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by the laws and constitution of that country, to judge in and determine relative to the condemnation of all prizes brought into Scotland; and has exercised that jurisdiction since the Union, (in the same manner as before,) in many instances, without any occasional powers from the Crown, or the Lords Commissioners, for that purpose; and by the articles of the Union it is not alterable by any less authority than the parliament of Great Britain. And as to these occasional powers in general, it is to be observed, that they are not necessary for authorising the High Courts of Admiralty of England or Scotland, to proceed in the condemnation of prizes; for the High Court of Admiralty of England, as well as of Scotland, has an inherent jurisdiction to proceed in the trial and condemnation of prizes. Anciently such commissions were not granted, and though for some time past, it has been usual to issue them upon declarations of war, yet they are no more than notifications to the Judge, that he should proceed to exercise the jurisdiction he antecedently had of condemning prizes, but give no new power or authority; and as it has not been the usage to issue such notifications to the High Court of Admiralty of Scotland, the Judge of that Court has sufficient authority to proceed in the trial and condemnation of prizes, without any special commission from the Lords of the Admiralty for that purpose.

It is however further objected, that by the restraining act of the 16th of his present Majesty, an universal jurisdiction over all Great Britain is conferred upon the High Court of Admiralty of England. To this it is answered, that the purpose of the act is to restrain any trade with certain of the provinces or colonies of America, and to declare subject to forfeiture the ships and cargoes [419] belonging to the inhabitants of the said colonies; and after enacting these forfeitures, the property of the prizes are by the act vested in the captors acting under commission from his Majesty, they being first adjudged lawful prize in any of his Majesty's Courts of Admiralty," plainly pointing out the High Court of Admiralty of Scotland, as well as that of England; or does it appear from any part of the said act, that it was in contemplation to alter or extend the jurisdiction of either of the two Courts of Admiralty, neither of which could be ousted of their ancient jurisdiction, without the most express and explicit words to that effect, more especially the High Court of Admiralty of Scotland, whose jurisdiction stands so strongly guarded by the articles of Union.

Another objection is, that the restraining act is a new law, enjoining a new kind of forfeiture of the ships and goods of the King's own subjects, and it would require express words in the statute conferring jurisdiction, in such a case, upon the High Court of Admiralty of Scotland, to enable that Court to proceed and determine as to such forfeitures. But in answer to this it may be said, that when a new law is made, enacting a new crime or offence, omitting to specify the court in which the saine is to be tried and determined, the trial falls to be in the court to whose jurisdiction by the common law of the country, the cognizance of similar crimes or offences belongs, otherwise such law would be entirely elusory, and of no effect. And further, that the act does point out the jurisdiction, by declaring the property of the prizes to be vested in the captors, "they being first adjudged lawful prize in any of his Majesty's Courts of Admiralty."

Again it is objected, that by the articles of Union, the High Court of Admiralty of Scotland is kept separate and distinct, only as to matters of private right; and that questions of prizes taken in time of war are not matters of private right, as they arise from the public authority of the state, proclaiming war against an enemy, or declaring their ships liable to seizure. But surely a question, whether ships and goods taken are lawful prize or not, is in the strictest sense a question of private right; the question to be determined is, whether the former proprietor is divested of his property, and the captor vested therein, a matter unquestionably of private right, which does not cease to be so, because the ground of the forfeiture arises from a public law, or the act of the Sovereign declaring war.

It is lastly objected, that the action before the High Court of Admiralty of Scotland, in the present case, was at the instance of the respondent, the Procurator Fiscal of that Court, who the appellants alledge had no power to carry on such action. But to this it is answered, that by the restraining act, the said ship and cargo, if found forfeited, would belong to his Majesty, not having been taken and made prize of by those acting under his Majesty's commission; and by the law of Scotland, the Procurator Fiscal of the High Court of Admiralty there, is the officer who is entitled to