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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. the Magistrates of Sydney [1824] NSWKR 3; [1824] NSWSupC 20

terra nullius - adoption of English law - Crown prerogative - criminal procedure - trial by jury - felony attaint - supervision of inferior courts - mandamus

Supreme Court of New South Wales
Forbes C.J., 14 October 1824
Source of judgment: Australian, 21 October 1824 [1]

Other Sources: Australian, 14 and 21 October, 11 November 1824; Sydney Gazette, 14 and 21 October 1824 [2]

On the motion of the Attorney General, [3] as we stated last week, a rule nisi had been on the 2d inst. granted, calling upon the Magistrates of Sydney to shew cause why a writ of mandamus should not issue directing them to summon juries, as in England, at the ensuing General Sessions, to be holden in November. The case came on to be argued this day. The Solicitor General [4] was retained by the Magistrates. The Attorney General first addressed the Court. He said he had made this motion merely from the delay which had occurred in the assembling of the Sessions; and not with any view to impute blame to the Magistracy. The delay probably had arisen from the novelty of the institution; but, to whatever cause it was attributable, it was injurious to the public interests, and was therefore incumbent on him, as the guardian of those interests, to see that it was no longer persevered in. The day that had been fixed by proclamation for the holding of the Sessions had gone by; and another was now at hand, and yet no conclusion had been arrived at among the Magistrates as to the course of conduct to be pursued by them. It appeared that a difference had arisen among them as to their competency to assemble juries under the late Act, that this difference still existed, and that the point was not likely to be settled among themselves. This then was of itself a sufficient ground for the course which he had adopted. The word mandamus carried with it a sounding name. Its object, however, as he had before stated, was not imputation. It would be convenient that all the Magistrates should be bound by the decision which might be pronounced on this question to day, although those of them to whom the rule was not specially directed, might undoubtedly, if they should think fit, agitate it de novo. It would have been inconvenient to give them all notice, in consequence of the urgency of the case, and it was on that account that the motion was confined to the Magistrates of Sydney, in exclusion of those who resided up the country. He was aware that there was an irregularity in his proceeding now to address the Court; but, as the learned Solicitor General, who was instructed on the part of the Magistrates to resist the rule, was not present when it was obtained, and would therefore probably be unapprized of the observations with which his motion had been prefaced, [5] he should now, out of courtesy to him, state the outline of the argument on which he should now rely for making the rule obtained by him on a former day absolute; reserving to himself, however, the right of reply to any arguments which might be employed by his learned Friend on the other side. The clause under which Courts of General or Quarter Sessions were constituted in this Colony was the 19th of the late Act, the 4th Geo. 4. cap. 96. [6] Here the learned Gentleman read the clause, and then remarked, that it consisted of two parts - one refering [sic] to free persons - the other to felons. The Sessions over the former class were invested with the same jurisdiction as is possessed by the Quarter Sessions in England; but over the latter class have an extended jurisdiction; viz. a power to try in "a summary way," by which words, as every lawyer knew, was meant that the regular form of proceeding by indictment and jury, was as to this class of offenders, to be dispensed with. It was quite clear that if the words of the clause by which this new Court is established be plain and intelligible, the obvious meaning of those words must be adhered to; and that by themselves alone they must be construed without any reference to matter dehors. This was a universal rule of law to which the most rigid adherence should be given. The safety indeed of the whole community depended on the inviolability of this rule. It was the foundation of all private rights and all personal security; and it was one of the characteristics of British law that it pervaded alike the earliest and latest authorities. When any ambiguity, however, prevailed in the words, there he admitted that the context must be resorted to in order to collect, if possible, the intention of the lawgiver. Here the learned Gentleman cited a dictum of Lord Holt, in confirmation of his position, and also a passage from Plowden, where it was laid down to be law, that "if any part of a statute be obscure, it is proper to consider the parts;" whence the learned Gentleman inferred, that if no such obscurity existed, the other parts of the Act were of course to be put out of consideration. He also cited a dictum of Lord Chief Justice Trevor to the same effect. [7] It would be easy, the learned Gentleman continued, to accumulate authorities, and he would do so hereafter if it should be necessary.

