existed, which the immediate execution of the sentence might lead to quell, but not in cases where the acts of mutiny for which the prisoners are tried were committed some time previous to the trial. If the mutiny is quelled only in a sufficient degree to enable the authorities to act against the mutineers, as in the case of the fleet in Bantry Bay, in 1801, then it would be proper that such sentences of courts-martial should be carried into immediate

execution.

The Act 37 Geo. 3. cap. 140. authorizes Her Majesty to grant conditional pardons to persons under sentence by naval courts-martial, and to regulate imprisonment under such sentences. The first section of the Act declares, that if His Majesty shall be graciously pleased to extend his mercy to any offender liable to the punishment of death by the sentence of a naval court-martial, upon condition of transportation, or of transporting himself beyond seas, or upon condition of being imprisoned within any gaol in Great Britain, or on condition of being kept to hard labour in any gaol, or house of correction, or penitentiary house, or on any river, the judges of the Courts of King's Bench, Common Pleas, &c., upon such intention of mercy being notified in writing by one of His Majesty's principal secretaries of state, are to allow the offender the benefit of such conditional pardon, in the same manner as if a conditional pardon had passed for that purpose under the great seal. The powers of this Act are confirmed and extended by the 56 Geo. 3. cap. 5.

M

authorised to place Persons in Arrest Arrest should not be of a more severe Complaint to be

Description than the Case requires. preferred to Senior Officer at the earliest opportunity.— Circumstances regarding the Complaint to be fully explained. - The Admiralty or Commander-in-Chief to use their Discretion with regard to trying the Party complained of.-Appointment and Duties of Provost-Marshal.

By the 8th article of the Admiralty Instructions (chap. i. p. 3.), commanding-officers are authorised to place any person in arrest who shall disobey orders, or otherwise misbehave himself. This course is usually adopted preparatory to bringing an officer to trial: If the offence with which he is charged be of a capital or very flagrant nature, it is customary to confine him to his cabin or mess-place, with liberty to walk on deck for exercise at certain periods; but if, on the contrary, the charges are comparatively of trifling importance, it would not generally be considered necessary to place any restraint upon him other than by confining him to his ship. Commanding-officers should be careful that the arrest is not of a more severe description than the circumstances of the case will justify, as for any undue severity they subject themselves to a court-martial for a breach of the 30th article of

war.

Lord Mansfield, in deliveting his charge to the jury in the case of Wall v. Macnamara, said, "In trying the legality of acts done by military officers in the execution of their duty, particularly beyond the seas, where cases may occur without the possibility of application for proper advice, great latitude ought to be allowed, and they ought not to suffer for a slip of form if their intention appears by the evidence to have been upright; it is the same as when complaints are brought against inferior civil magistrates, such as justices of the peace, for acts done by them in the exercise of their civil duty. There the principal inquiry to be made by a court of justice is, how the heart stood? and if there appears to be nothing wrong there, great latitude will be allowed for misapprehension and mistake. But on the other hand, if the heart is wrong, if cruelty, malice, and oppression, appear to have occasioned or aggravated the imprisonment, or other injury complained of, they shall not cover themselves with the thin veil of legal forms, nor escape, under the cover of a justification the most technically regular, from that punishment which it is your province and your duty to inflict on so scandalous an abuse of public trust. It is admitted that the plaintiff was to blame in leaving his post; but there was no enemy, no mutiny, no danger. His health was declining, and he trusted to the benevolence of the defendant to consider the circumstances under which he acted. But supposing it to have been the defendant's duty to call him to

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 3007. 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 1000l. (1 D. & E., 537.)