“Inter arma enim silent leges?”: Impressment and the Scottish Courts in the Later Eighteenth Century

Naval impressment was necessary because the combined demand of the merchant and military marine for skilled seamen outstripped the supply of volunteers. Its legal foundation lay in the crown prerogative, parliamentary statute, and the common law. Ultimate authority rested on the crown: “the right of impressing is an ancient, legal, prerogative of the crown, coeval with our constitution, as being necessary for its defence”.⁶ Given that this was a matter of public law, it seems never to have been disputed before the Court of Session that the pre-1707 English tradition of impressment was relevant in cases coming before Scottish judges. Article XVIII of the Treaty and Acts of Union had left the possibility that law may be made the same in matters of “public Right, Policy and Civil Government … throughout the whole United Kingdom”, but this did not imply the wholesale acceptance of English constitutional principles.⁷

Scots counsel, in arguendo, cited approvingly the jury direction of the English judge, Sir Michael Foster (1689–1763), when he defined the legal basis of impressment in the following terms: “[t]he right of impressing mariners for the public service is a prerogative inherent in the Crown, grounded upon common law, and recognized by many acts of Parliament”.⁸ These included pre-1707 English statutes as far back as a 1378.⁹ While Foster correctly implied that legislation only indirectly authorised impressment, two Acts had particular importance.¹⁰ The first, from 1703, contained provisions in respect of apprentices.¹¹ Poor parish boys aged 10 or over, with the consent of the local justice of the peace or other magistrates, could be forcibly apprenticed to the sea until the age of 21 (section 1). Such apprentices could not be impressed or voluntarily enlist in another ship until the age of 18 (section 4). To encourage young men to enlist voluntarily, anyone doing so gained a three-year immunity from impressment on another vessel and was entitled to a protection from the Admiralty free of charge (section 15).

In 1740, parliament exempted certain categories of person from impressment.¹² First, there was exemption for anyone aged under 18, or 55 or above, or any foreigner, who served in any merchant vessel, trading ship, or privateer owned by subjects of the British crown. Secondly, under section 2 of the Act, those of any age who “use the Sea” were exempt for the period of two years immediately following their first going to sea. The phrase simply meant professional seamen.¹³ Anyone who had not gone to sea but was bound as an apprentice to serve at sea, was exempt for three years from the date he was so bound. For “the better securing” of these exemptions, the Lord High Admiral or three of his commissioners were authorised to grant a protection against impressment to anyone qualified in the above terms.¹⁴

A third Act of Parliament, in 1795, was an emergency response to the fear of invasion.¹⁵ This imposed a quota on ports where a specified number of men had to be recruited in each place. One case in the Court of Session that emerged from this legislation, although it concerns voluntary enlistment, contains much discussion of impressment. It includes the fundamental assertion that “the fact of our having Hannibal ad portas, cannot vary the common law of the land”.¹⁶

Impressment was particularly unpopular with merchants. In 1741 the Convention of Royal Burghs (the body which protected the interests of the major trading towns in Scotland) had objected to a parliamentary bill to increase the number of seamen.¹⁷ The offending clause, requiring magistrates and constables to break down the doors of houses where they suspected a seaman was being harboured, was removed as being a violation of the liberty of the subject.¹⁸ While politicians recognised the dire need for seamen, they also understood how carefully the law had to be framed, lest it led to such hardship as to provoke a reaction amongst the potential sea-faring population.¹⁹ The Convention's members, through their London agent, William Hamilton, later obtained from the Admiralty a general protection against impressment for fishermen and others involved in the herring trade in the Firths of Clyde, Forth and Moray.²⁰ Notarial copies were sent to all the coastal burghs “that they may show the same to the Captains of the Kings Ships and tenders stationed on their coasts”.

The lack of direct statutory authority for impressment led to some uncertainty on the part of local judges. Debtors were clearly not exempt from being impressed. If the debt was £20 or more, however, the debtor might be apprehended by their creditor and imprisoned, although it was unclear whether imprisonment trumped impressment.²¹ The judge-admiral of Greenock, Thomas Graham, thought the law permitted judges to imprison pressed seamen for debt. At the same time, he was naturally concerned to rule out collusion between the pressed man and alleged creditor.²² In his view landsmen were not specifically exempt, and there were instances of them being taken, yet “it is generally supposed the general practice does not favour impressing them”.²³

Graham, taking the view that “practice is the best explanation of dubious law”, wrote to his nephew Lawrence Hill WS in Edinburgh with queries to discover the practice in the High Court of Admiralty. The sentiment he expressed must have been familiar to every judge in an impressment case:

On the one hand I consider it my duty to facilitate rather than obstruct his majestys service in so far as I legally can, on the other I must determine for the subject when the imprest man is in such circumstances as to bar his being impressed.

The four queries Graham presented reflect genuine uncertainty and the officiating clerk of court responded to them. In regard to the question of creditors, the reply was that the Judge Admiral would normally grant warrant for apprehending an impressed seaman upon the application of a creditor who was owed £20 or more. He also noted that a seaman's marriage did not exempt him from being impressed: if the duty to aliment others could relieve him of impressment, that “would materially hurt the service”.²⁴ Finally, a first mate impressed while on duty should be liberated but a common mariner in an outward bound ship could be impressed, unless he had a protection from the Admiralty, and no warrant for his liberation should be granted.²⁵

Command authority was held by a regulating captain and at the port of Leith the regulating captains against whom Court of Session complaints have been traced were John Ferguson (d. 1767), Charles Napier (1731–1807) and Sir George Home (1740–1803). Every regulating captain held a general warrant from the Lords Commissioners of the Admiralty, to impress “so many seamen, seafaring men, and persons whose occupations and callings are to work in vessels and boats upon rivers, as he shall be able, in order to serve on board his Majesty's ships.”²⁶ This warrant rested ultimately on the authority of the Privy Council and would be issued following an Order in Council. In addition, the captain often had private instructions direct from the Lords of Admiralty, upon their authority alone, which could be varied or recalled depending on prevailing military or political circumstances. Such private instructions circumscribed a captain's conduct but were not to be published to any court or private citizen. They typically began by directing captains not to refuse to receive pressed men, especially in time of war, “under Pretence of their being Landmen … provided they are of fitting Age, and of able Bodies, so as to be capable of doing His Majesty Service at Sea.”²⁷

In 1778 Andrew Crosbie had argued that if Admiralty instructions “contained any thing contrary to the public law, they would have been void in any court of justice; and the Commissioners of the Admiralty, who pretended to sign them, would have been liable for the severest censures”.²⁸ Another counsel, William Tait, in 1795, noted that private instructions from the Admiralty had no different status to instructions from the War Office in the case of those recruited into the army and, as he...