Page:History of New South Wales from the records, Volume 1.djvu/324

 214 THE COURTS OP LAW. Judgment and sentenoe. Punish- ment. No gaol. ExUc. cleared, the Judge- Advocate and the officers deliberated over their verdict, and as soon as they had made up their minds about it, the doors were thrown open again and sentence was pronounced in public. In cases not involving the punishment of death, a verdict of the majority was suffi- cient ; but where the charge was capital — ^and nearly every criminal charge was capital in those days — ^the concurrence of five members of the Court was necessary before the sen- tence could be carried out. Where less than five concurred, the proceedings had to be sent to the Home Government for their consideration. The Governor's warrant was a neces- sary preliminary to an execution ; but he was empowered by his commission to grant a pardon in any case, " treason and wilful murder only excepted," and also, on extraordinary occasions, to reprieve a prisoner until final instructions were received from England.* The Court was expressly limited to two forms of punish- ment — in capital cases death, and in others flogging, or ^^ corporal punishment." No sentence of imprisonment instead of flogging could be passed, nor was there power to impose a fine. A power to impose fines would have been useless in the early days of the settlement, because the prisoners would not have had the means of paying them ; and for a similar reason, terms of imprisonment could not be well imposed, seeing that there was no gaol in which the time could be served. To meet the latter difficulty, prison- ers were frequently sent for punishment to the islands in the harbour, and subsequently to Norfolk Island. That course was adopted by Phillip in many instances, and would probably have been adopted in many more, if he had had the necessary authority and the means to enforce his own views on the subject; exile to an island being, from the first, his ideal form of penal discipline. the term of transportation for which offenders had been sent oat to the colony ; but a power to that effect was given by a subsequent commission, dated 8 November, 1791 ; post, p. 542. Digitized by Google
 * Phillip's commission did not give him any power to remit any part of