Page:History of New South Wales from the records, Volume 1.djvu/509

CHIEF JUSTICE FORBES. 3»5 was given by the Chief Justice in favour of the common 1788-1838 law. His ruling held good until the second Constitution Act came out in 1828. It was then found that the military ^^^j^ juries were to be continued as before, in Quarter Sessions as well as in the Supreme Court ; and thus Forbes found his well meant effort to introduce trial by jury quietly extinguished. No stronger condemnation of the military system could be imagined than that implied in the course he had adopted. It amounted to a public declaration that although he could not grant prisoners on trial in the Supreme Court a jury Fiatjustitia. of twelve good men and true, he would avail himself of a loophole in the Constitution Act for the purpose of secur- ing it at the Quarter Sessions. That Act, by the way, had been drafted by him, under instructions from the Home Government, before he came out to the colony, and he may consequently be supposed to have understood its intention. For five years, from the time he issued the writ of man- damus to the day when the second Constitution Act became law in the colony, a jury of twelve, empanelled according Juries of to the practice of the English Courts, heard and deter- the seaeiong. mined every case brought before the magistrates at Quarter Sessions. The contrast between the trials in that Court and those in the Supreme Court, where the Chief Justice sat with a military jury, furnished a spectacle, which had never been witnessed before in the British dominions. It is necessary to glance at the course of events in this HiBtoiyin , , prospective. direction up to the period when trial by jury was thus let in at the back door, in order to appreciate the character of the system which the adventurous Chief Justice endeavoured to break down. The language used by Wentworth with respect to it was very emphatic ; but it was language which would naturally rise to the lips of an Englishman when confronted with a method of administering justice which seemed to violate every principle of English law. To secure a just and impartial verdict on a criminal trial, where the power of the Crown is arrayed against the prisoner at the Digitized by Google