There were also abundant authorities to be found in the books with reference to another very material branch of this argument. The Act, it had been seen, merely created a Court of General or Quarter Sessions. The King, by virtue of his prerogative alone, might have created such a Court, but then it must have been clothed exclusively with the legal incidents possessed by such Courts in England, and must have wanted one of the powers which the Act has conferred on it - that branch of summary jurisdiction to which he had already alluded. The learned Gentleman here referred to a passage from Dalton, which is to be found in the 5th volume of the last edition of Burn's Justice, page 207: also to a passage of similar import on the 19th vol. of Viner's Abridgment, page 558, where it is laid down that "whenever an Act of Parliament makes an offence, and is silent as to the manner of trying it, it shall be intended to be a trial per pais, according to Magna Charter." [8] The learned Gentleman afterwards cited another passage from Salkeld, [9] in which an analogous doctrine was to be found, and then said that it did appear to him, from these authorities, that when a Court was created as in the present case, by Act of Parliament, and no mode of trial pointed out, the trial by jury must prevail. There was no other legal mode of trying facts. The only difficulty here would be, whether the Session could proceed at all. That they could, he felt persuaded, on this well known maxim of law, that the accessaries follow the principal, and that whenever any right is given whatever is requisite to the enjoyment of that right, forms an essential ingredient of its creation. This wonld [sic] result from an appointment by the King, and surely an appointment by Act of Parliament cannot be less beneficial. It was clear that if trial by jury were to be dispensed with, the distinction so broadly drawn in the Act, between free persons and prisoners, would be nugatory. In that case the mode of trying both classes would be alike "summary," and the landmark which the Act itself had placed between those who were subject to the penalties of the law, and those who were not would be at once effaced. The Act itself, however, had in unequivocal terms, confined the summary words of proceeding in the Sessions to prisoners. They, therefore, formed the exception which established the general rule. The learned Gentleman concluded by saying, that it was on these grounds he claimed the Writ of Mandamus which he had applied for - and that in making this application he was actuated solely by public motives, and with no view, as he had before stated, to cast imputation on the body to whom he prayed that the writ should be directed.

The Solicitor General then rose on behalf of the Magistrates, who, he said, had come before the Court for direction how to proceed at the Sessions merely on account of an opinion which he had given on the jury question, and which militated against the opinion given by the Attorney General. It was with diffidence that he had brought himself to differ on this point with his learned Friend. The grounds of that difference he was not now fully prepared to state, but he would rather, with every disadvantage which he had laboured under, proceed with the discussion; of so much importance did he consider the immediate disposal of the question before the Court to the Colony at large, than that it should remain any longer undecided. He should, in the first place, consider the Attorney General's statement, and then go on to his own. The Act of Parliament itself formed the sole ground for their consideration. The authorities that had been cited, did not, he conceived, apply. That Act had constituted Courts here varying considerably from the Courts in England, from the peculiar circumstances of the Colony, which it was not necessary particularly to state, because they were well known. Those circumstances had proved sufficiently cogent to induce the Legislature to introduce a different mode of trial here, not only with regard to criminals who were deprived of a jury, but also in civil causes. This shewed that the Legislature thought the Colony unripe for trial by jury. He would refer to the 5th clause of the late Act, which he read throughout, and then proceeded to read the 6th clause, which regulates the mode of trial in actions at law. After this he passed on the 19th clause, by which the Courts of General or Quarter Sessions are created, and which say not a word as to the trial of any questions by a jury, as it would have done if the Legislature had intended that a jury should have prevailed there, and not elsewhere. In that case a jury must have been held, however great the absurdity of giving to an inferior jurisdiction, what a superior did not possess. It was certainly true, according to a maxim of law, "expressio unius est exclusio alterius." An expression of this sort was to be found in the two first clauses of the Act, to which he had referred, where a different mode of trial was pointed out; and there being no exception in the 19th clause, there could be no intendment against the former mode of trial. The learned Gentleman then denied the position of the Attorney General, that the appointment of a Court of Sessions necessarily involved a jury and other common law incidents. This was a Court not known to the common law. Its powers were derived from Acts of Parliament. Nor could he perceive the applicability of the cases quoted from Viner's Abridgment, and which went to shew, that where no information was mentioned, indictment must be understood. As little was the position warranted, that when a Court, was created by the King or Parliament, a jury was essential. In many cases a Session of Magistrates was held even in England without a jury. With Magistrates alone, for instance, rested the decision of facts in cases of bastardy. It would, he was confident, have been much more satisfactory to the Magistrates to have put the same interpretation on the Act as the Attorney General. It would have saved him too the pain of differing with his learned Friend. It was of vital importance to the community at large, of vital importance to the Magistrates themselves, that the real meaning of the Act should be ascertained as a preliminary to their proceeding. No person could be more competent to decide on this question than his Honor, who had heard all the arguments used on the passing of the Act. [10] He apprehended that his Honor would find no difficulty in deciding on the case. He admitted the general principle of law, that Acts of Parliament were to be construed not by the expediency of the measure, but by the intention. He submitted that the Magistrates could not try differently from the Supreme Court. On the subject of expediency, great inconvenience would arise from a jury; no jury could be assembled without great inconvenience in distant parts. It would be equally inconvenient for suitors to come to Sydney. The Parliament could not have overlooked the fact of the thinness of the population of the country on the one hand, and the hardship of coming to Sydney on the other. He apologized for not having been prepared with authorities in support of his arguments; but, the urgency of the case requiring immediate decision, would, he hoped, hold him excused.

