a military account for his misconduct, what apology is there for denying him the use of the common air in a sultry climate, and shutting him up in a gloomy prison, when there was no possibility of bringing him to trial for several months, there not being a sufficient number of officers to form a court-martial? These circumstances, independent of the direct evidence of malice, as sworn to by one of the witnesses, are sufficient for you to presume a bad malignant motive in the defendant, which would destroy his justification, had it even been within the powers delegated to the defendant by his commission." *

Swinton v. Molloy, C., was an action of false imprisonment, brought by the plaintiff, as purser of the "Trident" man-of-war, against the defendant, who was his captain. The defendant pleaded a justification for a supposed breach of duty; but it appearing in evidence that the defendant had imprisoned him for three days without inquiring into the matter, and had then released him on hearing his defence, Lord Mansfield said, that "such conduct on the part of the defendant did not appear to have been a proper discharge of his duty, and therefore that his justification had failed him under the discipline of the navy. But suppose that Captain Molloy, instead

* In 1823, Captain Hunn, of H. M. S. "Tweed," placed Mr. Hannaford, the master, under arrest, and neglected to inquire into the complaints against him until three days afterwards. On arriving in England the master brought an action, and obtained a verdict against Captain Hunn, with 3001. damages.

of releasing the plaintiff on hearing his defence, had kept him confined till he came to England, and had then made a charge against him, in order to justify himself, the same policy which suffered an action of false imprisonment in that case for the incautious, though upright, conduct of the defendant, would have supported an action on the case, founded on cool deliberate malice and injustice, not covered by a pretence of discipline."*

Information of the arrest should be forwarded at the earliest opportunity to the secretary of the Admiralty, or to the commander-in-chief of the squadron, where there is one, so that the prisoner may be brought to trial as soon as the convenience of the public service will admit.

The officer who makes the complaint should explain the circumstances of the case as fully and clearly as possible, in order that the authorities may judge whether or not it is advisable that the matter should be brought before a court-martial. On the occasion of Vice-Admiral Sir Hugh Paliser preferring charges against Admiral Keppel, the Lords of the Admiralty denied that they had any discretionary power with regard to ordering the court-martial, but that on receiving a complaint, they had no alternative but to issue the necessary directions for the trial of the party complained of. This doctrine, however, can never be maintained, either in point of law or expediency. The act

* In this case there was a verdict for the plaintiff, damages 10007. (1 D. & E., 537.)

which constitutes courts-martial empowers the Lords Commissioners of the Admiralty to appoint officers in the ports of Great Britain or Ireland to hold those courts "as there shall be occasion:" who is to judge of the occasion, except the party to whom the complaint is preferred, and from whom the order for trial must emanate. The commanderin-chief of a fleet on a foreign station may be considered as the chief magistrate of the community placed under his command; if a frivolous, vexatious, malicious, or ill-founded complaint is brought to his notice, and one on which he believes no conviction could legally follow, he should exercise the discretion which a magistrate in a similar case on shore would exercise, and decline to send the case before a jury. The discipline and the efficiency of the navy would be ruined if litigious people could, as a matter of right, demand that all their trivial complaints and bickerings should be made the formal subjects of inquiry at courtsmartial; it would encourage such people in quarrelling, by investing their disputes with an importance which they never deserved. The more often these courts are held, the more often will they be required; by a constant repetition, the minds of both officers and men will become familiarised with them, and the effect produced by the solemnity of the proceedings will be lost.

As soon as the commander-in-chief issues his order for the trial, he appoints some person (usually the master-at-arms of the flag-ship) to act as pro

vost-marshal, whose duty it is to take charge of the prisoner, and keep him in safe custody until he shall be delivered by due course of law. This officer brings the prisoner before the Court, and, during the trial, stands beside him with a drawn sword. The 32nd article of war enacts, that "No provost-marshal belonging to the fleet shall refuse to apprehend any criminal whom he shall be authorised by legal warrant to apprehend, or to receive or keep any prisoner committed to his charge, or wilfully suffer him to escape, being once in his custody, or dismiss him without lawful order, upon pain of such punishment as a court-martial shall deem him to deserve; and all captains, officers, and others in the fleet, shall do their endeavour to detect, apprehend, and bring to punishment all offenders, and shall assist the officers appointed for that purpose therein, upon pain of being proceeded against and punished by a court-martial, according to the nature and degree of the offence." The duty of executing the final sentence of the law devolves upon the provost-marshal.

CHAP. XX.

OBSERVATIONS ON THE FRAMING OF THE CHARGES.

AT courts-martial, the indictment, or, as it is commonly called, the charge, is a written accusation against some person or persons for a breach, or an omission, of the laws relating to the government of the navy. In a former chapter we endeavoured to point out under what circumstances these laws are applicable to persons in the fleet; we now proceed to explain the forms proper to be observed in framing the charge.

1st. It must specify some particular act or omission which constitutes a crime; and the defendant must be positively charged therewith: for instance, in uncleanness, scandalous actions, fraudulent behaviour, unofficer-like conduct, cowardice, disrespect, &c., it would not be sufficient to accuse the defendant generally of these offences, but the precise facts on which the complaint is founded must be set forth, so that the accused may distinctly know on what points he has to defend himself.

It is a rule of law that " every indictment must charge a man with a particular offence, and not with being an offender in general.”*

* Hawkins's Pleas of the Crown, b. 2. c. 25. s. 59.