Page:The English Reports v1 1900.pdf/1049

the Judge thereof, had and has by law an universal and paramount jurisdiction over the whole kingdom of Scotland, and the islands thereto belonging; and finds that the Procurator Fiscal of this court is by law entitled to institute and proceed in every action in this court, wherein his Majesty's interest is concerned, such as the present action; [414] and therefore upon the whole, refuses the desire of the said petition, and adheres to the former interlocutor and decreet, of date the 9th of December 1777, and decerns.

The appellants having presented their bill of advocation to the Court of Session, against the sentences of the Judge of the High Court of Admiralty, the Lord Stonefield, Ordinary, declared his intention to report the question to the whole Lords, and ordered the parties to give in memorials; and memorials having been accordingly given in, the Court of Session, on considering these, were pleased to direct the Lord Ordinary to refuse the bill, which he did by interlocutor of date the 18th of December 1778.

The appellants conceiving themselves aggrieved by the interlocutor of the Judge of the Court of Admiralty in Scotland, of date the 6th August and 9th December 1777, and 20th January 1778; and by the interlocutor of the Lord Ordinary of 18th December 1778, appealed from the same; and on their behalf it was insisted (W. Wynne, A. Wedderburn), that by the 19th article of the Treaty of Union between the two kingdoms, it is declared, That all admiralty jurisdiction be under the Lord High Admiral or Commissioners for the Admiralty of Great Britain for the time being: whereby the Court of Admiralty in Scotland, and the judges and officers thereof, are subordinate to and under the general superintending power of the Lord High Admiral or Commissioners for the Admiralty of Great Britain for the time being; and the commission issued by Prince George of Denmark, the High Admiral of Great Britain, to the Earl of Wemyss, to be Vice Admiral of Scotland, proved that the Court of Admiralty in Scotland was, on occasion of the Union, new modelled, its ancient jurisdiction was circumscribed, and it was made dependent upon and held its jurisdiction under the High Court of Admiralty of Great Britain. That the only authority under which American prizes could be brought to condemnation, was the statute of the 16th of his present Majesty, which, from its whole scope and intendment, gives the sole and exclusive jurisdiction to the High Court of Admiralty in England, and Courts of Vice Admiralty in foreign parts. That the above mentioned article of Union states,

That the Court of Admiralty, now established in Scotland, be continued, and that all reviews, reductions, or suspensions of the sentences in maritime cases, competent to the jurisdiction of the court, remain in the same manner after the Union as now in Scotland, until the Parliament of Great Britain shall make such regulations and alterations as shall be judged expedient.

And the said act of the 16th of his present Majesty, was such a regulation and alteration as was well warranted by the above article of Union, and made in the manner prescribed by it. That the commission under the great seal, from his Majesty, of the 2d of May 1776, and the warrant issued thereon by the Lords of the Admiralty to the Judge of the High Court of Admiralty of England, to take cognizance of, and judicially to proceed upon, all manner of prizes, (no such commission being issued to the Judge of the Court of Admiralty in Scotland,) were further proofs how and in what manner this act of the 16th of the King was to ope-[415]-rate, and upon whom the exclusive jurisdiction of deciding upon American captures was to be conferred. That the aforesaid article of Union also states, that "There be always continued in Scotland a Court of Admiralty, such as in England, for determining all maritime cases relating to private rights in Scotland, competent to the jurisdiction of the Court of Admiralty, subject nevertheless to such regulations, etc." By this article it appears, that the jurisdiction of the Court of Admiralty in Scotland is limited to matters relating to private rights in Scotland; and that the present question did not relate to private rights in Scotland, but was a matter of public jurisdiction, to which it was apprehended the Court of Admiralty in Scotland was not competent. On the part of the respondents, it was contended (J. Mansfield, A. Macdonald), that previous to the Union of the two kingdoms in 1707, there was, and had been in Scotland, from early times, an officer, called the High Admiral, who, by the constitution of that country, had very large and ample powers, both ministerial and judicial; the ministerial powers being exercised by himself, and the judicial by his Deputy, called the Judge of the High Court of Admiralty; and by the common law of