The Attorney General in reply admitted that it was highly necessary that an immediate decision should be had on this subject. As to any argument, however, to be derived from the mere question of expediency, upon which the Solicitor General had dwelt so much - that was a contracted view of the subject, which he certainly should resist. Parliament, it was true, had chosen one course in one court, not definitively, however, but obviously with a view to change, as the limited duration of the act, and also many provisions in it sufficiently demonstrate. Government, too, might have intended this court as an experiment; and, it was extremely probable, indeed, that they might have meant it as a preliminary essay; on which, to base the introduction of trial by jury, generally. That a jury was soon anticipated here, was obvious, from the Act itself; and, if they were meant as an experiment, the argument which had been derived, from the inconvenience of the thing, was at least balanced. The Attorney Geueral [sic] had argued, that because a jury was taken away in Sydney, where the population was comparatively so much denser than in any other part of the colony, that it could not prevail elsewhere. It did not follow, necessarily, that Courts of Session should be held at the out-stations. It was left to the Governor to assemble the Sessions where he pleased. Country Sessions might be dispensed with; at least, there was an option with the Governor - which he would doubtless exercise discreetly. If this clause implied, that a jury was not necessary, it would follow that free men could not be tried at all; for they could not be deprived of trial by jury, by mere implication. And the known rule, that all parts of an act of parliament must be carried into effect, if possible, would be prevented; if no meaning were attached to the first part of the clause. The argument on the other parts of the Act, which provided for another mode of trial, had been pushed much too far - in making them by implication stretch into application, here. The Sessions, though not strictly courts of common law, were nevertheless held according to the course of the common law; and in those cases, to which the Solicitor General had inferred, where the decision of facts was left to the Magistrates, - that power was given them by express provision, which proved that they would not otherwise have possessed it. Courts of Quarter Sessions, it was true, had not been held time out of mind; but it did not thence follow, that they were not to be [hel?]d with common law incidents; and although those courts did frequently decide, in a summary way, that is without a jury, yet that summary authority was always specially vested in them by act of parliament; and it was because no such special authority was vested in them here, that he had arrived at the conclusion, that they would not act here without the intervention of a jury.

