contented with the proportion of victuals assigned unto him, or shall spoyle or waste them or any other necessary provision for the ship, or shall go on shore without leave, or shall committ any insolency or disorder, or be found guilty of any other crime or offence, you are to use due severity in the present punishment and reformation thereof without delay, according to the known orders and customs of the seas; and this strict course you are to cause to be duly exercised in your owne and in every other ship or vessell in the fleet," &c.

The principal laws now affecting the Naval Service will be found in the four following Acts of Parliament:

1st. 22 Geo. 2. cap. 33. (This act repeals the 13 Chas. 2. cap. 9.)

2nd. 19 Geo. 3. cap. 17.

3rd. 10 & 11 Vict. cap. 59.

4th. 10 & 11 Vict. cap. 62.

And the Queen's Regulations and Admiralty Instructions issued to the fleet in 1844.

5

CHAPTER I.

CONSTITUTION OF COURTS-MARTIAL.

Constitution of Naval Courts-Martial. Commander-inChief has not, by virtue of his Office only, Authority to call and assemble Courts-Martial. Under what Circumstances Commander-in-Chief may preside at a CourtMartial in Foreign Parts. - Senior Officers of Five or more Ships detached to be empowered to hold CourtsMartial. Case of Commodore Johnstone and Captain Sutton. When it may be improper for the Second Officer in Command to preside at a Court-Martial. Commanders-in-Chief at the Home Ports may be ordered to preside at Courts-Martial. Objections made to particular Officers as Members. When Members are called upon to give Evidence. When Officers under the Rank of Post Captain may constitute a Portion of the Court.Officers receiving official Notification of Promotion. Officers promoted by Commanders-in-Chief not to sit as Members until confirmed in their respective Ranks. — Lieutenants acting as Captains of rated Ships. — When two or more Captains are borne on the Books of one Ship. Officers on Half-Pay, or doing Duty as Secretaries, not eligible as Members of a Court-Martial. Admirals must have their Flags flying at the Port where the CourtMartial is assembled. — Captains must be present with their Ships to be eligible as Members.- Captains of Ships lost not eligible as Members. - Position to be occupied by Captains of the Fleet and Commodores of the First Class when attending as Members. -Cases where the Attendance of Members may be excused. — Officiating Judge-Advocate

to be appointed.

Day.

Court not to be adjourned over One When Circumstances prevent the Court from pronouncing Sentence. Case of Captain Harris, of H. M. S. "Hussar."- Mode of proceeding at the Assembling of the Court. Court not to be discharged from giving their Indgment.

It is to be regretted that the several sections of the act 22 Geo. 2. cap. 33. (from 6. to 14.), which provide for the constitution of courts-martial, should be so ambiguously worded as, in many cases, to leave the meaning and intention of the legislature extremely difficult to define. In proceeding to the consideration of these sections, it may be well to remark, that the explanations which will be given, are in accordance with the usages of the service, usages which are sanctified by time sufficient to make them binding in all future cases, unless it should appear that they are contrary to the spirit of the Act on which they are founded, or to the common law of the land.

Section 6. enacts, "That from and after the 25th day of December, 1749, the Lord High Admiral of Great Britain, or the commissioners for executing the office of Lord High Admiral of Great Britain for the time being, shall have full power and authority to grant commissions to any officer commanding in chief any fleet or squadron of ships of war, to call and assemble courts-martial, consisting of commanders and captains; and that in case any officer commanding in chief any fleet or squadron of ships of war (who shall be authorized

by the Lord High Admiral, or the commissioners for executing the office of Lord High Admiral for the time being, to call and asseinble courts-martial in foreign parts) shall happen to die, or be recalled, or be removed from his command, then the officer upon whom the command of the said fleet or squadron shall devolve, and so from time to time the officer who shall have the command of the said fleet or squadron, shall have the same power to call and assemble courts-martial as the first commanderin-chief of the said fleet or squadron was invested with."

This clause is clearly expressed and needs no comment, except that a commander-in-chief has not by virtue of his office only the power and authority to call and assemble courts-martial in foreign parts, but that power and authority must be vested in him by special warrant from the Lords Commissioners of the Admiralty, which warrant, if the commander-in-chief shall happen to die, or be recalled, or be removed from his command, is to be transferred to, and acted upon by, the officer who succeeds to the chief command of the fleet or squadron.

Sect. 7. "Provided always, and it is hereby enacted and declared, that no commander-in-chief of any fleet or squadron of His Majesty's ships, or detachments thereof, consisting of more than five ships, shall preside at any court-martial in foreign parts, but that the officer next in command to such officer commanding in chief shall hold such court

martial and preside thereat, any law, custom, or usage to the contrary notwithstanding."

This clause would authorise the commander-inchief on a foreign station having under his command, either actually present with him or on detached service, fewer than five officers qualified by rank to sit as members, to preside himself at any courtmartial assembled by his order. The numerous instances that have occurred where the proceedings of courts-martial have been pronounced by the law officers of the crown to be illegal in consequence of commanders-in-chief having sat as members, are where such commanders-in-chief have on the station under their command a sufficient number of officers qualified by rank to form a Court without them. It is, however, a subject deserving much attention, how far a commander-in-chief would be justified in presiding at a court-martial assembled by his order, in a case where he had, prior to issuing such order, investigated the particulars of the complaint by examining witnesses, thereby in a manner prejudging the facts, and probably hearing evidence of a character which he had no business to hear. And, further, whether he could consistently order the execution of a sentence of capital punishment awarded by a Court of which he was a member.

The term commander-in-chief in this section was evidently meant to apply not only as it is technically understood in the navy, but to all officers having the chief command of any number of ships detached from a fleet or squadron, and therefore