guaranteed in terms under Ethelred,[1]—which did not sink
with the fall of Harold, and was embodied in the Great
Charter as the right of every freeman, in words which the
great Chatham pronounced worth all the classics, and the
Bible of the English Constitution,—trial by jury in completeness,—was thenceforward indefinitely taken from
Englishmen in New South Wales. It is a proof of the sway
of custom that no serious effort has been made to restore it.
Neither responsible government, nor abuse of power by a
government, has to this day roused the people of New
South Wales to the evils they undergo by its loss. It is bad
to lose a prime guarantee for due administration of the law;
it is worse that the people should not be trained from the
highest to the lowest in the duty of administering it. The
taint has spread downwards and numerous stipendiary
magistrates have in great part extruded from petty sessions
the unpaid magistrates who once distributed justice and
friendly counsel to their neighbours. Official routine has
superseded union of feeling. A bond, which was as wholesome for the country gentleman in stirring his sympathies as it was for his poorer neighbours to profit
by them, has been rent asunder by the craving for
formality and the servility of a government department. But whether Forbes had or had not reason to be
satisfied with the extinction of grand juries, there could be
no doubt as to the destruction of his devices with regard to
common juries at Courts of Quarter Sessions. The argument with which he had overthrown the resistance of
magistrates in 1824—that as the Act of 1823 was silent
the common law must be held to prevail—was in express
words rendered impossible by the Act of 1828. The 17th
- ↑ "Exeant seniores duodecim thani, et præfectus cum eis et jurent. super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare" [circa an. 990]. Laws of Ethelred. The reader may find in the great work of Stubbs how under the Norman line the liberties of England were guaranteed by successive kings. In 1194, by the Articles of Visitation, the recognitors (or grand jury) of presentment were specially described. Four knights were chosen from the county. They by their oath chose two lawful knights of each hundred or wapentake. The two so chosen, chose ten knights of each hundred or wapentake, "or, if knights be wanting, legal or freemen," "so that these twelve may answer under all heads concerning their whole hundred or wapentake." It was after the visitation of 1194 that the petty jury to traverse the presentment of the grand jury came into use.