The Chief Justice then proceeded to pronounce his decision. [11] The question for the consideration of the Court, he said, was raised upon the section of the present Judicature Act, which directs, "That Courts of General or Quarter Sessions shall be holden in New South Wales, at such times and places as the Governor shall appoint; and such Courts shall have power and authority to take cognizance of all matters and things cognizable in Courts of General or Quarter Sessions in England, so far as the circumstances and condition of the Colony shall require and admit." [12] The statute then went on to clothe the Courts of Sessions so instituted, with a summary jurisdiction over the persons and conduct of felons, under a state of conviction, and specified the punishment to which that class of the community should be liable. It appeared that His Excellency the Governor, in pursuance of the power given to him by the Act, issued his Proclamation some months since, appointing certain times and places for holding Courts of Sessions, within the several settled districts of the colony. The Magistrates of Sydney assembled at the time appointed, but did not proceed to impanel Juries or try offenders, in consequence, it was stated, of some doubts entertained, how far they were empowered by the Act, to summon and impanel Juries. They submitted their doubts to the Governor, [13] who caused the matter to be referred to the Law Officers of the Colony; and differences of opinion being entertained by them, upon the policy of the law in respect of the mode of trial in the Sessions, it was thought expedient to raise the question in some tangible form for the decision of the Supreme Court. With this view the Attorney General applied for a rule for a mandamus, to which the Magistrates had appeared that day, and instructed the Solicitor General, as their counsel, to state the grounds upon which their doubts had arisen. In prononncing [sic] my opinion, continued his Honor, I shall first review the law as it stood before the passing of the Act; and then examine the clauses of the Act, and see how far they have altered the pre-existing law. [14] Upon the first point, I must assume, that New South Wales must be considered as a colony, strictly English, and falling within the description of that class of colonies, in which all the laws of England are in force, so far as such laws may be applicable to its condition. The statute 27 Geo. III. ch. 2. sec. 1 the first New South Wales Judicature Act, clearly warrants this assumption, when it recites the necessity of "a colony and civil government" in New South Wales. Besides this statutable recognition of its English character, the nature of the original settlement of the colony brings it within that class to which I have assigned it; namely, a colony in which the English law prevails, as the birthright of the subject, and the bond of allegiance between the colonists and their sovereign. The Chief Justice then mentioned the authorities from the books (Show. P.C. 31. 32. 2 P. Wms. 75. Salk. 411. 1. Bl. Com. 107.) to shew, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being are immediately there in force; and observed that the authority in Peere Williams was of the most conclusive kind, as it was a resolution of the highest tribunal to which such a question could be submitted, viz. the King in Council, which was to the Colonial Courts, what the House of Lords was to other Courts in England - the Court of Appeal in the last resort. From these authorities, he said, it was clear that the prerogatives of the Crown extended to the colonies, in common as part of the laws of the realm; and that in exercise of the prerogative, His Majesty might institute Courts of Justice in the colonies, with powers corresponding to similar Courts in the mother country; in corroboration of which, his Honor read an opinion (from 2 Chalm. 154. 1 Cowp. 212.) of Sir Philip Yorke and Sir Clement Wearg (Attorney and Solicitor General) purporting that the Crown by commission, might authorize the Governor of the Leeward Islands, to institute a Court of Oyer and Terminer to proceed in a similar manner to Courts of Oyer and Terminer in England, provided there were a sufficient number of inhabitants qualified to serve upon a Grand and Petit Jury; and also an opinion of two other crown officers, Strange and Ryder, (Id. 175) that the Governor of South Carolina, might erect a Court of Exchequer in that colony, with powers analogous to the Court of Exchequer in England. This power of the Crown was indeed too clear to be doubted; but, as Courts of Sessions stood entirely upon a statutable foundation, and were of more recent origin, he proceeded to shew how far the statutes enabling His Majesty to create such Courts, were applicable to the colonies. The Chief Justice recited Reeve's History of Newfoundland (page 101 & seq. and 2 Chalm. 234-5) to prove, that the Governor of Newfoundland, in virtue of his authority, derived from the mere prerogative of the Crown, had appointed Justices of the Peace in that colony, and that it was the opinion of that first-rate lawyer Lord Hardwicke, as well as of Mr. Fane, the law adviser to the Board of Trade, that Justice so appointed had power to hold Courts of Sessions, and were also invested with authority to do all such acts as Justices of the Peace in England had, so far as the circumstances and condition of the colony might require. It was held by the other lawyers, that this prerogative of the Crown, so delegated to the Governor, could not be taken away, except by the express negative terms of an Act of Parliament, (Id. 239.) From these authorities, the Chief Justice said, "I deduce my opinion, that His Majesty, in virtue of his prerogative, as the fountain of justice, might at any time authorize the Governor of New South Wales to appoint Justices of the Peace, and proper officers for the administration of justice, and that the Governor in exercise of such power might nominate Justices, and have required them to meet in Sessions, convene juries, and proceed according to the law and practice in England. So stood the law, and so would it have been applied had the case before the Court arisen before the passing of the present Judicature Act." He then proceeded to enquire whether the law had been since altered - and how far such alterations might affect the question before the Court. "The Governor of New South Wales is authorised by his commission to appoint Justices of the Peace, and other necessary Officers, for the better administration of justice, and putting the law in execution. Had His Excellency thought fit to require the Justices to meet in Sessions, they must have proceeded strictly in conformity with the practice of English Courts of Sessions. The cases cited