Page:History of New South Wales from the records, Volume 1.djvu/513

 HISTOBICAL PARALLEL. 399 IS obyiously better that a Court, whatever its constitution^ 1789 should be composed of men who understand their business than of men who do not. As to the decisions of the Court being founded solely on the laws of England, that was true only in the sense that the laws were to be interpreted and applied according to the practice of the Courts-martial. The plain fact was that, to all intents and purposes, the The red coat colony was placed under martial law, in the manner of a tiaiiaw. disturbed district ; and the laws of England — as we under- stand them — ^were not in force within its borders until the practice of the Courts at Westminster was substituted for that of the military tribunal. The method of trial established by the Act of 1787 might be very fairly described in the language applied by Burke to the trial of American rebels in England under an Act Historioai passed during the War of Independence, founded on a^** statute of Henry the Eighth providing for the trial in England of treasons committed out of the realm. By that Act, wrote Burke in his letter to the Sheriffs of Bristol (1777) — ^'^ almost all that is substantial and beneficial in a trial by jury" was taken away from the American subject ; " for to try a man under it is, in effect, to condemn him unheard. A person is brought hither in the dungeon of a ship's hold; loaded with irons, unfurnished with money, unsupported by friends, where no one local circumstance that tends to detect perjury can possibly be judged of; such a person may be executed according to form, but he Execution can never be tried according to justice." It should not be triaL forgotten that trial by military jury was not confined to convicts; all persons in the colony were subject to it. The free settler had no more privilege in that respect than the felon working in a chain-gang; the law being no respecter of persons.* Conrt^ in 1804, throws some light on the method of conducting oasiness in it. — Memoirs, vol. ii, pp. 206-216. The terror excited among the convict popu- lation bv the summary proceedings of the Criminal Court was so great that several instances are recorded of suicide having been committed in order to Digitized by Google
 * Holt's report of the proceedings against him in the Judge- Advocate's