The Maritime History of the Great Lakes
Montreal Gazette (Montreal, QC), June 1, 1843

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p.1 We lately briefly noticed the case of Bray vs. Sandom, which was tried at the last Assizes for the Midland District, and in which the Jury awarded £50 damages to the plaintiff.

We derived our information regarding this matter from our contemporary, the British Whig, whose statement of the facts led us to coincide with him in thinking, that Captain Sandom had been somewhat harshly treated by the verdict; but, having since had an opportunity of perusing a full report of the proceedings in Court, the arguments of Counsel, and the charge of the learned Judge, we must confess that our opinion is changed, and that we think the gallant defendant may consider himself leniently dealt by.

This trial is interesting and important, and has apparently caused a great sensation in Kingston, where Captain Sandom, if we are to judge by the newspapers, is by no means a general favourite. We cannot, however, think that the verdict in question ought in any respect to be attributed to his unpopularity, deserved or not, the law and equity of the case being in favour of the plaintiff. Captain Sandom's imprisonment of Bray, although unattended by any aggravating circumstances, was clearly illegal, and we cannot think £50 an unreasonable compensation to the plaintiff for the loss of his situation, or too severe a punishment for the defendant's, to use the mildest term, irregular conduct.

We abridge the following report of the trial from the columns of the Kingston News:-

The action was brought by the plaintiff, formerly master-at-arms of H.M.S. Niagara, against the defendant, the Captain of that vessel, and commanding the Naval forces on these lakes, to recover damages for a false imprisonment. The circumstances of the plaintiff's case, as detailed by the learned Counsel in opening, were that the plaintiff, soon after his arrival at the Dock-yard here, obtained permission to sell beer to the men on board the Niagara, at certain prices laid down by the Captain; that he continued to sell at these prices without any fault being found, until last autumn, when on the 12th of November he was suddenly ordered to appear on the quarter-deck to answer to a charge of extortion. The Captain accused him "of making more money than he had any idea of," and said "that he must refund to the ship's company such a sum of money as these officers (pointing to three officers, Lieuts. Harper and Davies, and Purser Marsh) should name." This the plaintiff said he could not do, as he had expended it in the purchase of property in Kingston. Captain Sandom then said, "You refuse to obey my orders, do you?" and ordered him to be confined to his cabin, without limiting any time. He accordingly was taken off by the sergeant of marines, and confined to his cabin. The next order on the part of the Captain was, that Bray's cabin and rooms should be cleared and ready for inspection by ten o'clock the following morning. In order to a compliance with this order, the plaintiff's wife and things were bundled out in the rain (though it appeared afterwards without any unnecessary violence or exposure.) The three officers before mentioned having reported that Bray had made £1200 whilst he had the Canteen, and having recommended that he should make a present to each mess in the ship of some amount, which the plaintiff was unable to do, he remained in confinement for nineteen days, when the Captain, having again summoned him to the quarter-deck, expressed his regret that the confinement had occurred; said that they were both in error; and gave him his discharge, and a certificate of character "very good." The plaintiff left the Dock-yard at once, and commenced the present action for false imprisonment.

The following witnesses for the plaintiff were then examined by his and the defendant's Counsel, their testimony fully sustaining the facts as above stated, Lieut. Davies, R.N., Lieut. Taylor, R.N., Lieut. Harper, R.N., Alfred Averot, steward on board H.M.S. Montreal, J. Lloyd, late quarter master, and __ Noble, coxswain on board the Niagara. It appeared by the evidence, that the price charged by Bray for beer, was rather under that made by the publicans in the town, that the men were not restricted to purchase of him, and, although "it was known in the Dock-yard, that this action was going on, the vessel, and most of the men had been ordered off." Upon which the following remark was made by the Court: - "Any Officer who would be guilty of the conduct imputed to Captain Sandom, of ordering off his Officers and crew, to prevent their attendance as witnesses, would be at once cashiered."