by the Attorney General establish his position. The 19th section of the Act under consideration, enabled the Governor to convene Courts of Sessions at such times aud [sic] places as he might deem expedient; and it also enabled him, with the assistance of the Chief Justice, to regulate the forms of practice and proceeding of such Courts - thus placing the creation and operation of the Courts of Sessions within the discretion of His Excellency - a discretion to be exercised upon a sound view of what might best consist with the interests of the community committed to his government. The expediency or inexpediency of putting such Courts into action, is one of pure policy, to be regulated by the judgment and discretion of the Governor. But, when called into action, they must proceed conformably to the practice of the Sessions in England. After enabling the Governor to appoint the times and places of holding Courts, the section of the Act alluded to, went on to affirm that which was clearly the law before; namely, the power of the Court of Sessions to take cognizance of all matters, cognizable in similar Courts in the mother country, so far as the circumstances of the Colony should require. That such was the law before, the whole current of authorities which I have cited, said the C.J. fully establishes, and they receive confirmation from the manner in which this clause is framed. The first part of the clause is in the most general terms - it gives no new power, it imposes no new restraint - while the latter part of the same clause, which invests the Court with a new jurisdiction, and requires it to proceed in a manner different from the course of proceeding in England, observes the greatest exactness in describing the persons, offences, and complaints, over which the Court is to exercise this new jurisdiction, as well as in pointing out the precise measure of punishment to be inflicted. Had the Act of Parliament contained no other clause referring to the subject under consideration, I think it may be confidently assumed, that the question, relative to the Trial by Jury in the Sessions, could not have been raised - we must therefore look to other clauses of the Act, and the supposed policy of Legislature, as evidence by those clauses, for true sources from which the doubts and differences of opinion have been drawn. The first sections of the Act authorized His Majesty to create a Supreme Court of Judicature, uniting within itself the various jurisdictions and powers of the principal Courts, of Common Law, Equity, and Ecclesiastical, in England. The manner of trial however was essentially different from trials in England. In criminal cases the trial was by the Judge and seven Officers of the Army or Navy; and in civil cases by the Judge and two Assessors, unless the parties, plaintiff and defendant, may have concurred in an application for Trial by Jury. From these clauses it had been argued, that as the Supreme Court was restrained from proceeding by a jury, it could not be the intention of the Legislature to entrust the exercise of that very delicate and questionable mode of trial to the Court of Sessions. And I do agree, said the Chief Justice, in the line of argument, adopted by the Solicitor General, that it was clearly the intention of the Legislature to restrain the Trial by Jury in the Supreme Court, until such time as His Majesty in Council should deem it expedient to introduce it. But I am not convinced of the inference, which he has deduced from this part of the Act, and the analogy, which he has ingeniously drawn between the two Courts, does not in my opinion hold good. There is an essential difference between them. The one is the Supreme Court of the Colony, and altogether uncontrolled in its criminal jurisdiction. Any defect in the constitution of the Court, or any inconvenience in the exercise of its functions, could only be remedied by the long and tedious process of a new Act of Parliament. But the Sessions Court is subject to a double controul within the Colony. In the first place it rested entirely with the Governor to call it into existence. - In the next place, supposing that it should be found impracticable to proceed by jury, the Supreme Court is still open. It is in the power of the Crown either not to initiate proceedings in the Court of Sessions, or to discontinue them, if the manner of trial should be found insufficient for the ends of justice; and it is also within the power of the party, to remove the proceedings into the Supreme Court, upon every occasion, where fair and reasonable grounds can be laid for such removal. [15] Besides, all the higher class of crimes, and every offence in which any improper feeling might be apprehended, must of course be tried in the Supreme Court. Misdemeanors of an inferior kind, and cases in which it is difficult to imagine the possibility of any bias adverse to the attainment of public justice, will be only tried in the Sessions. It has been truly said, [16] that if the Sessions cannot proceed by juries, they cannot take cognizance of any cases, in which the free members of the Colony are parties. It would not merely be against the express language of Magna Charta to try free British subjects without the common right of a Jury, but against the whole Law and Constitution of England. Will it be said, that it would be politic or expedient, that Courts of Sessions in New Sonth [sic] Wales should not have power to take cognizance of breaches of the peace, the primary object for which they were constituted? And yet it is clear, that they cannot exercise jurisdiction in such cases without the intervention of a Jury. But I desire to be understood as not determining this question upon considerations of policy - my opinion is, that the policy or impolicy of creating Courts of Sessions, with all the consequences attending upon their creation, was reposed, where alone it could properly be reposed, in the discretion of the Governor. His Excellency has doubtless exercised this discretion, upon a full view of the whole policy of the measure. Since Courts of Sessions have been instituted by His Excellency, all the authorities incident to such Courts in England, necessarily devolve upon them here, and can only be restrained or limited in their exercise, by the express language of Parliament. I cannot discover any words in the Act, which restrain the Sessions from trying by Jury. By the constitution and office of Courts of Sessions, Juries are essential and indispensable to the exercise of their primary and most ordinary duties. This being my opinion, I must rule, that a mandamus do issue, requiring the justices of peace in the district of Sydney, to issue their precept, and to proceed in like manner, as Courts of Sessions proceed in England."

