What extent of smuggling ought to have the above effect?
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Erodie, Ellis, and Herd, were impressed by Captain Napier's officers in circumstances precisely similar to those occurring in the case of Brownings, decided 19th January 1781, No 2. p. 6610. But when the legality of the impressment came to be discussed, their situation was very different. The Brownings had joined issue on the fact, that they were employed in a smuggling trade; they had redeemed their vessel from the officers of the revenue, without waiting the event of a trial; and the cargo had been actually condemned in the Court of Exchequer. Here the parties impressed positively denied their having been concerned in a smuggling trade. An action for penalties, instituted in the Court of Exchequer on that ground, had been dismissed, upon the public prosecutor's entering a noli prosequi; and their vessel and cargo had been released, by order of the Commissioners of the Customs, as having been unduly seized.
Captain Napier, however, maintained, that acts of smuggling could not only be established by trial in Exchequer, but might be the subject of proof in the Court of Session, and offered to bring a proof.
Observed on the Bench; The carrying on of a smuggling or contraband trade has been justly found to deprive a person of his immunity from being impressed; but single acts of smuggling, committed by persons usually employed in lawful commerce, ought not to be attended with such a penal consequence. Besides, after a party's being acquitted of that charge in the proper court, it cannot be renewed against him in another.
A bill of suspension had been presented by the parties impressed, which was reported.
“The Lords passed the bill”
Reporter, Lord Alva.For Brodie, &c. Crosbie.For Captain Napier, Solicitor-General.
Fol. Dic. v. 3. p. 310. Fac. Col. No 29. p. 50.
