“The first charge is in substance,– ‘That on the 25th April, 1813, in sight of Madeira, your memorialist sent for the master of the merchant-brig Recompense, on board the Hermes, and in the presence of the officers and ship’s company abused him and challenged him to fight, took off his coat, and squared at him in an attitude, and aimed or made a blow at him; and the master then lying down on the deck of his own accord, that your memorialist ordered some marines to take off his coat, and oblige to him stand up, which attempt the master resisting, the marines tore his coat: and that your memorialist then challenged him to go on shore to fight at Madeira, by which conduct your memorialist was alleged to have violated the 23d and 33d articles of war.’
“The 23d article of war recites, ‘that if any person in the fleet shall quarrel or fight with any other person in the fleet, or use reproachful or provoking speeches or gestures tending to make any quarrel or disturbance, he shall upon being convicted thereof, suffer such punishment,’ &c. &c. &c.
“The 33d article of war alleged to be violated, recites, ‘that if any flag-officer, captain, commander, or lieutenant, belonging to the fleet, shall be convicted of behaving in a scandalous, infamous, cruel, or oppressive manner, unbecoming the character of an officer, he shall be dismissed his Majesty’s service.’
“Such are the crimes of which your memoralist is accused, and such is the law which he is stated to have infringed. The simple facts of the case, in as far as they are in evidence before your Lordships on the minutes, are these:–
“On the 3d April (three weeks before the time of the transaction), your memorialist, proceeding from Cork, in his Majesty’s ship the Hermes, with a convoy, happened to encounter the brig Recompense (not of the convoy), the master of which, by the most wilful mismanagement of his ship, ran foul of one of the convoy, which he also forced on board of his Majesty’s ship, which was in imminent danger of being lost thereby. It is sworn, that the master could have prevented the accident of entangling the ships if he chose, but that the Hermes could not possibly avoid them. That your memorialist, in the alarm which he felt for the safety of the ship, called vehemently to the master of the brig Recompense to let go his anchor, and warned him against the lubberly mode in which he was proceeding. That the master not only refused to desist from his misconduct, but actually forced the other vessel foul of the Hermes; and in reply to your memorialist’s desire to let go his anchor, it is sworn, even by the prosecutor’s own evidence, that the said master, without any provocation, in presence of all the officers and crew of the Hermes, called him a damned white-faced rascal, and said that if he had him on shore he would thrash him. At this time, from the dangerous situation of the Hermes, and the urgent necessity of putting his orders in execution, your memorialist had no possibility of communication with the ship-master. That three