Mt Fornochy took a different and more serious view of his duties, and the course he adopted led to the consideration of the questions propounded by His Excellency the Governor.
First. With reference to the Stipendiary Magistrate, I do not know whether the Portal Convention was brought to his notice in any way or not. If it had been, I am clearly of opinion that as an administrative Officer, he was not the proper authority to put a construction upon it (it being a case of first instance). In any event, had he refused the Warrant he would have taken upon himself a responsibility which he would not have been justified in assuming.
Secondly. With regard to the Marshal, although the instructions I have already quoted seem to place certain limits on his duties, the words of the Warrant which put him in motion, enjoin him "to keep under safe and secure arrest until good and sufficient bail shall have been given" any ship arrested by him. In the last book, it is laid down that the duties of the Marshal are analogous to those of the Sheriff, and he becomes
Page 3
555