Common Law & Trial by Jury .. Australia , today?

Thanks to Joe Hoagland –

Common Law & Trial by Jury .. Australia , today?

The object of ‘trial by the country’ or by the people, known to us as TRIAL BY JURY, in preference to a trial by the government, is to guard against every species of oppression by the government, and in this regard it is vital that the people judge of and determine their own liberties against the government.

It is fairly presumable that such a tribunal (with trial by jury) will agree to no conviction except such as substantially the whole country would agree to, if they were present, taking part in the trial: hence, as twelve jurors is the norm, the requirement of unanimity in the verdict.

The government can enforce none of its laws except such as substantially the whole people, represented by the impartial jury, wish to have enforced.

The government, therefore, consistently with trial by jury, can exercise no powers over the people other than that which the whole people consent that it may exercise.

But all this trial by jury would be no trial at all ‘by the country’, but only trial by government, if the government could either declare who may or may not be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is the essence of the trial. [END paraphrase ]

[– the above is a paraphrase from Lysander Spooner’s bk An Essay on the Trial by Jury (1852)]

The above last paragraph is a reaffirmation of the dictum in the Bushell’s Case of 1670, where Lord Chief Justice Vaughan, of the King’s Bench of Common Pleas gave the most emphatic statement on how a jury in a common law trial determines both the law and evidence.

[SEE : – 231. Case of the Imprisonment of Edward Bushell, for alleged Misconduct as a Juryman: 22 Charles II. A. D. 1670. [ Vaughan’s Reports , 135.]

[ ]

Viz. ‘That the jury acquitted those indicted against the direction of the court in matter of law, openly given and declared to them in court.’ — The words, “That the jury did acquit, against the direction of the court, in matter of law”, literally taken, and de plano, are insignificant and not intelligible, for no issue can be joined of matter in law, no jury can be charged with the trial of matter in law barely, no evidence ever was, or can be given to a jury of what is law, or not; nor no such oath can be given to, or taken by, a jury, to try matter in law; nor no attaint can lye for such a false oath………………………………………… {JUDGE DELARES LAW, AFTER JURY VERDICT} — If notwithstanding they find for the defendant, this may be thought a finding in matter of law against the direction of the court: for in that case the jury first declare the fact, as it is found by themselves, to which fact the judge declares how the law is consequent.

All the above is the definition of the COMMON LAW of England. It is absolutely clear from Lysander Spooner and Lord Chief Justice Vaughan that the only way for law to become common is for the people to adjudge of the law and all the evidence. In England the Common Law with trial by jury have been traced into the mists of time in Anglo-Saxon England of the 7th, 8th and 9th centuries later culminating with King Alfred the Great’s (d 899 AD) laws based on the Anglo-Saxon laws and customs, in conformity with the Biblical Book of Exodus. These laws of Alfred are then traceable through Saint Edward the Confessor (the last great A-S king), William the Conqueror, Henry I (1100, Coronation Oath = Charter of liberties) and Henry II to the Great Charter – MAGNA CARTA 1215 – which confirmed the ancient laws and customs, and was greatly emphasised by the declaration that the Magna Carta 1225 (Henry III) as the COMMON LAW by Edward I in 1297.

In spite of this historic evidence, Lord Chancellor (England) Irvine, 14 October 2002 { }, declared at Canberra, that Magna Carta bequeathed us ‘the rule of law’. “Henceforth, government not only had to be just, but also had to consider the good of the community” said LCJ Irvine; but no significant reference was made to the right of trial by jury given by the application of the Magna Carta. In fact this was belittled as though of insignificant import.

How can a government be kept just, if there is no trial by the country, that is the people, under trial by jury ?

In the book, Australia –The First Hundred Years 1888, edited by the famous editor of the Sydney Morning Herald, the Hon. Andrew Garran ( his son Sir Robert R Garran was to become the most famous constitutionalist in the federation movement, and later as Solicitor-General), it states under the rule of Governor Bourke that “It was then (c1830’s) that the aspirations of the popular party for constitutional rights of freemen first began to be realised, although in a very modified form. Trial by jury in the superior Courts – that is by civilian instead of military jurors – was granted in an optional form in 1833 …. “ EQ

Optional to whom ? Well remember, all Governors of the colony of NSW previous to Bourke, from Capt. Phillip to Darling, ruled by absolute decree from the British Crown, and trials had been before jurors chosen from the military or admiralty as nominated and appointed by the Governor , so the use of a jury using freemen as jurors was still at the behest of the Crown, through the presiding Judge.

So by 1833, we certainly did not have the Common Law of England with the right of trial by jury. Optional juries are just that; this remained government or Crown tyranny, a residue of our convict beginnings, so when government oppression was their want, then freemen were to find themselves to be NOT free ! In fact penal servitude, as practised since 1788, was still alive and well, and available to any oppressive Governor and or government at any time, up till now, 2002 !.


