First charge fully proved; second Dismissed his ship, and to lose one year's

APPENDIX.

No. I.

As to the Power of the Court in dispensing with the Attendance of any particular Member.

COPY of a LETTER from CAPTAIN M'KENZIE, of H. M. S. the Cornwall, in Hamoaze, to the Secretary of the Admiralty, dated 27th October, 1765.

"Be pleased to acquaint their Lordships, that in obedience to their order of the 10th October, 1765, directing the captain of His Majesty's ships and vessels at Plymouth next in command to Captain Lloyd of the Fame, to assemble a court-martial for the trial of William Skane, a deserter from His Majesty's ship Fame, transmitted to me by Lord Edgecombe, I made the signal for assembling a court-martial on board His Majesty's ship under my command, on Saturday, the 26th instant, but found it impossible to form a court for proceeding to trial, from the following reasons:

"There being nine of His Majesty's ships in commission at this port, none of whose captains are absent upon leave, and the Act directing that no court-martial held by virtue of the said Act 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 court-martial.

"Five captains only did assemble of the ships then and there in commission, so that three were absent, ill health preventing their attendance. It was doubted whether the

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