and summoned; and it appears to me that his presence ought to have been known to the court-martial, in order to make their proceedings without him illegal. It appears further that he did not come to an anchor till after the court-martial was sworn in. I do not see how the line can be drawn to exclude any senior captain who may be sailing within sight when the court-martial is assembled, unless by holding that he must come to an anchor before it is so assembled. I am, therefore, of opinion that the court-martial may legally proceed with the trial and the

sentence.

Lincoln's Inn, Sept. 16. 1798.

(Signed) SP. PERCEVAL.

No. IX.

Whether the Captain of a Ship that has sailed from, and is out of sight of, but still within the Limits of, a Port, ought to sit as a Member of a Court-Martial assembled at such Port, and whether its Proceedings are invalidated by his Absence.

COPY of a LETTER from REAR ADMIRAL the HONOURABLE GEORGE BERKELEY to ADMIRAL MILLBANK, Commander-inChief of H. M. Ships at Portsmouth, dated 31st March, 1800.

"Sir,

"In obedience to orders I received, directing me to assemble a court-martial on board H. M. S. Gladiator,' the signal was made; and, upon calling over the Court, an objection was started by Captain Pickmore to the legality of it, as not consisting of the thirteen senior officers at this port, according to the Act of Parliament, as Captain Foley, of the Elephant,' was not present.

"I therefore think it my duty to state to

stance as it happened, that you may lay it before the Lords Commissioners of the Admiralty, that such obstructions may not arise to the service in future from objections being made which their lordships may possibly deem frivolous.

"The Elephant' weighed from Spithead this morning before 8 o'clock, and was on her passage to St. Helen's, at which hour the signal was made for a court-martial to be held. The weather came on very thick soon afterwards, which precluded the officer who is stationed for that purpose from seeing and reporting her being actually there. Under the impression, therefore, that she might possibly be at Spithead, Captain Pickmore started this objection; and the Court was obliged to adjourn.

"It becomes necessary, therefore, that some regulation should be laid down to guide future courts-martial, as, by thick weather coming on at any time, it is in the breast of any one officer to surmise that ships may be anchored or not, and to break up a court-martial, by which, as in the present instance, much inconvenience may arise to the service.

The court-martial undoubtedly must consist of the senior officers present at the station or port where it is assembled; nor do I think it possible to lay down any general rule by which the meaning of the word present can be defined. What is or is not a presence to satisfy the Act must depend upon the circumstances of each case. But it seems to me that in this case, where it is stated that the captain in question had actually set sail from the station, and was, in point of fact, from whatever cause (after having so set sail), out of sight, he must be considered, to all intents and pur

S

poses of this Act, not present so as to require his attendance to constitute a member of the board.

April 5. 1800.

(Signed)

S. PERCEVAL.

No. X.

Whether a Court-Martial may legally proceed to Trial in the Absence of senior Officers, who are present in Port, but detained with their Ships in Quarantine.

CASE.

By the 12th section of the Act 22 Geo. 2. c. 33., for the government of the Royal Navy, under which Act naval courts-martial are constituted, it is enacted, "That no court-martial to be held or constituted by virtue of this present 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 courtmartial."

The object of requiring that they should be taken according to seniority is to prevent any partial selection of judges. The Act makes no provision for the case of officers in the command of ships present at the port where the Court is to be held, who may, by reason of illness or other controlling cause, be incapable of attending to be sworn as members of, and to assist at, a court-martial, according to their seniority, as prescribed by the 12th section of the Act above set forth.

The 19 Geo. 3. c. 17. s. 2. enacts, "That the proceedings of any court-martial shall not be delayed by the absence of any of its members, provided a sufficient number doth remain to compose such Court, which is hereby re

quired to sit from day to day (Sundays excepted) until the sentence be given;" and that no member of the Court shall absent himself therefrom during the whole course of the trial upon pain of being cashiered, except in case of sickness or other extraordinary and indispensable occasion to be judged of by the said Court.

In order to bring this clause into operation, it is necessary that the Court shall have been formed and assembled; but the enactment of the 12th section of the former Act, which regulates the constitution of the Court, remains unaltered.

It has happened, when it has become necessary to assemble a court-martial, that officers present with their ships at the port where the Court is to be held, and who, according to their seniority, ought, in compliance with the terms of the 12th section, to be members of it, have been prevented from presenting themselves to form part of the Court by reason of illness, or of being with their ships under quarantine (and therefore restrained by law from holding communication with other persons not also in quarantine), at the time when the court-martial has been ordered to assemble; and that officers junior to them, but qualified in all other respects, have attended as members of the court-martial, and who, indeed, in many cases, would actually form part of the Court, even if the first-mentioned officers did attend to make up the number requisite to constitute a court-martial.

The Lords Commissioners of the Admiralty, having in view a case in which certain officers next in seniority to the officer ordered to assemble a court-martial were prevented, by being under quarantine, from attending to be sworn as members of the Court, whereby the public service was retarded, as it was not deemed right to form the Court of junior officers in the presence of officers senior to them, directed Her Majesty's Attorney-General, SolicitorGeneral, and counsel for the Admiralty, to state "whether, in cases where any officers next in seniority to the officer

who is to be the president of a court-martial, shall, by illness, or by reason of being in quarantine, or under any other unavoidable circumstances, be rendered incapable of giving their attendance, the absence of such officers, provided there is a sufficient number present of others properly qualified and next in seniority (with the exception only of the officers thus incapacitated from attending), would render illegal the constitution of the Court, within the spirit and intention of the legislature?"

Opinion.

We are of opinion that a court-martial constituted under the circumstances supposed would be legally constituted, although officers next in seniority to the officer who is president of the Court do not serve upon it, they being prevented from doing so by illness or other unavoidable cause.

Whether the Act of endeavouring to desert to the Enemy justifies a capital Punishment.

By the minutes of proceedings at a court-martial held on board His Majesty's ship "Salvador del Mundo," in Hamoaze, on the 26th June, 1810, it appears that John Hart, Geo. King, and Thos. Boatham, seamen of His Majesty's ship "Defiance," were tried "for having on the night of the 1st of the said month of June deserted or endeavoured to desert from her to the enemy, and for