At the close of the plaintiff's case, the Attorney General rose and moved for a non-suit, on the ground (as far as we could understand) that the plaintiff had given no evidence to support the count for the wife's expulsion, or the count "de bonis aspertatis," or the count "quare clausum fregit," that therefore the only counts remaining were those for the assault and the false imprisonment. On these the learned Attorney General argued that the plaintiff could not go to the Jury, because the action was not brought for excessive imprisonment, but for imprisonment generally; and that there could be no doubt of the Captain's authority to order any of his men into custody.

In reply, Mr. Macdonald, in one of the most lucid and satisfactory speeches (as a legal argument) we have ever heard, urged that the action was properly brought, and was supported by the evidence; because, in the first place, the Captain had no right to confine any of his men, save for some act, (either charged or proven) in contravention of the Rules of the Navy; that the only rule of the Navy bearing upon the selling at all, was one which the learned Counsel read, and which directed that no Captain should, on any pretence, allow any spirituous liquors or beer to be sold or disposed of on board his vessel; that Captain Sandom, and not the plaintiff, had broken this rule. The plaintiff had the sanction and command of his superior officer for his selling; and although that command was in contravention of the Rules of the Navy, it was no concern of the plaintiff's whose duty it was to obey the Captain's orders, without questioning his authority; that therefore the plaintiff had broken no rule of the Navy, and the Captain having no right to imprison in such a case, the plaintiff's remedy was clearly trespass; the learned Counsel next urged that the pleas of the defendant justified the imprisonment as a punishment; first, for extortion, and secondly, for disobedience of orders; whereas it appeared by the evidence, first, that neither the one nor the other had been committed, and secondly, that even had they been, by one of the sections, (the 34th we think) of the Navy Act, the only crimes, when committed on shore, cognizable by a court-martial, are desertion, mutiny, and disobedience of orders, and that these are triable, by the express words of the section, by court-martial only. Now, it is not contended that there was a court-martial, or even a properly constituted court of enquiry held on the plaintiff, so that the imprisonment was not, in fact could not be ordered as a punishment, but merely as a preliminary step, and so not within the justification pleaded.

His Lordship having expressed himself as clearly of opinion that the action was properly brought, and supported by the evidence in a number of the counts.

The learned Attorney General opened the defence by observing, that he expected from the opening speech of the learned Counsel for the plaintiff, that the defendant had acted in an arbitrary manner, but the evidence adduced on his part had certainly not carried out any of his conclusions; the matter of aggravation was, at all events, not made out. The case now before them he admitted to be one of the very highest importance, as affecting the military discipline of the British Empire.

He proceeded at some length to justify the defendant's conduct towards the plaintiff, on the ground of his having been guilty of extortion in overcharging the beer sold, and of disobedience of orders in selling it at improper hours. Several witnesses were examined in proof of these allegations; which, even, if proved, could not have justified the punishment awarded, without any regular enquiry or court-martial.

Mr. Macdonald then addressed the Jury for the plaintiff, in the following admirable, eloquent and argumentative speech:-