By 1833, we had optional juries; that is a jury consisting of freemen as jurors or the existing condition of appointed military and or naval jurors; the option being at the discretion of the presiding judge or may be other authorities.

i828, 9 Geo. IV. C.83. (25 July, 1828). This Act of the British Parliament created the Legislative Councils (NSW & Van Diemens Land [VDL]) . s. XXI “.. The Legislative Councils… shall have power and authority to make laws and ordinances for the peace, welfare, and good government …Such laws and ordinances not being repugnant to this Act, or any Charter or Letters Patent or Order in Council which may be issued in pursuance hereof, or to the laws of England.”

Now, as a colony and thus part of the British Imperial federation, the Legislative Council had conditional powers and authority; how were these conditions to be managed ? s. XXII “And be it further enacted… (the proposed law or ordinance) be transmitted …to the Supreme Court of the Colony…..before the expiration of fourteen days the Judges ..or either of such judges…that any such law or ordinance is repugnant (ditto above) or laws of England… then the law shall” be suspended and returned to Council for rectification. The Judges were required to state fully the grounds of their opinion which was to be transmitted to His Majesty.

This section puts governance in the Australian colonies at total odds with Great Britain. In Great Britain the British Parliament is the supreme authority, and any law or ordinance cannot be held in question by a court (other than a common law court !). That is the Crown courts {e.g. Military, Admiralty, Ecclesiastical, Exchequer, or King’s courts[Star Chamber]} were to enforce parliamentary laws and ordinances with no right of dispute.

But in the Australian colonies, the Supreme Court was given co-equal authority to the Governor and or Legislative Council in the authority to veto legislation.   This position of the superior court, and its judges having such potential great power, was to be copied slavishly in the Australian Constitution, adopted 73 years later, where the High Court was given this enormous power to overrule the popularly elected federal Parliament. By then many eminent colonial people were denouncing the implementation of such powers within a supreme court. In 2002, we can fully understand those people’s concerns of a court with powers to overrule parliament; the High Court is an unmitigated disaster.

Let us address the issues prior to the 1828 Act.   The following matters are of interest : [1] The Act creating the Criminal Court of NSW 1787; [2] The Court of Civil Jurisdiction 1787 ; [3] 1812 Report of Select Committee on Transportation 1788-1810; [4] Trial by Jury, 1812; [5] A petition for the Redress of Grievances 1819 ; [6] Is NSW a penal colony ? 1817 ; [7] A Petition for Trial by Jury and representation 1825; [8] 1828 Act, 9 Geo. C.83., {see above}including provisions for Trial by Jury; followed by [9] the Act of 1842. The quotes given below are from the Select Documents in Australian History, as selected and edited by CMH Clark, Professor of History, Canberra Uni College (1950).

[1] The Act creating the Criminal Court in NSW 1787:  

And whereas it may be found necessary that a colony and a civil Government be established…that a Court of Criminal jurisdiction…with authority to proceed in a more summary way than is used within this realm, according to the known and established laws thereof. …. A Court of Judicature for the trial and punishment of all such outrages and misbehaviours…which Court shall consist of the Judge-Advocate, to be appointed in and for such place, together with six officers of His Majesty’s forces by sea or land:”

This is a full blown military tribunal or court martial. It is admitted that such a tribunal is unknown anywhere else within the realm, and is against any common law. NO COMMON LAW @ 1788.

[2] The Court of Civil Jurisdiction. 1787:                                                                                                    

A Court to be called the Court of Civil Jurisdiction; and that such Court shall consist of the Judge-Advocate for the time being, together with two fit and proper persons,.. appointed by the Governor….to hold plea of, and to hear and determine in a summary way all pleas” (on civil matters).

Our first ‘kangaroo court’ no less. Yes things do get better in the in the next few decades, but by 1901, the Australian Constitution presented us with a worse scenario – the federal Parliament with a right to make any legal wrong a summary offence, and where trial by jury is at the discretion of the presiding Judge. THAT IS WORSE THAN WHEN WE STARTED IN 1788 WITH A MILITARY COURT. This is what we have today, in the year 2002 –ABSOLUTE TYRANNY !!

But we are jumping ahead.

[3] 1812 Report of Select Committee on Transportation:

“ Your Committee…unequivocally condemns the manner in which the criminal Courts are thus established. .. He (Governor Bligh) also states there were settlers sufficient in character and numbers to furnish juries; and thinks their decisions would have been fairer than those that took place without them….criminal justice may be altered with great advantage to the colony…..its inhabitants should view otherwise than with jealousy and discontent, a system which resembles rather a Court Martial than the mode of trial the advantages of which they have been accustomed to see and enjoy in their own Country….that necessity has now ceased to exist; a numerous class of respectable persons is now formed within the settlement, amply sufficient to warrant the establishment of that trial by jury, for which they anxiously wishing.”

190 years later, we are still anxiously wishing to see trial by jury as of right and the true common law principles of England suitable to our conditions in any Australian colony/State or the Commonwealth of Australia.






About arnierosner

As an American I advocate a republic form of government, self-reliance, and adherence to the basic philosophy of the founding fathers and the founding documents, I ONLY respect those who respect and "HONOR" their honor. No exceptions!
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