Rule made absolute. [17]




[1] The Gazette's report of the arguments and judgments was published on 21 October 1824. As usual, the report of the Australian is reproduced here because that newspaper was edited by the barristers, Dr Wardell and W.C. Wentworth. Castles describes this as the "most authentic version of the decision" for the same reason: A.C. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, 186, n. 20. However, in this case, there was very little difference between the reports; the differences are noted here in the footnotes. The Gazette reproduced more of the judgment in direct quotation marks, making clear that much of both reports is almost verbatim. Forbes sent a copy of a Sydney paper to Wilmot Horton with his letter of 7 November 1824, saying that it "contains a pretty correct summary of the points raised, and of my decision upon them" (letter: Catton Papers, Australian Joint Copying Project, Reel M791). Since there were only two newspapers in the colony at this time, and their two reports of the case are so similar, it does not matter that he did not say which newspaper he sent.

The judgment is analysed by Castles at pp 185-188, describing it as "the first major constitutional case in Australian history" (pp 185-186), partly because it established the supervisory role of the Supreme Court. In Van Diemen's Land, Pedder C.J. reached the opposite conclusion to that of Forbes C.J. in R. v. Magistrates of Hobart Town, 1825. Castles contrasts the decisions of Forbes C.J. and Pedder C.J. in A.C. Castles, "The Judiciary and Political Questions: the First Australian Experience" (1973-76) 5 Adelaide Law Review 294. See also C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, 113-116; J.M. Bennett, A History of the Supreme Court of New South Wales, Law Book Co., Sydney, 1974, 81-82.

On the background to 9 Geo. IV c. 83 (and 4 Geo. IV c. 96), see B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, chap. 4. On the constitution of the Court of Quarter Sessions, see also R. v. Dargan and Wildred, 1824. See also the Proclamations by Governor Brisbane, 21 July 1824, Sydney Gazette, 29 July, and 4 November 1824.

[2] The Australian, 21 October 1824 was delighted by this decision to introduce trial by civilian juries in criminal cases. Its editorial referred to the jury issue as "a question in the way of which an insidious opposition has been so long thrown by a party here, who, whatever may be their assertions in public, it is well known are, and ever have been, privately averse from the concession to the great body of the Colonists of any popular privilege whatever." The editorial went on to attack Commissioner Bigge, who had opposed jury trial for the colony. It said that the exclusives' real ground of opposition to this reform "was a desire to perpetuate those distinctions which sprung out of the original elements of the Colony, and of which every principle of public expediency now demands, that all traces should be obliterated". ("Exclusive" is a term commonly used to refer to those who had no personal, social or political connection with convicts or transportation.) This case, then, was celebrated by the emancipist party, those descended from convicts, or who favoured their restoration to full political and civil rights. The Sydney Gazette, 14 and 21 October 1824, also favoured jury trial. Barron Field, a former judge in New South Wales, said that he thought that Forbes' judgment in this case was wrong in law. It is no coincidence that he also thought that the colony was not yet ready for trial by jury: Field to Marsden, 18 May 1825, Marsden Papers, vol. 1, Mitchell Library A1992, pp 440-442.

The long struggle for trial by jury is examined by David Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, Cambridge University Press, Cambridge, 1991, chap. 7; D. Neal, "The Campaign for Trial by Jury in New South Wales, 1788-1840" (1987) 8 Journal of Legal History 107; and J.M. Bennett, "The Establishment of Jury Trial in New South Wales" (1959-61) 3 Sydney Law Review 463. A copy of the 1819 petition for jury trial is in Mitchell Library: A745. One of the best general accounts of the conflict between the exclusives and emancipists is J.B. Hirst, Convict Society and its Enemies: a History of Early New South Wales, Allen and Unwin, Sydney, 1983.

[3] Saxe Bannister.

[4] John Stephen, later a Justice of the Supreme Court.