A very serious charge had been brought against Captain Sandom, no less than that of false imprisonment of the plaintiff, and an infringement of the liberty of the subject. That charge has been fully substantiated. The plaintiff, without any cause whatever being shown for so arbitrary an act, was disrated, reduced to the level of a common seaman, and imprisoned for nineteen days. The accusation brought against the plaintiff was that of extortion, but no extortion had been proved; in fact, the whole evidence went to show that Bray sold the beer at a dearer and cheaper price as the price varied in the town, and that for an equal price he gave a larger measure or quantity. That was the head and front of his offence; and for that he was disrated, reduced to the rank of a common seaman; and the defendant, not content with that meed of punishment, put him in prison, disgraced him in the eyes of his comrades, kept him apart from them and from his wife, and after all gave him the highest recommendation which he could give. The Attorney General had treated the production of this certificate, as though it had been exhibited as another charge against Captain Sandom. Such was not the case; but out of his own mouth he was condemned. On the one hand, he reported Bray to the Admiralty as a disrated man; on the other, he had given him a certificate of "very good." On the one side or the other, Captain Sandom has belied himself; he is on the horns of a dilemma, and may take his choice. In the examination of witnesses by the counsel for the defendant, it had been attempted to show that there was a disobedience of orders by the plaintiff; a witness stated that the men carried away beer from the canteen secreted, and it was no doubt secreted - in their stomachs; but it had not been proved that after the order issued, in consequence of a report made by one of the witnesses to the defendant, one glass of beer was sold to the men at improper hours. The witnesses examined for the defence were petty officers; some of them stated they had got beer within the hours; but Lieut. Taylor had already told them that the officers could get beer at any time. The plaintiff was a sailor, and as such amenable to punishment; selling beer, however, had nothing to do with his duty as a seaman; if the plaintiff in this capacity had committed wrong, the wrong was a private one; the men had their remedy; they were not obliged to buy of the plaintiff. It was contrary to the Navy regulations to sell on board ship, beer, wine, liquors, etc. Probably the Captain being on shore, did not consider himself bound to the letter of these rules, and allowed the establishment of a canteen; and if the plaintiff was guilty of an offence with which he had been charged, it was not an offence against naval discipline. Much had been said by his learned friend about the importance of preserving the discipline and the efficiency of the Navy; he would yield to none in the desire to see that branch of the public service in an efficient state; but that, he would remark, mainly depended upon the conduct of its officers and those entrusted with the command. They would all remember that critical moment, in which, when Britain was assailed by a powerful foreign foe, the whole British fleet mutinied, and that right arm of England's strength was for the moment paralyzed. What was the cause of that mutiny? Unquestionably the ill usage which the men received from their superiors; and these superiors were subsequently forced to confess the fact. The interference of Parliament was rendered necessary to save the country from the most disastrous consequences. The same might be observed, by reference to history, of all military forces; their unity, strength and efficiency depended upon the treatment of the officers; neglect or harshness was followed by defection and weakness. The jury should bear in mind the enormous power in the hands of Capt. Sandom, the distance from a fleet, and that he could not be brought to trial by the ordinary mode of a Court Martial; and that if they did not grant redress, he would be left without any restraint, to exercise those powers in the oppression of the men unfortunately under his command. He would cite a case to prove the supremacy of the law, one in which even the judgement of a Court Martial was reversed. Lieut. Fry, of the Royal Marines, was tried by a Court Martial for an alleged offence, and sentenced to fifteen years imprisonment, and rendered incapable of serving His Majesty in any capacity. This case was brought before the Court of King's Bench, Chief Justice Willis presiding, when a verdict of £1000 damages was returned against the President of the Court Martial, and the plaintiff was informed that he could bring an action against each Member of that Court. Subsequently, during the sitting of another Court Martial, at which two of the Members of the former were present, the Bailiff, armed with the warrant of the law, entered and arrested them. The remaining Members of the Court Martial took up the subject warmly, and passed resolutions of an offensive nature to the Judge, and demanded satisfaction for the insult offered to their body; the case was transmitted to the Admiralty, and came to the knowledge of the King, by whom the Court Martial was supported with equal warmth; thus from the members of the Court Martial to the Crown, all were arrayed against the authority of the Court of King's Bench. Chief Justice Willis ordered all the members of the Court Martial to be seized, and proceeded to vindicate the authority of his office; when a series of resolutions being passed by the Members of the latter, acknowledging