Pedder C.J., 1 July 1825

Source: Hobart Town Gazette, 9 July 1825

The Solicitor General moved the Court upon the affidavit of several persons complaining of nuisances, and who stated that they had applied to the Court of Quarter Sessions for the purpose of presenting them to the consideration of a Grand Jury, for a rule calling upon the Magistrates to shew cause why a mandamus should not issue commanding them to cause Juries to be summoned, as at Sessions in England.  After some discussion, His Honor granted the rule.

Cause to be shewn on Tuesday.

Pedder C.J., 5 July 1825

This day being fixed on by His Honor Chief Justice Pedder, for the Attorney-General to shew cause why the Rule, obtained by Mr. Stephen, should not be made absolute for a Writ of Mandamus, to the Magistrates of Sessions, that they do issue their  Precept to the Sheriff, requiring him to summon a Jury, for the Trial of such offenders as may be brought before the Quarter Sessions, according to the late Act of Parliament, -- The Attorney-General took an objection to the terms in which the Rule was drawn up, on the ground that no distinction was made between the Grand and Petty Juries; in which objection we understood His Honor the Chief Justice to coincide. - Mr. Stephen stated what was the custom in England. The Sheriff issued his precept to different Bailiwicks, each to return 24 liberos el legales homines.  But he makes no distinction as to the Grand or Petty Juries.  Certain qualifications are required by Law for each of these duties. Mr. Stephen cited Dickenson on Sessions, Burn, and other athorities, to prove that his Rule was substantially correct; and in order to meet the case upon fair grounds, the Attorney-General, as we understood, waved any difficulty on this point. The Attorney-General proceeded to shew cause.  Our limits will not allow us to detail the Learned Gentleman's arguments at length; we shall endeavour to give an outline of them.  He commenced with expressing the anxiety he felt on this subject, not only on account of its own intrinsic importance, but also because the question had been argued in another Court by Gentlemen of the highest legal attainments; the result of which was at variance with the doctrine he was now about to urge.  The Learned Gentleman admitted, that every Englishman settling in a new country, under the authority of British Law, brought with him as much thereof as circumstances would admit.  But he brought no more; and the framers of the late Act of Parliament had acted upon this principle.  It is an error to believe that we ever here possessed Trial by Jury.  A reference to facts at once p[r]oves the contrary; and the Act of Parliament only now contemplates the granting of such a boon to this Colony, except inasmuch as is thereby granted, or as may be hereafter conceded by His Majesty in Council, who has particular powers conferred upon him by the Act for that purpose.  The 4th Section of the Act ordains, that all offences cognizable by the Supreme Court shall be prosecuted by Information; in the name of the Attorney General; and by the 8th Section, it is enacted, that Trial by Jury may be established when His Majesty shall see fitting, but even then not generally, but in such parts of the Colony as he may think proper.  The Learned Gentleman laid great stress upon the word ``cognizable;" he argued that no offence committed by a free person could be tried by the Quarter Sessions, which was not cognizable by the Supreme Court; for example, frauds, assaults, all of which are tried by the Quarter Sessions in England, but are here all ``cognizable" by the Supreme Court.  He assumed the case of a bill for assault brought before the Grand Jury and found.  The defendant applies for a Writ of Certiorari, which is a writ of right to all His Majesty's Subjects.  The Attorney General here explained fully the nature of the operation by which this writ is obtained in England, merely by application at the Crown Office, putting in bail and pleading, and the writ issues of right, and the cause is removed to and taken advantage of constantly in England by Gentlemen in cases of assault, who wish to avoid a Quarter Sessions' trial, and particularly, as in many instances, the great expense of the Crown Office puts an end to all further proceedings.  In such a case here what would be the result?  The Supreme Court could not try the cause, because it was not before it by Information, in the name of the Attorney General.  The power of the Supreme Court is limited; it can in no such case act; it can receive no Bills from Grand Juries, nor can it try any criminal offence by any Jury, but one especially composed according to the Act of Parliament of Seven Commissioned Officers, and how could it extricate itself from such a dilemma, which, in the event of the present application succeeding, would be of constant recurrence?  The Court could not send it back to the Quarter Sessions, so that there it must end.  There could be neither conviction or acquittal.  The 4th, 6th, and 8th, Section of the Act inferentially take away the Trial by Jury, except as is reserved.

