Page:History of Australia, Rusden 1897.djvu/547

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CHIEF JUSTICE FORBES. JUDGE-ADVOCATE WYLDE.
519

(Feb. 1824) a month before Forbes arrived in the colony. Saxe-Bannister was Attorney-General. Forbes landed "under a salute" (8th March 1824). He proclaimed his intention to open the Court on the 17th May 1824, and held it accordingly, under the new Charter of Justice.

After the disposing of the causes, Judge-Advocate Wylde animadverted with asperity upon passages in Bigge's Report which alluded to Wylde, and had, amongst other matters, recommended the appointment of an Attorney-General to prepare indictments and to prosecute. Such an arrangement would enable the Judge "to abstain, as Mr. Judge-Advocate Wylde has latterly done, from all preliminary cognizance or investigation in criminal cases . . ."

His diatribe deserves mention because Wylde assumed a position utterly at variance with the contention of Bligh in 1808 about the functions of Atkins, and with arguments put forth on Bligh's behalf at the court-martial on Johnston in 1811.

"The Judge-Advocate, therefore, is only one of the seven jurors who compose, and have committed to them as a Court of Record, the whole juirsdiction as to law and fact, determining both, it is known, by the opinions of a majority of its members. The Judge-Advocate has in truth no especial or other power than any other juror (sic) of the Court."[1]

One short-lived consequence of the Constitution Act of 1829 deserves attention, although unnoticed by many writers. Juries were created under it, by an interpretation of questionable value put upon it by Forbes. The decision involved the formation of grand juries, and the dilemma in which one of their findings placed the Governor and the Chief Justice, forms a singular episode during Brisbane's government.

Although it involves anticipation of later events, an important point connected with trial by jury deserves special mention here. By the 4th section of the Act 4 Geo. IV. cap. 96, all criminal trials were held before a military jury. The sixth section left civil cases to be dealt with by the Chief Justice and two assessors, or if the litigants so desired, before a jury of twelve. The 19th section enabled Courts

  1. ↑ Reading Wylde's words one wanders back to 1808, and wonders. whether, if Governor King's earnest request for a legal adviser had been complied with, Bligh would have escaped deposition, and the colony much trouble.
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