the error and offering a public apology, the proceedings were allowed to drop. And if the Court of Law had power to interfere with the proceedings of a Court Martial, what was there to prevent the jury extending protection to a seaman who had been illegally punished. The plaintiff in this case was not amenable to punishment; he had committed no offence against military discipline; and it had not yet been found that he had offended at all. The report of the Committee appointed to investigate into the alleged offence, stated that he charged only the same price as others, but because he had rent, fuel etc. free, they recommended that he should make some restitution. This he stated his inability to do; in fact, instead of having money to refund, he was actually in debt; and Captain Sandom sought to force it from him. The case before them was one of a very gross nature; there was no reason urged for the course which had been pursued; the defendant, on proof of the offence alleged, ought to have prevented the plaintiff from selling any more; but he had committed a grievous breach of the law, and infringed upon the liberty of the subject; what was the whole paraphernalia of the law, if not for the protection of the subject? Captain Sandom had in the present instance committed a grave outrage upon liberty and property; it was on account of this, that the present action was brought, and for which the damages were laid at £1000. That this was not too high a claim, he could easily satisfy the Jury by reference to a few cases in point. All present doubtless well remembered the case of Colonel Dundas. That officer was in command of the garrison here at the period of the rebellion; he had the charge of some prisoners who were engaged in that insurrection, who effected their escape. Under these exciting circumstances, he fixed his suspicions upon Mr. Ashley to whom the immediate care of the prisoners had been confided, and ordered that gentleman into custody; upon which an action was subsequently brought. Col. Dundas was a man much esteemed by all who knew him, beloved and adored by his men, a brave soldier - in short, the very reverse of Capt. Sandom; yet the Jury felt it their duty to give a verdict of £100 damages for one hour's imprisonment, and that verdict was sustained by the Court above. Another case was that in which a General commanding confirmed the sentence of a Court Martial, and for that an action was brought and £700 damages rendered: Conyn vs. Sabirie. A third which he would cite was that of Capt. Gambier. The plaintiff kept a hut on shore, in which he sold liquor freely to the men under the defendant's command, who were materially injured by its use. The defendant landed and pulled down the hut; the plaintiff was inadvertently conveyed to England in one of the ships, where he was advised to bring an action, by which he recovered the sum of £1000 from the defendant. The case of Swinton vs. Molley was one precisely in point. It was an action for false imprisonment brought by the plaintiff, as Purser of the Trident man-of-war, against the defendant, who was his Captain. The defendant pleaded a justification for a supposed breech of duty. But it appearing in evidence that the defendant had imprisoned him for three days without inquiring into the matter, and had then released him on hearing his defence, Lord Mansfield said that such conduct, on the part of the defendant, did not appear to have been a proper discharge of his duty, and therefore his justification failed him, under the discipline of the Navy. In deciding upon the merits of this case, the Jury should not consider simply the extent of punishment, nor the actual suffering of the man. It was for them to consider how to prevent such occurrences in future. This is the first action of this nature which has been brought in this country, and if the Jury did not shew to seamen a protection in the law against the abuse of the power confided to a commander, they would not, in his opinion, be fulfilling their duty.

His Honor the Judge briefly charged the Jury. There was not the least doubt that, when an officer in command exceeded his jurisdiction, he was amenable to the law. He stood precisely in the situation of a Magistrate, to whom certain functions were confided, and certain rules laid down for his guidance. Officers in command, as well as Magistrates, ought, in the exercise of their duty, to be protected. Where an error was committed, there was a remedy in law; but if the error was committed through ignorance, the damages rendered should be simply to compensate the party injured, and no more. If the wrong had been done wilfully, then it would be proper to give heavy damages. It was a matter entirely in the discretion of the Jury, with whom the Court had no disposition to interfere, and would only interfere where, in its opinion, outrageous damages were returned. In the present case, there were many circumstances to alleviate the error which had been committed: the plaintiff had evidently been treated with much kindness on many occasions by the defendant, and with much leniency during the period of his imprisonment.

The learned Judge having then read over his notes of the testimony which had been given, the Jury retired, and, after an hour's absence, returned with a verdict of £50 damages against the defendant.

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June 1, 1843
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Rick Neilson
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Maritime History of the Great Lakes
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Montreal Gazette (Montreal, QC), June 1, 1843