Chief Justice Pedder. - Mr. Attorney General, how do you infer that these Sections take away Trial by Jury?  They only apply to the Supreme Court.  If another Court is erected here, do you consider that they equally apply?  Suppose a Court of Common Pleas was ordered from home, would it come immediately into operation; and as His Majesty by his Prerogative can institute what tribunals of Justice he may choose, would a Court of Common Pleas so constituted be bound by the terms of the Act of Parliament, or by the Common Law?

The Attorney-General. - With great deference to your Honor, I submit that this Colony is bound strictly by the Act of Parliament.  The 4th, 6th, and 8th clauses of the Act probably do not contemplate any tribunal but the Supreme Court, and when combined, inferentially take away Trial by Jury.

The Chief Justice. - There are no express words taking it away.

The Attorney-General. - If the right of Trial by Jury had not been taken away, I submit that the 18th clause would have been quite inapplicable.  It is almost absurd to suppose that the King can grant a boon which is contemplated to be probably already in operation, and it cannot be believed that Juries would be granted in an Inferior Court, and refused to the Superior Court, where the largest property is at stake, unless by mutual agreement.  If Parliament has thought proper to impose this check upon the Supreme Court, can it be imagined that it would give Juries unlimitedly to the Inferior Court of Quarter Sessions?  This Court is besides itinerant.  Special days and places are fixed by Proclamation for its Sessions.  Juries may no doubt be found; and I admit most respectable Juries in every consideration unobjectionable both here and at Launceston.  But how in the interior? At Campbell-town, and Ross Bridge, and Pitt Water, and various other towns which nominally exist, the very assembly of Juries would take all the neighbouring inhabitants from their homes; and what would not be the robberies and other evils which would ensue.  The Act of Parliament speaks of the circumstances and condition of the Colony.  I submit that these applicants ought to shew that they are such as to admit of the Trial by Jury all over the Island?  That the onus is on them to shew that such is the case.  If the 18th section of the Act is relied on, as I understand from my Learned Friend, the Solicitor-General, to be the case, I contend that it is ambiguous, and that we must have recourse to the context for explanation; where any part of an Act is doubtful, reference is had to other parts, and to the preamble for explanation.

Chief Justice Pedder. - But can you shew any doubts, and are these latent or patent?

The Attorney-General. - I submit that these are patent ambiguities; and that there is such a patent ambiguity in the 19th clause, that it is necessary to refer to the context for explanation; there is a case, 4th Term Reports 790, somewhat in point.  The case of Mr. Crespigny, at Doctor's Commons, the King's Proctor; it was an action on the Annuity Act.  Lord Kenyon referred to the preamble for the intention of the Act; and Mr. Justice Buller said, that where doubt exists, the preamble compared with the enacting past, shews the intention of the Legislature.

The Chief Justice. - I presume there was here a palpable patent ambiguity.  I understand the criterion to ascertain what facts of the English Law are to be in force here, to be the circumstances and situation of the Colony.

The Attorney-General. - There is a case 4th Taunton 876, in which the principle is laid down, that where one clause is doubtful, another clause, on the same subject being not so, is to be taken as the intention.  So I contend here, that the 19th clause being ambiguous, the Court will refer to the whole Act for explanation.  I rely principally upon the difficulties which must exist in the case of certiorari, and this I should like to hear replied to.  My Learned Friend talks of the constitutional rights of Englishmen.  Why the formation of the Supreme Court is at variance with every principle of the British Constitution.  And the very idea of bringing into a Court, if I may venture to use the expression so very anti-constitutional, a constitutional indictment is to me a perfect paradox.

The Chief Justice. - The applicants say, that the 19th clause is quite a distinct thing; that you cannot go out of it to shew ambiguities, and if so there can be no doubt.

The Attorney-General. -  I humbly submit that the 19th clause is only a part of the Act to be taken with the whole, I refer again to the Preamble.  There is a case 13. East. relative to the Statute of Limitations, as in operation in India, in which it appears that the Colonial extent of British Laws is concurrent with the circumstances and situation of the Colonies, and that those of this Colony are not such as to call for this application is not shewn, and even then it remains with His Majesty in Council to put it into operation.

The Chief Justice. - Is your argument that the Legislature has expressed any intention on this point?  If not, can such deficiency be supplied here?

