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mand, on a charge of offending against the articles provided by statute for the government of the navy, or the custom thereof. That the reason why judges and jurors are not liable to such an action is, that if an action could be brought in every particular instance, the frequency of such suits would either deter men from undertaking such offices, or prevent them from acting up to their duty, from the dread of being harassed with vexatious actions, whereby the public service would suffer; and this reason does equally apply to the case of a Commander in Chief, who is also bound to inquire and prosecute on behalf of the public; for if this action is once admitted, every acquittal will produce an action, and no Commander in Chief will dare to accuse, from a dread of the consequences that may follow, and the discipline of the navy, on which the salvation of the country depends, will fall into decay and ruin. That by the statute law of the land, every offence against naval discipline must be tried by a court, specially constituted for the purpose, viz. a court-martial; a jury cannot try such a charge, because they cannot be presumed competent to investigate questions which depend upon skill and knowledge in a profession to which they are strangers, and are connected with habits, feelings, and principles, arising from situations in which they have never been placed; and the charge in the present instance being of such a nature, was accordingly tried by a court-martial. But in this action, as in every other for a malicious prosecution, the plaintiff must prove that the defendant accused him falsely and maliciously, and without any reasonable or probable cause; malice either express or implied, and the [97] want of probable cause, must concur; neither is of itself sufficient; the jury must therefore inquire into the reasonable ness or probability of the cause; but every reason which requires the original charge to be tried by a court-martial, must operate against the competence of a jury to try the question of a probable cause, which is, in effect, though with another view, a trial of the original charge. That the proper remedy for an officer unjustly accused, is to bring his accuser to a trial before a court-martial, on a charge of cruel and oppressive behaviour; because the court, who must try such a charge, are competent to the inquiry; and the punishment by law allotted to such an offence, viz. disgrace and dismission from the service, being the most painful to a military mind, must operate most efficaciously to prevent such offences; and thereby constitute the best protection to every subaltern against cruelty and oppression on the part of his commanding officer. Nor are they, by being without an action to recover damages, in a worse situation than all the other subjects of this country, in a variety of cases, who are equally without any civil redress for the heaviest injuries; viz. when they proceed from persons against whom no action can be brought, as already stated; and also on all occasions, where the wrongful act amounts to a felony, when the only compensation that can be obtained, is in the form of public punishment. That there is no usage, precedent, or authority, in support of such an action, notwithstanding that innumerable instances have occurred of persons accused being acquitted by courts-martial, many of whom must be supposed to have felt the charge to be without probable cause; and notwithstanding that, in many cases, the sentence of acquittal has expressly stated the prosecution to be false and malicious; and, on the other hand, it has likewise often happened, that persons have been tried and convicted by courts martial, on a charge of having preferred a false and malicious accusation.

But supposing such an action to lie in general, yet enough appeared on this record to arrest the judgment; inasmuch as it is necessary for the plaintiff, in every such action, to shew that the defendant accused him falsely and maliciously, and without any reasonable or probable cause. Whereas a reasonable and probable cause appeared on this record; for the sentence whereby the plaintiff was acquitted, and which is stated in the declaration, did not put a negative on the several facts which constituted the charge; but, admitting them to be true, declared the plaintiff to be justifiable: which species of acquittal, according to the principles by which this action is regulated in common cases, and the doctrine stated in books of the first authority, amounts to a reasonable and probable cause for having preferred the charge. By the 22d article of war, 22d Geo. II. ch. 33, disobedience to any lawful command of a superior officer, is made liable to such punishment as a court-martial, according to the degree and nature of the offence,