Of naval courts martial and prize claims: Some legal consequences of commodore Johnstone's secret mission to the Cape of Good Hope and the "battle" of Saldanha Bay, 1781 (Part 1)

Jp Van Niekerk

doi:10.17159/2411-7870/2015/v21n2a11

Abstract

Commodore Johnstone's secret mission to the Cape of Good Hope in 1781 had a surprisingly large number of legal consequences, not only in England but also at the Cape. In the main they concerned two matters, namely naval law, more specifically intra-naval immunity, and prize law, more specifically, the question of joint captures.

Highlights

When viewed from a slightly unorthodox or novel angle, well-known historical events often acquire a quite unexpected relevance
The legal consequences arising from Commodore Johnstone’s expedition to the Cape and the action in Saldanha Bay may conveniently be considered under three topics: litigation in England on matters pertaining to naval law and, intra-naval immunity; litigation there on matters pertaining to prize law and, the question of joint captures; and litigation at the Cape and in Batavia involving the Dutch naval officers present in Saldanha Bay on that fateful day in July 1781
It merely ceased to have effect, until such time as it is revived.[283] (to be continued in (2016) 22(1) Fundamina)

Summary

Introduction

One legal consequence of Johnstone’s expedition was the litigation concerning issues of naval discipline. Suttons’s acquittal by the court martial alone was not sufficient to establish want of probable cause on the part of Johnstone.[211] The question of probable cause, it was clear, is a mixed proposition of law and fact[212] and here there had not been any proof of a lack of probable cause.[213] Sutton’s defence raised “a most complicated point”, there appeared to their Lordships under all the circumstances to be no difficulty to support their opinion that, in law, Johnstone had had a probable cause to bring Sutton to trial by court martial.[214] This particular part of the opinion assumed, that intra-naval claims were not absolutely barred, irrespective of the presence or absence of probable cause, 209 These (unreported) decisions were Swinton v Molloy (1783, KB), where a false imprisonment action by a ship’s purser against her captain was entertained, and Wall v M’Namara (1779) where there was a false imprisonment claim by a captain in the Africa Corps against the governor of Senegambia and where the direction by Lord Mansfield to the jury, who awarded damages, was in striking contrast to his opinion in Sutton v Johnstone: see Holdsworth (n 192) at 225 and Hannaford v Hunn (1825) 2 Car & P 148, 172 ER 68 in note* at 157-158, 72. It merely ceased to have effect, until such time as it is revived.[283] (to be continued in (2016) 22(1) Fundamina)

General background

50 Various spellings are encountered

Legal consequences