The Attorney-General. - I humbly submit that the Colonel Legislature could not supply such deficiencies; the British Legislature only could do so, except as far as His Majesty is authorized by the Act of Parliament.  I lament to say, that from indisposition, and from a want of knowing the exact grounds on which my Learned Friend rested his motion when he obtained his rule, which he did not on that occasion enter into, I have been unable to treat this important subject as I could have wished, but I trust I have adduced sufficient arguments and authorities to induce the Court to refuse the present application.

Mr. Solicitor-General. - In proceeding to support my Rule, I shall not trouble the Court with any exordium on the great importance of Trial by Jury.  It is a subject on which every Englishman feels deeply interested; yet I shall touch upon it no farther than I may consider requisite, in order to induce the Court, should any doubt or ambiguities exist upon the present question, to give the benefit of them in favour of this most important Institution.  The Attorney-General will no doubt admit, that if there is nothing in the Act of Parliament which takes away the right of Trial by Jury, that the right remains to every British Subject.  Blackstone says, nullus liber Homo capeatur, el imprisonetur nisi per legale judicium parium, vel per leges terrae.  It is true that an Englishman carries with him the Laws of England only as far as circumstances admit.  Chief Justice Stokes on the Colonies, says, 2 P. 32, and also Pere Williams 2 P. 75, ``If an uninhabited Colony be settled, all the English Laws are there in force, as are consistent with situation and circumstances."  And unless the Attorney-General shews that Juries are inconsistent with the circumstances and situation of this Colony (and I humbly contend that the onus of this is upon him) I submit that Englishmen here are entitled to this part of their Birth-right.  If one Clause of an Act of Parliament applies to a particular case, and another applies generally, I submit that the former cannot limit the latter, even if the intention of the Legislature really was to take away the right of Jury.  I submit that such is a ``casus omiesus," because the right is not expressly taken away, and therefore still exists.  So affirmative words in an Act of Parliament do not take away the Common Law.  Now the Common Law give the right of Jury to every man; and even if the 8th Section of the Act was intended to apply to the Court of Quarter Sessions, I contend, that the affirmative words therein do not take away Trial by Jury, and that the 8th clause being precedent to the 19th, the latter cannot be supposed to be controuled by the former.

The Chief Justice. - Do you mean, Mr. Stephen, that it makes any difference in what part of an Act of Parliament any particular clause is inserted, or in a deed, on what part of the parchment any particular covenant is written?

Mr. Stephen. - I apprehend that no ulterior clause can be considered as controuled by a preceding one, the ulterior one being to be construed as explanatory of the preceding.  Bacon lays down this important rule as existing in all cases, that Statutes are not intended to alt[e]r the Common Law.  I submit that if the section is only affirmative, that it does not take away the right of Trial by Jury given by the 19th Section.  Bacon says, that a Statute which gives a new remedy, should always be construed strictly.  The reasons given for this are precisely analogous to those I have urged that Courts will never extend the construction of a Statute, so as to alter the Common Law farther than they can possibly avoid.  It is a well known dictum that ``Courts ought always to struggle to secure the liberty of the subject."  All writers concur that Trial by Jury is an Institution by which the liberty of the subject is best secured; then says the Lord Chancellor, all Courts are bound to ``[st]ruggle" to secure it, and I trust this court will `struggle' so to do.  In conclusion, I submit to your Honor, that even if it were true that the 8th clause was intended to apply to the 19th, still inasmuch as it is not contended that any positive words can be found, which expressly take away Trial by Jury, that the Common Law right still exists; and I anxiously hope that this Court will lend its aid on so important an occasion, where the liberty of the subject is so vitally interested.

