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parliament; and on his behalf, it was contended, (T. Erskine, G. Wood, F. Bower) as to the 1st error specially assigned, that this error was founded on the manner in which the sentence of the court-martial, which tried the plaintiff, was worded; and it might be collected from thence, that the plaintiff was guilty of disobedience to the orders of the defendant, though he was excusable for such disobedience from reasons not known to the defendant; whereas it did not appear, that the court martial either meant to say there was disobedience of orders, or that the justification, upon which they founded their sentence, was not known to the defendant in error at the time he prosecuted the plaintiff. On the contrary, they declared, that the plaintiff did not delay or discourage the public service; that he was justifiable in not immediately slipping his cable; that he did his utmost to regain his station in the line of battle after the loss of his fore-top-mast; and that he was in his station at the precise time he was charged not to have been so; and they adjudged him to be honourably acquitted of the whole charge. The cause of the prosecution, the degree of knowledge, the motives or intentions of the prosecutor, neither were before that court, nor did the court-martial, nor could it properly, give any opinion upon the subject. The judges of that court had only to say, whether the present plaintiff was, or was not, guilty of the charge then imputed to him; and they honourably acquitted him of the whole of it. Besides, it is a settled and [94] indisputable principle in law, that every intendment shall be made to support a verdict, and none to destroy it; and therefore admitting it to be equivocal upon the words of the sentence of the court-martial, whether that court acquitted the plaintiff in error, upon the ground of a physical impossibility to execute the defendant's orders, or from other circumstances amounting to a justification of what the defendant called disobedience of them; yet the declaration in this cause having averred that the defendant prosecuted the plaintiff maliciously and without probable cause, and knowing the defendant's innocence of the charge imputed, at the time he preferred the false accusation complained of, it must, after verdict, be intended that all the circumstances disclosed to the court-martial were before known to the defendant, and that it was so proved to the satisfaction of the jury. A different intendment, viz. that the jury might go upon the ground of implied malice from the want of probable cause, where express malice is averred in the declaration, would be to contradict the most acknowledged and established maxims and principles of law as to intendments.

As to the 2d error specially assigned, this error assumed, that it appeared the Barons of the Exchequer had decided upon a question not cognizable in a court of law inasmuch as it appears, by the record, that the offences in the declaration mentioned are charged to have been committed by the defendant in error, as Commander in Chief of a squadron of his Majesty's ships of war, in the due course of discipline, and in the exercise of powers legally incident to his station as such commander, and while the plaintiff in error was serving as an officer in the said squadron under his command. If it is meant by the error so assigned, that the plaintiff brought his action against the defendant simply for bringing him to a trial by a court-martial, the record seems not to be properly understood, the injury complained of being, that the defendant brought the plaintiff to such trial from malicious motives, without even a reasonable or probable cause, and with perfect knowledge of his innocence, with a view to injure and oppress him. If it is meant that such a conduct, supposing it to be proved, was in the due course of discipline, and in the exercise of powers legally incident to the defendant's station as such commander, the proposition seems wholly untenable and monstrous. For, by the general law of England, there can be no wrong without a remedy, and no authorities have been produced to shew the present case to be an exception to the general rule; on the contrary, the principle, that military officers and governors are answerable for injuries done by them, in those characters, is laid down and acknowledged in a variety of cases, and many actions have been maintained in the courts of Westminster Hall for such injuries. The principle of the liability of such officers being admitted, it seems to follow of course that redress must be obtained in the form of action by law, adapted to the nature of the injury complained of; and it is agreed on both sides, that if the party injured is not entitled to maintain an action in the courts of common law, there is no other [95] tribunal or jurisdiction before which he can sue for a reparation in damages.