " was granted to the colony in 1823,t and a Legislative Council composed of five persons, appointed by the Crown, was created for the purpose of tempering the arbitrary authority of the Governor, it was still considered necessary to withhold the right, except in civil cases, of trial by jury. By a Charter of Justice issued The in that year, a Supreme Court of New South Wales was Supreme */ ^ j: Court. created, in place of the several Courts previously existing — known as the Criminal Court, the Governor's Court, the Supreme Court, the Court of Vice- Admiralty, and the High Court of Appeals. The Act required that all issues of fact on the criminal side of the Supreme Court should be Military tried *' by a jury of seven commissioned officers of his Majesty's sea and land forces," nominated by the Governor. The only concession made was the right of challenge on the ground of interest or affection. On the civil side, issues of fact were to be tried by the Chief Justice and two assessors. Justices of the Peace, who were to be nomi- nated by the Governor, and who might be challenged on any ground allowed in the Courts at Westminster. By consent of parties, such cases might be tried before a jury of twelve freeholders. But prosecutions were no longer to
- By the second "Constitution *' Act — 9 George IV, c. 83 — which enlarged
the Legislative Conncil of the colony from five to fifteen members, and empowered it to " extend and apply the form and manner of proceeding by grand and petit juries/' as it might think fit. Under that authority, the right of tnal by jury in civil cases was granted, in an optional form, by the local Act 10 George IV, No. 8 (1829), and in criminal cases, in the same manner, b^ the Act 4 William IV, No. 12 (1833). Trial by jury was made absolute m all cases by the Act 11 Victoria^ No. 20 (1847)> which consolidated the local jury laws. + 4 George IV, c. 96 (1823). Digitized by Google
