In 1787 the First Charter of Justice provided for the establishment of courts of justice in the Colony of New South Wales to deal with criminal and civil matters. In addition to the Letters Patent issued to set up these courts, a Commission was also issued under the Great Seal of the United Kingdom to also establish a Vice Admiralty Court in the Colony, which would represent the Lord Admiral of the United Kingdom who had authority over all matters relating to the sea. Unlike the two local colonial courts, the Vice Admiralty Court was an imperial court with a right of appeal to the British Admiralty Court.
Warrants for commissions were issued appointing Robert Ross as judge, Andrew Miller as register and Henry Brewer as marshal of the Court, followed by Letters Patent issued to Governor Phillip as Vice Admiral and to Robert Ross as Judge under the Great Seal of the High Court of Admiralty.
Their commissions gave them power to deal with all civil and maritime causes according to the maritime laws and customs which prevailed in what used to be called the High Court of Admiralty in the United Kingdom. Spelt out in the Letters Patent, Ross, as Judge of the Vice Admiralty Court was granted
full power to take cognizance of and proceed in all causes civil and maritime and in complaints contracts offences or suspected offences crimes pleas debts exchanges policies of assurances accounts charter-parties agreements bills of lading of ships and all matters and contracts which in any manner whatsoever relate to freight due for ships hired and let out transport money or maritime usury (otherwise bottomry) or which do any ways concern suits trespasses injuries extortions demands and affairs civil and maritime whatsoever … [and] to hear and determine [these causes] according to the civil and maritime laws and customs of our High Court of Admiralty of England in the said Territory called New South Wales and country and islands thereunto belonging.
In addition the Commission empowered Ross to deal with causes of a criminal nature
to search and enquire of and concerning all goods of traitors pirates manslayers felons fugitives … [and] all other trespasses misdemeanours offences enormities and maritime crimes whatsoever done and committed.
Other important provisions included the right of appeal to the High Court of Admiralty in England from decrees of the Vice Admiralty Court in New South Wales, and the right given to Ross as Judge of
deputing and surrogating in your place for and concerning the premises one or more deputy or deputies as often as you think fit.
Further Letters Patent were issued appointing the Governor and other commissioners to exercise jurisdiction in case of “piracies, felonies or robberies” within the jurisdiction of the Admiral appointed Commissioners. The Court so constituted was given authority
for the examining, enquiring of, trying, hearing and determining and adjudging … all piracies, felonies, and robberies and all assessories thereunto committed or which shall be committed in or upon the sea or within any haven, river, creek or place where the Admiral or Admirals have power authority or jurisdiction.
In November 1791 Governor Phillip wrote to Under-Secretary Nepean about difficulties in assembling the Court
… the situation we are in with respect to the Vice-Admiralty Court will be obvious. The Judge, now at Norfolk Island, and about to return to England, the Registrar dead; and not a second person will remain in this colony, after the departure of the Supply and Gorgon, by whom those who have already returned could be replaced.
However when Governor Hunter arrived to take over from Phillip he found these arrangements not to his liking because if he elected to sit as a member of the Court, it would be under the presidency of his junior in rank. He was also extremely unimpressed when several of the appointed members of the Court failed to attend a sitting in 1798. He directed the President of the Court
to Signify the Governor’s entire Disapprobation of a Conduct which seems to border on Contumacy and that the said President do reprimand such Members as have thus subjected themselves to Censure.
It appears that the first sitting of the Court occurred in 1798 when Governor Hunter convened the Court to deal with charges of mutiny and attempted piracy, resulting in the defendant being acquitted through insufficient evidence. However, most of the work of the Court focused on administrative matters. Archive records from the Court describe the granting and revoking of letters of marque and the provision of sureties by masters or shipowners.
Despite the fact that no specific prize commission for the Vice Admiralty Court of New South Wales appears to have existed prior to 1812, the Court did, during periods of hostility, exercise such jurisdiction. The first Prize sittings occurred in May 1799. Henry Waterhouse, as President, ordered that the Spanish vessel Nostra Senora de Bethlehem, captured off Cape Blanco on the coast of Peru by the Cornwall and Kingston, be condemned as “lawful prize”.