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shall inflict; and if the command be lawful, nothing can justify disobedience, but a physical impossibility to obey. The charge, in the present instance, was disobedience to a lawful command; [98] and the sentence of acquittal justified such disobedience in terms which could not, on any reasonable construction, be understood to imply that a physical impossibility existed; but, on the contrary, the sentence imported, as the fact was, that the court-martial were of opinion, on the evidence produced, that the order was given, and might have been obeyed, but that the prisoner acted properly in not obeying it; and therefore they acquitted him of any guilt; which acquittal was manifestly against law, and the oath by which they were sworn to decide. So that it was the strongest instance of a reasonable and probable cause that could possibly be stated, viz. the facts charged being found and justified, but the justification illegal. But if the sentence of the court-martial could be differently construed, and it must be intended that the justification was founded on the proof or the belief of a physical impossibility to have obeyed; still, the fact of disobedience existing, it was the duty of the defendant, as Commander in Chief, under the circumstances of the present case, to bring the plaintiff to trial by a court-martial, for them to decide, whether the circumstances alledged, by way of justification, did or did not constitute such physical impossibility. And if disobedience of orders will admit of any other justification than a physical impossibility to obey, it was incumbent on the defendant to bring the plaintiff to a trial, for a court-martial to decide, whether the circumstances of the particular case amounted to such justification.

That the only part of the charge of which the plaintiff was fully acquitted, was the delaying and discouraging the public service; but in the charge no particular fact was alledged, so as to make this an independent and substantive charge, and it was merely consequential to the charge of disobedience; for the order being to cut or slip immediately, and that order not having been obeyed, delay unavoidably followed and if the defendant was right in bringing the plaintiff to trial for disobeying the order, he could not be wrong in having stated in the charge what was a necessary consequence of the disobedience. So that the probable cause existed as to both these charges; which, though formally two, were in reality and in effect but one.

As to the remaining charge, viz. the falling a-stern, and not keeping up in the line of battle, &c. &c. &c. the sentence was, that he did his utmost to regain his station. So that, in this instance likewise, there was not a full and complete acquittal, but the fact charged was found, and justified. But if there had been a full and complete acquittal as to every part of the charge, except the disobedience of orders, the probable cause existing as to that, must prevent the plaintiff from recovering; because the injury to which the action is adapted, is the arrest, suspension, imprisonment, and trial; all of which were consequential to the charge of disobedience, and are therefore justified from the probable cause for that part of the charge. And though it was averred in the declaration, that the plaintiff, during the whole of the 16th of April 1781, conducted himself as a loyal, obedient, and faith-[99]-ful captain, and did his duty as such according to the best of his skill and ability, and the state and condition of his ship, and that the defendant well knew the premises; yet such averments would not establish the proposition they were intended to support, viz. that the defendant could have no reasonable or probable cause for the charge; because, at the utmost, they could only mean, that he knew the facts on which the plaintiff was justified by the court-martial; and, admitting it to be so, he was equally bound to bring him to a trial; because, if nothing but a physical impossibility can justify disobedience to the lawful command of a superior officer, the defendant was bound, with the knowledge of all these facts, to conclude that the plaintiff was guilty, supposing them not to amount to such impossibility; and so it must be understood from the sentence. But if the sentence could be otherwise construed, he was equally bound to bring him to a trial, for the court-martial to decide, whether the several facts did constitute a physical impossibility; and further, if any other justification existed, it was not for him to determine, whether the circumstances of the particular case amounted to such justification, but it was his duty to refer the whole to a court-martial for their decision.