having run away with one of His Majesty's ship's boats, to the weakening of the service."

The following is an extract of the sentence: "The Court having most maturely and deliberately weighed and considered the evidence in support of the charges, as well as what the prisoners had to offer in their defence, are of opinion that the charges have been proved against the prisoners John Hart, George King, and Thomas Boatham, and do in consequence adjudge the said John Hart, George King, and Thomas Boatham, to be severally hanged by the neck until they are dead, &c."

Thomas Boatham was afterwards recommended to mercy by the Court.

Their Lordships having been pleased to direct the proceedings and sentence to be laid before the Counsel for the affairs of the Admiralty, for his opinion whether there appeared any legal objection to the sentence being carried into execution, that officer gave the following opinion:

"The 15th article of war in the 22 Geo. 2. c. 33. describes three kinds of aggravated desertion to which the punishment of death is annexed absolutely, viz. 1st. Desertion to the enemy, &c.; 2dly, Running away with any of His Majesty's ships or vessels of war, or any ordnance, ammunition, stores, or provisions belonging thereto, to the weakening of the service; and, 3rdly, Yielding up the same cowardly or treacherously to the enemy. The warrant upon which the prisoners were tried professes to describe the 1st and 2nd of these offences; but in the description of the 1st it superadds an offence which is not within this article, and for which the prisoners could not by law have been convicted capitally,―viz. that of endeavouring to desert to the enemy: it even describes the first offence in the alternative that the prisoners deserted or endeavoured to desert to the enemy.' Had this, therefore, been the only charge against the prisoners, I should have been of opinion that the sentence of this court-martial could not legally

have been carried into execution, not only on account of the manner in which the charge was framed, but also on account of the doubts I should have entertained whether the offence described in this article was complete, the prisoners having been most fortunately apprehended whilst they were deserting, but before they had actually deserted, to the enemy, although there is no doubt but that they might have been convicted of desertion under the 16th art., which brings the punishment in the discretion of the court-martial. They have, however, been charged with, and found guilty of, the 2nd offence described in the 15th article, as to which I do not think that the stores need actually be delivered to the enemy, because that would bring the case within the 3rd offence described in this article; and I do not see any objection to the proceedings of the court-martial upon this charge; but still, as the warrant contained a charge,—namely, that of endeavouring to desert to the enemy, which does not warrant a capital conviction, and as the offence of deserting to the enemy was not complete, and as there is no knowing what effect the evidence which was applicable to that charge so improperly framed may have had upon the minds of some of the members of the court-martial,- I would humbly submit to the Lords Commissioners of the Admiralty whether there are not good and sufficient grounds for applying to His Majesty for a commutation of the punishment of these men from death to that of transportation, although at the same time I am bound to say, that, in point of law, I am of opinion the sentence of this court-martial may be legally carried into execution.

"Temple, 1st July, 1810."

(Signed)

T. JERVIS."

No. XII.

As to the Time within which it is necessary to prefer the Complaint in order to justify a Court-Martial in taking cognizance of it.

On the 8th August, 1814, Lieut. Charles T. Leaver was tried by court-martial, for cruel and unofficerlike conduct towards John Ansell, boy, belonging to His Majesty's ship "Martial," and for having by the infliction of excessive punishments caused the death of the said boy.

The following is an extract of the sentence:

"And having heard such part of the evidence in support of the charges as related to the period of the death of the said John Ansell, the return of the said sloop 'Martial' to port, next after that event, the date of the complaint to the Right Hon. the Lords Commissioners of the Admiralty, and the date of their Lordships' order for assembling the said Court, and having considered the same,— the Court is of opinion that the complaints in writing against the prisoner, Lieut. Charles T. Leaver, hath not been made within one year after the return of the said sloop 'Martial,' or of the prisoner into a port of Great Britain or Ireland, agreeably to the said Act of the 22d Geo. 2. c. 33,, and they do THEREFORE acquit the said Lieut. Charles T. Leaver, and he is hereby acquitted accordingly."

(Signed by the Members of the Court.)

The Lords Commissioners of the Admiralty were pleased to direct His Majesty's Attorney-General and SolicitorGeneral, and the Counsel for the affairs of the Admiralty, to state their opinion whether the above was a legal

sentence.

Opinion.

I am of opinion the court-martial has misconstrued the terms of the Act of Parliament. A person charged of any offence against the naval articles of war may be tried by a court-martial ordered for that purpose within three years after the offence committed, though the ship or the accused may have returned to Great Britain more than a year before any complaint be made, or court-martial orderedthe two latter branches of the clause limiting the time of trial to a year after the ship's return, or the return of the accused is a superadded period to the three years mentioned in the former part of the clause, in order to give the extended period of a year after such respective returns of the ship or the delinquents, in cases where no trial could be had within the three years after the offence committed. The same limitation and extension of time applies generally to the complaint of the offence to be made in writing; so that it is sufficient if the complaint be made within three years after the offence committed, though the ship or the party may have returned more than one year before such complaint be made.

As the sentence of the court-martial states the reason for the acquittal to be that the Court did not think they had jurisdiction to try, we are of opinion that the accused may be tried again, and that another court-martial may be ordered to try the offender, and if he should plead his former acquittal, and produce the sentence, it will appear by such sentence that he has never been tried for the offence, from a supposed want of jurisdiction in the courtmartial.

(Signed)

S. SHEPHERD.

(Signed) T. JERVIS.

I entirely concur in this opinion.

I concur with Mr. Solicitor-General in his opinion above

stated.

August 12th, 1814.

(Signed)

W. GARROW.

No. XIII.

Opinion of Mr. Jervis as to whether a Court-Martial can legally assemble and try Lieutenant Dobson late of His Majesty's Ship " Brevdrageren," for an unnatural crime, committed in September, 1809, but not reported until October, 1811, the accused having returned to this Country upwards of one Year.

I am of opinion, that as three years have not expired since the commission of the offence with which Lieutenant Dobson is charged, the Lords Commissioners of the Admiralty may now, in their discretion, direct a courtmartial to be held upon him for such offence, notwithstanding he may have returned to this country more than one year.

November, 1811.

No. XIV.

Whether the inadvertent Omission of the Date, in the Order to assemble a Court-Martial, do not render the Proceedings had in consequence thereof illegal.

On the 27th of July, 1796, Vice-Admiral Murray directed a court-martial to assemble and try George Harvey and William Gleeson, seamen, belonging to His Majesty's ship "Bermuda," for endeavouring to make a mutinous assembly on board that ship. By some inadvertence the vice-admiral's order was not dated: this omission appears to have escaped the observation of the Court, for they proceeded to trial, and sentenced the prisoners to suffer death.

The Lords Commissioners of the Admiralty directed this