The Chief Justice. - Although in order to give this subject the fullest consideration, I shall defer deciding, as to this Rule; yet shall briefly now state the impressions which as at present advised are upon my mind.  That the King has the power by his prerogative of establishing Courts of Justice in all parts of his dominions is unquestionable; and therefore if no Law prohibited the right of Trial by Jury, it would clearly be by the Common Law in operation, where the King has established his courts.  But the question here arises out of the Act of Parliament; and whether we are to be guided by the 19th Section; and as nothing therein even hints at a different mode of trial, whether we are to look elsewhere for a doubt, and after raising it, to cure it.  The whole question appears to be whether the 19th Section is the whole Act.  In a Colony 20 years established, and containing 18 or 20,000 inhabitants, it must be presumed that there are enough qualified persons to establish Juries.  I admit that if the 19th clause was the whole Act, that there would be no doubt.  But I conceive that there is a latent doubt.  It is to be first considered, how the Law stood before the Act passed.  The title of the Act is ``An Act to provide for the better Administration of Justice in New South Wales and Van Diemen's Land."  And the preamble says, ``Whereas it is expedient for the more effectual Administration of Justice;" - how large these words are!  Whenever it is a question of construction of one section, it must be taken in conjunction with the rest, and I am therefore disposed to consider it as connected with the other clauses of the Act, and indeed with other Acts, because the Act speaks of the ``further" Administration of Justice.  In the cases of the English Insolvent Act, the framers looked at all the referable existing Laws.  I am then bound to consider all the clauses of the Act, all which go to form one purpose, the better Administration of Justice in these Colonies.  It is clear that from the 27th Geo. III. to the present Act, there has been no Trial by Jury here.  And in the present Act, even where it gives a Jury by consent, it does not give a common Jury; but one particularly constituted and specified.  The power also given to the King in Council to establish the right of Trial by Jury here, affords a strong presumption against that right previously existing.  I grant that the right of the subject to Trial by Jury cannot be taken away by implication.  But was such right in operation previous to the Act?  The contrary is the fact.  The right has suspended by the operation of previous Acts.  Referring to the power possessed by the King of establishing Juries, it might happen that if we were now to have Juries according to the Common Law, unrestricted and unqualified, a month hence an Order in Council might arrive, giving Juries with certain restrictions and modifications.  If on the other hand, I am limited to the 19th clause, and not to look to the rest, then perhaps my construction would be different; but if I am bound to see how all the Sections work together, and what was the intention of Parliament, I am inclined to think that the right having been suspended, and not existing at the time of passing the Act, it cannot be revived but by Order of Council; unless indeed something could be effected in the way of splitting this Rule into two parts.  In regard to the Commission of the Peace, I do not apprehend that this depends upon the Act of Parliament, nor does the establishment of Courts of Quarter Sessions, because as representing the King, the Governor in Chief had these powers.  After the passing the Act, he was the bound to establish them; but he might have done so before.  I shall however give the subject the best consideration, for which purpose I defer deciding at present.

Judgment deferred.

Pedder C.J., 12 July 1825

Tuesday, July 12.

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The Jury Question.

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His Honor the Chief Justice proceeded to delive[r] his judgment on this important question as nearly, as we can recollect, as follows:--

``This is a rule which has been obtained by the Solicitor General, calling upon Joseph Hone, Esquire, Adolarius William Henry Humphrey, Esquire, and others, their fellows, Justices of the Peace for this Island and its Dependencies, now assembled in Quarter Sessions at Hobart Town, to shew cause why a Writ of Mandamus should not be directed to them, commanding them to issue their Precept to the Sheriff to summon Jurors, and why they should not thereupon proceed in like manner as Courts of Quarter Sessions in England; and it is grounded upon the affidavit of Richard Pitt, the chief constable of this Town, in which, after stating matters fit to be carried before a Grand Jury at Sessions, and that he had attended the Court of Quarter Sessions for that purpose, he goes on to state, that he had been on that occasion informed by Mr Hone, the Chairman, that no Grand Jury then was, or had been sitting, because no two Justices had issued their Precept to the Sheriff directing him to summon jurors; and he further states, that the Chairman had also informed him, that it was not the intention of the Justices to issue such a Precept; or rather, as I understand, that it was the intention of the Justices not to issue it.

