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months, there not being a sufficient number of officers to form a courtmartial? These circumstances, independent of the direct evidence of malice, as sworn to by one of the witnesses, are sufficient for you to presume a bad malignant motive in the defendant, which would destroy his justification, had it even been within the powers delegated to the defendant by his commission.". . .

Verdict for the plaintiff, damages 1000l.

1137. DAWKINS v. LORD PAULET

QUEEN'S BENCH. 1869

L. R. 5 Q. B. 94

FIRST Count, that the plaintiff was an officer and a lieutenant-colonel in the army, and held her Majesty's commission as captain in her Majesty's regiment of Coldstream Guards, and was entitled to certain emoluments in respect thereof, and the defendant falsely and maliciously wrote and published of and concerning the plaintiff, and of and concerning him as such officer and captain as aforesaid, in the form of a letter in the words following, that is to say: "Sir, I have the honour to forward a letter from Lieutenant-Colonel Dawkins, Coldstream Guards, complaining of an order which I considered it necessary to give in consequence of his incompetence in the field and of his unfitness to conduct the business of a battalion in barracks, and to request that his conduct may be referred for investigation by a court of inquiry. I submit that an officer who has shown such want of judgment, tact, and temper, is not fit to be intrusted with the responsibility and charge of a command." Whereby the plaintiff lost the value of his said commission, and was compelled to leave his regiment, and was deprived of the emoluments . . . and was and is otherwise greatly injured and damnified. . .

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Second plea, that the defendant was an officer in her Majesty's army on full pay, holding the public office or appointment of majorgeneral commanding the brigade of foot guards, of which brigade the regiment of Coldstream Guards formed part, and as such officer and major-general the defendant was the superior military officer of the plaintiff, and the plaintiff was under his command. . . . And thereupon the defendant, in his capacity of major-general commanding, . . . made certain reports in writing with respect to the plaintiff's conduct as such officer as aforesaid. Demurrer, and joinder.

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June 1. Sir R. P. Collier, A. G. (Dowdeswell, Q. C., and Archibald, with him), in support of the demurrer..

A. S. Hill, Q. C. (Holl with him,) for the plaintiff. . . .

Dec. 13. The following judgments were delivered: - COCKBURN, C. J. This is an action for libel. . . . To support this demurrer, it is necessary to maintain that in all matters relating to military authority

and discipline a subordinate officer is, so far as civil redress is concerned, entirely at the mercy of his superior; that the latter may institute proceedings against him, without right or reason, on charges which he knows to be unfounded, may, under the disguise of duty, write concerning him that which he knows to be false and may thus bring upon him consequences the most disastrous, without the party injured being entitled to redress in a court of law. While I fully agree that acts done in the honest exercise of military authority are entirely privileged, I confess that I am not prepared to arrive at a conclusion so startling and apparently unjust as that, if the opportunity it affords is intentionally abused for the purposes of injury and wrong, no redress is to be had by a sufferer in a court of law. . . .

It is argued that, independently of authority, as a matter of public policy, an action of this nature ought not to be allowed; and that, as in the case of judges, jurors, and witnesses, acting in the administration of justice, an absolute immunity is afforded, however unrighteous may have been their acts, however malicious and sinister their motives; so, by analogy, and on like grounds of public policy, superior officers in military or naval command ought to enjoy entire immunity in respect of acts, however unjust and malicious, done by them in the exercise of their authority. The argument cannot be put more forcibly than it is presented in the reasoning of Lord MANSFIELD, in Sutton v. Johnstone, 1 T. R. 544. In substance it comes to this: "It is essential to the efficiency of an army that discipline should be upheld; that obedience to orders however desperate and peremptory should be enforced; that the energy of commanding officers in giving such orders, in cases of trying emergency, and enforcing obedience of orders and observance of discipline, by bringing those guilty of disobedience of orders or of breach of discipline to punishment according to military law, should not be crippled by the apprehension of vexatious action; more especially as juries by whom such actions would have to be decided are incompetent to form a judgment on matters of a military or naval character, and might adopt conclusions different from those at which a professional tribunal, alone fitted to decide on such a matter, might arrive; and that if any of those who have voluntarily submitted themselves to military law should suffer injustice or oppression at the hands of a superior they must be content with such redress as the military law affords." Yielding to no one in respect for an opinion of Lord MANSFIELD, I must say that this reasoning fails to bring conviction to my mind.. I cannot bring myself to think that it is essential to the well-being of our military or naval force, that where authority is intentionally abused for the purpose of injustice or oppression, where charges are preferred which to the knowledge of the party preferring them are intentionally unjust, where respresentations are made which the party making them knows to be slanderous and false, the party injured, whose professional prospects may have been ruined and whose professional

