Number 21.
Sir,

Under Cover with this Letter you will receive the Original Determinations of several Courts Martial held by my Appointment at this port, and since my Arrival in this Country, as stated in the Schedule enclosed.

I have to observe of those held by my Appointment, that James Woolspring, a Seaman belonging to the Phoenix, adjudged to suffer Death, was necessarily kept in close Confinement to prevent his Escape near two Months: the Circumstances of the Fleet being such, that under the Restrictions of the Act of the 22d of his late Majesty, no Court Martial could be sooner assembled for his Trial, consistent with a due Attention to the more important Duties on which the Captains were engaged. Therefore, in consideration of his extraordinary Sufferings by that long Confinement; And that, by the Dispersion of the Ships of War ordered to different Stations, the Example could not have had an equal Effect for discountenancing the like Crimes in others; I have been induced to respite the Sentence, in the Hope, through their Lordships Interposition, to obtain from His Majesty's Indulgence, a pardon for the Criminal in this Instance.

The Restrictions in the Act to which I now allude, regard more particularly the XVth Clause: Whereby it is enacted, "That no Member of any Court Martial after the Trial is begun, shall go on shore until Sentence be given &ca &ca upon pain of being cashiered from His Majesty's Service."

By this Clause it is conceived, that a Captain quitting the Ship as therein mentioned on any the most urgent Occasion, (Sickness excepted) until Sentence be given, becomes immediately, or is liable on Information to be, divested of his Command.

Several of the Ships attending the Operations of the Army have been necessarily appointed to fixed Stations within the Limits of this port, for express purposes of Military Service: Such as the Strengthening of Ports from whence it has been then thought expedient to draft a part of the Force for other Objects; Covering the Flanks of advanced Corps of the Army; Being themselves advanced from the Fleet, on that side from whence some probable Enterprize by the Enemy was to be expected; Attached to the Guard of Transports under the same Circumstances; Or kept in constant Readiness to proceed on any occasional Service: Relative to which last Instance, the Notice has been in some Cases so short, that I have been obliged to go on the Moment and order One of those detached Frigates immediately underway, for the purpose then pointed out.

These Situations, confined to the Case of a Fleet or Squadron employed on Military Service in port, are such as will not allow the Captains to quit their Ships, subject to an Absence of Uncertain Duration. Whence it must happen on similar Occasions, that Duties most essential for the purpose of the Armament must be disregarded, Or that—The Fleet must remain precluded from the Benefits attending the only Means by Law provided for maintaining Order and Good Discipline; which, if they may be deemed more requisite at any one time than another, are so when the Fleet is engaged in actual Military Service as aforesaid.

The Circumstances of a Fleet at Sea are not very different. Fleets at Sea are always subject to a sudden Discovery of the Enemy's Fleets, if not purposely stationed in quest of them. The Ships are liable to be dispersed by Fogs, bad Weather, and other unforeseen Accidents. The Commander must therefore either risk the Consequences of those Events, or decline the Use of Courts Martial in the Government of his Fleet, under the Restrictions that now subsist.

It may be said of the Inconveniences I have before stated in Objection to the Assembling of Courts Martial in port, that (excepting the Confinement of the Members until Sentence is given) they may be still composed of those Captains of the Fleet who are not then so circumstanced, but that their Absence from their respective Ships may be with propriety admitted.

According to the Sense in which I have always read the Clause XII, a Court Martial so constituted might legally proceed to Trial. But I find a different Opinion is entertained concerning the Interpretation of that Clause, in this Fleet: Founded very much upon what is said to be the Usage in the Western ports of England; where it is held, that the Words of the Clause — "Then and there present," applied to the Officers next in Seniority to the President, are [to] be understood of all the Captains of the Ships that are then in View within the Limits of the Port; and not confined to the Captains present, in compliance with the Signal on board the Ship in which the Court Martial is to be held. This Construction prevailed so strongly upon an Occasion in which I was concerned towards the Close of the late War that, because a Captain, Senior to some who attended the Signal but posted with his Ship several Miles from the Anchorage where the Body of the Squadron lay, did not quit a Charge of much importance to take his place at a Court Martial ordered, the other Captains assembled for the purpose, concurred in Opinion that they could not therefore legally proceed to Trial. And Tho' the Charge (as I recollect) was on a case of Mutiny, the Trial was necessarily postponed on that account.

These Inconveniences and Restraints on the Due Administration of Justice, having recently occurred in the Government of the Fleet I have now the Honor to command, it becomes a particular Duty in me to make Report thereof: To have the Benefit of their Lordships Instructions on such points as are dependent for Remedy on their immediate Authority; Or that they may be submitted for Consideration, where the Interposition of Parliament is requisite, as their Lordships in their Wisdom shall see fit.

