THE COURTS OF LAW. 215 While the Criminal Court was evidently formed on the basis of the Court-martial in England^ it was essentially different both in its constitution and its practice. The first and most important point in which this difference appears is the position of the Judge- Advocate. In England, that The Jud^e- office was held by a lawyer whose duty it was, not to pre- EngSSd. "^ Bide as a judge, but to conduct the case and to advise the Court on legal points, especially points of evidence. The strictly judicial duties were discharged by the President of the Court ; but as the person appointed to that office was usually a military man, he was not professionally qualified to deal with legal questions. Trial by Court-martial, in England, was substantially conducted according to the rules of the common law ; and consequently it was necessary that the Court should be properly advised on such matters of law as might arise before it. That was the province of the Judge- Advocate. He had no voice or vote so far as the a lawyer, judgment of the Court was concerned, either on the main judge^o* question or on interlocutory points ; he could only advise. * "'^™*°* Besides acting as prosecutor for the Crown, he was also supposed to assist the prisoner in his defence, in the same manner that judges in the ordinary Criminal Courts are said to be of counsel for him. By this means a fair trial was ensured for the prisoner; so far at any rate that no ad- vantage was taken of him in the examination of witnesses or in the discussion of legal questions.* The Judge- Advocate of the Court created by the Letters The judge- Patent of 1787 bore very little resemblance to the Judge- the colony. Advocate of the English Courts. The first person appointed to the office being a captain of marines, he was not in a position to discharge the duties of a legal adviser. The Not a Court was consequently under the necessity of administering
- Tytler, p. 349. The report of the trial of Lientenant-Colonel Johnston,
for mutiny m arresting and deposing Governor Bligh, hdd before a Genend Court-martial in 1811, furnishes a good illustration of the practice in those Courts. The Court was composed of fifteen military officers ; Lieutenant- General Keppel beine President, and the Bight Honorable Charles Manners Sutton the Judge- Advocate. Digitized by Google