``In point of form, this is a proceeding against the Justices, for the purpose of compelling them to do that which is assumed to be their duty; in point of fact, it is, I believe, a proceeding devised by the Justices themselves, or at least with their concurrence, they having contrived the existence of the very state of facts sworn to by Pitt; not, however, for the purpose of refusing or delaying justice to those who might go to them to seek it, but because entertaining, in common with many others, serious doubts as to the manner in which they cou[l]d lawfully proceed in the execution of their office; and being most anxious to do so with the least delay, and with the greatest safety to themselves, they thought this end would be the most readily attained by the present course of proceeding, by which they hoped to have the doubts they entertained ultimately settled.  Though, therefore, a proceeding apparently against the Justices, it is, in reality for them; and it must not be imagined, [f]or a moment that the slightest degree of blame is imputable to them.  The form of this rule is so comprehensive as to include, not only the substance of the Precept for summoning Sessions, issued by Justices of the Peace in England, by which the Sheriff is commanded to sum non twenty-four good and lawful men to serve as Grand Jurymen, but also the substance of the Precept in the nature of a venire facias, issued by the Justices to the Sheriff, commanding him to summon Petty Jurymen.  And these two subjects, of Grand and Petty Juries, are so blended in the rule, that it is next to impossible to separate them; and whatever affects one of them, must necessarily affect the whole rule.  But, as the arguments, for and against the rule, have been confined to the latter of these subjects, I shall consider that first and principally.  The question then is - whether the Justices in Sessions can, or cannot, try by a common Jury.  It is said, by those who argue for the rule, that this question depends upon the construction of the 19th section of the Act of the 4th Geo. IV. c. 96, and upon that only.  That section, they say, creates the Courts of General and Quarter Sessions; and it is argued, that if the words of this section are clear and intelligible (and it is assumed that they are so), it is not competent, to those who have to put a construction on them, to go beyond the section itself.  It is said that the rule is, that if the words of any statute are clear and intelligible, the meaning of them is to be collected from themselves; and extrinsic matter, though in the same statute, is not to be resorted to. - Two things are here assumed; 1st, that the General and Quarter Sessions are created by this section; 2dly, that the words of this section are clear and intelligible, and such as from which the meaning of the Legislature, upon the point in question, can be collected.  This section may indeed be said to create General and Quarter Sessions, in these Colonies, to the same extent that the statutes of 36th Ed. III. c. 12, 12th R. H. c. 10, and 5th Hen. V. § 1. c. 4, may be said to create Quarter Sessions in England, but no further.  Those statutes direct, that the Justices shall hold their Sessions four times in the year, at the four quarters.  This section directs, that Courts of General and Quarter Sessions shall be holden in New South Wales and Van Diemen's Land, and their Dependencies, at such t[i]m[e]s and places as the Governor of New South Wales shall, by his Proclamation, direct, and, the Governor having fixed those times and places, by Proclamation, the effect is the same as if they had been fixed by the Act itself.  But this was not all that remained to be done.  The statutes referred to suppose an existing matter to work upon, namely, a Commission of the Peace; and this section also supposes, but does not expressly direct, a future act to be done by the Governor, namely, the making a Commission of the Peace, and that such a Commission as includes in it the usual clause giving the Justices jurisdiction in Sessions.  If, in England, there existed not a Commission of the Peace, the statutes referred to would not of themselves create one, and there could have been no Quarter Sessions: and here, in like manner, there having been no Commission of the Peace, containing a clause giving to the Justices jurisdiction in Sessions, in existence at the passing of the Act, it is clear that this section too must have been inoperative, unless the Governor, in the exercise of the Authority previously vested in him, had issued such a Commission as I have described; for neither this section, nor any other part of the Act, expressly empowers the Governor to make such a Commission.

