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[Page 2]
than such designated number; and the Act of parliament, on which the Patent for establishing courts of criminal Jurisdiction in this Country is founded declares in specific terms, that such Courts shall consist of six Officers of His Majesty's Sea or land Forces and of his Judge Advocate for the time being; it follows therefore a factiori [factor ?] that such Six Members possessed no legal authority to take the Prisoner out of my custody, and to render him to his former Bail. Should it nevertheless be insisted, that that they were invested, with such authority, I however object to the determination, it being a point on which if any possible doubt can exist in the minds of dispassionate men cannot be decided here, and must be referred to His Majesty's Ministers, for their instructions respecting it.
I contend they were not vested with such authority: for when the Prisoner appeared with his Bondsmen at the Bar of the Court, before which he was to be tried the Bond then became null and void, his former Bail were no longer responsible for him, they were free from the condition and the obligation of the Bond, and the Prisoner was then in my custody, and if the Court afterwards, on application from the prisoner, or his Counsel was