408 A QUESTION OF INTERPRETATION. 1789 would have retired with the jury and given his vote as one of them. . A Court so constituted presents such a violent con- trast with an English Court of justice, that one is tempted to ask whether it was really the intention of the Legislature intentkm that law should be administered in that fashion. So far as Legislature, its expross words are concerned, there is little or nothing in the Act to show that the Judge- Advocate was intended to perform any other duties than those which belonged to his office in England. That the regimental or garrison Court- martial was taken as the model of the Court is shewn by the persons appointed to compose it; and it is a fair inference, therefore, that it was intended to follow the usage of such Courts.* If, on the other hand, it was intended that the practice of the Court-martial should not be followed as regards the functions of the Judge-Advocate, but that a Court should be created of an entirely novel character, it is reasonable to suppose that the intention would have been more clearly expressed than it was. It is difficult to believe that Parliament intended to introduce a method of adminis- No prece- toring justioe for which there was no precedent, which had such a nothing to recommend it in the shape of convenience, and which would naturally pcovoke suspicion as to its imparti- ality. But whatever conclusion may be come to on this
- Speaking of the regimental Court-martial, Tytler says (p. 177) : — "The
usual practice is to appoint a captain as president and four subalterns.*' If Phillip had thought fit to appoint a president whenever he convened the Court, there was nothing in the Act to prevent him; and he might have reasonably come to the conclusion that the usage of the Court-martial should be followed as far as it was practicable. As a matter of fact, it was followed in several points — as, for instance, (1 ) the keeping of a roster by the adjutant; " it is customary in every regiment for the adjutant to keep a regular roster for their instruction in this as well as in all other regimental duties "; (2) the presence of the officers in Court in full uniform, and (3) the order in which the votes were given — "the youngest members of the Court being required to give his opinion first, and the rest following in progressive seniority up to the President, who votes last;" ib., p. 152; Tench, Narra- tive, p. 70. These rules were adopted without any express instructions, and tney show that the Court was guided in ito practice by the usace of the Court-martial. It might also have been argued that the use of the term Judge- Advocate in the Act, without any words of definition as to his dutie^ implied that it was intended to mean in the colony what it meant in England; just as the word Provost-Marshal was interpreted on the same principle. Court. Digitized by Google