``They first provide for the erection of the Supreme Courts, to which they give a jurisdiction over all civil and criminal common law cases arising in any part of the Island or its Dependencies - a jurisdiction equal to that of all the three superior Courts of Common Law at Westminster.  They then give the Court jurisdiction over piracies and offences committed at sea; and, in the 4th section, proceed to regulate the mode of prosecuting and trying criminal cases therein.  The 5th clause gives power to the King to erect Criminal Courts in any future formed penal Settlements; and the 6th section, again taking up the proceedings in the Supreme Court, regulates the manner of trial in civil cases, directing that all issues of fact shall be tried by the Chief Judge and two Assessors; with this proviso, that if both parties shall concur in an application to have the issue tried by a Jury of twelve men, then the trial shall be by a Jury: -- the 7th clause regulates the qualification of this Jury.  Then comes the 8th - the most material clause in the whole Act, and upon the effect of which, I apprehend, the whole of this question must rest.  Not only the place in which this clause is found, but the words of it are very remarkable.  All the previous clauses of the Act are, with the exception of the 6th, entirely devoted to the erection of the Supreme Court, ascertaining its jurisdiction, and regulating the course of proceedings in it; and the Legislature had not yet accomplished all that they intended to do for it.  Its equitable and ecclesiastical jurisdiction was not yet conferred on it; and these objects, and a variety of regulations as to the mode of proceeding in that Court, accordingly occupy the ten following clauses.  It is to be always borne in mind that, in fact, no Trial by Jury had ever taken place in the Colony; and that the clause immediately preceding (for the 7th only prescribes the qualification of the Jurors) had provided for such a mode of trial in the Supreme Court, provided both parties to the suit concurred in applying for it.  The Legislature had, therefore, provided for a limited introduction of this mode of trial into the Colony, in civil actions at law, in the Supreme Court. - Bearing these facts in mind, the position and the language of this clause are remarkable.  It would seem that the Legislature, recollecting that they had then, for the first time, introduced Trial by Jury into the Colony; though under a limitation, and only in a particular Court, were at the same time reminded that they had incidentally touched upon that part of the general subject matter of their legislation which was of the most extreme importance to the Colony, and they suddenly stop in the midst of the particular matter in which they were engaged, viz. of giving jurisdiction to the Supreme Court, and regulating its proceedings, in order to guard against the possibility of any misconstruction, which might otherwise arise from what they had before done, and to give their immediate decision on this important subject; and having done so, they immediately resume the work they were previously engaged with, and continue it through the ten following Sections.  Nor is the language less remarkable; for it will be observed, that, in the preceding, as well as in the ten subsequent clauses, they constantly, either by express words, or by reference too plain to be misunderstood, confine the provisions of those clauses to the Supreme Court.  But in this 8th clause they suddenly quit this style, and make use of language of the mo[s]t general and comprehensive kind.  One expression, ``the Trial by Jury," appears to have been used emphatically.  Instead of descending to particulars, or using technical terms, they make use of the popular term ``the Trial by Jury," as if to embrace a whole system of trial, applicable to all places, all Courts, all cases, and all persons.  They say it shall be lawful for the King, by Order in Council, to cause this system of trial ``to be further introduced and applied" - not in the Supreme Court, about which they had been previously, and were about to be f[o]r some time exclusively employed, but in such parts of New South Wales and Van Diemen's Land, and their respective Dependencies, as His Majesty should think fit; -- words of the most comprehensive kind, applicable to every part of the Colony, and therefore every Court in it.  Then, recollecting that no Trial by Jury had ever taken place in the Colony, and that the 6th section had in fact provided for the first introduction of it, though under a limitation and in a particular Court, the words ``further introduce" naturally apply to that first introduction, and reserve all further introduction of it to the King, by Order in Council.  But, it is argued, that the words of this 8th section, being in the affirmative, do not imply a negative, and therefore the common law is not taken away.  If a thing is at common law, a statute cannot restrain it, unless it be in negative words.  Thus, if a given remedy exists at common law for a given injury, and an Act of Parliament simply gives a better remedy for the same injury, the old remedy is not taken away unless negative words are used; or, to take an example from the books - if a statute was made that it should be lawful for a tenant in fee simple to make a lease for 21 years, and that such lease should be good, the statute so made in the affirmative might not restrain him from making a lease for 60 years, but it should be good though made for more than 21 years, because it was good by common law; and if the statute would have restrained him, it should have used negative words.  But where a statute ordains and appoints the manner of doing a thing, which was not before at common law, there, although the words of the Act are in the affirmative, they contain in themselves a negative; so affirmative words in an Act may, in sense and substance, contain a negative.  These distinctions were taken, and acted upon, in Townsend's case, Plowd. Comm. 113, and have been followed in the case of the King v. Burridge, 3. P. Williams, 491, and in Hobart, 298.  Now, by the common law, the King has not the power, by any Order in Council, to limit the times, the places, or the cases, in which Trial by Jury shall be introduced and applied in a Colony like this - not acquired by conquest or treaty, but originally planted by Englishmen; nor to make any rules, modifications, or limitations in respect thereof.  