Page:History of Australia, Rusden 1897.djvu/630

 (102 JURY LAW, 1830, 1834. the Great Seal for such crime), shall be qualified to serve on any such jury/* In construing this clause the magis- trates excluded all emancipists who had not received a full royal pardon. The emancipist class fumed when they saw that no man who had been convicted was summoned. An order was applied for, calling on the sheriff to show cause against a mandamus to compel him to insert the names of certain emancipists. Wentworth and Wardell argued for the mandamus, against the Solicitor-General on the other side. The application was dismissed on the ground of irregularity, but the Chief Justice allowed it to be made known that, in his opinion, the magistrates were wrong in excluding from the lists persons whose terms of sentence had expired. It may be mentioned, parenthetically, that in 1830 Governor Darling invited the Council to consider the pro- priety of introducing generally trial by jury. The Secretary of State wished for their opinions, and Darling was not indisposed to introduce trial by jury. The Council passed an amending bill. There were two dissentients, but the majority would not consent to delay. Disqualifying every- one who had undergone a colonial or second conviction of all others whose sentences had expired, or who had received full pardons, eligible as jurors. When the magistrates excluded the names of all whose sentences had expired, the Governor had ascertained the opinion of Forbes that persons who had "served their terms of transportation" were eligible as jurors. The opinion was, with important exceptions, confirmed by three judges (Forbes, Dowling,^ and Burton) who were asked by Governor Bourke in 1834, at the unanimous request of the Legislative Council,. " whether a person who has been convicted of a transport- able offence, and whose sentence has expired, or been remitted by an absolute or conditional pardon, is legally qualified to sit upon a jury in England." The careful reply which was then furnished was dictated by no political feeling. It analyzed the various enactments in force by the dry light of reason. Free pardons, or a conditional pardon of which the condition had been performed, — servitude of punishment mfticted on a person convicted of
 * treason, felony, or other infamous offence," the bill left