respecting the 1788 11 Sept. dence re The court not being clear of the legality of calling in fresh Fresh evievidence, made application to the Judge-Advocate for his opinion jected. thereon, in answ'r to which he informs them that the adducing of fresh testimony, either for or against the prisoners, would be a new tryal. confirmed. The court, therefore, takes no notice of the questions ask'd Decision Serjeant Smith, and that having, with the most mature and strict deliberations, reconsidered the whole of the proceedings, find no cause to alter their original opinion. [Enclosure.] JNO. SHEA, LIST of such Officers, Non-commission'd Officers, Drummers, and Privates as are desirous of remaining in the country after the time their Lordships [Lords of the Admiralty] intended to relieve the detachm't, as express'd in their letter of the 8th October, 1786. New South Wales, 1st October, 1788: 1 Oct. Officers and marines who wish to remain in the colony. All the Officers, Non-commission'd Officers, Drummers, and Private men of the detachm't whose names are not express'd in the above list wish to return to England at the time propos'd by their Lordships' letter of the 8th October, 1786, or as soon after as their Lordships may find it convenient. R. Ross, Major. 1788 14 Oct. Sir, JUDGE-ADVOCATE COLLINS TO MAJOR ROSS. Head-quarters, Sydney Cove, 14th October, 1788. I have to request you will be pleased to transmit one of the enclosed papers* to the Right Honourable the Lords Commissioners of the Admiralty, and lay the other before his Excellency the Governor. I have, &c., DAVID COLLINS, Judge-Advocate. ¡17 Oct. Court- Q.-M. Sir, MAJOR ROSS TO GOVERNOR PHILLIP. Camp, Sydney Cove, New South Wales, 17th October, 1788. Having on the 1st inst. occasion to trouble your Excellency with a letter requesting you would be pleas'd to order a general court-martial to be assembled for the trial of Quarter-master James Furzer, for neglect of duty, contempt, and disrespect to his commanding officer, which letter, prior to its being left at your Excellency's house, I sent by the adjutant to Mr. Furzer, telling the adjutant at the same time that my motive for doing it was in consequence of the friendship I had for Mr. Furzer, and that by his seeing the letter he would have a choice in his power of having the buisiness inquir'd into by a general court-martial, or if he judg'd any other method better or safer for himself he would then Explanation. know what to do; but as Mr. Furzer declares that had my motive for sending him that letter been sufficiently explained at the time he would then have done what he this morning did, and which he hopes would have had the wish'd for effect in preventing the unfortunate steps that have since taken place. I have the pleasure of assuring your Excellency that Mr. Furzer has now taken such steps as are becoming him, both as an officer and a gentleman, and fully satisfies me that the like will not happen again, and as my disposition has ever been a wish rather to convince than punish, I therefore hope that from the same motive your Excellency will be pleas'd to grant my request that Proceedings my letter to your Excellency, together with your warrant, may be withdrawn in so effectual a manner as never to appear to the prejudice of either party. I have, &c., withdrawn. Trouble with the military. R. Ross, Major. GOVERNOR PHILLIP TO LORD SYDNEY.† Sydney Cove, Port Jackson, 27th October, 1788. I am very sorry to be under the very disagreeable necessity of troubling your Lordship with the following particulars, but the very unpleasant situation of the detachment doing duty in this *Collins's opinion on officers' objections to sit on court-martial. Post, p. 210. country, from the discontents between the Commandant and the officers, will, I presume, satisfy your Lordship of that necessity, as I am sorry to say it is not in my power to restore that harmony which is so very requisite in our situation. 1788 27 Oct. court refuse to sit. Having received a letter from Major Ross requesting a general General court-martial on an officer* for neglect of duty, contempt, and martial. disrespect to him, I issued a warrant for assembling a general court-martial; but the thirteen senior officers, when assembled, declared that they could not sit as members of a general court- Officers martial under that warrant, being, as a part of his Majesty's marine forces, amenable only to the authority of the Commissioners for executing the office of Lord High Admiral of Great Britain. The warrant was issued under the authority of his Majesty's Commission for assembling general courts-martial, but they declined sitting under the Act of Parliament made for the Army. reasons Having assigned their reasons in writing to Major Ross (to Their whom the warrant was directed), I have the honor to enclose your Lordship a copy.† ordered. Though the letter from the commanding officer of the detachment was very sufficient grounds for ordering the court-martial, if the officer could have been tried on the spot, as it was now determined that there was no legal authority in this country for ordering a general court-martial on any part of the marine corps, and the officer accused declared himself innocent of every part of the charge, I ordered a court of enquiry to be assembled to Court of enquire into the particulars of the charge, and to report whether inquiry there was, or was not, sufficient ground for a general courtmartial, intending, if the court of enquiry reported that they found sufficient ground, to order a court of enquiry to examine fully into the charge and to report their opinion, which was the only means I had left of doing justice to both parties, as no courtmartial could be held; for though I knew that courts of enquiry always preceded courts-martial, yet in the present instance I was fully satisfied that the