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reputation may have been blasted, is to be told that the Queen's Courts, in a country whose boast it is that there is no wrong without redress, are shut to his just complaint. On the contrary, I cannot but believe that, to a force depending on voluntary augmentation, it will be far more beneficial that its subordinate members shall know that against intentional oppression and manifest wrong, leading to consequences disastrous to professional interests or character, redress may be found in the civil tribunals of the country.

Neither can I believe that a jury, under the guidance of a judge, may not be safely intrusted with the decision of such questions. . . . In cases of manifest wrong and proved malicious motives, no tribunal can be better qualified to form a just and correct judgment. Nor can I admit the incompetency of juries, when assisted by professional evidence, to form correct judgments, even on professional matters. Every day special juries are called upon to decide questions turning on matters of science and professional knowledge, foreign to their ordinary avocations, among others questions of navigation and nautical skill, and their decisions are on the whole satisfactory. At all events, trial by jury in matters of wrong between man and man is an essential part of our judicial system, and, as it appears to me, the question of the competency or incompetency of the tribunal cannot be admitted as an element in our decision of the present question.

Neither, I must say, do I feel the force of the argument that an individual, on becoming a soldier, consents, in case of being driven from the army or suffering other wrong by the dishonest exercise of superior authority, to be subject to and abide by the military law alone. . . I think the question of policy more than doubtful, for the reasons I have given, though, after the reasoning of Lord MANSFIELD, the ruling of WILLES, J., and the opinion of my learned Brothers, from whom I have the misfortune to differ, I of course feel the utmost diffidence in my own views. But my learned Brothers, for reasons they will themselves give, have arrived at a different conclusion, and, therefore, judgment must be given for the defendant.

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MELLOR, J. This case was argued before my Lord Chief Justice, my Brother LUSH, the late Mr. Justice HAYES, and myself, in Trinity Term last, and the judgment which I am about to deliver was entirely approved by my lamented friend, Mr. Justice HAYES. I approach this subject with great diffidence, seeing that my Lord Chief Justice has arrived at an essentially different conclusion..

The immunity of judges of the superior courts was established to secure their independence, and to prevent them being harassed by vexatious actions. . . . This absolute privilege is not confined to the administration of justice in the superior courts, but it has been also applied in its fullest extent to judges of the county courts: Scott v. Stansfield, Law Rep. 3 Ex. 220. Nor is it indeed confined to the administration of justice; for it is well established that members of Parlia

ment cannot be called in question out of parliament for anything they may say in parliament in the course of any proceedings in parliament. . . . Do not these reasons of public policy and convenience strongly apply to the present case? Can the administrative duties discharged by officers of the army in the position of the defendant be liable to be reviewed by a jury in an action at law without producing the greatest mischief and public inconvenience? . . . A special mode of redress, for all officers in the army who consider themselves wrong by their superior officers in relation to the discipline and government of the army, is expressly provided by the articles of war, and in that view how inconsistent it would be that the judgment of a military tribunal, familiar with the question, should be liable to be reversed, and a different result obtained by the verdict of a jury in an action at law upon the very same facts? . . . Upon these considerations, and supported by the opinion of Lords MANSFIELD and LOUGHBOROUGH and that of other judges, I come to the conclusion that the present action will not lie. . . .

