No. IV. Whether Lieutenants who are acting as Commanders are eligible to sit as Members of a Court-Martial. On the 3rd of September, 1789, six seamen belonging to His Majesty's ship "Ambuscade" were tried by courtmartial for robbery, - two of whom were sentenced to suffer death. A doubt arose whether Mr. Thomas Peyton, an acting master and commander, was qualified to sit as a member of the Court; whereupon Rear-Admiral Peyton delayed the execution of the sentence until he should receive instructions from the Admiralty. The case was submitted to the law officers of the crown, and subsequently to the twelve judges, who delivered the following opinion: "To the King's Most Excellent Majesty in Council. 66 May it please your Majesty, "In obedience to your Majesty's commands, signified to us by your Majesty's order in council dated the 2nd September, 1791, we have taken into our consideration the memorial thereby referred to us and the case thereto annexed; and we are of opinion that the court-martial held for the trial of six persons therein named was not legally constituted, because we conceive that Lieutenant Peyton, acting commander of your Majesty's sloop 'Bulldog,' who sat on that court-martial, was not a commander within the meaning of the Act of the 22nd year of His late Majesty King George the Second.* *The above opinion would of course apply also to commanders acting as post-captains. No. V. Position which the Captain of the Fleet is to occupy at a Court-Martial. "Sir, 'Royal William,' 4th July, 1791. "You will be pleased to inform the Lords Commissioners of the Admiralty, that, pursuant to their Lordships' order, the flag-officers and captains assembled this morning on board the said ship for the purpose of composing a courtmartial for the trial of Thomas Jones, a seaman, belonging to his Majesty's sloop 'Speedy,' on charges therein mentioned; but a doubt having arisen in the minds of some of the members whether Sir Hyde Parker (who comes within the number of persons directed by the Act of Parliament to compose the Court) should take his seat at the courtmartial next the junior rear-admiral, as first captain to the commander-in-chief, in preference to captains who will also compose part of the Court, and who are senior to him on the list; or whether he should take his seat as a captain, according to his seniority on the list; I am requested to desire their Lordships will be pleased to order their solicitor to state the case for the opinion of such counsel as they shall think proper on the questions hereunder written : "1st. Whether Sir Hyde Parker, as first captain to a commander-in-chief commanding twenty sail of the line and upwards, being by his seniority on the list of captains within the number of persons directed by the 12th section of the Act of 22 Geo. 2. to compose the Court, has a right to take place at courts-martial next to the junior rear-admiral in preference to captains senior to him on the list, pursuant to the article of the naval instructions, under the title of 'Rank and Command?' "2nd. Supposing Sir Hyde Parker, as first captain to such commander-in-chief, should be admitted to take place next to the junior rear-admiral, whether or not his vote being given in that place, when there are two captains sitting who are senior to him on the list, is consistent with the 7th article of the naval instructions, under the title of 'Courts-Martial,' which directs, that the youngest members shall vote first, proceeding in order up to the president ; and whether or not a sentence being given in such case may not subject the members of the Court to be called on by a superior court of law for illegality in their proceedings. "P. STEPHENS, ESQ." "I am, &c. Opinion of the Law Officers on the above case. Having considered the King's instructions, and the Act of 22 Geo. 2. cap. 33., and the usage which has obtained since that Act passed; we are of opinion, that the first captain to the commander-in-chief, when a member of the court-martial, according to that Act, has a right to take place next to the junior rear-admiral, and to vote according to that rank. On the 27th September, 1796, a court-martial assembled on board H. M. S. "Tremendous," in Table Bay, Cape of Good Hope, for the trial of Duncan Campbell, a seaman belonging to H. M. S. "La Sybille," for absenting himself without leave. The Court was composed of twelve members, two of whom were acting post-captains. It was doubted whether, according to the 12th and 14 sections of the Act 22 Geo. 2. cap. 33. the proceedings of a courtmartial so constituted were legal. The opinion of His Majesty's Attorney General and Solicitor General, and the counsel for the affairs of the Admiralty, to whom the question was referred was as follows: : "We are of opinion that under the 14th section of the Act referred to, the only case in which commanders under the rank and degree of a post-captain can be called to a court-martial, is when there are not less than three nor yet so many as five officers of the degree and denomination. of a post-captain or of a superior rank to be found. And as in the cases stated there were more than five officers of the rank of post-captain, exclusive of Captains Gardner and Kemp, they could not be competent to sit upon the court-martial unless they were of the rank and degree of post-captains. We apprehend that they had commissions only as commanders of sloops, and were appointed to act as captains of the Dodrecht' and 'Lively' during the absence of the officers who were captains of those ships, and we are of opinion that such an appointment pro tempore did not give them the rank and degree of post-captains, and consequently they were not competent to sit upon the court-martial; the proceedings upon which we therefore conceive to have been irregular, and the trial and sentence illegal and void. (Signed) JOHN SCOTT. January 13th, 1797. No. VIII. Case of a Court-Martial proceeding to Trial and Sentence in the presence of a Captain who ought to have been a Member of the Court, but whose arrival was not made known until some time subsequent to the Court being sworn. "A court-martial was sworn at Sheerness on the 14th day of September, 1798, consisting of ten captains only, at half past 11 before noon, to try the surgeon of His Majesty's bomb vessel Zebra,' on charges exhibited against him by the captain of the said vessel. 66 Captain Bennett, commander of His Majesty's ship Amphion' (senior to Sir Charles Lindsay, Bart., of the 'Daphne,' one of the members sworn), arrived at the Great Nore, and went on board the Zealand,' the flag ship of the commander-in-chief, for orders at half past ten, one hour before the Court was sworn, the 'Amphion' then run to the Little Nore, where she anchored at 20 minutes past 12. "The Court, when sworn, was perfectly ignorant of the arrival, and even the appearance, of the Amphion.' Query.-Was such court lawful? 66 "I am, &c. (Signed) H. STANHOPE." Opinion of Mr. Perceval. The question, as I apprehend it, is, whether the captain of the "Amphion" was within the meaning of the words in the 22 Geo. 2. cap. 33. to be considered as then and there present, at the time the court-martial was sworn in He certainly was not so at the time when it was appointed |