Page:History of New South Wales from the records, Volume 1.djvu/464

 350 THE JUDGEADVOCATE. 1788 of the propriety of sitting under a warrant issued by the authority 27 October, of his Majesty's Commission until the evening before the Court was to assemble, when the doubt arose on the Judge- Advocate's reading over the oath. The present situation of the detachment will be obvious to your lordship. The Judge- Advocate seems to have gone a little out of Antic^ting his Way on this occasion, in anticipating a technical objec- tion which might have been left to the parties concerned — especially as the point was doubtful, to say the least, and the result threatened to be serious. If no General Court-martial could be held under the Governor's warrant, then there was no power to deal with serious offences against military discipline ; officers and men might have run riot as much as they pleased, and the Governor would have found himself powerless to deal with the situation. It was the Judge- Advocate's duty, no doubt, to advise the Court on Question of all matters of law arising before it ; but a question of juris- on. ^^^j^Jqq^ such as was raised by him in this instance, does not appear to have been properly within his province, or that of the Court itself, to determine. The simplest course to have pursued would have been to proceed with the trial, and then refer the question to the proper authorities in England. By that means military discipline would have been saved, without any sacrifice of the rights of parties. But the subalterns who mainly composed the Court may possibly have rejoiced in the opportunity of extinguishing, by a summary decision, the only tribunal in the colony to The Major's which they were amenable ; as by that means they effec- tually put it out of the Major's pow^er to put them under arrest, or even to hold a Court-martial in terrorem over them.* or garrison Court-martial, which is usually composed of a captain and four subalterns (or two, if more cannot be conveniently assembled). The juris- diction of the Court is confined to small offences; serious violations of military law are dealt with by the General Court-martial, assembled under the authority of the King*s commission. — Tytler, Military Law, pp. 176-183 — The opinion given by Collins will be found post, p. 555. Digitized by Google
 * Commissioned officers are not amenable to the judgment of a regimental