5 8 A COLONIAL AUTOCRACY. 



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 presi- 

 dency of Ellis Bent the rule of law easily triumphed. 



The Court took cognisance of " all such outrages and mis- 

 behaviours 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 recom- 

 mendation 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, 



1 27 Geo. III., cap. 2. 



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. 



3 C. on T., 1812. 



4 Bent to Liverpool, igth 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. 



