Act does allow to dispense on any account whatever with the absence of any of the captains or commanders then and there present as are next in seniority to the officer who presides at the court-martial, according to the words of the said Act. I therefore beg you will be pleased to signify this difficulty to their Lordships, that opinion may be had whether the said Act does allow of any such absence of captains, and if it does, under what circumstances, and the proofs which are necessary to justify the legal proceeding of a court-martial.

"I have communicated this to Lord Edgecombe, who has directed me to apply to their Lordships; and as I differ in opinion from Captain Loggie and Captain Collier, who were the gentlemen that raised the difficulty, I shall continue to make the signal, and give my attendance from day to day, until those gentlemen are able to attend, or I receive their Lordships' directions."

Opinion.

It appears to have been the intention of the Legislature, by the Act of the 22 Geo. 2., that every courtmartial should be composed, if possible, of senior officers; but though the words of the statute are, that no courtmartial shall consist of more than thirteen, or less than five persons, to be composed of such officers as are next in seniority to the officer who presides, they can never, I think, be understood to mean that the next in seniority to the president, who happen to be present on the same station with their ships, should all attend in order, at all events, and notwithstanding any impediment whatever, or otherwise, that no legal court can be held. For such a construction seems not only unreasonable, as well as detrimental, to His Majesty's service, by rendering it extremely difficult to make a court, but also to be very contrary to the general tenor of other parts of the Act which appear calculated to expedite justice as much as possible, by permitting five captains to constitute a Court,

and even by allowing commanders to assist where a sufficient number of post-captains is not to be found.

And as I observe that every court-martial has an express power by the 15th section of the statute, to dispense with the presence of any member, and suffer him to go on shore (in case of illness), even after a trial is begun, there seems to be no reason to doubt but that any officer may be excused from attendance by the president of the court, if a just reason is assigned, before a trial is begun; and that they may afterwards proceed to business, if the remaining number of qualified officers is sufficient to constitute a court-martial. I therefore apprehend that Mr. M'Kenzie and the five other captains may legally assemble to try William Skane, if it is taken down in the minutes that the absent and senior officers have certified the president, by letter, or otherwise, of their inability to attend through ill health.

(Signed)

G. HARRIS.

Doctors' Commons, Nov. 4. 1765.

No. II.

The Order for assembling a Court-Martial should be addressed to the first, second, or third Officer in command by Names.

In the month of October, 1767, the Lords Commissioners of the Admiralty issued an order to the senior captain of His Majesty's ships at Plymouth, to assemble a court-martial, for the trial of John Shaw, a seaman, belonging to His Majesty's ship "Fame," for stealing a gun-tackle. The court-martial was accordingly summoned, and the evening before the trial a senior officer came into port, intending to sail early in the morning; but was detained until the afternoon, and after the court-martial

had met. It was doubted whether the proceedings of such Court were legal, as the senior officer present had not attended. Mr. Hussey's opinion on the case was as follows :

"As this is a power given by an Act of Parliament, to try offenders in a particular mode, it must be very strictly pursued; and, therefore, I am inclined to think that Captain Shuldam could not sit as president at a courtmartial, by virtue of this warrant, there being at the same time a captain senior to him in the port; but as it may be doubtful whether, upon the receipt of the order, if he was the senior captain, the jurisdiction might not be attached in him, and consequently the trial legal, I presume to take the liberty to recommend (in the present case) to their lordships the pardoning of the offender, rather than trying him again; and as it may be of importance to the service to obviate any doubts of the same nature for the future, I think the order should be directed to the 1st, 2nd, or 3rd in command, by names, which is more conformable, in my apprehension, to the intention of the legislature, than the direction to the senior, as in the present case.

Whether the Members of a Court-Martial who are called upon to give Evidence must, after doing so, necessarily be excluded from the Court.

CASE.

The Act 22 Geo. 2. cap. 33. sect. 11. enacts, That "from and after the 25th day of December, 1749, it shall be lawful for the said Lord High Admiral of Great Britain, or the commissioners for executing the office of lord high admiral for the time being, and they are hereby respectively authorized from time to time, as there shall be occasion, to direct any

flag-officer or captain of any of His Majesty's ships-of-war, who shall be in any port of Great Britain or Ireland, to hold courts-martial in any such port, provided such flag-officer or captain be the 1st, 2nd, or 3rd in command in such port, as shall be found most expedient, and for the good of His Majesty's service. And such flag-officer or captain so directed to hold courts-martial shall preside at such courtsmartial, anything herein contained to the contrary notwithstanding."

Sect. 12. That "from and after the 25th day of December, 1749, no court-martial to be held or appointed by virtue of this power shall consist of more than thirteen or of less than five persons, to be composed of such flag-officers, captains, or commanders, then and there present, as are next in seniority to the officer who presides at the courtmartial."

Notwithstanding the words in italics in the 12th section, the usage at courts-martial has been for officers who have given evidence at the trials, not to sit as members of the Court, although they were senior to others who sat, and, consequently, would have sat as members if they had not been examined as witnesses.

The Lords Commissioners of the Admiralty having lately received a complaint, in writing, charging an officer of rank in the Royal Navy with one of the offences specified in the Articles of War, which are created and set forth by the above-mentioned Act of Parliament; their Lordships have therefore thought fit to issue their order or warrant in writing to Admiral Sir Thomas Pye, at Portsmouth, requiring him, forthwith, to assemble a court-martial for the trial of the said officer: and it having been suggested to their Lordships, that several officers and commanders of the king's ships at Portsmouth (who, on account of their seniority, must sit as members of the said court-martial, if the letter of the 12th section in the said Act is conformed to) will be summoned as witnesses, either in support of the charge, or in behalf of the accused:

You are therefore requested to advise their lordships whether, in case such senior officers should be called upon to give evidence at the trial, they may likewise sit as members of the court-martial? And also, whether the Court can be legally held without the senior officers (who shall happen to be called to give evidence) in case it is necessary for their juniors to sit as members, in order to make up the number required by the statute to constitute a Court?

Opinion.

The usage of the service is very material upon this case, for naval courts-martial are evidently considered, in the statutes concerning them, as known and established Courts; consequently, in matters not specially provided for, the settled course of proceeding must have great weight. That the characters of witness and judge, are not consistent, is very obvious; and though in the common law of England, there is no challenge to a judge, yet, in the only instance we know where judges were called upon to give evidence in a criminal case, it is observed that they sat no more during that trial. By a strict and literal construction of the statute 22 Geo. 2. cap. 33. sec. 12, neither the prosecutor nor the prisoner would cease to be judges; but this construction would be absurd, and the Act must, from common sense, admit, as the usage is, that officers to whom there is a just ground of exception, or who have a just ground of excuse, shall not be included in the number of those of whom the Court is to be composed; consequently, if an officer, entitled by his rank to sit, is either prosecutor, party, or witness, the person next in seniority must supply his place; and the Court so composed will be legally held according to the intent of the Act.