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.