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. 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. "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 "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 |