This Act, therefore, by giving the King this power, ordains and appoints a thing which was not before at common law - contains a negative in itself, though penned in the affirmative; and the words, in sense and substance, contain a negative.  It has been said, that if the whole Act contained only the 19th section, this Jury Question would never have arisen.  It may be asked, in reply, what would have been the effect of the Act if the 19th clause had been omitted?  It has been shewn that this last section does not, of itself, give any power to the Governor which he had not before, to appoint Justices of the Peace.  He had the power, in his own Commission, before this Act was passed.  Suppose, then that the 19th section was omitted, and that, after the passing of the Act, the Governor, under the power contained in his own Commission, had issued a Commission of the Peace for this Island, with a clause giving the Justices jurisdiction in Sessions, and that two of them had issued their Precept to the Sheriff to summon the Sessions, and that the Sheriff had summoned Grand and Petty Jurors, could there have been Trial by Jury?  Undoubtedly there could, unless these affirmative words in the 8th section contain a negative; and then Trial by Jury would be further introduced, not in any particular part of the Island, but in the whole; for the Commission of the Peace being, not for any part of the Island, but the whole, the Session is held for the whole, and the Jury serve for the whole; not in any particular case, but in all cases liable at Sessions, and this without any other qualification, rule, modification, or limitation, than what the common law required.  What, then, of Trial by Jury would remain to the King in Council to introduce, or where, in the Island?  In sense and substance, therefore, these words must contain a negative, or they could have no effect.  Besides, if these affirmative words do not contain a negative, then it may be contended that the 4th and 6th sections, regulating the mode of trial in criminal and civil cases in the Supreme Court, being both made in affirmative words, contain no negative in themselves.  It is hardly necessary to resort to any argument to be drawn from analogy to the proceedings in the Supreme Court, though it is not very easy to conceive why the unqualified power of trying by Jury should be suffered to fall into the hands of the Quarter Sessions, and yet be denied to the Supreme Court.  Then how stands the question?  On the one hand, because the Legislature has said that Courts of Session shall be held, and has made no express provision for trials therein, it is said that a presumption or intendment arises, that the cases must be tried by a common Petty Jury; in other words, that unqualified Trial by Jury must take place in Sessions, in every case, at all times, and in every part of the Island.  On the other hand, there is a clear and express enactment of the same Legislature, in the same Act of Parliament, by which, after having provided for the first actual introduction of Trial by Jury in the Colony, but that only in certain cases, in a certain Court, and under certain restrictions, they vest in the King in Council the power of further introducing it in any part, in any Court, at any time, and in any case, to the exclusion of all others if he thinks fit, and under any rules, modifications, and limitations he pleases, in very remarkable terms, and such as clearly bear in themselves a negative; and this, an express enactment, so utterly inconsistent with the presumption contended for, that if the latter can prevail in the slightest degree, it totally annuls the former.  But if the rule be, that the presumption only stands until the contrary intention is shewn, the presumption, it should seem, must give way.  And, after all, it does not seem that the case is so desperate that, if the common law Trial by Jury does not obtain at Sessions, there can never be any other.  The King might, and still may, introduce Trial by Jury in those Courts, either absolutely or subject to such limitations as he shall think proper; and it is not unreasonable to suppose, that the Legislature purposely omitted to provide any mode of trial there, in order to leave the opportunity of making the first experiment in those Courts.  Besides this a very material point is that made by the Attorney General, with respect to the removal of cases by certiorari.  The Supreme Court, being invested with all the powers of the Court of King's Bench in England, has the superintendance and control of Courts of Sessions, the proceedings of which it may remove by certiorari.  Suppose an indictment found at Sessions, and removed before trial into the Supreme Court, how could it be tri[e]d? - for there is but one mode of trial provided for, in criminal cases, in that Court; and that is, for issues joined on informations fi[l]ed by the Attorney General.  But if this were the only difficulty, it might perhaps be contended, that the power of removing by certiorari, being only implied in the general words in which the powers of the Supreme Court are conferred upon it, oug[h]t to give way to the more particular intent expressed of having Courts of Sessions; and that it would merely prove, that there could be no certiorari before trial, because there is no means of trying an indictment in the Supreme Court.

``Upon consideration, however, of the whole matter, and for the reasons before given, I have come to the opinion, that there cannot be Trial by Jury in the Courts of General and Quarter Sessions in this Island and its Dependencies, until His Majesty shall think fit to introduce it by an Order in Council; -- an opinion which I cannot express but with considerable diffidence, knowing as I do what has been the opinion of others on the same point.  But I am not at liberty to adopt them, it being my imperative duty to form, in the best way I can, an opinion of my own on the question, and, having formed it, to deliver it.

``As the determination of this point will, for the reason stated in the outset, affect the whole rule, the consequence is --the rule must be discharged.  At the same time I beg to observe, that if the question of whether or not prosecutions can be instituted in Courts of Sessions, by bills of indictment, can be raised singly, and it shall be thought desirable to do so, it yet remains open to any person to adopt that course."

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.