[5] Attorney General Bannister's initial argument on the application for the rule nisi was reported in the Australian, 14 October 1824, p. 3, col. 4. He said that the case concerned a difference of opinion among the magistrates about the construction of s. 19 of 4 Geo. IV c. 96 (the New South Wales Act). The section required the holding of Courts of General or Quarter Sessions in the colony. (These were inferior criminal courts, constituted by two or more justices of the peace. In New South Wales, it was the middle tier of the colony's criminal courts, between the magistrates sitting alone, and the Supreme Court.) The question in issue was whether s. 19 required the magistrates to sit with a jury in this middle level court. Under s. 2 of the Act, said the Attorney General, the Supreme Court had power to issue a mandamus wherever the Court of King's Bench in England could do so. His argument was based on "the passage in the 3d vol. of Blackstone, p. 110, which states that the King's Bench `issues the Writ of Mandamus to the Judges of any inferior Court, commanding them to do justice according to the power of their office, whenever the same is delayed.'"

[6] 4 Geo. IV c. 96, s. 19: " And be it further enacted, That Courts of General or Quarter Sessions shall be holden in New South Wales and Van Diemen's Land, and their Dependencies, at such Times and Places as the Governor or Acting Governor of New South Wales shall by his Proclamation appoint; and the said Courts of Sessions respectively shall have Power and Authority to take cognizance of all Matters and Things cognizable in Courts of General or Quarter Sessions in England, so far as the Circumstances and Condition of the said Colony shall require and admit; and the said Courts shall have Power and Authority in a summary Way to take cognizance of all Crimes and Misdemeanors not punishable with Death, which have been or shall be committed by any Felons or other Offenders who have been or shall be transported to New South Wales or its Dependencies, and whose Sentences shall not have expired or been remitted, and also of all Crimes and Misdemeanors committed by any such Felons or Offenders on board of any Ship or Vessel during the Voyage to New South Wales or the Dependencies thereof, and the same to punish, if such Courts shall see fit, by extending the Time for which such Persons may have been originally transported, or by Transportation to such other Part of New South Wales, or the Dependencies thereof, as shall or may be appointed for the Reception of Offenders as hereafter mentioned, and as the Case may require, and by hard Labour for any Time not exceeding Three Years; and also in a like summary Way to take cognizance of all Complaints made against any such Felons or Offenders for Drunkenness, Disobedience of Orders, Neglect of Work, Absconding or Desertion, abusive Language to their, his or her Employers or Overseers, Insubordination or other turbulent and disorderly Conduct, and all such Offences to punish by whipping or other corporal Punishment not extending to Privation of Life or Member, or by Removal to some other Part or Place in the said Colony or its Dependencies, and hard Labour, according to the Nature and Degree of such Offences respectively: Provided, that a Return of all Sentences imposed by the said Court be made to such Governor or Acting Governor aforesaid, and shall be by him within Six Months transmitted to One of His Majesty's Principal Secretaries of State in England."

[7] These references were given in the Sydney Gazette's report of the argument (21 October 1824, p. 2, col. 3): Hobart 93-97; Plowden 57; 11 Mod. 150, in Bacon's Abridgment.

[8] The Sydney Gazette (21 October 1824, p. 2, col. 3) gave a further citation here: Queen v. Bethel, 6 Mod. 17, Holt c. 1.

[9] Page 606, according to the Sydney Gazette, 21 October 1824, p. 2, col. 3.

[10] In fact, Forbes played a large role in drafting the whole Act: see Forbes to Wilmot Horton, 26 December 1824, 5 May 1823, 26 May 1824, Catton Papers, Australian Joint Copying Project, Reel M791. In the letter of 26 May 1823, Forbes declared that he recognised that the laws of England were substantially those of the colony, although local variations were necessary at times: "I believe you are of opinion that a similarity of institutions is the best and most lasting tie between the mother country and her colonies - they are what Burke somewhere calls the chief [?] securities of nations, light as silk, but strong as links of iron. In conformity with this view it seemed right in framing a system of judicature for an infant quarter of the world, that the basis should be strong enough to bear the after-structure." He went on, in this ambiguous way, to explain the similarities and differences between the New South Wales Supreme Court and the courts of England. As the colony developed, its courts would come to resemble those of England more closely. See also C.H. Currey, Sir Francis Forbes: the First Chief Justice of New South Wales, Angus and Robertson, Sydney, 1968, chaps 3-5.

[11] Forbes C.J. thought that the first criminal session in the Supreme Court had been a success despite the military jury there, but that the civil hearings were less successful because the two assessors pre-judged many of the cases: Forbes to Wilmot Horton, 10 July 1824, 14 August 1824, Catton Papers, Australian Joint Copying Project, Reel M791. In the second of these letters he said, "I do not hear a whisper in favor of a civil jury". This did not alter his view on the use of juries in the lower criminal court.

