Page:History of New South Wales from the records, Volume 1.djvu/221

 AND THE MILITARY. 117 endeavoured to get over the difficulty by appointing a Court 1788 of Inquiry to '' inquire into the particulars of the charge, and to report whether there was or was not sufficient ground for a General Court-martial"; intending, if the report should require any further proceeding, to have the charge fully examined and reported on by another Court, of In- quiry. But the officers to whom the question was referred More tedmi- had no sooner met than technical objections again made their appearance; and it was finally resolved that, although the members of the Court might have proceeded to hear the case before the application for a Court-martial had been The aae«- made, they were precluded from doing so by the issue of the Governor's warrant.**^ In this dilemma Phillip directed the Judge-Advocate to Th© Ust take the evidence on both sides, intending to send the de- positions to England with the officer under arrest. Before that could be done, however, Major Ross came to the rescue with a letter in which he informed Phillip that " the officer had fully satisfied him respecting the charge," and desired ProeccuUon that he might be " permitted to withdraw his request for a Court-martial." The officer was thereupon ordered to return as to the legality of the trial, or the amenability of the prisoner to their jarisdictioD. The Naval Court-martial appointed to try Captain Norris, in 1744, for misbehaviour and cowardice in the seu-fight off Toulon, thought S roper to avoid giving any sentence, either of condemnation or acquittal, by etermining that they had no richt to take trial of the charge, as the accused person had previously given up his commission, and was nut in his Majesty's pay ; although Captain Norris himself had desired a Court-martial, which had accordingly been granted to him. The proceedings of the Court were called for in the House of Commons and referred to a committee, on whose report a motion was made and passed, that those proceedings were arbitrary and illegal. Yet there would seem to be lit.tle doubt that, if the objection to the legality of the trial is self-evident and insurmountable, the Court may suspend procedure till the objection is canvassed by the proper authority ; as, for example, if the prisoner is not subject to Military Law, or if the crime should be a civil offence, as murder, highway robbery, rape, &c., falling under the cognisance of the ordinary municipal Courts." — Tytler, p. 142. In this case the objection was not self-evident and insurmountable, and there- fore the Court might well have proceeded to hear the case, and then referred their difficulty to the Governor, instead of deciding it themselves without reference to him or to any one else. The officers having previously decided that the Governor's warrant was valueless, and consequently that no Court-martial could be held under it, ,^<^VHi"* ^ '^yigitized by Google
 * This appears to have been a new point in the practice of military law.