rom the
large influence possessed by the executive; which could determine the
time of sitting and the members of the court; which denied the right of
challenge, and accepted the concurrence of five voices only in cases of
life and death--and those of persons subject to the influence of the
governor and unaccustomed to weigh evidence, or to defer to the maxims
of civil tribunals. But if the constitution of the court was a subject
of just complaint, the creation of new offences by unauthorised
legislation, was still less acceptable to English statists.

The court proceeded smoothly, so long as none but convicts or persons of
trivial influence were in question; but the dispute with Governor Bligh
disclosed the dangers with which it was fraught: the sympathy of the
jurors with the accused frustrated his prosecution, and overthrew the
executive.

The _esprit du corps_ of the jurors occasionally appeared in their
verdict: the decision of a cause in which an officer was the aggressor,
or one which interested the passions, did not command the confidence of
the people.

The jeopardy of justice was illustrated by a dispute, in which the Rev.
Mr. Marsden was complainant, and the secretary of the governor the
defendant. Mr. Campbell was the censor of the New South Wales press: he
admitted an article, which imputed to Mr. Marsden (1817) the abuse of
his office as agent for the missionary societies, and of using muskets
and gunpowder as articles of traffic with the natives of the Pacific.
The judge advocate in this instance was said to attempt to shelter the
offender by the influence of his three-fold office--as the law adviser
of the governor, the public prosecutor, and member of the court of
criminal jurisdiction. His reluctance to admit the evidence, and to take
the preliminary steps in the prosecution, and his direction to deliver
an inoperative verdict, were held fatal evidences that impartiality
could not be secured by uniting functions so inconsistent with each
other.

The jurors were not unfrequently interested: in some instances the
prosecutor sat as witness and judge, giving the principal evidence in
the case in which he was both to decide the guilt and apportion the
punishment.[80]

The establishment of a court of criminal jurisdiction was alone
authorised by the parliament: the necessity for supplemental laws was
not foreseen, but was soon perceived. The governors assumed the
legislative authority, under the disgui