warrant I had issued for holding the court-martial was totally done away [with] by the officers having denied the legality of it, as far as it respected themselves, and consequently a court of enquiry perfectly regular; and I had reason to suppose that both parties would have consented to such a determination, no other being possible, under our present circumstances. The court of enquiry met, and I received the following answers, signed by the President :-That had the business been Result referred to them before the application for a court-martial they might then have proceeded with the consent of both parties, but that at present they thought themselves precluded from making any enquiry, and only reported that an application from a commanding officer was always deemed a sufficient ground for a general court-martial (which was never doubted). They had * Quarter-master Furzer. Ante, p. 202. Post, pp. 205, 206. 1788 27 Oct. Officers under arrest. The original charge withdrawn. Taken by surprise 13 Oct. Officers cannot legally sit. refused to sit as members of the court-martial, not deeming the warrant legal, with respect to themselves, as being marine officers, and they now refused to make any enquiry because that warrant had been issued. To order an officer to return to his duty under the same com manding officer whom he was accused of treating with contempt or disrespect, or to let him remain under arrest until he could be tried in this country, might be attended with very disagreeable circumstances, for of seventeen officers composing the detachment five have been put under arrest by their commandant, and are only returned to duty by my order until a sufficient number of officers to form a general court-martial can be assembled, as I have in a former letter had the honor of informing your Lordship. I therefore ordered the evidence on both sides to be taken by the Judge-Advocate, and intended to send them home with the officer, but before that could be done I received a letter from Major Ross, informing me that the officer had fully satisfied him respecting the charge, and desiring that he might be permitted to withdraw his request for a court-martial. I therefore ordered the officer to return to his duty. When the warrant was granted for assembling a general courtmartial, I did not know that an Act of Parliament had been passed for a limited time, by which the marines serving in America had been tried; nor did any officer in the detachment entertain a doubt of the propriety of their sitting under a warrant issued by the authority of his Majesty's commission, until the evening before the court was to assemble, when the doubt arose, on the Judge-Advocate's reading over the oath. The present situation of the detachment will be obvious to your Lordship. I have, &c., [Enclosure.] A. PHILLIP. CAPTAIN CAMPBELL TO MAJOR ROSS. Sir, They further request they may be allowed to accompany you to his Excellency with the statement of their opinion. I have, &c., JAS. CAMPBELL, Captn. [Enclosure.] OFFICERS' OBJECTIONS. THE officers of marines, assembled by order of their commanding officer, for the purpose of holding a general court-martial, beg leave to state the following particulars : 1788 13 Oct Parliament. THE Legislature every year passes an Act for the regulation of Act of his Majesty's marine forces while on shore in any place within the realm of Great Britain, or in any other of his Majesty's dominions, which Act empowers the Lord High Admiral, or three or more of the Commissioners for executing that office, to grant a commission to any officer of the said forces, not under the degree of a field officer, for holding general courts-martial at any place within the intent and meaning of the Act, and to make articles for the punishment of mutiny and desertion. By this Articles of Act of Parliament, and by these Articles of War, the marine forces War. have always been regulated and governed, except during the late war in America, when the marines serving in that country were included in the provisions of an Act of the same Legislature, pass'd in the year 1775, for the purpose of amending and rendering more effectual in his Majesty's dominions in America an Act for punishing mutiny and desertion, and for the better payment of the Army and their quarters. Parliament. At the succeeding sessions the usual Act for the regulation of Act of the marine forces while on shore was passed, that is for the regulation of such part of the corps as were not in America, for the marines were included in the Act for the punishment of mutiny and desertion amongst the troops serving in that country; and at all general courts-martial where marine officers sat in conjunction with those of the land forces, or appear'd before a military tribunal, they were guided and directed by the articles of war for the Army. court by warrant. In the oath prescribed by the (Marine) Act of Parliament the members swear not to divulge the sentence of the court until it shall have been approved by the Lord High Admiral, or three or more of the Commissioners for executing that office. Nor does it General appear in that Act of Parliament that they can assemble for the martial can trial of any marine officer or soldier but by warrant from the only be held Admiralty. The Judge-Advocate is also directed to transmit the original proceedings and sentence of every court-martial to the Secretary of the Adm'lty, as no sentence can be put in execution until a report shall have been made of the whole proceedings to the Board. Neither can a commiss'd marine officer be dismiss'd the service except by an order from his Majesty, or by the sentence of a general court-martial, approved by their Lordships. Hence it plainly appears that this Act of Parliament is meant Special for the internal regulation of the marine forces, and that whenever legislation |
