Scottish Court of Session Decisions

Subject_1 JURISDICTION.
Subject_2 DIVISION VI.

Admiral Court.
Subject_3 SECT. IV.

Dispensation to hold courts during vacation.

John Monro, Procurator-fiscal of the High Court of Admiralty,
v.
Magistrates of Edinburgh, and their Admiral-depute

Date: 20 February 1781
Case No. No 245.

Action for the condemnation of a prize not competent before the admiral depute of Leith.

Click here to view a pdf copy of this documet : PDF Copy

Captain Watt of his Majesty's navy having brought into Leith-road an American ship which he captured, instituted an action for condemnation of the vessel, before the Admiral-depute of Leith. Mean time, an application for an interdict to stop procedure in this action was made to the High Court of Admiralty by the Procurator-fiscal, who alleged its exclusive jurisdiction in the condemnation of prize vessels. The Judge-admiral having granted the interdict, a bill of suspension, complaining of it, was presented to the Court of Session, by the Magistrates of Edinburgh and their Admiral-depute; in consequence of which, this question of controverted jurisdiction was discussed in the following manner:

Pleaded for the suspenders; By a charter under the Great Seal, in 1616, Ja. VI. conferred on the Magistrates of Edinburgh the jurisdiction which they claim, in these explicit and comprehensive terms:

“Igitur nos fecimus, constituimus, et ordinavimus, præpositum, balivos, et consules burgi de Edinburgh, eorumque deputatos, præsentes et futuros, eligend. judices omnibus nautis magistris ac navigatoribus frequentantibus, vel qui ad dictam villam de Leith tempore affuturo frequentari contigerint, tam nostris subditis quam peregrinis de quacunque patria vel natione, in omnibus maritimis, lie, seyfaring aliisque actionibus et causis quibuscunque, prosequendis,”&c.

This grant was, in 1636, confirmed by a charter of Charles I. which was ratified by Parliament.

Under the authority of these royal charters, the Magistrates of Edinburgh have been ever since in the constant use of exercising, by one of their number, whom they appoint Admiral-depute of Leith, a jurisdiction in all maritime causes, without exception. No intervening act of the legislature hath abridged their power of judging in the first instance. The statute 1681, cap. 16. only subjects their sentences, in common with those of all the other inferior admirals, to the review of the High Court, of which, it appears, they had been formerly independent; the Court of Session alone having been then competent to review them. And by the treaty of Union, it is provided that the several admiralty jurisdictions shall remain, in all time to come, free from any material alteration.

Now, it cannot be disputed, that an action relative to the condemnation of an enemy's ship, is, in the most proper sense of the words, a maritime cause. Indeed, were it otherwise, what would be the Judge-admiral's own title to claim jurisdiction in the present question?

With respect to the evidence of the actual practice in this case, it happened unfortunately, that, in 1745, the rebels destroyed all the records of Court. But, in 1762, an action* was brought before the Admiral-depute for condemnation of the Due de Broglio, a French privateer; and there, too, the Judge of the High Court interfered, by issuing a sist of proceedings. The Court of Session, however, unanimously passed a bill of suspension of that sist. The Admiral-depute pronounced sentence of condemnation, and it was carried into execution.

Answered for the Procurator-fiscal; The office of High Admiral was long distinguished for the amplitude of its powers, both civil and military. The judicial department of the former is now exercised by the Judge of the High Court of Admiralty, of whose jurisdiction the nature and extent appear from act of Pal. 1592, cap. 160; 1609, cap. 15; and from 1681, cap. 16, which last statute “declares, the High Court of Admiralty to be a sovereign judicature, and that the High Admiral, as he is his Majesty's lieutenant and justice general on the seas, so he hath the sole privilege and jurisdiction in all maritime and seafaring causes, foreign and domestic, within the realm; and prohibits and discharges all other judges to meddle with the decision of any of the said causes in the first instance, except the great Admiral and his deputes allenarly,”

* Not reported.

That the power of judging in the condemnation of prizes always belonged to the High Admiral and his deputes, is therefore unquestionable; that they held it exclusively, is not less certain. During the two Dutch wars which subsisted in the reign of Charles II., many prizes were brought into the port of Leith, all of which were tried for condemnation in the High Court. Accordingly, in the written instructions sent by government for regulating the important public questions that might thence have arisen, no court or courts of admiralty are mentioned, save the High Court alone. These instructions were contained in letters addressed sometimes to the Privy Council, and sometimes to the Court of Session, among whose acts of sederunt the letters are still extant, particularly one, dated 18th December 1680, which makes mention of another of 29th June 1673. And Lord Stair, who sat in the Court of Session in that very period, when a variety of questions occurred, which he himself has collected, respecting the condemnation of prizes, declares “the Lord Admiral to be the sole judge, in the first instance, of all prizes taken at sea;” (Instit. 2. 2. 5.); which privilege, secured by the 19th article of the treaty of Union, remains inviolable; Lord Bankton, (4. 12. 2.)

On the other hand, with regard to the Admiralty of Leith, it appears that the Magistrates of Edinburgh anciently possessed, in that district, no more than a right of water-bailiary, for making effectual their port-dues or customs; which, however, before the regular establishment of admiralty courts, might have been sometimes extended to the decision of civil questions occurring among mariners. Conformable to this original limitation of their power, is their Golden Charter, as it is stiled, granted to them by King James VI. in 1603, which serves to explain the subsequent one in 1616, founded on by the suspenders, as indeed this is also illustrated by that in 1636, which contains an express reservation of all the liberties, privileges and jurisdictions competent to the High Admiral. It, therefore, was never meant to confer upon them the jurisdiction which they claim; nor do they stand on any better footing than the deputy-admirals of particular districts.

Neither, indeed, were it reasonable that a power, of such political magnitude, should be exercised by any other than a court of the most public establishment, and whose dignity may bear proportion to the important consequences of decisions connected with the national safety; consequences that would but ill suit with the comparative meanness of local admiralties, from which this territorial jurisdiction is not to be distinguished.

The circumstance relative to the condemnation of the Duc de Broglio French privateer in 1762, was occasioned by the indisposition of the gentleman then procurator-fiscal of the High Court, having prevented him from giving the requisite attention to that business.

The Lords 'found, That the Admiral-depute of Leith had no jurisdiction in the cause, and refused the bill.'

Lord Ordinary, Braxfield. Act. Blair. Alt. M'Leod. Fol. Dic. v. 3. p. 352. Fac. Col. No 38. p. 68.