It appeared by the letters patent under the great seal of Great Britain, which were read after the governor's commission, that 'the appointment of the place to which offenders should be transported having been vested in the crown by an act of parliament, his Majesty, by two several orders in council, bearing date the 6th of December 1786, had declared, that certain offenders named in two lists annexed to the orders in council should be transported to the eastern coast of New Holland, named New South Wales, or some one or other of the islands adjacent:' and it being deemed necessary that a colony and civil government should be established in the place to which such felons should be transported, and that a court of criminal jurisdiction should also be established therein, with authority to proceed in a more summary way than is used within the realms of Great Britain, according to the known and established laws thereof, his Majesty, by the 27th Geo. 3. cap. 56. was enabled to authorise, by his commission under the great seal, 'the governor, or in his absence the lieutenant-governor of such place, to convene from time to time, as occasion may require, a court of criminal jurisdiction, which court is to be a court of record, and is to consist of the judge-advocate and such six officers of the sea and land service as the governor shall, by precept issued under his hand and seal, require to assemble for that purpose.' This court has power to inquire of, hear, determine, and punish all treasons, misprisions of treasons, murders, felonies, forgeries, perjuries, trespasses, and other crimes whatsoever that may be committed in the colony; the punishment for such offences to be inflicted according to the laws of England as nearly as may be, considering and allowing for the circumstances and situation of the settlement and its inhabitants. The charge against any offender is to be reduced into writing, and exhibited by the judge-advocate: witnesses are to be examined upon oath, as well for as against the prisoner; and the court is to adjudge whether he is guilty or not guilty by the opinion of the major part of the court. If guilty, and the offence is capital, they are to pronounce judgment of death, in like manner as if the prisoner had been convicted by the verdict of a jury in England, or of such corporal punishment as the court, or the major part of it, shall deem meet. And in cases not capital, they are to adjudge such corporal punishment as the majority of the court shall determine. But no offender is to suffer death, unless five members of the court shall concur in adjudging him to be guilty, until the proceedings shall have been transmitted to England, and the king's pleasure signified thereupon. The provost-marshal is to cause the judgment of the court to be executed according to the governor's warrant under his hand and seal.
The resemblance of this to the military courts may be easily traced in some particulars. The criminal court is assembled, not at stated times, but whenever occasion may require. It is composed of military officers (the judge-advocate excepted, whose situation is of a civil nature) who assemble as such in their military habits, with the insignia of duty, the sash and the sword. Their judgments are to be determined by the majority; and the examination of the witnesses is carried on by the members of the court, as well as by the judge-advocate. But in other respects it differs from the military courts. The judge-advocate is the judge or president of the court; he frames and exhibits the charge against the prisoner, has a vote in the court, and is sworn, like the members of it, well and truly to try and to make true deliverance between the king and the prisoner, and give a verdict according to the evidence.
When the state of the colony and the nature of its inhabitants are considered, it must be agreed, that the administration of public justice could not have been placed with so much propriety in any other hands. The outward form of the court, as well as the more essential part of it, are admirably calculated to meet the characters and disposition of the people who form the major part of the settlement. As long confinement would be attended with a loss of labour, and other evils, the court is assembled within a day or two after the apprehension of any prisoner whose crime is of such magnitude as to call for a criminal proceeding against him. He is brought before a court composed of a judge and six men of honour, who hear the evidence both for and against him, and determine whether the crime exhibited be or be not made out; and his punishment, if found guilty, is adjudged according to the laws of England, considering and allowing for the situation and circumstances of the settlement and its inhabitants; which punishment, however, after all, cannot be inflicted without the ratification of the governor under his hand and seal.
Beside this court for the trial of criminal offenders, there is a civil court, consisting of the judge-advocate and two inhabitants of the settlement, who are to be appointed by the governor; which court has full power to hear and determine in a summary way all pleas of lands, houses, debts, contracts, and all personal pleas whatsoever, with authority to summon the parties upon complaint being made, to examine the matter of such complaint by the oaths of witnesses, and to issue warrants of execution under the hand and seal of the judge-advocate. From this court, on either party, plaintiff or defendant, finding himself or themselves aggrieved by the judgment or decree, an appeal lies to the governor, and from him, where the debt or thing in demand shall exceed the value of three hundred pounds, to the king in council: but these appeals must be put in, if from the civil court, within eight days, and if from the governor or superior court, within fourteen days after pronouncing the said judgments.
To this court is likewise given authority to grant probates of wills and administration of the personal estates of intestates dying within the settlement. But as property must be acquired in the country before its rights can come into question, few occasions of assembling this court can occur for many years.
In addition to these courts for the trial of crimes, and the cognisance of civil suits, the governor, the lieutenant-governor, and the judge-advocate for the time being, are by his Majesty's letters patent constituted justices for the preservation of the peace of the settlement, with the same power that justices of the peace have in England within their respective jurisdictions. And the governor, being enabled by his Majesty's commission, soon after our arrival, caused Augustus Alt esq. (the surveyor-general of the territory) to be sworn a justice of the peace, for the purpose of sitting once a week, or oftener as occasion might require, with the judge-advocate, to examine all offences committed by the convicts, and determine on and punish such as were not of sufficient importance for trial by the criminal court.
There is also a vice-admiralty court for the trial of offences committed upon the high seas, of which the lieutenant-governor is constituted the judge, Mr. Andrew Miller the registrar, and Mr. Henry Brewer the marshall. The governor has, beside that of captain-general, a commission constituting him vice-admiral of the territory; and another vesting him with authority to hold* general courts-martial, and to confirm or set aside the sentence. The major-commandant of the detachment had the usual power of assembling regimental or battalion courts-martial for the trial of offences committed by the soldiers under his command.
[* Captain Collins, the judge-advocate of the settlement, had also a warrant from the Admiralty appointing him judge-advocate to the marine detachment.]
By this account of the different modes of administering and obtaining justice, which the legislature provided for this settlement, it is evident that great care had been taken on our setting out, to furnish us with a stable foundation whereon to erect our little colony, a foundation which was established in the punishment of vice, the security of property, and the preservation of peace and good order in our community.
The governor having also received instructions to establish a settlement at Norfolk Island, the Supply sailed for that place about the middle of the month of February, having on board Lieutenant King of the Sirius, named by Capt. Phillip superintendant and commandant of the settlement to be formed there. Lieutenant King took with him one surgeon (Mr. Jamieson, surgeon's mate of the Sirius), one petty officer (Mr. Cunningham, also of the Sirius), two private soldiers, two persons who pretended to some knowledge of flax-dressing, and nine male and six female convicts, mostly volunteers. This little party was to be landed with tents, clothing for the convicts, implements of husbandry, tools for dressing flax, etc. and provisions for six months; before the expiration of which time it was designed to send them a fresh supply.