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This view is confirmed by the opinion of WILLES, J., in Dawkins v. Lord Rokeby, 4 F. & F. 841, upon which he nonsuited the plaintiff in an analogous action, and which, so far as I am aware, was not afterwards questioned, he is reported to have said as follows:

"With respect to military men, I beg to say that I cannot conceive anything more fatal to themselves, anything more fatal to the discipline or subordination of the army, if every officer who considers himself to have been slighted by his inferiors, or every officer aggrieved by his superiors, whom, having become a soldier, he has consented to submit to, should seek to undo their judgment before a tribunal which must necessarily have but slight acquaintance with those matters upon which it is called to pronounce an opinion."

I have no doubt that this is law, and that it is that which is most beneficial to the community. . . . I am therefore of opinion that, upon all these grounds, our judgment must be for the defendant.

1138. WILKES v. DINSMAN

SUPREME COURT OF THE UNITED STATES. 1849

7 How. 88

THIS case was brought up, by writ of error, from the Circuit Court of the United States for Washington county, in the District of Columbia. It was an action of trespass vi et armis, for assault and battery and false imprisonment, brought, in the Circuit Court, by Dinsman, a marine in the service of the United States, who served in the Exploring Expedition, which was commanded by Wilkes. . . . The jury found a verdict of guilty, and assessed the damages of the plaintiff at five hundred dollars.

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Plaintiff gave evidence, further tending to prove that he embarked, under orders as a private in said marine corps, in the United States Exploring Expedition, which sailed from the United States on or about the 18th day of August, A. D., 1838, under the command of the defendant, who was a lieutenant in the navy of the United States; that afterwards, while the United States ship Vincennes, one of the vessels of the said expedition, was at the island of Oahu, one of the Sandwich Islands, . . . the respective terms of service of Samuel Pensyl, Philip Baab, George Smith, and Samuel Dinsman, "private marines," then serving on board the United States ship Vincennes, having fully expired on the 16th day of November, 1840, the said Wilkes did refuse to give said marines their discharge, in conformity with the terms of their enlistment; that upon said marines declining to do further duty, the said Wilkes did cause them, on or about the 16th of November, 1840, to be put in double irons. . . . That on the 4th of December, he, the said Wilkes, had the said Samuel Pensyl, Philip Baab, and Samuel Dinsman seized up in the gangway, and inflicted on them one dozen lashes each; that he again confined them; that on the 7th of the same month, he had inflicted on them another dozen lashes each; that after this system of lashing and confinement, for the preservation of their lives, the said marines were compelled, against the terms of their enlistment and against their free will, to do duty in the squadron, under the command of said Wilkes.

Mr. Bradley, for plaintiff in error. . . . 1. The question of detention is within the discretion of the commander, and imports a justification. If not conclusive, it is prima facie, and the burden of proof was on the plaintiff to impeach it, and aver and prove malice. . . . The chastisement which was inflicted was authorized by law. The opinion of the court below would destroy all discipline in the navy. . . . 2. The Act of 1837 necessarily gave the commanding officer a discretion to judge whether or not the interests of the service required the detention of Dinsman. If the jury were satisfied that he deemed it expedient to do so, it was enough. The law protected him unless malice was shown. . . . Mr. May, for defendant in error. . . . 1. If the master inflicts an unusual punishment, he is responsible. It is very doubtful whether he can lawfully confine a seaman in a foreign jail. The eighth article of the Constitution of the United States says that cruel and unusual punishment shall not be inflicted; and the question whether or not a punishment is one of this forbidden class is a question of fact for a jury. 2. The act of Congress does not leave it to the mere arbitrium of an officer whether to detain a seaman or not. The burden of proof is upon him, to show that the detention was essential to the interests of the service. ...

Mr. Justice WOODBURY delivered the opinion of the Court. The original action in this case was trespass by a marine in the Exploring Expedition against its commanding officer. It will be seen, by the

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