mportant variation between the colonies was displayed on the
question of trial by jury. The magistrates of New South Wales were
required to shew cause for the non-issue of a precept to the sheriff, to
summon a jury. The rule _nisi_ was made absolute. Chief Justice Forbes
decided that the magistrates derived their commission from the king, and
not the parliament; that their functions and obligations were settled by
common law; were not mentioned, and therefore not taken away by the act.
The petty session thus traced its existence to the royal commission: the
supreme court to the parliamentary law.

When the report of the determination by Judge Forbes reached this
colony, Mr., now Sir Alfred Stephen, brought the question before the
court in a similar manner. He argued that it was the duty of the court
to construe the act of parliament in a form the most favorable to the
subject. On the other side it was maintained, that the colony was too
small to furnish civil juries, and the parliament had superseded them.
The act itself which instituted the military jury for the supreme court,
and gave civil juries in civil cases, left the extension of the
practice to the royal discretion alone.

Judge Pedder, in giving judgment, stated that according to the practice
previously in the colonies no civil juries had been known, and the act
of parliament which conferred trial by jury did not give a common one,
but retained the military jury. On the whole he was of opinion that
parliament had overruled common law, and taken away trial by jury,
except as provided by the act, or extended by the king.

Thus, while Judge Pedder ruled that the petty juries were illegal, at
New South Wales they were sitting under the sanction of the then
superior authority. That the decision of our supreme court was a more
correct interpretation of the intentions of parliament, is scarcely to
be doubted; but the words of the act did not necessarily extinguish a
common law right, and the intention of legislators is not law. The
decision of Forbes was more agreeable to Englishmen, though scarcely
compatible with the condition of the country.

The treatment of Mr. Gellibrand, the attorney-general, who was dismissed
from his office by Arthur, for unprofessional conduct, excited great
interest in the legal circles of Great Britain. The disagreement sprang
chiefly from a trial, Laurie _v._ Griffiths, characteristic of the
times. The plaintiff sued for damages for th