Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 IMPRESS SERVICE.
Subject_3 The Exemption from being impressed, which is competent to the Masters and Mates of Trading Vessels of fifty tons and upwards, does not extend to persons of that rank when employed in smuggling.

Charles Napier
v.
Robert and John Brownings

Date: 19 January 1781

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[ Fac. Coll. VIII. 32; Dict. 6610.]

Braxfield. That the suspenders were smugglers, seized in the act of smuggling, is now proved by a decree in Exchequer importing what is equivalent to a condemnation. Masters and mates are not liable to be impressed; but here the master and mate plead that they are such on a smuggling voyage. This defence cannot be received, being an acknowledgment of turpitude. The captain of a smuggling vessel cannot plead legal privileges; just as in smuggling contracts we deny action, because the smuggler cannot plead on his own turpitude.

President. Pressing is a necessary legal evil. Masters and mates are exempted, not by any statute, but merely for the benefit of commerce; and accordingly, in practice, and by the orders of the Admiralty, they have been exempted: but still masters and mates must plead on the foundation of that exemption, which smugglers cannot do.

Justice-Clerk. The vessel was taken in the act of aggravated smuggling. While possessed of a letter of marque to wage war against the enemies of the state, the crew waged war against the King's officers and the fair trader.

On the 19th January 1781, “The Lords found the letters orderly proceeded.”

Act. Ilay Campbell. Alt. A. Elphinstone. Reporter, Kennet.