With the Judgments of the Courts Martial held by my Appointment, you will receive Three others enclosed. One, the Original Sentence of the Court, and the two others only Copies of such Sentences. The first passed in a Court assembled at Halifax by Order of Captain Brisbane, for the Trial of Lieutenant Knight, late Commander, and Mr Tho Spry, Second Master, of the Diligent Armed Schooner, taken by the Rebels in July 1775. The two last, in Courts assembled in the same port by Order of Captain Jacobs; And in consequence of which, the Punishments adjudged have been inflicted by his further Direction.

These Courts Martial have been called, and the Trials proceeded upon, under the sole Authority of the Officer presiding at each, without any Communication with me. Captain Brisbane, and all the Captains composing the first (Captain Gidoin excepted) were at that time acting in every other Matter by my particular Appointment. Captain Jacobs was then under Orders from their Lordships and on his passage to join me at this port; The other Members of those Courts being under the Circumstances as in the former Instance. I am therefore to request I may be instructed how far the Proceedings in these several Cases are to be deemed regular and valid. That if those under the Order of Captain Brisbane should be (as I conceive) unwarrantable, I may be informed in respect to the Inquiry that will then remain to be made into the Conduct of Lieutenant Knight; and for determining the period from which the pay of the Officers and Crew of the Armed Vessel is to cease. And also in regard to the Precedent, that the true Construction of the IXth Clause of the Act of the 22nd of His late Majesty, on which those proceedings have been founded; may be made known; As well for the Government of the Captains of the Fleet in future, as for my Guidance also. For I humbly apprehend, that Clause is to be only understood with relation to any five (or more) Ships meeting together in foreign Parts, not then actually forming, or being under appointment to form a part of any Squadron in the Commander of which the power to assemble Courts Martial is supposed to be vested: Since, if such Special Provision had not been made for Ships of that Description, they could not receive the Benefit from the Act in this particular intended.

If the Act, imperfect and inadequate to the purpose of its Institution, as I presume to think, should be revised, an Explanatory Amendment of this Clause will, I apprehend, be requisite. By this Clause, as it is now worded, the Senior of any five (or more) Commanders not under the Degree of a post-Captain (and consequently a Commander of superior Rank) who "happen to meet together in foreign Parts," is vested with a power, at any time, to hold Courts Martial. — A power of such Consideration, and so guarded in a preceding Clause (VI) of the Act, that the Authority of the Admiralty is made requisite for qualifying the Commander in Chief of a Fleet or Squadron to exercise it "in foreign parts," under other Circumstances. That is to say, of Ships meeting there together not accidentally, but by Destination. And such Commander in Chief is expressly enjoined (Clause VIII) to delegate that power to Commanders under him, whom he may see occasion to detach with a Part of his Fleet on a separate Service: As if the Sense of Parliament had been in these two last Instances, that Courts Martial could not be otherwise legally assembled by Those Officers.

Having been taken ill very soon after the arrival of the Amazon, and Captain Jacobs sailed for Rhode Island before I was able to attend to Business; I did not discover till many Days after he went from this port, that the Determination left of the Courts Martial held by his Order, were only Copies of those proceedings. The Minutes of the several Courts Martial referred to in this Letter, that have yet been made up and delivered to me, are sent herewith under other Covers.

I must further beg leave to submit to their Lordships' Consideration, another Matter, which remaining in the present unregulated State, will in the Circumstances of this Fleet be attended with very great prejudice to the public Service; I mean with respect to the Insufficiency of my Powers to restrain by proper Punishments, the criminal excesses of every kind committed by some of the Seamen belonging to the Transports in the Service of Government: In cases of Theft, Drunkenness and Disobedience, Striking their Masters, and other Irregularities respecting their Duty in the Ships: Breaking open the Houses; plundering and wasting the property of the inhabitants without Distinction, as the Troops have advanced along the Coasts; wherein they have proceeded to such lengths, that I have been obliged to order severe Corporal punishments to be inflicted on the Off enders, to prevent those Violences being carried to greater Extremities, through a persuasion that no legal Restraint could be laid upon them. And I am to request their Lordships' Coun.tenance in these necessary Measures, when it may be requisite; And for obtaining such legal Opinions for my Guidance in future Instances of a similar Nature, as the Circumstances will authorise. I am Sir [&c.]

P.S. Since the Conclusion of this Letter as above written, I have received two Judgments of Courts Martial assembled by Order of Sir George Collier at Halifax upon the same principle as that on which Captain Brisbane was induced to proceed on the Trial of Lieutenant Knight. I have added these, and the Minutes transmitted with them, to the others as before mentioned.

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