But the law was the law of England—not military law. In the times when six soldiers with another soldier as their President had done justice in the Court, this distinction had probably been more theoretical than real, but under the presidency of Ellis Bent the rule of law easily triumphed.
The Court took cognisance of "all such outrages and misbehaviours as, if committed within this realm, would be treason or misprision thereof, felony or misdemeanour.[1] After hearing the evidence, the Judge-Advocate addressed the members as a judge charges a jury. The Court then retired and decided upon the verdict, which was that of the majority,[2] and the sentence. Verdict and sentence were then pronounced by the President. The execution of the sentence was entrusted to the Provost-Marshal who had in each case to receive the Governor's warrant. The Governor thus passed in review every sentence pronounced by the Court.
The military appearance of the Court, and the absence of trial by jury, were both considered grievances by the colonists. The Committee on Transportation favoured the appointment of Petty Juries in Criminal trials.[3] They based this recommendation largely on the opinions in its favour expressed both by Bent and Macquarie.[4] The latter indeed was an advocate for Grand Juries as well as Petty ones. The Secretary of State did not think fit to adopt the suggestion, and trial by jury was not granted for many years.
The Court of Civil Judicature was composed of the Judge-Advocate and two magistrates appointed by the Governor. An appeal lay from this Court to the Governor and from him to the Privy Council. This arrangement was in many ways unsatisfactory. In the first place, the Governor, a man without technical legal knowledge, must either decide a case for himself or apply for advice to his only law adviser, the Judge-Advocate,
- ↑ 27 Geo. III., cap. 2.
- ↑ The agreement of at least five members was necessary for the immediate execution of the death penalty. If four only were in favour of it the case had to be referred for the consideration of the Crown.
- ↑ C. on T., 1812.
- ↑ Bent to Liverpool, 19th October, 1811. H.R., VII., p. 621. Macquarie's Despatches, passim. Especially see D., 28th June, 1813, R.O., MS. See also Appendix to C. on T., 1812.
