the opinion of the major part of the persons composing such Court that the
party accused is or is not, as the case shall appear to them, guilty of the
charge, and by pronouncing judgment therein (as upon a conviction by
verdict) of death if the offence be capital, or of such corporal punishment
not extending to capital punishment as to the said Court shall seem meet;
and in cases not capital by pronouncing judgment of such corporal punishment not extending to life or limb as to the said Court shall seem meet."
Clause 2 provides that the provost-marshal or other officer to be appointed for that purpose by such Governor shall cause the execution of such judgment, according to the warrant under hand and seal, and not otherwise. "Provided always that execution shall not be had or done upon any capital convict or convicts unless five persons present in such court shall concur until the proceedings shall have been transmitted to His Majesty and by him approved."
Clause 3 enacts that the said court shall be a Court of Record, and have all powers incident thereto.[1]
Phillips' commission (of 2nd April) gave him power to pardon and reprieve, to "execute martial law in time of invasion or other times when by law it may be executed," to raise monies by warrant, to grant lands, &c.
Surely more vast powers were never conferred upon any individual by an Act of a legislature and the fiat of a king; and yet there is to be traced some tenderness of the life
- ↑ Phillip's first commission as Governor was dated 12th Oct., 1786 (nearly two months before New South Wales was named by an order as a place to which convicts might be sent), and it made him Governor of all the "territory called New South Wales." An ampler commission defining his powers was issued on the 2nd April, 1787. On the same day Letters Patent constituting the Courts of Law were issued, the Criminal Court being specially authorized to proceed more summarily than was lawful in England. On the 5th May, Letters Patent constituting the Vice-Admiralty Court were issued. The composition of the Court was fixed. The Governor, the Lieutenant-Governor, the Commissary, the Surveyor of Lands, and certain captains and lieutenants were named. An order respecting "Trial of Pirates," made on 20th April, had similarly enumerated the commissioners, thus:-" Arthur Phillip, Esq., Governor, or the Governor for the time being; Robert Ross, Esq., Lieut.-Gov., or the Lieut.-Gov. for the time being: Andrew Miller, Esq., Commnissary of Stores and Provisions (or, &c.); Augustus Alt, Esq., Surveyor of Lands (or, &c.); John Hunter, Esq., Captain of the Sirius; William Bradley, Esq., 1st Lieutenant; Philip Gidley King, Esq., 2nd Lieutenant; George William Maxwell, Esq., 3rd Lieutenant; Henry Lidgbird Ball, Esq., Lieut. and Commander of the supply, armed tender; and all other captains and commanders of Her Majesty's ships who are, or shall be, within the Admiralty jurisdiction of New South Wales."
