Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_3 Jurisdiction of the High Admiral Court in questions of Prize.

John Jackson
v.
John Monro, Procurator-Fiscal of the Court of Admiralty

Date: 18 December 1778

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[Faculty Collection, VIII. 82; Dict. 7522.]

Hailes. The raiser of the advocation totally misunderstands the sense of the statute: it is briefly this,—His Majesty's subjects in America had risen in rebellion, and it became necessary to order their effects to be seized, as the effects of enemies. The king could not declare war against his subjects, so as to put them in the predicament of enemies; that would have been a solecism in politics. But the Legislature did the same thing in an indirect way: the statute declared, that their effects should be forfeited as if they were the effects of open enemies, and that they should be so deemed in all Courts of Admiralty, that is, the American rebels shall, by statute, be considered as enemies as much as the French or Spaniards could, by royal proclamation; and no one will doubt that the ships and effects of enemies, by royal proclamation, might be condemned in our High Court of Admiralty. The statute makes no difference, and could not mean to make any difference between one Court of Admiralty and another.

Alva. The Judge-admiral with us has a jurisdiction, not as Vice-admiral but as sitting in a supreme court.

Covington. Here was a rebellion which would not justify a seizure without an Act of Parliament. The High Court of Admiralty has a supereminent right in England: it grants letters of reprisals, and also protections, which the Scottish Court of Admiralty cannot: I think that the statute meant to confer the jurisdiction on the High Court of Admiralty in England.

Elliock. The judge who spoke last confounds the High Admiral or Commissioners of Admiralty with the judges of the English Court of Admiralty. The High Court of Admiralty can never judge of persons and things without his territory.

Braxfield. I look back to the statute 1681, which gives a sole and exclusive jurisdiction to the Judge-admiral of Scotland. In maritime and seafaring causes, no judge has even a cumulative jurisdiction with him; and this jurisdiction is recognised by the Articles of Union. An Act of the Parliament of Great Britain might alter this; but I will never presume any such alteration. The legislature only meant to put the Americans on the footing with enemies. That the Judge-admiral in Scotland had a jurisdiction in common wars is admitted; and there is no reason for supposing that he has not also a jurisdiction in a war of a more uncommon nature. As to the question, How this cause could be taken out of the hands of the English admiral?—the answer is, As he has no cumulative jurisdiction with the Scottish, he cannot interfere.

Justice-Clerk. If there had been words in the statute taking away a jurisdiction established by the law of Scotland and the Articles of Union, I should have submitted; but I do not see any such words. On the contrary, I see the very reverse. There is an opinion of Lord Mansfield and Dr Lee, that the High Court of Admiralty in England had an antecedent right of condemning the goods of enemies; and that the Court of Admiralty in Scotland had a like right in the former wars. Commissions, such as those in the statute in question, were issued to the Court of Admiralty in England, but never to the Court of Admiralty in Scotland; and yet that Court frequently condemned the ships taken from the enemy. Had such commissions been necessary in Scotland, it is strange that none of the parties, whose ships were condemned, should have ever discovered it. It is quite anomalous to carry on a trial extra territorium. The ship was seized in the Frith of Clyde: who is it that can deliver up the ship unless some person within the jurisdiction of Clyde?

Gardenston. The Court of Session and the Court of Justiciary are no better established by the Articles of Union than the Court of Admiralty is: nay, it even stands on the same footing with presbyterian church government, [for which he expressed a vehement admiration and esteem: This raised a laugh in the audience.]

President. The Act of Parliament did not mean to make any alteration in the law.

On the 18th December 1778, “The Lords refused the bill of advocation, on the merits.”

Act. Ilay Campbell. Alt. J. Monro. Reporter, Stonefield: unanimous, with the exception of Lord Covington.