Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 APPRENTICE.
Subject_3 Detention of an Apprentice to serve at sea by an Impress-officer.

James chalmers
v.
Captain Charles Napier

Date: 19 June 1778

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[Faculty Collection, VIII. 59; Dictionary, 594.]

Hailes. The interlocutor of the Admiral is very singular. In effect, it tended to remove the cause out of his Court; for, instead of giving judgment or seeking farther light, he stopped all procedure, “that the complainer might apply to the Lords of the Admiralty.”

Justice-Clerk. The arguments for incompetency used by Captain Napier, on the Act 1681, are insufficient. According to his argument, there is no security for any person in this country. It was proper in Chalmers to apply to the Admiral, for the Admiral had a well-founded jurisdiction: he was called upon to determine one thing or other; for the plea was made on common law, supported by a statute, which the complainer said applied to his case. If the Admiral had dismissed the complaint, Chalmers might have resorted to the appellant jurisdiction in this Court. Instead of that, the Admiral referred Chalmers to the Lords of the Admiralty, who have no jurisdiction. He would not so much as allow to the complainer the common law security of keeping the person of the apprentice within the country. Here was a denegatio justitiæ on a demand founded on the law of the land. If Chalmers's plea was good, his apprentice had the same security against being pressed that any member of this Court has. If we had any doubt as to the competency of this advocation, the consequence would be, that, if the matter had been once brought before the Admiral, and if the Admiral had left it to the determination of the Lords of the Admiralty, we could give no redress for any wrong whatever. Is this a maritime or sea-faring cause because the violation of a contract of indenture is said to have happened in the Road of Leith? It is said that the offence charged is piracy, wherein the Admiral has an exclusive primary jurisdiction. But this is a mistake: the ground of complaint is not for the seizure but for the detaining of the apprentice after a contract of indenture was produced. Liberty is a common law-right: it is neither maritime nor sea-faring.

Covington. The privative jurisdiction of the Admiral is under a double limitation,—as to place and as to offence. If the nature of the crime is maritime, the Court cannot advocate.

Kaimes. This cause is neither maritime nor mercantile; it is an application to the Judge-admiral for restoring a man to his liberty. The cause came before that judge because the person of the apprentice was at sea. But whether the cause was maritime or mercantile, or neither, is of no moment; a judge must act: here the judge declined to act, and left judgment to private men.

Braxfield. I am clear that this is none of the cases in which the Judge-admiral has a privative jurisdiction.

On the 19th June 1778, “The Lords remitted to the Ordinary to pass the bill;” repelling the objection as to competency.

Act. Ch. Hay, H. Erskine, A. Crosbie. Alt. Ilay Campbell and King's Counsel. Reporter, Stonefield.