of the territory does not warrant it in New South Wales; and I think, if immediately extended to it, it would become an evil. In saying this I believe I deliver the sentiments of a majority of the inhabitants who are capable of duly appreciating the result of so important a measure. When I left the Colony I thought many years must elapse before it would be capable of producing a sufficient number of proper jurymen."[1]
Cox, Macarthur and Bell, who all signed the petition, were opposed to the establishment of petty juries, and Marsden was opposed to ex-convict jurors.[2] The fact that in spite of their feeling on this point they did sign was a proof of the development of a spirit of party government, all of them sinking their feelings on this point in the hope of gaining the others. It is noticeable that no one, with the exception perhaps of Marsden, thought it would be possible to exclude ex-convicts altogether. Field, for example, thought the danger of petty juries would lie in the fact that emancipists would be legally entitled to sit upon them, and that jury trial would therefore be the means of still further embittering feeling between themselves and the free population.[3]
It is probable that the military officers who acted as judges and jury in the Criminal Court were as impartial and as intelligent as an average English jury. The great objection to the peculiar organisation of the court was that it was unnatural and inimical to the ideas of the people. It often happened also that the decision of questions of guilt lay with a young and inexperienced officer who knew nothing of New South Wales, and very little of the world.[4] Wylde complained that the officers, aware that the court was unpopular merely because it was military, too often erred on the side of leniency from a fear of raising ill-feeling, while if a member of their regiment were tried before them, from the same fear they were inclined to be too severe. The officer in command of the garrison complained that the demands of the Criminal Court interfered seriously with the military duties of his officers, and to the regiment the