Forbes C.J. was keen to impose his authority over the inferior courts in this case, as he had been when Chief Justice of Newfoundland: see Clift v. Holdsworth (1819) 1 Newfoundland L.R. 167. On the supervisory and appellate jurisdiction of the Supreme Court, see J.M. Bennett, A History of the Supreme Court of New South Wales, Law Book Co., Sydney, 1974, 170-171, 178-182.

[12] This is a more a paraphrase than an exact quotation: for the full section, see note 6 above.

[13] Governor Brisbane. The action of the magistrates was explained by J.T. Campbell, one of the magistrates, in a letter to the Australian, 11 November 1824, p. 3, col. 3. He said they did not decide to act without juries, but merely to make no specific decision, given the conflicting opinions of the Attorney General and the Solicitor General. At the end of his letter, Campbell raised the next issue: whether former convicts were eligible to sit on juries. The Australian's reply to this letter is on 11 November 1824, p. 2, col. 3. The correspondence between the magistrates and the Governor, as well as the legal advice of Attorney General Bannister, still exists and is kept in Mitchell Library: Forbes Papers, ML A741, and A1381, pp 62-64.

[14] This legal historical approach is a characteristic technique of Forbes C.J., which he also used when he was Chief Justice in Newfoundland: see for example, Young v. Blaikie (1822) 1 Newfoundland L.R. 277.

[15] The Sydney Gazette, 21 October 1824, p. 2, col. 5 quotes Forbes C.J. as saying here: "can be laid for a Certiorari".

[16] This was said by the Attorney General, according to the report of the judgment by the Sydney Gazette, 21 October 1824, p. 2, col. 5.

[17] Following this judgment, the magistrates drew up jury lists and "inserted in them those names only, with regard to whom no question could be supposed to arise on the principle of exclusion of certain classes, which has so much embarrassed the subject of Juries in New South Wales": Sydney Gazette, 21 October 1824, p. 3, col. 1. That is, they excluded former convicts from the lists of jurors. A writ of mandamus was then issued against the sheriff in order to force him to include emancipated convicts in the petit jury lists: see R. v. Sheriff of New South Wales, January 1825; and see R. v. Cooper, 1825. On the reaction to this decision by the magistrates, see D. Neal, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales, Cambridge University Press, Cambridge, 1991,182.

Forbes C.J. commented on this case in a letter to Wilmot Horton, dated 7 November 1824 (Catton Papers, Australian Joint Copying Project, Reel M791). He said he "had always been of opinion that the clause admitted an experiment upon the trial by jury." Even in 1823, he thought that the experiment was appropriate, but "I was fully aware that the only substantial difficulty in the way, was the prejudice of a few leading persons in the free population -I mean who came free to the colony." Here he refers to the exclusives, among whom was John Macarthur who came to dislike Forbes' liberalism. Before making the decision in this case, he did not reveal that this was his opinion, although he discussed it with James Stephen before coming to New South Wales. He claimed that the judgment "had the effect of satisfying all parties here" apart from the sheriff, which was rather optimistic. For one thing, he admitted that the sheriff objected on the grounds of policy. Forbes claimed that his decision was a simple question of law, not policy. The juries were a complete success in operation, he claimed, before going on to eulogise the jury system for its freedom from corruption. Five months after making the decision in R. v. Magistrates of Sydney, Forbes declared that the "`jury question' is gone by, as I anticipated - the experiment has succeeded, so far as it has been tried here - and I have recommended that for the present, it should not be interrupted, but suffered to remain in statu quo, until the pleasure of Government may be known." (Forbes to Wilmot Horton, Mitchell Library, CY Reel 760, p. 1.) A.C. Castles (An Australian Legal History, Law Book Co., Sydney, 1982, 186) notes that the effect of the decision in this case was negated by (1828) 9 Geo. IV c. 83 (the Australian Courts Act), which laid down that future regulation of trial by jury was to be in the control of the local legislature, and that in the meantime, the system of military juries was to continue in criminal cases.

There were suggestions in a letter from John Dunmore Lang to Lady Forbes, the widow of Francis Forbes, in 1875, that Forbes campaigned secretly both for trial by jury and freedom of the press: Lang to Lady Forbes, 29 July 1824, Mitchell Library, A1381, p 198. His opponents may have been right to suspect as such.

Published by the Division of Law, Macquarie University