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. "I am, &c.

"P. STEPHENS, ESQ."

(Signed)

W. HOTHAM."

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.

(Signed)

WM. SCOTT.
A. MACDONAld.
JOHN SCOTT.

F. C. CUST.

July 14th, 1791.

No. VI.

In what cases Commanders may be called upon to sit as Members of a Court-Martial.

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.
JOHN MITFORD.
S. PERCEVAL.”

January 13th, 1797.

No. VII.

Whether the Captain of a Ship lost which renders him in a state of personal Accusation, and subject to Trial by Court-Martial, renders him ineligible to sit himself at a Court-Martial.

CASE.

On the 6th of April, 1798, a court-martial assembled on board His Majesty's ship "Prince," for the trial of William Kerr, a seaman belonging to His Majesty's ship "Phoenix," for desertion. The members composing the Court previous to their being sworn took into their consideration the case and situation of the Honourable Captain Curzon of His Majesty's ship "Pallas," which ship was driven on shore in a violent gale of wind, and wrecked in Plymouth Sound on the 4th of April, 1798; and as Captain Curzon, by the established rules of and practice of the service, would have to be tried by a courtmartial for the loss of the said ship, and was therefore then in state of presumed accusation, the members were ten against three, that the circumstances under which Captain Curzon stood rendered him ineligible to sit at a court-martial. The Lords Commissioners of the Admiralty directed this case to be laid before His Majesty's Attorney-General, Solicitor-General, and the Counsel for the Admiralty, for their opinion on the point in question.

Opinion.

We understand that Captain Fayerman was junior captain to Captain Curzon, and that consequently, if Captain Curzon was qualified to sit upon the court-martial, the Court was illegally constituted by the presence of Captain

Fayerman, and the sentence void.

The question therefore is, whether Cantain Curzon can be considered as a captain and commander hen and there present within the meaning of the 19th sect. of 22 Geo. 2. cap.

367

We think that section was intended to apply only to captains and commanders of resseis then and there present; and that, unless the twenty-first section has the effect of placing Captain Curzon until he should be tried by a court-martial or tischarged from His Majesty's service, or removed into another ship in the same situation, to ail intents and purposes as if his ship had not been lost, he cannot be deemed a cantain or commander within the meaning of the twelfth section. We think that the words. in the twenty-first section, declaring that the command, power, and authority, given to the officers of a ship lost shall remain in force were only intended to apply to the power, command, and authority, which those officers had over their crews before the ship was lost, and to make such officers and their crews liable to punishment for acting contrary to naval discipline after the loss of the ship, and conditionally to preserve their pay; but not to put them generally in the same situation as if the ship had not been lost; and, therefore, it seems to us that the court-martial was properly constituted and their sentence legal.

(Signed) JOHN SCOTT.

Lincoln's Inn, April 17. 1798.

JOHN MITFORD.
SP. PERCEVAL.

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.

"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?

"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