116 PHILLIP 1788 done; the Major had to forego his revenge, and Phillip ordered the five officers to return to duty, until a sufficient number of officers to form a General Court-martial could be assembled. A fourth This disturbance was no sooner disposed of than it seems disturbance. ^ j^avo been foUowcd by another, which gave rise to more technical discussions on points of military law between the Governor and the marines. Phillip apologised to Lord Sydney for troubling him with the details of it in a de- spatch, but excused himself on the ground that '^ the very unpleasant situation of the detachment doing duty in this country, from the discontents between the Commandant and the officers," rendered it necessary to do so — especially as it was not in his power '^ to restore that harmony which is so very requisite in our situation." He had received a letter from Major Ross requesting him to assemble a General All officer Court-martial for the purpose of hearing a charge which with insub- the Major had made against one of his officers "for neglect of duty, contempt, and disrespect to him." The Governor issued his warrant accordingly, but when the thirteen officers were assembled, a question was raised as to the legality of the proceedings. The warrant was issued under the authority of his Majesty^s Commission for assembling General Courts-martial; but the marines "declared that A nice point, they could uot sit under that warrant, being amenable only to the authority of the Commissioners for executing the office of Lord High Admiral of Great Britain."* Phillip New South Wales might consist of any number of commissioned officers not less than five. But, before this Act, it was provided in previous Mutiny Acts that a General Court-martial might consist either of thirteen or nine com- missioned officers, as the case might require, " unless the same shall be holden in any place beyond the seas, in wnich case the Court might consiat of any number not less than seven.'*— Tjrtler, Military Law, p. 134.
- The facts are stated by Collins, p. 44. The officers do not seem to have
had any doubt as to their power to decide a purely legal question of juris- diction. ** A General Court-martial assembled by special warrant for the trial of a particular person named in that warrant must discharge their duty by taking cognisance of the crime and pronouncing sentence, either of cod* demnation or of acquittal from the matter of charge. It has been doubted whether it is competent for a Court so constituted to exercise any judgment Digitized by Google
