A more important 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 On the other side it was maintained, that the colony was too small to furnish civil juries, and the parliament had superseded them.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.